A. Distinguishing ‘Assembly’ from ‘Protest’ and ‘Demonstration’

The terms ‘protest’ and ‘demonstration’ do not feature in the text of international human rights treaties.Footnote ³⁷ As such, they highlight the overlapping nature of the rights of expression and assembly, but obscure rather than illuminate the distinctive value of each. The term ‘protest’ suggests a declarative element (with oppositional or transgressive connotations) absent from the more anodyne term ‘assembly’.Footnote ³⁸ Arguably, ‘demonstration’ lies somewhere between ‘assembly’ and ‘protest’. Its ordinary usage places it closer to ‘protest’ since to demonstrate something necessarily entails a communicative element that (as argued in ‘B’ below) may be absent from an assembly.Footnote ³⁹ One might also demonstrate something without doing so in protest.Footnote ⁴⁰

While assemblies can be a form of protest,Footnote ⁴¹ many assemblies are not (an assembly may, for example, be celebratory, ceremonial or commemorative). Conversely, many protests do not take the form of an assembly (consider, for example, boycotts, petitions or acts of self-immolation). While ‘pickets’ as a form of strike action are a type of assembly (and deserve protection as such), industrial action and strikes involving the withholding of labour need not involve assemblies. The Human Rights Committee has considered cases involving the submission of letters of protest under Article 19Footnote ⁴² and suggested that hunger strikes could potentially engage Article 19.Footnote ⁴³ Indeed, Michael O'Flaherty notes that the first draft of General Comment No 34 expressly sought to include within the scope of Article 19 the ‘choice of clothing or the wearing or carrying of a religious or other symbol, and a hunger strike’.Footnote ⁴⁴ More extensively, Strasbourg Article 10 jurisprudence is littered with protest actions, considered by the Court through the lens of freedom of expression.Footnote ⁴⁵

B. Distinguishing ‘Assembly’ from ‘Expression’

While distinguishing ‘protest’ from ‘assembly’ might be relatively straightforward, it is much more difficult to disentangle ‘assembly’ from ‘expression’. The Human Rights Committee has emphasised the interdependence of expression and assemblyFootnote ⁴⁶ and has found concurrent violations of the right to freedom of expression (Article 19) and the right to freedom of peaceful assembly (Article 21) in more than 30 cases.Footnote ⁴⁷ Assemblies are frequently expressive and an assembly might even surpass ‘mere speech’ on its own terms, providing a potent communicative tool that serves to demonstrate intensity of support.Footnote ⁴⁸ However, while the Committee has occasionally explained why Article 19 is additionally engaged on the facts of a particular case,Footnote ⁴⁹ there remains a need to explain both the interrelationship between Articles 19 and 21 and the distinctive ambit of the latter.Footnote ⁵⁰

The seemingly umbilical attachment of ‘assembly’ to ‘speech’Footnote ⁵¹ was raised in the dissenting opinion of Committee member, Mr Herndl, in Kivenmaa v Finland (1994)Footnote ⁵² properly recognising ‘the intimate and somewhat complex relationship between Articles 19 and 21’. However, the dissenting opinion then cites John Humphrey (the Canadian jurist responsible for drafting the initial text of the Universal Declaration of Human Rights) to argue that: ‘[t]he right of peaceful assembly would seem to be just one facet of the more general right to freedom of expression’.Footnote ⁵³ In a similar vein, despite emphasising the particular democratic functions of assemblies, Manfred Nowak has suggested that for the right of assembly to be engaged, information or ideas should be ‘directed at the public’ and so the right of assembly is to be ‘understood as a special, institutional form of freedom of expression conditioned by its specific, democratic meaning’.Footnote ⁵⁴

Yet we ought to be able to explain what is unique about assembly without falling back on its purported expressiveness. It might be thought that assembly could be distinguished from expression by emphasising either (a) the collective nature of assemblies, (b) the presence or visibility of participants, or (c) the difference between speech and action/conduct. However, as the following discussion illustrates, none of these tests yields a reliable principle of distinction (and they highlight instead further points of convergence between the two rights).

The Strasbourg Court has sought to distinguish assembly from speech on the basis that participants are not merely expressing an opinion but doing so together with others.Footnote ⁵⁵ The presence of a multitude is certainly a necessary condition for an assembly (see further the discussion of single-person protests in section IV(A) below)—and crowd size is undoubtedly often important to those who are assembled.Footnote ⁵⁶ As Tilly has argued, disciplined assemblies are a form of ‘WUNC’ display—aimed at signalling collective ‘Worthiness’, ‘Unity’, ‘Numbers’ and ‘Commitment’.Footnote ⁵⁷ A focus on numbers, however, serves only to underscore the interconnection between speech and assembly, casting the latter as a form of ‘speech plus’, rather than illuminating its autonomous sphere.

An emphasis on the physical presence of assemblies also fails to sufficiently distinguish assembly from speech. For one, assemblies may take place in private spaces (section IV(D) below). Moreover, speech routinely occurs in publicFootnote ⁵⁸ and speakers may also speak merely by virtue of their presence.Footnote ⁵⁹ While it is suggested here that an assembled presence does not invariably entail speech,Footnote ⁶⁰ as Salát notes, even in relation to meetings that do not primarily aim at expression, State intervention will generally ‘relate at least to potential expression of group identity through shared activity’.Footnote ⁶¹

Efforts to distinguish speech from action have faltered similarly. Thomas Emerson, in his attempt to elucidate a ‘comprehensive and effective theory’ of the US First Amendment, distinguished between ‘expression’ (deserving of full protection) and ‘action’ or ‘conduct’ (that may legitimately be abridged).Footnote ⁶² However, despite its apparent resonance with the boundary between ‘expression’ and ‘assembly’, Emerson's expression–action dichotomy had an entirely different aimFootnote ⁶³—namely, to fully protect non-coercive (or peaceful) expression (which, on his account, includes nonverbal assembly) while allowing for the regulation of coercive (or non-peaceful) conduct.Footnote ⁶⁴ Indeed, Emerson's sweeping classification of ‘action’ includes many forms of assembly that are offered some level of protection in international human rights law. On his view, ‘action’ included sit-ins, lie-ins, and chain-ins ‘in which the physical occupation of territory is used as a form of pressure’, ‘the obstruction of traffic, or obstruction of ingress or egress, when undertaken for the purpose of physical interference’, ‘[d]isruption of a meeting by moving about or making noise’ and the ‘wearing of masks or uniforms under circumstances implying the use of force or violence’.Footnote ⁶⁵ So notwithstanding the initial appeal of Emerson's theory, we must look elsewhere to delineate the boundary between assembly and expression.

It has been argued that numerosity, presence and action each fail to yield a defensible distinction between speech and assembly. Instead, the point of departure involves gatherings that neither entail any locutionary act nor have any perlocutionary effect,Footnote ⁶⁶ or at least, where any expressive component is entirely incidental to the gathering itself. In this regard, the right of peaceful assembly protects a range of relational interests quite apart from those deriving from speech. This is not a novel position: writing more than 40 years ago, C Edwin Baker articulated the same argument:

More recently, Inazu has argued that ‘something is lost when assembly is dichotomously construed as either a moment of expression (when it is viewed as speech) or an expressionless group (when it is viewed as association)’.Footnote ⁶⁸ Similarly, Bhagwat has critiqued ‘the pernicious idea that groups deserve protection only to the extent that they are expressive’.Footnote ⁶⁹ The key insight is that the communicative function of an assembly (if indeed there is one) may be secondary to its social and relational value—and it is here that the autonomous sphere of assembly begins to come into view. Just as it does so, however, the very same underlying value attests to the interconnection between assembly and association.

C. Distinguishing ‘Assembly’ from ‘Association’

At a conceptual level, as with expression, there is an evanescent boundary between the rights of assembly and of association, depending in part on organisational form and structure (or lack thereof).Footnote ⁷⁰ While associations can be expressive,Footnote ⁷¹ as Tabatha Abu El-Haj notes, the essential characteristic of an association meriting protection is less its message than ‘the nature of the relationships within it and the ways in which they are organized’.Footnote ⁷² Associations protect the antecedent relations and structures that make political participation possible—valuing ‘participation as conduct, not just as voice’,Footnote ⁷³ and associations as ‘incubators of relationships’ not just ‘incubators of ideas’.Footnote ⁷⁴ What separates assembly from expression may in turn be precisely what links assembly with association.

The right of association in international human rights law has generally centred on the right to form a voluntary associationFootnote ⁷⁵ —‘establishing a legal entity in order to act collectively in a field of mutual interest’Footnote ⁷⁶ such as Trade Unions,Footnote ⁷⁷ political parties or associations formed for other purposes.Footnote ⁷⁸ The association jurisprudence focuses on barriers to such activity—onerous conditions of registration, refusals to register an association (and related consequences),Footnote ⁷⁹ and transparency requirements pertaining to funding and expenditure.Footnote ⁸⁰ One might be tempted to think of association as the passive, and assembly as the active, component of group activity—but this overstates the link between the two since many assemblies have no formal associational impetus or effect.

The rights of assembly and association together underpin the interactions crucial to stimulating and affirming nascent group identities.Footnote ⁸¹ Both rights are essential to civil society, enabling individuals to integrate and pursue common objectives,Footnote ⁸² potentially also facilitating pre-figurative practices that envision new forms of political morality.Footnote ⁸³ Like assembly, the right of association has been recognised as a prerequisite for dissenting groups,Footnote ⁸⁴ and associations are, as Judith Butler has said of assembly, ‘a precondition of politics itself’.Footnote ⁸⁵

However, having sought to cut the cord between assembly and speech, the risk is that we instead tether assembly to association. Making the conjoined case most starkly, C Edwin Baker has argued that ‘[i]n essence, an association is merely an assembly dispersed over time and space’, adding that:

Baker (like other US scholars) was writing in the specific context of a constitutional framework containing no textual guarantee of the right of association.Footnote ⁸⁷ When viewed from this perspective (given the precarious protection for group activity), Baker's emphasis on the interconnection between assembly and association is unsurprising—it underpins his broader argument that the right of assembly in the First Amendment provides ‘the logical basis of the right of association’. However, it clearly draws us further still from identifying the autonomous sphere of assembly.

In considering Baker's reference to the extended temporal span of associations (‘dispersed over time’) versus the generally short-term nature of assemblies, it is worth considering whether assembly could plausibly be distinguished from association by defining assembly as ‘temporary’.Footnote ⁸⁸ However, the notion of temporariness is inherently imprecise. More insidiously, the reference to ‘temporary’ has provided governments with the pretext for premature intervention, raising questions of whether protracted sit-ins or semi-permanent encampments actually fall within the protective scope of Article 21.Footnote ⁸⁹ Long-term assemblies ought to be afforded protection in principle—the relative permanence of a protest camp has, for example, been argued to be a ‘constant reminder to those in power’.Footnote ⁹⁰ Given too that associations can be short-lived and assemblies can last for years,Footnote ⁹¹ it is suggested that ‘temporariness’ should not be regarded as a distinctive (still less, definitive) characteristic of ‘assembly’.Footnote ⁹² Despite the fact that assemblies may often be temporary and associations more long-term, measures of duration fail to reliably separate assembly from association.

Alternatively, we might conceive of the right of peaceful ‘assembly’ as relating to the holding of spatially bounded events and ‘association’ as pertaining more generally to the organisational activities of groups.Footnote ⁹³ This flags a further parallel between the two rights: the organisation of assemblies often involves decisions to include or exclude particular participants, similar to the decisions that characterise the right of association.Footnote ⁹⁴ In this regard, the Human Rights Committee has stated that ‘[t]he organizers of an assembly generally have the right to choose whom they wish to invite to participate …’,Footnote ⁹⁵ an assertion that broadly echoes the US Supreme Court judgment in Hurley and South Boston Allied War Veterans Council v Irish-American Gay, Lesbian and Bisexual Group of Boston.Footnote ⁹⁶ However, the court in Hurley overlooked a critical dimension of what it means to be excluded from an ‘assembly’Footnote ⁹⁷—one which also helps more clearly draw a line between assembly and association—namely, the profound role of space and place in the construction of identity.Footnote ⁹⁸

Just as places ‘are laden with meanings that tend to create and reinforce relations of domination and subordination’,Footnote ⁹⁹ so too their regulation serves to spatially reproduce relations of power. As Timothy Zick has noted, ‘[w]hen connections to place are severed or restricted, people may experience the condition or state of “placelessness”’.Footnote ¹⁰⁰ The fundamentally spatial nature of assemblies renders them at once a tool of entrenchment and resistance—capable of both inscribing territorial boundaries that reify given social relationsFootnote ¹⁰¹ and mobilising transgressive demands that challenge exclusive claims of possession, access and use.Footnote ¹⁰²

To summarise the argument thus far, the right of assembly protects relational bonds quite apart from any communicative purpose that an assembly may (or may not) have, and the inherently spatial nature of gatherings helps sharpen the line between assembly and association. This argument evinces a degree of circularity, coming close to suggesting that the associational dimensions of ‘assembly’ are what distinguishes ‘assembly’ from ‘expression’, while the (often profoundly expressive) spatial boundedness of assemblies helps differentiate ‘assembly’ from ‘association’. Recognising, however, that the right of peaceful assembly will often be shadowed by the rights of expression and association does not preclude the definition of ‘assembly’ for the purposes of delineating its protective scope. The remainder of this article therefore turns to explore how the convergence of these relational and spatial dimensions might best be reflected in a protective definition of ‘assembly’.

A. Numerosity and Single-Person Protests

Article 21 does not follow the conventional formulation (found in both Articles 19(2) and 22 ICCPR, and indeed, the assembly right under Article 20 UDHR) that ‘[e]veryone shall have the right to freedom of [X]’. Instead, Article 21 asserts that ‘[t]he right of peaceful assembly shall be recognized’—wording that appears originally to have been proposed on natural law grounds (on the basis that the role of States parties was merely to recognise rather than confer this inalienable right).Footnote ¹²⁰ Nowak notes that René Cassin, the French delegate to the Human Rights Commission, further argued that the phrasing ‘Everyone shall have the right …’ could not be used because more than one person is needed for an assembly.Footnote ¹²¹ As draft General Comment No 37 properly emphasises, however, ‘the right of peaceful assembly constitutes an individual right that is exercised collectively’.Footnote ¹²²

In order for a gathering to be recognised and thus protected as an assembly, we might ask whether a straightforward numerical threshold (such as ‘more than one’ or ‘two or more’ individuals) would suffice to determine whether the right of peaceful assembly is engaged. The definitions of both the ACHPR and the UN Special Rapporteur omit any reference to ‘persons’ (Human Rights Committee), ‘several persons’ (Nowak) or ‘number of individuals’ (OSCE/ODIHR)—perhaps on the basis that this is tautologous, already captured by the word ‘gathering’—but such additional emphasis might helpfully underscore the distinction between ‘assembly’ and single-person protests.

In this regard, State authorities have sometimes argued that a lone protester, or even the conjoined actions of a small number of protesters, necessarily constitute a notifiable assembly (thereby rendering them potentially liable for failure to follow the requisite procedure).Footnote ¹²³ While the Strasbourg Court has examined solo-demonstrations under Article 10 ECHR (expression), taking into account the general principles established in the context of Article 11 (assembly),Footnote ¹²⁴ the approach of the UN Human Rights Committee has not been so consistent. The Committee has distinguished from an assembly the act of a single individual peacefully conveying a message,Footnote ¹²⁵ and in seven cases, assembly claims under Article 21 ICCPR have been declared inadmissible on the basis that only a single individual was involved.Footnote ¹²⁶ However, in two single-person-protest cases, Article 21 claims were deemed admissible, only for the Committee then to decide not to examine them further (in light of the finding of a violation of Article 19).Footnote ¹²⁷ More critically, in three further cases, the Committee found a violation of Article 21 in relation to single-person pickets.Footnote ¹²⁸

It is argued here that single-person protests should be considered under Article 19 ICCPR, taking into account any relevant principles deriving from Article 21. However, this seemingly straightforward position becomes more difficult to implement where a lone protester is joined by others. Questions then arise as to the circumstances in which two (or more) individuals should be counted as the sum of their actions—as a ‘combination’ rather than ‘mere aggregation’Footnote ¹²⁹—so as primarily to engage Article 21. Two responses to this conundrum are suggested.

First, we can quickly dispense of any argument that an assembly might be constituted (or the numerical threshold met) by virtue of a gathered audience.Footnote ¹³⁰ On this point, the European Court of Human Rights has rightly stated, ‘a solo demonstration should not be classified as an assembly merely because it attracted attention from the public’.Footnote ¹³¹

Second, in deciding whether or not the right of peaceful assembly is engaged, each gathering must be assessed on its own facts. Here, a range of factors may be relevant—including the spatial proximity of participants, temporal synchronicity of individual actions, unity of purpose, degree of logistical coordination and participants’ intention to gather with others (on which, see further subsection C below). As such, while multiple lone and uncoordinated protests addressing disparate issues might still conceivably be considered as separate acts of expression, other combinations of individuals—whether spontaneous or planned—ought to obtain protection as assemblies under the aegis of Article 21. This (protective) argument holds even if the form of assembly is deliberately chosen to circumvent domestic notification requirements or laws prohibiting small gatheringsFootnote ¹³² or to swamp the authorities with individual notifications.Footnote ¹³³ On this basis, gatherings such as the silent stand protests in Egypt in 2010Footnote ¹³⁴ and the ‘standing man’ protests in Turkey in June 2013 would qualify as assemblies despite their framing as spontaneous individual ‘stands’ against police violence.Footnote ¹³⁵ So too would collective hand-clapping from either doorsteps or balconies in support of health workers during the COVID-19 pandemic (and notwithstanding regulations to enforce physical distancing).

B. Participation and Non-Participation

Questions about the nature of individual participation in a collective enterprise—who may participate, and how they do so—are highly relevant to mapping the scope of the right of peaceful assembly (and thus, to determining whether, on the facts of a given case, the right is engaged).

It is worth noting that the Human Rights Committee in its Concluding Observations has repeatedly emphasised that the right to freedom of peaceful assembly can be exercised not only by ‘citizens’,Footnote ¹³⁶ but also by non-citizens (including migrant workers,Footnote ¹³⁷ and refugees and asylum-seekers).Footnote ¹³⁸ This goes some way also to recognising that freedom of assembly is often of critical importance to groups most at risk.Footnote ¹³⁹ The Convention on the Rights of the Child additionally makes clear that ‘States Parties should recognize’ the right of the child to freedom of peaceful assembly.Footnote ¹⁴⁰

In addition to the question of who may participate, there are a range of roles—undertaken by both assembly participants and non-participants—that might properly fall within the scope of ‘assembly’ and thus engage Article 21. As Nowak argues, the Article 21 right also ‘covers both the preparing and conducting of an assembly by its organizers and the right to participate in it’.Footnote ¹⁴¹ Particular consideration here is given to those who have a role in (1) organizing and planning, (2) publicizing and promoting, and (3) monitoring, observing or reporting on assemblies, as well as (4) prior or subsequent activities that are intrinsic to assembling. These questions may be particularly important in determining the admissibility of claims to be a victim of a violation under Article 1 of the Optional Protocol to the Covenant.

C. Incidental Versus Intentional Gatherings

It was argued in Sections III and IV(A) that the collective nature of an assembly is a necessary, but of itself, insufficient constituent element of a definition of ‘assembly’. As such, some additional purposive requirement might additionally be required to draw a definitional threshold.

Like Nowak, the definitions of the UNSR, OSCE/ODIHR and ACHPR all emphasise intentionality in addition to requiring a further purposive element (respectively, a ‘specific purpose’, a ‘common expressive purpose’ and an ‘expressive purpose’).Footnote ¹⁶⁸ However, notwithstanding an initial proposal by the Human Rights Committee's Rapporteur (Mr Christof Heyns) during the second reading of General Comment No 37 to define assembly as ‘an intentional gathering … principally with an expressive purpose’,Footnote ¹⁶⁹ five members of the Committee expressed reservations about the invocation of ‘intentionality’.Footnote ¹⁷⁰ Following this relatively truncated debate, the Committee decided to excise the word ‘intentional’ from the adopted definition, opting instead to define an assembly simply as a ‘gathering … for a specific purpose, primarily with an expressive goal’.Footnote ¹⁷¹

It is worth highlighting the implications of the Committee's rejection of ‘intentional’ (particularly, if this formulation survives the second reading stage). At its core, the question raised is whether every happenstance gathering of individuals is, ipso facto an ‘assembly’—a question that can usefully be interrogated using the heuristic of a bus stop queue. Such a queue satisfies several elements of Manfred Nowak's definition: it is a gathering of several persons for a specific purpose (ie waiting for a bus). As noted, however, Nowak and others have argued that an assembly must also be intentional: while a bus queue participant might intend to wait for a bus (and this would satisfy the ‘specific purpose’ element) she or he might be entirely agnostic as to whether others join (and so have no intention to assemble). While a bus stop queue would certainly also falter at the more exacting requirement in some definitions of having an ‘expressive’ or ‘common expressive’ purpose, such formulations are problematic, as suggested in section III(B) above, because they unduly tether assembly to expression.Footnote ¹⁷²

In its own Guide to Article 11 ECHR, the European Court of Human Rights emphatically excludes queues from the scope of the term ‘assembly’, characterising a queue to enter a public building as a ‘random agglomeration of individuals each pursuing their own cause’.Footnote ¹⁷³ Instead, the Court argues that ‘[a]ssembly is defined, in particular, by a common purpose of its participants’.Footnote ¹⁷⁴ In like manner, Judge Pinto de Albuquerque, in his concurring opinion in Navalnyy and Yashin v Russia, specifically argued that ‘[t]he incidental meeting of a group of people is not an assembly, even if these people interact for a certain period of time’.Footnote ¹⁷⁵ He suggested instead that an assembly requires ‘the shared intent of its members to pursue a common aim through a common action’.Footnote ¹⁷⁶

That said, there are at least three reasons why one might intuitively favour a definition that extends to entirely coincidental gatherings and each is briefly examined here in turn. It is suggested, however, that none withstands closer scrutiny and so even an inclusive and protective definition of ‘assembly’ (as favoured here) should be more narrowly cabined by insisting on a specific intention to gather.

First, one might query whether there is ultimately any real harm in adopting an all-inclusive protective definition of assembly, one that would comfortably absorb a bus stop queue. After all, there is neither a finite well of protection nor reason to presumptively reject a rights-based claim simply because it falls at the definitional periphery and might be asserted infrequently. The strongest rebuttal of this pragmatic ‘benign absorption’ argument is that it ultimately yields a definition of assembly devoid of descriptive plausibility and might trivialise what has been recognised as a fundamental right:Footnote ¹⁷⁷ By embracing all kinds of incidental group, the substance of the right might lose its normative edge and its key protections be taken less seriously by States. While the principle of de minimis non curat lex (the law does not concern itself with trifles) could provide something of a corrective by precluding judicial consideration of trivial allegations falling below a minimum level of severity—a de minimus threshold fails to rescue the definitional principle at stake (and indeed, fails to provide any guidance as to where precisely the line between trivial and non-trivial assemblies ought to be drawn).

Second, it might appear rather suspect if protection falls short of the very activities vulnerable to undue interference, regulatory or otherwise. Conceivably, those standing at a bus stop might encounter third-party violence or State restriction. Consider, for example, Public Spaces Protection Orders (PSPOs) in the UK, several of which have expressly prohibited loitering at bus stops.Footnote ¹⁷⁸ If individuals gathering at a bus stop (irrespective of intention or any interaction that may have occurred) were to face criminal penalty for breaching such an Order, they may well wish to invoke the protections afforded by Article 21. However, neither the risk of violence nor the possibility of State regulation are sufficient to convert an incidental gathering at a bus stop (or elsewhere) into an ‘assembly’. While the right of peaceful assembly should protect against undue regulation of assemblies, the term ‘assembly’ need not itself be defined mimetically by every interference capable of touching a coincidental gathering of individuals. As such, there is no necessary contradiction in recognising the unfathomable risks posed by third parties to queue participants, or the deleterious breadth of widely framed regulatory powers, while simultaneously adopting a narrower protective definition of ‘assembly’.

If the potential disjuncture between an activity's susceptibility to interference and the scope of protection as an assembly can be rejected as a reason to embrace entirely coincidental gatherings within its fold, we might instead be drawn to a third reason favouring the inclusion of bus stop queues and the like—one that more vividly conveys a sense of the value of ‘assembly’. This third reason emphasises the capacity of assemblies to enable what Michel de Certeau termed the ‘politics of stimulation’, reliant on the possibility of spontaneous interaction.Footnote ¹⁷⁹ As de Certeau himself remarked, such chance encounters, deserving of protection, might occur ‘… at bus stops, in lines in front of administration windows, before the array of goods at market stands … at the exits of schools … at the laundromat or in the café, in all of these familiar and public places that are neither yours or mine, that are made for passing through …’.Footnote ¹⁸⁰ This rationale resonates with Orsolya Salát's argument that ‘standing in a queue as such is not an assembly, but it can easily turn into one, for instance if people outraged by the waiting time start discussing how to handle it or start protesting against it’.Footnote ¹⁸¹

Salát's position has intuitive appeal—but we need to be more precise about what turns a non-assembly queue into an assembly. On Salát's own account, it is not the mere presence of two or more people—rather, the common presence element of her definition implies ‘some link with each other beyond the mere coincidence of being at the same place at the same time’Footnote ¹⁸² and that ‘the link might be some shared activity, emotion, opinion or the like’.Footnote ¹⁸³ Yet the point at which non-verbal activity might elevate a queue (or particular queue participants) into an ‘assembly’ remains elusive. Salát's argument implies that any conversation (or even shared non-verbal reaction) could serve to convert a happenstance gathering into a protected ‘assembly’. Such a conclusion has implications that we may be reluctant to accept—its logic implies that any kind of solidarity (however signalled) could be constitutive of an ‘assembly’.

To resolve the bus stop queue conundrum, it is suggested that instead of mere ‘presence’, a credible definition of ‘assembly’ under Article 21 should exclude entirely coincidental gatherings and require that a gathering be ‘intentional’ (in the sense that participants have a specific intention to gather with others).Footnote ¹⁸⁴ This approach does not deny the importance of de Certeau's politics of stimulation but stops short of classifying every such stimulating interaction as an assembly. Moreover, bus stop queues might sometimes qualify as assemblies. Consider, for example, if bus stops became the last refuge for dissenters in a country where public gatherings involving more than two people were prohibited.Footnote ¹⁸⁵ Where dissenters intentionally congregate at a particular place, they are not merely waiting for a bus (indeed, they might not be waiting for a bus at all), but instead intend to gather. This argument also holds for types of gathering that might ordinarily be coincidental but come to be imbued with meaning (or are deliberately subverted to convey a particular point) when other forms of assembly (demonstrations and marches) are suppressed. Examples might include ‘peace prayers’ in the former German Democratic Republic,Footnote ¹⁸⁶ hand-clapping protests in Belarus,Footnote ¹⁸⁷ walk-to-work protests in UgandaFootnote ¹⁸⁸ and a Saturday ‘stroll’ in Moscow.Footnote ¹⁸⁹

D. Purpose: From Political to Recreational and Commercial Assemblies

The UN Special Rapporteur's definition of ‘assembly’ follows Nowak in using the broad term ‘specific purpose’ (as distinct from the OSCE/ODIHR's preference for ‘common expressive purpose’). Indeed, it is noteworthy that none of the key definitions noted above attempt to limit ‘assembly’ to political or non-commercial events. That said, the November 2019 draft of General Comment No 37 suggested that ‘commercial gatherings would not generally fall within the scope of what is protected by Article 21’ and that such gatherings would be protected ‘only to the extent that they have an expressive purpose’.Footnote ¹⁹⁰

Assemblies are often valued on account of their contribution to political life. Tabatha Abu El-Haj, for example, argues that assemblies are ‘by definition, political experiences’, offering a unique, distinctive form of political participation which ‘strengthen the likelihood of future civic and political engagement’.Footnote ¹⁹¹ ‘Assembling’ she writes ‘is a critically important form of politics because it provides opportunities to strengthen, even create, personal relationships that are likely to encourage additional civic and political participation’.Footnote ¹⁹²

The political role of assemblies should not be underplayed—not merely as an adjunct to representative politics, but as an alternative form of participation: As Eric Barendt has argued, ‘put most radically’, the right of assembly is valuable for active citizens who ‘are unwilling to participate in conventional party politics’. Assemblies serve precisely to challenge ‘the exclusivity of conventional modes of civic activity’.Footnote ¹⁹³ Nonetheless, a narrow and exclusively political conception of assembly not only overlooks gatherings that might be regarded as either pre-political or wholly apolitical, but forecloses the agonistic space, always in the making, within and through which new political constellations may emerge.Footnote ¹⁹⁴ It is not merely that non-political and quotidian gatherings somehow precede the political,Footnote ¹⁹⁵ but that they are valuable in their own right.Footnote ¹⁹⁶ They exist, in Jack Balkin's words, as the ‘infrastructure or substrate’ for political democracy.Footnote ¹⁹⁷ This argument is further strengthened if we accept John Dewey's contention that democracy ‘is more than a form of government; it is primarily a form of associated living, a conjoint communicated experience’.Footnote ¹⁹⁸ On this basis, we ought to resist any straightforward hierarchy that purports to afford heightened protection to ‘political assemblies’ (however construed).Footnote ¹⁹⁹

This point has been recognised by the European Court of Human Rights. While the Court has, on the one hand, emphasised that ‘very strong reasons’ must be advanced to justify restrictions on political speech or serious matters of public interest’ and that the same principle applies to assemblies under Article 11 ECHR—‘public events related to political life in the country or at the local level must enjoy strong protection’Footnote ²⁰⁰—the Court has also noted that it would ‘be an unacceptably narrow interpretation of [Article 11] to confine it only to that kind of assembly’.Footnote ²⁰¹ The Court has therefore acknowledged that the right of peaceful assembly ‘may extend to the protection of an assembly of an essentially social character’.Footnote ²⁰² This recognition chimes with an early draft text of the Universal Declaration on Human Rights which provided that ‘[t]here shall be freedom of peaceful assembly and of association for political, religious, cultural, scientific, professional and other purposes’.Footnote ²⁰³ It is noteworthy too that the UN Committee on the Elimination of Racial Discrimination, in its General Recommendation No. 35 (on Combating racist hate speech) expressly covers ‘behaviour at public gatherings including sporting events’.Footnote ²⁰⁴

The inevitable corollary of a prioritisation of the political is the relegation of non-political assemblies. In particular, this is to the detriment of gatherings that might be considered ‘recreational’Footnote ²⁰⁵ or ‘commercial’.Footnote ²⁰⁶ Recreational and commercially oriented gatherings will often have political dimensions too. Consider, for example, the profoundly political nature of the Olympic GamesFootnote ²⁰⁷ or collective actions inspired by the ‘take a knee’ protest begun by American footballer Colin Kaepernick.Footnote ²⁰⁸ Consider too the commodification of the Berlin Love parade,Footnote ²⁰⁹ or the ways in which Pride events often combine celebration, political advocacy and commercial enterprise (with floats advertising LGBT+ friendly clubs or ticketed headline events).Footnote ²¹⁰ In short, any attempt to create hermetic categories of non-political gathering is fraught with definitional pitfalls.

Ultimately, considerations regarding the political significance of an event may have some purchase when it comes to ascertaining the extent of State obligations or assessing the necessity and proportionality of restrictions. As such, for example, there may legitimately be some defraying of costs to an organiser where an assembly is partly or principally for-profit (such redistribution constituting a restriction that must survive proportionality-based scrutiny). Similarly, with avowedly political assemblies, there might properly be ‘a thumb on the scale’ of such an assembly when weighed against arguments to protect other competing rights—but this is not an argument that is fundamentally about the meaning and scope of ‘assembly’. As noted previously, not all types of protected assembly entail the discharge of the same State obligations.

E. Space and Place

The final definitional element that must be considered is the question of space and place. The uniquely spatial dimensions of assembly were discussed (in section III(C)) to help distinguish assembly from association. Noting the absence of any mention of space or place in Nowak's definition,Footnote ²¹¹ it is important to consider whether the intrinsic spatial characteristics of ‘assembly’ need be expressly articulated (and if so, how best to capture this dimension).Footnote ²¹² To this end, it is worth recalling the different definitional formulations of ‘assembly’ that have already been highlighted—‘private or public space’ in the UN Special Rapporteur's definition, ‘in private or in public’ in the ACHPR's Guidelines, ‘publicly accessible place’ in the OSCE/ODIHR—Venice Commission Guidelines, and the (welcome) inclusive formulation in General Comment No 37 (adopted during the course of its second reading): ‘wherever they may take place: outdoors, indoors and online, and in public and private spaces, or in a combination of these’.Footnote ²¹³

Importantly, the UN Human Rights Committee has already recognised that the right of peaceful assembly ‘… entails the possibility of organizing and participating in peaceful assemblies … including in enclosed premises, open areas or public or private spaces …’.Footnote ²¹⁴ The Article 21 right has been interpreted to confer protection ‘in a public location’,Footnote ²¹⁵ assemblies inside buildings,Footnote ²¹⁶ privately-owned venues,Footnote ²¹⁷ and in places that the State has argued are not intended for assemblies.Footnote ²¹⁸ The Committee has also emphasised in its Concluding Observations that States should make sufficient spaces available for assemblies.Footnote ²¹⁹ These expansive protections are premised on the fact that everything falling within the protective scope of Article 21 may in any case be subject to necessary and proportionate restriction.

Beyond reiterating these already clear statements regarding the scope of Article 21 (particularly, the principle that the right of peaceful assembly extends to private spaces), it is perhaps unclear what gains may accrue from expressly defining the spatial dimensions of assembly. In this regard, at least two further questions are worth addressing briefly in turn: (1) is it beneficial to couch the spatial scope of ‘assembly’ in terms of access rather than ownership—in other words, invoking the phrase ‘publicly accessible’ rather than ‘public and private’ spaces? and (2) should the right of peaceful assembly under Article 21 confer protection upon forms of gathering that occur in online spaces or in the virtual world (rather than merely upon physical, real-world gatherings)?

Some of the definitions of ‘assembly’ previously noted frame the spatial entitlements of those wishing to assemble in terms of property access rather than ownership.Footnote ²²⁰ The difference is important—privately-owned places may to all intents and purposes be public and publicly-owned spaces may not be accessible to the public all of the time (think, for example, of an office in a town hall). Invoking the idea of ‘public accessibility’ thus seeks to recognise legitimate barriers to publicly-owned property not ordinarily accessible while not presumptively excluding assemblies from privately-owned property to which access is routinely granted (including, for example, town centres and garage forecourts).

Decentring questions of ownership in this way may be well-intentioned, but the notion of ‘public accessibility’ fundamentally under-protects the right of peaceful assembly when it purports to define its scope. It implicitly qualifies the more expansive assertion that the right extends to assemblies in all privately-owned spaces (subject to necessary and proportionate restriction) implying instead that it extends only to privately-owned spaces that are ordinarily accessible. Indeed, it prematurely seeks to resolve questions of access that should instead be addressed on a case-by-case basis when scrutinising the necessity and proportionality of restrictions. In this regard, a number of nuanced domestic court judgments illustrate well how assembly rights could be protected against absolutist and exclusionary assertions of property rights.Footnote ²²¹ Moreover, the notion of ‘public accessibility’ defers to and reinforces existing patterns of access and use, offering no normative steer as to what ought to be accessible.Footnote ²²² On this basis, a definition of assembly that leaves open the possibility that assemblies may take place in private spaces is preferable to one that more ambitiously attempts to resolve rights of access at the level of definition.

One could therefore be forgiven for following Nowak and simply saying nothing at all about the intrinsic spatial dimension of assembly. However, there is normative advantage to emphasising, within any definitional formulation, its broad spatial scope. Doing so provides both clarity and iterative weight—and this may be especially important in relation to both private spaces (as above) and the question of whether ‘assembly’ extends to gatherings in online spaces—to which discussion now turns.

The UN Human Rights Council, in two successive resolutions in 2012 and 2013, emphasised the obligation of States ‘to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, online as well as offline’.Footnote ²²³ Subsequently, the UN Special Rapporteurs on freedom of assembly and of association, and on extrajudicial, summary or arbitrary executions, stated in a joint report in 2016 that ‘it has been recognized that human rights protections, including for freedom of assembly, may apply to analogous interactions taking place online’Footnote ²²⁴—phrasing that was echoed in a further UN Human Rights Council Resolution in 2018.Footnote ²²⁵ It is generally accepted that cyberspace contains many forums rather than being a single undifferentiated whole.Footnote ²²⁶ Some such online spaces may be private (with access granted only on request or invitation) while others may be privately-owned but publicly accessible.Footnote ²²⁷ Still others might combine an element of public accessibility with built-in (nested) capacity for private exchanges. Online access is also clearly contingent on privately-owned internet infrastructure and a host of encumbrances mediate and distort the online user experience (from advertising algorithms to interventions by site moderators, and from platform specific rules to the tracking and harvesting of user data). Nonetheless, if we are accustomed to thinking of assemblies rigidly in terms of street demonstrations and parades, conjuring an image of ‘analogous interactions’ online—let alone ‘online assemblies’—might involve quite an imaginative leap. However, if one accepts the elements of the definition of ‘assembly’ arrived at thus far—‘an intentional gathering by two or more people (including in private spaces)’—conceiving of assemblies online is not such a stretch. People intentionally gather with others online all the time (and such practices have been accentuated by the lockdown restrictions introduced in response to the COVID-19 pandemic). Obvious examples include video conferencing, chat rooms and multiplayer online gaming.Footnote ²²⁸ These activities all involve intentional, synchronous coming together (though admittedly, a range of complex questions arise regarding the nature and threshold of participation).

We can sift out many forms of online interaction that are essentially forms of expression. Any collective online activity that primarily involves publishing, disseminating or sharing information might be regarded as primarily expressive. The linking of messages by hashtag is also fundamentally expressive—even if, as Zizi Papacharissi argues, hashtags ‘serve as framing devices that allow crowds to be rendered into publics ….’.Footnote ²²⁹ But, as has been argued, the rights of assembly and expression are not mutually exclusive. The critical task is to identify when ‘assembly’ might additionally or alternatively be engaged—when people intend primarily to gather—to be present—with others, and when any speech is incidental or secondary to such gathering.Footnote ²³⁰

It might be countered that it is precisely the act of ‘gathering’ that cannot be achieved online. In other words, whatever it is that people may do in common online, the physical dislocation of online interaction remains the antithesis of ‘gathering’. The weight attached in Paulo Gerbaudo's work to bodily ‘density’,Footnote ²³¹ in Timothy Zick's conceptualisation of ‘expressive topography’ to the proximity, tactility and physicality of assembling in material public places,Footnote ²³² and in Judith Butler's performative theory of assembly of ‘bodily proximity’ might appear to support such scepticism. However, reflecting more closely on the nature of online space and its interconnection with the physical world suggests that online assemblies (‘by people’ rather than ‘of people’)Footnote ²³³ should also be regarded as embodied gatherings.

Most significantly, our personal, social and professional lives are constituted through and configured by the intersection of the offline and online, physical and virtual. The emergence of a scholarly consensus (bridging the fields of geography, sociology, and law and technology) suggests that such spaces should not be seen as detached from one another, but as fundamentally interwoven. Actions and relations in one orient actions and relations in the other, and this interconnection is not linear or serial but sporadic and parallel. As such, virtual spaces inhere within the physical world. Julie Cohen, for example, rejects understandings of cyberspace as separate space—defined in relation to real space, but existing apart from it—arguing that such a perspective both ‘denies the embodied spatiality of cyberspace users, who are situated in both spaces at once’ and ‘overlooks the complex interplay between real-space geographies of power and their cyberspace equivalents’.Footnote ²³⁴ This emphasis on embodied experiences online suggests a point of alignment with Judith Butler's performative theory of assembly for Butler similarly recognises that ‘the body is not isolated from all those conditions, technologies, and life processes that make it possible’.Footnote ²³⁵

Given our doctrinal concern with the meaning and scope of the term ‘assembly’, the emphasis in this scholarship on the profoundly blended nature of offline and online spaces might lead us to question whether it is even appropriate to insist on ‘analogous’ interactions (for doing so implies a separation). Nonetheless, we can still ask whether gatherings that involve no corporeal presence ought to constitute an ‘assembly’ for the purposes of Article 21. Significantly, this involves a much more modest enquiry than, for example, Gerbaudo's concern about whether online interactions can effectively sustain long-term social movements, or Zick's concern that the emotive quality of assembling in material spaces may simply not be replicable in virtual places.Footnote ²³⁶ One can, without contradiction, admit online assemblies into the Article 21 fold even if sympathetic to Müller's conclusion that ‘assembly in physical space fulfills functions for democracy that online activity, however permanent or passionate, simply cannot’.Footnote ²³⁷

The argument in favour of such an inclusive approach to the meaning of ‘assembly’ is further strengthened by the example of hologram protests.Footnote ²³⁸ In particular, these actions suggest how digital and technological developments might further blur the line between disembodied and embodied gatherings. We might initially think of hologram protests as disembodied simulations, little different from protest ‘installations’ such as the 2012 toy protest staged in Barnaul, Siberia,Footnote ²³⁹ or the 11,000 pairs of shoes placed in the vicinity of the 2015 UN Climate Change Conference (COP21) in Paris.Footnote ²⁴⁰ These of course were not assemblies but acts of expression in lieu of an assembly. Furthermore, it might seem ironic (or self-defeating) to suggest that such hologram protests should be considered as assemblies—in both Madrid and Seoul the point was precisely that these were not real assemblies by real people, but ‘ghost protests’ whose participants lacked rights (including the right to assemble).

Hologram protests, however, defy straightforward categorisation—indeed, they occupy a virtual space that is not online.Footnote ²⁴¹ The digital renderings in Madrid and Seoul were created using professionally recorded (physical) participants in combination with thousands of crowdsourced slogans, photos and videos from around the world.Footnote ²⁴² While we might still side with the view that these are disembodied actions (falling within the ambit of expression but not assembly), as holographic technologies develop, becoming less costly and more widely available, real time holographic protests could realise a shift from the disembodied screening of prior recordings to embodied live projections.

A definition of assembly need not attempt to instantiate a particular vision of what such online assemblies might look like in the future, but any definition should not foreclose the possibility that the parameters of Article 21 might thus be extended, and there is normative purchase in expressly recognising in any definition that assemblies may also occur online.