Where does the right to a peaceful protest begin and end?

The debate triggered by recent water charge-related incidents has focused attention on the scope and limits of our entitlement to protest.

The starting point for any such discussion has to be recognition of the importance for democracy of a right of peaceful protest.

The peaceful protestor is a prime maker of history, using protest as a natural continuation of politics.

A peaceful protest gives the people the ability to manifest dissent from government policy: it can be an outlet for outrage. Peaceful protest can remedy defects in the political system.

It can provide a means of challenging corrupt hierarchies of power. It is an indicator of a vibrant and open-minded society.

Peaceful protests have generated change and contributed to the advancement of human rights throughout history.

The end of colonialism in India is unthinkable without the Sathyagraha movement spearheaded by Mahatma Gandhi. The end of racial segregation and the introduction of a Civil Rights Act in the US are inevitably linked with the name and peaceful protest actions of Martin Luther King jnr.

The Mothers of the Playo de Mayo continually demanded the return of their disappeared children during the Argentinean military dictatorship and their protest constituted the first act of a movement that would slowly raise awareness of the brutality of the regime.

Peaceful protests are often subject to constraint in a context of an asymmetry of state and law on the one hand and of the protesting groups on the other. In recent times, peaceful protesters and human rights defenders have met with repression in numerous countries.

During the Arab Spring, organisers and participants in peaceful protests were subject to extrajudicial killings, enforced disappearances, arbitrary arrests, detentions, and torture.

Use of force to uphold public order

The use of force as a means to uphold public order has an inevitable impact for the exercise of peaceful protest. As law- enforcement officials are often granted very wide powers and discretion in policing assemblies, their level of professionalism, knowledge and equipment are of critical significance.

In many countries it remains unclear when the use of force may be employed and how such requirements as necessity and proportionality may be assessed regarding the use of weapons.

One major contemporary concern regards the identification of those elements of a protest whereby it can be designated as non-peaceful – as violent.

Are sit-ins violent? Is the occupation and blockade of the railway by anti-nuclear protesters in the context of the transportation of nuclear material a peaceful or violent protest?

International good practice suggests an assembly should be deemed peaceful if its organisers and participants have peaceful intentions and do not use, advocate or incite violence.

A peaceful protest does not need definition: it can be recognised when you see it and as such it may take different forms. That is why it is not protected by any single right in international human rights law.

Instead, the “human right of peaceful protest” is a construct, an amalgam of different rights, including the rights to freedom of peacefully assembly, freedom of association and freedom of expression; and the right to participate in the conduct of political affairs.

The diverse rights interplay and are mutually reinforcing, as has been observed by the European Court of Human Rights.

None of the rights engaged by peaceful protest is of an absolute nature. With regard to each of them the State is permitted to restrict the right in strict compliance with rules laid out in the relevant human rights treaties.

Restrictions must be provided for by law, be necessary and proportionate and be for such purposes as protecting the rights of others and the maintenance of public order.

In every case of imposition of a restriction the state must demonstrate in specific and individualised fashion the precise nature of the threat it is addressing and the necessity and proportionality of the action taken.

In this regard it is clear that protest cannot be restricted just because it may involve conduct that annoys or offends or temporarily hinders, impedes or obstructs the activities of third parties. The UN human rights committee has observed that expression that may be considered as offensive should normally be tolerated.

Appropriate legislative framework To help it comply with its human rights obligations, it is good practice for a state to set out an appropriate legislative framework for the recognition of an entitlement of peaceful protest.

Unlike the Republic, the UK’s Human Rights Act of 1998 and Public Order Act of 1986 usefully set out the positive and negative obligations of the state to ensure the exercise of peaceful protest.

Many other countries, including Switzerland, Mongolia, Spain, Guatemala, Serbia, Bulgaria, Panama and Paraguay, explicitly guarantee an entitlement of peaceful protest.

Policy guidelines

Getting the standards reflected in policy guidelines also makes a difference. In the aftermath of the death of a bystander during the demonstrations against

G20

in London, a national review of public order policing in the context of peaceful protests was undertaken by the UK government.

The presumption in favour of peaceful protests was adopted as a starting point for policing peaceful protests and came to be reflected in guidelines published by the association of chief police officers.

This is a timely moment for the Government to take account of practice internationally and put in place the law and policy that best reflects its international human rights obligations.

It is no less important that our public representatives avoid any temptation in the current heated atmosphere to do or say anything that would put at risk the fundamental pillar of an open and democratic society that is peaceful protest.

Michael O'Flaherty is professor of human rights law and director of the Irish Centre for Human Rights at NUI Galway; former chief commissioner of the Northern Ireland Human Rights Commission; and former vice-chairman of the UN human rights committee