Tuesday 1 November 2011
The illegality of war: is interventionism ever justified?
In recent days, NATO's intervention in Libya has come to an end. The war is won; Gaddafi is dead, and the new democratic leadership can begin to%20build%20a%20new%20system%20of%20government.%20%0A%0AThe%20Libyan%20intervention%20is%20just%20the%20most%20recent%20in%20a%20long%20line%20of%20military%20incursions%20justified%20on%20the%20grounds%20of%20%22r%C3%A9gime%20change%22%3A%20eight%20years%20ago%20was%20Iraq%3B%20ten%20years%20ago%20was%20Afghanistan.%20So%20do%20States%20have%20a%20right%20to%20intervene%20in%20the%0one%20State/fairs%20of%ene%20in%20the%20affairs%20of%20another%3F%0A%0AI%20think%20not.%20If%20we%20take%20Libya%20as%20an%20example%2C%20the%20justification%2pretty%20simply%3A%20war%20is%20illegal%20unless%20it%20is%20justified%20by%20a%20vote%20of%26nbsp%3BUnited%20rule%20of%20customary%20law.%20In%20Afghanistan%2C%20it%20was%20a%20similar%20affair%2C%20and%20more%20easily%20justified%20on%20the%20grounds%20of%20self-defence%20as%20the%20Taliban%20had%20been%20responsible)%20of%20the%20United%20Nations%20Charter.%0A%0AOne%20of%20the%20cardinal%20principles%20of%20international%20law%20is%20the%20%3Cb%3EPrinciple%20of%20Non-Intervention%3C%2Fb%3E%2C%20which%20means%20that%20no%20state%20is%20justified%20in%20interfering%20in%20the%20affairs%20of%20another%20state%2C%20whether%20they%20be%20political%2C%20cultural%20or%20social%20affairs%3B%20whether%20directly%20through%20an%2s.%0A%0AThat%20case%20was%20in%201986%2C%20and%20since%20then%20we%20have%20seen%20many%20wars%20of%20intervention%20across%20the%20globe.%20Do%20these%20mean%20that%20a%20new%20legal%20right%20has%20been%20createdvoke%20a%20novel%20%22Right%20to%20Intervene%22%20as%20justification%20for%20interventionist%20wars.%0A%0AThat%20case%20was%20in%201986%2C%20and%20since%20then%20we%20have%0for%20NATO's%20intervention%20was%20the%20UN%20Security%20Council's%20support%2C%20rather%20than%20a%20new%20rule%20of%20customary%20law.%20In%20Afghanistan%2C%20it%20was%20a%20simi0the%20affairs%20of%20another%3F%0A%0AI%20think%20not.%20If%20we%20take%20principle%20of%20Non-Intervention%20and%20State%20Sovereignty%20520for%20funding%20Al%20Qaida.%0A%0AIraq%20is%20the%20exception.%20Iraq%20was%20neither%20supported%20by%20the%20UN%20Security%20Council%2C%20nor%20by%20an%20inherent%20right%20of%20self-defence%2C%20nor%20even%20by%20the%20basic%20necessity%20of%20evidence.%20It%20is%20therefore%20very%20easy%20to%20argue%20that%20Iraq%20was%2C%20and%20is%2C%20an%20illegal%20war%3B%20moreover%2C2C%20which%20came%20before%20the%20International%20Court%20of%20Justice%2C%20the%20Court%2C%20while%20upholding%20the%20Principle%20of%20Non-Intervention%2C%20admitted%20that%20a%20new%20rule%20could%20be%20created%20if%20States%20began%20to%20invoke%20a%20novel%20%22Right%20to%20Intervene%22%20as%2in%201986%2C%20and%20since%20then%20we%20have%20seen%20many was%20in%201986%2C%20and%20since%20then%20we%20have%20seen%20many%20wars%20of%20intervention%20across%20the%20globe.%20Do%20these%20mean%20that%20a%20new%20legal%20right%20has%20been%20created%20for%20one%20State%20to%20intervene%20in%20the%20affairs%20of%20another%3F%0A%0AI%20think%20not.%20If%20we%20take%20Libya%20as%20an%20example%2C%20the%20justification%20for%20NATO's%20intervention%20was%20the%20UN%20Security%20Council's%20support%2C%20rather%20than%20a%20new%20rule%20of%20customary%20law.%20In%20Afghanistan%2C%20it%20was%20a%20similar%20affair%2C%20and%20more%20easily%20justified%20on%20the%20grounds%20of%20self-defence%20as%20the%20Taliban%20had%20been%20responsible%20for%20funding%20Al%20Qaida.%0A%0AIraq%20is%20the%20exception.%20Iraq%20was%20neither%20supported%20by%20the%20UN%20Security%20Council%2C%20nor%20by%20an%20inherent%20right%20of%20self-defence%2C%20nor%20even%20by%20the%20basic%20necessity%20of%20evidence.%20It%20is%20therefore%20very%20easy%20to%20argue%20that%20Iraq%20was%2C%20and%20is%2C%20an%20illegal%20war%3B%20moreover%2C%20this%20one%20example%20cannot%20justify%20the%20creation%20of%20a%20new%20Right%20of%20Intervention%2C%20especially%20considering%20that%20most%20of%20the%20world%20(except%20the%20UK)%20came%20out%20in%20outr520not%20perfect.%20While%20its%20prohibition%20of%20war%20except%20for%20self-defence%20and%20except%20where%20authorised%20by%20the%20UN%20is%20not%20perfectly%20followed%2C%20it%20is%20much%20better%20to%20live%is%20much%20better%20at%20keeping%20peace%20in%20the%20world%20than%20would%20be%20a%20Right%20to%20Intervene.%20If%20one%20state%20successfully%20argued%20for%20the%20creation%20of%20such%20a%20new%20right%2C%20it%20would%20not%20only%20be%20allowing%20itself%20to%20invade%20wherever%20it%20likes%2C%20but%20also%20inviting%20the%20invasion%20of%20its%20own%20territory%20by%20other%20nations.%0A%0AMoreover%2C%20as%20observed%20by%20the%20International%20Court%20of%20Justice%2C%20a%20Right%20of%20Intervention%20%22would%20be%20reserved%20for%20the%20most%20powerful%20states%22.%20Geopolitical%20giants%20like%20the%20US%20and%20China%20would%20be%20able%20to%20colonise%20where%20they%20wish%2C%20while%20comparative%20minnows%20like%20El%20Salvador%2C%20Serbia%20and%20the%20Ivory%20Coast%20would%20only%20ever%20find%20themselves%20as%20the%20victims%20of%20intervention.%20%0A%0AInternational%20Law%20is%20not%20perfect.%20While%20its%20prohibition%20of%20war%20except%20for%20self-defence%20and%20except%20where%20authorised%20by%20the%20UN%20is%20not%20perfectly%20followed%2C%20it%20is%20much%20better%20to%20live%20in%20a%20world%20that%20tries%20to%20keep%20international%20peace%20than%20to%20allow%20the%20emergence%20of%20a%20world%20where%20states%20have%20an%20inherent%20right%20to%20invade%20when%20and%20where%20they%20please.
Monday 31 October 2011
Protesting on Private Land: Your Rights
Everyone in Europe has the right to freedom of expression, assembly and association, protected by Articles 9 to 11 of the European Convention on Human Rights. However, the same Convention also protects the right to property (in Article 1 of Protocol 1). There is therefore a difficult issue to be resolved when protestors want to demonstrate on private land but the land-owners want them gone.
This is the situation for the Occupy London protestors at the moment. Indeed, the very future of the camp is under threat: rumours abound of an eviction notice already handed down, and the Corporation of the City of London is seeking long-term legal action which could last until spring next year. It is therefore vital that the protestors know their legal situation if they are to successfully survive the legal assault being brought against them.
Like in any conflict of rights, the two competing claims of protest rights and property rights must be balanced out. How this will be done is unique to each individual case, but the European Court of Human Rights has offered guidance on this issue in the case of Appleby v UK from 2003.
That case differs from the present predicament of Occupy London in several ways. Firstly, it concerns the right to collect signatures for a petition in a privately owned shopping mall, rather than the right to camp outside a privately owned cathedral. Secondly, the mall in question had been built on land originally owned by the State and subsequently sold to a private company; this was central to the protestors' argument, as they claimed that the State was directly responsible for the violation of their rights as it was the State which had sold the land to a private company, leading directly to the interference with the protestors' freedom of expression.
Yet the principles enunciated in the Appleby case will be the same for all cases, including Occupy London. In reaching a judgement, although eventually finding in favour of the privately owned mall, the European Court admitted that, in the right circumstances, there may possibly be a positive obligation on the government to limit property rights in order to allow the exercise of protest rights.
Whether the government has this obligation depends entirely on the facts of the case. In Appleby, the company's property rights trumped the protestors' free expression rights as it was relatively easy for the protestors to go elsewhere and continue their demonstration. If the Occupy London camp could just as easily move elsewhere and continue their protest, then the European Convention of Human Rights may offer very little protection from an eviction order.
The task is always to find a balance between the Occupiers' right to protest and the Cathedral's right to deal with its property as it wishes. It should be noted that the bar was set quite high in interpreting this balance. The Court judged that there would only be a positive obligation on the government to interfere with property rights if "the bar on access to property had the effect of preventing any effective exercise of freedom of expression", and even then this would not justify an "impossible or disproportionate burden" on the authorities. They further emphasised that there was no automatic right to enter private, or even publicly-owned, property.
This puts Occupy London in a difficult position. Unless they can demonstrate that evicting them would effectively end the demonstration as they would have nowhere else to go, it is likely that if the issue came to court, the judges would find in favour of the Cathedral's property rights rather than the Occupiers' protest rights.
However, this would never justify a forceful or violent eviction. International Human Rights Law forbids that, and in European Human Rights Law the authorities would only ever be justified in taking "proportionate" measures to evict- that being, the least violent or intrusive measures required.
This is the situation for the Occupy London protestors at the moment. Indeed, the very future of the camp is under threat: rumours abound of an eviction notice already handed down, and the Corporation of the City of London is seeking long-term legal action which could last until spring next year. It is therefore vital that the protestors know their legal situation if they are to successfully survive the legal assault being brought against them.
Like in any conflict of rights, the two competing claims of protest rights and property rights must be balanced out. How this will be done is unique to each individual case, but the European Court of Human Rights has offered guidance on this issue in the case of Appleby v UK from 2003.
That case differs from the present predicament of Occupy London in several ways. Firstly, it concerns the right to collect signatures for a petition in a privately owned shopping mall, rather than the right to camp outside a privately owned cathedral. Secondly, the mall in question had been built on land originally owned by the State and subsequently sold to a private company; this was central to the protestors' argument, as they claimed that the State was directly responsible for the violation of their rights as it was the State which had sold the land to a private company, leading directly to the interference with the protestors' freedom of expression.
Yet the principles enunciated in the Appleby case will be the same for all cases, including Occupy London. In reaching a judgement, although eventually finding in favour of the privately owned mall, the European Court admitted that, in the right circumstances, there may possibly be a positive obligation on the government to limit property rights in order to allow the exercise of protest rights.
Whether the government has this obligation depends entirely on the facts of the case. In Appleby, the company's property rights trumped the protestors' free expression rights as it was relatively easy for the protestors to go elsewhere and continue their demonstration. If the Occupy London camp could just as easily move elsewhere and continue their protest, then the European Convention of Human Rights may offer very little protection from an eviction order.
The task is always to find a balance between the Occupiers' right to protest and the Cathedral's right to deal with its property as it wishes. It should be noted that the bar was set quite high in interpreting this balance. The Court judged that there would only be a positive obligation on the government to interfere with property rights if "the bar on access to property had the effect of preventing any effective exercise of freedom of expression", and even then this would not justify an "impossible or disproportionate burden" on the authorities. They further emphasised that there was no automatic right to enter private, or even publicly-owned, property.
This puts Occupy London in a difficult position. Unless they can demonstrate that evicting them would effectively end the demonstration as they would have nowhere else to go, it is likely that if the issue came to court, the judges would find in favour of the Cathedral's property rights rather than the Occupiers' protest rights.
However, this would never justify a forceful or violent eviction. International Human Rights Law forbids that, and in European Human Rights Law the authorities would only ever be justified in taking "proportionate" measures to evict- that being, the least violent or intrusive measures required.
Wednesday 19 October 2011
A New Social Contract: The Way Forward for the Occupy Movement?
It is easy to paint the Occupy movement as a negative phenomenon, a collective with a precise idea about what it opposes but absolutely no idea of what to replace it with. This very idea has already surfaced numerous times in the press. Is it a Marxist thing? Anarchist, perhaps? Or just a bunch of trust-fund kids out for a month long street party, ignorant and apathetic of they cause they verbally support?
We need a positive vision of the future if this Occupy thing is going to succeed. In this article I attempt to provide just that.
But before I do, we need to look to the past. The current economic settlement, governed by the ideologies of Free Market Capitalism, can be seen as a sort of Economic Anarchism where anyone can do as they please with no restriction on their freedom. Once, according to some philosophers, mankind used to live like this in Political Anarchism. And then the State was formed. So how did this occur, and why, and can this give us any hint as to how to take the movement forward?
Mankind used to live in the "State of Nature", so the story goes. Every person had absolute freedom to do whatever he, or she, pleased; there was no law, no government, no politics. You could pick anything you wanted from any tree or bush and eat it. You could take any piece of land for your own and live on it. You were king of your own world.
Trouble is, so was everyone else. If you have a world whee everyone has ultimate, complete freedom- the ultimate, complete right to do whatever you want with whoever or whatever you want- then you're bound to get clashes and conflict and war. Why have you picked my apple from my tree? What are you doing, taking that piece of land, when I wanted it? What do you mean I need your consent to do that?
In a world without law, injustice appears. The idyllic "State of Nature" soon becomes an anarchic hell-hole, where the strongest rule and the weak are enslaved. Without the benefit of law and Human Rights to ensure equality, there is no justice except that which comes from the fist of the strong, or the rich, or the powerful.
So to remedy this situation, mankind came together to form the State under what scholars and philosophers call the "Social Contract". Each man limited his rights to protect his rights. Each man promised to respect the rights of everyone else in return for them respecting his rights, and a government was set up to punish those who decided to break the deal. No longer could anyone claim a piece of land for their own, but neither could they take away a piece of land you had already claimed. The strong man could no longer lord it over the weak, for he was now subject to the same Rule of Law as everyone else.
The Social Contract created a very formal set of rules which only really protected a limited amount of rights. While it can now be said that a man's life, liberty and property are very much protected by the law (through the criminalisation of murder, slavery and theft), there are other rights still missing.
These are the economic rights. The original narrative sees men limiting their freedom to protect others' rights. Back then, man's ultimate freedom was over his whole world, and nothing was stopping him from killing, raping or burgling another creature in it. Then we made our Social Contract, but man still has ultimate freedom over economic matters. He may find himself with the ultimate freedom to take home a bonus of one hundred thousand dollars, and nothing is stopping him from doing that at the expense of his employees or society.
Since Thatcher and Reagan in the 1980s, this brand of Economic Anarchism has been on the rise and its effects are shocking. Productivity in business has increased at the same rate as before, perhaps even higher; yet wages and living standards have remained largely the same or even fallen. What this means is obvious: those at the top are keeping the profits and refusing to share them with those at the bottom (often, the very people whose labour earned that money in the first place). Sometimes this allows the company to boast record profits while their workers are left with barely enough money to feed and house themselves. In other words, those at the top are exploiting their economic freedom to take whatever they want while systematically ignoring the basic rights of those at the bottom.
It falls to now determine what rights we actually have. John Locke defined our rights (even outside the Social Contract) as the rights to life, liberty and property, and the 19th century German philosopher Fichte included within the definition of "property" the right to choose a profession and earn a living from it. Looking at it like this, our current settlement is not protecting our rights. While those at the top enjoy mansions and yachts, those at the bottom think themselves lucky if they find a porch to shelter under for the night. The right to life is more than just the right not to be killed; it also covers the right to have enough food, shelter and basic medical care to keep going. In many cases our society if failing to provide.
What does this mean for us? It provides us with a vision. The Contract needs to be renegotiated so that those at the top limit their freedom for the protection of the rights of those at the bottom. And as I write this, I do not just refer to the situation in one country like Britain, the USA or Germany. Compared to many in third world countries, even the poorest here are well off. We need a global Social Contract that encompasses those in the Horn of Africa suffering from drought and starvation; those in Haiti, still trying to rebuild after their earthquake in 2010; and those in Guatemala, paid below subsistence wages by their multinational employer and fired if they try to do something about it. The Occupy movement has been criticised for being western-centric, hopping on the bandwagon of an Arabic revolution and representing the globally well-off rather than the actual 99% who live on one dollar a day. Unless we demand something world-wide, a settlement which realises the rights of the poor to have access to life rather than the freedom of the rich to ever more gluttony, then those criticisms will be sadly justified.
The way things are cannot stand. The Occupiers in London, New York and Rome are demanding an end to capitalism, and the media and politicians look on and ask what the replacement might be. They say the economics of today is the only way it can be, the best way it can be; the theorists say it's the way of nature, where Survival of the Fittest rules.
We lived according to nature once before. Then we made a Social Contract and became civilised. Perhaps we can do it again.
If you want to know more about your rights as a protestor, download my book "OCCUPY! An Activist's Guide to Protestors' Rights"
We need a positive vision of the future if this Occupy thing is going to succeed. In this article I attempt to provide just that.
But before I do, we need to look to the past. The current economic settlement, governed by the ideologies of Free Market Capitalism, can be seen as a sort of Economic Anarchism where anyone can do as they please with no restriction on their freedom. Once, according to some philosophers, mankind used to live like this in Political Anarchism. And then the State was formed. So how did this occur, and why, and can this give us any hint as to how to take the movement forward?
Mankind used to live in the "State of Nature", so the story goes. Every person had absolute freedom to do whatever he, or she, pleased; there was no law, no government, no politics. You could pick anything you wanted from any tree or bush and eat it. You could take any piece of land for your own and live on it. You were king of your own world.
Trouble is, so was everyone else. If you have a world whee everyone has ultimate, complete freedom- the ultimate, complete right to do whatever you want with whoever or whatever you want- then you're bound to get clashes and conflict and war. Why have you picked my apple from my tree? What are you doing, taking that piece of land, when I wanted it? What do you mean I need your consent to do that?
In a world without law, injustice appears. The idyllic "State of Nature" soon becomes an anarchic hell-hole, where the strongest rule and the weak are enslaved. Without the benefit of law and Human Rights to ensure equality, there is no justice except that which comes from the fist of the strong, or the rich, or the powerful.
So to remedy this situation, mankind came together to form the State under what scholars and philosophers call the "Social Contract". Each man limited his rights to protect his rights. Each man promised to respect the rights of everyone else in return for them respecting his rights, and a government was set up to punish those who decided to break the deal. No longer could anyone claim a piece of land for their own, but neither could they take away a piece of land you had already claimed. The strong man could no longer lord it over the weak, for he was now subject to the same Rule of Law as everyone else.
The Social Contract created a very formal set of rules which only really protected a limited amount of rights. While it can now be said that a man's life, liberty and property are very much protected by the law (through the criminalisation of murder, slavery and theft), there are other rights still missing.
These are the economic rights. The original narrative sees men limiting their freedom to protect others' rights. Back then, man's ultimate freedom was over his whole world, and nothing was stopping him from killing, raping or burgling another creature in it. Then we made our Social Contract, but man still has ultimate freedom over economic matters. He may find himself with the ultimate freedom to take home a bonus of one hundred thousand dollars, and nothing is stopping him from doing that at the expense of his employees or society.
Since Thatcher and Reagan in the 1980s, this brand of Economic Anarchism has been on the rise and its effects are shocking. Productivity in business has increased at the same rate as before, perhaps even higher; yet wages and living standards have remained largely the same or even fallen. What this means is obvious: those at the top are keeping the profits and refusing to share them with those at the bottom (often, the very people whose labour earned that money in the first place). Sometimes this allows the company to boast record profits while their workers are left with barely enough money to feed and house themselves. In other words, those at the top are exploiting their economic freedom to take whatever they want while systematically ignoring the basic rights of those at the bottom.
It falls to now determine what rights we actually have. John Locke defined our rights (even outside the Social Contract) as the rights to life, liberty and property, and the 19th century German philosopher Fichte included within the definition of "property" the right to choose a profession and earn a living from it. Looking at it like this, our current settlement is not protecting our rights. While those at the top enjoy mansions and yachts, those at the bottom think themselves lucky if they find a porch to shelter under for the night. The right to life is more than just the right not to be killed; it also covers the right to have enough food, shelter and basic medical care to keep going. In many cases our society if failing to provide.
What does this mean for us? It provides us with a vision. The Contract needs to be renegotiated so that those at the top limit their freedom for the protection of the rights of those at the bottom. And as I write this, I do not just refer to the situation in one country like Britain, the USA or Germany. Compared to many in third world countries, even the poorest here are well off. We need a global Social Contract that encompasses those in the Horn of Africa suffering from drought and starvation; those in Haiti, still trying to rebuild after their earthquake in 2010; and those in Guatemala, paid below subsistence wages by their multinational employer and fired if they try to do something about it. The Occupy movement has been criticised for being western-centric, hopping on the bandwagon of an Arabic revolution and representing the globally well-off rather than the actual 99% who live on one dollar a day. Unless we demand something world-wide, a settlement which realises the rights of the poor to have access to life rather than the freedom of the rich to ever more gluttony, then those criticisms will be sadly justified.
The way things are cannot stand. The Occupiers in London, New York and Rome are demanding an end to capitalism, and the media and politicians look on and ask what the replacement might be. They say the economics of today is the only way it can be, the best way it can be; the theorists say it's the way of nature, where Survival of the Fittest rules.
We lived according to nature once before. Then we made a Social Contract and became civilised. Perhaps we can do it again.
If you want to know more about your rights as a protestor, download my book "OCCUPY! An Activist's Guide to Protestors' Rights"
Tuesday 18 October 2011
Occupy London: Peaceful Protest and the European Convention
Since Saturday’s gathering, Occupy London has set up tents and is now encamped outside St. Paul’s Cathedral, right outside the London Stock Exchange, and with the express permission of the Cathedral itself. The fact that they have lasted three nights without being evicted is impressive indeed.
Yet the time may come when the authorities tire of their presence and try to find a legal justification for moving them on. In the light of this possibility, it is useful to look at the case of Cisse v France (9 April 2002).
Cisse v France is a case with many similarities to the current situation in London: in both cases, there is an occupation of Church land; and in both cases, the Church is expressly supportive of the occupation. But in Cisse v France the police came along to evict the occupiers and, what’s more, the European Court of Human Rights found that this did not violate the occupiers’ Freedom of Assembly. Given that Freedom of Assembly is the strongest justification in Human Rights terms for the tactics of the Occupy movement, it is vital to understand what happened in the Cisse case to avoid giving the authorities an excuse for eviction.
In Cisse v France, Cisse had been occupying a church along with several hundred others in protest against France’s immigration policies. As well as occupying the church, many members of the protest group also went on hunger strike to the point that they had to be taken to hospital. Once out of hospital, though, they went straight back on their hunger strike.
Their Occupation lasted for several weeks, near the end of which they had taken to placing obstructions in a nearby road. Eventually the police came in to evacuate them all. They allowed the Whites to go free and sent those who looked foreign to a detention centre.
Cisse took the case through the French legal system, but had no luck. She therefore took it further: all the way to the European Court of Human Rights in Strasbourg, and it is their judgement that is important. It tells us just what the Article 11 right to “Freedom of Assembly” means in our specific context.
The court found at first that the actions of the police had interfered with the protestors’ right to Freedom of Assembly. The French government had tried to argue that the Occupation could not be viewed as “peaceful” because they were occupying a place of worship and disrupting services. Moreover, they contended that the fact that the priest had authorised it meant nothing, as the priest was not the only one who could assess how much damage had been done to public order; that role fell to the police. The Court rejected these arguments.
Yet this was just the first step: Article 11 provides that the authorities may legitimately interfere with your right to Freedom of Assembly if that interference is governed by law, has a legitimate aim and is “necessary in a democratic society”.
In applying this analysis to the case of Cisse, the Court found that the evacuation had been governed by law (specifically, the Law of 9 December 1905) and that it had also pursued a legitimate aim: namely, to prevent disorder.
At the Occupation of the church, sanitary conditions had been terrible and the hunger strikers had been near death. The Occupiers had openly admitted to breaking French law (in the fact that many of them were illegal immigrants), and the installations they had put up outside the Church were blocking traffic. The Court therefore saw that the police’s evacuation of the Occupation had been justified by the aim of dealing with people who had broken French law.
The next question, and possibly the most important one, is whether the evacuation was necessary. According to the Court it had been “necessary in a democratic society”, but its reasons are quite illuminating.
Firstly, the Court’s central consideration was the health of the hunger strikers. It was perhaps only because of them that the evacuation was justified at all - otherwise, despite the installations blocking the road, despite the fact that the occupiers had openly declared themselves to be breaking French law, the Court would probably have judged that the evacuation violated Article 11.
The Court explicitly said that it didn’t think that “the fact that the applicant was an illegal immigrant sufficed to justify a breach of her right to freedom of assembly”. This implies that even if you are breaking the law, this will not justify an eviction of your Occupation by the authorities.
However, part of the Court’s explanation for this claim was the fact that the protestors had been occupying for two months before the police intervened, which implies a slightly different interpretation. It may be that the authorities would be justified in evicting your Occupation if you start breaking the law, but if you continue for some time and they tolerate it, then your law-breaking will not serve to legitimise a breaking-up of the whole Occupation.
It will probably justify some lesser measure, though. The requirement of necessity means that while the authorities are not justified in breaking up your occupation, they may be justified in placing restrictions upon it, or arresting certain members. Keep in mind that if people do start breaking the law at an Occupation or protest, the authorities will able to take action that is governed by law and which pursues a legitimate aim (and punishing law-breakers does count as a legitimate aim); their only restriction will be that they can do no more than is necessary to achieve that aim. So arresting one person may be justified; closing down the whole camp may not be.
The story of Cisse v France ends on a sad note: the case was lost, the immigrants sent home. But what lessons can we take from it? The most important one is that your right to Freedom of Assembly is a strong one, and the authorities can only evict you if it is absolutely necessary. In Cisse v France it was only “necessary” because not to evict them would have meant leaving people to starve to death and nothing short of that would have sufficed.
If you want to know more about your rights as a protestor, download my book "OCCUPY! An Activist's Guide to Protestors' Rights"
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