The Right to Help Others: Towards a New Legal Defense to the Criminalization of Activism

Across Europe, people are increasingly punished for helping migrants [1], taking part in climate protests [2;3] or engaging in civil disobedience. When faced with criminal charges, activists often argue that they acted out of necessity. Should they be punished for trying to help others? This project investigates the existence and scope of a (human) right to help others and its potential as a criminal defence.

The rise of judicial review, treaty compliance mechanisms, and more generally the ‘fundamentalization’ of the law [4], have expanded the use of human rights as legal defences. From freedom of speech to the right to a fair trial, fundamental rights are increasingly invoked as justifications for breaching criminal law [5]. One vital thread is absent from this legal fabric: the right to help others (henceforth ‘RtHO’).

Existing legal systems provide only fragmented and inconsistent recognition of the RtHO, such as the ‘solidarity exception’ in certain migration cases [6]. Doctrinal research on solidarity as a human right has predominantly associated solidarity with collective rights, such as the right to peace [7]. Surprisingly, individual acts have received less attention; while some discussions explore a duty to help – particularly in contexts like humanitarian intervention – these usually concentrate on state obligations [8], although there are exceptions like in the law of the sea. There is no comprehensive framework to address the criminalization of altruistic acts by individuals.

This gap in the legal framework threatens fundamental freedoms and democratic values: it discourages individuals from taking action to address systemic injustices, stifling the civic engagement that underpins democratic societies. Moreover, the absence of a clear and consistent legal framework of the RtHO undermines respect for the rule of law. Like Antigone in Sophocles’ tragedy, activists defy laws they perceive as unjust. A well-defined legal framework for the RtHO is essential, not only to protect altruistic actions in exceptional circumstances [9], but also to set legitimate boundaries to criminal activism [10].

Filling a significant gap in the literature by systematically theorizing the RtHO, my project investigates the following research question:

Should a right to help others be recognized as a legal defence to criminal activism?

The project answers this question through three sub-questions:
- Is there a right to help others and, if so, how can it be defined?
- To what extent do existing domestic and international legal frameworks recognize such a right as a legal defence?
- Should a right to help others be integrated as a legal defence into legal instruments and, if so, in what way(s)?

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[1] European Union Agancy for Fundamental Rights (2023). Protecting Civil Society, Update 2023, pp. 31-34.
[2] Amnesty International (2024). Under Protected and Over Restricted: The state of the right to protest in 21 European countries.
[3] Dejean de la Bâtie, A. (2023). Peaceful Protest Turned Violent: Will Article 11 ECHR Hold out against Increased Criminalisation? Strasbourg Observers.
[4] Marguénaud, J.-P., ed. (2015). La fondamentalisation du droit privé. Revue de droit d’Assas, 11, pp. 33-136.
[5] Dejean de La Bâtie, A. (2020). Droit Pénal et Mobiles Militants : De l’indifférence à La Déférence. Actualité juridique Pénal 21.
[6] Dejean de La Bâtie, A. (2019) Aide Aux Étrangers En Situation Irrégulière : Victoire En Demi-Teinte de La Cause Humanitaire. Recueil Dalloz 49.
[7] Van Boven, T. (2012). The right to peace as an emerging solidarity right, in Evolving Principles of International Law. Brill Nijhoff, pp. 137-147.
[8] May, L. (2007). The International Community, Solidarity and the Duty to Aid. Journal of Social Philosophy, 38(1).
[9] Brownlee, K. (2012). Conscience and Conviction: The case for civil disobedience. Oxford University Press.
[10] Dejean de la Bâtie, A. (2024). Pénalisation de l’expression militante : L’heure des actes. Recueil Dalloz, 21, 1032.

From volunteers helping refugees cross borders to climate protesters blocking highways, activists are facing harsh criminalization. Could the altruistic nature of their actions provide legal protection? This project explores the “right to help others” as a criminal defence, examining both its potential and its limitations. While existing laws and court decisions offer partial protection, they remain inconsistent and fragmented. Through comparative legal research and insights from activists and experts, the project defines the analytical content of the right to help others, as well as when and how this right should apply.