HUMAN RIGHTS COMMITTEE CONTINUES FIRST READING OF DRAFT GENERAL COMMENT ON THE RIGHT OF PEACEFUL ASSEMBLY

The Human Rights Committee this morning continued 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, read out the first three paragraphs as amended following a discussion on them last week, and the Committee decided to adopt them.

Concerning paragraph four, the Rapporteur said it introduced the idea of what peaceful assembly was about. There had been comments last week on “publicly accessible places”. One Expert said that the French version was not acceptable at all, but then noted that since the paragraph in English would be amended, they could deal with the translation after that happened. Another Expert said that they had to specify whether the right of peaceful assembly involved public places only, or if it concerned private places as well. One Expert thought they could remove the short paragraph, while others disagreed. An Expert said that a private place had to be open to the public, in order to qualify as a peaceful assembly. Also “a peaceful gathering” was better wording than “a non-violent gathering”, which had other connotations. One Expert said that limiting peaceful gatherings to public places, as well as to private places that were open to the public, limited the protections afforded by article 21 of the Covenant to other private gatherings. The Rapporteur said purely private gatherings were protected under article 22 and the right of association. The Committee Experts decided to adopt the paragraph with a number of modifications within square brackets and the idea of revisiting it.

With regard to paragraph five, the Rapporteur said it specified the different forms that peaceful assemblies could take. One Expert suggested adding “online assemblies” to the forms of peaceful assemblies. Another Expert said that after specifying peaceful assemblies that were “stationary, such as pickets, or moving, such as processions or marches”, they could add “in areas open to movement or in public and private areas closed to movement”. Some Experts supported the paragraph as it was, saying that the list of different forms of peaceful assembly in the paragraph did not have to be comprehensive and exhaustive, as other paragraphs added details similar to those that were suggested. The Rapporteur said there should be a thorough debate if they decided to add “online assemblies”, noting that paragraph 38 dealt with the digital space. The Committee decided to adopt the paragraph as the Rapporteur had suggested.

As for paragraph six, the Rapporteur said it pointed out that in the vast majority of cases, peaceful assemblies did not pursue controversial goals, and while there might be disruptions, this did not mean that the right of peaceful assembly should not be protected. One Expert said that after the word “risks” they could add “to public order”. The Rapporteur proposed some language changes. He said that on the “popular events”, they could remove the word “popular”, and they could change “to pursue unpopular goals” with “to pursue controversial goals”. He also agreed that concerning the sentence that began with “To the extent that the events may create risks”, they could add “to public safety” after that. The paragraph was adopted.

Concerning paragraph seven, the Rapporteur said this paragraph talked about the responsibility of States. One Expert said with the sentence “Law enforcement officials may have to use their discretion not to respond to every unlawful act immediately”, the “may” could be changed to “should”, while the wording of the last part of the sentence should be changed. “While continuing to counter violence” could be changed to “while addressing the risk to public order”, another Expert suggested. A number of Experts had a problem with the word “accommodated” in the sentence “Even unlawful assemblies must, as far as possible, be accommodated, as long as they are peaceful”, and suggested adding “with a degree of tolerance” or something similar. One Expert said that when using the word “accommodated”, the issue of necessity and proportionality should be considered. The Rapporteur said they had the right ingredients, but balancing them was important. He did not have suggestions for all of the requests. The issue of assemblies without notification, or the issue of what happens when one protestor breaks a window, raised the question of whether domestic laws should provide some “accommodation”? They did not want to open the door to anarchy. They could change the word “treat” with “facilitate”. Even assemblies which did not follow the rules must be “accommodated” or “tolerated”, but the Rapporteur said there must be suitable qualifiers, as this was not a carte blanche for all forms of violence. There had to be limitations. The paragraph was adopted.

The Rapporteur said that maybe paragraphs seven and eight could be combined, with the notion that peaceful assembly did not constitute an absolute right and may in some circumstances be limited or restricted, with justification that was clearly drawn out. One Expert said the paragraph could read “Peaceful assembly does not constitute an absolute right and may in some cases be restricted (instead of limited). However, any restrictions must be narrowly drawn. There are, in effect, limitations on the restrictions (instead of limitations) that may be imposed.” One Expert suggested adding the principles of necessity and proportionality at the end of the paragraph, as these were the ideas that would limit the restrictions. The Rapporteur said he agreed with the suggestions. The paragraph was adopted.

Concerning paragraph nine, the Rapporteur said it stated that article 21 should not be seen in isolation, and that political freedom and freedom of expression must also be protected, if the right of peaceful assembly was to be protected. One Expert asked if they needed to include to this paragraph, in the form of a footnote, references to other General Comments related to other rights as mentioned in paragraph nine. Another Expert said “freedom of movement” could be added to the other rights mentioned in the paragraph. One Expert suggested changing “The full protection of those engaged in peaceful assemblies” to “The full protection of participants in peaceful assemblies”. Another Expert asked what about “bystanders”, if they specified “participants in peaceful assemblies”. The Rapporteur said he agreed to most suggestions. As for the last suggestion on “of those engaged” or “participants in”, they could also say “The full protection of peaceful assemblies” without further specification, although he preferred “those engaged”. The paragraph was adopted.

As for paragraph 10, the Rapporteur said it signalled that the Committee recognized that manifestations in the public sphere that they wanted to protect were also protected by other rights. One Expert said that “primary protection” should be changed to just “protection” so as not to give a hierarchy of rights. Another Expert agreed with the Rapporteur that adding article 22 would also be helpful. The paragraph was adopted with the suggested amendments.

Concerning paragraph 11, the Rapporteur said that until paragraph 10, they had been talking about peaceful assemblies, but with paragraph 11, they were now talking about any assemblies, whether peaceful or not, to emphasize that there was no such thing as an unprotected assembly. As for listing all the rights, he did not know about that. The paragraph was adopted with the suggested amendments.

With regard to paragraph 12, the Rapporteur said it came before the General Comment started talking about the scope of the right, the obligations, and the State limitations, and so it started to flag these issues and the conditions that affected the way in which assemblies were viewed now. One Expert pointed out that new technologies presented not only new opportunities but also new spaces for the exercise of freedom of assembly, so he suggested adding the words “presented new spaces and new opportunities”. On the sentence “Communication technologies often play an integral role in organizing but also in controlling assemblies”, an Expert suggested adding the word “monitoring” before organizing. The paragraph was adopted with the suggested amendments, thus concluding the first section of the General Comment on general remarks.

Moving on to the second section of the General Comment on the scope of the right of peaceful assembly, which included paragraphs 13 to 24, the Rapporteur gave a general introduction to the section, saying the idea of this section was to identify what was this right in principle covered, including the space covered by the right, in addition to the crucial part of what was the definition of assembly, and what was the definition of peaceful.

The Committee will continue discussing the draft General Comment on Tuesday, 23 July, at 10 a.m. The drafting of the General Comment started on 20 March 2019 with a half day of general discussion. 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 Monday, 22 July, to hear the progress report of the Special Rapporteur on follow-up to concluding observations.

For use of the information media; not an official record