Your right to protest
In terms of international law, the rights to freedom of association, peaceful assembly and expression are recognised in various treaties, including the International Covenant on Civil and Political Rights. Together, these rights constitute the right to protest. To better define the right to protest, the United Nations and regional mechanisms, such as the African Commission on Human and Peoples’ Rights, have developed international standards, which include 10 general principles that apply before, during and after a protest.
In this section:
Did you know?
The United Nations Human Rights Committee, which is responsible for monitoring the implementation of the International Covenant on Civil and Political Rights, is currently preparing a General Comment on the Right of Peaceful Assembly and will ask the public to comment on it. The General Comment, once finalised, will provide definitive international guidance on the right to protest.
As a starting point, states must respect and ensure that the human rights of protesters are protected, without discrimination on the basis of any prohibited ground in law such as race, skin colour, gender, sexuality, language, religion or social origin. Additionally, where ambiguity exists in the text of domestic laws relating to the right to protest, the ambiguous provisions must be interpreted in favour of allowing protests to take place. In ensuring that the right to protest can be fully exercised, states must provide the necessary support to, and sufficient oversight of, the police and any other authorities involved in managing protest, at all levels of government (see here, paragraphs 14-16). States are also responsible for the conduct of non-state actors such as private security service providers that may manage protests on the state’s behalf.
In terms of this principle, every person has the inalienable right – a right that cannot be taken away – to take part in a protest, provided that it is peaceful. All protests should be presumed to be lawful and a broad interpretation of the term peaceful should be afforded to protesters. Protests should be facilitated within sight and sound of their target and no person should be held criminally, civilly, or administratively responsible for the mere act of organising or participating in a protest (see here, paragraphs 18-27). The right to protest is a right that applies to individuals but which has a collective element. Where a protester or a group of protesters are engaging in acts of violence, those protesters should be removed from a protest and the broader protest should be allowed to continue.
As a general rule, the right to protest should not be limited in any way. However, the exercise of the right to protest may have an effect on the exercise of the rights of other people who are not involved in a protest, such as the right to the freedom of movement. Any restrictions imposed on a protest must comply with international standards, and restrictions should be limited to the greatest extent possible. Any restrictions to the right to protest must be lawful, necessary, proportionate and applied without discrimination. The onus of justifying a limitation of the right to protest rests with the imposing authority, such as the police. Where a limitation has been imposed, protesters must have the right to judicial or administrative review of the decision to impose the limitation in a prompt, competent, independent and impartial court or tribunal in order to vindicate their rights (see here, paragraphs 29-35).
Central to the right to protest is the obligation on states to facilitate the exercise of the right. There is a positive obligation on states to ensure that the right to protest is facilitated and promoted. This obligation includes the provision of basic services, such as traffic management, medical assistance and clean-up services. Protest organisers should not be held responsible for the provision or costs of such services and should never be charged a ‘protest fee’. Charging a fee to protest equates to a state demanding payment for the exercise of fundamental human rights, and this should never be permitted. Additionally, the stop-and-search or arrest of protesters must not be arbitrary or violate the principle of non-discrimination (see here, paragraphs 37-48).
“Protesters should never be charged a ‘protest fee’ to exercise their right to protest.”
The use of force, such as arrests, or the use of less-lethal weapons, should not be imposed against protesters unless strictly unavoidable. If force is applied by a state it must be done in accordance with international law. States are obligated under international law to respect and protect, without discrimination, the rights of all protesters, as well as protest monitors, bystanders and journalists, including citizen journalists. The use of force can violate this obligation. If force is used, the principle of legality requires states to develop a domestic legal framework for the use of force, especially potentially lethal force, that complies with international standards. Additionally, the use of force must always be proportionate and necessary, and least intrusive and least violent force must first be applied. States must establish effective reporting and review procedures to address any incident during a protest in which the potentially unlawful use of force occurs (see here, paragraphs 50-66).
“The use of force must always be lawful, proportionate and necessary, and least intrusive and least violent force must first be applied.”
In order to ensure accountability and promote the rights to freedom of assembly and expression, every person enjoys the right to observe, monitor and record protests, whether or not they are part of the protest itself. This right includes the right to record law enforcement operations and to record a police officer who is filming you. The right to record or report on a protest does not apply only to accredited journalists. Citizen journalists and members of the public can record protests, without any need for accreditation or permission. Human rights violations against monitors, bystanders and people recording or reporting on a protest should be fully investigated and, where necessary, prosecuted (see here, paragraphs 68-71).
The collection and processing by states and policing authorities of personal information, such as through recording devices, closed-circuit TV and undercover policing, must comply with all protections against arbitrary or unlawful interference with privacy. Legislation and policies regulating the collection and processing of information relating to protests or their organisers and participants must incorporate legality, necessity and proportionality tests. Mass or indiscriminate surveillance of protesters online and offline should be prohibited. Restrictions applied to online access or expression must be necessary and proportionate and applied by a body independent of any political, commercial, or other unwarranted influences (see here, paragraphs 73-77).
Did you know?
In 2012, the United Nations stated that the “same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice” (see here).
In order to be fully informed about the right to protest and to encourage civic empowerment, the public should have easy, prompt, effective and practical access to information related to protests, including policing policies and guidelines relating to the use of force, data collection and retention and the recording of assemblies. Legalisation facilitating such access should be based on the principle of maximum disclosure, establishing a presumption that information is always accessible and subject only to limited exceptions. Exceptions, which must always be justified, should only apply where it is not in the public interest for the information to be disclosed (see here, paragraphs 79-81).
With the increasing privatisation of public space in many contexts, protests in privately owned spaces that are accessible to the public or fulfil a public purpose, such as shopping centres or private prisons, should be permitted, in line with the full enjoyment of the right to protest. Equally, businesses have a responsibility to respect human rights, including the right to protest. This requires that businesses avoid causing or contributing to human rights violations through their activities. States have a duty to take appropriate measures to prevent and investigate human rights violations by businesses and provide effective remedies for violations. This applies to private security service providers and other non-state actors (see here, paragraphs 83-87).
“Protests in privately owned spaces that are accessible to the public or fulfil a public purpose, such as shopping centres or private prisons, should be permitted.”
States are obliged to provide people whose rights have been violated in a protest with adequate, effective and prompt remedies for human rights violations, including violations of the right to protest. Remedies, such as release from unlawful detention or compensation, should be determined by a competent and independent authority, such as a court. States must ensure that any remedies determined by the authority are implemented. Liability for human rights violations should extend to police officers with command-control of a protest, when they have failed to exercise effective command and control. Reparations must be provided by states to victims or survivors of acts or omissions that can be attributed to the state and that constitute gross violations of international law (see here, paragraphs 89-95).
For additional information check out the following:
- 10 Principles for the Proper Management of Assemblies: Implementation Checklist
- 10 Principles for the Proper Management of Assemblies: Civil Society Guide
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