As a result of the pandemic, many governments have passed emergency legislation requiring people to physically distance with some outright bans on gatherings. These measures limit the ability of people to protest, raising significant questions over the legality of countries’ restricting the right to protest. This was addressed by the UN Human Rights Committee—the treaty body for the International Covenant on Civil and Political Rights (ICCPR)—in its General Comment No.37 on the right to peaceful assembly.
PROTESTS AND GOVERNMENT RESPONSES
To outlaw protests would be to ignore ongoing issues which have not disappeared during this period—indeed, many have been exacerbated as a result of COVID-19—and to grant immunity to those who must be held accountable. On the other hand, to allow protests to continue as before poses a clear risk of spreading the virus.
2019 saw protests sweep the globe; Hong Kong, Hungary, India, and Sudan, represent just a few examples of citizens protesting against government oppression. Not one of the underlying issues from these 2019 protests has been resolved, few of the people’s demands have been met, and few have been held accountable. In fact, 2020 has seen additional anti-government protests—in Belarus and Beirut, for example, and within the Black Lives Matter movement globally. These issues are “too important not to protest,” and any delay in protest could damage momentum, limit accountability, and delay justice.
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS: GENERAL COMMENT 37
These issues all fed into the timely dialogue surrounding the Human Rights Committee’s General Comment No.37 on the right to peaceful assembly. Delegates, including those from the US, were quick to note their satisfaction with the recognition that “reasonable restrictions are lawful under Article 21,” as determined by each state.
Article 21 of the ICCPR recognises the right to peaceful assembly as well as possible restrictions on this right, which conform with the law and are necessary for national security, public safety, public order, protection of public health or morals, or protection of rights and freedoms. There had been no general comment previously on this article, but recent modernisation of technology and debate surrounding government obligations and the legality of restrictions led to its adoption on 23 July 2020.
Paragraph 6 of the General Comment emphasises that the first sentence of article 21 applies to peaceful assemblies “outdoors, indoors, and online”. Regarding restrictions, the General Comment confirms in paragraph 36 that “restrictions must not be discriminatory, impair the essence of the right, or be aimed at discouraging participation in assemblies or causing a chilling effect,” and states further in paragraph 37 that measures taken should be those which are least-intrusive with prohibition being a last resort and prior restraints discouraged.
These general principles, in light of the pandemic, must be balanced with the possible justification of restrictions foreseen under paragraph 45, which reads:
The protection of “public health” ground may exceptionally permit restrictions to be imposed, for example where there is an outbreak of an infectious disease and gatherings are dangerous. This may in extreme cases also be applicable where the sanitary situation during an assembly presents a substantial health risk to the general public or to the participants themselves.
Further, while states should not limit the number of participants in assemblies, this can be justified “where public health considerations dictate physical distancing” (para. 59). This is a clear signal that restrictions on gatherings as a result of the pandemic are justified. However, this justification only applies to the restriction of numbers and enforcement of distancing.
This review of General Comment 37 identifies five key factors in considering the question of the legality of protests during the pandemic and the corresponding obligations of states.
Firstly, the protection of peaceful assemblies is crucial, and any restrictions must be prescribed by law. Paragraph 28 of the comment reads, “a functioning and transparent legal and decision-making system lies at the core of the duty to respect and ensure peaceful assemblies”. This means that restrictions on gatherings must be legislated and such legislation must be clear and accessible to the public.
Secondly, countries can legitimately restrict protests during a pandemic for public health interests so long as it has been prescribed by law and if those restrictions are proportionate. This means there can be restrictions on the numbers permitted to gather physically and on the distancing they must keep in accordance with public health guidance.
Thirdly, “the role of journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies, is of particular importance for the full enjoyment of the right of peaceful assembly,” according to paragraph 30, and therefore warrants special protection under the Covenant. This means that such persons should not be targeted by officials or their functions restricted unless justified.
Fourthly, where such protests take place, the use of face coverings—as mandated by law during the pandemic—cannot serve as a reason to restrict, to interfere, or to enable arrest of its participants. Paragraph 60 states: “The wearing of face coverings or other disguises… such as masks… should be allowed” unless there are compelling reasons otherwise.
Finally, protection of peaceful assemblies also extends to those which take place, wholly or partly, online—as has been a common response to the pandemic. Paragraph 10 of the General Comment explicitly notes that measures that interfere with these virtual gatherings, such as the use of surveillance technologies that may be used to impede assemblies, “infringe on the right to privacy and other rights...and have a chilling effect”. Under paragraph 34, countries are obliged to ensure that “Internet service providers and intermediaries do not unduly restrict assemblies or the privacy of assembly participants”.
A TIMELY INTERVENTION
In many countries, emergency legislation is being used “to perpetuate ongoing attacks on the right to protest”—for example in Kenya. In others, it has provided a doorway for governments to disrupt the right to protest in a way that would normally be considered disproportionate and therefore illegal under international human rights law. For example, many protests have now taken place online and have been shut down by either state authorities or the platform itself, such as in the Iranians’ #NotoExecution online protest. This is in complete defiance of article 21 of the ICCPR, as further confirmed by General Comment 37.
As such, whilst many countries may legitimately restrict the right to protest during the pandemic, the requirement for proportionality of interference remains essential. Such restrictions should be lifted in line with the easing of distancing requirements and, at the same time, states should increasingly continue to facilitate peaceful assemblies in all their forms.
Maria is an LLM Human Rights graduate from Central European University in Budapest, Hungary. She is a volunteer for multiple human rights-focused organisations, a locum support worker and an aspiring barrister.