IAJC Principles on Creation, Operation, Financing, and Dissolution of Civil Society Organizations
PUBLISHED: MARCH 2023
The 102nd regular session of the Inter-American Juridical Committee, held in Rio de Janeiro, saw the Declaration of Inter-American Principles on the Legal Framework for the Creation, Operation, Financing, and Dissolution of Non-profit Civil Entities adopted and forwarded to the Permanent Council for submission to the General Assembly.
The text proposes twelve general principles, each with supporting notes explaining its basis, scope, and justification, illustrating how some specific situations may be addressed. Each principle also has a statement of the international standard on which it is based, whether it was issued by an international body or authority for the protection of human rights at the inter-American or global level, or from another source. These principles are based on current rules and existing domestic practices at the regional and international levels. Lastly, it is important to note the contribution that this study has made to the efforts by other Organization of American States bodies in terms of the participation of organized civil society, as well as in strengthening civic spaces, a vital component of any democratic society.
The principles are summarized below.
Freedom of association
Freedom of association consists of the right to participate in the creation, operation, financing, and dissolution of nonprofit civil entities.
Autonomy of founders and members
Nonprofit civil entities are created by the free and autonomous will of their founders, associates or members.
Simple and transparent registration procedures
Establishment and registration procedures should be simple, timely, clear, non-discriminatory, and non-discretionary. The law must establish clearly-defined requirements and documents needed to obtain and maintain recognition of legal personality, and must establish clear procedures, deadlines, and costs for processing.
Principles of legality
The lifecycle of nonprofit civil entities shall be regulated primarily by laws or codes approved by the legislative body, for everything that is necessary and reasonable for a democratic society.
Registration and recognition by an independent and autonomous agency
Member states shall, in keeping with their constitutional and administrative structures and in all applicable cases, establish registration services or independent and autonomous public agencies for the registration and recognition of the legal personality of civil entities and ensure that those bodies provide their services with professionalism, impartiality, and transparency, pursuant to these principles.
Freedom of action
Nonprofit civil entities may pursue their broad mission functions in the public interest and/or for the mutual benefit of their members, with no restrictions other than those permissible under international human rights treaties, nor illegal or arbitrary interference.
Right to seek, obtain, and use funding
Nonprofit civil entities have the right to seek, access, and use funding for the achievement of their social objectives, from public and private, as well as domestic and foreign sources.
Appropriate control of illicit financing
State responsibility to regulate unlawful financial activities must be discharged in accordance with the obligations set forth in international human rights treaties. Restrictions on nonprofit civil entities must be proportionate to the risk identified, evidence-based, and applied without limiting legitimate activities in the sector.
Access to public funding on fair and non-discriminatory terms
CSOs shall have access to public funds through transparent, fair, and non-discriminatory procedures, with their legal representatives subject to the general rules on accountability and liability.
Special tax regime
CSOs shall have access to tax benefits in accordance with their nonprofit status, without discrimination.
Commensurate punishment and due process
State-imposed sanctions on nonprofit civil entities shall apply only in limited circumstances previously established by law. They must be progressive, necessary and strictly proportional, for reasonable cause, and motivated and explained based on proven grounds in a judicial process, with all the due process guarantees.
Voluntary and forced dissolution
Non-profit civil entities should be dissolved, and their assets liquidated and disposed of, in accordance with their statutes and the express will of their members. Members may not distribute organizational assets amongst themselves. Forced dissolution, as a legal sanction, shall be appropriate only in exceptional circumstances, in the most serious cases involving a threat to a legitimate interest recognized in international human rights instruments, and when less restrictive measures are insufficient to protect such interest.