Freedom of association can be defined as the right of persons to join together in groups in order to pursue common objectives or interests. Such groups can be political parties, professional groups, sports clubs, non-governmental organizations, religious groups, trade unions or corporations.4
The right to freedom of association, and the only grounds on which it may be restricted, are set out in article 22 of the International Covenant on Civil and Political Rights:
"(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right."
As can be seen, under international law restrictions on freedom of association are permissible only on certain clearly specified grounds. And these grounds, as the leading international law expert Manfred Nowak has demonstrated, are not to be interpreted loosely. For example, terms such as "national security" and "public safety" refer to situations involving an immediate and violent threat to the nation or to its territorial integrity or political independence. Nationwide limitations imposed on the basis of merely isolated or localized threats cannot be justified, therefore, and are impermissible.5
Limitations of the right to freedom of association can also be imposed in order to maintain "public order" (ordre public). Public order can be understood as the rules that ensure the peaceful functioning of society.
Freedom of association may also be restricted for "the protection of public health or morals." Here, for any restriction to be legitimate, "public health" should mean a situation in which the activities of an association poses a serious threat to the health of the population or individuals within it. The right of assembly may also be restricted in instances where the fundamental values of the community - "public morals" - are threatened.
Finally, Article 22(2) allows limitations for the protection of rights and freedoms of others. This means that if an association has aims that threaten the rights of others, there can be grounds to limit its freedom. This provision can be regarded as complementary to Article 20(2), which prohibits "any advocacy of national, racial or religious hatred"6.
Certain other requirements are necessary under international law to justify freedom of association restrictions even on the grounds specified in Article 22(2) of the ICCPR. Notably, restrictions can only be imposed if they meet the standard of being "necessary in a democratic society." This implies that the limitation must respond to a pressing public need and be oriented along the basic democratic values of pluralism and tolerance. The term "necessary" also contains the principle of proportionality, i.e. it requires a careful balancing of the intensity of a measure with the specific reason for the limitation. In applying a limitation, a state is to use no more restrictive means than are required for the achievement of the purpose of the limitation. The dissolution of an association or the prohibition of its formation, as the severest type of restriction on freedom of association, should constitute an ultimate sanction, and may be imposed only when lesser measures of restriction are insufficient.7
The principle of proportionality has been highlighted in several rulings on freedom of expression made by the Human Rights Committee (HRC), the treaty mechanism body established under the ICCPR to interpret its provisions.8 For example, in 1997 the HRC ruled on the case of a citizen of the Republic of Belarus who had been prevented from distributing leaflets concerning the anniversary of independence: his leaflets were confiscated and he was fined because he had not registered his publication with the authorities. The HRC found that the state authorities of Belarus had "failed to explain why this requirement was necessary," and declared that: "these (registration requirements) cannot be deemed necessary for the protection of public order (ordre public) or for the respect of the rights or reputations of others."9 In another case, regarding the detention of a political activist by the state authorities in Cameroon, the HRC determined that there was no causal link at all between the measures taken by the state and the aim of safeguarding national security, stating that the committee "further considers that the legitimate objective of safeguarding and indeed strengthening national unity under difficult circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights; in this regard the question of deciding which measures might meet the "necessity" test in such situations does not arise."10
According to Article 22(2), restrictions on freedom of association must also be "prescribed by law". In other words, state authorities must base their actions on legislation that is already in existence. In another freedom of expression case, the HRC ruled in favor of a complainant against Finland who had sought to raise a banner to protest against a visit by a foreign head of state because the state authorities of Finland had "not referred to a law allowing this freedom to be restricted."11
No other limitations than the ones mentioned above are allowed under Article 22(2) of the ICCPR. For example, procedural formalities for recognition of associations must not be so burdensome as to amount to substantive restrictions on the right of freedom of association. This was made clear by the Human Rights Committee in its Concluding Comments on onerous registration procedures for NGOs in Belarus and Lithuania.12
This interpretation of Article 22(2) is also supported by the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (hereafter the Siracusa Principles).13 The Siracusa Principles have developed further the understanding of the concepts of "national security or public safety" 14, "public order" 15, "public health16 and morals"17, and the "protection of rights and freedoms of others"18.
They also define further the meaning of "necessary in a democratic society" and "prescribed by law", along the lines of the argument above. The Siracusa Principles stress that any limitations imposed on freedom of association must not be used as a pretext for imposing vague and arbitrary limitations, or for suppressing opposition and perpetrating repressive practices. They also make clear that the burden of justifying restriction of a right guaranteed by the ICCPR lies with the state imposing that restriction19.
The U.N. Declaration on Human Rights Defenders spells out the rights of individuals, groups and associations working for human rights in the broadest sense20. The Declaration can provide guidance as to what should be permissible in the area of freedom of association. For example, for the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels, to meet or assemble peacefully; to form, join and participate in non-governmental organizations, associations or groups; and to communicate with non-governmental or intergovernmental organizations."21
4 Manfred Nowak, UN Covenant on Civil and Political Rights. Kehl 1993 p.386-387. On freedom of association in other African countries, see also Article 19, Freedom of Association and Assembly; Unions, NGOs and Political Freedom in Sub-Saharan Africa. March 2001 (can be found on www.article19.org).
5 On this and the following Nowak, p.394-396.
6 Nowak, p.393-394.
7 Nowak, p.394.
8 Article 19 of the ICCPR allows limitations of the right to freedom of expression which are similar than then ones of Article 22(2). Article 19(3) states that restrictions "shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or public order (ordre public), or of public health and morals."
9 Vladimir Petrovich Laptsevich v. Belarus. Communication 780/1997 of the Human Rights Committee.
10 Albert Womah Mukong v. Cameroon. Communication 458/1991 of the Human Rights Committee.
11 Auli Kivenmaa v. Finland. Communication 412/1990 of the Human Rights Committee.
12 Sarah Joseph/ Jenny Schultz/ Melissa Castan, The International Covenant on Civil and Political Rights. Cases, Materials and Commentary. Oxford 2000, p.433.
13 These were developed in 1984 by a panel of thirty-one international experts who met at Siracusa, Sicily, to adopt a uniform set of interpretations of the limitation clauses contained in the ICCPR. While they do not have the force of law, they offer important, authoritative guidance as to the meaning of the terms contained in the ICCPR. "The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights," Human Rights Quarterly, vol. 7, no. 1 (February 1985).
14 Siracusa Principles 29-32:
- National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force;
- National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order;
-National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse;
- The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.
15 Siracusa Principles 22-23:
- The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order (ordre public);
- Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground.
16 Siracusa Principles 25-26:
- Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured;
-Due regard shall be had to the international health regulations of the World Health Organization.
17 Siracusa Principles 27-28:
- Since public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community;
- The margin of discretion left to states does not apply to the rule of non-discrimination as defined in the Covenant.
18 Siracusa Principles 35-26:
- The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant;
- When a conflict exists between a right recognized in the Covenant and one which is not, recognition and consideration should be given to the fact that the Covenant seeks to protect the most fundamental rights and freedoms. In this context especial weight should be afforded to rights not subject to limitation in the Covenant.
19 The African (Banjul) Charter for Human and Peoples' Rights reproduces the language of the ICCPR in its Article 11: "Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided by the law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others."
20 In full Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. The Declaration was adopted on 9 December 1998 by the UN General Assembly.
21 Article 5.