The potential and pitfalls of the vulnerability concept for human rights

Alexandra Timmer,Lieneke Slingenberg,Louis Kotzé,Moritz Baumgärtel

doi:10.1177/09240519211048009

Alexandra Timmer, Lieneke Slingenberg + Show 2 more

Open Access

https://doi.org/10.1177/09240519211048009

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Abstract

In the past decade or so, vulnerability has become a fairly prominent concept in human rights law. It has evolved from being an underlying notion to an explicit concept. This column takes stock of vulnerability's relationship to, and possible influence on human rights law, assessing the concept's potential and pitfalls. It focuses on the not altogether unrelated issues of migrants’ social rights and on the role of human rights in environmental protection. The discussion commences with a reflection on the potential of vulnerability to re-interrogate those aspects of the human rights paradigm that relate to environmental protection. The next section focuses on the potential of vulnerability to enhance migrants’ social rights within human rights law. Subsequently, it focuses on the pitfalls and the difficulties of the vulnerability concept. It concludes by offering an outlook for the future of the concept.

Highlights

Vulnerability has become a fairly prominent concept in human rights law
The concept of vulnerability has an intuitive and broad appeal. It has become more than a legal concept to the extent that it has evolved into a discourse within the broader human rights movement, and it has the potential to steer discussions about the human rights movement in one direction or another
We focus on the not altogether unrelated issues of migrants’ social rights and on the role of human rights in environmental protection.[5]

Summary

Introduction

Vulnerability has become a fairly prominent concept in human rights law. In the past decade or so, it has evolved from being an underlying notion to an explicit concept that is more generally recognised,[1] despite critique.[2]. In MSS, for example, the Court’s observation that asylum seekers are members of a ‘ underprivileged and vulnerable population group in need of special protection’ was one of the arguments to conclude that Article 3 ECHR was violated due to destitution.[20] The ECSR has used the concept of vulnerability to broaden the personal scope of some of the rights laid down in the European Social Charter (ECR or Charter) It held that the Charter’s restricted personal scope ‘should not end up having unreasonably detrimental effects where the protection of vulnerable groups of persons is at stake’;21 an interpretation that led it to conclude that irregular migrants fall under the scope of the right to shelter. This observation chimes with previous research that has found the ECtHR’s usage of vulnerability to be driven less by rigour and a consideration for the general ‘structure’ of human rights law than by convenience and pre-existing legal rationales.[26]

Pitfalls of Vulnerability

Future Outlook