Evicted aid groups in Sudan may have legal recourse to international tribunals

20 March 2009

Study shows that abusive governments may owe protective duties to charities and non-profits engaged in international development work.

The eviction by the Sudanese Government of international aid agencies highlights a major gap in the international laws protecting humanitarian and other non-profit organizations engaged in overseas work. However, recent research by the International Center for Not-for-Profit Law (ICNL) identifies a novel potential solution.

The Sudanese evictions came earlier this month in retaliation for an arrest warrant issued against Sudanese President Omar Al-Hassan Bashir on war crimes charges. 

Thirteen foreign groups have seen their licenses terminated abruptly, and have been ordered to hand over assets (including computers and vehicles). Despite international condemnation of this move, the Sudanese Government has so far failed to reverse course. Meanwhile, some affected groups are appealing the evictions to Sudanese courts.

The international laws protecting humanitarian and charitable groups are not as robust as those protecting global trade or other commercial activities.

However, a recent research paper prepared for the International Center for Not-for-Profit Law highlights a possible mechanism for protecting charitable organizations suffering abuses at the hands of a host-country.

The paper prepared by Luke Eric Peterson, a Canadian journalist and policy analyst, and Nick Gallus, an Australian lawyer, illustrates how an extensive network of treaties protecting for-profit overseas investments may provide protection for not-for-profit organizations engaged in certain forms of overseas charitable or humanitarian work.

The international treaties, commonly known as bilateral investment treaties (BITs), are used routinely by major overseas investors to protect investments in areas as diverse as oil & gas exploration, mining, and tourist developments.

Virtually all governments, including Sudan, have entered into some of these bilateral agreements. At present, Sudan has such agreements with a number of Western European Governments, including Belgium, France, Germany, Switzerland, and the Netherlands.

These treaties ensure that foreigners operating investment enterprises in Sudan enjoy legal protections beyond those available in local courts. In particular, these treaties promise financial compensation in cases of nationalization or confiscation of assets, and they guarantee basic police protection and security for foreign investment projects.

These treaties are powerful legal instruments: typically, the home state of an investment enterprise can initiate international arbitration against another country that has breached its treaty obligations.

In some cases, foreign investors can take their own initiative and launch binding arbitration proceedings against a host-country – in order to seek financial compensation for harms suffered.

Not-for-profit organizations may be able to rely on this network of economic treaties when confronted with harassment, abuse or outright eviction from a host country. The types of activities enjoying legal protection are quite broad in many cases – and may extend to various types of development projects operated.

Moreover, not-for-profit organizations may wish to take appropriate legal advice so as to structure their futureoverseas activities so that they are covered by one or more of these international treaties.

Douglas Rutzen, President of ICNL says: “In addition to other challenges confronting humanitarian groups, they must now contend with an increasingly hostile legal and regulatory environment. The extensive treaty network protecting overseas investments could be a valuable tool for some not-for-profit groups experiencing abuses at the hands of a host country.”