From the Vantage Point of Vulnerability Theory: Algorithmic Decision-Making and Access to the European Court of Human Rights

Abstract

ABSTRACT The past two decades at the European Court of Human Rights have been marked by various efforts to reduce its backlog of cases through changing the substantive, procedural, and formal practices surrounding access to the Court. Proposals aimed at facilitating these efforts have also rested on the unarticulated premise that solving the ECtHR's backlog problem necessarily involves an either-or choice between improving the Court's efficiency and shrinking individual access to it. This article departs from that premise. Drawing on Martha Fineman's ‘theory of vulnerability’ and her vision for social justice, the article lays out a proposal that allows for the coexistence of efficiency and individual access through a hybrid decision-making (HDM) model. First, we show that from a vulnerability theory perspective, better access to human rights courts is a key component of a just human rights system. Second, we argue that in order to be just, procedures need to be context-sensitive and adopted in ways that acknowledge humans' inherent vulnerability. To support the argument, we draw inspiration from the African Court on Human and Peoples' Rights, whose current practices help illustrate the point that more equitable access to justice need not be a relic of the past.