Human Rights Committee discusses revised draft general comment on the right of peaceful assembly with civil society

9 march 2020

The Human Rights Committee this afternoon discussed the revised draft General Comment No. 37 on article 21 of the International Covenant on Civil and Political Rights on the right of peaceful assembly with representatives of civil society organizations.

The Committee had started the elaboration of the draft General Comment No. 37 on 20 March 2019 with a half-day of general discussion. It had concluded the first reading of the draft text on 7 November 2019.

Christof Heyns, Committee Expert and Rapporteur for the General Comment No. 37, opened the discussion by highlighting the importance of NGO participation in the process and welcomed the 54 formal submissions the Committee had received in this round.

Tania Maria Abdo Rocholl, Committee Vice-Chair, moderated the discussion.

In their comments, representatives of civil society organizations addressed issues such as the importance of including online assemblies in the General Comment, the right to privacy in the light of new information technologies, the rights of human rights defenders and the definition and framing of violence. A speaker said that the Committee should remove the public-private distinction from the General Comment, while another requested both journalists and human rights defenders to be clearly defined in the text.

Speaking in the discussion were representatives of the Netherlands Helsinki Committee, Institut de Drets Humans de Catalunya, Association for Progressive Communications (APC), Equal Rights Trust, Maat for Peace, Development and Human Rights, Article 19, Child Rights Connect, Privacy International, International Service for Human Rights, Girls Advocacy Alliance, Paris Human Rights Centre, Inter-Parliamentary Union, Amnesty International, International Network of Civil Liberties Organizations, Rights Exposure and Centro de Estudios Legales y Sociales.

All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. Summaries of the Committee’s public meetings in English and French are available at the United Nations Office at Geneva News and Media page, while the webcast can be viewed at UN Web TV.
The Committee will next meet in public at 3 p.m. tomorrow, 10 March to consider the initial report of Dominica in the absence of a report.

Discussion

CHRISTOF HEYNS, Committee Expert and Rapporteur for the General Comment No. 37, underlined the importance of the participation of non-governmental organizations and welcomed the 54 formal submissions the Committee received in this round. He outlined important sections of the text including restrictions, notification systems, duties and powers of law enforcement officials, states of emergency and armed conflict, as well as the relationship between the right of peaceful assembly and other rights.

Speakers underlined that the right of peaceful assembly was particularly important during the current coronavirus epidemic and in light of certain recent national policies, such as Iran’s crackdown on peaceful protests in November 2019, Turkey’s severe restrictions on the right of peaceful assembly under the new anti-terrorism law or Russia’s laws related to lesbian, gay, bisexual, transgender and intersex persons.

Multiple speakers called for the General Comment to express the explicit recognition of the duties of States in relation to the criminalization of the exercise of the right of peaceful assembly, noting that it was absent in the current draft.

Speakers welcomed references to assemblies in online spaces in the text and urged the Committee to integrate more online elements and references throughout the text. The Committee was asked to provide more direction to States and other stakeholders on this issue and include the notion of “online assembly” as the use of information and communications technologies to exercise the right of peaceful assembly either wholly in online spaces or in conjunction with offline spaces. The Committee should articulate that blocking or reducing Internet connectivity was never a proportionate response to an assembly and to address the issue of encryption when referencing the right to privacy.

Following on the right to privacy, speakers recommended the Committee to highlight the need for transparency in the use of surveillance technologies during assemblies. A reference should be added to restrict digital ‘stop and search’ techniques such as technologies that could extract information from mobile phones. Surveillance during assembly must be exceptional and authorized by judicial authorities.

In relation to digital spaces, greater clarity on the obligations of businesses in respecting the right of peaceful assembly was required.Companies had a responsibility regarding the provision of internet access during disruptions and shutdowns, but self-regulation of internet service providers alone was insufficient to ensure Internet access. States had a responsibility to actively prevent actions by businesses that could interfere with the right of peaceful assembly.

The right to public meetings should not disappear in private spaces, thus the public-private distinction should be removed from the draft. In reference to this issue, a speaker provided a potential clearer definition for peaceful assembly to mean “an intentional and temporary gathering in a private of public space for a specific purpose.” In regards to peaceful assembly online, social media companies and communication platforms had the capacity to affect the right of peaceful assembly online by handing over private information to States.

The right to equality and non-discrimination was a very broad right, that was why the language in the draft text should be framed as a positive obligation not to discriminate.The text should talk about equality of assembly and the obligation of States to remove obstacles to participation for all, including by taking proactive steps to ensure that different groups could exercise the right of peaceful assembly.

Further commenting on restrictions, speakers sought the strengthening of overarching general principles. The references to “general” rules and “exceptions” to those rules were considered too ambiguous, possibly giving States license to define any subjective reason as “exceptional” and justifying limitations to the right against the “general”rule.The text should state that the practice of “kettling” protesters within a cordon and then arresting them should not be used.

Multiple speakers expressed concerns around the language used to distinguish between peaceful and violent assemblies, noting that the right of peaceful assembly was framed in negative language as a result. It created a negative association between the right and violence and did not properly capture positive obligations of the State. The text should explicitly state that the use of protective clothing such as gas masks or shields should not be interpreted by themselves as intention to engage in violence. Speakers welcomed paragraph 19 where the General Comment emphasized that limited or isolated instances of violence did not result in an assembly as a whole losing protection.

Regarding gender, speakers noted the gender-neutral character of the General Comment and encouraged the committee to recognize the wider array of hurdles faced by women and lesbian, gay, bisexual, transgender and intersex persons in their participation in assemblies, as well as in terms of police misconduct.

The text should adopt an age-specific approach and include explicit information on the positive obligations of States regarding peaceful assembly in relation to children. More emphasis should be placed on the responsibility of States to protect human rights defenders, especially those at risk and protection should be extended towards individuals who brought complaints against law enforcement officers for excessive use of force.

The right to observe the assembly, a part of Article 21, was essential for journalists and monitors, who did it for public benefit. Also, individuals could play a double role of participant and journalist.

A speaker noted that references to assemblies that carried a political message did not specify the level of accommodation and protection. Restrictions on those assemblies were often in the hands of the police and the ministers of the interior, thus the General Comment should state that this process should be de-politicized.

States had an obligation to ensure that business enterprises did not violate the rights of protesters. The evolving role of social media companies and other companies that mediated online space had to be taken into account, as they controlled access that enabled a person to exercise their rights online. Meaningful access to the Internet was a necessary precondition to enable freedom of assembly online and offline. This was also important in the context of network shutdown.

Concluding Remarks

CHRISTOF HEYNS, Committee Expert and Rapporteur for the General Comment No. 37, noted that comments on discrimination, obligations of business, digital gatherings and private spaces and others resonated with the Committee. He thanked the speakers for their contributions and comments, which would find a way into the text.

TANIA MARIA ABDO ROCHOLL, Committee Vice-Chairperson, in her concluding remarks, thanked the participants for their contributions.

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For use of the information media; not an official record