University Campuses and the Right to Protest Under the ECHR

by | Jun 10, 2024

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About Christopher McHugh

Christopher McHugh is a BCL candidate at the University of Oxford and a future pupil barrister.

The recent spread of student protest relating to Israel’s war in Gaza calls for a refresher on the scope of the right to protest on university campuses. This post considers the right to protest under the European Convention on Human Rights (ECHR), with consideration of the particular issues that are raised by protests and protest encampments on university campuses.

The right to protest

While there is no ‘right to protest’ under the ECHR per se, Article 11 (the right to freedom of assembly) and Article 10 (the right to freedom of expression) are regularly invoked, and provide the relevant framework, for issues arising out of protests and mass demonstrations. As many will already be familiar, both of these rights are ‘qualified’ as opposed to ‘absolute’ in nature. Restrictions may be placed on the exercise of each right where that restriction is, i. prescribed by law, ii. in pursuit of a legitimate aim (which are enumerated in the articles), and iii. proportionate to the achieving of that aim.

Even before one considers permissible restrictions of these rights, there is an important, and logically prior, consideration of their scope of application. The jurisprudence of the European Court of Human Rights (ECtHR) has made clear that Article 11 only protects the right to ‘peaceful assembly’ and does not, therefore, extend to protests where individuals have violent intentions (Navalnyy v Russia at [98]). Importantly, however, an individual participating in peaceful protest continues to enjoy their right where other participants engage in sporadic acts of violence or other punishable acts (Primov v Russia at [155]). Similarly, while Article 10 extends to expression that ‘offends, shocks or disturbs’ (Handyside v UK at [49]), the prohibition of abuse of rights (contained in Article 17 ECHR) means that it generally will not extend to expression that constitutes an incitement to violence or hatred (Kasymakhunov and Saybatalov v Russia at [107]-[114]).

Protests and protest encampments on university campuses

Readers will likely be well aware of the unprecedented scale of student protests relating to the war in Gaza that have occurred in the United States. This seems to have inspired similar protests across Europe, and there are an increasing number of examples where such protests have been met with law enforcement.

The primary duty bearer under the ECHR is the State. A key issue for the application of ECHR rights in the context of protests on university campuses, then, is that said campuses are only of a ‘quasi-public’ nature (i.e. the land is privately owned, yet the area is functional in nature and commonly treated as a public forum). A university, therefore, may seek to rely on its private property rights in order to exclude individuals from spaces in which they wish to protest. The university, as a private entity, bears no prima facie obligation under the ECHR not to interfere with the rights to freedom of assembly and expression by excluding student protestors from these privately owned spaces. There is a good argument to be made, however, that owing to the ‘quasi-public’ nature of such spaces, the State may come under a positive obligation to protect these individuals’ free protest rights. This possibility was admitted in principle in the 2003 decision of the ECtHR in Appleby v UK, however no violation of either Article 10 or 11 was established in that case. In refusing to find the existence of a positive obligation on the facts of Appleby, the Court placed emphasis on the alternative forums available to the applicants for the exercise of their rights (at [41]-[50]).

The reasoning based on ‘alternative forums’ was met with a powerful dissent. In ‘quasi-public’ spaces, Judge Maruste saw it that individuals will often have ‘justified expectations of being able to use the area as a public gathering area’, and hence as a forum for peaceful protest. This reasoning seems particularly compelling in the present context, where it seems justifiable that students would view their university campuses as the forum for the peaceful assembly of student-led protest groups. As has been argued elsewhere, a binary distinction between private and public property should be resisted, and rather a more nuanced consideration of the subject of the protest and those involved should be employed. This is particularly salient in the context of protest encampments. While the infringement of private property interests by such encampments might be viewed as greater, it seems likely that student protest groups will have specially chosen a particular area of their university campus because of its affinity with the subject of the protest in question.

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1 Comment

  1. Eduardo Gill-Pedro

    Thanks for a throughful and timely post. I have one comment. You state “The university, as a private entity, bears no prima facie obligation under the ECHR”. This will only be the case where the University is a private entity. In many jurisdictions in Europe universities are state authorities, and as such directly bound by the ECHR. Even in the UK, where Universities are not part of the state as such, there may be a question of whether they are purely private entities – Oxford University, for instance, was incorporated by statute to perform public functions, and has a “Constitution and Statute-making Powers”. When discharging its public function – e.g. facilitating access to the campus to its students – does it have an oblligation to respect freedom of speech and freedom of assembly? The case of Appleby v UK that you cite concerned a comercial company that owned a shopping mall. I am not sure that one can conclude that, because Postel Properties Limited were not required to respect Article 10 and 11 ECHR, then neither will Oxford University, or the Sorbonne, or Charles University.

    I also want to add that domestic English/UK law also seems to impose a duty on British Universities to protect free speech and free assembliy. According to the UK’s Equality and Human Rights’ Commission “There are two main pieces of legislation requiring HEPs to protect freedom of expression: the Education (No 2) Act 1986 and the Human Rights Act 1998. If a HEP doesn’t meet their legal duties under these acts, they may be taken to court” (

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