HUMAN RIGHTS COMMITTEE CARRIES ON WITH THE FIRST READING OF ITS DRAFT GENERAL COMMENT ON THE RIGHT OF PEACEFUL ASSEMBLY

The Human Rights Committee this morning carried on with the first reading of its draft General Comment number 37 on article 21 of the International Covenant on Civil and Political Rights on the right of peaceful assembly.

Christof Heyns, Committee Rapporteur for the draft General Comment, said that last week, they had gone through 12 paragraphs in the general remarks section that had been revised and changed accordingly, and he hoped today they could adopt the next eight paragraphs in the second section on the scope of the right of peaceful assembly. He would be contacting the secretariat to see if they could receive more meetings in the fall session to continue the first reading of the draft General Comment. After reading out the amendments to the first 12 paragraphs in the general remarks section, he said some would continue to have square brackets until they reached consensus on them, and he hoped to return to them in October.

Mr. Heyns, introducing the second section on the scope of the right of peaceful assembly, said it tried to identify what the right was, and then dealt with limitations. One Expert said that paragraph 13 said that “the right may be exercised, for example, by foreign nationals, such as migrant workers, asylum seekers and refugees, and people who have crossed a border to participate in an assembly”, but noted that they should take out the “such as” as there were foreign nationals who were tourists for example. Another Expert said if they were speaking of categories, they were missing stateless people, also suggesting that they add “without fear of reprisal”. The amendments were introduced and the paragraph was adopted.

On paragraph 14, Mr. Heyns said they could place “obligation of accommodation” and “in a publicly accessible place” in square brackets. One Expert said they should remove the quotation marks on “assemblies” and “peaceful”, and the second sentence could be removed as it was redundant. The last sentence “Expression need not be the only or even the main goal” should either be further explained or deleted. One Expert said that in the sentence starting “to qualify as an ‘assembly’, there must be more than one person”, the word generally could be added after the word assembly, in order among other things to open up the possibility of including online assembly. One Expert said some gatherings, like funerals, weddings, and traditional or folklore events, could not apply under article 21. Amendments were made, with square brackets remaining.

Concerning paragraph 15, some comments were made about the sentence “one-person protests are not covered by article 21, although such actions may be protected under other provisions of the Covenant”. One Expert preferred to have a written amended paragraph before discussing it further. Another Expert said unconventional expressions of solidarity with others should be encompassed in the paragraph. On “commercial or social entertainment purpose”, an Expert suggested removing the social entertainment words. The Chair suggested having the whole paragraph within square brackets, with brackets within the brackets. Paragraph 16 was adopted after amendments were made.

On paragraph 17, one Expert suggested that “both sides can claim article 21 protection” should be changed to “both sides fall under the protection of article 21”. Mr. Heyns said that this paragraph introduced “counter assemblies” briefly, but this concept was dealt with in more detail further in the draft General Comment. The paragraph was adopted.

With regard to paragraph 18, Mr. Heyns said it explained what a peaceful assembly was, adding that the sentence on “the terms ‘peaceful’ and ‘non-violent’ could thus be used interchangeably” would probably need more discussion but it was meant to indicate that an assembly could either be peaceful and non-violent, or violent, there was no third alternative. Experts suggested some amendments. One Expert said in the sentence “violence in this context typically entails the use by participants of physical force”, they could add “or use of weapons”, while another said that in the phrase “that is likely to result in injury or serious physical damage to property”, they could add “or death” after ‘injury’. Varying views were expressed about the sentence “mere disruption of daily schedules does not amount to violence”. The paragraph was adopted.

Concerning paragraph 19, an Expert asked if they really wanted to invoke the violation of the law, noting that it was meant to highlight the sometimes excessive or arbitrary nature of the law. Mr. Heyns said that “breaking the law peacefully” was a bit harsh; it referred to protests like those against apartheid. Another Expert said that breaches of the law had to be responded to. The paragraph was adopted.

Mr. Heyns, on paragraph 20, said it was difficult to decide where peaceful assemblies turned violent. On the sentence “a violent assembly is one that is characterized by widespread and serious violence”, an Expert said “widespread” should be removed. Another Expert said it was important to maintain a wide threshold and cautioned against lowering it. She said the last sentence was good but it needed to be strengthened. Mr. Heyns explained his position, and the paragraph was adopted.

Moving to paragraph 21, one Expert said there was a real problem with the last sentence in French and it needed to be changed to conform more to the English text. Another Expert said that the term “members of the public” in the last sentence was a bit unclear. Amendments were suggested and Mr. Heyns was asked to consider them.

Mr. Heyns said that paragraph 22 dealt with situations where people had traditional weapons or other objects that they brought to assemblies. In some settings, this was no longer seen as a peaceful assembly by the authorities. An Expert said that there were situations where the law was broken if weapons were present but if they were not used then it would still be a peaceful assembly. The paragraph was adopted.

Concerning paragraph 23, Mr. Heyns said it talked about “deemed violence” and “incitement or intention of violence”. One Expert said the word “imminent” in the second sentence should be changed. It was put in square brackets and the paragraph was adopted.

Yuval Shany, the Committee Vice President, said they had almost finished the second section of the draft General Comment, except for one paragraph. If they were lucky and worked hard, the Committee would be able to conclude its first reading of the draft General Comment in the fall session.

The drafting of the General Comment started on 20 March 2019 with a half day of general discussion. The first reading started during this session and summaries can be found here and here. Further information about draft General Comment No. 37 can be obtained here.

The next public meeting of the Committee will be at 3 p.m. on Wednesday, 24 July, to hold an informal meeting with States parties in room XVI of the Palais des Nations.