January 15, 2014
As we announced earlier, Lourdes Peroni and I have written an article together which analyzes the development of the vulnerable group concept in the Strasbourg case law. I am happy to say that this article has now been published as:
Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), p. 1056-1085 (link is to the full-text article!).
This is the abstract:
The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.
In relation to ECtHR case law, the concept of vulnerability proved to be a rich topic for research. Widening the inquiry beyond “vulnerable groups” to vulnerability more generally, I have written a second piece which has also just been published:
Alexandra Timmer, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in: Martha Fineman & Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate), p. 147-170.
Again, the abstract:
Without occasioning much comment, the European Court of Human Rights is increasingly relying on vulnerability reasoning. This chapter analyses that development. First it discusses the concept of vulnerability and its relationship to human rights on a theoretical level, particularly drawing on the work of Martha Fineman. Through an emphasis on universal vulnerability, Fineman’s work invites a reimagining of the human of human rights law. This chapter then examines and critiques how the Court conceives of vulnerability: it charts who are vulnerable according to the Court, and why.
The ability of vulnerability, the chapter argues, is that it allows the Court to prioritize between different claims. Vulnerability reasoning likewise enables the Court to extend certain positive obligations. Vulnerability considerations are thus at the frontlines of the Strasbourg case law. However, as a social institution the Court is also vulnerable in and of itself. This is a reality that the ECtHR will have to take seriously in order to endure as a supranational human rights court. The Court’s legal reasoning about vulnerability, and the revolutionary potential of that reasoning, is therefore ultimately limited by the Court’s own vulnerability.