Fineman in Luxembourg: Empirical lessons in asylum seeker vulnerability from the CJEU
| Author | Aysel Küçüksu |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1177/09240519221113463 |
| Subject Matter | Articles |
Fineman in Luxembourg:
Empirical lessons in asylum
seeker vulnerability from the
CJEU
Aysel Küçüksu
University of Copenhagen, Denmark
Abstract
This article marries empirical evidence from the CJEU’s asylum practice with the main tenets of Martha
Fineman’s‘vulnerability theory’. It uses observations from this union in support of a theoretical and an
empirical argument. On the theoretical level, the discussion unfolds to show that the post-identity ‘con-
textual’approach which Fineman fosters can supplement the identity-based ‘categorical’approach that
currently anchors various asylum-related procedures in the EU. On the empirical level, it argues that the
CJEU’s asylum jurisprudence can offer the blueprint for how the theoretical aspiration would play out in
practice. Together, the two arguments establish that Fineman’s work could help align asylum governance
with the asylum seeker’s‘embodied and embedded’reality in a time when mismatch between the two
attracts growing critique. Overall, this work not only contributes to the debate on the theory of vul-
nerability, but it also expands the application of Fineman’s theory as a method for understanding and
framing existing case law of the CJEU.
Keywords
CJEU, case law, asylum, migrant, vulnerability theory, Fineman, international protection
1. INTRODUCTION
Though the concept of ‘vulnerability’has long been present in migration scholarship,
1
it is Martha
Fineman’s particular iteration of a ‘vulnerability theory’that has gained significant traction in legal
Corresponding author:
Aysel Küçüksu, iCourts, Faculty of Law, University of Copenhagen, Denmark.
Email: aysel.eybil.kucuksu@jur.ku.dk
1. See for example Kate Smith and Louise Waite, ‘New and enduring narratives of vulnerability: rethinking stories about the
figure of the refugee’(2019) 45 Journal of Ethnic and Migration Studies, 2289; Richard Johnson, ‘Refugee camp security:
decreasing vulnerability through demographic controls’(2011) 24 Journal of Refugee Studies 1, 23; Robert A. McLeman
and Lori M. Hunter, ‘Migration in the context of vulnerability and adaptation to climate change: insightsfrom analogues’
(2010) 1(3) Wiley Interdisciplinary Review on Climate Change 450.
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(3) 290–310
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DOI: 10.1177/09240519221113463
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and philosophical circles alike. Works that have sought to engage with her theory from a practical angle
have been especially valuable for highlighting its compelling critique of the dominant liberal paradigm
and exposure of its hidden costs.
2
Some of them have applied her theory to judicial practice,
3
albeit not
to that of the Court of Justice of the European Union (CJEU or Court). In fact, within the context of the
European Union, works such as Freedman’spieceon‘the uses and abuses of vulnerability’
4
and Da
Lomba’s re-conceptualisation of the Common European Asylum System (CEAS) through Fineman’s
work
5
have squarely remained within policy, rather than judicial practice. This has created a lacuna
in the literature on how the theory relates to the asylum case law of the CJEU. In an effort to
address the resulting gap, this paper marries empirical evidence from the Court’s asylum jurisprudence
with the main tenets of Martha Fineman’s‘vulnerability theory’and thereby joins the ‘empirical turn in
international legal scholarship’.
6
The article contributes to the conversations on vulnerability and to the
space for courts and tribunals to engage with its basic tenets, whilst also offering a new reading of some
of the asylum judgments of the CJEU. Most importantly, this work makes a practical contribution to the
ongoing exploration of how to bring asylum governance closer to the asylum seeker’s‘real-lived experi-
ences’
7
as mismatch between the two attracts mounting critique from scholars,
8
human rights practi-
tioners, and civil society alike.
9
It also offers a theoretical and an empirical exploration of how
applying the lens of ‘vulnerability theory’to asylum governance might affect the various stages of
the asylum-seeking process as well as work to bridge the gap between the asylum seeker’s‘embodied
and embedded’reality and the law’s treatment of it.
10
2. Lua Kamál Yuille, ‘From Corpo Economicus to Corpo Sapiens’(2017) 55 University of Louisville Law Review 163.
3. Moritz Baumgärtel, ‘Facing the challenge of migratory vulnerability in the European Court of Human Rights’(2020)
38(1) Netherlands Quarterly of Human Rights, 12 (deriving the idea of ‘migratory vulnerability’fromexisting legalprin-
ciples applied in European Court of Human Rights (ECtHR) jurisprudence); Sylvie Da Lomba, ‘Vulnerability, irregular
migrants’health-related rights and the European Court of Human Rights’(2014) 21(4) European Journal of Health Law
339; Lourdes Peroni and Alexandra Timmer, ‘Vulnerable groups: The promise of an emerging concept in European
Human Rights Convention law’(2013) 11 International Journal of Constitutional Law 1056 (articulating the idea of
‘vulnerable groups’from within ECtHR case law in pursuit of a ‘more robust idea of equality’).
4. Jane Freedman, ‘The Uses and Abuses of ‘Vulnerability. EU Asylum and Refugee Protection: Protecting Women or
Reducing Autonomy?’(2019) Papeles Del CEIC 2019, 204.
5. Sylvie Da Lomba, ‘Rethinking the Common European Asylum System through Vulnerability Analysis (2019)
Workshop on ‘Migration and New Governance in the EU’, University of Strathclyde Working Papers.
6. Gregory Shaffer and Tom Ginsburg, The Empirical Turn in International Legal Scholarship’(2012) 106(1) The
American Journal of International Law, 1; Jakob V. H. Holtermann and Mikael Rask Madsen, ‘Toleration, Synthesis
or Replacement? The “Empirical Turn”and its Consequences for the Science of International Law’(2016) 29(4)
Leiden Journal of International Law 1001.
7. Alexandra Timmer, Moritz Baumgärtel, Louis Kotzé, and Lieneke Slingenberg, ‘The potential and pitfalls of the vul-
nerability concept for human rights’(2021) 39(3) Netherlands Quarterly of Human Rights 190 (reflecting on the potential
of vulnerability theory as capable of bringing the law, and human rights law in particular, closer to the reality of human
existence).
8. Baumgärtel observes a similar potential for Fineman’s work in his exploration of ‘migratory vulnerability’at the ECtHR
in Baumgärtel (n 3). Whilst Baumgärtel seeks to establish ‘migratory vulnerability’as a trigger for concrete legal
responses, this work argues that vulnerability theory can enhance the interpretation of asylum-related procedures.
Furtermore, whilst Baumgärtel moves away form Fineman’s work by arguing that vulnerability is temporary (see
Baumgärtel (n 3) 28), this work maintains Fineman’s fundamental theoretical postulate that vulnerability is constant
and inevitable, whilst resilience fluctuates.
9. Thomas Gammeltoft-Hansen and Nikolas F. Tan, ‘The End of the Deterrence Paradigm? Future Directions for Global
Refugee Policy’(2018) 5(1) Journal on Migration and Human Security 28.
10. The idea that human beings experience life as ‘embodied and embedded’creatures appears throughout Fineman’s work.
See for example, Martha Fineman, ‘Vulnerability and Inevitable Inequality’(2017) 4(3) Oslo Law Review 133.
Küçüksu 291
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