Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Freedom of assembly

 

Freedom of assembly, which sits closely alongside freedom of association examined below, can play an important role in counter-terrorism responses, including in preventing terrorist activities by enabling citizens to be actively engaged with, rather than excluded from, the society in which they live. It can also offer a context, a 'safe space', in which discontent and grievances can be peacefully expressed which may prevent at least some from embarking upon a path towards violent extremism. (See further Module 2).

Such sentiments are reflected in Human Right Council resolution 30/15 preamble:

Reaffirming that human rights and fundamental freedoms, including the freedoms of peaceful assembly and of association, are essential components of democracy providing individuals with invaluable opportunities to express their political opinions and that enables dialogue in preventing and countering violent extremism,

Underscoring that preventing and countering violent extremism requires a whole-of- society approach, involving government, civil society, local and religious leaders and the private sector, and acknowledging that the active participation of civil society is a key factor in governmental efforts to protect human rights and fundamental freedoms while preventing and countering violent extremism ...

Similarly, a former Special Rapporteur on the protection of human rights while countering terrorism, Martin Scheinin, observed the crucial role that both rights play in creating a platform for the exercise of other rights, notably here freedom of expression and the ability to participate politically, by enabling public and peaceful disagreement with governmental policies and practices to be demonstrated. Furthermore, this platform facilitates the important work of human rights defenders who play a critical role in ensuring the accountability of governments. (General Assembly report 61/267, para. 9).

International legal framework

The starting point is article 21 of the International Covenant on Civil and Political Rights (ICCPR), which states that "[t]he right of peaceful assembly shall be recognized." In terms of what this means, "[a] public assembly may be defined as the intentional and temporary presence of a number of individuals in a public place which is not a building or structure for a common expressive purpose. Nevertheless, the right to freedom of peaceful assembly covers both public and private meetings." (OSCE, 2007, p. 216). Further guidance is given by the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Guidelines on Freedom of Assembly (OSCE/ODIHR, 2010). Notably, there is a "presumption in favour of holding assemblies" which should, so far as it is possible, be enjoyed without regulation (Principle 1); indeed, States have an accompanying duty to protect peaceful assembly (Principle 2).

As with the other fundamental freedoms considered in this Module, article 21 also provides that the right may be restricted where the accompany measures are "in conformity with the law and ... 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". On this, a primary concern of former Special Rapporteur on the protection of human rights while countering terrorism, Martin Scheinin, was that this ability to impose restrictions upon the right of freedom of assembly not be misused under a counter-terrorism pretext (General Assembly report 61/267), for instance as a means of restricting legitimate democratic activities. Referring to the need for all successful counter-terrorism strategies to include a preventive element, he observed:

This implies that it is permissible to take measures such as criminalizing preparatory acts of terror planned by groups, which in turn implies the need to take measures that interfere with the freedom of peaceful assembly and the freedom of association. States must not, however, abuse the necessity of combating terrorism by resorting to measures that are unnecessarily restrictive of human rights. Clear safeguards must be put in place by the law, to prevent abuse (of the limitations) and, if abuses do occur, to ensure that remedies are provided. (Para. 11)

The Special Rapporteur's concern was founded on such practices as the overreach of national counter-terrorism legislation placing restrictions upon the rights to freedom of association and assembly beyond what was absolutely necessary to respond to legitimate security imperatives (para. 11). Though it may be appropriate in some circumstances to restrict freedom of assembly, this should not be done by means of a general prohibition, but instead be more targeted, in order not to violate article 21 ICCPR (para. 25). He emphasized the stringent legal safeguards that exist and need to be applied when determining any restrictions of article 21 or article 22 rights. (Para. 19).

Similarly, as the Special Rapporteur on the right to freedom of peaceful assembly and association noted in 2017, counter-terrorism legislation may lead to violations of freedom of assembly through harassment and violence against human rights defenders and other people (General Assembly report 72/135, para. 18). For instance, the risk exists that popular demonstrations may escalate into violent conflicts and people being injured and killed, with the accompanying challenge for States how best to manage demonstrations in a manner consistent with their human rights obligations (General Assembly, Human Rights Council report 17/28). Since 2009, any violations of the right to life in the context of violence against participants in demonstrations and other peaceful public manifestations fall within the mandate of the Special Rapporteur on extrajudicial, summary or arbitrary execution.

With respect to emergency situations, though articles 21 and 22 (freedom of association) are technically derogable under article 4(1) of ICCPR, the Special Rapporteur on the promotion of human rights while countering terrorism further reiterated the exceptional and temporary nature of such derogations, including that they must always satisfy the criteria of necessity and proportionality (paras. 12-13). Significantly, the Special Rapporteur was of the view that "in principle, States should not need to resort to derogation measures with respect to the rights to freedom of assembly and association and that the measures limiting these rights provided for in ICCPR are sufficient to fight terrorism effectively" (para. 13). Notably, the Organization for Security and Co-operation in Europe (OSCE) has raised similar concerns regarding the risk that emergency legislation may erode freedom of assembly through such practices as increasing penalties for participation in unlawful assemblies or imposing border controls in order to prevent participation in assemblies by those who may cause disturbances to public order (OSCE, ODIHR, 2010).

Regional instruments and approaches

 

The African region

Similarly, article 11 of the African Charter guarantees the right to freely assemble to everyone. It further provides that "[t]he exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others' (emphasis added), once again reflecting some unique features and subtle differences in the approach of the Charter compared with the International Covenant on Civil and Political Rights (ICCPR) tailoring towards the African context.

Further guidance is given in the Principles and Guidelines on Human and Peoples' Rights while Countering Terrorism in Africa. Notably, sect. I on Fundamental Freedoms, reflecting similar concerns to those of expressed by Martin Scheinin, former Special Rapporteur, provides that "States shall not use combatting terrorism as a pretext to restrict fundamental freedoms, including freedom of religion and conscience, expression, association, assembly, and movement, and the right to privacy and property with due regard to Principle 1(M), Non-Derogations and Restrictions on Human Rights and Freedoms." Principle 1(M), in recognizing that the African Charter does not formally permit derogations, nonetheless recognizes that in certain, exceptional, circumstances restrictions on rights may be appropriate (see further Module 7). The criteria mirrors that considered above in relation to restrictions to article 21 (as well as articles 18 and 19) of ICCPR in that:

Any restriction must be prescribed by law, strictly proportionate with and absolutely necessary for addressing a legitimate need as set forth under the African Charter on Human and Peoples' Rights, and in accordance with regional and international human rights law. A limitation may not erode a right such that the right itself becomes illusory. It must be possible to challenge the lawfulness of restrictions on rights before a court.

The Inter-American region

With respect to regional approaches, the relevant provision of the American Convention on Human Rights is article 15, which provides that "the right of peaceful assembly, without arms, is recognized" (emphasis added). The same basis for any restrictions applies as for the other rights considered, reflecting the wording of article 21 of ICCPR.

On this, the Inter-American Commission has explained that while the right to assembly is not absolute, the State nevertheless has a "limited framework to justify any restriction in this regard", emphasizing that the standard conditions of legality, necessity and proportionality must always be met to ensure that any restrictions are justifiable and reasonable (IACHR, OEA/Ser.L/V/II. Doc. 66, para. 107). The Inter-American Court of Human Rights, in López Lone et al. v. Honduras (2015), held that the right of assembly, together with other fundamental freedoms, makes democracy possible. Consequently, "expressions against the government's proposed laws or policies, far from being an incitement to violence, are an integral part of any pluralistic democracy" (IACHR, OEA/Ser.L/V/II Doc. 51, para. 708).

All the fundamental freedoms considered in this Module, including the right to assembly and association, have come under strain including with respect to the activities of human rights advocates (IACHR, OEA/Ser.L/V/II. Doc. 66, para. 97) who can play such an important role in ensuring that States uphold the rule of law including when responding to national security imperatives. Indeed, as the Inter-American Commission has observed, an important link exists between the ability to protest publicly without the risk of being persecuted or punished with the ability to protect the rights of victims of human rights violations including those attributable to the State: "Protecting those who lodge complaints against public officials or civil servants alleging human rights violations, even though it may mean that public officials will have to be more tolerant of criticism, is essential to averting double victimization, to enabling society to know these facts and debate them freely, and to ensuring the conditions necessary for justice to be served." (IACHR, OEA/Ser.L/V/II. Doc. 66, para. 105).

The European region

The approach of the European Convention on Human Rights (ECHR) is to consider freedom of assembly and association together. Article 11(1) provides that: "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests." Though the provision permitting restrictions is slightly different in its wording compared with the relevant ICCPR text (which was adopted some years after ECHR was), the essential elements remain the same. Article 11(2) states that:

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

As with the other freedoms considered in this Module, the scope of these legitimate restricting aims must be interpreted narrowly (Venice Commission/OSCE/ODIHR, 2014, p. 18). One notable addition, which does not form part of the text governing restrictions in other international or regional human rights instruments, is that article 11(2) further provides that "[t]his Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State." Though other instruments do not expressly prohibit the utilization of the military to enforce permissible restrictions, silence on this matter within these other instruments perhaps reflects the accompanying sensitivities, especially since the military can be used in some States to quash legitimate protest, including in the form of assembly which is otherwise permissible under international human rights law.

The Middle East and Gulf regions

With respect to the Arab Charter on Human Rights 2004 , the relevant principle is article 24(6) which simply provides that "[e]very citizen has the right to freedom of association and peaceful assembly." It should, however, be read in the context of article 24 in its entirety which articulates several rights regarding the ability of citizens to particulate in a range of political activities. The restriction contained in article 24(7), which applies to all article 24 rights, reflects the general approach of article 21 of ICCPR.

In contrast, no express provision on the right to assembly or association is made within the Organisation of Islamic Cooperation's (OIC) Cairo Declaration on Human Rights. The closest provision is article 23(b), which states that "[e]veryone shall have the right to participate, directly or indirectly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah." Potentially, "indirectly" participate could refer to such rights as association and assembly though it is unclear.

 
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