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]

5.1 Proactive measures: enabling legal framework

The UN Human Rights Committee has clearly laid out the obligations of States to take appropriate measures to ensure that they live up to their legal obligations under the ICCPR, including the need to pass relevant supporting legislation:

7. Article 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations. …

14. The requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.^[7]

Such regulating measures run the full range of an association’s life cycle from registration procedures to access to resources to dissolution. The joint guidelines issued by OSCE/ODIHR and the Venice Commission specify the standards for legislation and regulations in order that they fulfill a State’s obligation:

legal provisions concerning associations need to be well crafted. They need to be clear, precise and certain. They should also be adopted through a broad, inclusive and participatory process, to ensure that all parties concerned are committed to their content. In addition, they should be subject to regular review to ensure that they continue to meet the needs of associations, and should be adapted in a timely manner to reflect the ever-changing environment in which associations operate, including as a result of the advancement and use of new technologies.^[8]

In Kawas-Fernández v. Honduras, the IACtHR not only recognized that environmentalists are human rights defenders, it also stated that the State has to create the legal and practical conditions for the right to freedom of association:

Given the important role of human rights defenders in democratic societies, the free and full exercise of this right [to freedom of association] imposes upon the State the duty to create the legal and factual conditions for them to be able to freely perform their task.^[9]

5.2 Free from fear, threats and intimidation

States have an obligation to create an enabling environment free from fear, threats and intimidation to enable exercise of the right to freedom of association.^[10]

The Declaration on Human Rights Defenders says that States bear the primary responsibility to create an environment in which people are not hindered by threat in the exercise of their rights. States have to

“create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.” ^[11]

Specifically, States have to take measures to protect individuals from threats; this includes the elimination of impunity.^[12]

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association equally stresses the positive obligation of the State to create an enabling environment free from threats and intimidation, for all associations:

It is crucial that individuals exercising this right are able to operate freely without fear that they may be subjected to any threats, acts of intimidation or violence, including summary or arbitrary executions, enforced or involuntary disappearances, arbitrary arrest or detention, torture or cruel, inhuman or degrading treatment or punishment, a media smear campaign, travel ban or arbitrary dismissal.^[13]

An environment of threat, intimidation and impunity may not only lead to individual cases of violations of the right to freedom of assembly, but also leads to a general chilling effect for the exercise of the right. The IACtHR recognized such chilling effects specifically as a violation of the right to freedom of association.

In Kawas Fernández v. Honduras, the IACtHR clarified 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…^[14]

The IACtHR clearly recognizes the chilling effects of intimidation and finds that it restricts the right to freedom of association, not only of an individual but of the entire group of people with similar interests, as it did in Cantoral Huamani and Garcia Santa Cruz v. Peru:

The said due diligence is accentuated in contexts of violence against the trade union sector. … executions like these not only restricted the freedom of association of an individual, but also the right and the freedom of a specific group to associate freely without fear … this intimidating effect was accentuated and made more severe by the context of impunity that surrounds the case. ^[15]

5.3 Protection from third parties

The obligation to create an enabling environment also includes the duty to take action that protects individuals and associations from the acts of third parties.^[16] The UN Human Rights Committee has stated that the positive obligations of State parties:

will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights.^[17]

The Special Rapporteur on the rights to freedom of peaceful assembly and of association has emphasized that States’ failure to take appropriate measures or exercise due diligence to prevent, punish, investigate or redress the harm caused by non-state actors may constitute a violation of the right of freedom of association. This positive duty to prevent violations includes refraining from acquiescing to or enabling violations.^[18] When rights are interfered with, authorities have to provide adequate remedies to secure or restore the exercise of human rights (see Association Section 13).

Regional human rights bodies equally recognize the positive obligations of the State to prevent third-party interference with the right.

The ECtHR has recognized a State’s duty to provide protection against third party individuals seeking to disrupt the right to freedom of association. In Ouranio Toxo and Others v. Greece, the Court held that States are obligated to take such measures, especially when the interference was foreseeable:^[19]

… it is incumbent upon public authorities to guarantee the proper functioning of an association or political party, even when they annoy or give offence to persons opposed to the lawful ideas or claims that they are seeking to promote…^[20]

The IACHR has also underscored that attacking a human rights defender’s right to life, integrity or privacy also violates the freedom of association if that person belongs to an organization; the IACtHR has specifically established this obligation of States “in the case of those who are organized to defend and promote human rights.”^[21] The IACtHR explained that:

freedom of association also gives rise to positive obligations, such as to prevent attacks on it, to protect those who exercise it, and to investigate violations. These positive obligations must be adopted, even in the sphere of relations between individuals, if the case merits it.^[22]

5.4 Duty to investigate

In a case involving physical aggression by third parties, the ECtHR has held that:

In cases of interference with freedom of association by acts of individuals, the competent authorities have an additional obligation to take effective investigative measures.^[23] div>

The IACtHR has discussed the duty to investigate in several cases involving the extrajudicial killings of activists. In Cantoral Huamani and Garcia Santa Cruz v. Peru, the IACtHR found that Peru had violated several articles of the American Convention where it had failed to undertake effective measures and investigations regarding events leading to the kidnapping and murder of two labor activists. In discussing the violation of the right to freedom of association, the IACtHR explained that:

Freedom of association can only be exercised in a situation in which the fundamental human rights are fully respected and guaranteed, in particular the right to life and safety. The Court underscores the State’s obligation to investigate crimes against union leaders effectively and with due diligence, bearing in mind that the failure to investigate such facts has an intimidating effect, which prevents the free exercise of trade union rights.^[24]