International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 5
Article

A DIFFERENCE IN APPROACH:
COMPARING THE US FOREIGN AGENTS REGISTRATION ACT
WITH OTHER LAWS TARGETING
INTERNATIONALLY FUNDED CIVIL SOCIETY

SAMANTHA LAUFER1

I. Introduction
Over the last decade, several countries have drafted legislation that targets civil society
organizations that receive international funding. Governments have justified the enactment of
these laws by claiming that they are based on the United States Foreign Agents Registration Act
(FARA).2
This article will address the ways in which FARA differs from legislation drafted in other
countries. The article is not intended to be a comprehensive analysis or defense of FARA.
Rather, governments targeting internationally funded civil society organizations (CSOs) often
claim they have modeled their legislation on FARA, and this paper discusses critically important
differences in approach.

II. Background
The Foreign Agents Registration Act (FARA)3 was enacted in 1938 in response to the
proliferation of German propaganda prior to World War II.4
The stated purpose of the Act was to
ensure that government officials and citizens would be aware of the identity of those “engaging
in political activities for or on behalf of foreign governments, foreign political parties, or other
foreign principals, so that their statements and activities could be appraised in the light of their

1 Samantha Laufer is a 2018 J.D. candidate at Georgetown University Law Center and an intern at the
International Center for Not-For-Profit Law (ICNL). The author thanks Douglas Rutzen and the staff of ICNL for
their guidance and support.

2 In 2012, in response to criticism over Russia’s foreign agents law, President Vladimir Putin said, “I
believe that in Russia we can have a law similar to that adopted in the United States . . . why can we not do the same
in Russia?” In 2014, while defending the Kyrgyz foreign agents law, President Almazbek Atambayev argued that
“the terminology [foreign agent] was first introduced in America…the first of such laws was adopted in the cradle of
democracy – the USA.” Most recently, in 2016 Israel’s Minister of Justice Ayelet Shaked wrote an Op-Ed in which
she likened the Israeli NGO transparency law to the “similar” U.S. FARA. (See NGO law protects Russia from
foreign influence – Putin, RT, July 31, 2012, https://www.rt.com/politics/putin-seliger-forum-power-496/;
International Center for Not-for Profit Law, Analysis of the draft law of the Kyrgyz Republic on Making Additions
and Amendments to Certain Legislative Acts in of the Kyrgyz Republic, https://peremena.kg/wpcontent/uploads/2015/06/Analysis-of-ICNL-on-KG-draft-law-on-foreign-agents-eng_30-May.pdf; Ayelet Shaked,
Opinion, Ayelet Shaked Defends Her NGO Bill, JEWISH TELEGRAPHIC AGENCY, Jan. 4, 2016,

Op-Ed: Ayelet Shaked defends her NGO bill

3Foreign Agents Registration Act of 1938 (“FARA”), 22 U.S.C.A. §611 – §621.

4 FARA Frequently Asked Questions, U.S. DEP’T OF JUSTICE, NAT. SEC. DIV., https://www.fara.gov/farafaq.html (last visited Oct. 16, 2016).
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 6
associations.”

5 FARA requires persons in the United States acting as agents of foreign principals
and engaging in political activities to register with the Department of Justice and disclose
information in connection with those activities.
In recent years, countries have proposed or enacted laws targeting internationally funded
CSOs, asserting that the legislation is similar to FARA.6

Examples of these laws include the following:
 Russia: In July 2012, the Russian government amended its Law on Noncommercial
Organizations (NCOs)7
to require that any NCO that receives international funding and
also engages in broadly defined “political activities” be labeled a “foreign agent” and
submit to stringent reporting and disclosure requirements. As of August 1, 2016, 137
groups were labeled “foreign agents” and at least 22 NCOs had shut down as a result of
the law.

8  Ukraine: In 2014, the Yanukovych regime passed the Law on Organizations Receiving
Funding from Abroad,9
though the law was never enacted or implemented. Similar to the
Russian NCO law, the bill required nonprofit groups that receive international funding
and engage in political activities to register as foreign agents and be subject to
burdensome reporting requirements. The law also targeted the mass media and internet
providers.
 Kyrgyzstan: In 2014, a draft law was introduced in the Kyrgyz Parliament that would
have amended the Law on Noncommercial Organizations by placing restrictions on
organizations that received funding from abroad and labeling such organizations as
“foreign agents.”10 The original draft of the law was identical to the Russian NCO law. In
May 2016, the Kyrgyz Parliament voted down the draft law.
 Israel: On July 11, 2016, the Israeli Knesset passed the Transparency Requirements for
Parties Supported by Foreign State Entities Bill,11 which imposes enhanced disclosure
burdens on CSOs that receive over 50 percent of their funding from certain foreign
sources. The law applies exclusively to nonprofit groups that receive funding from
public—as opposed to both public and private—foreign sources. Of the 27 groups
affected by this legislation, 25 are Palestinian human rights groups.12

5 U.S. DEP’T OF JUSTICE, REPORT OF THE ATTY GEN. TO THE CONGRESS OF THE U.S. ON THE ADMIN. OF THE
FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED, FOR THE SIX MONTHS ENDING JUNE 30, 2006 I – 2
(2007), https://www.fara.gov/reports/June30-2006.pdf.
6
See footnote 2.
7 Government of Russia, Amended Law on Noncommercial Organizations, 2016.
8
See Russian Ministry of Justice Registry of Foreign Agents,
https://unro.minjust.ru/NKOForeignAgent.aspx.
9 Government of Ukraine, Law on Organizations Receiving Funding from Abroad, 2014.
10 Government of Kyrgyzstan, Draft Law Amending the Law on Noncommercial Organizations, 2013.
11 Government of Israel, Transparency Requirements for Parties Supported by Foreign State Entities Bill,
2016.
12 Zena Tahhan, Israel passes controversial NGO bill amid criticism, Al Jazeera, July 12, 2016,
https://www.aljazeera.com/news/2016/07/israel-passes-controversial-ngo-bill-criticism-160712071408073.html.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 7
 Slovakia: At the time of writing, a “foreign agents” bill is pending in the Slovak
Parliament, requiring organizations covered by the bill to state on their educational and
informational materials “Warning! Foreign Agent.”13
III. Distinguishing Features of FARA
Three important features of FARA differentiate it from other laws targeting
internationally funded CSOs: (1) FARA requires an agent-principal relationship; (2) FARA
contains numerous exemptions to its application; and (3) FARA does not specifically target
CSOs.
1. FARA requires a principal-agent relationship
FARA requires the registration of any person or entity engaged in political activities and
acting as an agent of a foreign principal. The Act defines “agent of a foreign principal” as “any
person who acts as an agent, representative, employee, or servant, or any person who acts in any
other capacity at the order, request, or under the direction or control, of a foreign principal.”14 A
foreign principal includes any foreign government, foreign political party, non-U.S. person or
organization, or entities organized under the laws of other countries or having their primary place
of business outside the U.S.15
The meaning of “agent of a foreign principal” under FARA has been interpreted with
reference to the common law definition of agency.16 Under this definition, a principal-agent
relationship is created when an agent “acts as a representative of or otherwise on behalf of
another person” and where “[t]he person represented has a right to control the actions of the
agent.”17 This element of control is fundamental to the principal-agent relationship under FARA,
and the principal must “ha[ve] the right throughout the duration of the relationship to control the
agent’s acts.”18
In the Restatement (Third) of Agency, the American Law Institute provides examples of
relationships and circumstances that fall under this definition:
The elements of common-law agency are present in the relationships between employer
and employee, corporation and officer, client and lawyer, and partnership and general
partner. People often retain agents to perform specific services. Common real-estate
transactions, for example, involve the use of agents by buyers, sellers, lessors, and

13 See National Council on the Slovak Republic, Proposal to Amend Law No. 213/1997, available at
https://www.nrsr.sk/web/Default.aspx?sid=zakony/zakon&MasterID=6083. See also https://dennikn.sk/470467/ficoposkytol-rozhovor-tasr-bojovali-mimovladnym-sektorom-ktory-bol-casto-dotovany-financovany-zozahranicia/?ref=tit?ref=in
14 Foreign Agents Registration Act of 1938 (“FARA”), 22 U.S.C.A. §611(c)(1).
15 22 U.S.C.A. §611(b)(1)-(3).
16 See United States v. German-American Vocational League, 153 F.2d 860, 864 (3d Cir. 1946).
17 Restatement (Third) Of Agency § 1.01 (c) (2006).
18 Id. It is not enough to argue that dominance or influence over one party in itself create a principal-agent
relationship. Rather, a principal-agent relationship is created only when the principal “has a right of control, not
simply an ability to bring influence to bear.” Restatement (Third) Of Agency § 1.01 (c) (2006).
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 8
lessees. Authors, performers, and athletes often retain specialized agents to represent their
interests in dealing with third parties.19
As demonstrated by these examples, a principal-agent relationship requires one party to
act as a representative of or on behalf of another party, as we find with a lawyer and client or a
real estate agent and home buyer. In addition, the principal has the right to control the actions of
the agent throughout the duration of the relationship.
A principal-agent relationship is not created simply because one party agrees to provide
funding to a second party. This is true even if “the agreement between the service provider and
the recipient specifies terms and conditions creating contractual obligations that, if enforceable,
prescribe or delimit the choices that the service provider has the right to make.”20
Under FARA, the fact that a CSO receives international funding does not automatically
mean that it must register, even if the organization engages in “political activities.” Rather,
FARA requires that the entity act “at the order, request, or under the direction or control, of a
foreign principal.”21 Congress clarified this point 50 years ago when it amended the law’s
definition of “agent of a foreign principal” in order to “make clear that the mere receipt of a bona
fide subsidy not subjecting the recipient to the direction or control of the donor does not require
the recipient of the subsidy to register as an agent of the donor.”22 In sum, FARA’s registration
requirements are not triggered simply because a politically active organization also receives
international funding.
By contrast, other laws disregard FARA’s requirement that the entity act “at the order,
request, or under the direction or control, of a foreign principal.” For example, the Russian
“foreign agents” law applies if a CSO receives international funding (in any amount) and
engages in broadly defined “political activities,” even if there is no connection between the
international funding and the political activities. For example, if a Russian nonprofit helping
orphans received US$1,000 from an international source to buy cribs and baby food, and also
received funding from Russian citizens to advocate for a change in Russia’s child protection
laws, the nonprofit would have to register as a “foreign agent” even though there was no
connection between the international funding and the organization’s advocacy activities.
The same is true in other legislation. Neither the law adopted by the Yanukovych regime
in Ukraine nor the bill proposed in Kyrgyzstan required a connection between the international
funder and the CSO’s “political activities.” Similarly, the new Israeli NGO transparency law
applies to any CSO that receives 50 percent or more of its funding from foreign governments or

19 Restatement (Third) Of Agency § 1.01 (Comment c) (2006).
20 Restatement (Third) Of Agency § 1.01 (f)(1) (2006).
21 When seeking out potential registrants, the DOJ FARA Registration Unit “looks for direction, control,
and tasking from a foreign government.” DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., AUDIT OF THE NAT’L
SEC. DIV’S ENFORCEMENT AND ADMIN. OF THE FOREIGN AGENTS REGISTRATION ACT iii (2016) [hereinafter FARA
AUDIT 2016], https://oig.justice.gov/reports/2016/a1624.pdf.
22 H.R. Rep. No. 89-1470, at 2401 (1966). In September 2016 the Department of Justice’s Office of the
Inspector General (OIG) again clarified this point when it released a review of the FARA Unit’s enforcement of
FARA. The report stated that activities carried out by certain CSOs that receive international funding—for example,
think tanks, non-governmental organizations, and universities—have not been required by the FARA Unit to
register, despite the receipt of international funds, because they “generally claim that they act independently of
foreign control or are not serving a foreign interest.” FARA AUDIT 2016, supra note 21.
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political parties.23 In sum, these laws claim to be modeled after FARA, but they do not require a
principal-agent relationship or even any connection between the international funder and the
CSO’s advocacy activities.
2. FARA Contains Exemptions for Various Activities and Actors
FARA contains exemptions relevant to the nonprofit sector. First, FARA does not apply
to entities engaged in purely religious, scholastic, academic, or scientific pursuits, or the fine
arts.24 It also includes an exemption for entities engaged in the solicitation or collection of funds
for medical aid or “for food and clothing to relieve human suffering.”25
FARA also contains an exemption for lawyers representing foreign principals in litigation
or agency proceedings, so long as “representation does not include attempts to influence or
persuade agency personnel or officials other than in the course of [legal] proceedings.…”26 Such
an exemption does not exist in the foreign agents laws drafted in other countries. In fact, Russia
has labeled numerous legal service providers as “foreign agents,” including organizations
providing legal aid to migrant populations and victims of discrimination and homophobia.27
Some of the foreign laws contain no exemptions. The Israeli NGO transparency law, for
example, applies to all CSOs that receive public international funding. Other laws, such as the
Russian foreign agents law, do contain statutory exemptions,28 though it is unclear how these
exemptions are applied in practice. For example, despite excluding the “protection of flora and
fauna” from its definition of “political activities,” numerous environmental groups in Russia
have been targeted as foreign agents.29 Or, despite exempting groups that provide “social support
and protection of citizens,” the Russian government has labeled the Committee Against Torture
and the Anti-Discrimination Center as foreign agents.
3. FARA does not specifically target CSOs
FARA does not specifically target CSOs, but is geared much more broadly toward
regulating those “acting for or in the interest of foreign principals where their activities are
political in nature” so that government officials and the public “can appraise their statements and

23 Government of Israel, Transparency Requirements for Parties Supported by Foreign State Entities Bill,
2016.
24 22 U.S.C.A. §613(e).
25 22 U.S.C.A. §613(d).
26 22 U.S.C.A. §613(g).
27 Russia: Government vs. Human Rights Groups, Human Rights Watch, (Oct. 12, 2016),
https://www.hrw.org/russia-government-against-rights-groups-battle-chronicle.
28 The Russian law exempts from the definition of “political activities” anything “in the sphere of science,
culture, art, healthcare, prevention and protection of public health, social maintenance, social support and protection
of citizens, protection of motherhood and childhood, social support of persons with disabilities, propaganda of
healthy lifestyle, physical culture and sports, protection of flora and fauna, charitable activities.” Government of
Russia, Amended Law on Noncommercial Organizations, 2016.
29 Government of Russia, Amended Law on Noncommercial Organizations, 2016; Russia: Government vs.
Human Rights Groups, Human Rights Watch (Oct. 12, 2016), https://www.hrw.org/russia-government-againstrights-groups-battle-chronicle; Russia: Harsh toll of “Foreign Agents” Law, Human Rights Watch (June 25, 2014),
https://www.hrw.org/news/2013/06/25/russia-harsh-toll-foreign-agents-law.
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actions accordingly.”30 The vast majority of those registered under FARA are law firms,
lobbying firms, public relations firms, and tourism agencies.31 Though there may be particular
instances where a CSO must register as an agent of a foreign principal (if, for example, that
organization is lobbying for a foreign interest and is under the direct control of a foreign
government), FARA is not specifically aimed at CSOs. In essence, FARA is intended to regulate
a specific type of activity rather than a specific group of actors. Moreover, “the Department’s
administration of the Act is not designed or intended to inhibit or discourage the expression of
political views in any way,”32 and FARA is almost never applied to CSOs.33
By contrast, the laws that have been drafted in other countries apply exclusively to CSOs
and not to other entities that might engage in lobbying activities. These initiatives are typically
justified as necessary for promoting transparency and accountability in the political sphere,34
though the laws do not attempt to broadly regulate the political activities of business or other
actors. Further, many of these laws target a subset of civil society, particularly those CSOs that
undertake activities disfavored by the government. The Israeli law, for example, requires
registration of organizations that receive funding from foreign public sources but not those
funded by private sources. In a list released by the Israeli government of CSOs impacted by the
law, as noted above, 25 of the 27 are human rights groups that support Palestinian causes.35
The Russian law also specifically targets civil society. It applies to groups that receive
any amount of public or private international funding, no matter how small a percentage of the
group’s overall budget. As of August 2016, 137 NCOs had been forced to register as foreign
agents and 22 NGOs had shut down as a result of the law.36
Russia’s unique historical and political context has also amplified the negative impact of
these laws: in Russia the term “foreign agent” is synonymous with “foreign spy.” Some groups
have voluntarily dissolved to avoid the stigma that comes with such a designation.37

30 1966 U.S.C.C.A.N. 2397, 2401; Letter from Peter J. Kadzik, Assistant Attorney General, to Charles E.
Grassley, Chairman of the Committee on the Judiciary (May 21, 2015) [hereinafter Kadzik Letter],
https://www.grassley.senate.gov/sites/default/files/judiciary/upload/2015-05-
22%20DOJ%20to%20CEG%20(Blumenthal%20and%20Kornblum%20FARA).pdf.
31 See U.S. DEP’T OF JUSTICE, REPORT OF THE ATTY GEN. TO THE CONGRESS OF THE U.S. ON THE ADMIN. OF
THE FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED, FOR THE SIX MONTHS ENDING JUNE 30, 2015
(2016) [hereinafter REPORT ON FARA ADMINISTRATION 2015], https://www.fara.gov/reports/FARA_JUN_2015.pdf.
32 Kadzik Letter, supra note 30.
33 See REPORT ON FARA ADMINISTRATION 2015, supra note 31.
34 Opinion on Federal Law N. 121-FZ On Non-Commercial Organisations (“Law on Foreign Agents”), On
Federal Laws N. 18-FZ and N. 147-FZ, Venice Commission, Ninth Plenary Session, June 13-14, 2014.
35 See Zena Tahhan, Israel passes controversial NGO bill amid criticism, Al Jazeera, July 12, 2016,
https://www.aljazeera.com/news/2016/07/israel-passes-controversial-ngo-bill-criticism-160712071408073.html.
36 See Russian Ministry of Justice Registry of Foreign Agents,
https://unro.minjust.ru/NKOForeignAgent.aspx.
37 Charles Diggs, Foreign Agents Law Has Put 33% of Russia’s NGOs Out of Business, Bellona (October
20, 2015), https://bellona.org/news/russian-human-rights-issues/russian-ngo-law/2015-10-foreign-agent-law-has-put33-percent-of-russias-ngos-out-of-business; Luhn, Alec, Russian Green Group Labeled “Foreign Agent” in
Crackdown on NGOs, Guardian (January 14, 2016),
https://www.theguardian.com/environment/2016/jan/14/russian-green-group-labelled-foreign-agent-in-crackdownon-ngos.
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In sum, by contrast to FARA, the laws of other countries specifically target civil society.
IV. Key Issues to Address When Analyzing Claims that Legislation Is Based on FARA
Considering the features of FARA addressed above, the following questions may be
useful for determining whether a foreign law is in fact similar to FARA:
 Direction and control: Is the law triggered by a principal-agent relationship, or is
registration required merely for the receipt of international funding?
 Exemptions: Does the law provide exemptions for certain activities typically
undertaken by CSOs? If so, is the definition of “political activities” so broad that it
makes such exemptions meaningless?
 Who is being targeted: Does the law apply only to CSOs? Does it target specific
sources of international funding, with disparate impact on groups advocating against
government policies?
 Context: Does the phrase “foreign agent” carry historical or linguistic stigma? In
some countries, the phrase “foreign agent” is synonymous with “foreign spy,” which
has the effect of stigmatizing the work of civil society groups that are forced to
register.

e are tired of tolerating IBIS’ political
interference in Bolivia.” 119
 A September 2014 article in the New York Times asserted that foreign “money is
increasingly transforming the once -staid think -tank world into a muscular arm of foreign
governments’ lobbying in Washington.” 120 The following week, United States
Representative Frank Wolf wrote a letter to the Brookings Institution, in which he urged
them to “end this practice of accepting money from … foreign governments” so that its
work is not “compromised by the influence, whether real or perceived, of foreign
governments.” 121
Some governments assert that foreigners are not only seeking to meddle in domestic
political affairs, but also seeking to destabilize the country or otherwise engage in “regime
change.” Accor dingly, they argue that foreign funding restrictions are necessary to thwart efforts
to destabilize or overthrow the government currently in power.
 In 2013 in Sri Lanka , the government justified a recent registration requirement for all
CSOs on the grounds that it was necessary to “thwart certain NGOs from hatching
117 Jonathan Lis, “Draft bill: NGOs with foreign funding to be defined ‘foreign agents,’” Haaretz , May 26,
2013, accessed September 8, 2014, https://www.haaretz.com/news/national/.premium -1.592754 .
118 “Some Azerbaijani NGOs Cooperated with Armenian Special Services Under ‘People’s Diplomacy,’”
Trend, August 15, 2014, accessed September 8, 2014, https://en.trend.az/news/politics/230 3147.html .
119 Agence France -Presse, “Bolivia expels Danish NGO for meddling,” Global Post , December 20, 2013,
accessed September 16, 2014, https://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
meddling -1.
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
https://www.nytimes.com/2014/09/07/us/politics/foreign -powers -buy -influence -at-think -tanks.html?_r=0 .
121 Letter from Representative Frank Wolf to Strobe Talbott of the Brookings Institution, September 9,
2014, accessed September 17, 2014, https://s3.amazonaws.com/s3.documentcloud. org/documents/1301186/rep –
frank -wolfs -letter -to-strobe -talbott -at.pdf .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 23

conspiracies to effect regime change by engaging in politics in the guise of doing social
work.” 122
 A drafter of the Russian “foreign agents” law justified the initiative when it was pending
in pa rliament, stating, “There is so much evidence about regime change in Yugoslavia,
now in Libya, Egypt, Tunisia, in Kosovo — that’s what happens in the world, some
governments are working to change regimes in other countries. Russian democracy needs
to be prot ected from outside influences.” 123
 In 2005, the Prime Minister of Ethiopia expelled civil society organizations, explaining,
“there is not going to be a ‘Rose Revolution’ or a ‘Green Revolution’ in Ethiopia after the
election” 124 — a reference to the so -called “color revolutions” that had recently occurred
in Georgia and elsewhere.
 In June 2012, Uganda’s Minister for Internal Affairs justified the government’s threats to
deregister certain CSOs, stating that CSOs “want to destabilize the country because that
is what they are paid to do…. They are busy stabbing the government in its back yet they
are supposed to do humanitarian work.” 125
 In the process of driving civil society organizations out of Zimbabwe , President Mugabe
justified his policies by claiming that the CSOs were fronts for Western “colonial
masters” to undermine the Zimbabwean government. 126 Similarly, the central committee
of Mugabe’s party claimed, “Some of these NGOs are working day and night to remove
President Mugabe and ZANU PF from power. They are being funded by Britain and
some European Union countries, the United States, Australia, Canada and New
Zealand.” 127
 In a March 2014 interview justifying a draft “foreign agents” law, Kyrgyzstan’s
President Atembaev argued, “Activities conducted by CSOs are obviously aimed at
destabilization of the situation in the Kyrgyz Republic…. Some CSOs do not care about
how they get income, whose orders to fulfill, which kind of work to execute…. There are
122 Xinhua, “Sri Lanka to Investigate NGOs Operating in Country,” Herald , June 13, 2013, accessed
September 8, 2014, https://www.herald.co.zw/sri -lanka -to-investigate -ngos -operating -in-country/ .
123 “Russian parliament gives first approval to NGO bill,” BBC , July 6, 2012, accessed September 8, 2014,
https://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
2013): 80.
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
https://www.newvision.co.ug/news/632123 -govt -gets -tough -on-ngos.html .
126 Thomas Carothers, “The Backlash Against Democracy Promotion,” Foreign Affairs , March/April 2006,
accessed September 9, 2014, https://www.foreignaffairs.com/articles/61509/thomas -carothers/the -backlash -against –
democracy -promotion .
127 “29 NGOs banned in crackdown,” New Zimbabwe , February 14, 2012, accessed September 9, 2014,
https://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 24

forces interested in destabilizing the situation in Kyrgyzs tan and spreading chaos across
Central Asia and parts of China.” 128
 In July 2014, the vice chairman of the China Research Institute of China -Russia Relations
argued that China should “learn from Russia” and enact a foreign agents law “so as to
block the way for the infiltration of external forces and eliminate the possibilities of a
Color Revolution.” 129
2. Transparency and Accountability
Another justification commonly invoked by governments to regulate and restrict the flow
of foreign funds is the importance of upholding the integrity of CSOs by promoting transparency
and accountability through government regulation. Consider, for example, the following
responses by government delegations to the UNSR’s Resource Report:
 Egypt : “We agree with the principles of accountability, transparency, and integrity of the
activities of civil society organisations and NGOs. However, this should not be l imited to
accountability to donors. National mechanisms to follow -up on activities of such entities,
while respecting their independence have to be established and respected.” 130
 Maldives : “While civil societies should have access to financing for effective operation
within the human rights framework, it is of equal importance that the organizations must
also ensure that they work with utmost integrity and in an ethical and responsible
manner.” 131
 Azerbaijan : “The changes and amendments to the national legisl ation on NGOs have
been made with a view of increasing transparency in this field…. In that regard, these
amendments should only disturb the associations operating in our country on a non –
transparent basis.” 132
Similarly, in response to a United Nations Hum an Rights Council panel on the promotion
and protection of civil society space in March 2014, the following government delegations
responded with justifications invoking transparency and accountability:
128 “Алмазбек Атамбаев: “Хочу максимально успеть,” Slovo.kg , March 23, 2014, accessed September
9, 2014, translated by Aida Rustemova, https://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
A7.
130 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly an d Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extran et.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf .
131 UN Office of the High Commissioner for Human Rights, “Interactive Dialogue with the Special
Rapporteur on the Rights to Peaceful Assembly and of Association, M aldives Oral Statement,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/ 23rdSession/OralStatements/Maldives_12.pdf .
132 UN Office of the High Commissioner for Human Rights, “Remarks by Azerbaijan,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Azerbaijan_12.pdf .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 25

 Ethiopia , on behalf of the African Group: “Domestic l aw regulation consistent with the
international obligations of States should be put in place to ensure that the exercise of the
right to freedom of expression, assembly and association fully respects the rights of
others and ensures the independence, accou ntability and transparency of civil society.” 133
 India, on behalf of the “Like Minded Group”: “The advocacy for civil society should be
tempered by the need for responsibility, openness and transparency and accountability of
civil society organizations.” 134
 Pa kistan , on behalf of the Organisation of Islamic Cooperation members : “It may be
underscored that securing funding for its crucial work is the right of civil society,
maintaining transparency and necessary regulation of funding is the responsibility of
sta tes.” 135
Kyrgyzstan has also employed this argument to justify a draft “foreign agents” law. The
explanatory note to the draft law claims that it “has been developed for purposes of ensuring
openness, publicity, transparency for non -profit organizations, inc luding units of foreign non –
profit organizations, as well as non -profit organizations acting as foreign agents and receiving
their funds from foreign sources, such as foreign countries, their government agencies,
international and foreign organizations, fo reign citizens, stateless persons or their authorized
representatives, receiving monetary funds or other assets from the said sources.”
3. Aid Effectiveness and Coordination
A global movement has increasingly advocated for greater aid effectiveness, including
through concepts of “host country ownership” and the harmonization of development
assistance. 136 However, some states have interpreted “host country ownership” to be
synonymous with “host government ownership” and have otherwise co -opted the aid
effectivene ss debate to justify constraints on international funding. For example:
133 UN Office of the High Commissioner for Human Rights, “Statement by Ethiopia on behalf of the
African Grou p at the 25th session of the Human Rights Council On the Panel Discussion on the Importance of the
Promotion and Protection of Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Ethiopia%20on%20b
ehalf%20of%20African%20Group_PD_21.pdf .
134 UN Office of the High Commissioner for Human Rights, “Joint Statement: India on behalf of like –
minded countries,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%20of%20LMG_PD_21.pdf . The “Like Minded Group” consists of Algeria, Bahrain, Bangladesh, Belarus,
Chi na, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri
Lanka, Sudan, Uganda, United Arab Emirates, Vietnam , and Zimbabwe .
135 UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on be half of OIC:
Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https ://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
ehalf%20of%20OIC_PD_21.pdf .
136 See the Aid Effectiveness Agenda of the Paris Declaration (2005), the Accra Agenda for Action (2008),
and the Busan Partn ership for Effective Development Cooperation (2011).

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 In July 2014, Nepal ’s government released a new Development Cooperation Policy 137
that will require development partners to channel all development cooperation through
the Ministry of Fi nance, rather than directly to CSOs. The government argued that this
policy is necessary for aid effectiveness and coordination: “Both the Government and the
development partners are aware of the fact that the effectiveness can only be enhanced if
the owne rship of aid funded projects lies with the recipient government.” 138
 Sri Lanka ’s Finance and Planning Ministry issued a public notice in July 2014 requiring
CSOs to receive government approval of international funding. Justifying the
requirement, the Ministry claimed that projects financed with international funding were
“outside t he government budget undermining the national development programmes.” 139
 In response to the UNSR’s Resource Report, the representative of Egypt stated, “The
diversification of the venues of international cooperation and assistance to States towards
the fund ing of civil society partners fragments and diverts the already limited resources
available for international assistance. Hence, aid coordination is crucial for aid
effectiveness.” 140
 At the recent Africa Leaders Summit, the Foreign Minister of Benin s poke a t a workshop
on closing space for civil society. He asserted that CSOs “don’t think they are
accountable to government but only to development partners. This is a problem.” He said
Benin needs “a regulation to create transparency on resources coming from a broad and
the management of resources,” stating that the space for civil society is “too wide.” 141
 The Intelligence Bureau of India released a report in June 2014 claiming that foreign –
funded CSOs stall economic development and negatively impact India’s GDP growth by
2 to 3 percent. 142 The report stated, “a significant number of Indian NGOs, funded by
some donors based in the US, the UK, Germany, the Netherlands and Scandinavian
137 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, accessed September 9, 2014,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, https://www.dailymirror.lk/news/50038 -no -foreign -funds -without -approval -ministry.html .
140 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly and Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_1 0_1.pdf .
141 Personal notes of author.
142 “Foreign -funded NGOs stalling development: IB report,” Times of India , June 12, 2014, accessed
September 9, 2014, https://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
report/articleshow/36411169.cms .

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countries, have been noticed to be using people centric issues to create an enviro nment
which lends itself to stalling development projects.” 143
4. National Security, Counterterrorism, and Anti -Money Laundering
As discussed above, governments also invoke national security, counterterrorism, and
anti -money laundering policies to justify restr ictions on international funding, including cross –
border philanthropy. For example, the Financial Action Task Force (FATF), an
intergovernmental body that seeks to combat money laundering and terrorist financing, stated:
The ongoing international campaign against terrorist financing has unfortunately
demonstrated however that terrorists and terrorist organisations exploit the NPO
sector to raise and move funds, provide logistical support, encourage terrorist
recruitment or otherwise support terrorist organi sations and operations. This
misuse not only facilitates terrorist activity but also undermines donor confidence
and jeopardises the very integrity of NPOs. Therefore, protecting the NPO sector
from terrorist abuse is both a critical component of the globa l fight against
terrorism and a necessary step to preserve the integrity of NPOs. 144
Governments have leveraged concerns about counterterrorism and money laundering to
justify restricting both the inflow and outflow of philanthropy. For example: 145
 The governm ent of Azerbaijan justified amendments relating to the registration of
foreign grants, stating that the purpose of the amendments was, in part, “ to enforce
international obligations of the Republic of Azerbaijan in the area of combating money –
laundering.” 146
143 Rake sh Krishnan Simha, “Why India Should Follow Vladimir Putin’s Lead on NGOs,” Russia & India
Report, June 15, 2014, accessed September 9, 2014,
https://in.rbth.com/blogs/2014/06/15/why_india_should_follow_vladimir_putins_lead_on_ngos_35945.html .
144 Financial Action Task Force, “International Standards on Combating Money Laundering and the
Financing of Terrorism & Proliferation: The FATF Recommendations,” Financial Action Task Force Report, 2013,
54, accessed September 9, 2014,
https://www.fatfgafi.org/media/fa tf/documents/recommendations/pdfs/FATF_Recommendations.pdf . See also
Financial Action Task Force, “Risk of Terrorist Abuse in Non -Profit Organisations,” Financial Action Task Force
Report, June 2014, https://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
organisations.pdf .
145 Constraints by donor governments on the outflow of cross -border donation s, albeit beyond the scope of
this article, similarly present significant barriers to cross -border philanthropy. These states assert that they have an
international responsibility to regulate the outflow of cross -border donations in order to ensure that fu nding destined
for other countries will not support criminal or terrorist activities in those foreign jurisdictions. For more information
about the justifications employed and the implications for civil society, please see: Ben Hayes, “Counter -Terrorism,
‘Policy Laundering’ and the FATF: Legalizing Surveillance, Regulating Civil Society,” Transnational
Institute/Statewatch Report, February 2012, https://www.statewatch.org/analyses/no -171 -fafp -report.pdf .
146 Charity & Security Network, “How the FATF Is Used to Justify Laws That Harm Civil Society,
Freedom of Association and Expression,” Charity & Security Network , May 16, 2013, accessed September 9, 2014,
https://www.charityandsecurity.org/analysis/Restrictive_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society .

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 The British Virgin Islands (BVI) enacted a law requiring that CSOs with more than five
employees appoint a designated Anti -Money Laundering Compliance Officer. 147 The
law also imposes audit requirements for CSOs that are not required of businesses. These
burdens were justified with explicit reference to FATF’s recommendation on nonprofit
organizations and counterterrorism. 148
 In response to the UNSR’s Resource Report, a group of thirteen African states responded,
“It is the responsibility of governments to ensure that the origin and destination of
associations’ funds are not used for terrorist purposes or directed towards activities which
encourage incitement to hatred and violence.” 149
 In 2013, a Sri Lankan government representative similarly stated, “While w e agree that
access to resources is important for the vibrant functioning of civil society, we observe
that Mr. Kiai does not seem to adequately take into account the negative impact of lack of
or insufficient regulation of funding of associations on natio nal security and counter –
terrorism.” 150
 In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, https://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
https://www.charityandsecurity.org/analysis/Restrictiv e_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Gabon%20on%20be
half%20ofAG_10_1.pdf .
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/Pages/OralStatement.aspx?MeetingN
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
https://www.defence.lk/new.asp?fname=Sri_Lankas_National_Security_20140819_02 .

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Arabia , Belarus, China, and Vietnam ,152 which weaves together a number of different
justifications, including foreign interference, accountability, and national security:
[C]ivil society cannot function effectively and efficiently without defined
limits…. Civil society must also learn to protect its own space by guarding against
machinations of donor groups guided by extreme ideologies laden with hidden
politicized motives, which if allowed could potentially bring disrepute to the civil
society space…. There have also been those civil society organizations, who have
digressed from their original purpose and indulged in the pursuit of donor -driven
agendas. It is important to ensure accountability and responsibility for their
actions and the consequences thereof and also guard against compromising
national and international security. 153
Similarly, Ethiopia, in its statement in response to the UNSR’s Resource R eport,
referenced justifications relating to state sovereignty, aid coordination, and accountability and
transparency:
It is our firm belief that associations will play their role in the overall
development of the country and advance their objectives, if a nd only if an
environment for the growth of transparent, members based and members driven
civil society groups in Ethiopia providing for accountability and predictability is
put in place. We are concerned that the abovementioned assertion [about
lightening the burdens to receive donor funding] by the special rapporteur
undermines the principle of sovereignty which we have always been guided by. 154
Similarly constructed statements have also been put forward by Pakistan and other states. 155
152 The “Like Minded Group” consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt,
India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda,
UAE, Vietnam, and Zimbabwe. UN Office of the Hig h Commissioner for Human Rights, “Joint Statement: India on
behalf of like -minded countries,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%20of%20LMG_PD_21.pdf .
153 Ibid.
154 UN Office of the High Commissioner for Human Rights, “Oral Statement: Ethiopia,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Et hiopia_12.pdf .
155 See, e.g., UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on Behalf of
OIC: Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
ehalf%20of%20OIC_PD_21.pdf : “By virtue of its dynamic role civil society is well poised to build convergences
with the view to develop synergies between state institutions and their own networks. These synergies would
facilitate proper utilization of resources at the disposal state institutions an d civil society actors. In this regard, it
may be underscored that securing funding for its crucial work is the right of civil society, maintaining transparency
and necessary regulation of funding is the responsibility of states…. Within this social space, the civil society can
play its optimal role by working in collaboration with state institutions. Better coordination between civil society
actors and state institution [sic] would also facilitate enhancement of international cooperation in the field of hu man
rights.”

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In this section, the a rticle briefly surveyed justifications presented by governments to
constrain the inflow of international funding, including philanthropy. In the following section,
we analyze constraints and their justifications under international law.
International Legal Framework
1. International Norms Protecting Access to Resources and Cross -Border Philanthropy
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states,
“Everyone shall have the right to freedom of association with others….” 156 Acco rding to the
UNSR: 157
The right to freedom of association not only includes the ability of individuals or legal
entities to form and join an association 158 but also to seek, receive and use resources 159 —
human, material and financial — from domestic, foreign and in ternational sources. 160
The United Nations Declaration on Human Rights Defenders 161 similarly states that
access to resources is a self -standing right:
“[E]veryone has the right, individually and in association with others, to solicit, receive
and utilize reso urces for the express purpose of promoting and protecting human rights
and fundamental freedoms through peaceful means….” 162
According to the Office of the United Nations High Commissioner for Human Rights, this right
specifically encompasses “the receipt of funds from abroad.” 163
156 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx .
157 While reports of the UNSR are not binding international law, his reports are referenced here because
they provide a comprehensive articulation and explanation of international law.
158 International law generally recognizes the freedom of association, and t his section follows that
formulation. Addressing the applicability of international law to non -membership organizations is beyond the scope
of this article, but for more information, please see: International Center for Not -for -Profit Law & World Movement
for Democracy Secretariat, “Defending Civil Society Report, Second Edition,” June 2012, 35,
https://www.icnl.org/research/resources/dcs/DCS_Report_Second_Editi on_English.pdf .
159 The UNSR defines “resources” as a broad concept that includes financial transfers (e.g., donations,
grants, contracts, sponsorship, and social investments), loan guarantees, in -kind donations, and other forms of
support. See United Nation s Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 10, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
160 Ibid., para. 8.
161 The UNSR notes that while “the Declaration is not a binding instrument, it must be recalled tha t it was
adopted by consensus of the General Assembly and contains a series of principles and rights that are based on
human rights standards enshrined in other international instruments which are legally binding. Ibid., para. 17.
162 United Nations General Assembly, 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 Res. 53/144, Article 13, https://www.un.org/Docs/asp/ws.asp?m=A/RES/53/144 .
163 United Nations Office of the High Commissioner for Human Rights, “Declaration on Human Rights
Defenders,” UN OHCHR, accessed September 9, 2014,
https://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx .

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Reinforcing this position, 164 in 2013 the United Nations Human Rights Council passed
resolution 22/6, which calls upon on States “[t]o ensure that they do not discriminatorily impose
restrictions on potential sources of funding aimed at supporting the work of human rights
defenders,” and “no law should criminalize or delegitimize activities in defence of human rights
on account of the origin of funding thereto.” 165
The freedom to access resources extends beyond human rights defenders. For example,
the Declaration on the Elimination of A ll Forms of Intolerance and of Discrimination Based on
Religion or Belief states that the right to freedom of thought, conscience, and religion includes
the freedom to “solicit and receive voluntary financial and other contributions from individuals
and in stitutions.” 166 Access to resources is also an integral part of a number of other civil,
cultural, economic, political, and social rights. As the UNSR states: 167
For associations promoting human rights, including economic, social and cultural rights,
or those involved in service delivery (such as disaster relief, health -care provision or
environmental protection), access to resources is important, not only to the existence of
the association itself, but also to the enjoyment of other human rights by those benef itting
from the work of the association. Hence, undue restrictions on resources available to
associations impact the enjoyment of the right to freedom of association and also
undermine civil, cultural, economic, political and social rights as a whole. 168
Acc ordingly, “funding restrictions that impede the ability of associations to pursue their statutory
activities constitute an interference with article 22” of the International Covenant on Civil and
Political Rights. 169
2. Regional and Bilateral Commitments to Pro tect Cross -Border Philanthropy
164 This article briefly examines international norms governing global philanthropy. But it also recogniz es
that there are distinct limits to the impact of international law. For example, there is often an implementation gap
between international norms and country practice. In addition, there are few binding international treaties, such as
the ICCPR, and de tails are often left to “soft law,” such as the reports of the UNSR. At the same time, there is
concern that any effort to create a new global treaty on cross -border philanthropy or foreign funding would lead to a
retrenchment of existing rights.
165 United Nations General Assembly, Protecting Human Rights Defenders, March 21, 2013, UN Human
Rights Council, Resolution 22/6, para. 9, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC /RES/22/6 .
166 United Nations General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief , November 25, 1981, UN General Assembly Resolution A/RES/36/55,
Article 6(f), https://www.un.org/documents/ga/res/36/a36r055.htm .
167 In similar fashion, the UN Committee on Economic, Social and Cultural Rights recognized the link
between access to resources and economic, social and cultural rights, when it expressed “deep concern” about an
Egyptian law that “gives the Government control over the right of NGOs to manage their own activities, including
seeking external funding.” See Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161, 176,
https://www.bayefsky.com/themes/public_general_concluding -observations.php .
168 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 9, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploa ds/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
169 Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted
on October 31, 2006, para. 7.2.

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While this article is focused on global norms, cross -border philanthropy is also
protected at the regional level. For example:
 The Council of Europe Recommendation on the Legal Status of NGOs states:
“NGOs should be free to s olicit and receive funding — cash or in -kind donations —
not only from public bodies in their own state but also from institutional or
individual donors, another state or multilateral agencies ….” 170
 According to the Inter -American Commission on Human Rights, “states should allow and
facilitate human rights organizations’ access to foreign funds in the context of
international cooperation, in transparent conditions.” 171
 In May 2014, the African Commission on Human and Peoples’ Rights (ACHPR)
adopted, in draft for m, a report of the ACHPR Study Group on Freedom of Association
and Peaceful Assembly, with a specific recommendation that States’ legal regimes should
codify that associations have the right to seek and receive funds. This includes the right to
seek and re ceive funds from their own government, foreign governments, international
organizations and other entities as a part of international cooperation to which civil
society is entitled, to the same extent as governments.
 The European Court of Justice (ECJ) has issued a series of important decisions about the
free flow of philanthropic capital within the European Union. 172
In addition, many jurisdictions have concluded bilateral investment treaties, which help
protect the free flow of capital across borders. Some treaties, such as the U.S. treaties with
Kazakhstan and Kyrgyzstan, expressly extend investment treaty protections to organizations not
“organized for pecuniary gain.” 173 Indeed, the letters of transmittal submitted by the White
House to the U.S. Senate sta te that these treaties are drafted to cover “charitable and non -profit
entities.” 174
170 Council of Europe, “Recommendation CM/Rec (2007)145 of the Committ ee of Ministers to member
states on the legal status of non -governmental organisations in Europe,” adopted October 10, 2007, Article 50,
https://wcd.coe.int/ViewDoc.jsp?id=1194609 .
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, https://www.icnl.org /research/resources/assembly/oas -human –
rights -report.pdf .
172 For more information on these decisions, see: European Foundation Center and Transnational Giving
Europe, “Taxation of Cross -Border Philanthropy in Europe After Persche and Stauffer: From landloc k to free
movement?”, European Foundation Center Report, 2014,
https://www.efc.be/programmes_services/resources/Documents/TGE -web.pdf ; European Foundation Centre, “ECJ
rules in favour of cross -border giving ,” EFC briefing, January 27, 2009, accessed September 9, 2014,
https://www.efc.be/programmes_services/resources/Documents/befc09 08.pdf .
173 U.S. -Kyrgyz Bilateral Investment Treaty, Article 1(b); U.S. -Kazakh Bilateral Investment Treaty, Article
1(b). See also Article 1(2) of the China – Germany BIT: “the term ‘investor’ means … any juridical person as well
as any commercial or other c ompany or association with or without legal personality having its seat in the territory
of the Federal Republic of Germany, irrespective of whether or not its activities are directed at profit.”
174 Letters of Transmittal available at the U.S. State Departm ent website:
https://www.state.gov/documents/organization/43566.pdf and
https://www.state.gov/documents/organization/4 3567.pdf .

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A detailed discussion of investment treaty protection for cross -border philanthropy is
beyond the scope of this article. This issue is presented in brief form, however, beca use it is a
significant avenue for further exploration, as it expands the international legal argument beyond
human rights and implicates bilateral investment treaties with binding enforcement
mechanisms. 175 For further information on this issue, please see International Investment Treaty
Protection of Not -for -Profit Organizations 176 and Protection of U.S. Non -Governmental
Organizations in Egypt under the Egypt -U.S. Bilateral Investment Treaty. 177
3. Restrictions Permitted Under International Law
Continuing the discussion of global norms, ICCPR Article 22(2) recognizes that the
freedom of association can be restricted in certain narrowly defined conditions. According to
Article 22(2):
No restrictions may be placed on the exercise of this right other than those wh ich are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. 178
In other words, international law allows a government to restrict access to resources if the
restriction is:
(1) prescribed by law;
(2) in pursuance of one or more legitimate aims, specifically:
o national security or public safety;
o public order;
o the protection of public health or morals; or
o the protection of the rights and freedoms of others; and
175 In addition, the European Court of Human Rights has held that Article 1 of the First Protocol of the
European Convention on Human Rights protects the right to peaceful enjoyment of one’s possessions. (Article 1 of
the First Protocol of the Euro pean Convention reads: “Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general p rinciples of international law. The preceding provisions shall
not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment o f taxes or other contributions or
penalties.” In addition, the right to property includes the right to dispose of one’s property (Clare Ovey & Robin
White, The European Convention on Human Rights , 3rd edition (Oxford: Oxford University Press, 2002)), which
would seem to embrace the right to make contributions to CSOs for lawful purposes.
176 Luke Eric Peterson & Nick Gallus, “International Investment Treaty Protection of Not -for -Profit
Organizations,” International Journal of Not -for -Profit Law 10(1) (December 2007),
https://www.icnl.org/research/journal/vol10iss1/art_1.htm .
177 Nick Gallus, “Protection of U.S. Non -Governmental Organizations in Egypt under the Egypt -U.S.
Bilat eral Investment Treaty,” International Journal of Not -for -Profit Law 14(3) (September 2012),
https://www.icnl.org/research/journal/vol14iss3/art2.html .
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR

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(3) “necessary in a democratic society to achieve those aims.” 179
Moreover :
States should always be guided by the principle that the restrictions must not im pair the
essence of the right … the relations between right and restriction, between norm and
exception, must not be reversed. 180
The burden of proof is on the government. 181 In addition:
When a State party invokes a legitimate ground for restriction of freed om of expression,
it must demonstrate in specific and individualized fashion the precise nature of the threat,
and the necessity and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the [ activity at issue] and the
threat. 182
The following section amplifies this three -part test contained in Article 22(2).
A. Prescribed by law
The first prong requires a restriction to have a formal basis in law. This means that:
restrictions on the right to free dom of association are only valid if they had been
introduced by law (through an act of Parliament or an equivalent unwritten norm of
common law), and are not permissible if introduced through Government decrees or other
similar administrative orders. 183
As discussed above, in July 2014, the Sri Lankan Department of External Resources of
the Ministry of Finance and Planning disseminated a notice to the public, declaring that any
organization or individual undertaking a project with foreign aid must have appro val from
relevant government agencies. Similarly, in July 2014, Nepal’s government released a new
Development Cooperation Policy that will require development partners to channel all
development cooperation through the Ministry of Finance, rather than directly to civil society. In
both cases, the restriction s were based on executive action and not “introduced by law (through
179 Case of Vona v. Hungary (A pp no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
180 United Nations Human Rights Council, Report of the Special Rappo rteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 16, UN Doc. A/HRC/20/27 (May 21, 2012),
https://www.ohchr .org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 -27_en.pdf .
181 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 15, Civil and
Political Rights: The Human Rights Committee, May 2005,
https://www.ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf .
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf .
183 See UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Fre edoms, July 2011, 44,
https://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf : “It would
seem reasonable t o presume that an interference is only “prescribed by law” if it derives from any duly promulgated
law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra
vires would seem not to be ‘prescribe d by law,’ at least if they are invalid as a result.”

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an act of Parliament or an equivalent unwritten norm of common law).” Accordingly, they
appear to violate the “prescribed by law” standard required under Article 22(2) of the ICCPR.
This prong of Article 22(2) also requires that a provision be sufficiently precise for an
individual or NGO to understand whether or not intended conduct would constitute a violation of
law. 184 As stated in the Johannesburg Principles, “The law must be accessible , unambiguous,
drawn narrowly and with precision so as to enable individuals to foresee whether a particular
action is unlawful.” 185
This prong helps limit the scope of permissible restrictions. As discussed above, certain
laws ban funding of organizations that cause “social anxiety,” have a “political nature,” or have
“implied ideological conditions.” These terms are undefined and provide little guidance to
individuals or organizations about prohibited conduct. Since they are not “unambiguous, drawn
narrowl y and with precision so as to enable individuals to foresee whether a particular action is
unlawful,” there is a reasonable argument that these sorts of vague restrictions fail the
“prescribed by law” requirements of international law.
B. Legitimate aim
The second prong of Article 22(2) requires that a restriction advance one or more
“legitimate aims,” 186 namely:
 national security or public safety;
 public order;
 the protection of public health or morals; or
 the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.

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they are taken to protect the existence of the nation or its territorial integrity or political
independence against force or threat of force.” 189 In addition, a state may not use “ national
security as a justification for measures aimed at suppressing opposition … or at perpetrating
repressive practices against its population.” 190 This includes defaming or stigmatizing foreign
funded groups by accusing them of “treason” or “promoting regime change.” 191
Accordingly, under international law, governments cannot rely on generalized claims of
“state sovereignty” to justify constraints on global philanthropy. In the words of the UNSR:
Affirming that national security is threatened when an association receives funding from
foreign sources is not only spurious and distorted, but also in contradiction with
international human rights law. 192
This brief analysis is not intended to explore the details of the aid effectiveness and
sovereignty justifications. Rather, the goal is to illustrate how the “legitimate aim” requirement
of in ternational law can help inform the analysis of certain justifications presented by
governments, such as arguments based on “aid effectiveness” and “sovereignty.”
C. Necessary in a Democratic Society
Even if a government is able to articulate a legitimate aim , a restriction violates
international law unless it is “necessary in a democratic society.” As stated by the Organization
for Security and Co -operation in Europe, the reference to necessity does not have “the flexibility
of terms such as ‘useful’ or ‘conv enient’: instead, the term means that there must be a ‘pressing
social need’ for the interference.” 193 Specifically, “where such restrictions are made, States must
demonstrate their necessity and only take such measures as are proportionate to the pursuance of
legitimate aims in order to ensure continuous and effective protection of Covenant rights.” 194
As stated by the UNSR:
In order to meet the proportionality and necessity test, restrictive measures must be the
least intrusive means to achieve the desired ob jective and be limited to the associations
189 See the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub -Commission on
Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1984)],
which were adopted in May 1984 by a group of international human rights experts convened by the International
Commission of Jurists, the International Association of Penal Law, th e American Association for the International
Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher
Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative s ource of
interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency. They
are available at: https://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
190 Ibid.
191 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 27, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
192 Ibid., para. 30
193 OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Key Guiding Principles of
Freedom of Association with an Emphasis on Non -Governmental Organizations , para. 5
194 United Nations Human Rights Committee, General Comment No. 31 (2004), para. 6, UN Doc.
CCPR/C/21/Rev.1/Ad d. 13, May 26, 2004.

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falling within the clearly identified aspects characterizing terrorism only. They must not
target all civil society associations…. 195
Consider, for example, Ethiopian legislation imposing a 10 percent cap on the for eign
funding of all CSOs promoting a variety of objectives, including women’s rights and disability
rights. As discussed above, Ethiopia has asserted a counterterrorism rationale to justify foreign
funding constraints. Ethiopia does not establish a “ direct and immediate connection between the
[activity at issue] and the threat.” 196 In addition, the cap is not the “least intrusive means to
achieve the desired objective and … limited to the associations falling within the clearly
identified aspects characterizi ng terrorism.” Accordingly, the counterterrorism objective fails to
justify the Ethiopian cap on foreign funding.
The UNSR also applied this test to the “aid effectiveness” justification. In response, he
stressed that:
even if the restriction were to purs ue a legitimate objective, it would not comply with the
requirements of “a democratic society.” In particular, deliberate misinterpretations by
Governments of ownership or harmonization principles to require associations to align
themselves with Government s’ priorities contradict one of the most important aspects of
freedom of association, namely that individuals can freely associate for any legal
purpose. 197
In addition, “longstanding jurisprudence asserts that democratic societies only exist
where ‘pluralis m, tolerance and broadmindedness’ are in place,” 198 and “minority or dissenting
views or beliefs are respected.” 199
Applying this test, the UNSR has note