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

Abstract

The past two decades at the European Court of Human Rights (ECtHR) have been marked by various efforts to reduce its backlog of cases through changing its substantive, procedural and formal practices surrounding access to the Court. External 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. The aim of this article is to depart from this premise. Drawing on Martha Fineman’s ‘theory of vulnerability’ and her vision for social justice, this article lays out a proposal that permits for the coexistence of efficiency and individual access through a hybrid decision-making (HDM) model. Our proposal combines the strengths of algorithmic decision-making (ADM) with those of human case-handling to enable the re-introduction of context-sensitive practices around individual access to the ECtHR. Our argument is two-fold: from a vulnerability theory perspective, better access to human rights courts is in itself a key component of a just human rights system. In order to be just, however, 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.

Keywords: vulnerability theory, European Court of Human Rights, African Court of Human and Peoples' Rights, algorithmic decision-making, hybrid decision-making, justice.