All international human rights instruments guard against discrimination in respecting freedom of association. As provided by Article 2(1) of the ICCPR, each State must commit
to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In addition, various international human rights conventions guarantee the right to freedom of association expressly for vulnerable populations, including refugees, women,[3] Convention on the Elimination of All Forms of Discrimination against Women, art. 7(c). children,[4] Convention on the Rights of the Child, art. 15. migrant workers[5] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 26 and art. 40. and persons with disabilities.[6] See UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/26/29, 14 April 2014, para. 20. For example, Article 29 of the Convention on the Rights of Persons with Disabilities explicitly recognizes the rights of persons with disabilities to participate in associations concerned with public and political life and by forming and joining organizations to represent their interests at all levels.[7] The Convention on the Rights of Persons with Disabilities, art. 29(b).
This general principle of international human rights law is also noted by Article 2(1) of the ICCPR, whose guarantees apply to all individuals within a State’s territory, and do not depend upon citizenship or other criteria:
the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.
This was confirmed by the IACtHR in Escher, et al. v. Brazil, which held that States are obligated to respect and promote freedom of association for all persons within their jurisdiction:
The Court has indicated that Article 16(1) of the American Convention establishes that anyone who is subject to the jurisdiction of a State Party has the right to associate freely with other persons, without an intervention of the public authorities that restricts or obstructs the exercise of the said right.
Article 3 of the Convention of the Council of Europe on the Participation of Foreigners in Public Life at Local Level further provides that
the right to freedom of association shall imply the right of foreign residents to form local associations of their own for purposes of mutual assistance, maintenance and expression of their cultural identity or defence of their interests in relation to matters falling within the province of the local authority, as well as the right to join any association.
The legal status of an individual within a State’s territory in and of itself never deprives the individual of such rights. For example, the ECtHR case of Cisse v France clarified that status as an illegal immigrant is insufficient to justify a breach of article 11.
Similarly, the AComHPR has held that Article 2 of the ACHPR’s guarantee that individuals shall enjoy the rights “without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” means that non-nationals are also fully protected. In Good v. Botswana, the AComHPR found a series of violations where a non-national resident of Botswana was deported in apparent retaliation for criticizing the government. On the question of his access to judicial remedy, the AComHPR explained that:
States parties to the African Charter thus have the duty to ensure that judicial bodies are accessible to everyone within their territory and jurisdiction, without distinction of any kind, such as discrimination based on race, colour, disability, ethnic origin, sex, gender, language, religion, political or other opinion, national or social origin, property, birth, economic or other status. Thus, non-nationals are entitled to the enjoyment of this right just as do nationals.
In addition, the Special Rapporteur on the rights to freedom of peaceful assembly and of association notes that freedom of association is international in nature, and thus “extends to cross-border or international collaboration between associations and their membership.” For example, Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples acknowledges that
(i)ndigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
Although the basic right to freedom of association is an individual right, once individuals have come together in pursuit of a collective goal, they may assert a collective right to freedom of association:
Just like individuals, associations as legal persons have the rights to freedom of association and all other universally and regionally guaranteed rights and freedoms applicable to them.
The IACtHR has also held that individual and collective rights must be guaranteed simultaneously.
When freedom of association is violated, both individuals and the associations may go to Court, as the ECtHR has confirmed, even after an association is dissolved. This is an endorsement of the fact that the rights and remedies apply to both individuals and the association, or collectivity.
For certain limited categories of people, the right to freedom of association may be restricted. In particular, States may impose lawful limitations on the right to freedom of association of members of the armed forces and the police.
ICCPR Article 22(2) authorizes such restrictions, in asserting that
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.
Article 16 (3) of the ACHR similarly holds:
The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association on members of the armed forces and the police.
The ECHR also provides the possibility to restrict the freedom of association to civil servants in its Article 11:
This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
This does not mean that members of the armed forces and the police (and under the ECHR, civil servants) may be stripped completely of their right to freedom of association. It does mean that the considerations for imposing restrictions may differ.
The different international or regional bodies have given some guidance on how to interpret this exception, especially with regard to representative associations and membership of political parties.
With regard to the police
In Nilsen and Johnsen v. Norway, the ECtHR recognized that police may have representative professional associations and that they may have a particular role to play. The Court examined the claims made by two members of the Norwegian and Bergen Police Associations, who made accusations of defamation against a researcher who had been looking into allegations of police violence. Although the case revolved mainly around a violation of freedom of expression, the Court highlighted its relationship to freedom of association as well:
A particular feature of the present case is that the applicants were sanctioned in respect of statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct. While there can be no doubt that any restrictions placed on the right to impart and receive information on arguable allegations of police misconduct call for a strict scrutiny on the part of the Court (…), the same must apply to speech aimed at countering such allegations since it forms part of the same debate. This is especially the case where, as here, the statements in question have been made by elected representatives of professional associations in response to allegations calling into question the practices and integrity of the profession. Indeed, it should be recalled that the right to freedom of expression under Article 10 is one of the principal means of securing effective enjoyment of the right to freedom of assembly and association as enshrined in Article 11.
In Trade Union of the Police in the Slovak Republic and others v. Slovakia, the Police Union complained about intimidation by the Minister of the Interior following trade union activities. Following a union public assembly which included, among others, chants for the government to step down, the Minister publically communicated that all police officers who would not respect the ethical code would be dismissed. The complainants argued that such threat violated the right to freedom of association. However, the Court found no violation of the right to freedom of association, recognizing that the aim to protect public trust in the police was legitimate and that
[the] aim was to ensure appropriate behaviour on the part of the police and maintain public trust in them. Those are indispensable conditions for the discharge of the duties of the police, which include ensuring public safety, prevention of disorder or crime and the protection of the rights and freedoms of citizens. The interference in issue therefore had a legitimate aim.
In a case involving the membership of police in a political party, the ECtHR did not find the restriction, which was precisely defined in national law, to be an unlawful restriction, given the possible limitations on the right to freedom of association for police members foreseen by the Convention. The Court considered the “neutrality of the police” to be a legitimate aim to protect, and that the imposed restriction did not completely strip members of the police from any engagement in political activities:
Bearing in mind the role of the police in society, the Court has recognised that it is a legitimate aim in any democratic society to have a politically neutral police force. In view of the particular history of some Contracting States, the national authorities of these States may, so as to ensure the consolidation and maintenance of democracy, consider it necessary to have constitutional safeguards to achieve this aim by restricting the freedom of police officers to engage in political activities and, in particular, political debate … As to the extent of the restriction … although the wording … might prima facie suggest that what is in issue is an absolute ban on political activities, an examination of the relevant laws shows that police officers have in fact remained entitled to undertake some activities enabling them to articulate their political opinions and preferences.
The ECtHR confirmed this approach in a more recent case concerning membership of police officers in a political party. In Strzelecki v. Poland, the Court noted there is a wider margin of discretion for States when it comes to restrictions for police officers and that the approaches vary across different countries depending on traditions and histories. The Court found that protecting the trust of citizens in an impartial police is a legitimate aim to protect; it also underscored again that the restrictions did not amount to a complete denial of the freedom to associate or to participate politically.
With regard to the military
Similarly to the position taken with regard to the police, the ECtHR found that the blanket ban on trade unions within the French armed forces was contrary to the convention. The Court clarified that States may impose legitimate restrictions. However, such restrictions may not amount to a denial of the right to freedom to form a union as such. Measures taken by States to soften the impact of the lack of a union for the military cannot substitute for this right[26] Matelly v, France, ECtHR, Judgement of 2 October 2014, para 70. Only available in French. .
The OSCE has issued recommendations to protect and uphold the right to freedom of association for members of the military, in particular with regard to representative associations and political party membership:
The Parliamentary Assembly of the Council of Europe considered in Recommendation 1572 (2002) that the Committee of Ministers should call on the governments of the member states to allow members of the armed forces and military personnel to organize themselves in representative associations (with the right to negotiate on matters concerning salaries and conditions of employment), to lift the restrictions on their right to association, to allow them to be members of legal political parties, and to incorporate all the appropriate rights in military regulations.
According to Assembly Recommendation 1572 (2002), with respect to the professional staff of the armed forces, freedom of association covers the following rights: the right of association, including the right to negotiate salaries and conditions of employment, and the right to belong to legal political parties. Arguably, members of the armed forces should fully enjoy the right, where the army is not involved in action, to set up specific associations geared to protecting their professional interests in the framework of democratic institutions, to join them, and to play an active part in them, while discharging their normal duties. The Assembly reiterated this view in Recommendation 1742 (2006), which additionally called on member states to permit members of the armed forces to join professional representative associations or trade unions entitled to negotiate, and to set up consultative bodies involving these associations representing all categories of personnel.