Vulnerabilisation: Between mainstreaming and human rights overreach

1. INTRODUCTION

Enduring societal problems, such as social marginalisation, inequality, and discrimination, are nowadays often addressed through the special protection of individuals and groups. Those eligible for special treatment have traditionally been given labels such as the ‘marginalised’, the ‘disadvantaged’ or the ‘discriminated’. Today, these groups are commonly subsumed under the concept ‘vulnerable’, even to the point where the vulnerability rhetoric is referred to as the new ‘lingua franca of global and international justice’. ¹ There appears to be widespread consensus that special or targeted measures are needed to overcome persisting injustices and ensure the universality of human rights.

Many scholars have, during the last decade, paid attention to the increased use of vulnerability argumentation in international law and politics, for example, in the case law of the European Court of Human Rights (ECtHR or Court) and the practice of the United Nations (UN) treaty bodies. ² The vulnerabilisation phenomenon takes place on many different fronts. ³ On the one hand, it is an outcome of the establishment of special protection regimes within human rights law − such as the 1989 Convention on the Rights of the Child and the 2006 Convention on the Rights of Persons with Disabilities (Disability Convention) − and of extending and specifying the scope of existing norms in respect of the vulnerable through interpretation. Both of these processes aim at ensuring that groups and individuals who traditionally have not seen their human rights fully realised would do so. In the human rights context, vulnerability is thus generally invoked to point to protection gaps and to specify – or particularise – States’ obligations to respond to the specific protection needs of particular individuals or groups. ⁴ On the other hand, vulnerabilisation is taking place through an expanding sphere of international organisations and other actors, elevating the protection of vulnerable groups into an element of their policy-making. ⁵ Along with ‘social protection’ emerging as a central paradigm of global policy-making, the protection of vulnerable groups has simultaneously grown into one of its core embodiments. Vulnerabilisation, in other words, not only affects the application and interpretation of human rights law but is also mainstreamed beyond the framework of that particular legal regime.

The existing scholarship on vulnerabilisation has so far mainly focused on establishing this phenomenon by identifying various references to vulnerability in, for example, case law and instruments produced by international actors. Much of this scholarship points out that the merits of this development are in ensuring effective human rights protection for everyone. ⁶ The authors of this article acknowledge the many positive outcomes that the vulnerabilisation process has had. However, in a broader vulnerability discourse a more critical tone can also be identified, emphasising for example the patronising aspects of vulnerability reasoning. ⁷ A growing number of scholars especially within social sciences are critical towards the vulnerabilisation trend, arguing that it may in fact be more part of the problem than a solution. ⁸ This criticism seems not to have entered the international legal discourse to any great extent so far. Importantly, the aim of this article is not to make a verdict on whether vulnerabilisation per se is good or bad, but rather to highlight how vulnerabilisation as a phenomenon can be ‘profoundly ambiguous in its effects’. ⁹ While acknowledging the value of a vulnerability approach in human rights law and beyond, it seeks to exemplify potential risks attached.

Vulnerabilisation, the article claims, can be used for various purposes. The article seeks to illustrate how the concept of vulnerability can enable selectivity. It posits that while vulnerabilisation as a phenomenon often (at least at the level of rhetoric) aims at ensuring that everyone’s human rights are fulfilled, the prioritising function inherent in it can generate inequalities at the level of implementation. This can be the result of the diversification of actors identifying vulnerabilities and implementing protection, leading to a compartmentalisation of special protection. Undesirable outcomes may also arise from the blurred contours of the vulnerability narrative. By building on critical vulnerability discourse, the current article argues that the persuasiveness of the vulnerability concept should not ignore its inherent indeterminacy, and the consequent potential for its politicisation and instrumentalisation. ¹⁰ This article argues that the vulnerability narrative can eventually also bring with it a human rights devaluation by becoming a device for prioritisation and exclusion. ¹¹

The article posits that within human rights law and connected legal fields such as international refugee law, the ever-increasing vulnerabilisation has resulted in a situation where being found vulnerable has become a key to enjoying full protection. A common pattern of thought seems to be that, given the limited resources, we need to prioritise the protection of those most in need of it. This puts particularity as an element of human rights law in a new light as personhood no longer appears to be the sole basis for distributing human rights protection, as particular vulnerability emerges as an additional threshold. ¹² This seems to be a shared point of departure also within social protection policies of international organisations. With this, the question ‘whose vulnerability do we recognise?’ becomes central, ¹³ as does the question of whether this development – the expanding focus on special protection – entails a risk for a devaluation of the human rights project as a protective regime for all. There is, after all, a thin line between particularisation that aims at enhancing the universal enjoyment of rights, and a potential selectivity resulting from the prioritising of some individuals or groups over others.

Vulnerabilisation, it seems, conceals a dual logic. Vulnerability comes with the promise of enhanced protection. It is a tool for making human rights law truly universal. As far as vulnerabilisation supports and strengthens such universality, it can be regarded as an instance of successful mainstreaming. ¹⁴ But any process of mainstreaming has two sides to it, as mainstreaming also sets priorities and has effects on the rights of others. ¹⁵ The other side of the coin, then, is that mainstreaming vulnerability as the focal lens of protection always also constitutes particularisation of that protection. Particularisation concurs with vulnerabilisation when extending or enhancing protection to particular individuals or groups. But as a defining feature of vulnerabilisation, the inherent particularisation can also have unintended consequences. As the article illustrates, vulnerabilisation can therefore initiate processes that run counter to the promise of universality. The mainstreaming of human rights through vulnerabilisation can also run the risk of conceptual overreach, ‘a process of expansion or inflation’ in which the concept ‘absorbs ideas and demands that are foreign to it’. ¹⁶ It is this nexus that the present article seeks to exemplify. It does so by exemplifying instances of proliferation and identifying risks for devaluation – core concepts of the special issue this article is part of – as focal lenses of the analysis. With this approach, the article wishes to show that despite the strong case that can be made for the merits of the broad phenomenon of vulnerabilisation, ¹⁷ there are by now enough accumulated examples and analytical insights into different aspects of vulnerability reasoning to enable a synthesising critical discussion.

2. INCREASED ATTENTION TO SPECIAL PROTECTION IN INTERNATIONAL LAW AND POLITICS

In terms of treaty law, the international human rights regime has for long evolved mainly through special protection regimes – such as the 1951 Refugee Convention and its 1967 Protocol; the 1979 Convention on the Elimination of All Forms of Discrimination against Women; the 1989 Convention on the Rights of the Child; and the 2006 Disability Convention – adopted with a central goal to ensure that universal human rights are de facto available to all. Lately, the need to acknowledge vulnerabilities and to provide special protection has also increasingly been emphasised in the practice of various human rights bodies. ¹⁸ The institution with the most extensive case law on vulnerability and positive obligations is the ECtHR. In Tarakhel v. Switzerland, this Court for instance noted that the assessment of ill-treatment according to Article 3 of the European Convention on Human Rights (ECHR) is ‘relative’ and that in such evaluations the individual situation of the applicant is of relevance. The Court also emphasised that there is a requirement of special protection regarding asylum-seekers because they are a particularly disadvantaged and vulnerable population group, and that this requirement of special protection is especially important concerning child asylum-seekers because of their ‘extreme vulnerability.’ ¹⁹ Similar reasoning can be found in many other cases before the ECtHR. ²⁰

Human rights obligations incumbent on States in relation to vulnerable groups and individuals are also present in a number of general comments and concluding observations of human rights treaty monitoring bodies. ²¹ Amongst others, the Committee on Economic, Social and Cultural Rights (CESCR or Committee) regularly calls for the protection of the most vulnerable individuals and groups within societies. ²² For example, when considering grounds for discrimination, the Committee has attached importance to the fact that certain groups are ‘vulnerable and have suffered and continue to suffer marginalization’. ²³ Likewise, the Committee on the Rights of the Child (CRC) has noted how multiple discrimination ‘based on a combination of factors, i.e., indigenous girls with disabilities, children with disabilities living in rural areas and so on’ make children with disabilities ‘one of the most vulnerable groups of children’ and how this discrimination ‘increase[s] the vulnerability of certain groups’. ²⁴ Along the same lines, the Committee on the Elimination of Discrimination against Women (CEDAW) and the CRC have in their joint general recommendation on harmful practices emphasised how, for example, social exclusion and poverty increase girls’ and women’s ‘vulnerability to exploitation, harmful practices and other forms of gender-based violence’. They have further stressed State Parties’ ‘obligation to challenge and change patriarchal ideologies and structures that constrain women and girls from fully exercising their human rights and freedoms.’ ²⁵ Also the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has emphasised the obligation of State Parties to ‘identify vulnerable groups prone to abuse and take special measures to prevent violations from occurring’. ²⁶

Special attention given to vulnerable individuals and groups is also an important building block of the so-called human rights-based approach to development, a conceptual framework based on international human rights standards that guides the policies of many development actors since the early 2000s. ²⁷ Similarly, several mandates within the special procedures of the Human Rights Council are focused on particular groups, such as the mandates of the Special Rapporteur on the rights of persons with disabilities, the Special Rapporteur on the rights of indigenous peoples, and the Independent Expert on the enjoyment of all human rights by older persons. ²⁸ All in all, special protection is today an established part of modern human rights law.

In parallel, the emergence of social protection as a new paradigm in global social discourse is notable both at the domestic as well as the international level. ²⁹ As this paradigm underlines resilience and development in a long-term perspective, it comes with enhanced attention to vulnerabilities. ³⁰ Consequently, one of the few elements of social protection upon which there seems to be strong consensus is that social protection should be geared to poor and vulnerable individuals and groups in particular. ³¹ One of the more prominent expressions of the active push for elevating social protection to the global agenda are the Sustainable Development Goals with target 1.3 on ending poverty, which guides States to ‘[i]mplement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable’. ³²

An expression of the expanding social protection interest is the growing attention to vulnerabilities in social protection policies of international organisations. ³³ Out of organisations, the International Labour Organisation (ILO) has been at the forefront of promoting social protection, most notably through its 1952 flagship Social Security (Minimum Standards) Convention (No. 102) and the 2012 ILO Recommendation on Social Protection Floors (No. 202). ³⁴ In the 2012 ILO recommendation, social protection floors are defined as nationally prescribed sets of basic social security guarantees, aimed at preventing or alleviating poverty, vulnerability and social exclusion. ³⁵ In 2015, the CESCR endorsed the idea of social protection floors. ³⁶ More widespread international political support for the idea of social protection with a focus on the protection of vulnerable groups materialised in 2009 through the Social Protection Floor Initiative. This initiative – led by the ILO and the World Health Organization and joined by organisations such as the Organisation for Economic Co-operation and Development, UN Development Programme, World Bank, the International Monetary Fund (IMF), UN Refugee Agency and UN Children’s Fund (UNICEF) ³⁷ – set out to coordinate and improve the efficiency of the UN’s development efforts in the area of social protection, with one of the core aims being alleviation of vulnerability. ³⁸ One of the most recent, and certainly most long awaited, international organisations to engage in social protection is the IMF, which in 2019 adopted the Strategy for IMF Engagement on Social Spending. In this strategy, social spending is defined as social protection, health, and education spending, for the promotion of inclusive growth, addressing inequality and the protection of vulnerable groups. ³⁹

3. PROLIFERATION THROUGH VULNERABILITY-SENSITIVE READING OF RIGHTS

When discussing the ‘constant expansion of human rights’ and the rights of vulnerable groups, Freedman notes that ‘it swiftly became apparent that vulnerable or marginalised groups – initially women, but later to include many others – required specific promotion and protection of their rights’, that is, that general human rights instruments were not efficient enough in promoting the rights and interests of these groups even though they theoretically should have been so as they apply to everyone. ⁴⁰ The resulting special protection instruments do not create new human rights obligations for States, but rather specify or spell out the obligations that States have in relation to particular individuals and groups. This has been noted, among others, in relation to the Disability Convention: ‘While the Convention does not establish new human rights, it does set out with much greater clarity the obligations on States to promote, protect, and ensure the rights of persons with disabilities.’ ⁴¹ At the same time, as noted by Mégret regarding the same Convention, the special human rights treaties may enrich and modify the content of existing rights. ⁴² They may even give rise to new categories of rights that significantly expand existing rights, coming close to creating new rights, he argues. ⁴³ In a similar vein, Brems refers to emancipation rights as a ‘distinct category of human rights’, with reference to, for example, women’s rights, children’s rights, and LGBTI rights, which are ‘rights that are intended to correct a legacy of structural discrimination of specific groups and to provide members of such groups equal opportunities and equal enjoyment of their rights.’ ⁴⁴ As such, the special conventions may significantly expand understandings of the applicability of the pre-existing rights.

A changed understanding of the content and scope of various rights may also take place through interpretation, for example, when treaty-monitoring bodies identify positive State obligations. From a vulnerability perspective, it is noteworthy that in many cases the identification of positive State obligations has taken place in contexts involving vulnerable individuals or groups. One area, in which vulnerability argumentation has been used to shape human rights obligations relates to the right to housing, where different treaty-monitoring bodies have indicated that the State obligations are more comprehensive in relation to vulnerable groups and individuals. For example, the European Committee of Social Rights (ECSR) has held that in the case of the Roma, ‘equal treatment implies that Italy should take measures appropriate to Roma’s particular circumstances to safeguard their right to housing and prevent them, as a vulnerable group, from becoming homeless’. ⁴⁵ The Committee has further specified the positive obligations arising from this to include ‘measures specifically aimed at improving their housing conditions, including the possibility for an effective access to social housing’. ⁴⁶ Also, while the ECHR does not give rise to an obligation on State parties to provide housing, the ECtHR has held that ‘an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases’. ⁴⁷ Besides, by identifying positive obligations, the ECtHR praxis on vulnerability may also affect a State’s leeway of action in other ways. More specifically, the Court has held that ‘if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower, and it must have very weighty reasons for the restrictions in question’. ⁴⁸

While it may be argued that the specification of human rights through new instruments and case law does not as such establish new human rights, they may entail a proliferation of human rights in that matters previously approached as essentially political or domestic become viewed as matters of international human rights law. ⁴⁹ The declaration by Hillary Clinton at the UN World Conference on Women in Beijing in 1995 that ‘Women’s Rights are Human Rights’ ⁵⁰ for example epitomises the urge to acknowledge the need to increasingly view the treatment of women as a question of human rights law. A similar development is taking place within criminal law, an area that is traditionally viewed as an essentially domestic field of law where the international influences have been insignificant, but one which today is facing an increasing internationalisation (and in Europe, a Europeanisation). In this vein, as Heri discusses, human rights increasingly ‘shape’ or ‘inform’ State obligations in the field of criminal justice. This happens in particular though positive State obligations to criminalise, prevent, police, and prosecute with a view to protect the vulnerable that Heri refers to as the ‘coercive power of vulnerability’. ⁵¹ The same phenomenon is considered by Zimmermann, who on her part writes about ‘legislating for the vulnerable’ and special duties under the ECHR. ⁵² An example of such duties is present in M.C. v. Bulgaria (2003), which involved the alleged rape of a 14-year-old girl. In that case, the ECtHR noted that while States enjoy a wide margin of appreciation in the field of criminal justice in order to be able to take into account ‘perceptions of a cultural nature, local circumstances and traditional approaches’, they must provide effective deterrence against grave acts such as rape in particular in cases involving vulnerable individuals. ⁵³ Based on this, the Court held that the Bulgarian rape definition requiring proof of physical force and physical resistance did not meet the ‘contemporary standards and trends in that area’ anymore. ⁵⁴ Some more recent human rights conventions, such as the Council of Europe Convention on preventing and combating violence against women and domestic violence (2011 Istanbul Convention) contain extensive State obligations in the field of criminal justice for ‘the vulnerable’.

In other words, proliferation through vulnerabilisation can take the form of transforming previously domestic matters into questions of international human rights law. As a phenomenon, such proliferation is not unforeseen considering how human rights are to be interpreted. Based on the widely established interpretative principle, human rights should be interpreted considering their object and purpose, in a dynamic and evolutive manner for them to both effectively provide the protection they are designed for and to remain relevant within the ever-changing needs and contexts faced by societies and individuals. The ECtHR, for example, often underlines both the principle of effectiveness and the character of the ECHR as a living instrument to be interpreted ‘in the light of present-day conditions’. ⁵⁵ The need for such dynamism finds an explanation in the often quite general wording of the human rights treaties. References to, for example, all appropriate means and all necessary laws and measures imply by definition that to be effective and to meet the object and purpose of the human rights treaties, the operationalisation of rights must adapt to the context-specific protection needs of individuals. ⁵⁶ Vulnerabilisation serves, by its dynamic nature, as a necessary tool to this end, attaching attention to the heightened need for protection that individuals may have in different circumstances and in different stages of their life course. At the same time, such a dynamic way of reading rights may give rise to opposition and accusations of human rights overreach in a negative sense. In particular, if the case concerns culturally or politically sensitive areas, such as LGBTI rights or irregularly staying migrants, reluctant governments may feel that the interpretations represent unjustified interference into domestic matters. Similarly, some special protection conventions have been met with scepticism because they have been felt to go ‘too far’. For example, some States have contemplated the withdrawal from or non-ratification of the Istanbul Convention on the basis that it is perceived to impose a foreign ‘gender ideology’ on the country. ⁵⁷ Expansive/dynamic interpretation and further proliferation, in other words, can also generate a political backlash undermining the intended progressive development.

4. COMPARTMENTALISATION OF PROTECTION

Proliferation is an outcome of vulnerabilisation that has spread over several legal sources and policymaking of a variety of actors in both human rights law and beyond. Each layer of human rights law has been created out of a perceived need for increased protection. Specialisation through a pluralisation of human rights law is seen as complementary rather than contradictory to the idea of a coherent and efficient human rights framework. ⁵⁸ However, as a systemic question of the structure of human rights law, this ‘pluralisation’ is by more critical scholars labelled as ‘fragmentation’. ⁵⁹ Whereas there are several aspects to the fragmentation of human rights law, the growth of special protection regimes demonstrates how a contextualisation of the content of rights of particular groups brings with it a compartmentalisation both of what vulnerability is and what type of protection (if any) a finding of vulnerability should result in. That children are holders of ‘children’s rights’ is, for example, often stressed, whereas their subjectivity as holders of general human rights may be overseen. ⁶⁰ As noted by Brems, Desmet and Vandenhole: ‘Children’s rights law is often perceived and studied in isolation from the broader field of human rights law.’ ⁶¹ By this development, a claim can be made that there is a risk of creating fault-lines (or compartments) that can hide from sight the intersectionality which is at the heart of vulnerability. Such compartmentalisation can also institute hierarchies in terms of implementation that are not necessarily to the benefit of the vulnerable group or person. ⁶² Special protection can give rise to heightened expectations that the legal recognition of special vulnerability will solve embedded socio-economic injustices. However, to address such injustices a focus on the broader human rights framework can be preferable. ⁶³ In fact, a strong case can be made that the labelling of individuals and groups as vulnerable aims to mitigate the effects of injustices rather than provide tools for addressing their causes. ⁶⁴

Such a process of compartmentalisation, or ‘siloing’ (perhaps the more common term in the context of organisations), is amplified through increasing enactment of vulnerability reasoning in the policymaking of international organisations. Whereas there may be relative consistency in the conceptual definition of social protection among international organisations, and a recognition of the need to protect vulnerable individuals or groups at the heart of that, the individual mandates of organisations mean that they operationalise the protection differently. In fact, in some cases a selection of whose vulnerability is recognised may be determined purely on a bureaucratic division of the work programme. ⁶⁵ Siloing has also been identified as an inherent characteristic of the bureaucracy of organisations that can give rise to hurdles to the adoption of holistic approaches to protection. ⁶⁶

The functional nature of international organisations entails the presumption that organisations are limited in all their tasks to the pursuit of their particular aims and purposes. ⁶⁷ This suggests that any engagement of international organisations in the protection of the vulnerable will always be focused, but at the same time limited and partial in some respect. Whereas the ILO and UNICEF, for example, actively promote a rights-based approach to social security, they do not share the same focus in relation to vulnerable groups. While international labour rights lie at the heart of the ILO mandate, ⁶⁸ the mandate of the UNICEF entails an emphasis on the poorest and the most vulnerable children and families. ⁶⁹ In other words, even in the case of human rights-based organisations, not all vulnerable groups fall within the scope of their activities. ⁷⁰ When moving beyond the ILO and UNICEF, the specificity with which particular vulnerable groups can enter the restricting impact of the operational horizon of organisations becomes even more apparent. IMF may constitute a good example, where children as a group has seemingly had a hard time to enter the policymaking of the Fund due to the so-called macro-criticality restriction on the IMF mandate. ⁷¹

Furthermore, as vulnerabilisation spreads across regimes, each regime not only brings its own principles, expertise, and ‘ethos’ to the process of identifying vulnerable groups, ⁷² but also its focus on particular vulnerabilities of that group. Based on an acknowledgement that inequality is associated with less sustained growth and other risks, the IMF has increasingly been promoting, for example, gender-responsive budgeting. ⁷³ Some have even characterised the IMF as a ‘global leader’ in highlighting inequality. ⁷⁴ Yet, while there may at some level be an understanding of the scope of gender inequality issues at the IMF, ⁷⁵ the Fund typically focuses on female labour force participation rates and the gender pay gap in its operational action, hereby highlighting only two elements of the multifaceted gender equality problem. ⁷⁶ On the one hand, then, IMF engagement, due to its political influence, can have a great impact on how States pay attention to inequalities. At the same time, in a rights-based perspective, the IMF approach to gender inequality remains fairly limited. ⁷⁷

5. BALANCING BETWEEN PRIORITISATION AND EXCLUSION

6. IMPOSED VULNERABILISATION?

The phenomenon of vulnerabilisation as such does not merely indicate a conceptual change, potentially affecting the dynamics of international human rights law. As an additional layer, the identification of vulnerable groups is on track to become a threshold for the State to live up to its obligations, as well as a condition for receiving aid and other benefits. As a consequence, States may not only be more inclined, but even feel obliged to portray a set of groups as vulnerable. One example derives from the action of humanitarian donors such as NGOs launching aid programmes, which can generate a need for finding a ‘vulnerable population’ to enact such programmes upon. ¹¹² A similar pattern may grow out of the vulnerabilisation of the policymaking of financial institutions. If, for example, social spending floors to protect vulnerable groups are embedded in IMF lending as binding loan conditions, States are thereby expected to identify vulnerable groups and take measures of protection relating to IMF conditionality in that programme. ¹¹³

Another example of imposed vulnerabilisation derives from the expectation that States are to define their social protection needs in Poverty Reduction Strategy Papers (PRSPs). PRSPs are national planning frameworks for low-income countries, which both the World Bank and the IMF require countries to produce as a condition for debt relief and concessional lending. ¹¹⁴ A basic yardstick in assessing the content of PRSPs is whether they contain information and analysis on specific poverty groups and social categories that may be subject to exclusion. While these strategies focus on poverty reduction, they are expected to identify sources and levels of vulnerability. ¹¹⁵ The mandatory nature of the PRSP process has even been noted to render the content of the PRSPs close to binding requirements. ¹¹⁶

As a point of departure across regimes in such contexts, vulnerability is defined on a case-by-case basis, with the nation State at the heart of that determination. This has been noted to lend the vulnerability concept to a dual use of, on the one hand, providing a mechanism for compelling State response, while on the other hand legitimating regressive State agendas that increase intervention and control. ¹¹⁷ What the dynamics described above highlight is that the current culture of vulnerabilisation also transcends the State as the primary guarantor of rights. International pressure to identify vulnerabilities that comes from a broad set of actors and processes can highlight social circumstances that generate or aggravate vulnerabilities, calling attention to structurally or politically ignored or denied vulnerabilities that would otherwise remain unattended. At the same time, this pressure may enhance the exclusive function of vulnerabilisation as there can be but a thin line between enhanced protection and instrumental vulnerabilisation, whereby the label is applied for economic or other reasons, with the socio-human vulnerability of the individual, or the societal causes underlying that vulnerability, becoming secondary. ¹¹⁸

7. CONCLUDING REMARKS

With the growing realisation that more needs to be done to address the structural inequalities that the neoliberal global order fails to address (and even aggravates), the position of vulnerable groups and individuals has assumed centre stage in protection efforts. An active push both within human rights law and in global social protection discourse to mainstream protection of vulnerable groups has grown into a global phenomenon of vulnerabilisation. This focus undoubtedly answers to an identified need. Regarding LGBTI rights, for example, special protection measures have proved a helpful strategy in contributing to the levelling of the protection of human rights in practice. ¹¹⁹ Several benefits have been noted also with the Disability Convention. ¹²⁰ In parallel, vulnerabilisation also takes place through expanding the mandate of international institutions and engaging them in the practice of protection. This is a welcome development in that the strive for universal protection of human rights calls for a variety of measures to be realised. For some organisations such as the IMF, it also comes with a long-awaited promise of deeper social engagement.

As vulnerability-reasoning has grown into an inherent element of the realisation of human rights, this proliferation of protection has certainly extended the outreach of protection to those most in need. What this article has sought to illustrate is that vulnerabilisation, however, also comes with potential side-effects. These effects can be witnessed on multiple levels. Conceptually, the development comes with a built-in need to find ever more vulnerable individuals and groups, and to compare these in terms of the degree of their vulnerability to secure protection for at least those ‘most vulnerable’. A corresponding development is the expansion of issues being addressed in terms of rights and the expansive interpretations of existing rights.

As vulnerabilisation comes with the promise of identifying who ‘at least’ should be protected in situations of prioritisation, it can also be put to exclusionary use. This is particularly visible in migration management where vulnerability is being instrumentalised as a tool for restricting access to rights. Proliferation of protection by focusing on vulnerable groups, in other words, does not escape, but can rather invite, politicisation. The strong expansion of vulnerability reasoning in the policymaking of international organisations also contributes to a compartmentalisation of protection. As the set of actors and instruments by which vulnerabilities are addressed becomes ever more diverse, also the identification of vulnerabilities as well as the means of addressing them will become ever more varied. ‘Ownership’ of the protection of vulnerable groups, in other words, becomes fragmented in both human rights law and beyond. Domestic level actors, international human rights bodies, and international organisations, all bring their own conceptualisation of vulnerability, whose vulnerabilities to prioritise, and what level of protection that particular vulnerability provides an entitlement to. In this discourse, calling something ‘overreach’ then becomes a way of expressing dislike of the uses to which the protection of vulnerable groups as a human rights concept is put.

The expansion of the special protection of vulnerable groups into a core guiding principle in human rights law, as well as in the social protection engagement of international organisations, has created a culture of vulnerabilisation in international law and politics. As an expression of its persuasiveness, it stands out as one of the rare concepts with a strong human rights dimension that even formerly reluctant actors as the IMF can embrace. The protection of vulnerable individuals and groups is a success story of mainstreaming both within human rights law and beyond that is difficult to match. But in its success also lies the threats. A blind eye should not be turned to the fact that the prioritisation invited, or even compelled, can create protection biases, and encourage misuse. The more frequent such practices become, the more apparent it also becomes that the protection of vulnerable groups is on a tightrope between enhanced protection and human rights overreach.