Human Rights Committee, states discuss revised draft general comment no.37 on the Right of Peaceful Assembly

6 March 2020

The Human Rights Committee this afternoon heard comments from States parties on 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.

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.

Ahmed Amin Fathalla, Committee Chairperson, opened the discussion, noting that the invitation to stakeholders to provide input on the draft text had generated 112 contributions from States and civil society organizations.

Christof Heyns, Committee Expert and Rapporteur for the General Comment No. 37, said that draft General Comment aimed to provide guidance on rules of engagement pertaining to peaceful assemblies. The Committee hoped to complete the second reading of the draft General Comment in 2020.

In their comments, representatives of States addressed issues such as a symbiotic relationship between the right of peaceful assembly and the right to self-determination, duties and powers of law enforcement agencies and notification and authorization regimes. A speaker said that the Committee should not use regional jurisprudence to interpret the Covenant, while another reiterated robust support for the right of peaceful assembly and stressed the importance of ensuring that the General Comment did not enable unlawful restrictions of this right.

Speaking in the discussion were the United States, Switzerland, Belarus, Pakistan, Israel, Germany and Uruguay.

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 on Monday, 9 March, at 3 p.m. to hear inputs by other stakeholders on draft General Comment No. 37 on article 21 on the right of peaceful assembly.

Opening Statements

AHMED AMIN FATHALLA, Committee Chairperson, said that the invitation to provide input on the draft general comment had generated 112 contributions from stakeholders such as States and civil society organizations. The Committee highly appreciated the feedback from States, he said, stressing that the efforts to seek their input were in line with General Assembly resolution 68/268.

CHRISTOF HEYNS, Committee Expert and Rapporteur for the General Comment No. 37, said that demonstrations brought into play not only article 21 but also other rights enshrined in the Covenant, such as the right to life and freedom of expression. It was therefore important for the Committee to provide guidance on rules of engagement pertaining to peaceful assemblies, and it hoped to complete the second reading of the draft General Comment in 2020.

To understand the current thinking on the issue, the Committee had adopted an inclusive approach to the drafting of the text. It had held consultations, including online, sought input by human rights special procedure mandate-holders and today was holding the dialogue with States.

The draft General Comment mentioned negative obligations of States, such as not to interfere in the holding of peaceful assemblies, as well as positive obligations, such as to protect participants in the demonstrations, including against violence by counter-demonstrators.

It was important to understand the limits to the restrictions that could be placed on the right to peaceful protest, for example on the grounds of national security or, as in the current context, to protect public health. The proportionality criterion must be respected, stressed Mr. Heyns.

Discussion

Speakers in the discussion said that the first chapter of the draft General Comment, while aptly giving an overview of the right of peaceful assembly, failed to link it the to the right to self-determination. And yet, there was a symbiotic relationship between those two rights.

The Committee should not use regional jurisprudence to interpret the Covenant.

Article 20 of the Covenant should not be interpreted in a manner that expanded the scope of restrictions set out in Article 21, a speaker said, reiterating their robust support for the right of peaceful assembly. The General Comment should not enable unlawful restrictions of this right.

Commenting on the parts of the draft dealing with notification and authorization regimes, speakers said it was important to set out clear criteria for a given regime to comply with the Covenant. The Committee should take into account the existing national practices and legislation on that issue.

On the duties and powers of law enforcement agencies, speakers expressed overall agreement with the draft General Comment. They recommended that the Committee set out guidelines on the use of kinetic impact projectiles, the use of which often violated the United Nations 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The use of such projectiles for crowd control could lead to a blinding or partial loss of sight, which was a grievous injury. As they arbitrarily deprived people of the basic right to life, kinetic impact projectiles should never be used, and neither should automatic firearms.

Other speakers, noting that there was no internationally agreed definition of “autonomous weapons”, said the sentence using this “controversial terminology” should be deleted. The draft General Comment cited documents that were not legally binding, some of which were also “controversial”, as they had been rejected by States and scholars.

Committee Experts, addressing comments on the General Comment’s references to non-binding and regional instruments, said the Committee sought to draw on the wisdom of other bodies and experts to identify good practices. This did not, however, amount to creating new obligations for States.

CHRISTOF HEYNS, Committee Expert and Rapporteur for the General Comment No. 37, said the General Comment would not create new law, nor did the Committee see itself as the source of new obligations. The Committee had referred to regional jurisprudence in 25 communications in 2019, thus regional jurisprudence could be a source of inspiration even though the Committee was not in any way bound by it. The international discussions that had failed to reach consensus on a definition of the phrase “autonomous weapons” dealt with armed conflicts, not peaceful assemblies, he said. On this matter, the Committee wished to flag the issue rather than take a strong view.

AHMED AMIN FATHALLA, Committee Chairperson, in his concluding remarks, thanked participants for their contributions, which had an added-value. The Committee had taken due note of their comments.

___________

For use of the information media; not an official record