International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 54
A Framework for Analysis of Islamic Endowment (Waqf) Laws
MOHAMMED OBAIDULLAH , PH.D.1
Analysis of the Shariah -legal framework for Islamic endowments ( awqaf , or in singular
waqf ) around the globe reveals that the Shariah law as well as the national laws are
rooted in several considerations. Preservation of the endowed assets seems to be the
overriding consideration, which has been interpreted variously as preservation of the
assets in their physical form and as preservation of benefits for the intended
beneficiaries. While preservation of assets manifests in the form of stipulations such as
prohibitions against any sale, gift, or mortgage that might lead to transfer of ownership
of the assets, preservation of benefits for the intended beneficiaries requires prudent
management of the assets and efficiency in t heir development and investment.
Development may actually lead to expansion of benefits for the intended beneficiaries
and may at times require a degree of dilution in the stipulations concerning preservation.
We find that laws and regulations often involv e a trade -off between concerns about
preservation of assets in physical form and concerns about development. Although the
focus here is on Islamic endowments in India, this framework may also be employed to
analyze laws in other jurisdictions.
Laws governing Islamic endowments (awqaf , or in singular waqf ) display wide
variations. In most countries the laws demonstrate the influence of their colonial past. In these
countries, Islamic law was superseded by secular law 2 and the endowments remain ed dormant
for long periods. The extent of reform efforts varies among countries. For example, though
Malaysia is far ahead of others in putting into practice Islamic law in the field of banking,
insurance , and financial markets, it lags way behind in oper ationalizing a progressive law for its
awqaf sector. Indonesia stands far ahead of others in enacting a law that reflects state -of -the -art
thinking among scholars in the field and that may perhaps serve as a model for other countries.
India, Pakistan , and Bangladesh share the same origin , in laws enacted during the undivided
British India, but they have introduced reforms in varying degrees since achieving their
independence. A high degree of commonality therefore exists in their laws. 3
1 Mohammed Obaidullah, Ph.D., firstname.lastname@example.org , is Senior Economist at the Islamic Research and
Training Institute of the Islamic Development Bank Group in Jeddah, Saudi Arabia, and Yayasan Tun Ismail
Mohamed Ali Berdaftar (YTI) Chair Professor in Islamic Finance at Islamic Science University of Malaysia.
2 Islamic law was replaced by British law in all countries with the exception of Indonesia, which was
colonized by the Du tch.
3 See Islamic Social Finance Report (2014), ch. 4, Islamic Research and Training Institute, Jeddah, Saudi
Arabia, which provides a comparative analysis of regulations for the awqaf sector in six countries in South and
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 55
Malaysia comprises thirteen states and federal territories. In Selangor and Malacca, the
provisions of law on awqaf are provided under the Enactment of Wakaf (State of Selangor) 1999
and the Enactment of Wakaf (state of Malacca) 2005 ; the other states that do not have such
legislation are governed by the states’ administration of Islamic law. 4 The provisions of Part VI
of the Administration of the Religion of Islam (Federal Territories) Act 1993 relating to Islamic
endowments have striking similarities with those in Chapter 3 of the Administration of Muslim
Law Act, Singapore 1999 , that deal with Islamic endowments.
In Indonesia, waqf is regulated by the Act of Republic of Indonesia No. 41 on Waqf
India, Pakistan , and Bangladesh share a common history of being part of th e undivided
India ruled by the British until 1947 ; therefore, they show striking similarities in their waqf
laws .5 Ther e have been major changes since, though . India, like its neighbors, has a long history
of waqf laws in various versions , including the Wa qf Act 1995 follow ed by the Waqf Reform
Act 2013, which may be the most recent applicable legislation in any country . In Pakistan the
Provisional Waqf Ordinances 1979 in its four provinces provide the regulatory framework. In
Bangladesh the Waqf’s Ordinanc e 1962 primarily governs waqf creation and administration.
In the Gulf Cooperation Council and M iddle East/North Africa region, laws governing
Islamic endowments have also evolved over time. Islamic endowments were transferred from the
voluntary sector (m anaged by private trustees under the supervision of the qadi /judiciary) into
the domain of the governments as a response to alleged corrupt practices and usurpation. The
endowments in the region remain under the cont rol of the Ministry of Islamic/ Religious Affairs .
State control has been less stringent in Sub -Saharan Africa. Countries such as Nigeria and
Sudan have been giving increasing attention to reforming their waqf infrastructure and providing
an enabling regulatory environment for the endowments to be managed and developed.
Analysis of the Shariah -legal framework for Islamic endowments around the globe
reveals that the Shariah law as well as the national laws of awqaf are rooted in several
considerations. Preservation of the endowed assets seems to be the overriding consideration,
which has been interpreted variously as preservation of the assets in their physical form and as
preservation of benefits for the intended beneficiaries. 6 While preservation of assets manifests in
the form of stipulations s uch as prohibition s against any sale, gift, or mortgage that might lead to
transfer of ownership of the waqf assets, preservation of benefits for the intended beneficiaries
requires prudent management of the assets and efficiency in their development and investment.
Development may actually lead to expansion of benefits for the intended beneficiaries and may
at times require a degree of dilution in the stipulations concerning preservation.
In the next section , we present a framework for analysis of laws an d regulations as they
have been put in place over time. We demonstrate that these have often involved a trade -off
between concerns about preservation of assets in physical form and concerns about development.
4 The term waka f is used for Islamic endowments in Southeast Asian countries, including Malaysia. The
corresponding term in South Asia is wakf ; in the Middle East, waqf ; and in North Africa, habs .
5 This is also the case with Zanjibar in Tanzania that was under British occupation.
6 See Monzer Kahf, Towards the Revival of Awqaf: A Few Fiqhi Issues to Reconsider, paper presented at
Harvard Forum on Islamic Finance and Economics, October 1, 1999, Harvard University, U.S.A.
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Using the framework, we analyze laws of Islamic endowments as they have evolved in India.
Based on the analysis we argue that further reforms are required to facilitate creation of new
endowment s and revival of existing endowments.
2. Understanding the Regulatory Trajectory
In order to appreciat e the way the laws have evolved over time, we present the concept of
society’s objective function for laws /regulations /rules /policies. We hypothesize that the objective
function for laws /regulations /rules /policies pertaining to Islamic endowments is determined
larg ely by the Islamic scholars who lead the Muslim masses in matters o f religion. In a
democratic state the laws seek to capture the objective function over time. We hypothesize that
given the large -scale encroachment of awqaf assets by rulers, the scholars’ and society’s primary
objective has been the preservation of assets. However, over time one may witness a shift in the
objective function from (i) preservation of assets to (ii) preservation of benefits for the intended
beneficiaries and vice -versa . For in stance, such a shift in the objective function is believed to
have taken place as one finds increasing scholarly discussion of the concepts of exchange and
replacement of waqf assets ( ibdal and istibdal ). Arguably, t his may occur in the face of a
realizati on that the objective function may need to be modified to (iii ) sustained enhancement of
benefits for the intended beneficiaries . This would also ensure the fulfillment of (i) and (ii).
Society’s objective function may be presented in a two -dimensional spa ce as Regulatory
Efficiency Frontier (REF) , with the two dimensions being preservation and development .
Creation of an enabling legal environment would involve a search for laws of the following
1. Laws that enhance both preservation and development: a movement toward the
Regulatory Efficiency Frontier
2. Laws that enhance preservation without adversely affecting development : a vertical move
3. Laws that enhance development without a dversely affecting preservation: a horizontal
move to the right
The s earch for efficiency should involve movement of all three types. Society will optimize
efficiency gains at the Regulatory Efficiency Frontier (see Figure 1). A shift in objective function
itself (relative importance attached to concerns about preservation a nd development) would
mean a change in the shape of the REF.
3. Islamic Endowments in India
The following facts for the Indian awqaf sector provide the basis for the framework. The
size of assets under Islamic endowments in India is huge. The Report on Social , Economic and
Educational Status of the Muslim Community of India (2006) estimated that there a re more than
490,000 registered Islamic endowments. 7 The total area under endowed land assets is estimated
at 600,000 acres; 80 percent is in rural India and the rest is in major cities. The book value of
these assets is estimated at USD 1 billion and the market value at USD 20 billion. At the same
7 Social, Economic and Educational Status of the M uslim Community of India: A Report, Prime Minister’s
High Level Committee, Cabinet Secretariat Government of India, November, 2006,
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time, the annual income on endowed assets is meag er, estimated at USD 27 million , or 2.7
percent o f book value.
Figure 1: Regulatory Efficiency Frontier
The Islamic endowments in India are characterized by massive encroachment by state
agencies and corporate entities , raising serious concerns of preservation. Historians assert that
aggressive encroachment by the state began after the 1857 mutiny against the British raj.
According to one estimate, currently in Delhi alone, over 30 percent of about 2,000 waqf
properties are illegally occupied by government agencies. M edia reports on high -profile cases
have kept t he concerns about preservation o n the front burner. For example, in 2002 an
orphanage land valued at about USD 24 million was sold for USD 3.4 million for construction of
the residence of India’s richest man (currently valued at around US D 1 billion ).8
Studies have also reported excellent returns on properties post -development. Therefore, it
is believed that the potential and significance of development is huge. A study by Syed Khalid
Rashid estimated the average return on investment of 20 percent post -development. 9
3.1. Waqf Laws in India
India has witnessed multiple waqf laws beginning in 1810. The more recent enactments
have been the Wakf Act 1954, Wakf Amendment Act 1984, Wakf Act 1995, and now the Wakf
Amendment Act 2013.
A research study undertaken by Hasanuddin Ahmad and Ahmadullah Khan in 1995 for
the Islamic Research and Training Institute (IRTI) provides the complete history of waqf laws in
8 “Mukesh Ambani, India’s richest man, faces court over Dh3.6bn Mumbai home,” The National, Aug. 4,
2011, https://www.thenational.ae/news/world/south -asia/mukesh -ambani -indias -richest -man -faces -court -over -dh3 –
6bn -mumbai -home#ixzz3Eb2rfPxx .
9 S.K Rashid (2005), Protection, Maintenance and Developmen t of Awqaf in India (with special reference
to Rajasthan), Institute of Objective Studies, New Delhi, pp 74 -85.
Regulatory Efficiency Front ier
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India. 10 However, we restrict our analysis to post -independence India where laws resulted from
the democratic process rather than British rule. The first comprehensive legislation for waqf in
independent India was the Waqf Act 1954. However, this Act failed to address the concerns
relating to awqaf ; therefore, a Waqf Enquiry Committee was constituted by the government in
1969 comprising public representative s. The Committee held nationwide deliberations and made
wide -ranging recommendations. This led to the passage of the Waqf Amendment Act 1984.
However, for a variety of reasons, this Act remained dor mant. The Waqf Act 1995 is the first
comprehensive piece of law that defined the rules of the game. The operation of the law ,
however, continued to attract criticism , and it was largely perceived to be ineffective in
preserving the waqf assets. This led to further calls fo r reform. The Waqf Reform Bill 2010 was
formulated after extensive consultations . It took the shape of Waqf Amendment Act 2013 three
W e focus on provisions of the Waqf Act 19 95 and the Waqf Amendment Act 2013 and
highlight ho w the changes that have taken place over time with respect to the infrastructure for
waqf administration address the concerns about preservation and development.
3.2. Waqf Infrastructure
India has a huge waqf infrastructure under its Ministry of Minorities Affairs , but with
significant autonomy to waqf boards constituted at the provincial or state levels. The State Waqf
Boards (SWBs) are established by the respective provincial or state governments in view o f
sections 13 and 14 of the Wakf Act 1995. These work towards management, regulation , and
protection of the waqf properties by constituting local committees. Currently there are thirty waqf
boards across the country. The Central Waqf Council is a statutory body established in 1964 by
the Government of India under Wakf Act 1954 (now a sub section the Wakf Act 1995) for the
purpose of advising it on matters pertaining to working of the State Waqf Boards and proper
administration of the awqaf in the country.
Figure 2. Waqf infrastructure in India
10 Hasanuddin Ahmad and Ahmadullah Khan (1995), Strategies to Develop Waqf Administration in India ,
Islamic Research and Training Institute, Jedd ah, Saudi Arabia.
Ministry of Minorities Affairs
Central Waqf Council
State Waqf Boards
Waqif (Endower) Mutawalli (Manager) Mawquf Alaihi (Beneficiary)
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Figure 2 presents the various components of the waqf related infrastructure in India.
We move on to explore how changes in laws over time affecting them have been
governed by concerns about preservation and development.
3.2.1. Central Waqf Council
Sect ion 9 -12 of the Wakf Act 1995 provided for the creation and functions of the CWC to
advise the Government of India on matters concerning the working of Waqf Boards and the due
administration of awqaf in the country ; and t o undertake development of waqf ass ets to ensure
These provisions were clearly governed by a need to ensure physical preservation of
endowed assets (movement of type 2 towards REF in Figure 1 ). The Act asserted that the
endowed assets need to be developed lest they be physical ly dilapidated to an extent that they
would cease to provide any benefits. Thus, the focus was on maintenance of the assets so that
benefits continue d to flow out and not on development of the assets so that benefits could be
enhanced. The law at this stag e provided very little that could lead to large -scale development of
the endowed assets.
The Waqf Amendment Act 2013 sought to strengthen the role of the CWC as a central
and key pillar in waqf administration. Among other things, it sought to address the concerns
about physical preservation of endowed assets (movement of type 2 toward REF) by
empowering the CWC to issue directive s to the State Waqf Boards (SWBs) on their financial
performance, survey, and maintenance of waqf deeds, revenue records, and enc roachment of
wa qf properties seeking annual report and audit report ; and by providing for any disputes arising
out of its directive s to be referred to a high -level Board of Adjudication
3.2.2. State Waqf Boards
The idea of federalism, with the State Waqf Boards ( SWBs) as the foremost actors in
waqf administration in India , was introduced quite early. Howe ver, it was the Wakf Act 1995
that provided an elaborate list of power and functions of the SWBs (Section 32) as well as the
duties and obligations for the truste e-manager or mutawalli relating to registration, disclosure,
and compliance with directives of the board (Section 50). These provisions were essentially
governed by the concern to ensure and enhance preservation of the endowed assets (movement
of type 2 to wards REF) .
Section 32.2 describes the powers and functions of the SWBs as follows:
1. to maintain a record containing information relating to the origin, income, object , and
beneficiaries of every waqf ;
2. to ensure that the income and other property of awqaf are applied to the objects and for
the purposes for which such awqaf were intended or created;
3. to give directions for the administration of awqaf ;
4. to settle schemes of management for a waqf , provided that no such settlement shall be
made without giving aff ected parties an opportunity of being heard;
5. to direct (i) the utilization of the surplus income of a waqf consistent with the objects of
waqf ; (ii) in what manner the income of a waqf , the objects of which are not evident from
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any written instrument, shal l be utilized; (iii) in any case where any object of waqf has
ceased to exist or has become incapable of achievement, that so much of the income of
the waqf as was previously applied to that object shall be applied to any other object,
which shall be simil ar to the original object or for the benefit of the poor or for the
purpose of promotion of knowledge and learning in the Muslim Community ;
6. to scrutinize and approve the budgets submitted by mutawallis and to arrange for auditing
of account of awqaf ;
7. to a ppoint and remove mutawallis in accordance with the provisions of this Act;
8. to take measures for the recovery of lost properties of any waqf ;
9. to institute and defend suits and proceedings relating to awqaf ;
10. to sanction any transfer of immovable property of a waqf by way of sale, gift, mortgage,
exchange , or lease;
11. to administer the Waqf Fund;
12. to call for such returns, statistics, accounts , and other information from the mutawallis
with respect to the waqf property as the board may require;
13. to inspect, or ca use inspection of, waqf properties, accounts, records , or deeds , and
documents relating thereto;
14. to investigate and determine the nature and extent of waqf and waqf property, and to
cause, whenever necessary, a survey of such waqf property; and
15. generally d o all such acts as may be necessary for the control, maintenance , and
administration of awqaf .
This law also provided for proactive intervention for development of an asset with prior
government approval (Section 32.4). The development -related concerns wer e obviously
becoming more significant in shaping the regulatory framework (movement of type 3 towards
Section 32.4 stipulates that where the board is satisfied that any endowed asset offers a
feasible potential for development, it may ask the mutawalli to develop it. Otherwise , it may,
with the prior approval of the Government, take over the asset, develop it with its own funds, and
control and manage it until the original investment and the financing cost are recovered (Section
32.5) , subsequent to w hich the developed asset shall be handed over to mutawalli of the
concerned waqf (Section 32.6) .
The Waqf Amendment Act 2013 made major changes with respect to the power and
functions of the SWBs. It did away with the “government approval” requirement in S ection 32.5 ,
thus paving the way for SWBs to undertake development faster and more easily. It also provided
for additional physical punishment over and above financial penalties for the mutawalli in case
of non -compliance with provisions of the law concern ing its duties and responsibilities vis -à-vis
preservation and development of the endowed assets (movement of type 1 towards REF)
It also sought to strengthen the preservation of endowed assets (movement of type 2
towards REF) by providing for:
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Establishment of boards in states where they are nonexistent (Section 13) ;
Prohibition of sale, gift, exchange, mortgage , or transfer of waqf property ab initio ,
except for the possibility of acquisition of waqf properties for a public purpose under the
Land Acquisition Act 1894 or any other law relating to acquisition of land if the
acquisition is made in consultation with the board, provided also that (a) the acquisition
shall not be in contravention of the Places of Public Worship (Special Provisions) Act
1991; (b) the purpose for which the land is being acquired shall be undisputedly for a
public purpose; (c) no alternative land is available which shall be considered suitable for
that purpose; and (d) to safeguard adequately the interest and objective of the waqf , the
compensation shall be at the prevailing market value or a suitable land with reasonable
solatium in lieu of the acquired property (Section 51) ;
Restoration of waqf properties in occupation of government agencies to the mutawalli or
Waqf B oard , or payment of rent at market rates (Section 51) ;
Inclusion of professionals and scholars on the b oard , with a Muslim CEO to effectively
deal with administrative machinery in the state (Section 20) ;
Removal of corrupt members through no -confidence mot ion (Section 20A) ;
Survey and digitization of records , and compulsory registration within one year of
enactment and every ten years thereafter (Section 6) ; and
Punishment for alienation of waqf assets (Section 52A) .
While the dominant role in waqf administration is entrusted to the state, the judiciary is
expected to act as a watchdog to prevent acts of transgression by the state agency against the
mutawalli and adjudicate in matters of dispute. However, its effectiveness in ensuring fair play is
dependent on provisions of law that define its constitution, power , and functions.
The Waqf Act 1995 provides for establishment of a Waqf Tribunal to adjudicate disputes
on whether a particular property is indeed waqf property (Section s 6-7) and to ensure fa ir deal to
an aggrieved trustee -manager (Section s 33 -35) , member (Section 16), and executive officer and
staff of SWBs (Section 38.7). However, though the creation of the Tribunal was primarily to
ensure the preservation of endowed assets (movement of type 2 towards REF) by recovering
encroached assets (Section 52), experience showed that the Tribunal was largely ineffective
The Waqf Amendment Act 2013 sought to further enhance preservation of endowed
assets (movement of type 2 towards REF) by providing that t he Tribunal has powers of
assessment of damages by unauthorized occupation of waqf property and to penalize
unauthorized occupants and to recover damages ; and a public servant who fails in his lawful duty
to prevent or remove such an encroachment can be convicted and fined ( Section 54).
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3.3. Management of Assets
According to Islamic law, it is compulsory to invest waqf assets .11 It is the duty of the
mutawalli to manage the waqf assets prudently and efficiently. And it is the duty of the state
(waqf administration) and judiciary to ensure that the mutawalli is complying . The returns or
benefits from the endowed assets are meant to flow to the beneficiaries as intended by the
endower or waqif . However, early lawmakers seemed to be obsessed with the idea of
preservation. The Waqf Act 1995 stipulated that the lease or sublease of endowed assets was not
permissible for a period beyond three years (movement of type 2 towards REF). Lease or
sublease was permitted for one to three years, but only with prior approval of the board (Section
56). Ruling out any long -term lease effectively barred the possibility of participation of return –
seeking private capital in the development of waqf assets.
This realization has led to amendment of the above restr ictive section in the Waqf
Amendment Act 2013 , which provides the following:
1. The lease period is extended to up to 30 years for commercial activities, education , or
2. Approval by the state government is necessary because of the long gestati on periods;
3. The b oard will sanction a lease with the consent of at least two -thirds of members; and
4. The m aximum period of lease for agricultural land is three years.
Clauses 2 , 3, and 4 show that sufficient caution has been exercised while facilitating the
development of endowed assets. The Leasing Rules 2014 further enhance preservation as well as
development aspects (movement of type 1 towards REF) by requiring that:
1. The m inimum lease rental on such asset s put under lease must be at least 5 percent of the
market value ;
2. Lease rentals must increase by not less than 5 percent every year ;
3. There must be competitive bidding ;
4. Two years ’ rent must be paid upfront as security if the lease period is over 10 years ;
5. No sublease is permissible ;
6. No clause should exist f or automatic renewal s of the lease ; and
7. Stringent conditions must exist in the agreement for possible default by lessee.
The above rules have been formulated by the Ministry of Minority Affairs as prescribed by the
Act. Arguably, these need to be revisite d.
3.4. Need for Development of Endowed Assets
In line with a growing concern that development is the only way to enhance the benefits
for endowment beneficiaries (a flatter REF to the right), there is a need to look at the available
mechanisms to ensure develo pment.
11 Resolution No. 140 -15/6, Rulings of OIC Fiqh Academy on Awqāf, reproduced in Obaidullah, M.
(2013), Awqaf Development and Management , Islamic Research and Training Institute, Jeddah, Saudi Arabia, ch. 3.
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The mechanism for waqf development that has existed for several decades is the Urban
Waqf Properties Development Scheme of Central Waqf Council. It is funded through a yearly
grant ‐in‐aid from the Central Government. The scheme provides loans with two conditions for
waqf management: (i) donation of 6 percent per annum to Education Fund , and (ii) 40 percent of
enhanced income after loan repayment to be paid towards education.
The National Waqf Development Corporation (NAWADCO) has been set up recently
with the explicit objective of development of awqaf assets.
3.5. Making Sense of Some Numbers
Against 490 ,000 registered awqaf properties with an estimated market valuation of assets
at USD 24 billion , the Urban Waqf Properties Development Scheme of Central Waqf Council
has hitherto provided loans to 137 projects of US D 5.77 million (1974 -2012) , of which 84 have
been completed in all respect s and are now yielding income ; and t he National Waqf
Development Corporation has been established with authorized capital of INR 500 crores (USD
80 million) , which is less than 0.35 percent of asset value.
A question therefore arises: How do we meet the massive capital needs for waqf
development in an effic iency -enhancing manner?
The first mechanism following from successful international experiments seems to be
private capital contribution for limited period s. This would , however , call for a relaxation of
leasing rules , and more specifically, to allow subl easing to facilitate sukuk issues, since no other
form of Shariah -compliant borrowing is possible in India. Without permitting sublease s, many of
the modern awqaf financing mechanisms would fall flat.
One may draw here a parallel with the widely acclaimed success in waqf development in
Singapore by the state agency Majlis Ugama Islam Singapura (MUIS). MUIS has been highly
successful in transforming and significantly enhancing the incomes of awqaf assets in Singapore.
MUIS now manages 68 waqf assets directl y and an additional 33 waqf assets indirectly through
mutawallis . MUIS appoints mutawallis for privately managed awqaf and approves any
development or redevelopment or purchases by them. It holds the title deeds of all , including the
privately managed awqa f. Observers attribute this success to a very progressive regulatory
change that has allowed leasing waqf property for up to 99 years without transferring the
ownership to the lessee; and has allowed selling waqf properties completely and replac ing them
wi th new, higher -yielding free -hold properties ( istibdal ). Because of this flexibility, MUIS could
issue participation sukuk called Musharaka bonds to finance the development of endowed assets
on a fairly large scale. 12
The second mechanism to finance the dev elopment of new waqf is through creation of
new waqf . However, the waqf laws in India in their present form do not provide for explicit rules
for cash waqf and waqf shares.
Laws are also silent on rules pertaining to investment of cash waqf .
It is a matte r of common observation that there is need for level playing field for awqaf as
compared with other forms of not-for -profit organizatio n, such as societies, trusts , and Section 35
12 See Shamsiah Bte Abdul Karim (2010), Contemporar y Shari’a Compliance Structuring for the
Development and Management of Waqf Assets in Singapore, Kyoto Bulletin of Islamic Area Studies, 3 -2.
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Companies. However, waqf involves significant financial and non -financial co sts as compared to
the above structures , leading to lack of interest among Muslim philanthropists for using the
awqaf for establish ing of education, healthcare , and other socially useful projects. A striking
example is that of Azim Premji Trust , which tran sferred 295.5 million equity shares, valued at
USD 2.3 billion , representing 12 per cent of the shares of Wipro Ltd, to an irrevocable trust (the
Azim Premji Trust) that finances the activities of the Azim Premji Foundation .13 The
irrevocability of the trus t takes care of the most significant difference between a waqf and a trust ;
therefore , the Azim Premji Trust can be legitimately called an innovative case of corporate waqf .
There are strikingly similar examples of corporate waqf , such as the WANCorp by Jo hor
Corporation in Malaysia and the Vehbi KoC Foundation in Turkey ,14 and there is no reason why
Indian laws cannot provide for the possibility of corporate waqf .
Interestingly, there is very little mention of the term waqif or donor in the Indian waqf
laws . It appears that these laws are meant for awqaf created many centuries ago , not for new ly
created ones . It is worth considering giving waqif an option to create waqf outside the purview of
board (which is where most non -financial costs come from). Without such changes, the problem
of funds will continue to haunt the prospects of waqf development.
This article trace d the trajectory of the laws of awqaf in India and examine d how
different provisions of the laws were enacted to address the socie tal concerns about preservation
of endowed assets with a view to retain ing its expected benefits for the intended beneficiaries , or
developing the assets with a view to enhanc ing the expected benefits for the intended
beneficiaries. The former seems to hav e dominated the minds of lawmakers in India so far,
though of late there seems to be growing recognition of the significance of the latter. The search
for efficiency -enhancing rules must continue. One must not shy away from considering and
experimenting wi th innovations in waqf financing , which is essential for taking the development
agenda forward. Undoubtedly, it makes no sense to allow the endowed properties to remain as
they are , without being of any value or providing benefits to anyone.
Further, the modes to address society’s concerns (preservation or development) must be
correctly identified. For example, extreme concern for preservation has led to seeking state
protection without recognizing its adverse impact on the institutionalization of voluntar ism.
Indeed, state protection is sought to curb private corruption while state apathy, corruption , and
interference has discouraged voluntary acts. Recent philanthropic action by members of the
community seems to have preferred non -waqf forms, perhaps beca use of excessive government
control over waqf under existing laws in place.
Wa qf was always meant to be in the voluntary sector and not in the government sector.
Efficient laws must be formulated and implement ed to ensure a reversion to the original status of
Islamic endowments as a mechanism that encourages voluntarism, benevolence , and
13 See “Azim Premji donates USD 2.3 billion after signing giving pledge,” Forbes, February 23, 2013,
https://www.forbes.com/sites/naazneenkarmali/2013/02/23/azim -premji -donates -2-3-billion -after -signing -giving –
14See Obaidullah, M. (2 013) Awqaf Development and Management , Islamic Research and Training
Institute, Jeddah, Saudi Arabia, ch. 2.
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
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 –
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
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
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
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
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,
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,
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,
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,
%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,
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).
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 26
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
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,
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
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 –
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27
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 –
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,
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 –
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,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 28
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 –
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,
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,
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,
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,
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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
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,
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,
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
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 30
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
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,
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,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 31
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
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,
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/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
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
(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),
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),
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
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
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,
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.”
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 35
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;
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 .
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
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
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