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    Freedom of association in South Africa: Democratic pluralism and the interplay between collective interests and individual flourishing
    (School of Law, University College Cork, 2024) Nankan, Sahara; Cahill, Maria; Ó Conaill, Seán; Newman, Dwight; McIntyre, Ruairí; Irish Research Council
    This article examines, as a foundational touchstone, the nature, scope and rationales that undergird the right to freedom of association in South Africa enumerated under Section 18 of the Constitution.1 It aims to inform, demystify and map the underpinnings and justifications of this right as it has been understood, interpreted and developed by (primarily though not exclusively) the Constitutional Court’s jurisprudence. This article is divided into two interlinked thematic parts. Part I outlines the development, nature and scope of the right. The socio-legal and historical development of Freedom of Association is explained within the contextual framing of interrelated core values of freedom, equality, dignity and democratic pluralism. It explores the normative content of the right including the right to associate, the right to dissociate (to join or not to join), justifiable limitations and how a distinctive wider regulatory framework supports these key elements and highlights the relationship with other rights. It further explores the applicability of international law, and how the Court draws on foreign case law to interpret Section 18 (indeed the Court since its inception has always employed a comparative lens to support its insights and interpretation of rights). Part II then surveys the jurisprudence of the Court in terms of the types of cases that have come before it which both directly or indirectly evoke and have implications for how freedom of association is respected, protected and promoted.2 This includes where the right stands in relation to other inter-dependent rights, disputes and interpretative contestations that have arisen predominately the freedom of religion, the right to language and cultural life and the right to privacy. The aim of this endeavour is therefore not to provide a critical account of the freedom as a contested concept nor is it a comprehensive critical examination of the field - rather its aim is to highlight the core rationales that lie behind associational freedom drawing from primarily adjudicative interpretations, as well as key strands of academic discourse that justices refer to, in order to shed light on its basic purposes and potential. In order to safeguard the mandate of democratic pluralism and the autonomous development of society, the pursuit of a wider group of rights to form and maintain communal relations arguably takes precedence, but this does not negate the need to protect individual freedoms also essential for the fulfilment of these aims. The interplay of individual flourishing and collective interests necessitates a constant tension calling for further refinement, coherency and interpretative consistency. This article therefore leaves plenty of room for further exploration of major themes, challenges and avenues of reflection going forward.
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    Freedom of association doctrine in Finland
    (School of Law, University College Cork, 2024) Neuvonen, Riku; Cahill, Maria; Ó Conaill, Seán; Newman, Dwight; McIntyre, Ruairí; Irish Research Council
    Finland has been called the promised land of associations. There are numerous associations in Finland in proportion to the population, and almost every Finn belongs to one or more. Despite or because of the number of associations, research on the legal status of associations has been focused on technical details and on the activities of associations. There is neither a contemporary nor a particularly developed doctrine of freedom of association. The most important distinction is between registered associations and non-registered associations. A registered association is a legal entity. Freedom of association is guaranteed in the Constitution of Finland. Finland is committed to international treaties of the United Nations and to the European Convention on Human Rights. It is also a member of European Union. In Finland, freedom of association means the right to form an association without a permit and the right to be a member of one or more associations. Freedom of association also means the right not to join any association and the right to resign, whenever one wishes, from an association that one has joined. Associations enjoy internal freedom of activity, which means that they have the right to independently draft their rules, within the framework of law, and decide on their internal operations. The most important norm regulating association activities is the Association Act (503/1989). Associations can be of all kinds in Finland. All trade unions and other interest organisations are associations. It is noteworthy that the Finnish word for trade union is ammattiyhdistys.4 Therefore, the Finnish word for an association, yhdistys, is part of the definition. An association is the natural way to organise activities in Finland. In this paper, freedom of association is analysed as part of Finnish constitutional doctrine. In Finnish constitutional law, the monitoring of the constitutionality of legislation differs from many other countries. Similarly, in Finland, the fundamental rights doctrine has developed in a peculiar way. In section 2 of this paper, freedom of association is combined as part of the Finnish Constitution and fundamental rights. The nature of the fundamental right of freedom of association and the Finnish doctrine of fundamental rights explains the regulation of associations and the possibilities for changes. The Finnish Associations Act and the practical regulation of associations are discussed in section 3. The regulation of political parties and religious associations is brought up for special consideration. Regarding the latter, there are problems with such regulation from the religious freedom viewpoint. Section 4 focuses on compulsory membership of university student unions. This is a significant exception to the principles of freedom of association and probably a violation of the European Convention on Human Rights. Chapter five reviews the changes in Finland's freedom of association that have resulted from legal practice.
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    Freedom of association under the treaties of the United Nations: A right of intrinsic or instrumental value?
    (School of Law, University College Cork, 2024) McIntyre, Ruairí; Cahill, Maria; Cahill, Maria; Ó Conaill, Seán; Newman, Dwight; McIntyre, Ruairí; Irish Research Council
    Although included within a number of United Nations instruments, the right to freedom of association is principally enshrined within Article 22 of the International Covenant on Civil and Political Rights (ICCPR) and has been developed within the jurisdiction of the Human Rights Committee (the Committee). Whilst this right has been the subject of significant commentary by the Special Rapporteur on freedom of peaceful assembly and association (the Special Rapporteur) and of numerous resolutions of the Human Rights Council (the Council), the Committee’s engagement with Article 22 ICCPR has been sparse. Despite calls from the Special Rapporteur, the right to freedom of association is yet to receive a General Comment. Notwithstanding a paucity of jurisprudence, this article seeks to outline the contours of the right to freedom of association as protected by the UN treaties. Part II analyses the scope of the protections afforded, restrictions permitted, and positive obligations imposed by Article 22. Part III explores the interaction and interdependencies between the right to freedom of association and other provisions of the ICCPR. Part IV discusses the rational underpinnings of the right to freedom of association. Although freedom of association appears to lie ‘in the overlapping zone between civil and political rights’, the comparative analysis adopted in this article suggests that the Human Rights Committee and other UN bodies have disproportionately framed Article 22 in terms of its political and systemic significance, and have neglected to develop a philosophical basis for the right deriving from its inherent value to the human person. Whereas comparable rights have been framed as ‘fundamental’, ‘intrinsic’, and ‘indispensable for the full development of the person’, freedom of association remains cast in terms of its instrumental function in buttressing political pluralism, bolstering accountability, and facilitating the myriad of ‘purposes and principles of the United Nations’.
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    Freedom of association in Nigeria: A cacophony of contestations
    (School of Law, University College Cork, 2024) Amao, Femi; Cahill, Maria; Ó Conaill, Seán; Newman, Dwight; McIntyre, Ruairí; Irish Research Council
    The right to freedom of association in Nigeria has a history that is intertwined with the country's political evolution, agitation for the rule of law, and democracy. In the pre-colonial era, the various tribes and communities that make up modern Nigeria had distinct governance structures with community norms and practices that allowed for some form of association. The advent of British colonial rule saw a severe erosion of freedom of association with the colonial administration implementing laws that restricted public gatherings and associations aimed at suppressing anti-colonial movements and nationalist activities. However, after gaining independence in 1960, Nigeria became a federal republic, and the constitution provided for fundamental human rights, including freedom of association.1 Independence and the constitutional framework facilitated the establishment of political parties, trade unions, and various civic groups. Military interventions in periods from 1966 reversed the trend with military regimes bringing in strict restrictions on rights including freedom of association. The return to a relatively stable civilian rule in 1999 and the introduction of the 1999 Constitution revived the framework for protecting rights including freedom of association in Nigeria. The introduction of the African Charter on Human and Peoples’ Rights, a significant component of African Union law, also influenced the protection of the rights in the country. As this article shows, the protection and exercise of the right to freedom of association in Nigeria have been impacted by history, politics, constitutional development, regional dynamics, case law and, interestingly, customary law. This article starts by briefly explaining the rationale for the protection of the right in Nigeria, it thereafter discusses the statutory framework for the protection of the right, highlighting its scope. The paper then moves on to consider the content of the rights, its positive and negative dimension, and how the courts interpret and apply the right. The article discusses an important dimension in Nigeria, the nexus between the right and customary law. The article further discusses the application of the right in the context of Trade Unions and Civil Society Organisations (CSO). The article ends with a conclusion of the main themes that have emerged in the Nigerian context.
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    Freedom of association at the European Court of Human Rights: A right in service of democracy
    (School of Law, University College Cork, 2024) Cahill, Maria; Cahill, Maria; Ó Conaill, Seán; Newman, Dwight; McIntyre, Ruairí; Irish Research Council
    This article explores how freedom of association is protected by the European Court of Human Rights. The European Convention on Human Rights affirms, in Article 11.1, that everyone has the right ‘to freedom of peaceful assembly and to freedom of association’, and specifically recognises the right to form and to join trade unions. The right is expressly qualified in Article 11.2, which provides (using language that is broadly similar to that found in the neighbouring provisions) that the exercise of the right may be justifiably restricted if the restrictions 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’. It concludes with the statement that ‘[t]his 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’.The European Convention on Human Rights is a product of the Council of Europe: an international organisation that is independent of the European Union and now comprises forty-six member states. Its origins date back to the aftermath of the Second World War. The Congress of Europe, held at The Hague between 7th and 11th May 1948, and attended by prominent politicians, philosophers, lawyers, academics, historians, journalists, entrepreneurs, civil society leaders and religious leaders from the nations of Europe, concluded with a Political Resolution calling for a Charter of Human Rights.2 The Council of Europe was thereafter established in 1949 and the draft Convention opened for signature in 1950. Having attracted the support of the then 12 Council of Europe Member States, the Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights (and hereinafter referred to as the Convention), was ratified and entered into force on 3rd September 1953. The Convention is interpreted by the European Court of Human Rights (hereinafter referred to as the Court), which hears cases brought by individual applicants against Member States claiming a violation of Convention provisions. The Court exercises a supervisory human rights jurisdiction, in line with the Preamble to the Convention, which affirms that Member States, ‘in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.4 Article 35 of the Convention provides that a case may only be brought ‘after all domestic remedies have been exhausted, according to the generally recognised rules of international law’5 and Article 46 provides that in the event of a finding by the Court that a Member State is in violation of the Convention, the Member States ‘undertake to abide by [the decision] and the judgment is conveyed to the Committee of Ministers of the Council of Europe which works with the government of the Member State to try to secure the execution of the judgment’. In other words, Member States have the first responsibility and the ultimate responsibility for the vindication of human rights in their nation states, but between those two points the Court has the final authority on how the Convention is interpreted. Part I considers how the Court defines “associations” and how it has developed three component aspects of the right: the right to form associations, the right not to be forced to join an association, and the right of the association to organisational autonomy. Part II explores the types of disputes that arise, and ways in which the Court articulates the relationship between freedom of association and freedom of expression. Part III reflects on the rationales that the European Court of Human Rights offers for why the right to freedom of association is important, and its particular focus on the idea that freedom of association is essential to the proper functioning of democracy.