Protecting Vulnerable Groups: The European Human Rights Framework (Modern Studies in European Law Book 51)

Within regional and universal international legal instruments, the concept of vulnerability has not been definitively interpreted. This book analyzes the work of both the European Union and the Council of Europe in ascertaining a clear framework or a set of criteria suitable to determine those groups which should be considered vulnerable and disadvantaged, along with exploring the measures required to protect their human rights. The book examines the different methods used to determine the levels of protection offered by the two European systems. These legal instruments - the Convention and the case law of the Strasbourg Court, the monitoring mechanisms of the Council of Europe, EU law, and the case law of the European Court of Justice - are discussed in order to determine whether they enhance the protection of vulnerable groups and expand the protection of their rights, or, alternatively, whether they are mainly used to fill in relatively minor gaps or occasional lapses in national rights guarantees. The analysis also shows the extent to which these two European systems provide analogous, or indeed divergent, standards and how any such divergence might be problematic in light of the EU accession to the ECHR. [Subject: European Law, Human Rights Law] Cover Half-title Title Copyright Contents About the Contributors 1. Introduction I. THE NOTION OF VULNERABILITY II. VULNERABILITY IN EUROPEAN LAW I. INHERENT VULNERABILITY 2. (De)Constructing Children’s Vulnerability under European Law I. INTRODUCTION: AGE AS AN ‘INHERENT’ VULNERABILITY II. CHILDREN’S VULNERABILITY AS DEPENDENCY ON FAMILY: THE CONTOURS OF THE BASIS FOR DERIVATIVE RIGHTS IN EUROPEAN UNION (EU) LAW III. THE CHILDREN’S FAMILY DEPENDENCY AND THE EUROPEAN COURT OF HUMAN RIGHTS IV. CHILDREN’S VULNERABILITY AS LIMITED AUTONOMY AND PROGRESSIVE DEVELOPMENT V. THE EFFECTS OF CHILDREN’S VULNERABILITY: A ‘SUBSIDIARY’ NOTION FOR TRANSCENDING FORMAL EQUALITY VI. THE OTHER SIDE OF VULNERABILITY’S EFFECTS: PROTECTION DUTIES AS POSITIVE OBLIGATIONS VII. POSITIVE OBLIGATIONS DIRECTED AT AGGRAVATED FORMS OF CHILDREN’S VULNERABILITY VIII. CLOSING REMARKS 3. Reshaping EU Old Age Law in the Light of the Normative Standards in International Human Rights Law in Relation to Older Persons I. INTRODUCTION II. BRIEF SURVEY OF HOW THE ELDERLY’S RIGHTS HAVE EVOLVED AT THE COUNCIL OF EUROPE AND EU LEVELS III. THE NORMATIVE STANDARDS IN INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO OLDER PERSONS IV. THE STATUS OF THE NORMATIVE STANDARDS IN INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO OLDER PERSONS AT THE EU CONSTITUTIONAL LEVEL V. INTEGRATING THE NORMATIVE STANDARDS IN INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO OLDER PERSONS INTO EU LEGISLATION VI. THE INEXPERIENCE OF THE EUROPEAN COURT OF JUSTICE IN DEALING WITH THE NORMATIVE STANDARDS IN INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO OLDER PERSONS VII. DEVELOPING MORE NORMATIVE STANDARDS IN INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO THE OLDER PERSONS-BASED APPROACH TO EU LAW AND POLICY-MAKING VIII. FINAL REMARKS 4. Disability as a Form of Vulnerability under EU and CoE law: Embracing the ‘Social Model’? I. INTRODUCTION II. DISABLED PERSONS AS A VULNERABLE GROUP UNDER THE ECHR III. DISABLED PERSONS AS A PARTICULARLY VULNERABLE GROUP UNDER EU LAW IV. CONCLUSION 5. European Protection for Women I. THE PREVENTION OF VIOLENCE AGAINST WOMEN II. THE FIGHT AGAINST DISCRIMINATION TOWARDS WOMEN II. MINORITIES 6. European Law and Regional or Minority Languages: Cultural Diversity and the Fight against Linguistic Vulnerability I. DIFFICULTIES IN DEFINING THE FIELD OF APPLICATION: LANGUAGES AND LANGUAGE SPEAKERS II. A RANGE OF PROTECTIVE MEASURES: DEROGATION, PROMOTION, PROTECTION 7. The Many Vulnerabilities of the Roma and the European Legal Framework I. INTRODUCTION II. WHO ARE THE ROMA? AND IN WHAT WAYS ARE THEY ‘VULNERABLE’ IN EUROPE? III. THE PRESERVATION OF ROMA IDENTITY IV. SOCIAL EXCLUSION OF ROMA V. CONCLUSION 8. Indigenous Peoples’ Cultural Identity under EU Law and the ECHR: A Non-trade Interest or a Human Right? I. INTRODUCTION II. INDIGENOUS PEOPLES’ RIGHT TO CULTURAL IDENTITY AND INTERNATIONAL INSTRUMENTS OF PROTECTION III. ACCOMMODATING INDIGENOUS PEOPLES’ RIGHTS WITHIN THE EUROPEAN CONVENTION OF HUMAN RIGHTS IV. THE PLACE OF INDIGENOUS PEOPLES’ RIGHTS WITHIN THE EU FRAMEWORK V. CONCLUSIONS 9. The Protection of Religious Minorities in Europe: Strengths and Weaknesses I. INTRODUCTION II. RELIGIOUS MINORITIES AND THE EU III. RELIGIOUS MINORITIES AND THE COUNCIL OF EUROPE IV. CONCLUSION 10. The Protection of Sexual Minorities in European Law I. INTRODUCTION II. SEXUAL MINORITIES AS A VULNERABLE GROUP III. THE PROTECTIVE LEGAL FRAMEWORK IV. BACK TO BASICS: THE RECOGNITION OF SEXUAL ORIENTATION AND GENDER IDENTITY AS A KEY ASPECT OF AN INDIVIDUAL’S SELF V. DISCRIMINATION AT WORK: AN OPPORTUNITY FOR THE CJ TO TAKE THE LEAD IN THE PROTECTION OF SEXUAL MINORITIES VI. PROTECTION OF COUPLES: A MARRIAGE IN ANYTHING BUT NAME? VII. CONCLUSION III. NON-NATIONALS 11. The Unexpected Precariat I. STATELESSNESS AND THE PRECARIAT IN MODERN EUROPE II. THE RISE OF DE FACTO CITIZENSHIP IN EUROPE III. EUROPEAN UNION CITIZENSHIP AND THE BASES OF ENTITLEMENT IV. ALTERNATIVE STRUCTURES OF CITIZENSHIP RIGHTS: CITIZENS, MIGRANTS AND THE PRECARIAT V. FROM STRENGTH TO VULNERABILITY: THE FAULT LINES OF FREE MOVEMENT RIGHTS VI. PROSPECTS FOR THE FUTURE 12. General and Specific Vulnerability of Protection-Seekers in the EU: Is there an Adequate Response to their Needs? I. INTRODUCTION II. VULNERABLE APPLICANTS FOR INTERNATIONAL PROTECTION IN THE JURISPRUDENCE OF THE ECTHR III. TREATMENT OF PROTECTION-SEEKERS IN THE EUROPEAN UNION IV. CONCLUSIONS 13. Dealing with International Vulnerability: European Law and Climate-Induced Migrants I. INTRODUCTION II. THE EXISTENCE OF VULNERABILITY: CONTRIBUTION TO THE CONCEPTUALISATION OF CLIMATE-INDUCED MIGRANTS III. THE PARTIAL RESPONSES PROVIDED BY EUROPEAN LAW IV. CONCLUSION 14. The Protection of Vulnerable People and the Free Movement of Persons within the European Union: Two Worlds Apart? I. THE CITIZENS OF THE EUROPEAN UNION AS ALIENS II. FREE MOVEMENT FOR MANY, BUT NOT FOR ALL III. FREE MOVEMENT VS INTERNATIONAL PROTECTION IV. SECURITY OF THE WORKER’S RESIDENCE V. SECURITY OF THE LONE PARENT’S RESIDENCE VI. CONCLUDING REMARKS IV. VICTIMS OF ILLEGAL ACTS 15. The Place of the Victim in Europe’s Area of Criminal Justice I. INTRODUCTION II. VICTIMS’ RIGHTS IN EU CRIMINAL LAW—A TYPOLOGY III. THE PLACE OF THE VICTIM IN EUROPE’S AREA OF CRIMINAL JUSTICE: CONSTITUTIONAL IMPLICATIONS IV. THE IMPACT OF EU LAW ON VICTIMS’ RIGHTS ON NATIONAL CRIMINAL JUSTICE SYSTEMS V. THE IMPACT OF VICTIMS’ RIGHTS ON JUSTICE IN EUROPE VI. CONCLUSION 16. Responding to the Plight of Victims of Terrorism: European Approaches and Dilemmas I. INTRODUCTION II. TERRORISM: CHANGING FACE OF VICTIMHOOD III. BALANCING TERRORISM PREVENTION WITH VICTIMS’ RIGHTS IV. REPARATION: AN INTERNATIONAL LAW PERSPECTIVE V. CONCLUSION 17. Victims of Trafficking and Smuggling of Migrants in International and European Law I. NOTIONS OF ‘TRAFFICKING’ AND ‘SMUGGLING’ II. CONVENTIONAL PROTECTION OF VICTIMS IN OTHER NORMS III. MARITIME MIGRANTS PROTECTION: SHIPS WITHOUT A FLAG IV. MARITIME MIGRANTS PROTECTION: SHIPS WITH A FLAG V. PRACTICAL INEFFECTIVENESS OF VICTIM PROTECTION VI. CONCLUSION V. CIRCUMSTANTIAL VULNERABILITY 18. The Effective Supervision of European Prison Conditions I. INTRODUCTION II. PRISON CONDITIONS AND INTERNATIONAL HUMAN RIGHTS LAW III. ARTICLE 3 OF THE EUROPEAN CONVENTION: THE WORK OF THE EUROPEAN COURT OF HUMAN RIGHTS IV. THE EUROPEAN COURT’S CURRENT APPROACH TO ARTICLE 3 AND PRISON CONDITIONS V. THE EUROPEAN COURT, ARTICLE 3 AND VULNERABLE PRISONERS VI. CRITICAL OVERVIEW ON JUDICIAL PROTECTION VII. EUROPEAN PRISON RULES AND RECENT EU INITIATIVES VIII. CONCLUSIONS 19. The Ultimate Social (or is it Economic?) Vulnerability: Poverty in European Law I. INTRODUCTION II. POVERTY AND SOCIAL VULNERABILITY III. POVERTY PROTECTIONS IN EUROPEAN LEGAL INSTRUMENTS IV. WHICH LEGAL APPROACH TO POVERTY? V. CONCLUSION: LEARNING FROM THE VULNERABILITY PERSPECTIVE 20. Irregular Migrants in Europe: Deprivation of Status as a Type of State-Imposed Vulnerability I. INTRODUCTION II. IRREGULAR MIGRANTS AND THE COUNCIL OF EUROPE III. IRREGULAR MIGRATION IN THE EUROPEAN UNION IV. CONCLUDING REMARKS Index ÍNdice: 1. Introduction / Francesca Ippolito and Sara Iglesias Sanchez -- I. INHERENT VULNERABILITY2. (De)Constructing Children's Vulnerability under European Law / Francesca Ippolito - 3. Reshaping EU Old Age Law in the Light of the Normative Standards in International Human Rights Law in Relation to Older Persons / Francesco Seatzu - 4. Disability as a Form of Vulnerability under EU and CoE law: Embracing the `Social Model'? / Anja Wiesbrock - 5. European Protection for Women / Francette Fines II. MINORITIES6. European Law and Regional or Minority Languages: Cultural Diversity and the Fight against Linguistic Vulnerability / Olivier Dubos and Victor Guset- 7. The Many Vulnerabilities of the Roma and the European Legal Framework / Tawhida Ahmed - 8. Indigenous Peoples' Cultural Identity under EU Law and the ECHR: A Non-trade Interest or a Human Right? / Julinda Beqiraj 9. The Protection of Religious Minorities in Europe: Strengths and Weaknesses / Erica Howard - 10. The Protection of Sexual Minorities in European Law / Peggy Ducoulombier- III. NON-NATIONALS - 11. The Unexpected Precariat / - Caroline Sawyer - 12. General and Specific Vulnerability of Protection-Seekers in the EU: Is there an Adequate Response to their Needs? / Ulrike Brandl and Philip Czech - 13. Dealing with International Vulnerability: European Law and Climate-Induced Migrants / Catherine-Amelie Chassin - 14. The Protection of Vulnerable People and the Free Movement of Persons within the European Union: Two Worlds Apart? / Alessandra Lang - IV. VICTIMS OF ILLEGAL ACTS15. The Place of the Victim in Europe's Area of Criminal JusticeValsamis Mitsilegas 16. Responding to the Plight of Victims of Terrorism: European Approaches and DilemmasJessica Almqvist 17. Victims of Trafficking and Smuggling of Migrants in International and European LawJacobo Rios Rodriguez V. CIRCUMSTANTIAL VULNERABILITY18. The Effective Supervision of European Prison Conditions / Steve Foster - 19. The Ultimate Social (or is it Economic?) Vulnerability: Poverty in European Law / Krista Nadakavukaren Schefer - 20. Irregular Migrants in Europe: Deprivation of Status as a Type of State-Imposed Vulnerability / Sara Iglesias Sanchez "The concept of vulnerability has not been unequivocally interpreted either in regional or in universal international legal instruments. This book analyses the work of the EU and the Council of Europe in ascertaining a clear framework or a set of criteria suitable to determine those who should be considered vulnerable and disadvantaged. It also explores the measures required to protect their human rights. Key questions can be answered by analysing the different methods used to determine the levels of protection offered by the two European systems. These questions include whether the Convention and the case law of the Strasbourg Court, the monitoring mechanisms of the Council of Europe, EU law and the case law of the European Court of Justice enhance the protection of vulnerable groups and expand the protection of their rights, or, alternatively, whether they are mainly used to fill in relatively minor gaps or occasional lapses in national rights guarantees. The analysis also shows the extent to which these two European systems provide analogous, or indeed divergent, standards and how any such divergence might be problematic in light of the EU accession to the European Convention on Human Rights."