Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR

Morris, Katie (2023) Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR. Human Rights Law Review, 23 (4): ngad028. ISSN 1461-7781

Abstract

Vulnerability analysis serves a distinct purpose within adjudication of Article 3 of the European Convention of Human Rights (’ECHR’), in that it has been used by the European Court of Human Rights (‘ECtHR’ or ‘the Court’) to lower the threshold for a finding of ill-treatment from which positive obligations relating to socioeconomic rights have arisen. However, the group-based notion of vulnerability invoked by the Court is extremely limited, producing minimal protection from deprivation whilst equally paternalizing and essentializing the populations it deems vulnerable. In light of these failings, this article proposes a new element to be incorporated within the Court’s vulnerability analysis which can deliver greater protection of socioeconomic rights via Article 3: the political theory of care. By highlighting care’s potential to transform the concepts of vulnerability and state responsibility whilst empowering the care-receiver, it argues that care can overcome the limitations of the Court’s current approach as a means of targeting destitution.