Responsive Human Rights? The Notion of Vulnerability in Human Rights Law

An interview with Corina Heri, author of ‘Responsive Human Rights. Vulnerability, Ill-treatment and the ECtHR‘ (Hart, 2021). Questions by Jens T. Theilen.

Jens Theilen: Let’s start out with the concepts at the heart of your book. One crucial notion is that of vulnerability, of course. Another is the notion of responsiveness – it features less prominently throughout the book than vulnerability does, but gets pride of place in the title, Responsive Human Rights. Would you briefly introduce these two concepts and how they relate to one another?

Corina Heri: The word ‘vulnerability’ regularly pops up in the Court’s case-law. As a concept, it’s used to reach a variety of results, from narrowing the margin of appreciation, to displaying flexibility on admissibility issues, to shifting the burden of proof, and more. In essence, references to vulnerability allow the Court to respond to context. At the same time, the Court has never provided a clear definition of what vulnerability means, and it doesn’t consider every applicant to be vulnerable. In the theoretical literature, especially the work of Martha Albertson Fineman, we find a different approach. Here, vulnerability is understood as a universal human experience, so a necessary part of human life that calls for a “responsive” State. That’s a State that, while it can never eradicate vulnerability, has a role to play in helping to understand and mediate it. In merging theoretical approaches with the Court’s case-law, that’s the role that I see for human rights as well.

JT: You investigate the ECtHR’s references to vulnerability over a broad range of contexts including the human right to non-discrimination, but your primary focus is on the prohibition of torture and inhuman or degrading treatment or punishment. Why did you choose this area to focus on?

CH: To some extent, vulnerability reasoning is a natural fit for understanding ill-treatment. The application of Article 3 was context-dependent even before the Court started to use the lens of vulnerability to look at this right, and vulnerability has tied into the assessment of hundreds of Article 3 cases so far. As Natasa Mavronicola’s contribution to this symposium will show, the application of Article 3 can hinge on the identification of salient contextual differences between similar situations. At the same time, the Court’s use of vulnerability didn’t originate in the Article 3 case-law. Early references concerned other Convention rights, and the Court only sporadically started using the concept in relation to ill-treatment in the 1990s. So this is a doctrine that was transposed from other, non-absolute rights to the absolute right under Article 3. I wanted to explore that process of transposition. Specifically, I wondered whether this approach had perhaps transposed elements of the limitability of other rights into the Article 3 case-law. I was also motivated by the sheer scale of references to vulnerability in the Article 3 case-law, so that focusing specifically on this right allowed an analysis not just of leading cases, but of lesser-discussed judgments and decisions where we see vulnerability reasoning taking different and sometimes contradictory paths. And, last but not least, looking at Article 3 allowed me to focus on the link between vulnerability and human dignity, which informs the application of this right and which I discuss as the foundational underlying value motivating the Court’s vulnerability reasoning.

JT: Drawing on how the ECtHR has referred to vulnerability in its case-law, you develop a typology of various grounds of vulnerability such as dependency-based vulnerability, vulnerability due to state control, vulnerability in the context of migration, vulnerability due to discrimination and marginalisation, and several other grounds. You also discuss “intersecting vulnerabilities” (p. 116) and draw a connection to the notion of intersectionality as developed by Kimberlé Crenshaw and other scholars. I thought this was a particularly interesting part of the analysis since intersectionality – despite a growing corpus of scholarly works – remains somewhat under-discussed in the context of human rights law, and certainly less embedded in the ECtHR’s case-law than the notion of vulnerability. Do you think vulnerability has the potential to act as a conduit for intersectional reasoning by the ECtHR?

CH: The Court has so far been resolute in its refusal to engage with intersectionality, even where applicants or third parties make arguments to this effect. In the book I consider that the Court’s references to certain applicants’ ‘extreme vulnerability’ can stand in for engagement with the intersection of several causes of discrimination or marginalization. The Court makes these types of references regarding applicants who fall on multiple axes of difference. It’s also relevant to note here that the Court’s approach to vulnerability isn’t necessarily about fixed category-based thinking. In the book, I create a typology of the reasons why someone might be considered vulnerable in Strasbourg, but this is open-ended: it’s meant to illustrate what vulnerability can mean, and not exhaustively define it. At the same time, the Court’s understanding of vulnerability is not a fully equivalent substitute for an intersectional understanding of inequality. In particular, the Court doesn’t engage at any length with how these intersections cause specific experiences and exclusions. Instead, it often simply notes applicants’ ‘extreme’ or ‘heightened’ vulnerability, and then immediately moves on with its analysis. This makes it difficult to tell whether it has truly understood applicants’ lived experiences, or whether an intersectional understanding of the harms at stake has played any substantive role in the case. When it’s used in this way, vulnerability can work as an argumentative shortcut in the service of procedural economy, and as a tool for avoiding engagement with potentially divisive systemic issues.

JT: Given the topic of my own monograph, I feel like I need to ask about the connection you draw between vulnerability and the ECtHR’s “European consensus” reasoning. Are these two types of reasoning compatible? 

CH: They are compatible, in the sense that vulnerability can fill the gaps where there is no European consensus on a given issue. That was the case for example in Chapman, where a reference to vulnerability meant that the Court didn’t need to agree on a definition of minorities, or find a clear consensus on minority protection. In other words, vulnerability can narrow the State’s margin of appreciation to protect against certain types of harms even absent a European consensus. In this context, we also see the Court using the “weighty reasons” test regarding vulnerable groups. At the same time, vulnerability and consensus do two very different things in the Court’s case-law. Vulnerability plays a counter-majoritarian role, and it serves a corrective purpose, so it shifts the Court’s focus from institutional considerations and protecting the status quo to engaging with inequality. In other words, at its best, it opens the door to ensuring respect for human dignity concerning morally, politically or otherwise contested issues, making it an essential counterpoint to some of the more problematic aspects of a consensus approach, including the “conservative lilt” that you point out in your own monograph (and will discuss in the next post in this symposium).

JT: You also describe vulnerability as “a placeholder for the level of empathy that the Strasbourg judges … are willing to exercise vis-à-vis individual human rights subjects” (p. 188) and thus as a counterpoint to judicial apathy. I loved this section of the book, not least because you juxtapose this mind-set of empathy with the focus on the ECtHR’s “legitimacy” which is currently so dominant in discussions of how the ECtHR should approach the cases before it. Would you elaborate a little on the idea of a mind-set of empathy?

CH: Thank you for highlighting this part of the book, it’s one of my favourite parts as well. I wrote it from the perspective that emotion plays a role for the law, even though we might prefer to see emotion and reason as mutually exclusive, and even though – in the context of adjudication – the idea of judicial empathy may raise concerns about judicial impartiality. In essence, I argue that we should be aware of how fear, disgust, and (a lack of) empathy can shape our assessment of the law. Under Article 3, this is particularly relevant in two ways. First, because psychological harm and suffering are key elements of ill-treatment, and feelings of vulnerability can – in and of themselves – violate Article 3. Secondly, I present judicial emotional engagement – and particularly empathy – as a necessary element of engaging with context. This doesn’t mean that judges should decide cases on a whim, or be more amenable to claims from likeable applicants. But it’s a part of understanding evaluative legal concepts, especially human dignity, and of properly assessing the effects of disadvantage, marginalisation and inequality. In other words, it’s less a synonym for emotionality, and more an antonym to excessive formalism and, as you noted, apathy. Or, to put it differently, I present vulnerability as a form of judicial empathy in the sense of reversing the processes of dehumanisation and othering that can be at the root of human rights violations, especially ill-treatment. In this context, vulnerability-as-empathy is a tool for rediscovering the humanity and individuality of applicants.

JT: Drawing together everything we’ve discussed so far, I’d like to hear your thoughts on how differently vulnerability can be operationalised in different contexts and how you approach the tensions that arise from working on it specifically in the context of the ECtHR. My impression is that many scholars pin high hopes on the notion of vulnerability: for example, it is described as a way of overcoming the liberal idea of a disembodied, rational subject in an “ethico-material turn” and as a potential source of critical engagement with alterity and power. At the same time, there is a general awareness that the case-law of the ECtHR lags far behind these hopes, and that references to vulnerability can also lead to adverse effects like naturalisation of certain group characteristics or exclusion of those not deemed vulnerable enough. Both sides of the equation are present in your book. You raise doubts as to whether the use of the vulnerability heuristic by the ECtHR can be considered a “revolution” (p. 147), but you also seem to hold out hope for “revolutionising the revolution” (p. 225). How do you deal with the dialectic of hope and doubt?

CH: “A Dialectic of Hope and Doubt” would have been a wonderful alternative title for this book. This tension is perhaps familiar to anyone working on the ECHR, especially when it comes to issues around equality. Vulnerability can provide a post-identity way of understanding inequality, and be transformative in individual cases. However, this only works to the extent that the user is willing to imagine and tolerate that transformation. In fact, when we look at vulnerability in detail, it’s hard not to notice that it has a degree of slipperiness. It can be used to identify entrenched bias and systemic discrimination and focus on applicants’ lived experiences, but it’s also been used to vilify same-sex relationships, and it can lead to adverse outcomes if someone does not succeed in providing that they are vulnerable enough to deserve protection. For this reason, I argue that while the Court’s existing approach to vulnerability has shaped the case-law in several important regards, it cannot rest on these laurels. As long as we continue to distinguish vulnerable applicants from invulnerable ones, instead of seeing vulnerability as a universal human condition mediated by access to sources of resilience, we’re leaving fallacious understandings of the human rights subject, and underlying power structures, untouched. A forthcoming review of my book by Ergun Cakal considers me to be unduly optimistic about the Court and perhaps even about the role of human rights law in facilitating a critical engagement with these questions. At the same time, I’m not sure that critique and hope are mutually exclusive. This brings us to the ambivalence of human rights, which you’ll discuss in your own Q&A, which is up next in this symposium.

JT: Thank you so much for your responses. Final question, as a joker of sorts: what’s something about the book that you feel is important or that you’re proud of, but that might be missed or undervalued when people read it?

CH: My hope for this book is that it will serve not just as an account of vulnerability or of ill-treatment, but as a way of examining the Court’s perspectives on what Convention rights are meant to do, and for whom. I would encourage readers to look past the specific contexts of ill-treatment or even of the ECHR, and to read the book as an account of the foundations of human rights, and of how the human rights architecture relates to matters of social justice. That’s because my argument concerns dignity and equality as much as vulnerability, and seeks to understand and critically engage with the various factors that shape the interpretation of human rights law, and its subjects.

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Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Hart, 2021) by Corina Heri is available open access here.

A panel discussion on the topic of “Minimalism vs. maximalism? Challenges and future directions in the interpretation of the European Convention on Human Rights” will take place on Wednesday, 8 June 2022 at 4 pm CET. It will feature Eva Brems (chair), Corina Heri, Natasa Mavronicola and Jens T. Theilen and pick up on themes covered in this symposium. You can register for the event here.