11 July 2019
The Human Rights Committee this afternoon started the first reading of its draft General Comment number 37 on article 21 of the International Covenant on Civil and Political Rights on the right of peaceful assembly.
Christof Heyns, Committee Rapporteur for the draft General Comment, introducing the document, said that the right of peaceful assembly served as a tool for people who did not have power to put issues on the public agenda. This right had been impacted by technological developments and the privatization of space that used to be public. Mr. Heyns added that the rationale for the right was set forth in the general remarks, which served as a starting point for the draft General Comment. The second part of the document established the scope of the right, focusing on what constituted an “assembly” and how a “peaceful assembly” should be defined. The obligations of the States were outlined under the third heading. As infringements on the rights had to be defined, the fourth part listed the acceptable limitations to the right of peaceful assembly. The document had been drafted through a two-stage process: first to define the right, and then to identify acceptable limitations that could be imposed. The fifth and sixth parts dealt with notifications and the duties and powers of law enforcement agencies, respectively. The seventh part addressed the issue of assemblies during states of emergency, including conflicts. Finally, the eighth part looked at the relationship between article 21 and other provisions of the Covenant, and other legal regimes. There were a number of cross-cutting issues that needed to be addressed throughout the review, Mr. Heyns said. Should the right be referred to as a “freedom”? What was the nature of the obligations that the Covenant created for States? At the moment, the draft document stipulated that the State had to “accommodate” peaceful assembly. This word was chosen to cover both the negative obligation of States not to impede peaceful assemblies as well as the positive duty to facilitate peaceful assembly.
Committee Experts thanked the Rapporteur and underscored the quality of the draft document. Some suggested that sections 4 and 5 be merged and cautioned against the use of the word “facilitate” to describe the State’s obligations, as it had a specific, different meaning, notably as regarded cultural and economic rights. Others stressed that clinging to the Covenant’s language was preferable -- “restrictions” should therefore be used instead of “limitations” -- and that the Committee should draw inspiration from good practices worldwide, not only from Europe. They pointed out that states of emergency and armed conflict were distinct notions; the former did not imply the latter. Others pleaded for the use of the word “limitations,” as it was broader, or the search for another term. Experts commended the document’s “pedagogical” approach.
Responding to comments, Mr. Heyns said universality entailed that everyone had to play a role in defining and interpreting the terms of the Covenant. In that regard, he encouraged Committee Experts to bring sources to his attention. It made sense to put the section on notifications after the one on limitations, to highlight it. He, however, remained open to comments and suggestions. The word “facilitate” had become very much used in the context of peaceful assemblies. If possible, the opportunity to hold meetings and get the system closer to the ground would be most welcome.
Mr. Heyns presented paragraph 1, on peaceful assembly as a fundamental right. Experts stressed the need to include clear references to the expression of views and debated the inclusion of the phrase “test ideas”. They said references to “societies around the world” was superfluous and should be discarded. As regarded the exercise of the right of peaceful assembly, power and peace were not mutually exclusive, they said.
Turning to paragraph 2, on peaceful assembly as a right fostering the realization of other rights, Experts, while agreeing with the substance of the text, wondered if it did not introduce language that was too strong this early in the text. They debated adding a reference to human rights defenders. They discussed whether the “failure to accommodate this right” should be qualified, as well as the merits of replacing “lack of democracy” with “undemocratic”. On the whole, quotes from domestic courts should be geographically balanced, some said.
On paragraph 3, Experts said the footnote could be reorganized.
On paragraph 4, on the activities protected by the right of peaceful assembly, Experts suggested that the meaning of “a number of people” should be outlined.
The Committee agreed that the Rapporteur would amend paragraphs 1 to 4 according to the suggestions and submit a revised version to the Committee.
The Committee will resume discussing the draft General Comment on Tuesday, 16 July, at 10 a.m. The drafting of the General Comment started on 20 March 2019 with a half day of general discussion. Further information about draft General Comment No. 37 can be obtained here.
The Committee will next meet in public on Monday, 15 July, at 3 p.m. when it will consider the progress reports of the Special Rapporteur on Follow-up to Concluding Observations, and the Special Rapporteur on Follow-up to Views.
For use of information media; not an official record