Section 16 - Peaceful assembly and freedom of association

(1) Every person has the right of peaceful assembly.

(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.

 

Section 16 provides for the two separate but related rights of freedom of peaceful assembly and freedom of association.

Right to peaceful assembly

The right to peaceful assembly protects the right of individuals and groups to meet in order to exchange ideas and information, to express their views publicly and to hold a peaceful protest.

The ICCPR jurisprudence on the content of this right is very limited compared to the jurisprudence on many other rights in the Covenant.

It is clear that this right applies to all gatherings for a peaceful purpose, even if unpopular or distasteful. However, the right is not engaged when those who organise or participate in a demonstration have violent intentions that result in public disorder.

The right to peaceful assembly creates a positive duty. There is some international jurisprudence to support the view that this right requires public authorities to take reasonable and appropriate positive measures to ensure that the right can be exercised, for example, by protecting demonstrators from physical violence by counter-demonstrators133 or setting up areas for people to assemble peacefully.

Right to freedom of association

When does it apply? The right to freedom of association protects the right of all persons voluntarily to group together for a common goal and to form and join an association. It applies to all forms of associations including trade unions.

As for the right to peaceful assembly, the ICCPR jurisprudence on the scope of this right is quite limited.

To what extent does the right to freedom of association encompass a right not to associate?

The Universal Declaration on Human Rights provides:

Article 20

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

(2) No one may be compelled to belong to an association.

Neither the ICCPR nor the Charter expressly includes an equivalent right to article 20(2) of the Universal Declaration on Human Rights. However, the right to freedom of association has been interpreted by the European Court of Human Rights as also encompassing a negative right - the right not to join associations, including trade unions.134 In international human rights law, association rights generally tend to have both a positive and a negative aspect; that is, you can't be stopped from joining and you can't be forced to join.

Another issue that may arise is the extent to which the right to associate applies to professional bodies. In international case law, a requirement for compulsory membership of a professional body has not generally violated this right, particularly if the association is responsible for professional regulation.135

What is the scope of the right?

The scope of the right to freedom of association is unsettled in international human rights law, particularly the extent to which it protects the activities of the association.

The United Nations Human Rights Committee has been divided on the issue. A majority of the Committee has taken the view that the equivalent ICCPR right (article 22) does not protect the right to strike. However, a strong dissent of the same committee said that 'the exercise of the right requires that some measure of concerted activities be allowed; otherwise it could not serve its purpose.' 136

 

Footnotes

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133 Platform 'Arzte für das Leben' v. Austria (1988) 126 Eur Court HR (ser A); (1991) 13 EHRR 204.

134 Young, James and Webster v. United Kingdom (1981) 44 Eur Court HR (ser A) [51]-[55]; (1982) 4 EHRR 38 [55-56] (a closed shop agreement that required British rail employees to belong to one of three unions as a condition of employment violated art. 11 of the European Convention on Human Rights. The court, however, did not decide whether this negative right has the same status as the positive right of freedom of association.) See also Sigudur A. Sigurjónsson v. Iceland (1993) 264 Eur Court HR (ser A) [35]; (1993) 16 EHRR 462 [35]; Gustafsson v. Sweden (1996) II Eur Court HR 637 [42]-[44]; (1996) 22 EHRR 409 [45].

135 See Lester Lord Lester of Herne Hill and David Pannick (eds), Human Rights Law and Practice (2nd edn, Butterworths, 2004) 383 and accompanying notes; Le Compte, Van Leuven and De Meyere v. Belgium (1981) 43 Eur Court HR (ser A); (1983) 5 EHRR 183.

136 JB v. Canada, Human Rights Committee, Communication No 118/1982, UN Doc. CCPR/C/28/D/118/1982 (18 July 1986)