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The International Journal
of Not-for-Profit Law

Volume 14, Issue 3, September 2012

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

Table of Contents

Letter from the Editor

Civil Society - Principles and Protections

Defending Civil Society
International Center for Not-for-Profit Law
World Movement for Democracy Secretariat at the National Endowment for Democracy

Protection of the U.S. Nongovernmental Organizations in Egypt Under the Egypt-U.S. Bilateral Investment Treaty
Nick Gallus

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Editorial Board

Defending Civil Society

International Center for Not-for-Profit Law (ICNL)
World Movement for Democracy Secretariat at the National Endowment for Democracy (NED)1

Executive Summary

In his message endorsing this Defending Civil Society Report, Archbishop Desmond Tutu said, “[t]o me, civil society is at the core of human nature. We human beings want to get together with others … and act collectively to make our lives better. And, when we face evils and injustice, we get together and fight for justice and peace. Civil society is the expression of those collective actions. Through strong civil societies, enjoying the freedoms of association and assembly, we encourage and empower one another to shape our societies and address issues of common concern.”

Today, civil society is facing serious threats across the globe. Civil society activists continue to face traditional forms of repression, such as imprisonment, harassment, disappearances, and execution. However, many governments have increasingly become more subtle in their efforts to limit the space in which civil society organizations (CSOs), especially democracy and human rights groups, operate.

In many states today – principally, but not exclusively authoritarian or hybrid regimes – traditional repression techniques are often complemented or preempted by more sophisticated measures, including legal or quasi-legal obstacles, such as barriers to the formation of organizations, barriers to operational activities, barriers to advocacy and public policy engagement, barriers to communication and cooperation with others, barriers to assembly, and barriers to resources.

Governments have tried to justify and legitimize such obstacles as necessary to enhance accountability and transparency of CSOs; to harmonize or coordinate CSO 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 treaties and conventions to which the states concerned are signatories.

Over the last several years, significant steps have been made to confront the worrying trend of increasingly restrictive environments for civil society around the world, and to advocate for enabling environments. Under auspices of the Community of Democracies, a group of concerned governments established a Working Group on “Enabling and Protecting Civil Society” to monitor and respond to developments concerning civil society legislation around the world. Also, 14 governments have jointly pledged financial support for the “Lifeline: Embattled NGO Assistance Fund” to help civil society activists confronting crackdowns. In September 2010, the United Nations Human Rights Council (UNHRC) passed a historic resolution on the “Rights to Freedom of Peaceful Assembly and of Association,” establishing a Special Rapporteur on the issue for the first time. The Organization of American States (OAS) also adopted a resolution in June 2011 on “Promotion of the Rights to Freedom of Assembly and of Association in the Americas.”

To elevate the international response, and to help civil society achieve its aspirations, which the Archbishop describes so well above, the Steering Committee of the World Movement for Democracy launched the Defending Civil Society project in 2007, undertaken in partnership with the International Center for Not-for-Profit Law (ICNL).

Like the original edition of the Defending Civil Society Report published in 2008, this second edition provides illustrative examples of the legal barriers used to constrain civic space. In addition to including more recent illustrative examples, this Report also expands discussion of major challenges, such as restrictions on the use of new technologies, measures against public movements and peaceful assemblies, and the unintended consequences of efforts to enhance the effectiveness of foreign aid.

The Report articulates the well-defined international principles protecting civil society and underscoring proper government-civil society relations, which are already embedded in international law. These principles include the right of CSOs to entry (that is, the right of individuals to form and join CSOs); the right to operate to fulfill their legal purposes without state interference; the right to free expression; the right to communication with domestic and international partners; the right to freedom of peaceful assembly; the right to seek and secure resources, including the cross-border transfer of funds; and the state’s positive obligation to protect CSO rights.
This Report calls on:

International Principles Protecting Civil Society

To protect civil society organizations (CSOs) from the application of the legal barriers described in this Report, this section seeks to articulate principles that govern and protect CSOs from repressive intrusions by government.

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 the right of individuals to form trade unions, associations, and other types of CSOs.

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

(c) Broadly eligible founders. The architecture of international human rights is built on the premise that all persons, including non-citizens, enjoy certain rights, including the 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 a CSO 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, CSOs have the right to operate free from unwarranted state intrusion or interference in their affairs. International law creates a presumption against any regulation or restriction that would amount to interference in recognized rights.

(a) Interference can only be justified where it is prescribed by law and 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.

(b) Laws and regulations governing CSOs should be implemented and enforced in a fair, apolitical, objective, transparent, and consistent manner.

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

(2) CSOs 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

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

(2) 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 and the free flow of ideas are essential in a democratic society. CSOs are therefore protected in their ability to speak critically about government law or policy, and to speak favorably about human rights and fundamental freedoms.

(3) Interference with freedom of expression can only be justified where it is provided by law and necessary for respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.

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 representatives of civil society, the business community, and international organizations and governments, both within and outside their home countries.

(2) The right to receive and impart information, regardless of frontiers, through any media, embraces communication via the Internet and information and communication technologies (ICTs).

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

Principle 5: The Right to Freedom of Peaceful Assembly

(1) Civil society representatives, individually and through their organizations, enjoy the right to freedom of peaceful assembly.

(2) The law should affirm a presumption in favor of holding assemblies. Those seeking to assemble should not be required to obtain permission to do so.

(a) Where advance notification is required, notification rules should not be so onerous as to amount to a requirement of permission or to result in arbitrary denial.

(b) The law should allow for spontaneous assembly as an exception to the notification requirement, where the giving of notice is impracticable.

(3) The law should allow for simultaneous assemblies or counter-demonstrations, while recognizing the governmental responsibility to protect peaceful assemblies and participants in them.

(4) Interference with freedom of assembly can only be justified where it is in conformity with the law and 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.

Principle 6: The Right to Seek and Secure Resources

Within broad parameters, CSOs have the right to seek and secure funding from legal sources, including individuals, businesses, civil society, international organizations, and inter-governmental organizations, as well as local, national, and foreign governments.

Principle 7: 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 fundamental freedoms and civil society is appropriately enabling, and that the necessary institutional mechanisms are in place to ensure the recognized rights of all individuals.

Introduction

Recent years have witnessed proliferating efforts by various governments to narrow 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), launched the Defending Civil Society project in 2007 to empower civil society actors in their efforts to defend and enhance civil society space.

As the first step in the project, the World Movement and ICNL published the first edition of Defending Civil Society in 2008 to identify and promulgate a set of international principles, already rooted in international law, which underscore proper government-civil society relations. Adherence to these principles—which include the rights of individuals to associate in civil society organizations (CSOs),2 and the right of CSOs to advocate and to receive assistance from within and beyond national borders—is indispensable for advancing, consolidating, and strengthening democracy. However, these are precisely the principles that an increasing number of governments, including signatories to the relevant international treaties and conventions in which the principles are enshrined, are violating in the ongoing backlash against the advancement of democracy.

With the publication of the Report, the World Movement for Democracy and ICNL began 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 advancing democracy—also seeks to strengthen international solidarity among democracy-assistance organizations, human rights groups, and related CSOs at a precarious moment for the work they undertake.

To help advance the promotion and adoption of these internationally recognized principles to protect civil society, the World Movement assembled an Eminent Persons Group that included former Canadian Prime Minister and current chair of the World Movement Steering Committee the Rt. Hon. Kim Campbell, former Brazilian President Fernando Henrique Cardoso, His Holiness the Dalai Lama, former Czech President the late Vaclav Havel, former Malaysian Deputy Prime Minister Anwar Ibrahim, Egyptian scholar and activist Saad Eddin Ibrahim, and Archbishop Desmond Tutu. In 2009, this Eminent Persons Group endorsed the first edition of this Report and its findings.

In drafting the first edition of the Report, the World Movement Secretariat organized five regional consultations during May-August 2007. These consultations—held in Casablanca, Morocco; Lima, Peru; Kyiv, 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.

Preparing for this updated edition of the Report, the World Movement and ICNL once again conducted a series of consultations at various international fora, including ICNL’s Global Forum on Civil Society Law in August 2011. Feedback on the draft second edition was also collected from World Movement participants. Input directly from civil society activists who face challenges on the ground have helped verify the impact of barriers highlighted in this Report.

Rationale for the Defending Civil Society Project. Over the last several years, significant steps have been made to confront the worrying trend of increasingly restrictive environments for civil society around the world, and to advocate for enabling environments. In 2009, under Canadian leadership, the Community of Democracies launched a “Working Group on Enabling and Protecting Civil Society” to monitor and respond to developments concerning civil society legislation around the world. In September 2010, the United Nations Human Rights Council (UNHRC) passed a historic resolution on the “Rights to Freedom of Peaceful Assembly and of Association,” establishing a Special Rapporteur on the issue for the first time. Following this UNHRC resolution, the Organization of American States (OAS) adopted a resolution in June 2011 on “Promotion of the Rights to Freedom of Assembly and of Association in the Americas.” Furthermore, in 2011, 14 governments—including Australia, Benin, Canada, Chile, the Czech Republic, Denmark, Estonia, Lithuania, the Netherlands, Norway, Poland, Sweden, the United Kingdom, and the United States—pledged financial support for the “Lifeline: Embattled NGO Assistance Fund” to help civil society activists confronting crackdowns by providing emergency and advocacy assistance to enable them to continue their work in difficult circumstances.

Despite these international efforts, civil society is still losing space in many countries. Activists continue to face traditional forms of repression, such as imprisonment, harassment, disappearances, and execution. In September 2009, Yevgeniy Zhovtis, Kazakhstani human rights activist and member of the World Movement Steering Committee, received a four-year imprisonment sentence as a result of a politically manipulated trial related to an auto accident.3 In December 2009, Chinese dissident and principal author of “Charter ’08” and Nobel Laureate, Liu Xiaobo, was convicted of “inciting subversion of state power” and sentenced to 11 years in prison. In June 2010, in Kinshasa, Democratic Republic of the Congo, Floribert Chebeya Bahizire, a pioneer of human rights movements across Africa, was murdered, along with his driver Fidele Bazana, after being called to meet the Inspector General of Police. Baharaini human rights activist, Abdulhadi Al Khawaja, was arrested in December 2011 and sentenced to life imprisonment for participating in “OccupyBudaiya Street,” an initiative organized by protesters in Bahrain through Facebook and Twitter. Many civil society activists around the world fall victim to similar oppression every day.

As the first edition of the Report pointed out, traditional threats against civil society have increasingly been complemented by more sophisticated measures, including legal or quasi-legal obstacles to democracy and human rights work. 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. CSOs that advocate for human rights and democracy, including many that work in conflict zones, are particularly targeted. Regimes justify such actions by accusing independent CSOs of treason, espionage, subversion, foreign interference, or terrorism. These are but rationalizations, however; the real motivation is almost always political. Restrictive laws or practices are often introduced as a country prepares for presidential and/or parliamentary elections. These actions are not about defending citizens from harm, but about protecting those in power from scrutiny and accountability.

Since the publication of the first edition of the Report in 2008, three new major challenges have become evident. First, this updated Report addresses the challenges that civil society groups have increasingly faced in using new technologies, such as the Internet and mobile phones, to carry out their advocacy and mobilization efforts. Recent events in the Middle East and North Africa highlight the degree to which such new technologies can serve as powerful tools for civil society activists. Many authoritarian governments have responded by introducing newly restrictive laws and regulations and engaging in various activities to block access to the Internet and limit mobile phone communications without court approval.

Second, this edition extensively expands the discussion of freedom of assembly. The events of the Arab Spring vividly remind us of the power of protest. Many civil society groups use public meetings and demonstrations to express their political opinions, raise public awareness of salient issues, mobilize support for their advocacy efforts, and demand that governments respond. Similar to the trend that emerged after the “Color Revolutions” in some former Soviet countries, the Arab Spring that began in late 2010 triggered efforts in a variety of countries in different regions to take measures against popular uprisings and public movements.

Third, the Report now notes one unintended consequence of efforts to enhance the effectiveness of foreign aid. Some recipient governments have introduced laws or policies requiring civil society organizations to “harmonize” or “align” their activities with governmental priorities. In the process, governments have subtly converted “host country” ownership into “host government” ownership. The Fourth High Level Forum on Aid Effectiveness (HLF-4) Busan Partnership Document and the Istanbul Principles recognize that democratic ownership in national development plans is a crucial component in promoting development effectiveness. Inclusive partnerships among international organizations, governments, and civil society ensure that all stakeholders have sovereignty over decisions on how aid is used. In paragraph 22 of the Busan Partnership Document, states pledged to “implement fully [their] respective commitments to enable CSOs to exercise their roles as independent development actors, with a particular focus on an enabling environment, consistent with agreed international rights, that maximizes the contributions of CSOs to development.”4

Many of the examples in this Report, provided in the context of the recent backlash, reflect measures that somegovernments have imposed for decades. Ongoing crackdowns on activists in Sudan, Syria, Belarus, Tajikistan, Vietnam, and Cuba, for instance, show how severely restrictive those societies are and how 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 for potential political reforms.

As witnessed immediately after the “Color Revolutions” in former Soviet countries, so the events of the Arab Spring in 2010-2011 have posed both challenges and opportunities. The Arab Spring, which demonstrated the power of protest and the role of civil society activists, unfortunately triggered increasingly aggressive responses from governments in the region and in many other parts of the world, preventing civil society groups and individual citizens from exercising their rights to freedom of assembly and association. At the same time, the upheavals in those Arab countries, especially with the use of new technologies, have provided opportunities to reform the previously restrictive legal frameworks for CSOs and to facilitate open discussions about creating enabling environments for civil society groups in those countries.

A proper legal framework that respects fundamental freedoms can help create an enabling environment for civil society through which citizens actively participate in political and social development. As the Eminent Persons Group wrote in its letter endorsing the first edition of Defending Civil Society, “[d]emocracy will not flourish unless citizens can freely engage in politics and social change, and for many years civil society groups have been providing citizens with the means to do so peacefully.” To deepen a democratic culture and build a healthy democratic society, citizens must actively participate in policy making and social and economic development in their respective communities and countries. This Report seeks to articulate and promote the fundamental international principles for such a legal framework and enabling environment.

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 in this Report 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 CSOs 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 second section of the Report briefly surveys government 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’ true 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 describes in greater depth the international principles that protect civil society, and articulates the rights of civil society organizations that are being systematically violated. 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, and to promote 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.5 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 the U.S. State Department formulated 10 principles for informing government treatment of CSOs, including protection of their right to function in an environment free from harassment, intimidation, and discrimination; protection of their right to receive financial support from domestic, foreign, and international entities; and the apolitical and equitable application of laws regulating them.6

The final section of the Report considers how to use the Report to advance the principles it articulates, and 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.

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 six 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 CSOs extends beyond laws specifically designed to govern civil society organizations. Such measures include, for example, laws governing assembly and peaceful protests; anti-terrorism or anti-extremism legislation; laws on state security or state secrets; access to information laws; and measures affecting use of the Internet and freedom of expression.

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 in 2007 convened CSOs 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). More recently, in 2011, consultations on this updated edition were held at ICNL’s Global Forum on Civil Society Law. Further feedback on the draft updated version was provided by scores of civil society activists around the world. Few citations are provided in order to protect the identity of sources, especially those working in politically hostile environments.

This Report considers the law not only as written but  also as applied in practice. 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 completely limit the right to associate, 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 CSOs to undergo formal registration, incorporation, or other similar procedures (hereinafter “registration”), in order to attain legal entity status. Some states make the process so difficult that it effectively prevents CSOs 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 a 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 CSOs have successfully negotiated the barriers to entry described above, the law may subject them to a wide range of constraints on 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) Mandatory compliance with national development plans. In other cases, laws and policies require CSOs to align or harmonize their activities with governmental priorities as defined in national development plans. Such requirements, commonly justified in the interest of aid effectiveness, limit the ability of CSOs to pursue activities not pre-defined by governments in development plans and may limit the ability of CSOs to play a critical watchdog role vis-à-vis the government. 

(3) Invasive supervisory oversight. The law can sometimes invite arbitrary interference in CSO activities by empowering governmental bodies to exercise stringent supervisory oversight of CSOs. Invasive oversight may take the form of burdensome reporting requirements, interference in internal management, and advance approval requirements.

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

(5) Criminal sanctions against individuals. The use of criminal penalties against individuals connected with CSOs can prove a powerful deterrent against CSO activities and freedom of association.

(6) 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.

(7) Organizational Termination and Dissolution. While governments should only resort to the suspension and termination of CSOs as a measure of last resort, such measures are often based on vague or arbitrary legal grounds.

(8) 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.

III. Barriers to Speech and Advocacy

For many CSOs, 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 sometimes used to restrict the ability of CSOs 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 speech and 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 expression of criticism against the ruling regime.

IV. Barriers to Contact and Communication

Closely related to free expression is the ability of CSOs 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 may even be 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 information and communication technology. Barriers affecting the use of the Internet and web-based communication are becoming increasingly common. Restrictions on the right to communicate via the Internet assume many forms, including technical measures such as blocking and filtering; criminal laws applied to Internet expression; and laws that impose liability on intermediaries for the failure to filter or block content deemed illegal, among others.12 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 Assembly

The events of the Arab Spring have vividly reminded us of the power of protest. At the same time, they also remind us of how the law can be used to prevent and impede freedom of assembly. Legal barriers to free assembly assume many forms.

(1) Bans on public gatherings. The most extreme barrier to freedom of assembly is the prohibition of public gatherings.

(2) Advance notification requirement. Advance notification of public gatherings is a common regulatory requirement, and has been upheld by the UN Human Rights Committee and regional human rights mechanisms. But an advance notification requirement may be problematic where it amounts to a request for permission and results in arbitrary or subjective denial.

(3) Content-based restrictions. Laws may specifically target (and restrict) public gatherings and meetings with “political” or other substantive content.

(4) Restrictions on categories of persons. Laws may specifically restrict or prohibit certain individuals or categories of individuals from participating in public gatherings and demonstrations.

(5) Responsibilities of organizers. While it is not uncommon for laws to impose certain obligations on the organizers of public gatherings and demonstrations, the responsibilities should not be so burdensome as to deter the gathering itself.

VI. 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. In other countries, the law allows the receipt of foreign funding, but only with advance governmental approval.

(3) Burdensome procedural requirements. In other countries, the receipt of foreign funding is impeded by burdensome procedural requirements.

(4) Routing funding through the government.

(5) Restricted purposes and activities. Other countries erect barriers to funding certain spheres of activity.

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 section 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.”

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 that expand government authority to monitor private phone calls and emails without warrants if there is “probable 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.18

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.”19

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 ICCPR in Article 2226:

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 pursuance 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.27 The degree of precision required is clear criteria to govern the exercise of discretionary authority.28 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.”29

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) of the ICCPR.

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 or require their alignment with government priorities and plans are suspect. While “harmonization,” “coordination,” and “alignment” may sound innocuous, they may also conceal 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.

A generalized assertion of “national sovereignty” or “state sovereignty” is questionable as a basis for interference with fundamental freedoms, including freedom of association.30 Claims of state sovereignty are belied by the very states using the justification for restrictions against NGOs when the same governments use their funding to influence domestic political affairs in other countries.31 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.32

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.33 Claims of national security shall be construed restrictively “to justify 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.”34 

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 freedoms of association and of assembly, 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 that is no more than absolutely necessary; there must be a pressing social need for the interference.35

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. Even if prescribed by law and linked to a legitimate government interest, such invasive government actions could not 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 the following:

To consider the legality of each legal barrier cited here is beyond the scope of this Report. On the contrary, it is the state’s obligation to demonstrate that the interference passes scrutiny under the foregoing analytical framework.36 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 earlier of this Report, this section seeks to articulate principles that govern and protect civil society from repressive intrusions of governments. Tracking the six clusters of legal barriers, the principles are designed to ensure that states honor the following:

(1) the right of CSOs to entry (that is, the right of individuals to form and join CSOs);
(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;
(5) the right to freedom of peaceful assembly; and
(6) the right to seek and secure resources.

Finally, these principles underscore

(7) the state’s positive obligation to protect the rights of CSOs.

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 Rights,37 the International Covenant for Civil and Political Rights (ICCPR),38 the International Covenant on Economic Social and Cultural Rights (ICESCR),39 and a substantial list of other human rights conventions and declarations.40 Freedom of association involves the right of individuals to interact and organize among themselves to collectively express, promote, pursue and defend common interests.41

(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 CSOs, to pursue a broad range of objectives. Permissible purposes generally embrace all “legal” or “lawful” purposes and emphatically include the promotion and protection of human rights and fundamental freedoms.

(c) Broadly eligible 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 Without Legal Entity Status55

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 CSOs 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. “[R]egistration should not be compulsory. CSOs should be allowed to exist and carry out activities without having to register if they so wish.”56 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.57 National law can in no way result in banning informal associations on the sole ground of their not having legal personality.58

(3) Right to Seek and Obtain Legal Entity Status

To meet their 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, CSOs are able to act not merely as an individual or group of individuals, but with the advantages that legal personality may afford (e.g., abilities to enter contracts, to conclude transactions for goods and services, to hire staff, to open bank accounts, etc.). It is well accepted under international law that the state should enable CSOs to obtain legal entity status.

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 the relevant administration of its existence by providing basic information.62 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.63 The designated registration authority should be guided by objective standards and restricted from arbitrary decision making.

Moreover, the UN Special Representative on human rights defenders has noted that “Foreign NGOs … must be allowed to register and function without discrimination, subject only to those requirements strictly necessary to establish bona fide objectives.”67

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.

“The right to freedom of association has an individual and a collective dimension. Under the provisions of Article 22 of the International Covenant on Civil and Political Rights individuals have the right to found an association with like-minded persons or to join an already existing one. At the same time, it also covers the collective right of an existing association to perform activities in pursuit of the common interests of its members. State parties cannot therefore prohibit or otherwise interfere with the founding of associations or their activities.”68

(1) Protection against Unwarranted State Interference

International law creates a presumption against any state regulation or restriction that would amount to an interference with 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.69 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.”70

The “prescribed by law” standard means both that the law be accessible (published) and that its provisions be formulated with sufficient precision to enable the persons concerned to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct.71 According to the UN Special Rapporteur on the situation of human rights defenders, the “prescribed by law” standard additionally “makes it clear that restrictions on the right to freedom of association are only valid if they had been introduced by law (through an act of Parliament or an equivalent unwritten norm of common law), and are not permissible if introduced through Government decrees or other similar administrative orders.”72

The four legitimate government aims articulated in Article 22(2) – “national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” – are an exhaustive, not illustrative list. Moreover, these state interests are to be strictly construed.73

The “necessary in a democratic society” standard is applied as a test of proportionality. To illustrate, 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.”74

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.”75
In the context of freedom of association, it follows that the state must refrain from unwarranted interference with the ability to form CSOs and with the ability of CSOs, once formed, to operate. CSOs 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.76
State interference with civil society includes the forced closure or termination of CSOs. Like any other governmental intrusion, involuntary termination must meet the standards outlined in the ICCPR.77 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.78 As independent, autonomous entities, NGOs should have broad discretion to regulate their internal structures and operating procedures.79

The state has an obligation to respect the private, independent nature of NGOs, and refrain from interfering with their internal operations.80 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.”81

(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.”83 The ICCPR Human Rights Committee has recognized that certain rights “may be enjoyed in community with others.”84

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,85 has specifically held that the right is not limited to individuals, but extends to corporate entities.86

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. Significantly, freedom of association is closely linked with freedom of expression.87 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.88

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.89 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.”90 The UN Human Rights Council has expressly stated that restrictions should never be applied to:

“[d]iscussion of government policies and political debate; reporting on human rights, government activities and corruption in government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.”91

Thus, 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 UN 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”92 the following rights:

States must not restrict freedom of expression directly or “by indirect methods or means.”94 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.”95 There is a presumption against any state regulation that interferes with the freedom of expression. As with freedom of association, the analytic test has three components, though those components are distinct and specific to freedom of expression. Any limitation

“Moreover, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.”96

 

IV. The Right to Communication and Cooperation

Individuals and CSOs 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 Communicate via Information and Communication Technologies

The right to receive and impart information, regardless of frontiers, through any media embraces communication via the Internet and information and communication technologies.100 The language of the Universal Declaration and the ICCPR was drafted with foresight to include future technological developments through which individuals can exercise the freedom of expression. “Hence, the framework of international human rights law remains … equally applicable to new communication technologies such as the Internet.”101 The UN Human Rights Council recently confirmed this view in calling upon States to refrain from imposing restrictions not consistent with Article 19(3) of the ICCPR on “[a]ccess to or use of information and communication technologies, including radio, television and the Internet.”102 In his 2011 report to the UN Human Rights Council, the UN Special Rapporteur emphasized that “there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law” and that “the full guarantee of the right to freedom of expression must be the norm, and any limitation considered as an exception, and that this principle should never be reversed.”103

(3) Right to Cooperate Through Networks

Individuals and CSOs 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 crucial vehicles for exchanging information and experience, raising awareness, or engaging in advocacy. Notably, the Internet has opened up new possibilities for networking. The speed and global reach of the Internet enable individuals and CSOs to disseminate information in “real time” and to mobilize people quickly and effectively. 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 Freedom of Peaceful Assembly

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

Freedom of assembly is enshrined in the Universal Declaration of Human Rights (Article 20), the International Covenant on Civil and Political Rights (Article 21), and other UN and regional instruments.

Like the freedom of expression, the freedom of assembly is inextricably intertwined with the freedom of association. This is reflected through provisions within international legal instruments that embrace both the freedoms of association and assembly. For example, the Universal Declaration of Human Rights states, in Article 20, that “Everyone has the right to freedom of peaceful assembly and association.” Similarly, the European Convention protects both rights in Article 11: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others.…” Moreover, the mutually reinforcing nature of all three fundamental freedoms has been emphasized in case law. According to the European Court, the protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association.104 Indeed, each of these three fundamental rights could be considered an “enabler” of the other rights.

As with the freedom of association, the freedom of assembly is applicable to all persons. The language of the ICCPR, in Article 2(1), affirms the state’s obligation to ensure rights to “all individuals within its territory and subject to its jurisdiction.” This includes minorities, women, children, human rights defenders, and members of vulnerable populations. This includes both nationals and non-nationals, whether stateless persons, refugees, foreign nationals, asylum seekers, migrants, or tourists.105 This also includes both natural persons and legal entities. Regarding the latter, the UN Special Rapporteur on human rights defenders has emphasized that “assemblies can be organized by an NGO, a trade union, an ad hoc group, a social movement, or by individual defenders seeking to raise an issue for debate or protesting against human rights violations of different kinds.”106

Just as the freedom of expression protects ideas that offend, shock, and disturb, so too does the freedom of assembly protect a demonstration that may annoy or give offense to persons opposed to the ideas or claims it is seeking to promote.107 A demonstration in a public place “inevitably causes a certain level of disruption to ordinary life, including disruption of traffic.” Public authorities therefore have a duty to show a certain level of tolerance toward peaceful gatherings.

Political ideas are especially deserving of protection. “There is little scope … for restrictions on political speech or on debate on questions of public interest.”108 “In a democratic society based on the rule of law, political ideas which challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means.”109

(1) Presumption in Favor of Holding Assemblies

The law should affirm a presumption in favor of holding assemblies. Those seeking to assemble should not be required to obtain permission to do so. Indeed, many forms of assembly require no form of governmental regulation and the law need not impose any obligation of advance notification for an assembly.110

International law recognizes that, in certain circumstances, requirements of advance notification may be justified by a state’s duty to protect public order, public safety, and the rights and freedoms of others. The ICCPR Human Rights Committee has upheld the requirement of advance notification, as have regional mechanisms.111 But notification rules should not be so onerous as to amount to a requirement of permission or to result in arbitrary denial.

Where notification requirements are combined with arbitrary denial, or with the failure of the regulatory authorities to respond promptly, then the result is an excessive restriction on freedom of assembly. Where there is a failure to respond promptly, then the law should presume that the organizers of the assembly may proceed according to terms of notice. Where there is denial, the law should provide for the possibility of an expedited appeal.112

Moreover, the law should allow for spontaneous assembly. In other words, the law should provide for an exception to the notification requirement, where the giving of notice is impracticable. The ability to respond peacefully and immediately to a given incident or occurrence is essential to freedom of assembly.113

(2) Responsibility for Simultaneous Assemblies

The freedom of assembly may lead to simultaneous assemblies or counter-demonstrations. The law and the state have a special responsibility in such cases. First, the law should allow for counter-demonstrations, so that persons can express disagreement with views expressed at another public assembly. That said, “the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.”114 Second, the state has a positive duty to protect peaceful assemblies and participants of peaceful assemblies.115 This responsibility is particularly important where simultaneous opposition assemblies occur.

(3) Protection Against Unwarranted State Interference with Freedom of Assembly

As with freedom of association, international law creates a presumption against any state regulation that would amount to a restriction of recognized rights. Interference with freedom of assembly can only be justified where it is “in conformity with law,”116 intended to further legitimate government objectives, and necessary in a democratic society. The legitimate government interests include only the following: “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.”117 Administrative measures restricting or preventing freedom of assembly are often applied with little consideration given for to these government interests.118

The proportionality test triggered by the “necessary in a democratic society” prong of the analytical test envisions that any interference be the least intrusive means available. It follows that a blanket application of a legal restriction, such as a total ban of all demonstrations, would likely fail the proportionality test.

There are a range of other regulatory issues beyond the scope of this Report. Among others, critical questions relate to the responsibilities of the organizer of a demonstration and the responsibilities of law enforcement. These questions, and others, are addressed in detail in other sources.119

VI. The Right to Seek and Secure Resources

Within broad parameters, CSOs have 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. Restrictions on resources are a direct threat to the ability of CSOs 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 often violate international law.

In addition to direct statements on the right to solicit and receive funding, the international legal framework protects the right to property.131 The Universal Declaration, 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 CSOs.

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,”132 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.133 The right to dispose of one’s property would naturally embrace the right to make contributions to CSOs for lawful purposes.

VII. 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 CSOs. 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, ICCPR, etc.) are protected:

In light of this body of international law, a state not only is 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.135 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.136 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.

Ways Forward: Protecting and Enhancing Civil Society Space

Since the launch of the Defending Civil Society project in 2007, civil society groups and the international community have taken significant steps to confront the worrying trend of increasingly restrictive environments outlined in this Report. These efforts have resulted in elevating the importance of freedom of assembly and of association in the international dialogue, preventing the passage of restrictive laws in several countries, and encouraging various governments to develop progressive legal frameworks.

Despite the increasing international response, civil society is still losing space in many countries. Just as restrictive legal environments around the world increased after the “Color Revolutions” in some former Soviet countries, the “Arab Spring” of 2011 triggered a new wave of restrictive measures against popular uprisings, public movements, and civic associations. This proliferation of legal restrictions imposed on civil society continues around the world while adding to the more traditional forms of repression, such as imprisonment, harassment, disappearances, and execution.

To further the global response to this challenge, the World Movement for Democracy and the International Center for Not-for-Profit Law (ICNL) recommend the following actions:

Actions Directed to the International Community at Large:

Actions Directed to Civil Society Organizations:

Actions Directed to Democracy Assistance Organizations:

Bibliography of Key International Instruments

African Charter on Democracy, Elections and Governance

African Charter on Human and Peoples’ Rights

American Convention on Human Rights

American Declaration of the Rights and Duties of Man

Arab Charter on Human Rights

Community of Democracies 2007 Bamako Ministerial Consensus: “Democracy, Development and Poverty Reduction

Community of Democracies 2011 Vilnius Declaration

Convention on the Elimination of All Forms of Discrimination against Women

Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities

Copenhagen Document of the Organization for Security and Cooperation in Europe (OSCE) (1990)

European Convention for the Protection of Human Rights and Fundamental Freedoms

First Optional Protocol to the International Covenant on Civil and Political Rights

ILO Declaration on Fundamental Principles and Rights at Work

Inter-American Democratic Charter

International Covenant for Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

International Convention on the Elimination of All Forms of Racial Discrimination

Organization of American States General Assembly Resolution on “Promotion of the Rights to Freedom of Assembly and of Association in the Americas” (June 2011)

OSCE/ODIHR Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations

Recommendation CM/Rec (2007)14 of the Committee of Ministers of the Council of Europe to member states on the legal status of non-governmental organisations in Europe

UN Declaration on the Right to Development

UN General Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

UN Human Rights Council Resolution 15/21 on the Rights to Freedom of Peaceful Assembly and Association (September 2010)

United States Department of State Guiding Principles on Non-Governmental Organizations

Universal Declaration of Human Rights

Vienna Declaration and Programme of Action

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 (DFAIT), the Swedish International DevelopmentCooperation Agency (Sida), the United States Agency for International Development (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 updated Report. Finally, special thanks go to the hundreds of civil society organizations from many different regions who have participated in the Defending Civil Society project. Their insightful input through the consultation process has enhanced this Report, and their participation in various discussions since the original publication has made this updated version even more relevant to their work.

The Defending Civil Society project, including the regional consultations, the production of this Defending Civil Society Report, and activities to promote its findings, has been made possible through the generous support of the following:

Foreign Affairs and International Trade Canada logo
USAID              Sida logo
The Hurford Foundation                     Taiwan Foundation for Democracy
The authors’ views expressed in this publication do not necessarily reflect the views of the contributors listed above, or the governments they may represent.

The World Movement for Democracy and its international Steering Committee also express their deep appreciation to the World Movement Secretariat at the National Endowment for Democracy and the International Center for Not-for-Profit Law for their cooperation and support on the Defending Civil Society project and the preparation of this Report.

National Endowment for Democracy              ICNL logo

 

Footnotes

1 The International Center for Not-for-Profit Law (ICNL) is the leading source of information on the legal environment for civil society, including the freedoms of association and assembly. Since 1992, ICNL has served as a resource to civil society leaders, government officials, and the donor community in more than 100 countries.

The World Movement for Democracy, initiated by the National Endowment for Democracy (NED) in 1999, is a global network of democrats, including activists, practitioners, academics, policy makers, and funders, who have come together to cooperate in the promotion of democracy. NED serves as the World Movement’s Secretariat. The World Movement for Democracy expresses its deep appreciation to ICNL for its gracious and expert cooperation in the production of the first and second editions of this Report.

The World Movement and ICNL encourage civil society groups around the world to reproduce and distribute this Report widely and to initiate and/or include discussions of it in their activities.  For additional printed or electronic copies, contact the World Movement Secretariat at: world@ned.org.

This Report has been made possible through the generous support of several organizations, which are listed in Acknowledgments at the end of the Report.

Defending Civil Society was first published in 2008. This is a second edition.

2 The “civil society” sector has been variously called the “third” sector, “voluntary” sector, “nonprofit” sector, and “independent” sector. Civil society is made up of various types organizations, which may include associations, foundations, non-profit corporations, public benefit companies, development organizations, community-based organizations, faith-based organizations, mutual benefit groups, sports clubs, advocacy groups, arts and culture organizations, charities, trade unions and professional associations, humanitarian assistance organizations, non-profit service providers, charitable trusts, and political parties. These organizations are often referred to as nongovernmental organizations (NGOs), not-for-profit organizations (NPOs), or civil society organizations (CSOs). To recognize and appreciate the diversity in organizational forms, this Report generally uses the term “civil society” or “CSOs” but refers to “NGOs” or “NPOs” when referenced as such by other sources. Also, while the fundamental freedoms of assembly and of association affect trade unions and political parties, the Report generally focuses on issues concerning associations, foundations, community-based organizations, advocacy groups, and other types of organizations other than trade unions and political parties.

3 In February 2012, Yevgeniy Zhovtis was granted an amnesty and released.

4 Busan Partnership for Effective Development Cooperation.

5  ILO Declaration on Fundamental Principles and Rights at Work.

6  The U.S. Department of State Guiding Principles on Non-Governmental Organizations.

7 Schofield, Matthew, “Putin Cracks Down on NGOs,” McClatchy Washington Bureau, February 21, 2007.

8 The Advocacy Project, OTR Volume 3, Issue 1, December 7, 1998, p.2.

9 MoFED is the Ministry of Finance and Economic Development in Sierra Leone.

10 It is worth noting that the NGO Policy emphasizes the prohibition through block capitals, bold font, and underscoring, as follows: “NO PROJECT SHALL BE IMPLEMENTED WITHIN SIERRA LEONE UNLESS IT HAS BEEN DISCUSSED WITH THE RELEVANT LINE MINISTRY AND MoFED.

11 The charges against most of the activists were dropped. Six activists, however, were charged and convicted in 2012 for conspiracy to commit public violence.

12 For more information on Internet restrictions, see the OpenNet Initiative.

13 CIVICUS: Civil Society Watch, “Angola: Civil society campaigner arrested,” February 2007.

14  Blomfield, Adrian, “Echoes of Stalin in tea party arrests,” Telegraph Media Group, February 7, 2007

15  Prime Minister Vladimir Putin commented as follows: “If you get (permission), you go and march. If you don't—you have no right to. Go without permission, and you will be hit on the head with batons. That's all there is to it.”

16  http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-152.pdf.

17 Article 2(15) of the Proclamation to Provide for the Registration and Regulation of Charities and Societies, 2009.

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

19 Id. at p. 13.

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

21 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.

22 Schofield, Matthew, “Putin Cracks Down on NGOs,” February 21, 2007.

23 Carothers, Thomas, “The Backlash Against Democracy Promotion,” Foreign Affairs, March/April 2006.

24 Id.

25 Minutes of Legal Administrative Affairs Standing Committee, Public Debate on Draft Proclamation for NGOs and Associations, December 24, 2008, p.16.

26 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 eight 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 (Sept. 1998)).

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

28 Id.

29 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.

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

31 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.

32 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.

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

34 See 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 (1984)], which were 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.

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

36 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.”

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

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

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

40 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 Convention on the Rights of Persons with Disabilities, 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.

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

42 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.

43 Entry into force 3 September 1953; adopted 4 November 1950 by the members of the Council of Europe, Rome. Source: http://conventions.coe.int/Treaty/en/Summaries/Html/005.htm.

44 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).

45 Adopted by the General Assembly in Resolution 53/144 of 9 December 1998. Source: .

46 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 it was adopted by consensus—therefore representing a strong commitment by states to its implementation.

47 Both the U.S. 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 U.S. 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 Ministers 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 individual persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based.”

48 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 35.

49 Full text of the Resolution.

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

51 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 acknowledgment of the Macedonian minority in Bulgaria (Stankov and the United Macedonian Organization Ilinden v. Bulgaria, no. 29221/95 and 29225/95, ECHR 2001-IX).

52 Reinforcing the broad scope of rights, Article 26 of the ICCPR enshrines the principle of non-discrimination, as follows: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This principle applies to, inter alia, victims of discrimination because of their sexual orientation and gender identity (A/HRC/RES/17/19).

53 Full text of the Resolution.

54 Convention on the Rights of Persons with Disabilities, Article 29(b).

55 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.

56 Report submitted by the UN Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178 (1 October 2004) page 21.

57 These attributes distinguish gatherings protected by freedom of association from mere gatherings of people wishing to share one another’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.”

58 OSCE/ODIHR Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations, pp. 6-7; see also UN Special Representative Report, p. 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.”).

59 Report submitted by the UN Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, p. 21.

60 Sidiropoulos, para. 40.

61 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.

62 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, p. 21, the Special Representative favors regimes of declaration instead of registration.

63 “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).

64 Report submitted by the UN Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178, p. 21.

65 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. The I-ACHR issued a 2009 Report on Democracy and Human Rights in Venezuela, which contains virtually the same recommendation to the Venezuelan government: “Refrain from promoting laws and policies for the registration of human rights organizations that use vague, imprecise, or broad definitions regarding legitimate grounds for restricting the possibility of their establishment and operation.”

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

67 Report submitted by the UN Special Representative of the Secretary-General on human rights defenders, Hina Jilani, in accordance with General Assembly resolution 58/178 (1 October 2004) p. 22. Additionally, UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, in her report to the UN General Assembly (4 August 2009, p. 24) (), emphasized that “Foreign NGOs … should be subject to the same set of rules that apply to national NGOs; separate registration and operational requirements should be avoided.”

68 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011,.

69 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.”

70 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.”

71 See, for example, N.F. v. Italy, no. 37119/97, §§ 26-29, ECHR 2001-IX; and Gorzelik and others v. Poland [GC], no. 44158/98, §§ 64-65, ECHR 2004-I.

72 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 44, (“It would seem reasonable to presume that an interference is only ‘prescribed by law’ if it derives from any duly promulgated law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra vires would seem not to be ’prescribed by law,’ at least if they are invalid as a result.”).

73 In interpreting nearly identical language from Article 11 of the European Convention on Human Rights, the European Court of Human Rights has made clear that “only convincing and compelling reasons can justify restrictions on the freedom of association.” See also the “Siracusa Principles” [United Nations, Economic and Social Council, UN 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.4/1984/4 (1984)], which were 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.

74 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.

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

76 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.”).

77 See United Communist Party of Turkey and others v. Turkey, Judgment of 30 January 1998, Reports 1998-I, para. 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.”).

78 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.”).

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

80 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.

81 See McBride, p. 46.

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

83 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.”

84 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.

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

86 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.

87 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).

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

89 See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted 16 May 2011 to the Human Rights Council, Seventeenth session, para. 37. See also Socialist Party and Others v. Turkey, (App 21237/93), Judgment of 25 May 1998; (1999) 27 EHRR 51, p. 24.

90 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.

91 UN Human Rights Council, Resolution 12/16, Freedom of opinion and expression, 12 October 2009, para. 5(p).

92 UN Defenders Declaration, Articles 6-9.

93 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.”).

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

95 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).

96 See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted 16 May 2011 to the Human Rights Council, 17th sess., , para. 24.

97 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.”

98 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)).

99 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.

100 The right to communicate via Internet-based technologies is embraced by the right to communication. Given the importance of the Internet and Internet-based technologies, however, we spotlight this aspect of communication as a distinct principle. For a detailed analysis of the connection between new technology and fundamental freedoms, see Douglas Rutzen and Jacob Zenn, “Association and Assembly in the Digital Age,” The International Journal of Not-for-Profit Law, Vol. 13, Issue 4, December 2011.

101 See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted 16 May 2011 to the Human Rights Council, 17th sess.

102 UN Human Rights Council, Resolution 12/16, Freedom of opinion and expression, 12 October 2009, para. 5(p).

103 See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted 16 May 2011 to the Human Rights Council, 17th sess., , para. 68.

104 See Freedom and Democracy Party (OZDEP) v. Turkey, no. 23885/94, section 37, ECHR 1999-VIII.

105 See Human Rights Committee General Comment No. 15 of 1994.

106 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 26 (“As the right to participate in peaceful activities can be exercised individually and in association with others, it is important to emphasize that it is not necessary for an NGO to have legal personality to participate in assemblies, including a demonstration.”).

107 See Plattform “Arzte fur das Leben” v. Austria, judgment of 21 June 1988, Series A no. 139, p. 12, sections 32.

108 See Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, pp. 1957-58, section 58.

109 See Stankov and the United Macedonian Organisation Ilinden and Ivanov v. Bulgaria.

110 See Guidelines on Freedom of Peaceful Assembly. Office for Democratic Institutions and Human Rights and the Venice Commission, OSCE/ODIHR 2010, .

111 See UN Human Rights Committee, Auli Kivenmaa v. Finland (1994).

112 See Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, pp. 30, 32 (“States should ensure that there are satisfactory review procedures for complaints in the event of restrictions being imposed on assemblies. Additionally, States should ensure access to courts to appeal against any decision to restrict an assembly, although this should not be a replacement for satisfactory administrative review procedures ...”).

113 Id. at p. 32 (“While recognizing that in order to be able to fulfil their responsibility to protect defenders participating in an assembly, the authorities need to be notified in advance, States are encouraged to consider in exceptional circumstances that defenders, with the aim of protesting human rights violations, should have the possibility of responding immediately to an event by holding public, peaceful assemblies.”).

114 See Plattform “Arzte fur das Leben” v. Austria, judgment of 21 June 1988, Series A no. 139, p. 12, para. 32.

115 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 33.

116 It is worth noting that the “in conformity with law” standard applicable to freedom of assembly is distinct from the “prescribed by law” standard applicable to freedom of association. The “conformity with law” standard has been interpreted as a broader standard, implying that “restrictions to peaceful assembly can be imposed not only by law but also through a more general statutory authorization, such as an executive order or a decree.” See Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 31.

117 ICCPR, Article 21.

118 Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 31.

119 See, e.g., Guidelines on Freedom of Peaceful Assembly. Office for Democratic Institutions and Human Rights and the Venice Commission, OSCE/ODIHR 2010, .

120 ICCPR, Article 22.2.

121 Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161 and 176, .

122 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.”

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

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

125  Commentary to the Declaration on human rights defenders, UN Special Rapporteur on the situation of human rights defenders, July 2011, p. 95,.

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

127 Id., page 22.

128 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1.

129 Id., Article 6(f).

130 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. The I-ACHR, in its 2009 Report on Democracy and Human Rights in Venezuela, reemphasized the same point in calling upon Venezuela to “[r]efrain from imposing illegitimate restrictions on financing, including foreign financing, of human rights organizations.” 

131 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.”

132 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.”

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

134 Adopted by the UN World Conference on Human Rights, June 25, 1993.

135 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, ).

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

 
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