General Introduction

Khémaïs Chammari1
 
 
The right to freedom of association, a barometer of the state of basic freedoms
Current situation: flagrant human rights violations and obstacles of all kinds to freedom of association
Conclusion

Preamble

This initial report of the Euro-Mediterranean Human Rights Network (EMHRN) on freedom of association is the culmination of a process launched in September 2006. At its last general assembly, the Network decided to establish thematic working groups linking its various components. The working group on freedom of association was created as part of that process, with the overall goal of contributing to the promotion of ‘human rights values and international standards related to freedom of association in the Euro-Med region, in particular in the South Mediterranean area’.
 
From its inception in 1997, the EMHRN has taken a great interest in the issue of freedom of association. It noted with satisfaction 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 (known as the ‘Declaration on Human Rights Defenders’), adopted by the United Nations General Assembly on 9 December 1998. Based on the Barcelona Declaration, which was adopted on 28 November 1995 and launched the Euro-Mediterranean Partnership process guaranteeing ‘the effective legitimate exercise of such rights and freedoms, including freedom of expression, freedom of association for peaceful purposes’, the Network then organised, in cooperation with the Association pour la défense des droits et des libertés au Liban and the Friedrich Naumann Foundation through the Bunian programme on good governance, a workshop on the ‘Legal Framework of Associations in the Arab World’, held in Amman on 9-10 May 1999.
 
Following the adoption on 10 May 1999 of the (the ‘Amman Declaration’), cooperation between the EMHRN and the Arab Initiative for Freedom of Association (AIFA) expanded. On 5-7 October 2000, the EMHRN, in partnership with AIFA, organized a seminar on ‘Freedom of Association in the Euro-Mediterranean Region’ with three Moroccan groups (Espace associatif du Maroc, Association démocratique des femmes du Maroc and Organisation marocaine des droits de l’Homme); the event concluded with the adoption of the ‘Casablanca Declaration’.
 
With the assistance of the Danish International Development Agency (DANIDA), the EMHRN then undertook a study on needs and expectations in the area of support for human rights defenders. The resulting feasibility study was approved by the organisation’s 2004 general assembly, which authorised the establishment of the Euro-Mediterranean Human Rights Foundation to Support Human Rights Defenders. And finally, as part of the last Euromed Civil Forum, held in Marrakech, Morocco, on 5-7 November 2006, the EMHRN co-chaired a workshop on freedom of association, with the Fondation René Seydoux pour le monde méditerranéen focusing on the cultural component.
 
The current project is the outcome of this series of initiatives, which demonstrates the Network’s strong interest in the critical area of freedom of association for the past 10 years. The goal of the project is to foster improvements in the expertise of organisations in matters of freedom of association and to help them acquire follow-up and proposal-drafting capacities so that they may promote, where necessary, substantial legislative changes and a framework of rules applicable to the practices of the regulatory authorities. The strengthening of civil society and its components is an important factor contributing to the process of democratic reform.
 
In addition to preparing regular reports on freedom of association in each of the countries concerned, with involvement by its members and partners, the EMHRN needs to develop a methodology enabling it to define a set of benchmarks aimed at measuring breakthroughs and setbacks experienced with respect to freedom of association from year to year and from country to country.
 
A steering committee2[2] was established to start the project and find resource persons among non-governmental organisations (NGOs). The committee was asked to prepare, in cooperation with the most active independent NGOs in civil society, a number of country reports focusing on the legal and political dimensions of freedom of association as well as on the rules, the regulations and the practices implemented by the authorities and by the organisations themselves. Broadly speaking, the structure of each report includes an introduction on the general political context and on the legislation in place, followed by four or five sections on the establishment and registration of associations, on their dissolution and suspension, on their organisation and operation, on their funding and taxation regime, and finally on control, governance and transparency (in some cases, the last two sections have been combined). Based on a recommendation by the steering committee, the working group decided not to include trade unions or political parties in this report.
 
At its first full meeting, held on 3-4 March 2007 in Copenhagen, Denmark, the working group, whose members3[3] hail from various countries in the Mediterranean region, and the two consultants chosen by the EMHRN – Marie Ghantous (Lebanon) and Khémaïs Chammari (Tunisia) – selected 20 to 25 questions that were used to structure the country reports, with the same structure being adopted for 11 countries of the southern and eastern Mediterranean. A background report on the exercise of freedom of association in the European Union was also prepared. These reports, which are available on the EMHRN’s website, were written after a round of consultation with the Network’s members and partners.
 
The two consultants and the EMHRN secretariat were then charged with summarising the reports while maintaining the structure of the initial documents. Draft recommendations were developed on the basis of this work and of the consultations that were held. They will be discussed at the working group’s second meeting in December 2007, and could thus lead to the development of continuous actions at the local level. These actions will centre on indicators that will be selected and will help to identify priorities both for the reforms to be promoted and for the working group’s future activities.
 
This initial study presents a comprehensive review of the legislation and practices pertaining to freedom of association in the Euro-Mediterranean region. The approach adopted here is essentially descriptive and seeks to provide organisations active in the field a tool that can be used in their actions in the area of freedom of association. For reasons of practicability and feasibility, the first report focuses only on human rights NGOs. The scope of the organisations covered could, however, be broadened in future editions. Regular updates are envisaged, every year if possible, so as to improve and augment the report as the situation of freedom of association evolves in the region.
           

The right to freedom of association, a barometer of the state of basic freedoms

 
Freedom of association, which is enshrined in article 20 of the Universal Declaration of Human Rights and in article 22 of the International Covenant on Civil and Political Rights, is inseparable from freedom of opinion, of expression and of information, and it plays a determining role in any democratic reform project. There can be no democracy without freedom of association, which is, in many respects, a barometer of the state of basic freedoms.
 
The right to freedom of association includes the right to join, create and leave any group, association or society, whatever its legal form of organisation. It requires that the state refrain from interfering when an association is created and carries out its activities. At the same time, it requires that the state contribute to developing and maintaining an environment favourable to the exercise of freedom of association4[4].
 
The right to join and establish associations is closely linked to the others civil and political rights, which are fundamental prerequisites for the promotion and protection of economic, social and cultural rights. Conversely, the full exercise of civil and political rights depends on the full enjoyment of economic, social and cultural rights.
 
At the same time, freedom of association and the rights related thereto are of crucial importance to women, who play key roles as organisers and motivators. However, the freedom and ability of women to enjoy the right to form and join association are often undermined by lack of access to and control of economic and political resources. In addition, they are penalised by a variety of cultural standards and social values within their own communities. Governments therefore have a duty to provide an environment that is conducive to the participation of women in the life of associations and to eliminate all forms of discrimination against them.
 
The right to freedom of association is guaranteed and protected by the Universal Declaration of Human Rights. Article 20 (1) provides that ‘everyone has the right to freedom of peaceful assembly and association’ while article 23 (4) states that ‘everyone has the right to form and to join trade unions for the protection of his interests’. Article 22 (1) of the International Covenant on Civil and Political Rights recognises that ‘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’. Article 8 (1)(a) of the International Covenant on Economic, Social and Cultural Rights provides that ‘the States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others’.
 
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, adopted by the United Nations General Assembly, reaffirms the right of citizens to freely form associations, in particular for the protection and promotion of fundamental rights and freedoms. The Declaration also stresses that the prime responsibility and duty to promote and protect human rights and fundamental freedoms rests with the State.
 
Article 5 of the Declaration reaffirms that everyone has the right ‘(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’.
 
Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stipulates that women have the right to participate in non-governmental organisations and associations. The conventions of the International Labour Organization (ILO) also protect freedom of association, in particular the Freedom of Association and Protection of the Right to Organise Convention (C87), which protects the rights of workers and employees to join or establish organisations and to operate without interference or prior authorisation by the state.
 
Regional human rights instruments specific to the Euro-Mediterranean region also protect freedom of association:
  • The European Convention for the Protection of Human Rights and Fundamental Freedoms and its additional protocols (article 11);
  • The European Union Guidelines on Human Rights Defenders;
  • The African Charter on Human and Peoples’ Rights (article 10)
 
Finally, the Declaration of Principles and Criteria Relating to the Freedom of Association in the Arab Countries, adopted at the end of a meeting of legal experts, emphasises the importance of freedom of association to ‘achieving sustainable human development, promoting citizen interest in public issues … and enhancing democracy, democratic culture and strengthening civil society’. The Amman Declaration was followed by the Casablanca Declaration5[5] in October 2001.
 
The review of the state of freedom of association in the northern, southern and eastern Mediterranean will refer to all of these instruments, the most important of which are legally binding for the majority of the countries in the region. However, freedom of association is both ‘an authorised freedom coupled with a limited legal capacity’ and ‘a freedom generally under interference, under surveillance and under the threat of administrative dissolution 6[6].
 

Current situation: flagrant human rights violations and obstacles of all kinds to freedom of association

 
Despite repeated official speeches about the safeguarding of human rights and the rule of law, the situation in southern and eastern Mediterranean countries with respect to the effective enjoyment of basic freedoms remains a source of grave concern. Since the September 2001 attacks, most states in the region have been implementing repressive strategies aimed at restricting freedom of association, of assembly and of expression even more. Human rights violations and denials of justice are common practice along with multiple types of harassment, intimidation, abductions and violence towards all demonstrations of protest or dissidence. While some progress has been made, especially in Morocco and Lebanon (despite the Israeli military aggression during the summer of 2006 and Syrian interference), these gains are relative and in many respects uncertain. The worsening conflict in the Middle East, the hardening of Israel’s repressive policy and the deterioration of the situation in Gaza and, to as lesser extent, in the rest of the Occupied Palestinian Territories, as well as the repercussions of the war of occupation in Iraq and the increase in terrorist attacks – all these are factors of insecurity for all the peoples in the region. While this picture may seem excessively bleak, it is, in fact, a reflection of the unanimous findings of the major international human rights organisations and institutions.
 
While the consequences and repercussions of Jihadi terrorism are undoubtedly significant, the systematic use of this more of less effective threat by states creates a situation that raises grave concerns7[7]. The enjoyment of individual freedoms is extremely limited if not non-existent in Tunisia and Libya. In Egypt and Syria, the domination exerted by the single-party state or the hegemonic and all-powerful government party gives rise to an all-pervasive state of arbitrariness faced by people who are subjected to the ‘strength of obedience’8[8]. In Algeria, Egypt and Syria, a state of emergency is still in force (since 1992, 1981 and 1963, respectively) and is used to justify repressive measures and emergency laws.
 
Given this environment, independent civil society actors, NGO activists, trade unionists, lawyers, judges, feminists and human rights defenders throughout the region are confronted with a variety of forms of repression and are exposed to physical harm and ongoing insecurity. This results in, among other things, violations of their fundamental rights (in their private, professional and public life) and of their right to freedom of movement. The number of associations that are arbitrarily denied recognition continues to grow, and they are forced to adjust to dangerous situations of quasi-clandestineness and dissidence.
 
In anticipation of a further enlargement of the European Union, Turkey must take EU expectations into account and its situation is therefore different from the conditions that prevail in the southern part of the Mediterranean region. However, the influence of the army and the rejection of Kurdish aspirations are significant risk factors and pose a very real threat to the enjoyment of freedoms in that country. Finally, the democracies on the north side of the Mediterranean are also affected by freedom-curtailing deviations under the pretext of the struggle against terrorist threats, legitimate though that struggle may be, and of an obsessive desire to control migratory inflows from the southern Mediterranean countries and Africa.
 
Against that background, freedom of association is flouted in most countries of the southern Mediterranean, where the powers-that-be seek to prevent the creation of independent organisations by resorting to legislative means that are in most cases unconstitutional and to arbitrary administrative practices. Legally constituted independent associations are often subjected to various methods of police and judicial harassment, ranging from surveillance to the destruction of their headquarters and to measures prohibiting them from holding general assemblies or meetings.
 

  • While this list of challenges and obstacles to the exercise of freedom of association is not exhaustive, it does highlight the following elements:

  • The impossibility of promoting an opening and reform of the situation with regard to freedom of association in a context where a state of emergency or emergency laws are allowed to continue indefinitely.

  • While the risk of terrorism is real, policies that focus exclusively on security and practices that curtail freedoms do not help to stop extremism and fanaticism. The effects of laws purporting to fight terrorism and money laundering in countries such as Tunisia and Jordan, for example, are likely to be the opposite of those that were anticipated.

  • The commingling of the executive and judicial powers and the subservience of the judiciary make it possible, through repression and fear, to silence and quash any protest or demonstration of dissidence on the part of associations. By suppressing any prospect for peaceful and progressive change, this institutional autism fosters the most egregious aberrations, subverting social peace and the credibility of the very notion of rule of law.

  • The deliberate ambiguity of the so-called ‘dualist’ regime of constitutional guarantees, coupled with legislative changes that systematically limit the enjoyment of freedoms – a combination that is found in most countries of the region – result in a barrier to the exercise of the right of association. Any liberal and democratic reform in that area will therefore require the elimination of the ‘prior agreement’ system in favour of a ‘declarative system’. (If circumstances warranted it, the authorities could launch legal proceedings in opposition to an organisation’s registration, with no immediate effect on its activities until a final judgment was rendered.) While legislative reforms in Morocco and Lebanon represent a positive development, harsh laws and practices are the norm in the rest of the region’s countries, where registration applications meet with lengthy and difficult bureaucratic procedures intended to discourage the applicants. Pressures, including physical coercion, are in some cases brought to bear for the same purpose, and judicial, civil or administrative appeal procedures are often deliberately slow.

  • Direct interference into the management and regulation of associations by the authorities is a common occurrence. It takes various forms, ranging from the more or less discreet presence of security agents to a show of force to remove NGO leaders from their positions and close their offices, to legal proceedings instigated through militant supporters of the single-party state.

  • In an attempt to circumvent the difficulties and obstruction forced upon organisations, activists must, when legislation allows it, establish commercial structures to carry out their activities. However, this does not necessarily shelter them against interference by the authorities, especially since the judiciary often approves interventions by the bureaucratic and political authorities.

  • Throughout the region, obstacles to the enjoyment of freedom of association are accompanied by clampdowns on the press, audiovisual media and communications (through the internet, in particular).

  • A number of countries in the region deliberately maintain confusion between the legislations on associations and on political parties in order to impede the evolution towards a genuinely pluralistic society. The threat posed by the ban on political activities by associations and on the establishment of political organisations is all the greater because the concept of ‘political activity’ is far from being defined clearly in these legislations. In Syria, for example, abusive interpretations of the notion of ‘political activity’ are compounded by spurious and serious charges of ‘involvement in an illegal organisation of an international nature’. In a different vein, but similar in its restrictive purpose, is the allegation made against the Centre for Trade Union and Workers’ Services (CTUWS) in Egypt that it is interfering illegally in the area of trade union action9[9].

  • Beyond a loosening of the legislation on the right to form associations, the strengthening of civil society implies the development of coordinating bodies, coalitions and networks between entities working on common issues. This approach makes it possible for organisations to diversify their field of activity, to rise above political or ideological differences and encourage the development of innovative civic behaviours. In some countries – Tunisia, Egypt and Syria, for example – this approach has been rejected by the authorities, which impose the obligation to obtain prior approval. In those countries, it is therefore impossible to establish coalitions between legally recognised organisations (against capital punishment or for the ratification of the Rome Statute of the International Criminal Court, for example). The formation of such coalitions requires that an application for prior approval be submitted; the outcome of such requests is always uncertain.

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    The possibility for associations to bring legal proceedings and to file a civil suit on behalf of aggrieved third parties is an important element in the evolution of the effective enjoyment of freedom of association. The hostility and even opposition displayed by most states in the region towards this evolution are telling signs of their aversion towards and fear of independent NGO initiatives.

  • In autocratic and totalitarian states, the increase in strictly pro-governmental associations and organisations takes place at the expense of NGOs, which face restrictions, non-recognition and exclusion. These so-called ‘government-operated non-governmental organisations’ (GONGOs) have at their disposal significant resources for mobilising and exerting political and social control over the population. In addition, they are instruments in the development of a policy of propaganda and ‘representation’ of civil society in international fora.

  • In some countries (Jordan, for example), the question of charity organisations is of interest to associations in general because of their large number. While these groups are part of civil society, the majority of them fall into traditional, clan or family types. Thanks to traditional customs and to collusion among notables, they risk being used by government authorities for their own purposes. The challenges facing civil society in those countries include improving and streamlining management methods in associations of this type and ensuring their autonomy and their future involvement in coordinated actions with other types of organisations.

  • The effective enjoyment of the right to freedom of association is crucially linked to the movement in favour of gender equality and to feminist initiatives. These initiatives are often confronted with the extreme caution of government authorities and with the aggressive stance of conservative sectors of society. Advocacy interventions in favour of effective gender equality and genuine citizenship must often deal with practices that have a restraining effect on freedom of association and with hostile and intolerant media campaigns.

  • Respect for and the implementation of civil, political, economic, social and cultural rights are seriously jeopardised when one lacks the possibility of joining with others in peaceful associations and expressing one’s opinion freely. Other sensitive subjects related to freedom of association involve the situation of political prisoners, condemnations of torture, the fight against impunity and truth-and-justice processes. While progress in this area has been made recently in Morocco, the ‘pacts of forgetfulness’ in effect in the majority of countries in the region and the deliberate omissions in the Algerian amnesty for ‘peace and reconciliation’ are evidence of the ambiguous treatment these subjects receive. The same is true of the actions of lawyers and judges who are important actors in the struggle for the independence of the judiciary, the promotion of the interests of vulnerable segments of society and the fight against corruption, as well as environmental issues that cannot be addressed solely by state interventions.

  • The issue of the access of organisations to funding, whether from public or private sources, or from domestic or foreign sources, is an integral part of the struggle for an effective exercise of freedom of association. This implies that impartial policies of public subsidies must be in place and that associations must be free to raise funds and receive private donations as long as the sources and uses of the monies received are completely transparent. It also implies that those states which receive financial resources from multilateral and bilateral international cooperation agencies must honour their commitments with respect to freedom of association. This applies particularly to the Euro-Mediterranean Partnership (association agreements and action plans under the Neighbourhood Policy). In Egypt, Syria and Tunisia, in particular, the blocking of funds, the administrative and judicial measures taken to dissolve NGOs and the criminal proceedings brought against NGO leaders and activists must be condemned. Note also that the Israeli authorities tabled a bill that would have imposed severe restrictions on organisations seeking to secure funding from outside sources (the bill was eventually rejected by the Knesset on 3 March 2005).

  • International standards have an important role to play in monitoring the situation of freedom of association in the region. Although it is proclaimed with much fanfare, respect for individual and collective rights is routinely flouted by most states in the region, which thus disavow their international    and regional obligations. In addition, the reservations accompanying the ratification of international human rights and humanitarian treaties and conventions essentially void the meaning of some of the provisions of these documents. Actions promoting the implementation of states’ international commitments with regard to local positive rights are among the priorities of the NGO movement. The same also applies to commitments made in the context of the African Union and the Euro-Mediterranean Partnership (article 2 of the association agreements), and to the jurisprudence of the United Nations Human Rights Committee and of the UN’s treaty mechanisms (periodic follow-up reports on human rights treaties and conventions) and non-treaty mechanisms (working groups and special rapporteurs). Finally, one must note the acknowledgment – but not the observance – of the UN Declaration of Human Rights Defenders, adopted on 9 December 1998, and the European Union Guidelines on Human Rights Defenders, adopted on 15 June 2004.

     


     
    Given these circumstances, our examination is aimed at updating the analysis of legislations and practices related to the enjoyment of freedom of association and at contributing to the development of a tool for monitoring the state of basic freedoms in the southern half of the Euro-Mediterranean region. The authors, as well as the associations and individuals they consulted, hope that this discussion will prompt readers to exercise renewed vigilance, which, as noted by Louise Arbour, the United Nations High Commissioner for Human Rights, is a responsibility that each and every one of us must share.

[1] Former secretary-general and vice-president of LTDH (Ligue tunisienne des droits de l’Homme) and FIDH (Fédération Internationale des droits de l’Homme), former deputy, Board member of the Euro-Mediterranean Human Rights Foundation (EMHRF). Back to text

[2] The steering committee’s members were Iain Byrne, Abdeljalil Laroussi, Birgit Lindsnæs, Ghassan Moukheiber and Jan de Vries.

[3] The working group included the following members: Ali Amar, Halil Bayhan, Redouane Boudjema, Lis Dhundale, Panayote Dimitras, Maria Fahmy, Moataz El Fegiry, Yamna Ghabbar, Anouar Kousri, Anne-Laurence Lacroix, Abdeljalil Laroussi, Birgit Lindsnæs, Omar Mestiri, Ghassan Moukheiber,Eva Norström, Jan Ter Laak and Jan de Vries.

[4] For an overview of developments related to this topic and an international perspective, see Carolina Rodriguez Bello, ‘Freedom of Association – October 2003’, WHRnet http://www.whrnet.org/docs/issue-association.html. Back to text

[5] Freedom of Association in the Euro-Mediterranean Region, Casablanca Declaration, October 2000, a publication of the EMHRN, AMDF, OMDH and Espace associatif.

[6] See Mohamed Mouaqit ‘La liberté d’association dans le droit associatif de la région méditerranéenne’, regional conference co-sponsored by the EMHRN, Casablanca, 5-7 October 2000.

[7] See, in particular, the conclusions of the ‘sub-regional hearing’ on terrorism and human rights organised by the Eminent Jurists Panel of the International Commission of Jurists (ICJ), held in Rabat, Morocco, in July 2006. Back to text

[8] An expression borrowed from the title of a book by the French academic Béatrice Hibou, La force de l’obéissance: économie politique de la répression en Tunisie, Paris, Éditions la Découverte. Back to text

[9] CTUWS, an organisation that advocates for trade unionism and workers’ rights, was closed down following an administrative decision made on 29 March 2007. Back to text