Chapter 4 - Universal Instruments
Universal instruments have been developed and adopted within the United Nations usually as a result of negotiation and diplomatic exchanges. Since almost all states are represented in the UN, instruments and texts adopted tend to have a large degree of support at the universal level.
The United Nations was established on 24 October 1945. Its purposes and principles are set out in its Charter and include the promotion and encouragement of respect for human rights and fundamental freedoms without distinction. The Universal Declaration of Human Rights (UDHR) was passed as a resolution by the General Assembly in December 1948 and is the cornerstone of the international human rights protection system. Various UN treaties have subsequently elaborated on the provisions of the UDHR. These instruments are open for ratification by all member states and are legally binding to those states which become parties to them, subject to reservations and declarations. The implementation of these core human rights treaties is monitored by committees of experts, who consider States Parties' periodic reports on the measures they have adopted to give effect to the rights in the instruments. States Parties can also choose to recognise the competence of the committees to receive communications from other States Parties or individuals alleging that it has not fulfilled its obligations.
The Universal Declaration of Human Rights (UDHR) (1948)
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- Everyone has the right to freedom of peaceful assembly and association.
- No one may be compelled to belong to an association.
- Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
- Everyone has the right of equal access to public service in his country.
- The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
- Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
- Each State Party to the present Covenant undertakes:
- To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
- To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
- To ensure that the competent authorities shall enforce such remedies when granted.
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
- 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.
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The 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.
- Everyone shall have the right to freedom of association with others.
- No restrictions may be placed on the exercise of this right other than those which are prescribed by 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 article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2, and without unreasonable restrictions:
- To take part in the conduct of public affairs, directly or through freely chosen representatives;
- To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
- To have access, on general terms of equality, to public service in his country.
- No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Distinctions between those who are entitled to citizenship by birth and those who acquire it by naturalization may raise questions of compatibility with article 25. State reports should indicate whether any groups, such as permanent residents, enjoy these rights on a limited basis, for example, by having the right to vote in local elections or to hold particular public service positions.
- Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. For example, it may be reasonable to require a higher age for election or appointment to particular offices than for exercising the right to vote, which should be available to every adult citizen. The exercise of these rights by citizens may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable. For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.
- Citizens participate directly in the conduct of public affairs when they exercise power as members of legislative bodies or by holding executive office. This right of direct participation is supported by paragraph (b). Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b). Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.
- Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power. It is also implicit that the representatives exercise only those powers which are allocated to them in accordance with constitutional provisions. Participation through freely chosen representatives is exercised through voting processes which must be established by laws that are in accordance with paragraph (b).
- Paragraph (b) of article 25 sets out specific provisions dealing with the right of citizens to take part in the conduct of public affairs as voters or as candidates for election. Genuine periodic elections in accordance with paragraph (b) are essential to ensure the accountability of representatives for the exercise of the legislative or executive powers vested in them. Such elections must be held at intervals which are not unduly long and which ensure that the authority of government continues to be based on the free expression of the will of electors. The rights and obligations provided for in paragraph (b) should be guaranteed by law.
- The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.
- States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced. Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.
- Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected. Positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty, or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively. Information and materials about voting should be available in minority languages. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice.
- If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.
- The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person’s candidacy.
- Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory. If there are reasonable grounds for regarding certain elective offices as incompatible with tenure of specific positions (e.g. the judiciary, high-ranking military office, public service), measures to avoid any conflicts of interest should not unduly limit the rights protected by paragraph (b). The grounds for the removal of elected office holders should be established by laws based on objective and reasonable criteria and incorporating fair procedures.
- The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties. If a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy. Without prejudice to paragraph (1) of article 5 of the Covenant, political opinion may not be used as a ground to deprive any person of the right to stand for election.
- In conformity with paragraph (b), elections must be conducted fairly and freely on a periodic basis within a framework of laws guaranteeing the effective exercise of voting rights. Persons entitled to vote must be free to vote for any candidate for election and for or against any proposal submitted to referendum or plebiscite, and free to support or to oppose government, without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will. Voters should be able to form opinions independently, free of violence or threat of violence, compulsion, inducement or manipulative interference of any kind. Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party. The results of genuine elections should be respected and implemented.
- An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant. The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.
- Although the Covenant does not impose any particular electoral system, any system operating in a State party must be compatible with the rights protected by article 25 and must guarantee and give effect to the free expression of the will of the electors. The principle of one person, one vote, must apply, and within the framework of each State’s electoral system, the vote of one elector should be equal to the vote of another. The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.
- In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas.
- The right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by article 25. Political parties and membership in parties play a significant role in the conduct of public affairs and the election process. States should ensure that, in their internal management, political parties respect the applicable provisions of article 25 in order to enable citizens to exercise their rights there under.
- This general comment replaces general comment No. 10 (nineteenth session).
- Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society.1 They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.
- Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.
- Among the other articles that contain guarantees for freedom of opinion and/or expression, are articles 18, 17, 25 and 27. The freedoms of opinion and expression form a basis for the full enjoyment of a wide range of other human rights. For instance, freedom of expression is integral to the enjoyment of the rights to freedom of assembly and association, and the exercise of the right to vote.
- Taking account of the specific terms of article 19, paragraph 1, as well as the relationship of opinion and thought (article 18), a reservation to paragraph 1 would be incompatible with the object and purpose of the Covenant.2 Furthermore, although freedom of opinion is not listed among those rights that may not be derogated from pursuant to the provisions of article 4 of the Covenant, it is recalled that, “in those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4”. Freedom of opinion is one such element, since it can never become necessary to derogate from it during a state of emergency.
- Taking account of the relationship of freedom of expression to the other rights in the Covenant, while reservations to particular elements of article 19, paragraph 2, may be acceptable, a general reservation to the rights set out in paragraph 2 would be incompatible with the object and purpose of the Covenant.
- The obligation to respect freedoms of opinion and expression is binding on every State party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party. Such responsibility may also be incurred by a State party under some circumstances in respect of acts of semi-State entities. The obligation also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.
- States parties are required to ensure that the rights contained in article 19 of the Covenant are given effect to in the domestic law of the State, in a manner consistent with the guidance provided by the Committee in its general comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant. It is recalled that States parties should provide the Committee, in accordance with reports submitted pursuant to article 40, with the relevant domestic legal rules, administrative practices and judicial decisions, as well as relevant policy level and other sectorial practices relating to the rights protected by article 19, taking into account the issues discussed in the present general comment. They should also include information on remedies available if those rights are violated.
Freedom of opinion
- Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.
- Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.
Freedom of expression
- Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.
- Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and internet-based modes of expression.
Freedom of expression and the media
- A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.
- As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.
- States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.
- States parties should ensure that public broadcasting services operate in an independent manner. In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence.
- Issues concerning the media are discussed further in the section of this general comment that addresses restrictions on freedom of expression.
Right of access to information
- Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. Public bodies are as indicated in paragraph 7 of this general comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. As has already been noted, taken together with article 25 of the Covenant, the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to receive media output. Elements of the right of access to information are also addressed elsewhere in the Covenant. As the Committee observed in its general comment No. 16, regarding article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to have his or her records rectified. Pursuant to article 10 of the Covenant, a prisoner does not lose the entitlement to access to his medical records. The Committee, in general comment No. 32 on article 14, set out the various entitlements to information that are held by those accused of a criminal offence. Pursuant to the provisions of article 2, persons should be in receipt of information regarding their Covenant rights in general. Under article 27, a State party’s decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities.
- To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests.
Freedom of expression and political rights
- The Committee, in general comment No. 25 on participation in public affairs and the right to vote, elaborated on the importance of freedom of expression for the conduct of public affairs and the effective exercise of the right to vote. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. The attention of States parties is drawn to the guidance that general comment No. 25 provides with regard to the promotion and the protection of freedom of expression in that context.
The application of article 19 (3)
- Paragraph 3 expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed. The Committee also recalls the provisions of article 5, paragraph 1, of the Covenant according to which “nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”.
- Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.
- States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression. Paragraph 3 may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights. Nor, under any circumstance, can an attack on a person, because of the exercise of his or her freedom of opinion or expression, including such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible with article 19. Journalists are frequently subjected to such threats, intimidation and attacks because of their activities. So too are persons who engage in the gathering and analysis of information on the human rights situation and who publish human rights-related reports, including judges and lawyers. All such attacks should be vigorously investigated in a timely fashion, and the perpetrators prosecuted, and the victims, or, in the case of killings, their representatives, be in receipt of appropriate forms of redress.
- Restrictions must be provided by law. Law may include laws of parliamentary privilege and laws of contempt of court. Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or other such customary law.
- For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.
- Laws restricting the rights enumerated in article 19, paragraph 2, including the laws referred to in paragraph 24, must not only comply with the strict requirements of article 19, paragraph 3 of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant. Laws must not violate the non-discrimination provisions of the Covenant. Laws must not provide for penalties that are incompatible with the Covenant, such as corporal punishment.
- It is for the State party to demonstrate the legal basis for any restrictions imposed on freedom of expression. If, with regard to a particular State party, the Committee has to consider whether a particular restriction is imposed by law, the State party should provide details of the law and of actions that fall within the scope of the law.
- The first of the legitimate grounds for restriction listed in paragraph 3 is that of respect for the rights or reputations of others. The term “rights” includes human rights as recognized in the Covenant and more generally in international human rights law. For example, it may be legitimate to restrict freedom of expression in order to protect the right to vote under article 25, as well as rights article under 17 (see para. 37). Such restrictions must be constructed with care: while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote. The term “others” relates to other persons individually or as members of a community. Thus, it may, for instance, refer to individual members of a community defined by its religious faith or ethnicity.
- The second legitimate ground is that of protection of national security or of public order (ordre public), or of public health or morals.
- Extreme care must be taken by States parties to ensure that treason laws and similar provisions relating to national security, whether described as official secrets or sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict requirements of paragraph 3. It is not compatible with paragraph 3, for instance, to invoke such laws to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information. Nor is it generally appropriate to include in the remit of such laws such categories of information as those relating to the commercial sector, banking and scientific progress. The Committee has found in one case that a restriction on the issuing of a statement in support of a labour dispute, including for the convening of a national strike, was not permissible on the grounds of national security.
- On the basis of maintenance of public order (ordre public) it may, for instance, be permissible in certain circumstances to regulate speech-making in a particular public place. Contempt of court proceedings relating to forms of expression may be tested against the public order (ordre public) ground. In order to comply with paragraph 3, such proceedings and the penalty imposed must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings. Such proceedings should not in any way be used to restrict the legitimate exercise of defence rights.
- The Committee observed in general comment No. 22, that “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition”. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination
- Restrictions must be “necessary” for a legitimate purpose. Thus, for instance, a prohibition on commercial advertising in one language, with a view to protecting the language of a particular community, violates the test of necessity if the protection could be achieved in other ways that do not restrict freedom of expression. On the other hand, the Committee has considered that a State party complied with the test of necessity when it transferred a teacher who had published materials that expressed hostility toward a religious community to a non-teaching position in order to protect the right and freedom of children of that faith in a school district.
- Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.
- When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.
- The Committee reserves to itself an assessment of whether, in a given situation, there may have been circumstances which made a restriction of freedom of expression necessary. In this regard, the Committee recalls that the scope of this freedom is not to be assessed by reference to a “margin of appreciation” and in order for the Committee to carry out this function, a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.
Limitative scope of restrictions on freedom of expression in certain specific areas
- Among restrictions on political discourse that have given the Committee cause for concern are the prohibition of door-to-door canvassing, restrictions on the number and type of written materials that may be distributed during election campaigns, blocking access during election periods to sources, including local and international media, of political commentary, and limiting access of opposition parties and politicians to media outlets. Every restriction should be compatible with paragraph 3. However, it may be legitimate for a State party to restrict political polling imminently preceding an election in order to maintain the integrity of the electoral process.
- As noted earlier in paragraphs 13 and 20, concerning the content of political discourse, the Committee has observed that in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high. Thus, the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition. Accordingly, the Committee expresses concern regarding laws on such matters as, lese majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials, and laws should not provide for more severe penalties solely on the basis of the identity of the person that may have been impugned. States parties should not prohibit criticism of institutions, such as the army or the administration.
- States parties should ensure that legislative and administrative frameworks for the regulation of the mass media are consistent with the provisions of paragraph 3. Regulatory systems should take into account the differences between the print and broadcast sectors and the internet, while also noting the manner in which various media converge. It is incompatible with article 19 to refuse to permit the publication of newspapers and other print media other than in the specific circumstances of the application of paragraph 3. Such circumstances may never include a ban on a particular publication unless specific content, that is not severable, can be legitimately prohibited under paragraph 3. States parties must avoid imposing onerous licensing conditions and fees on the broadcast media, including on community and commercial stations. The criteria for the application of such conditions and licence fees should be reasonable and objective, clear, transparent, non-discriminatory and otherwise in compliance with the Covenant. Licensing regimes for broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite services should provide for an equitable allocation of access and frequencies between public, commercial and community broadcasters. It is recommended that States parties that have not already done so should establish an independent and public broadcasting licensing authority, with the power to examine broadcasting applications and to grant licenses.
- The Committee reiterates its observation in general comment No. 10 that “because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression”. The State should not have monopoly control over the media and should promote plurality of the media. Consequently, States parties should take appropriate action, consistent with the Covenant, to prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations that may be harmful to a diversity of sources and views.
- Care must be taken to ensure that systems of government subsidy to media outlets and the placing of government advertisements are not employed to the effect of impeding freedom of expression. Furthermore, private media must not be put at a disadvantage compared to public media in such matters as access to means of dissemination/distribution and access to news.
- The penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the governmentcan never be considered to be a necessary restriction of freedom of expression.
- Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.
- Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere, and general State systems of registration or licensing of journalists are incompatible with paragraph 3. Limited accreditation schemes are permissible only where necessary to provide journalists with privileged access to certain places and/or events. Such schemes should be applied in a manner that is non-discriminatory and compatible with article 19 and other provisions of the Covenant, based on objective criteria and taking into account that journalism is a function shared by a wide range of actors.
- It is normally incompatible with paragraph 3 to restrict the freedom of journalists and others who seek to exercise their freedom of expression (such as persons who wish to travel to human rights-related meetings) to travel outside the State party, to restrict the entry into the State party of foreign journalists to those from specified countries or to restrict freedom of movement of journalists and human rights investigators within the State party (including to conflict-affected locations, the sites of natural disasters and locations where there are allegations of human rights abuses). States parties should recognize and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose information sources.
- States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising”, “glorifying”, or “justifying” terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. Excessive restrictions on access to information must also be avoided. The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalized for carrying out their legitimate activities.
- Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.
- Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.
- Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.
The relationship of articles 19 and 20
- Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3.
- What distinguishes the acts addressed in article 20 from other acts that may be subject to restriction under article 19, paragraph 3, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19.
- It is only with regard to the specific forms of expression indicated in article 20 that States parties are obliged to have legal prohibitions. In every case in which the State restricts freedom of expression it is necessary to justify the prohibitions and their provisions in strict conformity with article 19.
- The fundamental human right of peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies. The right of peaceful assembly is important in its own right, as it protects the ability of people to exercise individual autonomy in solidarity with others. Together with other related rights, it also constitutes the very foundation of a system of participatory governance based on democracy, human rights, the rule of law and pluralism. Peaceful assemblies can play a critical role in allowing participants to advance ideas and aspirational goals in the public domain and to establish the extent of support for or opposition to those ideas and goals. Where they are used to air grievances, peaceful assemblies may create opportunities for the inclusive, participatory and peaceful resolution of differences.
- The right of peaceful assembly is, moreover, a valuable tool that can and has been used to recognize and realize a wide range of other rights, including economic, social and cultural rights. It is of particular importance to marginalized individuals and groups. Failure to respect and ensure the right of peaceful assembly is typically a marker of repression.
- The first sentence of article 21 of the International Covenant on Civil and Political Rights provides that: “The right of peaceful assembly shall be recognized.” The right is articulated in similar terms in other international and regional instruments, and its content has been elaborated upon by monitoring bodies, for example in their views, concluding observations, resolutions, interpretive guidelines and judicial decisions. In addition to being bound by international law to recognize the right of peaceful assembly, the vast majority of States also recognize the right in their national constitutions.
- The right of peaceful assembly protects the non-violent gathering by persons for specific purposes, principally expressive ones. It constitutes an individual right that is exercised collectively. Inherent to the right is thus an associative element.
- Everyone has the right of peaceful assembly: citizens and non-citizens alike. It may be exercised by, for example, foreign nationals, migrants (documented or undocumented), asylum seekers, refugees and stateless persons.
- Article 21 of the Covenant protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.
- In many cases, peaceful assemblies do not pursue controversial goals and cause little or no disruption. The aim might indeed be, for example, to commemorate a national day or celebrate the outcome of a sporting event. However, peaceful assemblies can sometimes be used to pursue contentious ideas or goals. Their scale or nature can cause disruption, for example of vehicular or pedestrian movement or economic activity. These consequences, whether intended or unintended, do not call into question the protection such assemblies enjoy. To the extent that an event may create such disruptions or risks, these must be managed within the framework of the Covenant.
- The recognition of the right of peaceful assembly imposes a corresponding obligation on States parties to respect and ensure its exercise without discrimination. This requires States to allow such assemblies to take place without unwarranted interference and to facilitate the exercise of the right and to protect the participants. The second sentence of article 21 provides grounds for potential restrictions, but any such restrictions must be narrowly drawn. There are, in effect, limits on the restrictions that may be imposed.
- The full protection of the right of peaceful assembly is possible only when other, often overlapping, rights are also protected, notably freedom of expression, freedom of association and political participation. Protection of the right of peaceful assembly is often also dependent on the realization of a broader range of civil and political rights, and economic, social and cultural rights. Where individuals’ conduct places them outside the scope of the protection of article 21, for example because they are behaving violently, they retain their other rights under the Covenant, subject to the applicable limitations and restrictions.
- The way in which assemblies are conducted and their context changes over time. This may in turn affect how they are approached by the authorities. For example, given that emerging communications technologies offer the opportunity to assemble either wholly or partly online and often play an integral role in organizing, participating in and monitoring physical gatherings, interference with such communications can impede assemblies. While surveillance technologies can be used to detect threats of violence and thus to protect the public, they can also infringe on the right to privacy and other rights of participants and bystanders and have a chilling effect. Moreover, there is increased private ownership and other forms of control of publicly accessible spaces and communication platforms. Considerations such as these need to inform a contemporary understanding of the legal framework that article 21 requires.
- Scope of the right of peaceful assembly
- Establishing whether or not someone’s participation in an assembly is protected under article 21 entails a two-stage process. It must first be established whether or not the conduct of the person in question falls within the scope of the protection offered by the right, in that it amounts to participation in a “peaceful assembly” (as described in the present section). If so, the State must respect and ensure the rights of the participants (as described in section III below). Second, it must be established whether or not any restrictions applied to the exercise of the right are legitimate in that context (as described in section IV below).
- Participating in an “assembly” entails organizing or taking part in a gathering of persons for a purpose such as expressing oneself, conveying a position on a particular issue or exchanging ideas. The gathering can also be intended to assert or affirm group solidarity or identity. Assemblies may, in addition to having such aims, serve other goals, such as an entertainment, cultural, religious or commercial objective, and still be protected under article 21.
- While the notion of an assembly implies that there will be more than one participant in the gathering, a single protester enjoys comparable protections under the Covenant, for example under article 19. Although the exercise of the right of peaceful assembly is normally understood to pertain to the physical gathering of persons, article 21 protection also extends to remote participation in, and organization of, assemblies, for example online.
- Peaceful assemblies are often organized in advance, allowing time for the organizers to notify the authorities to make the necessary preparations. However, spontaneous assemblies, which are typically direct responses to current events, whether coordinated or not, are equally protected under article 21. Counterdemonstrations occur when one assembly takes place to express opposition to another. Both assemblies can fall within the scope of the protection of article 21.
- A “peaceful” assembly stands in contradistinction to one characterized by widespread and serious violence. The terms “peaceful” and “non-violent” are thus used interchangeably in this context. The right of peaceful assembly may, by definition, not be exercised using violence. “Violence” in the context of article 21 typically entails the use by participants of physical force against others that is likely to result in injury or death, or serious damage to property. Mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to “violence”.
- If the conduct of participants in an assembly is peaceful, the fact that certain domestic legal requirements pertaining to an assembly have not been met by its organizers or participants does not, on its own, place the participants outside the scope of the protection of article 21. Collective civil disobedience or direct action campaigns can be covered by article 21, provided that they are non-violent.
- There is not always a clear dividing line between assemblies that are peaceful and those that are not, but there is a presumption in favour of considering assemblies to be peaceful. Moreover, isolated acts of violence by some participants should not be attributed to others, to the organizers or to the assembly as such. Thus, some participants in an assembly may be covered by article 21, while others in the same assembly are not.
- The question of whether or not an assembly is peaceful must be answered with reference to violence that originates from the participants. Violence against participants in a peaceful assembly by the authorities, or by agents provocateurs acting on their behalf, does not render the assembly non-peaceful. The same applies to violence by members of the public aimed at the assembly, or by participants in counterdemonstrations.
- The conduct of specific participants in an assembly may be deemed violent if authorities can present credible evidence that, before or during the event, those participants are inciting others to use violence, and such actions are likely to cause violence; that the participants have violent intentions and plan to act on them; or that violence on their part is imminent. Isolated instances of such conduct will not suffice to taint an entire assembly as non-peaceful, but where it is manifestly widespread within the assembly, participation in the gathering as such is no longer protected under article 21.
- The carrying by participants of objects that are or could be viewed as weapons or of protective equipment such as gas masks or helmets is not necessarily sufficient to deem those participants’ conduct violent. That has to be determined on a case-by-case basis, dependent on, among other considerations, domestic regulation on the carrying of weapons (especially firearms), local cultural practices, whether there is evidence of violent intent, and the risk of violence presented by the presence of such objects.
III. Obligation of States parties regarding the right of peaceful assembly
- The Covenant imposes the obligation on States parties “to respect and to ensure” all the rights in the Covenant (art. 2 (1)); to take legal and other measures to achieve this purpose (art. 2 (2)); and to pursue accountability, and provide effective remedies for violations of Covenant rights (art. 2 (3)). The obligation of States parties regarding the right of peaceful assembly thus comprises these various elements, although the right may in some cases be restricted according to the criteria listed in article 21.
- States must leave it to the participants to determine freely the purpose or any expressive content of an assembly. The approach of the authorities to peaceful assemblies and any restrictions imposed must thus in principle be content neutral, and must not be based on the identity of the participants or their relationship with the authorities. Moreover, while the time, place and manner of assemblies may under some circumstances be the subject of legitimate restrictions under article 21, given the typically expressive nature of assemblies, participants must as far as possible be enabled to conduct assemblies within sight and sound of their target audience.
- The obligation to respect and ensure peaceful assemblies imposes negative and positive duties on States before, during and after assemblies. The negative duty entails that there be no unwarranted interference with peaceful assemblies. States are obliged, for example, not to prohibit, restrict, block, disperse or disrupt peaceful assemblies without compelling justification, nor to sanction participants or organizers without legitimate cause.
- Moreover, States parties have certain positive duties to facilitate peaceful assemblies and to make it possible for participants to achieve their objectives. States must thus promote an enabling environment for the exercise of the right of peaceful assembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively. Specific measures may sometimes be required on the part of the authorities. For example, they may need to block off streets, redirect traffic or provide security. Where needed, States must also protect participants against possible abuse by non-State actors, such as interference or violence by other members of the public, counterdemonstrators and private security providers.
- States must ensure that laws and their interpretation and application do not result in discrimination in the enjoyment of the right of peaceful assembly, for example on the basis of race, colour, ethnicity, age, sex, language, property, religion or belief, political or other opinion, national or social origin, birth, minority, indigenous or other status, disability, sexual orientation or gender identity, or other status. Particular efforts must be made to ensure the equal and effective facilitation and protection of the right of peaceful assembly of individuals who are members of groups that are or have been subjected to discrimination, or that may face particular challenges in participating in assemblies. Moreover, States have a duty to protect participants from all forms of discriminatory abuse and attacks.
- The right of peaceful assembly does not exempt participants from challenges by other members of society. States must respect and ensure counterdemonstrations as assemblies in their own right, while preventing undue disruption of the assemblies to which they are opposed. States must in principle take a content-neutral approach to counterdemonstrations, which must be allowed to take place, as far as possible, within sight and sound of the assemblies against which they are directed.
- The possibility that a peaceful assembly may provoke adverse or even violent reactions from some members of the public is not sufficient grounds to prohibit or restrict the assembly. States are obliged to take all reasonable measures that do not impose disproportionate burdens upon them to protect all participants and to allow such assemblies to take place in an uninterrupted manner (see also para. 52 below).
- A functioning and transparent legal and decision-making system lies at the core of the duty to respect and ensure peaceful assemblies. Domestic law must recognize the right of peaceful assembly, clearly set out the duties and responsibilities of all public officials involved, be aligned with the relevant international standards and be publicly accessible. States must ensure public awareness about the law and relevant regulations, including any procedures to be followed by those wishing to exercise the right, who the responsible authorities are, the rules applicable to those officials, and the remedies available for alleged violations of rights.
- States parties must ensure independent and transparent oversight of all bodies involved with peaceful assemblies, including through timely access to effective remedies, including judicial remedies, or to national human rights institutions, with a view to upholding the right before, during and after an assembly.
- The role of journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies is of particular importance for the full enjoyment of the right of peaceful assembly. Those persons are entitled to protection under the Covenant. They may not be prohibited from, or unduly limited in, exercising these functions, including with respect to monitoring the actions of law enforcement officials. They must not face reprisals or other harassment, and their equipment must not be confiscated or damaged. Even if an assembly is declared unlawful or is dispersed, that does not terminate the right to monitor. It is a good practice for independent national human rights institutions and non-governmental organizations to monitor assemblies.
- States parties hold the primary responsibility for the realization of the right of peaceful assembly. However, business enterprises have a responsibility to respect human rights, including the right of peaceful assembly of, for example, communities affected by their activities and of their employees. Private entities and broader society may be expected to accept some level of disruption as a result of the exercise of the right.
- Given that peaceful assemblies often have expressive functions, and that political speech enjoys particular protection as a form of expression, it follows that assemblies with a political message should enjoy a heightened level of accommodation and protection.
- Article 21 and its related rights do not only protect participants while and where an assembly is ongoing. Associated activities conducted by an individual or by a group, outside the immediate context of the gathering but which are integral to making the exercise meaningful, are also covered. The obligations of States parties thus extend to actions such as participants’ or organizers’ mobilization of resources; planning; dissemination of information about an upcoming event; preparation for and travelling to the event; communication between participants leading up to and during the assembly; broadcasting of or from the assembly; and leaving the assembly afterwards. These activities may, like participation in the assembly itself, be subject to restrictions, but these must be narrowly drawn. Moreover, no one should be harassed or face other reprisals as a result of their presence at or affiliation with a peaceful assembly.
- Many associated activities happen online or otherwise rely upon digital services. Such activities are also protected under article 21. States parties must not, for example, block or hinder Internet connectivity in relation to peaceful assemblies. The same applies to geotargeted or technology-specific interference with connectivity or access to content. States should ensure that the activities of Internet service providers and intermediaries do not unduly restrict assemblies or the privacy of assembly participants. Any restrictions on the operation of information dissemination systems must conform with the tests for restrictions on freedom of expression.
- While all organs of State carry the obligation to respect and ensure the right of peaceful assembly, decisions on assemblies are often taken at the local level. States must therefore ensure adequate training and resources for officials involved in these decisions at all levels of government.
- Restrictions on the right of peaceful assembly
- While the right of peaceful assembly may in certain cases be limited, the onus is on the authorities to justify any restrictions. Authorities must be able to show that any restrictions meet the requirement of legality, and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21, as discussed below. Where this onus is not met, article 21 is violated. The imposition of any restrictions should be guided by the objective of facilitating the right, rather than seeking unnecessary and disproportionate limitations on it. Restrictions must not be discriminatory, impair the essence of the right, or be aimed at discouraging participation in assemblies or causing a chilling effect.
- The prohibition of a specific assembly can be considered only as a measure of last resort. Where the imposition of restrictions on an assembly is deemed necessary, the authorities should first seek to apply the least intrusive measures. States should also consider allowing an assembly to take place and deciding afterwards whether measures should be taken regarding possible transgressions during the event, rather than imposing prior restraints in an attempt to eliminate all risks.
- Any restrictions on participation in peaceful assemblies should be based on a differentiated or individualized assessment of the conduct of the participants and the assembly concerned. Blanket restrictions on peaceful assemblies are presumptively disproportionate.
- The second sentence of article 21 provides that no restrictions may be placed on the exercise of the right of peaceful assembly other than those imposed in conformity with the law. This poses the formal requirement of legality, akin to the requirement that limitations must be “provided by law” in other articles of the Covenant. Restrictions must thus be imposed through law or administrative decisions based on law. The laws in question must be sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.
- Article 21 provides that any restrictions must be “necessary in a democratic society”. Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient. Such restrictions must be appropriate responses to a pressing social need, relating to one of the permissible grounds listed in article 21. They must also be the least intrusive among the measures that might serve the relevant protective function. Moreover, they must be proportionate, which requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible.
- The last part of the second sentence of article 21 sets out the legitimate grounds on which the right of peaceful assembly may be restricted. This is an exhaustive list, consisting of the following grounds: the interests of national security; public safety; public order (ordre public); the protection of public health or morals; or the protection of the rights and freedoms of others.
- The “interests of national security” may serve as a ground for restrictions if such restrictions are necessary to preserve the State’s capacity to protect the existence of the nation, its territorial integrity or political independence against a credible threat or use of force. This threshold will only exceptionally be met by assemblies that are “peaceful”. Moreover, where the very reason that national security has deteriorated is the suppression of human rights, this cannot be used to justify further restrictions, including on the right of peaceful assembly.
- For the protection of “public safety” to be invoked as a ground for restrictions on the right of peaceful assembly, it must be established that the assembly creates a real and significant risk to the safety of persons (to life or security of person) or a similar risk of serious damage to property.
- “Public order” refers to the sum of the rules that ensure the proper functioning of society, or the set of fundamental principles on which society is founded, which also entails respect for human rights, including the right of peaceful assembly. States parties should not rely on a vague definition of “public order” to justify overbroad restrictions on the right of peaceful assembly. Peaceful assemblies can in some cases be inherently or deliberately disruptive and require a significant degree of toleration. “Public order” and “law and order” are not synonyms, and the prohibition of “public disorder” in domestic law should not be used unduly to restrict peaceful assemblies.
- The protection of “public health” may exceptionally permit restrictions to be imposed, for example where there is an outbreak of an infectious disease and gatherings are dangerous. This may in extreme cases also be applicable where the sanitary situation during an assembly presents a substantial health risk to the general public or to the participants themselves.
- Restrictions on peaceful assemblies should only exceptionally be imposed for the protection of “morals”. If used at all, this ground should not be used to protect understandings of morality deriving exclusively from a single social, philosophical or religious tradition, and any such restrictions must be understood in the light of the universality of human rights, pluralism and the principle of non-discrimination. Restrictions based on this ground may not, for instance, be imposed because of opposition to expressions of sexual orientation or gender identity.
- Restrictions imposed for the protection of “the rights and freedoms of others” may relate to the protections under the Covenant or other human rights of people not participating in the assembly. At the same time, assemblies are a legitimate use of public and other spaces, and since they may entail by their very nature a certain level of disruption to ordinary life, such disruptions must be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for any restrictions.
- In addition to the general framework for restrictions provided for in article 21, as discussed above, additional considerations are relevant to restrictions on the right of peaceful assembly. Central to the realization of the right is the requirement that any restrictions, in principle, be content neutral, and thus not be related to the message conveyed by the assembly. A contrary approach defeats the very purpose of peaceful assemblies as a potential tool of political and social participation that allows people to advance ideas and establish the extent of the support that they enjoy.
- The rules applicable to freedom of expression should be followed when dealing with any expressive elements of assemblies. Restrictions on peaceful assemblies must thus not be used, explicitly or implicitly, to stifle expression of political opposition to a government, challenges to authority, including calls for democratic changes of government, the constitution or the political system, or the pursuit of self-determination. They should not be used to prohibit insults to the honour and reputation of officials or State organs.
- In accordance with article 20 of the Covenant, peaceful assemblies may not be used for propaganda for war (art. 20 (1)), or for advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (art. 20 (2)). As far as possible, action should be taken in such cases against the individual perpetrators, rather than against the assembly as a whole. Participation in assemblies whose dominant message falls within the scope of article 20 must be addressed in conformity with the requirements for restrictions set out in articles 19 and 21.
- Generally, the use of flags, uniforms, signs and banners is to be regarded as a legitimate form of expression that should not be restricted, even if such symbols are reminders of a painful past. In exceptional cases, where such symbols are directly and predominantly associated with incitement to discrimination, hostility or violence, appropriate restrictions should apply.
- The fact that an assembly provokes or may provoke a hostile reaction from members of the public against participants, as a general rule, does not justify restriction; the assembly must be allowed to go ahead, and its participants must be protected (see para. 18 above). However, in the exceptional case where the State is manifestly unable to protect the participants from a severe threat to their safety, restrictions on participation in the assembly may be imposed. Any such restrictions must be able to withstand strict scrutiny. An unspecified risk of violence, or the mere possibility that the authorities will not have the capacity to prevent or neutralize the violence emanating from those opposed to the assembly, is not enough; the State must be able to show, based on a concrete risk assessment, that it would not be able to contain the situation, even if significant law enforcement capability were to be deployed. Less intrusive restrictions, such as postponement or relocation of the assembly, must be considered before resort to prohibition.
- The regulation of the time, place and manner of assemblies is generally content neutral, and while there is some scope for restrictions that regulate these elements, the onus remains on the authorities to justify any such restriction on a case-by-case basis. Any such restrictions should still, as far as possible, allow participants to assemble within sight and sound of their target audience, or at whatever site is otherwise important to their purpose.
- Concerning restrictions on the time of assemblies, participants must have sufficient opportunity to manifest their views or to pursue their other purposes effectively. Peaceful assemblies should generally be left to end by themselves. Restrictions on the precise time of day or date when assemblies can or cannot be held raise concerns about their compatibility with the Covenant. Assemblies should not be limited solely because of their frequency. The timing, duration or frequency of a demonstration may, for example, play a central role in achieving its objective. However, the cumulative impact of sustained gatherings may be weighed in a proportionality assessment of a restriction. For example, certain assemblies held regularly at night in residential areas might have a significant impact on those living nearby.
- As for restrictions on the element of place, peaceful assemblies may in principle be conducted in all spaces to which the public has access or should have access, such as public squares and streets. While rules concerning public access to some spaces, such as buildings and parks, may also limit the right to assemble in such places, the application of such restrictions to peaceful assemblies must be justifiable in terms of article 21. Peaceful assemblies should not be relegated to remote areas where they cannot effectively capture the attention of those who are being addressed, or the general public. As a general rule, there can be no blanket ban on all assemblies in the capital city, in all public places except one specific location within a city or outside the city centre, or on all the streets in a city.
- The designation of the perimeters of places such as courts, parliaments, sites of historical significance or other official buildings as areas where assemblies may not take place should generally be avoided, inter alia, because these are public spaces. Any restrictions on assemblies in and around such places must be specifically justified and narrowly circumscribed.
- While gatherings in private spaces fall within the scope of the right of peaceful assembly, the interests of others with rights in the property must be given due weight. The extent to which restrictions may be imposed on such a gathering depends on considerations such as whether the space is routinely publicly accessible, the nature and extent of the potential interference caused by the gathering with the interests of others with rights in the property, whether those holding rights in the property approve of such use, whether the ownership of the space is contested through the gathering and whether participants have other reasonable means to achieve the purpose of the assembly, in accordance with the sight and sound principle. Access to private property may not be denied on a discriminatory basis.
- As far as restrictions on the manner of peaceful assemblies are concerned, participants should be left to determine whether they want to use equipment such as posters, megaphones, musical instruments or other technical means, such as projection equipment, to convey their message. Assemblies may entail the temporary erection of structures, including sound systems, to reach their audience or otherwise achieve their purpose.
- In general, States parties should not limit the number of participants in assemblies. Any such restriction can be accepted only if there is a clear connection with a legitimate ground for restrictions as set out in article 21, for example where public safety considerations dictate a maximum crowd capacity for a stadium or a bridge, or where public health considerations dictate physical distancing.
- The wearing of face coverings or other disguises by assembly participants, such as hoods or masks, or taking other steps to participate anonymously may form part of the expressive element of a peaceful assembly or serve to counter reprisals or to protect privacy, including in the context of new surveillance technologies. The anonymity of participants should be allowed unless their conduct presents reasonable grounds for arrest, or there are other similarly compelling reasons, such as the fact that the face covering forms part of a symbol that is, exceptionally, restricted for the reasons referred to above (see para. 51). The use of disguises should not in itself be deemed to signify violent intent.
- While the collection of relevant information and data by authorities may under certain circumstances assist the facilitation of assemblies, it must not result in suppressing rights or creating a chilling effect. Any information gathering, whether by public or private entities, including through surveillance or the interception of communications, and the way in which data are collected, shared, retained and accessed, must strictly conform to applicable international standards, including on the right to privacy, and may never be aimed at intimidating or harassing participants or would-be participants in assemblies. Such practices should be regulated by appropriate and publicly accessible domestic legal frameworks that are compatible with international standards and subject to scrutiny by the courts.
- The mere fact that a particular assembly takes place in public does not mean that participants’ privacy cannot be violated. The right to privacy may be infringed, for example, by facial recognition and other technologies that can identify individual participants in a crowd. The same applies to the monitoring of social media to glean information about participation in peaceful assemblies. Independent and transparent scrutiny and oversight must be exercised over the decision to collect the personal information and data of those engaged in peaceful assemblies and over its sharing or retention, with a view to ensuring the compatibility of such actions with the Covenant.
- The freedom of public officials to participate in peaceful assemblies should not be limited more than is strictly required by the need to ensure public confidence in their impartiality, and thus their ability to perform their service duties, and any such restrictions must comply with article 21.
- Requirements for participants or organizers either to arrange for or to contribute towards the costs of policing or security, medical assistance or cleaning, or other public services associated with peaceful assemblies are generally not compatible with article 21.
- Organizers and participants are expected to comply with the legal requirements made of an assembly, and they may be held accountable for their own unlawful conduct, including the incitement of others. If, in exceptional circumstances, organizers are held accountable for damage or injuries for which they were not directly responsible, it must be confined to cases in which evidence shows that the organizers could reasonably have foreseen and prevented the damage or injuries. It is good practice for organizers to appoint stewards or marshals where necessary, but this should not be a legal requirement.
- Authorities may not require pledges or undertakings from individuals not to organize or participate in future assemblies. Conversely, no one may be forced to participate in an assembly.
- Where criminal or administrative sanctions are imposed on organizers of or participants in a peaceful assembly for their unlawful conduct, such sanctions must be proportionate, non-discriminatory in nature and must not be based on ambiguous or overbroadly defined offences, or suppress conduct protected under the Covenant.
- While acts of terrorism must be criminalized in conformity with international law, the definition of such crimes must not be overbroad or discriminatory and must not be applied so as to curtail or discourage the exercise of the right of peaceful assembly. The mere act of organizing or participating in a peaceful assembly cannot be criminalized under counter-terrorism laws.
- Recourse to courts or other tribunals to seek a remedy concerning restrictions must be readily available, including the possibility of appeal or review. The timeliness and duration of such proceedings against restrictions on an assembly must not jeopardize the exercise of the right. The procedural guarantees of the Covenant apply in all such cases, and also to issues such as detention or the imposition of sanctions, including fines, in connection with peaceful assemblies.
- Notification regimes
- Having to apply for permission from the authorities undercuts the idea that peaceful assembly is a basic right. Notification systems requiring that those who intend to organize a peaceful assembly must inform the authorities in advance and provide certain salient details are permissible to the extent necessary to assist the authorities in facilitating the smooth conduct of peaceful assemblies and protecting the rights of others. At the same time, this requirement must not be misused to stifle peaceful assemblies and, as in the case of other interferences with the right, must be justifiable on the grounds listed in article 21. The enforcement of notification requirements must not become an end in itself. Notification procedures should be transparent, not unduly bureaucratic, their demands on organizers must be proportionate to the potential public impact of the assembly concerned, and they should be free of charge.
- A failure to notify the authorities of an upcoming assembly, where required, does not render the act of participation in the assembly unlawful, and must not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for imposing undue sanctions, such as charging the participants or organizers with criminal offences. Where administrative sanctions are imposed on organizers for failure to notify, this must be justified by the authorities. Lack of notification does not absolve the authorities from the obligation, within their abilities, to facilitate the assembly and to protect the participants.
- Any notification requirements for pre-planned assemblies must be provided for in domestic law. The minimum period of advance notification might vary according to the context and level of facilitation required, but it should not be excessively long. If restrictions are imposed following a notification, they should be communicated early enough to allow time for access to the courts or other mechanisms to challenge them. Any notification regime should exclude assemblies for which the impact of a gathering on others can reasonably be expected to be minimal, for example because of its nature, location or limited size or duration. Notification must not be required for spontaneous assemblies for which there is not enough time to provide notice.
- Where authorization regimes persist in domestic law, they must in practice function as a system of notification, with authorization being granted as a matter of course, in the absence of compelling reasons to do otherwise. Notification regimes, for their part, must not in practice function as authorization systems.
- Duties and powers of law enforcement agencies
- Law enforcement officials involved in policing assemblies must respect and ensure the exercise of the fundamental rights of organizers and participants, while also protecting journalists, monitors and observers, medical personnel and other members of the public, as well as public and private property, from harm. The basic approach of the authorities should be, where necessary, to seek to facilitate peaceful assemblies.
- Relevant law enforcement agencies should as far as possible work towards establishing channels for communication and dialogue between the various parties involved in assemblies, before and during the assembly, aimed at promoting preparedness, de-escalating tensions and resolving disputes. While it is good practice for organizers and participants to engage in such contact, they cannot be required to do so.
- Where the presence of law enforcement officials is required, the policing of an assembly should be planned and conducted with the objective of enabling the assembly to take place as intended, and with a view to minimizing the potential for injury to any person and damage to property. The plan should detail the instructions and equipment for and the deployment of all relevant officials and units.
- Generic contingency plans and training protocols should also be developed by relevant law enforcement agencies, in particular for policing assemblies of which the authorities are not notified in advance and which may affect public order. Clear command structures must exist to underpin accountability, as must protocols for recording and documenting events, ensuring the identification of officers and reporting any use of force.
- Law enforcement officials should seek to de-escalate situations that might result in violence. They are obliged to exhaust non-violent means and to give prior warning if it becomes absolutely necessary to use force, unless doing either would be manifestly ineffective. Any use of force must comply with the fundamental principles of legality, necessity, proportionality, precaution and non-discrimination applicable to articles 6 and 7 of the Covenant, and those using force must be accountable for each use of force. Domestic legal regimes on the use of force by law enforcement officials must be brought into line with the requirements enshrined in international law, guided by standards such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement.
- Only the minimum force necessary may be used where it is required for a legitimate law enforcement purpose during an assembly. Once the need for any use of force has passed, such as when a violent individual is safely apprehended, no further resort to force is permissible. Law enforcement officials may not use greater force than is proportionate to the legitimate objective of either dispersing an assembly, preventing a crime or effecting or assisting in the lawful arrest of offenders or suspected offenders. Domestic law must not grant officials largely unrestricted powers, for example to use ”force” or ”all necessary force” to disperse assemblies, or simply to ”shoot for the legs”. In particular, domestic law must not allow use of force against participants in an assembly on a wanton, excessive or discriminatory basis.
- Only law enforcement officials trained in the policing of assemblies, including on the relevant human rights standards, should be deployed for that purpose. Training should sensitize officials to the specific needs of individuals or groups in situations of vulnerability, which may in some cases include women, children and persons with disabilities, when participating in peaceful assemblies. The military should not be used to police assemblies, but if in exceptional circumstances and on a temporary basis they are deployed in support, they must have received appropriate human rights training and must comply with the same international rules and standards as law enforcement officials.
- All law enforcement officials responsible for policing assemblies must be suitably equipped, including where needed with appropriate and fit-for-purpose less-lethal weapons and protective equipment. States parties must ensure that all weapons, including less-lethal weapons, are subject to strict independent testing, and that officers deployed with them receive specific training, and must evaluate and monitor the impact of weapons on the rights of those affected. Law enforcement agencies must be alert to the potentially discriminatory impacts of certain policing tactics, including in the context of new technologies, and must address them.
- Preventive detention of targeted individuals to keep them from participating in assemblies may constitute arbitrary deprivation of liberty, which is incompatible with the right of peaceful assembly. This is especially the case if detention lasts more than a few hours. Where domestic law permits such detention, it may be used only in the most exceptional cases, for no longer than absolutely necessary and only where the authorities have proof of the intention of the individuals involved to engage in or incite acts of violence during a particular assembly, and where other measures to prevent violence from occurring will clearly be inadequate. Practices of indiscriminate mass arrest prior to, during or following an assembly are arbitrary and thus unlawful.
- Powers of “stop and search” or “stop and frisk”, applied to those who participate in assemblies, or are about to do so, must be exercised based on reasonable suspicion of the commission or threat of a serious offence, and must not be used in a discriminatory manner. The mere fact that authorities associate an individual with a peaceful assembly does not constitute reasonable grounds for stopping and searching them.
- Containment (“kettling”), where law enforcement officials encircle and close in a section of the participants, may be used only where it is necessary and proportionate to do so, in order to address actual violence or an imminent threat emanating from that section. Necessary law enforcement measures targeted against specific individuals are often preferable to containment. Particular care must be taken to contain, as far as possible, only people linked directly to violence and to limit the duration of the containment to the minimum necessary. Where containment is used indiscriminately or punitively, it violates the right of peaceful assembly, and may also violate other rights such as freedom from arbitrary detention and freedom of movement.
- Only in exceptional cases may an assembly be dispersed. Dispersal may be resorted to if the assembly as such is no longer peaceful, or if there is clear evidence of an imminent threat of serious violence that cannot be reasonably addressed by more proportionate measures, such as targeted arrests. In all cases, the law enforcement rules on use of force must be strictly followed. Conditions for ordering the dispersal of an assembly should be set out in domestic law, and only a duly authorized official may order the dispersal of a peaceful assembly. An assembly that remains peaceful while nevertheless causing a high level of disruption, such as the extended blocking of traffic, may be dispersed, as a rule, only if the disruption is “serious and sustained”.
- Where a decision to disperse is taken in conformity with domestic and international law, force should be avoided. Where that is not possible in the circumstances, only the minimum force necessary may be used. As far as possible, any force used should be directed against a specific individual or group engaged in or threatening violence. Force that is likely to cause more than negligible injury should not be used against individuals or groups who are passively resisting.
- Less-lethal weapons with wide-area effects, such as tear gas and water cannons, tend to have indiscriminate effects. When such weapons are used, all reasonable efforts should be made to limit risks, such as causing a stampede or harming bystanders. Such weapons should be used only as a measure of last resort, following a verbal warning, and with adequate opportunity given for assembly participants to disperse. Tear gas should not be used in confined spaces.
- Firearms are not an appropriate tool for the policing of assemblies. They must never be used simply to disperse an assembly. In order to comply with international law, any use of firearms by law enforcement officials in the context of assemblies must be limited to targeted individuals in circumstances in which it is strictly necessary to confront an imminent threat of death or serious injury. Given the threat that such weapons pose to life, this minimum threshold should also be applied to the firing of rubber-coated metal bullets. Where law enforcement officials are prepared for the use of force, or violence is considered likely, the authorities must also ensure that adequate medical facilities are available. It is never lawful to fire indiscriminately or to use firearms in fully automatic mode when policing an assembly.
- The State is responsible under international law for the actions and omissions of its law enforcement agencies. With a view to preventing violations, States should consistently promote a culture of accountability for law enforcement officials during assemblies. To enhance effective accountability, uniformed law enforcement officials should always display an easily recognizable form of identification during assemblies.
- States have an obligation to investigate effectively, impartially and in a timely manner any allegation or reasonable suspicion of unlawful use of force or other violations by law enforcement officials, including sexual or gender-based violence, in the context of assemblies. Both intentional and negligent action or inaction can amount to a violation of human rights. Individual officials responsible for violations must be held accountable under domestic and, where relevant, international law, and effective remedies must be available to victims.
- All use of force by law enforcement officials should be recorded and reflected promptly in a transparent report. Where injury or damage occurs, the report should contain sufficient information to establish whether the use of force was necessary and proportionate by setting out the details of the incident, including the reasons for the use of force, its effectiveness and the consequences of it.
- Any deployment of plain-clothed officers in assemblies must be strictly necessary in the circumstances and such officers must never incite violence. Before conducting a search, making an arrest or resorting to any use of force, plain-clothed officers must identify themselves to the persons concerned.
- The State is ultimately responsible for law enforcement during an assembly and may delegate tasks to private security service providers only in exceptional circumstances. In such cases, the State remains responsible for the conduct of those service providers. This is in addition to the accountability of the private security service providers under domestic and, where relevant, international law. The authorities should set out in national legislation the role and powers of private security service providers in law enforcement, and their use of force and training should be strictly regulated.
- The use of recording devices by law enforcement officials during assemblies, including body-worn cameras, may play a positive role in securing accountability, if used judiciously. However, the authorities should have clear and publicly available guidelines to ensure that their use is consistent with international standards on privacy and does not have a chilling effect on participation in assemblies. Participants, journalists and monitors also have the right to record law enforcement officials.
- The State is fully responsible for any remotely controlled weapons systems it uses during an assembly. Such methods of force delivery may escalate tensions and should be used only with great caution. Fully autonomous weapons systems, where lethal force can be used against assembly participants without meaningful human intervention once a system has been deployed, must never be used for law enforcement during an assembly.
VII. Assembly during states of emergency and armed conflict
- While the right of peaceful assembly is not listed as non-derogable in article 4 (2) of the Covenant, other rights potentially applicable to assemblies, such as those enshrined in articles 6, 7 and 18, are non-derogable. 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. If States derogate from the Covenant in response, for instance, to mass demonstrations that include acts of violence, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all measures derogating from their obligations under the Covenant are strictly required by the exigencies of the situation and comply with the conditions in article 4.
- In a situation of armed conflict, the use of force during peaceful assemblies remains regulated by the rules governing law enforcement, and the Covenant continues to apply. Civilians in an assembly are protected from being targeted with lethal force unless and for such time as they take a direct part in hostilities, as that term is understood under international humanitarian law. In such a circumstance, they may be targeted only to the extent that they are not otherwise protected under international law from attack. Any use of force under applicable international humanitarian law is subject to the rules and principles of distinction, precautions in attack, proportionality, military necessity and humanity. In all decisions on the use of force, the safety and protection of assembly participants and the broader public should be an important consideration.
VIII. Relationship between article 21 and other provisions of the Covenant and other legal regimes
- The full protection of the right of peaceful assembly depends on the protection of a range of rights. Use of unnecessary or disproportionate force or other unlawful conduct by State officials during an assembly may breach articles 6, 7 and 9 of the Covenant. An extreme case, in which participants in peaceful assemblies are subjected to unlawful force or conduct as part of a widespread or systematic attack directed against any civilian population, may also constitute, where the other relevant criteria are met, a crime against humanity.
- Restrictions on people’s ability to travel, including abroad (art. 12 (2)), in order to participate in assemblies, marches and other moving assemblies may violate their freedom of movement (art. 12 (1)). Official decisions restricting the exercise of assembly rights must be open to legal challenge in a process that meets fair and public hearing requirements (art. 14 (1)). Surveillance of those involved in assemblies and other data-gathering activities may violate their right to privacy (art. 17). Religious assemblies may also be protected under the freedom to manifest one’s religion or beliefs (art. 18). The right of peaceful assembly is more than just a manifestation of freedom of expression (art. 19 (2)); it often has an expressive element, and the rationale for the recognition of these two rights and the acceptable restrictions overlap in many ways. Freedom of access to information held by public bodies (art. 19 (2)) underlies the ability of the public to know about the legal and administrative framework applicable to assemblies and enables them to hold public officials accountable.
- Freedom of association (art. 22) also protects collective action, and restrictions on this right often affect the right of peaceful assembly. The right of political participation (art. 25) is closely linked to the right of peaceful assembly, and in relevant cases, restrictions must be justified under the conditions set out in both article 21 and article 25. The right to non-discrimination protects participants against discriminatory practices in the context of assemblies (arts. 2 (1), 24 and 26).
- Participation in peaceful assemblies may be restricted in accordance with article 21, however, in order to protect the rights and freedoms of others.
- The right of peaceful assembly has an intrinsic value. It is, moreover, often exercised with the aim of advancing the implementation of other human rights and other norms and principles of international law. In such cases, the duty to respect and ensure the right of peaceful assembly derives its legal justification also from the importance of the broader range of other rights, norms and principles whose implementation it advances.
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: [...]
(c) Political rights, in particular the right to participate in elections to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular: [...]
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
The Committee calls in particular upon States parties to: [...]
(d) Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent;
Women shall be entitled to vote in all elections on equal terms with men, without any discrimination.
Women shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination.
Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination.
- Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;
To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;
To participate in non-governmental organizations and associations concerned with the public and political life of the country.
- Article 7 obliges States parties to take all appropriate measures to eliminate discrimination against women in political and public life and to ensure that they enjoy equality with men in political and public life. The obligation specified in article 7 extends to all areas of public and political life and is not limited to those areas specified in subparagraphs (a), (b) and (c). The political and public life of a country is a broad concept. It refers to the exercise of political power, in particular the exercise of legislative, judicial, executive and administrative powers. The term covers all aspects of public administration and the formulation and implementation of policy at the international, national, regional and local levels. The concept also includes many aspects of civil society, including public boards and local councils and the activities of organizations such as political parties, trade unions, professional or industry associations, women’s organizations, community-based organizations and other organizations concerned with public and political life.
- The Convention envisages that, to be effective, this equality must be achieved within the framework of a political system in which each citizen enjoys the right to vote and be elected at genuine periodic elections held on the basis of universal suffrage and by secret ballot, in such a way as to guarantee the free expression of the will of the electorate.
- The Convention obliges States parties in constitutions or legislation to take appropriate steps to ensure that women, on the basis of equality with men, enjoy the right to vote in all elections and referendums, and to be elected. These rights must be enjoyed both de jure and de facto.
The system of balloting, the distribution of seats in Parliament, the choice of district, all have a significant impact on the proportion of women elected to Parliament. Political parties must embrace the principles of equal opportunity and democracy and endeavour to balance the number of male and female candidates.
The enjoyment of the right to vote by women should not be subject to restrictions or conditions that do not apply to men or that have a disproportionate impact on women. For example, limiting the right to vote to persons who have a specified level of education, who possess a minimum property qualification or who are literate is not only unreasonable, it may violate the universal guarantee of human rights. It is also likely to have a disproportionate impact on women, thereby contravening the provisions of the Convention.
28 While States parties generally hold the power to appoint women to senior cabinet and administrative positions, political parties also have a responsibility to ensure that women are included in party lists and nominated for election in areas where they have a likelihood of electoral success.
- As political parties are an important vehicle in decision-making roles, Governments should encourage political parties to examine the extent to which women are full and equal participants in their activities and, where this is not the case, should identify the reasons for this. Political parties should be encouraged to adopt effective measures, including the provision of information, financial and other resources, to overcome obstacles to women’s full participation and representation and ensure that women have an equal opportunity in practice to serve as party officials and to be nominated as candidates for election.
34 Other organizations such as trade unions and political parties have an obligation to demonstrate their commitment to the principle of gender equality in their constitutions, in the application of those rules and in the composition of their memberships with gender-balanced representation on their executive boards so that these bodies may benefit from the full and equal participation of all sectors of society and from contributions made by both sexes.
42 States parties are under an obligation to take all appropriate measures, including the enactment of appropriate legislation that complies with their Constitution, to ensure that organizations such as political parties and trade unions, which may not be subject directly to obligations under the Convention, do not discriminate against women and respect the principles contained in articles 7 and 8.
43 States parties should identify and implement temporary special measures to ensure the equal representation of women in all fields covered by articles 7 and 8.
- Measures that should be identified, implemented and monitored for effectiveness include, under article 7, paragraph (a), those designed to:
(a) Achieve a balance between women and men holding publicly elected positions;
(b) Ensure that women understand their right to vote, the importance of this right and how to exercise it;
(c) Ensure that barriers to equality are overcome, including those resulting from illiteracy, language, poverty and impediments to women’s freedom of movement;
(d) Assist women experiencing such disadvantages to exercise their right to vote and to be elected.
- Under article 7, paragraph (b), such measures include those designed to ensure:
(a) Equality of representation of women in the formulation of government policy;
(b) Women’s enjoyment in practice of the equal right to hold public office;
(c) Recruiting processes directed at women that are open and subject to appeal.
- Under article 7, paragraph (c), such measures include those designed to:
Ensure that effective legislation is enacted prohibiting discrimination against women;
Encourage non-governmental organizations and public and political associations to adopt strategies that encourage women’s representation and participation in their work.
- Background: the object and purpose of the convention
- The scope and meaning of article 4, paragraph 1, must be determined in the context of the overall object and purpose of the Convention, which is to eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms. States parties to the Convention are under a legal obligation to respect, protect, promote and fulfil this right to non- discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men. [...]
- A joint reading of articles 1 to 5 and 24, which form the general interpretative framework for all of the Convention’s substantive articles, indicates that three obligations are central to States parties’ efforts to eliminate discrimination against women. These obligations should be implemented in an integrated fashion and extend beyond a purely formal legal obligation of equal treatment of women with men.
- Firstly, States parties’ obligation is to ensure that there is no direct or indirect discrimination against women in their laws and that women are protected against discrimination — committed by public authorities, the judiciary, organizations, enterprises or private individuals — in the public as well as the private spheres by competent tribunals as well as sanctions and other remedies. Secondly, States parties’ obligation is to improve the de facto position of women through concrete and effective policies and programmes. Thirdly, States parties’ obligation is to address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions.
- In the Committee’s view, a purely formal legal or programmatic approach is not sufficient to achieve women’s de facto equality with men, which the Committee interprets as substantive equality. In addition, the Convention requires that women be given an equal start and that they be empowered by an enabling environment to achieve equality of results. It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences. Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women. [...]
- Certain groups of women, in addition to suffering from discrimination directed against them as women, may also suffer from multiple forms of discrimination based on additional grounds such as race, ethnic or religious identity, disability, age, class, caste or other factors. Such discrimination may affect these groups of women primarily, or to a different degree or in different ways than men. States parties may need to take specific temporary special measures to eliminate such multiple forms of discrimination against women and its compounded negative impact on them. [...]
III. The meaning and scope of temporary special measures in the Convention on the Elimination of All Forms of Discrimination against Women
Article 4, paragraph 1
Adoption by States parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
- The travaux préparatoires of the Convention use different terms to describe the “temporary special measures” included in article 4, paragraph 1. The Committee itself, in its previous general recommendations, used various terms. States parties often equate “special measures” in its corrective, compensatory and promotional sense with the terms “affirmative action”, “positive action”, “positive measures”, “reverse discrimination”, and “positive discrimination”. These terms emerge from the discussions and varied practices found in different national contexts. In the present general recommendation, and in accordance with its practice in the consideration of reports of States parties, the Committee uses solely the term “temporary special measures”, as called for in article 4, paragraph 1.
- Key elements of article 4, paragraph 1
- [...] While the application of temporary special measures often remedies the effects of past discrimination against women, the obligation of States parties under the Convention to improve the position of women to one of de facto or substantive equality with men exists irrespective of any proof of past discrimination.
- States parties should clearly distinguish between temporary special measures taken under article 4, paragraph 1, to accelerate the achievement of a concrete goal for women of de facto or substantive equality, and other general social policies adopted to improve the situation of women and the girl child. Not all measures that potentially are, or will be, favourable to women are temporary special measures. The provision of general conditions in order to guarantee the civil, political, economic, social and cultural rights of women and the girl child, designed to ensure for them a life of dignity and non-discrimination, cannot be called temporary special measures.
- Article 4, paragraph 1, explicitly states the “temporary” nature of such special measures. Such measures should therefore not be deemed necessary forever, even though the meaning of “temporary” may, in fact, result in the application of such measures for a long period of time. The duration of a temporary special measure should be determined by its functional result in response to a concrete problem and not by a predetermined passage of time. Temporary special measures must be discontinued when their desired results have been achieved and sustained for a period of time.
- The term “measures” encompasses a wide variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as outreach or support programmes; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems. The choice of a particular “measure” will depend on the context in which article 4, paragraph 1, is applied and on the specific goal it aims to achieve. [...]
- Recommendations to States parties
- States parties should analyse the context of women’s situation in all spheres of life, as well as in the specific, targeted area, when applying temporary special measures to accelerate achievement of women’s de facto or substantive equality. They should evaluate the potential impact of temporary special measures with regard to a particular goal within their national context and adopt those temporary special measures which they consider to be the most appropriate in order to accelerate the achievement of de facto or substantive equality for women. [...]
- States parties should provide adequate explanations with regard to any failure to adopt temporary special measures. Such failures may not be justified simply by averring powerlessness, or by explaining inaction through predominant market or political forces, such as those inherent in the private sector, private organizations, or political parties. States parties are reminded that article 2 of the Convention, which needs to be read in conjunction with all other articles, imposes accountability on the State party for action by these actors. [...]
- States parties should include, in their constitutions or in their national legislation, provisions that allow for the adoption of temporary special measures. The Committee reminds States parties that legislation, such as comprehensive anti-discrimination acts, equal opportunities acts or executive orders on women’s equality, can give guidance on the type of temporary special measures that should be applied to achieve a stated goal, or goals, in given areas. Such guidance can also be contained in specific legislation on employment or education. Relevant legislation on non-discrimination and temporary special measures should cover governmental actors as well as private organizations or enterprises. [...]
- The Committee reiterates that action plans for temporary special measures need to be designed, applied and evaluated within the specific national context and against the background of the specific nature of the problem which they are intended to overcome. The [...] Reports should also explain whether such action plans include considerations of unintended potential adverse side-effects of such measures as well as on possible action to protect women against them. States parties should also describe in their reports the results of temporary special measures and assess the causes of the possible failure of such measures.
- Under article 3, States parties are invited to report on the institution(s) responsible for designing, implementing, monitoring, evaluating and enforcing such temporary special measures. [...] The Committee recommends that States parties ensure that women in general, and affected groups of women in particular, have a role in the design, implementation and evaluation of such programmes. Collaboration and consultation with civil society and non-governmental organizations representing various groups of women is especially recommended.
- The Committee draws attention to and reiterates its general recommendation No. 9, on statistical data concerning the situation of women, and recommends that States parties provide statistical data disaggregated by sex in order to measure the achievement of progress towards women’s de facto or substantive equality and the effectiveness of temporary special measures.
- Migrant workers and members of their families shall have the right to participate in public affairs of their State of origin and to vote and to be elected at elections of that State, in accordance with its legislation.
- The States concerned shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights.
- States Parties shall consider the establishment of procedures or institutions through which account may be taken, both in States of origin and in States of employment, of special needs, aspirations and obligations of migrant workers and members of their families and shall envisage, as appropriate, the possibility for migrant workers and members of their families to have their freely chosen representatives in those institutions.
- States of employment shall facilitate, in accordance with their national legislation, the consultation or participation of migrant workers and members of their families in decisions concerning the life and administration of local communities.
- Migrant workers may enjoy political rights in the State of employment if that State, in the exercise of its sovereignty, grants them such rights.
Convention on the Rights of Persons with Disabilities (CRPD) (2006)
Article 21 Freedom of expression and opinion, and access to information
States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;
(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;
(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;
(e) Recognizing and promoting the use of sign languages.
Article 29 Participation in political and public life
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:
(a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
(ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
(iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
(b) To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
(i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
(ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
- Article 5 (3) on reasonable accommodation
- Reasonable accommodation is an intrinsic part of the immediately applicable duty of non-discrimination in the context of disability. Examples of reasonable accommodations include making existing facilities and information accessible to the individual with a disability; modifying equipment; reorganizing activities; rescheduling work; adjusting curricula learning materials and teaching strategies; adjusting medical procedures; or enabling access to support personnel without disproportionate or undue burden.
- Reasonable accommodation duties are different from accessibility duties. Both aim to guarantee accessibility, but the duty to provide accessibility through universal design or assistive technologies is an ex ante duty, whereas the duty to provide reasonable accommodation is an ex nunc duty:
(a) As an ex ante duty, accessibility must be built into systems and processes without regard to the need of a particular person with a disability, for example, to have access to a building, a service or a product, on an equal basis with others. States parties must set accessibility standards that are developed and adopted in consultation with organizations of persons with disabilities, consistent with article 4 (3) of the Convention. The duty of accessibility is a proactive, systemic duty;
(b) As an ex nunc duty, reasonable accommodation must be provided from the moment that a person with a disability requires access to non-accessible situations or environments, or wants to exercise his or her rights. Reasonable accommodation is often but not necessarily requested by the person who requires access, or by relevant representatives of a person or a group of people. Reasonable accommodation must be negotiated with the applicant(s). In certain circumstances, the reasonable accommodation provided becomes a collective or public good. In other cases, the reasonable accommodations provided only benefit the applicant(s). The duty to provide reasonable accommodation is an individualized reactive duty that is applicable from the moment a request for accommodation is received. Reasonable accommodation requires the duty bearer to enter into dialogue with the individual with a disability. It is important to note that the duty to provide reasonable accommodation is not limited to situations in which the person with a disability has asked for an accommodation or in which it could be proved that the alleged duty bearer was actually aware that the person in question had a disability. It should also apply in situations where a potential duty bearer should have realized that the person in question had a disability that might require accommodations to address barriers to exercising rights.
- The duty to provide reasonable accommodation in accordance with articles 2 and 5 of the Convention can be broken down into two constituent parts. The first part imposes a positive legal obligation to provide a reasonable accommodation which is a modification or adjustment that is necessary and appropriate where it is required in a particular case to ensure that a person with a disability can enjoy or exercise her or his rights. The second part of this duty ensures that those required accommodations do not impose a disproportionate or undue burden on the duty bearer.
(a) “Reasonable accommodation” is a single term, and “reasonable” should not be misunderstood as an exception clause; the concept of “reasonableness” should not act as a distinct qualifier or modifier to the duty. It is not a means by which the costs of accommodation or the availability of resources can be assessed — this occurs at a later stage, when the “disproportionate or undue burden” assessment is undertaken. Rather, the reasonableness of an accommodation is a reference to its relevance, appropriateness and effectiveness for the person with a disability. An accommodation is reasonable, therefore, if it achieves the purpose (or purposes) for which it is being made, and is tailored to meet the requirements of the person with a disability;
(b) “Disproportionate or undue burden” should be understood as a single concept that sets the limit of the duty to provide reasonable accommodation. Both terms should be considered synonyms insofar as they refer to the same idea: that the request for reasonable accommodation needs to be bound by a possible excessive or unjustifiable burden on the accommodating party;
(c) “Reasonable accommodation” should also not be confused with “specific measures”, including “affirmative action measures”. While both concepts aim at achieving de facto equality, reasonable accommodation is a non-discrimination duty, whereas specific measures imply a preferential treatment of persons with disabilities over others to address historic and/or systematic/systemic exclusion from the benefits of exercising rights. Examples of specific measures include temporary measures for countering the low numbers of women with disabilities employed in the private sector and support programmes to increase the number of students with disabilities in tertiary education. Similarly, reasonable accommodation should not be confused with the provision of support, such as personal assistants, under the right to live independently and be included in the community, or support to exercise legal capacity;
(d) “Procedural accommodations” in the context of access to justice should not be confused with reasonable accommodation; while the latter is limited by the concept of disproportionality, procedural accommodations are not.
- Key elements that guide the implementation of the duty to provide reasonable accommodation include:
(a) Identifying and removing barriers that have an impact on the enjoyment of human rights for persons with disabilities, in dialogue with the person with a disability concerned;
(b) Assessing whether an accommodation is feasible (legally or in practice) — an accommodation that is legally or materially impossible is unfeasible;
(c) Assessing whether the accommodation is relevant (i.e., necessary and appropriate) or effective in ensuring the realization of the right in question;
(d) Assessing whether the modification imposes a disproportionate or undue burden on the duty bearer; the determination of whether a reasonable accommodation is disproportionate or unduly burdensome requires an assessment of the proportional relationship between the means employed and its aim, which is the enjoyment of the right concerned;
(e) Ensuring that the reasonable accommodation is suitable to achieve the essential objective of the promotion of equality and the elimination of discrimination against persons with disabilities. A case-by-case approach based on consultations with the relevant body charged with reasonable accommodation and the person concerned is therefore required. Potential factors to be considered include financial costs, resources available (including public subsidies), the size of the accommodating party (in its entirety), the effect of the modification on the institution or the enterprise, third-party benefits, negative impacts on other persons and reasonable health and safety requirements. Regarding the State party as a whole and the private sector entities, overall assets rather than just the resources of a unit or department within an organizational structure must be considered;
(f) Ensuring that the persons with a disability more broadly do not bear the costs;
(g) Ensuring that the burden of proof rests with the duty bearer who claims that his or her burden would be disproportionate or undue.
- Any justification of the denial of reasonable accommodation must be based on objective criteria and analysed and communicated in a timely fashion to the person with a disability concerned. The justification test in reasonable accommodation is related to the length of the relationship between the duty bearer and the rights holder.
- Article 5 (4) on specific measures
- Specific measures not to be regarded as discrimination are positive or affirmative measures that aim to accelerate or achieve de facto equality of persons with disabilities. Such measures are mentioned in other international human rights treaties, such as article 4 of the Convention on the Elimination of All Forms of Discrimination against Women or article 1 (4) of the International Convention on the Elimination of All Forms of Racial Discrimination, and entail adopting or maintaining certain advantages in favour of an underrepresented or marginalized group. They are usually temporary in nature, although in some instances permanent specific measures are required, depending on context and circumstances, including by virtue of a particular impairment or the structural barriers of society. Examples of specific measures include outreach and support programmes, allocation and/or reallocation of resources, targeted recruitment, hiring and promotion, quota systems, advancement and empowerment measures, as well as respite care and technological aids.
- Specific measures adopted by States parties under article 5 (4) of the Convention must be consistent with all its principles and provisions. In particular, they must not result in perpetuation of isolation, segregation, stereotyping, stigmatization or otherwise discrimination against persons with disabilities. Thus, States parties must consult closely with and actively involve representative organizations of persons with disabilities when they adopt specific measures.
- General obligations of States parties under the Convention relating to non-discrimination and equality
- States parties have an obligation to respect, protect and fulfil the right of all persons with disabilities to non-discrimination and equality. In that regard, States parties must refrain from any action that discriminates against persons with disabilities. In particular, States parties shall modify or abolish existing laws, regulations, customs and practices that constitute such discrimination. The Committee has often given examples in that regard including: guardianship laws and other rules infringing upon the right to legal capacity; mental health laws that legitimize forced institutionalization and forced treatment, which are discriminatory and must be abolished; non-consensual sterilization of women and girls with disabilities; inaccessible housing and institutionalization policy; segregated education laws and policies; and election laws that disenfranchise persons with disabilities.
- The effective enjoyment of the rights to equality and non-discrimination calls for the adoption of enforcement measures, such as:
(a) Measures to raise the awareness of all people about the rights of persons with disabilities under the Convention, the meaning of discrimination and the existing judicial remedies;
(b) Measures to ensure rights contained in the Convention are actionable in domestic courts and provide access to justice for all persons who have experienced discrimination;
(c) Protection from retaliation, such as adverse treatment or adverse consequences in reaction to a complaint or to proceedings aimed at enforcing compliance with equality provisions;
(d) The legal right to bring a lawsuit to court and to pursue claims through associations, organizations or other legal entities that have a legitimate interest in the realization of the right to equality;
(e) Specific rules relating to evidence and proof to ensure that stereotyped attitudes about the capacity of persons with disabilities do not result in victims of discrimination being inhibited in obtaining redress;
(f) Effective, proportionate and dissuasive sanctions for breach of the right to equality and adequate remedies;
(g) Sufficient and accessible provision of legal aid to ensure access to justice for the claimant in discrimination litigation.
- States parties must identify areas or subgroups of persons with disabilities — including those who face intersectional discrimination — that require specific measures to accelerate or achieve inclusive equality. States parties are under an obligation to adopt specific measures for such groups.
- Regarding the consultation obligations of States parties, article 4 (3) and article 33 (3) of the Convention emphasize the important role that organizations of persons with disabilities must play in the implementation and monitoring of the Convention. States parties must ensure that they consult closely and actively involve such organizations, which represent the vast diversity in society, including children, autistic persons, persons with a genetic or neurological condition, persons with rare and chronic diseases, persons with albinism, lesbian, gay, bisexual, transgender or intersex persons, indigenous peoples, rural communities, older persons, women, victims of armed conflicts and persons with an ethnic minority or migrant background. Only then can it be expected that all discrimination, including multiple and intersectional discrimination, will be tackled.
- States parties have information obligations in relation to article 5 of the Convention in that they must collect and analyse appropriate data and research information in order to identify inequalities, discriminatory practices and patterns of disadvantage, and analyse the effectiveness of measures promoting equality. The Committee has observed that, in many States parties, there is a lack of updated data on disability discrimination and that often, in cases where the national law and regulations allow it, no differentiation is made according to impairment, gender, sex, gender identity, ethnicity, religion, age or other layers of identity. Such data and its analysis are of paramount importance for developing effective anti-discrimination and equality measures.
- States parties should also conduct appropriate research on disability discrimination and equality rights for persons with disabilities. Research agendas must embed persons with disabilities in research processes from the agenda-setting stage to ensure their meaningful participation in research. Inclusive and participatory research processes should ensure a safe space for participants and centre around the lived experiences and requirements of persons with disabilities.
- Article 29 on participation in political and public life
- Exclusion from electoral processes and other forms of participation in political life are frequent examples of disability-based discrimination. They are often closely linked to denial or restriction of legal capacity. States parties should aim to:
(a) Reform laws, policies and regulations that systematically exclude persons with disabilities from voting and/or standing as candidates in elections;
(b) Ensure that the electoral process is accessible to all persons with disabilities, including before, during and after elections;
(c) Provide reasonable accommodation to individual persons with disabilities and support measures based on the individual requirements of persons with disabilities to participate in political and public life;
(d) Support and engage with representative organizations of persons with disabilities in political participation process at the national, regional and international levels, including by consulting with such organizations in matters that concern persons with disabilities directly;
(e) Create information systems and legislation that allow for the continuous political participation of persons with disabilities, including between elections.
Convention concerning Indigenous and Tribal Peoples in Independent Countries, ILO C169 (1989-1991)
- This Convention applies to:
(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
- Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.
- The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under inter-national law.
- Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.
- Such action shall include measures for:
(a) ensuring that members of these peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population;
- Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples. [^]
- In applying the provisions of this Convention, governments shall: [^]
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them.
UN Convention against Corruption (UNCAC) (2003-2005)
Article 7. Public sector
- Each State Party shall also consider adopting appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to prescribe criteria concerning candidature for and election to public office.
- Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.
- Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.
Article 10. Public reporting
Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision-making processes, where appropriate. Such measures may include, inter alia:
- a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public;
- b) Simplifying administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and
- c) Publishing information, which may include periodic reports on the risks of corruption in its public administration.
Non-Treaty Standards - UN
- All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
- Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.
- Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.
- Persons belonging to minorities have the right to establish and maintain their own associations.
All appropriate measures shall be taken to ensure to women on equal terms with men, without any discrimination:
(a) The right to vote in all elections and be eligible for election to all publicly elected bodies;
(b) The right to vote in all public referenda;
(c) The right to hold public office and to exercise all public functions. Such rights shall be guaranteed by legislation.
No discrimination by reason of race, colour of ethnic origin shall be admitted in the enjoyment by any person of political and citizenship rights in his country, in particular the right to participate in the elections through universal and equal suffrage and to take part in the government. Everyone has the right of equal access to public service in his country.
- Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. [^] The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.
- Increased efforts should be made to assist countries which so request to create the conditions whereby each individual can enjoy universal human rights and fundamental freedoms. Governments and the United Nations system as well as other multilateral organisations are urged to increase considerably the resources allocated to programmes aiming at the establishment and strengthening of national legislation, national institutions and related infrastructures which uphold the rule of law and democracy, electoral assistance, human rights awareness through training, teaching and education, popular participation and civil society.
- Special emphasis should be given to measures to assist in the strengthening and building of institutions relating to human rights, strengthening of a pluralistic civil society and the protection of groups which have been rendered vulnerable. In this context, assistance provided upon the request of Governments for the conduct of free and fair elections, including assistance in the human rights aspects of elections and public information about elections, is of particular importance.
The General Assembly, [...]
- Stresses its conviction that periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the rights and interests of the governed and that, as a matter of practical experience, the right of every-one to take part in the government of his or her country is a crucial factor in the effective enjoyment by all of a wide range of other human rights and fundamental freedoms, embracing political, economic, social and cultural rights;
- Declares that determining the will of the people requires an electoral process that provides an equal opportunity for all citizens to become candidates and put forward their political views, individually and in cooperation with others, as provided in national constitutions and laws;
- Reaffirms that apartheid must be abolished, that the systematic denial or abridgement of the right to vote on the grounds of race or colour is a gross violation of human rights and an affront to the conscience and dignity of mankind, and that the right to participate in a political system based on common and equal citizenship and universal franchise is essential for the exercise of the principle of periodic and genuine elections;
The General Assembly, [...]
- Calls upon States to promote and consolidate democracy, inter alia, by:
(a) Promoting pluralism, the protection of all human rights and fundamental freedoms, maximizing the participation of individuals in decision-making and the development of effective public institutions, including an independent judiciary, accountable legislature and public service and an electoral system that ensures periodic, free and fair elections;
(d) Developing, nurturing and maintaining an electoral system that provides for the free and fair expression of the people’s will through genuine and periodic elections, in particular by:
(i) Guaranteeing that everyone can exercise his or her right to take part in the government of his or her country, directly or through freely chosen representatives;
(ii) Guaranteeing the right to vote freely and to be elected in a free and fair process at regular intervals, by universal and equal suffrage, conducted by secret ballot and with full respect for the right to freedom of association;
(iii) Taking measures, as appropriate, to address the representation of under-represented segments of society;
(iv) Ensuring, through legislation, institutions and mechanisms, the freedom to form democratic political parties that can participate in elections, as well as the transparency and fairness of the electoral process, including through appropriate access under the law to funds and free, independent and pluralistic media;
The General Assembly, [...]
- Reiterates that periodic, fair and free elections are important elements for the promotion and protection of human rights;
- Reaffirms the right of peoples to determine methods and to establish institutions regarding electoral processes and, consequently, that there is no single model of democracy or of democratic institutions and that States should ensure all the necessary mechanisms and means to facilitate full and effective popular participation in those processes;
- Calls upon all States to refrain from financing political parties or other organizations in any other State in a way that is contrary to the principles of the Charter and that undermines the legitimacy of its electoral processes;
- Reaffirms that the will of the people shall be the basis of the authority of government and that this will shall be expressed in periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures;
The General Assembly [...] [declares:
- Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.
- Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed.
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
- To meet or assemble peacefully;
- To form, join and participate in non-governmental organizations, associations or groups;
- To communicate with non-governmental or intergovernmental organizations.
- In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights.
- Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.
We, heads of State and Government, [...]
- [...] resolve therefore
- To work collectively for more inclusive political processes, allowing genuine participation by all citizens in all our countries.
- To ensure the freedom of the media to perform their essential role and the right of the public to have access to information.
The General Assembly, [...]
Guided by the Convention on the Elimination of All Forms of Discrimination against Women, which affirms human rights and fundamental freedoms and equality for women around the world, and which states, inter alia, that States parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country,
Stressing the critical importance of women’s political participation in all contexts, including in times of peace and of conflict and at all stages of political transition, concerned that many obstacles still prevent women from participating in political life on equal terms with men, and noting in that regard that situations of political transition may provide a unique opportunity to address such obstacles,
Reaffirming that the active participation of women, on equal terms with men, at all levels of decision-making is essential to the achievement of equality, sustainable development, peace and democracy,
- Reaffirms its resolution 58/142 of 22 December 2003 on women and political participation, and calls upon all States to implement it fully;
- Calls upon all States to eliminate laws, regulations and practices that, in a discriminatory manner, prevent or restrict women’s participation in the political process;
- Also calls upon all States to enhance the political participation of women, to accelerate the achievement of equality between men and women and, in all situations, including in situations of political transition, to promote and protect the human rights of women with respect to:
(a) Engaging in political activities;
(b) Taking part in the conduct of public affairs;
(c) Associating freely;
(d) Assembling peacefully;
(e) Expressing their opinions and seeking, receiving and imparting information and ideas freely;
(f) Voting in elections and public referendums and being eligible for election to publicly elected bodies on equal terms with men;
(g) Participating in the formulation of government policy and the implementation thereof, holding public office and performing public functions at all levels of government;
- Calls upon States in situations of political transition to take effective steps to ensure the participation of women on equal terms with men in all phases of political reform, from decisions on whether to call for reforms in existing institutions to decisions regarding transitional governments, to the formulation of government policy, to the means of electing new democratic governments;
- Also urges all States to take, inter alia, the following actions to ensure women’s equal participation, and encourages the United Nations system and other international and regional organizations, within their existing mandates, to enhance their assistance to States in their national efforts:
(a) To review the differential impact of their electoral systems on the political participation of women and their representation in elected bodies and to adjust or reform those systems where appropriate;
(c) To strongly encourage political parties to remove all barriers that directly or indirectly discriminate against the participation of women, to develop their capacity to analyse issues from a gender perspective, and to adopt policies, as appropriate, to promote the ability of women to participate fully at all levels of decision-making within those political parties;
(d) To promote awareness and recognition of the importance of women’s participation in the political process at the community, local, national and international levels;
(e) To develop mechanisms and training to encourage women to participate in the electoral process, political activities and other leadership activities, and empower women to assume public responsibilities by developing and providing appropriate tools and skills, in consultation with women;
(f) To implement appropriate measures within governmental bodies and public sector institutions to eliminate direct or indirect barriers to and enhance women’s participation in all levels of political decision-making;
(g) To accelerate the implementation of strategies, as appropriate, that promote gender balance in political decision-making, and take all appropriate measures to encourage political parties to ensure that women have a fair and equal opportunity to compete for all elective public positions;
(h) To improve and broaden women’s access to information and communications technologies, including e-government tools, in order to enable political participation and to promote engagement in broader democratic processes, while also improving the responsiveness of these technologies to women’s needs, including those of marginalized women;
(i) To investigate allegations of violence, assault or harassment of women elected officials and candidates for political office, create an environment of zero tolerance for such offences and, to ensure accountability, take all appropriate steps to prosecute those responsible;
(j) To encourage greater involvement of women who may be marginalized, including indigenous women, women with disabilities, women from rural areas and women of any ethnic, cultural or religious minority, in decision-making at all levels, and address and counter the barriers faced by marginalized women in accessing and participating in politics and decision-making at all levels;
(o) To monitor and evaluate progress in the representation of women in decision-making positions; [...]
- Encourages States and relevant civil society organizations to support programmes that facilitate women’s participation in political and other leadership activities, including peer support and capacity development for new office holders, and to promote public/private civil society partnerships for women’s empowerment; [...]
- Encourages States to disseminate the present resolution among all relevant institutions, in particular national, regional and local authorities, as well as among political parties;
The General Assembly, [...]
Recognizing the need for strengthening democratic processes, electoral institutions and national capacity-building in requesting countries, including the capacity to administer fair elections, promote voter education, the development of electoral expertise and technology and the participation of women on equal terms with men, provide the necessary conditions to ensure the effective and full participation of all persons with disabilities on an equal basis with others, increase citizen participation and provide civic education, including to youth, in requesting countries in order to consolidate and regularize the achievements of previous elections and support subsequent elections,
- Notes the importance of adequate resources for the administration of efficient and transparent elections at the national and local levels, and recommends that Member States provide adequate resources for those elections, including considering the possibility of establishing internal funding, where feasible;
- Reaffirms the obligation of all States to take all appropriate measures to ensure that every citizen has the effective right and opportunity to participate in elections on an equal basis;
- Calls upon all States to enhance the political participation of women, accelerate the achievement of equality between men and women and, in all situations, promote and protect the human rights of women with respect to voting in elections and public referendums and being eligible for election to publicly elected bodies on equal terms with men; [...]
- Acknowledges the aim of harmonizing the methods and standards of the many intergovernmental and non-governmental organizations engaged in observing elections, and in this regard expresses appreciation for the Declaration of Principles for International Election Observation and the Code of Conduct for International Election Observers, which elaborate guidelines for international electoral observation;
The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression,
Having discussed these issues together with the assistance of ARTICLE 19, Global Campaign for Free Expression, and the Centre for Law and Democracy (CLD);
Recalling and reaffirming our Joint Declarations of 26 November 1999, 30 November 2000, 20 November 2001, 10 December 2002, 18 December 2003, 6 December 2004, 21 December 2005, 19 December 2006, 12 December 2007, 10 December 2008, 15 May 2009, 3 February 2010, 1 June 2011, 25 June 2012, 4 May 2013, 6 May 2014, 4 May 2015, 4 May 2016, 3 March 2017, 2 May 2018 and 10 July 2019;
Highlighting the essential role that freedom of expression and information, free, independent and diverse media and a free and accessible Internet play in ensuring free and fair elections, including referenda, in particular by informing the public about parties and candidates and their platforms;
Noting, in particular, the role of public service media, where they exist, during elections including by providing candidates and parties with equitable access to the public, a platform for political debates, and impartial and accurate information on election related issues;
Recognising the importance to democracy of a vibrant media landscape, of robust public debate about matters of public interest, and of the public having access to a diverse range of information and ideas;
Aware of contemporary challenges to freedom of expression and freedom of the media, brought about in part by a significant evolution of the means of communication, the convergence of legacy and digital media, and the increasingly central role played by social media and digital technologies, as well as the need for the normative framework governing freedom of expression to reflect these changes and to promote transparent and accountable oversight of online content moderation;
Cognisant of the positive potential of digital technologies during elections, including to give voters access to information and to empower them to express their opinions and interact directly with candidates, and to give candidates and parties, including those with limited resources, the ability to disseminate their messages and mobilise support;
Expressing grave concern about the threats and violent attacks that journalists may face during elections and the fact that targeted smear campaigns against journalists, and especially female journalists, undermine their work and public trust and confidence in journalism;
Calling on governments to refrain from abusing their positions to bias media coverage, whether on the part of publicly-owned or private media, or to disseminate propaganda that may influence election outcomes;
Denouncing dis-, mis- and mal-information and “hate speech”, which can exacerbate and even generate election related tensions, calling on parties and candidates to avoid intentionally using these types of statements to enhance their electoral prospects and recognising the important role played by independent election regulators in addressing these forms of speech and promoting access to information;
Alarmed about the misuse of social media by both state and private actors to subvert election processes, including through various forms of inauthentic behaviour and the use of “computational propaganda” (employing automated tools to influence behaviour);
Concerned that many States are passing laws which, while formally justified by reference to the problems noted above, unduly limit freedom of expression, expand State control over the media, restrict Internet freedom and/or further the ability of various actors to collect personal data;
Deploring restrictions on the ability of the public to access the Internet, including complete or partial shutdowns, which seriously limit the ability of media, parties, candidates and others to communicate with the public, as well as the ability of members of the public to access information;
Stressing the need for robust rules and systems requiring transparency of parties and candidates in relation to media spending on elections;
Mindful that elections around the world are scheduled to take place in the midst of the COVID-19 pandemic, creating new barriers for reporting, sometimes imposed unjustifiably by State actors, at a moment when voters have an overriding need to access a range of information and ideas to make informed electoral decisions;
Adopt, on 30 April 2020, as part of the celebrations of World Press Freedom Day, the following Joint Declaration on Freedom of Expression and Elections in the Digital Age:
1. Recommendations to States
- General Principles
- States should put in place a regulatory and institutional framework that promotes a free, independent and diverse media, in both the legacy and digital media sectors, which is able to provide voters with access to comprehensive, accurate and reliable information about parties, candidates and the wider electoral process.
- States should promote effective access to the Internet and other digital technologies for all parts of population, including by closing digital gaps based on gender, race, ethnicity, disability, socio-economic status and other bases, and putting in place clear requirements and policies to ensure respect for the principle of net neutrality.
- States should ensure that any restrictions on freedom of expression that apply during election periods comply with the international law three-part test requirements of legality, legitimacy of aim and necessity, which implies the following:
- There should be no prior censorship of the media, including through means such as the administrative blocking of media websites or Internet shutdowns.
- Any limits on the right to disseminate electoral statements should conform to international standards, including that public figures should be required to tolerate a higher degree of criticism and scrutiny than ordinary citizens.
- There should be no general or ambiguous laws on disinformation, such as prohibitions on spreading “falsehoods” or “non-objective information”.
- Any limits imposed on media reporting on public opinion polls during elections should also be in strict conformity with the three-part test.
- State actors should never use their positions or power to undertake measures with a view to unduly influencing media reporting, including on elections, whether direct measures, such as through licensing of the media or exercising control over public media or media regulators, or indirect measures, such as by limiting access to newsprint, radio frequencies or the ability of media outlets to distribute their products freely throughout the country.
- State actors should ensure that the media enjoys robust access to sources of official information and to candidates for public office, and does not face undue barriers to their ability to disseminate such information and ideas, including during the public health pandemic of COVID-19, and including by implementing the principles of this Joint Declaration.
- Election Coverage by the Media
- The media, both legacy and digital, should be exempted from liability during election periods for disseminating statements made directly by parties or candidates unless the statements have specifically been held to be unlawful by an independent and impartial court or regulatory body, or the statements constitute incitement to violence and the media outlet had a genuine opportunity to prevent their dissemination.
- Any administrative body which has the power to oversee rules relating to the media during election periods should be independent of the government and its decisions should be subject to timely judicial review.
- All publicly-owned media should, during election periods, ensure that the public is informed about election matters, respect strict rules of fairness, impartiality and balance, and grant all parties and candidates equitable opportunities to communicate directly with the public, either for free or at subsidised rates.
- Any rules on election spending which are designed to create a level electoral playing field should be applicable to legacy and digital media, taking into account their differences, including rules about transparency of political advertising.
- States should make a concerted effort to promote digital media and information literacy, including in relation to elections.
- Directing targeted political advertising, based on personal data, at individuals through the media should not be allowed, especially during election periods, unless those individuals have consented to the use of their personal data for this purpose.
- Restrictions on Freedom of Expression/Media Freedom During Elections
- States should consider supporting positive measures to address online disinformation, such as the promotion of independent fact-checking mechanisms and public education campaigns, while avoiding adopting rules criminalising disinformation.
- States should adopt appropriately clear and proportionate laws that prohibit the dissemination of statements which are specifically designed to obstruct individuals’ right to vote, such as by intentionally spreading incorrect information about where or when to vote.
- States have a special obligation to take rapid and effective measures to prevent, protect, investigate, prosecute and punish attacks, threats, intimidation and harassment, offline and online, against journalists and other media workers, including against their property and families, during election periods, particularly where State actors are or may be involved. This obligation is especially pronounced in relation to female journalists and individuals belonging to marginalised groups.
- Online intermediaries should not be held liable for dis-, mis- or mal-information that has been disseminated over their platforms unless they specifically intervene in that content or fail to implement a legally binding order to remove that content.
- Access to Information Relating to Elections
- States should require media outlets, both legacy and digital, to make public information about their ownership, in accordance with principles of non-discrimination and the three- part test.
- Parties and candidates should be required to be transparent in a timely fashion, including to the media, regarding their spending on elections and, in particular, spending on legacy and digital media, and other digital communications efforts.
- State actors, including those responsible for regulating elections, should be fully transparent regarding any agreements or partnerships, whether formal or informal, they have regarding elections with online intermediaries and, in particular, digital and social media companies.
2. Recommendations for Non-State Actors
- Digital actors
- Online intermediaries and digital media should implement the UN Guiding Principles on Business and Human Rights and conduct due diligence to ensure that their products, policies and practices, including in the areas of collection of private data and micro- targeting of messages, do not interfere with human rights.
- Digital media and platforms should make a reasonable effort to adopt measures that make it possible for users to access a diversity of political views and perspectives. In particular, they should make sure that automated tools, such as algorithmic ranking, do not, whether intentionally or unintentionally, unduly hinder access to election related content and the availability of a diversity of viewpoints to users.
- Dominant online intermediaries should consider, as part of their due diligence, undertaking an assessment of whether their products, policies or practices regarding political advertising arbitrarily limit the ability of candidates or parties to disseminate their messages.
- Digital media and online intermediaries should make a reasonable effort to address dis-, mis- and mal-information and election related spam, including through independent fact- checking and other measures, such as advertisement archives, appropriate content moderation and public alerts.
- Digital actors should, as relevant, be transparent about the use and any practical impact of any automated tools they use, albeit not necessarily the specific coding by which those tools operate, including inasmuch as those tools affect data harvesting, targeted advertising, and the sharing, ranking and/or removal of content, especially election-related content.
- Other stakeholders
- Broadcast media should not interfere with the broadcast of third party election content unless they have been ordered to do so by a court or an independent and impartial regulatory body (including of an administrative nature), or are nearly certain that this is necessary to prevent substantial harm to a legitimate interest, such as through an act of violence.
- Parties, politicians and candidates should refrain from limiting the ability of media and journalists to access any public communications they make related to elections.
- Media outlets, both legacy and digital, should be transparent about the methodologies used in any public opinion polls they conduct or report on.
Promotion and protection of the right to freedom of opinion and expression, Note by the Secretary-General 29 August 2018
Disinformation and freedom of opinion and expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Irene Khan, A/HRC/47/25, A/73/348, 13 April 2021
Joint Declaration on Media Independence and Diversity in the Digital Age, UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, 2 May 2018.
 See communication No. 1173/2003, Benhadj v. Algeria, Views adopted on 20 July 2007; No. 628/1995, Park v. Republic of Korea, Views adopted on 5 July 1996.
 See the Committee’s general comment No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to the declarations under article 41 of the Covenant, Official Records of the General Assembly, Fiftieth Session, Supplement No. 40, vol. I (A/50/40 (Vol. I)), annex V.
 See the Committee’s general comment No. 29 (2001) on derogation during a state of emergency, para. 13, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 40, vol. I (A/56/40 (Vol. I)), annex VI.
 General comment No. 29, para. 11.
 General comment No. 24.
 See the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 4, Official Records of the General Assembly, Fiftyninth Session, Supplement No. 40, vol. I (A/59/40 (Vol. I)), annex III
 See communication No. 61/1979, Hertzberg et al. v. Finland, Views adopted on 2 April 1982.
 General comment No. 31, para. 8; See communication No. 633/1995, Gauthier v. Canada, Views adopted on 7 April 1999.
 See communication No. 550/93, Faurisson v. France, Views adopted on 8 November 1996.
 See communication No. 157/1983, Mpaka-Nsusu v. Zaire, Views adopted on 26 March 1986; No. 414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994.
 See communication No. 878/1999, Kang v. Republic of Korea, Views adopted on 15 July 2003.
 See communications Nos. 359/1989 and 385/1989, Ballantyne, Davidson and McIntyre v. Canada, Views adopted on 18 October 1990.
 See communication No. 414/1990, Mika Miha v. Equatorial Guinea.
 See communication No. 1189/2003, Fernando v. Sri Lanka, Views adopted on 31 March 2005
 See communication No. 1157/2003, Coleman v. Australia, Views adopted on 17 July 2006.
 Concluding observations on Japan (CCPR/C/JPN/CO/5).
 See communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005.
 See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan, Views adopted on 19 March 2009.
 See communication No. 926/2000, Shin v. Republic of Korea, Views adopted on 16 March 2004.
 See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.
 See communication No. 926/2000, Shin v. Republic of Korea.
 See communication No. 1341/2005, Zundel v. Canada, Views adopted on 20 March 2007
 See communication No. 1009/2001, Shchetoko et al. v. Belarus, Views adopted on 11 July 2006.
 See communication No. 412/1990, Kivenmaa v. Finland, Views adopted on 31 March 1994.
 See communication No. 1189/2003, Fernando v. Sri Lanka.
 See communication No. 1128/2002, Marques v. Angola, Views adopted on 29 March 2005.
 See communication No. 633/95, Gauthier v. Canada.
 See the Committee’s general comment No. 25 (1996) on article 25 (Participation in public affairs and the right to vote), para. 25, Official Records of the General Assembly, Fifty-first Session, Supplement No. 40, vol. I (A/51/40 (Vol. I)), annex V
 See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan.
 Concluding observations on Republic of Moldova (CCPR/CO/75/MDA).
 See communication No. 633/95, Gauthier v. Canada.
 See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan.
 See communication No. 726/1996, Zheludkov v. Ukraine, Views adopted on 29 October 2002.
 See the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 33, Official Records of the General Assembly, Sixty-second Session, Supplement No. 40, vol. I (A/62/40 (Vol. I)), annex VI
 General comment No. 31.
 See communication No. 1457/2006, Poma v. Peru, Views adopted on 27 March 2009.
 Concluding observations on Azerbaijan (CCPR/C/79/Add.38 (1994)).
 See General comment No. 25 on article 25 of the Covenant, para. 25.
 See the Committee’s general comment No. 27 on article 12, Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 40, vol. I (A/55/40 (Vol. I)), annex VI, sect. A
 See communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005.
 See the Committee’s general comment No. 22, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex VI
 See communication No. 458/91, Mukong v. Cameroon, Views adopted on 21 July 1994.
 See communication No. 1353/2005, Njaru v. Cameroon, Views adopted on 19 March 2007.
 See, for instance, concluding observations on Algeria (CCPR/C/DZA/CO/3); concluding observations on Costa Rica (CCPR/C/CRI/CO/5); concluding observations on Sudan (CCPR/C/SDN/CO/3).
 See communication No. 1353/2005, Njaru v. Cameroon ; concluding observations on Nicaragua (CCPR/C/NIC/CO/3); concluding observations on Tunisia (CCPR/C/TUN/CO/5); concluding observations on the Syrian Arab Republic (CCPR/CO/84/SYR); concluding observations on Colombia (CCPR/CO/80/COL).
 Ibid. and concluding observations on Georgia (CCPR/C/GEO/CO/3).
 Concluding observations on Guyana (CCPR/C/79/Add.121).
 See communication No. 633/95, Gauthier v. Canada.
 See communication No. 1373/2005, Dissanayake v. Sri Lanka, Views adopted on 22 July 2008.
 See general comment No. 32.
 See communication No. 578/1994, de Groot v. The Netherlands, Views adopted on 14 July 1995.
 See general comment No. 27.
 See communication No. 488/1992, Toonen v. Australia, Views adopted on 30 March 1994.
 General comment No. 20, Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI, sect. A.
 See communication No. 1553/2007, Korneenko et al. v. Belarus, Views adopted on 31 October 2006.
 See communication No. 132/1982, Jaona v. Madagascar, Views adopted on 1 April 1985.
 See communication No. 927/2000, Svetik v. Belarus, Views adopted on 8 July 2004.
 See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.
 See communication No. 550/93, Faurisson v. France; concluding observations on Austria (CCPR/C/AUT/CO/4).
 Concluding observations on Slovakia (CCPR/CO/78/SVK); concluding observations on Israel (CCPR/CO/78/ISR).
 Concluding observations on Hong Kong (CCPR/C/HKG/CO/2).
 Concluding observations on the Russian Federation (CCPR/CO/79/RUS).
 Concluding observations on Uzbekistan (CCPR/CO/71/UZB).
 See communication No. 518/1992, Sohn v. Republic of Korea, Views adopted on 18 March 1994.
 See communication No. 1157/2003, Coleman v. Australia.
 See communication No. 1373/2005, Dissanayake v. Sri Lanka.
 See communication No. 359, 385/89, Ballantyne , Davidson and McIntyre v. Canada.
 See communication No. 736/97, Ross v. Canada, Views adopted on 17 July 2006.
 General comment No. 27, para. 14. See also Communications No. 1128/2002, Marques v. Angola; No. 1157/2003, Coleman v. Australia.
 See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31 October 2005.
 See communication No. 926/2000, Shin v. Republic of Korea.
 See communication No. 518/1992, Sohn v. Republic of Korea.
 See communication No. 511/1992, Ilmari Länsman, et al. v. Finland, Views adopted on 14 October 1993.
 See communications Nos. 518/92, Sohn v. Republic of Korea; No. 926/2000, Shin v. Republic of Korea.
 Concluding observations on Japan (CCPR/C/JPN/CO/5).
 Concluding observations on Tunisia (CCPR/C/TUN/CO/5).
 Concluding observations on Togo (CCPR/CO/76/TGO); concluding observations on Moldova (CCPR/CO/75/MDA).
 See communication No. 968/2001, Kim v. Republic of Korea, Views adopted on 14 March 1996.
 See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31 October 2005.
 See communication No. 1128/2002, Marques v. Angola.
 See communications Nos. 422-424/1990, Aduayom et al. v. Togo, Views adopted on 30 June 1994.
 Concluding observations on the Dominican Republic (CCPR/CO/71/DOM).
 Concluding observations on Honduras (CCPR/C/HND/CO/1).
 See concluding observations on Zambia (CCPR/ZMB/CO/3), para.25.
 See concluding observations on Costa Rica (CCPR/C/CRI/CO/5), para. 11.
 Ibid., and see concluding observations on Tunisia (CCPR/C/TUN/CO/5), para. 91..
 See concluding observations on Viet Nam (CCPR/CO/75/VNM), para. 18, and concluding observations on Lesotho (CCPR/CO/79/Add.106), para. 23.
 Concluding observations on Gambia (CCPR/CO/75/GMB).
 See concluding observations on Lebanon (CCPR/CO/79/Add.78), para. 25.
 Concluding observations on Kuwait (CCPR/CO/69/KWT); concluding observations on Ukraine (CCPR/CO/73/UKR).
 Concluding observations on Kyrgyzstan (CCPR/CO/69/KGZ).
 Concluding observations on Ukraine (CCPR/CO/73/UKR).
 Concluding observations on Lebanon (CCPR/CO/79/Add.78).
 See concluding observations on Guyana (CCPR/CO/79/Add.121), para. 19; concluding observations on the Russian Federation (CCPR/CO/79/RUS); concluding observations on Viet Nam (CCPR/CO/75/VNM); concluding observations on Italy (CCPR/C/79/Add. 37).
 See concluding observations on Lesotho (CCPR/CO/79/Add.106), para. 22.
 Concluding observations on Ukraine (CCPR/CO/73/UKR).
 Concluding observations on Sri Lanka (CCPR/CO/79/LKA); and see concluding observations on Togo (CCPR/CO/76/TGO), para. 17.
 Concluding observations on Peru (CCPR/CO/70/PER).
 Concluding observations on the Syrian Arab Republic (CCPR/CO/84/SYR).
 Concluding observations on Uzbekistan (CCPR/CO/83/UZB); concluding observations on Morocco (CCPR/CO/82/MAR).
 Concluding observations on Democratic People’s Republic of Korea (CCPR/CO/72/PRK).
 Concluding observations on Kuwait (CCPR/CO/69/KWT).
 Concluding observations on the United Kingdom of Great Britain and Northern Ireland (CCPR/C/GBR/CO/6).
 Concluding observations on the Russian Federation (CCPR/CO/79/RUS).
 Concluding observations on the United Kingdom of Great Britain and Northern Ireland (CCPR/C/GBR/CO/6).
 Concluding observations on Italy (CCPR/C/ITA/CO/5); concluding observations on the Former Yugoslav Republic of Macedonia (CCPR/C/MKD/CO/2).
 See communication No. 909/2000, Kankanamge v. Sri Lanka, Views adopted on 27 July 2004.
 Concluding observations on the United Kingdom of Great Britain and Northern Ireland-the Crown Dependencies of Jersey, Guernsey and the Isle of Man (CCPR/C/79/Add.119). See also concluding observations on Kuwait (CCPR/CO/69/KWT).
 So called “memory-laws”, see communication No. , No. 550/93, Faurisson v. France. See also concluding observations on Hungary (CCPR/C/HUN/CO/5) paragraph 19.
 See communication No. 736/1997, Ross v. Canada, Views adopted on 18 October 2000.
 For example, the Universal Declaration of Human Rights (art. 20 (1)); the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (art. 11); the American Convention on Human Rights (art. 15); and the African Charter on Human and Peoples’ Rights (art. 11). The Arab Charter on Human Rights protects the right for citizens (art. 24). Specific obligations relating to participation in peaceful assemblies can also be found in the Convention on the Rights of the Child (art. 15); the International Convention on the Elimination of All Forms of Racial Discrimination (art. 5 (d) (ix)); and the African Charter on the Rights and Welfare of the Child (art. 8).
 For examples from the regional mechanisms, see Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and Human Rights, and European Commission for Democracy through Law (Venice Commission), Guidelines on Freedom of Peaceful Assembly, 3rd ed. (Warsaw/Strasbourg, 2019); African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa (Banjul, 2017) and Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa (Banjul, 2017); and Inter-American Commission on Human Rights, Office of the Special Rapporteur for Freedom of Expression, Protest and Human Rights: Standards on the rights involved in social protest and the obligations to guide the response of the State (2019).
 A total of 184 of the 193 States Members of the United Nations recognize the right to peaceful assembly in their constitutions. See www.rightofassembly.info.
 Kivenmaa v. Finland (CCPR/C/50/D/412/1990), para. 7.6; Sekerko v. Belarus (CCPR/C/109/D/1851/2008), para. 9.3; and Poplavny and Sudalenko v. Belarus (CCPR/C/118/D/2139/2012), para. 8.5.
 General comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 9.
 General comment No. 15 (1986) on the position of aliens under the Covenant, paras. 1–2; and CCPR/C/KWT/CO/3, para. 42.
 CCPR/C/DOM/CO/6, para. 32.
 CCPR/C/NPL/CO/2, para. 14.
 CCPR/C/KOR/Q/4, para. 26.
 International Covenant on Civil and Political Rights, art. 2 (1).
 A/HRC/39/28, para. 14.
 Coleman v. Australia (CCPR/C/87/D/1157/2003), para. 6.4.
 See A/HRC/41/41.
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 51.
 European Court of Human Rights, Frumkin v. Russia (application No. 74568/12), judgment of 5 January 2016, para. 97.
 CCPR/C/CHN-MAC/CO/1, para. 16.
 A/HRC/31/66, para. 18.
 Inter-American Court of Human Rights, Women Victims of Sexual Torture in Atenco v. Mexico, judgment of 28 November 2018, series C, No. 371, para. 175; and European Court of Human Rights, Frumkin v. Russia, para. 99.
 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (A/HRC/22/17/Add.4, appendix), para. 29 (f).
 See also general comment No. 31.
 Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 9.6. See also Amelkovich v. Belarus (CCPR/C/125/D/2720/2016), para. 6.6; and CCPR/C/GNQ/CO/1, paras. 54–55.
 Strizhak v. Belarus (CCPR/C/124/D/2260/2013), para. 6.5.
 Since issuing its Views in Turchenyak et al. v. Belarus (CCPR/C/108/D/1948/2010 and Corr.1), the Committee has often repeated that steps taken by States in response to an assembly “should be guided by the objective to facilitate the right” (para. 7.4). See also CCPR/C/BEN/CO/2, para. 33, A/HRC/20/27, para. 33, and Human Rights Council resolution 38/11.
 Alekseev v. Russian Federation, para. 9.6.
 CCPR/C/GEO/CO/4, para. 8; CCPR/C/MNG/CO/6, paras. 11–12; CCPR/C/RUS/CO/7, para. 10; and CCPR/C/PRY/CO/3, para. 9. See also CRC/C/KEN/CO/3-5, paras. 27–28; and United Nations Declaration on the Rights of Indigenous Peoples, art. 2.
 A/HRC/31/66, para. 16.
 CCPR/C/CHL/CO/6, para. 19. See also Fedotova v. Russian Federation (CCPR/C/106/D/1932/2010), para. 10.4.
 European Court of Human Rights, Plattform “Ärzte für das Leben” v. Austria (application No. 10126/82), judgment of 21 June 1988, para. 32.
 African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 70 (a).
 Zhagiparov v. Kazakhstan (CCPR/C/124/D/2441/2014), paras. 13.2–13.5. See also the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
 CCPR/C/MRT/CO/1, para. 22. See also General Assembly resolution 66/164.
 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework.
 General comment No. 34 (2011) on the freedoms of opinion and expression, paras. 34, 37–38 and 42–43. See also CCPR/C/LAO/CO/1, para. 33.
 Tulzhenkova v. Belarus (CCPR/C/103/D/1838/2008), para. 9.3.
 Evrezov et al. v. Belarus (CCPR/C/112/D/1999/2010 and Corr.1), para. 8.5.
 CCPR/C/CMR/CO/5, para. 41.
 General comment No. 34, para. 34.
 Gryb v. Belarus (CCPR/C/103/D/1316/2004), para. 13.4.
 Chebotareva v. Russian Federation (CCPR/C/104/D/1866/2009), para. 9.3.
 Turchenyak et al. v. Belarus, para. 7.4.
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 132 and 220–222.
 Nepomnyashchiy v. Russian Federation (CCPR/C/123/D/2318/2013), para. 7.7; and general comment No. 34, para. 25.
 General comment No. 34, para. 34.
 Toregozhina v. Kazakhstan (CCPR/C/112/D/2137/2012), para. 7.4.
 Ibid., paras. 7.4 and 7.6. See also OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 131.
 Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (E/CN.4/1985/4, annex), para. 29.
 Ibid., para. 32.
 CCPR/C/MKD/CO/3, para. 19; and Alekseev v. Russian Federation, para. 9.5.
 Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, para. 33.
 Ibid., para. 22.
 CCPR/C/KAZ/CO/1, para. 26; and CCPR/C/DZA/CO/4, paras. 45–46.
 European Court of Human Rights, Cisse v. France (application No. 51346/99), judgment of 9 April 2002.
 General comment No. 22 (1993) on the right to freedom of thought, conscience and religion, para. 8.
 General comment No. 34, para. 32.
 Fedotova v. Russian Federation, paras. 10.5–10.6; and Alekseev v. Russian Federation, para. 9.6.
 Stambrovsky v. Belarus (CCPR/C/112/D/1987/2010), para. 7.6; and Pugach v. Belarus (CCPR/C/114/D/1984/2010), para. 7.8.
 Alekseev v. Russian Federation, para. 9.6.
 CCPR/C/MDG/CO/4, para. 51.
 CCPR/C/79/Add. 86, para. 18; and general comment No. 34, para. 38.
 General comment No. 34, paras. 50–52; International Convention on the Elimination of All Forms of Racial Discrimination, art. 4; and Committee on the Elimination of Racial Discrimination, general recommendation No. 35 (2013) on combating racist hate speech. See also the Rabat Plan of Action, para. 29, and the Beirut Declaration on Faith for Rights (A/HRC/40/58, annexes I and II).
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 152. See also European Court of Human Rights, Fáber v. Hungary (application No. 40721/08), judgment of 24 October 2012, paras. 56–58.
 Alekseev v. Russian Federation, para. 9.6.
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 132.
 Turchenyak et al. v. Belarus, para. 7.4.
 European Court of Human Rights, Éva Molnár v. Hungary (application No. 10346/05), judgment of 7 October 2008, para. 42.
 CCPR/C/KOR/CO/4, para. 52; and CCPR/C/TJK/CO/3, para. 49.
 Inter-American Commission on Human Rights, Protest and Human Rights, para. 72.
 CCPR/C/KAZ/CO/1, para. 26.
 CCPR/C/DZA/CO/4, para. 45.
 Turchenyak et al. v. Belarus, para. 7.5.
 Sudalenko v. Belarus (CCPR/C/113/D/1992/2010), para. 8.5.
 Zündel v. Canada (CCPR/C/78/D/953/2000), para. 8.5.
 Giménez v. Paraguay (CCPR/C/123/D/2372/2014), para. 8.3; and European Court of Human Rights, Annenkov and others v. Russia (application No. 31475/10), judgment of 25 July 2017, para. 122.
 European Court of Human Rights, Appleby and others v. United Kingdom (application No. 44306/98), judgment of 6 May 2003, para. 47.
 European Court of Human Rights, Frumkin v. Russia, para. 107.
 CCPR/C/THA/CO/2, para. 39.
 OSCE and Venice Commission, Guidelines on Peaceful Assembly, para. 153; and African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 81.
 A/HRC/31/66, para. 73.
 CCPR/C/KOR/CO/4, paras. 42–43.
 A/HRC/44/24, paras. 33–34.
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 110.
 CCPR/C/CHE/CO/4, para. 48.
 Poliakov v. Belarus (CCPR/C/111/D/2030/2011), paras. 8.2–8.3; and CCPR/C/BLR/CO/5, para. 51 (a).
 African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 102 (b).
 A/HRC/31/66, para. 26.
 OSCE and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 224.
 CCPR/C/KHM/CO/2, para. 22; and CCPR/C/JOR/CO/5, para. 32.
 CCPR/C/TKM/CO/2, para. 44.
 CCPR/C/SWZ/CO/1, para. 36; and CCPR/C/BHR/CO/1, para. 29. See also A/HRC/40/52.
 CCPR/C/POL/CO/6, para. 23.
 E.V. v. Belarus (CCPR/C/112/D/1989/2010), para. 6.6.
 CCPR/C/MAR/CO/6, para. 45; CCPR/C/GMB/CO/2, para. 41; and African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 71.
 Kivenmaa v. Finland, para. 9.2. See also African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 72.
 Kivenmaa v. Finland, para. 9.2. See also Sekerko v. Belarus, para. 9.4.
 Popova v. Russian Federation (CCPR/C/122/D/2217/2012), para. 7.5.
 Poliakov v. Belarus, para. 8.3.
 See, e.g., Popova v. Russian Federation, paras. 7.4–7.5. See also A/HRC/31/66, para. 23.
 CCPR/CO/83/KEN, para. 23; CCPR/C/CHE/CO/4, para. 48; and CCPR/C/DZA/CO/4, para. 45.
 Popova v. Russian Federation, para. 7.5. See also European Court of Human Rights, Éva Molnár v. Hungary, para. 38.
 CCPR/C/UZB/CO/5, paras. 46–47; and CCPR/C/JOR/CO/5, para. 32.
 CCPR/C/AGO/CO/1, para. 21; CCPR/C/GEO/CO/4, para. 12; and CCPR/C/KOR/CO/4, para. 52.
 A/HRC/31/66, para. 41.
 Ibid., para. 38.
 Human Rights Council resolution 38/11; and A/HRC/26/36, para. 51.
 A/HRC/31/66, para. 37.
 General comment No. 36 (2018) on the right to life, paras. 13–14.
 United Nations publication, Sales No. E.20.XIV.2. See also the Code of Conduct for Law Enforcement Officials.
 Code of Conduct for Law Enforcement Officials, art. 3.
 Ibid., commentary to art. 3.
 CCPR/C/MAR/CO/6, paras. 45–46; and CCPR/C/BHR/CO/1, para. 55.
 CCPR/C/KHM/CO/2, para. 12; CCPR/C/GRC/CO/2, para. 42; and CCPR/C/BGR/CO/4, para. 38.
 CCPR/C/VEN/CO/4, para. 14; and African Commission on Human and Peoples’ Rights, Guidelines on Policing Assemblies in Africa, para. 3.2.
 Code of Conduct for Law Enforcement Officials, art. 1.
 General comment No. 36, para. 14. See also United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, section 4; and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principles 2 and 3.
 CCPR/C/GBR/CO/7, para. 11; and A/HRC/44/24, para. 32.
 CCPR/C/MKD/CO/3, para. 19.
 General comment No. 35 (2014) on liberty and security of person, para. 15.
 European Court of Human Rights, S., V. and A. v. Denmark (application Nos. 35553/12, 36678/12 and 36711/12), judgment of 22 October 2018 (Grand Chamber), paras. 77 and 127.
 CCPR/C/CAN/CO/6, para. 15.
 CCPR/C/GBR/CO/7, para. 11; and CCPR/C/USA/CO/4, para. 7.
 A/HRC/31/66, para. 43.
 European Court of Human Rights, Austin and others v. United Kingdom (application Nos. 39629/09, 40713/09; and 41008/09), judgment of 15 March 2012 (Grand Chamber), para. 68.
 A/HRC/31/66, para. 62.
 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principle 13; and A/HRC/26/36, para. 75.
 United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, para. 2.10.
 S/2009/693, annex, para. 62; and United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, para. 7.3.7.
 African Commission on Human and Peoples’ Rights, Guidelines on Policing Assemblies in Africa, para. 21.2.4.
 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principle 14.
 General comment No. 36, para. 12; and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principles 9 and 14.
 United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, para. 7.5.8.
 A/HRC/31/66, paras. 60 and 67 (e). See also Office of the United Nations High Commissioner for Human Rights and United Nations Office on Drugs and Crime, Resource book on the use of force and firearms in law enforcement (New York, United Nations, 2017), p. 96.
 European Court of Human Rights, Hentschel and Stark v. Germany (application No. 47274/15), judgment of 9 November 2017, para. 91; and CAT/C/DEU/CO/6, para. 40.
 CCPR/C/COD/CO/4, paras. 43–44; and CCPR/C/BHR/CO/1, para. 36. See also The Minnesota Protocol on the investigation of potentially unlawful death (United Nations publication, Sales No. E.17.XIV.3).
 General Assembly resolution 60/147, annex.
 United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, paras. 3.3–3.5.
 General comment No. 36, para. 15.
 International Code of Conduct for Private Security Service Providers (2010).
 United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement, para. 3.2.
 CCPR/C/CHN-HKG/CO/3, para. 10; and CCPR/C/CHN-MAC/CO/1, para. 16.
 A/HRC/31/66, para. 71.
 Ibid., para. 67 (f).
 General comment No. 29 (2001) on derogations from provisions of the Covenant during a state of emergency, para. 5. See also CCPR/C/128/2, para. 2 (c).
 General comment No. 29, paras. 5–9.
 General comment No. 36, para. 64.
 CCPR/C/ISR/CO/3, para. 9; CCPR/C/UZB/CO/3, para. 8; Olmedo v. Paraguay (CCPR/C/104/D/1828/2008), para. 7.5; and Benítez Gamarra v. Paraguay (CCPR/C/104/D/1829/2008), para. 7.4.
 Rome Statute of the International Criminal Court, art. 7.
 Evrezov et al. v. Belarus, paras. 3.3 and 8.9.
 General comment No. 22, para. 8.
 Sudalenko v. Belarus, para. 8.6.
 Indirect discrimination against women may occur when laws, policies and programmes are based on seemingly gender-neutral criteria which in their actual effect have a detrimental impact on women. Gender-neutral laws policies and programmes unintentionally may perpetuate the consequences of past discrimination. They may be inadvertently modelled on male lifestyles and thus fail to take into account aspects of women’s life experiences which may differ from those of men. These differences may exist because of stereotypical expectations, attitudes and behaviour directed towards women, which are based on the biological differences between women and men. They may also exist because of the generally existing subordination of women by men.
 “Gender is defined as the social meaning given to biological sex differences. It is an ideological and cultural construct, but is also reproduced within the realm of material practices. It affects the distribution of resources, wealth, work, decision-making and political power, and enjoyment of rights and entitlements within the family as well as public life. Despite variations across cultures and over time, gender relations throughout the world entail asymmetry of power between men and women as a pervasive trait. Thus, gender is a social stratifier, and in this sense it is similar to other stratifiers such as race, class, ethnicity, sexuality, and age. It helps us understand the social construction of gender identities and the unequal structure of power that underlies the relationship between the sexes”. 1999 World Survey on the Role of Women in Development, United Nations, New York, 199, page ix.
 The term “affirmative action” is used in the United States of America and in a number of United Nations documents, whereas the term “positive action” is currently widely used in Europe as well as in many United Nations documents. However, the term “positive action” is used in yet another sense in international human rights law to describe “positive State action” (the obligation of a State to initiate action versus a State’s obligation to abstain from action). Hence, the term “positive action” is ambiguous inasmuch as its meaning is not confined to temporary special measures as understood in article 4, paragraph 1, of the Convention. The terms “reverse discrimination” or “positive discrimination” are criticized by a number of commentators as inappropriate.
 See Committee on Economic, Social and Cultural Rights general comment No. 5 (1994) on persons with disabilities, para. 15.
 See Committee on the Rights of Persons with Disabilities general comment No. 1 (2014) on equal recognition before the law.
 See Committee on the Rights of Persons with Disabilities, guidelines on article 14, paras. 6 and 14. Available from the Committee’s web page (www.ohchr.org/EN/HRBodies/CRPD/ Pages/CRPDIndex.aspx).
 See, for example, general comment No. 5 (2017) on living independently and being included in the community, para. 46.
 See general comment No. 4 (2016) on the right to inclusive education, para. 24.
 See Bujdosó et al v. Hungary (CRPD/C/10/D/4/2011).