Arab Laws Reform

Freedom of Association
A Roadmap for the Future
Cairo 
10-12 February 2010

Oral Presentation
Mervat Rishmawi
Legal Advisor, Amnesty International

The work of Amnesty International in relation to freedom of association starts from the premise that this is an essential human right that is enshrined in international human rights and ILO law. It represents a universal "value" relating to the need for human brings to associate with one another in society when they share beliefs or opinions or a common purpose – for example trade unionists to secure good work conditions, people sharing a particular religious faith, people pursuing a shared political agenda or ideas, etc. Therefore, we do see this as much wider than just protection of human rights NGOs (though they too should benefit from freedom of association on the same basis as others).

The right to freedom of association is shared between the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), although the ICESCR focuses mainly on the right to form and join trade unions. The ICCPR also has provisions on the right to political participation, freedom of assembly, and freedom of expression – to mention some of the rights and freedoms most closely related to freedom of association. This is also reflected in many other international human rights treaties, like the conventions on rights of children, women, disabled persons, migrant workers.

It is interesting to note that all the states in North Africa, East Mediterranean (except Palestine), and Bahrain, Iraq, Kuwait, and Yemen in the Gulf region have ratified both the ICCPR and ICESCR. However, Qatar, UAE, Oman, and Saudi Arabia have not ratified either of the treaties.  AI’s work focuses on ensuring that states respect, protect and promote the rights that they have chosen voluntarily to abide with when ratifying international treaties. We also call on states to ratify international treaties they did not ratify yet. However, it should be noted that while some states have not ratified the two main human rights Covenants, they have ratified other important human rights treaties, for example in relation to workers and trade union rights, as well as children’s rights, women’s rights, rights of minorities, rights of migrant workers, etc. One should positively note here that no state in the region have entered any reservation to the provision on freedom of association in the ICCPR, for example.

Amnesty International’s work also entails ensuring that any restriction imposed by states on the right to freedom of association is within the relatively narrow legitimate grounds that have been defined by international human rights law. For example, the ICCPR does not allow for restrictions “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.” The Human Rights Committee, which is responsible for overseeing the implementation of the ICCPR has stated that “where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.” Many human rights expert bodies have elaborated on several aspects of the right to freedom of association and any legitimate restrictions that may be imposed on it. For example, the UN Special Rapporteur on human rights defenders makes the very important point that restrictions beyond those permissible in international law on the capacity of individuals, groups and organizations to fulfil their role and responsibilities represent not only a violation of the rights of individuals and organisations, but also a violation of the human rights standards that they were working to support, sometimes on behalf of many people.

The obligation to respect and ensure the rights recognized by in human rights law has immediate effect for all States parties. They are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local levels are all responsible for ensuring such obligation. Further, one should note that the Vienna Convention on the Law of Treaties provides that State Party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. This is at the heart of Amnesty International’s work: to ensure adherence to international law in law and practice at the national level.

Amnesty International’s work has been focussed on the ability of NGOs and human rights activists to carry out their work without interference. We review laws and draft bills and intervene directly with governments as well as publicly in cases of restricting the right to form organisations, freedom of association of human rights defenders and activists as well as interference in peaceful gatherings in general by government forces, often with excessive use of force. We also examine situations where registration of organisations has been restricted, for example when government agencies not even accept registration applications, or impose cumbersome and restrictive procedures.

The organisation also raises concerns of such restrictions with relevant UN expert bodies including special experts on human rights defenders, freedom of expression, and working group on arbitrary detention, as well as making submissions to bodies that oversee the implementation of the different human rights treaties. We have brought attention to this in our submissions to what is known as the Universal Periodic Review mechanism of the Human Rights Council of the UN. Our organisation also campaigns and follows up in order to ensure implementation of recommendations and observations made by these bodies to states. Amnesty International has been doing this in cooperation with national partners for many years. We have therefore built a wealth of experience and expertise that we are keen to share and pass onto our colleagues at the national level. We therefore train human rights activists on how to use these mechanisms themselves, so that the expertise is built at the national level, and work can be done expeditiously.

Importantly, Amnesty International considers that freedom of association cannot exist truly without an enabling environment that ensures promotion, protection and respect for all human rights. This therefore requires general government policies that are human rights friendly. Freedom of association can not exist without respect for freedom of expression, freedom of assembly, or right to political participation, for example. It cannot exist without fear for personal integrity and protection from arbitrary arrest or detention.

The drive by certain governments to intensify attack on human rights in the name of combating terrorism has led to sacrificing freedom of association as well as other human rights. Unnecessary restrictions, which are not consistent with those permissible under human rights law, are imposed.

The Arab Charter on Human Rights of 2004 recognises the right to every citizen to freely form and join associations with others and to freedom of association and peaceful assembly. The restrictions imposed on these freedoms, according to the Charter, is consistent with those conditions specified in the ICCPR. However, one notes that, unfortunately, the Arab Charter limits freedom of association and assembly to citizens only while international law provides that to everyone. The mechanism created through the Charter to oversee its implementation, namely the Arab Human Rights Committee, can play a vital role in the future in ensuring respect for freedom of assembly and association in the countries of the region. States will have to submit their reports on the implementation of the Charter, exactly as they have to do in relation to international treaties. The Committee will examine these and issue its conclusions and recommendations. It is hoped that the Committee will give access to civil society organisations to attend its sessions as appropriate, and to provide information.

Amnesty International has been engaging with the process of revising the Charter and has had exchanges with the Arab Human Rights Committee. The organisation aims to continue this engagement. We will monitor the implementation of the Charter, and will submit information to the Committee whenever possible. We will also follow up on the recommendations of the Committee and ensure their implementation as appropriate.

We also look to the Secretary General of the League of Arab States and the Civil Society Division to play an important role in ensuring protection of civil society from interference and harassment. We hope that the Secretary General can use his good offices in such cases, and intervene directly with governments.

Finally, Amnesty International would like to stress that we believe that the only way forward is through respect by states of their obligations under human rights law. National legislation and practice must be brought in line with such obligations that states have chosen voluntarily. In practice, most governments in the region maintain excessive curbs on freedom of association, as well as freedom of expression and assembly, which has the effect not only of breaching their international human rights obligations but also inhibiting social, economic as well as political development in their countries. This trend has been intensified in the name of combating terrorism. Real development can not be achieved unless this is reversed and addressed.