The International Human Rights Framework on the Right of Peaceful Assembly
China is a signatory but not 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.
There is no regional human rights treaty to which China can become a state party.
By virtue of the Bill of Rights Ordinance and Article 39 of the Basic Law, the ICCPR is in force in Hong Kong. Any legislation inconsistent with the Basic Law can be set aside by the courts in Hong Kong.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 35 of the 1982 Constitution of the People's Republic of China (as amended through 2018) provides that: "Citizens of the People's Republic of China enjoy freedom of ... assembly, ... of procession, and of demonstration."
Article 27 of Chapter III of the Basic Law stipulates that: "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration".
In Mainland China, the 1989 Assemblies, Processions, and Demonstrations Law (as amended) is the primary legislation governing assemblies. The term "assembly" used in the Law means an activity in which people gather at a public place in the open air to express views or aspirations.
Article 7 of the Law stipulates that: “for the holding of an assembly, a procession or a demonstration, application must be made to and permission obtained from the competent authorities in accordance with the provisions of this Law.” Article 8 then requires that an application for permission to assemble must be made at least five days in advance:
There must be a person or persons responsible for the holding of an assembly, a procession or a demonstration. For the holding of an assembly, a procession or a demonstration for which an application has to be made under this Law, the responsible person(s) must submit an application in writing to the competent authorities five days prior to the date of the activity. The application shall specify the purposes of the assembly, procession or demonstration, how it is going to be conducted, the posters and slogans to be used, the number of participants, the number of vehicles, the specifications and quantities of the sound facilities to be used, the starting and finishing time, the places (including places where the participants assemble and disperse), the route, and the name(s), occupation(s) and address(es) of the person(s) responsible for the assembly, procession or demonstration.
It is further provided that: “No citizens shall, in a city other than his place of residence, start, organize or participate in an assembly, a procession or a demonstration of local citizens”Art. 15, 1989 Assemblies, Processions, and Demonstrations Law (as amended).and foreigners in the territory of China "may not, without approval by the competent authorities, participate in an assembly, a procession or a demonstration held by Chinese citizens”.Art. 34, 1989 Assemblies, Processions, and Demonstrations Law (as amended).
Article 23 provides as follows:
No assembly, procession or demonstration shall be held within a peripheral distance of 10-300 metres from the following places: (1) premises of the Standing Committee of the National People’s Congress, the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate; (2) places where state guests are staying; (3) important military installations; and (4) air harbors, railway stations and ports.
The 1967 Public Order Ordinance (as amended) is the primary legislation in Hong Kong governing public assemblies.
The Public Order Ordinance requires advance notification for public processions and public meetings. Seven days' notice of an intention to hold a public procession (other than for the purposes of a funeral) or a public meeting must be given to the Commissioner of Police.Ss.13A(1)(b) and 8(1), Public Order Ordinance.The Commissioner has the discretion to accept shorter notice but he must accept shorter notice where he is reasonably satisfied that prior notice could not have been given. An example is a spontaneous protest by dismissed employees where a business has suddenly closed down and earlier notice could not have been practicably given. There is no statutory minimum notice in the law.
Under the 1997 amended law, the government in Hong Kong has the power to prohibit a public meeting or procession on the grounds of "national security" and "the protection of the rights and freedoms of others". This is in addition to the already existing grounds for prohibition under the law of "public safety" and "public order".
In early October 2019, the Hong Kong government invoked the Emergency Regulations Ordinance (ERO) to implement a law prohibiting the wearing of masks during protests. The law will ban protesters from covering their faces in full or partially during protests. Anyone who wears mask at lawful rallies and marches, unlawful or unauthorised assemblies, or at riots could be sentenced to a year in jail and a fine of HK$25,000. Exemptions include those wearing masks at protests for professional or paid work, or for religious or medical reasons.
Shortly after the announcement of the ban on wearing of masks, two protesters filed an application to the High Court in Hong Kong to ask for an injunction on the basis that the mask ban would constitute “disproportionate interference” with the right to peaceful assembly. In his decision, Justice Lam allowed the ban to proceed on the grounds that the city was facing a “dire situation” of escalating violence. In late November 2019, the High Court first overturned the ban and then suspended the application of its judgment for seven days.
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.
The People’s Police Law (as amended in 2012) contains several articles governing the use of force by police officers. According to Article 8:
If a person seriously endangers public order or constitutes a threat to public security, the people's policemen of public security organs may forcibly take him away from the scene, detain him in accordance with law, or take other measures as provided by law.
The People’s Police Law gives police officers the right to disperse assemblies "and forcibly take away from the scene or immediately detain persons who refuse to obey".Art. 17, People’s Police Law of the People's Republic of China (as amended in 2012).The management of assemblies is also regulated by the Law on Assemblies, Processions and Demonstrations (as amended in 2009).See also the Regulation on the Implementation of the Law of the People's Republic of China on Assemblies, Processions and Demonstrations, adopted by the State Council (as amended in 2011).Article 27(3) of the Law authorises police officers to forcibly take away and detain those who refuse to dismiss an assembly, a procession or a demonstration and those who cross the established temporary security lines or enter a certain peripheral prohibited space in an emergency. In using force, however, police officers may not:
- extort a confession by torture or subject criminals to corporal punishment or maltreat them
- unlawfully deprive other people of, or restrict, their freedom of the person, or illegally search a person, his or her belongings, residence or place
- assault another or instigate others to do so.Art. 22, People’s Police Law of the People's Republic of China (as amended in 2012).
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.
With respect to firearms, Article 10 of the People’s Police Law allows police officers, "in accordance with the relevant regulations of the State, [to] use arms in case of emergencies such as resisting arrest, rebellion, escaping from prison, grabbing firearms or other acts of violence". This is more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
China is not a state party to the ICCPR.
In August 2019, amid the ongoing protests, the Spokesperson for the UN High Commissioner for Human Rights issued a statement addressing police use of force, which included the following:
The UN Human Rights Office has reviewed credible evidence of law enforcement officials employing less-lethal weapons in ways that are prohibited by international norms and standards. For example, officials can be seen firing tear gas canisters into crowded, enclosed areas and directly at individual protesters on multiple occasions, creating a considerable risk of death or serious injury. The Office would urge the Hong Kong SAR authorities to investigate these incidents immediately, to ensure security personnel comply with the rules of engagement, and where necessary, amend the rules of engagement for law enforcement officials in response to protests where these may not conform with international standards.
In its 2013 Concluding Observations on the situation in Hong Kong, the Human Rights Committee expressed its concern about
the application in practice of certain terms contained in the Public Order Ordinance, inter alia, “disorder in public places” or “unlawful assembly”, which may facilitate excessive restriction to the Covenant rights ...
the increasing number of arrests of, and prosecutions against, demonstrators, and (c) the use of camera and video-recording by police during demonstrations....
The Committee also expressed concern
about reports of excessive use of force by members of the police force, not compatible with the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials, in particular by the inappropriate use of pepper spray to break up demonstrations to restore order, notably with regard to demonstrations surrounding the annual Hong Kong march on 1 July 2011, the visits of Vice-Premier and President of China,, respectively in August 2011 and July 2012.... Hong Kong, China, should increase its efforts to provide training to the police with regard to the principle of proportionality when using force, taking due account of the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials.
Recent events in Hong Kong have raised huge international concern. In June 2019, dozens of people in Hong Kong said they were injured by the police during mass demonstrations against a contentious bill that would allow extraditions to mainland China. By mid-July 2019, protests were occurring against a range of Government policies.
Views of Civil Society
With respect to the protests in Hong Kong, Amnesty International reported that:
From late afternoon into the night on 12 June, the largely peaceful protesters faced an onslaught of tear gas, guns firing rubber bullets, pepper spray and baton charges from police to disperse the demonstration near government headquarters. These unlawful police actions posed a serious risk of severe injury, or even death, to protesters.