I would like to address one of the more difficult aspects of freedom of association,the justification of extreme restriction on associations. By extreme restriction I mean first,the denial to individuals by the State of the right to create or establish an association and secondly,where an association is in existence the permanent suppression or disbandment of that association. There are inevitable legitimate restrictions in the exercise of most freedoms. Their justification requires scrutiny of whether any restriction is proportionate to the purpose of the restriction. But when can a restriction that prevents an association from coming into being or dissolves it be proportionate?
It is immediately clear that the purposes of an association are the uppermost consideration. The denial of the right to exist under the law to criminal gangs,or networks such as paedophile groups is not particularly controversial.(The processes by which such groups are suppressed may raise issues over the abuse of power,a current concern with the labelling of groups as “terrorist” and the manner in which measures such as freezing of assets is undertaken.)There is indeed a formal duty imposed on States that ratify the International Convention on the Elimination of Racism to ban racist organisations.But it is immensely more controversial when we discuss extreme restriction in the cases of political parties or religious organisations or movements. Can such drastic interference with the freedom of association,the denial entirely of the exercise of the freedom in their cases ever be justified?The essential aspect of political parties and some religious movements is that they exist to promote policies or programmes involving change. That change may be to particular laws or to the constitutional organisation of the state or to its beliefs. What policies or programmes of such associations could justify their suppression compatible with human rights principles?
Since some the most interesting discussion of this question as regards political parties have arisen in recent years before the European Court of Human Rights I will mainly discuss the approach of that Court under the European Convention on Human Rights.