Does everyone always have the right to protest, including on the highway?
The daily highway blockade of Extinction Rebellion has reignited the debate over the right to demonstrate. Where do you draw the line? “On a highway, the interests of traffic safety will often outweigh the interests of the protester.”
Where does the right to demonstrate begin and end? It is “one of the most difficult topics in law,” according to Jerfi Uzman, UvA professor of constitutional law. The question has been made all the more urgent by the daily blockade of the A12 by the climate action group Extinction Rebellion (XR). Clarification is needed, the Lower House agrees.
This is why the parliament recently debated “the many facets surrounding the right to demonstrate” with a selection of stakeholders. Among them are mayors, experts, and representatives of the police and justice, but also members of action groups XR, Kick Out Zwarte Piet, and Agractie, a kind of renewed polder model, with different layers of society. But the desired breakthrough did not happen; after three hours of discussion, no agreement was reached.
What's more, the legal boundaries remain so uncertain that the mayor of The Hague, Jan van Zanen, called on XR to “take it to court,” NRC noted afterwards. How do lawyers at the University of Amsterdam view XR's daily occupation of the A12? What do they observe?
Disrupting normal life
UvA professor of general law Bas Schotel is clear about this. According to him, XR's highway blockade “misuses the right to demonstrate.” He explains: “The idea of the right to demonstrate is that you have the opportunity to express a common opinion in a meaningful place in public space.”
The fact that this can to some extent involve traffic congestion or be a nuisance should be just a side effect, Schotel argues. “But for XR, disrupting normal life is not an undesirable side effect, it is precisely its main goal.”
Climate action group Extinction Rebellion (XR) wants the government to stop giving large corporations tax breaks on fossil fuel consumption. This is what XR calls “fossil fuel subsidies.” Until then, they will keep blocking the A12 near The Hague.
Thus XR is stepping outside the law with its highway blockade, Schotel believes. “But that is not to say that this is behavior that would not fit into a mature democratic constitutional state,” he adds. On the contrary: “The idea of civil disobedience is a long-standing practice.” It is a legitimate (political) means of action that is fundamentally different from an ordinary violation of the law, the UvA lecturer believes.
Civil disobedience
Two aspects are crucial here, he explains. “It must be peaceful and the participants must suffer the legal consequences of breaking the law. That means, for example, not walking around in balaclavas to avoid being recognized. That would be an obstruction of the legal process. And they must respect the rule of law in other ways, too.”
“It is also in XR's own interest to make their civil disobedience clear,” Schotel continued. “Because they do have a point when they say that the usual legal means of achieving their goals are no longer available.” He points to the Urgenda case, whereby the highest court ordered the government to take adequate climate measures. This kind of thing does not just happen by itself, Schotel says.
“If the government does not respect its own institutions, it will eventually cease to exist.” And then you end up with the act of civil disobedience, Schotel reasons.
Professor of constitutional law Jerfi Uzman takes a different view. He does not see civil disobedience as an extrajudicial, legitimate means that activists can employ. “But one does not exclude the other,” he adds. “The right to demonstrate protects a certain degree of civil disobedience.” In that sense, civil disobedience is not legally prohibited, Uzman argues.
But there is a limit. If you endanger the safety of an airplane simply to make a point, that does not fall under freedom of demonstration at all, the constitutional law professor illustrates. A highway blockade, on the other hand, does.
Restrictions
Yet both Dish and Uzman emphasize that the right to demonstrate is not absolute. The government can therefore impose restrictions on a highway blockade, provided they are proportional and all interests are considered in the specific case, taking into consideration (traffic) safety, health considerations, and public order.
“On a highway, the interests of traffic safety will often outweigh the interests of the protester,” says Uzman. “But that doesn't take away from the fact that the government must consider the specific reasons for demonstrating on a highway.”
On top of that, XR is blocking the highway every day. The longer that continues, the more likely it is that at some point the courts will let the interests of traffic safety prevail, Uzman expects. This is what happened when the Occupy movement on Malieveld in 2014 demonstrated daily: the highest administrative judge ruled then that the action had eventually “lost the character of a demonstration” as time passed.
Will the activists nevertheless continue to come - legally or illegally - to the highway? If so, the government still needs to ensure that the safety of the participants is adequately addressed. “A protester should not run the risk of cars coming at him at 100 to 130 km per hour,” Uzman said.
