VI. The protection of vulnerable groups at the confluence of international human rights law and international environmental law

Means of protection may envisage the guarantee of human rights that inhere in all human beings by virtue of their very existence and of human rights that pertain to the social conditions - and their improvement- in which they find themselves.¹³⁷ Just as there are rights that are essentially "individual," i.e., that can be protected only in the individual himself, there are also rights that can "best be protected through a group," particularly in case of "group victimization." There are in fact groups that appear properly qualified for group treatment and protection, and international law has devised means of protection for certain categories of groups in distress (e.g., workers, minorities, refugees, stateless persons, prisoners of war). It is essentially a matter of organization and gradual institutionalization of protection¹³⁸ (as envisaged in our day, e.g., on behalf of indigenous populations). The temporal dimension is marked in the protection of human groups, that may, along with states, "pretend to perpetuity"; after all, "group organization can assure continuity over generations. "¹³⁹

The necessity of group protection appears clearly in the cultural and linguistic fields. It can hardly be doubted that some key elements of social life can be enjoyed only through "individual integration in a group," through education, exchange of ideas or custom; "while one may individually enjoy culture in whatever language, one can take part in the creation of culture only in one's own linguistic and cultural community."¹⁴⁰ Hence the need of protection of group rights, in particular of rights of "specially vulnerable and disadvantaged groups" (e.g., mentally and physically handicapped persons, the vulnerability of children, the situation of women in many countries, ethnic and religious and linguistic minorities, indigenous populations); attention has lately been drawn to the need to establish an "inventory" of the protection and assistance needed by those groups and to develop "early warning systems to cushion the shocks on specially vulnerable groups because of changes in development policies."¹⁴¹

Children, the handicapped, and the elderly rank in fact among the particularly vulnerable, and stand in special need of protection. The 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, for example, singles out precisely the rights of children (Article 16), the protection of the handicapped as a (social) "group" (Article 18), and the protection of the elderly (Article 17). The 1961 European Social Charter, in its turn, singles out the rights of women and children (Articles 7, 8, and 17), of disabled persons (Article 15), and of migrant workers (Article 19). The temporal dimension is here present, as evidenced, e.g., by the proper training and education of children. The 1948 Universal Declaration of Human Rights itself provides that "education shall be directed to the full development of the human personality" (Article 26[2]). The 1989 UN Convention on the Rights of the Child warns, in its preamble, that children, precisely because of their vulnerability, stand in need of special care and protection. The Convention, thus, provides also for preventive measures regarding the protection of children from abuse and neglect (Article 19[2]); it recognizes inter alia the child's right to education (Article 28) and the right of children to benefit from an adequate standard of living, necessary for their personal development (Article 27). The 1989 Convention further provides for the right of children of minority communities and indigenous populations to enjoy their own culture and to practice their own religion and language (Article 30).

The question of indigenous rights has become an issue of international concern, as reflected in the work of the ILO on the matter (e.g. its Convention no. 107 on the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, of 1957) and in the establishment (in 1982) by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Working Group on Indigenous Populations, and its subsequent work.¹⁴² Indigenous issues have, moreover, in recent years been dwelt upon by distinct human rights supervisory organs (e.g., CERD, Human Rights Committee).¹⁴³ A Draft Universal Declaration on Indigenous Rights, submitted in 1988 (by E.I. Daes) to the UN Working Group on Indigenous Populations, conceptualizes the "collective right" to protection against genocide and ethnocide (survival and cultural survival), at a time a right of peoples and of individuals, encompassing the right "to preserve their cultural identity and traditions and to pursue their own cultural development" ( 3-6).¹⁴⁴

The Draft Declaration provides inter alia for the preservation of areas of settlement, ways of life and economic activities of indigenous populations (§18), their right to autonomy in matters relating to their own way of life (§23), their right to participation (in the life of their state - 21-22), and health, housing, and other socio-economic programmes to their benefit (§20). In a significant clause (§16), the 1988 Draft Declaration further provides for the rights to protection against any action or course of conduct which may result in the destruction, deterioration or pollution of their land, air, water, sea, ice, wildlife or other resources without free and informed consent of the indigenous peoples affected. The right to just and fair compensation for any such action or course of conduct.¹⁴⁵

Concern for the protection of vulnerable groups can nowadays be found not only in the domain of international human rights law, but likewise in the realm of international environmental law. In fact, the protection of vulnerable groups appears today at the confluence of human rights protection and environmental protection. Thus, the World Commission on Environment and Development (the "Brundtland Commission"), reporting to the UN General Assembly in 1987, expressly addressed the need of "empowering vulnerable groups." The Brundtland Commission began by recalling that the process of development generally led to the gradual integration into a larger socio-economic framework of most local communities, but not all: "indigenous or tribal peoples," e.g., remained isolated, preserving their traditional way of life "in close harmony with the natural environment," but becoming increasingly vulnerable in their contacts with the larger world, as they were left out of the processes of economic development. Marginalization and dispossession, social discrimination and cultural barriers, have rendered those groups "victims of what could be described as cultural extinction."¹⁴⁶

The Brundtland Commission approached the issue on the basis of both human and environmental considerations. It pondered:

These communities are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins. Their disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecological systems....

The starting point for a just and humane policy for such groups is the recognition and protection of their traditional rights to land and the other resources that sustain their way of life - rights they may define in terms that do not fit into standard legal systems. These groups' own institutions to regulate rights and obligations are crucial for maintaining the harmony with nature and the environmental awareness characteristic of the traditional way of life....

Protection of traditional rights should be accompanied by positive measures to enhance the well-being of the community in ways appropriate to the group's life-style....

In terms of sheer numbers, these isolated, vulnerable groups are small. But their marginalization is a symptom of a style of development that tends to neglect both human and environmental considerations. Hence a more careful and sensitive consideration of their interests is a touchstone of a sustainable development policy.¹⁴⁷

Protection of vulnerable groups is an issue that can be raised as a result of changing environmental conditions. Global warming, for example, could destroy the traditional way of life of native peoples (e.g., those inhabiting countries bordering the Arctic), thus raising human rights issues in the light of provisions of, e.g., the UN Covenants (on Economic, Social, and Cultural Rights, Articles 1[1], 2, and 3; and on Civil and Political Rights, Articles 1[2] and 27).¹⁴⁸ This is just one example; as recently warned by Brown Weiss, "in the scenario projected under global warming, it is unlikely that we can salvage the environmental conditions necessary for these people to maintain their way of life. But, the international community may have a legal obligation to ensure the protection of the human rights of native peoples in the Arctic to the extent possible. This may require special assistance to give them opportunities for sustainable economic development, to ensure the protection of their culture insofar as possible, and to ease their transition into a different society."¹⁴⁹ The present example, taken from the projection of global warming, suffices again to illustrate the interrelatedness of human rights and environmental factors. This invites us to an inquiry into the proper meaning of "collective" rights (see section XI, infra).