'Legitimate' Protest in European Human Rights Law: A Critical Reconstruction
| Pages | 28-55 |
| Date | 01 October 2022 |
| Published date | 01 October 2022 |
| Author | Mythili Mishra |
28
Cambridge Law Review (2022) Vol VII, Issue 2
Cambridge Law Review (2022) Vol VII, Issue 2, 28–55
‘Legitimate’ Protest in European Human
Rights Law: A Critical Reconstruction
MYTHILI MISHRA
ABSTRACT
This article studies the construction of ‘legitimate’ protest in European human
rights law. It uses the jurisprudence of the European Court of Human Rights to
understand and evaluate what kinds of protest the Court legitimises, and what
kinds it does not. The conceptual map consists of three ideas: responsibility,
disruption, and offence. It is argued that these three fundamental strands come
together to construct the Court’s account of ‘legitimate’ protest. This account is
also reconstructed through a critical evaluation of t he Court’s justifications,
enabling us to interrogate the Court’s judgments and criticise them for
inadequately protecting the right to protest. It concludes with observations about
what the findings mean for the protection of human rights and democracy,
positing that the Court offers only limited or no protection to protestors who do
not fit a certain model, which is a threat to democracy.
Keywords: Right to protest, ECHR, freedom of expression, freedom of assembly, democracy
I. INTRODUCTION
We have been living through an age of pandemic, but also of protest. From the
global Black Lives Matter (BLM) protests to women’s rights demonstrations in
Poland challenging the tightening of anti-abortion laws, people took to the streets.
All of this occurred in the middle of an unprecedented global pandemic which
posed new threats to the health and safety of protestors and gave new
Advocate (India), LLB (London School of Economics and Political Science), BA (Lady Shri Ram Co llege, Delhi
University). The author is grateful to Dr Sarah Trotter and Professor Ka i Möller for their feedback and guidance.
‘Legitimate’ Protest in European Human Rights Law
29
opportunities to governments to crack down on dissent. Although there is nothing
new about protests, these raised some novel questions and sparked renewed
debate on old ones. Should BLM protestors be allowed to topple racist statues?
Should women’s rights activists be allowed to protest during a public health
emergency?
This article is an attempt to understand how European human rights law
answers these qu estions, and to interrogate those answers. In p articular, it seeks
to study how the jurisprudence constructs ‘legitimate’ protest and punishes
‘illegitimate’ protest. Why European human rights law? First, the European
jurisprudence going back decades on this topic. Second, the European Court of
Human Rights (ECtHR) is an international human rights court, so unlike domestic
law it can show the ‘bigger picture’, and since its raison d’être is protection of human
rights, it is expected to provide the highest possible protection for rights.
In theory, the right to protest is guaranteed under Articles 10
1
and 11.
2
Yet,
as a discussion of the case law will show, “[i]t is not so much a right to protest,
rather a fight to protest, because … the law is weighted against the prot estor.”
3
Preliminarily, it must be noted that both these rights are qualified rights and can
be limited in light of public safety, protection of health or morals, rights and
freedoms of others, etc. Article 11 additionally only protects peaceful assembly,
and thus any protest not adjudged to be ‘peaceful’ is outside its scope. Evidently,
these concepts are not self-explanatory, and much depends on how they are
interpreted.
1
Freedom of expression:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold o pinions
and to receive and impart information and ideas without interference by public authorit y and
regardless of frontiers. This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subje ct to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, f or the
prevention of disorder or crime, for the protection of health or morals, for th e protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.
2
Freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with oth ers,
including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other th an such as are prescribed by
law and are necessary in a democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or for the protection of
the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions
on the exercise of these rights by members of the armed forces, of the police or of the
administration of the State.
3
John Cooper QC, ‘The Right to Protest?’ (Speech at 25 Bedford Row)
23 November 2020 (emphasis added).
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