‘Structural Vulnerability and International Human Rights Adjudication’

This is a seminar organised by the Edinburgh Centre for Legal Theory. The speaker, Marisa Iglesias from Pompeu Fabra University, will be presenting her paper on ‘Structural Vulnerability and International Human Rights Adjudication’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event.

Author bio: Marisa Iglesias is Associate Professor of Legal Philosophy at Universitat Pompeu Fabra, Barcelona. She has been a visiting scholar or researcher at the European Humanities University of Minsk, Oxford University, the Global Law School of New York University, the Law Faculty of Puerto Rico University, the ITAM (México), and the Universidad de los Andes (Colombia). She has also been part of the Executive Committee of the International Association for Philosophy of Law and Social Philosophy (IVR) and director of the PhD program in Law at Universitat Pompeu Fabra. Some of her publications in English include: “Subsidiarity, Margin of Appreciation and International Adjudication within a Cooperative Conception of Human Rights”, International Journal of Constitutional Law (2017); “The Conundrum of Pluralism and the Doctrine of the Margin of Appreciation: the Crucifix ‘Affair’ and the Ambivalence of the ECtHR”, Routledge (2014); AAVV, Religious Practice and Observance in the EU Member States, European Parliament (2013); “Poverty and Humanity: Individual Duties and the Moral Point of View”, Duncker & Humblot (2006); Globalisation, Democracy and Citizenship, Duncker & Humblot (Co-edition, 2003); Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited, Kluwer/Springer (2001).

Abstract: The aim of this talk is to demonstrate why and how structural vulnerability—the vulnerability faced by members of social groups experiencing structural injustice—should be central to a political conception of human rights. Additionally, I will explore why and how the structural vulnerability of an applicant in a human rights lawsuit before the European Court of Human Rights (ECtHR) should carry special weight in the Court’s reasoning, as a condition for preserving its institutional legitimacy within a cooperative legal system.

In contrast to a naturalistic approach to human rights, the political conception I advocate links these rights to concerns of relational justice—specifically, to the minimal conditions required for the inclusion of individuals within a global order characterized by interdependence, institutionalization, and cooperation.

As reasons for international action, human rights, unlike constitutional rights, centrally justify claims for international protection against domestic structural vulnerabilities, irrespective of the moral rights all individuals possess by virtue of their humanity. This suggests, among other things, that human rights, serving as additional safeguards beyond those offered by constitutional rights, seek to prevent and counteract one of the most insidious effects of structural injustice: the risk that members of politically vulnerable groups will suffer forms of pervasive and enduring exclusion which prevent them from accessing the most basic and urgent goods and liberties.

In the second part of the talk, I will use this conception to examine why and how a focus on structural vulnerability should be considered a condition of legitimacy in human rights adjudication within a regional system. I will depart from a “systemic” view of institutional legitimacy and a normative theory of the principle of subsidiarity, which I term “cooperative”, as a justificatory framework. I will then explore several dimensions in which the applicant’s structural vulnerability could and should be incorporated into the ECtHR’s reasoning.

The first dimension relates to the ECtHR’s proportionality assessment when a right is in conflict with a collective aim or when different Convention rights are in tension. In the proportionality analysis—drawing on Robert Alexy’s model—the structural vulnerability of the applicant could be treated as an abstract weight regarding her right (relative to the subject of the right) to add to the abstract weight of the affected right for being a right and for the right that it is.

The second dimension concerns the boundaries of the national margin of appreciation. I will consider the extent to which the structural vulnerability of the applicant in a specific case might serve as a factor in defining the scope of the national margin of appreciation, alongside the factors already recognized by the ECtHR’s case law: the sensitivity of the case, the state of European consensus, the better position of national authorities, and the type of right involved.

Finally, given the challenge of maintaining profound impartiality in cases affecting members of vulnerable minorities, I will also explore the institutional virtues that the ECtHR should exhibit in its supervisory role to demonstrate a significant commitment to rectifying domestic structural injustice when it prevents enjoyment of the most basic goods and liberties.

Host or Publisher Edinburgh Law School, University of Edinburgh