Warsaw, 22 June 2026 Opinion-Nr.: NGO-ALL/580/2026 [NR] NOTE ON THE DRAFT CCPR GENERAL COMMENT NO. 38 ON ARTICLE 22 OF THE ICCPR (RIGHT TO FREEDOM OF ASSOCIATION) This Note has benefited from contributions made by Ena Bavčić, Member of the ODIHR Panel of Experts on Freedom of Assembly and Association; and Jeremy McBride, Barrister, Monckton Chambers, London and a Member of the ODIHR Panel of Experts on Freedom of Assembly and Association. It was also peer reviewed by the other members of the ODIHR Panel of Experts on Freedom of Assembly and Association. OSCE Office for Democratic Institutions and Human Rights Ul. Miodowa 10, PL-00-251 Warsaw Office: +48 22 520 06 00, Fax: +48 22 520 0605 www.legislationline.org
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 2 TABLE OF CONTENTS I. INTRODUCTION ...................................................................... 3 II. LEGAL ANALYSIS AND RECOMMENDATIONS ............................. 4 1. General Comments........................................................................................................ 4 2. Exercising Freedom of Association Online or in Hybrid Form ................................. 6 3. Scope of Freedom of Association ................................................................................ 7 3. Enabling Environment ................................................................................................. 12 4. Restrictions .................................................................................................................... 14 5. State of Emergency ....................................................................................................... 16
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 3 I. INTRODUCTION 1. On 29 October 2025, the United Nations (UN) Human Rights Committee published a call for contribution to the development of the draft General Comment on Article 22 of the International Covenant on Civil and Political Rights (ICCPR) on the right to freedom of association. 1 A Concept Note identifying areas for input was published along with the call. 2 On 19 December 2025, ODIHR published its Note in Contribution to the Draft CCPR General Comment on Article 22 of the ICCPR (Right to Freedom of Association). 3 2. In April 2026, the draft General Comment No. 38 (draft GC38) was published with a call for comments. The deadline was set for 30 June 2026. 4 3. The present Note was prepared by ODIHR in response to the above request to provide written contribution, within the framework as established by relevant OSCE human dimension commitments, 5 which also calls upon ODIHR to enhance its co-operation with other international organizations active in the human dimension, 6 and in view of ODIHR’s extensive experience in this field. 4. Building on ODIHR’s long-standing expertise in legislative assistance, the Note aims to provide some views on selected aspects pertaining to the right to freedom of association as outlined in the draft GC38 in view of applicable and relevant international and regional human rights standards and recommendations, as well as OSCE human dimension commitments. It draws on the relevant ODIHR publications and legal reviews on the right to freedom of association, 7 primarily the ODIHR-Venice Commission Joint Guidelines on Freedom of Association (2015) (hereafter Joint Guidelines on Freedom of Association) and the ODIHR Guidelines on the Protection of Human Rights Defenders (2014), as well as ODIHR-Venice Commission joint guidelines addressing specific categories of associations, including political parties and religious or belief organizations. 8 At the same time, the present Note aims to reflect on subsequent developments and new challenges that have emerged since the publication of these guidelines, as also reflected in the numerous ODIHR legal reviews that have been published during the past decade. 9 5. The Note does not aim to cover in detail all the aspects addressed in the draft GC38 and the absence of comments on certain paragraphs should not be interpreted as an endorsement. Should a revised version of the draft GC38 be subject to further 1 OHCHR | Call for input - Draft General Comment No. 38 on Article 22 (Freedom of Association) of the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee, in accordance with Article 40 (4) of the ICCPR and Rule 76 of its Rules of Procedure, is mandated to prepare general comments on the various articles and provisions of the Covenant with a view to assisting States Parties in fulfilling their obligations under the Covenant. The UN Human Rights Committee decided at its 144th session (13 June to 17 July 2025) to develop a General Comment on Article 22 of the ICCPR, in the light of experience obtained in the review of State reports and communications on this right. 2 See <https://www.ohchr.org/sites/default/files/documents/hrbodies/ccpr/cfis/gc38-22/en-gc38-concept-note.docx>. 3 ODIHR, Note in Contribution to the Draft CCPR General Comment on Article 22 of the ICCPR (Right to Freedom of Association), 19 December 2025. 4 OHCHR | Call for comments - Draft General Comment No. 38 on Article 22 (on the right to freedom of association) of the International Covenant on Civil and Political Rights 5 In particular, CSCE/OSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990, para. 9.3; and Charter of Paris for a New Europe (1990), where the OSCE participating states affirmed that “…without discrimination, every individual has the right to (…) freedom of association.” See also OSCE, Istanbul Document 1999, para. 27, where OSCE participating States committed to “enhance the ability of NGOs to make their full contribution to the further development of civil society and respect for human rights and fundamental freedoms”. 6 See in particular, CSCE/OSCE, Budapest Document 1994 Towards a Genuine Partnership in a New Era, para. 9. 7 See an overview of ODIHR’s legal reviews on freedom of association here: Legal reviews | Freedom of Association | LEGISLATIONLINE. 8 See ODIHR and Venice Commission, Guidelines on Political Party Regulation (2nd edition, 2020); Guidelines for Review of Legislation Pertaining to Religion or Belief (2004) and the Joint Guidelines on the Legal Personality of Religious or Belief Communities (2014). 9 Available at: Legal reviews | Freedom of Association | LEGISLATIONLINE.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 4 consultations, ODIHR may provide further substantive comments and elaboration on the topics addressed below or any of the other topics identified. Thus, the content of this Note is without prejudice to written input, analyses and/or recommendations that ODIHR may provide in the future. II. LEGAL ANALYSIS AND RECOMMENDATIONS 6. The draft GC38 is a comprehensive and timely draft that addresses a vast number of issues at the core of the right to freedom of association. The text is firmly rooted in the recognition of freedom of association as both a fundamental and enabling right and, in light of the increasing challenges faced by associations, provides a thorough foundation for safeguarding this right. However, several notions and aspects would benefit from further clarification, elaboration and streamlining to avoid the risk of misinterpretation or inconsistent application. These issues are addressed in more detail hereafter with reference to the relevant paragraphs and proposed changes to draft GC38 highlighted in bold. 1. GENERAL COMMENTS 7. The introductory section (paragraphs 1 to 11) provides an excellent opportunity to place the right to freedom of association in the context of present-day challenges and highlight its foundational aspects. Given that these opening paragraphs set the standard for the remainder of the draft GC38, the opportunity could be used to provide a clearer overview of the core components and dimensions of the right. There could be an acknowledgement that the draft GC38 also aims to safeguard the freedom having in mind emerging and potential future challenges whether brought through technologies or changing political landscapes, or societal and/or economic pressures. 8. In this regard, it is welcome that paragraph 1 underlines the importance of freedom of association for individual and collective autonomy and as the foundation of a system of participatory governance. While this acknowledges the political connotation of the right, its relevance for personal fulfilment (should also be acknowledged. 10 The crucial role that associations can play in ensuring the transparency and accountability of governmental activity as a means of achieving the fundamental goals and promoting the values noted in paragraph 3 should also be underlined. 11 9. Paragraph 2 defines the interplay of other rights with the right to association. A broader formulation similar to the one retained in General Comment no. 37 could be considered linking the full realization of the right to freedom of association to the enjoyment, exercise and operationalization of a wide range of other rights, including economic, social and cultural rights, and those enumerated in the last sentence of paragraph 2. 12 Given the trend to seek to over-regulate associations that are deemed to carry out broadly and vaguely defined “political activities”, the interlinkage with the right to participate in public affairs deserves further elaboration; paragraph 2 could specifically underline that the right to freedom of association also protects the associations’ ability to participate in public affairs, contribute to public debate, to advocate for legislative 10 2025 ODIHR Note, para. 11. 11 2025 ODIHR Note, para. 11. 12 See UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September 2020, para. 9.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 5 and policy change, or otherwise address issues of public importance and/or of relevance to the organization concerned, as an inherent aspect of their activities 13 (see also para. 43 infra). 10. Paragraph 2 represents an opportunity to define the right as broad as possible, and offer strong protections for individuals wanting to join, form and participate in associations of diverse forms, structures, legal statuses and membership compositions. While understanding the potential limitations related to conceptualizing associations as right- holders in the draft GC38, greater emphasis could be placed on the fact that interferences directed at associations themselves are indissociable from, and as a consequence directly affect, the rights of their members, founders, representatives and beneficiaries, and others associated with associations, including their rights to respect of privacy (art. 17), 14 freedom of movement in cases of restrictions on people’s ability to travel, including abroad (art. 12), as well as the rights protected under articles 7 and 9 in severe cases involving violence, intimidation, arbitrary detention, or even article 6 when associations performing relief and life-saving activities are restricted in their activities. An effective remedy should be ensured to challenge official decisions restricting the right to freedom of association (art. 2 (3)); such a process must meet fair and public hearing requirements (art. 14 (1)). 11. Paragraph 5 addresses reservations to Article 22 but also contains a general reference to Article 22 (2) ICCPR, which provides a certain degree of vague language, failing to clearly identify the requirements for introducing limitations and restrictions to the right to association. As this is part of the opening section of the draft GC38, such vague wording may risk misinterpretation. In order to avoid shifting the focus of the introductory section away from the fundamental importance, broad scope and enabling function of the right to freedom of association, it is recommended to remove such a broad reference to article 22 (2). Alternatively, if retained at all, the reference to restrictions should be limited to a brief acknowledgement that article 22 (2) provides grounds for potential restrictions but that any such restrictions must be narrowly drawn and that there are, in effect, limits on the restrictions that may be imposed, which would be consistent with the approach and wording adopted in General Comment No. 37. 15 A cross-reference to section V could be added. It will also be important to re-emphasize, here or under Section V, the exhaustive nature of the grounds for imposing restrictions listed in Article 22 (2) ICCPR and that they should be narrowly interpreted. 16 12. Paragraph 7 positively underlines that the right is not contingent upon prior authorization or recognition by the State, although the linkage drawn with the principles of non- discrimination and intersectionality appears conceptually artificial, as these constitute distinct guarantees rather than consequences of the absence of prior State authorization. The reference to the principles of non-discrimination and intersectionality would appear to fit better at the beginning of paragraph 9. Paragraph 7 could be further strengthened by a clear statement that unregistered associations benefit from the protection conferred by Article 22 of the ICCPR and individuals should not be compelled to have their 13 2025 ODIHR Note, para. 11, Reference to paragraphs 8 and 26 of UN Human Rights Committee, General Comment no. 25 could also be added. 14 Regarding the associational right to privacy, see ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL- AD(2014)046, paras 228 and 231, which underline that “the right to privacy applies to an association” and “[l]egislation should contain safeguards to ensure the respect of the right to privacy of the clients, members and founders of the associations, as well as provide redress for any violation in this respect”. The right to privacy has become particularly pertinent in the context of so-called “foreign agents” legislation and the increased surveillance of associations; see, e.g., OSCE/ODIHR, Note on Legislative Initiatives on Transparency and Regulation of Associations Funded from Abroad or So-called “Foreign Agents Laws” and Similar Legislation and their Compliance with International Human Rights Standards (2023), paras. 101-102. 15 See UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September 2020, para. 8. 16 ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL-AD(2014)046, Principle 9 and para. 34.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 6 informal associations registered or gained formal legal personality. 17 In addition, the last sentence could specify that the enabling framework should offer the possibility of creating a legal entity in order to pursue the objectives of those establishing the organization concerned, otherwise the right to act collectively would be deprived of any meaning. 18 Another aspect to be highlighted is that the possibility to acquire legal personality should they so wish, is particularly important to religious or belief communities and essential for the exercise of freedom of religion or belief, particularly in relation to the freedom to manifest one’s religion or beliefs in community with others. 19 13. Paragraph 9 underlines the differentiated and heightened impact of restrictions on “marginalized, disenfranchised or disadvantaged persons, groups, communities and peoples”. While the mention of potential discriminatory impact of restrictions is welcome in principle, in order to avoid the implicit characterization of listed persons or groups as inherently “marginalized”, “disenfranchised” or “disadvantaged”, the text could be adjusted to them as experiencing structural or intersecting forms of discrimination or exclusion or particular barriers in the exercise of their rights, including those who are marginalized, socially excluded or otherwise disadvantaged in practice. In addition, the list provided appears to combine, on the one hand, persons and groups that may be discriminated on the basis of inherent or relatively permanent characteristics or status and, on the other hand, persons exposed to heightened risks due to the nature of their activities or viewpoints they may defend, and this distinction could be made clearer. Further, paragraph 9 could also list “people living in poverty”, refugees and stateless persons as other specific categories that can be particularly affected by restrictions on Article 22 ICCPR. 14. Paragraph 10 further elaborates on what type of actions are protected under this right, “including those that peacefully promote ideas that are not necessarily favourably viewed by the Government or the majority of the population, are a cornerstone of any democratic society.” Although this is commendable, mentioning peaceful in the context of protection may be misinterpreted. Hence, while the comment refers to associations that commit peaceful actions, there is no understanding how peacefulness is defined. Further, the illustrative list of potential activities or causes that may be considered controversial, dissenting or disruptive but should nevertheless be protected could be further elaborated by expressly referring to the types of causes/activities that are increasingly subject to stigmatization, delegitimization or other restrictive measures, including, in some contexts, criminalization. 20 2. EXERCISING FREEDOM OF ASSOCIATION ONLINE OR IN HYBRID FORM 15. Paragraph 11 lays out how online technologies affect freedom of association though it could be elaborated in a more concrete and forward-looking manner, especially by elaborating what Article 22 would imply in practice in terms of state obligations. In particular, it could be specified that Article 22 protects associations irrespective of the technological means through which they are formed, organized or operate, including those operating fully online or hybrid associations that operate both online 17 ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL-AD(2014)046, Principle 9 and para. 34. 18 See e.g., European Court of Human Rights, Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998. 19 ODIHR and Venice Commission, Guidelines on the Legal Personality of Religious or Belief Communities, 2014. See also: ODIHR, Guidelines for Review of Legislation Pertaining to Religion or Belief, 2004. 20 See 2025 ODIHR Note, para. 79, including but not limited to advocating for peaceful constitutional, legislative, political, social, cultural or economic change, advocating for the decriminalization of abortion, promoting gender equality, asserting minority identity or consciousness, protecting the human rights of LGBTI persons, working with migrants, asylum-seekers and refugees, defending environmental or land rights, calling for regional autonomy or advocating peacefully for changes to territorial arrangements, including secession, information and education on sexual and reproductive health and contraceptive methods, See also ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL-AD(2014)046, Principle 9 and para. 182.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 7 and offline, 21 underlining in particular the need for an enabling and protective framework for associations carrying out cross-border work or those that are exiled, or of which a part of their membership are exiled. 16. Paragraph 11 refers to the chilling effect resulting from digital surveillance, Internet shutdowns, the lack of access to digital tools, online transnational repression and unduly restrictive monitoring of social media and websites. Restrictions on the use of encrypted or anonymous communications also deserve specific mention, as they may undermine the confidentiality, safety and effective exercise of freedom of association, particularly in contexts involving surveillance, reprisals or intimidation. 17. Paragraph 11 (or Section IV) could also further elaborate the States Parties’ obligations to respect, protect and facilitate the exercise of the right to freedom of association online. 22 In particular, they should ensure that digital technologies, including those developed or operated by private actors, are regulated, designed, deployed and used in a manner consistent with article 22 and other rights. In addition to the compliance with legality, necessity, proportionality requirements under article 22 (2), States Parties should adopt specific safeguards, including transparency concerning the use of digital technologies and artificial intelligence systems by States Parties, including in the regulation of associations, administrative or funding-related decision-making, surveillance activities and content moderation, requirement of human rights due diligence by enterprises, judicial authorization for digital surveillance, human oversight to prevent errors, mitigate algorithmic bias, and maintain accountability, strong independent oversight mechanisms and access to effective remedies. The draft GC38 could specify that States Parties should also refrain from using spyware, surveillance technologies or large-scale monitoring practices to identify, track, profile or intimidate founders, members or beneficiaries of associations, including across borders. States Parties should also ensure effective safeguards and protection, especially against technology-enabled attacks and other forms of digital interference targeting associations, including cyberattacks, hacking, unlawful access to associations’ communications, networks, membership and beneficiaries’ information, funding data and digital archives, as well as online harassment, threats and intimidation, gender-based online violence, coordinated smear or disinformation campaigns, and the non-consensual online disclosure of personal or membership-related information. Especially, remedies for interferences with freedom of association in the digital environment should be timely, accessible and adapted to the speed, scale and often cross-border nature of online harms, in order to ensure their effectiveness in practice. 18. In light of the rapid evolution and unpredictability of emerging technologies and their potential impact on the enjoyment of the right to freedom of association and other rights, the draft GC38 could further underline the need for a technologically neutral and adaptable interpretation of the framework protecting associations, ensuring that existing human rights safeguards remain fully applicable and effective irrespective of the specific technologies used or subsequently developed. 3. SCOPE OF FREEDOM OF ASSOCIATION 19. Section II of the draft GC38 addresses many of the key issues that are essential for safeguarding the freedom of association. At the same time, some of these issues would benefit from clearer language to avoid the risk of restrictive interpretation, including by 21 2025 ODIHR Note, paras. 17-18, 32, 22 2025 ODIHR Note, paras. 17-18, 32, See also ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL- AD(2014)046, Section C.Sub-Section 2.I.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 8 acknowledging funding as a fundamental aspect of the full enjoyment of the right, providing clearer delineations between associational activities and corporate or other lobbying, and addressing autonomy and self-governance as a core issue warranting protection, among others. 20. Paragraph 12 mentions a broad range of associations that are covered by the right. However, grass-roots organizations, which may be arguably among the most vulnerable ones, are not specifically mentioned. It is suggested to explicitly refer to grass-roots organizations. In addition, the reference to “religious organizations” should be broadened to include “religious or belief organizations” to account for the fact that organizations which are based on (non-religious) beliefs are also covered. 23 The reference to ‘licit’ goals, interests and activities is unclear and potentially misleading and should only introduced in the context of restrictions; if retained at all, it should be clarified that the definition of what constitutes (il-)licit goals must be done in full respect of all applicable human rights standards and should not be misused to unduly restrict the possibility to associate with others. If not elaborated under the introductory section, the principle of presumption of lawfulness of the formation, objectives and activities of associations should be included under section II. 21. The draft GC38 could further expand the notion of collective action, underlining the increasingly transnational and digital nature of collective action and exercise of the right to association. Especially, the paragraph should specifically mention that article 22 protects cross-border forms of association, co-operation and solidarity activities, including where associations operate, communicate, organize or mobilize across jurisdictions or partly in exile. 24 This includes associations providing humanitarian assistance, rescue missions of migrants, asylum-seekers and refugees, environmental protection, cross-border academic or scientific research, journalistic investigations and protection of human rights defenders and journalists in general. 25 22. Further, while the draft GC38 refers to “political parties” as a specific form of association, it would be beneficial to clarify what defining characteristics distinguish them from other types of associations i.e., the aim of participating in or presenting candidates in elections, 26 while underlining that their fundamental role in democratic processes and promoting the political participation of under-represented persons or groups may warrant separate approaches when it comes to registration, membership, internal autonomy, funding and other types of public or private support, among other aspects. 27 This could be reflected in paragraph 12 whereas a separate paragraph could be dedicated to highlighting key aspects for political parties which would include the following: (1) that registration as a political party may be required to take part in elections or to obtain certain benefits, although substantive registration requirements and procedural steps for registration should be reasonable; 28 (2) regarding autonomy and self- 23 See ODIHR and Venice Commission, Guidelines for Review of Legislation Pertaining to Religion or Belief (2004), Part II.A.3; and Joint Guidelines on the Legal Personality of Religious or Belief Communities (2014), para. 2. 24 2025 ODIHR Note, para. 11, 25 Such clarification would be particularly relevant in light of increasing restrictions affecting access to foreign funding, transnational co- operation and international civic engagement, including through “foreign agent” legislation and other measures targeting associations with international links, 26 The ODIHR-Venice Commission Guidelines on Political Party Regulation define a political party as “…a free association of individuals, one of the aims of which is to express the political will of the people by seeking to participate in and influence the governing of the public life of a country, inter alia, through the presentation of candidates in elections”. See: ODIHR and Venice Commission, Guidelines on Political Party Regulation (2nd ed.), 2020, para. 11. 27 2025 ODIHR Note, paras. 13, 15, 58-61, See also ODIHR and Venice Commission, Guidelines on Political Party Regulation. 28 See also ODIHR and Venice Commission, Guidelines on Political Party Regulation, para. 85. Where registration as a political party is required to take part in elections or to obtain certain benefits, substantive registration requirements and procedural steps for registration should be reasonable. Such registration requirements should be carefully drafted to achieve legitimate aims, but not overly restrictive. With regards to internal autonomy, given the fundamental role of political parties in the democratic process, the balance between internal autonomy of parties and external regulation to create a minimum of democratic and equal participation within parties may lead to the
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 9 governance that given the unique and vital role of political parties in the electoral process and democratic governance, additional requirements regarding their internal functioning may be imposed and do not constitute undue restrictions insofar as they are necessary to ensure effective, representative and fair democratic governance, for instance measures to promote parity in party decision-making bodies, or requirement to have in place an effective and independent complaints-handling mechanism, to address violence against women and other forms of misconducts; 29 (3) that differently from other type of associations, foreign funding of political parties may be prohibited, in order to avoid undue influence by foreign interests, including foreign governments, in domestic political affairs, and strengthens the independence of political parties, 30 while stricter rules concerning political party financing reporting, public disclosure, public control and oversight entailing transparency may be imposed given the special role and status of political parties, although they should remain necessary and proportionate; 31 (4) that the right to an effective remedy with respect to the de-registration, suspension or dissolution is guaranteed, noting that particular caution is required given the potentially far-reaching consequences for political participation, electoral competition and the exercise of the right to vote and be elected, and that the availability of prompt and effective judicial review, including where appropriate suspensive effect, is particularly important in order to avoid irreversible harm, including exclusion from electoral processes or the impairment of meaningful political participation (this could also be addressed separately in paragraph 40). 32 23. In the context of political party regulation specifically, the ECtHR has also acknowledged the imposition of certain requirements and stricter rules concerning political party financing and reporting, public disclosures, public control and oversight entailing transparency limited to political parties, providing that they did not entail significant disclosure or reporting obligations, not to be disproportionate. 33 24. It would also be welcome to reflect the right of the child to exercise the freedom of association as per Article 15 of the Convention of the Rights of the Child (CRC), while being consistent with the evolving capacities of the child. 34 adoption of legislative measures to ensure greater gender balance in political parties, with a view to ultimately contribute to more balanced or diverse representation in political and public life generally. As to financing for example, foreign funding may be prohibited by legislation, unlike in the case of other types of associations. Other aspects to address in this respect are membership and other restrictions states may apply to political parties . These and other aspects pertaining to the regulation of political parties are further elaborated in the ODIHR-Venice Commission Guidelines on Political Party Regulation. 29 See CEDAW Committee, General recommendation No. 40 (2024) on the equal and inclusive representation of women in decision- making systems, 25 October 2024, paras. 39 (c) and 51 (d)-(e). 30 See ODIHR and Venice Commission, Guidelines on Political Party Regulation, para. 229. 31 See ODIHR and Venice Commission, Guidelines on Political Party Regulation, Principle 11 and paras. 258-265. 32 See ODIHR and Venice Commission, Guidelines on Political Party Regulation, paras. 282-286. 33 As in European Court of Human Rights, Parti nationaliste basque – Organisation régionale d’Iparralde v. France, no. 71251/01, 7 June 2007 (as regards political parties). Thus, the Court has found that a prohibition on the funding of political parties by foreign States – which effectively gave rise to an obligation for political parties to publish donations through depositing them in a specified bank account – was necessary for the prevention of disorder. It has also recognized that the possibility for some associations to participate in elections and accede to power might make it necessary to require some of them to register as political parties, so as to make them subject to, for instance, stricter rules concerning party financing, public control and oversight, see: European Court of Human Rights, Zhechev v. Bulgaria, no. 57045/00, 21 June 2007. 34 While certain restrictions in terms of the legal capacity of children to form and join associations may be justified, any such restrictions must be based in law, serve a legitimate aim recognized by international standards and be necessary and proportionate to that aim, as required for other restrictions on the right to freedom of association; see ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), paras. 142-143. The CRC Committee has, for instance, expressed concern about legislation that precludes children and adolescents from the right to join political associations (Costa Rica - CRC/C/CRI/CO/4, 3 August 2011, paras. 37 and 38), as well as the requirement that children under 18 obtain parental consent before joining an association (Japan - CRC/C/15/Add.231, 26 February 2004, paras. 29 and 30). See also UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Report to the UN Human Rights Council (Threats to the rights to freedom of peaceful assembly and of association for groups most at risk), UN Doc. A/HRC/26/29, 14 April 2014, paras. 49 -50, <http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/Documents/A_HRC_26_29_ENG.DOC>. UN CRC, Article 5, which states that “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 10 25. Paragraph 12 also refers to social movements. It is important to clarify that social movements should be extended the same protections as afforded to informal associations. 26. Paragraph 13 seems to equate ‘de facto’ organizations to unregistered or informal organizations; it could instead reflect the latter two concepts rather than de facto associations which carries some ambiguity as to who determines whether it is an association or not. Also, the reference to ‘authorization’ when referring to the decision of individuals to register their association seems not required and should be deleted. Further, it is not only burdensome or onerous requirements that can be problematic for the registration of associations. Obtaining registration can also be frustrated by delayed decision-making and it would be appropriate, therefore, to specify timely decision-making to be an obligation for the authority concerned. In addition, the paragraph could be supplemented to highlight that registration procedures should be accessible and non-discriminatory, underlining the need for multiple registration modalities (including offline, online and other appropriate formats) to mitigate the risk of a digital divide and for effective accessibility to all, including persons with disabilities and individuals facing structural or intersecting barriers such as poverty, geographic isolation, or marginalization. 27. Paragraph 14 should specify that it deals with the right to voluntarily terminate an association. 28. As for the reference to funding, the current phrasing could be strengthened. The provision of financial and other types of support for associations and the way in which this is regulated needs to be seen as of crucial importance for both their existence and operation. 35 It would be important to explicitly mention that the ability of an association to solicit, receive and use funding and other types of support, including from foreign or international origin, in order to be able to promote and defend its cause constitutes an integral part of the right to freedom of association and is part of the state’s obligation to put in place a safe and enabling environment. There should, therefore, be encouragement for the provision of public support to associations, whether directly or indirectly (such as through tax exemptions and incentives to donate). It will be vital to underline that the receipt of funding or other type of support from foreign or international sources (public or private) should not be seen as inherently impermissible and as entailing the conclusion that the recipient associations are acting in the interests of those providing them with it. 36 Paragraph 14 could further state that the mere foreign origin of the funding of an association does not by itself constitute a legitimate reason for a differentiated treatment through labelling, enhanced scrutiny or other measures disproportionately limiting right to freedom of association. 37 29. Thus, it should be emphasized that any restrictions imposed should involve a proper and prior risk assessment of any legitimate dangers (such as money laundering, terrorist financing and interference with the political process) and not involve unnecessarily burdensome, intrusive or duplicative reporting and disclosure requirements that has been a feature of some “foreign agents” legislation or the like. 38 In particular, it is important to child of the rights recognized in the present Convention”. Regarding the possibility of appropriate direction and guidance being given by parents, members of the extended family or community and legal guardians or other persons legally responsible for children in the exercise of the rights recognized in that Convention, in doing so, it should also be emphasized that any such direction and guidance must be exercised in a manner consistent with the evolving capacities of the child; generally, there is unlikely to be any justification for preventing children from forming or joining informal associations in which only other children are involved. See: ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), paras. 152-153. 35 As underlined in, e.g., by the European Court of Human Rights in Ecodefence and Others v. Russia, no. 9988/13, 14 June 2022 and in Principle 7 of the Joint Guidelines 36 2025 ODIHR Note, para. 39. 37 2025 ODIHR Note, para. 77 and references therein. 38 See 2025 ODIHR Note, para. 77 and references therein. See also ODIHR Opinion on Bulgaria’s draft Act on the Registration of Foreign Agents (as of 11 November 2024).
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 11 acknowledge that labelling even in a seemingly neutral way to indicate the foreign origin of their resources may in practice, depending on the context, lead to stigmatization and discredit of the associations and their members. 39 Paragraph 14 should be adjusted to refer not only to “foreign agents” but also other (even seemingly neutral) labelling that may lead in practice to discrediting or stigmatization, ensuring that the specific terms cited are illustrative of this. 30. Paragraph 14 (or other) should also make it clear that the right is enjoyed by both natural and legal persons (and even groups of persons). 40 31. Paragraph 15 refers to some core principles but would benefit from clarification as to the respective meaning of “independence” (i.e., free from undue interference of the state or of other external actors), “autonomy” (i.e., the freedom of associations to determine their own organization, objectives, priorities, rules, activities and modalities of functioning internally and externally) and “self-governance” (i.e., the ability of associations to regulate and manage their own internal affairs and decision-making processes) or what they imply in practice. 41 It would also be beneficial to add nuance to the applicability of the prohibition of non-discrimination with respect to the freedom to determine their membership as there may be organizations imposing certain requirements for becoming members in light of the common purpose for which an association is established, provided they have reasonable and objective justification, although any discrimination for reasons unrelated to the purposes of the association should be prohibited in all cases. 42 32. In paragraph 16, the protection of autonomy and self-governance in both online and offline contexts is mentioned without providing concrete examples of how this would play out, and what kind of duties States would have, specifically in the online context (see paras. 14-18 supra). 33. In paragraph 17, the notion of “not-for-profit” (which is generally clearer than “non- profit”, also for the purpose of translation in other languages) character of an association could be clarified by specifying that the relevant criterion is not whether the main purpose of the association is to engage or not in economic or commercial activities, but rather whether any profits generated are reinvested in the pursuit of the association’s objectives rather than distributed for private gain. 43 It would also be beneficial to clarify that States must ensure respect for freedom of association when regulating lobbying or interest representation activities in addition to refraining from instrumentalizing these types of regulations, ideally within Section V on restrictions. The paragraph urges governments to distinguish between associations and other actors performing lobbying activities. Rather than referring to “lobbying” which may be subject to varying interpretations across jurisdictions, it would be advisable to focus instead on the substance of the type activities that may or may not be carried out by an association. Without further 39 See ODIHR and Venice Commission, Joint Opinion on the Draft Law of Republika Srpska on the Special Registry and Publicity of the Work of Non-Profit Organisations, 12 June 2023, paras. 46-47. See also European Court of Human Rights, Ecodefence and Others v. Russia, no. 9988/13, 14 June 2022 and European Court of Human Rights, Kobaliya and Others v. Russia, no. 39446/16, 22 October 2024. 40 The fact that legal persons should be able to establish associations should not be overlooked as associations of associations can be important vehicles for both the activities and interests that the entities pursue; see ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), paras. 38, 40 and 48. 41 See ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), para. 41, which underlines that the “independence” implies that an association must be free from undue interference of the state or of other external actors; associational autonomy refers to the freedom of associations to determine their own organization, objectives, priorities, rules, activities and modalities of functioning internally and externally (see e.g., ODIHR and Venice Commission, Guidelines on Political Party Regulation (2020), para. 20). An essential component of such autonomy is the principle of self-governance, which protects the ability of associations to regulate and manage their own internal affairs and decision-making processes (see paras. 169-170 of Joint Guidelines on Freedom of Association (2015)), 42 ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), paras. 129 and 131. 43 ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), para. 191.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 12 specification, such wording can be misinterpreted, and create further stigmatization to associations seeking to influence public policy, legislation or decision-making processes, including through advocacy or campaigning activities. Hence, the GC38 should clearly state that States must ensure respect for the ability to undertake advocacy on issues of public debate under the right to freedom of association when regulating lobbying or interest representation activities and therefore draw a clearer delineation between independent not-for-profit advocacy seeking to influence public decision-making processes in pursuit of an association’s objectives, which are protected activities under freedom of association, and professional and/or remunerated activities consisting of representing or advancing the interests of third parties, whether corporate, domestic or foreign governmental or other sponsoring interests, on behalf or under the direction or predominant influence of such third parties, with a view to influence public decision-making processes in a covert or non-covert manner. 44 3. ENABLING ENVIRONMENT 34. Section IV outlines State obligations with respect to the freedom of association. Paragraph 28 could further elaborate the prohibition of all forms of discrimination in a similar way as done in General Comment no. 37 by listing the non-exhaustive protected grounds, going beyond those mentioned in Articles 2 and 26. 45 35. In paragraph 30, a reference to the “use of so-called ‘extremism’ and/or ‘separatism’ laws” could be added to the list of measures incompatible with the exercise of the freedom of association and a reference to the misuse of criminal proceedings with a view to bar individuals from forming and/or joining an association as a result of a conviction could also be included. It could further refer to the obligation not to interfere in the work of displaced or exiled associations, as well as those acting abroad, thus reflecting a negative obligation to not engage in both offline and online transnational repression. The paragraph could also clarify that burdensome reporting requirements fall within the scope of excessive funding or tax regulations. While paragraph 30 rightly sees the instrumentalization of defamation proceedings and the use of SLAPPs as inconsistent with Article 22, in practice, such proceedings are often used by private and public actors, which underscores the need for further elaboration to highlight the States Parties’ 44 2025 ODIHR Note, para. 59 and references therein. See e.g., ODIHR Urgent Opinion on the Law of the Slovak Republic Amending Act No. 213/1997 Coll. on Non-profit Organizations providing Public Benefit Services and Amending Other Acts (print 245, adopted on 16 April 2025), pp. 33-34 (Annex). Lobbying activities may be regulated in the interests of transparency and accountability, as an essential component of good public governance applicable to the public sector and to ensure that financially or politically powerful groups do not unduly influence or capture state policies. ODIHR has also underlined that “any legislation regulating lobbying should strictly define the meaning of lobbying, ensuring that it primarily targets those who receive compensation for carrying out lobbying activities and that it does not cover all advocacy activities by civil society organizations or participation in public consultations”. The ODIHR, Guidelines on Democratic Lawmaking for Better Laws, 2024, paras. 75 and 91 note that “[l]obbying is understood as the promotion of specific interests by communicating with a public official as part of a structured and organized action aimed at influencing public decision-making” and “…is a legitimate act of political participation” and that “regulation of lobbying activities should not be unduly burdensome and should seek to balance the need for transparency with safeguards for the rights of individuals and associations, including the rights to freedom of expression and opinion, freedom of association and the right to participate in public affairs. Individuals and associations have the right to express their opinions and petition public officials, bodies and institutions, whether individually or collectively, and to participate in public affairs by campaigning for political, legislative or constitutional change. While some civil society organizations may be involved in lobbying, not all contacts between civil society and politicians or political institutions, nor forms of advocacy by civil society organizations should be characterized as lobbying”. See also ODIHR, Urgent Opinion on Draft Rules Governing the Activity of Representation of Interests, 2021, para. 21, which underlines that lobbying legislation should be carefully drafted to ensure that not all advocacy and awareness-raising done by civil society organizations in the public domain is qualified as “indirect lobbying”, while also ensuring that it does not stifle the very engagement with societal and social issues that are at the core of most civil society organizations’ work. 45 See UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September 2020, para. 25, which refers to “race, colour, ethnicity, age, sex, language, property, religion or belief, political or other opinion, national or social origin, birth, minority, indigenous or other status, disability, sexual orientation or gender identity, or other status”.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 13 duty to adopt appropriate regulation to prevent such abusive litigation. 46 In general, the paragraph could reflect the obligation to protect associations against criminal and other abusive conduct from third parties. It could further be useful to clarify that the reference to criminalizing activities of associations covers, for example, criminalization of those delivering humanitarian aid and those whose focus is on the protection of migrant rights. 36. The clear prohibition of the forms of conduct affecting members living abroad listed in paragraph 32 is welcome. However, this list could be extended to the imposition of criminal and other sanctions by a State Party on members of associations abroad who express criticism of its policies and actions or bring proceedings in respect of them before international courts and mechanisms. 47 Further, a reference to a State’s ‘territory under effective control’ could be included in paragraph 32. 37. Paragraph 32 could be further enhanced by specifically underlining the obligations for States Parties to the ICCPR to ensure that associations and HRDs operate in a safe and enabling environment that protects their independence, safety and access to affected populations; in particular, States should ensure that associations can operate both domestically and across borders during times of crisis, including by facilitating their registration, functioning and access to resources even under emergency conditions, while enabling organizations that have fled their home countries to be recognized and/or continue functioning as civil society actors in host states. 48 38. Paragraph 33 may, as currently phrased, imply that in order to have an enabling environment, regulations and policies on the freedom of association need to be in place. This could be phrased in a more open manner by reiterating that the right should be protected by a country’s constitution or laws, though specific laws on associations are not required, and that having a number of legal regulations in place should serve the purpose of facilitating the establishment and existence of associations. Further, the current paragraph 34 could be placed before the current paragraph 33. 39. Paragraph 35 refers to a ‘functioning environment’ which, to ensure consistency, would be best replaced with ‘enabling environment’, especially as the issues addressed in that 46 See: CM/Rec(2024)2 - Recommendation of the Committee of Ministers to member States on countering the use of strategic lawsuits against public participation (SLAPPs) (Adopted by the Committee of Ministers on 5 April 2024 at the 1494th meeting of the Ministers' Deputies) 47 This is essential since many journalists, human rights defenders and other members of associations are forced to leave their home countries due to pressures, but still face physical, financial and other repressive measures even after they leave their oppressive environments. Formalizing the support to associations facing transnational repression would be a crucial step in holding governments responsible for pressuring associations, and its members both within and outside of their territories. 48 See 2025 ODIHR Note, paras. 104-105 and references therein. See also e.g., SHDM on The Functioning of Democratic Institutions in Times of Crisis, 16-17 May 2022, Annotated Agenda and Final Report (see here). HRDs in exile may face additional challenges in trying to associate or re-associate in their new host countries, due to them: a) working on human rights, b) coming from countries under sanctions, and/or c) being nationals of a country under sanctions. More than merely associating, they may face additional problems in accessing funds, as the aforementioned circumstances may put them under extra scrutiny, making their opening of organizational bank accounts very difficult, burdensome, and sometimes impossible. The right to privacy of associations in exile may have an extra layer of risks, as disclosure of funding sources or activity beneficiaries, that may be seen as unproblematic in some contexts, may put associations in exile, their donors and beneficiaries at a very clear danger of persecution at home and transnational repression abroad; see e.g., OSCE, Supplementary Human Dimension Meeting (SHDM) On the Role of Civil Society in the Promotion and Protection of International Human Rights Law and International Humanitarian Law, 22-23 April 2024 (see here), which underlines the several obstacles and barriers faced when exercising their activities abroad or cross-border, and proposed recommendations including with respect to the following: Administrative obstacles that impede their effective operation – such as difficulties in opening bank accounts or accessing financial systems – should be removed, particularly for organizations representing displaced persons, asylum-seekers, refugees, minorities and marginalized communities; Support for cross-border activity also requires that states facilitate the transfer and receipt of funding by associations, and refrain from imposing limitations on international financial flows that would constrain their operations; Emergency financial measures made available to legal persons, such as relief packages or recovery funds, should be accessible to associations as well. In parallel, states should facilitate the conduct of their activities online, including registration processes, reporting obligations and internal governance meetings, thereby ensuring continuity of operations when in-person activity is restricted. In addition, states should offer relocation support, including simplified visa procedures, assistance for family members and integration support for HRDs who are compelled to leave their home countries.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 14 paragraph concerns the state’s duty to facilitate the freedom of association (see also para. 13 regarding the proposed illustrative list of potential controversial or sensitive issues). 49 40. In general, paragraphs 36 and 37 could be placed after paragraph 38 which continues to deal with an enabling environment for associations. With respect to paragraphs 39 and 40 it would be appropriate to be broader to cover both “individuals and associations”. Paragraph 37 could also be supplemented by referring to human rights abuses committed by enterprises on State territory, abroad and online. 4. RESTRICTIONS 41. Section V concerns restrictions that may be introduced as per Article 22 (2) ICCPR. As underlined at the outset in the General Comment no. 37, paragraph 41 could include clear statements that the onus is on the authorities to justify any restrictions, that restrictions must not be discriminatory and that restrictions must be narrowly drawn (if the latter is not already stated in the introductory section). 50 42. Paragraph 43 provides clarification as to the legality test, yet some of the examples provided may be better suited within the other conditions for restrictions. The sentence starting with “for example” does not actually seem to be an instance of a failure to comply with the need for restrictions to be “clear, precise and accessible to the public” since it refers to additional restrictions which would seem to be a matter of the second condition to be observed for restrictions, albeit that the phrase “racial and religious harmony and tolerance” might be regarded as somewhat imprecise. Certainly, as it stands, this sentence is in marked contrast to the one that follows, which is unambiguously linked to the requirement for restrictions to be clear. Some revision would be desirable. Also, it may be that “political objectives” could be seen as an imprecise term failing to meet the legality requirement, although it would also not correspond to one of the legitimate purposes exhaustively listed in Article 22 (2). As noted above, there should be no question of the legitimacy of associations advocating changes in law and public policy and seeking to secure the transparency and accountability of public authorities by the suggestion that such activities are “political” and can only be undertaken by “political parties”. 51 43. In relation to paragraphs 46-48, clarity and readability could be enhanced by addressing each ground for restriction separately. With respect to the public order issue referenced in paragraph 46, this could be phrased in a more restrictive manner noting that States parties should not rely only on a broad definition of “public order” to justify overbroad restrictions on the freedom of association but state specific and clear reasons for it, also noting that ‘public order’ and ‘law and order’ are not synonyms, and the prohibition of ‘public disorder’ in domestic law should not be used unduly to restrict associations. 52 In paragraph 47, it would be helpful to give a practical illustration of when the protection of public health as a legitimate ground for imposing restrictions on freedom of association might be invoked, or, on the contrary, when it cannot be invoked, for instance to prohibit or unduly restrict the activities of associations engaged 49 See 2025 ODIHR Note, para. 79, including but not limited to advocating for peaceful constitutional, legislative, political, social, cultural or economic change, advocating for the decriminalization of abortion, promoting gender equality, asserting minority identity or consciousness, protecting the human rights of LGBTI persons, working with migrants, asylum-seekers and refugees, defending environmental or land rights, calling for regional autonomy or advocating peacefully for changes to territorial arrangements, including secession, information and education on sexual and reproductive health and contraceptive methods, See also ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, CDL-AD(2014)046, Principle 9 and para. 182. 50 See UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September 2020, paras. 8 and 36. See also ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, 2015, para. 24. 51 See ECtHR, Zhechev v. Bulgaria, no. 57045/00, 21 June 2007. 52 See UN Human Rights Committee, General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September 2020, para. 44.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 15 in legitimate advocacy, information-sharing or public debate on health-related matters, including sexual and reproductive health 53 or abortion, vaccination policies or other matters of public interest, merely because the positions expressed may differ from those of public authorities or parts of the population. 44. Since public morals is frequently invoked as a ground to restrict associations advocating for the rights of LGBTI persons, women’s rights, religious minorities, or other dissenting or unpopular views, paragraph 48 would be enhanced if it would emphasize that the concept of public morals must be interpreted narrowly and in a manner consistent with the principles of non-discrimination, pluralism and respect for freedom of expression as well as the universality of human rights. 54 Paragraph 48 could also be supplemented by further underlining that reliance on the protection of morals as a ground for restricting freedom of association requires particularly strict scrutiny, given the inherent risk of arbitrary or discriminatory application, and may only exceptionally justify restrictions under article 22 (2). 45. The requirements of necessity and proportionality of restrictions are mentioned in the paragraph 50, although there is no elaboration nor illustration as to what they entail, which could be added. 55 Moreover, paragraph 50 could add some reference to the need for any sanctions – including administrative or criminal – that might be imposed on associations and those involved in them for breach of a requirement to be strictly proportionate to any harm shown to have been caused. Even where a restriction might have a legitimate aim, the excessive nature of the sanction imposed will mean that it cannot be considered to be necessary in a democratic society. This is especially so where breach of a restriction can lead to the dissolution of the association concerned. Paragraph 50 could emphasize further that dissolution should always be a measure of last resort and then only for what can legitimately be characterized as serious misconduct or a grave violation of the law, reinforcing the point made in paragraph 19 of the draft GC38 that involuntary/compulsory dissolution should be an exceptional measure. 46. Paragraph 50 (or other) could be supplemented to specifically address restrictions involving public disclosure or reporting obligations concerning associations, including in the context of so-called “foreign agent” laws or similar legislation. While they must strictly comply with the requirements of legality, legitimacy, necessity and proportionality, the need to protect the privacy, confidentiality and safety of beneficiaries, employees, and members, should be taken into account, particularly where revealing the names of certain individuals, such as those involved in sensitive areas like anti- corruption, victim protection, or non-discrimination, could put them at risk of harm or harassment. 56 Similarly, publicly identifying donors or contractors might discourage their continued support for associations. 57 53 See UN Human Rights Committee, General Comment No. 36 on article 6: right to life (2019), CCPR/C/GC/36, para. 8. 54 See ODIHR Guidelines on the Protection of Human Rights Defenders (2014), para. 59. 55 See 2025 ODIHR Note, para. 42; and ODIHR and Venice Commission, Joint Guidelines on Freedom of Association (2015), Principle 10 and para. 113, which inter alia presupposes that any imposed restriction should represent the least intrusive measure among all those possible means effective enough to achieve the designated objective. 56 See 2025 ODIHR Note, paras. 28-32 and references cited therein. See also ODIHR and Venice Commission, Ukraine - Joint Opinion on Draft Law No. 6674 "On Introducing Changes to Some Legislative Acts to Ensure Public Transparency of Information on Finance Activity of Public Associations and of the Use of International Technical Assistance" and on Draft Law No. 6675 "On Introducing Changes to the Tax Code of Ukraine to Ensure Public Transparency of the Financing of Public Associations and of the Use of International Technical Assistance" (16 March 2018), para. 47; and Explanatory Memorandum to the Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe, para. 116. 57 ODIHR, Urgent Interim Opinion on the Draft Law on Non-Profit Non-Governmental Organisations and Draft Amendments on “Foreign Representatives” of the Kyrgyz Republic (12 December 2022), para. 66.
ODIHR Note on the Draft CCPR General Comment No. 38 on Article 22 of the ICCPR (Right to Freedom of Association) 16 5. STATE OF EMERGENCY 47. Generally, paragraphs 54 and 55 could note that States Parties must not rely on derogation from the right to freedom of association if they can attain their objectives by imposing restrictions under Article 22 (2). 48. The role of civil society as partners of governments when developing emergency policy and legislative responses, disseminating information accessible to all, and providing support and services to marginalized communities – highlighted during the Covid-19 pandemic – could have been better protected had associations, particularly those serving marginalized communities and persons in vulnerable situation, been recognized as essential services and therefore exempted from some restrictions that impeded their continued operation and the establishment of new associations. 58 This approach may be equally relevant in times of war or other emergency situations, when civil society may play a key role in providing assistance to vulnerable groups and/or individuals, serving the public interest. This aspect could be reinforced in section VI. 49. In paragraph 54 the reference to “raises issues” is unclear; it would be advisable to clarify this in order to avoid misinterpretations by emphasizing the understanding that the action of humanitarian associations must generally be protected on account of the relevant protective role they comply under international human rights and humanitarian law. 59 This approach should not be restricted to the provision of material assistance in situations of disaster or armed conflict, but should also encompass organizations engaged in, for example, maritime search and rescue operations. 60 [END OF TEXT] 58 See OSCE/ODIHR Report on OSCE Human Dimension Commitments and State Responses to the COVID-19 Pandemic (2020). 59 Rule 31. Humanitarian relief personnel must be respected and protected. https://ihl-databases.icrc.org/en/customary-ihl/v1/rule31 60 Art. 98(2) UN Convention of the Law of the Sea; 1974 International Convention for the Safety of Life at Sea; and 1979 International Convention on Maritime Search and Rescue. IMO, Revised Rescue guide launched to safeguard life at sea, 20 May 2026.