Freedom of Association at the United Nations
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Ruairi McIntyre
Trinity College
I. Introduction
Article 22 of the International Covenant on Civil and Political Rights, the principal guarantee of the right to freedom of association under the treaties of the United Nations, provides that ‘[e]veryone shall have the right to freedom of association with others’, subject only to restrictions ‘prescribed by law’ and ‘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’. Judicial commentary and decision-making on the substantive content of the right lies within the jurisdiction of the UN Human Rights Committee.
In contrast to similarly drafted and intuitively comparable ICCPR provisions relating to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly, the Committee’s jurisprudence addressing Article 22 has been sparse and remarkably restrained. Indeed, the right to freedom of association remains one of the few substantive ICCPR rights without a General Comment.
The limited corpus of the Committee’s Communication Decisions on Article 22 appears, however, to indicate a disproportionate judicial emphasis on the political importance of freedom of association, and a failure to recognise the intrinsic value of the right. Whilst comparable provisions have been framed as ‘indispensable for the full development of the person’, Article 22 remains cast solely in terms of its instrumental function in strengthening political accountability, sustaining pluralism, and buttressing democracy. In this brief post, I assess the possible implications of such a one-dimensional philosophical basis in the Human Rights Committee’s understanding of the right to freedom of association; a right which remains judicially framed in terms of its importance to society at large rather than to the individuals in whom it purportedly vests.
II. The Scope and Parameters of Article 22
The Committee’s failure to cultivate a rights-based rationale recognising the intrinsic importance of freedom of association appears to have stymied judicial clarification of the scope and parameters of Article 22. The Committee has failed to recognise further guarantees ancillary to the right to freedom of association, and has eschewed expression of clear and justiciable criteria governing the permissibility of restrictions to the right.
In contrast to its frank recognition of the right to replace religious views or adopt atheistic views in the context of freedom of thought, conscience and religion, the Committee has repeatedly failed to acknowledge an express right to disassociate or a right against compulsion to associate in the context of Article 22. In both Wallman v Austria and Gauthier v Canada, the Committee evaded recognition of such components to the right to freedom of association.
The ad hoc, reactionary jurisprudence of the Committee is acutely apparent in its decisions addressing registration regimes. Whilst the Committee has failed to establish navigable principles regarding the permissibility of such restrictions in decisions relating to Article 22, it has held that equivalent regimes applying to freedom of assembly must not be unduly bureaucratic, entail excessive delay, or impose arbitrary requirements. Such criteria emerge from the Committee’s recognition that registration regimes ‘undercut the idea of peaceful assembly as a basic right’.
Similarly, addressing the requirement that restrictions be ‘provided’ or ‘prescribed’ by law, the Committee has, in the context of freedom of assembly, required restrictions to be sufficiently precise so as to ‘allow members of society to decide how to regulate their conduct’, to be accessible to the public, and not to confer sweeping discretion. The near-identical provision in Article 22 has given rise to no such general principles.
Whereas comparable rights with an established intrinsic value have given rise to the expression of clear, individual-centric criteria clarifying the content thereof and permissibility of restrictions thereto, the right to freedom of association, couched solely in terms of its instrumental significance, remains obscure in scope.
III. Freedom of Association and Other ICCPR Rights
The instrumentalist orientation of the right to freedom of association has also seemingly guided the Committee’s exposition of the interaction between Article 22 and other ICCPR rights.
Freedom of expression, for instance, has been deemed ‘integral’ to that of association, and the Committee even stated that breaches of Article 22 may indicate a prima facie breach of the right to freedom of expression. Concurrent application has, however, only arisen in instances of restrictions upon politically significant associations, with the Committee recognising the importance of freedom of expression in ensuring ‘the functioning of political parties in a democratic society’. Similarly, Article 25, governing the right to participate in public affairs, has been consistently applied in conjunction with Article 22 in Communication Decisions alleging the dissolution and obstruction of political opposition.
One may wonder whether the strikingly one-dimensional philosophical basis in which freedom of association is grounded may inhibit the emergence of further intersections between Article 22 and other ICCPR rights. Whilst various UN bodies have observed the ‘chilling effect’ that surveillance and information gathering may have on the right to freedom of association, the Committee has not yet addressed the interaction between the right to privacy and Article 22. Conversely, in its General Comment on freedom of assembly, the Committee has firmly stated that data and information collection must not harass or intimidate individual participants and must respect their right to privacy. Given the instrumentalist orientation of the Committee’s interpretation of Article 22, a similar recognition in the context of freedom of association is presently unlikely.
IV. ‘Necessary in a Democratic Society’: An Ambiguous Criterion
Finally, and more abstractly, couching the importance of freedom of association solely in terms of its instrumental, political significance undermines the basic protection afforded by Article 22. The Committee’s failure to ground the right within a rights-based rationale may permit the misappropriation and misinterpretation of the meaning of what is ‘necessary in a democratic society’, the primary criterion by which the permissibility of restrictions is determined under Article 22(2).
Without an established intrinsic aspect, oppressive measures upon minority, politically dissentient associations may be afforded undue leeway depending upon interpretation of the necessities of a democratic society. The present one-dimensional judicial understanding of the right may not be equipped to deal with an often inherent tension between the maintenance of peace and the facilitation of associational freedom in many modern democracies.
V. Conclusion
Compared to rights grounded in a more sophisticated philosophical basis in the jurisprudence of the Human Rights Committee, the right to freedom of association lacks recognition of its intrinsic importance. A General Comment on Article 22 should address this jurisprudential imbalance and equip the Committee with the intellectual machinery necessary for future development of the right.
Ruairi McIntyre is an LLM Candidate and the Leon Brittan Student in European Studies at Trinity College, Cambridge.
Suggested citation: Ruairi McIntyre, ‘Freedom of Association at the United Nations’ IACL-AIDC Blog (24 October 2024) Freedom of Association at the United Nations — IACL-IADC Blog
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