Right to Freedom of Assembly & to Protest

Article 21 of the ICCPR guarantees the right of peaceful assembly, stating that no restrictions can be placed be placed on 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.”  Freedom is the rule, and its restriction the exception. The right to freedom of assembly is also protected in Article 11 of the European Convention on Human Rights and under the Constitution, Bill of Rights, or other basic law of many countries.

General Comment 37 of the U.N. Human Rights Committee, the body tasked with interpreting the ICCPR, notes that the scale and nature of peaceful assemblies can cause disruption, such as to vehicular or pedestrian movement. These consequences, whether they are intended or not, “do not call into question the protection such assemblies enjoy.” The comment makes clear that collective civil disobedience or direct-action campaigns are covered by Article 21, provided that they are non-violent.

States are obliged to promote an enabling environment for the exercise of the right to assemble without discrimination, and to put in place a legal and institutional framework within which the right can be exercised effectively.

States also have negative obligations not to prohibit, restrict, block, disperse, or disrupt peaceful assemblies absent compelling justification, and not to punish participants or organizers without legitimate cause. Blanket restrictions on protests are “presumptively disproportionate.” While the time, place, and manner of assemblies may under some circumstances be the subject of legitimate restrictions under Article 21, “Given the typically expressive nature of assemblies, participants must as far as possible be enabled to conduct assemblies within sight and sound of their target audience.”

State obligations to protect the right to protest extend to actions such as participants’ or organizers’ mobilization of resources; planning; dissemination of information about an upcoming event; preparation for and travelling to the event; communication between participants leading up to and during the assembly; broadcasting of or from the assembly; and leaving the assembly afterwards. These activities may, like participation in the assembly itself, be subject to restrictions, but these must be narrowly drawn.

Any sanctions “must be proportionate, non-discriminatory in nature, and must not be based on ambiguous or overbroadly defined offenses, or suppress conduct” protected under the ICCPR.

Finally, only in exceptional cases may the assembly be dispersed. An assembly that remains peaceful while nevertheless causing a high level of disruption, such as the extended blocking of traffic, may be dispersed, as a rule, only if the disruption is “serious and sustained.” The use of force to disperse an assembly should be avoided and, if where that is not possible, only the minimum force necessary may be used. Force that is likely to cause more than negligible injury should not be used against individuals or groups who are passively resisting.