Is There a Legal Right to Protest?

11/11/2011 10:12 am ET | Updated Jan 11, 2012

As Americans take to the streets against the exploits of Wall Street and outsized corporate influence, untried legislators halfway across the world will decide whether to legalize freedoms of assembly and expression for their long repressed people.

The upper house of Burma's nascent parliament is debating the "Peaceful Gathering and Procession" bill, one of many tests to determine if the eight-month-old semi-civilian government will recognize basic human rights in its domestic law.

The fact that freedoms of assembly and expression are being debated at all represents a welcomed sea change in Burmese politics, but the extent to which the legislation would ultimately protect the right to peaceful assembly or curtail it remains unclear. The draft text has been kept from public scrutiny -- strike one -- and proposed authoritarian-leaning restrictions in the bill are starting to surface -- strike two.

One reported amendment would require protest leaders to submit full bios to the state. This provision would not only deter applications, but it could also help hardliners be that much more efficient in locking up dissidents, an all too common occurrence: There are still an estimated 1,700 political prisoners in Burma, including U Gambira, an organizer of the 2007 pro-democracy protests who is currently in need of urgent medical care. Just last week, 15 political prisoners went on a hunger strike in Insein prison, protesting their incarceration. "They have been denied drinking water," according to Amnesty International, "and eight of the prisoners have been held in cells designed to hold dogs."

This doesn't bode well for a bill that would require protesters to put themselves on the radar of the authorities, formally registering their dissent.

Another amendment in the bill would require protesters to seek pre-approval from the state for any slogans uttered on the picket line, abridging the right to free speech. Should this bit pass, free speaking demonstrators might find themselves behind bars, or even in dog cells, all by force of law.

Of course, the bill might not pass in any form. The Democratic Voice of Burma reports that MPs aligned with the dominant military establishment are arguing the country is not ready for any freedoms of assembly or expression, while others claim Burma needs to first deal with the many ongoing armed conflicts in the ethnic territories (a revealing non sequitur) -- those conflicts are exceedingly brutal and worsening, according to Human Rights Watch, the Kachin Women's Association Thailand, and many others.

Few are acknowledging that Burma is already legally bound to respect the right to freedom of peaceful assembly through its own treaty obligations under international law, including the core conventions of the International Labour Organization, and through customary international law that guarantees fundamental freedoms. This gets to the heart of an important question about the interpretation of rights, and a central challenge to the international human rights movement: If you don't have the domestic right, do you still have the human right?

Legal positivists are quick to point out distinctions between moral rights and legal rights, arguing that human rights advocates often mistake what ought to be a right with what is a right. In 1792, the trailblazing positivist and utilitarian Jeremy Bentham famously referred to what we would today call human rights as "nonsense on stilts," going against the now ripened grain of international law, which has since made quite a bit of room for what the old school would have called natural rights. Bentham was decidedly unimaginative. "From real laws come real rights," he wrote in Anarchical Fallacies, "but from imaginary laws, from laws of nature... come imaginary rights."

Most contemporary positivists of international law remain focused on determining whether so-called human rights meet the requisite elements to graduate a moral value to a legal right. If the right or value is found in a human rights treaty, in international custom, or in general principles of international law, you've most likely got yourself a legally recognized human right, or so the recipe goes; notwithstanding, of course, formidable problems of enforcement.

But the human rights movement is more than a legal movement. It's also a moral movement. Many human rights, such as freedom of assembly, need not require positive legal force before they can be coherently asserted as a human right. History is replete with examples of civilians exercising rights to defiant states that didn't recognize their rights. These cases usually do not bend our legal sensibilities, and they usually make moral sense.

Consider Burma again, where throngs of peaceful protestors took to the streets in 1988 and 2007 demanding a combination of democracy, freedom for political prisoners, and national reconciliation with the country's embattled ethnic nationalities. When the army opened fire on them, killing over 3,000 in 1988 and over a hundred in 2007, the international reaction was one of shock. There was no defensible argument the people shouldn't have been on the streets in the first place. They had the right to be there - the human right.

Still, legislating human rights into national law continues to be the bread and butter of international and domestic human rights movements, and therein is Burma's present opportunity. A failure by its parliament to establish basic human rights in domestic law, generously and with minimum restrictions, will send the wrong message to the world. It will serve to prolong economic sanctions imposed by the West and could provide the country's nefarious elements with more legal arguments to lock up dissidents.

Let's hope the peaceful assembly bill doesn't become a law worth peacefully protesting.