On 28 February, Mr. Michel Forst, the United Nations (UN) Special Rapporteur on Environmental Defenders, published his position paper on ‘State repression of environmental protest and civil disobedience’.
The Right to Protest and the Aarhus Convention
The UN Special Rapporteur on Environmental Defenders is appointed under the Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters (Aarhus Convention). Under the Aarhus Convention, citizens of parties to the Convention have three key rights: the right to access environmental information held by public authorities; the right to public participation in environmental decision-making; and the right to access to justice.
In particular, Article 3(8) of the Aarhus Convention imposes a legally binding obligation on countries that are parties to the Aarhus Convention. It reads: “Each Party shall ensure that persons exercising their right in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.”
Internationally, human rights law recognises civil disobedience as a form of freedom of expression and freedom of peaceful assembly (Articles 19 and 21 of the International Covenant on Civil and Political Rights). As long as the exercise of this right remains non-violent, it will constitute a peaceful protest protected by international law. Recently, climate protests have been taking different forms, albeit still peaceful, reflecting the urgency of the problem they aim to address. For instance, slow marches, roadblocks, throwing food or paint, and more.
Observations in the Position Paper
The UN Special Rapporteur notes that environmental are increasingly being portrayed negatively in media. Such negative coverage contributes to the deterrence of “members of the public from participating in protests out of fear of being categorized as criminals and treated as such”. In numerous countries (including Austria, France, Germany, Spain, Sweden, and the United Kingdom), public figures and politicians refer to climate protests as ‘dictatorship’ and a ‘threat to democracy’. They also refer to activist groups as criminal organisations. In doing so, these public figures “deliberately conflate ‘disruption’ with ‘violence’, and thereby justify the excessive use of force by law enforcement on protesters”. Moreover, the media tends to focus on the disruption caused by protest rather than on the underlying reasons for environmental defenders to protest.
Even more worryingly, by suggesting that environmental protestors are somehow engaging in criminal behaviour, it encourages violence against them. The Paper highlights an instance in Germany, where members of the public dragged protesters by their hair, kicked and punched them, and ran them over.
Criminalisation of Climate Protesters in Legislation and Policy
The Paper highlights that the criminalisation of climate protesters has extended to policy-making. In the European Union (EU), environmental activism has been marked as potential terrorism and violent extremism. The report even classifies roadblocks as ‘extremism’ despite these actions being peaceful. In Denmark and Spain, climate protest has also been linked to terrorist threats. Astonishingly, Denmark’s report on the topic states: “there are currently no climate extremist groups in Denmark who are willing to use violence in their fight”.
In Germany, Italy, and the United Kingdom, harsh sentences and bans were introduced for certain forms of protest. For example, in Italy, the eco-vandalism law provides for imprisonment of up to 5 years and fines of up to €10,000.
Protesters also face increased harassment by law enforcement. For instance, in France, climate activists were fined for minor traffic law infractions at or near a site of protest, which included ‘excessive use of the car horn’. Other countries where similar issues were identified include the United Kingdom (Northern Ireland, Spain, Italy, Portugal, and Denmark).
The UN Rapporteur also refers to “countless reports” of police brutality during protests. This ranged from handcuffing non-resisting activists in Portugal, to the use of watercannons (Netherlands) and teargas (France).
In Germany, Poland, Portugal, and Spain, activists found themselves detained beyond the legally authorised time. Environmental defenders faced humiliation at the hands of authorities across various nations. Disturbingly, instances of police officers making sexist comments towards female detainees were reported in Poland, while detainees in Spain were subjected to threats of physical harm if arrested again. Furthermore, denial of basic necessities such as access to toilets, medication, and medical assistance was noted in Denmark, Finland, the Netherlands, Poland, and Spain, highlighting a distressing pattern of mistreatment and rights violations against those standing up for environmental causes.
Prosecutions of Climate Protesters
Since the onset of 2023, environmental activists worldwide have been grappling with an alarming escalation in charges against peaceful protesters, hinting at a deliberate effort by authorities to stifle dissent through intimidation. Notably, Spain has seen protesters facing trial months after a demonstration, despite initial identity checks and no arrests during the event. In Denmark, France, Germany, Italy, Poland, Spain, and Sweden, seemingly innocuous actions are being met with harsher charges, exemplified by France's classification of road-blocking as "endangering lives." Disturbingly, in Denmark and Sweden, misdemeanours now result in criminal charges, while in Germany and Poland, peaceful protests are met with accusations of "criminal coercion." Instances of mismatched charges, city bans, and fines are becoming prevalent, illustrating a trend where authorities employ diverse legal strategies to curb environmental activism.
Abuse by the Courts
The UN Special Rapporteur also identified abusive measures implemented by the courts of member state parties, including instances of preventive detention, to prevent protesters from participating in climate activism (Germany). He also identified a concerning trend of increased reliance on pre-trial detention and stringent bail conditions, even for those with minor charges. For example, the UK saw activists being subjected to solitary confinement and harsh bail conditions such as ankle monitors.
In addition, prolonged court proceedings in multiple countries also discourage activists from engaging in peaceful protest. Notably, a Portuguese activist who disrupted the Prime Minister’s speech with paper plans has faced continuous legal proceedings since 2019. Unpredictable judicial outcomes further hamper the effective administration of justice, hindering defence and advice for protesters.
Finally, environmental activists face harsh and disproportionate sentences. In Denmark, for example, protesters were ordered to pay damages exceeding the costs of their actions. The UK has gone as far as imprisoning environmental defenders for peaceful actions, including a protester who received a six-month prison sentence for participating in a 30-minute slow march. The protesters were not allowed to appeal their sentences to the UK Supreme Court.
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