POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book.

We learn of asylum seekers, Roma, children, the elderly, the poor, national, sexual, religious, and language minorities, the disabled, prisoners, various victims, Union citizens, women, and so on and so forth. Each chapter of the book thoroughly discusses the law, in particular the case law, applicable to one set of persons. And Protecting Vulnerable Groups is more than the standard collection of hastily written articles which often casts doubt on edited volumes more generally. Some true gemstones wait to be discovered in these pages. Caroline Sawyer’s “The Unexpected Precariat”, for instance, stands out for discussing Union citizenship from the refreshing angle of fragility. Her article runs counter to most of the literature which tends to see Union citizenship as a firm and fast status. Given the new populism in Europe, Sawyer’s angle is highly topical. Or Tawhida Ahmed’s piece on the Roma, particularly commendable for seeing through the formalism and hypocrisy which mark the work of many legislatures at the national and the European levels regarding the Roma. Or Krista Nadakavukaren Schefer’s chapter on poverty. It discusses vulnerability and poverty from a variety of disciplinary perspectives. She is thereby able to illuminate the relevant law more brightly than other chapters.

So, the reader of Protecting Vulnerable Groups gets something that neither practitioners nor academics can afford to miss: an excellent overview and a deep discussion of various legal aspects of protection and empowerment of groups – … oops, now I used it, the term “group, despite my best intentions … Well, then, I might just as well discuss it. Here is the only major note of critique I would make of Protecting Vulnerable Groups. (Another minor note would concern Regulation 1408/71 on pp. 61-63: apart from the fact that is has been replaced by Regulation 883/2004, I also find the discussion flawed.) Somehow one does not feel comfortable with the way the book structurally discusses the vulnerable in a group perspective. In the book, one vulnerable group is examined per chapter; each chapter is written by one author. Part of the concern that arises is that certain groups could not be or at least would resist being collectively labelled as vulnerable. Obviously, the editors and authors were aware of this, as the introduction to the chapter on “European Protection for Women”, written by Francette Fines, clearly shows. Yet the label “vulnerable group” somehow sticks throughout the book, although at least an additional characteristic seems necessary to render a member of a group vulnerable, as in the cases of disabled prisoners, poor refugees, orphan children, etc. The tag “group” draws attention away from this additional layer of complexity and weakens vulnerability as a concept and its potential dimensions, including overlapping and compounding characteristics – see Hector Salamanca/Don Gately above. What is more, the one author per chapter–approach feeds into this concern. Quite a few authors limit the role of vulnerability in their chapters to a few words in introduction and conclusion and then they go on to discuss the “group” concerned in a disciplinary, introverted way. (Not all chapters are limited in that respect; the chapters on the Roma or on poverty, among others, do better.) While this is a common problem with edited volumes more generally, it is certainly a pity here, for the idea of vulnerability – it can only be repeated – would have much potential, while it would also create certain risks – which would make it ideal for an overarching discussion.

Allow me to add a further thought to make this somewhat clearer. Let us consider the antagonist of the vulnerable: the invulnerable. Are the invulnerable simply the powerful, the secure? How would this square with the fact that most of us feel vulnerable in one way, but at the same time powerful and secure in other ways? What does this in turn mean for the group dimension? And is not encasing the invulnerable – the powerful, the rich, the non-Roma, etc. – quite simply the task of the constitutional state in general, as in fact the inverse, protecting the vulnerable, is also the task of the state? What then does vulnerability as a concept add to the general notion of the state? Or is it just a tool, a receptacle which the courts use to reinforce the states’ obligations in specific situations? Does this explain why it does (not) cover the sick, drug addicts, weak competitors in the market, cyclists or pedestrians – or some university students who see a lack of “safe spaces”[1] protecting them on US campuses?

Arguably, answers to such questions should not be sought in Protecting Vulnerable Groups in the first place, since it is a book on the (case) law; other, i. e. sociological, economic, etc. books, many of which are cited in Protecting Vulnerable Groups, are better suited to address these overarching concerns. But then again, a few more thoughts in this regard in Protecting Vulnerable Groups would not have done harm. To be clear though, my rather lengthy note of structural criticism should by no means distract from the overall quality of the book and the contributions in it. The book brings together a wide variety of quality perspectives and offers deep thoughts on a fresh notion. Thus it is a welcome contribution to scholarship – one that no lawyer interested in European social and constitutional law can afford to miss.

By way of conclusion, let us go back to where we started. (The reader hopefully forgives these shameless references to pop culture – this is a blog entry after all!) Hector Salamanca, the formerly powerful drug baron, turned out not to be that vulnerable in the end. With a little help from a frenemy, he managed to finish off his arch enemy, though it was his final deed. Don Gately, too, is less vulnerable than circumstances might indicate. He ultimately copes with the pain without recourse to opioids, or so it seems at least. The notion of vulnerability, it turns out, is not just complex. It is also relative.

[1] See <http://time.com/4141125/yale-protests-free-speech/> and <http://www.economist.com/news/leaders/21678223-obsession-safe-spaces-not-just-bad-education-it-also-diminishes-worthwhile-campus>.