By Abeni Steegstra
On 23 July 2020, the United Nations Human Rights Committee (HRC) adopted General Comment 37, a document explaining the Committee’s interpretation of the right of peaceful assembly in article 21 of the International Covenant on Civil and Political Rights (ICCPR). The significance of General Comment 37 has been underscored in 2020 by massive mobilization through the Black Lives Matter movement, and by governments relying on the public health challenges posed by the COVID-19 pandemic to unduly interfere with peaceful assemblies. The Comment is a crucial guide for states on respecting, protecting, and fulfilling the right to peaceful assembly.
The International Justice and Human Rights Clinic (IJHRC) assisted Canadian expert member of the HRC, Marcia Kran, during the adoption process in July. The IJHRC reviewed and analyzed dozens of submissions by civil society organizations and States parties on each paragraph of the General Comment, to support the HRC in arriving at language that provides robust protection of peaceful assembly.
General Comment 37 represents several notable achievements. First, in a significant step forward, General Comment 37 recognizes protection for online assembly, the importance of which was highlighted at the HRC’s July session by the fact that all proceedings were held entirely online. Paragraph 6 of the Comment, as adopted, reads that “Article 21 protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof.” Further recognition and protection of online assembly can be found in paragraphs 10, 13 and 34 of the General Comment. This is a welcome development that will likely gain increasing relevance as the effects of COVID-19 continue to unfold. Public health concerns are causing governments to increasingly restrict large gatherings and yet the need for people to gather to exchange ideas and ensure governments are accountable is greater than ever. Online assembly can assist in protecting human rights if participants rely partially or fully on online means for voicing their messages, coordinating actions, and raising funds.
The Comment also addresses advances in technology that impact physical assemblies, which could not have been contemplated at the time of drafting the ICCPR. For example, paragraph 62 recognizes that certain technologies, such as facial recognition, raise privacy concerns for those participating in assemblies and emphasizes that “The mere fact that a particular assembly takes place in public does not mean that participants’ privacy cannot be violated”. The ‘chilling effect’ that undue data collection or surveillance may have on assembly is also addressed in paragraphs 10, 61 and 94. Further, in their submissions to the HRC, several members of civil society stressed the potential discriminatory impacts of artificial intelligence systems. Consequently, paragraph 81 warns that enforcement agencies must be vigilant about the potential for discrimination in policing tactics, including in the context of new technologies.
The Comment also tackles several issues which have been the subjects of longstanding debate. Domestic laws that require prior notification of an assembly, for example, occupied a significant amount of the HRC’s attention. In the final adopted text, the HRC concluded that authorization regimes requiring the state’s permission for an assembly to proceed are not justifiable under international law. Requiring assembly organizers to notify authorities, however, is permissible and may in fact assist with smooth facilitation of the assembly (paragraph 70). Whether a state does or does not have a notification regime is at the state’s discretion. The HRC was clear that a failure to notify authorities of an assembly, in jurisdictions where this is required, does not render participation in an assembly unlawful in international law and cannot be used as a reason for dispersing an assembly.
The HRC also carefully selected language in General Comment 37 to set the ‘tone’ for positive state obligations under article 21 of the ICCPR. Too often, peaceful assembly is considered disruptive or antagonistic by the authorities – an occurrence to be ‘managed’ rather than encouraged as fundamentally necessary to democracy. The HRC asserts that states not only have the duty to protect freedom of assembly, but they must also facilitate assembly. States have the positive duty 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” (paragraph 24). Specific measures that may be required of states are also outlined in the Comment, including the need for authorities to redirect traffic or provide security.
General Comment 37 carefully considers both existing and emerging issues concerning the right to peaceful assembly and will thus be an enduring and relevant guide for States parties and civil society across the globe. The IJHRC was pleased to assist with the HRC’s review of civil society submissions to the treaty body and views General Comment 37 as an essential standard and tool to help protect the right of peaceful assembly in our increasingly interconnected world.
Abeni Steegstra is an incoming third-year student at the Peter A. Allard School of law. She is working with the International Justice and Human Rights Clinic during the Summer of 2020.