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UNHRC: States must protect rights in protests, including online

ARTICLE 19 welcomes the consensus adoption of an important new resolution on human rights and protest at the 38th Session of the UN Human Rights Council (HRC).

In a first for a UN resolution, it underscores that human rights must be protected on the Internet to enable online and offline protests, and calls for further UN guidance on this topic. It also builds upon language to protect the role of journalists in reporting on protests, as well as elaborating further guidance to States on the proper management of assemblies to safeguard human rights in protests.

This resolution sends a clear signal to States that they cannot frustrate people’s right to take to the streets by blocking access to the Internet or websites, by undermining the security of our communications, or criminalising the right to protest”, said Thomas Hughes, Executive Director at ARTICLE 19.

“While we welcome the restoration of consensus to this resolution, too many States continue to violate protesters’ rights, including online, with impunity. Much more work is needed to implement this resolution on the ground,” Hughes added.

The resolution on “the promotion and protection of human rights in the context of peaceful protests” (HRC Res 38/11), led by Costa Rica and Switzerland, was adopted by consensus at the UN Human Rights Council on 6 July 2018. More than 48 States cosponsored the resolution.[1]

Reflecting a position promoted in ARTICLE 19’s “Right to Protest Principles”, the resolution makes clear that an assembly does not require a physical gathering of people to engage the rights to freedom of assembly and association, but that such rights are also engaged, alongside freedom of expression, in online protests.

While the HRC has long recognised that “the same rights that people have offline must be protect online”, the assertion that the right to freedom of assembly may be engaged solely through online conduct is new and significant.

Other updates to the resolution elaborate upon this normative development, also addressing how limitations on human rights online have implications for the exercise of the right to freedom of assembly offline. These include:

  • A call upon States to “refrain from and cease measures […] seeking to block Internet users from gaining access to or disseminating information online”, following concerns at the use of such measures “at key political moments, with an impact on the ability to organize and conduct assemblies”;
  • Recognition that “using communications technology securely and privately […] is important for the organization and conduct of assemblies”;

These additions are significant. In recent years ARTICLE 19 has been alarmed at the increase in Internet and media shutdowns as well as website blockings in anticipation of or in response to protests. These significantly impact the rights of people to take part in protests and to receive and impart information as participants in protests. These measures also limit the right of media to report on protests, including human rights violations committed in the context of protests, infringing the public’s right to know about protests and governments’ responses to them. The collateral impact of these sweeping measures on broader populations is also notable, implicating a range of human rights concerns.

Recognition of the importance of secure communications and the right to privacy in the context of protests is also timely. A new report from the UN Special Rapporteur on freedom of opinion and expression recognises that online tools for anonymity and encryption are increasingly under attack, including to target dissent and protest. It builds upon a landmark 2015 report, updating recommendations to governments and business enterprises.

The resolution also ensures that the issue of protecting human rights online in the context of protests will stay on the agenda. It calls on the UN High Commissioner for Human Rights to prepare a thematic report addressing new technologies and their impact on the promotion and protection of human rights in the context of assemblies, including peaceful protests. It encourages consultations with all stakeholders, including civil society, in the development of the report, which will be presented to the HRC prior to its forty-fourth session in June 2020.

The new mandate holder in the post of UN Special Rapporteur on the right to freedom of peaceful assembly and association has also indicated this topic will be among his priorities in the coming years.

HRC resolution 38/11 also restates a number of important principles from earlier resolutions with the same title, which we have previously analysed.[2] Many of these elements have been substantially enhanced, including:

  • Expressly recognising that any limitations on the rights to freedom of expression, and freedoms of peaceful assembly and of association, including in the context of protests, must be “based in law, and be necessary and proportionate to a legitimate aim.” It further specifies that, if imposed, those limitations must be subject to administrative or judicial review that is “prompt, competent, independent and impartial.” Though numerous UN treaty bodies and HRC special procedures have long recognised these principles as integral to States’ human rights obligations, their pronouncement in the context of a HRC resolution is a new and welcome development.
  • Recognition that the rights to freedom of peaceful assembly, of expression, and of association encompass “organising, participating, observing, monitoring and recording assemblies”, while expressing concern at the criminalisation of individuals and groups for exercising these rights. It also emphasises the importance of ensuring the safety of journalists and media workers observing, monitoring and recording protests.
  • Calls upon States “to facilitate peaceful protests by providing protests, to the extent possible, with access to public space within sight and sound of their intended target audience”, responding to concerns that even where States avoid prohibiting an assembly outright, they can often apply arbitrary time and place limitations that effectively neuter their communicative impact.
  • Elaboration of concerns around States’ use of force against assemblies, including that use of less-lethal weapons may sometimes lethal consequences, and for States to make use of the “resource book on the use of force and firearms in law enforcement”, published by OHCHR and UNODC, alongside the “compilation of practical recommendations for the proper management of assemblies”, including by making use of de-escalation strategies and ensuring the availability of medical aid to persons injured by any use of force.

ARTICLE 19 is encouraged that the resolution not only made significant normative advances, but was also adopted by consensus, with broad and cross-regional co-sponsorship. This is particularly significant as previous resolutions on the same topic, though less comprehensive, have been adopted by vote, including as many as 9 States of the 47 member body voting against in 2014.

Costa Rica and Switzerland have demonstrated that even at times when multilateralism is facing clear strains, principled leadership can deliver strengthened human rights commitments with increased support,” said Hughes.

ARTICLE 19 looks forward to working with the incoming High Commissioner to report on challenges to protest rights in the digital age, and also to working with States and other stakeholders at the national and international levels through our 9 regional offices for the implementation of this landmark resolution,” he added.

Consensus was not restored in HRC Res 38/11 without challenge, however. An adverse amendment to the resolution was brought by the Russian Federation, which if adopted would have introduced dangerous language on the collective responsibility of protest organisers for the actions of all participants in a protest. While the amendment was rejected by a comfortable margin, the support it nevertheless received demonstrates the need for HRC consensus on human rights in the context of protests to be further consolidated.

 

[1] Co-sponsoring States at the point of the resolution’s tabling included: Albania, Australia, Austria, Benin, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Costa Rica, Croatia, Cyprus, Czechia, Denmark, El Salvador, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, New Zealand, Norway, Paraguay, Peru, Poland, Portugal, Republic of Moldova, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Tunisia, United Kingdom of Great Britain and Northern Ireland. Additional States may cosponsor the resolution for two weeks after the HRC Session closes.

[2] HRC Res 38/11 is the fifth resolution with this title as part of a series of initiatives dating back to an HRC decision in 2011. The initiative, originally including Turkey as part of the core group, was sparked in part as a response to human rights violations against protesters in “Arab Spring” uprisings.