« Vulnerability in International, European and Comparative law » collects the proceedings of a conference that the Research Centre on European and Comparative Legal Studies (CEJEC) organised at the University of Paris Nanterre in October 2019. This symposium gathered academics, including young researchers (doctors and PhD students from the CEJEC), and practitioners to reflect on the legal aspects of Vulnerability.
Vulnerability is a catch-all concept, likely to apply to various situations. It may take its origin in illness, disability, age, social or economic factors. Whether explicitly or impliedly, Vulnerability appears in many domestic and international legal instruments that organise the protection of determinate persons under the pressure of fundamental rights. Nonetheless, despite increasing legal references to this notion, Vulnerability is reluctant to any attempt of conceptualization. The amount of references in legal instruments thus contrasts with the uncertainty of the definition: what are the borders of the notion? Who are the persons concerned? As Augustin Boujeka (University of Paris Nanterre) states in the introduction to this book, the vulnerable person is less recognizable than its law. Vulnerability is broader than the former term of incapacity, but its new lines are difficult to draw. However, a definition of vulnerability could help building a general theory on the protection of vulnerable persons, whether minors or adults.
The book, 474 pages long and written in French, has four different parts.
The first part attempts to identify vulnerable persons or persons in vulnerable situations. The first contributions specifically “research” vulnerable persons, in French Private Law (Muriel Rebourg – University of Brest) and in International and European Law (Marjolaine Roccati – University of Paris Nanterre). Adding a comparative prospective, Fernando Gascon Inchausti (University of Madrid) investigates the broad scope of vulnerability in Brasilia Regulations regarding Access to Justice for Vulnerable People.
The following contributions give us illustrations of vulnerable persons or situations to show how diverse they may be. In this respect, Thomas Habu Groud (University of Paris Nanterre) wonders whether migrants may be qualified as vulnerable persons from a legal perspective; Seynabou Traoré (University of Paris Nanterre) zooms on the vulnerability of women in Senegal, as opposed to women in France; Aya Marie Yao (University of Paris Nanterre) highlights the vulnerability of children facing international adoption in Ivory Coast; Wagui Soumbounou (University of Paris Nanterre) reveals the vulnerability of economic agents in the non-official sector in the OHADA area.
After having laid down the diversity of persons or situations that may be deemed to be vulnerable, the second part of the book addresses the issue of the applicable law to Vulnerability. It seems broadly accepted that vulnerable persons are entitled to rules organising their protection. However, the content of such protection is not easy to determine. Indeed, fundamental rules should apply equally to all, and this prism of “equality” challenges the application of specific rules to vulnerable persons. The first question to be addressed in this part thus relates to the existence of specific rules to Vulnerability. First, Camille Bourdaire-Mignotet and Tatiana Gründler (University of Paris Nanterre) discuss whether there are fundamental rights or principles specific to vulnerable persons. Then, Charles Walleit (University of Paris Nanterre) studies the contribution of comparative law in establishing protection, with a comparison between French and German protection of vulnerable adults. Finally, Ambra Marignani (University of Paris Nanterre) observes the application of the principle of “equality” as regards Vulnerability, through the example of the protection of the wife in private international law.
The following contributions focus on the diversity of rules that apply to Vulnerability due to the various and evolving meanings of the notion. This diversity is illustrated in many different ways: Margo Bernelin (University of Nantes) analyses how new technologies in the public health sector renew the understanding of vulnerability; Noémie Fofana Briantais (University of Paris Nanterre) focuses on the protection of the weak professional in English and French Laws; Abdelmalek Benchekroun (University of Paris Nanterre) elaborates on the question of housing of vulnerable persons in France and Marocco; finally, stepping a bit aside, Paul Mougeolle (Lawyer for the Association “Notre Affaire A Tous”, that has initiated several legal proceedings against multinationals (Total, Casino) because of their damaging activities to Environment) questions whether Courts are equipped to address Climate vulnerabilities.
After this attempt at identifying vulnerability and its applicable law, the third part of the book focuses on the exercise of their rights by vulnerable persons. How far may they continue to exercise their legal capacity? Did the switch from the term “incapacity” to the term “vulnerability” entail an evolution of their protection? If so, to what extent? This evolution could be characterized especially by the application of the UN Convention on the Rights of Persons with Disabilities, whose Article 12 asserts: “2. State Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. Anne Caron-Deglise (Advocate-General at the French Supreme Court) makes a critical assessment of the implementation in France of this Article. Then, several contributions draw attention to the situation of vulnerable persons in concluding legal acts, in French Law (Nicolas Balat – University of Lille), German Law (Dagmar Brosey and Camille Gizardin – University of Cologne) and English Law (Thérèse Callus – University of Reading).
The fourth and last part of the book is about the access to law for vulnerable persons. Jean-Sylvestre Bergé (University of Nice), Claudia Charles (Lawyer for the Association “GISTI”) and Gilbert Paolin (University of Nanterre) examine the connections between vulnerability and mobility of the persons. Is mobility a form of vulnerability? Mobility may provoke a specific vulnerability or increase an existing vulnerability. On the opposite, the absence of mobility may be a cause of vulnerability. That is why Jean-Sylvestre Bergé explains how the lack of mobility may induce vulnerability in a globalised world. He takes the example of lawyers, whose mobility expresses itself in their agility to mobilise domestic, European and international rules in a given situation. More traditionally, Claudia Charles highlights the vulnerability of immigrants and Gilbert Paolin the vulnerability of European workers in the internal market.
Then, access to justice is at the core of the last contributions. On this subject, Soraya Amrani-Mekki (University of Paris Nanterre) and Sophie Prosper (University of Paris Nanterre) discuss substantive and procedural requirements to ensure access to justice for vulnerable persons. Giving us inspiration from across the Atlantic, Pierre-Claude Lafond (University of Montreal) queries whether Quebec collective actions favour such access to justice, giving the examples of proceedings conducted by victims from sexual abuses or medical negligence.
In her concluding observations, Florence Bellivier (University of Paris Nanterre) makes a parallel between the developments of the book and the Covid-19 crisis. She thus addresses the notion of vulnerability, the application of general laws or specific protections, the exercise of individual rights and access to justice, while relating them to the sanitary crisis. This crisis has shown how vulnerable we all are when faced to such an extraordinary situation. As a conclusion, Florence Bellivier asks the following question: in a vulnerable world, should the protection offered to vulnerable persons not be extended to all, hence contributing to more universalism and justice?
Posted by Dr Marjolaine Roccati (University Paris-Ouest-Nanterre)
British Association of Comparative Law 