This has been confirmed by Article 16(1) of the American Convention on Human Rights, which states that associations may engage in a wide range of activities for a variety of diverse purposes, including, ideological, religious, political, economic, labor, social, cultural, sporting or other aims.ACHR, art. 16(1). Guideline 21 of the AComHPR Draft Guidelines equally states that associations shall determine their purposes and activities freely.
The freedom to determine goals and objectives is thus an integral part of freedom of association:
The AComHPR Draft Guideline 21 corroborates this, stating that:
(t)he only acceptable limitations are relative to engagement in for-profit activities, anti-democratic activities, incitement to hatred, discrimination, establishing an armed group, or other activities characterized as unlawful under international human rights law. Such limitations shall be strictly interpreted and not abused to target associations of which political authorities disapprove.
Both the UN Human Rights Committee and the European Court have accepted situations of lawful restrictions due to the objectives or activities of association, notably in cases where the associations’ objectives demonstrated the purpose of overthrowing a democratic government and/or inciting racial and ethnic violence.
In MA v. Italy, the Human Rights Committee found a communication submitted on behalf of a detained, self-avowed fascist to be inadmissible on several grounds, including the failure to show that the prohibition on the reformation of the Italian fascist party under Italian national law was a violation of its ICCPR obligations. Instead, the Committee noted that the acts for which the petitioner was convicted were removed from the protection of the ICCPR by Article 5 (acts aimed at the destruction of rights) and were justifiably prohibited as legitimate restrictions on, amongst others, Article 22 rights.
In Vona v Hungary, the ECtHR did not find a violation of article 11 in the dissolution of the Hungarian Guard Association In addressing the dissolution, the ECtHR argued that:
57… the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. … the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy. …
, the ECtHR did not find a violation of Article 11 in a case involving the Hungarian Guard Association, which had founded a related Hungarian Guard Movement. Among its activities were the holding of rallies in Roma communities under the theme of “Gypsy criminality,” which included participants wearing armbands similar to those of the Arrow Cross, a nationalist socialist party during World War II. The public prosecutor brought an action against both the Movement and the Association, claiming that their activities represented racist intimidation. The specific activities – termed by the Court as “concrete steps” – played a role in the Court’s considerations.
8.3. What if the objectives of the association are contrary to current government policies?
Associations are free to choose their objectives and goals; States cannot restrict associations even if these run counter to government policies. The UN General Assembly has explicitly recognized the right to criticize the government specifically within the context of freedom of association:
The Draft Guidelines of the AComHPR clearly address specific circumstances in which freedom of association cannot be limited even though they may contradict the government:
The rights to freedom of association and expression protect expression and activities that offend, shock, or disturb; criticism of government action; calls for a rights-promoting peaceful change of the constitutional or legislative order; advancement of minority rights and the rights of discriminated-against, marginalized and socially vulnerable communities; peaceful calls for regional autonomy; and challenging majority religious views.AComHPR, Draft Guidelines on Freedom of Association and Assembly in Africa, 22 September 2016, para. 24.1.
Associations are equally allowed to engage with objectives which may not be popular with the majority of the population and/or government. In a case concerning homosexuality and freedom of expression, the Human Rights Committee concluded that the State failed to demonstrate why on the basis of the presented facts it was necessary to restrict the applicant’s right to express her sexual identity, seek understanding for it and even engage children in discussion on issues of homosexualityIrina Fedotova v. Russia, Human Rights Committee, U.N.Doc. CCPR/C/106/D/1932/2010, para. 10.8. It regards a freedom of assembly case, but the legitimate aims is applicable to both association and assembly rights. .
8.4. Can one create an association with the same objective as an already existing association?
International human rights law has repeatedly confirmed that freedom of association includes the freedom of an association to determine one’s own objectives. It thus follows that a newly formed association may choose the same or similar objectives as other, existing associations. Given that restrictions on freedom of association must follow strict tests, mere duplication cannot provide grounds for denying the freedom of an association to determine its objectives.
8.5. Can an association be forced to expand or limit its activities or goals to certain regions?
The freedom of an association to determine its own activities includes the freedom of an association to choose where to conduct its activities.
The UN Human Rights Committee addressed this question in Kungurov v Uzbekistan, where the Uzbekistan Ministry of Justice had refused to register an organization by the name of “Democracy and Rights,” asserting that the organization’s application materials failed to demonstrate that the organization was physically present in every region of Uzbekistan, which the State argued was required for public associations. In its ruling, the Human Rights Committee concluded that such a requirement did not meet the strict standards necessary for the limitation of freedom of association:
the State party’s authorities did not specify to be granted a national status, authorising it to disseminate information in all parts of the country. The Committee considers that even if these and other restrictions were precise and predictable and were indeed prescribed by law, the State party has not advanced any argument as to why such restrictions would be necessary, for purposes of Article 22, paragraph 2, to condition the registration of an association on … the existence of regional branches of “Democracy and Rights.Nikolay Kungurov v. Uzbekistan, Human Rights Committee, CCPR/C/102/D/1478/2006, Views of 20 July 2011, at para 8.5.
The AComHPR Draft Guidelines directly assert this right:
14. Article 10 of the African Charter reads: ‘(1) Every individual shall have the right to free association provided that he abides by the law.’ Freedom of association is enunciated as an individual right and is first and foremost a duty of the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.
15. In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards.
8.7. Can an association defend the rights of people who are not members of the association?
As a general matter, associations may defend the rights of people who are not members of the associations. In Zvozskov v Belarus, the key issue before the UN Human Rights Committee was whether Belarus violated the applicants’ rights to freedom of association by refusing to register the organization “Helsinki XXI” because it sought to represent and defend the rights of vulnerable citizens who were not “members” of the organization, which was prohibited by Belarus law.
The Committee noted that even if such restrictions were indeed prescribed by law, the State party did not advance any argument as to why it would be necessary to condition the registration of an association on a limitation of the scope of its activities to the exclusive representation and defense of the rights of its own members. The Committee concluded that refusing to recognize an organization that defended the rights of third parties was an impermissible restriction on the right to freedom of association:
[The Committee] considers that even if such restrictions were indeed prescribed by law, the State party has not advanced any argument as to why it would be necessary, for purposes of article 22, paragraph 2, to condition the registration of an association on a limitation of the scope of its activities to the exclusive representation and defence of the rights of its own members. Taking into account the consequences of the refusal of registration, i.e. the unlawfulness of operation of unregistered associations on the State party’s territory, the Committee concludes that the refusal of registration does not meet the requirements of article 22, paragraph 2.Boris Zvozskov et al. v. Belarus, Human Rights Committee, UN Doc. CCPR/C/88/D/1039/2001, 17 October 2006, para. 7.4.
8.8. May associations freely determine their name?
Any restriction on an association’s chosen name must meet the same three-part test established under international law – it must be lawful, necessary and proportionate to a legitimate aim. For example, the ECtHR ruled that the use of a specific word in the name of the association was not a reason to reject its registration. The Greek association was called “House of Macedonian Civilisation,”and the registration was rejected on the ground that the word “Macedonian” was liable to cause confusion both vis-à-vis States wishing to contact the applicant association in the exercise of its activities and among any individuals wishing to join the association.
The domestic courts added that there was also a risk to public order because the existence of the applicant association could be exploited by persons wishing to promote the creation of a “Macedonian nation,” which it claimed had not historically existed. The ECtHR noted that the objectives of the association as defined in its documents were legitimate under international law and that therefore there was no reason not to register the association. The ECtHR did thus not accept the restrictions the State wished to impose on the name of the association and ruled that the non-registration constituted a violation of the freedom of association.House of Macedonian Civilisation and others v. Greece, ECtHR, Judgment of 9 July 2015, paras. 27-44. Available in French.