3. Right not to associate

Freedom of association includes both the positive right to association as well as the negative right to refuse to associate with others. It is acknowledged in international law that no one may be compelled to belong to an association.^[1]

Regional instruments have explicitly recognized the right not to associate. According to Article 10 of the African Charter

[s]ubject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.^[2]

Similarly, the IACtHR has noted that

freedom of association includes a right and a freedom, to wit: the right to form associations without restrictions other than those permitted according to sections 2 [the three prong test for restrictions] and 3 [permissible exceptions for armed forces and police] of that conventional precept, and the freedom of all persons not to be compelled or forced to join the association.^[3]

The 2011 Venice Commission opinion on the rights of non-registered associations in Belarus describes the principle as follows:

There are in fact two fundaments underpinning the principle of freedom of association – that is the personal autonomy where the individual has a right to join or not to join (the negative freedom) and the freedom of natural persons and legal entities to collaborate on a voluntary basis within an organizational context without government intervention, in order to realise a mutual goal. …. The “negative” right of freedom of association implies that no one can be forced to form and join an association.^[4]

However, a clear distinction has been made between the right not to join an association and compulsory membership in a public association. The ECtHR has held that compulsory membership is not an interference with Article 11 provided that it is done by a public association that pursues aims in the general interest, such as public control over the practice of medicine, and in doing so acts as a kind of public authority^[5] (see Association Section 1.3).

The ECtHR examines on a case-by-case basis the “public” nature of the organization imposing compulsory membership. ^[6] The classification in national law is only the starting point.^[7] In a case involving compulsory membership in the Icelandic taxi association Frami, the ECtHR found a violation of the freedom not to associate where the public interest role of the association could have been served through other means than compulsory membership:

The Court does not doubt that Frami had a role that served not only the occupational interests of its members but also the public interest, and that its performance of the supervisory functions in question must have been facilitated by the obligation of every licence-holder within the association’s area to be a member. However, the Court is not convinced that compulsory membership of Frami was required in order to perform those functions. Firstly, the main responsibility for the supervision of the implementation of the relevant rules lay with the Committee. Secondly, membership was by no means the only conceivable way of compelling the licence-holders to carry out such duties and responsibilities as might be necessary for the relevant functions; for instance, some of those provided for in the applicable legislation could be effectively enforced without the necessity of membership.^[8]

The IACtHR has also provided grounds for determining whether compulsory membership violates the freedom not to associate, for example, when it infringes on other rights, such as freedom of expression. At the request of the government of Costa Rica, the IACtHR issued an advisory opinion on compulsory membership in an association prescribed by law for the practice of journalism.^[9] The specific request concerned “whether there is a conflict or contradiction between the compulsory membership in a professional association as a necessary requirement to practice journalism in general, and reporting, in particular.” The IACtHR found that the law in question – which would have required to journalists to be members of a “colegio” (association) in order to practice journalism, limited membership only to those who had completed a particular university specialization and imposed criminal penalties on those who failed to comply – constituted a violation of the right to freedom of expression [Article 13 of the ACHR] in that it denied such persons access to the media as a means to express themselves. The Court distinguished journalism from other professions in that

journalism is the primary and principal manifestation of freedom of expression of thought. For that reason, because it is linked with freedom of expression, which is an inherent right of each individual, journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional “colegio.” … The practice of journalism consequently requires a person to engage in activities that define or embrace the freedom of expression which the Convention guarantees. … This is not true of the practice of law or medicine, for example. Unlike journalism, the practice of law and medicine -that is to say, the things that lawyers or physicians do- is not an activity specifically guaranteed by the Convention. … The Court concludes, therefore, that reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual. Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based. ^[10]

While the IACtHR in its majority advisory opinion primarily focused on the right to freedom of expression, Judge Rafael Nieto-Navia issued a separate opinion stating that requiring journalists to join the association in order to practice their profession infringed on their right not to associate. The judge’s argument mirrored the logic of the ECtHR that there is a difference between journalist associations and those that “fulfill strictly public aims which transcend private interests.”^[11]