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August 2009
TT HH EE RR OO LL EE OO FF LL EE GG AA LL RR EE FF OO RR MM
IINN SS UU PP PP OO RR TT IINN GG CC IIVV IILL SS OO CC IIEE TT YY ::
A N I NTRODUCTORY P RIMER
International Center for Not -For -Profit Law
and
United Nations Development Programme

THE ROLE OF LEGAL REFORM IN SUPPORTING CIVIL SOCIETY

AN INTRODUCTORY PRIMER – ICNL & UNDP – AUGUST 200 9 – PAGE 2

Copyright © UNDP 2009
All rights reserved
Published in the United States o f America
Acknowledgements
This primer is a joint effort between the International Center for No t-for -Profit Law (ICNL), and
the United Nations Development Programme (UNDP). It was commissioned by UNDP and
written by David Moore, Vice President, Legal Affairs, ICNL, with support from Douglas Rutzen,
President and CEO of ICNL.
Support for this paper was provided by the Poverty Group/Bureau for Development Policy in
UNDP. Its production in UNDP was a collaborative effort between the Bratislava Regional
Centre, the Oslo Governance Centre/Bureau for Development Policy and the Civil Society
Division/Partn erships Bureau.
We would like to thank the following colleagues in UNDP for their inputs to and reviews of the
paper:
Geoffrey D. Prewitt, Senior Governance Advisor, PAPP (formerly Poverty Reduction and Civil
Society Advisor, Bratislava Regional Centre), who commissioned the paper from ICNL,
provided substantive feedback and coordinated inputs on the initial drafts; Sarah Lister,
Governance and Civil Society Adviser, Oslo Governance Centre, Bharati Sadasivam, Policy
Advisor, and Beniam Gebrezghi, Programme Specialist, Civil Society Division/Partnerships
Bureau for their work in putting together the final draft.
We would also like to thank the following UNDP colleagues who read various drafts and
provided substantive and valuable feedback: Masood Amer (Afgh anistan), Luca Bruccheri
(Zambia), Nana Busia (Sierra Leone), Beatriz Fernandez (Civil Society Division/Partnerships
Bureau), Nessie Golakai (Liberia), Max Ooft (Suriname), Olivera Puric (Serbia), Paavani Reddy
(Oslo Governance Centre), Fekadu Terefe (Ethi opia), and Magda Verdickt (Mauritius).
In addition, UNDP and ICNL acknowledge their partners – in government and civil society –
who have undertaken the work described in this Primer and who are otherwise engaged to
advance the legal framework for civil s ociety around the world.

Disclaimer
The views expressed in this publication are those of the author(s) and do not necessarily
represent those of the United Nations or UNDP.

THE ROLE OF LEGAL REFORM IN SUPPORTING CIVIL SOCIETY

AN INTRODUCTORY PRIMER – ICNL & UNDP – AUGUST 200 9 – PAGE 3

Table of Contents

PREFACE ………………………….. ………………………….. ………………………….. ……………………… 4
FOREWORD ………………………….. ………………………….. ………………………….. …………………… 5
I. INTRODUCTION ………………………….. ………………………….. ………………………….. …………….. 6
Definitions ………………………….. ………………………….. ………………………….. …………………….. 6
Content and Structure ………………………….. ………………………….. ………………………….. …….. 7
II. OVERVIEW OF LEGAL FRAMEWORK FOR CIVIL SOCIE TY ………………………….. …………………….. 8
A. International Law and Civil Society ………………………….. ………………………….. …………….. 8
B. National Legal and Regulatory Framework Affecting CSOs ………………………….. …………. 14
C. Unpacking the Components of Civil Society Law ………………………….. ……………………….. 19
D. Importance of Legal and Regulatory Framework to Civil Society ………………………….. …. 23
III. OVERV IEW OF LEGAL ENVIRONMENTS IN SELECTED COUNTRIES ………………………….. ……….. 26
A. Afghanistan ………………………….. ………………………….. ………………………….. ……………… 26
B. Liberia……………………………………………………………………………………28
C. Mauritius ………………………….. ………………………….. ………………………….. …………………. 30
D. Serbia ………………………….. ………………………….. ………………………….. ……………………… 33
IV. THE ROLE OF INTERNATIONAL ACTORS IN SUPPORTING A CONDUCIVE CIVIC ENVIRONMENT …… 35
A. Threshold Considerations ………………………….. ………………………….. ………………………… 35
B. In Pursuance of Legal Reform ………………………….. ………………………….. …………………… 36
C. Following L egal Reform ………………………….. ………………………….. ………………………….. 45
D. Beyond Legal Reform ………………………….. ………………………….. ………………………….. …. 47
V. CHECKLIST FOR PROGRAMME DESIGN ………………………….. ………………………….. …………… 51
APPENDIX A: FREQUENTLY ASKED QUESTIONS (FAQ S) ………………………….. …………………….. 53
APPENDIX B: RESOURCES ON CIVIL SOCIETY ………………………….. ………………………….. ………. 55

THE ROLE OF LEGAL REFORM IN SUPPORTING CIVIL SOCIETY

AN INTRODUCTORY PRIMER – ICNL & UNDP – AUGUST 200 9 – PAGE 4

Preface
This year we mark the anniversaries of two scientific ac complishments. Four hundred years ago, Galileo Galilei
made a subtle yet profound adaptation to the compound microscope invented just a few years earlier.
Instead of looking downward, Galileo turned his spyglass to the night sky. Among other observations, Galileo
discovered “Medicean stars” revolving around Jupiter. Today we call them Jupiter’s moons, and they p roved
that not all heavenly bodies revolve around the Earth. His observations suggested that we are not t he center
of the universe, despite his co ntemporaries’ protestations to the contrary. Literally and figuratively, Galileo
revolutionized science by extending his perspective and looking outward.
The same can be said of another scientific luminary we celebrate this year. In 1859, Charles Darwi n published
On the Origin of Species . Similar to Galileo, Darwin’s insights would not have been possible if he had studied
that which is close, rather than that which is far. Indeed, it was only by sailing aboard the HMS B eagle that
Darwin encountered all manner of animals, many of which were unknown in England. It was the study of
different environments – more specifically, the ide ntification of similarities and differences – that unlocked
creativity and intellectual innovation.
It is in a similar spirit that we present the Primer. We present no “solutions,” for we have worked in over 100
countries and recognize that the legal framework for civil society must be adapted to the local envi ronment.
Rather, we have worked with our partners at UNDP to share c omparative perspectives to facilitate creative
thinking.
The need for innovation is apparent as we consider the confluence of contemporary challen ges, including
poverty, HIV/AIDS , climate change, and other constraints on human development. In addition, the global
financial crisis has contributed to a recalibration of governance. This is most readily apparent in relations
between government and business, as sectoral boundaries become increasingly blurred and governments
apply a stronger hand to guide market forces.
This recalibration similarly extends to civil society. In the past year alone, over sixty countries have embarked
on legal initiatives redefining the rights and responsibilities of civil society organizations. Some initiatives
empower “whole o f society” responses to contemporary challenges. Others limit civic space and disable
participatory governance. In any event, the legal framework for civil society is a primary manifesta tion of a
country’s governance theory and plays a key role in the abil ity of nations to advance human development
We hope this Primer serves as a helpful resource for governments, civil society, and multilateral in stitutions
seeking to promote an enabling environment for civil society. We thank UNDP for its generous guidan ce and
support, and we express our appreciation to our partners around the world from whom we have learned so
much.

Doug Rutzen David Moore
President Vic e President , Legal Affairs
ICNL ICNL

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Foreword
The success of democratic governance depends on the existence of both a robust state and a healthy a nd
active civil society. Strong levels of civic engagement are an essential element of participa tory governance
which today increasingly focuses on creating inclusive and responsive democratic institutions and in creasing
opportunities for citizen voice.
A critical factor for civil society organizations to work in a country is the legal and regulator y framework
allowing and governing their establishment, space and scope to function in public life. A healthy ci vil society
benefits from the rule of law and the realization of civil and political rights, which include freed om of
expression, right to assoc iation and taking part in public affairs. Adequate regulatory frameworks are
inextricably linked to society’s right to development and defining development paths through democra tic and
inclusive processes.
UNDP can play a strategic role in mediating state -citizen relations, especially in fragile democracies or
countries that are consolidating democratic gains, to advocate for support and an enabling environme nt in
which civil society can function and contribute to development.
A number of governments incr easingly seek UNDP advice and support in formulating a legal/regulatory
framework for civic participation in public affairs. A 2008 global inventory of country office engag ement with
civil society showed that 60 per cent of country offices in Africa and Eu rope -CIS reported strong involvement
in supporting legal frameworks. However, the survey also showed that there is a need for more effort in three
regions: almost half of country offices in Asia -Pacific, Arab States and the Latin America and Caribbean regi ons
reported little or no engagement in this area.
This primer was authored by the International Centre for Not -for -Profit Law, which specializes in this area and
works with governments and civil societies in a number of developing countries to help draft progressive
laws. With its definitions and explanations of different types of regulatory frameworks that exist, country case
examples and lessons learned, and guidance on how to support governments and civil society, this pri mer is a
thorough and comprehe nsive guide to colleagues in country offices and regional centres who deal with this
important and often sensitive issue.

Bjoern Foerde Thierno Kane
Director, Oslo Governance Centre Director, Civil Society Division
Bure au for Development Policy Partnerships Bureau

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I. Introduction
Attention to civil society and the wide range of organizations that fill the space between the state and the
market has increased considerably in the past 20 years. We have witn essed what has been called a “global
associational revolution” or “a massive upsurge of organized private, voluntary activity in virtuall y every
region of the world.” 1 Civil society organizations [CSOs] are playing an increasingly active role in social,
ec onomic and political spheres. Multilateral organizations including the United Nations and the World Bank
have recognized the important role of civil society and have established mechanisms for engagement a nd
dialogue with CSOs. 2 A strong civil society is a n important end in itself, and also a crucial means towards
delivering on specific objectives, such as the Millennium Development Goals [MDGs].
A state’s legal framework is one of many factors that affect how conducive the overall environment i s
towards ci vil society and its organizations. An enabling legal framework is certainly no guarantee of a vibran t
civil society, and a disabling or restrictive legal framework is not necessarily an insurmountable b arrier for civil
society engagement and participation in public affairs. Nonetheless, the legal framework plays a pivotal role
and an overall supportive legal framework can be considered a necessary, but not sufficient, conditi on for the
development of a strong and sustainable civil society sector.
Laws and policies affecting civil society are highly dynamic and volatile, and often subject to change. Many
countries have revised and continue to refine the legal and regulatory framework affecting CSOs. Som etimes
such revision is favorable to civil society, and sometimes it is constraining. Diverse contexts require a range of
different responses and international actors should always consider a wide range of civil society su pport
initiatives.
In all contexts, international actors need to carefully determine the opportunities for reform and whether to
pursue:
1. Improvements to the legal framework governing civil society;
2. Improvements in the process of implementation of the law governing civil society; or
3. In circumstances where space for civil society is constrictin g but legal reform is not currently feasible,
the most appropriate strategies to protect civil society, build its capacity to survive and respond where
appropriate, and lay the foundations for future reform.
The aim of this paper is to provide (1) an int roductory overview of the legal environment for civil society and
(2) a general orientation to civil society law reform for international actors who are involved in advising on,
designing or developing programmes which seek to promote a more conducive envi ronment for civil society.
Definitions
It is important to define what we mean by “civil society” and CSOs. Volumes have been written on the
meaning of “civil society” 3 and the task of defining the concept has proven a complex and sometimes
1 Lester M. Salamon, S. Wojciech Sokolowski, and Regina List, Global Civil Society: An Overview , Center for Civil Society Studies, the
Johns Hopkins University, © 2003, Lester M. Sa lamon. 2 Key documents guiding UNDP engagement with civil society are available here : For information on broader UN engagement with civil
society, see, e.g. , United Nations Non -Governmental Liaison Service ; Focal Points for NGOs (); Strengthening the Partnership between
the UN and NGOs ; DESA NGO Section .
For the World Bank, see World Bank dial ogue with civil society . 3 Numerous studies have sought to define civil society and to classify civil society organizations. A s for a few examples, see the UN
Nonprofit Handbook Pro ject , Johns Hopkins Center for Civil Society Studies; the London School of Economics, Centre for Civil Society ;
CIVICUS Civil Society Index .

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controversial process. The “civil society” sector has been labeled variously as the “third” sector, “voluntary”
sector, “nonprofit” sector, “charitable” or “independent” sector, and the “social economy”. The
organizations making up civil society come in a diverse range of forms, which may include associations,
foundations, non -profit corporations, public benefit companies, development organizations, community –
based organizations, religious congregations and faith -based organizations, hospitals, universities, mutual
bene fit groups, sports clubs, advocacy groups, arts and culture organizations, charities, unions and
professional associations, humanitarian assistance organizations, non -profit service providers and charitable
trusts. Taken together, they are often referred t o as non -governmental organizations (NGOs), not -for -profit
organizations (NPOs), or civil society organizations (CSOs).
For purposes of this primer, UNDP defines civil society organizations based on its Policy of Engagement with
CSOs (2001) 4: “CSOs are no n-state actors whose aims are neither to generate profits nor to seek governing
power.” This definition is intended to embrace the diverse range of organizational forms listed in the prior
paragraph. In the UNDP definition, political parties are not inclu ded as part of civil society, although they are
clearly important players in development contexts and UNDP engages with them in a variety of context s and
ways. 5 Moreover, some of the issues around freedom of association also affect political parties so the y are
used in this document as examples where relevant. 6 The paper will generally use the term “civil society” or
“CSOs” but may make reference to other terms (“NGOs” or “NPOs”), if referenced as such by other sour ces.
For purposes of this primer, “ international actors” includes the U.N., particularly UNDP, and other multi -lateral
organizations such as the World Bank, the OSCE, the European Community, as well as bi -lateral governmental
organizations and international NGOs. We recognize the broad and differing range of missions, mandates,
entry points, and available tools for support and intervention. This paper is not tailored exclusive ly to UNDP,
and neither presumes to provide advice on what strategy might be appropriate for any given country, nor
seeks to detail ‘how -to’ guidance on implementing any given strategy. Instead, the paper seeks to raise issues
of common concern relating to civil society legal reform. The most effective strategy and implement ation of
any given strategy can only be deter mined by those operating within a specific country context.
Content and Structure
Section II contains an overview of the legal framework for civil society, describing the roots of ci vil society in
international law, common features of the national -level legal frameworks governing civil society, and the
fundamental importance of law to civil society. Section III presents four (4) country reports, which review the
legal reform challenges in each, as well as the legal reform strategies adopted in pursuing re form; these case
studies reveal some of the key elements of successful legal reform. 7 Section IV seeks to provide a general
orientation to international actors in supporting a more enabling legal environment for civil societ y. Finally,
Section V concludes the paper with a checklist for reform actors. Answers to frequently asked questions can
be found in the appendix.
4 See UNDP (2001) UNDP and Civil Society Organizations: A Policy of Engagement 5 See UNDP (2005) A Handbook on Working with Political Parties . 6 Indigenous peoples’ organisations (IPOs) sometimes do not define themselves as NGOs or CSOs as in so me contexts they do not
want to come under government legislat ion and structures, which are seen to undermine their right to self -determination. However, it
is beyond the scope of this paper to deal with the specific issues related to IPOs, although their p articular needs must be t aken into
account in legal reform in itiatives.
7 We recognize that these case studies are merely illustrative examples of reform challenges and refor m strategies. The lesson s
learned in Section IV do not depend alone on the case studies, but additionally on ICNL experience i n more than 100 countries, and on
research into the laws of more than 150 countries.

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UN Defenders Declaration, Article 5:
For the purpose of promoting and protecting human rights and fundamental freedoms,
everyone has the right, individually and in association with others, at the national and
international levels:

a. To meet or assemble peacefully;
b. To form, join and participate in non -governmental organizations, assoc iations or groups;
c. To communicate with non -governmental or intergovernmental organizations.
II. Overview of Legal Framework for Civil Society

A. International Law and Civil Society
The international legal basis for civil society – that is, for associational life as expressed through the diverse
range of civil society organizations – is rooted in the body of international law that protects the fundamental
freedoms of association, peaceful assembly and expression, as well as freedom of thought, conscience and
religion, and the right to take part in the conduct of public affairs. 8
The U.N. human rights instruments protecting these fundamental freedoms include the following:
 Universal Declaration of Human Rights (UDHR) (1948): Article 20 states “Everyone has the right to
freedom of peaceful assembly and association.”
 International Covenant on Civil and Political Rights and the First Optional Protocol (ICCPR) (1976):
Article 22 states “Everyone shall have the right of freedom of associ ation with others, including the
right to form and join trade unions for the protection of his interest.”
 International Convention on the Elimination of All Forms of Racial Discrimination (1969): Article 5
states “ In compliance with the fundamental obligat ions laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origi n, to
eq uality before the law, notably in the enjoyment of the following rights: … The right to freedom of
peaceful assembly and association.”
 Convention on the Elimination of All Forms of Discrimination against Women (1989): Article 7 affirms
that “States Partie s shall take all appropriate measures to eliminate discrimination against women in
the political and public life of the country and, in particular, shall ensure to women, on equal ter ms
with men, the right …(c) To participate in non -governmental organizati ons and associations
concerned with the public and political life of the country.”
 Convention on the Rights of the Child (1990): Article 15 maintains that “States Parties recognize the
rights of the child to freedom of association and to freedom of peacef ul assembly.”
 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
Defenders Declaration) (1999).

8 Its origins in political thought go back to concepts of national sovereignty, through which people c oncede power to the sover eign
but power and authority remain with the people.

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The State has a dut y to promote respect for human rights and fundamental freedoms. That duty includes
both a ‘negative’ responsibility – i.e., to refrain from interference with rights and freedoms – and positive –
i.e., to ensure that the legal framework is appropriately en abling and that the necessary institutional
mechanisms are in place “to ensure all individuals” the recognized rights and freedoms. 9
This means that states have certain obligations to protect these rights with respect to third partie s. Article 2 of
the ICC PR is explicit in describing this State duty. 10

State interference with fundamental freedoms must be based on legal grounds. First, certain rights are
derogable in times of public emergency which threatens the life of the nation. 11 Second, the ICCPR se ts the
parameters for restrictions on the right to freedom of association in Article 22(2). 12
In other words, excepting situations of public emergency, restrictions on the exercise of freedom of
association are only justifiable where:
(a) Prescribed by law;
(b) In the interests of one of the four legitimate state interests:
 National security or public safety;
 Public order;
 The protection of public health or morals;
 The protection of the rights and freedoms of others; and
(c) Necessary in a democratic society.
9 See the U.N. Charter, Articles 55 -56; the Universal Declaration of Human Rights, Sixth Preamble; ICCPR, Article 2; ICESCR, Article 2;
U.N. Declaration on the Right to Development, Article 6; U.N. Defenders Declaration, Article 2. 10 The ICCPR Human Rights Comm ittee also emphasized the state obligation in General Comment 31(7) (2004): “Article 2 requires that
States Parties adopt legislative, judicial, administrative, educative, and other appropriate measure s in order to fulfill the ir legal
obligations.” 11 Artic le 4 authorizes States “in time of public emergency which threatens the life of the nation” to “take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of th e situation, provided tha t suc h
measures are not inconsistent with their other obligations under international law and do not involv e discrimination solely o n the
ground of race, colour, sex, language, religion or social origin.” 12 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 Univer sal
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 pro mote “universal respect f or and
observance of human rights and fundamental freedom s 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 abste ntion. (Forsythe, David, Human
Rights Fifty Years after the Universal De claration, PS: Political Science and Politics, Vol. 31, No.3 (Sep. 1998).
International Covenant for Civil and Political Rights, Article 22:
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 intere sts
of national security or public safety, public order ( ordre public ), the protection of public health or morals
or the protection of the rights an d 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 .

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To su pport compliance with U.N. human rights instruments, the U.N. has established a number of protective
mechanisms. For example, the Human Rights Committee 13 was created to help ensure state compliance with
the International Covenant on Civil and Political Ri ghts, and is empowered to accept individual complaints
respecting alleged violations. 14 The 1503 Procedure, based on a resolution of the UN Commission on Human
Rights from 1970, is designed for complaints that appear to show “consistent patterns of gross a nd reliably
attested human rights violations received from individuals or NGOs.” 15 “Special procedures” refers to the
mechanisms used by the Human Rights Council to address specific country situations or thematic issue s;
special procedures may be an individ ual (e.g., the Special Representative of the U.N. Secretary -General on
Human Rights Defenders) or a working group. 16 None of these mechanisms can issue legally binding decisions
that force states to comply, but the political and moral force of the decisions may be significant in influencing
state behaviour. 17 For example, statements by human rights treaty bodies and compliance committees are
increasingly being used by civil society to name and shame governments; this constitutes an importan t trend
in civil so ciety’s use of international mechanisms.
The body of international human rights law has been strengthened and, in many cases, complemented by
regional human rights instruments, in which the freedoms of association and expression are also ensh rined.
13 The Human Rights Committee should not be confused with the more high -profile Commission on Human Rights, a Charter -based
mechanism, or its replacement, the Human Rights Council. W hereas the Commission on Human Rights was a political forum where
states debated all human rights concerns (since June 2006, replaced by the Council in that function) , the Human Rights Commit tee is a
treaty -based mechanism pertaining only to the ICCPR.
14 More information regarding the individual complaint procedure is available here . 15 See Front Line Defenders at https://www.fron tlinedefenders.org/manual/en/udhr_m.htm ; more recently, a new complaint procedure
has been established in relation to the 1503 procedure: https://www2.ohchr.org/english/bodies/chr/complai nts.htm . 16 More information on special procedures, including the UN Special Rapporteurs, and the UN Special Rapporteur on Human Rights
Defenders who accepts urgent communications.
17 The political and moral force of international law generally is uncertain. See Eric Neumayer, Do International Human Rights Treaties
Improve Respect for Human Rights? Journal of Conflict Resolution, Vol. 49, No. 6, 925 -953, © 2005 SAGE Publications (“Aft er the
nonbinding Universal Declaration of Human Rights, many global and regional human rights treaties have been concluded. Critics argue
that these are unlikely to have made any actual difference in reality. Others contend that international regimes can improve respect for
human rights in state parties, particularly in more democratic countries or countries with a strong civil society devoted to human rights
and with transnational links. The findings suggest that rarely does treaty ratification have uncon ditional effects on human rights.
Instead, improvement in human rights is typically more likely the more democratic the country or the more international
nongovernmental organizations its citizens participate in. Conversely, in very autocratic regimes with weak civil society, ratification can
be expected to have no effect and is sometimes even associated with more rights violation.”)
International Covenant for Civil and Political Rights, Article 2:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religi on, political or other
opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accor dance with its constitutional
processes and with the provisions of the present Covenant, to adopt such laws or other measures
as may be necessary to give effect to the rights recognized in the present Covenant.

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Dependi ng on the country and corresponding regional instrument, these may offer recourse to individuals
and/or CSOs whose rights have been violated. Key regional instruments 18 include:
 African Charter on Human and Peoples’ Rights. 19
 American Convention on Human Rights. 20
 American Declaration of the Rights and Duties of Man. 21
 Arab Charter on Human Rights. 22
 European Convention for the Protection of Human Rights and Fundamental Freedoms. 23 To safeguard
the rights contained in these charters and conventions, protect ive mechanisms have been established,
including the Inter -American Commission on Human Rights and the Inter -American Court of Human Rights; the
African Commission on Human and People’s Rights and the recently -established African Court on Human and
People’s Rights; and the European Court on Human Rights. While any person or group of persons, or any
nongovernmental entity legally recognized in one or more member states of the Organization [of Ameri can
States], may lodge petitions with the Inter -American Comm ission containing complaints of violation of the
American Convention by a State Party, only the State Parties and the Commission have the right to su bmit a
case to the Inter -American Court. 24 By contrast, in the African Court, individuals and non -government al
organizations can bring cases if they have been recognized as having observer status; if, on the oth er hand,
the State has not opted to recognize the competence of the Court in cases from individual entities, then the
Court cannot hear such petitions ag ainst the State. 25 The European Court goes furthest by clearly allowing
individuals, groups of individuals and non -governmental organizations claiming to be victims of rights
violations to submit cases to the Court.
From the Universal Declaration of Human R ights (1948) to the International Covenant on Civil and Political
Rights (1976) to the Declaration on Human Rights Defenders (1999), recognition under international l aw of the
importance of civil society activity has become increasingly well rooted. Howeve r the precise contours of the
rights that flow from international law and attach to CSOs are the subject of ongoing discussion and debate.

18 At the time of writing, there is no regional human rights treaty for Asia. Significantly, however, on November 20, 2007, Southeast
Asian leaders adopted the ASEAN Charter, which sets out a common set of rules for trade negotiations , investment, the environ ment,
and other fields; notably, the Charter envisions the creation of a regional human rights body. More recently, on July 20, 2009, the
Terms of Reference for the ASEAN Intergovernmental Commission on Human Rights (AICHR) were approved at the 42 nd meeting of
the ASEAN Foreign Ministers in Thailand. It is anticipated that the AICHR will be operational late in 2009. ( In addition, it should be
noted that there is a “ people’s charter ” on human rights, formally declared on 17 May 1998 , but this is not a treaty or convention.) 19 Entry into force 21 October 1986; adopted by the eighteenth Assembly of Heads of State and Government, June 1981, Nai robi, Kenya.
Currently, 53 States are parties to the Charter. 20 Entry into force 18 July 1978; adopted at the Inter -American Specialized Conference on Human Rights,
San José, Costa Rica, 22 November 1969. Currently 24 States are parties to the Convention. 21 Approved by the Ninth International Conference of America n States, Bogotá, Colombia, 1948.
22 Adopted by the Council of the League of Arab States in its resolution 5437 (102nd regular session) on 15 Septem ber 1994. 23 Entry into force 3 September 1953; adopted 4 November 1950 by the members of the Council of Europe, Rome. 24 The question of standing before the Inter -American Commission and Court is addressed in Articles 44 and 61, respectively, of the
American Convention on Human Rights. 25 Protocol for Establishment of an African Court, art 5(3), art. 34(6). The Protocol provides for an o ptional jurisdiction for cases
submitted by individuals or non -governmental organizati ons with observer status. For the Court to be able to hear cases from these
individual entities, the State that is the subject of the complaint must have first recognized such competence at the time of ratification
or any time thereafter. The Court cannot hear petitions against States that have not opted to allow that type of competence by the
Court. It should be noted, however, that the African Court has, at the time of writing, only begun to accept cases.

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On the one hand, the rights created by treaty provisions apply by their terms to individua ls, not to legal
entities. International law explicitly protects the right of individuals to form trade unions and ot her
associational forms, but there is no specific language addressing the rights of these associational forms once
they have been establish ed. One notable exception is trade unions; under a series of multilateral treaties,
trade unions themselves are explicitly protected. 26
On the other hand, there are strong arguments to support the concept that civil society organization s
generally are s ubject to the protections afforded by international law:
(1) Many of the rights enshrined in the ICCPR and other U.N. human rights instruments can be enjoyed
individually or in association with others. The ICCPR Human Rights Committee explains in General
Comm ent No. 31 (2004): “The beneficiaries of the rights recognized by the Covenant are individuals.
Although … the Covenant does not mention the rights of legal persons or similar entities or
collectivities, many of the rights recognized by the Covenant, such as … the freedom of association …
may be enjoyed in community with others. The fact that the competence of the Committee to receive
26 See Freedom of Association and Protection of t he Right to Organize Convention (ILO No. 87) , 68 U.N.T.S. 17, entered into force July
4, 1950; Right to Organize and Collective Bargaining Convention (ILO No. 98), 96 U.N.T.S. 257, entered into force July 18, 1951; Workers’
Representatives Convention (ILO No. 135) , 883 U.N.T.S. 111, entered into force June 30, 1973; Labor Relations (Public Service)
Convention (ILO No. 151) , 1218 U.N.T.S. 87, entered into force Feb. 25, 1981.
Concluding Observations of the Human Rights Committee (ICCPR)
The Human Rights Committee, in reviewing individual complaints against the following States,
expressed concern in its “concluding observations” with the protection of the right to freedom of
association. The following is an illustrative list of countries and issues of concern. [ More details are
available here .]:
 Mongolia , ICCPR, A/47/40 (1992): Absence of adequate mechanisms to appeal against administrative
decisions.
 Estonia , ICCPR , A/51/40 vol. I (1996): Limitations to the exercise of freedom of association for long -term
permanent residents.
 Lebanon , ICCPR, A/52/40, vol. I (1997): Restriction of right to freedom of association through a process of
prior licensing and control.
 Slova kia , ICCPR, A/52/40 vol. I (1997): Requirement that associations and NGOs be registered in order to
function freely and restrictive prerequisites to registration.
 Belarus , ICCPR, A/53/40 vol. I (1998): Difficulties arising from the registration procedures to which NGOs and
trade unions are subjected.
 Kuwait , ICCPR, A/55/40 vol. I (2000): Inability of the Kuwaiti Society for Human Rights to register as an
association since 1992.
 Syria , ICCPR, A/56/40 vol. I (2001): Restrictions on establishment of private a ssociations, including NGOs and
human rights organizations.
 Viet Nam , ICCPR, A/57/40 vol. I (2002): Reported obstacles imposed on the registration and free operation of
non -governmental human rights organizations.
 Egypt , ICCPR, A/58/40 vol. I (2003): Restr ictions on efforts of NGOs to secure foreign funding.
 Togo , ICCPR, A/58/40 vol. I (2003): Inability of non -governmental human rights organizations to register.
 Russian Federation , ICCPR, A/59/40 vol. I (2003): The definition of “extremist activity” in the federal law is
too vague to protect individuals and associations against arbitrariness in its application.
 Colombia , ICCPR, A/59/40 vol. I (2004): Actions taken against human rights defenders, including intimidation
and physical attacks, as well as the int erception of communications.

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and consider communications is restricted to those submitted by or on behalf of individuals (article 1
of the Optional Prot ocol) does not prevent such individuals from claiming that actions or omissions that
concern legal persons and similar entities amount to a violation of their own rights. ” (emphasis added)
Indeed, the U.N. Special Representative on human rights defenders, in reports to the Secretary –
General, makes reference to the rights of NGOs (“NGOs have a right to register as legal entities” /
“Governments must allow access by NGOs to foreign funding”). 27
(2) The European Convention on Human Rights (ECHR) acknowledged the r ight of “any person, non –
governmental organisation, or group of individuals claiming to be the victim of a violation” 28 to submit
an application after meeting the admissibility criteria. From this we can conclude that at least so me of
the fundamental right s of the European Convention also attach to NGOs. It would not make sense to
create a right to complaint unless underlying substantive rights apply. Therefore, it must be assum ed
that references in the ECHR to “everyone” may in principle refer to natural and legal persons,
including NGOs. Of course, certain fundamental rights, by their nature, do not apply to legal entit ies,
such as the right to life, personal freedom and safety, family life and marriage. Recognizing that NGOs
have no capacity to bring representative applications (i.e., invoke rights which protect their members),
NGOs can only invoke rights that apply to them. 29
(3) A similar right to complain exists in other regional human rights mechanisms, thus contributing to a
growing consensus in the in ternational legal framework that NGOs have rights that can be violated
and defended. Under Article 44 of the American Convention on Human Rights, a right of NGOs to
complaint is also recognized: “Any person or group of persons, or any nongovernmental entit y legally
recognized in one or more member states of the Organization, may lodge petitions with the
Commission containing denunciations or complaints of violation of this Convention by a State Party.” 30
As mentioned above, the newly -established African Cou rt permits individuals and non -governmental
organizations to bring cases if they have been recognized as having observer status.
(4) Many decisions of the European Court of Human Rights 31 confirm the rights and standing of NGOs
under the European Convention ( see text box). 32 Specifically, the European Court has firmly
established that there is a right under international law to form legally registered associations an d
that, once formed, these organizations are entitled to broad legal protections. 33 This has bee n tested
by political parties and other associations in Turkey and elsewhere. In United Communist Party of
Turkey and Others v. Turkey (“UCP”) , the Court held that “the protection afforded by Article 11
[freedom of association] lasts for an association’s e ntire life and that dissolution of an association …
27 Report submitted by the U.N. Special Representative of the Secretary -General on human rights defenders, Hina Jilani, in accordance
with General Assembly resolution 58/178, pages 21 -23. 28 Protocol 11, European Convention on Human Rights. 29 Erik Denters and Wino J.M. van Veen, Voluntary Organizations in Europe: The European Convention on Human Rights , International
Journal for Not -for -Profit Law, Volume 1, Issue 2 (December 1998). 30 American Convention on Human Rights, Article 44. Article 61, however, limits the right to bring cas es before the Inter -American
Court to only State Parties and the Inter -American Commission itself. 31 Among all the regional courts, the European Court has the most well developed body of case law inter preting freedom of associ ation
issues. Very few cases related to freedom of association have been decided by t he relatively young Inter -American Court, and the
African Court, which has only recently become operational, has yet to issue any case decisions on fr eedom of association. 32 For a detailed overview of the case law on freedom of association, see Zvonimir Ma taga, The Right to Freedom of Association under
the European Convention on the Protection of Human Rights and Fundamental Freedoms , © October 2006, European Center for Not -for –
Profit Law. 33 See, e.g., Sidiropoulos and others v. Greece , judgment of 10 July 1998, Reports of Judgments and Decisions 1998 -IV; United Communist
Party of Turkey and others v. Turkey , judgment of 30 January 1998, Reports 1998 -I.

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must accordingly satisfy the requirements of paragraph 2 of that provision …” 34 In Freedom and
Democracy Party (ÖZDEP) v. Turkey , the Court affirmed the nexus between the freedom of
association and the fr eedom of speech (Article 10 of the ECHR): “Article 11 must also be considered in
light of Article 10. The protection of opinions and the freedom to express them is one of the
objectives of the freedoms of assembly and association as enshrined in Article 1 1. That applies all the
more in relation to political parties in view of their essential role in ensuring pluralism and
democracy.” 35 By finding in UCP and ÖZDEP that the protection of Article 11 extends throughout the
life of an association, the Court ha s effectively conferred the protections of the right to freedom of
association on legal entities. 36

In sum, the position that CSOs, as legal entities expressive of the freedom of association, have rig hts in and of
themselves is increasingly via ble. Because of European Court case -law, the argument is strongest in the
European context, but defensible more broadly as well. The usefulness of such arguments, however, w ill
likely depend on the national context within which CSOs are operating.
B. N ational Legal and Regulatory Framework Affecting CSOs
The relevance and impact of international law varies from country to country. 37 Civil society organizations
operate within the framework created by national law and regulation in their respective countr ies. The
overarching framework at the national level for most countries is the constitution, although there i s often a
34 UCP, European Court of Human Rights, (133/1996/752/951) (Grand Chamber decision, January 30, 1998) ( “The right guaranteed by
Article 11 would be largely theoretical and illusory if it were limited to the founding of an associ ation, since the national authorities
could immediately disband the association without having to comply with the Convention. It follo ws that the protection afforded by
Article 11 lasts for an association’s entire life and that dissolution of an association by a countr y’s authorities must acco rdingly satisfy
the requirements of paragraph 2 of that provision. . . .”)
35 OZDEP, European Cou rt of Human Rights, (93 1998/22/95/784) (Grand Chamber decision, December 8, 1999). 36 Leon Irish and Karla Simon, Recent Developments regarding the “Neglected Right”, International Journ al for Not -for -Profit Law,
Volume 3, Issue 2 (December 2000). 37 The in ternational legal system assumes that the rule of international law applies in internal law. However , since many internationa l
rules can only be effectively enforced through domestic law mechanisms, the internal law view regard ing the implementation of
int ernational law is significant. There are two traditional schools of thought on this matter. Monism h olds that all law is part of a
universal legal order, and that therefore international law automatically applies in the domestic le gal order. Dualism is the theory that
international law and domestic law are separate bodies of law. Rules of international law therefore must be actively incorpor ated into
domestic law before they become effective in a particular jurisdiction.
European Court of Human Rights
Notable decisions relating to freedom of association include:
 United Communist Party of Turkey and Others v. Turkey (30 January 1998)
 Socialist Party and Others v. Turkey (25 May 1998)
 Sidiropoul os and Others v. Greece (10 July 1998)
 Freedom and Democracy Party (OZDEP) v. Turkey (8 December 1999)
 Stankov and the United Macedonian Organization Ilinden v. Bulgaria (2 October 2001)
 Refah Partisi and others v. Turkey (13 February 2003)
 Gorzelik and ot hers v. Poland (17 February 2004)
 Moscow Branch of the Salvation Army v. Russia (5 October 2006)

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huge discrepancy between constitutional rhetoric and actual practices. Flowing from the constitutio nal
context, the national -level lega l framework may consist of laws and regulations, executive orders and
administrative directives, as well as judicial decisions interpreting that body of law. National la w is often
bound, at least in writing, by the confines of applicable international leg al instruments, although this is
certainly not always the case in practice. Of course, the precise contours of the legal framework v ary
considerably from country to country and depend on a variety of factors. The sections below examine some
of the most c ommon features of the legal and regulatory framework affecting civil society.
1) Constitution
The fundamental freedoms relating to opinion, speech, assembly and association are often codified in national
constitutions. Human rights codified at the national level as constitutional or fundamental rights grant
protection against arbitrary interference by the State but also entail certain obligations by the St ate to fulfill
and protect these rights with respect to third parties. The precise wording of such cons titutional protections
varies from country to country. In some countries, the fundamental freedoms extend to citizens only , but
more broadly in other countries to non -citizens as well. 38 In most countries, the fundamental freedoms of
association and expre ssion are not absolute; constitutions often articulate specific limitations in the language
of the constitution itself. Specific examples of constitutional language applicable to the freedom of
association in particular are contained in the following box.
While constitutions may contain empowering language, they are often undermined through disabling or
inadequate sub -constitutional laws and regulations, or by poor or inadequate implementation. As but one
example, North Korea protects the right to free ass ociation in its constitution (“Citizens are guaranteed
freedom of speech, of the press, of assembly, demonstration and association” 39), but not in actual practice. 40
It is the framework of sub -constitutional laws – including, of course, citizen access to and understanding of
these laws as well as their practical implementation – that, in most cases, determines the actual scope and real
meaning of free association.
2) Sub -Constitutional Laws and Regulations
Within the constitutional framework, the legislative and regulatory system consists of laws and regulations
governing various forms of CSOs, and may also include executive orders and administrative directives , as well
as judicial decisions. Indeed, it is the sub -constitutional legal framework that defines the organizational forms
which civil society can assume.
Regardless of the number of underlying CSO forms, the legal framework will typically 41 address a wide range
of issues relating to the life -cycle of a CSO, the fiscal treatment of CSOs, relations between the state and the
civic sector, and public participation. Not surprisingly, there is no single piece of legislation t hat can embrace
such a wide range of issues.
38 For example, Bulgaria and Romania extends the constitutional protection of these freedoms to citizens only, but the Czech Republic,
Hungary, Poland and Slovakia extend these constitutional freedoms more broadly to everyone.
39 Article 67, Constitution of the Democratic People’s Republic of Korea, amended and adopted on 5 September 1998. 40 According to the U.S. State Department Country Report on Human Rights Practices for North Korea (200 6): “ The constitution
provides for freedom of association; however, the government failed to respect this provision in practice. There were no known
organizations other than those created by the government. Professional associations existed primaril y to facilitate governmen t
monitoring and control over organization members.” 41 Laws and country reports have been collected from over 150 countries and analyzed to ascertain preva iling international pract ices.
Access to information about various countries can be obtained through ICNL .

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Rather, depending on the country and legal traditions, the re is likely to be a complex web of legal sources that
may include civil code provisions, laws relating to various organizational forms, tax law, labor law , criminal
law, as well as regulations, decrees, and possibly court decisions that will likely have d irect or indirect
influence on the existence, operations and activities of CSOs.
Constitutional Protections
 Argentina Art. 14: All inhabitants of the Nation are entitled to the following rights, in accordance
with laws that regulate their exercise, namely: to associate for useful purposes.
 Brazil : Art. 5 (XVII): Freedom of association for lawful purposes is fully guaranteed, any
paramilitary association being forbidden.
 People’s Republic of China : Article 35. Freedom of speech, press, assem bly: Citizens of the
People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of
procession and of demonstration.
 India : Article 19(1)(c): All citizens shall have the right to form associations or unions.
 Indonesia : Th e second amendment to the 1945 Constitution guarantees the freedom of
association (Article 28) and freedom of expression (Article 28E section (3)). The Constitution
also , however, states that those rights can be limited for “satisfying just demands based upon
considerations of morality, religious values, security and public order in a democratic society”
(Article 28J section (2)).
 Mexico : Article 9: The right to assemble or associate peaceably for any lawful purpose cannot be
restricted; but only citizens of the Republic may do so to take part in the political affairs of the
country. No armed deliberative meeting is authorized.
 Nigeria : Art. 40: Every person shall be ent itled to assemble freely and associate with other
persons, and in particular he may form or belong to any political party, trade union or any other
association for the protection of his interests: Provided that the provisions of this section shall
not dero gate from the powers conferred by this Constitution on the Independent National
Electoral Commission with respect to political parties to which that Commission does not accord
recognition. Art 45: (1) Nothing in sections 37, 38, 39, 40 and 41 of this Cons titution shall
invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of
defence, public safety, public order, public morality or public health; or (b) for the purpose of
protecting the rights and freedom or other per sons
 Philippines : SEC. 8: The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall not be
abridged.
 South Africa: Art 18: Everyone has the right t o freedom of association.
 Uganda : Art V (ii): The State shall guarantee and respect the independence of nongovernmental
organisations which protect and promote human rights.
 Viet Nam : Art 69: The citizen shall enjoy freedom of opinion and speech, freedom o f the press,
the right to be informed, and the right to assemble, form associations and hold demonstrations
in accordance with the provisions of law.
 Interestingly, Montenegro’s 1992 Constitution guarantees “national and ethnic groups the right
to establis h educational, cultural and religious associations, with the financial support of the
State ” (emphasis added) (Article 70, Constitution of Montenegro, 1992).

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The following chart (page 20) illustrates some of the issues commonly regulated, as divided into fou r (4)
clusters (column 1), and the various laws and regulations in the le gal framework that may govern each cluster
of issues (column 2).

C. Unpacking the Components of Civil Society Law
The legal and regulatory framework addresses a range of fundamental issues, including, as suggested above:
the life -cycle of a CSO, the fisc al treatment of CSOs, relations between the state and the civic sector, and
public participation. In this section, we will examine some of the key features of the life -cycle of a CSO.
1) Characteristics of a CSO
As mentioned above, there are a wide range of legal organizational forms . Religiously -affiliated NGOs are not
listed as a specific category as they are typically established under the framework for secular, not -for -profit
organizations. Indeed, it is considered international good practice not to imp ose a special regulatory regime
on these organizations. In this way, religion -based NGOs are simply subject to the same rules applicable to
other not -for -profit organizations. 42

Regardless of the organizational form, however, all CSOs (as defined for pur poses of this Guide) share a
fundamental defining characteristic: the non -distribution principle (or constraint). The non -distribution
constraint is the single most important feature that distinguishes CSOs from for -profit organizations. The
principle proh ibits the distribution of net earnings, assets or profits to any founder, director, officer, member,
employee or donor of a CSO. In this way, the constraint seeks to ensure that all assets, earnings an d profits
shall be used to support the not -for -profit p urposes of the CSO. Of course, the principle does not prevent the
payment of reasonable compensation for work performed. 43
To reinforce the non -distribution constraint, national law may also include other prohibitions:
 Prohibition on private inurement. P rivate inurement happens when an insider — an individual who
has significant influence over the organization — enters into an arrangement with the CSO and
receives benefits greater than she or he provides in return. The most common example is excessive
42 For more information on international standards and country reports relating to the freedom of relig ion, see the Office of the UN
High Commissioner for Human Rights and the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion and Belief . Also see this
database of legislative texts and oth er documents relating to this issue. 43 For more on the non -distribution principle, see the UN Nonprofit Handbook Project , Johns Hopkins Center for Civil Society Studies, ©
2003 United Nations, pages 16 -18; Guidelines for Laws Affecting Civic Organizations , by Leon Irish, Robert Kushen, Karla Simon, © 2004
Open Society Institute, page 48.
Organizational Forms (illustrative list only)
 Association: membership -based
 Foundation: non -membe rship, often property -based
 Not -for -profit company: companies limited by the non -distribution constraint
 Trust: legal device used to set aside money or property of one person for the benefit of one or more persons
or organizations
 Charity: legal form for v oluntary organizations common in Britain and some Commonwealth countries.
 Specialized forms: public benefit companies, funds, centers/institutes, societies, humanitarian orga nizations,
etc.

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compensation, but may also include special personal benefits, such as scholarships for relatives.
 Prohibition on se lf-dealing. Self -dealing may result where an insider undertakes a transaction that
constitutes an unreasonable benefit to an individual, often to the detriment of the CSO. For exampl e,
the founder of a CSO could arrange for the CSO to purchase an asset fr om him or her at an inflated
price, or purchase an asset from the CSO at a fraction of its actual value. 44
44 For more detail on these prohibi tions, see Guidelines for Laws Affecting Civic Organizations , © 2004 Open Society Institute, pages 47 –
51.
General life -cycle issues :
 Definition of CSO organizational type;
 Establishment;
 Registration;
 Internal structure and governance;
 Activities;
 External supervision, including reporting and
auditing;
 Termination, dissolution and liquidation;
 Foreign civic or ganizations.
Regulated potentially by :
 Civil Code;
 Specific legislation governing various
organizational types (laws on associations and
foundations, for example)
 Legislation governing companies or corporate
forms;
 Industrial relations acts (relating to tr ade unions).
 Licensing laws (for certain activities)
Fiscal Regulation of CSOs:
 Public benefit (or charitable) status;
 Income or profits tax exemptions for CSOs;
 Income or profits tax preferences for donations;
 Economic activities and the taxation of inco me
from economic activities;
 VAT and customs duties;
 Government funding
 Investment income;
 Fundraising (public collections).
Regulated potentially by:
 Public benefit legislation;
 Income tax law;
 Law on VAT;
 Law on customs duties;
 Law on fundraising (public collections);
 Budgetary appropriations acts;
 Finance and audit acts;
 Land (duties and taxes) act.
State / Civic Sector Relations:
 Registration;
 External supervision, including reporting and
auditing;
 Public policy / political activities;
 State subsidies, grants and contracts;
 QUANGOs and GONGOs;
 Policy documents for cooperation;
 Liaison offices.
Regulated potentially by:
 All of the laws/regulations listed above;
 Local government act;
 Law on public procurement;
 Laws on social assistance, healthcare, educat ion;
 Laws establishing various kinds of not -for -profit
organizations, often considered QUANGOs or
GONGOs;
 Policy documents for cooperation.
Public Participation:
 Public policy / political activities;
 Receipt of information;
 Consultations;
 Active participa tion.
Regulated potentially by:
 Freedom of information laws;
 Acts on decisional transparency;
 Legislative process rules;
 Government policy.

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2) Legal Existence
Typically, the law defines criteria for the formation of various types of CSOs. The criteria vary widely
according to organizatio nal type, but often address the following questions, among others:
 For membership CSOs, what is the required minimum number of members?
 For some non -membership CSOs, what is the required minimum amount of initial property?
 Who may serve as founders of the CSO?
 What purposes are permissible for the CSO to pursue?
 What documents – establishment act, statute, etc. – are required to establish a CSO?
Once formed, many CSOs will want to be recognized as a legal entity . Recognition of legal person status may
flo w automatically upon establishment (that is, simply as a consequence of having a written charter), o r by
completing a simple and wholly voluntary notification procedure (that is, through a declaration to a
government entity that publicizes or enters into a public registry identifying information regarding the
organization). Such is the case for associations in a number of European countries. In many other countries,
however, legal entity status is dependent on a process of registration. Registration is so metimes made
mandatory for all CSOs, but more typically, is considered voluntary. 45
The law may vest registration authority into any of a variety of government organs, including a mini stry, the
courts, or an independent commission. Registration usually re quires the submission of documentation
including the establishment document and governing rules of the organization, as well as an applicat ion. Well –
drafted laws also include a number of procedural safeguards, including:
 A reasonable, fixed time period for governmental review of registration applications;
 In some cases, a rule of presumptive registration if the government fails to act within the fixed ti me
period;
 Clear, objective grounds for denial of registration;
 The requirement of written notice to the applicant of the decision on denial;
 The right to appeal the denial of registration to an independent court.
The termination and dissolution of CSOs is commonly addressed by the legal framework. Termination may
follow the voluntary decision of the CSO or may result from government or court order (involuntary
termination). The grounds for termination in well -drafted laws are clear, objective and exhaustive. Among
others, the grounds for termination might include:
 The failure to remedy an ongoing significant violation of law, following notification and the
opportunity to correct the problem;
 Declaration of bankruptcy;
 Inactivity, often measured through the failure to file reports.
45 To be consistent with international legal norms, registration should be voluntary. Mandatory registration, especially where
supported by fines for unregistered activities, is almost certainly a violation of freedom of associ ation principles.
Non -Distribution Principle
 No distribution of net earnings, asset s or profits is permitted to any founder, director, officer, member,
employee or donor of the CSO.
 Instead, the assets, earnings and profits shall be used to support not -for -profit purposes of the CSO.
 The constraint does not prevent the payment of reasona ble compensation for work performed by employees
or others on behalf of the CSO, although the definition of ‘reasonable’ is debated in some contexts.

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Following the dissolution of the organization, the assets are liquidated and transferred. After payment to
creditors, CSO assets are often channeled to a CSO with the same or similar purpose. In exceptional cases, the
assets are absorbed by the state. The prohibition against reversion of assets prevents assets being claimed by
CSO insiders.
3) Structure and Governance
The internal structure and governance of a CSO is determined by rules flowing from at least four (4) different
sources 46:
 Legal requirements;
 Voluntary standards set by umbrella organizations 47;
 Donors and supporters of a CSO;
 The purely discretionary choices of the CSO itself, as expressed through its membership, board of
directors, or other governing body.
46 See Guidelines for Laws Affectin g Civic Organizations , © 2004 Open Society Institute, page 39. 47 See list of various codes of ethics and codes of conduct adopted by international organizations or n ational umbrella groups a t
CIVICUS here .
What are the advantages of legal entity status?
Legal entity status confers definite benefits on a CSO:
 The ability to open a bank account, employ staff and have assets in its own name.
 Limited personal liability for the board members and staff of the CSO.
 A stronger position to seek and secure funding, as donors generally have more confidence in a
CSO with l egal entity status and many are only able to fund such organizations.
What are the disadvantages?
At the same time, there may be good reasons why a CSO would opt against seeking registration
(although this option is not always available):
 The expenditures (preparing paperwork, registration fee) and the time spent to file for
registration.
 Potential reporting and/or tax implications as a registered legal entity.
 If a group is small, does not manage money, or does not plan economic activity or to attract
gra nts or donations, it may not make sense to be registered.
 In restrictive environments, registration may be perceived as a means of government monitoring
and control over NGO activities.
 In certain contexts, local and national indigenous peoples’ organizat ions may prefer to operate
according to indigenous peoples’ governance systems rather than a legislative system perceived
as being imposed from outside.

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Well -drafted laws and regulations typically set the minimum standards for the structure and governance of
the organi zation, while leaving room for discretion to the CSO to adapt its structure according to its mission
and means. Certainly, different forms of CSOs will have different internal structures. For example ,
associations are generally governed by the assembly o f members, while foundations are governed by a board
of directors. That said, certain internal governance rules may be broadly applicable to all forms o f CSOs.

4) CSO Activities
A CSO with legal person status generally has the same rights and responsibiliti es as other legal entities. For
example, a CSO (with legal person status) is generally able to enter into contracts, own property, h ire
employees, maintain a bank account, lease office space, sue and be sued, etc., in its own name. CSOs engaged
in activiti es subject to licensing or regulation by a government agency (such as health care, education and
social services) are generally subject to the same licensing and permit requirements applicable to i ndividuals,
legal entities and business entities. Special r ules may apply, however, to certain defined areas of CSO activity ,
namely public benefit activities, political activities, and economic activities. 48
Most regulatory systems allow some organizations, based on their purposes and activities, to be reco gnize d
as “ public benefit organizations ” for the purpose of receiving special benefits from the state, such as special
tax benefits or the right to compete for certain state contracts. Depending on the regulatory appro ach, CSOs
pursuing such purposes and activ ities may alternatively be called “tax -exempt” organizations or “charities.”
Recognition may be extended by the tax authorities, by a designated ministry or ministerial departme nt, by
the courts, or by a special commission set up for that purpose. The qual ifying activities and criteria vary widely
48 See Guidelines for Laws Affecting Civic Organizations , © 2004 Open Society Institute, pages 53 -59.
Good Governance Principles
The following “good governance” provisions are among the best regulatory p ractices included in
CSO legislation:
 The highest governing body of the CSO, its powers and duties, and the minimum number of
times it must meet each year;
 Other governing bodies, the basic powers and responsibilities of each, as well as their relation
to the highest governing body and to each other;
 Duties of loyalty, diligence and confidentiality applicable to officers and board members of a
CSO;
 Provisions clarifying the liability of CSO officers, directors, employees, which often insulate
these individu als from personal liability, except in cases of willful or gross negligence;
 Prohibition on conflicts of interest, requiring officers, board members and employees to avoid
any actual or potential conflict between their personal or business interests and th e interests
of the CSO.
 Record -keeping requirements to ensure that CSOs maintain records relating to finances and
activities;
 Internal reporting requirements, with the submission of activity and finance reports to the
highest governing body for review and approval;
 Prohibitions on private inurement and self -dealing.

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from country to country, as do the procedures for recognition, the corresponding benefits and accomp anying
accountability standards. 49
In the sphere of political and/or public policy activities , countries adopt a wide variety of different regulatory
approaches. Most commonly, CSOs are permitted to engage in public policy activities, which might inc lude,
among others, research and education, advocacy, and the publication of policy papers. Indeed, to be
consistent w ith international norms relating to the freedom of speech, CSOs should, like any individual, be
able to speak out on all matters of public significance, including existing or proposed legislation, state actions
and policies, and state officials or candidat es for public office. Restrictions are often, though not always,
imposed to prevent CSOs from electioneering activities, such as campaigning and/or fundraising for p olitical
parties or candidates.
Economic activities may be defined as regularly pursued tra de or business involving the sale of goods and
services. Here again, we find a variety of regulatory approaches regarding the permissible extent of economic
activity. Generally, CSOs are permitted to engage directly in the sale of goods and services (parti cularly those
related to the mission of the organization). The taxation of income from economic activities is a re lated, but
separate issue, and is beyond the scope of this paper.

5) Transparency and Accountability
The transparency and accountability of CSOs should, ideally, be a shared goal of government and CSOs,
donors and beneficiaries of CSOs. As with internal governance – which is a fundamental starting point for
transparent and accountable CSOs – the law may have a critical role to play in setting stan dards of
transparency and accountability. It is important to re -emphasize, however, that international law creates a
presumption against any state regulation that would amount to a restriction of recognized rights, in cluding
the right to freedom of associa tion. International actors supporting reform processes must help guard against
government efforts to stifle the sector through legal regulations justified by calls for transparenc y and
accountability.
A common regulatory tool used by governments to help e nsure accountability is to require the submission of
reports. The issue of reporting requirements is complex, especially when considering the diverse ran ge of
organizations within civil society. Many, if not most, CSOs are small, community -based organizati ons that may
or may not be registered, often rely to some extent on volunteer services rather than paid employees , and
receive little to no public funding, whether in the form of tax exemptions or direct subsidies or gr ants; such
CSOs are typically not req uired to submit reports to government. Other CSOs are professional organizations
with offices, paid staff and large budgets. They will likely be registered and may be benefiting fro m fiscal
privileges, in the form of tax exemptions or government grants; su ch CSOs are typically required to submit
activity and financial reports on a regular basis. The regulatory challenge with reporting requireme nts is
developing and implementing a system that recognizes the diversity of civil society and imposes supe rvisory
requirements where necessary in a democratic society to meet a legitimate government interest. The O pen
Society Institute’s Guidelines for Laws Affecting Civic Organizations provide more information on how the legal
framework can help support transparency and accountability. 50 It is also worth noting the ongoing debate
relating to broader issues of NGO accountability. 51
49 For more information on the legal framework for public benefit organizati ons, see ICNL here . 50 See Guidelines for Laws Affecting Civic Organizations , © 2004 Open Society Institute, pages 65 -75. 51 See, e.g ., Jem Bendell, Debating NGO Accountability , © 2006 UN ; Kumi Naidoo, “Civil Society Accountability: Who Guards the
Guardians? © 2003 CIVICUS: World Alliance for Citizen Participation; Gary Johns, NGO Way to Go: Political Accountability of Non –
Governmental Organizations in a Democratic Societ y, © 2000 Institute for Public Affairs (); Hugo Slim, By What Authority? The Legitimacy
and Accountability of Non -Governmental Organisations , © 2002, International Council on Huma n Rights Policy.

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Finally, it is worth noting that an enabling legal framework can and should also allow for, and poss ibly even
encourage, voluntary self -regu lation. Through voluntary self -regulation, CSOs can set and follow higher
standards of conduct and performance. Umbrella organizations representing the sector as a whole or s ome
sub -sector (e.g., CSOs pursuing children rights) will sometimes play a leaders hip role in this respect. An
individual organization may choose to adopt its own internal code of conduct. Any successful self -regulatory
initiative will need to consider the incentives for signing up to standards of governance more rigor ous than
the law r equires, and also the issue of monitoring and enforcement. 52

D. Importance of Legal and Regulatory Framework to Civil Society

1) Enabling or Restrictive Legal and Regulatory Frameworks
The precise impact of the legal framework on the development of civil s ociety – and on the health, vibrancy
and sustainability of the civic sector – may be difficult to measure. 53 Certainly, the legal framework is only one
factor among many that influence the scope and strength of civil society in any given country. Polit ical ,
cultural, historical, and economic factors also play defining roles.
That the application of the law has a direct impact on civil society, however, is indisputable. The legal
framework and the way that it is applied directly affect the ability of a CSO to form, operate and sustain itself.
The sector as a whole has the capacity to engage citizens, deliver services, interact with the state , and
otherwise participate in social, political and economic life. Taken together, these activities help advance
democratic development, service delivery, and other macro -level objectives.
One may conceive of the law as providing legal space – in the same way that a public building provides
architectural space – within which individuals may act through CSOs to address a wide range of mutual benefit
and public benefit goals. That legal space may be open, broadly accessible, supportive and enabling, or it may
be closed, difficult to access, constraining, and inhibitive. The former springs from an enabling legal
framework , and the latter from a restrictive legal framework.
More recently, law has been used as the tool of choice by governments to constrict the space availab le for
civil society, to create barriers against their activities and funding sources and to threaten t heir very existence.
Through such regulatory burdens, governments have moved to weaken and undermine the often nascent ci vil
society in their countries. The regulatory burdens can take many forms – barriers to establishment, barriers to
registration, gover nment interference in the internal affairs of CSOs, excessive taxation, barriers to foreign
funding, punitive sanctions, and other legal constraints. But the negative impact, demonstrated thr ough the
reduced ability of CSOs to participate meaningfully on issues of public importance, and through their struggle
to survive at all, is clear .
52 For a database and global interactive map of civil society self -regulatory initiatives, see One World Trust .
53 Noteworthy indices have sought to assess the impact of legal and regu latory reform. These include, e.g., the Johns Hopkins
University (Center for Civil Society Studies) Comparative Nonprofit Sector Project , the CIVICUS Civil Society Index , and the USAID NGO
Sustainability Index .

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2) The Implementation Process
The strength and viability of civil society is not merely a question of the legal framework, and the degree to
which it is enabling versus restrictive. It is also a question, of course, of implementation. A sou nd, well -drafted
law may be poorly or inadequately implemented or not implemented at all. Of course, judges and lawyers play
a key role in applying the laws.

Civil Society Sector
 Enhanced public participation
 Meeting social needs, including through service delivery
 Giving voice to vulnerable groups.
 Monitoring of government performance
 Financial sustainability of sector (not necessarily self -sustaining)
 Partnership with State and Business

Individual Civil Society Organizations
 Ease of establishment as organizational entity
 Internal governance standards
 Ability to engage in full range of activities, including adv ocacy and service
delivery, to fulfill mission
 Ability to seek and secure resources through economic activity, private giving
and government funding
 Ability to participate in policy -making
Support Social and
Economic Dev elopment
Measuring the CSO Legal Environment
Noteworthy indices have sought to assess the impact of legal and regulatory reform on
civil society. These include, for example:
 The Comparative Nonprofit Sector Project , Johns Hopkins University
 Civil Society Index , CIVICUS
 NGO Sustainability Index , U.S. Agency for International Development
Support Democratic
Development

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At the same time, however, poor, inadequate and even constraining legislation may be progressively
implemented.

Progressive Implementation
 Hungary : The legal framework in Hungary does not provide for the registration of a branch office of a
foreign CSO; there is simply a gap in the law. In re sponse, the government in Hungary has facilitated the
operation of foreign CSOs in Hungary by allowing them to register as a non -profit branch office of a
commercial company. The legal barrier has thus been dissolved through a practical approach to the
problem.
 Lebanon : The legal framework affecting CSOs in Lebanon is based on a 1909 Ottoman -era Law on
Associations. Not surprisingly, the Law defines outdated registration procedures, requiring associa tions to
apply to the Ottoman Imperial Authority, to p ay the registration fee in the Ottoman -era currency, etc. The
Lebanese Interior Ministry has issued guidelines to “interpret” the Law; throughout most of Lebanon’s
modern history, the guidelines interpreted the Law regressively, burdening CSOs. More rece ntly, the new
Interior Minister Dr. Ahmad Fatfat has issued more progressive guidelines, requiring only notificati on rather
than approval at the registration phase.
 Ukraine : The Law on Public Associations prohibits associations from engaging in economic ac tivities and
limits activities according to the territorial status of associations. Neither provision is current ly being
enforced by the government.
Implementation Challenges
 Bosnia and Herzegovina : The 2001 Law on Associations and Foundations in Bosnia and Herzegovina is
considered to be a well -drafted, enabling piece of legislation, which provides for a clear, simple,
straightforward registration process at the state level. [See note] The state -level implementation, however,
has been routinely problema tic, as the registration officials have routinely denied registration to applicants
(such as trade unions or associations of legal entities), even though clearly allowed under the Law.
 The Palestinian Territories : Law No. 1 of 2000, the Law of Charitable A ssociations and Community
Organizations, is generally considered to be among the best CSO laws in the Arab world. It creates a
relatively liberal registration procedure and oversight mechanism. Unfortunately, however, the poli tical
circumstances have pre vented its effective implementation, and currently, the Hamas -led government is
opposed to the law and either ignores it or actively circumvents it.
 South Africa : Designed to create an enabling environment and encourage good governance for the civic
sector , the 1997 Nonprofit Organizations (NPO) Act provides certain categories of NPOs with tax and fiscal
benefits. Due to the immense backlog in registration applications, and poor administration, many NP Os
have not sought registration under the Act and there fore cannot access the fiscal benefits.
Note: Due to the constitutional structure of the Bosnian state, there are three (3) laws on associat ions and
foundations, one applicable to the Republic of Srpska, one applicable to the Federation of Bosnia & Herzego vina, and
one applicable to the State of Bosnia. Here we are referring to the latter

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In sum, the question of implementation – and the degree to which a law is fairly, objectively and apolitically
applied – is just as important as the legal framework itself and how well it reads on paper.
III. Overview of Legal Environments in Selected Countries
This section contains four (4) case studies or, more accurately, country studies that examine, brief ly, the legal
fra mework governing CSOs in each country, highlight the key legal reform challenges, and describe the
strategies that were used or are being used to address those challenges.
The countries selected – Afghanistan, Liberia, Mauritius and Serbia – represent a broad geographic range and
a diverse range of legal reform challenges. As a post -conflict country, Afghanistan offers a glimpse of the
tremendous pressures which can surround the legal reform process where CSOs are perceived as absorbi ng
substantial amount s of incoming foreign donor aid flows. Liberia is also struggling with similar issues. As a
middle -income island nation of 1.2 million people, Mauritius has a civil society sector that is comparatively well –
developed and supported by a more progressive leg al framework; yet economic changes are creating new
tensions in society and the need for improved CSO capacity is increasing. In its transition from an
authoritarian regime to a struggling young democracy, legal reform efforts in Serbia have, until just r ecently,
been frustrated by the political wrangling of the elite. By examining each country closely, we hope to draw
lessons of broader application.

A. Afghanistan

1) Legal Reform Challenges
In the years immediately following the fall of the Taliban (from 2001 -2005), there were two available
organizational forms for those civic groups seeking legal entity status: social organizations and no n-
governmental organizations (“NGOs”). Most organizations, including all foreign organizations, were
registered as NGOs, a nd governed by the Taliban -issued Regulation on the Activities of Domestic and Foreign
Non -Governmental Organizations in Afghanistan .54 Indeed, as of June 2005, there were more than 2300
registered “NGOs” and approximately 400 registered social organizatio ns. Consequently, early reform efforts
addressed the Taliban Regulation on NGOs and sought to develop an improved legal framework for NGOs in
particular.
Unfortunately, however, NGOs found themselves operating in an environment increasingly marked by
susp icion, distrust, and even hostility toward NGOs and the sector as a whole. Many in the government an d
among the general public came to believe that NGOs were engaged in profit -making activities and siphoning
foreign aid money away from the Afghans for whom it was intended. NGOs became the scapegoat for a wide
range of perceived abuses.
Doubtless, actual incidents of abusive conduct lent credence to the negative perceptions. It is vir tually
certain, however, that the negative perceptions were rooted, at least in part, in misunderstanding regarding
the definition of who NGOs are, what they do and how they operate.
Arguably, the negative perception stemmed from the fact that donors often prefer to address reconstr uction
needs through NGOs rather than throu gh the young Afghan Government. It seems at least as likely, however,
that the inadequate legal framework for NGOs, carried over from the Taliban period, left NGOs to ope rate for
too long in an ambiguous, uncertain legal space and fueled the atmosphere of suspicion and distrust.
54 The Taliban Regulation was issued in 2000, in the Official Gazette No. 792.

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Specific problems included the following:
 NGOs were inadequately defined, leading to confusion about what was being regulated.
 Registration criteria were not clear and were subject to arbitrary administrative discretion, withou t
time limits for final action or the right to administrative or judicial review.
 Internal governance rules were not prescribed, even by title, and no requirements existed for intern al
accountability or responsibility, thereby undermining public trust in the transparency and
accountability of NGOs.
 Reporting and public accountability rules were draconian in form, but frequently not enforced, a
practice leading to uncertainty and potential arbitrary action by the authorities and evasion by the
sector.

1) Legal Reform Strategy
The Government recognized the importance of developing a comprehensive legal framework for NGOs in
Afghanistan early in the reconstruction period. Backed by the Ministry of Planning, a legislative d rafting group
was formed, com prised of key ministry representatives and representatives of the NGO sector. The working
Lessons Learned: Afghanistan
 The importance of political will .
The law drafting process in Afghanistan was initiated with the support of the Ministry of Planning ( then
responsible for the registration and supervision of NGOs), under whose leadership a cross -sectoral working
group was formed. The process – which led to the completion of an enabling draft law – was derailed due
to the change of leadership at the Ministry , and the appointment of a minister who not only opposed the
enactment of enabling legislation but also independently proposed a regressive law (which was loudly
opposed by CSOs in Afghanistan). It was only after this minister’s resignation (December 2004 ) that the
law reform process could be re -initiated.
 The importance of a cross -sectoral working group .
The 2002/2003 law drafting process was based, from the beginning, on a working group that included
representatives of both civil society and government . This led to a far more enabling draft than the
subsequent process in 2005, at which time the government assumed the drafting role and only later in vited
outside comment. The inclusion of CSOs from the outset is far more likely to lead to legislation th at is
responsive to the needs of both sectors.
 The importance of broader public input .
Efforts were made in both 2003 and 2005 to invite feedback and input from the wider CSO community. In
2003, this gave further legitimacy to the draft law; in 2005, while it was important in allowing CSOs to vent
concerns, it was insufficient to overcome the lack of engagement during the drafting process itself and to
lend legitimacy to the draft.
 The importance of donor support .
The donor community may have greater leverage and influence with the government than the CSO
community. This leverage can be applied, if properly coordinated, for a potentially positive impact . In
2005, the provision excluding NGOs from bidding on government projects focused donor attentio n on the
draft law. It was the vocal opposition to this draft provision on the part of the donors, including UNAMA,
which led to the formation of a “joint task force” to prepare recommendations in relation to this pr ovision
and the draft generally. The d onor recommendation led to the elimination of the bidding exclusion.

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group prepared a progressive draft Law on NGOs, which was circulated widely to NGOs throughout the
country. Based on feedback from NGOs, the draft Law was revised an d refined before being submitted to the
Ministry of Planning in July 2003. Thus, the July 2003 draft Law was the product of a broadly inclu sive and
deeply participatory process, which included both NGOs and government officials. Unfortunately, due in part
to the changes in personnel at the Ministry, the draft Law was not enacted and reform efforts stalle d.
Subsequently, in January 2005, the newly elected Afghan Government placed priority on the enactment of a
new NGO law. The Ministry of Economy issued a n ew draft law in February 2005. The draft Law was based in
part on the 2003 draft, but also included significant differences that sought to control and sometim es stifle
NGO activity. In response to objections from the NGO sector as well as the internationa l community, the
Government undertook to refine the draft Law and invited feedback from the NGO sector and internatio nal
donors. As a result of this process, the draft Law underwent a series of revisions between February and June
2005.
President Karzai si gned the new Law on NGOs in June 2005. Unlike the Taliban Regulation, the new Law
complies with international standards and good regulatory practices in a number of critical areas. T hat said,
certain burdensome provisions in the Law and the implementation of the Law remain problematic.
B. Liberia

1) Legal Reform Challenge
During two decades of unrest and civil war (1989 -2003) in Liberia, civil society organizations stepped in to
provide basic services and aid to people when state governance structures and systems failed. CSOs were also
at the forefront of the pro -democracy movement and advocated for basic human rights. Their increased role
in service delivery and humanitarian assistance led to proliferation in numbers – at one point, over 1000 NGOs
operate d in Liberia, which has a population of just over 3 million people. A lack of clear guidelines and
insufficient coordination between various line ministries and oversight of the sector resulted in bo th confusion
and abuse. In addition, the lack of NGO acco untability towards their beneficiaries led to question being raised
by the public on the nature and sustainability of NGO work.
The following challenges existed:
 The absence of clear guidelines for NGOs on how to obtain incorporation (registration) and
accreditation, which resulted in proliferation of NGOs, including so -called ‘briefcase NGOs’.
 The lack of centralized reporting mechanisms, which resulted in demands from different government
institutions for the submission of various reports from NGOs.
 Increased demands from the NGO sector to clarify procedures on various issues relating to their day to
day operations, including on personnel, immigration, taxation, duty waivers and other logistics
including storage and transportation.
 The need for impr oved transparency and accountability of the NGO sector.
 The need to build an effective partnership mechanism between NGOs and the Government of Liberia
(GoL) to enhance civic engagement in the defining national development agenda and reform
processes.
2) Le gal Reform Strategy
Efforts were made in the 1980s to develop guidelines for the operation of Private Voluntary Organiza tions
(PVOs). Although guidelines were adopted in 1988, they were largely not operational due to the civil war.
Further attempts were ma de in 2000, 2001 and 2005 to develop an NGO policy. A draft version was developed
in 2005 during the transition government but it was never adopted.

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In 2005, UNDP supported the mapping of civil society organizations. The final report of the mapping ex ercise
highlighted the need for UNDP’s involvement in developing a policy framework to ensure legal space a nd the
guarantees needed for CSOs, and NGOs in particular, to operate.
The first post -war democratically elected government in 2006 recognized the significant role played by civil
society organizations, and in particular NGOs, in providing basic services and humanitarian aid and
acknowledged their continued importance in moving forward the national development agenda. Respondin g
to demands from the N GO sector as well as the general public, it therefore prioritized the development of an
NGO policy and guidelines to provide a policy framework for NGO operations in Liberia and this was r eflected
in the interim Poverty Reduction Strategy (iPRS, 2006).
The 1986 Constitution of Liberia guarantees the right to association, and therefore the policy framew ork
aimed to provide clear guidelines for the registration (incorporation) and oversight of NGO operatio ns. The
Ministry of Planning and Economic Affairs (M PEA) was mandated to monitor and evaluate the activities of
NGOs and enhance cooperation between GoL and NGOs and it requested UNDP’s assistance to formulate th e
policy.
Lessons Learned: Liberia
 The importance of identifying and working with champions within Government:
The policy process enjoyed sufficient political will as GoL prioritized it in its IP RS as a key deliverable. In
addition to widespread political will, the policy process also found champions within the MPEA. The Minister
and Deputy Minister of Planning and Economic Affairs understood the importance of engaging with civi l
society to develo p a fair policy that would provide a framework for NGO operations, strengthen the oversight
role of the Government, while also providing adequate space for NGOs to self -regulate. These champions
were able to address concerns and opposing views within the M inistry and in other line ministries and reach a
consensus within the Government on policy provisions.
 The importance of finding common ground among a cross -section of civil society organizations:
International NGOs were keen for the policy to address bas ic operational procedures – registration, taxation
and duty waivers – whereas national civil society organizations were focused on strengthening the nascent
democracy in Liberia and saw the policy process as a step towards it. They wanted to ensure that th e policy
did not over -regulate the activities of small NGOs but rather guaranteed their participation and engagement in
defining a national agenda. Reaching a common ground within the NGO sector was important for stronge r
dialogue with the Government. Thus , NGO self -regulation was proposed as an alternative to government
regulation. Participation in the national NGO Council (the proposed self -regulating and coordination body)
was suggested to be voluntary, as many international NGOs were unsure of participa ting in national self –
regulating mechanisms. The policy encouraged all accredited NGOs to become members of the NGO Counc il.
 The importance of addressing key concerns raised by stakeholders:
A key lesson is the importance of addressing the underlying concerns of various stakeholders, in order to
ensure their continued engagement during the policy development process, as well as for successful
implementation of the policy itself. It was crucial to address the issues of transparency and accoun tability of
the NGO sector. NGOs and the UN were successful in advocating for strengthening the capacity of NGOs to
self -regulate rather than for the government to have an extended oversight role where it might have to sp end
critical resources and capacity to monitor NGO projects and financial activities.
 The importance of continued support to implementation of NGO policy:
Support to legal frameworks for NGOs should extend to implementation of the framework to ensure thei r
effective and efficient implementation.

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UNDP responded to MPEA’s request and hired a consultant to produce a draft policy f ramework in 2007, after
a series of consultations with local, national and international NGOs, government agencies, donors a nd the UN
system.
MPEA also developed another draft version of the policy. The proposed provisions in the Ministry’s v ersion
severe ly curtailed the ability of NGOs to operate independently. Provisions ranged from submission of all
project proposals to the MPEA for approval prior to applying for funding to ad -hoc monitoring of NGO
activities by government officials.
The Ministry’s dra ft version created uproar within the NGO sector and the draft was severely criticized by
national and international NGOs. The UN system also submitted its comments to the Ministry and urged the
Ministry to develop guidelines that did not constrain both NGO activities and the Ministry’s capacity and
resources. UNDP and UNMIL played an important role in facilitating dialogue between national and
international NGOs and the concerned ministries. A working committee, chaired by MPEA, was set up wi th
representati ves of the Civil Society Advisory Committee (a consortium of 15 national umbrella organizations),
the Management and Steering Group (a consortium of international NGOs in Liberia), and representativ es of
various line ministries. UNDP and UNMIL also partici pated in the working committee, and UNDP provided
logistical support to these meetings. The members of the working committee negotiated every aspect o f the
policy and drafted a new NGO policy in July 2007. UNDP supported the CSO Advisory Committee to organ ise a
series of outreach workshops to present the draft policy to local civil society organizations in oth er regions of
Liberia and thus involve organizations outside the capital in the policy process. The final draft ve rsion was
validated at a national st akeholder meeting in January 2008. Following approval by the cabinet, the National
Policy on Non Governmental Organizations in Liberia came into effect in June 2008.
UNDP continues to provide technical and logistical support to both national NGOs and MPEA towards
effective implementation of the policy. It supported the signing of a Memorandum of Understanding be tween
22 key local NGOs and NGO networks to lead the consensus building processes to establish the NGO Cou ncil, a
self -regulating and coordinating body for NGOs. When formed, the Council will become a substantive
representative voice for NGOs in all types of engagement with Government and in national dialogue
processes. UNDP is also supporting the Governance Commission to build on the national policy to develop a
clear strategy for institutionalizing civic engagement in governance and development processes at lo cal and
national level.

C. Mauritius

1) Legal Reform Challenges
Since independence in 1968, Mauritius has developed from a low -income, agricul turally -based economy to a
middle -income diversified economy with growing industrial, financial and tourist sectors. The economic
transition has inevitably brought additional social pressures, which have caused the government to r ely more
heavily on civil society to meet public needs.
The legal framework for civil society in Mauritius has roots in both common law and civil law, as we ll as Islamic
legal traditions. This hybrid orientation is manifest in the range of available organizational form s for CSOs ,
including associations, youth organizations and clubs, sports clubs and federations, multi -sport organizations,
employees superannuation funds, non -profit companies, trusts, including charitable trusts, and “waqf” trusts,
among others.

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The overwhelming majority of CSOs in Mauritius are formed and registered as associations; nearly 8000
organizations are listed in the official registry, though estimates of the number of active associat ions vary.
While the law governing associations sets forth a workabl e legal framework, there are several critical areas for
improvement, including the following:
 The law provides insufficient procedural safeguards to ensure a speedy registration process.
 The law does not adequately address issues of transparency, good go vernance, and accountability.
 The fiscal framework commendably provides for a charitable status, which is linked with tax
exemptions, but the application procedures are unclear and there are no corresponding accountability
standards.
 Existing tax inc entives available to donors were eliminated for individual donors in 2006, and were
eliminated for corporations in 2007, thereby undermining the ability of CSOs to attract funds.

Les sons Learned: Mauritius
 The importance of a comprehensive strategy .
The legal reform process in Mauritius does not stand alone, but rather is part of a broad civil soci ety
strengthening project over several project cycles, which is examining government p olicy towards
civil society, corporate social responsibility, and the state of civil society generally through an
empirical study. The results of all these research pieces, among others, helped inform the research
base for the legal review. Having spent c onsiderable time in research, consultation and written
recommendations, the formation of the new, practical and implementation stage of the Legal
Review highlights how the entire process has been comprehensively planned and followed through.
 The importance of timing .
The law reform process in Mauritius is distinctive not only for being part of comprehensive strategy ,
but also for its recognition that the process needs time. The assessment of the current framework
and legal reform needs was prepared follo wing a 9 -month process, with multiple interviews and
focus group meetings, as well as a thorough review of the laws and regulations. It was also
recognized that the process needs time and activities around the drafting and revision of the bill
were spaced to ensure that it has greater legitimacy.
 The importance of broad public participation .
The findings of the legal review are based on an extensive process of information -gathering,
through a series of interviews and focus group meetings with both governme nt officials and CSO
representatives. In addition, the presentation of preliminary findings and recommendations at a
national workshop provided additional opportunity for public engagement in the process and led to
the refinement of the legal review. Th ere has also been a continuation of support to participation
in the legal review process in the form of practical awareness activities.
 The importance of technical assistance .
Mauritius has a well -developed legal system with strong roots in both the Fren ch civil law and British
common law systems. The national legal consultant tasked with preparing the legal review is an
experienced practicing lawyer and law professor, as well as Chief of the Law Reform Commission in
the country. Nonetheless, the introd uction of international comparative experience has proved
critical to provide a wider perspective into the strengths and weaknesses of the Mauritian legal
framework for civil society.

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2) Legal Reform Strategy
Recognizing the importance of the legal framework to the overall capacity, strength and viability of the civic
sector, and understanding the importance of a strong, capable civic sector to social and economic
development in Mauritius, the United Nations Development Programme (UNDP) in Mauritius conceived and
prepared a comprehensive civil society support project entitled Strengthening of the NGO Sector in Mauritius .
The three -year project (2005 -2007) was funded and administered by UNDP and implemented in partnership
with the Mauritius Council of Social S ervices (MACOSS) and the Ministry of Social Security, National Solidarity,
Senior Citizens Welfare and Reform Institutions (Ministry of Social Security). By strengthening the NGO sector,
the Project aimed to enhance its role as an able and meaningful partn er of government and the private sector
in the socio -economic development process of the country.
The review of the legal and regulatory framework affecting civil society was but one component of th e
overarching project. Other components included a partic ipatory civil society assessment using the Civil
Society Index tool, a complete review of the Mauritius Council of Social Services (MACOSS), a review of
corporate social responsibility (CSR) policies in Mauritian enterprises, and a review of the governm ent ’s policy
toward the civil society sector. The results of each of these project components fed into the legal review.
The legal assessment reviewed the legal and regulatory framework affecting all aspects of the NGO li fe-cycle –
that is, the definition, e xistence, internal governance, external supervision, and termination of NGOs, and their
funding and fiscal treatment. It was conducted by a National Legal Consultant and International Leg al
Consultant. The two lawyers worked together to gather and analyz e information from at least three sources:
1) Desk review of the laws and regulations, administrative directives and court decisions that impact o n
NGOs.
2) Field research conducted through consultations with the relevant stakeholders to help assess the
actual implementation practices.
3) A national workshop hosted by the project partners (UNDP, MACOSS and the Ministry of Social
Security), at which the preliminary findings and recommendations were presented for discussion.
Subsequently, a draft legal assessment report was prepared and disseminated to the project partners and
broader civil society community. The report examined a comprehensive range of issues, from freedom o f
association as protected by international law and the Constitution of Mauritius to an ove rview of the legal
framework governing the distinct legal forms of CSOs, from the ability of CSOs to engage in public p olicy
activities to economic activities, from the regulation of charitable status and tax treatment to the framework
for various kinds of direct financing for CSOs. The report closed with specific recommendations aimed at
improving the legal and regulatory framework. The drafters expressly invited feedback on the findin gs and
recommendations contained in that draft report, and the report was finalised in May 2008.
The Legal Assessment output from the Strengthening the NGO Sector in Mauritius (SNSM) project has be en
further developed and integrated into UNDP Mauritius’ next project cycle, entitled ‘Support to Inclu sive
Development’ (SID). The recommendations from the legal assessment have been drafted into a bill which, as
of May 2009, was undergoing processing at the ministerial level. In anticipation of the bill being p assed
through Cabinet, SID plans to carry out several workshops and aw areness activities to improve the impact of
the Legal Assessment from the SNSM project.

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D. Serbia

1) Legal Reform Challenges
Until July 2009, CSOs in Serbia operated under archaic laws enacted during the Socialist Federal Rep ublic of
Yugoslavia (SFRY), in cluding the following:
1) The Law on Association of Citizens in Associations, Social Organizations and Political Organizations
Established for the Territory of SFRY (1990);
2) The Law on Social Organizations and Associations of Citizens of the Socialist Republ ic of Serbia (1982);
and
3) The Law on Legacies, Foundations and Funds of the Republic of Serbia (1989).
These laws failed to provide a clear, comprehensive and enabling legal framework for CSOs in Serbia. Specific
shortcomings in the legal framework include d the following:
 Mandatory registration requirements for both associations and foundations;
 The failure to permit a foreign legal or natural person to be a founder of an association;
 The failure to permit foreign CSOs to establish a branch office in Serb ia;
 Broad discretionary power of the registration authorities (including a requirement that the
registration body determine the necessity of establishing a foundation);
 The requirement to register membership in international organizations.
 The concept of accepted public benefit purposes in the law is construed narrowly and does not
include a number of activities which are conventionally deemed to be public benefit.
2) Legal Reform Strategy
Since the ousting of Slobodan Milosevic in Serbia in 2000, there have been a number of initiatives to
modernize the legal framework in Serbia; only on July 8, 2009, was a new Law on Associations finally enacted.
Until that point, Serbia was among the few countries in Europe whose legal framework for NGOs has no t yet
undergon e comprehensive reform to bring it into compliance with international standards and regional best
practices.
Nonetheless, substantial progress has been made by civil society in Serbia, with the support of inte rnational
actors, and the experience gained in the process will be important in meeting future challenges. Most
legislative reform efforts to date have focused on revising the legal framework for associations. 55 In 2001, a
draft Law on Associations was prepared, and refined in 2002, with substantial input from the Council of
Europe and both international and Serbian NGOs. The draft Law then languished before the Serbian
Parliament and was subsequently withdrawn following early elections.

55 In addition, past or present law reform initiatives include the preparation of a draft Law on Foreign NGOs, a draft La w on
Endowments and Foundations, and a draft Law on Volunteerism. The two latter draft laws remain pendi ng.

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In November 2004, the Serbian Ministry for Administrati on and Local Self -Government (Ministry) re -started
the reform process by issuing a new draft Law on Associations. From the outset, the Ministry invited the
inclusion and participation of NGOs. First, the Ministry hosted a roundtable event on the new draft Law and
supported the formation of a working group consisting of local NGOs and an international expert. In April
2005, the Ministry issued a revised draft Law and requested comments from the NGO working group. In May
2005, the Ministry released a third v ersion of the draft Law, which largely included the comments of the NGO
working group. In November 2005, the Ministry, in collaboration with the Council of Europe and OSCE, hosted
a roundtable on the draft Law, to discuss the draft Law and comments submitt ed by the Council of Europe. In
addition to representatives of the host organizations, representatives of leading NGOs in Serbia, ac ademics,
and human right lawyers participated in the roundtable.
In March 2006, the Ministry re -convened a meeting of the working group, to present the revised version of
the draft Law, which the Government subsequently approved and submitted to the Parliament. In the
meantime, however, the Government lost majority support in the Parliament, leading to new general el ections
in January 2007. With the formation of a new Government in the spring of 2007, the draft Law on Ass ociations
was revived as a priority initiative, slightly revised by the Ministry, and received Government appr oval. It was
almost approved by the National A ssembly in December 2008, but was put on hold for procedural reasons.
With the recent amendment of the Rules of Procedure for the Serbian National Assembly, the Law on
Association was finally enacted on July 8, 2009.
Lessons Learned: Serbia
 The importance of political will.
In Serbia, th e lack of political will limited the ability of determined local reformers to realize the desired
reform. It is important to note that key government leaders and CSO representatives recognized the
need for reform and worked collaboratively to prepare the ground for reform, so that when the
opportunity arose, the draft Law was finally enacted.
 The importance of a cross -sectoral working group .
As in Afghanistan, we find that in Serbia the formation of a cross -sectoral working group from the outset
of the p rocess was crucial to the preparation of an enabling draft Law on Associations.
 The importance of broader public input .
Again, efforts were made to invite input and feedback on the draft Law by circulating the draft wide ly to
associations throughout Serb ia.
 The importance of engagement of multi -lateral institutions .
The Council of Europe and the Organization for Security and Cooperation in Europe (OSCE) have played
critical roles in the law drafting process by convening stakeholders and by commenting on the draft law
directly. Moreover, as a member of the Council of Europe (CoE) and aspirant to the European Union,
Serbia is normally attentive to the position of the CoE.

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IV. The Role of International Actors in Supporting a Conducive Civic Environment
This section seeks to describe the prerequisites for successful legal reform efforts, and the role t hat
international actors – those involved in the design and development of civil society related initiatives – can
play in working effectively toward the promotion of enabling legal environments for civil society. A s
mentioned earlier, legal reform is often only one step in a process designed to facilitate effective civil society
engagement in development and democ racy. International organizations should therefore consider how their
plans to support legal reform fit into their broader strategies for civil society support.
After examining certain threshold considerations, this section looks to reform strategies in three separate but
related areas: (1) improvements to the legal framework, (2) improvements in the implementation proce ss, and
(3) in especially difficult circumstances, potentially appropriate strategies to protect civil socie ty – or to lay the
foundation s for future reform.
A. Threshold Considerations

1) Political Will
In order to reform legal and regulatory acts, or to improve implementation, the government needs to
recognize the need and to prioritize the reform initiative over competing governmental priorities. This may
seem obvious, but is sometimes overlooked.

In some contexts, CSO representatives have launched reform initiatives without the support or partic ipation
of government. Such independent reform efforts may be subsequently endorsed by th e government. In other
cases, the government, even if initially supportive of the reform effort, and happy to be relieved o f the burden
of engagement on the issues, may later become concerned with the direction of the reform process, an d then
intervene to delay, obstruct or derail the reform process. Thus, the failure to secure government buy -in has in
many cases led to stalled reform efforts. In other cases, elections usher in new government official s who,
anxious to distinguish themselves from the efforts of their predecessors, may reject existing reform initiatives.
The challenge, of course, is to educate the government on the benefits of reform.
The Importance of Political Will
Afghanistan : The Transitional Government recogni zed early on (in 2002) that the Taliban -era legal framework was
inadequate. It supported the reform process for the next year but changes in the leadership of the Ministry
spearheading the reform effort then removed the necessary political will. Only in 2005 did the Afghan
Government renew its commitment to legislative reform affecting civil society.
Mauritius : Although reform is still pending, the Government, as an implementing partner in the UNDP -led civil
society strengthening project, has committed itself to the reform process, out of recognition of the need for a
more developed civil society sector.
Serbia : The lack of political will was perhaps the primary obstacle to reform since 2000. Narrow windows of
opportunity were suddenly closed due to cha nges in government or new constitutional arrangements.

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International actors 56 have a potentially pivotal role to play in strengthening political will. By convenin g CSOs
and government officials for discussion, by providing comparative information and expertise, by serv ing as a
broker between relevant stakeholders to foster understanding and consensus, by simply raising the pr ofile of
such discussions through partic ipation, by hosting fora to educate government officials on reform needs,
international organizations can help build bridges of dialogue, education and understanding. Indeed, all of the
reform strategies and approaches listed below contribute toward foster ing consensus and strengthening
political will to support legal reform.
2) Leadership by Indigenous Institutions and Individuals
Programmes promoting a more conducive civic environment are most likely to succeed where indigenous
institutions and individuals a ssume ownership of activities. The role of international organizations is instead
to serve as catalysts for the process, whether at the political level or at the grass roots level. I nternational
support can be provided through multiple interventions, incl uding technical assistance, capacity development,
diplomatic support, etc. – but does not best serve local civil society needs through exclusive leadership in
writing laws or leading lobbying efforts. By supporting local initiatives, international organiza tions reinforce
the notions of accountability and self -reliance, promote democratic values, and help ensure that laws
appropriately reflect local conditions.
Local leadership presupposes local capacity. Many international organizations dedicate substantial resources
to capacity development efforts, targeting CSO representatives, government officials, judges, and pr ivate
lawyers and practitioners. Capacity development may be delivered through, among other interventions: the
provision of comparative informati on and technical assistance on relevant issues; trainings which seek to
impart substantive knowledge and/or practical skills; training -of-trainers programmes as a way of multiplying
impact; university courses, internships and fellowships targeting students and practitioners; the preparation
of publications; and conferences, seminars and international events. Enhanced networking, improved a ccess
to information and resources, and more effective communication and coordination between CSOs, but al so
between CSO s and government and/or other actors, are all critical to fostering local capacity.
Keeping these threshold presumptions in mind, we now consider different kinds of interventions appro priate
to different contexts. In many countries, there is a real possibi lity for legal reform. In many others, legal
reform may not be immediately feasible. 57 International organizations must recognize the reform possibilities
and devise appropriate responsive strategies.
B. In Pursuance of Legal Reform
In countries where there is a true possibility for legal reform, international organizations can play a supportive
and facilitating role, acting to galvanize the process. 58 Law reform is of course not a one -time event, but rather
an ongoing, iterative process. The process can be c onsidered as several overlapping stages, including the
56 To repeat, “international actors” could pot entially embrace the U.N., particularly the U.N. Development Programme, and other
multi -lateral organizations such as the World Bank, the OSCE, the European Community, as well as bi -lateral governmental
organizations and international NGOs. We recognize t he broad and differing range of missions, mandates, entry points, and available
tools for support and intervention. This paper is not tailored for any single organization, and doe s not presume to provide advice on
what strategy may be appropriate for any given country. Instead, the paper seeks to address issues of common concern relating to
civil society legal reform. The most effective strategy can only be determined by those operating w ithin a specific country context. 57 See Section IV -D for a discussi on of potential approaches where legal reform is not immediately feasible. 58 This section is focusing on those country contexts where there are identifiable opportunities for le gal reform and internatio nal
engagement. We recognize, of course, that this i s often not the case. Governments may be reluctant to consider legal reform for civil
society, and/or may find international involvement intrusive. In such cases, international actors w ill need to consider alte rnative
strategies, which are outlined in Se ction IV -D.

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assessment phase, the law drafting phase, as well as monitoring and evaluation of the law ultimately enacted.
Supportive interventions may be appropriate at any (or all) of these phases. UNDP’s role i n the legal reform
process in Cyprus, described below, provides a good example of supporting and facilitating a number of
stages.
1) Assessment
Successful legal reform depends on a sound assessment of the current legal framework; the assessment is the
founda tion on which reform efforts must be built.
The first step is to conduct a contextual analysis – that is, looking beyond the law at the broader environment
and the opportunities for and barriers against reform. The kinds of questions to be considered at the start of
any reform initiative may include: What is the government attitude toward reform? Are there politic al
opportunities for reform? What are the political barriers? How is the CSO sector performing? Is the timing
right? Or are there macro -politic al issues (such as, for example, constitutional reform or elections), which
make legal reform affecting civil society unlikely?
Second, the assessment phase should include stakeholder mapping. Stakeholder mapping builds on the
contextual analysis to ide ntify which stakeholders have a vested interest in promoting or preventing law
reform. It is crucial to consider stakeholders in all sectors, particularly government and civil soc iety. Are there
CSOs with the expertise and ability to champion reform? If th e government attitude is largely negative, are
there potential allies within a ministry? Are there available contacts within the parliament? Given the
paramount importance of local ownership, which stakeholders should be involved in the assessment and in
the broader reform initiative? Who has the capacity to undertake the legal drafting and lead advocac y efforts?

Third, it is necessary to conduct a thorough and professional review of the existing legal and regul atory
framework affecting civil society. Of course, the scope of the legal review will vary; it may be fully
comprehensive, looking at the overall framework for civil society, or be more targeted, considering, for
example, the legal framework governing CSO involvement in economic activities or in ad vocacy activities.
Regardless, it will want to consider both the law and actual practice. And, as stated above, the leg al review
should be conducted through the leadership or at least with the participation of local lawyers (depe nding on
local capacity). Ideally, the legal review should compare the given legal framework to international good
regulatory practice.
Stakeholders
Defined: Any organization, governmental entity, or individual that has a stake in or may be impacted by CSO law
reform. These may include:
 CSOs
 Government: central government, minist ries, local governments, government/NGO liaison offices, etc.
 Parliament/Congress
 The judiciary
 Businesses
 Media organizations
 Academics
 Law students
 CSO beneficiaries and constituents

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Supporting the Legal Reform Process in Cyprus
The Medium Term Strategy for Official Development Assistance (2006 -2010) of Cyprus highlights
the role of NGOs in the delivery of assistance and the implementation of development projects. A
preliminary study of the existing legal framework affecting NGOs in Cyprus carried out by the
Planning Bureau laid out a number of gaps in the legislation as well as procedural difficulties
affecting the evolving NGO -Government cooperation. Issues identified included NGO eligibility and
selection for funding, accountability requirements and ot her conditions, and controls to safeguard
public funds. In 2007, the Bureau requested assistance from UNDP Action for Cooperation and
Trust in Cyprus (UNDP -ACT).
In response, UNDP -ACT supported the European Centre for Not -For -Profit Law (ECNL) to hold a
number of consultations with CSOs and the Planning Bureau to produce a detailed assessment of
the existing legislative and institutional framework in Cyprus and provide recommendations for
further consultations and actions. The report indicated that change towards a more enabling
environment for CSOs would be a long -term effort.
In 2008 UNDP -ACT mobilized additional resources to take the reform agenda forward, with
continued expertise and guidance from ECNL. Outputs included:
 Establishment of a joint cross -sector advisory/working group under the auspices of the
Planning Bureau with representatives from the government, CSOs/NGOs and lawyers; and
 Increased capacity of stakeholders to support the reform of the institutional framework in
which civil society fu nctions in Cyprus, through, among other activities, a study tour facilitated
by ECNL to Hungary.
Challenges
 Difficulty in overcoming feelings of mistrust and antagonism between the NGO sector and the
Government;
 Managing differing expectations – with the NGO sector expecting major changes to the status
quo but Government considering that simply engaging in a reform process was a big step;
 Limited coordination between relevant Government departments.
Successes
 The newly established NGO Working Group has evolved into a hub of institutional reform
activity within the NGO sector; and
 The Government is committed to bringing in further legal expertise in order to draft new
legislation regarding the registration and operation of associations, foundations and cl ubs,
including the introduction of public benefit status.
Lessons learnt
 Engaging all relevant stakeholders significantly contributes to advancing the reform process
since they all have ownership of the process and an incentive to monitor progress;
 Involvi ng the NGO sector in a reform process that affects them directly supports the
strengthening of civil society and a shift in the government’s perceptions about CSOs;
 A patient approach, with long -term commitment toward reform, is critical.

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Once completed, consideration should also be given to the publication of the legal assessment review .
Distributing draft versions of the legal review to vested stakeholders for comment and feedback is a sound
way to include a broader pool of actors in the assessment phase. Public discussion events are also u seful tools
in encouraging wider participation in the process. The final assessment should be widely disseminated beyond
the vested stakeholders to all affected members of the CSO community and government circles .
With the completion of a sound assessment, local stakeholders will have a solid ground for deciding on a
reform strategy. In additi on to identifying the substantive areas in need of reform, and alternative solutions,
the assessment should, ideally, help stakeholders to recognize the consequences of pursuing reform.
2) Interest in Reform
International organizations can help local effor ts to focus attention on CSO legal issues. Of course, the
engagement of local partners in the initial assessment phase, in conducting baseline research and we ighing
potential solutions, directly fuels local commitment to the process. But not all reform pr ocesses are seamless.
Instead, for a variety of reasons (e.g., elections), there may be a significant break in time betwee n the
assessment phase and any law drafting efforts, thereby removing any reform momentum that may have
existed.

As highlighted abo ve, law reform efforts in Serbia were stalled repeatedly, largely due to macro -political
factors. Although vested stakeholders in the CSO community recognize the need for reform, their abil ity to
push for reform has waxed and waned, and frustration over th e past five (5) years has grown. In
circumstances such as these, international organizations can provide critical support – by focusing attention
on the ongoing need for reform. This can be accomplished in numerous ways, including through support to
nation al actors to organize awareness -building campaigns or events, cross -sectoral and multi -stakeholder
meetings and in -country workshops, supporting national actors to participate in international events, as well
as the sharing of international practices. In S ierra Leone, for example, UNDP has played a key role in informing
NGOs about proposed legislation and bringing CSOs and the government together to discuss concerns on
both sides. The NGO -UNDP consultative forum has formed a committee to study the proposed NGO legislation
carefully and make recommendations on reform issues.
As a way of generating momentum, international organizations may be tempted to provide compensation to
local law -drafters. Certainly, on the one hand, this would seem a straightforward me ans of moving ahead with
a law reform initiative, while still ensuring local ownership. At the same time, however, compensati on may act
as a perverse incentive, which forwards the reform initiative, but perhaps not for the right reasons . In other
words, t he profit motive may cloud the more balanced judgment of vested stakeholders. If reform does not
occur but for the payment of compensation, then the local ownership of the reform initiative seems
questionable. At best, compensation for law -drafting is a double -edged sword, and should be considered with
great caution.
Considering the Consequences of Reform
In Slovakia the adoption of a tax allocation mechanism (allowing individual and corporate taxpayers to
designate up to 2% of their tax payment to a qualified CSO) led to the elimination of individual and
corporate donor incentives ( i.e. tax deductions available for donors to CSOs). Advocates of tax
designation systems would be well advised to consider the potential risks as well as gains for the s ector
before launching such a tax reform initiative. Indeed stakeholders may want to i dentify the factors that
inform the “to reform or not to reform” decision.

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3) Drafting Groups Representing All Parties
Based on a sound assessment, and fueled by the commitment of vested local stakeholders, the drafting of the
law may now move forward with surer step s. At this stage, international organizations can play a crucial role
in supporting a participatory process. Indeed, the degree to which the reform process invites partic ipation by
all potentially interested parties frequently determines a particular proj ect’s success. A process that
represents the views of CSOs, government officials, parliamentarians, and others leads to better leg islation, a
stronger likelihood of enactment, and an interest in fair implementation and sound compliance follow ing
enactment. It also leads to an interest in continuing the reform process.
Of course, there are often obstacles to such cooperation, including the lack of coordination among m inistries
and, sometimes, open hostility between the government and CSOs. Indeed, this repre sents one of the single
greatest challenges to successful law drafting. To overcome these obstacles, international organiza tions can
act as conveners – bringing stakeholders together and providing a forum for informational exchange; the
exchange of views and information can help bring people with different views together. Particularly useful
can be the formation of a multi -stakeholder or cross -sectoral drafting group to address unresolved issues.
Care should, of course, be taken in the selection of CSO re presentatives, particularly since international actors
may only know or be in contact with a small part of the broader civil society in a country. In addit ion, the
government may push for the involvement of only certain sympathetic CSOs, resulting in an ap parent broad
consensus but leaving out other actors that are crucially important for the sustainability of the re form efforts.
Inviting CSO input only after the government has issued a draft leaves less room for meaningful inpu t.
Through cross -sectoral working groups, parties with divergent views are more likely to find areas of shared
concern. International actors can be critical in supporting the formation of cross -sectoral drafting groups
from the beginning of the drafting process.
4) Broader Public P articipation
While the number of participants in any drafting group must necessarily remain limited in order to b e
effective, it is important that all interested stakeholders have the opportunity to provide input on legislative
reform. The effort to ensur e broader public participation is critical to giving the reform initiative wider and
deeper legitimacy .

Generating Interest in Reform
Honduras : Beginning in 2003, ICNL launched its Partners for Enabling Environment Reform Project (“PEER”) in
Honduras. Through PEER, ICNL worked with t he Federation of Honduran NGOs, an umbrella organization of 70
social development organizations, to revive efforts to draft an NGO Law. Previous efforts during th e preceding
decade had stalled due to the inability of CSOs to agree on several key reform is sues, including appropriate legal
standards for CSO accountability. The PEER Project helped CSOs reach consensus; an external evaluat ion of the
Project in 2006 concluded that “The NGO community, with the PEER Project’s support, was able to find middle
gro und – a basic agreement for drafting the NGO Law proposal.”
Viet Nam : The Vietnamese government was reluctant to undertake legal reform affecting CSOs. ICNL has worked
steadily with UNDP and local partners to help maintain a “diplomatic” level of momentum, which has led to a
more constructive reform approach by the government.

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Several innovative practices have been developed to support broad public participation:
 Dissemination of the draft law to the wider CSO community th rough email, coupled with the
solicitation of feedback;
 Publication of the draft law in a leading national newspaper, to encourage input both from CSO
representatives and the broader public;
 Establishing a website dedicated to the law reform initiative, wi th information updates routinely
posted, and a dedicated email account that interested stakeholders can use to provide input;
 Expert meetings with various target groups, including, for example, academics, donors, lawyers, or
affected beneficiaries;
 Town -ha ll meetings to promote public participation, with comments recorded and sometimes
reflected in the final version of the law;
 National -level workshops and public discussions to present the draft legislation, solicit input and
validate proposals.
 Interna tional conferences to seek the input of international experts, as well as in -country
stakeholders.
If sufficient input is not received, valuable insights might be missed and some CSOs may perceive th e drafting
initiative as the work of an elite group, ther eby undermining the legitimacy of the reform effort. The lack of a
broad sense of local ownership is also likely to hamper effective implementation. Through the range of
available participatory mechanisms, international actors can play a crucial role in fa cilitating a process that
affords the time and space for broad public participation.

Cross -Sectoral Drafting Groups
Afghanistan : The contrast between the two drafting processes in Afghanistan illustrates the importance of
cross -sectoral engagement in law drafting. T he legislative drafting group formed in 2002/2003 worked from the
outset with civil society involvement; the result was a reasonably progressive draft law that had th e backing of
stakeholders in both sectors. The drafting process in 2005 was government -led and allowed for civil society
input only reluctantly. Moreover, the process was less deliberate and more hurried. Consequently, the law that
was ultimately enacted, although a big step toward a more enabling environment, was less enabling th an the
2003 draft promised to be.
Mexico : To promote and secure the adoption of legislation to facilitate the development of philanthropy an d
civil society in Mexico, four partner organizations have formed a working group, each bringing speci fic skills and
expertis e to contribute to a well -coordinated reform effort. The Instituto Tecnologico Autonomo de Mexico is a
university and research institute that can conduct investigations and provide empirical evidence to support
arguments for reform. Incide Social is an a dvocacy organization known and respected by CSOs throughout
Mexico. Communications consultant Cristina Galindez has extensive lobbying expertise and an in -depth
knowledge of the legislative process. Finally, ICNL brings international and comparative infor mation to the table
to buttress reform positions.
Tanzania : A working group of CSOs and mid -level government officials attached to the Deputy Prime Minister’s
Office steered amendments to the NGO Act through Cabinet and Parliament, resulting in a signific antly
improved legislative environment for the sector.

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5) Cross -Border Linkages
Regional and international linkages validate and strengthen the commitment of local stakeholders, wh ile
sharpening their skills by supplying t hem with comparative information and expertise. International
organizations should be aware of the potential benefits cross -border linkages provide and the most effective
means to facilitate them. Successful linkages have been accomplished through cross -border consultations,
regional conferences, seminars, study tours, fellowships, academic networks, and other activities.
Information may flow between countries within a given region. Countries of Central and Eastern Euro pe have
exchanged ideas among them selves and reaped the mutual benefits of such exchanges for the past 15 years.
More than 175 civil society, government, private
sector and university representatives attended
the Honduran Forum for Not -for -Profit Law in
2006, which included experts from C osta Rica and
El Salvador, as well as Chile and Venezuela.
Nigerian lawyer Emeka Iheme has served as a
resource for law reform efforts in Tanzania and
more widely in sub -Saharan Africa. Soloman
Islands lawyer David Lidimani is supporting efforts
to reform civil society legal structures in Samoa,
Vanuatu, and elsewhere in the Pacific. A Civil
Society Preparatory Meeting preceded the 2006
Forum for the Future and brought together
individuals from 13 Arab countries to discuss
priorities, goals, and strategies to create an enabling legal environment for civil society in the Arab world; the
outcome of this meeting was a Declaration made by CSO representatives about priorities for civil soc iety
reform. This meeting followed a conference in Beirut that provided a forum for Arab reformers to discuss civil
society reform strategies.
Encouraging Public Participation
Mexico : The working group seeking to promote civil society law reform in Mexico: (1) convened 6 expert fora
(involving 150 representatives of CSOs and government) to p resent information, solicit input from CSOs on the
challenges they face, and collectively develop participant recommendations; (2) published a report – Definition
of a Fiscal Agenda for the Development of Civil Society Organizations in Mexico – which inclu ded the input from
these participatory sessions and concrete legal reform proposals; and (3) provided additional opport unities to
participate through a website on the reform initiative.
South Pacific : In the South Pacific islands, many segments of societ y are routinely excluded from the
formulation of public policy. In its Civil Society Law Program, ICNL has sought to ensure fuller par ticipation
through visits to remote islands within each island nation; through visits to villages and local com munities an d
not just capital cities; through meetings with chiefly bodies , and with both the leading ethnic groups and
minority groups. In this way, ICNL has served as a communications channel between the government an d the
public. Consensus has been building in c ertain of these nations for reforms that would protect and even enable
organizations to represent and serve these groupings. Such patient steps toward consensus building assists
the progress of participatory democracy.
“One of the greatest things abo ut these two
conferences was that they facilitated the
creation of a large network of Arab reformers
who do continue to stay in touch with one
another to inform us about what is going on in
their countries and to discuss strategies and
ideas to pursue refo rm throughout the region.”
Kareem Elbayar, Legal Consultant for the Middle
East and North Africa, ICNL

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Information may also flow between regions. Countries of the former Soviet Union have routinely draw n
lessons from the CEE region to help inform their own reform processes. In addition, countries of the Middle
East have considered the transitional experience
of CEE countries. The African island nation of
Mauritius has looked to European regulatory
practices in reviewing its own legal framework.
Law drafters in Afghanistan have sought
com parative information from both neighboring
Central Asian states and also European and U.S.
practice. At a Global Forum on Civil Society Law
hosted by ICNL in November 2005,
representatives from North America, Latin
America, Africa, Europe, the Middle East and Asia all participated and shared experiences. Clearly,
international organizations have tremendously important roles to play in facilitating such linkages.
Regional organizations, such as the African Union, the Council of Europe, or the Organization of American
States (OAS) may also facilitate cross -border support. Recently, a proposed Law on International Cooperation
has raised fears in Venezuela that the government would have unprecedented authority to control the
financing of CSOs active in the sph ere of international cooperation. In response, several Venezuelan CSOs
sought to de -rail the proposed legislation through cross border linkages, which included:
 Participation in hearings at the Organization of American States (OAS) on the proposed law;
 Par ticipation in meetings of MercoSur, a customs union of four Latin American countries (Argentina,
Brazil, Paraguay, and Uruguay), stressing the link between human rights and the proposed law;
 Participation in regional and international conferences, affordin g the opportunity to discuss the law
and its potential impact on the Venezuelan CSO sector.
Taken together, these efforts are believed to have influenced the Venezuelan Congress to delay consi deration
of the proposed law.
6) Technical Assistance
As highlight ed above, comparative international expertise is fundamentally important to reform, especially in
those contexts where local capacity may be lacking. Even where local legal capacity is high -quality, there are
likely to be questions and issues that can bene fit from a broader legal perspective. International actors can
help to supply technical assistance by opening the process up to international consultant organizati ons and by
coordinating the input of the donor community.
“You almost contained the ‘world in one room’
discussing and empowering each other on civil
society law of different nations across the
world.”
Kefale Belachew, LLB Managing Director, AEPA,
Ethiopia
Technical Assistance
The role of an international consultant is to:
 Provide an independent, professional perspective on the in -country issues;
 Provide comparative international expertise on the particular regulatory problems at issue;
 Help local stakeholders understand the alternative regulatory approaches available, the pros and con s of
each, and the consequences of various legal options;
 Promote a legal reform process that is appropriately inclusive and p articipatory;
 Promote a legal reform process that leads to a legal framework that is more compliant with internati onal
law and good practices;
 Support, not supplant, local stakeholders;
 Empower local stakeholders, not draft the laws and legal provisions di rectly.

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Moreover, it is important to re cognize that technical assistance is usually more effective when supplied by
independent experts, rather than those who are perceived to be partisan or advocates for certain pos itions.
Those organizations that can speak from an ‘honest broker’ position wi ll be better able to speak credibly to
the government. Here again, international organizations have a potentially important role to play.

C. Following Legal Reform

1) Implementation Assistance
Once legal reform has been accomplished, the challenge turns t o implementation. Indeed, the progressive,
consistent and apolitical implementation of law usually poses even greater challenges than legislati ve change.
To support the smooth implementation of law, international organizations have key roles in supportin g (1)
training of government regulators; (2) the education of CSO sector practitioners; (3) the preparatio n of
written educational materials for the benefit of both; and (4) public awareness campaigns so the gen eral
public can understand the need for reform .
Training can be provided through seminars and workshops on the new legal framework, through direct
technical assistance, and through cross -border initiatives, just to name a few. In the context of civil society
law, implementation assistance may relat e to registration issues, tax and fiscal issues, and supervision and
monitoring issues. Trainings may target officials responsible for registration, tax, and/or supervi sion, as well
as judges. Implementation needs often include the establishment of centr al registries, the preparation of
implementing regulations, and the development of model forms and documents for registration and repo rting
(possibly including model founding acts, statutes, reporting forms and other standardized forms).

CSO education e fforts can take advantage of similar training methods. Another potentially effective training
approach is the train -the -trainers programme, which can multiply the impact of a single training. Trainings
aimed at lawyers can also be critical to creating a p ool of legal expertise on civil society legal issues within a
country. In addition, there is often good reason to conduct cross -sectoral training initiatives, which encourage
improved communication between the sectors in addition to capacity building of ea ch respective sector.
Implementation Support to Government
Afghanistan : The Department of NGOs (responsible for registration and supervision of NGOs) within the
Ministry of Economy in Afghanistan sought and received assistance in creating a computerized central regist ry
of NGOs.
Peru : Peru’s Agency for International Cooperation (APCI), responsible for drafting two sets of implement ing
regulations, invited international comparative input on the content of the draft regulations.
Russia : Despite the regressive nature o f the amendments to the NGO legal framework in Russia, the
government still invited international technical assistance in preparing the implementing regulation s for the
newly amended law. This highlights the importance for international actors of remainin g alert to such
opportunities for positive intervention.
Tanzania : Through extensive workshops during the months following enactment of an amended law, ICNL
provided basic training for government officials and the government/NGO commission on the implemen tation
of the amended law.

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Written educational materials may include easy -to -read brochures for non -lawyers, handbooks and in -depth
commentaries on relevant laws for government regulators and practitioners, comparative analyses, how -to
guides, etc. The writi ng process itself is an important capacity -building tool, underscoring that local
ownership of implementation initiatives is as important as local ownership of law reform efforts.
2) Monitoring and Evaluation
Recognizing that even well -drafted laws are not necessarily properly implemented, the monitoring and
evaluation of the implementation process is crucial to improve implementation and support ongoing la w
reform efforts. Monitoring and evaluation mechanisms should be considered even before the legal refo rm is
accomplished, in order to ensure that all actors agree not only on the available tools and consequen ces of
monitoring. Pre -agreed monitoring guidelines and principles might help prevent conflicts between
government and CSOs. Consideration should be g iven to existing mechanisms governments may use to
evaluate the performance of ministries/bureaus regarding the implementation of laws.
An additional and potentially valuable approach is to facilitate the work of “watchdog” organization s, that is,
organi zations dedicated to monitoring government performance, if the context allows. Generally speaking,
watchdogs may monitor pre -election promises of elected officials and the implementation of various policies
and laws. This helps encourage transparent gover nment operations, provides additional information to the
public, and supports improved government performance.
There was significant interest within the Russian CSO sector and the international community to meas ure the
impact of the 2006 amendments to Russ ian NGO legislation. In response, a tool to monitor and track the
implementation of newly enacted NGO legislation was drafted for use in Russia, but may be adapted fo r use in
broader contexts. The monitoring tool could help measure potential points of gov ernment constraint on civil
society, such as the following:
 Registration : Is the registration body politicized, are the procedures burdensome, do officials have
broad discretion to deny registration?
 Internal Governance : Does the government have the right to attend the organization’s events,
including board meetings; can the government replace board members?
 Activities : Does the law prohibit undefined “political” or “extremist” activities; are NGOs allowed to
engage in service delivery?
 Sustainability : Does the law allow organizations to receive foreign funding, fees for services?
 Regulation : Does the government have the right to audit organizations – if so, for what reason, and
how often; does the government have the right to issues “notices” of correction or to terminate
organizations?
The monitoring mechanism will need to be appropriate for the local context. In order to make that
determination, it is critical to answer several questions:
 Who is the target audience and how will they use the monitoring d ata?
 What laws are to be assessed for impact (e.g., a single law or the entire legal framework)?
 What level of impact should be evaluated (e.g., the impact on individual organizations, on the secto ral
level, or on the societal level)?
 What groups sho uld be targeted for assessment (e.g., specific organizational forms, organizations
engaged in specific activity areas or geographic areas)?
 What methodology should be used to collect data (e.g., organizational surveys, government statistics ,
focus groups , and structured interviews)?

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 Who should be involved in the monitoring process (e.g., representatives of the local and internation al
NGO community, donors, the diplomatic community, host government, parliament, academia, and
perhaps even the business co mmunity)?

D. Beyond Legal Reform
Of course, legal reform may not be a realistic option in every context; some countries may be imperv ious to
immediate law reform efforts. In such situations, civil society support will need to assume alternat ive
approaches . It is the potential alternative strategies that this section seeks to address.
The Ethiopian Experience: after legal reform
Even in situations where legal reform has been regressive, international organizations can play an i mportant
role after reform, as illustrated by experience in Ethiopia .
The Ethiopia n Government, while recognising the contribution of CSOs, argued that in order to improve
development, control corruption and complement the efforts of the Government, it needed to develop a
policy framework that regulated the composition and nature of org anizations operating in Ethiopia. It
published a draft of the Proclamation on Charities and Societies in the latter half of 2007. The Pro clamation
is controversial as various articles are considered by civil society organizations to restrict their operatio ns
rather than improve development. Specifically, it decrees that: Ethiopian organisations pursuing cer tain
designated activities, such as the advancement of human and democratic rights, can receive only up t o 10%
of their total funding from foreign source s; 70% of their overall budget must be used for programmatic
activities and no more than 30% for administrative costs; societies must secure a permit for public
collections; and the Charities and Societies Agency has the power to institute inquiries whenev er it deems
necessary.
The UN system was concerned about the draft Proclamation and advocated for revisions of articles to
create a more enabling environment for NGO operations. In addition, UNDP as the secretariat of the d onor
Development Assistance Grou p, engaged the Government on the proclamation. However, Proclamation No.
621/2009 on Charities and Societies (PCS) was adopted in February 2009.
Currently, the UNCT is undertaking an analysis of the law in terms of its programmatic implication f or the
imp lementation of UNDAF and other projects supported by the UN system, as well as its compatibility wit h
international and regional human rights instruments.
The international donor community is also working on strategies for engagement now the law has been
passed. These include:
 Monitoring the enforcement and impact of legislation on both Ethiopian and international NGOs;
 Supporting and building the capacities of Ethiopian and international NGOs to adapt and respond to
the new operating environment;
 Ensurin g that donor development and humanitarian assistance funding channels and programmes
adapt to the requirements of the Proclamation in ways that do not compromise either the efficient an d
effective delivery of resources to beneficiaries or donor values.

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One important threshold consideration is the need to develop and implement civil society support wit h a long –
term perspective. Many of the strategies will necessarily be li nked to building the capacity of potential reform
actors, who may be able to support reform only once the political landscape offers such an opportuni ty, which
could be years away. Certainly, all strategies should, ideally, be part of a long -term vision; but in some
contexts, it may not be realistic to press for short -term results. Even those strategies that seek to make a
more immediate impact (such as raising awareness of the weakened state of civil society), however, w ill likely
be only one step on the longer walk toward a reformed environment. 59
1) Supporting Alliances and Networks
In politically difficult environments, the formation and maintenance of alliances and networks can p lay an
invaluable role in protecting and strengthening individual CSOs and t he broader civil society community. In
such environments the CSO sector may be divided making attempts at networking difficult or only symb olic.
Nonetheless, networking can provide the benefit of information sharing, increased access to expertis e,
inspirat ional value from knowing that the struggle to protect human rights is not a solitary one, and possib le
protection to organizations and individuals struggling in repressive environments. International org anizations
can play a catalyzing role in convening an d enlivening such networks, be they national or international in
nature.

2) Raising Public Awareness
In nearly all contexts, raising public awareness is critical to working effectively with civil socie ty. Whether the
issue at stake relates to legal reform or CSO/government relations or the public image of the civic sector,
efforts to inform and educate – to raise awareness – are likely to be fundamental to addressing the issue.
Effective awareness raising may target the broader NGO community, the general p ublic, and/or international
organizations, as well as other nations and multilateral bodies. Raising awareness is likely to be c ore to civil
society engagement strategies in both developed and developing countries, though the methods of
awareness raising w ill certainly vary depending on the context.
In addition to building capacity on awareness -raising techniques (see below), international organizations can
provide significant support as independent monitors. Through research, investigation, documentatio n,
analysis and reporting on existing threats, abuses, and problems, awareness raising efforts can be m ore
59 The following strategies to protect civil society are based in part on research conducted by ICNL an d contained in Safeguarding Civil
Society , International Journal for Not -for -Profit Law, Vol. 9, Issue 3, July 2007.
Su pportive Interventions
 Facilitating the formation of the alliance and network by serving as the convener of potential
members of the alliance or network;
 Providing information and technical expertise to existing networks;
 Conducting national and/or intern ational meetings to strengthen networks;
 Providing gravitas and/or a “protective cloak” to networks, as well as international leverage. In
repressive contexts, international organizations can even provide a measure of protection from
violence and oppressi on;
 Supporting groups in exile who are working to support civil society in countries such as Burma
(Myanmar) and Turkmenistan.

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effectively planned and staged. There are a number of ratings indices, which provide comparative too ls
regarding individual country compliance with v arious objective measures. For example, the U.N.’s new Human
Rights Council created the Universal Periodic Review (UPR), which will seek to measure the human rig hts
records of all U.N. Member States through a common mechanism. 60
3) Developing Capacity
Perhap s the most important role that international organizations can play is to develop the capacity of local
CSOs to conduct or effectively participate in law reform processes and to help protect civil society even where
law reform is not immediately possible. Recognizing the importance of strong local leadership, the legal,
organizational, and advocacy capacities of local individuals and organizations are fundamental to su ccessful
efforts to strengthen the environment for civic activity. Capacity development efforts can seek to provide
education and skills in a number of areas and can often be provided through facilitating South -South linkages .
4) Facilitating Dialogue
International organizations may be able to facilitate dialogue by bringing together CSOs an d government
officials and parliamentarians at conferences or seminars or study tours. The convening role can be critical to
all phases of legal reform. Admittedly, however, not all international actors have the same capacity as a
convenor. Multi -lateral organizations, such as the U.N. and regional bodies, are particularly well -suited to play
this role. Indeed, the participation and presence of international organizations can provide additi onal
leverage to the advocacy efforts of local actors. Moreover, g overnment officials and parliamentarians may be
more likely to participate in meetings and events at the invitation of international actors.
60 See the Universal Periodic Review Mechanism (June 29, 2006).
Capacity Development Interventions
 Dialogue and Discussion. CSOs need to be empowered to participate in in -person meetings and discussions
with government officials and parliamentarians.
 Awareness Raising. The first step toward addressing an issue is to focus public attention on it. Whether
through campaigns to educate the general public, or through more targeted ‘know your ri ghts’ campaigns,
CSOs have a critical role to play in this area.
 Use of Media. Effective use of all forms of media – newspapers, radio, and television, in addition to the
internet – and their potential to expose violations, educate the public, overcome iso lation, reach out to
victims and beneficiaries, and help mobilize communities is critical to awareness raising and advoca cy efforts.
 Use of Technologies . Internet technology is a potentially powerful tool to collect, organize, safeguard and
disseminate inf ormation.
 Advocacy Capacity . Advocacy skills can strengthen law reform efforts in any context. Volumes have been
written on the tools, techniques and strategies available for those engaged in advocacy and internat ional
actors, including the U.N., can hel p support advocacy strengthening as fundamental to a vibrant civil society.
 Legal Capacity . CSOs frequently require training on the existing legal framework and its implementation to
help them navigate through the often complex and contradictory laws and regulations affecting their activity.
Moreover, individual lawyers should have the capacity to use domestic litigation procedures – as well as
international human rights mechanisms – to protect CSOs under threat.

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5) International Diplomacy
In many situations, international diplomacy can be fundamental to the protection of civil s ociety. Clearly, this
strategic tool is an exception to the rule of local ownership. International diplomatic efforts are led, quite
properly, by governments and multilateral organizations. That said, they are undertaken to support local
players and will often supplement other strategies such as raising awareness and advocacy efforts led locally.
As mentioned above, multilateral diplomatic efforts have born e fruit in advancing NGO law reform in
Afghanistan (UN Assistance Mission in Afghanistan), Albania (World Bank), in Kazakhstan (OSCE) and in Russia
(the G8). Bilateral diplomatic efforts may also be useful, depending on the relationship between th e two (or
more) countries involved. Clearly, international actors have a leading role to play in this con nection and
should be alert to possibilities for productive diplomatic intervention. At the same time, they should be
conscious of their own credibility as outside actors, and alert to the risks of weakening diplomatic efforts
where that credibility is lo w.

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V. Checklist for Programme Design

In Pursuance of Legal Reform

1) Conduct Assessment
a. Conduct contextual analysis: looking at the broader political and social environment in order to
determine the opportunities for and barriers against reform; conside r also the cu ltural expressions of
community o rganization and how civic engagement is understood by different sectors of the
population.
b. Conduct stakeholder mapping: identify which stakeholders have a vested interest in promoting or
preventing law reform; identify which stakeholders have obligations and are accountable in this
regard (duty -bearers).
c. Conduct a thorough and professional re view of the existing legal and regulatory framework affecting
civil society , including the ratification of international treaties and conventions that recognize freedom
of expression and association (among others) .
d. Publicize the legal asses sment review, possibly through distribution to stakeholders for comment and
feedback.
2) Help Focus Attention on CSO Legal Issues
a. Engage lo cal partners in the assessment phase , stressing the legal recognition of rights ;
b. Focus attention on the ongoing need for reform, which can be accomplished in numerous ways,
includi ng cross -sectoral meetings, in -country workshops, participation in internati onal events, as well
as the sharing of international practices;
c. Be aware of the risks to providing compensation to local law -drafters.
3) Support Inclusive, Cross -Sectoral Drafting Groups
a. Support a process that relies on inclusive, cross -sectoral drafting group early on in the process;
b. Act as a convenor, bringing stakeholders together and providing a forum for informational exchange;
c. Allow for and empower local leadership of drafting group.
4) Promote Broader Public Participation
a. Disseminate draft law/regulati ons to the wider CSO community through appropriate means, including
e-mail, the Internet, newspaper, etc.
b. Solicit feedback and comment on proposed law/regulation.
c. Establish clear mechanism through which feedback can lead to substantive revisions in draft
law/regulations.
d. Publicize results of comment and feedback period;
e. Consider benefit of public discussion events, such as expert meetings, town -hall meetings, national
conferences and workshops.
5) Bolster Reform Efforts through Cross -Border Linkages
a. Consider benefit of regional or international meetings, conferences, events to strengthen in -country
expertise;
b. Consider appeal to and intervention of regio nal human rights bodies and/or inter -governmental
organizations.

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6) Support Reform Efforts through Expert Techni cal Assistance
a. Provide or facilitate the provision of independent, professional, comparative international expertis e
on in -country issues;
b. Help local stakeholders understand the alt ernative regulatory approaches available, the pros and cons
of each, and th e consequences of various legal options;
c. Work to support, not to supp lant, local stakeholders.

Following Legal Reform

1) Assist in Implementation of Law
a. Provide training to government regulators on the new legal framework.
b. Assist in preparation of implement ing regulations, the development of model forms and documents
for use by government regulators.
c. Educate CSO representative on their rights and responsibilities under the new legal framework.
d. Prepare written educational materials on the new legal framework for the benefit of government and
CSO representatives.
e. Be alert and responsive to implementation problems as they arise.
2) Conduct Monitoring and Evaluation of New Legal Framework
a. Consider role of “watchdog” organizations and how to empower the m.
b. Develop an d implement monitoring tool for the context at issue.

Beyond Legal Reform: Protecting CSOs in Difficult Circumstances

1) Determine Realistic Protective Strategy
a. Conduct assessment of broader environment, specific challenges facing CSOs, and realistic respon sive
strategies .
b. In selecting appropriate strategy, employ long -term perspective.
2) Implement Protective Strategy
a. Monitor success and problems with strategy and be ready to adjust the strategy as necessary .
b. Take advantage of opportunities to strengthen effor ts through:
 Supportive alliances and networks;
 Raising awareness, either domestically and/or internationally;
 Building capacity of local CSOs;
 Facilitating dialogue between CSOs and government or other stakeholders;
 Using international diplomacy.

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Appendi x A: Frequently Asked Questions (FAQs)

What is civil society?
The term “civil society” has been defined in a tremendous variety of ways, and its meaning and scope are the
subject of ongoing debate and discussion. In its policy of engagement with CSOs (20 01), UNDP defines civil
society organizations and locates its own collaboration thus: “CSOs are non -state actors whose aims are
neither to generate profits nor to seek governing power. UNDP collaborates with CSOs whose goals, va lues
and development philoso phies accord with its own.” Other definitions are found in the web -based resources
provided in Appendix B.

What is the relevance of international law to CSOs?
International law is relevant to civil society and CSOs in that the fundamental rights and fre edoms enshrined in
international legal instruments, including the freedoms of association, assembly and expression, are the
spring from which civil society flows – and the most fundamental protection for CSOs. Freedom of association
embraces the right of individuals to form associations, political parties, trade unions, and other membership
groups to pursue collective interests. The meaning and scope of the right continues to be developed and
refined through U.N. treaties and resolutions, as well as throu gh the interpretation of courts and commissions
operating under U.N. treaties and regional human rights instruments.

Do CSOs have rights under international law?
Yes. Although international covenants and treaties protecting freedom of association and ex pression apply by
their terms to individuals, certain protections also extend to collective entities.

Are CSOs typically regulated by a single law?
No. CSOs are typically subject to a range of laws and regulations, addressing issues from registrat ion t o
taxation, economic activity to public funding, volunteerism to philanthropy. In some countries, the re may be a
single law, which deals with many aspects of the “life -cycle” of the CSO, but there will always be issues, such
as V.A.T., social contracting, or participation in policy -making, regulated elsewhere in the legal framework.

Is there a “Model Law” available?
No. Designing and drafting laws that impact civil society is a process unique to the needs and culture of a
particular country. One size does not fit all — UNDP needs to work with local stakeholders to design the most
appropriate and beneficial laws for all parties. However, ICNL has a wealth of materials and handboo ks
available in its online library that provide the foundations and principl es necessary to developing appropriate
laws and regulations.

What does it mean to be not -for -profit?
“Not -for -profit” is used in preference to “non -profit” in order to emphasize that a defining criterion is the
intention of the organization is not to make profits for private gain. It is possible that such an organization will
in fact make a profit from time to time, but that is not the principal purpose for which it is organ ized and
operated. Nor is its purpose to distribute any portion of any profit for p rivate gain. The major distinguishing
characteristic between not -for -profit and for -profit organizations is that the former are governed by the
principle of non -distribution.

THE ROLE OF LEGAL REFORM IN SUPPORTING CIVIL SOCIETY

AN INTRODUCTORY PRIMER – ICNL & UNDP – AUGUST 200 9 – PAGE 54

Are CSOs legally permitted to engage in political activities?
The answer depends on the legal framework and the definition of “political” activities. Most commonly, CSOs
are permitted to engage in public policy activities, which might include, among others, research and
education, advocacy, and the publication of policy papers. Indeed , to be consistent with international norms
relating to the freedom of speech, CSOs should, like any individual, be able to speak out on all mat ters of
public significance, including existing or proposed legislation, state actions and policies, and sta te o fficials or
candidates for public office. Often, however, restrictions prevent CSOs from engaging in electionee ring
activities, such as campaigning and/or fundraising for political parties or candidates.

Are there “ good p ractices” relating to the regulat ion of CSOs?
Yes. In addition to the norms defined under international law, we can also speak of “ good practices” for the
regulation of civil society. International law sets the broad boundaries by making clear, for examp le, that the
state must protect th e right of individuals to form an association. But many, if not most, regulatory issues are
left unaddressed by international law. In these cases, we must examine good regulatory practices. Take, for
example, the question of whether CSOs should be allow ed to engage directly in economic activities. Based on
our examination of regulatory approaches in more than 100 countries around the world, we can conclud e that
a CSO should be permitted to engage directly in economic activities, under certain conditions .
For a basic checklist of provisions that should be included in legislation governing CSOs, and that are
consistent with generally accepted international principles, see the ICNL Checklist f or CSO Laws .

What is the first step in promoting law reform affecting CSOs?
The first step is to conduct an assessment. A professional assessment includes:
1) Contextual analysis – that is, looking beyond the law at the broader environment and the
op portunities for and barriers against reform.
2) Stakeholder mapping – that is, identifying which stakeholders have a vested interest in promoting or
preventing law reform.
3) A thorough and professional review of the existing legal and regulatory framework a ffecting civil
society.

Who should lead civil society law reform efforts?
Indigenous institutions and individuals should lead civil society law reform efforts. The role of in ternational
organizations at any level is to serve as catalysts for the process .

Who else should be involved in the law reform process?
This depends on the nature of the reform process. Generally, however, the process is more likely to be
successful it is broadly inclusive and participatory. Stakeholders in the process should usu ally include CSO and
government representatives, and may also include, for example, parliamentarians, business representatives,
and academics.

THE ROLE OF LEGAL REFORM IN SUPPORTING CIVIL SOCIETY

AN INTRODUCTORY PRIMER – ICNL & UNDP – AUGUST 200 9 – PAGE 55

Appendix B: Select Resources on Civil Society
 Association for Research on Nonprofit Organizations and Volunta ry Action (ARNOVA):
https://www.arnova.org/
 Center for Advancement of Philanthropy: https://www.capindia.org/introduction.htm
 Centre on Philanthropy and Civil Society : www.philanthropy.org
 Charity Commission for England and Wales
 https://www.charity -commission.gov.uk/tcc/intprog.asp
 CIVICUS: World Alliance for Citizen Participation: www.civicus.org
 Civil Society International: https://www.civilsoc.org/
 Civil Society: Organization of American States: www.civil -society.oas.org
 CIVITAS: The Institute for the Study of Civil Society: www.civitas.org.uk
 Freedom House: www.freedomhouse.org
 Global Legal Information Netwo rk: www.glin.gov
 Global Policy Forum: https://www.globalpolicy.org/ngos/index.htm
 Inter -American Development Bank: Civil Society:
 https://ww w.iadb.org/resources/civilSociety/index.cfm?lang=en
 Inter Press Service News Agency, Civil Society the New Superpower:
 https://ipsnews.ne t/new_focus/c_society/index.asp
 International Center for Not -for -Profit Law: www.icnl.org
 John s Hopkins University: www.jhu.edu/~ccss/
 The Comparative Nonprofit Sector Project: https://www.jhu.edu/~cnp/
 Legislation Online (OSCE region) : www.legislationline.org
 London School of Economics, Centre for Civil Society: www.lse.ac.uk/collections/CCS
 Open Society Institute Guidelines for Laws Affecting Civic Organizations:
 https://www.soros.org/resources/articles_pu blications/publications/lawguide_20040215
 Organisation for Economic Co -operation and Development, Civil Society and Parliamentarians:
https://www.oecd.org/department/0,2688, en_2649_34495_1_1_1_1_1,00.html
 PRIA – An International Centre for Learning and Promotion of Participation and Democratic Governance :
https://www.pria.org
 Public Interest Law Initiative: www.pili -law.org
 Rights International : https://www.rightsinternational.org/
 The European Commission and Civil Society: https://ec.europa.eu/civ il_society/index_en.htm
 The International Monetary Fund and Civil Society: https://www.imf.org/external/np/exr/facts/civ.htm
 The United Nations and Civil Society: www.un.org/issues/civilsociety
 The World Bank and Civil Society: www.worldbank.org/civilsociety
 Union of International Associations: Web Resources on Civil Society: https://www.uia.org/civilsoc/links.php