In his first thematic report to the Human Rights Council, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association clarified that an
“association” refers to any groups of individuals or any legal entities brought together in order to collectively act, express, promote, pursue or defend a field of common interests.
Associations may take a variety of diverse forms, including, but not limited to, civil society organizations, clubs, cooperatives, non-governmental organizations (NGOs), religious associations, political parties, trade unions, foundations or online associations. They may thus be formed for a variety of purposes: personal, cultural, political or otherwise. The key qualification is the freedom to function in unison towards some kind of joint goal. All of these different types of associations are protected under international law.
1.1. Associations do not have to be registered in order to be protected
It is well established in international law that the right to freedom of association equally protects formal – such as those which have establishing documents and are registered – and informal associations – such as those which operate practically and have not secured registration (see Association Section 7). The Special Rapporteur has on numerous occasions emphasized that the right to freedom of association applies to informal associations and does not require that a group be registered.[4] UN Human Rights Council, Fourth Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/29/25, 28 April 2015, para. 59.
In its Draft Guidelines on Freedom of Association and Assembly in Africa, the AComHPR’s definition of an association emphasizes that associations need not be formal:
An association is a not-for-profit grouping of persons brought together with a common interest, purpose or activity, which has some degree of institutional, but not necessarily formal, structure, and more than a fleeting existence.
Guideline 8 further states:
States shall not compel associations to register in order to be allowed to exist and to operate freely.
Legislation shall explicitly recognize the right to exist of informal associations. Informal associations shall not be punished or criminalized under the law or in practice.
International legal bodies have repeatedly found that associations remain free to operate regardless of whether or not they have achieved an officially recognized status. For example, in Movement for Democratic Kingdom v Bulgaria, the EComHR affirmed a number of previous cases in which:
a refusal of the authorities to register an association does not necessarily involve an interference with its rights under Article 11 (Art. 11) of the Convention where the association is nevertheless free to continue its activities.
A 2011 Venice Commission opinion on the rights of non-registered associations in Belarus elucidated on this further,
by underscoring that an association’s actions cannot be penalized for the mere ground of lacking registration. [ click for full case explanation ]
In focus:
2011 Belarus Report
In its 2011 Belarus Report, the Venice commission found that:
the mere fact that an association does not fulfil all the elements of the legal regulation concerned does not mean that it is not protected by the internationally guaranteed freedom of association. In Chassagnou and Others v. France the ECtHR emphasized the autonomous meaning of “association”: “The term “association” (…) possesses an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting-point.
93. The principles and protection laid down in the ICCPR and the ECHR consequently apply also to non-registered NGO’S. …
94. Hence, in the opinion of the Venice Commission, penalizing actions connected with the organization or management of an association on the sole ground that the association concerned has not passed the state registration, as Article 193-1 of the Criminal Code does, does not meet the strict criteria provided for under Article 22.2 ICCPR and 11.2 ECHR.
95. Criminalizing human rights activities as does Article 193-1 in cases where members of unregistered associations are supporting human rights work, cannot be regarded otherwise than as going against the underpinning values of the international human rights regime and in breach of the objectives of civil and political rights protected under the ICCPR and ECHR.
96. In conclusion, the Venice Commission considers that the mere fact that an association has not passed state registration may not be a ground for penalizing actions connected with such an association. This would make the activities of a non-registered association in fact impossible and, consequently, restrict the right to freedom of association in its essence.
Furthermore, in
Republican Party of Russia v. Russia, the ECtHR re-confirmed that a State cannot force an association to choose a particular legal form, stating:
it has already found it unacceptable that an association should be forced to take a legal shape its founders and members did not seek, finding that such an approach, if adopted, would reduce the freedom of association of the founders and members so as to render it either non-existent or of no practical value.
Associations may thus choose to operate without registration, and cannot be penalized for doing so. This is critical given the difficulty that certain organizations may encounter in registering, or the number of countries in which registration in general may be difficult to secure (see Association Section 7). Certain activities, such as opening a bank account or employing personnel, may however require associations to obtain legal personality (see Association Section 7.1).
1.2. Online organizations are protected
In recent years the Internet has become vital in facilitating active citizen participation in order to build democratic societies and mobilize “calls for justice, equality, accountability and better respect for human rights.” The UN Human Rights Council has repeatedly acknowledged the importance of information and communication technologies for the full enjoyment of the right to freedom of association, reminding States of their obligations to respect and protect this right online as well as offline.[12] UN Human Rights Council, The rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/RES/21/16, 11 October 2012, para. 1; see also UN Human Rights Council, The rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/RES/24/5, 8 October 2013, para. 2.
As further noted by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
The Internet has not only made it easier for citizens to express themselves freely and openly, but has also provided ideal conditions for innovation and the exercise of other fundamental rights such as the right to education and free association.
A 2011 joint declaration by the UN Special Rapporteur on freedom of opinion and expression, the OSCE Representative on Freedom of the Media, OAS Special Rapporteur on freedom of expression and the ACHPR Special Rapporteur on freedom of expression and access to information similarly underscored that the Internet is necessary to promote other human rights, including freedom of association.
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, at the conclusion of a visit to the Sultanate of Oman, specifically affirmed that the right to freedom of association applied equally online. Responding to reports of authorities hacking into online accounts, conducting online surveillance, and blocking Voice over Internet Protocol services, the Special Rapporteur stated that
(t) hese technologies are not only a means to facilitate these rights in the real world; they are a virtual space where the rights themselves are actively exercised. The rights to freedom of peaceful assembly and of association exist as much online as they do offline.
For these reasons, States should ensure access to the Internet for all individuals. According to a 2014 report by the Inter-American Commission on Human Rights:
the Internet offers space for strengthening the exchange of information and opinions. The Internet has been developed using design principles which have fostered and allowed an online environment that is decentralized, open and neutral. It is important for all regulation to be based on dialog among all actors and to maintain the basic characteristics of the original environment, strengthening the Internet’s democratizing capacity and fostering universal and nondiscriminatory access.
There are limited cases in which online activity may be restricted, notably to prevent offences under international criminal law and/or international human rights law such as incitement towards violence, genocide or terrorism. However, even these cases must pass the test of all restrictions of basic human rights: in being provided by law and being unambiguous, in pursuit of a legitimate purpose and in respect for the principles of necessity and proportionality (see Association Section 6). The OSCE/ODIHR and Venice Commission, for example, have noted that
(t)he blocking of websites of associations, or of certain sources of information or communication tools, can have a significantly negative impact on associations. Security measures should be temporary in nature, narrowly defined to meet a clearly set out legitimate purpose and prescribed by law. These measures should not be used to target dissent and critical speech.
The UN Human Rights Committee has expressly called on States to refrain from restrictions in special cases, such as the:
(d)iscussion of government policies and political debate; reporting on human rights, government activities and corruption in government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.
By extension, this implies that online associations engaging in these sensitive areas are not only entitled to protection, but are entitled to special protection. As the ECtHR has found,
pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” … Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has particularly emphasized:
The rights to freedom of peaceful assembly and of association play a key role in empowering individuals belonging to groups most at risk to claim other rights and overcome the challenges associated with marginalization. Such rights must therefore not only be protected, but also facilitated. It is the responsibility of all stakeholders to ensure that the voices of individuals belonging to groups most at risk are heard, and taken into account, in compliance with the principles of pluralism of views, tolerance, broadmindedness and equity.
1.3. Are public associations entitled to the same protections as private ones?
Generally, the right to freedom of association applies only to private associations – that is, those that are formed by private individuals wishing to come together for a specific purpose – and not to public associations that are founded, organized by or integrated into the State. The UN Human Rights Committee has explained that Article 22 applies to private associations only; it has refused to find a violation where a State Party requires legal entities to register or pay dues to a public organization, so long as its establishment is not aimed at undermining the enjoyment of Article 22.
In Wallman v. Austria, for example, the Committee held that Austria had not violated its citizen’s right to freedom of association where it required his business to join and pay annual dues to a chamber of commerce established for business purposes:
The Committee observes that the Austrian Chamber of Commerce was founded by law rather than by private agreement, and that its members are subordinated by law to its power to charge annual membership fees. It further observes that article 22 of the Covenant only applies to private associations, including for purposes of membership. … The Committee considers that once the law of a State party establishes commerce chambers as organizations under public law, these organizations are not precluded by article 22 of the Covenant from imposing annual membership fees on its members, unless such establishment under public law aims at circumventing the guarantees contained in article 22. However, it does not appear from the material before the Committee that the qualification of the Austrian Chamber of Commerce as a public law organization, as envisaged in the Austrian Constitution as well as in the Chamber of Commerce Act of 1998, amounts to a circumvention of article 22 of the Covenant.
Similarly, the ECtHR has found that whether an association was established by law is insufficient to determine that it is public and outside the protection of the right to freedom of association; it rather measures the association’s level of integration into a State structure.
In Chassagnou v. France, the Court held that mandatory, sub-regional hunting associations were private associations even though they had been established by law and were overseen by a public authority because 1) they were required to comply with the national law on private associations and 2) they were composed of private individuals who wished to come together for a specific purpose. The ECtHR reasoned that it was not a public association, as these two factors were insufficient to establish that the associations were “integrated within the structures of the State.”
The ECtHR has also found that an association created under law is public and outside the scope of Article 11’s guarantees where it was established by law to pursue a public interest, namely the regulation of the medical profession. In Le Compte, Van Leuven and De Meyere v. Belgium, the Court held that Belgium did not violate the applicant doctors’ rights to freedom of association by requiring they join the official Belgian medical association, responsible for oversight of the profession, because the national professional association was a public institution and they remained free to join other private, professional associations [click for full case explanation].
In distinguishing public associations from private associations, the ECtHR noted
64. … that the Belgian Ordre des médecins is a public-law institution. It was founded not by individuals but by the legislature; it remains integrated within the structures of the State and judges are appointed to most of its organs by the Crown. It pursues an aim which is in the general interest, namely the protection of health, by exercising under the relevant legislation a form of public control over the practice of medicine. Within the context of this latter function, the Ordre is required in particular to keep the register of medical practitioners. For the performance of the tasks conferred on it by the Belgian State, it is legally invested with administrative as well as rule-making and disciplinary prerogatives out of the orbit of the ordinary law (prerogatives exorbitantes du droit commun) and, in this capacity, employs processes of a public authority….
65. Having regard to these various factors taken together, the Ordre cannot be considered as an association within the meaning of Article 11 (art. 11). However, there is a further requirement: if there is not to be a violation, the setting up of the Ordre by the Belgian State must not prevent practitioners from forming together or joining professional associations. Totalitarian régimes have resorted – and resort – to the compulsory regimentation of the professions by means of closed and exclusive organisations taking the place of the professional associations and the traditional trade unions. The authors of the Convention intended to prevent such abuses…
The Court notes that in Belgium there are several associations formed to protect the professional interests of medical practitioners and which they are completely free to join or not. … In these circumstances, the existence of the Ordre and its attendant consequence – that is to say, the obligation on practitioners to be entered on the register of the Ordre and to be subject to the authority of its organs – clearly have neither the object nor the effect of limiting, even less suppressing, the right guaranteed by Article 11 par. 1 (art. 11-1).
The ECtHR examines on a case-by-case basis the “public” nature of the organization, e.g. when they impose compulsory membership (see Association Section 3).