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Vulnerable groups and substantive equality in the Strasbourg Court

  • School: Nottingham Law School
  • Study mode(s): Full-time / Part-time
  • Starting: 2023
  • Funding: UK student / EU student (non-UK) / International student (non-EU) / Fully-funded

Overview

NTU's Fully-funded PhD Studentship Scheme 2023

Project ID: NLS3

Since the cases of Chapman and Connors v United Kingdom, a line of jurisprudence started to emerge in the European Court of Human Rights recognising that special consideration should be given to vulnerable groups. This designation has typically led to a narrowed margin of appreciation with the potential of procedural adaptations, such as reversal of the burden of proof (see DH v Czech Republic).

Yet there are still significant challenges facing applicants alleging discriminatory treatment under Article 14 and the free-standing Protocol 12 has not been adopted by the majority of Council of Europe states.

Notably the consideration of the state’s objective justification for discriminatory treatment applies whether indirect or direct discrimination is present, unlike the approach in other jurisdictions. The meaning of vulnerability in Strasbourg case law lacks theoretical justification and the impact of the designation lacks predictability and consistency. More fundamentally, there are concerns that it undermines substantive equality as the applicant is stripped of individual autonomy in an approach which critics describe as stigmatising and paternalistic (So Yeon Kim 2021, Peroni and Timmer)

The thesis will examine the key tenets of vulnerability theory as advanced by Feminist legal scholars such as Martha Fineman, and critically consider the Court’s jurisprudence with reference to this articulation.

The relationship between theory and judicial application will be explored through Strasbourg case analysis, possibly adopting a comparative jurisdictional analysis. The impact of a vulnerability designation on the margin of appreciation will need to be considered in line with recent revisions to the Convention arising from Protocol 15.

The thesis will adopt a legal-doctrinal methodology, but applicants may consider a comparative approach with clear justification. It is envisaged that there will be some comparison with alternative European rights instruments, such as the EU Charter and Framework Convention on National Minorities. The applicant may prefer to focus on one suspect ground or ‘vulnerable’ group, such as the Roma, as illustrating the contradictions and tensions in the vulnerability approach. The thesis will be expected to address whether the vulnerability approach is capable of respecting and advancing the rights of members of minorities in Europe. A theoretical position on the protection of rights of minorities will be developed.

Entry qualifications

For the eligibility criteria, visit our studentship application page.

How to apply

To make an application, please visit our studentship application page.

Fees and funding

This is part of NTU's 2023 fully-funded PhD Studentship Scheme.

Guidance and support

Application guidance can be found on our studentship application page.

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