CEU Electronic Theses and Dissertations, 2025
| Author | Bertazolli, Carolina |
|---|---|
| Title | INTERFERING WITH ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: The interplay between limitations and states obligations in international adjudication |
| Summary | Interferences with human rights are present in everyday life. In the realm of civil and political rights (CPR), interferences have been conceptualized through the notion of limitations. These limitations have primarily served as a tool to assess state actions, particularly in contexts where states are expected to refrain from acting. Interferences with economic, social and cultural rights (ESCR) has not received the same attention in the conceptualization of limitation. They have been conceptualized through states’ obligations, such as progressive realization, non-retrogression, minimum core, non-discrimination, and substantive equality. The two sets of concepts—limitations and states’ obligations—function as analytical frameworks for examining interferences. Both frameworks rely on analytical methods, such as proportionality, to conduct the assessment. Since these two parallel frameworks have been developed independently, my dissertation is guided by two questions: i. ‘What is the framework used by international bodies to assess interference with ESCR?’; and ii. ‘How do international bodies assess interference with ESCR?’ In my dissertation, I adopt a comparative methodology, relying on doctrinal analysis of case law. The jurisdictions examined include the UN, African, European, and Inter-American systems. The adjudicatory bodies that I analyze are the UN Committee on Economic, Social, and Cultural Rights, African Commission on Human and Peoples’ Right, African Court on Human and Peoples’ Rights, Inter-American Commission on Human Rights, Inter-American Court of Human Rights, European Committee of Social Rights, and the European Court of Human Rights. Methodologically, case law analysis is my chosen method and is divided into two complementary case studies. The first examines the forced removal of individuals from their homes or lands, emphasizing states’ negative obligations to interfere with the realization of human rights. The second examines austerity measures, centering on states’ positive obligations and how to conceptualize limitations of such obligations. By engaging with two case studies that engage both sets of obligations, across diverse international and regional human rights bodies, my research offers a comprehensive examination of ESCR adjudication with regard to conceptualizing limitations. Through case law analysis, I demonstrate that the limitation assessment serves as the primary analytical framework employed by international bodies, with proportionality functioning as the sole analytical method. However, the limitation assessment conducted by international bodies diverges from the traditional notion developed for CPR. While the criteria established in international treaties—namely, legality, legitimacy, and proportionality—remain present, they increasingly reflect the significance of states’ obligations in cases of interferences with ESCR. Adjudicators examine the existing law, the states’ justifications and the impact of measures even if not always labelling these elements as legality, legitimacy, and proportionality. Through these analytical choices, the limitation assessment has evolved into a mode of analysis for legal reasoning. Notably, proportionality comprises both non-negotiable obligations (e.g., the provision of alternative accommodation in cases of forced removal) and the balancing exercise. Important for the conceptualization of interferences with ESCR, certain states’ obligations have been applied as parallel frameworks to the limitation assessment. While the language varies, the bodies’ focus remains similar: review existing laws, states’ justifications, and the impact of measures. Notably, one of the most innovative practices of the international bodies is the incorporation of states’ obligations directly into the limitation assessment itself, thereby enhancing the level of scrutiny. This approach ensures that ESCR-specific elements, such as the availability of resources, are factored into the analysis of ESCR interferences. Overall, my analysis shows that interferences with ESCR, although assessed similarly to limitations of CPR, are conceptualized through the interplay between limitations and states’ obligations, thereby incorporating ESCR-specific elements to better capture their nuances and complexity. |
| Supervisor | Inga Teta Winkler |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2025/bertazolli_carolina.pdf |
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