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Abstract
The article is a part of a Special Issue on institutional fragmentation in international human rights law and it focuses on freedom of association as related to political parties. It investigates how this right is being interpreted and applied in three selected jurisdictions – the UN Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights. The article starts with analysing the conventional texts regulating the content of the freedom of association and possible limitations states may impose on the exercise of this freedom. It further examines how the freedom of association of political parties is interpreted by three international institutions of human rights protection. Based on an analysis of the conventional texts and the relevant jurisprudence, it investigates whether there is a fragmentation with respect to the freedom of association specific to political parties and what it means for the claim on the universality of human rights.
Notes
1. For example: P-M Dupuy, “A Doctrinal Debate in the Globalisation Era: On the ‘Fragmentation’ of International Law” (2007) 1 European J of Legal Studies 1–19; M Koskenniemi and P Leino, “Fragmentation of International Law? Postmodern Anxieties” (2006) 15 Leiden J of Int Law 553–79; M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (, 2006); MA Young, Regime Interaction in International Law: Facing Fragmentation (Cambridge UP, Cambridge, 2011); International Law Commission, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Yearbook of the International Law Commission, 2006).
2. For a more detailed account of this statement in relation to the European Convention on Human Rights see, for example, S Marks, “The European Convention on Human Rights and its ‘Democratic Society’”, British Yearbook of International Law (1996) 209–38; H-M Napel, “The European Court of Human Rights and Political Rights: The Need for More Guidance” (2009) 5 European Const Law Rev 464–80.
3. See, for example, S Marks, “The European Convention on Human Rights and its ‘Democratic Society’”, British Yearbook of International Law (1996) 209–38; S Marks, “The ‘Emerging Norm’: Conceptualizing ‘Democratic Governance’” (1997) 91 American Soc of Int Law 372–76; S Marks, “What has Become of the Emerging Right to Democratic Governance?” (2011) 22(2) Int J of Int Law 507–24; GH Fox and BR Roth (eds), Democratic Governance and International Law (Cambridge UP, Cambridge, 2000); J D'Aspermont, “The Rise and Fall of Democratic Governance in International Law: a Reply to Susan Marks” (2011) 22(2) European J of Int Law 549–70; S Wheatley, The Democratic Legitimacy of International Law (Hart Publishing, Oxford, 2010), at 92–246, 311–33, and some others.
4. International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by the General Assembly Resolution 2200A (XXI) of 16 December 1966. Entered into force: 23 March 1976. State Parties as of November 2013: 167.
5. Convention for the Protection of Human Rights and Fundamental Freedoms, CETS 005, opened for signature on 4 November 1950. Entered into force: 3 September 1953. State Parties: 47.
6. American Convention of Human Rights. Adopted 22 November 1969. Entered into force: 18 July 1978. State Parties as of November 2013: 23.
7. Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly Resolution 217A (III) of 10 December 1948.
8. Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
9. More details are provided in, for example, in GH Fox and G Nolte, “Intolerant Democracies” (1995) 36 Harvard Law Rev 1–70, at 40.
10. See K Loewenstein, “Militant Democracy and Fundamental Rights I, II” (1937) 3 American Pol Sci Rev 417–432; and (1937) 3 American Pol Sci Rev 4: 638–58.
11. General Comment No 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (article 25). Adopted 12 July 1996 at the Fifty-seventh Session of the Human Rights Committee.
12. The Convention on the Elimination of All Forms of Discrimination against Women. Adopted by the UN General Assembly 18 December 1979. Entered into force: 3 September 1981. State Parties as of November 2013: 187.
13. Staatkuding Gereformeerde Partij v The Netherlands, Application 58369/10. Judgment of 10 July 2012.
14. United Kingdom of Great Britain and Northern Ireland, CERD, A/48/18 (1993) 73, at paras 416 and 421.
15. Germany, CERD, A/48/18 (1993) 81, at paras 446 and 449.
16. Norway, CERD, A/52/18 (1997) 77, at paras 606 and 607.
17. Article 10: 1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
18. See S Sottiaux and S Rummens “Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’ Case Law on Freedom of Expression and Freedom of Association” (2012) 10(1) Int J of Const Law 106–26.
19. GH Fox and G Nolte, “Intolerant Democracies” (1995) 36 Harvard Law Rev 1–70, at 41.
20. Lawless v Ireland, Application 332/57, Decision of the Former European Commission of Human Rights of 1 July 1961; De Becker v Belgium, Application 214/56, Decision of the Former European Commission of Human Rights of 23 March 1962, at para 137: article 17 of the European Convention “applies only to persons who threaten the democratic system of the Contracting Parties”.
21. S Marks, “The European Convention on Human Rights and its ‘Democratic Society’”, British Yearbook of International Law (1996) 209–38, at 210.
22. KPD v Federal Republic of Germany, Application 250/57. Decision of the Former European Commission of Human Rights of 20 July 1957.
23. Zdanoka v Latvia, Application 58278/00. Judgment of 16 March 2006.
24. DJ Harris, M O'Boyle, E Bates and C Buckley, Law of the European Convention on Human Rights (Oxford UP, Oxford, 2009), at 649.
25. DJ Harris, M O'Boyle, E Bates and C Buckley, Law of the European Convention on Human Rights (Oxford UP, Oxford, 2009).
26. KPD v Federal Republic of Germany.
27. Limmerveen & Hagenbeek v The Netherlands, Applications 8348/78, 8406/78. Decision of the Former European Commission of Human Rights of 11 October 1979.
28. MA v Italy (117/1981), ICCPR, A/39/40 (10 April 1984) at para 190.
29. The Carter Center: Democracy Reporting Internationally, Overview of State Obligations Relevant to Democratic Governance and Democratic Elections. Policy Paper. Available at http://www.democracy-reporting.org/publications/thematic-papers.html.
30. GH Fox, “The Right to Political Participation in International Law” in GH Fox and BR Roth (eds), Democratic Governance and International Law (Cambridge UP, Cambridge, 2000), 48–90, at 55.
31. GH Fox, “The Right to Political Participation in International Law” in GH Fox and BR Roth (eds), Democratic Governance and International Law (Cambridge UP, Cambridge, 2000), 48–90, at 56.
32. MA v. Italy, (117/1981), ICCPR, A/39/40 (10 April 1984) 190.
33. Arenz v Germany (1138/2002), A/59/40 vol. II (24 March 2004) 548.
34. Arenz v Germany, at para 2.2.
35. Arenz v Germany, at paras 3.1, 3.2, 3.3 and 3.4.
36. Arenz v Germany, at para 8.6.
37. AP v Russian Federation, Communication No 1857/2008, 28 March 2013.
38. The Communication was submitted in 2008. The status and activities of political parties were governed by the Political Parties Act Federal Law No 95 – FZ of 11 July 2001. Section 3 §2 required that a political party should have no fewer than 50,000 members and should have regional branches with no fewer than 500 members in more than one half of Russia's regions. Law No 95 was substantially changed in this aspect in 2012 when the requirement for the minimum number of party members was cut to 500.
39. Republican Party of Russia v Russia, Application 12976/07. Judgment of 12 April 2011, para 58.
40. Opinion of the European Commission to Democracy through Law on the Federal Law on the Election of the Deputies of the State Duma of the Russian Federation. Adopted by the Council for Democratic Elections on 15 March 2012 and by the Venice Commission on 16–17 May 2012.
41. Wallman v Austria, Communication No 1002/2001, 1 April 2004; Lee v Republic of Korea, Communication No 1119/2002, 20 July 2005; Zvozskov v Belarus, Communication No 1039/2001, 17 October 2006; Korneenko v Belarus, Communication No 1274/2004, 31 October 2006; Belyatsky v Belarus, 1296/2004, 24 July 2007; Katsora v Belarus, 1 Communication No 383/2005, 25 October 2010; Kungurov v Uzbekistan, Communication No 1478/2006, 20 July 2011; Korneenko v Belarus, Communication No 1226/2003, 20 July 2012.
42. P Harvey, “Militant Democracy and the European Convention on Human Rights” (2004) 29(3) European Law Rev 407–20.
43. General comments on this case are provided by DJ Harris, M O'Boyle, E Bates and C Buckley, Law of the European Convention on Human Rights (Oxford UP, Oxford, 2009), at 527–28; RCA White and C Ovey, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 463–65; and P Dijk, F van Hoof, A van Rijn and L Zwaak, Theory and Practice of the European Convention of Human Rights (Intersentia, 2006).
44. These actions are prohibited by articles 6, 10 and 14 and former article 68 of the Constitution of Turkey, and section 78 of the Law on Political Parties No 2820 (adopted in 1983).
45. This appears to be contrary to section 96(3) of Law on Political Parties No 2820.
46. These activities are prohibited by articles 2, 3 and 66 and former article 68 of the Constitution, and sections 78 and 81 of Law on Political Parties No 2820.
47. This is prohibited activity under section 96(2) of Law No 2820.
48. According to article 69(9) of the Turkish Constitution, a party which has been dissolved permanently cannot be founded under another name. Article 69(10) establishes that “Members, including the founders, of a political party whose acts or statements have caused the party to be dissolved permanently cannot be founders, members, directors or supervisors in any other party for a period of five years from the date of publication in the official gazette of the Constitutional Court's final decision and its justification for permanently dissolving the party.”
49. United Communist Party of Turkey v Turkey, Application 133/1996/752/951. Judgment of 30 January 1998.
50. United Communist Party of Turkey v Turkey.
51. United Communist Party of Turkey v Turkey.
52. United Communist Party of Turkey v Turkey, at para 30.
53. United Communist Party of Turkey v Turkey, at para 52.
54. First stated by the court in Handyside v United Kingdom, Application 5493/72. Judgment of 7 December 1976.
55. United Communist Party of Turkey v Turkey, at para 32.
56. United Communist Party of Turkey v Turkey, at para 57.
57. Socialist Party of Turkey v Turkey, Application 21237/93. Judgment of 25 May 1998.
58. Socialist Party of Turkey v Turkey, Application 21237/93. Judgment of 25 May 1998, at para 47.
59. Freedom & Democracy Party (ÖZDEP) v Turkey, Application 23885/94. Judgment of 8 December 1999.
60. Refah Partisi (Welfare Party) v Turkey (Applications 41340/98, 41342/98, 41343/98 and 41344/98). Grand Chamber Judgment of 13 February 2013.
61. Refah Partisi (Welfare Party) v Turkey, at para 47.
62. See, for example, Refah Partisi (Welfare Party) v Turkey, at para 102.
63. See, for example, Herri Batasuna v Spain, Applications 25803/04, 25817/04. Judgment of 30 June 2006; Eusko Abertzale Ekintza–Acción Nacionalista Vasca (EAE–ANV) v Spain, Application 40959/09. Judgment of 15 January 2013 and others.
64. European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures (1999). Adopted by the Venice Commission at its 41st Plenary session, 10–11 December 1999, Section 1.
65. Partidul Communistilor (Nepeceristi) & Ungureanu v Romania, Application 46626/99. Judgment of 3 February 2005.
66. Linkov v Czech Republic, Application 10504/03. Judgment of 7 December 2006.
67. Artymov v Russian Federation, Application 17582/05. Judgment of 7 December 2006.
68. Christian Democratic People's Party v Moldova, Application 28793/02. Judgment of 14 February 2006.
69. European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures (1999). Adopted by the Venice Commission at its 41st Plenary session, 10–11 December 1999, Section 1.
70. European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures (1999). Adopted by the Venice Commission at its 41st Plenary session, 10–11 December 1999.
71. European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures (1999). Adopted by the Venice Commission at its 41st Plenary session, 10–11 December 1999.
72. European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures (1999). Adopted by the Venice Commission at its 41st Plenary session, 10–11 December 1999.
73. Twenty-five states have ratified the American Convention on Human Rights: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.
74. SJ Schnably, “Constitutional and Democratic Government in the Inter-American System” in GH Fox and BR Roth (eds), Democratic Governance and International Law (Cambridge UP, Cambridge, 2000), 155–98.
75. Santiago Commitment to Democracy and the Renewal of the Inter-American System. Adopted by the General Assembly of OAS on 4 June 1991.
76. Representative Democracy. Resolution No 1080. Adopted by the General Assembly of OAS on 5 June 1991.
77. D Shelton, “The Jurisprudence of the Inter-American Court of Human Rights” (1994) 10(1) American U Int Law Rev 333–72, at 336.
78. Inter-American Commission of Human Rights, Report on Terrorism and Human Rights. (OEA/Ser.L/V/II.116. Doc. 5 rev. 1 corr, 2002), at para 359.
79. Inter-American Commission of Human Rights, Report on Terrorism and Human Rights. (OEA/Ser.L/V/II.116. Doc. 5 rev. 1 corr, 2002).
80. One of the examples would be the Inter-American Commission on Human Rights, The Road to Substantive Democracy: Women's Political Participation in the Americas. Special Report. (OEA/Ser.L/V/II. Doc.79, 2011).
81. Baena Ricardo v Panama. Judgment of 2 February 2002 at para 56; Cantoral Huamani & Garcia Santa Cruz v Peru. Judgment of 28 January 2008, at para 144; Kawas Fernandez v Honduras, Judgment of 3 April 2008 at para 143; Escher v Brazil, Judgment of 1 July 2009, at para 170.
82. Escher v Brazil, para 171.
83. Escher v Brazil.
84. Yatama v Nicaragua, Judgment of 23 June 2005.
85. A detailed commentary of this case and its implications is given in MS Campbell, “The Right of Indigenous Peoples to Political Participation and the Case of Yatama v. Nicaragua” (2007) 24(2) Arizona J of Int and Comp Law 499–540.
86. Castaneda Gutman v Mexico, Decision of 8 August 2006.
87. Castaneda Gutman v Mexico, Decision of 8 August 2006, at para 202.
88. R O'Connel, “Realising Political Equality: the European Court of Human Rights and Positive Obligations in a Democracy” () 61(3) NI Legal Quarterly 203–8, at 278.