2. Who has the right to freedom of association?

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

In addition, various international human rights conventions guarantee the right to freedom of association expressly for vulnerable populations, including refugees,^[2] Convention and Protocol Relating to the Status of Refugees, art. 15. 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:

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:

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 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.^[11] Cisse v France, ECtHR, Judgment of 9 April 2002, para. 50.

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:

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.”^[13] 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. 61. For example, Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples acknowledges that

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:

The IACtHR has also held that individual and collective rights must be guaranteed simultaneously.^[16] Huilca‐Tecse v. Peru (Merits, Reparations and Costs), IACtHR, Judgment of March 3, 2005, para. 72; see also IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, paras. 158-9.

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.^[17] See Refah Partisi (the Welfare Party) v. Turkey, ECtHR, 13 February 2003, and Sindicatul “Pastorul cel bun” v. Romania, ECtHR, Grand Chamber Judgment of 9 July 2013, para. 70. 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

Article 16 (3) of the ACHR similarly holds:

The ECHR also provides the possibility to restrict the freedom of association to civil servants in its Article 11:

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:

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

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:

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.^[24] Strzelecki v. Poland, ECtHR, Judgment of 10 April 2012, paras. 51, 52, 54, 57. Available only in French.

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^[25] Adefdromil v. France, ECtHR, Judgement of 2 October 2014, para. 42-44. Only available in French. Para 42: “Elle [the Court] rappelle également que le paragraphe 2 n’exclut aucune catégorie professionnelle de la portée de l’article 11 ; il cite expressément les forces armées et la police parmi celles qui peuvent, tout au plus, se voir imposer par les États des « restrictions légitimes », sans pour autant que le droit à la liberté syndicale de leurs membres ne soit remis en cause.“ See also, Matelly v. France, ECtHR, Judgement of 2 October 2014, para. 56-58. . 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: