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مفهوم الهشاشة في القانون الدولي لحقوق الإنسان ونطاق الحماية الدولية
Abstract
بدأ مفهوم الهشاشة باكتساب زخم ومكانة في القانون الدولي وخاصة ضمن إطار الحماية الدولية المعنية بحقوق الإنسان. غير أن ظهور هذا المفهوم في المنطق القانوني لم ينل الاهتمام اللازم من التمحيص والتأصيل الفقهي لاستخدامه على المستوى الدولي. فعلى الرغم من أن اللجوء لمفهوم الهشاشة يمنح بعض الأفراد عدداً من الإمكانيات الإضافية للتمتع بالحماية الدولية، غير أن الاستخدام القانوني لهذا المفهوم يواجه العديد من الصعوبات المتأصلة. تهدف هذه الدراسة لبيان التطور القانوني للاستخدام المتزايد لمفهوم الهشاشة ضمن نطاق الحماية الدولية والتي كفلها القانون الدولي، وذلك عن طريق دراسة أهم النصوص القانونية الدولية وأحكام المحاكم الدولية والإقليمية المعنية بحماية حقوق الإنسان للوصول إلى استيعاب لهذا المفهوم المستحدث وذلك بهدف حماية الأفراد والحفاظ على حقوقهم بشكل يتناسب مع أوضاعهم الخاصة المرتبطة بالضعف والخطر.
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There is a growing need to facilitate the interdisciplinary study of the relationship between the environment and human health and well-being. It is increasingly recognized that vulnerability is a key construct allowing discipline-specific research questions on these topics to be meaningfully contextualized. However, there is little consensus regarding the meaning of the concept of vulnerability or how it can best be utilized in research studies. In this perspective article, we use the metaphor of a “cookbook” to review promising trends in vulnerability research and to make this body of research accessible to a multi-disciplinary audience. Specifically, we discuss a selection of “recipes” (theoretical frameworks), “ingredients” (vulnerability domains), “cooking tools” (qualitative and quantitative methods), and approaches to “meal presentation” (communication of results) drawn from vulnerability studies published in the past 15 years. Our aim is for this short “cookbook” to serve as a jumping-off point for scholars unfamiliar with the vulnerability literature and an inspiration for scholars more familiar with this topic to develop new ways to navigate the tension between locally-specific assessments of vulnerability and attempts at standardization. Our ultimate take-home message is that the specifics theories and methods used in vulnerability research are less important than attention to what we see as the 3 ‘T’s of transparency, triangulation, and transferability, and to efforts to make vulnerability research both “place-based” and comparable.
Many climate change adaptation efforts aim to address the implications of potential changes in the frequency, intensity, and duration of weather and climate events that affect the risk of extreme impacts on human society. That risk is determined not only by the climate and weather events (the hazards) but also by the exposure and vulnerability to these hazards. Therefore, effective adaptation and disaster risk management strategies and practices also depend on a rigorous understanding of the dimensions of exposure and vulnerability, as well as a proper assessment of changes in those dimensions. This chapter aims to provide that understanding and assessment, by further detailing the determinants of risk as presented in Chapter 1.
The first sections of this chapter elucidate the concepts that are needed to define and understand risk, and show that risk originates from a combination of social processes and their interaction with the environment (Sections 2.2 and 2.3), and highlight the role of coping and adaptive capacities (Section 2.4). The following section (2.5) describes the different dimensions of vulnerability and exposure as well as trends therein. Given that exposure and vulnerability are highly context-specific, this section is by definition limited to a general overview (a more quantitative perspective on trends is provided in Chapter 4). A methodological discussion (Section 2.6) of approaches to identify and assess risk provides indications of how the dimensions of exposure and vulnerability can be explored in specific contexts, such as adaptation planning, and the central role of risk perception and risk communication. The chapter concludes with a cross-cutting discussion of risk accumulation and the nature of disasters.
Vulnerability does not mean much for our contemporary morality. It is antithetical to our emphasis on individualism and rationality; it requires that we attend to the body and to our feelings. Yet only by recognizing the depth and breadth of our vulnerability can we affirm our humanity.
This article ponders the possibilities existing for legal re-understandings of vulnerability and adopts the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters (2016) as its principal discursive context. Despite some promise and potential, the draft Articles retreated to conservative understandings of disaster-vulnerability and missed an opportunity for a sophisticated formulation. This article argues for disaster law's engagement with contemporary social science research. The work of critical geographers, historians and anthropologists in political ecology is particularly apposite. By rejecting geophysical outlooks in favour of structuralist understandings of disaster-vulnerability, such research facilitates consideration of interrelated histories and the role of economics in producing disaster-vulnerability. This article argues that such perspectives allow for reconsideration of current legal understandings regarding disaster-vulnerability (particularly in relation to international cooperation and risk and reduction) and thereby offer some promise for enriching disaster law's comprehensiveness and relevance.
In the context of human rights and, in particular, of the right todevelopment, the terms “vulnerable”or “vulnerability” are often used todescribe segments of the population which are or should be the recipientsof extra care and attention.That is thecase, for instance, in discussions about those who are denied access to the basicneeds for survival and live in poverty, not infrequently called socially vulnerable gro-ups. The current HIV/AIDS and humanrights debate also focuses on groups affected by or particularly vulnerable tothat disease — for instance children — and seeks to devise strategies to singlethem out as the beneficiaries of particular support without, however, allowing measures that adversely affect the basic rightsand freedoms of vulnerable groups. Bythe same token, previous discriminationis often the reason for vulnerability triggering a need for affirmative action aimedat the promotion of rights, for instance ineducation. This article seeks to look at the concept of vulnerability from a different angle or, rather, to investigate whether such a concept exists or is emerging. Its focus will mostly be on the core of traditional first-generation human rights — civil and political rights — and the various treaties safeguarding them through monitoring and adjudication procedures. Is there a recognisable attitude of these human rights bodies and tribunals to qualify particular (groups of) complainants as vulnerable, what are the criteria applied, and what are the consequences of such a qualification? This is not the place for a comprehensive exploration of the wealth of materials available. Instead of a systematic analysis,the following observations will attempt to roughly structure the practice and provide some tentative answers to the questions outlined above.
The notion of "vulnerable groups" in the case law of the European Court of Human Rights
- O'boyle Michael
O'BOYLE Michael, The notion of "vulnerable groups" in the case law of the
European Court of Human Rights, Strasbourg: Council of Europe, (CDL-LA (2016)003), 12 February 2016.