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  • 5. Positive obligation of the State to promote and protect freedom of association

    The obligations of the State to promote and protect freedom of association under international law are twofold. On the one hand, there is a negative obligation not to interfere with rights (see Association Section 6). On the other hand, there is a positive obligation upon the State to facilitate the exercise of the right.[1]

    States should take measures so that citizens who wish to come together to form associations are facilitated and encouraged to do so by the overall social, legal and political framework. An enabling environment for the exercise of the right to freedom of association should be free from fear, threats or intimidation.[2] It is the duty of the State to prevent attacks and investigate violations of the right.[3] As underscored by regional bodies (e.g., the IACtHR and the ECtHR), the obligations of the State should not be limited to the association’s formation but should extend to the association’s ability to carry out the purposes for which it was established. The protection afforded by the right to freedom of association lasts for an association’s entire life.[4]

    In a case involving the right to freedom of association of human rights defenders, the IACtHR phrased the positive obligation as follows:

    The Court has established that the States have the duty to provide the necessary means for human rights defenders to conduct their activities freely; to protect them when they are subject to threats in order to ward off any attempt on their life or safety; to refrain from placing restrictions that would hinder the performance of their work, and to conduct serious and effective investigations of any violations against them, thus preventing impunity.[5]

    The ECtHR similarly states that the positive obligation is necessary to render the exercise of the right to freedom of association practical and effective:

    the Court has often reiterated that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective … It follows from that finding that a genuine and effective respect for freedom of association cannot be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the purpose of Article 11 nor with that of the Convention in general. There may thus be positive obligations to secure the effective enjoyment of the right to freedom of association.[6]


    1. UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, at para. 63; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, para. 157.
    2. UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, at para. 63.
    3. See IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, para. 157.
    4. United Communist Party of Turkey and others v. Turkey, ECtHR, Judgment of 30 January 1998, para. 33; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, para. 155.
    5. Kawas-Fernández v. Honduras (Merits, Reparations, and Costs), IACtHR, Judgment of 3 April 2009, para. 146; see also Venice Commission, Opinion on the Law on Non-Governmental Organisations (Public Associations and Funds) as Amended of the Republic of Azerbaijan, 15 December 2014, para. 33.
    6. Ouranio Toxo and others v. Greece, ECtHR, Judgment of 20 October 2005, para. 37.
    7. Human Rights Committee, CCPR General Comment No. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 8.
    8. OSCE/ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, 2015, para. 22.
    9. Kawas-Fernández v. Honduras (Merits, Reparations, and Costs), IACtHR, Judgment of 3 April 2009, para. 146; see also Nogueira de Carvalho et al. v. Brazil (Preliminary Objections and Merits), IACtHR, Judgment of 28 November 2006, para. 77 (“The States have the duty to provide the resources necessary for human rights defenders to conduct their activities freely; to protect them when they are subject to threats and thus ward off any attempt against their life and safety…”).
    10. UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, at para. 63.
    11. UN General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, 9 December 1999 [referred to as Declaration on Human Rights Defenders], article 2 and 12; see also UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc A/HRC/20/27, 21 May 2012, at para. 8.
    12. UN General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, 9 December 1999, article 12 (2); see also UN General Assembly, Report of the Special Representative of the Secretary-General on Human Rights Defenders, Hina Jilani, UN Doc. A/61/312, 5 September 2006, para. 101.
    13. UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 64.
    14. Kawas-Fernández v. Honduras (Merits, Reparations, and Costs), IACtHR, Judgment of 3 April 2009, para. 145; see also Valle-Jaramillo et al. v. Colombia (Merits, Reparations, and Costs), IACtHR, Judgment of 27 November 2008, para. 91; and also Nogueira de Carvalho et al. v. Brazil (Preliminary Objections and Merits), IACtHR, Judgment of 28 November 2006, para. 77 (“The States have the duty to provide the resources necessary for human rights defenders to conduct their activities freely; to protect them when they are subject to threats and thus ward off any attempt against their life and safety…”).
    15. Cantoral Huamani and Garcia Santa Cruz v. Peru, IACtHR, Judgment of 10 July 2007, paras. 146-148.
    16. UN Human Rights Committee, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, General Comment No. 31, CCPR/C/21/Rev.1/Add. 1326, 29 May 2004, para. 8.
    17. UN Human Rights Committee, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, General Comment No. 31, CCPR/C/21/Rev.1/Add. 1326, 29 May 2004, para. 8.
    18. UN Human Rights Committee, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/32/36, 31 May 2016, para. 25.
    19. Ouranio Toxo and others v. Greece, ECtHR, Judgment of 20 October 2005, para. 43.
    20. Ouranio Toxo and others v. Greece, ECtHR, Judgment of 20 October 2005, para. 37.
    21. IACHR, Second Report on the Situation of Human Rights Defenders, OEA/Ser.L/V/II. Doc. 66, 31December 2011, paras. 160-161.
    22. Cantoral Huamani and Garcia Santa Cruz v. Peru, IACtHR, Judgment of 10 July 2007, para. 144.
    23. Ouranio Toxo and others v. Greece, ECtHR, Judgment of 20 October 2005, para. 43.
    24. Cantoral Huamani and Garcia Santa Cruz v. Peru, IACtHR, Judgment of 10 July 2007, paras. 146-148.