Furusho, Carolina Yoko; (2016) UNCOVERING THE HUMAN RIGHTS OF THE VULNERABLE SUBJECT AND CORRELATED STATE DUTIES UNDER LIBERALISM. UCL Journal of Law and Jurisprudence , 5 (1) , Article 7. 10.14324/111.2052-1871.067.

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Abstract

Vulnerability is an emerging notion that has contributed to refine judgments made by regional human rights courts and thereby increase State accountability. Similarly, recent developments in the vulnerability theory pose interesting challenges to the core premises underlying liberalism and especially the notion of legal subjectivity, an arguably inaccurate portrayal of the real-life individual. Moreover, the vulnerability theory suggests a promising intertwining with the theoretical framework underpinning human rights. In this paper, I advocate for a paradigm shift from the traditional legal subject to the vulnerable subject in the liberal human rights order. To support my case, I argue that vulnerability’s ethical-normative implications for the realm of human rights are twofold. First, vulnerability consists of an alternative conceptual underpinning for human rights theory, supplementing the so-called capabilities approach to human rights. Second, it can be used as a conceptual device for human rights adjudication by shedding light on how to better delineate the scope of State duties. I aim to demonstrate how vulnerability highlights the importance of ensuring the equality of opportunities and capabilities of individuals under the State’s jurisdiction, widening State responsibility to encompass social conditions which allow vulnerability to be mitigated and human agency to flourish.

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