Freedom of association at the European Court of Human Rights: A right in service of democracy

Cahill, Maria

Freedom of association at the European Court of Human Rights: A right in service of democracy

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SWP 8 Final ECHR - Cahill.pdf(1.36 MB)

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Date

2024

Authors

Cahill, Maria

Publisher

School of Law, University College Cork

Abstract

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.

Keywords

Freedom of association , ECHR , European Court of Human Rights

Citation

Cahill, M. (2024) ‘Freedom of association at the European Court of Human Rights: A right in service of democracy’, Societās Working Paper 08/2024 (17pp). Cork: School of Law, University College Cork.