- Tara Melish, Director and Professor of Law, Buffalo Human Rights Center, SUNY Buffalo Law School, State University of New York
- Flavia Piovesan, Commissioner, Inter-American Commission on Human Rights, Organization of American States, Washington, D.C.
The course aims to critically evaluate the doctrinal concepts and practical strategies used by advocates in efforts to ensure the effective protection of economic, social and cultural rights across international, regional, and national systems of human rights protection. The course recalls the basic building blocks and foundational structure of human rights law, often forsworn in traditional discussions of economic social, and cultural rights. With a view to recovering these foundations, the course proceeds to a critical examination of the nature and content of states’ legal obligations, how these obligations inform rights analysis, and the instrumental purposes behind dominant methodologies of human rights protection. This includes examination of the concept of ‘justiciability,’ balancing tests, the relationship between remedies and case framing, and the relationship between casework and regularized performance monitoring. The course examines these issues in practical application across human rights systems. We will discuss direct and indirect approaches to social rights protection, the reasons behind their respective uses, and the standards of review used by courts and treaty bodies across jurisdictions. We will then turn to system-specific applications, closely examining the reasoning and approaches used with respect to economic, social and cultural rights by the U.N. Committee on Economic, Social and Cultural Rights, the South African Constitutional Court, the Inter-American human rights organs, and the European Court of Human Rights, respectively. The lessons from these applications will then be applied to a fact pattern as part of a group exercise. The third part of the course will return to conceptual issues at a more advanced level, including the relationships between economic, social and cultural rights and concepts of equality, diversity, contents, and implementation in public policies.