SARA DE SANTIS

Dottoressa di ricerca

ciclo: XXXI



Titolo della tesi: Why do Economic, Social and Cultural Rights still deserve out attention?

This thesis aims to advance a sound methodology to address the existing gap in the legal protection of Economic, Social and Cultural rights (hereafter ESC) vis-à-vis Civil and Political rights (here after CP). While advocating for a substantive equality between ESC and CP rights, this thesis focuses on the legal implications of the notion of intersectionality of human rights and its impact on the dimension of remedies in case of ESC’s violations. It aims to respond to three interrelated questions: (1) What is the purpose of the legal protection of human rights? (2) What do interdependence and invisibility imply for CP and ESC as categories of human rights? (3) What should courts do to realize equally both categories of human rights? The thesis is structured around three main chapters. Each chapter intends to respond to one of the above-mentioned questions. The first part provides a detailed overview of the status of the legal protection and/or recognition of ESC rights in major domestic and regional legal systems. This step justifies the thesis constructing the problem that is at its core. We examine the common law tradition which mostly doesn’t fully recognize this class of rights and the doings of European constitutional orders and the European Court of Human Rights in time of austerity measures. Furthermore, we scrutinize the famous South African constitutional jurisprudence on social rights and key judgments of the Inter-American and European Courts of human rights. By revealing the need to rethink the relation between human rights and to make material efforts to de-categorize them, this section is crucial as it lays the foundation for the thesis. The second part can be divided in two moments. Primarily, it starts by following the path launched by the previous chapter, and develops extensively the conceptual work done by political philosophers and practitioners such as Henry Shue, James Nickel, Craig Scott and Asbjorn Eide on the nature, content and relationship between CP and ESC rights. These authors have fruitfully elaborated on the relation of interdependence and invisibility of human rights as well as the interrelatedness of the correlated obligations. On the other hand, their work is found wanting to address the dichotomy of ESC and CP rights on a more practical level that takes legal constrains and positive law seriously. Thus, the second part of the chapter advances to the core and the main objective of the present thesis, i.e. to propose a move from the concept of interdependence to the concept of intersectionality, which has the merit to unveil the interrelatedness between CP and ESC rights by deploying a bottom-up approach. Rooted in Black Feminism, the concept of intersectionality has the peculiar feature of being focused on the material conditions of those entitled to protection. Simultaneously, the thesis resorts to the work of Levinson to highlight the intrinsic links between rights and remedies. Putting together all elements, chapter 2 offer us a key to equalize CP and ESC rights by means of a holistic approach that holds together the causes underlying breaches of rights (factual conditions), the interrelated nature of the rights at stake and justiciability concerns as well as the way in which their content is determined by remedial considerations. The third chapter concludes by deploying the holistic approach developed to revisit some of the case law dealt with throughout the thesis. If the previous chapters show how legally, conceptually, practically and factually rights cannot be easily separated without compromising their relevance and normative meaning, the purpose here is to show how legal cases should be read and legal decisions made if we want to uphold CP and ESC rights equally. Therefore, this chapter develops all the themes addressed throughout the thesis and presents an explanatory intersectional methodology that allows us to coherently rethink protection of fundamental rights in general, and ESC rights in particular.

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