Human Rights Council defines what a lawful peaceful protest is

Amy Langley, Chief International Officer

2 Aug 2020

In a General Comment published on Monday, 27 July, the United Nations Human Rights Council has reaffirmed that the “fundamental human right of peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies” and that such a right “constitutes the very foundation of a system of participatory governance based on democracy, human rights, the rule of law and pluralism”. The HRC stated in ‘General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights – Right of peaceful assembly’ that Article 21 of the International Covenant on Civil and Political Rights (ICCPR) “requires States to allow such assemblies to take place without unwarranted interference and to facilitate the exercise of the right and to protect the participants”.

The General Comment comes amidst arguments surrounding the Black Lives Matter movement that has continued to gain traction since the murder of George Floyd earlier this year.

The General Comment defines participation in an “assembly” as “organising or taking part in a gathering of persons for a purpose such as expressing oneself, conveying a position on a particular issue or exchanging ideas”. It reaffirms and states the international protections for right of peaceful assembly, which “protects the non-violent gathering by persons for specific purposes, principally expressive ones”.

In clarifying the scope of the protection under the ICCPR, the General Comment notes that “assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash-mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.” The General Comment also notes that there is a presumption that assemblies should be considered peaceful unless “authorities can present credible evidence that, before or during the event, those participants are inciting others to use violence, and such actions are likely to cause violence; the participants have violent intentions and plan to act on them; or violence on their part is imminent”.

Christof Heyns of the HRC, stated that gathering “in public and in private spaces, outdoors, indoors and online” to celebrate or voice opinions is a “fundamental human right”. Heyns further stated that all people, ““including children, foreign nationals, women, migrant workers, asylum seekers and refugees, can exercise the right of peaceful assembly”.

The General Comment also gives clarity as to when and whether authorities may intervene or suppress protesters. Governments must cite more than “generalised references to public order or public safety, or an unspecified risk of potential violence” in order to prohibit protests and “cannot block internet networks or close down any website because of their roles in organising or soliciting a peaceful assembly”.

The obligation on governments “to respect and ensure peaceful assemblies imposes negative as well as positive duties on States before, during and after assemblies. The negative duty entails no unwarranted interference with peaceful assemblies.” Positive duties within this obligation require States to “promote an enabling environment for the exercise of the right of peaceful assembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively”.

It further confirms that protesters have right to wear a mask or a hood to cover their face and that authorities should not intimidate or harass protesters by collecting personal data.

Clément N Voule, UN Special Rapporteur on the rights to freedom of peaceful assembly and association, celebrated the “truly landmark affirmation that protection of the right to peaceful assembly extends to remote participation, including online assemblies”, stating that the General Comment was “particularly relevant during the COVID-19 pandemic, when so many peaceful gatherings have moved online”.

Read the General Comment by the HRC here:

Find the comments of Clément N Voule, UN Special Rapporteur, here: