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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.