The Protection of Vulnerable Groups under International Human Rights Law

Ingrid Nifosi-Sutton

• Editore: Routledge
• Anno: 2017
• ISBN:
  9781317560715
• Edizione: 1
• Argomento: Droit
• Categoria: Droits civiques en droit

The protection of vulnerable groups varies under international human rights law. Depending on the group at stake, protection may be more or less advanced. In some cases, the international community has deemed it necessary to adopt conventions providing for the rights of certain vulnerable groups and establishing mechanisms to verify State compliance. Other groups have not been the focus of States' standard-setting endeavours, but their protection still falls within the scope of human rights treaties of general application and the mandate of their respective monitoring bodies.

This book takes an innovative approach to the investigation of the international legal protection of vulnerable groups. Rather than examining the situation of a number of vulnerable groups and applicable international or regional conventions, this book reviews the overall scope of the protection of vulnerable groups under International Human Rights Law. This book conceptualizes the protection of vulnerable groups as an underlying and essential component of International Human Rights Law through a systematic and comprehensive analysis of international human rights law instruments and relevant practice of international and regional human rights monitoring bodies. The book illuminates how human rights monitoring bodies foster protection of vulnerable groups and their members at the domestic level, and underscores and assesses vulnerability paradigms these bodies have elaborated. The book also puts forward a legal definition of vulnerable groups.

This book will be of great interest to students and scholars of international human rights law.

1 Introducing the international legal protection of vulnerable groups

Introduction

Before considering the protection of vulnerable groups under international human rights law, (IHRL), the basis of this book, here in this chapter I will carry out two preliminary exercises: first, consideration of the plain meanings of the terms vulnerable, vulnerability and vulnerable groups; and second, examination of the situation of certain groups of persons through the lens of IHRL to show what it means to consider their predicament from the standpoint of this branch of international law.

Section 1 illustrates the ordinary meanings of the terms vulnerable, vulnerability and vulnerable groups by inferring them from the dictionary definition of the adjective vulnerable and the everyday use of the words vulnerable and vulnerability. Section 2 carries out IHRL analyses of the situations of irregular migrants from North and Sub-Saharan Africa in Italy, individuals affected by Typhoon Haiyan in the Philippines, and persons living in poverty in the U.S.A. The chapter closes by applying the analysis of these three case studies to shed light on what the terms vulnerability and vulnerable groups may mean from the point of view of IHRL.

1. Plain meanings of the terms vulnerable, vulnerability and vulnerable groups

A dictionary forms a good place to start to grasp the plain meaning of the adjective vulnerable. According to Merriam-Webster, this term means “capable of being physically or emotionally wounded” or “open to attack or damage.”¹ These definitions are rooted in the etymology of the word vulnerable which comes from the Latin terms vulnerare and vulnus, meaning, respectively, “to wound” and “wound.”

The term vulnerability can then be defined, by extension, as indicating a condition whereby an individual is affected or can potentially be affected by physical or emotional harm. Vulnerability, in other words, signifies actual or potential exposure to harm. Defined as such, vulnerability is universal in the sense that it unavoidably features in everyone’s life or may occur in everyone’s life. Almost everyone has experienced vulnerability as exposure to emotional harm following the loss of a loved one, whereas we are all constantly and potentially exposed to physical harm and danger due to our corporeality.²

In everyday conversation, the use of terms vulnerable and vulnerability reflects in part the meanings highlighted above. These words are typically used to describe situations characterized by physical and psychological weakness, defenselessness, lack of power, disease and potential or immediate danger. Accordingly, the terms vulnerable and vulnerability describe the predicament of persons who are in emotionally and physically abusive relationships,³ individuals who have experienced break-ups,⁴ individuals who cannot protect themselves against abuse and neglect and cannot report it,⁵ populations and persons at risk of being infected with certain viruses,⁶ individuals who are at high risk of being harmed and communities exposed to the effects of climate change.⁷

Looking more closely at how the words vulnerable and vulnerability are commonly used further reveals that these terms refer to situations involving actual or potential exposure to harm and suffering affecting mainly specific groups of persons. To provide some examples: women are those who are mostly affected by abusive relationships in the domestic sphere as a result of societal constructions of their gender;⁸ children are more at risk of harm owing to the fact that they are still developing physically and emotionally and depend on others to satisfy their needs;⁹ persons with disabilities and older persons tend to experience or are more likely to suffer physical and emotional abuse because they may often be unable to assert their views and complain owing to the severity of their disability or the situation of dependency generated by old age;¹⁰ and communities located in developing countries are those most exposed to climate change induced disasters as a result of the geographic location of their home State and the level of economic development of the latter which makes it very difficult to respond to these types of emergencies.¹¹

Thus, in its everyday use the term vulnerability loses it universal scope and becomes especially relevant to the situation of specific groups of persons. These groups are regarded as being particularly exposed to harm or at higher risk of experiencing harm for various reasons and are labeled, as a result, as vulnerable groups. The condition of vulnerability affects the groups as a whole and their individual members specifically.

Finally, it is noteworthy that while the term vulnerability appears to be associated with problematic situations, it is not unusual to come across more positive connotations of the word. In this sense the word vulnerability is used to signify ability to show love, compassion and openness to change.¹²

2. Human rights case studies

The following passages analyze three special case studies through the lens of relevant IHRL. The case studies involve the situation of:

a) irregular migrants from North and Sub-Saharan Africa in Italy;

b) persons affected by Typhoon Haiyan in the Philippines; and

c) persons living in poverty in the U.S.A.

The sub-sections on the Italian and Filipino case studies first describe the predicament of the irregular migrants and disaster victims and subsequently highlight applicable international human rights that are at stake, and whether they have been violated or adequately implemented by competent domestic authorities. The analysis of the situation of persons living in poverty in the U.S.A. focuses on the right to water of the residents of the city of Flint, Michigan. Since the U.S.A. has not ratified the 1966 International Covenant on Economic, Social and Cultural Rights, one of the most important international treaties enshrining the right to water, the case study on the situation of the residents of Flint, for the purpose of this chapter, will be based on the assumption that the U.S.A. is a party to the Covenant and therefore bound by the international right to water.

This Section concludes by elucidating the main implications of analyzing the three case studies from an IHRL perspective.

2.1. Situation of irregular migrants from North and Sub-Saharan Africa in Italy

Italy has become one of Europe’s most important destinations for migrants, a tremendous transformation from its 19th century status as one of the major emigration countries.¹³

Among the migrants who come to Italy, especially numerous are those from North and Sub-Saharan Africa. These persons reach the south of Italy through dangerous travels across the Mediterranean Sea on unsafe and overcrowded vessels.¹⁴ As UN reports show, these migrants are mostly “irregular,”¹⁵ a legal term that the International Organization for Migration uses to describe a person “who, owing to illegal entry or the expiry of his or her visa, lacks legal status in a transit or host country.”¹⁶

Migrants who survive the perilous trip across the Mediterranean sea and enter Italian territory are brought to centers where competent authorities detain and identify them to remove them to their home countries.¹⁷ The length of the migrants’ detention in the centers varies: detention orders, which are confirmed within 48 hours by a Justice of the Peace, are initially issued for a period of 30 days, and can be extended to a maximum of 18 months.¹⁸

The UN Special Rapporteur on the human rights of migrants visited some of these detention centers in 2012¹⁹ and described their conditions as being “substandard.”²⁰ He highlighted several concerns. First: the poor mental health of the migrants, who were found to be “abject and desperate”²¹ as a result of the lack of involvement in activities such as reading, writing or physical exercise.²² Second: the inadequacy of the centers’ facilities, which had intermittent hot water and limitations on soap and laundry, and had jail-like cells where the migrants were detained without enjoying any privacy.²³

The Special Rapporteur also reported on additional problems:

a) the prescription of psychotropic medication to cure the migrants’ health problems by doctors who had no expertise in mental health, and

b) recurring incidences of self-harm and self-mutilation.²⁴

Where competen...