The Freedoms of Expression, Assembly, and Association under the International Covenant on Civil and Political Rights
Demonstrators in many countries are facing police violence. From social unrest in Latin America to climate protesters in Europe and those who fight for the rights of women in Iran, the fundamental rights of those who take to the streets to speak out on behalf of human rights are threatened around the world.
Among the most ratified international human rights treaties is the International Covenant on Civil and Political Rights (ICCPR), which dates back to 1966. The ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR) form the so-called “International Bill of Human Rights”. As of early 2023, 173 countries are bound by the ICCPR.
After all legal options on the national level have been exhausted, that means after a plaintiff has gone through the entire national court system, a case can be brought to the Human Rights Committee (HRC) of the United Nations (UN), provided that the state in question has ratified the Optional Protocol to the ICCPR which establishes the jurisdiction of the HRC. All States that are parties to the ICCPR also have to provide regular reports on its implementation to the HRC. The HRC also publishes so-called “General Comments”, which provide an official interpretation of the different norms that are included in the ICCPR.
Article 19 ICCPR provides that
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
The HRC explains Article 19 ICCPR in detail in General Comment No. 34.
In demonstrations, not only the right to express ideas or to access information is relevant, but also the freedom of assembly, which is protected in Article 21 ICCPR, which states that
“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.”
The right to peaceful assembly is explained in more detail by the HRC in General Comment No. 37.
As demonstrations continue and become more organized, the right to freedom of association, too, is becoming more and more important. This right is protected in Article 22 ICCPR, according to which:
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by 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. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.”
Like other human rights, the exercise of these rights finds its limits in the protection of the rights of others. States have to balance competing human rights through legislation. The norms cited above include conditions under which states can restrict these rights. The state cannot simply ban all expressions or demonstrations but can only limit these human rights for specific purposes. A common expression in this context is a limitation to what is “necessary in a democratic society”. Commonly protected public goods are public safety or public health. This means that violent demonstrations that only consist of attacks against persons or property are not covered by these rights, while it will be much more difficult for governments to explain why they would outlaw peaceful demonstrations that do not pose a safety risk. States that violate the human rights of demonstrators will often also lack neutral judicial systems, but especially in countries that have some democratic traditions and a functioning judiciary, human rights litigation in domestic courts can make a real difference. In addition, human rights litigation is necessary in order to open the door to human rights litigation on the international level. Most importantly, human rights are implemented locally. International standards have their true meaning in the domestic context. The real practitioners of (international) human rights law are local attorneys, judges, administrators and public officials, elected lawmakers and members of government who apply the law.