Is the African Court on Human and Peoples’ Rights in an Existential Crisis?

Employing a sociological perspective on the law, this study explores instances of resistance against the African Court on Human and Peoples’ Rights, the African Union’s continental human rights judicial body. This approach allows us to examine different forms of resistance that might not necessarily be of a legal character, but which may still have profound implications for the Court’s authority, legitimacy, and operation. Accordingly, the article identifies two forms of resistance against the African Court: ‘pushback’ and ‘backlash’. The former refers to an ordinary form of critique directed against the overall development of an international court, while the latter is understood as an extraordinary form of critique that puts the fundamental authority of a court at stake. While pushback was mainly seen in the early stages of the Court’s establishment, backlash started to emerge following its ground-breaking judgments that caused heated debates on controversial topics. This article concludes that based on the identified and analysed forms of resistance, it is doubtful that the African Court can maintain and fulfil the purpose for which it was established: the protection and promotion of human rights in Africa.

Beyond the Minimalist Critique: An Assessment of the Right to Education in International Human Rights Law

The minimalist critique of human rights advanced by legal historian Samuel Moyn argues that human rights are ineffective in addressing material inequality because, rather than striving for equality, they focus on ensuring sufficient protection levels. This article analyses the right to education model which international human rights bodies have expanded to demonstrate the overstretched nature of the minimalist critique. By examining how the right to education provisions of international human rights treaties are interpreted by various United Nations human rights mechanisms, the article argues that the international human rights system has advanced a model of right to education that reaches beyond the notion of sufficiency. The works of these bodies are analysed in light of the privatisation of education. In defining the connection between the equality and liberty dimensions of the right to education, international human rights bodies have prioratised ensuring equal opportunities over the liberty to private education. The aim of the right to education is not merely to provide basic literacy to the poor but also to assure equal educational opportunities to all.

Racial Discrimination and Nationality and Migration Exceptions: Reconciling CERD and the Race Equality Directive

The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. However, nationality and immigration-related exceptions are an established feature of non-discrimination laws. Such exceptions raise fundamental questions about the scope of the protection offered by anti-discrimination laws and have the potential to perpetuate, rather than eliminate, race discrimination. This article addresses this critical but often neglected issue, through a doctrinal analysis of two specific exceptions - Articles 1(2) and 1(3) of the UN Convention on the Elimination of All Forms of Racial Discrimination and Article 3(2) of the EU's Race Equality Directive - and an examination of their impact in practice at the domestic level. We argue that nationality and migration status exceptions must be interpreted as narrowly as possible, in line with the core purpose of these instruments to eliminate race discrimination. Furthermore, we suggest that the interplay between these legal frameworks at the domestic level of implementation takes on particular importance in defining the scope and limits of nationality and migration-based exceptions.

Race and the regulation of international migration. The ongoing impact of colonialism in the case law of The European Court of Human Rights

In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.

Pandemic protests: Creatively using the freedom of assembly during COVID-19

It is a new truism that the COVID-19 pandemic has exacerbated an already dire human rights situation across the globe. The waves of protest that swept across the world in the year before the pandemic seemed to have been brought to a sudden halt due to lockdowns and restrictive laws. But at the same time, people everywhere have availed themselves of the wide protective scope of the freedom of assembly, newly re-emphasized in the Human Rights Committee's General Comment of 2020, to come together, protest, and make their voices heard in numerous creative ways. Amid the restrictions, there has been resilience.

Reassessing the framework for the protection of civil servant whistleblowers in the European Court of Human Rights

The European Court of Human Rights (ECtHR or Court) has included civil servant whistleblowers in the protective ambit of Article 10 of the European Convention on Human Rights. The article argues that the Court should revisit its approach to proportionality in such cases. When determining whether a restriction to a civil servant whistleblower's free speech was necessary in a democratic society, the Court weighs what the article identifies as the quasi-public watchdog function of whistleblowers (namely their role in imparting information on matters of public concern) against their duties and responsibilities as civil servants. In some instances, the Court gives primacy to whistleblowers’ duties of loyalty to the government over their contribution to the accountability of public bodies. The article challenges this approach on the basis that it fails to adequately consider the key justification that underpins the Court's recognition of whistleblowing as speech, namely the audience interest in receiving the information the whistleblower discloses. The article argues that the Court should give primacy to the watchdog function of whistleblowers. It concludes by making suggestions on how the ECtHR can adopt a more principled approach to proportionality in whistleblowing cases.

The potential and pitfalls of the vulnerability concept for human rights

In the past decade or so, vulnerability has become a fairly prominent concept in human rights law. It has evolved from being an underlying notion to an explicit concept. This column takes stock of vulnerability's relationship to, and possible influence on human rights law, assessing the concept's potential and pitfalls. It focuses on the not altogether unrelated issues of migrants’ social rights and on the role of human rights in environmental protection. The discussion commences with a reflection on the potential of vulnerability to re-interrogate those aspects of the human rights paradigm that relate to environmental protection. The next section focuses on the potential of vulnerability to enhance migrants’ social rights within human rights law. Subsequently, it focuses on the pitfalls and the difficulties of the vulnerability concept. It concludes by offering an outlook for the future of the concept.