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The International Journal
of Not-for-Profit Law

Volume 10, Issue 2, April 2008

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Ethics and Civil Society

More Lies Than Meet the Eyes: Organizational Realities and Deceptions in Nonprofit Organizations
David Shulman

The Penalty of Nonprofit Leadership
Michael Bisesi

Articles

"Philanthrocapitalism" and Its Limits
Michael Edwards

Defending Civil Society
International Center for Not-for-Profit Law and World Movement for Democracy

Violence, Spin, and "Otherness" in Arab Civil Society
Ibrahim Saleh

Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the Rescue
Reginald Akujobi Onuoha

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Download this issue (PDF) | Editorial Board

Defending Civil Society

International Center for Not-for-Profit Law and World Movement for Democracy Secretariat at the National Endowment for Democracy

Executive Summary

Civil Society is facing serious threats today across the globe. An offensive against the spread of democracy has spread and intensified. This ongoing backlash against democracy has been characterized by a pronounced shift from outright repression of democracy, human rights and civil society activists and groups to more subtle governmental efforts to restrict the space in which civil society organizations (“CSOs”)—especially democracy assistance groups—operate. Too many regimes still employ standard forms of repression, from activists’ imprisonment and organizational harassment to disappearances and executions. But in other states—principally, but not exclusively authoritarian or hybrid regimes—these standard techniques are often complemented or pre-empted by more sophisticated measures, including legal or quasi-legal obstacles such as barriers to entry to discourage or prevent the formation of organizations, and barriers to resources to restrict organizations’ ability to secure the resources required to carry out their activities.

Governments have tried to justify and legitimize such obstacles as necessary to enhance accountability and transparency of non-governmental organizations (“NGOs”); to harmonize or coordinate NGO activities; to meet national security interests by countering terrorism or extremism; and/or in defense of national sovereignty against foreign influence in domestic affairs. This report exposes such justifications as rationalizations for repression, and, furthermore, as violations of international laws and conventions to which the states concerned are signatories.

The report articulates well-defined international principles protecting civil society (see below), already embedded in international law, including norms and conventions that regulate and protect civil society from government intrusion. These principles include: the right of NGOs to entry (that is, the right of individuals to form and join NGOs); the right to operate to fulfill their legal purposes without state interference; the rights to free expression and to communication with domestic and international partners; the right to seek and secure resources, including the cross-border transfer of funds; and the state’s positive obligation to protect NGO rights.

The report concludes by calling upon:

International Principles Protecting Civil Society

To protect civil society organizations from the application of the legal barriers described in this paper, this section seeks to articulate principles that govern and protect CSOs from repressive intrusions on the part of governments.

Principle 1: The Right to Entry (Freedom of Association)

(1) International law protects the right of individuals to form, join and participate in civil society organizations.

(a) Broad scope of right. Freedom of association protects individuals in their right to establish a wide range of civil society forms, including trade unions, associations, and other types of NGOs.

(b) Broadly permissible purposes. International law recognizes the right of individuals, through NGOs, to pursue a broad range of objectives. Permissible purposes generally embrace all ‘legal’ or ‘lawful’ purposes and specifically includes the promotion and protection of human rights and fundamental freedoms.

(c) Potential founders. The architecture of international human rights is built on the premise that all persons, including non-citizens, enjoy certain rights, including freedom of association.

(2) Individuals are not required to form a legal entity in order to enjoy the freedom of association.

(3) International law protects the right of individuals to form an NGO as a legal entity.

(a) The system of recognition of legal entity status, whether a “declaration” or “registration/incorporation” system, must ensure that the process is truly accessible, with clear, speedy, apolitical, and inexpensive procedures in place.

(b) In the case of a registration/incorporation system, the designated authority must be guided by objective standards and restricted from arbitrary decision-making.

Principle 2: The Right to Operate Free from Unwarranted State Interference

(1) Once established, NGOs have the right to operate free from unwarranted state intrusion or interference in their affairs. International law creates a presumption against any state regulation that would amount to a restriction of recognized rights.

(a) Interference can only be justified where it is prescribed by law, to further a legitimate government interest, and necessary in a democratic society. States must refrain from restricting freedom of association through vague, imprecise, and overly broad regulatory language.

(b) It is incumbent upon the state to ensure that applicable laws and regulations are implemented and enforced in a fair, apolitical, objective, transparent and consistent manner.

(c) Involuntary termination or dissolution must meet the standards of international law; the relevant government authority should be guided by objective standards and restricted from arbitrary decision-making.

(2) NGOs are protected against unwarranted governmental intrusion in their internal governance and affairs. Freedom of association embraces the freedom of the founders and/or members to regulate the organization’s internal governance.

(3) Civil society representatives, individually and through their organizations, are protected against unwarranted interference with their privacy.

Principle 3: The Right to Free Expression

Civil society representatives, individually and through their organizations, enjoy the right to freedom of expression.

(a) Freedom of expression protects not only ideas regarded as inoffensive or a matter of indifference but also those that offend, shock or disturb, since pluralism is essential in a democratic society. NGOs are therefore protected in their ability to speak critically against government law or policy, and to speak favorably for human rights and fundamental freedoms.

(b) Interference with freedom of expression can only be justified where it is prescribed by law, in the interests of a legitimate government interest, and necessary in a democratic society. States must refrain from restricting freedom of expression through vague, imprecise, and overly broad regulatory language.

(c) Stemming from the well-recognized protection of individuals to freedom of assembly, NGO representatives have the right to plan and/or engage in the advocacy of legal aims, including human rights and fundamental freedoms.

Principle 4: The Right to Communication and Cooperation

(1) Civil society representatives, individually and through their organizations, have the right to communicate and seek cooperation with other elements of civil society, the business community, international organizations and governments, both within and outside their home countries.

(2) Individuals and NGOs have the right to form and participate in networks and coalitions in order to enhance communication and cooperation, and to pursue legitimate aims.

(3) Individuals and NGOs have the right to use the Internet and web-based technologies to communicate more effectively.

Principle 5: The Right to Seek and Secure Resources

Within broad parameters, NGOs have the right to seek and secure funding from legal sources. Legal sources must include individuals and businesses, other civil society actors and international organizations, inter-governmental organizations, as well as local, national, and foreign governments.

Principle 6: State Duty to Protect

(1) The State has a duty to promote respect for human rights and fundamental freedoms, and the obligation to protect the rights of civil society. The State’s duty is both negative (i.e., to refrain from interference with human rights and fundamental freedoms), and positive (i.e., to ensure respect for human rights and fundamental freedoms).

(2) The State duty includes an accompanying obligation to ensure that the legislative framework relating to freedom of association and civil society is appropriately enabling, and that the necessary institutional mechanisms are in place to ensure the recognized rights to all individuals.

Introduction

Recent years have witnessed proliferating efforts by various governments to restrict the space in which civil society organizations in general and democracy assistance groups in particular operate. In response, the World Movement for Democracy, under the leadership of its International Steering Committee and in partnership with the International Center for Not-for-Profit Law (ICNL), is undertaking a project to identify and promulgate a set of international principles, already rooted in international law, that should inform government-civil society relations.

Adherence to these principles—which include the rights of citizens to associate in nongovernmental organizations (NGOs), to advocate, and to receive assistance from within and beyond national borders—is indispensible for advancing, consolidating, and strengthening democracy. However, these are precisely the principles that an increasing number of governments, including signatories to the appropriate international laws and conventions in which the principles are enshrined, are violating in the ongoing backlash against democracy.

With this report, the first phase of the Defending Civil Society project and drafted in partnership with the ICNL, the World Movement for Democracy begins an international campaign to promote the adoption of the principles the report articulates. Through this campaign, the World Movement - a global network of democracy and human rights activists, practitioners, scholars, donors, and others engaged in democracy promotion - also seeks to strengthen international solidarity among democracy-assistance, human rights and related NGOs at a precarious moment for the work they undertake.

To help advance the promotion and adoption of these internationally-recognized principles that protect civil society (hereafter ‘international principles’), the World Movement has assembled an Eminent Persons Group that includes former Canadian Prime Minister Kim Campbell, former Brazilian President Fernando Henrique Cardoso, His Holiness the Dalai Lama, former Czech President Vaclav Havel, former Malaysian Deputy Prime Minister Anwar Ibrahim, and Egyptian scholar and activist Saad Eddin Ibrahim, and Archbishop Desmond Tutu.

Following the initial drafting of this report, the World Movement secretariat organized five regional consultations during May-August 2007. These consultations—held in Casablanca, Morocco; Lima, Peru; Kiev, Ukraine; Bangkok, Thailand; and Johannesburg, South Africa—enabled grassroots activists, independent journalists, democracy assistance practitioners, scholars, and others to review interim drafts of the report, offer their comments and recommendations for the final version, and suggest strategies for advancing the international principles. Many of the recommended changes and suggested strategies have been incorporated into the report. In addition, as a result of the regional consultation in Casablanca, a specific Middle East/North Africa report on the regional environment for civil society work will be issued, featuring ten country reports prepared by local civil society leaders. This regional report will be available in Arabic and English for distribution and posting on Web sites throughout the region.

Rationale for the Defending Civil Society Project. We have recently witnessed a backlash against democracy on the part of regimes that seek to frustrate, undermine, or prohibit the activities of democratic and civil society groups and individual activists. In some post-Soviet states, for instance, authoritarian tendencies have revived, fueled by nationalism, a cold war legacy of fear of and hostility to “foreign enemies,” populist exploitation of social inequalities, and the imposition of non-democratic measures by democratically elected leaders.

Outside the post-Communist sphere, “semi-authoritarian” or “hybrid” regimes have stepped up measures to curb democratic activities they consider threatening. As examples in the following pages reveal, democratic space has been eroded by curtailing fundamental freedoms, disregarding the rule of law, suppressing civil society organizations and stifling independence of the media. Such regimes tend to adopt relatively sophisticated measures to constrain independent NGOs, using ostensibly technical or administrative regulations to restrict civil society groups. Of course, in regimes like Cuba, Turkmenistan or North Korea, more crudely familiar repressive techniques are also deployed.

Many regimes are imposing controls on civil society under the pretexts of ensuring security, political stability, and non-interference in the country’s internal affairs. Governments place restrictions on NGO activities, constrain their work, and harass and intimidate civil society activists in violation of internationally accepted principles of freedom. NGOs that advocate for human rights and democracy, including many that work in conflict zones, are particularly targeted. Regimes justify such actions by accusing independent NGOs of treason, espionage, subversion, foreign interference, or terrorism. These are but rationalizations, however; the real motivation is almost always political. These actions are not about defending citizens from harm but rather protecting those in power from scrutiny and accountability.

Semi-authoritarian governments are developing tools to suppress and silence independent groups, from manifestly restrictive laws and regulations to quietly burdensome registration and tax requirements. Charges leveled against NGOs are usually vague, such as “disturbing social order” or “undermining security,” and, to make matters worse, implementation and enforcement of such charges are arbitrary, fostering a climate of self-censorship and fear.

While authoritarian, hybrid or semi-authoritarian regimes pose growing challenges to democracy advocates and their international supporters, the international community cannot ignore those authoritarian regimes that were largely unaffected by the Third Wave of democracy and continue to repress all forms of independent political activity. Many of the examples in this report, provided in the context of the recent backlash, reflect measures that some governments have imposed for decades. Recent events in Burma, for instance, remind us of the closed societies in East Asia and elsewhere where people are denied the most basic human rights. Other governments, at least temporarily, have married economic progress with strict political control, serving as models for rulers who want both the benefits of economic openness and a monopoly of political power. Whether that combination is sustainable is an open question, but in an age of global communications and transparency, such situations offer both challenges and opportunities.

Outline of the report. This report is divided into four sections: Legal Barriers to Civil Society Organizations; Government Justifications for Legal Barriers; International Principles Protecting Civil Society; and Next Steps: Building Solidarity and Promoting the Principles. In the first section, the legal barriers are discussed within several categories:

Examples are provided to elucidate each category in a nuanced way. We have not sought to provide a comprehensive account of regimes taking measures to implement such restrictions. The examples provided are intended to be illustrative of the challenges NGOs face in a wide—and widening—range of countries. In addition, the authors of the report fully recognize that there are significant variations in the challenges civil society confronts within regions and from one region to another. The Middle East/North Africa regional report mentioned above, for example, aims to describe the differences among the countries in that region regarding the legal environments for civil society activity. We encourage efforts in other regions to conduct similar surveys.

The second section of the report briefly surveys governments’ justifications for establishing legal barriers. Again, the examples are not meant to be comprehensive but to illustrate the ways in which such justifications serve to deflect criticism by obscuring governments’ intentions. This section of the report is instructive in the ways in which such proffered justifications can be analyzed and, for the most part, rejected.

The third and fundamental section of the report, on the international principles protecting civil society, articulates the rights of civil society organizations that are being systematically violated. Not surprisingly, these principles and rights correspond to the legal barriers discussed in the first section of the report. They include:

To ensure a full understanding of these principles and rights in order to have the best chance for promoting adherence to them, this section provides specific citations of documents and other references reflecting their roots in international law and longstanding international acceptance. The articulation of these principles and rights is meant to augment other efforts to delineate such principles.

For instance, the International Labor Organization (ILO) long ago issued its Declaration on Fundamental Principles and Rights at Work. More recently, the European Parliament’s Foreign Affairs Committee expressed its concern about attacks on human rights defenders, insisting that the European Council and European Commission raise the situation of human rights defenders systematically in all political dialogues, while t he U.S. State Department formulated ten principles for informing government treatment of NGOs, including the right to function in an environment free from harassment, intimidation and discrimination; to receive financial support from domestic, foreign, and international entities; and suggesting that laws regulating NGOs be applied apolitically and equitably.

The final section, on ways to use the report to advance the principles it articulates provides a short list of recommended actions that civil society organizations and others can take, including actions to enlist the help of the international community, actions that civil society organizations can implement cooperatively, and actions specifically aimed at democracy assistance organizations. The World Movement will be facilitating a number of opportunities for discussing these and other suggested actions in greater detail.

About the authors. The International Center for Not-for-Profit Law (ICNL) is the leading source of information on the legal environment for civil society and public participation. Since 1992, ICNL has served as a resource to civil society leaders, government officials, and the donor community in over 90 countries. More information about ICNL can be found at: www.icnl.org. The National Endowment for Democracy (NED) initiated the World Movement for Democracy in 1999 and currently serves as its secretariat. More information about NED can be found at: www.ned.org. Information about the World Movement for Democracy can be found at www.wmd.org. The World Movement for Democracy expresses its deep appreciation to ICNL for its gracious and expert cooperation in the production of this report.

Acknowledgment of Support. The Defending Civil Society project, including the regional consultations, the production of the Defending Civil Society report, and activities to promote its findings, has been made possible through the generous support of the following: Canada’s Department of Foreign Affairs and International Trade, USAID, the Hurford Foundation, and the Taiwan Foundation for Democracy. The World Movement for Democracy and its Steering Committee also express their deep appreciation to the World Movement Secretariat at the National Endowment for Democracy (NED) and the International Center for Not-for-Profit Law (ICNL) for their cooperation and support on the Defending Civil Society project and the preparation of this report. Finally, special thanks go to the hundreds of civil society organizations from many different regions who participated in the Defending Civil Society project. Their insightful input through the consultation process has enhanced this Defending Civil Society report, and has made it more relevant to their work.

Legal Barriers to Civil Society Organizations

A disturbingly large number of governments – principally, but not exclusively authoritarian or hybrid regimes - are using legal and regulatory measures to undermine and constrain civil society. Legal constraints fall broadly into five categories:

Legal impediments affect a broad range of civil society organizations, regardless of their mission, but in many countries organizations pursuing human rights and democracy are disproportionately affected, if not deliberately targeted.

Legal barriers arise from a variety of sources, including constitutions, legislation, regulations, decrees, court decisions, and other legally binding measures. Moreover, legislation impacting NGOs extends beyond laws specifically designed to govern civil society organizations. Such legislation includes, for example, anti-terrorism or anti-extremism legislation, state security or state secrets legislation, and even regulations affecting Internet use, and access to information and assembly.

Country-specific examples are drawn from testimony given by civil society activists during a series of consultations and discussions, as well as publicly available media sources. The consultations convened NGOs and activists from various regions, identifying barriers to civil society organizations in the Middle East and North Africa (consultation held in Casablanca), Latin America ( Lima), Asia ( Bangkok), the former Soviet Union ( Kiev) and sub-Saharan Africa (Johannesburg). Few citations are provided in order to protect the identity of sources, especially those working in politically hostile environments.

This paper considers not only the law as written but also as applied in practice. Moreover, rather than provide an exhaustive list of offending countries, our aim is to root the legal barriers in real circumstances. We recognize, of course, that summary statements of legal barriers lack the background and context necessary for a fully nuanced understanding of a specific situation. However, the country examples are intended not to provide a detailed understanding of any single barrier or specific country, but rather to illustrate the wide range of barriers being used in countries around the world and to demonstrate, succinctly, how legal barriers constrain civil society.

I. Barriers to Entry

Restrictive legal provisions are increasingly used to discourage, burden and, at times, prevent the formation of civil society organizations. Barriers to entry include:

(1) Limited right to associate. Most directly, the law may limit the right to associate at all, whether in informal groups or as registered legal entities.

(2) Prohibitions against unregistered groups. In a clear infringement of freedom of association, some governments require groups of individuals to register, and prohibit informal, unregistered organizations from conducting activities. They often impose penalties on persons engaging with unregistered organizations.

(3) Restrictions on founders. In some countries, the law limits freedom of association by restricting eligible founders or by requiring difficult-to-reach minimum thresholds for founders.

(4) Burdensome registration/incorporation procedures. Many states require NGOs to undergo formal registration, - incorporation, or other similar – procedures (hereinafter “registration”) in order to attain legal entity status, and some make the process so difficult that it effectively prevents NGOs from being registered. Such barriers include a lack of clarity regarding the registration procedures; detailed, complex documentation requirements; prohibitively high registration fees; and excessive delays in the registration process.

(5) Vague grounds for denial. A common legal tool is the use of overbroad, vague grounds for denying registration applications. Compounding the problem, the law may provide no mechanism to appeal the decision.

(6) Re-registration requirements. In practice, re-registration requirements burden civil society and give the state repeated chances to deny entry to politically disfavored organizations.

(7) Barriers for international organizations. Some countries use legal barriers specifically to target international organizations, seeking to prevent or impede their operation inside the country.

II. Barriers to Operational Activity

Even when NGOs have successfully negotiated the above barriers to entry, the law may subject them to a wide range of constraints to legitimate activities. Such impediments assume many forms.

(1) Direct prohibitions against spheres of activity. In some cases, the law may directly prohibit NGOs from participating in certain spheres of activity.

(2) Invasive supervisory oversight. The law invites arbitrary interference in NGO activities by empowering governmental bodies to exercise stringent supervisory oversight of NGOs. Invasive oversight may take the form of burdensome reporting requirements, interference in internal management, and mandatory coordination with government policy.

(3) Government harassment. Poorly drafted laws encourage government harassment through repeated inspections and requests for documentation, as well as the filing of warnings against NGOs. Indeed, governments also take “extra-legal” actions to harass independent groups.

(4) Criminal sanctions against individuals. The use of criminal penalties against individuals connected with NGOs can prove a powerful deterrent against NGO activities and freedom of association.

(5) Failure to protect individuals and organizations from violence. The conspicuous failure of states to protect individual activists and civil society representatives in the face of threats, intimidation, violent assault and even murder creates a climate of fear that can effectively undermine the strength of civil society.

(6) Termination and Dissolution. The ultimate supervisory tool against NGOs is suspension and/or termination, which is often based on vague or arbitrary legal grounds.

(7) Establishment of GONGOs. By legislation or decree, governments have established organizations known as “government-organized NGOs” or GONGOs. GONGOs represent a threat to civil society, when they are used to monopolize the space of civil society-government dialogue, attack legitimate NGOs, defend government policy under the cover of being “independent,” – or otherwise inappropriately reduce the space for truly independent civic activity – all of which make GONGOs difficult to categorize.

III. Barriers to Speech and Advocacy

For many NGOs, particularly those engaged in human rights and democracy promotion, the ability to speak freely, raise awareness and engage in advocacy is fundamental to fulfilling their mission. Legal provisions are used to restrict the ability of NGOs to engage in a full range of free expression, including advocacy and public policy engagement.

(1) Prior restraints and censorship. In some countries, restrictions may come through direct burdens on publication.

(2) Defamation laws. Laws of defamation are used to hinder free speech and protect powerful people from scrutiny.

(3) Broad, vague restrictions against advocacy. Broad, ambiguous terms are often used to restrict “political” activities or “extremist” activities, giving the government substantial discretion to punish those whose statements are deemed improper, which in turn serves to chill free expression.

(4) Criminalization of dissent. In some countries, the law may be so phrased as to potentially criminalize the actual expression of criticism against the ruling regime.

(5) Restrictions on freedom of assembly. By making it difficult or even illegal for individuals and groups to gather or meet (i.e., to exercise freedom of assembly), the law directly hinders the ability of NGO representatives, and individuals generally, to plan and/or engage in advocacy activities.

IV. Barriers to Contact and Communication

Closely related to free expression is the ability of NGOs to receive and provide information, to meet and exchange ideas with civil society counterparts inside and outside their home countries. Here again, the law is being used to prevent or stifle such free exchanges of contact and communication.

(1) Barriers to the creation of networks. Existing legal entities – whether associations, foundations, trade unions or other legal forms – may be limited in their freedom to form groups or establish networks, coalitions or federations, or even prohibited from doing so.

(2) Barriers to international contact. Governments prevent and inhibit international contact by denying internationals entry into the country, or by hindering nationals from leaving the country. In addition, meetings and events convening nationals and internationals are restricted.

(3) Barriers to communication. Legal barriers affecting the free use of the Internet and web-based communication are becoming increasingly common. The impact of these restrictions reaches far beyond civil society, of course, but civil society leaders and their organizations are prominent targets.

(4) Criminal sanctions against individuals. As noted above, criminal laws can be enforced to undermine NGO activity, while states have used criminal sanctions to prevent and discourage free contact and communication.

V. Barriers to Resources

The law can be used to restrict the ability of NGOs to secure resources necessary to carry out their activities. Barriers to funding have become increasingly common in recent years, targeting foreign funding in particular.

(1) Prohibitions against funding. Most directly, the law may prohibit the receipt of certain categories of funding altogether.

(2) Advance government approval. More commonly, the law allows the receipt of foreign funding, but requires advance governmental approval.

(3) Routing Funding through the Government.

To emphasize, the foregoing list of legal barriers is illustrative, not exhaustive. It should also be noted that the impact of restrictive legal measures goes beyond those organizations or individuals that may be immediately subject to them, and can lead to a chilling of civil society activity more broadly. This, of course, is more difficult to measure.

The aim of this report is to highlight the trend, largely prevalent within authoritarian and semi-authoritarian regimes, towards more intrusive and punitive regulation of civil society organizations. There are some grounds for concern in developed or consolidated democracies even if they do not reflect a manifestly repressive intent. In Argentina, for example, the law permits the termination of an NGO when it is “necessary” or “in the best interests of the public”, while in India, NGOs have protested that the proposed Foreign Contribution Management Control Bill (FCMC) would further burden foreign funding. Similarly, in the United States, civil liberties groups have challenged the recent use of secret, unchallenged evidence to close down charities purportedly associated with terrorists and criticized amendments to the Foreign Intelligence Surveillance Act which expand government authority to monitor private phone calls and emails without warrants if there is “reasonable belief” that one of the parties is overseas. The fact that such issues have been and remain subject to criticism and future revision is a critical factor that sets them apart from countries where political debate is stifled.

Government Justifications for Legal Barriers

The justifications presented by governments for the regulatory backlash against civil society are as diverse as the restrictions themselves. Governments argue that they are necessary to promote NGO accountability, protect state sovereignty, or preserve national security. A key problem is that these concepts are malleable and prone to misuse, providing convenient excuses to stifle dissent, whether voiced by individuals or civil society organizations. As the United Nations has noted:

Under the pretext of security reasons, human rights defenders have been banned from leaving their towns, and police and other members of security forces have summoned defenders to their offices, intimidated them and ordered the suspension of all their human rights activities. Defenders have been prosecuted and convicted under vague security legislation and condemned to harsh sentences of imprisonment.1

As a result, “[o]rganizations are closed down under the slightest of pretexts; sources of funding are cut off or inappropriately limited; and efforts to register an organization with a human rights mandate are delayed by intentional bureaucracy.”2

This section seeks to identify the government justifications for the regulatory backlash and examine to what extent those proffered justifications are indeed justifiable under international law.

I. Government Justifications …

In recent years, governments have defended the enactment and/or implementation of legal impediments constraining civil society as seeking to accomplish a range of governmental purposes.

To illustrate:

II. … Under Scrutiny

The proffered government justifications may be rhetorically appealing, but rhetoric alone is not sufficient to justify interference with freedom of association and the rights of NGOs. Such interference must, instead, find legal justification. Indeed, each restriction on freedom of association, where challenged, is subject to a rigorous legal analytical test, as defined by the International Covenant for Civil and Political Rights (ICCPR) in Article 228:

No restrictions may be placed on the exercise of this right [freedom of association with others] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

Thus, restrictions on the exercise of freedom of association are justifiable only where they are:

(a) Prescribed by law;

(b) In the interests of one of the four legitimate state interests:

(c) Necessary in a democratic society.

(1) Prescribed by Law?

In subjecting restrictions on freedom of association to closer scrutiny, the first question is whether or not the interference is prescribed by law. This requirement means that restrictions should have a formal basis in law and be sufficiently precise for an individual or NGO to assess whether or not their intended conduct would constitute a breach and what consequences this conduct may entail.9 The degree of precision required is that which sets forth clear criteria to govern the exercise of discretionary authority.10 The Johannesburg Principles assert that “[t]he law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful.”11

Some of the legal barriers described above are clearly not prescribed by law. For example, the extra-legal actions of security services, which scrutinize and harass civil society activists, are certainly not prescribed by law. The failure of the state to protect groups and activists from threats of harm or violent acts is a dereliction of duty, not prescribed by law. Furthermore, vague and ambiguous regulatory language authorizing government officials to exercise subjective or even arbitrary decision-making (e.g., laws failing to define “extremism,” which is a ground for dissolution) may also not be prescribed in law, if the application of law is not reasonably foreseeable.

In failing to satisfy even the first prong of the ICCPR test, restrictions on freedom of association can only be deemed to violate international law.

(2) Legitimate Government Concerns?

A second issue is whether or not the restrictions are used in pursuance of legitimate grounds. The grounds available are limited to the four government aims listed above. The interpretation of these grounds cannot be expanded to embrace grounds other than those explicitly defined in Article 22(2).

Many of the restrictions identified in the “Legal Barriers” section of this report may not be supported by legitimate government concerns. For example, regulatory measures based on the government intent to “harmonize” or “coordinate” NGO activities are suspect. While “harmonization” and “coordination” may sound innocuous, they may also conceal the government intent to control or direct the activities of NGOs. In such cases, harmonization contradicts the basic premise of freedom of association, namely that people can organize for any legal purpose. It is difficult to see how such a justification can be compatible with the exhaustive list of ICCPR purposes and therefore be deemed legitimate.

A generalized assertion of “national sovereignty” or “state sovereignty” is questionable as a basis for interference with fundamental freedoms, including freedom of association.12 Claims of state sovereignty are belied by the very states using the justification for restrictions against NGOs when the very same governments use their funding to influence domestic political affairs in other countries.13 Hypocrisy abounds when governments accept millions (or in some cases, billions) of dollars of U.S., foreign assistance but then prohibit a local NGO from receiving a grant from a U.S.-based NGO, on the grounds that it might give the U.S. unwarranted influence over domestic political affairs. All duplicity aside, however, the critical point is that international law does not automatically recognize generalized assertions of “state sovereignty” as a justification to infringe fundamental rights and freedoms.14

Assertions of national security or public safety may, in certain circumstances, constitute a legitimate state aim. But states may not enact whichever measures they deem appropriate in the name of national security, public safety, or counter-terrorism.15 Claims of national security shall be construed restrictively as justifying measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.16

In sum, many legal barriers amount to restrictions not linked to legitimate state aims and are therefore insupportable. Where restrictions on freedom of association are both prescribed by law and in the interest of legitimate state purposes, we must then turn to the final prong of the analysis.

(3) Necessary in a Democratic Society?

Legitimate government concerns, in and of themselves, do not justify interference with freedom of association, unless that interference is “necessary in a democratic society.” Stated differently, restrictions prescribed by law and amounting to interference with freedom of association cannot be justified merely because they are linked with legitimate government interests; they must also be necessary in a democratic society. The “necessary” test implies that any measures must be proportionate to the legitimate aim pursued, and only imposed to the extent which is no more than absolutely necessary; there must be a pressing social need for the interference.17

To determine whether government interference is necessary, it is important to consider whether or not there are less intrusive means available to accomplish the desired end. For example, the use of government supervision to disrupt the activity of NGOs (through government attendance at the internal meetings of NGOs or the requirement of advance government approval to engage in human rights activities) certainly amounts to interference with freedom of association. Although prescribed by law, and at least arguably linked to a legitimate government interest (public order or the protection of the rights and freedoms of others), such invasive government actions cannot be considered necessary in a democratic society. Indeed, a number of countries have developed less intrusive means to accomplish the same ends.

Thus, even if restrictions are implemented in pursuance of legitimate government aims, they will be deemed violations of international law if not necessary in a democratic society. Most of the legal barriers listed in this paper are insupportable on this basis. Put simply, legitimate state interests can never justify the use of disproportionate constraints, such as:

To consider the legality of each legal barrier cited in this paper is beyond the scope of this inquiry. On the contrary, it is the state’s obligation to demonstrate that the interference passes scrutiny under the foregoing analytical framework.18 Unless the state is able to show that the restriction at issue is prescribed by law, in the interest of legitimate government aim(s) and necessary in a democratic society, then that restriction is not justified.

International Principles Protecting Civil Society

To protect civil society from the regulatory barriers described in this paper, this section seeks to articulate principles that govern and protect civil society – and in particular, NGOs – from repressive intrusions of governments. Tracking the five clusters of legal barriers, the principles are designed to ensure that states honor:

(1) the right of NGOs to entry (that is, the right of individuals to form and join NGOs);
(2) the right to operate to fulfill their legal purposes without state interference;
(3) the right to free expression;
(4) the right to communication with domestic and international partners; and
(5) the right to seek and secure resources.
Finally, these principles underscore
(6) the state’s positive obligation to protect the rights of NGOs.

I. The Right to Entry (Freedom of Association)

International law protects the right of individuals to form, join and participate in civil society organizations.

(1) Right to Form, Join and Participate in a CSO

The rights of civil society are rooted, in part, in the concept of freedom of association as guaranteed by the Universal Declaration of Human Rights19, the International Covenant for Civil and Political Rights (ICCPR)20, the International Covenant on Economic Social and Cultural Rights (ICESCR)21, and a substantial list of other human rights conventions and declarations22. Freedom of association involves the right of individuals to interact and organize among themselves to collectively express, promote, pursue and defend common interests.23

(a) Broad scope of right. Freedom of association broadly protects the formation of a wide range of civil society forms.

(b) Broadly permissible purposes. International law recognizes the right of individuals, through NGOs, to pursue a broad range of objectives. Permissible purposes generally embrace all ‘legal’ or ‘lawful’ purposes and emphatically includes the promotion and protection of human rights and fundamental freedoms.

(c) Potential founders. The architecture of international human rights is built on the premise that all persons, including non-citizens, enjoy certain rights, including freedom of association.

(2) Right to Associate Informally32

It is widely recognized that freedom of association includes the right to associate informally, that is, as a group lacking legal personality. Freedom of association cannot be made dependent on registration or legal person status. That NGOs may be formed as legal entities does not mean that individuals are required to form legal entities in order to exercise their freedom of association. On the contrary, freedom of association guarantees are implicated when a gathering has been formed with the object of pursuing certain aims and has a degree of stability and thus some kind of institutional (though not formal) structure.33 National law can in no way result in banning informal associations on the sole ground of their not having legal personality.34

(3) Right to Seek and Obtain Legal Entity Status

In order to meet its mission goals most effectively, individuals may seek legal personality (or legal entity status) for organizations they form. It is through legal personality that, in many countries, NGOs are able to act not merely as an individual or group of individuals, but with the advantages that legal personality may afford (e.g., ability to enter contracts, to conclude transactions for goods and services, to hire staff, to open a bank account, etc.). It is well accepted under international law that the state should enable NGOs to obtain legal entity status. Article 22 of the ICCPR would have little meaning if individuals were unable to form NGOs and also obtain legal entity status. The U.N. Special Representative on human rights defender noted that “NGOs have a right to register as legal entities and to be entitled to the relevant benefits.”35

In terms of the available procedures for legal recognition, some countries have adopted systems of “declaration” or “notification” whereby an organization is considered a legal entity as soon as it has notified its existence to the relevant administration by providing basic information.38 Where states employ a registration system, it is their responsibility to ensure that the registration process is truly accessible, with clear, speedy, apolitical, and inexpensive procedures in place.39 The designated registration authority should be guided by objective standards and restricted from arbitrary decision-making.

II. The Right to Operate Free from Unwarranted State Interference

Once formed, NGOs have the right to operate in an enabling environment, free from unwarranted state intrusion or interference in their affairs.

(1) Protection against Unwarranted State Interference

International law creates a presumption against any state regulation that would amount to a restriction of recognized rights. The ICCPR lists four permissible grounds for state interference with freedom of association: the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.42 It is the state’s obligation to demonstrate that the interference is justified. Interference can only be justified where it is prescribed by law, in the interests of a legitimate government interest, and “necessary in a democratic society.” This litmus test applies broadly to the use of regulatory restrictions on the fundamental rights of NGOs.43

To emphasize, the Human Rights Committee General Comment 31(6) has stated: “Where such restrictions are made, states must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.”44

Regional human rights commissions have repeatedly made the same point; for example, the African Commission on Human and People’s Rights adopted a resolution on the right to freedom of association, providing that “in regulating the right to association, competent authorities should not enact provisions which will limit the exercise of the freedom.”45

In the context of freedom of association, it follows that the state must refrain from unwarranted interference with the ability to form NGOs and with the ability of NGOs, once formed, to operate. NGOs should only be subject to regulation if they implicate a legitimate government interest. Moreover, it is incumbent upon the state to ensure that applicable laws and regulations are implemented and enforced in a fair, apolitical, objective, transparent and consistent manner.46

State interference with civil society assumes its most egregious form in the forced closure or termination of NGOs. Like any other governmental intrusion, involuntary termination must meet the standards outlined in the ICCPR.47 The relevant government authority should be guided by objective standards and restricted from arbitrary decision-making.

(2) Protection against Unwarranted Intrusion in an Organization’s Internal Governance

Freedom of association embraces the freedom of the founders and/or members to regulate the organization’s internal governance. Indeed, one of the principal elements of freedom of association is the ability to run one’s own affairs.48 As independent, autonomous entities, NGOs should have broad discretion to regulate their internal structure and operating procedures.49

The state has an obligation to respect the private, independent nature of NGOs, and refrain from interfering with their internal operations.50 Put differently, state interference in internal affairs (e.g., attending meetings, appointing board members) may amount to a violation of freedom of association. “… [I]t would be very difficult to justify attempts (whether at the registration stage or subsequently) to prescribe in detail how an association should organize its affairs – whether it ought to have this or that management structure – and there should certainly not be attempts to interfere with the choice of its representatives.”51

(3) Right to Privacy

Civil society representatives, individually or through their organizations, enjoy the right to privacy. Article 17 of the ICCPR enshrines the right to privacy: “(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…. (2) Everyone has the right to the protection of the law against such interference or attacks.”53 The ICCPR Human Rights Committee has recognized that certain rights “may be enjoyed in community with others.”54

Recognizing the potential for government intrusion into the premises of private legal entities, including NGOs, it is natural that the right to privacy is enjoyed in community with others. Indeed, the European Court, in analyzing similar language in the European Convention on Human Rights,55 has specifically held that the right is not limited to individuals, but extends to corporate entities.56

III. The Right to Free Expression

Civil society representatives, individually and through their organizations, enjoy the right to freedom of expression.

As with freedom of association, freedom of expression is enshrined in the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and a lengthy list of other UN and regional instruments.57 Significantly, freedom of association is closely linked with freedom of expression.58 Restricting the right to speak out on issues of public importance directly undermines freedom of association; individuals participate in NGOs in order to speak more loudly and forcefully.59

Freedom of expression protects not only ideas regarded as inoffensive or a matter of indifference but also those that “offend, shock or disturb,” since pluralism is essential for democratic society.60 This point is fundamental in light of governmental restrictions against “political” or “extremist” activities, which can be interpreted to restrict speech that is critical of government. Similarly, states may not restrict rights based on “political or other opinion.”61 Under international law, civil society representatives – individually or collectively – have the right to speak out critically against government on issues relating to human rights and fundamental freedoms.

The U.N. Defenders Declaration, Articles 6-9, addresses in particular detail freedom of expression concerning human rights and fundamental freedoms and extends to “everyone … individually, and in association with others”62 the following rights:

Moreover, states must not restrict freedom of expression directly or “by indirect methods or means.”64 States must refrain from enacting laws and supporting policies restricting the potential activities (and therefore speech) of civil society through vague, imprecise, and broad definitions of concepts, such as “political” or “extremism”.65 The presumption against any state regulation described above applies fully here, in the context of freedom of expression.

As highlighted above in the “Legal Barriers” section, restrictions on the freedom of assembly have a direct impact on the ability of NGO representatives to plan and/or engage in advocacy activities. It is therefore important to stress that such restrictions, as with restrictions on the freedoms of association and expression, must comply with international law. Freedom of assembly is enshrined in the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and a lengthy list of other UN and regional instruments. States carry the burden, therefore of proving that interference with the freedom of assembly is prescribed by law, in pursuit of a legitimate government interest, and necessary in a democratic society.

IV. The Right to Communication and Cooperation

Individuals and NGOs have the right to communicate and seek cooperation with other elements of civil society, the business community, international organizations and governments, both within and outside their home countries.

(1) Right to Communication

Civil society representatives, individually and through their organizations, have the rights to receive and impart information, regardless of frontiers, and through any media.

(2) Right to Cooperate through Networks

Individuals and NGOs have the right to form and participate in networks and coalitions, in order to enhance communication and cooperation, and to pursue legitimate aims. Networks and coalitions can be a crucial vehicle for exchanging information and experience, raising awareness, or engaging in advocacy. Notably, the Internet has opened up new possibilities for networking; the right to receive and impart information of all kinds, regardless of frontiers, and through any media (highlighted above) certainly includes the Internet and web-based technologies. The right to cooperate through such networks, whether as informal bodies or registered entities, is based on the freedoms of association and expression, as detailed above.

V. The Right to Seek and Secure Resources

Within broad parameters, NGOs have the right to seek and secure funding from legal sources.

Closely linked with free contact and communication is the right to seek and secure funding from legal sources. Legal sources should include individuals and businesses, other civil society actors and international organizations, as well as local, national, and foreign governments. As cutting off contact and communication for NGOs is to strike at their existence, so restrictions on resources are a direct threat to their ability to operate. Restrictions on the receipt of funding, and especially on the receipt of foreign funding have grown increasingly common, but as this section will demonstrate, such impediments violate the spirit and the developing trends within international law.

In addition to direct statements on the right to solicit and receive funding, the international legal framework protects the right to property.78 The Universal Declaration of Human Rights, in Article 17, extends the right to own property and protection against arbitrary state deprivation of property to everyone, which could be interpreted to include legal entities and therefore NGOs.

Indeed, the European Court has held that Article 1 of the First Protocol of the European Convention on Human Rights, which protects the right to the “peaceful enjoyment of his possessions,”79 is applicable to both natural and legal persons. While the European Court has found that the right gives no guarantee of a right to acquire possessions, it has stated, significantly, that the right to property includes the right to dispose of one’s property.80 The right to dispose of one’s property would naturally embrace the right to make contributions to NGOs for lawful purposes.

VI. State Duty to Protect

The state has a duty to promote respect for human rights and fundamental freedoms, and the obligation to protect the rights of NGOs. The state’s duty is both negative (i.e., to refrain from interference with human rights and fundamental freedoms), and positive (i.e., to ensure respect for human rights and fundamental freedoms). The state duty to protect also applies to certain inter-governmental organizations, including, of course, the United Nations.

International law has placed on states the obligation to ensure that the rights enshrined in international law (the Universal Declaration of Human Rights, ICCPR, etc.) are protected:

In light of this body of international law, a state is not only bound to refrain from interference with human rights and fundamental freedoms, but also has a positive duty to ensure respect for human rights and fundamental freedoms, including the freedoms of association and expression, among others.82 This duty includes an accompanying obligation to ensure that the legislative framework for civil society is appropriately enabling and that the necessary institutional mechanisms are in place to “ensure to all individuals” the recognized rights. An enabling legal framework will help create an appropriate environment for an NGO throughout its life-cycle.83 Necessary institutional mechanisms could include, among others, a police force to protect people against violations of their rights by state or non-state actors and an independent judiciary able to provide remedies.

Next Steps: Building Solidarity and Promoting Adoption of the Principles

The Defending Civil Society report seeks to help mount a global response to the issue of increasingly restrictive environments for civil society organizations, particularly activities focusing on democracy and human rights. The report discusses ways in which governments have erected barriers, presents and analyzes a number of justifications for those barriers, and outlines the principles that governments are violating. T o advance the adoption of these principles and help protect the political space for civil society, the World Movement for Democracy encourages civil society organizations to take action and build solidarity around the international principles outlined above.

Several actions and strategies have been suggested through the various consultations undertaken in producing this report.

Actions Directed to the International Community at Large:

Actions for Civil Society Organizations:

Actions Directed to Democracy Assistance Organizations:

APPENDIX: Bibliography of Key International Instruments

Notes

1 Fact Sheet No. 29: Human Rights Defenders: Protecting the Right to Defend Human Rights, p. 12.

2 Id. at p. 13.

3 Human Rights First, Memo on Venezuelan International Cooperation Bill.

4 In the 1990s, several prominent Asian leaders articulated a new challenge to the concept of universal human rights based on culture difference. Countries including Singapore, Malaysia and Indonesia began to argue that international human rights law should not necessarily be applied to them because it was Western and did not conform to Asian culture or, as was sometimes argued, Confucianism. This assertion of culture is somewhat similar to articulations of sovereignty. Much has been written about the “Asian values” debate, but we note the ongoing relevance of the issue for several Asian countries. For more information, see Karen Engle, Culture and Human Rights: The Asian Values Debate in Context.

5 Schofield, Matthew, Putin Cracks Down on NGOs, February 21, 2007.

6 Carothers, Thomas, The Backlash Against Democracy Promotion, Foreign Affairs, March/April 2006.

7 Id.

8 While only binding on signatories to the ICCPR, there are sound arguments for broader applicability. As members of the United Nations, every government has accepted obligations to protect the rights enshrined in international law, including the Universal Declaration and the ICCPR, among others. No state has ever sought to join the UN and reserve against Articles 55 and 56 of the Charter, according to which member states pledge themselves to take joint and separate action to promote “universal respect for and observance of human rights and fundamental freedoms without distinction as to race, sex, language, or religion.” Of the 8 States that abstained from the General Assembly vote in 1948, only Saudi Arabia has not renounced its abstention. (Forsythe, David, Human Rights Fifty Years After the Universal Declaration, PS: Political Science and Politics, Vol. 31, No.3 (Sep. 1998).

9 OSCE/ODIHR, Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations, page 4.

10 Id.

11 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Principle 1.1(a). The Johannesburg Principles were developed by a meeting of international experts at a consultation in South Africa in October 1995 and are available at www.article19.org.

12 See Neier, Aryeh, Open Society Institute, “Asian Values vs. Human Rights”, where the conflict between Asian values and fundamental human rights is questioned.

13 See The Backlash against Democracy Assistance, Report prepared by the National Endowment for Democracy, June 8, 2006, p. 12 (The Russian Duma, in November 2005, allocated 500 million rubles ($17.4 million) to “promote civil society” and defend the rights of Russians in Baltic States. Venezuela has reportedly invested considerable sums in supporting Cuba, subsidizing the election campaign of Bolivia’s president Evo Morales, and funding other radical or populist groups in Latin America.)

14 Please note the following discussion regarding the limitations on the use of the national security exception. These same arguments are presumably applicable to the state sovereignty claim.

15 Izmir Savas Karsitlari Dernegi & Others v. Turkey, European Court of Human Rights, Application no. 46257/99, 2 March 2006, at page 36, 49-50 (the case is available only in French).

16 OSCE/ODIHR, Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations, page 5, drawing on criteria from the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985)] adopted in May 1984 by a group of international human rights experts convened by the International Commission of Jurists, the International Association of Penal Law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative source of interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency.

17 OSCE/ODIHR, Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations, page 4.

18 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Principle 1(d): “The burden of demonstrating the validity of the restriction rests with the government.”

19 Adopted by General Assembly Resolution 217a (III) of 10 December 1948.

20 Entry into force 23 March 1976; adopted by the General Assembly in Resolution 2200A (XXI) of 16 December 1966.

21 Entry into force 3 January 1976; adopted by the General Assembly in Resolution 2200A (XXI) of 16 December 1966.

22 These include, for example, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the African Charter on Human and People’s Rights, the American Convention on Human Rights, the Arab Charter on Human Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

23 Report submitted by the Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, page 12.

24 The ICCPR Human Rights Committee (established under Article 28 of the ICCPR), in expressing concern over Belarus, reiterated that “the free functioning of non-governmental organizations is essential for protection of human rights.” ICCPR, A/53/40, vol. I (1998) 26 at para. 155.

25 Entry into force 3 September 1953; adopted 4 November 1950 by the members of the Council of Europe, Rome. Source: Convention for the Protection of Human Rights and Fundamental Freedoms.

26 See Sidiropoulos and others v. Greece, European Court of Human Rights, 10 July 1998, Reports of Judgments and Decisions, 1998-IV, par. 40 (“The Court points out that the right to form an association is an inherent part of the right set forth in Article 11, even if that Article only makes express reference to the right to form trade unions.”) See also Liebscher and Hubl v. Austria, no. 25710/94, European Commission on Human Rights, 12 April 1996 (Article 11 is also applicable to companies, regardless of whether they were founded for economic purposes or not.)

27 Adopted by the General Assembly in Resolution 53/144 of 9 December 1998.

28 Like the 1948 Universal Declaration, the Defenders Declaration, as a General Assembly Resolution, is not legally binding. Significantly, however, it contains a series of principles and rights that are based on human rights standards enshrined in other international instruments and was adopted by consensus—therefore representing a strong commitment by states to its implementation.

29 Both the US State Department and the Council of Europe have recognized the importance of NGOs in all their forms, and not only associative groups. The Guiding Principles on Non-Governmental Organizations (issued by the US State Department on December 14, 2006) state, for example, “Individuals should be permitted to form, join and participate in NGOs of their choosing in the exercise of the rights to freedom of expression, peaceful assembly and association.” The Committee of Minister of the Council of Europe issued a Recommendation relating to the legal status of NGOs in Europe in October 2007, which states in section I (#2) that “NGOs encompass bodies or organisations established both by individuals persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based.”

30 See Inter-American Commission on Human Rights, Advisory Opinion OC-5/85 of November 13, 1985, separate opinion of Judge Rafael Neito-Navia.

31 See Council of Europe, Fundamental Principles, Strasbourg, 13 November 2002, p. 3 (#10). In addition, the European Court of Human Rights has held states in violation of Article 11 (freedom of association) for denying its protection to associations with stated goals of the promotion of regional traditions (Sidiropoulos v. Greece, 10 July 1998, Reports of Judgments and Decisions, 1998-IV), of achieving the acknowledgement of the Macedonian minority in Bulgaria (Stankov and the United Macedonian Organization Ilinden v. Bulgaria, no. 29221/95 and 29225/95, ECHR 2001-IX).

32 By “informally,” we are referring to the lack of legal personality or legal entity status. We recognize that some informal groups may actually adopt highly formalized structures for their activities.

33 These attributes separate gatherings protected by freedom of association from mere gatherings of people wishing to share each other’s company, or transient demonstrations, which are separately protected by the freedom of assembly. See McBride, Jeremy, International Law and Jurisprudence in Support of Civil Society, Enabling Civil Society, Public Interest Law Initiative, © 2003, pp. 25-26. See also Appl. No. 8317/78, McFeely v. United Kingdom, 20 DR 44 (1980), n. 28, at 98, in which the European Commission on Human Rights described freedom of association as being “concerned with the right to form or be affiliated with a group or organization pursuing particular aims.”

34 OSCE/ODIHR Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations, page 6-7; see also U.N. Special Representative Report, page 21 (“… the Special Representative also believes that registration should not be compulsory. NGOs should be allowed to exist and carry out collective activities without having to register if they so wish.”)

35 Report submitted by the U.N. Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, page 21.

36 Sidiropoulos, par. 40.

37 Inter-American Commission on Human Rights, Report of the Situation of Human Rights Defenders in the Americas, Doc: OEA/Ser.L/V/II.124Doc.5rev.1 (March 7, 2006), Recommendation 16.

38 In the Report submitted by the Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, page 21, the Special Representative favors regimes of declaration instead of registration.

39 “Excessively restrictive provisions of Uzbek law with respect to the registration of political parties as public associations, by the Ministry of Justice, are of deep concern.” ICCPR Human Rights Commission, A/56/40 vol. I (2001) 59 at paras. 79(23-24).

40 Inter-American Commission on Human Rights, Report of the Situation of Human Rights Defenders in the Americas, Doc: OEA/Ser.L/V/II.124Doc.5rev.1 (March 7, 2006), Recommendation 17.

41 Council of Europe Recommendation on legal status of NGOs, section IV (#28-29).

42 Article 22(2), ICCPR: “No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.”

43 See also U.S. State Department, Guiding Principles, no. 2 (“Any restrictions which may be placed on the exercise by members of NGOs of the rights to freedom of expression, peaceful assembly and association must be consistent with international legal obligations.”). In addition, the Principles note (no. 5) that “Criminal and civil penalties brought by governments against NGOs, like those brought against all individuals and organizations, should be based on tenets of due process and equality before the law.”

44 ICCPR Human Rights Committee, General Comment No. 31(6), Nature of the General Legal Obligation Imposed on State Parties to the Covenant, 26 May 2004.

45 See Center for Human Rights, University of Pretoria, African Human Rights System: The African Charter.

46 See U.S. State Department, Guiding Principles, no. 4 (“Acknowledging governments’ authority to regulate entities within their territory to promote welfare, such laws and administrative measures should protect – not impede – the peaceful operation of NGOs and be enforced in an apolitical, fair, transparent and consistent manner.”)

47 See United Communist Party of Turkey and others v. Turkey, Judgment of 30 January 1998, Reports 1998-I, par. 33, in which the European Court observed that the right of freedom of association would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention. See also Council of Europe Recommendation on legal status of NGOs, section IV (#44) (“The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members - or in the case of non-membership NGOs, its governing body – or in the event of bankruptcy, prolonged inactivity or serious misconduct.”)

48 See McBride, Jeremy, International Law and Jurisprudence in Support of Civil Society, Enabling Civil Society, Public Interest Law Initiative, © 2003, p. 46 (“… it would be very difficult to justify attempts (whether at the registration stage or subsequently) to prescribe in detail how an association should organize its affairs – whether it ought to have this or that management structure – and there should certainly not be attempts to interfere with the choice of its representatives.”)

49 Indeed, this principle applies to any organization predominantly governed by private law.

50 The legal framework in some countries may set certain, appropriate minimum governance standards, relating to issues such as the non-distribution constraint, the highest governing body, conflicts of interest, etc.

51 See McBride, p. 46.

52 See Center for Human Rights, University of Pretoria, African Human Rights System: The African Charter.

53 The Universal Declaration of Human Rights uses nearly identical language in Article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

54 ICCPR Human Rights Committee, General Comment No. 31(9), Nature of the General Legal Obligation Imposed on State Parties to the Covenant, 26 May 2004.

55 “Everyone has the right to respect for his private and family life, his home and his correspondence.” European Convention on Human Rights, Article 8.

56 See Niemietz v. Germany, 13710/88, ECHR 80 (16 December 1992), in which the Court found no reason why the notion of “private life” should exclude activities of a professional or business nature.

57 See footnote 2 for an illustrative list of relevant international documents.

58 Indeed, the European Court of Human Rights has held that freedom of association derives from freedom of speech (see Ezelin v. France, Judgment of 26 April 1991, Series A, No. 202; (1992) 14 EHRR 362.)

59 See Freedom and Democracy Party (OZDEP) v. Turkey, (App. 23885/94), Judgment of 8 December 1999.

60 See Socialist Party and Others v. Turkey, (App 21237/93), Judgment of 25 May 1998; (1999) 27 EHRR 51, p. 24.

61 Article 1, ICCPR: “Each State Party to the present Covenant undertakes to protect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” See also Article 2, Universal Declaration of Human Rights.

62 U.N. Defenders Declaration, Articles 6-9.

63 A corollary of this principle is that NGOs should have access to both domestic and foreign-based media. See U.S. State Department, Guiding Principles, no. 8 (“Governments should not interfere with NGOs’ access to domestic and foreign-based media.”)

64 See, e.g., Article 13, American Convention on Human Rights.

65 The ICCPR Human Rights Committee reviewed the Russian Law “On Combating Extremist Activities” and expressed concern that “the definition of ‘extremist activity’ … is too vague to protect individuals and associations against arbitrariness in its application.” ICCPR, A/59/40 vol. I (2003) 20 at para. 64 (20).

66 The Universal Declaration of Human Rights uses nearly identical language in Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

67 Article 13 of the American Convention goes on to provide that the exercise of this right “shall not be subject to prior censorship” (Art. 13(2)) and “may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” (Art. 13(3)).

68 The freedom of movement is an important human rights concept about which much has been written. We note its relevance to the right to communication and cooperation.

69 ICCPR, Article 22.2.

70 UN Defenders Declaration, Article 3: “Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the present Declaration for the promotion, protection and effective realization of those rights should be conducted.”

71 See Office of the United Nations High Commissioner for Human Rights

72 Fact Sheet No. 29: Human Rights Defenders: Protecting the Right to Defend Human Rights, p. 13.

73 Report submitted by the Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, page 20.

74 Id., page 22.

75 U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1.

76 Id., Article 6(f).

77 Inter-American Commission on Human Rights, Report of the Situation of Human Rights Defenders in the Americas, Doc: OEA/Ser.L/V/II.124Doc.5rev.1 (March 7, 2006), Recommendation 19.

78 Article 17 of the Universal Declaration of Human Rights states: “(1) Everyone has the right to own property alone as well as in association with others; (2) No one shall be arbitrarily deprived of his property.”

79 Article 1 of the First Protocol of the European Convention reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

80 Clare Ovey and Robin White, The European Convention on Human Rights, 3rd edition, Oxford University Press, © 2002.

81 Adopted by the U.N. World Conference on Human Rights, June 25, 1993.

82 The State ‘Duty to Protect’ cannot be trumped by claims of sovereignty. “The State that claims sovereignty deserves respect only as long as it protects the basic rights of its subjects. It is from their rights that it derives its own. When it violates them, what Walzer called ‘the presumption of fit’ between the Government and the governed vanishes, and the State’s claim to full sovereignty falls with it.” (See S. Hoffmann, The politics and ethics of military intervention, Survival, 37:4, 1995-96, p.35. See also V. Popovski, Sovereignty as Duty to Protect Human Rights).

83 For more information on the elements of an enabling legal environment, please make reference to ICNL’s Checklist for NPO Laws (www.icnl.org) or to OSI’s Guidelines for Law Affecting Civic Organizations.

 

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