Preface

PREFACE I

The history of human rights in the 20th century can be described as an open process towards non-discrimination, a feature that has been present in what we have so far seen of the 21st century and that will probably remain so for the rest of it. In this respect, and regardless of the presence of other milestones, two key ideas, which correspond to a number of other historical rights processes, have been present and continue to be so. On the one hand is the process of generalisation; and on the other hand, specification. The first of these aims to extend the enjoyment of rights to people and collectives whose rights are not respected; the second aims to justify the granting of specific rights to people and groups.

In effect, the historical process of generalisation, at its most basic, meant extending the respecting of rights to individuals and collectives who did not hold them and, in doing so, taking into account the specific circumstances surrounding individuals.

As we all know, the historical origin of rights is associated with a social class, the bourgeoisie, and the respect of rights is not, at this time, universal. Rights are fully recognised for individuals who possess a series of characteristics relating to their economic status, gender, etc. Although in the process of positivisation, the first great historical rights process, equality is talked about, it is not about universal equality.

On the other hand, this process, the process of generalisation, is characterised by the abandoning of constructions in which the philosophical tone takes precedence, with others being carried out that seek to ensure that rights and liberties are upheld in law in a concrete, not abstract, manner. The attention to the specific situation, the context in which the needs and demands of human beings are situated, is another characteristic of this process, from which the appearance of economic, social and cultural rights can be understood.

Ultimately, the generalisation process is thus an attempt to link the discussion on rights with reality. A discussion that considers rights to be natural, that is to say that they belong to all human beings, and a reality that limits the enjoyment of rights to a particular social class, the bourgeoisie. A discussion that constructed a generic, abstract and timeless formula of rights and a reality in which certain categories of human beings do not enjoy these rights and in which needs arise, demanding to be incorporated into the catalogue of rights. A discussion based on defending the natural equality of human beings and a reality susceptible to being described in terms of inequality.

As for the process of specification, this entails the recognition of the rights of specific collectives, who find themselves in special situations, thus implying an idea of material equality. N. Bobbio refers to this as “the increasingly marked move towards a subsequent determination of the owners of rights”. Specification has indeed occurred with regards to gender (recognition of women's specific differences compared with men), age (children's rights, rights for the elderly), and certain states of human existence (rights for sick and disabled people, etc.).

Both phenomena stem from the principle of equality in its two main dimensions: on the one hand, that which sees equality as non-discrimination, and on the other hand that which lets us talk about equality as a requirement for differentiation (positive differentiation).

Equality as non-discrimination means equal treatment of different circumstances or situations which, however, it is believed should be considered irrelevant when it comes to the enjoyment or exercise of certain rights or the application of rules. In relation to rights, it implies non-differentiation in terms of entitlement, exercise and guarantees. In any event, this perspective cannot be understood without the other. Equality as a requirement for differentiation (such as positive differentiation), involves the giving different treatment to circumstances and situations that are considered relevant.

Within the process of generalisation, it is possible to encounter the use of both of these views of equality. In effect, although it is common to affirm that it is a process in which the idea of formal equality is replaced, or even combined, with that of material equality, we should not overlook the fact that one of the main characteristics of this process is the extension of entitlement to rights to certain individuals or collectives which, in terms of equality, amounts to negative differentiation (non-discrimination). But equally, this process also captures an idea of equality as positive differentiation (requirement for differentiation) through the appearance of social rights and, nowadays, through paying attention to specific situations that people and groups find themselves in.

Within the process of specification, the idea of equality is positive differentiation. It involves protecting certain individuals and collectives who are in special situations, by recognising specific rights.

Both dimensions of equality appear in the discussion on rights, linked to the idea of universality. In effect, equality and universality are two closely related principles that appear both in the ethical and legal dimension of rights. Within the ethical dimension, the concept of universality shows the existence of a series of characteristics that are present in every human being and so must be considered in an egalitarian manner. In the legal dimension, attaining this idea requires an equal treatment that is not incompatible with the consideration of difference and, therefore, different treatment. In this respect, the theory of rights, in its legal conception yet still conditioned by the moral dimension, opens up the possibility of justified positive differentiation. And with this, it can reject the universality of rights as long as that does not mean rejecting the universality of ethics. In other words, the theory of rights, in its legal dimension, does not demand universality of rights, as long as the universal value of the legal rights they protect continues to be upheld. Although positive differentiation entails leaving universality aside, it demands that the reasons justifying this be coherent with the universality of ethics.

So, the issue of assisting vulnerable groups is clearly inscribed within the scope of the phenomena of generalisation and specification, and stems from these two perspectives of equality through the lens of universality.

This book refers precisely to human rights and vulnerable groups. Before briefly commenting on its content, it is necessary to clarify that the term vulnerable group is relative. What I mean by the term is that vulnerability often occurs because of situations and contexts and this means, on the one hand, people and groups may be vulnerable at certain moments but not others and, one the other hand, it is very difficult to talk about natural vulnerability. So for example, I have sometimes heard disabled people be referred to as a naturally vulnerable group. However, as defenders of the social model of disability have demonstrated, these people's vulnerability is largely social.

Indeed, Rights and Vulnerable Groups (Vol. 1), edited by J. Alberto Real, deals with the issue of the rights of vulnerable groups in a new and comprehensive way, focusing on the main problems faced by the groups that are generically considered vulnerable.

On the one hand, we have works that mention the rights of women, one of the main historical exponents of the process of generalisation which, at the time, served to demonstrate the lack of justification for using gender as a criterion for differentiation in the enjoyment of rights. From this idea, the use of measures that unfold from both the principle of equality and non-discrimination and that of positive differentiation gain meaning in the present day.

From a theoretical point of view, and as part of a theory of rights, it is possible to defend three key principles in the field of differentiation:

1. A comprehensive theory of rights justifies differentiation that aims to satisfy the basic needs of individuals.
2. A comprehensive theory of rights justifies differentiation that aims to place individuals in identical conditions in the field of moral and political discussion.
3. The enjoyment of rights should be open to all even though differences may be established that, by virtue of the different types of inequality, dealing with the context in which these arise, and taking into account their different distribution criteria, are accepted by the majority of the rational individuals involved.

The theory of rights provides a series of parameters from which the social reality can be analyzed. If we focus our attention on the situation of women, I do not think it is too much to say that this is a collective for which, in general, both the requirement for the satisfaction of basic needs and, to a much greater extent, the requirement for equal value or power in public discussion, present undeniable problems. These are two issues that are very closely related and are a consequence of a historical allocation of social roles associated with sex-based differentiation.

This historical allocation of roles has been supported by a sexist approach characterised by the consideration of women as inferior beings, as beings who are not capable of performing certain tasks yet are “naturally” gifted in others.

The theory of rights must react to this situation and, in this respect, there are three possible paths: prohibiting negative differentiation; justifying positive differentiation; and designing an education system based precisely on its own hypotheses.

The prohibition of negative differentiation entails restricting any action that could directly or indirectly result in the non-respect of human rights due to being a woman. It is a path which allows the current reality to be addressed but does not serve to fully tackle this phenomenon. One of its manifestations is criminal punishment, from the understanding of criminal law as an instrument to repress those attitudes whose extreme extent is the non-respect of the legal right to life. In any case, although it is a well-travelled path, it is not a safe one, in the sense that it does not guarantee the disappearance of discrimination.

Justifying positive differentiation means allowing measures directed at women that aim to both satisfy their needs (sometimes needs specific to women and sometimes those shared with men but not satisfied for women), as well as include them in fields of political and legal power. In this case, these are policies that tackle the phenomenon in the medium term. It can also involve the use of criminal law, now considered as a preventative instrument, through the specification of criminal acts. In any event, it is a less travelled path than the previous one, yet safer (though not entirely).

The design of an education system based precisely on human rights involves raising awareness of the importance of human dignity and the equal value of human rights regardless of their sex, whether at school, in the family, or in the media. Obviously this is a long path, whose fruits are not immediate. In any case it is the safest path. The Convention on the Elimination of all forms of Discrimination against Women of 1979 indicated the “need to change attitudes, through educating men and women to accept equal rights”. This human rights education will allow us to do away with this differentiation of power and any type of sexism.

The book also looks at immigration and the rights of immigrants. Although immigration is not a recent phenomenon, it is possible to observe how nowadays there are factors affecting how it is dealt with. Immigration has become an important issue for certain developed countries that, on the other hand, have helped to construct the idea of human rights as instruments that limit power. This has started the search for a political approach that deals with this phenomenon and that does not betray a social model dominated by human rights.

In this respect, it is important to observe how the term immigrant has become an emotive term. In language we tend to differentiate, controversially to say the least, between foreigner and immigrant. This is a value-based differentiation (there are several studies showing that the perception of foreigners is better than that of immigrants). While the term foreigner marks a difference from nationals, this is even more the case for the term immigrant.

Normally, we tend to use this term to refer to a specific group of non-nationals present in our country. We neither normally do this to talk about home-owners and pensioners from northern Europe; nor the people with qualifications who have come here following the flow of capital and are working for large companies, or who have moved to Spain because it benefits them more (language teachers, shop owners, doctors, etc.), rather, we use it to refer to those who flee degrading living conditions. We even use it more to refer to unqualified people within this group.

All of this means that in the debate on immigration it is taken as read from the start that immigrants should not have the same rights. Or we even discuss how they should enjoy such rights, taking for granted the idea that not being a national (and being in a certain situation) is a reason with moral weight.

The theory of rights, when it appears in the topic of the rights of non-nationals, and therefore immigrants, reveals how it is rooted in two fundamental poles that form the basis of the construction of modern law but that can clash with the purpose of rights: political power and nationality.

These are two poles that must be questioned. I believe that the fact of being born in a country, or having acquired its nationality, is not in itself a relevant argument for differentiating negatively (not treating people the same) in terms of enjoyment of human rights, although it could perhaps be so (whilst still respecting such rights) for differentiating positively (recognising other rights). In any case, and with regards to the previous point it seems to me to be a secondary issue, and it is extremely difficult for me to defend actions of positive differentiation based on arguments related to nationality or culture. Regarding power, rights must present real limits on power. For this it is important to increase the power of the international courts (which should recognise the participation of all) with the aim that they contribute to the strengthening of rights, albeit through strengthening the power of the states at the same time. However, this refers to states that are committed to rights, and whose migration policy is underpinned by rights.

On this subject I think that the first step is to design policy that recognises rights whilst excluding the national or cultural aspect as far as possible. With this in mind, and from the perspective of recognising rights, it is necessary to start to discuss the recognition of this aspect, not in a negative sense (restriction of rights), but in a positive sense whilst respecting the idea of human dignity. All of this requires that the value of solidarity be recovered and its role in the discussion on rights be recalculated.

Another of the groups traditionally included when talking about vulnerability is children. The issue of childhood has been a key issue in the field of human rights since the second half of the 20th century. The emergence of international regulations in this regard, supported by doctrinal approaches, and the attention given to the real situations in which children live in certain countries, has made this a current issue, with greater or lesser success, not just in the academic and scientific field but also in the political agenda. Furthermore, it is a question that affects fundamental political and social issues and, ultimately, the social model that we want.

There is a certain tendency to include this phenomenon within the process of specification. However, the treatment of the rights of children cannot remain solely within the process of specification; it must also be considered within the process of generalisation.

Some will think that this observation is merely an academic detail. However, I do not believe that it is just that. The process of generalisation constitutes the attempt to extend human rights to collectives that do not enjoy them, and this idea may have its place when we are dealing with the issue of children's rights. In effect, the recognition of specific rights is one thing and the generalisation of rights is another. Although we can find some common elements in both phenomena, there is no doubt that the justification for each may be different. And in this sense, by characterising the recognition of children's rights as belonging to the specification process we are saved from having to make a series of reflections on which a theoretical handling of these rights cannot be avoided.

Certainly, for many, dealing with the question of childhood in terms of rights from a theoretical point of view is an unnecessary task, given that the important point on this subject (as with anything to do with rights) is the question of guarantee. The problems regarding the concept and foundation of rights tend to be left aside. It is sometimes stated that these issues are impossible to resolve, but there are also those who believe that they have already been resolved (especially when we have a Universal Declaration of Rights). And in any case, there is a certain tendency, particularly in the field of legal doctrine, to ignore these subjects by claiming that they are irrelevant. In this regard, it is common to come across pronouncements stating that the important issue nowadays when dealing with rights is protecting them. However, the process of determining a concept and basis for rights is given great importance, obviously in terms of the manner in which it is interpreted, but also in the solution of problems relating to their effective guarantee, both legal and social, and including in terms of the aspects relating to the catalogue of rights itself.

And this importance is very evident when it comes to the rights of children. Not without reason, Neil MacCormick wrote, a while ago now (“Children's Rights: A Test-Case for Theories of Right”) that the question of children's rights is one of those issues that puts the theory of human rights to the test. Indeed, for those of us who work on issues relating to the theory of human rights, the treatment of children's rights presents us with questions that are difficult to resolve, which basically affect the coherent development of the theory itself.

The previous reflections on children's rights can also be applied to the analysis of the rights of people with disabilities (the topic of some of the articles in this book). This is a collective which, like children, currently receives special attention (an example of this is the recent passing of the United Nations Convention on the Rights of Persons with Disabilities). On the other hand, the focus on their recognition from a perspective of generalisation, and not so much from one specification, is also significant. Beyond this, it is worth highlighting how a rigorous and serious handling of this issue requires us to adopt a human rights perspective.

Human Rights Issues and Vulnerable Groups (Vol. 1), also looks into the rights of indigenous peoples. This is surely the topic that is most closely related to the dimension of equality as positive differentiation, and which tackles one of the most important problems regarding the grounds for rights: the moral value of groups or collectives. Like in the previous cases, this is an issue that is receiving a lot of attention in the area of rights declarations, and which equally affects another of their key principles: universality. All of this justifies the attention received.

But as well as this, this work contains pieces on other issues that are equally important when looking at the fight against discrimination, such as poverty, and the rights of victims, sexual minorities, linguistic minorities and refugees. In many cases, but especially in the case of refugees, studies and reality confirm how the system of human rights (and in particular their application by states), continues to be contradictory with much room for improvement.

I would like to end by thanking and congratulating Professor J. Alberto del Real for his hard work and effort in ensuring this work went ahead.

PREFACE II

Current and Future Developments in Law, Volume 1 (Human Rights Issues and Vulnerable Groups) and Volume 2 (The Suffering of Minorities and Human Rights) deal with rights and vulnerable people. It covers a wide range of topics, but all center on people who, upon finding themselves –for different reasons– in a hostile situation that overwhelms them, fall into a position of vulnerability. Vulnerability arises as a consequence of a person's inability to overcome a risk or danger by themselves, due to a disadvantage, deprivation or harm, whether physical, moral, social, economic, political, or family-related. The situations of vulnerability discussed in this book are related to those caused by the moral, family, social, economic or political conditions in which the people, and the groups they belong to, live.

Vulnerable people display weakness, fragility and inability to recover from unexpected problems (real or potential). This means that vulnerability is linked to “human suffering”. Because of this, vulnerable people are people who suffer: a) from the potential risk of enduring harm, deprivation or disadvantage that overwhelms them and that the person does not have the capacity to confront on their own; b) from the fact of having already endured such a harm; and c) from the potential risk of continuing to endure it if they do not escape the position of vulnerability in which they find themselves. In fact, human suffering is behind each of the chapters in this book. Suffering is, without a doubt, synonymous with a person's “poor living conditions” and is the opposite of “living well” or well-being.

While the human suffering of vulnerable people is a theme that runs throughout the whole book, there is also another thread running through every page: rights, as an instrument through which civil society and the Rule of Law try to compensate for, curb or even eliminate the suffering of these people through the aim of restoring them to a situation of normality. The “rights mechanism” is a useful instrument because it aims to satisfy needs and claims (relating to freedom, equality and human dignity) which, when not satisfied, generate harm, deprivation and disadvantages that prevent people from living in conditions of minimum personal and collective well-being.

Both volumes establish a clear relationship between “living well” (well-being) and rights. And, on the other hand, societies that deny basic rights are societies in which the people suffer from “poor living conditions”. Societies that recognize a set of basic rights for the general population and ensure that they are upheld achieve a higher level of well-being (“living well”) and the people enjoy better living conditions in general.

Volume 1 and Volume 2 are organized into different types of vulnerable people. In this respect, Volume 1 (Human Rights Issues and Vulnerable Groups) contains 8 groups of vulnerable people, which contain 16 chapters. Part I (Chapter 1) highlights the relationship between rights and human dignity, and is the starting point for all the other chapters. Part II (Chapters 2, 3, 4 and 5) brings together a group of chapters on people with disabilities, to discuss the relationship between this vulnerable position and rights, the universalization of these rights, the Constitution and the social inclusion that these rights are capable of achieving. Part III (Chapter 6) summarizes the examination of cultural rights with regards to the situation of the Bolivian indigenous peoples, as specific examples of groups of highly vulnerable people in Latin America. Part IV (Chapters 7 and 8) takes into account women, who make up more or less half of the world's population and who continue to be subject to serious discrimination, deprivation and disadvantage. Women's rights, equality and gender discrimination make up the content of this Part.

Part V (Chapters 9, 10 and 11) includes people who have been victims of terrorist attacks as a vulnerable group. The huge amount of human suffering present among this group of people, the harm they continue to suffer after the terrorist acts (such as post- traumatic stress) and the need to find out the truth about the acts during trials for this type of crime all appear in these chapters. Part VI (Chapters 12, 13 and 14) deals with the difficult situation of poor people. Specifically, it deals with the problem of poor workers, the position within the European Treaties of social rights that deal with situations of poverty, and the issue of the right to housing as an effective and fundamental right for escaping poverty. Part VII (Chapter 15) contains another group of very vulnerable and forgotten people: people in prison. This part focuses on which rights are affected when a person is deprived of his liberty. Finally, Part VIII (Chapter 16) takes into account one of the most defenseless groups: children, and the context of the consumer society in which they form their personal identity.

Volume 2 (The Suffering of Minorities and Human Rights) contains 5 groups of vulnerable people (vulnerable minorities), which contain 13 chapters. Part I (Chapters 1, 2 and 3) deals with the petitions and claims for cultural freedom of people and the groups they belong to. It does this by examining the rights (cultural rights) which seek to satisfy these demands for cultural freedom, but also by looking at case-law instruments which may contribute to making this possible. Part II (Chapters 4, 5 and 6) on the other hand looks at the very serious problem of vulnerability faced by migrants in much of the world, from a human rights perspective. Part III (Chapters 7 and 8) includes a group of vulnerable people whose suffering accompanies huge humanitarian disasters and is often forgotten about: internally displaced people and migrant people. These are very vulnerable people in need of protection, who are the subject of very serious human rights violations, especially when their fragile situation is a consequence of armed conflict. Part IV (Chapter 9) deals with the extremely difficult issue of people who we can group together under the banner of “sexual minorities”, when confronted with the intolerance they sometimes face from the heterosexual majority. The position of vulnerability in which these people often find themselves frequently starts within the family itself, which makes this a high factor of discrimination and breach of basic rights. This situation arises when sexual identities that differ from the heterosexual identity are not accepted. This type of discrimination is very serious when aimed against non-heterosexual adults, but it is even more so when aimed against girls and boys of a young age. Suicide (an indication that a person was no longer able to cope with their suffering) occurs in this type of situation where a person's most private identity is not respected and is attacked at its very core. Finally, Part V (Chapters 10, 11, 12 y 13) analyses the situation of minorities in general, exploring the situation of disadvantage in which they often find themselves, the factors surrounding their political integration, and the more specific issue of national minorities and secession within the Constitutional State today.

Of course, the list of groups of vulnerable people included in both volumes is not a definitive list, but an incomplete one. Wherever there is human suffering in the face of hostile situations that overwhelm people, we can find human beings in a vulnerable situation and, as such, in need of help and protection. This is the idea presented on every page of both books.