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European venues to protect the right to peaceful assembly in the context of the rule of law framework

Policy debate:

“European venues to protect the right to peaceful assembly

in the context of the rule of law framework”

 

Statement

Birgit Van Hout

UN Human Rights Regional Representative for Europe

3 December 2020

 

Dear Members of the European Parliament Urban, Freund and Donath,

Dear representative of the European Commission,

Colleagues and friends,

 

 

It is an honour to be with you today, albeit virtually, to discuss the need to protect the right of peaceful assembly. I would like to thank the organizers for inviting me and Member of the European Parliament Miguel Urban, for hosting this important meeting.

Coincidentally, today - 3 December - also marks the official end of the Cold War at the Malta Summit 31 years ago. But in reality, the Cold War was ended by the people who brought down the Berlin wall on 9 November 1989. It is one of my strongest political memories. I remember it as if it happened yesterday: crowds of people gathering by the Wall from both sides – a wall that had divided them and the world, physically and ideologically, for decades. Here were individuals coming together to express themselves collectively to demand their right to shape their future society. This, dear participants, is the very essence of freedom of peaceful assembly.

Most, if not all of you have your roots in civil society organizations. I therefore do not need to convince you that protests, when peaceful, are a healthy expression of democratic values and a powerful instrument of societal change. This is even more so when participatory mechanisms are deficient or, as in some countries still today, absent.

Freedom of peaceful assembly is a human right. It is also an expression of the right to participate in public affairs. Moreover, freedom of peaceful assembly is what we call an “enabling” right, meaning it opens the door to claim other human rights, like economic, social or cultural rights. This is particularly important for marginalized groups, who may not have access to traditional platforms to express their demands.

Today, we are witnessing a trend of shrinking civic space – globally, as well as in Europe. Shrinking civic space is often a marker for a general deterioration of human rights in a country. Our UN Secretary-General Antonio Guterres, in his Call to Action for Human Rights, has therefore called on all actors to step up efforts to support and protect civil society. As he said – and I quote: society is stronger and more resilient when people can play a meaningful role in political, economic and social life, including by expressing dissent and joining together to express their views.

As 2020 is drawing to a close, it is clear that the COVID-19 crisis has posed unprecedented challenges to human rights, the rule of law and democracy, further accelerating an already worrying trend. Basic tenets like the independence of the judiciary, transparent and accountable governance, media freedom and the separation of powers have come under threat.

In September this year, the European Commission issued its much anticipated first assessment of the rule of law in the European Union. It is a welcome exercise of introspection. Our office has followed the process closely and you may be interested in our publication The case for a human rights approach to the rule of law which you can find on our website, UN Human Rights Europe.

It is positive that the European Commission has not interpreted the rule of law in a narrow sense in its first report, and covered aspects like media pluralism and institutional checks and balances.

For the next rule of law report, we would encourage the Commission to broaden the scope further and to also assess the right to participate in public affairs, for the simple reason that participation, be in the form of information-sharing, consultation or co-decision making, has a significant impact on the quality of laws and policies adopted.

We also encourage the European Commission, in its next report, and the Council of the EU, in its peer review process, to assess freedom of association and peaceful assembly in EU member States. From an international human rights perspective, it would be difficult to exclude freedom of association and freedom of peaceful assembly from an assessment of the rule of law, because these rights are critical for holding the State to account and an essential feature of a healthy democracy.

The UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, and issues legally binding recommendations to States, has explicitly linked freedom of assembly to the rule of law. In its General Comment 37 adopted earlier this year, the Committee says – and I quote - that freedom of assembly – together with other related rights - constitutes the very foundation of a system of participatory governance based on democracy, human rights, the rule of law and pluralism.[1]

The right of peaceful assembly has come under a lot of pressure in recent times. The question before us today is: can freedom of peaceful assembly be restricted under international law? The answer is yes, but only under strict conditions. Restrictive measures must have a basis in law,  be absolutely necessary and time-bound. They must be proportionate to the objective pursued and they may not discriminate. The burden lies with the States to show that these conditions are met.

Restrictions must be kept under constant review and lifted when no longer essential. Even in times of a health pandemic, States must facilitate peaceful assemblies. They can do so by providing guidance on how to organize assemblies in a manner that is compatible with public health needs, like for example mandating physical distancing measures. There are some good practices in Europe which show that public health and the right of individuals to assemble can be reconciled and are not mutually exclusive.

As the year 2020 draws to a close, we have seen global demonstrations erupting in support of the Black Lives Matter movement, pro-democracy protests in the wake of the Belarusian presidential elections, mass demonstrations by women in Poland, and protests against police violence in France – all of this during a global pandemic! 

Covid-19 has put States under tremendous pressure to curb the spread of the virus. Many countries have passed laws to limit freedom of movement and freedom of assembly, sometimes restricting rights in a disproportionate manner, and sometimes taking political advantage of the situation.

The UN High Commissioner for Human Rights and UN Human Rights experts have expressed concern about States using the health crisis to pass sweeping emergency laws, to rule by decree, to place restrictions on civil society organisations or to limit access to information. They have urged States to put human rights at the centre of the Covid-19 response.

The UN Special Rapporteur on the right to peaceful assembly and association has developed a useful set of principles to guide States’ response to the health crisis. [2]

In these times of uncertainty, it is important that judicial and parliamentary checks and balances are strengthened. It is equally important that democratic oversight mechanisms, national human rights institutions, civil society and international human rights mechanisms keep a watchful eye on measures that restrict rights in the name of crisis prevention and containment of the spread of the virus. The crisis is no justification for excessive force to be used when dispersing assemblies nor for disproportionate penalties to be imposed. Governments must remember, and must sometimes be reminded, that these measures are there to protect peoples’ health and safety - and not to shield the government from criticism!

We count on you, dear colleagues, to help us in this endeavour and to keep up your tireless efforts for our human rights and freedoms! Each one of us can make a difference. Together we make a change. Thank you.  

 

[1] General Comment No 37 (2020) on the right to peaceful assembly (Article 21), CCPR/C/GC/37.

[2] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25788&LangID=E