Freedom of Association/Fundamental and protected
Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?
Freedom of Association refers to the right to associate and interact with organizations and individuals in terms of organizing and demanding common interests. The Office of the United Nations High Commissioner for Human Rights defines this right as, “The right to freedom of association involves the right of individuals to interact and organize among themselves to collectively express, promote, pursue and defend common interests. This includes the right to form trade unions.”(OHCR). This right is stated under the 20th article of the United Nations Declaration of Human Rights, which states, “(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.”(United Nations 1948). This right is generally associated with labor unions and is stated as the right of ‘Freedom of Association and Collective Bargaining’ according to the International Labour Organization which is a United Nations body that advances economic justice and rights such as the freedom of association.
This right is generally interpreted and defined differently under different constitutions pertaining to the various importance of the right to the environment and culture of the country. For example the United States’ constitution does not explicitly state the right to freedom of association rather in the first amendment it states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”(US Constitution Annotated 2022). Therefore the United States supports a form of association and does not allow the prohibition of ‘assembly’ of individuals ‘peaceably’. This right is often associated and phrased in constitutions as the ‘Freedom of Association and Collective Bargaining’ this implies a distinction between the two concepts; with collective bargaining being associated with the demands rather than the organization of the individuals.
Liberal democratic countries often support this right based on common understandings from the English philosopher John Locke who in his writing of "Two Treatises of Government". Locke championed three fundamental unalienable rights which are: the right to life, liberty, and property. As such he does not explicitly state the right of freedom of association, yet he does describe the right of individuals to join together in pursuit of their interests. Locke argues, “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”(Locke 1689) individuals have the natural right to associate with others based on mutual consent, forming communities and engaging in collective endeavors. He believed that individuals should have the liberty to create associations, including religious congregations, trade unions, and political organizations, in order to protect and advance their shared interests.
Furthermore, John Locke introduced the concept of the ‘Social Contract’ exploring the idea of a collective agreement that establishes the norms, behaviors, and rules necessary for the formation of a society and a functioning government. John Locke, in his influential work "Two Treatises of Government," argued that individuals willingly enter into a social contract to form a civil society. This organized entity consent to be governed by an authority that protects their natural and unalienable rights of life, liberty, and property. Locke argues that if the government violates this social contract by infringing upon these fundamental rights, they have the right to resist and potentially overthrow the government.
The idea of the social contract highlights the notion of individuals entering into a collective agreement to form a society and a government that serves their common interests and protects their rights. The concepts put forth by Locke contribute to the understanding of the relationship between individuals and the government, as well as the rights and responsibilities that arise from this social contract in terms of freedom of association.
Furthermore, this right according to international organizations, specifically the International Trade Union Confederation, which has utilized an index to rank and identify the extent of the adoption of this right around the world(The International Trade Union Confederation 2022). According to the index, all countries generally have a clause or article that pertains to a form of right of freedom of association but many countries obstruct this right through justifications of ‘Free Speech’ of businessmen against their employees, ‘National Interests’, among other reasons for infractions on this right.
Whereas, the exceptions of the right generally exist in different frequencies, it is generally unjustified according to the ILO and ITUC to obstruct this freedom, whereas according to the OHCR in their comparative study Authoritarian regimes tend to obstruct this freedom for their political and national interests and while they may allow association to exist it would ultimately be ineffective. For example, the ILO details in its ‘Arab States Workers' Organizations’ page figures which detail the limitations of the application of the right of freedom of association in which a multiplicity of Arab countries do not allow for migrant workers to join trade unions. This is seen as the ILO states, “With the exception of Bahrain and Oman, across the Arab States migrant workers are excluded from trade union representation by law.” This shows a general common exception based on the environment of freedom of association in the case of the Arab states, many of which have a significant labor pool of expatriate workers.
To conclude, while most states are part of the International Labour Organization (ILO) and almost all countries recognize the constitutional right to association, the limitations and exceptions to this right vary significantly based on the specific environment and cultural context.
Bibliography
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