Abstract
In human rights law the concept of vulnerability is increasingly being used to attract attention to the fact that people are differently resilient and that some are more prone to harm than others. Its use as a legal concept, however, is still embryotic and opens up to several questions. By scrutinising how the judicial bodies within two regional human rights systems - the African and the European - have referred to and used the concept, the article discusses the nature and function of vulnerability in interpreting rights. Discussing the function and the conceptualisation of vulnerability in such practice, it argues that although the idea of special protection implicit in the vulnerability thinking is not revolutionary as such, vulnerability argumentation may be seen as a supplementary safety mechanism, which can be used to widen and deepen the scope of measures of protection in cases where 'regular' protection is not enough to ensure the effective realisation of rights. At the same time, the article cautions against taking the neutrality of the vulnerability concept for given, as the use of the vulnerability reasoning may also lend itself to the selective protection of rights.
Highlights
The concept of vulnerability has lately become an increasingly used notion in human rights law and policy
Summary: In human rights law the concept of vulnerability is increasingly being used to attract attention to the fact that people are differently resilient and that some are more prone to harm than others
In human rights law the concept of vulnerability, is often used in another sense, to pinpoint that some people are more prone to harm than others, and measures of special protection are necessary to ensure the realisation of their human rights
Summary
The concept of vulnerability has lately become an increasingly used notion in human rights law and policy. While it is difficult to say exactly when vulnerability entered the praxis of the regional adjudicatory organs, the judgment by the European Court – the court supervising the European Convention of Human Rights and Fundamental Freedoms (European Convention) and its additional protocols – in Chapman v the United Kingdom (2001) is often regarded as a landmark case in the European context.[10] In Chapman the European Court emphasised the vulnerable position of the Roma and held that special consideration had to be paid to their needs and lifestyle.[11] Even though the European Convention does not contain an explicit reference to vulnerability, the European Court since Chapman has recognised several other groups as vulnerable and further elaborated the legal relevance of such findings. As regards the African Commission, the concept of vulnerability appears from time to time in some 100 communications on which the Commission has given a decision since its establishment in 1987, with some early references found as early as in 1999 to 2003.18 From
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