Peaceful Assembly in Fragile States: can the UN bolster protection of this right?
Rights for Peace adds to the ongoing discussion on the right of peaceful assembly through submitting a comment on the UN draft of General Comment No.37 on Article 21
Over the past year, we have seen significant protest movements across the globe – from Hong Kong to Sudan, Chile, Lebanon, France with their gilets jaunes, and even here in the UK with mass anti-Brexit marches. The right of peaceful assembly protects our entitlement to meet for a common cause, peacefully protest and express our views publicly. This freedom is outlined in several human rights treaties, including Article 21 of the International Covenant on Civil and Political Rights (ICCPR).
Article 21 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.
Facilitating peaceful assembly and limiting undue restrictions imposed by authorities is important to the work we do, working with partners in fragile states, such as South Sudan. Since its independence in 2011, South Sudan has struggled with ethnic divisions and political rivalry that escalated into a new civil war which lasted from 2013-2018. Throughout this period, the country experienced violence and massacres along ethnic lines. Following the signing of the Revitalized Peace Agreement in 2018, and the formation of a Unity Government in February 2020, South Sudan faces an uncertain future.
In May 2019, in an attempt to follow the Khartoum-led protest movement in Sudan, that resulted in a prolonged ‘sit-in’ protest and the eventual overthrow of President al-Bashir, the Juba-led non-violent ‘Red Card Movement’ (RCM) emerged. Largely led by youth, the RCM reportedly aimed for the restoration of peace, stability and political legitimacy in South Sudan. However, their demonstration was suppressed. Planned protests on the 16th of May 2019 were obstructed by the South Sudanese government through a campaign of harassment, intimidation and attacks, including arrests, door-to-door searches, physical assault and death threats. Smaller protests staged in front of embassies in Adis Ababa and Nairobi were also quashed. The right to free and democratic expression requires spaces for people to gather peacefully. Whilst there is a need to secure public safety and public order in fragile political climates, spaces for popular expression are already reduced in such environments. Pluralistic dialogue is therefore needed to build strong foundations for peace and democracy.
Since November 2019, the Human Rights Committee has been working to refine its guidance on the right of peaceful assembly, as laid out in Article 21. Once adopted by the ongoing Human Rights Council, we hope these ‘General Comments’ will provide clarity on certain aspects of free assembly. Here are some of the points raised by Rights for Peace:
1. Private as well as Public Assemblies
Peaceful assembly often involves the use of private as well as public spaces, such as workshops and conferences in private venues and hotels. In many countries, civil society organisations must obtain specific authorisation to organise gatherings even when these are part of the approved routine activities of a registered organisation. Though assembly is often associated with public protest, private meetings should also be protected by this article.
2. Contentious Goals’ vs ‘Disruption’
The draft General Comment associates 'contentious goals’ with ‘disruptive circumstances’. We take issue with this association – peaceful gatherings with contentious or controversial goals do not, by default, create a risk of disruption to the public. This linkage can cause greater risks if law enforcement bodies respond to controversial groups with a presumption of disruption.
3. Authorisation Regimes
The draft includes provisions for notification and authorisation regimes for assemblies. Notification regimes refer to an obligation to give prior notice to the authorities about a demonstration being held, whilst authorisation regimes relate to the obligation to obtain prior permission from authorities. Whilst we see these provisions as helpful, we suggest greater emphasis be placed on peaceful assembly as a ‘right’, with any authorisation regime being questionable. Additional types of assembly should be excluded from notification regimes or further protected, such as spontaneous assemblies and routine meetings.
4. Right to Self-Determination
Peaceful assemblies and protests can be vital in the expression of a people’s rights to self-determination: their right to sovereignty, freedom and independence . Whether or not the merits of a particular case are justified, peaceful manifestations should be included in the listed functions of peaceful assembly laid out in the current draft General Comment. In addition to the functions of peaceful assembly which the draft outlines, such as the advancing of ideas and the establishment of support, we propose an addition of the pursuit of self-determination.
You can find our comments, as well as the draft General Comment No.37 on the UN website, or download it here.
 See the UN Declaration on Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 of 14 December 1960.