Rights and Protection of Social/Socio-cultural Groups

Federico Lenzerini, Siena

Rights of Social/Socio-cultural Groups: A Huge Challenge for International Human Rights Law

Article 2 of the UDHR proclaims that all human beings are entitled to human rights – including economic, social and cultural rights – ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Indeed, a very well-established principle of international human rights law prohibits any →Discrimination based on whatever status, as confirmed by the main pertinent international treaties, including the ICCPR, (Articles 2, 4 and 26), the ICESCR (Article 2(2)), the ECHR (Article 14), the American Convention on Human Rights (ACHR, Article 1), as well as the African Charter on Human and Peoples’ Rights (ACHPR, Article 2). By effect of this principle, Social/Socio-cultural Groups are fully entitled to the same measure of enjoyment of human rights as all other members of the human society, including those belonging to the cultural majority living in a given society. In the real world, however, members of such groups, as well as the groups as such – intended as collectivities – are frequently victim of discriminatory practices, social exclusion and marginalisation, as well as attempts of homogenisation within the broader society. People who are ‘different’ have always been approached with suspicion and discriminatory attitude by the majority, for a plethora of reasons, but mainly due to fear of diversity. As stated by Thomas Szasz, ‘the plague of mankind is the fear and rejection of diversity (...) The belief that there is only one right way to live, only one right way to regulate religious, political, sexual, medical affairs is the root cause of the greatest threat to man’. Furthermore, it may be asserted that the requirement of ‘mono-cultural or homogeneous nationhood’ is inherent in the Westphalian conception of ‘state’ (Okafor 2000, p. 73); this characteristic of modern nation-states obviously discourages the flow of minority or non-conformist cultural models. This reality is further exacerbated by what has been defined as ‘the single voice organising principle of international relations’ (Franck 1995, p. 481), on account of which the interests of Social/Socio-cultural Groups not corresponding to the majority of a state population are only very rarely represented in international fora.

In some instances, states even try to deny the existence of minority Social/Socio-cultural Groups. For example, in ratifying the ICCPR in 1980, the government of France made a declaration regarding Article 27 of the Covenant – which establishes the right of members of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language – which reads as follows: ‘(i)n the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned’. An identical declaration wasmade by France in 1990 when ratifying the 1989 Convention on the Rights of the Child, with respect to its Article 30 (having a content very similar to that of Article 27 ICCPR). These declarations were grounded on the assumption that, since the French Constitution prohibits any distinction between citizens based on origin, race or religion, no minorities would exist in France (Donders 2010, p. 26), while in effect more than five million people permanently living in France and its overseas territories belong to ethnic minorities, mainly of North African, Sub-Saharan and Turkish origin (see ‘France’s crisis of national identity’, Independent, 25 November 2009). Similarly, when voting for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, before the General Assembly, some Asian countries declared that, while they were in favour of the UNDRIP in principle, the Declaration would not be applicable to them, on the basis of the misleading stance that no indigenous peoples exist in their territories (see ILA, 2010)).

Another common approach concerning minority Social/Socio-cultural Groups consists, as previously noted, in the attempt of homogenising them within the dominant society. Such an approach was epitomised by the 1957 ILO Convention (No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, which, having the purpose of assuring the progressive integration of the populations concerned into their respective national communities (see seventh recital of the Preamble), pursued their assimilation within the dominant society and, a fortiori, the extinction of their own distinctive cultural identity (see→Genocide (Cultural G.)). Fortunately, such an approach was later reversed by adopting the 1989 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries and the UNDRIP in 2007. This notwithstanding, states, in various parts of the world, still continue to pursue policies of marginalisation and attempted assimilation of →Indigenous peoples.

Virtually all Social/Socio-cultural Groups – especially vulnerable and disadvantaged groups – are the target, in certain parts of the globe, of practices which are discriminatory or, at the very least, at odds with internationally recognised human rights standards. The list of examples is endless. For instance, ‘in many African societies, children are considered to be a ‘gift of ancestors and God’. It is the responsibility of every member of the society to nurture them and ensure their well-being. This nurturing, however, is not devoid of what other societies would regard as mistreatment. Beginning from childhood, for example, some societies cut off the small finger of the child while others perform facial scarification as rites of incorporation to the broader society or for curative reasons. The notions of child abuse depend upon a culturally validated definition of what constitutes ‘abuse’, and the ensemble of everyday activities and ideologies of a particular ethnic group or class tend to vary in the way that they perceive child abuse’ (Guma and Henda 2004, p. 98).

As previously emphasised, in many cases harmful practices against Social/Socio-cultural Groups are triggered by a common sense of fear for what is ‘different’. This happens, for example, with respect to albino people, especially in Sub-Saharan Africa. In Tanzania, in particular, where the scale of albinism is higher than in any other part of the world, ranging at a rate of one in every 1,429 births (Cruz-Inigo, Ladizinski and Sethi 2011, p. 79), there are a number of common myths and misconceptions regarding albinism, including the beliefs that parts of albino bodies are a necessary ingredient for witchdoctor potions, that albinos and their mothers are possessed by evil spirits, that the devil stole the original child and replaced it with an albino, that albinism is contagious and spread through touching, as well as that albinos are housed by ghosts of European colonists (ibid., p. 80). Albino people are therefore the target of frequent killings and attacks, including mutilations, violence, rape and attempted abductions. In the last few years alone 166 killings and 273 attacks have been reported in 25 African countries, although the actual number of killings and attacks is most likely much higher as many cases are never reported or documented (see “Reported Attacks of Persons with Albinism”, 2016). Most of the killings are perpetrated ‘with a view to using (the victims’) body parts for ritual purposes’ (see UN Human Rights Council, Preliminary study on the situation of human rights of persons living with albinism, UN Doc. A/HRC/AC/13/CRP.1, 30 July 2014, para. 10), on account of ‘beliefs and myths, heavily influenced by superstition (...) (which) are centuries old and are present in cultural attitudes and practices around the world’ (see Human Rights Council, Persons with albinism, UN Doc. A/HRC/24/57, 12 September 2013, para. 15). Cases of human sacrifices of albino children accused of witchcraft are also reported (see UNICEF, 2010).

In other cases, harmful practices perpetrated to the detriment of Social/ Socio-cultural Groups are the effect of cultural traditions which, although formally prohibited by domestic law, continue to be very common among local populations, especially in rural areas. For instance, honour killing is a traditional practice which originated over 2,000 years ago and continues to be carried out in many areas, especially Muslim countries or countries where significant enclaves of Muslim people live, since, although it predates Islam, it is perceived as a sort of religious dictate. Women ‘are killed brutally by brothers, fathers, uncles, husbands or other male and even female relatives on the grounds that their actual or perceived behaviour has undermined the authority of men and tarnished the family honour. Such behaviour could be illicit relationships, extra marital affairs, speaking to unrelated men, desiring to choose one’s spouse or marrying a man of one’s choice, refusal to accept a forced marriage, divorcing an abusive husband, loss of virginity or bringing shame on the family by being raped, all actions which threaten men’s control of women’s behaviour and sexuality. Despite the availability of legal measures to punish these acts of violence, killers are rarely punished and may, in fact, be treated by the community as heroes who have defended the honour of their families, while women are denied their right to life’ (ESCAP, Gender and Development Discussion Paper Series No. 21, p. 22). Other unfortunate examples of harmful practices supposedly grounded on religion include female genital mutilation – which is known to be practiced in at least 25 countries in Africa, in some Asian countries (particularly Indonesia, Malaysia and Yemen), in addition to some European states and Australia among immigrant communities (Office of the High Commissioner of Human Rights, Fact Sheet No. 23, p. 4) – and the Devadasi system, still common in South India. The latter is a practice consisting in dedicating a woman to a deity through a ritual marriage. The term ‘devadasi’ literally means ‘slave of God’, as the women concerned devote their entire life in the service of the god and the temple (see Gupta 2013, p. 1). While the devadasis originally enjoyed a privileged position granting them religious and economic benefits, as well as social honour, the practice gradually evolved into forced prostitution and sex work in favour of the priest administering the temple and the other men of the community (Ibid., p. 2; Anti-Slavery International 2007, p. 2).

These examples – which represent just a drop in the ocean of existing cultural practices harmful for Social/Socio-cultural Groups – show how the protection of such groups should be a primary concern for international human rights law. Conversely, it is important to emphasise that, due to their cultural specificity and social vulnerability, those groups have special cultural and social needs which must be adequately addressed in the context of the implementation and enforcement of human rights standards (see Lenzerini 2014). Therefore, while the members of Social/Socio-cultural Groups are of course entitled to the full enjoyment of all categories of human rights and freedoms as recognised by international law – to the same extent of any other human being – cultural rights play in their respect a fundamental role. In fact, effective enjoyment of cultural rights represents an essential condition for preserving their existence as distinct groups, for perpetuating their own distinctive cultural identity, as well as, a fortiori, for ensuring in their favour the realisation of all other human rights.

Main Answers and Trends Developed by the International Community in Most Recent Decades

In the context of human rights law, Social/Socio-cultural Groups trigger three main problematics. First, since these groups are the main bearers of cultural diversity – which, according to Article 1 of the 2001 UNESCO Universal Declaration on Cultural Diversity, ‘is as necessary for humankind as biodiversity is for nature’ – and have special cultural needs, human rights standards must be ‘adapted’ to the extent possible so as to cover such needs. Additionally, and more in general, they are entitled to the enjoyment of cultural rights, as generally recognised by international law. Secondly, members of Social/Socio-cultural Groups need to be protected from harmful cultural practices which, while in some cases are perpetrated by people from outside the Social/ Socio-cultural Group, in other circumstances directly emanate from the same social or cultural group of which they are part. Last but not least, another priority of the international community should be that of protecting these groups against marginalisation and social exclusion. In the last few decades, international law has positively evolved to effectively address these problematics.

As regards the first point, the evolution of international human rights law towards the recognition and enforcement of collective rights (→Peoples’ rights) is of particular significance. This has happened not only through directly recognising such rights in human rights instruments (as made in particular by Articles 19–24 ACHPR), but also, most notably, in an indirect manner, through an evolutionary and extensive interpretation of rules originally construed to protect individual rights (see Lenzerini 2016). This practice is today widespread among human rights monitoring bodies and many pertinent examples could be used. For instance, in interpreting Article 27 ICCPR, the Human Rights Committee has affirmed that, ‘(a)lthough the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by states may also be necessary to protect the identity of a minority (...) (t)he protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned’ (see General Comment No. 23, 1994, paras. 6.2 and 9). Similarly, the Inter-American Court of Human Rights (IACtHR) has interpreted Article 21 ACHR – concerning the right of everyone to the use and enjoyment of his property – as covering the traditional collective possession by indigenous peoples of their ancestral lands and resources located therein (see, among the many pertinent judgments, [CASE OF THE MAYAGNA (SUMO) AWAS TINGI COMMUNITY v. NICARAGUA, 2001; CASE OF THE YAKYE AXA INDIGENOUS COMMUNITY v. PARAGUAY, 2005; CASE OF THE XÁKMOK KÁSEK INDIGENOUS COMMUNITY v. PARAGUAY, 2010]).

Evolutionary interpretation also represents the tool through which human rights monitoring bodies adapt existing standards to the cultural needs of Social/ Socio-cultural Groups, ‘filling’ them with a content adequate to make the enjoyment of rights effective under the perspective of the individuals and communities concerned (see Lenzerini 2014). A formidable example of this approach is again offered by the practice of the IACtHR. In particular, in a case concerning a massacre perpetrated by the army of Suriname in the N’djuka Maroon village of Moiwana in 1986, the Court found that the fact of depriving the surviving members of the community of the possibility to honor and bury the remains of their loved ones in accordance with fundamental norms of N’djuka culture amounted to a violation of the right to humane treatment contemplated by Article 5 ACHR. This finding was reached through attributing value to the cultural perceptions of the community concerned as an element worth protecting. In fact, the situation created by the government of Suriname gave rise to one of the greatest sources of culturally-determined suffering for the Moiwana community members, because, ‘(i)f the various death rituals are not performed according to N’djuka tradition, it is considered a profound moral transgression, which will not only anger the spirit of the individual who died, but also may offend other ancestors of the community (...) This leads to a number of ‘spiritually-caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage’ [CASE OF THE MOIWANA COMMUNITY v. SURINAME, 2005, para. 99].

Regarding the related aspect of recognition of cultural rights, members of Social/Socio-cultural Groups are obviously entitled to the full enjoyment of cultural rights as generally recognised by international rules and instruments in force, including Articles 22 and 27(1) UDHR, Article 27 ICCPR, Article 15 ICESCR, Article 26 ACHR, Article 14 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Articles 17(2) and 22 ACHPR. In addition, specific provisions on cultural rights exist concerning individual Social/Socio-cultural Groups. For instance, Article 13(c) of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) provides for the right of all women, on a basis of equality with men, ‘to participate in recreational activities, sports and all aspects of cultural life’. More generally, Article 5 of the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women establishes that every woman is entitled to the ‘free and full exercise of her’, inter alia, cultural rights, also recognising that ‘violence against women prevents and nullifies the exercise of these rights’. As regards children, the 1989 Convention on the Rights of the Child (CRC) deals with cultural rights at Articles 4, 29 (establishing that child education shall be directed to, inter alia, the development of the child’s own cultural identity), 30 and 31 (providing for the right of the child to participate fully in cultural and artistic life). Similar provisions are included in Articles 11(2)(c) and 12 of the 1990 African Charter on the Rights and Welfare of the Child. Also with respect to children, the Human Rights Committee has held that, ‘(i)n the cultural field, every possible measure should be taken to foster the development of their personality and to provide them with a level of education that will enable them to enjoy the rights recognised in the Covenant, particularly the right to freedom of opinion and expression’ (see General Comment No. 17, 1989, para. 3). A wide variety of collective rights is also contemplated by the 2006 African Youth Charter (see →Youth), ranging from the right of young people belonging to ethnic, religious and linguistic marginalised groups or youth of indigenous origin ‘to enjoy their own culture, freely practice their own religion or to use their own language in community with other members of their group’ (Article 2(3)), to the obligations of states parties to ensure that the education of young people is directed to the preservation and strengthening of positive African morals, traditional values and cultures and the development of national and African identity and pride (Article 13(3)), as well as to promote and protect the morals and traditional values recognised by the community (Article 20). Cultural rights are also provided for by the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Articles 17, 31, 40, 43, 45) and by the 2007 Convention on the Rights of Persons with Disabilities (Articles 4(2) and 30). The latter are also the object of specific cultural-rights-related provisions included in the 1999 European Social Charter (Revised) – which, at Article 15(3), establishes that their full social integration and participation in the life of the community must be promoted, ‘in particular through measures (...) aiming to (...) enabl(e) access to transport, housing, cultural activities and leisure’ – and in the African Charter on the Rights and Welfareof the Child, whose Article 13(2) affirms the right of children who are mentally or physically disabled to have effective access to training, preparation for employment and recreation opportunities in a manner conducive to allow their fullest possible cultural development (see →Disabilities (Persons with D.)). As for →Older persons, they are entitled by Article 23 of the European Social Charter (Revised) to social protection, implying, among other things, the right to play an active part in social and cultural life. Equivalent rules are established by Article 25 of the 2000 Charter of Fundamental Rights of the European Union and Article 21 of the 2015 Inter-American Convention on Protecting the Human Rights of Older Persons. Special attention is dedicated to the aspect of cultural rights by international instruments concerning minorities and indigenous peoples. With respect to the former, Article 27 ICCPR and Article 30 CRC contemplate the right of members of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language, in general terms and for children respectively. The same right is provided for by Article 2 of the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, also recognising their right to participate effectively in cultural, religious, social, economic and public life; other relevant provisions of the Declaration are Article 1, promoting the identity of such minorities, and Article 4, establishing the duty of states to take measures ‘to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs’, as well as to learn their mother tongue or to have instruction in their mother tongue. Similarly, the 1995 Council of Europe’s Framework Convention for the Protection of National Minorities, at Article 5, requires states parties to ‘promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’, while Article 15 establishes that the ‘conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs’ must be created (see →National Minorities). As far as indigenous peoples are concerned, the provisions of Article 27 ICCPR and Article 30 CRC also extend to them, although under international law minorities and indigenous peoples are two well-distinguished entities; the applicability of Article 27 ICCPR to indigenous peoples has been established by the uniform practice of the Human Rights Committee (see, e.g., General Comment No. 23, paras. 3.2 and 7), while the text of Article 30 CRC explicitly refers to ‘persons of indigenous origin’ in addition to minority members. Obviously, since cultural rights attain special importance for indigenous peoples, international legal instruments specifically devoted to them make extensive reference to such rights. This is the case of Articles 2, 4, 5, 7, 10, and 13 (the latter recognising the inextricable connection between cultural identity and indigenous peoples’ traditional lands) of the 1989 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, as well as of several provisions of the UNDRIP, particularly Articles 5, 8, 11, 12, 14, 15, 16, 24, 26, 31, 36.

With regards to the issue of protection of members of Social/Socio-cultural Groups from harmful cultural practices, the urgency of developing adequate action in this respect is emphasised by many human rights instruments and monitoring bodies. Starting with the UDHR, its Article 25 generally affirms the right of everyone to security ‘in the event of unemployment, sickness, disability, widowhood, old age’, as well as that motherhood and childhood are entitled to special care and assistance. The Committee on Economic, Social and Cultural Rights has found that states have the duty to protect women and children from harmful traditional cultural practices affecting their health (see General Comment No. 14 (2000), paras. 21 and 22), as well as to ‘to prevent third parties from coercing women to undergo traditional practices, e.g. →Female Genital Mutilation; and to take measures to protect all vulnerable or marginalised groups of society, in particular women, children, adolescents and older persons’ (ibid., para. 35). Failure ‘to discourage the continued observance of harmful traditional medical or cultural practices’ constitutes a violation of the right to the highest attainable standard of health provided for by Article 12 ICESCR (ibid., para. 51). The Committee has also held that cultural diversity cannot be invoked ‘to infringe upon human rights guaranteed by international law, nor to limit their scope’ (see General Comment No. 21 (2009), para. 18), and that applying limitations to the right of everyone to take part in cultural life established by Article 15(1)(a) ICESCR ‘may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe upon other human rights’ (ibid., para. 19). When a state party to the ICESCR fails ‘to take steps to combat practices harmful to the well-being of a person or group of persons (...) including those attributed to customs and traditions, such as female genital mutilation and allegations of the practice of witchcraft’, a breach of Article 15(1)(a) occurs. The prohibition of harmful traditional cultural practices is also established by all main conventions concerning women and children, including Article 5(a) CEDAW, Article 6 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Articles 2(2) and 5 of the 2003 Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (all of them requiring states parties to take all appropriate measures to modify the social and cultural patterns based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men), Articles 12 and 42 of the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (the latter prohibiting that ‘in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called ‘honour’ shall not be regarded as justification for such acts’), Article 24(3) CRC and Articles 1(3) and 21 of the African Charter on the Rights and Welfare of the Child (the latter making explicit reference to female genital mutilations and circumcision). Harmful traditional practices are also prohibited by Article 39(2)(d) of the 2004 Arab Charter on Human Rights and Articles 20(1)(a) and 25 of the African Youth Charter. The Committee on the Rights of the Child, in its General Comment of 2009 on indigenous children, stated that ‘cultural practices (...) under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development. Should harmful practices be present, inter alia early marriages and female genital mutilation, the state party should work together with indigenous communities to ensure their eradication’ (para. 22). The Committee on the Elimination of Racial Discrimination has taken the position that harmful traditional practices, including caste discrimination, caste-based or religious-based prostitution, female genital mutilation or marriage customs, amount to racial discrimination (see UN Doc. E/ C.12/40/15, 9 May 2008, paras. 18–19). Also of significance, the European Court of Human Rights has affirmed that ‘(i)t is not in dispute that subjecting a child or adult to F(emale)G(enital)M(utilation) would amount to ill-(inhuman or degrading) treatment contrary to Article 3’ ECHR (see Decision as to the Admissibility of Application no. 43408/08 by ENITAN PAMELA IZEVBEKHAI AND OTHERS AGAINST IRELAND, 17 May 2011, para. 73). Finally, as regards particular categories of Social/Socio-cultural Groups, the obligation to prevent and suppress harmful cultural practices is provided for, inter alia, by Article 8 of the 2007 Convention on the Rights of Persons with Disabilities and Article 4 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

The third main problem relating to Social/Socio-cultural Groups consists of ensuring special protection for these groups against marginalisation and social exclusion. This applies in particular to disadvantaged and vulnerable groups. Under a broad perspective, all Social/Socio-cultural Groups considered in this section are either disadvantaged and/ or vulnerable. In fact, just to mention a few examples, women (see →Gender equality), →Children, →Migrants, →Refugees, victims of human trafficking, →Indigenous Peoples, →Older Persons and →LGBT are actually disadvantaged and/or vulnerable groups within the society, for a number of reasons which include poverty, inherent fragility or poor health conditions, insufficient ‘political’ representativeness in the society’s decision-making, intolerance or persistence of social and cultural patterns resulting in their discrimination. As seen, the Committee on Economic, Social and Cultural Rights has recommended that states ‘take measures to protect all vulnerable or marginalised groups of society, in particular women, children, adolescents and older persons’ (see General Comment No. 14 (2000), para. 35). At the same time, it is true that, also within the groups just mentioned there are some persons who are particularly disadvantaged or vulnerable. The fact that both perspectives are valid is demonstrated by the definition of ‘vulnerable groups’ provided by the European Quality Assurance in Vocational Education and Training (EQAVET), according to which they are ‘(g)roups that experience a higher risk of poverty and social exclusion than the general population. Ethnic minorities, migrants, disabled people, the homeless, those struggling with substance abuse, isolated elderly people and children all often face difficulties that can lead to further social exclusion, such as low levels of education and unemployment or underemployment’. Indeed, while, for instance, older persons may be considered as a whole a vulnerable group, ‘isolated elderly people’ are a particularly vulnerable category within a generally vulnerable group. Similarly, for example, ill or disabled children may be considered the most vulnerable of the vulnerable, who are children generally speaking. The same can be said with regard to pregnant women vis-à-vis to women in general. The situation of these groups is addressed by international human rights law taking into account both perspectives, depending on the circumstances, and, particularly, on what is concretely necessary to protect the relevant groups from marginalisation and social exclusion. In general, as emphasised by the Committee on the Elimination of Racial Discrimination, vulnerable (and disadvantaged) groups must be protected against discrimination through ‘alleviating and remedying disparities in the enjoyment of human rights (...) (which) include but are not confined to persistent or structural disparities and de facto inequalities resulting from the circumstances of history that continue to deny to vulnerable groups and individuals the advantages essential for the full development of the human personality’ (see General Recommendation No. 32 (2009), para. 22). Many human rights instruments include specific provisions concerning disadvantaged and vulnerable people. For instance, Article 30 of the European Social Charter (Revised) provides for the right to protection against poverty and social exclusion, referring in particular to persons, and their families, who live, or risk living in a situation of social exclusion or poverty. With respect to women, CEDAWincludes specific provisions concerning, inter alia, rural women (Article 14) and women in status of pregnancy or maternity (Articles 11 and 12). Even more advanced, the Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa requires states parties to adopt special measures for the protection of women in armed conflicts (Article 11), widows (Article 20), elderly women (Article 22), women with disabilities (Article 23) and women in distress (Article 24). Concerning children, the CRC addresses with ad hoc provisions children temporarily or permanently deprived of their family environment (Article 20), adopted children (Article 21), refugee children (Article 22), mentally or physically disabled children (Article 23), children belonging to minorities or indigenous peoples (Article 30), children deprived of their liberty (Article 37), children victim of armed conflict (Article 38), children victim of neglect, exploitation, abuse or ill-treatment (Article 39). Similarly, the African Charter on the Rights and Welfare of the Child provides for the obligation to adopt special measures in favour of, inter alia, handicapped children (Article 13), children victim of armed conflicts (Article 22), refugee children (Article 23), adopted children (Article 24), children separated from parents (Article 25), children of imprisoned mothers (Article 30). Also, the African Youth Charter stipulates the right of young people belonging to ethnic, religious and linguistic marginalised groups or youth of indigenous origin ‘to enjoy their own culture, freely practice their own religion or to use their own language in community with other members of their group’ (Article 2(3)). As regards migrants, Article 17 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families devotes special attention to such workers and members of their families who are deprived of their liberty, to be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity, while the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, at Article 6, contemplates a detailed series of measures to be applied for ensuring assistance to and protection of victims of trafficking in persons. Last but not least, the 2007 Convention on the Rights of Persons with Disabilities is to be mentioned, as an instrument dealing in its entirety with a disadvantaged and vulnerable group.

The Way Forward: Policy Issues and Recommendations

The existence of such a huge amount of instruments and provisions concerning Social/Socio-cultural Groups is an encouraging sign of the positive evolution of international law towards their effective protection. However, having rules written on paper alone is not enough, if these rules are not effectively implemented and enforced in the real world. Generally speaking, effective implementation is the most important part of human rights protection, but also the most problematic one. With respect to Social/Socio-cultural Groups, it is an ongoing but rather slow process, which is progressing but needs continuous fuel and especially a cultural change within the civil society. This change should be aimed at establishing a sympathetic social and ‘environmental’ background which may allow the promotion of the effective integration of such groups in the society at large, and eliminate bad attitudes and discrimination against them. Indeed, discrimination suffered by Social/Socio-cultural Groups and their members translates into a plethora of different negative attitudes and harmful practices which may only be effectively and stably removed through developing a culture of appreciation for diversity, tolerance and mutual understanding among different communities and groups (see Lenzerini 2007). As stressed by the Committee on the Elimination of Racial Discrimination in 2012 in its Concluding observations concerning Israel, ‘in addressing issues that affect various vulnerable population groups, the State party [has to make] it quite clear, in its discourse and its action, that it has the political will to promote understanding, tolerance and friendship between individuals irrespective of their origin’ (see Un Doc. CERD/C/ISR/CO/14-16, para. 23). Similarly, Article 6 of the Framework Convention for the Protection of National Minorities emphasises the need to ‘encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media’. Therefore, in addition to further strengthening the normative apparatus concerning human rights of Social/Socio-cultural Groups, it is especially important to promote a cultural change within all the world’s societies, leading people to perceive the positive value of the diversity embodied in the distinctive identity of those groups, so as to allow them to be fully integrated within the society in relation to all aspects of their life, including full enjoyment of cultural and other human rights.

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