The Fundamental Freedoms of Association, Assembly and Expression

Fundamental freedoms are critical guarantees for exercising, defending and promoting rights. They include the freedoms of association, assembly, and opinion and expression.

It is through these freedoms that human rights defenders can share ideas, form new ones, and join with others to promote and defend human rights. Human rights defenders need to be able to exercise their right to join, form, and operate associations without illegitimate restrictions. They should be able
to freely express their opinions, enjoy their right of access to information held
by public authorities, and should be protected when disclosing public interest information essential for the promotion and protection of human rights. Human rights defenders, as all individuals, should be able to peacefully assemble, whether it is offline or online.

The 2030 Agenda emphasizes a State’s responsibility “to respect, protect and promote human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth, disability or other status” (p.6). To achieve this, it includes, among others, a Sustainable Development Goal (SDG) 16.10 that aims to ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.

Fundamental freedoms are integral to the realization of sustainable development. They are a cornerstone for free and effective civic participation and engagement in public life, including in sustainable development processes. The 2030 Agenda is built on the principles of inclusion and participation, and as such it cannot be achieved if people lack the knowledge of and the freedom to engage with and defend the global goals. Without the protection of these freedoms, human rights defenders would be severely restricted in their ability to fulfil their legitimate role.

The United Nations Declaration on Human Rights Defenders (UN DHRD) provides the most comprehensive framework available for the support and protection of human rights defenders within the context of their work. Implementation of the Declaration is considered a “precondition for the creation of an enabling environment” for human rights defenders to carry out their work safely and effectively. The entire Declaration therefore underpins and provides guidance for the adequate implementation of SDG 16.10.

In a mutually reinforcing manner, the integrated implementation of the Declaration and of the SDGs will contribute to other SDG targets related to non-discrimination, human rights education, labour rights, peace, justice, strong institutions, inclusion, and participation. The implementation of related SDG targets, in accordance with the rights incorporated in the Declaration, will strengthen the enabling environment for the work of human rights defenders.

MONITORING THE ENABLING ENVIRONMENT FOR HUMAN RIGHTS DEFENDERS

SDG 16.10 is central to and closely linked to the monitoring of the enabling environment for human rights defenders, not least in view of its global indicator 16.10.1. This indicator measures “verified cases of killing, kidnapping, enforced disappearance, arbitrary detention and torture of journalists, associated media personnel, trade unionists, and human rights advocates in the previous 12 months” . It is an important indicator to address the ultimate result, namely the reduction of the most serious violations and abuses against human rights defenders. However, these types of indicators (known as outcome indicators) are often slow moving and fail to measure the more structural, procedural and administrative measures that need to be in place to secure a safe operational environment for human rights defenders.

Structural indicators: measure states’ commitment to human rights, as reflected in, for example, the ratification of international treaties or the adoption of national laws and policies.
Process indicators: measuring states’ efforts to transform human rights commitments into results, for example, through budget allocations, establishment of institutions, training of personnel etc.
Outcome indicators: measuring the actual results or impact of states’ commit- ments and efforts in terms of the populations enjoyment of human rights.

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The Office of the High Commissioner for Human Rights (OHCHR) has a methodology for the development of human rights indicators which can support a more comprehensive monitoring of the enabling environment for human rights defenders under the 2030 Agenda. This methodology can assist in the development of complementary indicators, particularly at the national level, to directly measure states’ commitments and efforts in this regard.

At the time of writing this paper, the Danish Institute for Human Rights is collaborating with more than 20 organizations and institutions to develop a comprehensive monitoring framework and online tool for data collection on the so-called “right to defend rights”. The OHCHR methodology is being used to develop an indicator framework to complement the monitoring of SDG 16.10 and the fundamental freedoms at national level. The Declaration on Human Rights Defenders and the links showcased in this study are the basis for this work.

Articles in the UN DHRD

Art 1

Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Art 2.1

Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice

Art 2.2

Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed.

Art 12.1

Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.

Art 12.2

The State shall take all necessary measures to ensure the protection, by the competent authorities, of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.

Art 12.3

In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.

Art 13

Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.

Art 5

For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.

Art 6

Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice,
of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.

Art 7

Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.

Art 8.1

Everyone has the right, individually and in association with others, to have effective access, on a non-discriminatory basis, to participation in the government of his or her country and in the conduct of public affairs.

Art 8.2

This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.

Art 9.1

In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights.

Art 9.3

To the same end, everyone has the right, individually and in association with others, inter alia:
(a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay;
(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments;
(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.

Art 14.1

The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights.

Art 14.2

Such measures shall include, inter alia:
(a) The publication and widespread availability of national laws and regulations and of applicable basic international human rights instruments;
(b) Full and equal access to international documents in the field of human rights, including the periodic reports by the State to the bodies established by the international human rights treaties to which it is a party, as well as the summary records of discussions and the official reports of these bodies.

Art 9.4

To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms.

Examples in other International Human Rights Instruments

Universal declaration of human rights

Art 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (...)

Art 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Art 20

1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

International covenant on civil and political rights

Art 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right 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.

Art 19

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals.

Art 22

1. Everyone shall have the right to freedom of association with others, including 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 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. 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 Association 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 prejudice, the guarantees provided for in that Convention.

Convention on the elimination of all forms of discrimination against women

Art 3

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Optional protocol to the Convention on the elimination of all forms of discrimination against women

Art 11

A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.

Optional protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment

Art 15

No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

International covenant on economic, social and cultural rights

Art 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 confederations 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 democratic 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 Organization Convention of 1948 concerning Freedom of Association
and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

Convention on the rights of the child

Art 13

1. The child shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Art 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 elimination of all forms of racial discrimination

Art 5

In compliance with the fundamental obligations laid down in article 2 of
this Convention, States Parties undertake to prohibit and to eliminate racial discrimination 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: (...) (d) Other civil rights,
in particular: (...) (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association (...)

International convention on the protection of the rights of all migrant workers and members of their families

Art 13

1. Migrant workers and members of their families shall have the right to hold opinions without interference.
2. Migrant workers and members of their families shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of their choice.
3. The exercise of the right provided for in paragraph 2 of the present article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputation of others; (b) For the protection of the national security of the States concerned or of public order (ordre public) or of public health or morals; (c) For the purpose of preventing any propaganda for war; (d) For the purpose of preventing any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

Convention Against Torture

Art 9

Human rights defenders in environmental matters
1. Each Party shall guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity.
2. Each Party shall take adequate and effective measures to recognize, protect and promote all the rights of human rights defenders in environmental matters, including their right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement, as well as their ability to exercise their access rights, taking into account its international obligations in the field of human rights, its constitutional principles and the basic concepts of its legal system.
3. Each Party shall also take appropriate, effective and timely measures to
prevent, investigate and punish attacks, threats or intimidations that human rights defenders in environmental matters may suffer while exercising the rights set out in the present Agreement.