Análisis de los resultados de la entrevista

4. The Rights to Freedom of

Association and Assembly

The rights to freedom of association and assembly are closely related and will therefore be considered jointly in this chapter. As these two freedoms are not dealt with in the same order in the treaties considered, for the sake of consistency freedom of association will generally be dealt with prior to freedom of assembly.

4.1 Relevant legal provisions

Article 20 of the Universal Declaration of Human Rights provides that:

“1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.”

Article 22 of the International Covenant on Civil and Political Rights concerning the right to freedom of association reads as follows:

“1. 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.

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 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.

3. Nothing in this article shall authorize States Parties to the International Labour 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.”

Article 21 of the International Covenant on Civil and Political Rights guarantees the right to peaceful assembly in the following terms:

“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 10 of the African Charter on Human and Peoples’ Rights guarantees the right to free association:

“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.”

The right to freedom of assembly is contained in article 11 of the African Charter:

“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”

Article 16 of the American Convention on Human Rights guarantees freedom of association:

“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 rights shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association on members of the armed forces and the police.”

Article 15 of the American Convention on Human Rights safeguards the right of peaceful assembly:

“The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedoms of others.”

Both freedoms are included in article 11 of the European Convention on Human Rights, which reads:

“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 interests.

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 protection 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 forces, of the police or of the administration of the State.”

The right to freedom of peaceful assembly and association is also guaranteed by article 5(d)(ix) of the International Convention on the Elimination of All Forms of Racial Discrimination, article 15 of the Convention on the Rights of the Child and article 8 of the African Charter on the Rights and Welfare of the Child, while freedom of association is expressly guaranteed also by article 4 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. The right to form trade unions and to join a trade union of one’s choice is recognized by article 8 of the International Covenant on Civil and Political Rights, article 8 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, article 5 of the European Social Charter, 1961, and article 5 of the European Social Charter, 1996 (revised).

Freedom of association is, of course, also protected by the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The ILO is working extensively in the area of freedom of association, particularly within the framework of the Freedom of Association Committee of its Governing Body. In the present context, however, freedom of assembly and freedom of association will be considered only to the extent that they have been dealt with by the monitoring bodies under the major international human rights treaties.

4.2 Articles 21 and 22 of the International Covenant

on Civil and Political Rights

4.2.1 Origin and meaning of the “in a democratic society” concept

The drafting of article 21 and article 22 of the International Covenant on Civil and Political Rights followed each other very closely and, contrary to article 19(3) relating to freedom of expression, the limitation provisions of both articles contain a reference to “a democratic society”. These terms were inserted in article 21 at the eighth session of the United Nations Commission on Human Rights in 1952 at the suggestion of France,285_{which had already tried in vain, at the Commission’s fifth session in 1949,} to have the concept inserted in the text. At the time, France argued that the insertion of the concept was “essential”, since it was already contained in the general limitation provision of article 29 of the Universal Declaration of Human Rights.286_{The proposal} was renewed at the Commission’s sixth session in 1950, when Australia opposed it 285_{For the amendment see UN doc. E/CN.4/L.201. For the vote see UN doc. E/CN.4/SR.325, p. 20.}

since, at the time, the notion of “democracy” embraced two diametrically opposed concepts. However, Chile was in favour since “it was possible to classify States as democratic or anti-democratic by taking into consideration how each State complied with the principles laid down in the Charter, the Universal Declaration of Human Rights and the Covenant.”287_{The French representative stated that}

“63. ... he defined a democratic society as a society based upon respect for human rights. Public order in such a society was based on the recognition by the authorities of the dignity of the individual and the protection of his rights. Undemocratic societies were characterized by a disdain for human rights.

64. ... It was important to adhere to the spirit of the Universal Declaration of Human Rights and to declare forthrightly that even public order was subordinate to human rights. The reference to a democratic society should therefore be included.”288

The Lebanese representative, however, considered that the French definition “was subject to abuse, since often the greatest tyrannies claimed to respect human rights as they conceived those rights.” On the other hand, if the French amendment meant the total doctrine of human rights as promulgated in the Universal Declaration, he would accept it, although he felt “that the statement should be made explicit”.289

In 1952 the term “in a democratic society” was also inserted in the text of the article on the right to freedom of association over objections by the United States because of its “ambiguity”.290_{In the subsequent discussions in the Third Committee of} the General Assembly, Sweden pointed out that “the right to form and join associations of one’s choice was an important one in a democratic society.”291 _{Italy observed that} “freedom of political association completed the freedoms of opinion, expression and assembly, respect for which was the essential characteristic of a truly democratic State.”292_{As shown in this chapter, the intrinsic relationship between the freedoms of} expression, association and peaceful assembly has subsequently been consistently emphasized by the international monitoring bodies.

The drafters of the International Covenant on Civil and Political Rights