20 March 2019
The Human Rights Committee this morning held a half-day general discussion in preparation for a general comment on article 21 of the International Covenant on Civil and Political Rights on the right of peaceful assembly.
Introducing the general comment, Christof Heyns, Committee Expert and Rapporteur for the general comment N°37, said that protest action was a defining part of the modern era and that allowing a platform for peaceful protest within a sensible framework was an integral part of the quest for a more peaceful world. The drafting process offered a singular opportunity to develop a coherent framework on which to base the future jurisprudence and to examine how new developments in the world impacted this right. Clearly, he said, assemblies were a “different animal” in the world of instant communications, surveillance, many more forms of non-lethal weapons, and the increasing use of drones in policing actions. Based on the written submissions received so far and today’s discussion, the Committee would develop the first draft of the general comment, which would be publicly discussed in July 2019, while the final version was expected by end of 2020.
Clement Nyaletsossi Voule, United Nations Special Rapporteur on the rights to freedom of assembly and of association, stressed the importance of a general comment on right of peaceful assembly given the closing of the civic space across the world. The text should stress the presumption of a peaceful nature of demonstrations; the online space and the emerging issues related to the increasing use of new communication technologies, especially social media, as basic tools that enable individuals to organize peaceful assemblies; as well as the issue of legitimate restrictions. The elaboration on the use of force was particularly relevant in the current rise of social movements around the world.
Speakers in the general discussion remarked that from the legal perspective, the term “peaceful” was ambiguous and prone to a narrow interpretation by States wishing to limit the scope of the right. The Committee should adopt a broad interpretation of the term and exclude only those instances in which there was a clear and convincing evidence of intent by protesters to engage in violence. The general comment should contain an integrated and robust framework on how the rights to the right to freedom of association, the right to freedom of expression, and the right to peaceful assembly complemented each other and how those links could be a platform for social movements’ claims, but should not be overly prescriptive of the ways, places, and means of assembly. The general comment needed to be drafted with the ever-evolving nature of online assembly in mind and in such a way to “future-proof” its application. This was particularly important in light of the increasing tendency of States to use Internet shutdowns as a means of stifling the right of peaceful assembly. The use of technologies such as facial recognition cameras, “International Mobile Subscriber Identity” or IMSI catcher, and social media intelligence on the right of peaceful assembly must be examined, especially its chilling effect on the exercise of the right and the lack of regulation which lead to indiscriminate surveillance. As for the means of dispersal, the general comment must highlight that any “less-lethal” weapon remained nonetheless lethal when used with the intent to harm or without any precaution to avoid harm.
Speaking in the discussion were Amnesty International, International Network of Civil Liberties Organizations, International Service for Human Rights, Article 19, Open Society Justice Initiative and Committee on the Administration of Justice, Privacy International, Human Rights House Foundation, MENA Rights Group, City of Amsterdam, Centre de recherche sur les droits de l'homme et le droit humanitaire Université Panthéon - Assas Paris II, Office of Democracy Institutions for Human Rights, International Trade Union Confederation, Equal Education Law Centre, Human Rights Center "Memorial" and OVD-Info, Netherlands Helsinki Committee, United Nations Educational, Scientific and Cultural Organization Center of Catalonia (UNESCOCAT), Institute for NGO Research, Sexual Rights Initiative, World Movement for Democracy, People’s Watch India/ International Dalit Solidarity Network, and Green Peace International (video message).
The Committee also saw the CIVICUS-facilitated pre-recorded interview with three women human rights defenders from Egypt, Zimbabwe, and the United Kingdom; a video by INCLO, a network of 13 independent, national human rights organizations from different countries in the North and South; and a video message by several human rights activists.
In his concluding remarks, Mr. Heyns thanked the participants for raising the important issues in which the Committee needed to delve deeper, and noted the issue of technology loomed particularly large, both in facilitating the exercise of the right to a peaceful assembly and in limiting the enjoyment of the right.
Ahmed Fathalla, Committee Chairperson, in conclusion thanked the participants for their contributions which gave the Committee food for thought and invited them to continue to contribute their ideas during the elaboration of the general comment.
All the documents relating to the half-day general discussion in preparation for a general comment right of peaceful assembly, including the written submissions by stakeholders can be found on the Committee’s webpage. The webcast of the Committee’s public meetings will be available via the following link: http://webtv.un.org/meetings-events/.
The Committee will next meet in public at 3 p.m. today, 20 March to continue the adoption of the report on the follow-up to views.
AHMED FATHALLA, Committee Chairperson, welcomed all the participants and outlined the agenda for the half-day of the discussion.
CHRISTOF HEYNS, Committee Expert and Rapporteur for the general comment N°37, in his introductory remarks said that peaceful assemblies had shaped today’s world and continued to do so as thousands of people engaged in various forms of peaceful assemblies all over the world. Historically, demonstrations and assemblies had played a critical role in ending colonialism, addressing racial discrimination in the United States, bringing apartheid to a fall, and recently in the Arab Spring. Marches, protest, demonstrations, sit-ins, and other forms of peaceful assembly were a major vehicle through which other civil and political rights came to life and through which the power relations were addressed and social contracts rewritten. Demonstrations were a powerful and sometimes unpredictable tools; they could also be used for anti-human rights causes and sometimes escalated violence. However, allowing a platform for peaceful protest within a sensible framework was an integral part of the quest for a more peaceful world.
If protest action was a defining part of the modern era, then a sensible framework must be developed to manage and facilitate demonstrations and channel them as productively as possible. The drafting of the general comment offered a singular opportunity to do so, to reflect on the piece-meal jurisprudence of the Committee on this topic, and develop a coherent framework on which to base future jurisprudence on the right to a peaceful assembly. The drafting process was also a chance to examine how new developments in the world impacted this right, for clearly, assemblies were a “different animal” in the world of instant communications, surveillance, many more forms of non-lethal weapons, the increasing use of drones in policing actions, and so on. The Committee had received 43 written submissions and today, it would hear from a number of stakeholders; based on the discussions, the Committee would develop the first draft of the general comment, which would be publicly discussed in July 2019, while the final version was expected by end of 2020.
The Committee then saw a pre-recorded interview, facilitated by CIVICUS, with three women human rights defenders from Egypt, Zimbabwe, and the United Kingdom who spoke on questions such as the specific challenges women human rights defenders faced in exercising their right of peaceful assembly; a video by INCLO, a network of 13 independent, national human rights organizations from different countries in the North and South; and a video message by several human rights activists. Green Peace International in a video message stressed that disruptive peaceful forms of protests had an honourable history and that the general comment should emphasize that a disruption or loss of business should not be grounds for prohibiting peaceful assembly.
CLEMENT NYALETSOSSI VOULE, Special Rapporteur on the rights to freedom of assembly and of association, in his address to the Committee welcomed the decision to develop a general comment on article 21 to fill the interpretation gap in the context of the right of freedom to peaceful assembly, which he said was particularly important in the current context of the closing of the civic space across the world. The general comment should stress that peaceful nature of demonstrations should be presumed and that lawfulness of a demonstration should be assessed first and foremost in term of it peaceful nature. Sporadic acts of violence by a few individuals should not automatically mean that the assembly as a whole was not peaceful. The text should address the online space and the emerging issues related to the increasing use of new communication technologies and the Internet, especially social media, as basic tools that enabled individuals to organize peaceful assemblies. States must protect this right also online.
In the context of legitimate restrictions, the Special Rapporteur raised concern about the use of the fight against terrorism and other security considerations such as combatting money laundering to justify the adoption of a state of emergency or other stricter rules to void the rights to freedom of peaceful assembly. Therefore, the general comment should provide a detailed guidance to States to adequately protect the multiple forms of assemblies that existed today and to adequately calibrate their response to assemblies, including the use of force in complex contexts at times when the world witnesses a rise of social movements around the world. The Special Rapporteur stressed in closing that general principles that must govern any use of force were legality, necessity, proportionality, and accountability.
Statement by Stakeholders
Amnesty International stressed that the general comment needed to be drafted with the ever-evolving nature of online assembly in mind and in such a way to “future-proof” its application. This was particularly important in light of the increasing tendency of States to use Internet shutdowns as a means of stifling the right of peaceful assembly. It should address the use of force and require police to take all reasonable and appropriate measures to enable people to exercise this right without undue interference. Amnesty International also raised the issue of the restrictions on the right of peaceful assembly in the context of state of emergency, citing examples of the use of powers to combat terrorism to stifle labour union evens, environmental protests, and workers protesting their working conditions.
International Network of Civil Liberties Organizations outlined twelve guiding principles that should inform the preparation of the general comment, including the role of legislation, leadership, and policing culture in protecting and promoting the right of peaceful assembly. States must adopt legislation and policies to safeguard this right. Policing institutions should adopt de-escalation and non-escalation techniques during an assembly. The organization remained deeply concerned by manner in which assemblies were policed in various jurisdictions around the world and stressed that if freedom of expression was the grievance system of democracies, the right to protest and peaceful assembly was the democracy’s megaphone.
International Service for Human Rights said that it had developed a Model Law for the recognition and protection of human rights defenders in consultation with over 500 human rights defenders from every region. It set out the ways to implement human rights, including the right of peaceful assembly, at the national level and was being used by States including Côte d’Ivoire, Mali, and Burkina Faso to create national legislation to protect the defenders’ rights. The Committee should protect the right of peaceful assembly and ensure that this right was as broad as possible, and effectively address those governments that were cracking down on this right.
Article 19 said that the term “peaceful” was an ambiguous term from a legal perspective and was prone to a narrow interpretation by States wishing to limit the scope of the right. The general comment should therefore adopt a broad interpretation of the term and exclude only those instances in which there was a clear and convincing evidence of intent by protesters to engage in violence. Also, the Committee should broadly define the concept of “assembly” in order to reflect the increasingly creative ways in which people collectively exercised their rights. The general comment was an opportunity to consolidate normative advances in understanding the application of article 21 online and clarify its intersection with the right to freedom of expression and the right to privacy.
Open Society Justice Initiative and Committee on the Administration of Justice called the attention to the important relationship between article 21 and the right to access to information guaranteed by article 19 and stressed that the basic principle was that access to information was necessary in order to enable individuals to exercise their right of peaceful assembly. The second set of recommendations concerned the use of undercover agents and other forms of surveillance to infiltrate groups engaged in peaceful assembly, as well as the use of online or digital surveillance. The Committee should make clear the standards that applied to assessing the unlawfulness or arbitrariness of surveillance in the context of assemblies.
Privacy International encouraged the Committee to develop its analysis on how the use of technologies such as facial recognition cameras, “International Mobile Subscriber Identity” or IMSI catcher, and social media intelligence affected the right of peaceful assembly. The use of such technologies had a chilling effect on the exercise of the right of peaceful assembly since it challenged the possibility to remain anonymous during demonstration, while the way the technologies were being operated often lead to indiscriminate surveillance. In many cases, there was a lack of adequate regulation on their use at national level often because the police classified the technology as “overt surveillance”, therefore not attracting the level of scrutiny of “covert surveillance” techniques.
Human Rights House Foundation stressed that assemblies, rallies, peaceful protests and pickets could be particularly targeted by the authorities if these conveyed dissenting messages and opinions or were organised by members of those deemed to be in “opposition” to those holding power. Besides receiving administrative and criminal sanctions in connection with legal restrictions on the holding of assemblies, organisers and participants were subjected to intimidation, harassment and assault. Such sanctions could even occur in advance of an assembly, so as to stop an assembly before it begun. Protections of freedom of assembly therefore begun well in advance of an assembly taking place.
MENA Rights Group stressed that the likelihood that an assembly might lead to violence should not be considered as a basis to restrict the right to assemble but rather as an element triggering an obligation for the State to facilitate the assembly by protecting its peacefulness. As for the means of dispersal, the general comment must highlight that any “less-lethal” weapon remained nonetheless lethal when used with the intent to harm or without any precaution to avoid harm. Also, the use of special forces with hybrid civilian-military status which were neither trained in law enforcement standards nor subjected to civilian and democratic control, should be considered in itself as a form of disproportionate use of force.
City of Amsterdam said that about 1,000 demonstrations were held in Amsterdam every year and that the City applied the four key principles to all of them, including that the purpose of the State was safeguarding freedom and ensuring freedom of assembly because it was simply the duty of a true democracy to do so. The principle of “hands off the content” meant that no judgements were made about the message of a demonstration, which meant not only accepting that people thought and said awful things but also actively protecting their rights to do so, within the boundaries of the law.
In the discussion that followed, Committee Experts thanked the stakeholders for their presentations that would enrich the Committee’s work on developing the general comment. The Experts asked for comments and explanations of the concept of “heightened protection”; surveillance and the use of body cameras in the context of producing a measure of accountability on behalf of law enforcement activities; the legal argument for separating individuals engaged in violence from other participants in peaceful assembly; and concrete examples of what an online or virtual assembly was in a way that distinguished it from the exercise of rights under article 19.
Responding, speakers said that the concept of “heightened protection” meant that a speech of public interest was entitled to particular attention and protection. The Committee should look very closely at the purpose of the use of body cameras in the context of monitoring of peaceful assemblies and specify whether the technology used could identify demonstrators, because this had a chilling effect on the exercise of the right of peaceful assembly. The general comment should therefore look both at the purpose and the safeguards of the use of such technology. As for the legal argument for separating individuals engaged in violence from other participants engaged in peaceful assembly, speakers stressed that individuals were rights holders and urged the Committee to examine the decision by the European Court of Human Rights and the decision of the Inter-American Court of Human Rights concerning women victims of sexual torture. An online assembly could be defined as a concerted action on an online platform, speakers said and emphasized the need to define whether the phenomenon of the content “going viral” qualified for peaceful assemblies. The Committee should also identify the extent to which the rules governing offline assembly applied to online assembly.
Statement by Stakeholders
Centre de recherche sur les droits de l'homme et le droit humanitaire Université Panthéon- Assas Paris II urged the Committee to address in the general comment the important issue prior declaration regime which must be distinguished from the authorisation regime, and ensure that spontaneous demonstrations could not be restricted due to lack of prior notification. The speaker also underlined that limits applied to peaceful assemblies must be assessed by a judge and the organizers must have a recourse to challenge the restriction.
Office of Democracy Institutions for Human Rights stressed that States had a positive obligation to facilitate, protect, and enable peaceful assemblies in all contexts, including non-notified ones. The States also had a negative obligation not to interfere if there was no reason to interfere. The general comment should clarify standards in areas where there was no formal agreement or in emerging issues, including online assemblies and surveillance, and recognize human rights monitors as an independent third party, which played an important role in holding States accountable.
International Trade Union Confederation stressed the links between the right to freedom of association and the right to peaceful assembly, exemplified in the realization of the right of all workers to form trade unions. Rising authoritarianism led not only to the criminalization of protests and strikes, but to unprecedented levels of violence and brutality, with police forces frequently resorting to serious physical assault on workers, including by using firearms against them. Ensuring a conducive and permissive environment for the enjoyment and exercise of the right to peaceful assembly is essential.
Equal Education Law Centre highlighted the importance of peaceful assemblies for children and urged the Committee to specifically consider their needs in preparing the general comment, and in particular its link with the right to freedom of expression and the right to participation. Children in many countries were not allowed to vote, which gives the right to assemble peacefully even greater importance. The prior notification requirement should be facilitated to enable the children to exercise the right to protest and the mere failure to provide prior notification should not result in sanctions of penalty given its restrictive effect on children.
Human Rights Center "Memorial" and OVD-Info brought the issue of solo demonstration to the Committee’s attention, stressing that this should be considered under the right to freedom of peaceful assembly and not only as an exercise of a right to freedom of expression. The general comment should define the right for organizers to invite participants to a peaceful assembly even before the formal notification to authorities, especially where deadlines for notification were short.
Netherlands Helsinki Committee stressed that the participation in a peaceful assembly as such should never constitute a crime, in any circumstances and under any pretext. Even the existence of the relevant criminal offence in a statute book was sufficient for the creation of a so-called “chilling effect” that would prevent citizens from exercising their human right to take part in a peaceful assembly. The principled and unequivocal position expressed by the Committee in this respect would serve as a guidepost not only for the interpretation of the Covenant but also for human rights defenders across the globe who were fighting every day to protect the public space for expressing dissent.
United Nations Educational, Scientific and Cultural Organization Center of Catalonia (UNESCOCAT) urged the Committee to ensure that the general comment addressed the challenges to the enjoyment of rights under article 21, specifically the imposition of undue restrictions in pursuit of national security or public order, as well as criminalization of participants in peaceful assemblies in which some individuals behaved violently. Perhaps most importantly, the general comment should address the criminalization of civil disobedience and non-violent direct action, which had the chilling effect on the right of peaceful assembly.
Institute for NGO Research in their statement focused on the word “peaceful” and the scope of this concept and expand on the existing guidance on how draw the line between protected and prohibited activity and provide concrete examples. The organization believed that activities such as vandalism, looting, setting fires, and other destruction of public and private property could not be considered “peaceful” assembly.
Sexual Rights Initiative underlined that the general comment should contain an integrated and robust framework on how the rights to freedom of expression and to peaceful assembly complemented each other and how their links could be a platform for social movements’ claims. It should not be overly prescriptive of the ways, places, and means of assembly and so create a ceiling rather than a baseline for more innovative and expansive claims. Disruption worked for marginalized groups because it demanded notice in a way that dispassionate discourse simply could not and orderliness could thus quite easily serve power.
World Movement for Democracy urged the Committee to recognize in the general comment the right of individuals and organizations to seek funding from legal sources to support the organization of assemblies and the functioning of the organizations. This was particularly important considering the growing trend towards the restriction of the search for funding, for example in the context of anti-money laundering laws and initiatives.
People’s Watch India/ International Dalit Solidarity Network said that there was not only room but also need for considering positive obligations to ensure that vulnerable group enjoyed the right of freedom of assembly on equal footing vis-à-vis other groups. Dalit and other indigenous peoples and minorities faced violence, hate speech, and discrimination in their freedom of expression and the right of peaceful assembly. That was why States should simplify procedures related to registry of organizations and notification procedures for gathering and protests, and also facilitate access of such organizations to international forums.
In the next round of questions, the Committee Experts asked whether prioritizing messages for heightened protection might open the way for States to further regulate the exercise of the right of peaceful assembly. Could the speakers comment on the interpretation of “public morality”?
Responding, speakers from organizations remarked that the heightened protection would apply to all the issues of public interest and that the issues of identity should be entitled to the highest protection. On public morality, the speakers said that there must be a strong link between democracy and human rights standards in countering arguments of tradition and culture in, for example, removing the observer status from an African lesbian and gays association from the African Union on the grounds of not being in line with “Africaness”. Another speaker underlined the importance of the differences between the right to assembly and the righto demonstrate, since there were instances, such as the Mothers of the Plaza de Mayo who regularly congregated to commemorate and remember.
CHRISTOF HEYNS, Committee Expert and Rapporteur for the general comment N°37, in his concluding thanked the participants in the discussion for raising the important issues in which the Committee needed to delve deeper. The issue of technology loomed particularly large, he said, both in facilitating the exercise of the right to a peaceful assembly and in limiting the enjoyment of the right. The speakers underlined the need to broadly define the concept of assembly, and to address the reality of manifestations and demonstrations moving from public spaces to private ones, such as malls, for example, which raised questions that had to be answered.
AHMED FATHALLA, Committee Chairperson, in his conclusion thanked the actors for their contributions which gave the Committee food for thought and invited them to continue to contribute their ideas during the elaboration of the general comment.
For use of the information media; not an official record