OCCUPY!
An Activist’s Guide to Protestors’ Rights
By Andy Marlow
Copyright 2011 Andy Marlow
Smashwords Edition
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Table of Contents
Chapter 2: International Human Rights
Chapter 3: European Right to Protest
What You Need To Know On The Day
Introduction
About four weeks ago as I write, the “Occupy Wall Street” movement began in New York. Since then, it has spread to all four corners of the USA and extended beyond their national borders to inspire similar movements in the UK, Germany and even South Africa. It has spread so far that some are now more accurately calling the movement “Occupy Together” in order to reflect its international scale.
As with any protest movement, there have been clashes with the authorities. When your tactics involve civil disobedience, you’re going to come across trouble and opposition. Recently Occupy Boston has reported the mass arrest of 100 protestors for moving away from the designated protest area and going onto an unauthorised section of the Rose Fitzgerald Kennedy Greenway.
And this is just the latest chapter of the story of police versus protestors which goes back for as long as history can remember. Back in 2010, Jody McIntyre was pulled from his wheelchair twice by the police during the student protests in London. And Ian Tomlinson’s death in 2009 at the end of a police officer’s baton will not be easily forgotten.
Yet the antagonism goes both ways, and often police action is provoked by the violent actions of a minority. Legally it becomes a confusing mess as to who has the right to do what, whether the police reaction went too far, whether the protestors overstepped their boundaries etc.
If you’re going to a demonstration, then, it is well worth knowing your rights. Several questions may be on your mind. Is kettling ever legal? What limits can the police place upon my freedom of movement? What duties do the authorities have to ensure my right to protest? All of these are useful questions to know the answer to, and their answers can be found in this eBook.
Before we get started, however, I would like to make a few points. Firstly, if you are reading this and you are not from the UK (for example, if you are from one of the many “Occupy” demonstrations going on throughout the USA), you should probably find another book about protestors’ rights. As much as I would love to have written an eBook which is applicable for protestors of all nationalities, the sad fact is that I am an English law student, and as such I have no knowledge of the American legal system. The first two chapters will still be useful for you because legal philosophy has no nationality and the USA, like most nations, is signed up to the International Covenant on Civil and Political Rights (which is the subject of the second chapter), but the third and fourth chapters cover strictly European and English law on the right to protest.
Secondly, this eBook will not make you a legal expert. It will give you enough information to have a very good grasp of your rights in the protest situation, but if you went into a Court of Law with just this eBook as your reference, you would have no chance of winning your case. In this work I reference many judgements of the UN Human Rights Committee, the European Court of Human Rights and the various courts of the English legal system; however, given the size of this eBook, each court case referred to is typically given a one sentence summary. In court, your opponent would have read the whole case and would be able to form an argument based on what one particular judge said at paragraph 41 and how that statement should be interpreted etc. and you wouldn’t stand a chance. This eBook will give you an idea of if your rights have been violated and if you have a case against the authorities, but if you intend to pursue a case to the courts, for goodness’ sake get yourself a lawyer- or else, comb through the references and read each case from top to bottom.
Chapter 1: Natural Rights
THE DETAIL:
The Natural Right to Protest
The existence of government and law can be explained through the “Social Contract”, and if the government breaks this contract, you have the right to protest.
The Social Contract means that there is an agreement between you, as citizen, and the government: you agree to obey the State’s laws, and in return the State guarantees to protect your rights. Naturally, then, if the State ceases to protect your rights (for example, by enacting racist or fascist laws), then you are no longer bound by them and you are justified in resorting to civil disobedience.
What are your rights, which the government must protect? This is where the ideas of Natural Law philosophers, such as John Locke1, comes into play. (“Natural Law” is the idea that human beings possess innate, universal human rights; it can be opposed to the ideas of “Positive Law”, which argues that we only get rights when they are given to us by written laws like Acts of Parliament or International Human Rights Treaties)
John Locke thought that human beings had an inherent right to their life, liberty and property. The reason is that before government was set up, before the first laws were ever enacted and when man lived in complete anarchy (or the “State of Nature”), these were the things that man naturally possessed (hence the idea of “Natural Rights”).
Born into the world, a human being would undoubtedly have possessed his life. He would also have possessed liberty, the freedom to do what he wanted with his own body. Finally, he would have possessed his property. For Locke, mankind originally held the world in common ownership, but any individual human being could do something like pick an apple from a tree and by his labour that apple would have become his “property”.
Although born with these natural rights, they were useless without enforcement. Without a parliament to create law, and a court system to punish lawbreakers, anyone could murder, enslave or steal from another human being with impunity.
Thus a government was set up under a “Social Contract” with the purpose of protecting these natural rights by enacting laws and punishing lawbreakers, in return for which the citizens had a duty to obey the laws of their government.
However, the Contract goes two ways. Thinkers like Locke, Rousseau 2 and Fichte 3 included a get-out clause in their ideas of the Contract, whereby the citizen is no longer obliged to obey the law if the government goes beyond its remit- for example, if it starts making laws which explicitly endanger the natural rights of its citizens, rather than protecting them.
What this means is that if the government no longer respects our natural rights, we no longer have to respect their positive laws. We therefore have the right to Civil Disobedience.
The Natural Right to Work
The ideas of “Life, Liberty and Property” are, on reflection, very limiting. If we were to follow the Social Contract idea dogmatically, we would have no choice but to all be staunch libertarians, opposed to things like the NHS and state schools because these aren’t included in Locke’s theory.
However, “Life, Liberty and Property” are very vague terms which need interpreting. For example, “life” may not simply mean that the government should stop people killing you; rather, it could also include the idea of preventing death, by making sure that you have the ability to feed yourself and receive treatment when ill.
One right that some thinkers have tried to fit into the Social Contract idea is the right to work- or, put another way, the duty of the government to ensure that everyone has work. Chinese activist Luo Longji finds this in the inherent right to life:
“…the most basic principle of human rights is to protect the people’s lives. The means by which citizens maintain their lives is by exchanging labour power for clothing, food and shelter. So the citizen has the right to work, and the state has the obligation to provide him with the opportunity to work. If the citizen is unemployed, that is proof that the state has failed in its duty.4”
This duty can also be found in the right to property, as conceived by the 19th century German philosopher Fichte. He sees within the Social Contract a “property compact 5”, which, he argues, forces the State to protect its citizens’ property rights. However, unlike Locke, his conception of “property” includes the right to work, because he views property not as things but as different “kinds of activity”. The most basic need of a human being is to feed himself, so the most basic property of a human being is the activity by which he can feed himself- i.e. work. In the words of Susan Shell:
“No one becomes a citizen without at the same time becoming entitled to a specific occupation by means of which he has a right to live. If the occupation cannot support him, the state must, either directly or by shifting him to a more productive occupation.6”
The State therefore has a duty to protect your life, liberty, property and, contained within all that, your right to work and be free from starvation. If the State fails, it has broken its side of the Contract and you are no longer bound by yours.
This extends the justification for Civil Disobedience from purely libertarian grounds and shows why it might be right to protest against unemployment and inequality, or cuts to government spending.
Limits to Civil Disobedience
If we are justified in ignoring the laws when the state violates the Social Contract, this does not extend to crime.
The basis of the Social Contract is to protect our natural rights. Therefore even in a world without government, man still has a right to his life, liberty and property- so you can’t justify smashing windows or causing GBH by the fact of a bad economy or police brutality which you claim has violated the Contract, because by doing those things you are violating the natural rights of those around you.
What’s more, you are inviting punishment upon yourself. Locke argued for a fourth right inherent to mankind: the right of any human being to punish someone who has violated another’s natural rights. So if you decide to go so far as committing criminal acts, the State is entirely justified in arresting and punishing you, even if the Contract is broken.
The Duty to Demonstrate
The Natural Law idea of innate, natural rights is rather dogmatic and rigid: it involves looking at a past series of events which were most likely fictional in order to decide whether we have a right to this, but not to that. It has come under fire from many legal thinkers and fallen out of favour, so that the Positivist school of thought is now much more influential today.
Yet this does not mean we have lost our justification for protest rights. In fact, this may give us even more of a justification for protest as, if we follow the thought process of a thinker called Rudolf von Jhering, we have not only a right to protest, but a duty.
Jhering begins by rejecting the ideas of Natural Rights which so underpin any “Social Contract” idea. However, he finds justification for human rights in another source: psychology. “The psychological source of all law is the feeling of right 7”. What he means by this is that we need no rational, technical, dogmatic explanation for rights; rather, they come simply from the feeling of “moral pain 8” we get when our rights have been violated.
Take, for example, the right to a piece of property. You think it is yours, that you have a right to it, but then it is taken away from you by a thief. For Jhering, this is not a violation of your rights because of some dogmatic idea of how men first came together, but because you feel “moral pain” that the indignity you have suffered. It even feels like something personal- for, as Jhering claims, “property is but the periphery of my person extended to things 9”. Liberty could be seen as the right of absolute control over your own body; property, then, may be the right to absolute control over things separate from your body. In this way, and in the way you come to acquire, choose and identify with your property, it becomes an extension of yourself- so that if it is taken away (and keep in mind Fichte’s conception that “property” includes your activity, work and right to do) it is an affront to your very identity.
Jhering therefore finds the justification for rights in man’s psychological need to have his rights respected in order to avoid “moral pain”. He goes on to claim that it is both the individual and the group who suffers when rights are violated. Rights, then, are based on a psychological need of the individual and the community; therefore to keep the individual and community mentally healthy, we need to assert our rights against those who would take them away- even the government.
This positivist approach, rather than taking away the strength of Natural Rights by denying them universal character, gives rights a stronger footing and a more flexible application. No longer are we bound by the conception of “Life, Liberty and Property” formulated in Locke’s fictional “State of Nature”; rather, we may fight for whatever rights we choose based on our own psychological needs. What’s more, the right to protest is at the very heart of this conception of rights, as without it no other rights would have ever come into existence.
The Historical Basis of Rights
The battering of Locke’s “Life, Liberty and Property” ideas, and the increasing flexibility of human rights ideas, is shown in the ideas of thinkers who looked to history for justification of rights. Jellinek, for example, “determined that individual ‘rights’ to life, liberty and property were best understood [as]… the effects of historically conditioned struggles for recognition 10”.
Jellinek’s theory can be summed up as follows: Human Rights began their conceptual life in reformation ideas of individual religious liberty, and in English ideas about limiting the power of government. Based on this, Jellinek saw rights as concessions from the State, an idea which was carried forward into the American Declaration of Independence, albeit “brought out in a new form 11”. The American Declaration served as inspiration for the French Declaration of the Rights of Man, a document which was born in the heat of Revolution and is widely seen as one of the founding documents of modern Human Rights discourse.
Following Jellinek’s ideas, we can see that mankind has the idea of “life, liberty and property” not from human nature or God-given law, but from the historical context of medieval England and the influence that John Locke’s ideas began to hold. This idea was carried forward into the two Declarations mentioned above and, more recently, International Human Rights Treaties (discussed in chapter 2), and this is the basis of individual rights.
He rejected natural law outright, attacking the idea that the Social Contract could ever explain the creation of individual rights. Rounding specifically on Rousseau, who many see as the philosophical father of the French Revolution, Jellinek claimed that his Social Contract could only explain general liberty, not individual rights 12. Rather than showing the strength of Rousseau’s ideas, “the central juridical lesson of the French Revolution was that subjective rights were only possible through a positive state constitution 13”.
His general position was that rights are merely concessions from the government, which may be withdrawn at will 14. Yet this does not put the protestor in a powerless position. Rather, she occupies a vital role: for the rights conceded by the government are based on the struggle of the populace. You can change what rights your government gives you “through the practical struggles of everyday political life 15”. We therefore return to Jhering’s idea of a duty to protest in order to ensure a fair settlement from the state.
Related to Jellinek, and much more famous and influential than him generally, are the ideas of Hegel, a 19th century German philosopher. Both Hegel and Jellinek saw the state as an organism, with the individual citizens working like the cells of a body, but while Jellinek saw it merely as “a more developed form of social union than any other 16”, Hegel’s theory was more metaphysical, seeing the state as “reason unfolding in history 17”.
By “reason” he was specifically referring to an innate spirit of freedom in human nature, which is constantly at work towards making society freer. History for Hegel began in the first political union, which was largely defined by the distinction between masters and servants. In this era, neither master nor servant was satisfied, for neither of them could give life to their spirit of freedom. The master had no equal from whom he could seek recognition; the servant, no outer freedom by which he could choose his path in life. By working with his hands, however, the servant came up with the conception of freedom by realising just what he could do with his hands, how he could create and mold the world around him.
From this point, history is seen by Hegel as a constant movement towards a freer society. Absolute dictatorship became constitutional monarchy; constitutional monarchy became liberal democracy, and so on. In each of these stages, the individual is a little freer than he was before, and this is what is meant by “reason unfolding in history”.
Hegel therefore viewed history as a movement towards what he called “abstract right 18”, which is a condition where the particular, individual needs of everyone in the community are met. Yet because the community is an imperfect formulation of men, it never quite embodies a perfect conception of abstract right; rather, the community is in constant struggle towards the concept. We can therefore place the right to protest in a position of high importance within Hegelian thought as a necessary part of that struggle. What’s more, if the movement towards “abstract right” is necessarily taking us towards a community where everyone has individual freedom, then a government which chose to suppress an already existing right to protest would show itself to be against the tide of history and against reason itself.
Resurrecting the Social Contract
The idea of a Social Contract based on innate natural values has largely fallen away in recent times and been replaced by the ideas of the historical, psychological and other schools of thought. Yet this does not mean that we cannot invoke the Contract to justify our protests.
If we’re lucky enough to live in a democracy, then every four or five years we get an election, where we can decide who will rule us for the next period of office. Despite cynicism about how much an individual vote is actually worth, this process can be seen as a constant renewal of the Social Contract, where the votes of the people decide which rights should be included and which should be removed. If we take this as fact, then it could be argued that whenever the government tries to do something for which the people didn’t give them a mandate, we have a right (or, in Jhering’s terms, a duty) to protest against it.
And the political process does not end there. During the four years between elections, we should not sit back and do nothing. The ideas of Jhering emphasise our psychological need to fight for our rights, and the historical school of thought embodied in Hegel and Jellinek shows that constant struggle is the author of new rights and the protector of old. Using the language of the Social Contract, then, even between the times when we can renew it, we should be fighting to get new rights added next time round and to protect those we have already won.
THE SUMMARY:
* According to the Social Contract theory, there is a contract between the government and its citizens whereby the citizens promise to obey the law in return for the government protecting its citizens’ rights.
* If the government doesn’t hold to its end of the Contract, then you no longer have to hold to yours. This justifies civil disobedience.
* Some philosophers think that under this Contract, the government must ensure your right to exist and find work as well. This means that if a government is making policies which increase unemployment, civil disobedience may be justified.
* Even outside the contract, people still have rights. This means that claiming the government has broken its side of the Social Contract will not justify murder, theft, GBH, etc.
* Some philosophers argue that there is a duty to fight for your rights based on psychological or historical considerations.
* Even those philosophers who disagree with the Social Contract see struggle and protest as the basis of our modern political life.
Chapter 2: International Human Rights
THE DETAIL:
Your right to Freedom of Speech, Assembly and Association
The main sources of International Human Rights Law considered in this chapter are the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The Universal Declaration is the more famous of the two, yet it is actually less useful. The reason is that it is primarily a political document rather than a legal one. It was adopted by the General Assembly of the United Nations as a “Resolution”, which is not binding upon the States which signed it. What this means is that you could not go into a court of law and rely on the rights contained within it before a judge.
It is not entirely useless, however: the UN Charter, which set up the United Nations in the first place and is a legally binding document, contains many references to “human rights” and the Universal Declaration is often seen as the interpretation of that term. As well as that, in international law there is the idea of customary law, which is the idea that if States act in a certain way and believe themselves to be obliged to act in that way, then it becomes law that they have to. Given this fact, it is quite probable that many of the rights contained in the Universal Declaration have become legally binding under customary international law19.
The Universal Declaration of Human Rights contains 28 articles, each defining a different right which the Declaration protects. Article 19 protects the right to freedom of expression, while article 20 protects the right to freedom of peaceful assembly. What this means is that, when the two rights are combined together, you have the right to protest: the right to assemble peacefully and express yourself.
The International Covenant on Civil and Political Rights also contains these freedoms: Article 19 protects your freedom of expression; Article 21, your right of peaceful assembly; Article 22, your freedom of association. These are more useful because the Covenant is by nature a legally binding document which does give you legally enforceable rights. Each right will be examined in turn.
Article 19 comes in three parts, of which Article 19(2) provides an eloquent exposition of what is included in the freedom of expression:
“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.”
But Article 19(3) attaches a condition:
“The exercise of the[se] rights… 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 rights or reputations of other (b) for the protection of national security or of public order, or of public health or morals”
The ideas expressed in article 19(3) are important limitations to the right to freedom of expression as enshrined in International Law. Firstly, you cannot use your freedom of expression to infringe the “rights or reputations of others” (Article 19(3)(a)). What this is basically getting at is defamation. It is a vast oversimplification of the law, and this description is possibly only relevant to the English law on defamation, but defamation occurs where you make a statement which lowers the reputation of someone in the eyes of right-thinking people20 and that statement is published. If someone can prove that your statement was about them (and in the past, even accidental references to a person have proved sufficient), then you may find yourself being sued and you cannot plead “freedom of expression” in your defence. What is worse, it is up to you to prove that your statement was true21, which has proven a problem in the past. In one case22, two penniless protestors found themselves up against the might of McDonalds with the Herculean task of proving that their claims- that McDonalds was exploiting workers, serving unhealthy food, damaging the rainforest, etc.- were true. They fought valiantly and eventually won, but you can imagine how much time and expense they had to put in to get all the experts and evidence for their case. You don’t want to find yourself in that position.
If you do find yourself in that position, however, you may find partial protection in your right to free expression. In past reports the UN Human Rights Committee has viewed “severe penalties for criminal defamation23” and provisions of law which aim at “prohibiting and punishing insults and other offences against the honour of the President24” as a breach of Article 19.
The government can restrict your freedom of expression on the grounds of national security, public order, public health or morality (Article 19(3)(b)). This is bad news for a would-be protestor, because International Human Rights Law gives governments a wide “margin of discretion” to decide exactly how much they want to limit your free speech in defence of national security etc. In the past, the UN Human Rights Committee has used this doctrine to allow Finland to ban homosexual programmes and adverts on TV and radio (on the basis of public morality)25, and to allow France to pass a law banning Holocaust denial (although only the most ardent supporters of free speech would defend Holocaust deniers)26.
However, despite the margin of discretion, the UN Human Rights Committee has stated that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself27”. It has accordingly set down a threefold test for determining whether the government is justified in limiting your freedom of speech:
1) Is the ban based on Law?
If it isn’t, then the government has no right to limit your freedom of speech. Unless there is an Act of Parliament or other legal source which allows the police (or whoever else) to disrupt your right to freedom of expression, then their interference is in breach of your human rights.
2) Does this law address one of the aims set out in Articles 19(3)?
Article 19(3) allows freedom of expression to be disrupted on the basis of protecting the rights and reputations of others, national security, public order, public morality or public health. Remember that list. If you are confronted with someone who is trying to disrupt your free speech, but who cannot justify that disruption on the basis of a law to do with one of these issues, then you have a right to keep expressing yourself.
3) Is the limitation of free expression necessary?
By this point, your would-be infringer of your right to free expression has shown that his actions are justified by law, and what’s more by a law to do with the issues mentioned in Article 19(3). But he still has to show one thing: that it is necessary for him to stop you expressing yourself.
I advise caution at this stage. “Necessity” is a very subjective idea which can be tricky to decide or argue in the heat of protest. To illustrate this, in the case of Faurisson v France it was “necessary” to limit freedom of expression in relation to Holocaust denial in order to protect the Jewish population from anti-Semitism. In this case, the members of the UN Human Rights Committee thought that it was “necessary” to convict the anti-Semitic Faurisson, but the law was not “necessary” which had been used to convict him. It banned any questioning of the verdict at the Nuremburg trials after World War 2. In the Committee’s opinion, this law was in breach of Article 19 as it seemed to prevent genuine historical research; it was not proportionate to the wrong it sought to prevent.
Other breaches of Article 19 noted by the Committee have occurred where the law only vaguely defines “terrorism” (allowing the government to brand anyone a terrorist for views they may express)28; and where journalists and Human Rights defenders have been verbally and physically threatened29.
We have now reached the end of Article 19, an article which protects your right to shout through a megaphone, wave placards, distribute leaflets, use chalk to write on the pavement, etc. How you use your freedom of expression is limited only by your imagination, and it can only be restricted by the State if they can justify it based on law, and what’s more a law based only on any of the reasons in Article 19(3) and necessity.
The final limit to your freedom of expression is to be found in Article 20 of the International Covenant on Civil and Political Rights, which means that you are not allowed to use your freedom of expression to incite racial hatred, discrimination or violence. If the government doesn’t act to stop you spreading hatred, then it is breaching International Law30.
Article 21 gives you the right to peaceful assembly. The Article states that:
“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.”
This is very similar to the restrictions on freedom of expression, except that in this case the proviso of “public safety” is added. Once again, your right to peaceful assembly cannot be restricted unless the restriction is (1) based on a law (2) which is to do with national security, public safety, public order, public health or protection of rights and freedoms of others, (3) and is necessary.
These restrictions need to be strictly adhered to. The UN Human Rights Committee has considered it a violation of Article 21 where demonstrations are only allowed in certain designated zones and where applications for the right to protest are routinely refused on the grounds of public order31.
Article 22 protects your freedom of association, which is your right to associate freely with others and form unions and organisations, subject to exactly the same restrictions as above. The meaning of this article is illustrated in the reports of the UN Human Rights Committee, which have regarded it as a violation of Article 22 to: enforce a non-essential prohibition of strikes32; forcibly disperse peaceful demonstrations by political parties33; verbally intimidate and physically attack human rights defenders34; and prohibit foreign Non-Governmental Organisations from taking part in Human Rights and democratic activity35.
What to do if your rights are breached
You don’t need to worry about this section unless you think the authorities or other protestors have breached your rights under the International Covenant. If your rights have not been breached, feel free to skip this bit and go on to the chapter on the European Convention on Human Rights.
The first, and most important, method by which the UN Human Rights Committee holds countries to account for human rights abuses is the reporting procedure, through which governments send periodic reports to the Committee detailing how they are implementing the Convention on Civil and Political Rights. It is a fairly flimsy procedure as the comments of the Committee do not carry any legal weight, but it could be argued that they put political pressure and embarrassment on the violating State.
Since 1976, the International Convention on Civil and Political Rights has had an “Optional Protocol” added to it, which enables you to complain to the Human Rights Committee at the United Nations about your infringement. Unfortunately, as of 2002 neither the United Kingdom nor the United States of America have signed up to this Optional Protocol, so if you are in one of those countries this section will be of no help to you at all. However, if you are in countries such as France, Germany, Canada or Australia, your governments have signed up to it, so you can utilise this method if need be. In total there are over 100 countries which have signed up to the Protocol.
The Protocol is only really useful if the country you live in has an abysmal domestic legal system, since you can only send a complaint to the Committee if you have exhausted all remedies at home. What this means, to use the example of England (because this is the legal system I am most familiar with; but remember that the UK has not signed up to this Protocol) is that before I can send a complaint to the Committee, I must have been through the English courts all the way up to the Supreme Court in London. The process is therefore very much a last resort.
If you do find yourself in a situation where you want to take advantage of the Protocol, this is what you should do. Firstly, send a message to the Secretariat of the Office of the High Commissioner for Human Rights at the UN giving your name, address and nationality, as well as that of the victim of the abuse (if that person is not you). Your message should also include identification of which articles of the International Convention have been breached and confirmation that you have not submitted the same matter to another international procedure. You must then sign it and date it. While these procedures seem petty, your application may be rejected if just one of them is not followed through.
What follows is then a mess of red tape. Your communication will first be processed by the Secretariat and sent on to the Special Rapporteur for New Communications. He will make sure you have followed the right procedures and will then contact both you and your government to ask for observations and information about the case. Once this is done, he sends it on to a Working Group on Communications, which will decide whether your communication is admissible. If it is admissible, the matter is then passed on to the Committee itself.
The Committee must inform your government of the communication and give it up to six months to reply. Then the Committee, based upon the written evidence from you and your government, makes its decision about your case. It then passes on its findings to you and the State you have complained about.
And that’s it. There’s no penalty or sanction, no punishment for the offending government. I’m sorry to have taken you through all that, but it’s scarcely worth going through all that bureaucracy just to have the Committee give an opinion which, in all likelihood, your government will ignore. It might be good to embarrass them politically, but that’s all it’s going to do.
If you still want to go for it, though, there’s a few more conditions you need to know about making an application for review by the Committee. Firstly, it doesn’t matter what your nationality is, as long as you’re in the jurisdiction of the State you want to complain against- and sometimes you don’t even need to be in the country to count as being within the state’s jurisdiction, such as in the case of Samuel Lichtensztejn v Uruguay (1980)36, when a Uruguayan citizen was held to be within Uruguay’s jurisdiction because he held the passport, despite living in Canada. It must be noted, however, that this case was about the renewal of that passport.
Only an individual, and not an association, can submit an application. You must be the victim of the alleged violation yourself, or else a representative of the victim. This usually means their lawyer, although the rules are relaxed when the victim is physically unable to communicate themselves due to imprisonment etc., in which case anybody who can show a strong enough link to the victim (for example a close family member, but not a Non-Government Organisation or charity) is entitled to make the communication on his/her behalf.
To be classified as a “victim” of a violation of your rights, you must be in a position where your risk of suffering a violation is more likely than a “theoretical possibility”. For example, this test allowed a homosexual to claim in Toonen v Australia (1994)37 that his rights had been violated by the criminalisation of homosexuality, despite the fact that the law had not been enforced for ten years, because of the threat that it might be.
You can only make a complaint against a State (not an individual or private organisation), and only one which has signed up to the Optional Protocol. An organisation is considered as an emanation of the State if it is semi-officially controlled or more.
THE SUMMARY:
* Your right to freedom of expression, association and assembly are protected by the Universal Declaration of Human Rights and, more importantly, the International Covenant on Civil and Political Rights.
* Your right to freedom of expression can only be restricted if it is based on a law which is to do with protecting other people’s rights and reputations, national security, morality, public order or public health, and only if it is necessary.
* For freedom of assembly and association, the same list applies except with “public safety” added as a factor.
* You do NOT have the right to incite racial hatred or violence.
* If you think your right to freedom of expression, association or assembly has been breached, you can complain to the Human Rights Committee at the UN- although not if you live in the UK or USA.
Chapter 3: European Right to Protest
THE DETAIL
The European Convention on Human Rights (ECHR) protects your right to freedom of assembly in Article 11, which states that:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
“No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The good news about this right is that it is more effective that your rights under the International Covenant on Civil and Political Rights. Firstly, if your rights under Article 11 are breached, you can take a case to the European Court of Human Rights to enforce them and, unlike the UN Human Rights Committee, the European Court’s judgements are legally binding and you can get some form of compensation.
Secondly, Article 11 of the European Convention goes further than the International Covenant in that under Article 11, the government cannot use “public order” to justify infringing your rights38. In effect this is fairly minor, however, as “national security” or “public safety” could be almost as synonymous for the same concept.
Thirdly, the fact that there is a Court whose job is to interpret the ECHR means that there is a lot of case-law out there to tell us just what the right to “peaceful assembly” means.
Under Article 11, the authorities are allowed to require notification or authorisation of your protest39. This does not mean that every country will require notification or authorisation of a protest; just that they are allowed to make that a requirement. In most places in the UK, you are entirely free to simply turn up and start shouting through a megaphone at will (although there are some areas where you do need authorisation, which will be covered in the next chapter).
This fact is fairly misleading, though, because Article 11 does protect your right to stage an unauthorised demonstration. If you request authorisation and the authorities refuse it40, or if you stage an unauthorised demonstration which is then dispersed by the authorities even though it is not a danger to the public41, in both cases your article 11 right to peaceful assembly has been breached. In effect, then, the authorities are obliged to authorise your demonstration and tolerate it if it isn’t authorised.
There are situations where the authorities are allowed to prohibit your demonstration, however. For example, they are allowed to prevent you from demonstrating in one particular location if they have provided you with a different location where you can protest42. They are also allowed to stop you demonstrating if you have already been demonstrating for a long time- in one case, the dispersal of an occupation of a church did not violate article 11 as the protestors had enjoyed two months of protesting there43, and in another case the fact that Greenpeace had enjoyed one month of protest against the Norwegian whaling industry meant that their article 11 rights did not protect them from criminal prosecution for attempting to block the whaling ships when they set out to sea44. And if you are demonstrating on private land, you will not be protected by Article 11 (Appleby and others v UK [2003])
The reason for such apparent time limits on demonstrations is the need to balance the rights of protestors with the provisions of Article 11(2), which allow the right to peaceful assembly to be restricted on the basis of national security, prevention of disorder, public health and morality and the protection of rights and freedoms of others. In the case of the occupied church, one of the reasons that the authorities intervened was because of public worries about unsanitary conditions within the occupation; and in another case, the European Court of Human Rights said a temporary, localised ban on demonstrations would be justified due to public safety fears45.