INTERNATIONAL HuMAr ' RIGHTS CLINIC
FACULTY OF LAW, UN WERSITY OF TORONTO
To: Renee Redman
Cc: Diana Juricevic
From: Aneesa Waiji
Date: Friday 16 October 2009
Memorandum on Freedom of Association
Introduction
You have asked the International Human Rights Program (“IHRP”) to research “freedom
of association” standards to determine whether the events surrounding the election in Iran
on 12 June 2009 were in accordance with Iranian and International law.
Based on evidence provided by the Iran Human Rights Documentation Center
(“IHRDC”), it is the understanding of the IHRP that many citizens who are members of
reformist parties have been “semi-systematically” targeted. Leading party officials have
experienced raids on their personal homes by state forces and subsequent arrests. In fact,
many continue to be detained.' This memorandum explores the applicability of the right
to freedom of association to the situation in Iran, with special attention to arbitrary arrests
and protests surrounding the Iranian election. A summary of international law on
freedom of association is also provided which informs legal arguments to be submitted
by the IHRDC.
1 Facts provided by IHRDC.
Le2al Protections of Freedom of Association
INTERNATIONAL LA W
Freedom of association is formally and explicitly protected in international law. It is
enshrined in many treaties including article 20(1) of the Universal Declaration qfHunian
Rights, article 22 of the International Covenant on Civil and Political Rights (“ICCPR “),
article 8 of the International Covenant on Economic, Social and Cultural Rights, article
7(c) of Covenant on the Elimination qf All Form qf Discrimination Against Women and
article 15 of the Convention on the Rights qf the Child. In addition to these international
treaties, the right is also found in regional treaties such as article 10 of the African
[ Banjul] Charter on Human and Peoples Rights (“ACHPR “) and article 28 of the Arab
Charter on Human Rights. The widespread and formal protection of this right
demonstrates its acceptance and importance in international law.
While the right is most commonly found with language referencing trade unions, it has
strong relevance outside the realm of worker rights. 2 Eminent scholar Manfred Nowak
expresses this simply: “freedom of trade unions represents only a sub-case of freedom of
association.” 3 The Declaration qf Principles and Criteria Relating to the Freedom qf
Association in the Arab Countries articulates the general and broad relevance of this
right. It affirms that freedom of association is important to “achieving sustainable human
development, promoting citizen interest in public issues. . . and enhancing democracy,
democratic culture and strengthening civil society.” 4
2 See for example tile reference to trade unions in International Covenant on Civil and Political Rights, 19
December 1966, 999 U.N.T.S. 171, Article 22(1). There are also many international labour treaties
protecting freedom of association exclusively in a labour context. See for example: The Freedom of
45 sociation and Pi otection of the Right to Oigain se Coin ention (C87) The Right to Oigain se and
Collectn e Bai gaining Coin ention (C98) The Rights and 4 ssociation and Combination of 4gi icultui al
Jiorkers (Cii) and The Jiorker's Representatives Convention (C 135).
Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2 nd rev. ed. Kehl , Genimn Arlington, USA: N.P. Engel, 2005) at 13.
Unable to locate original document. Quoted retrieved from Freedom of Association” Association for
IT omen Rights in De elopment (4 IT ID) (2 December 2008) online AWID
. The same quote is
found in General Introduction” Euro—Mediterranean Human Rights Network (EMHRAO, online: EMIHRN
.
2
Since Iran is a State Party to the ICCPR, a key treaty protecting freedom of association
with a significant amount of affiliated case law and literature, the remainder of this
memorandum will explore the international law around freedom of association with a
special focus on the ICCPR. However, there is a lack of relevant jurisprudence from the
United Nations (“UN”) Human Rights Committee. With this in mind, Human Rights
Committee case law will be discussed as much as possible but when required, case law
from the European Court of Human Rights (“ECHR”) will also be employed. The
language protecting freedom of association in the European Convent/on for the
Protect/on qfHiinian R/ghts and Fundamental Freedoms is very similar to that found in
the ICCPR so although the ECHR applies a different treaty than the UN Human Rights
Committee, its case law is nonetheless relevant and applicable. 6 For easy reference,
Article 22 of the ICCPR is provided in full below:
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
(her) 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.
United Nations Treaty Collection, Chapter fl Human Rights: International Covenant on Civil and
Political Rights, online: < http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsgno=IV-
4&chapter=4&lang=en>. Iran is a State Party to tile ICCPR and it has not made any reservations. The fact
that Iran has not signed the optional Protocol to the ICCPR does not diminish the relevance and
importance of its existing human rights obligations under the ICCPR.
6 The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article ii.
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to foni 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 ani ed forces, of the police or of the administration of the State.”
3
IRANIAN LAW
Freedom of association has long been a norm in Iranian society, even before the right
received formal protection in international law. There is a history of trade unions in Iran,
well before the founding of constitution. 7 Article 21 of the Supplement to the
Constitution qf 1906 provides that, “Associations and assemblies that do not generate
religious or worldly disturbance are free throughout the land.” 8
The existing Constitution qf the Islamic Republic qf Iran (“Constitution “) provides
continued protection to freedom of association. Article 26 reads as follows:
The formation of parties, societies, political or professional associations,
as well as religious societies, whether Islamic or pertaining to one of the
recognized religious minorities, is permitted. . . .No one may be prevented
from participating in the aforementioned groups, or be compelled to
participate in them. 9
Iranian legislation such as the Ahzab (Political Parties) Activities Act may be relevant to
a discussion on the right to freedom of association in Iran.'° However, it has not been
possible to directly identify or retrieve any domestic legislation on the right to freedom of
association. Relevant legislation may very well exist in an un-translated form that is
inaccessible. In any case, given the lack of familiarity and available information on the
domestic legal system in Iran, the remainder of this discussion focuses in large part on
Iran's international legal obligations as they relate to freedom of association under the
ICCPR.
Adineh Abghari , Introduction to the Iranian Legal Svs teni and the Protection of Human Rights in Iran
(London: British Institute of International and Comparative Law, 2008) at 139.
Quote retrieved from Adineh Abghari , Introduction to tile Iranian Legal System and the Protection of
Human Rights in Iran (London: British Institute of International and Comparative Law, 2008) at 139.
The Constitution oft/ic Islamic Republic of Iran, Article 26, online: Iran Human Rights Documentation
Center
Defining Freedom of Association
Unlike other rights under the ICCPR, the Human Rights Committee has not issued a
general comment on freedom of association and this makes defining the right difficult.
However, there are a few key components that can be readily identified. Article 22(1) of
the ICCPR explicitly provides for a right to both create and join associations. Human
Rights Committee views go further to suggest that it includes the right to internally
regulate the affairs of an association and choose which organizations one joins.”
In discussing the content of the right, one must also ask when it applies. In other words,
what constitutes an association? Both international and domestic case law from different
jurisdictions suggest that the right applies to organizations with some sort of minimal
structure, as opposed to merely a group of citizens gathering informally. For instance, in
the case of Ouranio Toxo and Others v. Greece at the ECHR, two out of three of the
applicants were formal members of a political party's secretariat,' 2 which served as a
factual basis for an argument that freedom of association was violated. Due to a group of
demonstrators that “ransacked” their headquarters in combination with the “inactivity of
the police,” 3 a violation of the right to freedom of association was found. Similarly, in
Canadian jurisprudence, courts have dealt with freedom of association predominantly as
it relates to the rights of trade unions, which meet the requirement of having a formal
minimal structure.' 4
Like international law, the Constitution of Iran does not provide a clear or comprehensive
definition of freedom of association. It should be noted however that in providing for
freedom of association, article 26 of the Constitution makes explicit reference to the
Concerning the issue of internal mgulation, see for example Hasan and Chaush v. Bulgaria (26 October
2000), European Court of Human Rights, Application no. 30985/96. Concerning the issue of freedom not
to associate, see for example Le Compte, Van Leuven andDeMeyere v. Belgium (23 June 1981), European
Court of Human Rights, Application no. 6878/75; 7238/75
12 Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/01 atpara. 9.
13 Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/01 atpara. 31.
14 See for example Health Services and Support - Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27.
5
ability to form associations, participate in associations and choose which associations
one joins. There may be Iranian legislation further defining freedom of association but as
mentioned earlier, we have not been able to identify any such legislation.
A RIGHT TO PROTEST
Within the right to freedom of association, there is a right to “perform activities to protect
the interests of.. .members.” Whether this includes the right to protest is debatable.' 6
Thus far, the issue of protest has largely arisen in the case law in the context of trade
union strikes, perhaps partially explaining the contentious nature of the debate given the
opposing employee and employer interests at stake.
The few instances in which the Human Rights Committee has taken to addressing this
issue, its stance has been contradictory or ambiguous. In the case of Alberta Union v.
Canada, a right to strike was not found. In that case, provincial legislation prohibited
members of the Alberta Union of Provincial Employees from striking. The Human Rights
Committee concluded that the right to strike was not guaranteed by article 22 of the
ICCPR and that therefore, the communication was inadmissible.' 7 More recently
however, a 2004 concluding comment by the Human Rights Committee criticized
restrictions on the right to strike and thereby suggested that the right to strike is protected
to at least some extent by article 22.18
Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2 nd rev. ed. (Kelil, Genimn Arlington. USA: N.P. EngeL 2005) at para. 15.
16 Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Comnmnentaii 21K re ed (Kelil Geni am Arlington USA N P Engel 200 ) at paras 1 -19
1 J. B. et al. v. Canada, Communication No. 118/1982, U.N. Doc. Supp. No. 40 (A/41/40) at 151 (1986).
For a discussion of tile reasons of the majority as compared to the individual opinion and an explanation in
support of the individual opinion, see Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil
and Political Rights CCPR Comnmnentai i 2 re ed (Kelil Genimm Arlington USA N P Engel 200 )
atparas. 17-18.
18 UN Human Rights Committee, Concluding observations oft/ic Hunian Rights Committee: Lithuania, 4
May 2004, CCPRICO/80/LTU, online:
at pam. 18. “The
Committee is concerned that the new Labour Code is too restrictive in providing, inter alia, for the
prohibition of strilces in services that cannot be considered as essential and requiring a two-thirds majority
to call a strike, which ma amount to a violation of article 22. The State party should make the necessary
amendments to the Labour Code to ensure the protection of the rights guaranteed under article 22 of the
Covenant.”
6
In other instances, the Human Rights Committee has remained ambiguous on the issue.
For example, in Sohn v. Republic qf Korea, a trade union leader was convicted and
sentenced to imprisonment for his support in a strike. As a result, a violation of article 19
on freedom of expression was found but notably, the Human Rights Committee did not
address the question of whether the right to strike was protected by article 22.'
Despite the ambiguity, I believe that a right to protest is protected by article 22. A
number of factors support this conclusion. First, the most recent indication from the
Human Rights Committee supports this conclusion. 20 Second, Manfred Nowak explains
that case law from the International Labour Organization's (“ILO”) Committee on
Freedom of Association as well as case law from the ECHR supports the right to strike. 2 '
International law on freedom of association should, as much as possible, strive for
consistency, suggesting that the ICCPR should then also protect the right to protest.
Finally, freedom of association cannot be limited merely to the right to form an
association. In order for freedom of association to have real meaning, the right to engage
in association activities that support the interests qfniembers must be protected. 22
Despite these arguments in support of the right to protest under article 22, the
inconclusive nature of the right to protest and the fact that freedom of association tends to
only apply to formally organized groupings suggest that it would be wise to avoid
grounding any discussion of mass protests in Iran under the right to freedom of
association. The existing case law supports this opinion. Most of the case law dealing
with freedom of association does not pertain to factual circumstances where general
political demonstrations have occurred. Rather, most of it includes circumstances
relating to trade unions, mandatory membership in associations, state registration of
19 Jong-kvu Sohn v. Republic of Korea, Communication No. 518/1992, U.N. Doc. CCPR/C/54/D/5 18/1992
(1995).
20 UN Human Rights Committee, Concluding observations of the Hunian Rights Committee: Lithuania, 4
May 2004, CCPRICO/80/LTU, online:
at pam. 18.
Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2nd rev. ed. (Kelil, Genimn Arlington, USA: N.P. Engel, 2005) at para. 18.
22 Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2 nd rev. ed. (Kelil, Genimn Arlington, USA: N.P. Engel, 2005) at para. 19.
7
associations and legally mandated dissolution of associations. Therefore, the right to
freedom of assembly is more applicable when it comes to a discussion about election
protests. 23
It should be noted however that there may be some room to argue that general protests
fall under the right to freedom of association. Even if the demonstrations were ad hoc
political demonstrations and those participating in them were not all formal members of a
political party, if some association played a key role in organizing the demonstrations,
freedom of association could be implicated. What is unclear in the law is whether
demonstrations would need to be engaged in by members of an association to fall under
the protection of freedom of association or whether demonstrations would only need to
be organized by members of an association. In a concluding comment on Uganda, the
Human Rights Committee stated that they were “concerned that peaceful demonstrations
organized by opposition political parties have been forcibly dispersed by the police. . . The
State party should ensure the full enjoyment of the right to freedom qf association, in
particular in its political dimension.” 24
NEGATIVE AND POSITIVE STATE OBLIGATIONS
Freedom of association can require that the state avoid interfering in the affairs of
associations. However, according to case law from the ECHR, there can also sometimes
be a positive obligation on the part of the state to actively protect freedom of
association. 25 For example, in Ouranio Joxo and Others v. Greece, it was found that
there existed a positive obligation on state authorities to prevent a predictable outbreak of
violence against a political party. Since state authorities did not protect members of the
Donna Gomien S/ioi t guide to the Eui opean Corn ention on 1-luinan Rights (Council of Europe 200 )
online:
political party, a violation of freedom of association was found. This positive duty on the
state was described as follows:
[ T]he Convention is intended to guarantee rights that are not theoretical or
illusory, but practical and effective... It follows from that finding that a
genuine and effective respect for freedom of association cannot be reduced
to a mere duty on the part of the State not to interfere; a purely negative
conception would not be compatible with the purpose of Article 11 nor
with that of the Convention in general. There may thus be positive
obligations to secure the effective enjoyment of the right to freedom of
association. 26
Similarly, in Ozgiir Glijideni v. Turkey, the ECHR found that the Turkish state had a
positive obligation to investigate and take protective measures in a situation where staff
members of a newspaper with a particular political alignment were targets of violence
and intimidation. 27 The existence of this positive obligation arguably applies in the
context of the ICCPR as well. In concluding observations issued by the Human Rights
Committee on Togo, the Committee requested that the State Party “ensure the safety of
all members of civil society, particularly the members of the opposition” during
upcoming elections. 28 This is of particular relevance, suggesting that a positive
obligation on the state to protect freedom of association may exist under the ICCPR.
However, a positive obligation on the state to protect a right does not always exist. In
Apple by and Others v. United Kingdom, the ECHR found that the state did not have any
“direct responsibility” for an interference with freedom of expression and no positive
obligation to protect the right. 29 In that case, the complainants were prevented from
distributing leaflets by a private company as opposed to the state. The Court explained
that there are many factors that must be considered in determining whether or not a
positive obligation exists including the need to balance the interests of community against
26 Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/01 atpara. 37.
- Ozgur Gundem Turke (16 March 2000) European Court of Human Rights Application no
23144/93.
28 UN Human Rights Committee, Concluding Observations ?f the Hunian Rights Committee: Togo , 28
November 2002, CCPRICO/76/TGO , online:
at 20.
4pplehi and othei s L nited kingdom (6 Ma 2003) European Court of Human Rights Application no
44306/98 at para. 41.
9
those of individuals as well as the burden on state authorities, priority considerations and
resource constraints. It also noted that the scope of any such obligation will vary
according to the circumstances of the particular case. 30 Keeping this in mind, any
argument proposing that Iran may have a positive obligation to protect freedom of
association would need to be strongly grounded in the specific evidence available.
RIGHT TO BE FREE FROMARBITR 4RY DETENTION (Article 9 of ICCPR)
There is little Human Rights Committee jurisprudence where violations of both articles 9
and 22 are successfully argued based on the same set of facts. However, if an individual
is arbitrarily arrested due to their association activities, a violation of both articles 9 and
22 could be found. This was the case in Delia Saldias de Lopez v. Uruguay, where an
individual was arbitrarily arrested for his trade union activities and violations of articles 9
and 22 were found. In its conclusions, the Human Rights Committee found a violation of
article 9(1) as well as a violation of article 22(1) “in conjunction with” article 19 because
the victim had experienced “persecution” in the form of arbitrary arrest (among other
modes of persecution) for his trade union activities.” 31 This sort of reasoning could apply
in Iran. Those who are formal members of opposition parties and have been arbitrarily
arrested for their activities are arguably experiencing arbitrary arrest as a means whereby
the state is curtailing their right to freedom of association.
However, there are at least two reasons why this sort of argument is a difficult one to
make successfully in the case of Iran. First, one could reasonably argue that the same set
of facts should not be used to find two violations. 32 A possible response to this line of
reasoning is that if the method of unlawfully restricting freedom of association is a
method that is in direct violation of another ICCPR provision, there is no reason to be
30 Appleby and others v. United Kingdom (6 May 2003), European Court of Human Rights, Application no.
44306/98 at pam. 40.
31 Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979, U.N. Doc. CCPR/C/OP/1 at 88 (1984)
atpara 13.
32 See for example Steel and Others v. The United Kingdom (23 September 1998), European Court of
Human Rights, Application no. 67/1997/851/1058 at para. 113; Stiheyla Aydin v. Turkey (24 May 2005),
European Court of Human Rights, Application no. 25660/94 at pam. 203.
10
lenient in assessing the State Party's obligation as they are acting in a manner that is
doubly contrary to the ICCPR.
A second reason why it is difficult to successfully argue that arbitrary arrests are the
cause of a violation of the right to freely associate is one of supporting evidence. If the
arrest of opposition party members is “semi-systematic” 33 (as opposed to systematic), it
will be onerous to show that arbitrary arrests have not only occurred, but that they have
occurred for the purpose of and with the effect of curtailing the right to freely associate. 34
It is thus a two-step argument and therefore, a more difficult one to make than simply one
of arbitrary arrest.
FREEDOM OF EXPRESSION (Article 19 of ICCPR)
Freedom of association also has a close relationship with freedom of expression in
international law. The relationship between the two has been described as one that is
“mutual.” 35 The ECHR has similarly explained that:
Freedom of thought and opinion and freedom of expression, guaranteed by
Articles 9 and 10 of the Convention respectively, would thus be of very
limited scope if they were not accompanied by a guarantee of being able
to share one's beliefs or ideas in community with others, particularly
through associations of individuals having the same beliefs, ideas or
interests. 36
In another case, the ECHR described the very purpose of freedom of association as
relating to expression. It explained that, “the protection of opinions and the freedom to
Fact provided by IHRDC.
‘ As discussed elsewhere in this memorandum (under the heading of ‘Establishing Interference'), it is
possible to argue that one need not establish that the state had the intention to limit fmedom of association.
It may be sufficient to show that the right has been effectively curtailed. There is jurisprudence to support
this argument but I have not come across jurisprudence from the Human Rights Committee specifically that
would support this assertion.
‘ Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence (Cambridge University Press: Cambridge, 2002) at 742.
36 Chassagnou and Others v. France (29 April 1999), European Court of Human Rights, Applications nos.
25088/94, 28331/95 and 28443/95 at para. 100.
11
express them is one of the obj ectives of the freedom of association as enshrined in Article
11
This close relationship between the two rights is exemplified in the case of Delia Said/as
de Lopez v. Uruguay, which was described briefly above. In that case, an individual was
persecuted for his trade union activities and the Human Rights Committee found that
there was a violation of “Article 22(1) in conjunction with article 19(I) and (2), because
Lopez Burgos has suffered persecution for his trade union activities.” 38 While this sort of
finding is rare at the Human Rights Committee, it is nevertheless applicable to the
situation in Iran. Members of opposition parties who have been harassed, intimidated
and arbitrarily arrested due to their party activities are arguably experiencing a restriction
on both their right to freedom of expression and association.
FREEDOM OFASSEMBLY (Article 21 of ICCPR,)
Freedom of association and assembly also have a close relationship, as evidenced by the
fact that they are often found within the same provision in key documents such as the
Universal Declaration qfHunian Rights (article 20) and the European Convention for the
Protection qfHunian Rights and Fundamental Freedoms (article 1 Often, the rights
are referred to interchangeably, especially by institutions applying law that protects them
in the same provision. 40 Indeed, some may argue that freedom of assembly is part of
freedom of association. 4 ' In fact, the rules governing what constitutes a permissible
limitation on the right are also almost exactly the same 42 and concluding observations
issued by the Human Rights Committee show that freedom of association is often
r Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no.74989/01 atpara. 35.
38 Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979, U.N. Doc. CCPRIC/OP/i at 88 (1984)
at para. 13. emphasis addedi
Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2 nd rev. ed. (Kehi, Genimn Arlington, USA: N.P. Engel, 2005) at para. 1.
See for example 4dali Titi ltei (31 March 200 ) European Court of Human Rights Application no
38 187/97 at paras. 262-266.
41 This argument is more likely to be supported b those who believe that freedom of association includes
the right to protest.
Inte l national Cm eiiaiit on Cn il and Political Rights 19 December 1966 999 U N T 5 171 Articles 21
22(2).
12
implicated in conjunction with freedom of assembly where restrictions have been placed
on protests or demonstrations. 43
However, there are a few noteworthy differences between the two rights. First, as
mentioned earlier, international case law suggests that freedom of association tends to
apply only to members of formal associations and this restricts its applicability to
political protests in Iran. Second, there is a more demanding duty on an ICCPR State
Party to justify the restriction of freedom of association since restrictions must be
“prescribed by law” as opposed to merely being “inconformity with the law.” 44 Another
difference lies in the fact that “special restrictions” on freedom of association may be
applied to members of armed forces and police. Finally, article 22(2) contains a
distinctive clause giving particular relevance to the ILO Convent/on No. 87. Nothing
similar is found in article 21 concerning freedom of assembly. 4
POLITICAL RIGHTS (Article 25 of ICCPR,
In General Comment 25, the Human Rights Committee emphasized the important role of
political freedoms including freedom of association in the occurrence of elections and
political participation generally. It wrote that, “The right to freedom of association,
including the right to form and join organizations and associations concerned with
UN Human Rights Committee, Concluding observations of the Human Rights Committee: Democratic
Republic of Congo. 26 April 2006, CCPRIC/COD/CO/3, online:
at pam. 23. The
Committee is concerned that many human rights defenders cannot freely carry out their work because they
are subjected to harassment or intimidation, prohibition of their demonstrations or even arrest or arbitrary
detention b the securit forces (articles 9, 21 and 22 of the Covenant). The State party should respect and
protect the activities of human rights defenders and ensure that any restriction on their activities is
compatible with the provisions of articles 21 and 22 of the Covenant.”
Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2 nd rev. ed. Kehl, Genimn Arlington, USA: NP. Engel, 2005) at para. i International
Cm enant on Cn il andPoliticalRights 19 December 1966 999 U NT 5 171 Articles 21 22(2)
4 . . . . . -
For a discussion about the meaning of the reference to this ILO Convention, see J. B. et al. v. Canada,
Commumcation /o 118 1982 L / Doc Supp /o 40 ‘4 4] 40) at 15] (1986) Manfred Nowak Chapter
on Article 22 in L / Cm enant on Cn il and Political Rights CCPR Conimentai i 2 re ed (Kelil
Genimn Arlington, USA: NP. Engel, 2005) at para. 36. Manfred Nowak explains that article 22(3) does
not require all States Parties to the ICCPR to ratify the ILO Convention or take an extra measures.
However, state obligations under article 22(3) must be interpreted in light of the ILO treaty and its
accompanying jurisprudence.
13
political and public affairs, is an essential aa /unct to the rights protected by article 25.
Political parties and membership in parties play a significant role in the conduct of public
affairs and the election process.” 46 Similarly, in a concluding observation, the Human
Rights Committee drew a link between the two rights by urging Uganda to ensure the
“full” protection of freedom of association and “in particular.. .its political dimension.” 47
This connection between freedom of association and political rights has also been
emphasized in case law at the ECHR. For instance, in Ouranio Toxo and Others v.
Greece, the Court reaffirmed “the essential role played by political parties in democratic
systems.” 48 It went on to state that, “In view of the essential nature of freedom of
association and its close relationship with democracy there must be convincing and
compelling reasons to just/fj ' such interference with this freedom.” 49 With particular
relevance to the situation in Iran, the Court then discussed the importance of political
pluralism and freedom of association as part of that pluralism:
The emergence of tensions is one of the unavoidable consequences of
pluralism, that is to say the free discussion of all political ideas.
Accordingly, the role of the authorities in such circumstances is not to
remove the cause of tension by eliminating pluralism, but to ensure that
the competing political groups tolerate each other. °
In light of the special relationship between article 22 and 25 of the ICCPR, one can argue
that interference with freedom of association as it relates to the activities of political
46 UN Human Rights Committee, General Comment ATo. 25: The Right To Participate in Public Affairs,
1 oting Rights and the Right of Equal 4ccess to Pith/ic Sei ice ‘4i t 25) 12 Jub 1996
CCPR/C/2 i/Rev. i/Add.7, online:
at
26. emphasis addedi
‘ UN Human Rights Committee Concluding oh seii ation s oft/ic Hunian Rights Committee L ganda 4
May 2004, CCPR/CO/80/UGA, online:
at pam. 22.
Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/01 atpara. 34.
Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/01 atpara. 36.
Ouranio Toxo and Others v. Greece (20 October 2005), European Court of Human Rights, Application
no. 74989/0 1 at para. 40.
14
part/es is particularly difficult to justify in international law. This will bolster any sort of
argument proposing a violation of article 22 in the context of Iranian elections.
Establishin2 Interference with the Ri2ht
NEED FOR SPECIFIC EVIDENCE
In some cases at the ECHR, the Court has been quite critical of whether or not there has
been an actual interference with the right. For example, in The Holy Monasteries v.
Greece, the complainants suggested that a domestic law would serve to limit an increase
in monks but the court decided that this argument was “hypothetical.” 5 ' In other cases as
well, the ECHR has noted a lack of information and evidence provided by applicants
about interference with the right to freedom of association. 2
In order to establish that there has been a restriction on the right, specific evidence to
demonstrate that there has been interference with freedom of association must be
presented. A lack of specific evidence can lead to a finding that the claim is
unsubstantiated. For example, the complainant's argument was considered
unsubstantiated by the Human Rights Committee in Pr/mo Jose Essono Mika Mi/ia v.
-, . 53
Equatorial Guinea.
DEFINING INTERFERENCE
In order for there to be a violation of freedom of association, there need not have to be
evidence of a direct curtailment of right, just interference that has the effect of limiting
Ho/v Monasteries v. Greece (09 December 1994), European Court of Human Rights, Application no.
i3092/87 13984/88 at para. 87.
See for example Cipi us Titi Aei (10 Ma 2001) European Court of Human Rights Application no
25781/94 at para. 367. “ NJothing was brought to its attention to the effect that during the period under
consideration there had been attempts. . . to establish associations. . . which were prevented by the authorities.
On that account the Commission found the complaint to be unsubstantiated.”
Essono Mika Miha v. Equatorial Guinea, Communication No. 414/1990, U.N. Doc.
CCPR/C/5i/D/414/1990 (1994) at para. 5.3. Based on the infonimtion available, there does not seem to be
an particular argument that was advanced by the complainant to illustrate the nexus between the facts as
presented and the law on freedom of association.
15
right. For example, in the case of John D Ouko v. Kenya, the complainant alleged that he
was a victim of political persecution and thereby his right to freely associate was limited.
The African Commission found that the persecution experienced as well as the resulting
departure to the Democratic Republic of Congo “greatly jeopardised his chances of
enjoying his right to freedom of association.” 4 With this in mind, a violation of the
Banjul Charter was found based on guarantees of freedom of association.
This reasoning could be applied to occurrences of arbitrary arrest in Iran, where citizens
are effectively prevented from exercising their right to freely associate. However, I have
not come across jurisprudence from the Human Rights Committee specifically that would
support this assertion.
Permissible Restrictions on Freedom of Association
IRANIAN LAW
Article 26 of the Iranian Constitution provides conditional protection for freedom of
association. The right is protected provided that the exercise of the right does not violate
“the principles of independence, freedom, national unity, the criteria of Islam, or the basis
of the Islamic Republic.” 55 Other permissible reasons for interference with the right are
found elsewhere in the Constitution. Freedom of association can be restricted under
article 9 in the name of independence. It can also be restricted under article 40 in the
name of public interest. 6
While the Constitution provides a set of permissible purposes for restricting the right, it
does not provide any other conditions or requirements that must be met in order for a
restriction to be lawful. This is in contrast to the ICCPR that requires not only that the
restriction be in conformity with a set of particular purposes, but also that the restriction
John D Ou,ko kern a Aincan Commission on Human and Peoples' Rights Comm No 232/99 (2000)
at paras. 29-30.
The Constitution of the Islamic Republic of Iran, Article 26, online: Iran Human Rights Documentation
center .
The Constitution of the Islamic Republic of Ii an Articles 9 40 online Iran Human Rights
Documentation Center .
16
be “prescribed by law” and “necessary in a democratic society.” 7 Thus, domestic
Iranian law provides much more room for state discretion when it comes to interfering
with the right to freedom of association. There are fewer conditions that must be met by
the Iranian state and those requirements that do exist, provide more flexibility than those
- - 58
found in the IC (PR.
INTERNATIONAL LA W
According to article 22(2) of the ICCPR, there are circumstances when state interference
with freedom of association may be justified. It provides that:
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. 9
The conditions restricting the right in the ICCPR are largely similar to the limitations
found in other international treaty documents. 6 ° The requirements for lawful restrictions
are that they must be prescribed by law, necessary in a democratic society and for one of
the acceptable purposes listed. The only general difference in language as compared to
article 21 of the ICCPR on freedom of assembly is the use of the phrase “prescribed by
law” as opposed to “in conformity with the law.” 6 '
There is little or no published case law from the Human Rights Committee discussing the
question of whether a restriction on freedom of association is permissible. However,
International Covenant on Civil and Political Rights. 19 December 1966, 999 U.N.T.S. 171, Article
22(2).
The number of peniiissible purposes for restricting tile right in Iranian law are numerically greater than
those found in the ICCPR. They are also arguably much broader and possibly unlawfully vague. For more
discussion on this, see the accompanying memorandum on the right to freedom of association.
-
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Article
22(2).
60 Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2nd rev. ed. (Kelil, Genimn Arlington, USA: N.P. Engel, 2005) at para. 20. He suggests
that the only major difference lies in the law concerning peniiissible restrictions for members of ani ed
forces or police
(1 Intei national Cm emiamit on Cn II and Political Rights 19 December 1966 999 U N T 5 171 Articles 21
22(2).
17
there is existing case law discussing restrictions on other rights, using applicable legal
reasoning. With this in mind, the remainder of this discussion on permissible
interference will focus primarily on exploring the meaning of the phrase “prescribed by
law” in the context of Iranian domestic law. For a discussion on permissible purposes
and the meaning of the phrase “necessary in a democratic society,” please see the
accompanying memorandum on freedom of assembly. 62 The same rules and principles
are applicable under article 22.
In light of the fact that the “prescribed by law” standard serves as a low benchmark
(discussed below) and the permissible purposes in international law are almost as broad
and vague as the permissible purposes in Iranian law, the most difficult aspect of this test
for the Iranian government to meet will probably be to show that any interference with
freedom of association is “necessary in a democratic society.” This requirement goes to
questions of necessity and proportionality and is discussed in greater depth in the
accompanying memorandum on freedom of assembly.
“PRESCRIBED BYLAW” REQUIREMENT
The phrase “prescribed by law” is found in article 22(2) on freedom of association as
well as article 18(3) on freedom of thought, conscience and religion. The phrase is used
in both provisions to describe a condition that must be met in order for a restriction on
these rights to be permissible. Unfortunately, there is no case law that has been published
by the Human Rights Committee discussing the meaning of this phrase in the context of
either of these two rights in any depth. Neither are there any concluding observations
62 An example of a case that deals with tile requirement that interference be “necessary in a democratic
society” in the context of freedom of association under the European Convention for the Protection of
Hunian Rights and Fundamental Freedoms is loung, James and JTèbster v. The United Kingdom (13
August 1981), European Court of Human Rights, Application no. 760 i/76 7806/77 at paras. 62-65. The
Court finds a violation of the right to freedom of association and this conclusion hinges on the lack of
necessity of the restriction imposed. An example of a case that deals with the question of peniiissible
purposes in the context of freedom of association under the same European convention is Chassagnou and
Othei s Fi alice (29 Apnl 1999) European Court of Human Rights Applications nos 2 088/94 2833 1/9
and 28443/95. In that case, the interference with the right to freedom of association was found unlawful
due to an invalid purpose. The purpose was considered invalid by the Court because it was to protect a
right not found in international law.
18
that shed light on its meaning. 63 According to Manfred Nowak, the phrase requires that
any interference on the right to freedom of association be “set down in a general-abstract
parliamentary act or an equivalent unwritten norm of common law with sufficient
definitiveness.” 64
Case law from the ECHR supports this interpretation. A seminal case from the ECHR on
this issue is that of Sunday Times. Although the case concerns freedom of expression, the
concepts are applicable due to the existence of the same phrase in article 10 of the
European Convention for the Protection qf fluinan Rights and Fundamental Freedoms.
In that case, the British judiciary restricted the right of the Sunday Times newspaper to
publish certain information based on the common law of contempt. It was argued that the
law of contempt did not meet the requirement of being “prescribed by law” because it
was not codified in legislation. In the end, the ECHR found that the interference with
freedom of expression was lawful for two main reasons. First, it decided that the
common law rule of contempt was sufficiently accessible to the public. Second, it
decided that the common law rule had a sufficient amount of precision and therefore the
application of the law was foreseeable. 6
This reasoning by the ECHR suggests that in order for a restriction to be “prescribed by
law” it must both be sufficiently accessible and sufficiently precise to be foreseeable. 66
These requirements support the general principles of “rule of law and freedom of
arbitrariness.” 67
63 Even General Conrn ent 22 on article 18 does not discuss tile meaning of tile phrase. UN Human Rights
Committee Genei al Comment / o 22 4i tide 18 (Fi eedom of Thought Conscience oi Religion) 30 Juh
1993, CCPR/C/2 i/Rev. i/Add.4, online: .
64 Manfred Nowak, Chapter on Article 22 in UN Covenant on Civil and Political Rights: CCPR
Commentary, 2nd rev. ed. (Kelil. Genimn Arlington, USA: N.P. Engel, 2005) at para. 21.
The Sundai Times The L nited kingdom (26 Apnl 1979) European Court of Human Rights
Application no. 653 8/74. For discussion on what it means to be “foreseeable”, see also DjavitAn v. Turkey
(20 Februan 2003) European Court of Human Rights Application no 206 2/92 at para 6 A nile
cannot be regarded as ‘law' unless it is fonmilated with sufficient precision to enable the citizen to regulate
his conduct: he must be able — if need be with appropriate advice — to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail.”
66 It is implied that part of this requirement is that the wording should be clear.” Paui'i and Others v.
Hungary (7 October 2008), European Court of Human Rights, Application no. 5529/05 at para. 31.
Holi Sinod of the Bulgai ian 0/ thodo Chui c/ i ( Ieti opolitan Inoltentii) and Othei s Bulgai ia (22
January 2009), European Court of Human Rights, Applications nos. 412/03 and 35677/04 at para. 117.
19
The ECHR provided further guidance on this issue in the case of Malone v. The United
Kingdom. In that case, the ECHR discussed the meaning of the phrase “in accordance
with the law,” which is found in article 8 of the European Convention for the Protect/on
qf Human Rights and Fundamental Freedoms and protects the right to privacy. The
Court made clear that the phrases “in accordance with the law” and “prescribed by law”
can be interpreted “in the light of the same general principles.” 68 In doing so, the Court
suggested a third requirement that might need to be met in order to find that interference
is “prescribed by law” — the concept of legality. 69 Legality requires the existence of
mechanisms to prevent the abuse of state power. The ECHR explained that:
Since the implementation in practice of measures of secret surveillance of
communications is not open to scrutiny by the individuals concerned or
the public at large, it would be contrary to the rule of law for the legal
discretion granted to the executive to be expressed in terms of an
unfettered power. Consequently, the law must indicate the scope of any
such discretion conferred on the competent authorities and the manner of
its exercise with sufficient clarity, having regard to the legitimate aim of
the measure in question, to give the individual adequate protection against
arbitrary interference. 70
The three requirements that might be met in order to find that a restriction is “prescribed
by law” (accessibility, precision and legality) could be used to criticize the Iranian
Constitution. While the Constitution may be sufficiently accessible, it is not clear that it
meets the standard of providing foreseeability or that it meets general requirements
associated with the rule of law and the need to have state legal discretion fettered. In this
way, if Iran were to argue that their interference with the right to freedom of association
68 Malone v. The United Kingdom (2 August 1984), European Court of Human Rights, Application no.
8691/79 at para. 66. “The Court held in its Silver and Others judgment of 25 March 1983 (Series A no. 61,
pp 32—33 pam 8 ) that at least as fai as intei fei ences i it/i piisoiieis Co/I espondence i ci e concei ned
the expression ‘in accordance with tile law! prévue par la loi” in paragraph 2 of Article 8 (art. 8-2) should
be interpreted in the light of the same general principles as were stated in the Sunday Tiiiies judgment of 26
April 1979 (Series A no. 30) to apply to the comparable expression prescribed by law! prévues par la loi”
in paragraph 2 of Article 10 (art. 10-2).” emphasis addedi.
Donna Gomien Shoi t guide to the Eui opean Corn ention on Human Rig/its (Council of Europe 200 )
online:
should be considered lawful, they may faces challenges in successfully showing that the
interference is “prescribed by law.”
Like the ECHR case law, the Human Rights Committee case law on freedom of
expression similarly serves as a useful reference in determining the meaning of the phrase
“prescribed by law.” Article 19(3) of the ICCPR requires that any restriction on freedom
of expression be “provided by law.” The wording of this requirement creates a less
onerous standard since the term “prescribed” suggests more than mere provision in the
law but also that the law be meaningful and “intelligible,” 7 ' providing guidance and
avoiding arbitrariness. With this in mind, Human Rights Committee case law on
interference with article 19(3) can serve as a minimum benchmark for the interpretation
of the phrase “prescribed by law.”
In any case, the standard embodied in the phrase “prescribed by law” is not a very
onerous one, even if it is more onerous than the requirements of being “provided by law”
or “in conformity with the law.” In the case of Malcolm Ross v. Canada, a teacher was
transferred to another position due to his activities outside of work publishing books and
pamphlets and making public statements that were discriminatory to Jewish persons. The
fact that the legislation criteria allowing for a transfer of positions was “vague” 72 did not
lead the Human Rights Committee to the conclusion that the restriction on freedom of
expression was impermissible. Rather, the Human Rights Committee noted that the
existence of a “legal framework” in place and then explored the question no more,
deferring instead to the Supreme Court of Canada's ruling on the issue. 73
So the question that arises is that of determining threshold. In a concluding observation
on the Russian Federation, the Human Rights Committee gives some indication of what
may not meet the minimum threshold requirement. In discussing a piece of domestic
legislation, the Human Rights Committee decided that the term “extremist activity” found
71 Irwin toy ltd. v. Quebec (Attorney general), 1989I 1 S.C.R. 927. “Absolute precision in the law exists
rarely, if at all. The question is whether the legislature has provided an intelligible standard according to
which the judiciary must do its work.” emphasis addedi
72 Malcolm Ross v. Canada, Communication No. 736/1997, U.N. Doc. CCPRIC/70/D/736/1997 (2000) at
para. 11.4.
Ross v. Canada, Communication No. 736/1997, U.N. Doc. CCPRIC/70/D/736/1997 (2000) at
paras. 11.3-11.4.
21
in the legislation was too vague and urged the state to “revise the above law with a view
to making the definition of ‘extremist activity' more precise, to exclude any possibility of
arbitrary application and to give notice to persons concerned regarding actions for which
they will be held criminally liable (arts. 15 and 19 to 22).” Similarly, in a comment on
Korea's National Security Law, the Human Rights Committee noted that, “issues... are
defined in somewhat vague terms, allowing for broad interpretation that may result in
sanctioning acts that may not truly be dangerous for State security.” 7 These comments
by the Human Rights Committee can serve as guidelines of what may be considered
unacceptable in meeting the requirement of being “prescribed by law.”
Conclusion
In this memorandum, the right to freely associate has been defined with special attention
to international law and specifically, the ICCPR. The law suggests that a number of
factors will make it difficult to argue that freedom of association has been compromised
in the crackdown on protests. First, in order to successfully argue a violation of article
22, a formal association must be implicated in some way. For example, if the facts
suggested that those protesting were all members of an association (e.g. opposition
party), this would support an assertion that there was a violation. The second reason why
it is difficult to argue that Iran's restrictions on protesting constitute a violation of article
22 is because it is not generally accepted or definitively clear that article 22 protects the
right to protest in the first place. Freedom of assembly is easier to apply to a fact
scenario involving protests and it is likely that a violation of freedom of assembly has
occurred. 76
International law also suggests that there are many hurdles in arguing that freedom of
association was curtailed in Iran through the arbitrary arrests of opposition party
UN Human Rights Committee, Concluding Observations of the Hunian Rights Committee: Russian
Federation, 1 December 2003, CCPRICO/79/RUS, online:
at 20.
UN Human Rights Committee Concluding Comment Republic of koi ea 1992 CCPR/C/79/Add 6 at
paras 6 9 cited in keun-Tae kim Republic of koi ea Commurncation No 74/1994
CCPRIC/64/D/574/1994 (4 Januar 1999) at para 3.3.
6 For arguments in support of this assertion, see tile accompanying memorandum on freedom of assembi.
22
members. This is a difficult argument to put forth because it involves first proving a
violation of article 9 of the ICCPR (arbitrary arrest) and then, as a second step, proving
that those arrests have a strong connection to the activities of opposition parties
(associations), either because the arrests were done for the purpose of restricting freedom
of association and/or the arrests had a negative effect on free association. 77 Another
reason why an argument criticizing Iran based on the right to freely associate may not
succeed is because one would be basing it on the same facts as those presented under
article 9 or 19 of the ICCPR. However, this concern may not play a role in a Universal
Periodic Review. While the Human Rights Committee case law reflects a hesitancy to
find two violations based on the same set of facts, this is not reflected in its concluding
comments 78
As more facts come to light through investigations conducted by the IHRDC, the law of
freedom of association can be applied to the facts to test applicability. In the end
however, whether the discussion about human rights in the Iranian election takes place in
terms of the right to freedom of association or other rights under the ICCPR, Iran as a
State Party has a legal obligation to ensure that its domestic law and its actions are in
compliance with the ICCPR.
See for example Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979, U.N. Doc.
CCPRIC/OP/1 at 88 (1984).
78 See for example UN Human Rights Committee, Concluding observations of the Huiiian Rights
Committee: Democratic Republic of Congo, 26 April 2006, CCPRIC/COD/CO/3, online:
at pam. 23. The
Committee is concerned that many human rights defenders cannot freely carr out their work because they
are subjected to harassment or intimidation, prohibition of their demonstrations or even arrest or arbitrar
detention b tile securit forces (articles 9, 21 and 22 of tile Covenant). The State party should respect and
protect the activities of human rights defenders and ensure that an restriction on their activities is
compatible with the provisions of articles 21 and 22 of the Covenant.”
23
