The International Human Rights Framework on the Right of Peaceful Assembly

Nauru is not a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 21 of which governs the right of peaceful assembly. 

The right of peaceful assembly is, though, a fundamental human right that is part of the corpus of customary international law. It is also a general principle of law.See Art. 38(1), 1945 Statute of the International Court of Justice.

There is not yet a regional human rights treaty to which Pacific nations can adhere despite discussions going back decades as to the possibility of establishing a regional mechanism.

The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

Section 13(1) of the 1968 Constitution of Nauru provides that: "Persons have the right to assemble and associate peaceably".

National Legislation

The 2015 Nauru Police Force (Amendment) Act governs procedures for public assemblies in Nauru. According to Section 24A

(1) Any person or organisation who wishes to organise a procession or assembly or to associate peaceably in a group of 3 or more persons in a public place must first apply to the Commissioner of Police and unless the Commissioner is satisfied for good reason that such a procession or assembly is unlikely to prejudice the maintenance of defence, public order, public safety, public morality or public health, he shall issue a permit ...

Under subsection 2 of the provision, the application must be made seven working days in advance. Subsection 4 authorises "any police officer to stop and detain any person or organisation whom he sees doing any act for which a permit is required under the provisions of this section". The provision further stipulates:

(6) Any procession or assembly convened or taking place for which no permit has been issued under subsection (1), or which contravenes any of the conditions specified in such permit shall be deemed to be an unlawful assembly under this Act and any other applicable law.

(7) Any person or organisation found to be breaching the provisions of this section commits an offence and is liable upon conviction to imprisonment for 2 years or a fine of $3,000 or both.

(8) Should there be a conflict between this section of the Act and any other law of Nauru, this section shall take precedence.

Section 244(1) of Part 13 of the 2016 Crimes Act provides that a person commits an offence if:

(a) the person and 2 or more other people are present together (an "assembly") for a common purpose; and
(b) the conduct of the assembly, taken as a whole, would cause a reasonable person in the vicinity to fear that the assembly would:
(i) use unlawful violence against people or property; or
(ii) provoke others to use unlawful violence against people or property.

The penalty for this offence is one year's imprisonment.

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

Section 42A(1) of Part II(A) of the 2016 Crimes Act makes it lawful for a police officer who witnesses an unlawful assembly to arrest any person the officer:

(a) finds taking part in the unlawful assembly; or
(b) believes on reasonable grounds to be about to join in or renew the unlawful assembly.

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

There is not believed to be specific legislation governing police use of firearms during assemblies.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

Nauru is not a state party to the ICCPR.

In the 2015 Universal Periodic Review of Nauru under the UN Human Rights Council, the UN country team proposed an amendment to the Nauru Criminal Code, which imposes unreasonable restrictions on the assembly of three or more persons and severe penalties. It further encouraged the withdrawal of the excessive restrictions placed on the location and time of planned protests.

Views of Civil Society

According to Freedom House's 2019 report on Nauru:

The constitution upholds the right to assemble peacefully, but this right has not always been respected in practice. Demonstrations related to the treatment of asylum seekers housed at the Australian processing center are often repressed. Legal proceedings against the Nauru 19 group of antigovernment protesters continued into 2018, and while they were eventually stayed in September, three defendants who had pleaded guilty were serving sentences at year’s end.

Downloads

1968 Constitution of Nauru - Download (154 KB)
Nauru Police Force (Amendment) Act 2015 - Download (233 KB)
2011 Criminal Code - Download (1 MB)
2016 Crimes Act - Download (2 MB)