Aysel Küçüksu’s research while affiliated with IT University of Copenhagen and other places

Fuelled by an ambition to solve the puzzle of the stark contrast between Denmark’s increasingly negative presence in the international press and its leading performance in European Court of Human Rights (ECtHR) compliance statistics, this article presents the results of a mixed-method study of the country’s domestic human rights’ protection and implementation practices. The story that emerges is not one of compliance, but of proactive prevention with a tinge of strategic risk-taking and prompt implementation. The majority of the Danish action within the compliance sphere takes place before one can even talk about compliance—domestically before the international spotlight is prompted to shine on Denmark by an adverse judgment against it. The article shows how each branch of power has an idiosyncratic way of working towards the prevention of human rights’ breaches. Yet, domestic prevention and international statistics say little about the quality of implementation and human rights’ protection. The article offers a concrete illustration of the blind spots of compliance data in the absence of qualitative research related to domestic practices and proves that there are lessons to be learned from studying even the most exemplary compliers. This makes the Danish case study an important contribution to the broader literature on the ways in which the ECtHR influences states other than through the implementation of judgments. Importantly, it also shows that while the proactive prevention of adverse ECtHR judgments can mean the same as the proactive prevention of human rights’ breaches, this is not always the case.

This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

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 ‘contextual’ 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 vulnerability, but it also expands the application of Fineman's theory as a method for understanding and framing existing case law of the CJEU.

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.

The political sensitivity and growing informalisation of EU asylum governance has only increased the importance of non-elected institutions such as the Court of Justice of the European Union. Yet, a systematic analysis of the Court’s jurisprudence casts doubts on its ability to remain immune to the shifts in (con)temporary political winds blowing through the Union. In fact, an empirical study of all asylum-related preliminary rulings reveals a disquieting trend: the Court has adopted an administrative, passivist role within the area. Its distinguishing features include an overzealous concern for the technicalities of the legislative instruments before it and sparse to no references to human rights instruments or values in the operative parts of the judgments. In light of the symbolic power carried by the Court’s language, this trend risks sending the wrong signal to national judicial authorities; namely, that addressing concerns for the survival of the asylum system can legitimately trump concerns for the individuals caught in it.