The International Human Rights Framework on the Right of Peaceful Assembly

Argentina is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:

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.

Argentina is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.

At regional level, Argentina is a state party to the 1969 Inter-American Convention on Human Rights. Article 15 governs the right of assembly:

The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.

Argentina has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of Argentina that their rights under the 1969 Inter-American Convention on Human Rights have been violated.

The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

The 1994 Constitution of Argentina (as amended) does not expressly guarantee the right of peaceful assembly though the rights of association and freedom of movement are protected.

National Legislation

In April 2017, the government proposed a law that, it was said, would effectively criminalise social protest. The proposed reforms to the Penal Code covered threats, damage to property, use of weapons, and offences against the safety of traffic and public transportation. Some of the proposed offences carried penalties of up to ten years in prison.

In Buenos Aires, Article 99 of the 2016 Law on public security stipulates that:

Police intervention in gatherings or public demonstrations must guarantee the respect and protection of the rights of the participants, as well as reduce the effects that the gathering or demonstration causes or may cause on the rights of persons who do not participate in it.

In fulfilling these objectives, the police "must give preeminence to the protection of the life and physical integrity of all those involved".

Article 100 requires that all police personnel involved in public demonstrations "carry a clear identification that can be seen at a glance at the corresponding uniforms".

The Legal Framework on Use of Force During Assemblies

The Use of Force

International Legal Rules

Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.

National Legislation

The National Police Training Manual stipulates that police use of force must be necessary, proportional, and graduated.

The Use of Firearms

International Legal Rules

According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life. 

National Legislation

With respect to firearms, a police training manual on the use of force stipulates that:

As a general rule, the use of firearms is not justified. Grounds for an exception to his rule are only given when ... the aggressor fires against police personnel and not to prevent his/her escape might imply a lethal threat for him- or herself or others.

In November 2018, the Minister of Security issued, by resolution, a new regulation on the use of firearms by the federal security forces.Ministry of Security Resolution 956/2018, Buenos Aires, 27 November 2018.The regulation stipulates that officers can only use firearms when strictly necessary for the performance of their duties and in the following cases:

a) In self-defence or defence of others, in case of an imminent threat or death or serious injury
b) To prevent the commission of a particularly serious crime, which present imminent danger to life or bodily integrity
c) To effect the arrest of a person who represents that imminent threat and actively resists
d) To prevent the escape of a person who represents that imminent threat and until he is arrested.

The notion of imminence is defined in the Regulation as follows:

a) When acting under threat of death or serious injury of yourself or a third party

b) When the alleged offender possesses a lethal weapon, although later it transpires that it was a replica

c) When it is reasonably presumed that the suspect may possess a lethal weapon, such as in the following situations:
c.1.- When in a group of two or more people and another member of the group has a weapon or has fired shots, or has injured a third party
c.2.- When trying to access a weapon in circumstances that indicate the intention to use it against the agent or against a third party
c.3.- When making movements that indicate the imminent use of a weapon.

d) When being armed, seek advantage by parading, hiding, or improving its attack position.

In order to conform to international standards, it would be necessary to clarify that the threat of a minor bodily injury would not be sufficient to justify use of firearms.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

In its 2016 Concluding Observations on the fifth periodic report of Argentina, the Human Rights Committee did not address the right of peaceful assembly.

Argentina did not address the issue of peaceful assembly in its 2017 Universal Periodic Review under the Human Rights Council.

Regional Jurisprudence

There has been no case involving the right of peaceful assembly in Argentina in recent years. The Inter-American Commission on Human Rights conducted a working visit to Argentina on 3-8 April 2019 to discuss friendly settlements, but these did not concern the exercise of the right of peaceful assembly.

Views of Civil Society

In November 2018, Amnesty International called on Argentina to "respect and guarantee the rights to freedom of expression and peaceful assembly during the G20 meetings in Buenos Aires at the end of November" and called on the security forces to "strictly abide by international standards on the use of force". 

Erika Guevara-Rosas, Americas director at Amnesty International, stated:

They must dismiss any attempt to stigmatize social protest; the right to demonstrate peacefully is a human right. In carrying out its task of guaranteeing the security of those attending the Summit, Argentina must, at the same time, show that it can ensure the right to protest of those who wish to express their discontent.

During the G20 Summit, hundreds of thousands of anti-capitalist and other protesters marched through Buenos Aires. Protesters were undeterred by the security measures put in place by the government, including the closure of public transportation in much of the city. A 12 square kilometre area around the convention centre where the leaders of the world's top economies were meeting was cordoned off, keeping demonstrations about five kilometres away from the event.

Downloads

1853 Constitution of Argentina (as amended) (English_translation) - Download (75 KB)
National Police Training Manual (Spanish_original) - Download (4 MB)
CELS Report on the Right to Protest in Argentina (Spanish original) (split into three pdfs) - Download (7 MB)Download (7 MB)Download (7 MB)