CYIL Vol. 7, 2016
VERONIKA BÍLKOVÁ CYIL 7 ȍ2016Ȏ can come in many forms (physical, mental, social, etc.). As Neal noted, “vulnerability speaks to our universal capacity for suffering” . 5 It is by no means coincidental that the word vulnerable comes from the Latin vulnus which stands for wound. We all can be wounded and, hence, we all are vulnerable. That is why we need human rights in the first place. At the same time, individuals differ from each other. Everyone has his or her dreams, projects, goals or fears. Everyone also, as Peroni and Timmer put it, “experiences vulnerability uniquely” . 6 The way in which people endure suffering, the likelihood they will be exposed to it as well as what constitutes suffering for them differ, depending on the personality of each individual. We can thus speak about particular vulnerability which comes as the second form of vulnerability. Thirdly, the concept of vulnerability is often invoked with respect to special groups as group-based vulnerability. When scholars and courts refer to vulnerable persons, they usually have this form of vulnerability in mind. It is not completely clear what makes a group vulnerable or – to use the term employed in the case-law of the European Court of Human Rights (hereafter the ECtHR) – “particularly vulnerable” . 7 Peroni and Timmer suggest that the main factors are the social context, in which certain people are portrayed as members of a homogeneous group endowed with certain, usually rather negative, characteristics; and bad consequences (harm) that stem from such a stereotyped portraying for those deemed to belong to the group. 8 According to Fraser, harm can consist either of misrecognition, when (alleged) members of the (alleged) group are seen “as less than full partners in social interaction” ; 9 or of maldistribution, when “some actors lack the necessary resources to interact with others as peers” . 10 In the two cases, people are exposed to prejudice and stigmatization that might go back to history, and that is what makes them vulnerable. The identity of the group is always, to a bigger or lesser extent, socially constructed. Grear and Fineman both show that the group construction typically takes place against the background of and in opposition to the liberal archetype of a self-sufficient, independent and autonomous individual (i.e. white, rich, healthy, heterosexual male). 11 This archetype lies in the foundations of international human rights law itself. Those who do not embody it are not only deemed somehow deficient socially. They may also find themselves de jure or de facto excluded from the protection of 5 NEAL, Mary, “Not Gods but Animals”: Human Dignity and Vulnerable Subjecthood, Liverpool Law Review, Vol. 33, 2012, pp. 186-187. 6 PERONI, Lourdes, TIMMER, Alexandra, supra note 4 , p. 1059. 7 See ECtHR, Alajos Kiss v. Hungary, App. No. 38832/06, 20 May 2010, par. 42; and Kiyutin v. Russia, App. No. 2700/10, 10 March 2011, par. 74. 8 PERONI, Lourdes, TIMMER, Alexandra, supra note 4 , pp. 1064-1065. 9 FRASER, Nancy, Rethinking Recognition, New Left Review, Vol. 3, 2000, p. 113. 10 Ibid., p. 116. 11 GREAR, Anna, Redirecting Human Rights Facing the Challenge of Corporate Legal Humanity, Palgrave, 2010; FINEMAN, Martha Albertson, The Vulnerable Subject: Anchoring Equality in the Human Condition, Yale Journal of Law and Feminism, Vol. 20, 2008, pp. 1-23.
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