General Comment No. 37: Translating the “Right to Protest” in Turbulent Times

The United Nations Human Rights Committee has adopted General comment No. 37 on the right of peaceful assembly emanating from Article 21 of the International Covenant on Civil and Political Rights (ICCPR). The final document was made available last week, and can be found here.   

The adoption of this general comment – which is in effect an explanation or translation of Article 21 – could not have come at a more opportune moment. 2019 and 2020 have seen gatherings in protest across the globe, including in Hong Kong, India, the United States of America, Lebanon, Venezuela and Kenya.

The right of peaceful assembly, guaranteed by the ICCPR and encapsulated in Article 21, relates directly to the ability to gather, to voice a point of view, and to also challenge authority. This is a standalone right in and of itself but is also linked to guarantees of other protected rights within the covenant. Hence, the significance of this provision, which states:  

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

General comment No. 37 is the first general comment issued by the Human Rights Committee specifically in relation to Article 21. (All previous general comments of the Human Rights Committee are available here.) While the timing is apt, it is also worth noting that the adoption of the general comment has been the culmination of a lengthy and transparent process, lead by Professor Christof Heyns. This has included hearings and submissions by states, national human rights institutions, civil society organizations, academics and experts – all available on the OHCHR website here – and the drafting of the general comment has taken the better part of two years. (For more on the background of the process as well as the thinking of the lead author and committee member, a recent interview is well worth reading). 

The intention of this post is not to highlight all the aspects of the general comment, but to focus on a few issues that have arisen as a result of protests in recent months. 

The first aspect that the general comment addresses is the scope of protection and what would entail obligations on the state. The document is clear – an assembly that is peaceful falls within the scope of protection, covering coordinated as well as spontaneous gatherings. The committee considers “peaceful” and “non-violent” interchangeable, and there is a presumption of peacefulness of an assembly. Furthermore – and this is important given allegations of rioters across multiple jurisdictions where assemblies have been held – the general comment is at pains to distinguish between a few who may be violent, which should not dispel the presumption of peacefulness, and neither should the presence of agents provocateurs or those instigating violence on behalf of the authorities. If there are some who are violent, this would not taint the entire assembly. Specific examples, such as “pushing and shoving”, and “limiting vehicular traffic” does not make an assembly violent, thereby retaining the protection of the provision.  

In addition, those monitoring an assembly (“journalists, human rights defenders, election monitors and others”) must be allowed to carry out their functions, and even if an assembly is declared unlawful, it would not terminate the right to continue to monitor and report. 

Another aspect highlighted in the general comment is the use of technology, and that such gatherings may be online as well as offline. Hence, technology that would facilitate these gatherings may not be curtailed. This would apply to internet bans as well as other invasive uses of technology. The committee stressed that participation in a peaceful assembly does not obviate the inherent right to privacy, an important safeguard in these times.

The Human Rights Committee has rightly discussed police action and use of force by the state in some detail in the comment. The emphasis that the police should de-escalate situations in case of the potential for violence, and not resort to the use of force, is clear. Any action by state actors needs to meet the basic principles of “..legality, necessity, proportionality, precaution and non-discrimination..”. The comment also goes over some of the methods seen in recent state responses to protests, including containment by “kettling”, as only to be used in case of the threat or use of violence. Yet another aspect is the requirement for self-identification even for police officers in plain clothes, and that the use of preventive detention is illegal as a means to prevent gathering. The more recent phenomena in some countries – that of unidentifiable police or security services abducting individuals off the streets in the course of gathering – is not directly addressed, but would clearly fall within the prohibitions relating to detention and police identification. On the use of weapons and force, the general comment reiterates that only non-lethal weapons are to be carried, and references the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials as well as the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement as guidance.

As a last observation, the exceptions to Article 21 – that of ordre public, public health, and safety – have been discussed, with the understanding that they are to be interpreted in the most narrow manner, with a view to giving the rights contained in article 21 the fullest expression. In particular, the use of the “morals clause” and well as “law and order” is to be exercised with caution and with justification. As relates to the public health exception – particularly relevant now with the Covid-19 pandemic showing no signs of abating – the comment does not delve into this in detail, save to indicate that it may be used “exceptionally” to permit restrictions, and in extreme cases where the sanitary conditions during an assembly poses a “substantial health risk”. 

In the ultimate analysis, the comment provides much needed and clear guidance in the interpretation of Article 21 – and puts states on notice in regard to their obligations under the ICCPR.