Former UN Special Rapporteur on the rights to freedom of peaceful assembly and of association (2011-17)

As a general matter, any restrictions imposed on freedom of association by the State must be lawful, necessary and proportionate to a legitimate aim. The various international and regional human rights instruments guaranteeing the right to freedom of association share substantially similar language and jurisprudence. There is thus a growing common approach towards these standards globally.

The UN Human Rights Committee explained the scope of Article 22(2) [on restrictions] in Belyatsky v. Belarus. It clarified that restrictions on the right to freedom of association must meet the following three requirements: (1) prescription by law; (2) the law may be imposed solely to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others; and (3) the restrictions must be “necessary in a democratic society.”^[1] The Human Rights Committee elaborated that the protection afforded by Article 22 extends to all activities of an association.^[2] The legal framework and jurisprudence of the ACHPR, IACtHR and ECtHR also hold that allowable restrictions on the right to freedom of association must meet the same, enumerated three-prong test.^[3] There are only slight variations in wording in the conventions and all relevant bodies have adopted the strict proportionality test (see Association Section 6.3).

The African Charter states that freedom of association:

shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.^[4]

Similarly, the American Convention states that the exercise of the right to freedom of association:

shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.^[5]

The European Convention states that no restrictions shall be placed on the exercise of the right to freedom of association except such as are:

prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.^[6]

In any case where the State imposes a restriction, it bears the burden of proof to demonstrate it has met this three-pronged test.^[7]

6.1 Prescribed by law

The UN Human Rights Committee has explained that, to meet the requirement that a restriction be “prescribed by law,” a restriction must be “formulated with sufficient precision to enable an individual to regulate his or her own conduct accordingly, and it must be made accessible to the public.”^[8]

Furthermore, to fulfill this prong, “the law itself has to establish the conditions under which the rights may be limited.”^[9] In order to meet this principle of legality, the law should not use vague, imprecise or broad definitions of legitimate motives for restricting the right.^[10] Finally, a law cannot allow for unfettered discretion upon those charged with its execution.^[11]

The African, Inter-American and European Courts have all corroborated this approach in their rulings.^[12]

Additional clarifications have at times been made:

(1) On the instrument – the law

The IACtHR has stated that, in the context of legitimate restrictions on rights, the term “law” refers to:

a general legal norm tied to the general welfare, passed by democratically elected legislative bodies established by the Constitution, and formulated according to the procedures set forth by the constitutions of the States Parties for that purpose.^[13]

Thus, restrictions on freedom of association cannot be imposed through a government order or administrative decree,^[14] unless the power to issue that order or decree is itself based on a law, which meets the requirements stated above. The IACtHR stresses that any such delegation must be authorized by the Constitution; that the executive body should respect the limits of its delegated powers; and that it should be subject to effective controls.^[15]

The ACtHPR explained that such laws must be laws of general application.^[16]

The ECtHR takes a somewhat different approach. It takes the term “law” in its “substantive” sense and not necessarily in its formal one. In this way, the Court has included both “written law,” encompassing enactments of lower ranking statutes and regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by parliament, and even unwritten law. According to the ECtHR, law must be understood to include both statutory and judge-made law.^[17]

However, principle 9 of the OSCE/ODIHR and Venice Commission Joint Guidelines on Freedom of Association state that the law concerned shall be adopted through a democratic process that ensures public participation and review, and shall be made widely accessible.^[18]

The OSCE/ODIHR and Venice Commission Guidelines on Political Party Regulation specifies even further that any restrictions on free association must have their basis in law, in the state constitution or parliamentary act, rather than subordinate regulations, and must in turn conform to relevant international instruments.^[19]

(2) On foreseeability and accessibility

Various instruments confirm the principle that because people need to regulate their behavior on the basis of the law, the impact of the law needs to be ”foreseeable.” This is often also connected to the accessibility of the law.

The African Commission in its Study Report on Freedom of Association & Assembly has clarified that “prescribed by law” means the law “must be accessible, and formulated in clear language of sufficient precision to enable persons to regulate their conduct accordingly.”^[20]

The ECtHR has often discussed the requirement that prescribed by law does not only mean that a restriction needs to have some basis in domestic law but also that it must meet basic standards of accessibility, specificity and foreseeability:

The Court reiterates that the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. …^[21]

Laws in which the restriction is contained must be enacted in view of the general interest and in accordance with the purpose it was enacted. Furthermore, States shall not promote laws and policies with a “vague and imprecise and broad definition.”^[22]

(3) On vagueness and discretion

The ECtHR has repeatedly applied the principle embodied in the Human Rights Committee’s General Comment 34,^[23] stating that prescribed by law means that the law must be precise enough and cannot provide unfettered decision-making powers to the executive:

For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise. …^[24]

6.2 Legitimate aim

States may only impose restrictions on the right to freedom of association in pursuit of a limited number of legitimate aims. These are national security, public safety or public order, public health or morals, and to protect the rights and freedoms of others.^[25] When a State party invokes a legitimate objective as a reason to restrict the right to association, the State party must prove the precise nature of the threat.^[26] This includes a precise definition of the threat.

Core notions

General Comment 34 of the UN Human Rights Committee has provided clarification on the core notions to describe the legitimate aims. Public order refers to the sum of rules ensuring the peaceful and effective functioning of society, while national security refers to the political independence and/or territorial integrity of the State. ^[27] In a joint report, the Special Rapporteurs on extra-judicial, summary and arbitrary executions and on the rights to freedom of peaceful assembly and of association clarified specifically that “national, political or government interest is not synonymous with national security or public order.”^[28]

With regard to public morality, the Committee observes that content may differ widely from society to society. However, it clarified that the concept of morals cannot be derived exclusively from a single tradition.^[29] Similarly, the ECtHR has found on many occasions that democracy does not simply mean that the views of the majority (or the collective) must always prevail. Fair and proper treatment of minorities must be assured and abuse of dominant positions must in general be avoided.^[30] Economic interests as such are equally not part of the interests as enumerated.^[31]

In discussing counterterrorism, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has underlined that governments must not use legitimate interests as smokescreens for hiding the true purpose of the limitations, such as suppressing opposition, or to justify repressive practices against their populations.^[32]

Need for precision

There has been a growing global trend of States abusing the enumerated legitimate interests to restrict human rights by, for example, basing their restrictive actions upon broad interpretations of legitimate interests or terminology loosely related to it. On national security, the Special Rapporteur on the freedom of opinion and expression warned specifically against the

use of an amorphous concept […] to justify invasive limitations on the enjoyment of human rights […] The concept is broadly defined and is thus vulnerable to manipulation by the State as a means to justifying actions that target vulnerable groups.^[33]

Arguments thus need to be specific; they cannot be made in abstracto or by indicating general, unspecified risks,^[34] but must be done in an individualized fashion,^[35] applied in the particular case ^[36] or with a specific justification.^[37] For example, restrictions on the right to freedom of association based on national security concerns must refer to the specific risks posed by the association; it is not enough for the State to generally refer to the security situation in the specific area.^[38] On several occasions, the Human Rights Committee found a violation on the mere basis that no pertinent information or no information at all was given by the State to justify any of the legitimate interests.^[39]

National security and terrorism – no abuse

The use of counter-terrorism efforts to restrict freedom of association has increasingly arisen as part of discussions of national security and public safety.

While recognizing that combatting terrorism is a legitimate aim, international legal experts have emphasized that the goal has also been misused as a pretext for illegitimately limiting the right to freedom of association.^[40] The Special Rapporteur on the rights to freedom of peaceful assembly and association has noted that while States have a responsibility to address terrorism,

this should never be used as a justification to undermine the credibility of the concerned association, nor to unduly impede its legitimate work. In order to ensure that associations are not abused by terrorist organizations, States should use alternative mechanisms to mitigate the risk, such as through banking laws and criminal laws that prohibit acts of terrorism. In this context, all United Nations agencies, notably those focusing on actions countering terrorism, have a key role to play and bear the moral responsibility to ensure that human rights in general, and freedom of association in particular, are not impaired by counter-terrorism.^[41]

The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has underlined that governments must not use these legitimate interests as smokescreens for hiding the true purpose of the limitations, such as suppressing opposition, or to justify repressive practices against their populations.^[42] In a report to the General Assembly, the Special Rapporteur stressed that “States should not need to resort to derogation measures in the area of freedom of assembly and association. Instead, limitation measures, as provided for in ICCPR, are sufficient in an effective fight against terrorism.”^[43]

The ICCPR Human Rights Committee recognized this in its review of a Russian law, “Combating Extremist Activities,” explaining that “the definition of ‘extremist activity’… is too vague to protect individuals and associations against arbitrariness in its application.”^[44] For the legitimate aim of national security, the Committee has additionally clarified that the State must demonstrate the precise nature of the threat ^[45] as well as the fact that the restrictions “are in fact necessary to avert a real, and not only hypothetical danger to the national security or democratic order.”^[46]

The IACHR has stated that:

In the case of organizations dedicated to the defense of human rights, in invoking national security it is not legitimate to use security or antiterrorism legislation to suppress activities aimed at the promotion and protection of human rights. The concept of civil society must be understood by the States in democratic terms, in such a way that organizations dedicated to defending human rights may not be subject to unreasonable or discriminatory restrictions.^[47]

Legitimate aim and surveillance measures

In Escher et al., v. Brazil, the IACtHR found clearly that associations are to be protected from surveillance measures, underscoring that such measures constitute a restriction to the right to freedom of association. Such measures may thus only be applied when strictly necessary to safeguard democracy and when the necessary safeguards are put in place to prevent abuse of such measures. In the case, the IACtHR found surveillance had been abused to monitor the activities of the association:

[t]he State’s security forces may need to conduct legally-approved intelligence operations to combat crime and protect the constitutional order … these actions are legitimate when they constitute a measure that is strictly necessary to safeguard the democratic institutions, and when adequate guarantees exist to prevent abuse.^[48]

Similarly, the UN Special Rapporteur on the promotion and protection of fundamental rights while countering terrorism emphasized the specific risks to freedom of association posed by the use of surveillance:

Expanded surveillance powers have sometimes led to a ‘function creep’, when police or intelligence agencies have labelled other groups as terrorists in order to allow the use of surveillance powers which were given only for the fight against terrorism.^[49]

6.3 Necessary in a democratic society

Freedom of association “is at the heart of an active civil society and a functioning democracy.”^[50] Associations are also a key mechanism through which citizens participate in the democratic process.^[51] In addition to a right in its own regard, freedom of association is an enabling right, whose existence is “necessary for and part and parcel of democracy,” as well as for the fulfillment of other rights.^[52] Any limitation must therefore be necessary in a democracy; this has been interpreted as responding to a pressing social need and being proportional.

Pressing social need

The UN Human Rights Committee has clarified that the State must demonstrate that the restrictions placed on the right are in fact necessary to avert a real and not only a hypothetical danger. ^[53] “The mere existence of reasonable and objective justifications for limiting the right to freedom of association is not sufficient.”^[54] In other words, the State measure must pursue a pressing need, and it must be the least severe (in range, duration and applicability) option available to the public authority in meeting that need.^[55]

The African Court, like the ECtHR and IACtHR, takes the same approach:

[j]urisprudence regarding the restrictions on the exercise of rights has developed the principle that, the restrictions must be necessary in a democratic society; they must be reasonably proportionate to the legitimate aim pursued.^[56]

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, cites the OSCE guidelines when clarifying that the definition of necessary as a “pressing need” cannot be interpreted loosely and equated to notion such as “useful” or “convenient.” In addition, a democratic society includes tolerance, pluralism and broadmindedness:

As outlined by the Organization for Security and Co-operation in Europe (OSCE), “the word ‘necessity’ does not mean ‘absolutely necessary’ or ‘indispensable’, but neither does it have the flexibility of terms such as ‘useful’ or ‘convenient’: instead, the term means that there must be a ‘pressing social need’ for the interference”. When such a pressing social need arises, States have then to ensure that any restrictive measures fall within the limit of what is acceptable in a “democratic society”. In that regard, longstanding jurisprudence asserts that democratic societies exist only where “pluralism, tolerance and broadmindedness” are in place. Hence, States cannot undermine the very existence of these attributes when restricting these rights.^[57]

“[N]ecessary in a democratic society” indeed also implies that the restriction must not harm democratic values of pluralism, broad-mindedness and tolerance.^[58] Plurality as a core characteristic of democratic societies is also affirmed by the Human Rights Committee:

the existence and functioning of a plurality of associations, including those which peacefully promote ideas not favorably received by the government or the majority of the population, is one of the foundations of a democratic society.^[59]

The ACtHPR, the ECtHR and IACtHR have similarly underscored the importance of opposition voices for the proper functioning of democracy.^[60]

The Human Rights Committee applied these principles in Lee v. Republic of Korea and found a violation of Article 22 where the State Party had failed to show the specific threat to its national security and democratic order that would justify banning an organization and criminalizing its members.
[ click for full case explanation ]

In focus:

Lee v. Republic of Korea

At issue was the conviction of a student, Mr. Joeng Eun Lee, under South Korea’s National Security Law for his membership in Hanchongnyeon. Hanchongnyeon was a student union, which the Supreme Court of South Korea had banned under the same national security law on the basis that its objectives appeared to align with those of the government of North Korea and as such were a threat to its national security and democratic order. The Committee found that the State had failed to show that the conviction was necessary to protect national security because it had not shown that it was necessary to avert a real danger to either:

the existence of any reasonable and objective justification for limiting the freedom of association is not sufficient. The State Party must further demonstrate that the prohibition of the association and the criminal prosecution of individuals for membership in such organizations are in fact necessary to avert a real, and not only hypothetical danger to the national security or democratic order and that less intrusive measures would be insufficient to achieve this purpose.^[61]

In its submissions, the Republic of Korea justified the conviction by reference to the necessity to protect its national security and order. The Human Rights Committee reasoned that there had been a violation of the right to freedom of association:

7.2 … “The issue before the Committee is whether the author’s conviction for his membership in Hanchongnyeon unreasonably restricted his freedom of association, thereby violating Article 22 of the Covenant. The Committee observes that, in accordance with Article 22, paragraph 2, any restriction on the right to freedom of association to be valid must cumulatively meet the following conditions: (a) it must be provided by law; (b) it may only be imposed for one of the purposes set out in paragraph 2; and (c) it must be ‘necessary in a democratic society’ for achieving one of these purposes. The reference to a ‘democratic society’ indicates, in the Committee’s view, that the existence and functioning of a plurality of associations, including those which peacefully promote ideas not favorably received by the government or the majority of the population, is one of the foundations of a democratic society. Therefore, the existence of any reasonable and objective justification for limiting the freedom of association is not sufficient. The State Party must further demonstrate that the prohibition of the association and the criminal prosecution of individuals for membership in such organizations are in fact necessary to avert a real, and not only hypothetical danger to the national security or democratic order and that less intrusive measures would be insufficient to achieve this purpose.

7.3 The author’s conviction was based on article 7, paragraphs 1 and 3, of the National Security Law. The decisive question which must therefore be considered is whether this measure was necessary for achieving one of the purposes set out in Article 22, paragraph 2. The Committee notes that the State party has invoked the need to protect national security and its democratic order against the threat posed by the DPRK. However, it has not specified the precise nature of the threat allegedly posed by the author’s becoming a member of Hanchongnyeon. The Committee notes that the decision of the Supreme Court of the Republic of Korea, declaring this association an ‘enemy-benefiting group’ in 1997, was based on Article 7, paragraph 1, of the National Security Law which prohibits support for associations which ‘may’ endanger the existence and security of the State or its democratic order. It also notes that the State party and its courts have not shown that punishing the author for his membership in Hanchongnyeon, in particular after its endorsement of the ‘June 15 North-South Joint Declaration’ (2000), was necessary to avert a real danger to the national security and democratic order of the Republic of Korea. The Committee therefore considers that the State party has not shown that the author’s conviction was necessary to protect national security or any other purpose set out in Article 22, paragraph 2. It concludes that the restriction on the author’s right to freedom of association was incompatible with the requirements of Article 22, paragraph 2, and thus violated Article 22, paragraph 1, of the Covenant.” ^[62]

Proportionality

To meet the requirement that restrictions can only be imposed if they are “necessary in a democratic society,” restrictions must be also proportional, i.e. “they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”^[63]

Factors on which proportionality may be considered include:

The nature of the right in question; the purpose of the proposed restriction; the nature and extent of the proposed restriction; the relationship (relevancy) between the nature of the restriction and its purpose and whether there are any less restrictive measures available for the fulfillment of the stated purpose in light of the facts.^[64]

Applying the same standard, the ECtHR has consistently held that restrictions that are vague and potentially applicable to an exceedingly large number of parties, and that impose onerous and burdensome requirements on associations, are disproportionate to the State’s purported objectives. In addition, measures that inflict overly severe punitive sanctions on associations that fail to comply with otherwise reasonable legal formalities are likely to be disproportionate.^[65] Similarly, drastic measures, such as the dissolution of a NGO or barring it from carrying out its primary activity, can only be proportionate in extreme cases, such as when an association incites violence or advocates for the destruction of democracy.^[66]

The ACtHPR applies the same standard, clarifying that the proportionality analysis is based on an assessment of the “demands of general interest” that led to the interference and the nature of the interference itself.^[67]

The IACtHR and IACHR apply the same standard of proportionality and established the practice to verify – as part of the proportionality test – whether there indeed is a relationship between the claimed protected aim and the actual measure. In the case of Escher et al. v Brazil, the Court found a violation of the right to freedom of association as the surveillance measures did not in fact serve the proclaimed purpose of a criminal investigation. It found that:

Even though the State affirms that the interception of the communications was not contrary to freedom of association, because it sought a legitimate purpose – the investigation of an offense – according to the documents in the case file, there is no evidence that the purposes declared by the police authority in its telephone interception request, namely, the investigation into the death of a member of COANA and the alleged diversion of public funds, was really what it was seeking. […] The Court also notes that, in the summaries of the recorded tapes, none of the segments highlighted by the police authorities bears any relationship to the investigative purpose indicated in the interception request.^[68]

6.4 Particular scrutiny

The severer the impact of the restriction for a democratic society, the greater is the need to clarify the particular circumstances requiring such limitations to the right. Proportionality thus requires particular scrutiny in cases where an association may be prohibited or dissolved (see Association Section 12). Similarly, jurisprudence has indicated that restrictions on associations that are essential for a democratic society, such as human rights defenders or political parties, deserve particularly careful scrutiny.

Measures of prohibition or dissolution should be of last resort, only used in cases of grave transgressions, and should never be used to address minor infractions.^[69] The AComHPR confirmed this in the case Interights and Others v Mauritania, where the Union des Forces Démocratiques-Ere nouvelle (UFD/EN, Union of Democratic Forces-New Era), a Mauritanian political party, been dissolved by the Prime Minister of the Republic of Mauritania. According to the State, the measure was imposed “following a series of actions and undertakings committed by the leaders of this political organisation, and which were damaging to the good image and interests of the country; incited Mauritanians to violence and intolerance; and led to demonstrations which compromised public order, peace and security.”^[70] However, the Commission found that the dissolution was not proportional to the nature of the offences committed because the State had a range of other options to consider, and therefore found a violation of the right to freedom of association (Article 10(1) of the African Charter):

81. In this particular case it is obvious that the dissolution of the UFD/EN had the main objective of preventing the party leaders from continuing to be responsible for actions for declarations or for the adoption of positions which, according to the Mauritanian government, caused public disorder and seriously threatened the credit, social cohesion and public order in the country.

82. Nonetheless, and without wanting to pre-empt the judgment of the Mauritanian authorities, it appears to the African Commission that the said authorities had a whole gamut of sanctions which they could have used without having to resort to the dissolution of this party. It would appear in fact that if the respondent state wished to end the verbal ‘drifting’ of the UFD/EN party and to avoid the repetition by this same party of its behaviour prohibited by the law, the respondent state could have used a large number of measures enabling it, since the first escapade of this political party, to contain this ‘grave threat to public order’.^[71]

The AComHPR recognized that harassment and persecution of employees of a human rights organization amounts to a violation of the right to freedom of association.^[72]

6. What conditions need to be fulfilled for legitimate restrictions?

6.1 Prescribed by law

6.2 Legitimate aim

6.3 Necessary in a democratic society

6.4 Particular scrutiny