Extending International Human Rights Protections to Vulnerable Populations

Raymond A. Smith

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000733341
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This book inductively develops a new typology that identifies and evaluates three principal strategies that have been, and are being, used to extend international human rights protections to new categories of vulnerable populations.

The book explicates the evolution and ongoing utility of the three strategies: categorical enlargement, conceptual expansion, and group-conscious universal application. The strategies are elucidated by case studies of nine distinct vulnerable populations: national minorities; those oppressed on the basis of caste; people with albinism; cross-cultural migrants; members of the African diaspora; Roma/Gypsies; persons affected by leprosy; older individuals; and lesbian, gay, bisexual, and transgender (LGBT) people. The book concludes by considering the utility of the three strategies for emerging vulnerable populations. It encourages discourse about the protection of vulnerable populations to move beyond a stale fixation on the texts of treaties and towards a more proactive normative framework that prioritizes the lived experiences of human beings.

Extending International Human Rights Protections to Vulnerable Populations will be of key interest to students and scholars of international human rights, to social justice advocates, to human rights practitioners, and to those working with oppressed groups, human rights law, and international relations.

1 The scope of existing protections

Protected characteristics in the core international human rights treaties

Virtually every part of the enterprise of human rights is attuned to the protection of people who face conditions of particular vulnerability. However, in the texts of the major UN human rights instruments, the number of explicitly protected characteristics is quite limited. Table 1.1 provides a summary and overview of the characteristics specified in the texts of the nine core UN human rights treaties.

There is a tension inherent in the universality of these human rights conventions and their overall focus on individual rights alongside their inclusion of enumerated lists of group-level characteristics. As noted by Heinze,

The Universal Declaration enunciates yet distrusts categories. Its abstract individualism suggests that it, ideally, would by-pass altogether this construction of difference. In practice, however, it cannot do so. It is compelled to acknowledge that differences are in fact drawn. Yet it declines to construe those categories as grounds for recognizing different kinds of rights for different kinds of persons.¹

As tabulated in Table 1.2, there are 27 such different characteristics, including variant phrasings or formulations of characteristics and the open-ended term “other status,” found in the text of these human rights instruments. Most commonly, these are found in the context of non-discrimination provisions, and typically they refer to characteristics that are durable, if not immutable. The characteristics are frequently ascriptive at the time of birth, although some may be achieved in later life (e.g., through religious conversion).

Table 1.1 Protected characteristics in the texts of the core IHR treaties

Table 1.2 Frequency of inclusion of protected characteristics in the texts of the core IHR treaties

Most of the characteristics are presented as “subordinate” norms that “prohibit discrimination only in the enjoyment of rights and freedoms set forth in the respective instrument.”² For example, the Convention on the Rights of the Child (CRC) Article 2(1) specifies that

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.³

In such cases, the rights ensured apply only to the enumerated list of protected characteristics and only with regard to the rights specifically covered within the treaty itself.

However, another important type of non-discrimination provision establishes “autonomous” norms that “guarantee non-discrimination not only in the context of other rights but in general.”⁴ The clearest of these is International Covenant on Civil and Political Rights (ICCPR) Article 26, which states “all persons are equal before the law and are entitled to equal protection of the law.” In the landmark case of Broeks v. Netherlands from 1987, the Human Rights Committee established that this applies to all elements of the law, not simply to those pertaining to a specific civil or political right identified within the ICCPR.⁵ Article 26 has at times formed the basis for recognition of the vulnerability of certain groups by the Human Rights Committee, notwithstanding that the text of Article 26 itself enumerates no specific characteristics.

It should also be noted that some references to vulnerable groups or populations are made in contexts other than the prohibition of discrimination. For example, ICCPR Article 27 emphasizes state non-interference in its requirement that ethnic, religious, and linguistic “minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture.”

Further, some of the core treaties also specify special, relatively narrow protections to be afforded to certain groups. For example, ICCPR Article 6(5) prohibits the application of the death penalty to those below the age of 18 and to pregnant women, while International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 7a(i) specifies equal remuneration in employment for women and Article 10(1) requires that special assistance measures be taken on behalf of children. Such provisions are not reflected in Tables 1.1 and 1.2, as they are situation-specific rather than of universal application, but they may nonetheless offer important human rights protections under certain circumstances.

Soft law processes and the evolutive interpretation of protected characteristics

Since the various protected characteristics are not directly defined in the texts themselves, much of the work of specifying their content and substance is left to subsequent processes. The most important source with regard to the interpretation of the meaning of treaties, once they are in force, is the Vienna Convention on the Law of Treaties (VCLT).⁶ The VCLT was adopted only in 1969, and thus after the enactment of several major human rights treaties. And as with all treaties, its direct application is limited to its States Parties. However, the VCLT was designed by the International Law Commission of the United Nations specifically to codify existing practices within customary international law, which is regarded as binding on all states unless they have demonstrated a persistent objection. Therefore, the VCLT and its provisions are widely considered to apply to all treaties and to all states.⁷

In Article 31(1), the VCLT states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” “Context” is then defined to include the text, preamble, and annexes, as well as other related agreements and instruments accepted by all parties. This may later be supplemented by any subsequent agreements or practices that arise during the application of the treaty that establish “the agreement of the parties regarding its interpretation.” Should such evidence still be insufficient, Article 32 allows that “[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.”

The VCLT thus aims to balance “good faith” and “ordinary meaning” with “context” and “object and purpose.” The latter two factors both provide crucial insight into the intentions of the enacting States Parties. Often, however, there is a tension between “contemporaneous” interpretation, in which terms are defined at the time the treaty was written, and an “evolutive” (also called “evolutionary” or “dynamic”) interpretation, in which terms are defined at the time that a treaty is applied. In 2009 the International Court of Justice (ICJ) definitively took the side of evolutive interpretation when it ruled in Dispute regarding Navigational and Related Rights.⁸ In this ruling, the ICJ specified that that an 1858 treaty to regulate commerce between Nicaragua and Costa Rica must be interpreted to comprise forms of contemporary commerce – including mechanized modes of transportation that did not exist technologically in 1858 – since to do otherwise would thwart the object and purpose of the treaty.⁹

In the context of international human rights (IHR) treaties, it is particularly well-established

that a dynamic or ‘living instrument’ approach applies, according to which a human rights treaty guarantee is to be interpreted in accordance with the standards prevalent in the parties to the treaty at the time the treaty is interpreted, not those accepted by them when the treaty was adopted.¹⁰

In such cases, the “object and purpose” test is of particular salience. This is because IHR treaties are not of a contractual nature, unlike most treaties, through which states seek to derive benefits for themselves through their interactions with other states. Rather, IHR treaties seek principally to influence how states will treat their own populations, while also cultivating international norms that are broadly protective of human dignity. For example, the shared Preamble of the ICCPR and the ICESCR identifies as key goals of the instruments the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (para 2); “the ideal of free human beings enjoying freedom from fear and want” (para 4); and the promotion of “universal respect for, and observance of, human rights and freedoms” (para 5).

Such broad goals demand a flexible and dynamic approach to treaty interpretation, a reality that has been confirmed by several treaty-monitoring bodies. For example, the Human Rights Committee has stated that the ICCPR “should be interpreted as a living instrument and the rights protected under it should be applied in the context and in the light of present-day conditions.”¹¹ The Committee on the Elimination of Racial Discrimination (CERD) has likewise stated that it regards the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) “as a living instrument [that] must be interpreted and applied taking into [account] the circumstances of contemporary society.”¹² As can then be clearly inferred, when the object and purpose of a treaty are manifestly to prevent discrimination, deter oppression, and alleviate cruelty directed at human beings, a more expansive interpretation of terms may not only be well justified but even required.

In many branches of international law, the evolutive interpretation of treaties is carried out primarily by courts and other judicial tribunals, especially the ICJ. However, human rights issues only occasionally arise in the ICJ’s adjudication of disputes between states or in its release of advisory opinions. When the ICJ does address human rights issues, such as its advisory opinion regarding the wall built by Israel to separate itself from the Palestinian West Bank,¹³ its decisions carry great legal weight. Nevertheless, cases such as this occur too infrequently for the ICJ to have developed a comprehensive jurisprudence concerning human rights. However, there is no alternative universal court of human rights with the ability to rule upon the meaning of the entire corpus of IHR texts. (Courts established within the regional human rights systems of Europe, the Americas, and Africa do play such a role in relation to the treaties governing those areas; however, these rulings do not have direct applicability to the interpretation of the internation...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Acknowledgments
• List of abbreviations and acronyms
• Introduction
• 1 The scope of existing protections
• 2 Categorical enlargement
• 3 Conceptual expansion
• 4 Group-conscious universal application
• Conclusion
• Bibliography
• Index