Bordering Belonging: Colonialism, Nationality and Expulsions in the European and African Human Rights Systems

Korte beschrijving

This thesis investigates how the European and African regional human rights systems reproduce or counteract border coloniality in their drafting of norms and subsequent caselaw on matters of nationality and expulsions. Rather than taking the European human rights system as a yardstick to emulate, the analysis critiques its restrictive moves, whilst highlighting transformative contestations of exclusion in the African human rights system. In the European system, the colonial clause built into the 1950 European Convention on Human Rights was further refined in its 1963 Protocol 4 to distinguish between metropolitan and non-metropolitan territories with regard to entry and expulsion. These differentiations reverberate in caselaw that denies the right to nationality and legitimises collective expulsions based on tropes of danger and culpability, whereas judgments upholding the rights of people on the move across borders appear as outliers. In the African system, the anti-colonialism shaping the drafting of the 1981 African Charter on Human and Peoples’ Rights was followed by innovative interpretations reading the right to nationality into the right to recognition of legal status, as well as holistic protection against collective expulsions linked to related rights, but the jurisprudence is limited. Despite epistemic shifts away from the denigration of former colonial subjects crossing borders and moves towards the expansive interpretation of some rights, both systems operate within the limits of codified human rights law, in which many structural elements of border coloniality engrained in statist migration law remain unchallenged and perhaps unchallengeable. By providing the first juxtaposition of these issues in the European and African human rights systems, the thesis contributes to comparative international human rights law, critiques of the coloniality of international law, and border regime studies.