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Freedom of assembly and association

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Assistance, Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

The right to form groups, to organise and to assemble together with the aim of addressing issues of common concern is a human right. The ability to organise is an important means by which citizens can influence their governments and leaders. The right to freedom of association and assembly is protected in international and regional human rights treaties. These rights are applicable to any issue. Mass protest is a potent symbol of the exercise of this right.

The right to freedom of association appears is guaranteed many international human rights treaties. However, the right has been most defined and elaborated in international labour law given the particular links between these rights and the ability of workers to secure their economic and social status. Freedom of association is one of the central provisions underpinning the work of the International Labour Organization (ILO). ILO standards uphold the rights of workers and employers to form organisations and to bargain collectively.




 


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Rights at Stake

International and regional instruments protect a number of key rights relating to freedom of association and assembly.

(a) Right to peaceful assembly
This upholds the right to peaceful assembly which should not be denied except in situations of national security or public safety. The right to violent assembly is not upheld. However, international standards limit the use of force by authorities in controlling peaceful or non-peaceful assemblies. International standards require that law enforcement officials should use force only as a last resort, in proportion to the threat posed, and in a way to minimize damage or injury.

(b) Right of association
This covers the right of individuals to ‘associate’ together and establish associations. Some countries have sought to hamper the ability of individuals to form associations by a variety of means: by claiming they do not agree with the political purposes of the associations; by denying legal personality which would be essential for day to day running and for taking on contractual relationships; by imposing cumbersome and partial registration processes; by imposing financial constraints. The right of association not only applies to individuals who wish to form associations but also guarantees associations so formed have rights to operate freely and without interference.

(c) Right of an individual to join or not join an association
The right to join or not join an organisation. In some countries, individuals may suffer reprisals for joining organisations or be obliged to join certain associations approved of by the state.

(d) Right to belong to trade unions
Freedom of association has a critical meaning in the workplace and much of the jurisprudence which has developed on this issue comes from labour law. The following rights are upheld:

- Right of everyone to form and join trade unions for the promotion of their economic and social interests. Some states have attempted to curtail the activity of trade unions by hindering people from joining. In other places, certain categories of workers are excluded from enjoying these rights by national legislation. Examples include agricultural and domestic workers and others employed in informal settings; independent contractors; managers etc. In international law, the only exception to this right applies to the police and armed forces who do not have the right to form professional associations if this is contrary to national law. Other public employees have this right under international labour law although the extent to which civil servants are able to enjoy these rights has been a matter of debate in a number of countries.

- Right to form national and international confederations. It is essential for domestic groups to interact with each other at broader levels. In some countries the authorities have sought to hinder external contacts.

- Right of individual not to be penalised for belonging to a union i.e. if a person belongs to a union this should not be a reason for denying this person employment or for firing this person if he or she is already in employment.

- Right to strike. This is not an absolute right. It is by necessity nuanced as it affects other societal interests. This is especially so where public employees are providing essential services, the disruption of which may threaten the life, health and safety of the population. Fire fighters, for example, are prohibited from striking in some countries. Governments have attempted to hinder the right to strike through a variety of strategies Some countries, for example, adopt a permanent replacement doctrine whereby striking employees are replaced by new employees loyal to the employer who then vote the union out of existence. Such practices contravene international law.

- Right of organisations to elect representatives and draw up their own rules and constitutions. They are also protected from being dissolved by administrative authority. These provisions exist to protect associations from unreasonable interference in governance.

(e) No restrictions on these rights except for reasons of national security and public safety
Generally these rights cannot be derogated except for specific reasons relating to national security and public safety. The treaties themselves have not defined the parameters of these restrictions but subsequent jurisprudence, especially from the European Court of Human Rights, has stressed a narrow interpretation which only allows states to deny these rights in exceptional situations.


Key assistance agencies

The International Labour Organization (ILO) is the United Nations specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights. It was founded in 1919 as part of the League of Nations into being and it became the first specialized agency of the United Nations (UN) in 1946.

The ILO formulates international labour standards in the form of conventions and recommendations setting minimum standards of basic labour rights: freedom of association, the right to organize, collective bargaining, abolition of forced labour, equality of opportunity and treatment, and other standards regulating conditions across the entire spectrum of work related issues. It provides technical assistance primarily in the fields of:
• vocational training and vocational rehabilitation;
• employment policy;
• labour administration;
• labour law and industrial relations;
• working conditions;
• management development;
• cooperatives;
• social security;
• labour statistics and occupational safety and health.

The ILO promotes the development of independent employers' and workers' organizations and provides training and advisory services to those organizations. Within the UN system, the ILO has a unique tripartite structure with workers and employers participating as equal partners with governments in the work of its governing organs.





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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human rights to freedom of assembly and association. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

The following are the international treaties, declarations and commitments that determine standards for the protection of the freedom of association and assembly:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 20, 23)
The Universal Declaration of Human Rights (UDHR) is a resolution of the UN General Assembly and was adopted in 1948. As a resolution, it is not itself formally legally binding despite common assumptions to the contrary. However, the UDHR did establish important principles and values which were later elaborated in legally binding UN treaties. Moreover, a number of its provisions have become part of customary international law. Articles 20 and 23 protect the right to freedom of assembly and association and the right to form and join trade unions.

Convention Relating to the Status of Refugees (1951) (article 15)
The main international treaty on the rights of refugees specifically accords the same rights of refugees to association in non-political, non-profit-making associations and trade unions as that enjoyed by other nationals of foreign countries.

International Covenant on Economic, Social and Cultural Rights (1966) (article 8)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the General Assembly in December 1966 and entered into force in 1976. It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 8 guarantees trade union rights and in particular the right of everyone to form trade unions; to establish national and international federations; the rights of trade unions to function freely; and the right to strike.

International Covenant on Civil and Political Rights (1966) (article 21, 22)
The International Covenant on Civil and Political Rights (ICCPR) elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 21 asserts: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” Article 22 stipulates 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. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.”

Convention on the Rights of the Child (1989) (article 15)
This treaty clearly establishes the child's right to freedom of association and peaceful assembly under article 15. Violations of these rights can be taken up with the UN Committee on the Rights of the Child.

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) (principles 12, 13, 14)
This standard-setting document emphasises that police must not interfere with lawful and peaceful assemblies, and prescribes limits on the ways in which force may be used in violent assemblies.

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (1998)
This declaration by the UN General Assembly is also known as the declaration for the protection of the human rights defenders. It reaffirmed citizens’ right to freely associate with others especially for the purpose of working for the protection and realization of fundamental rights and freedoms.

UN Special Representative on Human Rights Defenders
Human rights defenders are defined as those who work alone or with others to uphold human rights standards. The rights of freedom of association and assembly may often be violated by authorities seeking to repress activities of human rights defenders. The Special Representative receives complaints from NGOs and individuals. Ms. Hina Jilani (Pakistan) was elected as the first Special Representative on Human Rights Defenders in 2000.


INTERNATIONAL LABOUR ORGANIZATION

The International Labour Organization (ILO) has adopted a number of conventions concerned with the rights of workers to organise and bargain through trade unions. Special supervisory mechanisms have been set up to monitor compliance with these conventions.

The ILO Committee on Freedom of Association, created in 1951, examines complaints even if government has not ratified these conventions. The Fact-finding and Conciliation Commission on Freedom of Association also exists to examine such complaints.

ILO Convention (87) concerning Freedom of Association and Protection of the Right to Organise (1948)
This treaty asserts the rights of workers and employers to establish and join organisations and to be free to elect representatives and draw up rules and constitutions as they wish without the interference of public authorities. Such organisations have the right to join together as national and international federations and may not be dissolved by administrative authority. National law may prescribe limits on the police and armed forces. This convention also protects the rights of workers to organise.

ILO Convention (98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (1949)
This convention aims to protect workers against anti-union discrimination and states that employment of a worker should not be subjected to a condition that he shall not belong to a union, nor should it be the reason for the dismissal of a worker.

ILO Convention (135) concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking (1978)
This convention strengthens the protection of workers’ representatives against being penalised for their actions.

ILO Convention (151) concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service (1987)
This convention extends anti-union discrimination provisions to public employees.

Declaration of fundamental principles and rights at work (1998)
This declaration asserts that even if ILO members have not ratified these conventions, they have an obligation as members of the ILO to promote principles of fundamental rights including the freedom of association and the right to collective bargaining.


 



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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples’ Rights (1981) (article 10, 11)
The main African human rights instrument guarantees the rights to free association (article 10) and free assembly (article 11).

African Charter on the Rights and Welfare of the Child (1990) (article 8)
This treaty specifically upholds the rights of children to free association and peaceful assembly.

 



COUNCIL OF EUROPE

Convention for the Protection of Human Rights and Fundamental Freedoms (1949) (article11)
This treaty, commonly known as the European Convention on Human Rights (ECHR), protects the rights to freedom of assembly and association (article 11).

European Social Charter (1961) (article 5, 6)
The European Social Charter deals with a number of issues concerned with work and employment. State parties are required to submit two-yearly reports which are examined by a the European Committee of Social Rights. The treaty protects the right of workers and employers to organise into local, national and international organisations. It also asserts the right to bargain collectively and requires states to set up consultation and arbitration mechanisms.

 

 

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EUROPEAN UNION

Charter of Fundamental Rights of the European Union (2000) (article 12)
The Charter upholds the rights to assembly and association. The Community Charter of Fundamental Social Rights of Workers (1989) elaborates on the rights of employers and workers to form associations, to negotiate and to conclude collective agreements. It also upholds the right to strike subject to obligations under national regulations.

 

 

ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1969) (article 15, 16)
The American Convention protects the right to assembly (article 15) and the right to freedom of association (article 16).



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National Assistance, Protection and Service Agencies

Countries which have ratified these international and regional treaties have agreed to meet their obligations under these conventions by inter alia implementing these provisions fully at national level. This should mean in the first instance reviewing their laws relating to freedom of association and assembly and adapting these to ensure they are in conformity or adopting new laws to meet these requirements.

Implementation of the right of freedom of association remains problematic in many countries and governments in many cases are failing to fulfil their obligations. Problems and concerns with implementation in individual countries is well documented in reports of the ILO, ECHR and the UN as well as submissions to them by NGOs. An extensive collection of cases and reports can be found at the Committee on Freedom of Association.

 

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Advocacy, Educational and Training Materials

For advocates

Enabling Civil Society: Practical Aspects of Freedom of Association (Public Interest Law Initiative)
A practical source book for activists, lawyers, government officials and others interested in how freedom of association relates to the legal regulation of NGOs.


For law enforcement officials

Human Rights and the Police - A Training Manual (Amnesty International)
This manual is being used in basic courses at police academies in Denmark. It offers a course framework and various useful overheads and handouts.

 


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Other Resources

Courses and training opportunities about international labour standards

Organisations advocating for the right to freedom of assembly and association

 

 

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Key terms

freedom of association - right to convene with others, form associations and to organize actions

freedom of peaceful assembly - right to convene in groups and protest peacefully

trade union - association of employees

Historical dates

1792 - Philadelphia (USA) shoemakers form the first local craft union for collective bargaining. Disbanded within a year.

1919 - the International Labour Organization (ILO) is established by the League of Nations

1948 - ILO Convention on Freedom of Assocation and Protection of the Right to Organize

"Everyone has the right to freedom of peaceful assembly and association" (Universal Declaration of Human Rights, article 20)

This guide was developed by Asmita Naik.

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