Vulnerability as a normative argument for accommodating “justice” within the AFSJ

• Date: 01 November 2019
• Published date: 01 November 2019
• Author: Francesca Ippolito
• DOI: http://doi.org/10.1111/eulj.12350

ORIGINAL MANUSCRIPT

Vulnerability as a normative argument for

accommodating “justice”within the AFSJ

Francesca Ippolito

*

Abstract

Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained

momentum in international human rights law, in particular in the European contextof the European

Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction

of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive

“vulnerabilisation”of EU law. This article intends in the first place to outline such a problematic

notion and then to highlight the normative effects of vulnerability. In particular, this article will put

forward the argument that such notion could serve to revamp the profile of “justice”of the AFSJ,

which has been neglected so far, calling for the development of a more sophisticated ethics of State

duties.

1|INTRODUCTION

Vulnerability as a general concept has been applied in social and environmental sciences to indicate the

defencelessness experienced by individuals and groups vis-à-vis the impact of a traumatic socio-economic event

and the means used to cope with the impact of such an event.

1

Further, vulnerability may be determined by

the likelihood of suffering harm, injury or misfortune,

2

the ability and/or means to protect oneself”,

3

to

withstand the consequences of the harm—because of biological and emotional dimensions, dangers within the

surrounding environment and precariousness of personal circumstances

4

—and the ability to recover from

such harm.

From an opposite perspective, according to one legal philosophy model, individuals are, instead, constantly

exposed to potential harm (whether intentional or accidental), to the risks of fluctuating circumstances (due to

rearrangements in society or merely because of the changes that come with age) or to the prospective of

depending on third parties (asa result of innate or acquired disease or disability). Therefore, ‘vulnerability’

*

University of Cagliari, Italy.

1

See M.G.Watts and H.G.Bohle, ‘The Space of Vulnerability: The Causal Structure of Hunger and Famine’(1993) 17(1)Progress in Human Geography,43–67.

See also R.E.Kasperson and J.X.Kasperson, Regions at Risk: UNU Studies on Critical Environmental Regions (United Nations University Press, 1995), 2.

2

R.E. Goodin, Protecting the Vulnerable (University of Chicago Press, 1985), 110.

3

D.Schroder and E.Gefenas, ‘Vulnerability Too Vague and Too Broad’(2009) 19Cambridge Quarterly of Healthcare Ethics, 113,117.

4

B.S. Turner, Vulnerability and Human Rights (Pennsylvania University Press, 2006), 26–29; and J.Herring, Vulnerable Adults and the Law (Oxford University

Press, 2015), 245(focusing on the situational risk of harm).

Received: 22 July 2018 Revised: 26 September 2019 Accepted: 17 October 2019

DOI: 10.1111/eulj.12350

Eur Law J. 2019;1–17. wileyonlinelibrary.com/journal/eulj © 2019 John Wiley& Sons Ltd. 1

becomes ‘a universal, inevitable, enduring aspect of the human condition’;

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an attribute inherent in human

nature. Vulnerability has the constitutive element of universality, that is being a condition shared by all human

beings, complemented by constancy, as vulnerability should be “understood as state of constant possibility of

harm”that “cannot be hidden”; complexity –because “it can manifest itself in multiple forms”,

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and particular-

ity.

7

As to the latter, Fineman highlights our embodiment which “carries the ever present possibility of harm,

injury and misfortune from mildly adverse to catastrophically devastating events”.

8

In doing so, Fineman calls

for a reconsideration of an otherwise neglected primary component of man and offers an alternative to the

strict and formal concept of equal protection under the law. She calls for a discourse around reform in law and

politics to attain social equality between citizens and to orient the State's policy and obligations in the right

direction.

Normatively, international human rights jurisprudence has decisively embraced a vulnerability language,

beyond the traditional field of minority protection.

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But also within the European Union, we witness a progres-

sive “vulnerabilisation”: the impact of EU law on the legal situation of vulnerable individuals was considerably

broadened by the introduction of competences in the Area of Freedom, Security and Justice (AFSJ). Moreover,

the notion of vulnerability is both implicitly present in many domains falling within the scope of EU law which

directly affect the legal position of individuals and it appears in various EU legislative instruments with different

consequences. Title V of the TFEU has, in fact, identified different situations in which vulnerability is taken into

account.

This article intends to outline such notion of vulnerability in the sensitive heterogeneous virtual “pillars”

of the AFSJ. In particular, the first part of the analysis will highlight a lack of universal conceptualisation with

a preference for a collective dimension: grouping people with a similar range of vulnerabilities to given risks,

and a common need to accommodate “inclusive equality”.

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Secondly, it will show that such a collective

notion is extremely context-dependent, varying to a great extent on whether it concerns one or other virtual

blocks of the AFSJ (i.e.civil cooperation, criminal cooperation and immigration rationale); though not devoid of

common elements and features. The second part of the paper will consequently move from the descriptive

dimension of the notion to its normative effect. In that regard, it will dwell in depth on the potential

added value of such an argument, that is, outlining more precise duties of each person towards vulnerable

5

M. Fineman, ‘Equality, Autonomy, and the Vulnerable Subject in Law and Politics’, in M. Fineman and A. Grear (eds.), Vulnerability: Reflections on a New

Ethical Foundation for Law and Politics (Ashgate, 2013), 13–27; M. Fineman, ‘The Vulnerable Subject and the Responsive State’(2010–2011) 60 Emory Law

Journal, 251, 255.

6

According to Fineman, we could suffer simple physical harm, but that physical harm could, in itself, harm our relationships. Those relationships could be

with other people or with institutions.

7

Fineman theorises them in her article, ‘The Vulnerable Subject and the Responsive State’, above, n. 5.

8

M. Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’(2008) 20 Yale Journal of Law and Feminism, 1, 9. The same is

acknowledged by L. Peroni and A. Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’(2013)

11(4) International Journal of Constitutional Law, 1056–1085; and M. Neal, ‘Not Gods but Animals: Human Dignity and Vulnerable Subjecthood’(2012)

23(3) Liverpool Law Review, 177–200.

9

See A.R. Chapman and B. Carbonetti, ‘Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on

Economic, Social and Cultural Rights’(2011) 33(3) Human Rights Quarterly, 682–732, on the approaches of the subject matter taken by the CESCR;

A.E. Morawa, ‘Vulnerability as a Concept of International Human Rights Law’(2003) 6(2) Journal of International Relations and Development, 139–155,

proposing vulnerability as a concept in international human rights law, pointing out a number of instances of inequality and examples of how international

monitoring bodies identified “vulnerable”groups in a non-exhaustive fashion; Peroni and Timmer, above, n. 8, making a thorough analysis of the ECtHR's

case law on vulnerability—these authors elaborate on various meanings of vulnerability so that it can be used as a heuristic tool to better understand

equality and address the question of whether “human rights [are] so construed as to protect the most vulnerablepeople”; A.Timmer, “A Quiet Revolution:

Vulnerability in the European Court of Human Rights,”in M.A. Fineman and A. Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and

Politics (Ashgate, 2013), 147–170; I. Truscan, ‘The Notion of Vulnerable Groups in International Human Rights Law’(PhDthesis, Graduate Institute of

International and Development Studies, 2015), 255–310.

10

So, equality in the sense of sameness of treatment or a prohibition on discrimination, and the provision of adequate tools to resist or upset persistent

forms of subordination and disadvantage or exploitation. See, e.g., in that regard, M. Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce

Reform (University of Chicago Press, 1991), at 174.

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