Freedom of Association/Depends on governance
Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?
The United States Supreme Court has recognized two types of associative freedoms protected under the Constitution; expressive and intimate (Congress, Amdt 1.8.1). Expressive association covers an individual’s right to form and join groups or unions that express a collective purpose, while intimate refers to an individual’s right to maintain private associations (Hudson Jr., 2009). Freedom of association is covered under Article 20 of the Universal Declaration of Human Rights and Article 22 of the International Covenant on Civil and Political Rights. The United States Court system has recognized both aspects of freedom of association through multiple court cases such as Boy Scouts of America v. Dale and Roberts v. United States Jaycees (Hudson Jr., 2009). The United Nations Human Rights Office states “Freedom of association is an essential element of democracy that serves as a vehicle for the exercise of many other rights guaranteed under international law, including the right to freedom of expression (UN Human Rights. 2023). Examples of expressive association include interacting and organizing amongst other citizens to collectively express and promote common interests, as well as the right to form and join trade unions, or work for non-governmental organizations(NGOs). Within the intimate aspect of association, those in democracies have a right to hold private relationships and associations without interference. In major democratic regimes such as the United States and the United Kingdom, freedom of association is respected and protected. In the United States, “officials respect the constitutional right to assembly; laws and practices give wide freedom to NGOs and activists to pursue civic and policy agendas; and federal law guarantees trade unions the right to organize and engage in collective bargaining (Freedom House, 2023).” In the United Kingdom, the freedom to assemble, go on strike, and bargain collectively are also all respected. NGOs may also operate freely, and workers have a right to organize trade unions, and even their own Labour Party. While perfect freedom is not always the case, as seen in examples of police brutality against protesters in the United States, and in the UK with the Police, Crime, Sentencing, and Courts Act of 2022, freedom of association is generally upheld and protected within democratic regimes. However, global democracy is on the decline, and in the 2015 John Hopkins University Press’ Journal of Democracy, Douglas Rutzen discusses how authoritarianism is placing an increasing threat to civil society. He says, “Since 2012, more than 160 laws constraining the freedoms of association or assembly have been enacted or proposed in 60 countries. This trend is consistent with the continuing decline of democracy worldwide(Rutzen, 2015, 30).” Freedom in the World 2023 shows us that 2022 was the 17th consecutive year of a global decline in freedom. As freedom of association is recognized by international law, this is not reflected when exercised within authoritarian regimes. In Countries such as Venezuela, freedom of association is strongly restricted and those who exercise this right can face major consequences. “The government is being investigated for crimes against humanity regarding how they treat opposition protests; Human Rights activists and members of NGOs face harassment, threats, and arrest; and the government has cracked down on labor unions with opposition unions and several labor union leaders have been arrested or killed (Freedom House, 2023)”. The autocratic regime of Kazakhstan also has strict restrictions on those who assemble and protest. Those who fail to follow these restrictions are subject to detainment, torture, and death as seen in the 2022 gas price protests in western Kazakhstan. “NGOs continue to operate but face government harassment when they attempt to address politically sensitive issues. There are extensive legal restrictions on the formation and operation of NGOs…Workers have limited rights to form and join trade unions or participate in collective bargaining. The government is closely affiliated with the largest union federation and major employers, while genuinely independent unions face repressive actions by the authorities. The country’s major independent trade union body was dissolved in 2017(Freedom House, 2023).” Intimate association is also not free within an autocracy as seen in Russia. Although private relationships are allowed, social media is heavily monitored, minority religious groups are often targeted, and political repression has impacted private discussions with cases of citizens reporting others for expressing views or associations in opposition to the government. “The government restricts freedom of assembly. Overwhelming police responses, the excessive use of force, routine arrests, and harsh fines and prison sentences have largely discouraged unsanctioned protests, while pro-Kremlin groups are able to demonstrate freely… The government has also relentlessly persecuted NGOs, particularly those that work on human rights and governance issues. Civic activists are frequently arrested on politically motivated charges(Freedom House, 2023).” Exercising freedom of association within an autocratic regime is heavily restricted and poses a major risk. While sometimes possible to assemble and protest, it is not without registration and approval, being met with police force, or facing other significant consequences. As the middle ground between democracy and autocracy, hybrid regimes recognize freedom of association accordingly. Freedom House ranks countries on a scale of 1-4; democratic regimes typically place at a 3 or 4 regarding freedom of association, whereas autocratic regimes place at a 0 or 1. However, hybrid regimes consistently place at a 1, 2, or 3 depending on the nation. As declared by the European Parliament, Hungary has now transitioned from a deficient democracy, into a “hybrid regime of electoral autocracy. (European Parliament Press Release, 2022).” However, according to Freedom House, Hungary exemplifies a true hybrid regime with the possession of liberty and limitations to the freedom of association. The freedom to assemble is constitutionally protected and often respected, scoring a 4/4; however, associations with NGOs that go against the government agenda are subjected to stigmatization, monitoring, and fines placing associative freedom at a 2/4 (Freedom House, 2023). The hybrid regime of Jordan, a constitutional monarchy with an elected lower house in parliament, has a registration system for the formation of associations that must be approved by authority (Makary, 2007). In the International Journal of Not-for-Profit Law’s 10th volume issued in 2007, Marc Makary examines the case studies of Jordan and Lebanon and the guarantees of freedom of association in non-democratic environments. He states “While freedom of association in Jordan is protected by the Constitution, its laws are contrary to the standards for freedom of association set by International Law. Article 16 of the Constitution grants Jordanians the right ‘to establish societies and political parties provided that the objects of such societies and parties are lawful, their methods peaceful, and their by-laws not contrary to the provisions of the Constitution.’ While Article 16 seems to provide space for individuals to establish associations, its paragraph (iii) places the establishment of associations and political parties under the control of the law with Jordanian Law N° 33 of 1966 granting absolute discretion to the Minister of Social Affairs or the Minister of Interior to register associations, ban undeclared associations, and establish long and burdensome administrative procedures (Makary’s, 2007). ” Makary’s findings have not changed much since 2007, as the current hybrid regime strictly limits free assembly, heavily monitors and regulates NGO operations in an arbitrary manner, and limits the industries in which unions may form with the limited right to strike (Freedom House, 2023). Hungary was on the more positive end of the spectrum with middle averaging scores, contrary to Jordan with scores of 1/4 and 0/4 regarding freedom of association. Hybrid systems can fluctuate how much freedom they allow for people to associate with each other. Democratic regimes remain at the top levels of ability regarding the right to exercise freedom of association without interference; whether that be through assembly, union membership, expressive group discussion, or intimate association, citizens of democracies face little to no limits. In contrast, Autocratic regimes place heavy restrictions and limits on the exercise of this freedom and often punish those who do. While the actions do not vary much depending on the regime, the ability to do so freely without interference is truly where the differences lie.
European Parliament. 2022. “MEPs: Hungary Can No Longer Be Considered a Full Democracy. News. European Parliament.” Www.europarl.europa.eu. September 15, 2022. https://www.europarl.europa.eu/news/en/press-room/20220909IPR40137/meps-hungary-can-no-longer-be-considered-a-full-democracy.
Freedom House. 2023. “ Freedom in the World 2023 Country Report.” Freedom House. 2023. https://freedomhouse.org/explore-the-map?type=fiw&year=2023 Gorokhovskaia, Yana, Adrian Shahbaz, and Amy Slipowitz. 2023. “Marking 50 Years in the Struggle for Democracy.” Freedom House. 2023. https://freedomhouse.org/report/freedom-world/2023/marking-50-years.
Jr, David L. Hudson. 2009. “Freedom of Association.” Www.mtsu.edu. 2009. https://www.mtsu.edu/first-amendment/article/1594/freedom-of-association.
Makary, Marc. “Notification or Registration? Guarantees of Freedom of Association in Non-Democratic Environments: Case Studies of Lebanon and Jordan.” n.d. ICNL. Accessed June 19, 2023. https://www.icnl.org/resources/research/ijnl/notification-or-registration-guarantees-of-freedom-of-association-in-non-democratic-environments-case-studies-of-lebanon-and-jordan.
Rutzen, Douglas. "Authoritarianism Goes Global (II): Civil Society Under Assault." Journal of Democracy, vol. 26 no. 4, 2015, p. 28-39. Project MUSE, doi:10.1353/jod.2015.0071.
United Nations Human Rights. 2023. “OHCHR Freedom of Assembly and of Association.” n.d. OHCHR. https://www.ohchr.org/en/topic/freedom-assembly-and-association#:~:text=Everyone%20has%20the%20rights%20to,protests%2C%20both%20offline%20and%20online.
United States Congress. Constitution Annotated. Amdt1.8.1 Overview of Freedom of Association. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/