Does a rights-based approach make a difference? The role of public law in vulnerability reduction

Handmer, John, and Rebecca Monson, "Does a Rights Based Approach Make a Difference? The Role of Public Law in Vulnerability Reduction," International Journal of Mass Emergencies and Disasters, Vol. 22, No. 3 (November 2004): 43-59.

ABSTRACT

Reducing the impact of climate-related disasters can be conceptualised as being about reducing or managing ‘vulnerability’. ‘Vulnerability’ is a multi-faceted concept incorporating issues of livelihood, housing, security and gender among many others. For example, groups of people may be more or less vulnerable to climate-related disasters due to the security of their livelihoods or the quality of their housing. Social norms and custom, international law, and national public and private law may regulate these constituents of vulnerability. In some jurisdictions, such as countries in the European Union and the Council of Europe, and countries with new constitutions, there is a range of specific rights that may be mobilised to reduce vulnerability.

Much of the work on the link between vulnerability reduction and human rights focuses on international law. However national law is generally more accessible and enforceable than international conventions, no matter how attractive the conventions may seem. National public law is of particular value to vulnerability reduction because governments are often those with the clearest responsibilities and the greatest resources for reducing vulnerability. We draw on three recent South African cases to illustrate the potential for citizens to mobilise public law to reduce their own vulnerability:

• In the case of Minister of Public Works & Ors v Kyalami Ridge Environmental Association & Anor [2001] ICHRL 33 (29 May 2001), the Court found a constitutional obligation to provide disaster relief, and established that when administrative action is taken to address the plight of victims of disaster, it will not necessarily be a denial of natural justice to fail to provide a hearing to all those who object to the emergency measures.

• In the 2001 decision of Government of the Republic of South Africa and Others v Grootboom and Others (2001) (1) SA 46 (CC); 2000(11) BCLR 1169 (CC), the South African Constitutional Court was required to consider the scope of s.26 of the South African Constitution, which provides that everyone has the right of access to adequate housing.

• A later case, Minister of Health and others v Treatment Action Campaign and others (2002) (5) SA 721; 2002 (10) BCLR 1033; [2002] ZACC 15 (5 July 2002), is of great significance to the attempt to combat HIV/AIDs. In that case, the South African Constitutional Court ruled that the government had a constitutional obligation to provide HIV treatment to pregnant women to help prevent transmission of the virus to their unborn children.
  

We also briefly examine the potential role of the European Court of Human Rights in reducing vulnerability through the enforcement of the law common to the Council of Europe. Finally, we raise the question of whether a rights-based approach might be effective in countries without mechanisms similar to those in South Africa and the Council of Europe.