The year 2020 will be always remembered as the year of restrictions introduced by the states around the world in order to protect the public from the spread of the coronavirus. But it was also a year of massive protests related to important public issues—including Black Lives Matter (in the US and in many other countries), reproductive rights (Poland) and democracy (Belarus)—reminding us that freedom of peaceful assembly is one of the basic human rights required for the proper functioning of a democratic society. This right is protected at both universal and regional levels, and although the right is not absolute, states cannot use the argument of a threat to public health as a blanket authorisation for banning assemblies. As United Nations human rights experts stressed in March 2020, ‘Restrictions taken to respond to the virus must be motivated by legitimate public health goals and should not be used simply to quash dissent’.

From the point of view of states’ international obligations, there are two possibilities for introducing limitations of the freedom of assembly: derogations and restrictions. While their scope is different, they both include a set of criteria that have to be complied with in order to consider such limitations acceptable under international law.

Derogating from the freedom of peaceful assembly
At the UN level, the right of peaceful assembly is recognised in Article 21 of the International Covenant on Civil and Political Rights (ICCPR). It is not a non-derogable provision, and states parties to the ICCPR can therefore take measures derogating from their obligations under Article 21, in line with Article 4:

in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed […] to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

All states parties to the ICCPR are required to notify (through the intermediary of the Secretary-General of the United Nations) provisions from which they have derogated and the reasons for so doing, as well as the date on which the state will end the derogation (through a subsequent communication). The derogation requirements outlined in Article 4 of the ICCPR (including the official proclamation of a state of emergency, necessity and proportionality, and conformity with other international obligations as well as notification) were explained in detail in the Human Rights Committee’s General Comment No. 29.

Restricting the freedom of assembly
However, as the Human Rights Committee explained in 2020 in its General Comment No. 37 on the right of peaceful assembly:

States parties must not rely on derogation from the right of peaceful assembly if they can attain their objectives by imposing restrictions in terms of article 21. (para. 96)

States should therefore first consider whether it is possible to properly respond to the emergency by imposing restrictions, and it is only if that would constitute an insufficient response, that they should rely on the derogation clause included in Article 4. This is particularly important to remember because at the beginning of the COVID-19 crisis, some states resorted to emergency measures ‘in a manner seriously affecting the implementation of their obligations under the [ICCPR], without formally submitting any notification of derogation from the Covenant’.

The limitation clause included in Article 21 of the ICCPR reads:

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 […], the protection of public health or morals or the protection of the rights and freedoms of others.

General Comment No. 37 offers a detailed analysis of this provision, emphasising for example that ‘[w]here the imposition of restrictions on an assembly is deemed necessary, the authorities should first seek to apply the least intrusive measures’ (para. 37).

Positive obligations
It is important to point out that states’ international obligations with regard to the freedom of assembly are not confined to the use of the proper framework for the introduction of limitations: even in times of a public health emergency, like the COVID-19 pandemic, states have to comply with their positive obligations. In this regard, particular notice should be given to the statement of Clément Voule, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, highlighting 10 principles (and associated indicators) that states should take into account in order to comply with their international obligations:

• Ensuring that new legal measures respect human rights
• Ensuring that the public health emergency is not used as a pretext for rights infringements
• Democracy cannot be indefinitely postponed
• Ensuring inclusive participation
• Guaranteeing freedom of association and assembly online
• Protecting workplace rights to freedom of association and assembly
• Freedom of expression must be ensured
• Civil society’s participation in multilateral institutions must be secured
• International solidarity is needed more than ever
• Future implications of COVID-19 and responding to popular calls for reform (states’ responses to the crisis take citizens’ demands fully into account: more democratic governance structures, respect for human rights and equality, and increased support and attention for more sustainable energy sources).

 

Conclusion
As we are hopefully reaching the end of this pandemic, it is vital to assess, both at the national and international level, the measures introduced by different states in order to combat the spread of the virus. The freedom of peaceful assembly is one of the essential requirements for a functioning democratic state, therefore all interferences with the enjoyment of that freedom should be closely monitored from the point of view of the international standards presented above. In particular, the requirement of proportionality and necessity of the adopted measures require that they are lifted as soon as the threat of the coronavirus is gone.

Cite as: Hauser, Agata. "Freedom of Assembly in the Time of COVID", GC Human Rights Preparedness, 25 February 2021, https://gchumanrights.org/preparedness/article-on/freedom-of-assembly-in-the-time-of-covid.html