Selected International and Regional Instruments

W dokumencie Guidelines on Freedom of Association (Stron 90-107)

This section includes a selection of excerpts from relevant international and regional instruments critical to the regulation and functioning of the right to freedom of association in the OSCE region, as discussed in this document. Trea-ties such as the International Covenant on Civil and Political Rights and the Euro-pean Convention on Human Rights represent legal obligations for the states that have ratified them. Other instruments, such as the Universal Declaration of Human Rights and the Copenhagen Document, while not legally binding, are particularly compelling commitments undertaken by the states that have endorsed them.

A. United Nations

ILO Convention (No. 87) on Freedom of Association and Protection of the Right to Organize (1948)

Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3

1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full free-dom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 4

Workers’ and employers’ organisations shall not be liable to be dissolved or sus-pended by administrative authority.

Article 5

Workers’ and employers’ organisations shall have the right to establish and join federations and confederations and any such organisation, federation or con-federation shall have the right to affiliate with international organisations of workers and employers.

(…)

Article 11

Each Member of the International Labour Organisation for which this Conven-tion is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.

Convention relating to the Status of Refugees (28 July 1951) Article 15

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

UN Convention relating to the Status of Stateless Persons (1954) Article 13

As regards non-political and non -profit- making associations and trade unions the Contracting States shall accord to stateless persons lawfully staying in their territory treatment as favourable as possible, and in any event, not less favour-able than that accorded to aliens generally in the same circumstances.

International Convention on the Elimination of All Forms of Racial Discrimina-tion (21 December 1965)

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrim-ination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declara-tion of Human Rights and the rights expressly set forth in article 5 of this Con-vention, inter alia:

(…)

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(...)

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimi-nation in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individ-ual group or institution;

(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(...)

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

International Covenant on Civil and Political Rights (16 December 1966) Article 22

1. Everyone shall have the right to freedom of association with others, includ-ing the right to form and join trade unions for the protection of his 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 soci-ety in the interests of national security or public safsoci-ety, 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 Organisation Convention of 1948 concerning Freedom of Associ-ation 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 preju-dice, the guarantees provided for in that Convention.

International Covenant on Economic, Social and Cultural Rights (16 Decem-ber 1966)

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) 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;

(b) The right of trade unions to establish national federations or confedera-tions and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a dem-ocratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Associ-ation and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would preju-dice, the guarantees provided for in that Convention.

Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979)

Article 7

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(…)

(c) To participate in non-governmental organizations and associations con-cerned with the public and political life of the country.

Convention on the Rights of the Child (20 November 1989) Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the 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.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (18 December 1990)

Article 26

1. States Parties recognize the right of migrant workers and members of their families:

(a) To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protect-ing their economic, social, cultural and other interests, subject only to the rules of the organization concerned;

(b) To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;

(c) To seek the aid and assistance of any trade union and of any such asso-ciation as aforesaid.

2. No restrictions may be placed on the exercise of these rights other than those that are prescribed by law and which are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.

Convention on the Rights of Persons with Disabilities (13 December 2006) Article 29 - Participation in political and public life

States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:

(…)

b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without dis-crimination and on an equal basis with others, and encourage their partic-ipation in public affairs, including:

i. Participation in non-governmental organizations and associations con-cerned with the public and political life of the country, and in the activities and administration of political parties;

ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.

Universal Declaration of Human Rights (10 December 1948) Article 20

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

No one may be compelled to belong to an association.

B. Council of Europe

Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) as amended by Protocols Nos. 11 and 14

Article 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form 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 protec-tion 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 armed forces, of the police or of the administration of the State.

European Social Charter (18 October 1961, as revised in 1996) Part 1

5. All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests.

European Convention on the Recognition of the Legal Personality of Interna-tional Non-Governmental Organisations (24 April 1986)

Article 1

This Convention shall apply to associations, foundations and other private insti-tutions (hereinafter referred to as “NGOs”) which satisfy the following conditions:

a. have a non-profit-making aim of international utility;

b. have been established by an instrument governed by the internal law of a Party;

c. carry on their activities with effect in at least two States; and

d. have their statutory office in the territory of a Party and the central manage-ment and control in the territory of that Party or of another Party.

Article 2

1. The legal personality and capacity, as acquired by an NGO in the Party in which it has its statutory office, shall be recognised as of right in the other Parties.

2. When they are required by essential public interest, restrictions, limitations or special procedures governing the exercise of the rights arising out of the legal capacity and provided for by the legislation of the Party where recog-nition takes place, shall be applicable to NGOs established in another Party.

Article 3

1. The proof of acquisition of legal personality and capacity shall be furnished by presenting the NGO’s memorandum and articles of association or other basic constitutional instruments. Such instruments shall be accompanied by documents establishing administrative authorisation, registration or any other form of publicity in the Party which granted the legal personality and capacity. In a Party which has no publicity procedure, the instrument establishing the NGO shall be duly certified by a competent authority. At the time of signature or of the deposit of the instrument of ratification, acceptance, approval or accession, the State concerned shall inform the Secretary General of the Council of Europe of the identity of this authority.

2. In order to facilitate the application of paragraph 1, a Party may provide an optional system of publicity which shall dispense NGOs from furnishing the proof provided for in the preceding paragraph for each transaction that they carry out.

Article 4

In each Party the application of this Convention may only be excluded if the NGO invoking this Convention, by its object, its purpose or the activity which it actually exercises:

a. contravenes national security, public safety, or is detrimental to the preven-tion of disorder or crime, the protecpreven-tion of health or morals, or the protec-tion of the rights and freedoms of others; or

b. jeopardises relations with another State or the maintenance of interna-tional peace and security.

Framework Convention for the Protection of National Minorities (1 February 1995)

Article 7

The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.

Article 8

The Parties undertake to recognise that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish reli-gious institutions, organisations and associations.

Convention on preventing and combating violence against women and domestic violence (12 April 2011)

Article 9

Parties shall recognise, encourage and support, at all levels, the work of rel-evant non-governmental organisations and of civil society active in combat-ing violence against women and establish effective co-operation with these organisations.

C. Other Regional Instruments

American Convention on Human Rights (22 November 1969) Article 16. Freedom of Association

1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

2. The exercise of this right shall be subject only to such restrictions estab-lished by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.

Charter of Fundamental Rights of the European Union Article 12

Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic mat-ters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

African Charter on Human and Peoples’ Rights Article 10

1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.

(…) Article 29

The individual shall also have the duty:

1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.

2. To serve his national community by placing his physical and intellectual abilities at its service;

3. Not to compromise the security of the State whose national or resident he is;

4. To preserve and strengthen social and national solidarity, particularly when the latter is strengthened;

5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law;

6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;

7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;

8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

Arab Charter on Human Rights Article 24

Every citizen has the right: 

1. To freely pursue a political activity.

2. To take part in the conduct of public affairs, directly or through freely cho-sen reprecho-sentatives.

3. To stand for election or choose his representatives in free and impartial elections, in conditions of equality among all citizens that guarantee the free expression of his will.

4. To the opportunity to gain access, on an equal footing with others, to public office in his country in accordance with the principle of equality of opportunity.

5. To freely form and join associations with others.

6. To freedom of association and peaceful assembly.

7. No restrictions may be placed on the exercise of these rights other than those which are prescribed by law and which are necessary in a demo-cratic society in the interests of national security or public safety, public health or morals or the protection of the rights and freedoms of others.

D. OSCE Commitments

Madrid 1983 (Questions Relating to security in Europe: Principles)

The participating States will ensure the right of workers freely to establish and join trade unions, the right of trade unions freely to exercise their activities and other rights as laid down in relevant international instruments. They note that these rights will be exercised in compliance with the law of the State and in con-formity with the State’s obligations under international law. They will encourage, as appropriate, direct contacts and communication among such trade unions and their representative.

Sofia 1989 (Preamble)

The participating States reaffirm their respect for the right of individuals, groups and organizations concerned with environmental issues to express freely their views, to associate with others, to peacefully assemble, as well as to obtain,

The participating States reaffirm their respect for the right of individuals, groups and organizations concerned with environmental issues to express freely their views, to associate with others, to peacefully assemble, as well as to obtain,

W dokumencie Guidelines on Freedom of Association (Stron 90-107)