I've been talking a lot of late about the resurgence of literature on reparations. And next week I hope to have a working draft of a paper on North Carolina's eugenics program and the legislature's compensation statute that I'm writing with Elizabeth Troutman. One of the best developoments has been the literature that looks pretty seriously at designing a reparations program. Lisa Laplante's new article, "Just Repair" is a prime example of this literature, which tries to assess what reparations might actually look like. Here is Laplante's abstract:
“Just Repair” offers, for the first time, a theory of administrative reparation programs for redressing atrocities. Under this new theory, a government could satisfy its international obligation to guarantee just repair for victims who suffered a violation of their fundamental rights if it adopts a plural approach to designing its reparation policy. The Article responds to the challenges that governments face when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression and armed conflict. Governments often opt for an administrative solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calculates damages and awards lump sums or annuities. These payments technically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond adequately and appropriately to the needs of victims, especially when governments implement reparation programming without consulting victims and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, reparation programs. Yet, in exposing this problem, few scholars offer a theoretical framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that can not only guide the planning and implementation of reparation programs but also third-party evaluations of these projects. Additionally, there is a still minimal international law guidance of what constitutes an effective, adequate and appropriate reparation program. Thus this Article presents a model of plural justice called the ‘justice continuum of repair’ that draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, especially in light of the great diversity of human rights violations they suffer in addition to the variance in demographic characteristics like gender, class, age, location, among other factors. Their ‘postionality’ will influence what victims perceive to be necessary to feel repaired. This Article proposes that a government should adopt a participatory approach to planning and implementing their reparation programs to better accommodate and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the development of evolving international standards for assuring fair and just reparation programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still promoting the universalistic concept of the right of reparations.
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