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Women, Children and (Other) Vulnerable Groups

Standards of Protection and Challenges for International Law

by Magdalena Półtorak (Volume editor) Ilona Topa (Volume editor)
Edited Collection 412 Pages
Series: Lex et Res Publica, Volume 16

Summary

In an era of almost boundless individual opportunities, vulnerability, paradoxically, has gained significant attention.
Undoubtedly this book significantly contributes to the debates on this very complex phenomenon, dealing with both the specific aspects of vulnerable individuals and groups’ legal positions, as well as presenting the concept of vulnerability in international law.
This book brings together scholars engaging with legal and actual positions of women, children and other vulnerable persons. Authors in detail discuss – among others - such issues as: political violence, motherhood in prison, age assessing of foreigners, infanticide or exclusion of the elderly.
It will be of interest for academics in the fields of law and sociology, as well as vulnerability-oriented practitioners.

Table Of Contents

  • Cover
  • Title Page
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introduction: Some remarks on vulnerability in the international human rights law
  • PART I The concept of vulnerability
  • The concept of vulnerability in the United Nations human rights treaty bodies protection system
  • The European Court of Human Rights towards group vulnerability: an open- ended approach
  • Protection of individuals and groups especially vulnerable to discrimination and unequal treatment in the context of transformations of social life
  • Part II Women as a particularly vulnerable group
  • On the road to political equality in Mexico: gender- based political violence and electoral justice
  • Increased vulnerability of women to enforced disappearances
  • Protection of women with respect to pregnancy and maternity in European Union law: between paternalism and equality
  • Facilitating the work of mothers: How to diminish female vulnerability in the labour market?
  • Pregnant women and those serving a prison sentence with a child under international law
  • Double discrimination of immigrant women in Poland in the context of world migration trends. Ukrainian case
  • Part III Children’s (and motherhood) vulnerability
  • Between need and desire: the vulnerability of woman and child in surrogacy proceedings
  • International law and national law of selected countries on the issue of infanticide
  • Age assessment procedures and the protection of children’s rights: an analysis of international standards
  • Protection of children’s rights in cases of international parental abduction
  • Welfare of adopted children in international legal acts in the twentieth and twenty- first century
  • Part IV Other faces of vulnerability
  • Cultural determinants of the victimization of women in the Roma community
  • Senior consumer’s dilemma: what does my warranty actually say? Or, once again, on exclusion and warranty readability
  • Local senior policy as a tool of combating discrimination of the elderly on the basis of the situation in Bogucice district
  • Authors

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Magdalena Półtorak

University of Silesia

e-mail: magdalena.poltorak@us.edu.pl

ORCID ID: 0000-0002-0712-6509

Ilona Topa

University of Silesia

e-mail: ilona.topa@us.edu.pl

ORCID ID: 0000-0001-9004-4071

Introduction: Some remarks on vulnerability in the international human rights law

In the last two decades, the issue of vulnerability has gained significant attention in public policy and academic research. Also, international and national laws relating to human rights have been further developed by the inclusion of particular norms and standards relating to the individuals and groups that have been “traditionally” discriminated (as women, national and ethnic minorities or migrants), which generally require special protection because of their particular condition (children, persons with disabilities, elderly) or who are in need of special treatment due to the hardship situation they found themselves in (as refugees, IDPs).

In the contemporary human rights discourse the notion of vulnerability can be easily found not only in academic research, but also in works of human rights protection bodies, jurisprudence of human rights courts and documents adopted by various international organizations. At the same time, this term is ambiguous and is used in diverse contexts, even if considered only from human rights perspective. C. Hruschka and L. Lebouf confirm explicitly that although terms “vulnerability” or “vulnerable persons” are being used in legal instruments – there is no universal and consistent understanding of this phenomenon.1 Therefore, it is crucial to identify the character of vulnerability’s ←9 | 10→notion in international human rights law, to establish why certain individuals or whole groups are “labelled” as vulnerable, and what are the individual and collective outcomes of vulnerability.

1.Notion of and approaches to vulnerability in international human rights’ discourse

A fundamental difficulty in dealing with vulnerability is that this category is both universal and particular. M. Albertson Fineman, who describes vulnerability as a useful heuristic device, underlines that vulnerability is an attribute of each human being. It arises “from our embodiment, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise.”2 As such, vulnerability has universal character: because of our human embodiment we all are vulnerable and susceptible to harm. Concurrently, everyone experiences this inherited vulnerability in a various manner, because of unique embodiment and different position within the society. As M. Albertson Fineman notes, individual experience of vulnerability considerably depends on the quality and quantity of resources one possesses or can command.3 The individual experience of vulnerability plainly makes this category particular. Thus, the vulnerability is universal and particular at the same time: all human beings are vulnerable but, in particular circumstances, some of them are vulnerable to the greater extent. This approach appears to be correct; analysis of the jurisprudence of human rights protection bodies reveals that, while dealing with individual cases, they commonly refer to ‘particularly vulnerable,’ not simply ‘vulnerable’ individual or group. This observation allows merging the universal-particular approach to vulnerability with the group-based approach,4 which is also present in human rights discourse relating to this category.

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The group-based approach on vulnerability distinguishes particular groups, which are “labelled” as vulnerable because of certain reasons: their weakness and susceptibility to harm or structural discrimination and historical, systematic violations of their rights, and therefore requiring special protection.5 The first explanation associates particular vulnerability with perpetuated, institutionalized cultural patterns considering some groups as subordinated, excluded, completely different or simply invisible and therefore excluded as partners in social relations. Here, the particular vulnerability is a consequence of historical, rooted in collective consciousness biases and subsequent stigmatization followed by negative social attitudes resulting in social exclusion. In other words, vulnerability is the resultant of broaden social, political and institutional circumstances. In this sense, vulnerability relates to national and religious minorities, indigenous people, persons with disabilities, elderly people, persons living with HIV or members of the LGBT+ group, but also women. The second explanation of assigning a group as vulnerable relates to exceptionally difficult group situations that preclude the ability of self-satisfaction of basic material needs and make them dependent from external assistance. This source of vulnerability is often indicated in relation to asylum seekers, refugees, migrant workers and internationally displaced persons, mainly because of their experience of migration,6 but also same additional factors play the role: health conditions, age, disabilities or trauma. It is necessary to mention also the third possible basis of group vulnerability following some physical and mental conditions, which relates especially to children whose particular vulnerability is uncontested, but also is visible regarding elderly persons or persons with disabilities.

As can be seen from the above, a group may be considered vulnerable because of variety and – often coexisting – reasons. On the other hand, not each member of a group recognized as vulnerable prima facie, is and should be individually seen as such. Therefore, the discussed category should be used carefully because of a high risk of subsequent stigmatization, victimization ←11 | 12→and paternalistic approach,7 and the emphasis should be put on the factors that place an individual in a particular vulnerability position.

The last issue relates to the role, which vulnerability plays in the assessment of the enjoyment of human rights and freedoms. Implicitly, the assumption that vulnerable groups and individuals do exist, necessitates the introduction of legal solutions that provide for increased protection of their special needs and facilitate escaping future discrimination and neutralization of harm resulting from membership of certain, unprivileged group. Thus, it helps to close the lacunas in the international system of human rights (including regional solutions) and determines effective protection to those who undoubtedly require it.

In the first part of the book above-mentioned general aspects of vulnerability are discussed in more detail.

A. Gliszczyńska-Grabias and G. Baranowska in the chapter entitled “The concept of vulnerability in the United Nations human rights treaty bodies protection system” present the comprehensive analysis of treaty provisions under which certain groups are named and recognized as vulnerable, offering also a general overview of the invocation of the concept of vulnerability in the decisions of selected UN treaty bodies. Next, the authors review who so far has been considered vulnerable by the treaty bodies and conclude with defining the attitude of selected UN treaty bodies towards the notion of vulnerability.

The chapter on “The European Court of Human Rights towards group vulnerability: an open-ended approach” by E. Morawska focuses on establishing the basic characteristics of currently developing in ECHR jurisprudence approach to vulnerability, and thus on defining and assessing its personal and material scope. After thorough analysis of the groups recognized by the Court as vulnerable and discussion of factors decisive for such a determination, the author concludes by evaluating the relationship between vulnerability and the effectiveness of the rights and freedoms of individual members of these groups, and the overall efficiency of the Convention system and the preservation of its key foundations.

The last chapter included in the first part of the book by S. Kowalska on “Protection of individuals and groups especially vulnerable to discrimination ←12 | 13→and unequal treatment in the context of transformations of social life” considers the question of the protection and the legal status of individuals and groups – those especially vulnerable to discrimination and unequal treatment. The author demonstrates that dignity is both a fundamental value and the goal of protection, while law-making and implementation, without due regard to the standards that stem from dignity lead to arbitrariness and discrimination. S. Kowalska uses an example of racial discrimination and notes the current rise in covert discrimination, but also new, emerging forms of discrimination. Her conclusions strongly corelates with M. Albertson Fineman’s findings that society and its institutions can ameliorate, compensate, and lessen our vulnerability by creating the possibility of layered opportunities and support for individuals.8

2.Women as a particularly vulnerable group

The universal system of human rights protection, which encompasses guarantees of rights and freedoms for all human beings in the same way does not consider that, there is a striking difference of certain individual from the “ideal” one in some cases. Therefore, in order to encompass the distinct situation of some individuals, particular human rights obligations are undertaken. Thus, the special protection in human rights law have been established for particular groups, among them –  women.

The inferior status of women is deep-rooted in culture, tradition and history of humankind. Although the main documents of universal human rights protection such as the 1948 Universal Declaration on Human Rights or the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights proclaims equal rights for men and women and prohibit discrimination on the grounds of sex, the inequality is still common, and women continuously are subjected to discrimination in various aspects of life. Moreover, they are particularly vulnerable to specific violations such as gender-based violence, also in the form of traditional practices, trafficking and sex discrimination.

The 1979 Convention on the Elimination of All Forms of Discrimination against Women has been adopted in order to overcome this structural mistreatment. As a preamble to CEDAW states, the concern that “discrimination against women continues to exist,” and

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violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,

was the factor which led to adoption of this treaty. The same concern resulted in the adoption on international level of other treaties dealing with particular faces of inequality and discrimination of women, just to mention the UN Convention on the Political Rights of Women (1952) and the UN Convention on the Nationality of Married Women (1957). A great number of treaties on maternity protection, equal renumeration, social security standards have been adopted by the International Labour Organization.9 It is also worth to mention regional treaties that aim in the protection of the rights of women, as the Optional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, so-called Maputo Protocol (2003), the Inter-American Convention on the Granting of Political Rights to Women (1948), the Inter-American Convention on the Granting of Civil Rights to Women (1948) and the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará).

As can be easily inferred from the number of treaties that deal with the distinct aspect of the vulnerability of women, the number of problematic areas is overwhelming and therefore, it is impossible to cover them all in one publication. That is why the second part of the book covers up-to-date, comprehensive analysis of international legal responses towards carefully selected problems of women as particularly vulnerable.

This part starts with the chapter by B. Stępień “On the road to political equality in Mexico: gender-based political violence and electoral justice.” The author analyses political violence against women on the example of the electoral processes in Mexico, presents the international legal framework pertaining to gender discrimination and gender equality, as well as national Mexican regulations relating to this field, and offers insight into selected cases concerning gender-based political violence. The conclusion is positive: the ←14 | 15→author notes a very strong movement supporting gender equality in Mexico, aiming to eradicate discrimination and political violence against women.

Next, M. Myl deals with “Increased vulnerability of women to enforced disappearances.” The author evaluates the situation of women in the context of enforced disappearance and determines the reasons of the increased vulnerability of women-victims to enforced disappearances. It is underlined that women are at the forefront of the struggle against the act and, at the same time, are in a situation of particular vulnerability in the case of enforced disappearances.

This is followed by the chapter by A. Szczerba entitled “Protection of women with respect to pregnancy and maternity in European Union law – between paternalism and equality.” It offers a critical analysis of selected protective measures stipulated in the European Union secondary legislation through the gender equality glass. As author notes, the EU normative standard on pregnant workers and workers adopted lately, contributes to ensuring equal opportunities for women implying changes to social and legal attitude towards pregnancy. Nevertheless, as based on stereotypical assumptions, it also interferes with women’s autonomy and results in less favorable treatment of women as defined in terms of substantive equality.

Also, the chapter by U. Torbus “Facilitating the work of mothers. How to diminish female vulnerability in the labour market?” deals with the desired protection framework for women at work. The author discusses particularly the solutions introduced on the EU level by the brand-new Directive 2019/1158 on work life balance, which she considers as having a great potential to facilitate the work of women and diminish their vulnerability in the labour market.

Next chapter touches upon the protection of women with respect to pregnancy and maternity, but is devoted to women in a specific situation. A. Jaworska-Wieloch provides for the analysis on “Pregnant women and those serving a prison sentence with a child under international law.” It is obvious that isolation in prison is of great difficulty for pregnant women and women, who raise their children in prisons. The author research relates to the international, European and Polish legal standards in order to establish if afforded protection is sufficient.

The last chapter in this part, written by K. Jędrzejczyk-Kuliniak discusses another aspect of women’s particular vulnerability. The author in “Double discrimination of immigrant women in Poland in the context of world migration trends. Ukrainian case” on the basis of a country specific case-study analyses the situation of immigrant women who, because of their gender and origin, may experience double discrimination. The chapter deals also with the ←15 | 16→issues of tolerance of otherness, coexistence model and factual observance of the rights of particularly vulnerable groups.

3.Children’s (and motherhood) vulnerability

The special needs and the unique situation of children have been already reflected in the provisions of many international agreements on the protection of their rights. The general rules concerning the rights of all children are contained primarily in the 1989 Convention on the Rights of the Child, but also in regional treaties, just to mention the 1990 African Charter of the Rights and Welfare of the Child. However, the general reason for recognizing the children vulnerable as such differs from other particularly protected group. It is not structural discrimination or specially difficult situation, but the belief – citing the preamble to the CRC – that “the child, by reason of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection, before as well as after birth.” It is because their fragile construction and sensitivity, that children requires and are granted special protection. At the same time, children are highly dependent on others to satisfy their basic needs, what also is indicated as the source of their vulnerability.10 These factors make children exceptionally exposed to violence, abuse and exploitation, which takes various forms – from domestic violence and child labour, through trafficking, child marriage or female genital mutilation to recruitment into armed groups.

Due to the almost unlimited ways in which children can be subjected to mistreatment of various kind, international community – on both universal and regional levels – has adopted specific treaties dealing with these particular issues, just to mention some of them, as (1973) Minimum Age Convention, (1980) Hague Convention on the Civil Aspects of International Child Abduction, (1999) Worst Forms of Child Labour Convention, (2000) Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography, (2000) Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, (1996) European Convention on the Exercise of Children’s Rights or (1984) Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors.

As the international obligations, also the legal scholarship on children protection is immense. Even though, the number of possible topics seems to be ←16 | 17→infinite. Therefore, in this book only some selected issues of their particular situation are discussed.

The part on children vulnerability starts with the chapter by A. Wedeł-Domaradzka entitled “Between need and desire – the vulnerability of woman and child in surrogacy proceedings.” The author analyses the existing variety of legal solutions and the lack of coherent international regulations from the perspective of possible violations of women’s and children’s rights in the surrogacy proceedings. She notes the need for comprehensive, world-wide treaty that could help to overcome possibility of abuses with regard to child’s needs and his best interests, including the introduction of aa system of sanctions against intermediaries, recruiters or other entities benefiting from illegal activities.

It is followed by O. Sitarz contribution on “International law and national law of selected countries on the issue of infanticide.” The chapter addresses the issue of the normative approach to the crime of infanticide in the light of each child’s right to life. The dogmatic and criminological analysis carried out allows to pose the thesis that the concept of infanticide as a privileged type is a systemic, even normative discrimination against the weaker, which contradicts the principle of the best interests of the child.

Next chapter, authored by J. Markiewicz-Stanny on “Age assessment procedures and the protection of children’s rights: an analysis of international standards” considers the relationship between the procedures for assessing the age of foreigners and enjoying by children of their rights guaranteed in international documents. The recognition of a person as being a child is fundamental for benefitting of this status, yet, on the other hand, age assessment requires the use of measures that involve interference with the privacy and autonomy of individuals. Therefore, the author claims that the age assessment procedures should be applicable only to the foreigners whose age is doubtful, and such individuals should be treated as children until it is estimated that they are the adults.

J. Gumuła-Kędracka in her chapter “Protection of children’s rights in cases of international parental abduction” analyses the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the light of the realization of the best interest of child, while this principle has its specific understanding under this treaty. The general assumption that each return of a child to a place of his habitual residence is in the child’s best interests, cannot be always considered correct. The “best interest of child” is interpreted outside the 1980 Hague Convention and thus put the most vulnerable actors of the Hague proceedings – children – at risk of their rights to be breached.

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Finally, K. Kamińska deals with the issue of “Welfare of adopted children in international legal Acts in the 20th and 21st century.” The author analyses the international legal standard of protection for a child adopted in order to establish how the welfare of an adopted child is protected under international law, and noting the dangers that occur in the adoption proceedings, as illegal child trafficking.

4.Other faces of vulnerability

The sole number of groups recognized as particularly vulnerable indicates that the topic is enormous and can be assessed from divergent perspectives. As different are the reason for the vulnerability of women, children, migrants, elderly persons, asylum seekers or persons HIV positive, the scientific attitude also varies. Therefore, the last part of the book, in order to show the apparent connection between law and other spheres of human life, includes contributions undertaking a different approach, mostly a sociological one. On the one hand, it allows us to present further perspectives on vulnerability, and – on the other – helps to realize that vulnerability always is simultaneously multidimensional and contextual and in every moment of life, for plentiful reasons, each human being may be “labelled” vulnerable.

This part begins with D. Bek chapter on “Cultural determinants of the victimization of vulnerable groups in the Roma community.” The author analyses those aspects of Roma culture that may favour the victimization of women. Although this contribution deals with a particular minority, its findings are applicable to a broad spectrum of cases of discrimination and inequality. The thesis that traditional beliefs in the inferiority of women to men, their objectification and the related exposure of women to various forms of discrimination are encountered in numerous cultures, reflects the reality of many women all over the world.

Next chapter by I. Delekta examines the difficulties that are often unavoidable in elder age. In “Senior consumer’s dilemma: what does my warranty actually say? Or, once again, on exclusion and warranty readability” the issues of the consumer warranty and elderly consumers are analyzed from a sociolinguistic perspective. The study reveals some tendencies, characteristics and potential problem areas related to the consumer warranty, shows linguistic and non-linguistic sources of problems and provides some remedies to make the consumer warranty more senior friendly.

Finally, J. Klimczak and D. Nowalska-Kapuścik in the chapter on “Local senior policy as a tool of combating discrimination of the elderly on the ←18 | 19→basis of the situation in Bogucice district.” discuss the ongoing process of ageing of society, that results in tendency to create negative attitudes, prejudices and stereotypes causing marginalization, exclusion and discrimination of seniors. The authors analyse senior policy on local level, underling the need of coordination and constant supervision of the processes of implementation of elderly persons’ human rights.

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The purpose of this publication is to present to the international academic community a detailed analysis on the current scope of the international legal protection of vulnerable persons in thoughtfully selected material. It must be mentioned that there are appreciated publications on this topic, but their scope differs significantly from the present book: they either deal solely with the notion of vulnerability in general terms or present the wide-ranging description of the international legal response to the position of certain groups, without raising the specific problems as indicated above. The monograph is not intended to deal with the entire spectrum of questions and concerns that comprise vulnerability, it would be simply unbearable. On the contrary, it deals with the specific aspects of vulnerable individuals and groups’ legal position, nevertheless preceded by the insight into the overall concept of vulnerability in international law.

We hope that this publication will meet the interest of both “traditional” human rights researchers, as well as focused on vulnerability phenomenon academics from other than law disciplines in the framework of social sciences.

Taking the opportunity let us express our deep gratitude to the reviewers: dr hab. Anna Kosińska, prof. KUL and dr hab. Iwona Wrońska, whose sense of subject matter, valuable experience and extremely precise suggestions helped to give this book its final shape.

Biographical notes

Magdalena Półtorak (Volume editor) Ilona Topa (Volume editor)

Magdalena Półtorak and Ilona Topa are Assistant Professors of Law at the University of Silesia, Poland. Their research focuses, among others, on legal guarantees of gender equality, international protection of women's rights, human rights law, and transitional justice.

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Title: Women, Children and (Other) Vulnerable Groups