The Neglected Right:
Freedom of Association in International Human Rights Law

December 1997

Introduction

Non-governmental organizations (NGOs) seeking to protect and promote human rights now exist in almost every country in the world. The majority are local groups working in often difficult conditions to ensure that the rights of individuals within their own society are guaranteed. Many human rights NGOs have encountered the hostility of their governments, precisely because of their role in encouraging debate and openness in society over issues some governments would prefer to keep silent about. This hostility tends to take two forms: open attacks on individuals who organize and work for NGOs, and a more subtle approach in which legislation or administrative decrees are used to hamper or prevent the operation of these groups. This latter dimension—attacks on freedom of association—is the focus of this paper. The paper examines the right to freedom of association in international human rights law. It analyzes the constituent parts of the right and seeks to determine whether, and if so to what extent, it confers rights on associations themselves. It also seeks to focus attention on the right to freedom of association, to stimulate debate and to encourage the positive development of the right in the future.

All the major international and regional treaties on human rights guarantee the right to freedom of association. Nonetheless, the precise parameters of the right remain vague and ill-defined in the jurisprudence of the relevant supervisory bodies. Only within the context of the International

Labour Organisation (ILO) has there been extensive and detailed discussion of what the freedom of association means, what the limits are, and what elements of the right are so critical that, if denied, they effectively deny the right itself. This paper argues that the principles established in ILO conventions and interpreted in a long line of ILO cases can and should be extended to the right of freedom of association found in "traditional" human rights law. The purpose of human rights law was to provide substantive protection to all persons against potential or actual abuses by states of certain basic rights. Circumstances not envisioned at the time of the drafting of the human rights treaties may require progressive interpretation of the original treaties to ensure that the spirit of the treaties, as well as the letter, is upheld. In such cases, the principles developed in a long line of carefully expressed ILO decisions are a treasure trove for human rights bodies only newly being asked to delve into the issues.

The report does not claim to be comprehensive, although it discusses many of the major decisions concerning freedom of association.

The Rights of Associations

What does freedom of association mean? At a minimum it is not disputed that it includes a right to form and join an association freely. But if it stops there, governments could restrict the ability of groups to operate freely. They might interfere with the internal decisions and organization of the association, with devastating consequences.

This paper argues that, in order for individuals to fully realize their right to freedom of association, organizations themselves must be able to function freely without unreasonable governmental interference. Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires State Parties to ensure "the right of the trade union to function freely." Although this refers specifically and only to trade unions it shows an understanding that the right to "form and join" an organization may not be sufficient to enable an individual to fully realize his or her right to freedom of association.

Decisions from the Human Rights Committee have rarely touched on the right to freedom of association. Case law from the European Convention on Human Rights (ECHR) is much more extensive in this field, but has generally hesitated to adopt this two-part approach to the right. In one case, although this point was not explicitly decided, the European Commission held that the refusal to register an organization could, in principle, constitute an interference with freedom of association—thus assuming that the association itself had certain rights.(1)

Some leading scholars have supported this approach. Professor Stephen Neff, an inter-national human rights scholar who has specialized in this field, noted:

The distinctive conceptual feature of freedom of association is its hybrid character, as both an individual and a collective right. It is typically formulated in international human rights instruments as an individual right, i.e. a right of individuals to associate with one another. But individuals can associate with one another in importantly different ways. They might associate only casually or on a once-off basis. But association might also consist of something more permanent, with an institutional character. If the association is of [this type] then it may be concluded—if only by implication—that the institution (or association) itself has a right to function freely and effectively as a collectivity. In other words, the principle of freedom of association ... may be argued to imply a right on the part of associations, after their formation, to operate free from unreasonable or excessive government controls.(2)

Elements of Freedom of Association

A. The Right to Establish an Association

The right to freedom of association affects many issues relating to the establishment and functioning of organizations, such as the right of associations to raise funds freely, to gain tax- exempt status, to affiliate with other national and international organizations, and to operate freely without unreasonable governmental interference.

1. What types of association may be established?

Governments have resorted to a variety of means to limit or prevent the activity of human rights NGOs. In some countries, they have cited the nature of a group's activities as a reason to deny it formal status. For example, groups have been characterized as "political organizations" and denied registration for that reason. The existence of other NGOs with similar purposes has also been cited by governments as a reason not to register an NGO.

International human rights law barely addresses this question. Tangentially related are cases dealing with political parties. There seems to be no dispute that political parties are viewed as protected associations under the ECHR, for example.

However, in very limited circumstances, international law may completely prohibit the establishment of an association. Under Article 17 of the ECHR, an NGO seeking to "engage in any activity ... aimed at the destruction of any of the rights and freedoms set forth" in the ECHR could be prohibited. This is very different from the situation of human rights NGOs that are seeking to protect and promote internationally guaranteed rights.

2. Legal Personality

Legal personality, which confers the right to open a bank account, to hire and fire employees, and to rent or own premises, is frequently essential to the effective operation of an NGO. Refusal to grant it can therefore effectively undermine the right of association. Yet the relationship between forming an association and obtaining legal personality is not a straightforward one. Wide disparities exist in national law, even in a relatively homogenous grouping of countries such as Western Europe.

The ILO provides strong support for the view that the right to legal personality is inherent in the right to freedom of association. The Committee on Freedom of Association (CFA) noted that it is one of the conditions which enables a union to function legally. From the Case law of the ECHR, however, it seems that the right to freedom of association has not been held to imply a right to legal personality per se.(3)

A related point is in what circumstances an NGO has the right to bring a case to court (or to defend such a case) either on behalf of the NGO itself, or its members, and whether it can bring cases on behalf of victims of human rights violations. Although it has not traditionally been viewed as an element of the right to freedom of association, some scholars have argued that NGOs should have the right to represent the collective interest of the public and challenge administrative decisions or regulations or practices which contravene international human rights law. However, in an ECHR case on this point the Commission held that associations must show a legal interest of their own if they want to bring a court action.

3. Registration

Registration is frequently, although not universally, required in order for an NGO to attain legal personality. It is therefore critical for NGOs that the registration process is not so burdensome that it, in effect, denies the right to association at all. Instead it should be quick, straightforward, cheap and subject to independent judicial review.

While the ILO has found that in the case of trade unions compulsory registration need not be incompatible with freedom of association, clearly there are circumstances where this could be the case. The United Kingdom government amended a Hong Kong ordinance on precisely these grounds, because the consequences of the failure to register were too extreme. In some countries where the government controls the registration process it has obstructed the operation of unpopular NGOs. The ILO has held that where registration is optional, but confers the fundamental rights necessary to defend and further the interests of trade union members, a discretionary system of authorization may amount to a system of prior authorization and thus contravene Convention 87. Where registration is sought but refused, an NGO needs the right to appeal that decision to an independent judicial body.

Although certain governments may require certain conditions to be filled before registration is granted, the ILO has, in a number of cases, held that these conditions should not be onerous. For example, if a minimum number of members is required, this number should be low, and the consideration of applications should not be unduly delayed. US constitutional law has held that where associations are required to provide information as a condition for registration, these conditions should not unreasonably impede the activities of lawful organizations whether in their effects or intentions. In one case where the National Association for the Advancement of Colored People (NAACP) was requested to provide a list of the names and addresses of all its members and agents in Alabama, as well as financial and legal records, the Supreme Court held that in practice there was a grave danger that NAACP members would be subjected to harassment and that the organization's effectiveness would be compromised.(4)

While international law does not prohibit states from requiring NGOs to register in order to obtain legal personality, in order to ensure that the registration process does not nullify the exercise of the right to freedom of association certain built-in safeguards should be included in domestic legislation. These might include the following:

• registration requirements that are not unreasonably onerous, either in terms of the quantity of information or the type of disclosure required
• a right of appeal to an independent and impartial court when an application for registration is denied
• a presumption that an application is approved after a delay of more than a certain period on the part of the competent ministerial authorities

B. The Right to Join (Or Not to Join) an Organization

The European Commission, in an early decision, defined freedom of association as "a general capacity for the citizens to join, without interference by the State, in associations in order to attain various ends." In Tunisia, an amendment to the law on associations created a legal right for any "individual to join an association provided that he or she subscribed to its principles." The Tunisian League for Human Rights condemned the measure as one which would permit the ruling party to take control of the League. This case points out the need for freedom of association to include the right of NGOs to retain control over whether to accept or reject potential new staff members or management.

C. Financial Resources

1. In a number of countries, governments have sought to restrict the flow of funds to NGOs, particularly funds from abroad. In India, for example, prior government approva lis needed before an NGO can receive foreign funds. In cases involving trade unions the ILO has held that laws requiring official approval of funds from abroad may be incompatible with Convention 87. Outside of the ILO system there has been little jurisprudence on the issue but the jurisprudence on limitations of rights suggests that any restrictions on NGO funding must be reasonable, not arbitrary.

2. Article 2(l) of the International Covenant on Civil and Political Rights (ICCPR) provides that each state party must "ensure to all individuals within its territory" the rights contained in the Covenant. At a minimum, in the context of freedom of association, this means a framework designed to facilitate, rather than inhibit the right. It also suggests that states have a positive duty to provide a regulatory and legal framework enabling individuals who wish to work together in a legally recognized form to do so. This issue is particularly important in the context of tax and other fiscal laws and regulations, as NGOs are frequently dependent on donations by individuals, corporations and foundations and the lack of tax exempt status or other tax benefits can have a stifling effect on the NGO community.

D. The Right to Affiliate with Other National and International Organizations

Contact with international human rights organizations is often crucial for domestic human rights groups. However, in some countries NGOs have been prevented from contacting or affiliating with international organizations dedicated to the same purposes. In the context of the ILO the right to affiliate with international organizations of workers and employers is specifically guaranteed to trade unions in ILO Convention 87, Article 5.

E. Unreasonable Government Interference in Internal Governance

Human rights organizations in a number of countries have suffered significant governmental interference in their internal governance. In a case brought before the African Commission on Human Rights, the Commission found that there had been a violation of the right to freedom of association when the Nigerian government issued a decree which established a new governing body of the Bar Association, three quarters of which were government appointees. The ILO has considered this issue in detail, and the CFA observed that "the removal by the government of trade union leaders from office is a serious infringement of the free exercise of trade union rights." Suspension of legal personality and dissolution of a union should be subject to appeal to an independent and impartial judicial tribunal.

The issue of governmental interference in an organization's internal affairs goes to the heart of the difficulties faced by many human rights NGOs. ILO Case law has been strong on this point and makes it clear that in the context of trade union there are well-defined limits to such interference. If the ILO's approach were adopted more broadly by the other international and regional human rights supervisory bodies, human rights NGOs confronting hostile and intrusive governments would enjoy significantly enhanced protection.

1. Indirect Burdens Human rights NGOs and their members may face indirect burdens as a result of their work, such as eviction from premises, or loss of government-paid jobs. In one early ECHR case the Commission upheld the principle that an indirect burden on an individual was an interference with freedom of association. Subsequent Case law has supported this approach.

2. General Principles of Limitations

While it is hard to generalize, the limitations clauses found in the various treaty articles relating to freedom of association are, on the face of it, quite broad, and permit rather extensive limitations. However, where the different treaty bodies have discussed these limitations in their jurisprudence they have interpreted the limitations cautiously and narrowed the scope for governments to invoke these clauses.

Article 22 of the ICCPR permits restrictions on freedom of association only in certain defined circumstances: where they are prescribed by law and necessary in a democratic society and for the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. The restrictions permitted by the regional treaties are similar. ECHR Case law contains the most extensive discussion of restrictive clauses, which can briefly be summarized as follows:

• prescribed by law, both written and unwritten law are included, the law must be accessible and it must be foreseeable;
• following a certain public policy interest;
• necessary in a democratic society, with necessary defined as something more urgent than merely useful or desirable, and considering that tolerance, broad-mindedness and pluralism are hallmarks of democracy and that democracy does not mean that the views of the majority must prevail, and that restrictions must be appropriate and proportionate to the legitimate aim pursued.

In addition, the Court has given states what it terms a "margin of appreciation" in deciding what is "necessary"—meaning the ECHR bodies tend to defer to the judgment of states on questions of fact, although not of law. ECHR Case law has shown that the Convention organs tend to interpret the test of "necessary in a democratic society" relatively strictly in freedom of association cases.

3. The Duties of NGOs

It has been suggested that NGOs owe particular duties, in return for being able to establish themselves easily. This notion of a trade-off is inappropriate. States have a duty to implement legislation that will create an enabling environment for all kinds of NGOs. There is no quid pro quo. NGOs should not be subjected to stricter regulation than other corporate entities merely by virtue of their non-profit status. It is the activity, not the entity, which should trigger such regulation.

Conclusion

While freedom of association remains a neglected right in international human rights law, human rights NGOs are facing increasingly sophisticated attempts by governments to restrict their operations through a wide variety of legal and quasi-legal controls. This study suggests ways in which the right to freedom of association could be developed to provide better protection to human rights monitors and advocates worldwide.

Endnotes

(1) Lavisse v. France, Appl. No. 14223/88, Decisions and Reports, Vol. 70 at 218-239.

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