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The COVID-19 pandemic has not only affected human health and life in the region. In many countries, State restrictions in response to the pandemic focused on curtailing the freedoms of expression and association, public assembly, and other central tenets of democracy. While some emergency measures may be legitimate under the American Convention as a means of dealing with this calamity, others were clearly abusive and aimed at blunting or preventing renewed cycles of protest. These restrictions came at a particularly turbulent time in the region, with citizens’ movements taking to the streets over the past two years to raise their voices against structural inequality or corruption, or to defend democracy itself.
Social protest is an essential element for the existence and consolidation of democratic societies and is protected by a constellation of rights and freedoms that the inter-American system guarantees, both in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. Indeed, the rights to freedom of expression, peaceful assembly, and association guarantee and protect various forms—individual and collective—of publicly expressing opinions and dissent, demanding social, cultural, and environmental rights, defending democracy, and affirming the identity of groups that have historically faced discrimination.
Under the instruments of the inter-American system, the joint exercise of these fundamental rights makes a free, democratic society possible. The States of the region, far from having reached a political and legal consensus on the protection of demonstrations and protests, have generally been inclined to stigmatize the groups that express their grievances through these rights and have instead prioritized repression and the limitation of public space. This stems from a deep-rooted notion that citizen mobilization is a disturbance to public order or a threat to the stability of the government.
In recent years the Inter-American Commission on Human Rights (IACHR) and its Office of the Special Rapporteur for Freedom of Expression have paid special attention to this issue, in order to contribute to a better understanding of the State’s obligations to guarantee, protect, and facilitate public protests and demonstrations, as well as to enhance the standards that should be used to identify acts of violence that are incompatible with protest. The IACHR approached this strategic decision through the powers granted to it by the inter-American instruments, both in the case system and by monitoring the situation and preparing its recent report on Protest and Human Rights. Recent decisions of the Inter-American Court have also incorporated these standards.
Thus, dialogue is the first obligation of States when facing a cycle of protests and the use of force is the last resort. In that case, force must be strictly necessary and guided by the progressive and appropriate use of non-lethal deterrents.
It is not a question, as some actors have suggested, of enabling destabilization or chaos. The inter-American system recognizes that in different circumstances protests cause disruption and affect the normal course of other activities and individual rights, but that does not make these forms of expression illegitimate per se, nor does it authorize their indiscriminate repression. An assessment of protest must begin with the assumption that it concerns individual as well as collective rights and has the function of channeling and amplifying the demands, aspirations, and grievances of different population groups, including sectors that—due to their exclusion, subordination, or vulnerability—cannot readily access institutional mediation or express their demands in the traditional media.
Indeed, the situation that leads to a protest is often aggravated when the authorities, rather than channeling grievances through mediation—however difficult this may be—choose the path of violent repression and involve the police forces or, more seriously, the military, which is prohibited under international instruments.
Along these lines, the abovementioned report contains some important definitions. It stresses that demonstrators have the freedom to choose the mode, form, place, and message of peaceful protest and that States have the obligation to manage social conflict through dialogue. To this end, States must bear in mind that the American Convention allows for lawful restrictions on demonstrations and protests only in exceptional circumstances. The report also addresses the growing importance of the internet in organizing and carrying out different types of protests, as well as the role of journalists and the media in making protesters’ demands heard and ensuring transparency in the State’s actions.
These standards, together with the substantive contributions of the universal system—through the reports of the UN Rapporteurs on the rights to freedom of peaceful assembly and association and on freedom of opinion and expression—serve as a guide for lawmakers who are called upon to discuss appropriate legal frameworks, as well as for justice authorities who must adjudicate protest-related matters. At the same time, it is an essential reference for the law enforcement agencies that have the obligation to protect and manage the staging of demonstrations and protests.
*Former IACHR Rapporteur for Freedom of Expression