As the United States has gone through months of protests surrounding police brutality and racism, the right to protest has been in the forefront of people’s minds. Although this is one of the core protections under the First Amendment in the United States, one might wonder if the right to protest is protected under international law. This post will explore that question, using specific examples of protests happening around the world to illustrate how international law intersects with the fundamental right to protest.
I. International Law Protecting the Right to Protest
One of the ways international law is governed is through treaties. The right to protest is recognized by international instruments, including major human rights treaties.[1] One particular treaty that has been ratified by 173 state parties is the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right of peaceful assembly, encapsulated in Article 21.[2] Article 21 states “[t]he 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.”[3]
Although Article 21 protects the right to protest and should therefore extend this right to all ratified parties, this does not necessarily guarantee that the parties will comply.[4] Additionally, the enforceability of human rights treaties in general is a difficult topic. In the United States, the ICCPR holds little weight domestically, because although the Senate ratified it, the treaty is non-self-executing.[5] This has the effect that the ICCPR does not create a cause of action by itself in the United States.[6]
Another issue with the enforceability of and compliance with Article 21 is that its language is very broad. Recently, the United Nations Human Rights Committee adopted General comment No. 37 on the right of peaceful assembly.[7] General comment No. 37 is the first comment from the Human Rights Committee dealing specifically with Article 21.[8] A few aspects of this comment help clarify what might otherwise be in question regarding the meaning behind the broad language in Article 21. One aspect addressed is the scope of protection for assemblies. The comment makes clear that any peaceful assembly falls within the scope of protection, “peaceful” and “non-violent” are interchangeable, and there is a presumption of peacefulness when considering whether an assembly is peaceful or not.[9] The comment also notes that violent actions by some (whether members of the protest or agents acting on behalf of the authorities) do not taint the entire assembly’s peacefulness.[10] This comment comes at an opportune time, as it seems to directly address the many protests around the globe.
II. Protests in the United States
The United States has had a long history of using peaceful protest as a Tensions surrounding police brutality and racism in the United States reached a peak this summer, amid fierce protests ignited—at least in part—by the brutal killing of George Floyd by police officers on May 25th, 2020.[11] Protests sparked in at least 140 cities across the United States[12] and lasted throughout the summer, even through the coronavirus pandemic that was silently raging cities all across the United States.[13]
Although the vast majority of these protests were peaceful, the response by law enforcement was anything but.[14] Law enforcement responded to these protests with exactly what was being protested against: police brutality. This includes both injuries and deaths which have resulted from the use of “tear gas, rubber bullets, and other crowd-controlling tactics” by police.[15] Of particular concern is the fact that since May 26, 2020 (the day after Mr. Floyd’s death), over 400 instances have been reported of police “detaining, assaulting, or otherwise preventing journalists from performing their duties.”[16] The response by police officers in the United States to these protests is in direct contravention with both Article 21 of the ICCPR, general comment No. 37, and international norms regarding the use of less lethal weapons.[17] The United States has been under the microscope for this response, but its non-compliance with international human rights laws and standards is not particularly new or surprising, especially considering the United States’ practice of ratifying treaties as non-self-executing, making it difficult (if not impossible) for the United States to be held liable for not following its terms.[18]
III. Protests in Indonesia
One example of recent protests in a foreign country involves the political unrest in Indonesia. Indonesian students have been protesting President Joko Widodo and his government, who have supported legislation that was recently passed which would deter the power of the Corruption Eradication Commission (“KPK”), the nation’s anti-corruption apparatus.[19] The KPK was formed to prosecute corrupt government actors in Jakarta, and since its establishment in 2002 has prosecuted hundreds of politicians, businessmen and officials, and is highly respected by the country.[20] However, the new legislation would significantly prevent their ability to carry out that purpose, and fears that this will lead to even more corruption than already exists have caused students and young people throughout the country to protest against the legislative changes.[21]
Although Indonesia is a member of the United Nations Human Rights Council (which obligates it to uphold “the promotion and protection of civil rights around the globe”) and has ratified the ICCPR (which obligates it to comply with Article 21’s protection of the right to peaceful assembly), the police response to these protests have been violent, in direct contravention of international law. As of September 2019, at least 300 protestors were injured, and one 21 year old student was killed after being shot in the chest.[22] Police have fired tear gas and water cannons at protestors, and videos and images have circulated social media depicting police using excessive force against the protestors.[23] Indonesia has come under scrutiny by human rights groups, with one representative from Amnesty International saying that the actions are “not in accordance with standard procedure” and police “must follow human rights principles while on the job.”[24]
IV. Human Rights Implications
The political unrest and subsequent police response in Indonesia and the United States are just two examples in a long line of trending violent responses by police that result in injuring and killing civilians. Mass protests from citizens in Chile, India, Hong Kong, Kenya, South Africa, and many more have taken place over the last year alone.[25] The reasons behind the protests range—from police brutality to COVID-19 responses—but in many of these places the response by the police has be the same: violence.[26] This is problematic not only because of the short term effect on the victims of violence, but the long term human rights implications in using force—especially deadly force—against citizens who are exercising their fundamental right to protest. This has the potential to create a chilling effect on citizens and prevent them from speaking out against injustices for fear that they will be beaten, arrested, or even killed by the very forces that are supposed to protect them. As discussed previously, this fundamental right is protected at the international level, and yet there is a concerning trend of violent responses by police nonetheless.
Because of the widespread nature of these incidents, it is very important for the international community to respond in some fashion because many parties are clearly in violation of Article 21 of the ICCPR at a minimum, and if they are not held accountable, it will greatly diminish the effect of treaties on the parties who have ratified them, and allow this conduct to continue unchecked.
[1] See, e.g.,Universal Declaration of Human Rights, GA res. 217A (III), U.N. Doc A/810 at 71 (1948) [hereinafter UDHR]; International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(d)(ix), G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195 (entered into forceJan. 4, 1969) [hereinafter ICERD]; International Covenant on Economic, Social and Cultural Rights, art. 8, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 [hereinafter ICESCR]. See also U.N. Human Rights Council, Resolution 15/21, U.N. Doc. A/HRC/RES/15/21 (Oct. 6, 2010) (“everyone has the rights to freedom of peaceful assembly and of association”).
[2] International Covenant on Civil and Political Rights, art. 21, 16 Dec. 1966 [hereinafter ICCPR]; OHCHR Dashboard, Status of Ratification, https://indicators.ohchr.org/.
[3] ICCPR, supra note 2, art. 21.
[4] See, e.g., Eric Posner, The case against human rights, The Guardian(Dec. 4, 2014), https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights.
[5] Kristen D.A. Carpenter, The International Covenant on Civil and Political Rights: A Toothless Tiger?, 26 N.C. J. Int’l L. & Com. Reg.1, 3 (2000).
[6] Id. at 11.
[7] See ICCPR. General Comment No. 37: Article 21 (Right of Peaceful Assembly), adopted 23 July 2020, UN Doc CCPR/C/GC/37, online: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 [hereinafter General Comment 37].
[8] See generally UNHR database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11.
[9] General Comment 37, supra note 7, at 15, 17.
[10] Id. at 18, 19.
[11] T. Andrew Brown, Peaceful Protests-Not Riots-Bring About Meaningful Change, 92 N.Y. St. B.J.18, 19 (2020).
[12] See Tala Doumani & Jamil Dakwar, Rubber Bullets and the Black Lives Matter Protests, 24 No. 2 Hum. Rts. Brief 77, 77(2020), citing Weiyi Cai et al., Photos From the George Floyd Protests, City By City, N.Y. TIMES (June 1, 2020), https://www.nytimes.com/inter-active/2020/05/30/us/george-floyd-protest-photos.html.
[13] See Brown, supra note 11 at 19.
[14] See Doumani & Dakwar, supra note 12.
[15] Id.
[16] Id., citing Laurin-Whitney Gottbrath and Patrick Strickland, Blinded, Arrested: Police Attack Journalists Covering U.S. Protests, AL JAZEERA (June 16, 2020), https://www.aljazeera.com/indepth/features/blinded-arrested-police-attack-journalists-covering-protests-200616023545157.html.
[17] See id. at 79—80; see also ICCPR, supra note 2, art. 21; General Comment 37, supra note 7, at 15, 17.
[18]See Doumani & Dakwar, supra note 12 at 80 (“According to a report published by the International Human Rights Clinic at the University of Chicago Law School, “none of the police use of lethal force policies from the 20 largest U.S. cities during 2017-2018 complied with basic international human rights law and standards.”) (quoting Univ. Chi. L. Sch. Glob. Hum. Rts. Clinic, Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards19 (2020), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc);see also Carpenter, supra note 5, at 3, 11.
[19] Hailey Ferguson, Indonesian Government Proposes Legislation Attacking Anti-Corruption Agency, Brutally Cracks Down on Student Protesters, Hum. Rts. Brief, Spring 2020, at 6, 7.
[20] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.
[21] Ferguson, supra note 11.
[22] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.
[23] Elisabeth Glory Victory, Reports of Police Brutality Spike in Indonesia… (Jade Poa trans.), VICE(Sept. 16, 2019), https://www.vice.com/en_asia/article/zmjyya/reports-police-brutality-spike-indonesia-570-high-school-students-detained-involvement-protests.
[24] Id.
[25] Thomas Carothers, Global Protests Start to Return, Carnegie Endowment for International Peace, 30 June 2020, https://carnegieendowment.org/2020/06/30/global-protests-start-to-return-pub-82225; Ferguson, supra note 11.
[26] Id.
New York International Law Review 