A/HRC/26/29
right can, however, be in tension with laws regulating cross-border activities such as
immigration and trade. For example, pastoralist communities whose territories or means of
livelihood straddle international borders often do not use formal border crossing points or
possess the necessary administrative documentation such as passports. The Special
Rapporteur is unconvinced that border control laws should automatically trump their ability
to maintain their cultural lifestyles. He believes that States have an obligation to facilitate
the free movement of such communities, including by adopting special measures
recognizing cross-border movements in the context of transhumance.
62.
The Special Rapporteur further decries the discriminative and disproportionate use
of immigration laws by States to deny residence or work permits to staff of associations that
are critical of the Government or that express views that are unpopular with the
Government.
63.
As stated by the Human Rights Council, in its resolution 24/5, the right to freedom
of association applies both online and offline. As such, laws that unjustifiably restrict
freedom of expression on the Internet and limit the ability of people to associate over that
medium are unacceptable. With youth being the most active social media users overall,
restrictions placed on access to social media sites will disproportionately affect their ability
to organize and mobilize for their common interests. The perception that youth in general
lacks maturity and are therefore incapable of participating fully in public affairs often forms
the backdrop against which some Governments feel the need to filter and dictate media
content made available in their countries.
64.
In addition to legislation that restricts the right to the freedom of assembly of LGBTI
people through discriminatory law that prohibits “propaganda” or the “promotion” of
homosexuality, some legislation also specifically prohibits the formation, running,
participation in or support of organizations that advocate for the protection of the human
rights of LGBTI people. This is the case of the above-mentioned Same Sex Marriage
(Prohibition) Act in Nigeria. The Special Rapporteur highlights that the Human Rights
Committee has clarified that any limitations to rights protected by the International
Covenant on Civil and Political Rights, when permitted by the Covenant, may not be
imposed for discriminatory purposes or applied in a discriminatory manner. Therefore,
provisions restricting or prohibiting the right to freedom of association of a specific group
on discriminatory grounds, such as sexual orientation or gender identity, is not permitted
under the Covenant and must be reviewed with a view to repeal.
4.
Practices threatening and impeding the enjoyment of the right to freedom
of association
65.
The lived experiences of members of groups most at risk may be problematic even
where legislation promotes equality and non-discrimination, due to practices that threaten
and impede the enjoyment of the right to freedom of association. Such practices can lead to
the marginalization of groups already disadvantaged in their exercise of the right to
freedom of association. The conditions of work for migrant domestic workers, for example,
are often characterized by isolation and dependence. This is reinforced by unfamiliarity
with the work environment of the host country and a lack of basic support structures, which
then encourage bad practices by employers, such as restricting the freedom to leave the
workplace. Women migrant workers face gender-based violence and abuse, and migrant
domestic workers in irregular situations are further at risk of deportation. They are therefore
even less likely to speak out against exploitation and abuse. In these circumstances, migrant
workers are faced with considerable obstacles in their efforts to form associations that cater
for their interests. Refugees and asylum seekers find themselves in a similar situation where
the fear of their status being revoked has a chilling effect on their ability to mobilize.
18
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