The Selective Framing of 'Vulnerability' in the European and the Inter-American Human Rights Courts: a Socio-Legal Analysis of Juridical Praxis

Previous research has underscored the emergence of 'vulnerable groups' in the case-law of the European Court of Human Rights (Timmer and Peroni 2013) and its Inter-American counterpart (Beloff and Clerico 2014), as well as its ethical and normative implications. This thesis argues that the processes by which 'vulnerable' applicants are recognised, shaped and regulated within the legal discourse of these human rights courts entail the selective framing of 'vulnerability'. To do so, the thesis critically examines selected court rulings and 33 qualitative interviews which I conducted with judges and lawyers who practice in these regional judicial systems. My empirical analysis maps how interviewees justify the legal practice of framing certain applicants as vulnerable and not others. Based on my findings, the thesis posits that legal practitioners do not simply create categories of 'vulnerable groups', but they engage in relational processes whereby vulnerability is produced and mobilised in between and across bodies. I further examine the consequences of selectively framing vulnerable groups, particularly how distinct human rights duties are ascribed to States in response to the perceived vulnerability of certain alleged victims. Drawing on interdisciplinary feminist theories on vulnerability in law, ethics, philosophy and politics (Butler 2016, Mackenzie, Dodds and Rogers 2013, Gilson 2014, Fineman 2008), the thesis contributes to existing literature by adding an empirically grounded critique of how human rights courts discursively and juridically shape the 'vulnerable other' and the implications thereof. Focusing on the postcolonial dynamics of migration, gender and race, I contend that human rights courts' 'frames of recognition' (Butler 2009) abide by modes of relationality whereby certain kinds of vulnerability become more salient than others. I argue that applicants labelled as vulnerable are selectively recognised, engendering an uneven politics of inclusion which raises social justice and equality concerns. The thesis further traces how vulnerability as a juridical phenomenon can emerge intersubjectively between legal practitioners and presumed victims whose human rights are systematically and disproportionately violated in contexts of structural precarity, violence and oppression.