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FREEDOM OF ASSOCIATION
RECENT DEVELOPMENTS REGARDING THE “NEGLECTED RIGHT”
1[1] by
Leon E. Irish
President, International Cent er for Not-for-Profit Law

and
Karla W. Simon
Professor of Law, Catholic University of America

Editor’s note: This paper originally appeared in the American Society of International Law Human
Rights Interest Group Newsletter (Volume 9, No. 1 and 2, p.37).

Introduction. Customary international law deals principally with the rights and duties of
states vis à vis each other. It does not generally confer rights upon individuals. Rights have been
conferred on individuals, however, under multilateral treaties.
2[2] This paper discusses the rights
of freedom of association and assembly conferr ed on individuals and the organizations to which
they belong under international law.

A. Human Rights Documents . The most important international human rights
documents dealing with the freedoms of assembly and association, as well as the related right to
freedom of expression, are the following:

The Universal Declaration of Human Rights , Article 20 (1948) (Universal Declaration),
provides, in relevant part, that:

1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association. 3[3] The Universal Declaration is not a treaty. It is a resolution of the General Assembly of the United
Nations.
4[4] The Universal Declaration has had a seminal influence on the development of the

1[1] See Lawyers Committee for Human Rights, The Neglected Right (1997). This paper is a
précis and draft of a longer paper, and it is being disseminated here for discussion and comment.
The paper is also intended to serve as Appendix III for the Revised Discussion Draft of the World
Bank Handbook on Good Practices fro Law Re lated to Nongovernmental Organizations, prepared
for the World Bank by the International Center for Not-for-Profit Law (ICNL) . For a description of
ICNL, see the attachment.

2[2] A comprehensive online library of human rights conventions and related documents will be
found at
: https://www1.umn.edu/humanrts/hrcenter.htm .
3[3] For a discussion of the “negative” freedom of association (the right not to associate), see
Wino J.M. Van Veen, Negative Fr eedom of Association: Article 11 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms, 3 Int’l J. of Not-for-Profit L. 1
(Sept. 2000) (www.icnl.org/journal/vol3iss1/)

international law of human rights, however, and there is an argument that its widespread
acceptance and endorsement over so many decades is evidence that emerging customary
international law confers the human right s of which it speaks upon individuals.
5[5] Turning to treaties, the first one adopted in this area was the European Convention on
the Protection of Human Rights and Fundamental Freedoms , Article 11 (ECHR) (1953), a
convention that has been adopted by over 40 member s of the Council of Europe, from the early
1950’s to the present.
6[6] The ECHR provides, in relevant part, that:
1. Everyone has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form and to join trade
unions for the protection of his interest.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society
in the interests of national security or public safety, for the prevention of
disorder or crime, for the protecti on of health or morals or for the
protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these
rights by members of the armed fo rces, of the police or of the
administration of the State.

Of great importance is the fact that the EC HR established an elaborate dispute resolution
mechanism, including the European Court of Human Rights, the first international court dealing
solely with human rights matters.
7[7] The European Court has led the way in interpreting the
freedom of association in recent years.

Other regional covenants have been adopted and refer to the freedom of association.
For example, the American Convention on Human Rights of 1978, provides for the freedom of
association in Article 16, which describes the right as follows:

4[4] Gen. A. Res. 217 (1948).
5[5] Contemporaneously with the Universal Declarat ion, the American Declaration of the Rights
and Duties of Man (1948) affirms the “right to associate with others to promote, exercise and
protect his legitimate interests of a political, economic, social, cultural, professional, labor union,
or other nature.”

6[6] See https://conventions.coe.int/ . The ECHR was ratified by the U.K. in 1953 and by Georgia
in 1999.

7[7] The Inter-American Court on Human Rights was es tablished in 1992; see Statute of the Inter-
American Court of Human Rights, O.A.S. Res. 448 (IX- 0/79), O.A.S. Off. Rec.
OEA/Ser.P/IX.0.2/80, Vol. 1 at 98, Annual Report of the Inter- American Court on Human Rights,
OEA/Ser.L/V.III.3 doc. 13 corr. 1 at 16 (1980), repr inted in Basic Documents Pertaining to Human
Rights in the Inter-American System, OEA/Ser.L.V /II.82 doc.6 rev.1 at 133 (1992). The Protocol
to the African Charter on Human and People’s Rights establishing an African Court on Human
and People’s Rights was promulgated in 1997; see OAU Doc. OAU/LE G/MIN/AFCHPR/PROT.1
rev.2 (1997).

1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

2. The exercise of this right shall be subject only to such restrictions established by law as may be necessar y in a democratic society, in the
interest of national security, public sa fety or public order, or to protect
public health or morals or the rights and freedoms of others.

The African Charter on Human and People’s Rights of 1981 provides somewhat more
ambiguous support for this freedom in Article 10, which reads as follows:

1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.

There are no similar regional covenants that cover Asia or the Middle East.
The most important international human rights treaty dealing with freedom of association
and assembly and the related right to freedom of expression is the
International Covenant on Civil
and Political Rights , Article 22 (ICCPR) (1976). It is closely patterned on the ECHR, and it has
been ratified or acceded to by over 140 countries. The ICCPR provides, in relevant part, that:

1. Everyone shall have the right of freedom of association with others,
including the right to form and join trade unions for the protection of his
interest.

2. 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 interest 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.

3. Nothing in this Article shall author ize States Parties to the International
Labor Organization Convention of 1948 concerning Freedom of
Association and Protection of the Right to Organize to take legislative
measures which would prejudice, or to apply the law in such a manner
as to prejudice, the guarantees provided for in that Convention.

Thus, the ICCPR speaks quite unambiguously about the freedom of association, and its
provisions are binding on the states that are party to it.

The most recent United Nations document dea ling with the freedom of association is the
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to

Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms .8[8] This “Declaration of the Rights of Human Right s Defenders” provides in Article 5 that –

For the purpose of promoting and protecting human rights and fundamental freedoms,
everyone has the right, individually and in as sociation with others, at the national and
international levels:

(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;

(c) To communicate with non- governmental or intergovernmental
organizations.

Although this Declaration is a resolution of the General Assembly rather than a
convention or treaty, it provides a sound basis for gauging the consensus of considered opinion
on the meaning of the rights conferred under applic able multilateral treaties, such as ICCPR and
the regional conventions.

B. Human Rights Case Law . The rights created by the treaty provisions discussed
above apply by their terms to individuals, not to legal entities. Thus, although individuals enjoy
the right to freedom of association, it has not bee n entirely clear whether legal entities, such as
NGOs, enjoy the same rights. There is one import ant exception: trade unions. Under a series of
multilateral treaties negotiated under the auspices of the ILO, not only do individuals have a right
to form and join trade unions, but trade unions themselves also have rights.
9[9] A key question
with respect to other non-governmental organizations, accordingly, has been whether and how
the protections of these human rights treaties can be extended to NGOs.

Early precedents were not supportive of a broad right to form associations, 10 [10] and the
right to freedom of association received scant attention in the intervening years.
11 [11] All this

8[8] G.A. res.53/144, annex, 53 U.N. GAOR Supp., U.N. Doc. U.N. Doc. A/RES/53/144 (1999).
9[9] See Freedom of Association and Protection of th e Right to Organize Convention (ILO No.
87) , 68 U.N.T.S. 17, entered into force July 4, 1950; Right to Organize and Collective Bargaining
Convention (ILO No. 98), 96 U.N.T.S. 257, entered into force July 18, 1951; Workers’
Representatives Convention (ILO No. 135) , 883 U.N.T.S. 111, entered into force June 30, 1973;
Labor Relations (Public Service) Convention (ILO No. 151) , 1218 U.N.T.S. 87, entered into force
Feb. 25, 1981

10 [10] E.g., M.A. v. Italy, Human Rights Committee No. 117/1981. M.A. was imprisoned under
an Italian penal law making it a crime to “reorganiz e the dissolved fascist party,” without regard to
whether the new fascist organization was democratic and non-violent. The Committee concluded
that, “the acts of which M.A. wa s convicted (reorganizing the dissol ved fascist party) were of a
kind which are removed from the protection of t he Covenant [the ICCPR] by article 5 thereof and
which were in any event justifiably prohibited by Italian law having regard to the limitations and
restrictions applicable to the rights in question und er the provisions of article 18(3), 19(3), 22(2)
and 25 of the Covenant.” (¶ 13.3)

changed in 1998 and 1999. Groundbreaking decisions of the European Court of Human Rights
have now firmly established that there is a right under international law to form legally registered
associations and that, once formed, these organizations are entitled to broad legal
protections.
12 [12] The fundamental breakthrough occurred in United Communist Party of Turkey and
Others v. Turkey 13 [13] (“UCP”), decided in January 1998. In holding that Turkey could not
dissolve a political party that had engaged in no illegal activities simply because the national
authorities regarded it as undermining the constituti onal structures of the State, the Court said,
among other things:

[T]he Convention [the ECHR] is int ended to guarantee rights that are not
theoretical or illusory, but practical and e ffective. . . . The right guaranteed by
Article 11 would be largely theoretical and illusory if it were limited to the founding
of an association, since the national au thorities could immediately disband the
association without having to comply with the Convention. It follows that the
protection afforded by Article 11 lasts for an association’s entire life and that
dissolution of an association by a country ’s authorities must accordingly satisfy
the requirements of paragraph 2 of that provision. . . .

The right of individuals to register legally recognized associations that are not political
parties was addressed directly a half year later in
Sidiropoulos and Others v.
Greece ,14 [14](“ Sidiropoulos ”). In holding that Greece could not refuse to register an association
named the “Home of Macedonian Culture,” the stated purposes of which were exclusively to

See also J.B. et al v. Canada, Human Rights Committee No. 118/1982 (July 18, 1986). In
this case, however, a strong dissent argued that t he right to freedom of association “requires that
some measure of concerted activities be allowed; otherwise it could not serve its purposes. To
us, this is an inherent aspect of the right granted by article 22, paragraph 1.” (Dissenting op. of
Rosalyn Higgins, Rajsoom Lallah, Andreah Mavrommatis, Torkel Opsahl, and S. Amos Wako).
As the text makes clear, it is this view that has prevailed.

11 [11] See Lawyers Committee for Human Rights, The Neglected Right (1997).
12 [12] There have been some concurrent developments in United States case law, which have
also confirmed that legal entities have a right to freedom of association. In
Hurley v. Irish-
American Gay, Lesbian, and Bisexual Group of Boston, Inc. (515 US 557, 1995), the US
Supreme Court upheld the right of “expressive association” of a group of parade organizers who
alleged that their message would be harmed by requiring that the gay Irish-Americans be
permitted to march under their own banner during the St. Patrick’s Day parade. This right was
also recognized in the recent decision in
Boy Scouts of America v. Dale (June 28, 2000).
Similarly, in
California Democratic Party v. Jones (June 26, 2000), the Supreme Court recognized
the freedom of association of political parties in a decision involving the primary voting practices
of the state.

13 [13] European Court of Human Rights, (133/1996/752/951) (Grand Chamber decision, January
30, 1998) (available at
https://www.icnl.org ).
14 [14] European Court of Human Rights (57/199 7/841/1047) (Chamber decision, July 10, 1998)
(available at
https://www.icnl.org ).

preserve and develop the traditions and folk cultures of the Florina Region, the Court said, among
other things:

[T]he right to form an association is an inherent part of the right set forth in Article 11, even if that Article only makes expre ss reference to the right to form trade
unions. That citizens should be able to form a legal entity in order to act
collectively in a field of mutual interest is one of the most impo rtant aspects of the
right to freedom of association, without which that right would be deprived of any
meaning. . . . Certainly, States have a right to satisfy themselves that an
association’s aims and activities are in conformity with the rules laid down in
legislation, but they must do so in a manner compatible with their obligations
under the Convention and subject to review of by the Convention institutions. (§
40)

Most recently, in Freedom and Democracy Party (ÖZDEP) v. Turkey ,15 [15] the Court, in
a Grand Chamber decision, not only reaffirmed its decision in
UCP but extended it to a political
party that had the express aim to recognize rights of the Kurdish minority in Turkey (holding that it
did not intend to harm democracy by so doing – s ee discussion of this issue under “legitimate
aims,” below). In addition, the Court affirmed the nexus between the freedom of association and
the freedom of speech (guaranteed under Article 10 of the ECHR). The Court stated that –

[N]otwithstanding its autonomous role and particular sphere of application, Article 11
must also be considered in light of Article 10. The protection of opinions and the freedom
to express them is one of the objectives of the freedoms of assembly and association as
enshrined in Article 11. That applies all the more in relation to political parties in view of
their essential role in ensuring pluralism and democracy.

By finding in Sidiropoulos that the right to form legally registered associations was
“inherent” in the right of individuals to freedom of association, the Court avoided the disputes over
whether legal entities themselves enjoy the right to freedom of association. By finding in
UCP
and ÖZDEP that the protection of Article 11 extends throughout the life of an association, the
Court has effectively conferred the protections of the right to freedom of association on legal
entities.

The opinions of the court in Sidiropoulos , UCP , and ÖZDEP are lengthy and complex.
From these opinions, however, comes a clear line of analysis that can be used to determine, in
any particular case, whether there has been an impermissible restriction placed upon the
internationally protected right to freedom of associat ion. A step-by-step analysis of the facts in a
given case must proceed as follows:

1. Has a condition or restriction been placed on the right to freedom of association?
2. Is the condition or restriction reasonable, or is it an “interference” with the right to
freedom of association?

3. If there has been an “interference “–
a. Was it “prescribed by law”?

15 [15] European Court of Human Rights, (93 1998/22/95/784) (Grand Chamber decision,
December 8, 1999) (available at https://
www.icnl.org ).

b. Does it have a “legitimate aim”?
c. Is it “necessary in a democratic society”?
4. In deciding whether an “interference” has a “legitimate aim,” it must be justified –
a. In the interests of national security or public safety,
b. For the prevention of disorder or crime,
c. For the protection of health or morals, or
d. For the protection of t he rights and freedoms of others.
5. In deciding whether a particular “inter ference” is “necessary in a democratic
society” to achieve the “legitimate aim, ” the state party must show that the
“interference” was proportionate to the aim pursued.
16 [16] It is difficult to overstate the importance of t hese three cases. In the strongest terms they
have made it clear that an individual’s right to freedom of association includes the right to form a
legally recognized association and that such an asso ciation, once formed, in effect enjoys the full
protection in the exercise of the freedom of asso ciation that an individual has. Although there are
grounds upon which the right to freedom of associ ation may be limited or circumscribed, they are
limited and the state bears a heavy burden in seeking to impose them.

C. Analysis of the Case Law . The following discussion helps to illuminate the current
state of international human rights law in regard to the freedom of association. Although the three
leading cases resolve some fundamental issues, they raise others.

What is an “interference”? Do we know when a condition or restriction becomes an
“interference”? As demonstrated by the facts in
Sidiropoulos , it is clear that the refusal to register
an association can be an “interference.” At the sa me time, however, it is surely permissible for
national authorities to refuse to register an asso ciation that has filed an incomplete application,
chosen a name already in use, or one whose declared purposes are to engage in illegal activities.

Under the facts of UCP and ÖZDEP it is clear that the involuntary dissolution of an
association can be an “inter ference.” But it is surely permissible for national authorities to force
the dissolution of a bankrupt association or one that has been in repeated and serious breach of
generally applicable laws.

In order for a violation of the freedom of association to arise there must have been an
“interference” with the right. It seems apparent that many of the ordinary requirements imposed
as a condition of establishing an association or continuing it would ordinarily not be regarded as
an “interference.” For example, it is difficult to imagine questioning a requirement that there must
be at least 3 (5 or 7) members to form an association, that a board of directors must have at least
3 members, or that there must be a meeting of the general assembly of members at least once a

16 [16] In ÖZDEP the Court states that the “interference in issue was ”radical …, involving as it did,
the dissolution of the party before it even began its activities. It also notes that the party was
“penalised solely for exercisi ng its freedom of expression.”

year. Failure to comply with seemingly legitimate requirements such as these would not seem to
constitute an “interference.”

What would the Court say, however, if there must be 20 or 50 members to form an
association, if the Government has a right to a seat on the board of directors, or if the
Government has the right to nullify any resolution passed by the general assembly of members?
Any of these rules might have such a chilling effect upon the formation or operation of
associations as to constitute an “interference” with the right to freedom of association. So far,
however, there is no judicial guidan ce on issues such as these.

What does it mean to be “prescribed by law”? Once it has been determined that
there has been an interference, it is then necessary to determine whether it is “prescribed by law.”
Only an “interference” that has been “prescribed by law” can possibly be justified. Thus, an
unauthorized interference by government officials in the activities or operations of an association
could never be justified under international law.

In ÖZDEP , UCP, and Sidiropoulos the national authorities acted pursuant to specific legal
provisions, stated in written laws.
17 [17] Accordingly, these case s provide the opportunity to
explore the question of what might or might not constitute being “prescribed by law.” On general
principles, it would seem reasonable to presume that an interference is only “prescribed by law” if
it derives from any duly promulgated law, regulati on, decree, order, or decision of an adjudicative
body. By contrast, acts by gov ernmental officials that are ultra vires would seem not to be
“prescribed by law,” at least if they are invalid as a result. The discussions in the cases seem to
confirm this point.

What are “legitimate aims”? The next issue that must be resolved in the line of
analysis established by the European Court of Human Rights is what constitute “legitimate aims.”
As indicated above, the only grounds upon which an interference with the freedom of association
that is prescribed by law can be justified is if the interference in question is in pursuance of
“legitimate aims,” which require that it be–

(i) in the interests of national security or public safety,
(ii) for the prevention of disorder or crime,
(iii) for the protection of health or morals, or
(iv) for the protection of the rights and freedoms of others.
Both under the ECHR and the ICCPR, these four “legitimate aims” are exclusive.
In UCP the Court stated that a legislative provision precluding the use of the word
“communist” in the name of a political party coul d never be justified under any of these “legitimate
aims.” (§ 40) In
UCP the Court also stated that if a po litical party was openly pursuing the

17 [17] In Sidiropoulos the European Court refused to uphold a decision of the Greek courts
prohibiting registration of an association. The provision of the Greek Civil Code requiring
registration before an association acquired legal pe rsonality seems flatly inconsistent with Article
12 of the Greek Constitution, which prohibits any form of prior authorization for the formation of
nonprofit associations, but the Court did not rely on this point.

creation of a separate Kurdish nation, which would require re-drawing the boundaries of Turkey,
that would affect the national security of Turkey and would be a “legitimate aim.” (§ 40)

One year later, in ÖZDEP , the issue of the dissolution of a party that advocated rights of
the Kurdish minority in Turkey came before the Court. There the Court looked carefully at the
party in question and held that it could not be diss olved in pursuance of the admittedly “legitimate
aim” of ensuring national security. The important distinction it drew was that ÖZDEP’s statement
of aims could not be “considered a call for the us e of violence, and uprising, or other form of
rejection of democratic principles.” (§ 40). The Court went on to make clear that espousing
unpopular opinions does not, by itself, constitute a defensible reason to dissolve a political party:

In the Court’s view, the fact that such a political project is considered
incompatible with the current principles and structures of the Turkish State does
not mean that it infringes democratic rules. It is of the essence of democracy to
allow diverse political projects to be proposed and debated, even those that call
into question the way a State is current ly organised, provided they do not harm
democracy itself. (§ 41)

In Sidiropoulos the Court stated that upholding Greece’s cultural traditions and historical
and cultural symbols could not be a “legitimate aim” that could justify an interference with the right
to freedom of association of an organization intended to preserve and foster Macedonian culture.
(§’s 37-38) At the same time, the Court in
Sidiropoulos accepted that attempts to undermine the
territorial integrity of Greece could affect nati onal security and public order and therefore could be
“legitimate aims” for an interference with the right to freedom of association. (§ 39)

One of the interesting but unresolved questio ns that now arises is whether it will be
considered to be a “legitimate aim” to forbid the r egistration of a fascist political party, such as the
one considered in the UN Human Rights Committee case of
M.A. v. Italy . Although it would seem
inconsistent with
UCP and ÖZDEP to refuse to register a political party unless it sought the
violent overthrow of the government, it can be argu ed that legitimate state interests in protecting
the “rights and freedoms of others” or the ordre public might justify such an interference in
countries like Italy and Germany, based on their peculiar histories. But whether this is so awaits
future litigation in the ECHR. The resolution of this issue may well depend on the answer to the
next question.

What is “necessary in a democratic society”? Clearly it is going to be difficult in many
cases to determine whether there is a “legitimate aim” that can justify an interference with the
right to freedom of association. In considering th is criterion, however, it is important to bear in
mind that what may constitute a “legitimate aim” is limited by the requireme nt that the interference
intended to achieve that aim must also be “neces sary in a democratic society.” The language of
the Court in
UCP is instructive:
The Convention was designed to maintain and promote the ideals and values of a democratic society. . . . Articles 8, 9, 10 and 11 of the Convention require that
interference with the exercise of the rights they enshrine must be assessed by
the yardstick of what is “necessary in a democratic society.” The only type of
necessity capable of justifying an inte rference with any of those rights is,
therefore, one which may claim to spring from “democratic society.” Democracy
thus appears to be the only political mo del contemplated by the Convention and,
accordingly, the only one compatible with it. (
UCP § 45)

Both UCP and ÖZDEP make clear that ideas that “offend, shock, or disturb” are
protected under the right of freedom of expression . Thus, associations that take controversial
positions or criticize the government in ways t hat “offend, shock or disturb” are fully protected
under the Convention. In short, associations in effect enjoy fully the freedom of expression. This
is a crucial part of what is requir ed for a “democratic society” to exist.

More generally, any otherwise “legitimate aim” that has the effect of restricting or limiting
the full free exercise of democracy and democra tic rights should in almost every case be
impermissible as a justification for an interferen ce with the right to freedom of association.
Ordinarily, no such interference could or w ould be “necessary in a democratic society.”
18 [18] Democracy under the ICCPR. The link to democracy is even stronger under the ICCPR
than under the ECHR. In addition to limiting in Arti cle 22(2) any justified interference’s with the
right to freedom of association to those that are “necessary in a democratic society,” Article 25 of
the ICCPR provides that:

Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his
country.

Since virtually every state party to the ECHR is also a state party to the ICCPR, it is appropriate
to read these provisions into the concept of democracy that is to be used in applying the
standards of both treaties. Under this robust conc ept of democracy, the protection of the rights to
freedom of association and expression will receiv e broad and vigorous protection. Attempts by
governments to invoke any of the “legitimate ai ms” as grounds for curtailing these freedoms will
be difficult to justify under international law.

Procedural standards. Nearly as important as the substantive limits placed on the
ability of governments to curtail the freedom of association are the procedural and evidentiary
requirements that must be met to ensure that that an interference is “necessary in a democratic
society.” In every case the gov ernment will bear the burden of de monstrating to the satisfaction
of the Court that, with respect to any particula r interference with the freedom of association –

1. That it has construed strictly the legitimate aims it is pursuing ( UCP §46;
Sidiropoulos , § 40; ÖZDEP § 44);

18 [18] It is conceivable, of course, that ordi nary democratic rights might have to be suspended
temporarily because of war, civil insurrection, or other calamitous event in order to preserve a
democratic society in the long run. Such arguments can easily be misused, however, and any
invocation of them should be scrutinized with utmost care.

2. That its has adduced only convin cing and compelling reasons to justify
restrictions (
UCP § 46; Sidiropoulos § 40; ÖZDEP § 44);
3. That it has exercised its discretion reasonably, carefully, and in good
faith (
UCP § 47; Sidiropoulos § 40);
4. That the interference is proportionate to the legitimate aim pursued
(
UCP § 47; Sidiropoulos § 40; ÖZDEP § 43);
5. That the reasons adduced to justify the interference are relevant and
sufficient (
UCP § 47; Sidiropoulos § 40);
6. That it has applied standards which are in conformity with the principles
embodied in Article 11 (
UCP § 47; Sidiropoulos § 40); and
7. That it has based its decisi on on an acceptable assessment of the
relevant facts (
UCP § 47; Sidiropoulos § 40; ÖZDEP § 39).
In sum, in the landmark decisions of UCP , Sidiropoulos , and ÖZDEP the European Court
of Human Rights – the longest-functioning internat ional court with special jurisdiction to interpret
the rules applicable to freedom of association – ha s set forth clear and tough standards that must
be satisfied before any interference with the fr eedom of association can be justified. Moreover,
that freedom includes the right to establish a legally recognized association. Finally, once
established, that association, by derivation from its members, enj oys the freedom of association.

Accordingly, in order to comply with these norms, a state party must adopt and
implement a legal regime that permits the regist ration and operation of legal entities under rules
and conditions that are reasonable and that do not un reasonably restrain or restrict the right of
individuals to pursue their lawful interests through these legally recognized organizations. This is
the principle that must inform any analysis of la ws affecting NGOs, for if those laws unreasonably
impede the establishment or operation of NG Os, they should be regarded as invalid under
international law.

Legal entities. Having established this much, it is important to note that many other
questions remain. For example, do we know to wh ich kinds of legal entities the protections of the
right to freedom of association are extended? In
Sidiropoulos “associations” were within the
protection of the right to freedom of association. In
UCP and ÖZDEP political parties, a particular
kind of association, were held to come within the protection of the right to freedom of association.
In addition, under the language of Article 11(1) of the ICCPR, the right to freedom of association
seems clearly to extend to “trade unions.” It is t hus clear that the freedom of association is not
limited to organizations called “associations.” Presumably the protection of the right to freedom of
association also extends to other organizations t hat are like associations, such as “societies,”
“not-for-profit corporations,” “companies limit ed by guarantee,” and other typical not-for-profit
legal entities that have a membership or associational structure.

There is a question, here, however, whether the right to freedom of association extends
only to the right to form and operate membership or ganizations, or whether it extends as well to
non-membership legal forms, such as a foundation in civil law. Both membership and non-
membership forms of organizations are well-established in the leading legal systems of the world.
Each kind of organization is used by citizens to pur sue their collective interests. In either form
there is a group of individuals charged with the purposes and affairs of the organization. The
form chosen by any group of individuals depends upon their preferences in terms of type of

internal governance, not on any attribute fundamental to the freedom of association itself.
Accordingly, the better view would seem to be that any of the traditional forms of not-for-profit
organization is fully protected under international law.
19 [19] Presumably the protection of the right to fr eedom of association is not limited to secular
organizations. It should also extend to “chu rches,” “temples,” “mosques,” and other religious
organizations. Otherwise there would be serious questions raised that such a restriction might
violate the right to freedom of religion as well as the freedom of association.
20 [20] Perhaps more challenging is the question wh ether the right to freedom of association
extends to “cooperatives” and “mutuals,” to which the non-distribution constraint may not apply
and which may or may not be engaged principally in ec onomic activities. Further, does the right
to freedom of association extend to “employers’ tr ade associations,” “professional societies,” or
similar organizations that are formed to pursue the economic interests of employers, doctors,
lawyers, etc.? Finally, does the pr otected right extend to “corporations,” “partnerships,” and other
legal entities, where individuals come together to pu rsue for-profit activities on a collective basis?
The right to associate in order to pursue profit-mak ing interests is not ordinarily considered part of
the right to freedom of association, but it is not clear why it should be excluded.
21 [21] Application of ECHR precedents to the ICCPR . Because the language of Article 22 of
the ICCPR is virtually identical to the language of Article 11 of the ECHR, a strong argument can
be made that Article 22 of the ICCPR must be interp reted in the same way that Article 11 of the
ECHR has been interpreted. Although similar language in different treaties is not necessarily
interpreted the same in all cases, here the argume nt for identical treatment is very strong. The
two treaties deal with the same subject matter and are congruent if not identical in most
provisions. Many provisions of the ICCPR, including those dealing with the freedom of
association, were consciously modeled on the language of the ECHR. Thus, although
UCP ,
Sidiropoulos , and ÖZDEP are not direct precedents outside the countries in the Council of
Europe, there would have to be very strong argume nts to justify another court in departing from
the settled judgments of the this court, which is t he oldest international court with expertise and
jurisdiction exclusively in the area of human rights.

19 [19] It may be a different question whether a stat e, having enacted a satisfactory legal regime
for one kind of organization (e.g., associations) mu st make other kinds of organizations (e.g., not-
for-profit companies) available as well. Giving individuals a choice between well-crafted laws
permitting either a membership or a non-membership form of operation is, however, clearly good
policy. Whether the protection extends to situat ions in which there are no associates (e.g., a
foundation formed pursuant to a will or a charitable tr ust set up by one settlor) is not clear. Here
again, however, the better argument seems to be that it does.

20 [20] See Kathryn Bromley, The Definition of Religion in Charity Law in the Age of Fundamental
Human Rights, 3 Int’l J. of Not-for-Profit L. 1 (Sept. 2000) (
www.icnl.org/journal/vol3iss1/ )
21 [21] Although the related Convenant on Economic, Soci al, and Cultural Rights does not directly
support a linkage with the ICCPR on this point, it is arguable that it could be so interpreted.
Article 6 of the Convenant guarantees the right to work, while Article 8 guarantees the right to
form trade unions, which are just one form of association. See the International Covenant on
Economic, Social, and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.

This is an issue of great practical importance. Many of the countries that belong to the
Council of Europe and that are bound by the ECHR already demonstrate generous support for
the freedom of association. The ICCPR, on the other hand, has been ratified by over 140
countries, not all of which have fully respected t he right to freedom of association, as articulated
in
UCP , Sidiropoulos, and ÖZDEP .
Although the European Court on Human Rights ha s emphatically clarified that individuals
have the right to establish NGOs and that such N GOs are in effect protected by international law
during their existence, there are many questions that will be answered only over time. The
Handbook tries to indicate possible issues and answers to some of these questions in various
parts of the text.
22 [22]

22 [22] For further information about the Handbook, please contact the authors ( lirish@icnl.org or
ksimon@icnl.org. )