Framing the Issue: Vulnerability or Structural Violence?

Ellen SpannagelBy Ellen Spannagel

In my role supporting Forum for Human Rights, a Central European legal non-governmental organization focusing on international human rights litigation and advocacy in Central Europe, my research centered on the rights to water and sanitation. Specifically, we were looking at how the state has failed to provide Roma communities with adequate drinking water and sanitation in Slovakia.

In doing research and writing on these issues, a reoccurring point of discussion was whether to frame issues of lack of access to water and sanitation as one of precarity/vulnerability, or one of structural violence, and which point of reference would be more strategic. Here, precarity refers to a “politically induced condition of vulnerability which exposes such populations to arbitrary state violence and to other forms of aggression enacted by non-state actors, without any protection,” as defined by Judith Butler. [1] Structural violence can be understood as an “avoidable impairment of fundamental human needs or, to put it in more general terms, the impairment of human life, which lowers the actual degree to which someone is able to meet their needs below that which would otherwise be possible.”[2] So much scholarly work has been written about this, but in my own words, the angle of precarity/vulnerability focuses on the actual group that has been made vulnerable and their characteristics, whereas structural violence focuses on the multiple dimensions of societal processes/relations resulting in social inequalities.

So which route do you choose? I had many discussions with colleagues about this. I noticed that many people preferred discussing legal issues facing marginalized groups in the context of structural violence, as it points to larger systemic roots in racism and other forms of discrimination and implies a greater accountability on behalf of all of society. It can help reveal the accountability of the state regardless of the complexity of domestic arrangements and can also help identify remedies that are of a collective and structural nature. However, while the preference for the lens of structural violence was true almost across the board, almost all the people I spoke to agreed that framing these issues in the context of vulnerability or precarity would be more effective. That is, regional and international bodies would respond more readily and positively to a framing of vulnerability as opposed to structural violence.

Carolina Yoko Furusho writes that human rights courts “abide by modes of relationality whereby certain kinds of vulnerability become more salient than others.”[3] Furusho adds, “applicants labelled as vulnerable are selectively recognised, engendering an uneven politics of inclusion which raises social justice and equality concerns.”[4] This can be seen in the decisions of the European Court of Human Rights, which has recognized time and time again that Roma constitute “vulnerable” populations, without giving as much weight to other social groups, such as the rights of trans people, migrants, and others.  The focus is on the status of the group as “vulnerable,” and less so on the multiple and intersecting forms of oppression giving rise to such situations.

However, Furusho also writes “legal practitioners do not simply create categories of ‘vulnerable groups’, but they engage in relational processes whereby vulnerability is produced and mobilised in between and across bodies.”[5]  This really hit home for me. By choosing to participate in the selective framing of “vulnerability,” playing to status quo understandings of major courts, are jurists reproducing the existing vulnerabilities that they themselves are seeking to combat?

Language is powerful, and legal practitioners and courts should think very carefully about how they can center the agency of those seeking justice, by placing the spotlight on actors perpetuating exclusion, rather than focusing on the vulnerability of certain groups and whether or not that are “vulnerable” enough.

[1] Judith Butler. Frames of War: When Is Life Grievable? London: Verso, 2009. p 25.

[2] J, Galtung. Violence, Peace, Peace Research. (1969) Journal of Peace Research, Vol. 6, No. 3. p. 167.

[3] Carolina Yoko Furusho, “The Selective Framing of ‘Vulnerability’ in the European and the Inter-American Human Rights Courts : A Socio-Legal Analysis of Juridical Praxis,” ethos.bl.uk, 2020, https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.815316.

[4] Ibid.

[5] Ibid.

Human Rights to Water and Sanitation: Finding Common Ground on the Scope of Obligations

By: Ellen Spannagel

In my work as an intern with Forum for Human Rights, an organization that focuses on international human rights litigation and advocacy and Central Europe, I have been helping with a submission centered on the human rights to water and sanitation. The rights to safe drinking water and sanitation are derived from the right to an adequate standard of living, a right that is enshrined in several human rights instruments that are ratified by Canada, including the ICESCR, CEDAW, CRPD, and the CRC.

In my research, I found that violations of the rights to safe drinking water and sanitation are typically related to violations of other rights, including the right to health (highest attainable standard of health), housing (also part of the right to an adequate standard of living), and the principle of non-discrimination, among others. This bolsters the notion that human rights are interdependent and interrelated: these are rights that can only be upheld so long as the others are upheld.

This theme of interdependence is prominent within United Nations (UN) treaty bodies and throughout the comments of UN Special Rapporteurs. For example, the former UN Special Rapporteur on the Right to Housing, Leilani Farha, has specified that housing that does not provide adequate water and sanitation can give rise to a situation of homelessness, a fundamental breach of the right to housing. The interrelatedness of these rights is also prominent among regional courts. For example, in Öneryildiz v. Turkey, a community was devasted by the explosion of a landfill, and the European Court of Human Rights held that waste disposal, and its impacts on health, were intricately related to the right to life and that there is “positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.”

While this makes it easy to link rights such as the human rights to water and sanitation to the violations of other rights, it sometimes makes it difficult to identify the specific obligations states have in fulfilling these rights at a normative level. For example, in the recent judgement Hudorovic and Others v. Slovenia, which considered whether Slovenia violated obligations to provide the Roma applicants with adequate access to drinking water and sanitation, the European Court of Human Rights acknowledged that it is “necessary to take into account the vulnerable and disadvantaged position of the Roma population”  in the context of several rights, such as the right to life. However, the court ultimately ruled that that the State had fulfilled their positive obligations to provide access to utilities to the applicants, despite evidence of existing lack of access to adequate water and sanitation. This contradicts the comments made by the former UN Special Rapporteur on the Right to Housing and raises questions about the scope of obligations where a multiplicity of interrelated rights are at play. Questions about the level of access (whether water must be provided directly into the home) and affordability (how much it should cost to remain connected to a public water supply) remain unanswered and highlight whether human rights as they currently exist are best positioned to tackle these issues.

In Europe, water-related issues (access to safe drinking water, access to sewage) and waste issues (uncontrolled dumpsites and landfills) are common situations of environmental racism that particularly affect Roma communities.  When I reflect on the state of affairs where I live, I am immediately reminded of the long-term drinking water advisories in First Nations communities, and its relationship to other issues such as adequate housing and food security.

The human rights to water and sanitation are especially important in the context of the climate crisis. While it is important that international and regional bodies recognize the interdependence of these rights to other rights such as the right to housing, without stricter judicial review, and a more specific framework establishing how these rights should play out on the ground, States will be absolved of responsibilities in ensuring these rights for communities that are structurally disadvantaged. Finding a common ground on the scope of obligations for these various interrelated rights, particularly in situations of persistent structural inequality, will be integral moving forward.

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