8.1. Can the objectives, goals and activities be freely determined?
Freedom of association requires that an association be free to determine its own objectives, regardless of what these objectives may be, provided that they are not unlawful under international law.
The UN Human Rights Committee clearly stated this in the case of Victor Korneenko et al v Belarus, explaining that:
[…] the right to freedom of association relates not only to the right to form an association, but also guarantees the right of such an association freely to carry out its statutory activities. The protection afforded by Article 22 extends to all activities of an association […].
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. 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:
It lies at the heart of the freedom of association that an individual or group of individuals may freely establish an association, determine its organization and lawful purposes, and put these purposes into practice by performing those activities that are instrumental to its functions.
This freedom applies not only to goals, but also to activities. As found by the IACtHR, freedom of association includes the right for associations:
to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right.
8.2. Lawfulness under international law
States should assume that the goals and activities of an association are lawful. Should a State seek to impose restrictions on the right to associate on the basis of the purpose of an association, it must meet the same test as it would for any other restrictive measure.
Lawfulness needs to be assessed under international law, not under national law. Only propaganda for war or advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (Article 20 of the Covenant on Civil and Political Rights) or acts aimed at the destruction of the rights and freedoms enshrined in international human rights law (Article 5) should be deemed unlawful.
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.
More recently, in Vona v Hungary [ click for full case explanation ]
In focus:
Vona v Hungary
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 right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.
Unpopular views or activities are insufficient grounds for limiting this right. The Human Rights Council has reminded that the right to freedom of association is:
is indispensable […], particularly where individuals may espouse minority or dissenting religious or political beliefs…
The Venice Commission has also explicitly reaffirmed this right, stating that:
that the existence and operation of associations, including those which peacefully promote ideas not necessarily favourably received by the government or the majority of the population, is a cornerstone of a democratic society.
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.
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 homosexuality.
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.
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association addressed these principles following his visit to the Sultanate of Oman. In expressing concern that the executive branch has unbridled discretion over who can form and operate an association and on what issues associations can focus, the Special Rapporteur specifically highlighted a number of cases where organizations had been denied registration because their work was “already covered” by other associations. The Special Rapporteur re-emphasized the importance of independence from the Government as a founding aspect of the right to freedom of association, stating:
(t)he right is meant to empower individuals to come together and work for their interests, so long as they are doing so for legal and peaceful purposes. The Special Rapporteur urges the Government to accord civil society actors the same freedom to establish themselves as businesses, even where they are working on the same issues. It is unlikely … that the Government would prohibit, for example, the establishment of a hotel because another was established in the same area. There is no justifiable reason to distinguish between civil society and business sector organizations, both of which are non-State actors.
The UN Special Rapporteur made a similar statement at the conclusion of his visit to the Republic of Kazakhstan, expressing again his concern that associations are at time denied registration on the grounds that similar associations already existed.
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.
The AComHPR Draft Guidelines directly assert this right:
There shall be no internal geographical or territorial limitations on associations, and the same registration procedure shall be employed throughout the country.
Furthermore, the Guidelines recommend that:
Law or policy shall not prohibit the conduct of the activities of associations within particular geographic or territorial localities.
8.6. May associations freely determine their internal rules and procedures?
Associations may establish their own internal rules and procedures. This implies also that authorities must respect and may not interfere with decisions on board compositions and elections and the internal conflict resolution procedures.
In Baena Ricardo et al. v. Panama, the Inter-American Court clarified that indeed the right to freedom of association includes the right:
to set into motion their internal structure, activities and action program, without any intervention by the public authorities that could limit or impair the exercise of the respective right.
In Article 30 of the Draft Guidelines, the African Commission has asserted the freedom of associations to be self-governing, recommending that associations shall be:
free to determine their internal management structure and rules for selecting governing officers.
Law or regulation shall not dictate the internal organization of associations, beyond basic provisions providing that non-discriminatory and rights-respecting principles be followed.
Associations shall not be required to obtain permission from the authorities to change their internal management structure or other elements of their internal rules.
Public authorities shall not interfere with associations’ choices of managing officers, unless such persons are barred by national law from holding the positions in question on the basis of legitimate grounds as interpreted by international human rights law.
The African Commission has also confirmed that States are not entitled to interfere with an association’s internal matters. In a case concerning the Nigerian Bar Association, the Commission found a violation of the right to freedom of association where the Government of Nigeria sought to determine the composition of its governing body.
In Civil Liberties Union (in respect of the Nigerian Bar Association) v. Nigeria, the AComHPR found a violation of the right to freedom of association where the State established a new governing body of the Nigerian Bar Association, the “Body of Benchers,” which was composed almost entirely of government nominees, with the Bar Association only able to nominate 31 out of 128 seats:
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.
16. The Body of Benchers is dominated by representatives of the government and has wide discretionary powers. This interference with the free association of the Nigerian Bar Association is inconsistent with the preamble of the African Charter in conjunction with UN Basic Principles on the Independence of the Judiciary and thereby constitutes a violation of article 10 of the African Charter.
The ECtHR similarly found that associations have the freedom to determine their own rules in a case concerning the Associated Society of Locomotive Engineers and Firemen in the United Kingdom:
Prima facie trade unions enjoy the freedom to set up their own rules concerning conditions of membership, including administrative formalities and payment of fees, as well as other more substantive criteria, such as the profession or trade exercised by the would-be member.
In addition, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association clarified that the protection of privacy also extends to associations. As part of an associations’ right to privacy, it should be free to determine its own internal matters and States shall not be entitled to interfere to: condition decisions and activities of the association; reverse the election of its board members; condition the validity of board members’ decisions on the presence of a government representative; or request that an internal decision be withdrawn.
Independent bodies, established by law, may legitimately examine associations’ records for the purpose of ensuring transparency and accountability. However, such lawful requirements shall be the least intrusive and restrictive possible and any procedures established for such purposes shall respect the individuals’ right to privacy and shall not be arbitrary and discriminatory.
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.
The Universal Declaration of Human Rights Defenders fully embraces this principle; people may strive for the defense and promotion of human rights of all, not just their members.
When a person or association formally represents another person, however, consent is needed.
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.