Published in July 2018.
This module is a resource for lecturers
Freedom of association
International legal framework
Freedom of association is protected by article 22(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests". As it was noted in earlier in the Module, this right is closely connected with freedom of assembly. The wording of the accompanying restrictive clause in article 22(2) is largely the same as for the other fundamental freedoms, including article 21, with the slight difference being that instead of stating that any restriction must be "in conformity with the law" it states that this must be as "prescribed by law". That said, former Special Rapporteur, Martin Scheinin, was of the view that there was no difference in substance arising from this different wording (General Assembly 61/267, para. 76).
As with the right of assembly, a particular area of concern, both to Martin Scheinin as well as to the previous United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, has been the use of counter-terrorism legislation to restrict otherwise legitimate activities regarding freedom of association, such as through the "restrict[ion] or prohibit[ion] of the formation or registration of associations" (General Assembly, Human Rights Council report 26/29, para. 59). Commonly, the impact of such actions can be more detrimental upon the related rights of minority groups. For example, "[u]nder the guise of fighting terrorism or extremism, associations comprised of minorities, including religious, linguistic or ethnic minorities, may be subjected to delays in registration, denial of registration, harassment and interference." (General Assembly, Human Rights Council report 26/29, para. 59). While recognizing the legitimate need for States to ensure national security and public safety, nonetheless the concern remains that restrictions may be used "as an excuse to silence critical or diverse voices" (General Assembly, Human Rights Council report 26/29, para. 59), including through reliance upon criminal laws and penal sanctions (General Assembly, Human Rights Council report 26/29, para. 60).
As the former Special Rapporteur also recognized, there are can be very real challenges associated with establishing where the demarcation line between permissible and impermissible activities should be drawn due to the inherent associated tensions:
[A]ssociations and organizations - whether formally created and registered or not - may also be used as means through which persons organize and carry out terrorist acts and transfer or use funds for terrorist actions, and thus be a means for the destruction of democracy. It is because of this dual nature that it is difficult to draw a line between too much limitation and appropriate restrictions. (General Assembly report 61/267, para. 16).
By way of illustration, a specific area of concern has been counter-terrorism legislation imposing stricter regulation for the creation and status of associations, especially where ambiguous definitions of terrorism are relied upon. This can have the disproportionate effect of limiting or even preventing the work of associations with legitimate aims which are not pursuing terrorist objectives or otherwise operating unlawfully (General Assembly report 61/267, para. 23). Significantly too, "[t]he fact that an association calls for achieving through peaceful means ends that are contrary to the interest of the State is not sufficient to characterize an association as terrorist" (General Assembly report 61/267, paras. 24 and 27).
Nonetheless, the safeguards considered in relation to freedom of assembly, when determining the imposition or legality of any restrictions, apply equally to freedom of association, particularly due to the real potential for their misuse here. Therefore, the onus lies with the State to justify any restrictions in accordance with the article 22(2) criteria, though it is recognized that this requires a balancing act between the interests of the affected individual(s) and the general public (para. 20). As Martin Scheinin further commented:
Proscribing associations which have as their aim the destruction of the State through terrorist means, or banning public demonstrations which call for the use of terrorist means to destroy the State may be covered by the limitation clauses of ICCPR. The Special Rapporteur underlines, however, that Governments must not use these aims/purposes as smokescreens for hiding the true purpose of the limitations. (General Assembly report 61/267, para. 20, emphasis added).
In order to ensure impartiality and independence, it is important that any proscription is based on fact rather than presumption, e.g., that a group or an association's founding document specifies terrorist objectives or methods; and that any such determination is subject to review or appeal by an independent judicial body. An organization should not be described as "terrorist" unless such legal safeguards are present (General Assembly report 61/267, para. 26). All this said, in certain circumstances it will be entirely legitimate for governments to combat terrorism through outlawing organizations that promote or foster it (OSCE, 2007, p. 216). Similarly, the Organization on Security and Co-operation in Europe (OSCE) has noted that any dissolution of an association violates human rights law if there is no legal basis for doing so, if it is not necessary or proportionate, or if it is discriminatory (OSCE, 2007, p. 216). Certainly, such accompanying risks and related concerns are higher during any situation of exceptionality, such as a declaration of emergency, when associations are more commonly closed down (see e.g. Amnesty International, 2016; Amnesty International, 2018).
The issue of fundraising activities of some associations has been an especially sensitive issue since associations may be used as conduits for the financing of terrorist activities as well as for unlawful money laundering activities. The funding of terrorist organizations is prohibited by a number of Security Council resolutions, including Resolution 1373 (2001), and Resolution 2170 (2014), which calls on Member States to take all necessary steps to "prevent and suppress the financing of terrorist acts and refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts..." (para. 11). Certainly, activities that hinder the financing or other resourcing of terrorist organizations form an important aspect of efforts to "minimize and control the threat of terrorism" (OSCE, 2007, p. 216). Yet, this can be a fine line to walk since the ability for bona fide associations to fundraise is central to their ability to carry out their activities and to pursue legitimate goals. Indeed, the previous Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, was of the view that "funding restrictions that impede the ability of associations to pursue their statutory activities constitute an interference with [the right to freedom of association]" (General Assembly, Human Rights Council report 23/39, para. 16).
Combating the abuse of non-profit organisations for terrorism while protecting the legitimate activities of charitiesAll States are under the obligation to criminalize and prosecute the collection of funds to be used to carry out terrorist acts, and to freeze and seize all funds used for or allocated to terrorism financing. The Financial Action Task Force (FATF)* states in its Recommendation 8 that non-profit organizations are particularly vulnerable to being misused for the financing of terrorism. FATF identifies three main ways in which non-profit organizations are misused by terrorists: ( a) By terrorist organisations posing as legitimate [non-profit] entities; ( b) To exploit legitimate [non-profit] entities as conduits for terrorist financing, including for the purpose of escaping asset-freezing measures; and ( c) To conceal or obscure the clandestine diversion of funds intended for legitimate purposes to terrorist organizations. The FATF Interpretive Note to Recommendation 8 on non-profit organisations (NPOs) stresses that "[m]easures adopted by countries to protect the NPO sector from terrorist abuse should not disrupt or discourage legitimate charitable activities. … Actions taken for this purpose should, to the extent reasonably possible, avoid any negative impact on innocent and legitimate beneficiaries of charitable activity. However, this interest cannot excuse the need to undertake immediate and effective actions to advance the immediate interest of halting terrorist financing or other forms of terrorist support provided by NPOs." (FATF Best Practice, Combating the Abuse of Non-Profit Organisations (Recommendation 8), paragraph 3(c)). FATF has developed a set of best practices to assist States in protecting legitimate activities of charitable organizations in their efforts to stop the misuse of non-profit organizations for terrorist financing. * The Financial Action Task Force (FATF) is an independent inter-governmental body that develops and promotes policies to protect the global financial system against money-laundering, terrorist financing and the financing of proliferation of weapons of mass destruction. The FATF Recommendations are recognized as the global anti-money laundering (AML) and counter-terrorist financing (CFT) standard.** Human Rights Committee, Sayadi and Vinck v. Belgium, Communication no. 1472/2006, CCPR/C/94/D/1472/2006, 29 December 2008.*** European Court of Justice, Kadi and Yusuf v. The Council of the European Union , 2008 |
Criminal sanctions for association with a proscribed organizationIn addition to the non-penal sanctions mentioned above (e.g. freezing of assets), some legal systems also connect penal sanctions to the mere fact of belonging to a terrorist group or organization, i.e. without the need for the prosecution to show participation of the accused in a terrorist act. In a report on the protection of the freedoms of assembly and association (A/61/267, paragraph 26), the Special Rapporteur on human rights while countering terrorism recommends that where belonging to a terrorist organization is made a criminal offence, the following safeguards should apply:
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Regional instruments and approaches
The African region
The relevant provision of the African Charter is article 10(1) which simply states that: "Every individual shall have the right to free association provided that he abides by the law." The African Commission has found that any blanket restrictions on those who may form associations - e.g., based on age, nationality, sexual orientation and gender identity or other discriminatory categories (ACommHPR, 2014, p. 31, para. 13) - is inherently unlawful. No further provision is made in terms of clarifying this right nor when it might be restricted, except for reference to the "obligation of solidarity" provided for in article 29 (one of the unique features of the African Charter). Article 10(2) also provides that "no one may be compelled to join an association", which is not stated within any of the other international or regional instruments, reflecting inter alia the continent's continuing sensitivities to its colonial past. Notably too, in the African Commission's counter-terrorism Principles and Guidelines, mention is made that one of the duties owed by States to victims of terrorism is to ensure that the latter can establish representative organizations to represent their rights in full exercise of their rights to freedom of expression and freedom of association (ACommHPR, 2014, p. 35).
The Inter-American region
With respect to regional instruments, the relevant provision of the American Convention on Human Rights is article 16. This is potentially the broadest (or at least the most detailed) of the comparable instruments in terms of its parameters, providing that: "Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes." With respect to human rights defenders, who play an important role in ensuring that States abide by the rule of law, the Inter-American Court of Human Rights (IACtHR) has held that this freedom includes the right to "set up and participate freely in non-governmental organizations, associations or groups involved in human rights monitoring, reporting and promotion" ( Kawas-Fernández v. Honduras, 2009, para. 146). The Court has further held that the State "has the duty to prevent attacks on this freedom, protect those who exercise it, and investigate any violations" ( Huilca-Tecse v. Peru, 2005, para. 76).
The restrictions in article 16(2) reflect the key elements of article 22(2) of ICCPR and have been confirmed by the Inter-American Court ( Escher et al. v. Brazil, 2009, para. 173). The Court has highlighted the importance of this freedom, e.g., in the case of Manuel Cepeda Vargas v. Colombia, in which it indicated that:
[I]n a democratic society States must guarantee the effective participation of opposition individuals, groups and political parties by means of appropriate laws, regulations and practices that enable them to have real and effective access to the different deliberative mechanisms on equal terms, but also by the adoption of the required measures to guarantee its full exercise, taking into consideration the situation of vulnerability of the members of some social groups or sectors. ( Manuel Cepeda Vargas v. Colombia, 2010).
The European region
With respect to the European Convention on Human Rights (ECHR), freedom of association is guaranteed in article 11, which jointly provides for both freedom of assembly and of association as was examined in the previous section. A judgment like that of Manuel Cepeda Vargas v. Colombia was issued by the ECtHR in United Communist Party of Turkey and Others v. Turkey (1998) . The Courtheld that political parties are a form of association essential to the proper functioning of democracy. It was also of the view that although an association may pursue an objective regarded by national authorities as contrary to their best interests, or even as undermining constitutional structures, associations may not be excluded from protection on such grounds.
The Middle East and Gulf regions
The relevant provisions of the Arab Charter on Human Rights are article 24(5), which articulates the right of every citizen to "freely form and join associations with others", as well as article 24(6) which specifies the right to "freedom of association and peaceful assembly" examined earlier in the Module. As was noted previously, the accompanying restrictions on these rights reflect those of article 22(2) and most other regional instruments.
With respect to the Organisation of Islamic Cooperation's (OIC) Cairo Declaration on Human Rights in Islam, there is nothing further to add to the observations made in earlier in the Module in relation to freedom of assembly.
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