R IGHT TO ACCESS FUNDING
HUMAN RIGHTS DEFENDERS BRIEFING PAPERS SERIES

May 2009

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TABLE OF CONTENTS

Preface ……………………………………………………………..
………………………………… 1

Introduction ……………………………………………………………..
…………………………. 2

I. Funding and the right to freedom of association ………………………………… 3

II. Access to funding as a self-standing right ………………………………………… 5

III. Funding and the important role of civil society ………………………………… 7

IV. Restrictions and case studies …………………………………………………………. 9

1. Restriction on use of funding ………………………………………………………….. 10

2. Restrictive legislation ……………………………………………………………..
……… 10

3. Poor implementat ion of legislation …………………………………………………… 11

V. Conclu sion ………………………………………………………….
………………………… 13

ANNEX I: Relevant international provisions ………………………………………… 14

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PREFACE

This briefing paper examines the scope of the right to freedom of association, with
particular emphasis on human rights defenders and their work. This paper draws
together the various international standards fo r the protection of this right, in addition
to examining the different challenges to this right for human rights defenders.

The primary audience of this paper are human rights defenders working at the
international, regional and national levels. This paper seeks to present relevant
information in a simple and accessible manner to defenders, and act as a practical tool
to support them in their work. It can be us ed as a resource or background reading for
specific trainings for defenders on this topic, in addition to assisting in national
advocacy or awareness-raising efforts on the right to freedom of association.

This paper may also be of use to national human rights institutions (NHRIs) when
dealing specifically with defenders’ issues. In addition, it can be u
sed as resource
material for NHRIs when providing advice to States in formulating or reviewing
legislation relating to the right to freedom of association.

This briefing paper also collates and refere nces the work of the UN treaty bodies and
the UN Special Rapporteur on human rights de fenders on the right to freedom of
association in relation to defenders. Academics, students and a wider audience may
therefore also find this paper of use as a guide to the in ternational standards for the
protection of the right to freedom of association for defenders.

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INTRODUCTION

Human rights defenders face a range of obstacles in carrying out their work, one of
which is restrictions on their ability to access funding and financial resources in order
to sustain their activities. Legislation and court actions are increasingly being used to
hinder the ability of human rights defenders to access financial resources to fund their
organisations, specific projec ts or other activities. In many countries, for example,
authorities place restrictions on foreign sources of funding.
1 In countries with scarce
domestic resources, where human rights orga nisations are often only able to operate
using foreign grants, legal or administrativ e obstacles can result in the organisations
being unable to operate.

The right to access funding is therefore a right central to the work of human rights
defenders. While the right to access funding doe s not formally exist under international
human rights law, several international instruments do explicitly provide for this right.
Additionally, several internat ional instruments support the view that access to funding
forms an integral part of the right to freedom of association, which is firmly enshrined
in international human rights law.

This paper examines the standards of pr otection of the right to access funding under
international human rights law. Section I examines the right to access funding within
the context of freedom of association. Section II examines the UN Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Hu man Rights and Fundamental Freedoms

(Declaration on human rights defenders), which codifies access to funding as an
autonomous right. Section III provides some examples of violations of the right to
access funding.

1 General Assembly, SRSG HRC Report (2004), UN Doc. A/59/401, Para.75.

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I. FUNDING AND THE RIGHT TO FREEDOM OF ASSOCIATION

As funding is critical for non-governmental organisations (NGOs) to carry out their
human rights activities in a sustainable way, the right to seek and receive funds can be
considered to be encompassed by the righ t to freedom of association based on the
following argument. Human rights associations and organisations generally function on
the ‘not-for-profit’ principl e, and therefore depend heav ily on external sources of
funding in order to carry out their work. Restri ctions and barriers to funding, therefore,
severely undermine the right to freedom of association. If freedom of association is
formally recognised and protected, but indi viduals and organisations are denied the
means and resources to pursue their legitima te objectives as an association, then the
right cannot be considered to be effectively protected in concrete terms. The
interpretation of several international human rights trea ties through the concluding
observations issued by the UN treaty monitori ng bodies, have strongly supported this
interpretation of the right to access funding.

The first international instrume nt to refer explicitly to the right to access funding is the
1981 UN Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief .
2 According to Article 6, the right to
freedom of religion and belief includes fr eedom ‘to solicit and receive voluntary
financial and other contributions from indivi duals and institutions’. In this case, access
to funding is understood as being necessary for carrying out religious practices,
3 and is
therefore intrinsically linked to the right to freedom of religion. This provision reflects
the view that access to funding may be an im portant component for the realisation of
other rights, such as in this case, the right to freedom of religion. In a similar manner,
the full and free exercise of the right to freedom of association can be seen to be
contingent on the right to access funding, an d restrictions and barriers to funding
potentially impair the right to freedom of association.

Authoritative support to this approach co mes from the UN treaty monitoring bodies,
established under the core UN human rights tr eaties. On several occasions the Human
Rights Committee (HRC) has expressed conc ern at limitations placed by domestic
legislation on the ability of NGOs to seek foreign funding, stating its inconsistency
with Article 22 of the International Covenant on Civil and Political Rights (ICCPR),
which protects the right to freedom of associ ation. In the case of Egypt, for example,
the HRC expressed its concern:

(…) at the restrictions placed by E gyptian legislation and practice on the
foundation of non-governmental organiza tions and the activities of such
organizations such as efforts to secu re foreign funding, which require prior
approval from the authorities on pain of criminal penalties ([A]rticle 22 of the
Covenant).

The Committee recommended that the State party:
(…) review its legislation and practic e in order to enable non-governmental
organizations to discharge their functions without impediments which are

2 General Assembly Resolution 36/55 of 25 November 1981. 3 M. Nowak, CCPR Commentary (N.P.Engel, 2005), 420, Para.25.

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inconsistent with the provisions of [A]rticle 22 of the Covenant, such as prior
authorisation, funding controls and administrative dissolution. 4

A similar position has been taken by the Committee on Economic, Social and Cultural
Rights (CESCR), which has observed that gove rnment control over the right of NGOs
to seek external funding is incompatible with Article 8 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR).
5 In addition, the same position
has also been adopted by the Internationa l Labour Organisation (ILO), which has held
that laws requiring official approval of funds from abroad may be incompatible with
Convention No. 87 on Freedom of Associ ation and Protection of the Right to
Organise.
6

4 Human Rights Committee, Concluding Observations on Eg ypt, CCPR/CO/76/EGY, 28 November 2002, Para.21. 5 See, for example, E/2001/22 (2000) 38, Paras 161 and 176 (Egypt). 6 Human Rights First, The Neglected Right: Freedom of Association in International Human Rights Law (1997).

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II. ACCESS TO FUNDING AS A SELF-STANDING RIGHT

In 1998, the General Assembly adopted the Declaration on human rights defenders, 7
which elaborates on the application of established human rights principles and
protections for human rights defenders, and to the specific circumstances in which they
work. While the Declaration on human rights defenders is not a legally binding text, its
adoption by consensus represents a strong political commitment by all UN member
States to respect the principles enshrined in the Declaration on human rights defenders.
Additionally, as the Declaration on huma n rights defenders consolidates existing
human rights norms that are enshrined in other legally binding human rights
instruments such as the ICCPR, it effec tively provides a normative framework for the
protection of human rights defenders.

As the Declaration on human rights defende rs elaborates upon the application of
existing human rights norms to the particular situation of human rights defenders, it
codifies access to funding for human rights activities as a self-sta nding right. Article 13
of the Declaration on human rights defenders states:
Everyone has the right, individually and in association with others, to solicit,
receive and utilise resources for the expr ess purpose of promoting and protecting
human rights and fundamental freedoms through peaceful means, in accordance
with [A]rticle 3 of th e present Declaration.

The inclusion of this provision has been c ontroversial and was the object of intense
negotiations during the 13 years of the draf ting of the Declaration on human rights
defenders.
8 The 1997 draft of the Declaration on human rights defenders did not
include the right to access funding in the text as consensus had not as yet been achieved
on this issue.
9 However, despite fears that this i ssue may have had to eventually be
dropped in order to reach consensus, the revised text presented the following year
included the right to recei ve funding, and was adopted.

States are under an obligation to permit indi viduals and their organisations ‘to solicit,
receive and utilise resources’. The wording us ed covers all the phases connected to the
cycle of funding: seeking funds from all appropriate sources, both nationally and
internationally, receiving funds , and using them for legitimate purposes. Restrictions on
this right may affect any of these three pha ses. However, while defenders are usually
able to solicit funds (which often simply involves submitting an application or proposal
for funding), restrictions most often affect the ability of defenders to receive the funds
or to use them once received. An example is an absolute prohibition on receiving funds
from foreign sources. In such cases, if f unds are received, they are seized and the
persons involved may face criminal charges. Another example is a regime of prior

7 Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognised Human Rights and Fundamental Freedoms , commonly known as Declaration on human rights
defenders, General Assembly Resolution 53/144, 9 December 1998.
8 For an account of the establishment and activities of the Working Group on the draft declaration, see International
Service for Human Rights (ISHR), The United Nations Draft Declaration on Human Rights Defenders. Analysis and
Prospects , HR Dossier No.1, January 1998.
9 At the 1997 meeting of the working group in charge of dra fting the Declaration, the ‘unsettled issues’ were: the right to
attend and observe court proceedings; the ro le of national legislation and its relationship with international law; the
duties and responsibilities of human rights defenders; and access to funding.

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authorisation by a government authority, which in most cases allows the relevant
authority the discretion to deny authorisation.

The right to access funding requires States to adopt a legislative and administrative
framework facilitating, or at least not impeding, solicitation, receipt, and use of
resources. The only limitation provided fo r in the Declaration on human rights
defenders refers to the purpose and means for the use of funds, which have to be used
‘for the express purpose of promoting a nd protecting human rights and fundamental
freedoms through peaceful means’. Resources intended for purposes other than that, or
advocating non-peaceful means, are excluded.

Article 13 of the Declaration protects access to funding ‘in accordance with [A]rticle 3
of the present Declarat ion’. Article 3 states:

Domestic law consistent with the Charter of the United Nations and other
international obligations of the State in the field of human rights and
fundamental freedoms is the juridical fr amework within which human rights and
fundamental freedoms should be implemen ted and enjoyed and within which all
activities referred to in the present Decl aration for the promotion and effective
realisation of those rights and freedoms should be conducted.

States may attempt to justify legislation or practices restricting access to funding on the
basis of the reference to domestic law referred to in Article 3. However, the Special
Rapporteur on human rights defenders, mandate d to monitor the implementation of the
Declaration on human rights defenders, among other activities, clarified that that
provision must be read together with Article 4.
10 The Special Rapporteur has clarified
that domestic legislation is the framework within which defenders carry out their
activities and enjoy their rights as long as domestic law is consistent with international
human rights law. Attempts by States to ju stify restrictions on access to funding on this
basis must therefore be rejected.

The right can be exercised by ‘everyone, individually and in association with others’
(emphasis added). This means that the ex istence of an organisation is not a pre-
requisite for the exercise of the right to access funding. This implies that access to
funding is not only an element of the right to freedom of association, but is protected as
a substantive self-standing right. This means that an individual is entitled to solicit,
receive, and use funding, even if he or sh e does not belong to an association. Any
restriction justified on the basis that the indi vidual concerned is seeking funds in his/her
own name (and not as member of an NGO) must therefore also be rejected.

10 Article 4 of the Declaration reads: ‘Nothing in the present Declaration shall be construed as impairing or contradicting
the purposes and principles of the Charter of the United Nati ons or as restricting or derogating from the provisions of
the Universal Declaration of Human Rights, the Inter national Covenants on Human Rights and other international
instruments and commitments applicable in this field.’

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III. FUNDING AND THE IMPORTANT ROLE OF CIVIL SOCIETY

An important contribution of the treaty bodies to the protection of human rights
defenders has been their view with regard to the role of civil society organisations. The
treaty bodies have consistently underscored the importance of an active and functioning
civil society for the full implementation of the treaties, and have highlighted that States
should create an enabling environment for de fenders to operate freely and without
hindrance.
11 The HRC and CESCR have based their recommendations on the
provisions protecting the right to freedom of expression, association and participation
in public life, and the right to form and join trade unions. Other committees have
viewed this general duty as aris ing from their respective treaties.

This duty has both a positive and a negativ e dimension. State parties should support
civil society and refrain from any illegitimat e restrictions of its rights. The duty of
States to create an enabling environment for defenders thus also has direct implications
on allowing access to funding. An example is provided by the Committee on the Rights
of the Child (CRC):
The Committee is concerned that civil society is under-resourced, insufficiently
well organized and consequently una ble to contribute fully to the
implementation of children’s rights in the State party. (…). The State party
should review the capacity and cont ribution of civil society in the
implementation of the Convention. It is recommended that the State party make
every effort to strengthen the role played by civil society, inter alia, through
improvements in the registration of NGOs, the provision of support to civil
society in accessing resources (emphasis added) and through facilitating the
functioning of civil so ciety programmes. (…).
12

Similar wording has also been adopted by th e Committee on the Elimination of Racial
Discrimination (CERD)
13 and the Committee on the Elimination of Discrimination
Against Women (CEDAW). 14 The latter, in particular, went beyond the
recommendation to facilitate access to or provide support in accessing resources, and
recommended that the State directly ensu re financial support to NGOs and adopt
awareness-raising initiatives to encourage indi viduals and corporations to donate funds:
The Committee notes with concern the insufficient funding of non-governmental
organizations, including women’s non- governmental organizations, which
makes it difficult for them to build thei r capacities to fulfil their various roles
and functions in supporting huma n rights of women. The Committee
recommends that the Government develop clear criteria for rendering and
ensuring governmental financial support on the national and local level for the
work of women’s non-governmental organi zations. It also recommends that the
Government increase awareness among indi viduals and corporations regarding
possible donations to women’s organizations.’
15

11 See, for example, CERD/C/65/CO/3, Para.21 (Kaz akhstan); CCPR/C/79/Add.76, Para.19 (Belarus);
CRC/C/15/Add.260, Para.34 (Nepal).
12 Committee on the Rights of the Child, Concluding Observations on the Central African Republic, CRC/C/15/Add.138,
18 October 2000, Paras 22 and 23.
13 See, for example, CERD/C/IRL/CO/2, 14 April 2005, Para.12 (Ireland). 14 See, for example, A/55/38,paras.118-165 (2000), Paras 80 and 81 (Albania). 15 A/55/38, Paras 118-165 (2000), Para.155 (Lithuania).

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The treaty bodies have also identified specific types of conduct as violations of the
right to access funding and have referr ed to the requirement to obtain prior
governmental authorisation for receiving grants from donors as well as to restrictions
on funding coming from abroad. An example is provided by the concluding
observations of the CRC for Nepal:

The Committee expresses concern over th e wide-ranging restrictions placed by
the authorities on civil society organizations such as re-registration requirements,
censorship, travel ban, and requirement to obtain prior governmental
authorisation for receiving grants from donors (emphasis added). The
Committee underlines the importance of th e role of civil society in the full
implementation of the Convention and r ecommends that the State party remove
all legal, practical and administrative obstacles to the free functioning of civil
society organizations in the State party.
16

The right to access funding can thus be de rived from various sources. Access to
financial resources can be viewed as a corolla ry to the right to freedom of association,
as we have seen above. In the case of human rights defend ers in particular, access to
funding is also viewed as a self-standing ri ght, as stipulated in the Declaration on
human rights defenders. Finally, this overvie w of the concluding observations of the
treaty bodies demonstrates that this right ma y be derived from the general duty of State
parties to the core human ri ghts treaties to encourage and foster the activities of non-
governmental and civil society organisations.

16 Committee on the Rights of the Child, Concluding Ob servations on Nepal, CRC/C/15/Add.260, 3 June 2005, Paras
33 and 34.

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IV. RESTRICTIONS AND CASE STUDIES

The right to access funding may be restricted in a variety of ways, ranging from
procedures aimed at limiting the ability of defenders to solicit grants or other sources of
funding, to regulations that constrain the receipt and use of funding. In many cases,
restrictions particularly target foreign funding and thus impair the ability of
organisations to operate, especially when no alternative financial avenues are available.
The most common types of restrictions are ab solute prohibitions of grants from foreign
donors and regimes of prior governmental authorisation.
17 If there are no funds
available domestically, as is often the case in many countries, human rights
organisations are only able to operate usi ng foreign grants. Legal or administrative
obstacles upon their ability to secure funds result in the inability of these organisations
to carry out specific activities, and sometimes, even to exist.

In addition to controlling access to funding as seen above, restrictions may also apply
to the ways in which funds are used. Ther e are numerous examples of NGOs not being
permitted to use funds for certain activities , for example, to organise particular
meetings or demonstrations, or to produce documents and reports on particular topics.
18
Any limitations on the right to access funding can only be viewed as legitimate if there
exist clear criteria and conditions justifying th ese restrictions, as most often, limitations
on this right are purely aimed at constr aining the human rights work of NGOs and
infringing upon their independence a nd ability to operate freely.

It is important to note that the rights to freedom of expression, assembly and
association as codified in the ICCPR can be permissibly restricted on the basis of a
number of specified criteria. For example, thes e rights can be restricted if their exercise
poses a threat to national security, public order, public health or public morals. For
restrictions to be permissible, they must be codified by law, and must be proportional to
the aim sought. In the case of the ri ght to access funding, however, no such
‘permissible limitations’ are qualified in the Declaration on human rights defenders in
the same way as in the ICCPR. While the Declaration on human rights defenders
codifies the right to funding as a self-standing right that is of cri tical importance to
defenders, in the context of the ICCPR, this right is considered a counterpart to the
right to freedom of association. Therefore, the same criteria for assessing the
permissibility of limitations on the right to fr eedom of association can be applied to the
right to access funding.
19

Another type of restriction on access to f unding is reducing the amount of financial
resources accessible to an organisation th rough taxation. For example, in a country
where not-for-profit associations are in principle tax-exempted, a tax up to 25% was
introduced on funds received by a human rights organisation.
20 Freedom of association
does not require States to grant tax benefits to not-for-profit organisations. However, if
an arbitrary distinction is made between not -for-profit organisations and not-for-profit

17 General Assembly, SRSG HRC Report (2004), UN Doc. A/59/401, Para.75. 18 General Assembly, SRSG HRC Report (2004), UN Doc. A/59/401, Para.76. 19 For more information on restrictions to fr eedom of association, please refer to ISHR, Right to Freedom of Association
(January 2009).
20 (Country not named in the report.) General Assembly, SRSG HRC Report (2004), UN Doc. A/59/401, Para.78.

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organisations working on human rights issues , this would amount to discriminatory
treatment and constitute a violation.

The following case studies offer some examples of illegitimate restrictions on access to
funding.

1. Restriction on use of funding

In August 2003, the Belarusian Helsinki Comm ittee (BHC), the Belarus branch of the
International Helsinki Federation, received an official warning fr om the Ministry of
Justice for omitting the quotati on marks from the organisation’s name on its official
letterheads and organisationa l symbol. The charge provided the pretext for an
investigation by the Department of Finan ce, following which criminal charges were
brought against representatives of the BHC for ‘omission to register foreign financial
assistance’. The Department of Finance st ated that the BHC owed the State 385 million
Belarus roubles in unpaid taxes and fines for alleged unlawful use of project funds
received under the European Union TACIS Programme. However, according to the
Memorandum on Financing between Belarus and the European Union (10 May 1994)
the TACIS programme was exempt from ta xation. Representatives of the BHC faced
criminal charges under Article 243 of the Criminal Code that could result in their arrest
as well as the closure of the Committee’s bank account and the confiscation of its
property.
21

As seen above, Article 13 of the Declarati on on human rights defenders covers three
‘phases’ related to funding: solicitation, re ceipt, and utilisation of resources. In the
example above, the organisation concerned had already solicited and received funds
from the European Union. The conduct of the au thorities, in violation of the agreement
reached with the EU and concerning the status of the TACIS programme for tax
purposes, thus concerned the use of the resources. Tax regulations were used – in
violation of the agreement between Belaru s and the EU – to stop BHC activities and
harass their members. This constituted a violation of Articles 1 and 13 of the
Declaration on human rights defenders and Article 22 of the ICCPR.

2. Restrictive legislation

In 2004, Zimbabwe drafted a new Non-Gove rnmental Organisations (NGO) Bill,
replacing the Private Voluntary Organisations (PVO) Act of 1967. The draft bill
required that all NGOs and Church-based orga nisations in Zimbabwe register with a
newly established Non-Governmental Organi sations Council. Section 9 of the bill
criminalised any organisation operating w ithout registration and imposed criminal
sanctions of up to five months imprisonmen t to the board member of such an NGO.
NGOs already registered under the existi ng PVO Act were granted a one-year grace
period before being required to re-register, whereas NGOs not required to register
under the PVO Act were deemed illegal until their registration was accepted by the new
NGO Council. Concerns were expressed with regard to the independence and wide-
ranging powers of the registration body. In particular, the NGO Council was composed
of five NGO representatives and nine government represen tatives, all appointed by the
Minister of Public Service, Labour and Social Welfare. Section 4 of the draft bill
granted the Council the authorit y to ‘determine every application for registration (…),

21 Report of the Special Representative of the Secretary-General on Human Rights Defenders (2005),
E/CN.4/2005/101/Add.1, Para.66.

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conduct investigations into the administration and activities of NGOs (…), take
disciplinary actions (…), [and] formul ate a code of conduct for NGOs’. The law
prohibited access to funding for local NGOs working on human rights and governance
issues, which provided that ‘No local NGO sh all receive foreign funding or donation to
carry out activities involving or includi ng acts of governance’. Further concern was
expressed with regard to the prohibition of international NGOs from carrying out
human rights work. In particular, the b ill stated that ‘No foreign NGO may be
registered if its sole or principal objects involve or include any issues of governance’,
with governance defined as including the ‘p rotection and promotion of human rights’.
22

While in general States are entitled to regulate the establishment and functioning of
NGOs, the example of the draft law from Zimbabwe described above appears to be so
restrictive so as to entirely hinder the exercise of the right to freedom of association for
human rights defenders. Measures that strictly limit NGO activities also include the
criminalisation of non-registered NGOs and preventing newly established organisations
from starting any kind of activity before re gistration is obtained. Additionally, also of
concern in the above example of Zimbab we, are the composition and powers of the
NGO Council, which can investigate, take disciplinary actions and impose a code of
conduct on NGOs. Further, the wide-ranging powers of a similar administrative body
such as the NGO Council may easily be abused as it appears not to be subjected to
judicial scrutiny. With specific regard to funding, limitations include preventing local
NGOs from receiving any sort of financial support from abroad. Given the relative
difficulty of obtaining local funding, this prohibition acts as a serious obstacle for local
organisations. Coupled with this measure is the prohibition on ‘foreign’ human rights
NGOs from obtaining registrati on in Zimbabwe, which results in a reduced number of
human rights NGOs in the country.

It is noteworthy that Zimbab we defended such restrictive legislation arguing that
foreign-funded organisations and foreign organisations deali ng with ‘governance
issues’ had proven to be a threat to national security by funding ‘insta
bility and chaos’
in the country and using the excuse of hu man rights to pursue the policies of foreign
governments against Zimbabwe.
23

3. Poor implementation of legislation

In some cases, restrictions on access to fundi ng may not be formally enshrined in the
laws regulating the establishment and f unctioning of NGOs, but in administrative
practices related to their application. In Azerbaijan, for example, while legislation
presents many shortcomings and limitations, it is not as restrictive as the case of
Zimbabwe above. In Azerbaijan, NGO ac tivities are regulated by the 2000 Law on
Non-Governmental Organisations and the 1996 Law on the State Registration of Legal
Entities. Other relevant norms are included in the Law on Grants and in the Civil Code.
The legislative framework leaves NGOs free to operate without acquiring formal status.
The 2000 Law on NGOs was examined by the Council of Europe, and found to have
many gaps, including provisions which are often vague and ambiguous, thus leaving
room for their arbitrary interpretation.

22 Report of the Special Representative of the Secretary-General on Human Rights Defenders (2005),
E/CN.4/2005/101/Add.1, Para.621. See also Amnesty International, Zimbabwe: Human Rights Defenders under Siege
(2005) and FIDH / OMCT Observatory, Human Rights defenders on the Frontline – Report 2004, p.96 ff.
23 Government of Zimbabwe’s reply to a communication sent by the Special Representative on Human Rights
Defenders, E/CN.4/2005/101/Add.1, Para.625.

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However, the main problems did not arise from the legislation itself, but from the
practical application of the relevant la ws by the administrative authorities in
Azerbaijan. Indeed, the administrative auth orities responsible for the registration
process often failed to inform the applican t organisation of the decision taken, even
though the law prescribed that the competent Mi nistry reply within ten days. Delays in
taking a decision on registration usually varied between 1-2 months to 1-2 years, and
during this period, organisations could not fully operate. In many cases the authorities
repeatedly requested new corrections to the documents submitted, or requested to
submit extra documentation not required by la w. In several cases, when refusing
registration, the authorities fa iled to indicate the legal basis of the decision, or made
incorrect reference to law, thus hindering the possibility of the applicant organisation
appealing the decision. Finally, the law requi red the monthly publication of information
on registered organisations, but authorities of ten failed to do so. Consequently, it was
difficult for organisations applying for re gistration to know whether the name they
chose had already been regi stered by another organisation, which often provides
grounds for the denial of registration.
24

The issues highlighted above are not a direct consequence of provisions of the
Azerbaijani NGO law, but the pr actice of the authorities which constituted a violation
of the law, for example, when requesting do cuments not prescribed by law, or when
failing to adopt a decision within the prescrib ed time limit. Other acts did not represent
formal violations of the law, yet had the same negative impact upon NGO activities,
such as when no indication was given, or when incorrect references were
made to the
grounds on which registration was refused.

Unfortunately, the case of Azerbaijan is not an isolated one. Very often
the existence of
a good legislative framework is used by the aut horities to reject criticism, yet it does
not provide a guarantee agains t abuses and problems, if not followed by the correct and
fair application of the law.

24 International Centre for Non-Profit Law, Probl ems of NGO Registration in Azerbaijan – a Survey.

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V. CONCLUSION

The cases reported in the previous section only represent a few examples of how States
may hinder the activities of human rights de fenders. Restrictive legislation governing
access to resources is often coupled with other forms of harassment and violence
against human rights defenders, aimed at prev enting them from pursuing their activities
and goals. They include carrying out arbitrar y searches on their premises, confiscation
of documents, arrests, criminal prosecutions, and threats of, or actual de-registration or
dissolution of the organisation.

Limitations concerning the right to receive funding may range from the existence of
complex and burdensome procedures to solicit grants or other financial resources, to
restrictive regulations on their receipt a nd use, particularly on foreign funds. This
severely affects the ability of NGOs to ca rry out their activities in the many cases
where foreign funding is the only available resource.

The increasing number of countries adop ting restrictive laws governing NGOs and
associations represents a disturbing trend to wards the institutionalisation of restrictions
on the work of human rights defenders. As underscored by the Special Rapporteur on
human rights defenders, in addition to harassm ent or abuse of defenders by institutions
such as the police or military, it is now of ten courts and administrative and legislative
bodies that present serious challenges to the work of defenders through the adoption
and application of restrictive laws and regulations.

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ANNEX I: RELEVANT INTERNATIONAL PROVISIONS

I. RIGHT TO ACCESS TO FUNDING

Article 13, Declaration on the Rights and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognised Human Rights and
Fundamental Freedoms

Everyone has the right, individua lly and in association with others, to solicit, receive
and utilise resources for the express purpos e of promoting and protecting human rights
and fundamental freedoms through peaceful means, in accordance with [A]rticle 3 of
the present Declaration.

Article 6 (f), Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief

In accordance with [A]rticle 1 of the presen t Declaration, and subject to the provisions
of [A]rticle 1, paragraph 3, the right to freedom of thought, conscience, religion or
belief shall include, inter alia, the following freedoms: (…)
To solicit and receive volunt ary financial and other contri butions from individuals and
institutions.

II. RIGHT TO FREEDOM OF ASSOCIATION

Article 22, International Covenant on Civil and Political Rights

1. Everyone shall have the right to freedom of association with others, including the
right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interest of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the ri ghts of freedoms 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.
3. (…)

Article 8, International Covenant on Economic, Social and Cultural Rights

1. The States Parties to the presen t Covenant undertake to ensure:
(a) The right of everyone to form trad e unions and join the trade union of his choice,
subject only to the rules of the organization concerned, for the promotion and
protection of his economic and social interest s. No restrictions may be placed on the
exercise of this right other than those pr escribed by law and which are necessary in a
democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(b) The right of trade unions to establish national fede rations or confederations and
the right of the latter to form or join international trade-union organizations;

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(c) The right of trade unions to function freely subject to no limitations other than
those prescribed by law and which are necessary in a democratic society in the interests
of national security or public order or for the protection of the rights and freedoms of
others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the
particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of
these rights by members of the armed forces or of the police or of the administration of
the State.
3. (…)

Article 5, International Convention on the Elim ination of All Forms of Racial
Discrimination ,

In compliance with the fundamental obligatio ns laid down in [A]rticle 2 of this
Convention, States Parties undertake to prohi bit 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 origin, to equality before the law, notably in the enjoyment
of the following rights: (…)
d) Other civil right s, in particular: (…)
(ix) The right to freedom of peaceful assembly and association; (…)
e) Economic, social and cultu ral rights, in particular: (…)
(ii) The right to form and join trade unions; (…).

Article 15, Convention on the Rights of the Child

1. States Parties recognize the rights of th e child to freedom of association and to
freedom of peaceful assembly.
2. No restrictions may be placed on the ex ercise of these rights other than those
imposed in conformity with the law and whic h are necessary in a democratic society in
the interests of national security or public safety, public order ( ordre public), the
protection of public health or morals or th e protection of the rights and freedoms of
others.

Other international and regional treaties protecting the right to freedom of association:

• ILO Convention (No 87) concerning freedom of association and protection of the
right to organise;
• ILO Convention on the Right to Or ganise and Collective Bargaining;
• ILO Convention on Workers’ Representatives;
• Convention relating to th e Status of Refugees;
• European Convention for the Protection of Human Rights and Fundamental
Freedoms;
• European Social Charter;
• African Charter for Human and Peoples’ Rights;
• African Charter on the Rights and Welfare of the Child;
• American Convention on Human Rights;

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• Additional Protocol to the Inter-American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights;
• Inter-American Convention on Violence against Women;

Other international and regi onal instruments protecting the right to freedom of
association:

• Universal Declaration on Human Rights;
• Declaration on the Rights and Responsibil ity of Individuals, Groups and Organs of
Society to Promote and Protect Universally R ecognised Human Rights and
Fundamental Freedoms;
• Declaration on the Rights of Persons Belongi ng to National or Ethnic, Religious or
Linguistic Minorities;
• American Declaration on the Rights and Duties of Man .

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17
PROJECT COORDINATOR

Inmaculada Barcia, Manager, Regional & Nationa l Human Rights Defenders
Programme

AUTHORS

Kaavya Asoka, Human Rights Officer
Andrea Rocca, Human Rights Officer

EDITORIAL TEAM

Inmaculada Barcia, Manager, Regional & Nationa l Human Rights Defenders
Programme
Eléonore Dziurzynski , Communication Manager
Isabelle Scherer, Director

ABOUT THIS PUBLICATION

The Human Rights Defenders Briefing Papers are a series of six briefing papers
providing simple and practical information on rights relevant to the work of human
rights defenders. Other papers cover righ t to freedom of assembly, freedom of
association, freedom of expression, access to information and access to international
bodies.

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DISCLAIMER

While every effort has been made to en sure the accuracy and reliability of the
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legal liability whatsoever arising from a ny possible mistakes in the information
reported on, or any use of this publication. We are however happy to correct any errors
you may come across so please notify k.asoka@ishr.ch
.