CEU Electronic Theses and Dissertations, 2021
| Author | Bertazolli, Carolina |
|---|---|
| Title | The Crusade To Limit And Derogate From Economic, Social And Cultural Rights In The Americas |
| Summary | This thesis aims to examine the rules of limitations and derogations from economic, social and cultural rights (ESCR) in the Inter-American system (IAS). The protection of ESCR is not understood homogeneously in the system because of the Court’s approach to include rights in Article 26 of the Convention and the status of the Protocol of San Salvador (PSS). The first chapter of the thesis discusses how this topic is settled in the doctrine and the jurisprudence of the IAS bodies. The research considers that the American Convention on Human Rights (ACHR) does not contain ESCR directly enforceable and the only way to submit a case to the Commission and the Court is through civil and political rights. The PSS is a continuation of the ACHR, and it is the instrument responsible for the enforceability of ESCR. Hence, the ACHR is applicable to the PSS regarding the rules of procedure, but the PSS brings its general rules. Concerning limitations, the thesis compares the instruments to conclude that Article 5 PSS contains the restriction test created by the Commission and the Court from Articles 30 and 32(2) ACHR. This means that this test is used to assess individual petitions by the Court and reports by the Commission. Regarding derogations, the PSS does not contain a derogation clause. Article 27 ACHR is not applied to the report mechanism of Article 26 because it was not the intention of the States, and it is not listed as non-derogable provision in Article 27(2). In addition, the PSS does not fall under Article 27 since States and the IAS bodies did not apply to any ESCR. Therefore, in the IAS system, ESCR are non-derogable, but are subject to the restriction test under Article 5 PSS. Since derogations are stricter and have more criteria, the limitations rules are enough to protect ESCR in the system. |
| Supervisor | Ruiz-Chiriboga, Oswaldo |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2021/bertazolli_carolina.pdf |
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