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International Guarantees: General and Specific

Jurisprudence
Good Practices
Challenges

Introduction

 

The principal underpinning for the operation of non-governmental organizations is to be found in guarantees established in universal and regional human rights treaties for the right to freedom of association. These guarantees are reinforced by various soft-law instruments and political undertakings by states.

However, the treaty guarantees of the right to freedom of association provide protection only for non-governmental organizations that are membership-based and for their members. The position of non-membership-based non-governmental organizations is assured more by soft-law instruments and political undertakings than by treaties.


     Treaty guarantees of freedom of association

Some of the treaty guarantees for the right to freedom of association are general in character, in the sense that they apply to everyone:

- Article 11 of the European Convention on Human Rights (CoE, 1950);
- Article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination (UN, 1965);
- Article 22 of the International Covenant on Civil and Political Rights (UN, 1966); and
- Article 12 of the Charter of Fundamental Rights of the European Union (2000).

These general guarantees of the right to freedom of association are reinforced and even extended by other treaty provisions that focus on particular interests such as culture and science or economic and social concerns or on particular sectors in a society, e.g., children; missing  persons; environmental campaigners; human rights defenders; indigenous and tribal peoples; migrant workers; national or ethnic, religious, and linguistic minorities; non-citizens, persons with disabilities; refugees and displaced persons; stateless persons and women.

- Article 15 of the International Covenant on Economic, Social and Cultural Rights (UN, 1966);
- Article 6 of the Indigenous and Tribal Peoples Convention (ILO Convention No. 169) (1989);
- Article 5 of the European Social Charter (CoE, 1961) and of the European Social Charter (Revised) (CoE, 1996);
- Article 15 of the Convention on the Rights of the Child (UN, 1989);
- Article 24(7) of the International Convention for the Protection of All Persons from Enforced Disappearance (UN, 2006)*;
- Articles 2, 3, 4, 6, 7, 8 and 9 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention, UN, 1998) and the Amendment to the Convention (adopted at the second meeting of the Parties held in Almaty, Kazakhstan, on 25-27 May 2005)*;
- Articles 26, 36 and 40 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN, 1990);
- Articles 3, 7, 8, 15, 17 and 18 of the Framework Convention for the Protection of National Minorities (UN, 1995);
- Articles 3 and 4 of the Convention on the Participation of Foreigners in Public Life at Local Level (CoE, 1992);
- Article 29 of the Convention on the Rights of Persons with Disabilities (UN, 2006);
- Article 15 of the Convention relating to the Status of Refugees (UN, 1950);
- Article 15 of the Convention relating to the Status of Stateless Persons (UN, 1960);
- Articles 7 and 14(2) of the Convention on the Elimination of All Forms of Discrimination against Women (UN, 1979).

* these treaties also cover non-governmental organisations that are not membership-based.

     Other treaty obligations

One regional treaty embodies a commitment for states parties to recognize the legal personality of certain foreign non-governmental organizations that applies regardless of whether the organizations are membership-based:

- the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (CoE, 1986);
Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms.

There are also treaties and treaty provisions specifically concerned with trade unions that are not included in AssociatiOnline:

- the Freedom of Association and Protection of the Right to Organise Convention (ILO Convention No. 87) (1948);
- the Right to Organise and Collective Bargaining Convention (ILO Convention No. 98) (1949);
- Article 6 of the European Social Charter (CoE, 1961) and of the European Social Charter (Revised) (CoE, 1996); and
- Article 20 of the Indigenous and Tribal Peoples Convention (ILO Convention No. 169) (1989).

     Soft law instruments and political undertakings

In addition to treaty guarantees, there are a number of soft-law instruments and political undertakings by states that explicitly recognize not only the right of non-governmental organizations to exist and operate but also the valuable contribution made by such organizations. Some are concerned only with organizations that are membership-based and in certain instances are focused only on certain sectors of society:
 
- Article 20 of the Universal Declaration of Human Rights (UN, 1948);
- Articles 5 and 15 of the United Nations General Assembly's Declaration on Social Progress and Development (UN, 1969);
- Article 6 (b) and (f) of the the United Nations General Assembly's Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN, 1981);
- the UN Basic Principles on the Independence of the Judiciary (UN, 1985);
- Paragraphs 12, 13 and 26 of the Concluding Document of Vienna — The Third Follow-up Meeting, Vienna, 15 January 1989 (OSCE);
- Paragraphs 9 and 10 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990;
- Articles 23, 24 and 25 of the Basic Principles on the Role of Lawyers (CoE, 1991);
- Part IV of the Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991;
- Article 2 of the United Nations General Assembly's Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (UN, 1992);
- the Concluding Document of Helsinki — The Fourth Follow-up Meeting, Helsinki, 10 July 1992 (OSCE);
- Recommendation No. R (94) 12 of the Committee of Ministers to Member States On Independence, Efficiency and Role of Judges (CoE, 1994);
- ICCPR General comment No. 23: The rights of minorities (Art. 27) (Fiftieth session, 1994) (UN)
- CEDAW General Recommendation No. 23: Women in Public Life (Chapter 1) (Sixteenth Session, 1997) (UN);
- the European Charter on the Statute for Judges (CoE, 1998);

Many apply to all non-governmental organisations:

- Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1 August 1975 (OSCE);
- Paragraphs 30, 32 and 33 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990;
- the Charter of Paris for a New Europe/Supplementary Document to give effect to certain provisions contained in the Charter of Paris for a New Europe, Paris, 21 November 1990 (OSCE);
- Paragraph 43 of the Document of the OSCE Moscow Meeting, 1991;
- the United Nations General Assembly's 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);
- Paragraph 27 of the Istanbul Document, Istanbul, 19 November 1999 (OSCE);
- the Fundamental Principles on the Status of Non-Governmental Organisations in Europe (OSCE, 2002);
- Paragraph 36 of the Document of the Eleventh Meeting of the Ministerial Council, Maastricht, 1-2 December 2003 (OSCE);
- the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe (CoE, 2007); and
- the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities (2008).

     Admissible restrictions

None of these treaty guarantees, soft-law instruments, or undertakings are absolute, but all restrictions on the existence and operation of non-governmental organizations must have a legal basis, serve a legitimate aim, and be necessary in a democratic society. See Articles 5, 20 and 22 of the International Covenant on Civil and Political Rights (UN), Articles 11 and 17 of the European Convention on Human Rights (CoE) and Article 17 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.

     Significance of human rights in general

Furthermore, it is important to keep in mind that, when non-governmental organizations carry out their activities, their members (if they have any), their staff, and their funders (if they are not public bodies) may also derive protection from other human rights guarantees, notably the rights to an effective remedy and a fair trial; the freedom of assembly; the freedom of expression; the freedom of thought, conscience, and religion; the right to peaceful enjoyment of possessions; and the right to respect for private life and correspondence.

     Evolving case law

The most helpful source of guidance in determining the scope of the general right to freedom of association is derived from the case law generated under procedures to determine complaints about alleged violations of the right.

However, this case law only addresses those issues that have been brought before the tribunals concerned and thus does not reflect the full extent of the protection that states are legally obliged to afford to non-governmental organizations, their members, their staff, and their funders.



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