Judge-Imposed Standards of Solidarity vis-à-vis Vulnerable (Groups of)
Individuals. A Critique of the Approach of the ECtHR’s Grand Chamber
by Vassilis P. Tzevelekos (University of Liverpool) & Dimitrios Kagiaros (University of
Exeter)
Solidarity has no concrete legal content or shape, but it is neither a merely moral aspiration that is entirely deprived of legal significance. It is more often implied than explicitly named, but it is present when it is associated with other (legal) concepts. It often nourishes them and fertilises the legal effects they produce. In our paper we explore two key concepts, namely vulnerability and protection, that are silently but directly connected with solidarity. Having explored (in the context of a broader project) the legal effects of ‘vulnerability’ in the full body of the case law of the Grand Chamber of the European Court of Human Rights (ECtHR), we observed that, by assigning vulnerable status to certain groups, such as migrants, detained persons, individuals with disabilities, and minors, the ECtHR has been able to increase the scope of positive obligations of contracting parties, to relax the application of admissibility criteria, or to determine whether the negative dimension of a right has been violated. Unlike the other two types of obligations (i.e. procedural/admissibility and negative), positive obligations (falling under the concepts of protection -as opposed to respect or fulfilment- and due diligence) entail an economic cost. In essence, European Judges decide that public money shall be used for solidarity purposes and as a means to protect vulnerable people. For instance, the ECtHR has required states to provide asylum-seekers with a minimum level of socioeconomic protection (e.g. shelter) during the time their asylum request is being processed in recognition of their status as a vulnerable group. While the ECtHR does not explicitly refer to solidarity as the basis for its findings in such cases, we argue that there is a link between vulnerability and solidarity.
This raises two key questions which our paper aims to address. Firstly, does the ECtHR’s reliance on the applicant’s vulnerability generate a human rights obligation on states to implement ‘redistributive’ policies that we would associate with notions of solidarity? Secondly, and relatedly, does the ECtHR have the legitimacy to generate such obligations, that is to say, to impose certain standards of solidarity within a given legal order and the demos/society that form it? More specifically, are vulnerability and the ideals of solidarity sufficient (normative) justifications to allow the ECtHR to introduce such duties?
As to the first question, our paper argues that the ECtHR in this line of judgments seems to be subscribing to an approach that requires states/societies to prioritise the needs of the most vulnerable. We argue that this approach -which has clear links to solidarity- requires the (re)allocation of resources to support the socioeconomic needs of a particularly disadvantaged group (asylum-seekers) on the basis that they are wholly reliant on state support for their subsistence. As far as the second question is concerned, we express some scepticism as to the authority of courts to create obligations of solidarity (by means of the concept/criterion of vulnerability). We argue that this approach represents a departure from the ECtHR’s usual approach to socioeconomic claims.
Admittedly, in this line of cases, the Court is particularly cautious to avoid creating onerous socioeconomic obligations on the member states through vulnerability analysis by limiting its effect only to specific groups whose circumstances are dire. While the approach of the Court can be commended for its humanitarian approach, we argue that nature of the duty to protect (for solidarity purposes) in international law is an obligation of means, not of result. This has important repercussions for the competence of the Court to generate socioeconomic protection under the ECHR, but also regarding the limits of the obligation and the actual capacity of states to demonstrate solidarity vis-à-vis vulnerable people.
This raises two key questions which our paper aims to address. Firstly, does the ECtHR’s reliance on the applicant’s vulnerability generate a human rights obligation on states to implement ‘redistributive’ policies that we would associate with notions of solidarity? Secondly, and relatedly, does the ECtHR have the legitimacy to generate such obligations, that is to say, to impose certain standards of solidarity within a given legal order and the demos/society that form it? More specifically, are vulnerability and the ideals of solidarity sufficient (normative) justifications to allow the ECtHR to introduce such duties?
As to the first question, our paper argues that the ECtHR in this line of judgments seems to be subscribing to an approach that requires states/societies to prioritise the needs of the most vulnerable. We argue that this approach -which has clear links to solidarity- requires the (re)allocation of resources to support the socioeconomic needs of a particularly disadvantaged group (asylum-seekers) on the basis that they are wholly reliant on state support for their subsistence. As far as the second question is concerned, we express some scepticism as to the authority of courts to create obligations of solidarity (by means of the concept/criterion of vulnerability). We argue that this approach represents a departure from the ECtHR’s usual approach to socioeconomic claims.
Admittedly, in this line of cases, the Court is particularly cautious to avoid creating onerous socioeconomic obligations on the member states through vulnerability analysis by limiting its effect only to specific groups whose circumstances are dire. While the approach of the Court can be commended for its humanitarian approach, we argue that nature of the duty to protect (for solidarity purposes) in international law is an obligation of means, not of result. This has important repercussions for the competence of the Court to generate socioeconomic protection under the ECHR, but also regarding the limits of the obligation and the actual capacity of states to demonstrate solidarity vis-à-vis vulnerable people.
