Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR
| Published date | 01 September 2015 |
| DOI | 10.1177/016934411503300303 |
| Author | Laurens Lavrysen |
| Date | 01 September 2015 |
| Subject Matter | Part B: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3, 293–325, 2015.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 293
STRENGTHENING THE PROTECTION OF
HUMAN RIGHTS OF PERSONS LIVING
IN POVERTY UNDER THE ECHR
L L*
Abstract
In recent years, the European Court of Human Rights ha s developed a signi cant
jurisprudence which illu strates the added value of the European Convention on Human
Rig ht s (EC HR) in t he el d of pov er ty. B uil din g on the ndings of Am artya Sen’s “capability
approach”, the article examines the extent to which the Court has grasped the nature of
poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a
re luc ta nc e to ov erc om e t he n eg at ive / p osi ti ve obligations an d civil and political / social and
economic rights dichotomies, the Cour t has only, to a limited extent, done so. Subsequently,
three approaches are examined that could all ow it to better take into account the ndings
of the “capability approach” and that could all ow for enhanced protection of the human
rights of persons living in pove rty under the ECHR: endorsing a more complex pe rspective
on the responsibility of the state; analysing pover ty as a failure to provide substantive
equality; and recognising the v ulnerability of persons living in poverty.
Keywords: capabil ity approach; European Convention on Human Rights; European
Court of Human Rig hts; indivisibilit y; poverty; state responsibilit y; substantive
equality; v ulnerability
1. IN TRODUCTION
In 1993, with the adoption of the Vienna Decla ration and Programme of Act ion, adopted
by the World Conference on Human Rights, poverty wa s put high on the agenda of the
* PhD candidate at t he Human Rig hts Centre of Ghent Universit y. He works on a Ph.D. on the concept
of Positive Obligations u nder the European Convention on Hu man Rights. His res earch is funded
by the Research Fou ndation Flanders (F WO) and takes place wit hin the frame work of the European
Research Cou ncil funded projec t ‘Strengthen ing the Europea n Court of Human R ights: More
Accountabil ity through B etter Legal Re asoning’. e author wants to thank Eva Brems, Vales ka
David, Lourde s Peroni, Wouter Vandenhole and the anonymou s referees for their comm ents on
earlier dra s of thi s paper.
Laurens Lavrysen
294 Intersentia
human rights movement. It was held that ‘[t]he existence of widespread extreme povert y
inhibits the full and e ective enjoyment of human r ights’ and that ‘extreme poverty a nd
social exclusion constitute a v iolation of human dignity’.1 Some have gone even further
by holding that ‘poverty itsel f is a violation of numerous basic human rights’.2
Despite the rhetoric, it has proven to be particu larly di cult from a theoret ical
perspective to connect pover ty with concrete legal obligat ions.3 In l in e wi th D oz C os ta
and Alston, rather th an considering poverty as a huma n rights violation in itsel f –
which oversimpl i es the issue and does not bring us a ny closer to de ning concrete
human rights obligations or a llocating responsibility to concrete duty b earers – in this
article, povert y will be considered as both the c ause and the consequence of particula r
human rights violat ions.4 is t ies in well with the conception of povert y adopted for
the sake of this pap er, being Sen’s conception of povert y as a ecting the capabilities of
individuals to enjoy thei r basic freedoms.5
From the perspective of human rig hts law, poverty is o en only considered as
giv ing ri se to so cial a nd econ omic ri ghts is sues, a ec ting speci c so cial and economic
rights6 or the more encompassing right to an adequate standard of living.
7 e
extent to which poverty a ects the capabilit y of people to enjoy their civil and politica l
rights is however o en neglected. It is in t his respect that thi s article contributes to
the broader debate on poverty as “capability deprivat ion” from a human rights law
perspective. is is a ll the more important for the protect ion of human rights of
persons living in pover ty since, despite call s for the recognition of the indivi sibility
of all human rights ,8 civil and polit ical rights general ly enjoy stronger institutional
protection than socia l and economic rights. is ar ticle therefore focuses on the
current and potential pract ice of the European Cour t of Human Rights (the Court),
arguably the world’s strongest and be st functioning supra national human rights
adjudication body, in protecting the rights of persons l iving in poverty.
1 Vienna Declarat ion and Program me of Action, adopted by the World Conferenc e on Human Rights
in Vienna on 25June 1993.
2 Quote Mary Robin son, Romanes Lect ure, Oxford, 11November 1997, as referred to by F. Doz Cost a,
‘Poverty and Huma n Rights: From Rh etoric to Legal Obl igations’ (2008) 5 Sur – Intern ational
Journal on Human Rig hts 81, 81.
3 For a discussion of t he di erent concept ual frameworks , see Doz Costa (n 2).
4 Doz Costa (n 2) 93–96, and Ph.G. A lston, ‘Ships Pass ing in the Night: e Current State of the
Human Right s and Development Debate seen through t he Lens of the Millennium Deve lopment
Goals’ (2005) 27 Human R ights Quarterly 755, 78 4–788.
5 For example A. Sen, Ine quality Re- examined (Har vard University Press 199 2), 107–112.
6 For example A. Ely Yamin , ‘Re ections on De ning , Understanding , and Measuring Pover ty in
Terms of Violations of Economic Social Rights under International Law’ (1997) 4 Georgetown
Journal on Fighting Pove rty 273.
7 Doz Costa (n 2) 92–93.
8 e indivisible nature of human rig hts was stressed as an aspir ation of the internation al human
rights movement in the Vi enna Declaration a nd Programme of Ac tion, adopted by the World
Conference on Human R ights on 25June 1993: ‘All human rig hts are universa l, indivisible a nd
interdependent and interrelated. e internationa l community must tre at human rights globa lly in
a fair and equa l manner, on the same footi ng, and with the sa me emphasis.’
Strengthen ing the Protect ion of Human Right s of Persons Living i n Poverty under the EC HR
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3 (2015) 295
Based on a brief overview of t he Court’s practice, it will be argued t hat the Court
does not fully live up to its potentia l to protect the human rights of persons living i n
poverty (chapter 3). e aim of this ar ticle is to remedy this shortcomi ng by examining
how the Court could develop legal approaches t hat would allow it to better grasp the
nature of povert y as also a ecting the capability of i ndividuals to enjoy their civil a nd
political rig hts. ree such approaches are disc ussed in chapter 4: the responsibilit y
approach, substantive equality approach a nd vulnerabilit y approach. Before turning
to these questions, however, it is rst necessar y to discuss the theoretical relat ionship
between the capabilit y approach and human rights (chapter 2).
2. THE CAPABILITY APPROACH
e focus of normat ive evaluations under the “capabilit y approach” lies wit h the question
as to what people are genuinely able to be and do.9 e key consideration is whether
people have the “capabi lity” or opportu nity to achieve va luable combinations of huma n
functionings (that is, st ates of being and doing that a person achieves).10 In co ntra st wi th
traditional approaches, Sen rejec ts conceptualisi ng poverty in terms of mere lowness
of income. Instead, the “capabil ity approach” is concerned wit h the extent to which a
shortage of economic means results i n the deprivation of a person’s capability to inter
alia enjoy the freedom to be adequately nourished, the f reedom to enjoy adequate living
conditions, the freedom to lead norma l spans of life and the freedom to read and w rite.11
According to Sen, ‘[t]he basic failure that poverty implies is one of havi ng
minimal ly adequate capabilities, even though p overty is also inter alia a matter of
inadequac y of the person’s economic mea ns’.12 Resources are not seen as an end in
themselves but as a means to prevent capabilit y failure: Sen’s concept of poverty is not
based on lowness but on inadequacy of resources.13 By foc using on capabilit ies rather
than on resources, Sen’s model recognises that ‘the adequacy of the economic means
cannot be judged independently of t he actual possibil ities of “converting” incomes
and resources into capabilit y to function’.14 To illustrate this distinction, Sen gives
the example of a physically d isabled person: the extent of thi s person’s comparative
deprivation vis-à-vis others ‘cannot be adequately judged by looking at hi s or her
income, since the person may be great ly disadvantaged in concerting i ncome into the
achievements he or she would value’.15
9 I. Robeyns, ‘S en’s Capability Approach and Gender I nequality: Selec ting the Relevant Capa bilities’
(2003) 9 Feminist Economics 61, 62.
10 Polly Vizard , Poverty and Human Rights (OUP 20 06) 68.
11 Ibid at 3.
12 Sen (n 5) 111.
13 Ibid.
14 Ibid 110.
15 Ibid 28.
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