Freedom of association is the cornerstone of a vibrant civil society. The right to come together with others to advance a specific objective over time, or simply to affirm group solidarity or identity, is a key enabler of other civic freedoms, such as expression, peaceful assembly, and meaningful participation. Freedom of association is essential to the collective civic action that underpins the protection of democracy and exercise of all human rights worldwide.
Yet all around the world, freedom of association is under threat, to an extent perhaps unprecedented in the more than three decades since the end of the Cold War. Civil society and its allies need additional tools to push back against these threats, and the U.N. Human Rights Committee can furnish one such important tool: a General Comment on the right to freedom of association.
In our work with non-profits around the world, we see this regression manifest in many ways. We see it in attempts to restrict civil society access to foreign resources. Georgia and Kyrgyzstan have recently passed laws, for instance, mandating that civil society organizations (CSOs) receiving funding from abroad register as “foreign agents,” while Turkey has announced a draft law creating the new crime of acting as an “agent of [foreign] influence,” echoing other attempts through foreign influence legislation to discredit and isolate civil associations.
We see it in efforts to impose burdensome regulatory straitjackets on NGO operations, as in Angola, where a draft “Statute on Non-Governmental Organizations” would require NGOs to disclose not only all full-time members and management, but all beneficiaries, including from marginalized, vulnerable, and repressed groups. We see it in moves to restrict the formation of CSOs, such as in Tunisia, where a proposed NGO law would grant authorities broad discretion to refuse the establishment of an organization seeking registration.
We see it in the forced dissolution of NGOs on purported national security grounds, as for example in Nicaragua and Belarus, where thousands of registered NGOs have been shut by the authorities in recent years. We see it in the stigmatizing labelling of NGOs as “anti-development” and “anti-national,” or “terrorists” and “communists,” in countries such as India and the Philippines. We see it in illegal surveillance of NGO representatives and activists, as in the repeatedly documented use of Pegasus software by the Mexican government to spy on activists and human rights defenders (HRDs).
We see it in the deployment of counterterrorism legal frameworks against civil society, as in the widespread use of terrorism charges in Egypt to detain HRDs, sanction NGOs, and target lawyers representing CSOs and activists. And we see it in efforts to crack down on NGOs considered “disloyal” to ruling regimes, such as in Zimbabwe, where the “Patriotic Act” passed last year prescribes heavy penalties for “injuring the sovereignty and national interest of Zimbabwe,” and in Hungary, where a recently adopted “sovereignty law” creates new powers to investigate and convict individuals and organisations suspected of undermining the country’s sovereignty.
These restrictive measures and actions are not limited to authoritarian governments. Anti-civil society rhetoric and labelling is on the rise in countries such as France, Germany, the United Kingdom, and the United States. In a bid to counter covert “foreign influence,” the European Union itself has proposed a directive as part of its “Defense of Democracy” package that would impose over-broad and disproportionate transparency requirements on CSOs.
Civil society in these countries, often with support from the international community, is pushing back against these restrictions, in many cases with success. Earlier this year, for instance, restrictive proposed foreign agents legislation was withdrawn in Republika Srpska. In recent years, we’ve seen proposed laws restricting freedom of association withdrawn or rejected in Bulgaria, Mozambique, Sri Lanka, and Thailand, while laws enabling the exercise of associational rights have been enacted in Kosovo, Mauritania, and Moldova, thanks in significant part to civil society mobilization.
But civil society is striving to protect associational rights without the full panoply of tools needed to support their efforts. Although the key features of state obligations respecting freedom of association have been well-elaborated – including through jurisprudence of the U.N. Human Rights Committee, reports by the U.N. Special Rapporteur on freedom of peaceful assembly and association (UNSR/FOAA), and guidelines issued by international and regional bodies – there is no comprehensive, authoritative, globally applicable explication of these requirements. Without a clear, compelling codification of the requirements and standards pertaining to freedom of association under international law, civil society is left with a higher burden of persuasion and mobilization to push back against restrictive measures threatening associational rights.
The U.N. Human Rights Committee is ideally situated to fill this gap, as it is the body designated to monitor implementation of the International Covenant on Civil and Political Rights (ICCPR). That treaty clearly establishes in its Article 22 that “[e]veryone shall have the right to freedom of association with others,” subject only to specifically enumerated restrictions. The ICCPR also empowers the Committee to transmit to its States Parties “such general comments as it may consider appropriate.”
These general comments carry a force and authority greater than other guidance on rights protected under the Covenant. The Human Rights Committee has itself noted its status as the “organ established under the Covenant … charged with the interpretation of that instrument”; commentators have observed that “the legal status of general comments has grown beyond a mere technical recommendation into an authoritative source of interpretation.”
Under the authority of the ICCPR, the Committee has over the years developed 37 general comments addressing aspects of the Covenant or its Optional Protocols, to assist States Parties in fulfilling their obligations under these instruments. These include general comments on the core civic freedoms of opinion and expression and peaceful assembly, and the right of public participation, as well as associated freedoms such as the right to privacy and the right to freedom of thought, conscience, and religion.
Conspicuous by its absence from this list, however, is the right to freedom of association. This is not for lack of jurisprudence from the Human Rights Committee regarding freedom of association. According to the U.N. JURIS database, the Committee has issued 41 communications to date regarding Article 22. To be sure, this does not place Article 22 amongst the most-decided ICCPR provisions. In comparison, Article 21, concerning the right of peaceful assembly and addressed by the most recent General Comment No. 37, has been the subject of 127 Committee communications. But Article 22 is by no means among the ICCPR provisions least decided by the Committee, and the Committee has developed general comments regarding ICCPR provisions on which it had significantly less jurisprudence: 10 of the Committee’s previous general comments have addressed provisions that had been the subject of fewer than 25 communications at the time the relevant comment was developed.
In its jurisprudence on Article 22, the Committee has substantially explored the scope and features of the right to freedom of association. In 2023, our organizations, the International Center for Not-for-Profit Law (ICNL) and the European Center for Not-for-Profit Law (ECNL), compiled relevant sources of law from the U.N. system on Article 22. We found that the Committee has itself addressed, primarily in communications but also in concluding observations from its periodic country reviews, a broad range of issues germane to the protection and exercise of freedom of association. The Committee has explored, for example, the scope and definition of freedom of association, including the way associations may operate (e.g., online associations); registration procedures and refusals to grant legal personality; conditions for legitimate restrictions, including interference with associations’ governance, operations, and access to foreign funding; criminalization of membership of associations; sanctions that may be imposed, for example, on the grounds of national security or terrorism concerns; conditions for the suspension and dissolution of associations; and remedies available for violations of freedom of association.
Where the Committee has not squarely spoken to other important issues – such as surveillance of public organizations, restrictions on cross-border collaboration, registration of foreign associations, and application of counterterrorism and anti-money laundering measures to NGOs – it could still draw on and be informed by a wealth of other sources of standards and law. These include the Universal Periodic Review (UPR) reports, U.N. Human Rights Council resolutions, and UNSR/FOAA reports compiled in the aforementioned report, as well as jurisprudence and guidelines from regional bodies, as appropriate. Whether a general comment on association were to draw only on prior works from the Committee or cast a wider net, the Committee’s main task would be to codify well-established principles and obligations relating to freedom of association.
A general comment on Article 22 could have a significant positive impact on respect for associational rights, in a manner analogous to previous general comments. To take just the immediately preceding General Comment No. 37 as an example, we have seen this comment deployed to guide assembly monitoring and advocacy for enabling protest laws in Iraq; to support monitoring of digitally mediated assemblies in Eastern Europe and Iran; as a successful advocacy tool against a restrictive legal proposal in Denmark; and to inform the drafting of guidelines on managing protests issued by the Human Rights Commission of Sri Lanka.
In our experience, legal and policy frameworks pertaining to association are subject to more frequent revision than assembly laws. As already mentioned, there has been a troubling trend of increasing restrictions affecting associational rights in recent years. Opportunities to deploy a general comment on Article 22 to protect the right to association are thus likely to be widespread, with a consequently expansive scope for positive impact.
The Human Rights Committee, like other U.N. treaty bodies, has a considerable pressing workload, with a prodigious volume of communications and country reviews to focus on, together with other mandates and responsibilities. However, when the Committee decides to take up the question of which next general comment to develop, it should seriously consider lending its authority and expertise to clarifying the rights and obligations pertaining to freedom of association. The Committee, civil society, and other experts have done much to shed light on these rights and obligations in recent decades. With manifold threats now gathering to undermine associational rights, the need is greater than ever for the type of authoritative presentation of these rights that a general comment on ICCPR Article 22 could provide.