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Draft General Comment no. 37 includes more protection for online assemblies

At the Second Reading of the draft General Comment on the Right to Peaceful Assembly, the Human Rights Committee made reference to ECNL’s submission of comments and took on board our recommendations to include assemblies held online and in private spaces under the protection of Article 21, ICCPR.

Enhanced protections for online assemblies are becoming increasingly crucial when states adopt emergency measures to respond to Covid 19. Our blog describing how internet and online spaces are becoming a lifeline for assemblies, and our twitter thread on digital space and the freedom of assembly were timely published as the Committee started its reading of the draft General Comment on March 13. In this meeting, the Human Rights Committee discussed and approved a revised version of paragraphs 1-7 of draft General Comment 37.

The Rapporteur of the General Comment, Christof Heyns, highlighted the three main issues that would be discussed across the reading of the whole document:
• Scope of definition of assembly, including the extent of an expressive purpose as part of the definition
• Notion of public/publicly accessible space, with a view to removing this classification and including private spaces in the protection of Article 21
• Inclusion of digitally mediated meetings/gatherings online and offline.

With regard to the scope of the right to peaceful assembly outlined in para 4 of the draft General Comment, the Rapporteur mentioned ECNL written submission’s proposal to remove the requirement of a “common expressive purpose” to define the right to peaceful assembly, as it may risk unduly narrowing down its scope and therefore its protection under Article 21. The Rapporteur also mentioned ECNL’s proposal to define an assembly as an intentional gathering persons, removing the specification that it can be held in a public or publicly accessible space.

Another HRC member expressed concern about the risk that the term “intentional” may curtail States’ protection for spontaneous assemblies and proposed to resort to the alternative option also outlined in ECNL’s submission, which is, to define an assembly as a “gathering by persons in a group through a shared activity.

It was also agreed, in line with ECNL’s submission, that the “expressive purpose” of an assembly, whilst important and present in most examples of an assembly, it is not essential to the recognition of the right of peaceful assembly as such. Therefore, the Committee approved the following text in para 4, which defines the right of peaceful assembly as protecting the ““non-violent gathering of persons for a specific purpose, primarily with an expressive goal.”

In para 6 of the draft General Comment, which covers the space and the different types of assemblies protected by Article 21, the Rapporteur again referred to ECNL’s proposal, also backed by the UN Special Rapporteur on Freedom of Assembly and Association, to add “public and private” meetings to the non-exhaustive list of assemblies protected and to include “online assemblies”.  Furthermore, the Rapporteur mentioned the findings of the Expert Workshop on the Right of Peaceful Assembly Online organised by ECNL, the University of East Anglia and the University of Cambridge Centre of Governance and Human Rights on 2-3 December 2019, which highlighted the hybrid and mutually reinforcing nature of online-offline gatherings nowadays. It was agreed that the dichotomy between the offline and online/space is actually not descriptive of where we are today and should not be reflected in the language of the General Comment. Therefore, the Committee approved a revised version of the first part of para 6, which reads as, “Article 21 protects peaceful assemblies wherever they may take place, outdoors, indoors and online and in public and private spaces or in a combination of these.

On 13th March, the Human Rights Committee decided to suspend its ongoing 128th Session, in light of the development of the current coronavirus outbreak. The next Session is scheduled to take place on 29 June – 7 July 2020, during which the Committee is expected to finalise the Second Reading of draft General Comment no. 37 on Article 21.

For more information about ECNL’s work on the General Comment no.37 on Article 21, please see here.