Debating Civil Society: Contested Conceptualizations and Development Trajectories

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International Journal of Not -for -Profit Law / vol. 1 6, no. 1, September 2014 / 59

Debating Civil Society:
Contested Conceptualizations and Development Trajectories
Jussi Laine 1

The concept of civil society is back on the agenda. However, ambiguity
still surround s the concept. While there is no need to strive for a universal
understanding o f civil society, it is nevertheless essential to scrutinize the concep t
thoroughly , for what is understood by it defines largely what can be expected
from it. This article conceptualizes civil society as an arena, a public space with
blurred borders, where diverse societal values and interests interact. It argues for
a framework that is better able to take into account the entire range of civil
society actors , by placing less emphasis on organizational forms and a stronger
focus on the functions and roles o f informal associations, movements, and
instances of collective citizen action.

Introduction
During the last two decades, the concept of civil society has been, once again, on the rise.
Today, it is on various agendas . As a concept it is much used, perha ps overused, certainly
misused if not abused. Few political speeches, action plans , or program documents go without
reference to civil society. But this presents a problem. Are we all talking about the same thing ?
As Grimond notes, it is universally talked about in tones that suggest it is a Great Good, but for
some people it presents a problem: W hat on earth is it? All the talk with little action has
downgraded the concept into a fashionable buzzword, a sort of an attention -directing device with
limited us ability. Such a development is deleterious , for it overshadows many of the ideas and
accomplishments stemming from civic action.
Defining what is meant by civil society is a political project in itself. However, it is
essential to scrutinize the concept t horoughly , for what is understood by it defines largely what
can be expected from it. Using the term “civil society ” in a global sense obscures as much as it
illuminates. The basic premise here is that what is meant by civil society remains open to diverse
interpretations (Cohen & Arato 1992; Wiarda 2003; Edwards 2004). Its definitions have changed
over time, but even in the current use the concept means very different things in different
countries and languages (Kocka 2004, p. 65). Certainly, civil society is a product of the “West, ”
but that tells us little , for there are several models of civil society in the West : the French one
differs from the British; the American conception is quite different from that of, say, Germany.
In order to get to the root o f the issue, one is forced to deal with some of the major
divisions in social and cultural studies, and trace how the utilization of different traditions and
1 Dr. Jussi Laine, jussi.laine@uef.fi , is a researcher at the University of Eastern Finland, Joensuu Campus,
as well as the Treasurer and Vice Executive Secretary of the Association for Borderlands Studies .

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models have led to different manifestations of civil society. This article aims to show that the
frame of interpretation and the related assumptions about civil society var y greatly , depending on
the tradition that is followed and the conception or model that is applied. Th e article outline s the
historical premises for the formation of civil society an d then discuss es the current usage of the
concept. It concludes by presenting an interpretation of civil society as an arena , with an
argument that instead of fixating on civil society ’s organizational form, the focus needs to be on
what is actually being done.
Bringing History Back In
Classical Civil Society as Partnership of Individuals
Even though the contemporary understanding of civil society refers commonly to the
public sphere, as set apart from the state and the market, it has not always been so. Ma ny of early
European political thinkers saw civil society as a synonym for a type of political association
whose members are subject to laws which ensure peaceful order and good government (Keane
1989). The origins of the concept of civil society trace bac k to the communal life in the polis , the
Greek city -state. Socrates proposed that “dialectic, ” a form of public argument to uncover truth,
was imperative to ensure “civility” (in contrast to barbarity ) in the polis and “good life ” of the
people (O ’Brien 19 99). This rational dialogue was to test the individual ’s arguments against
societal arguments in order to find the proper balance between the needs of the two (Setianto
2007). For Socrates ’ prized student, Plato, the ideal state was a society that was just and allowed
people to dedicate themselves to the common good and to practice civic virtues of wisdom,
courage, moderation, and justice (Ehrenberg 1999, pp. 5–6).
Aristotle was the first to use the term koinonía politiké , a political association. For him,
koinonía politiké was an independent and self -sufficient association of free, equal, and like –
minded persons united by an ethos , a common set of norms and values approved and honored by
its members (Barker 1946). As Cohen and Arato (1992, p. 84) bring fort h, koinonía politiké was,
however, only a koinonía among many; the term koinonía was used to designate all forms and
sizes of human association, the members of which were held together by something they had in
common and could share with each other. Howeve r, while all associations have an end, the
political association has the highest: it channels the collective pursuits to serve the common goal
of attaining a good society.
Whereas today a political association or a community is often understood as being a state,
for Aristotle the state was a foreign concept. For him, koinonía politiké designated above all a
politically united community, a city as a political “partnership ” of individuals coming together
not for the sake of social life but rather for the sak e of performing good actions and attain ing
self -sufficiency (Barker 1946, p. 5). Aristotle thus saw that contiguity and consanguinity, as well
as the social life arising from these ties, are the necessary basis , but that the essence is
cooperation in a com mon scheme of good life, and the ultimate form of such cooperat ion is the
polis , o n which individuals are depend ent. Individuals are by nature political animals ; when
perfected, they are “the best of animals ” who engage in political pursuits because they are
“furnished ” with capabilities such as speech, which allows for communication and the ability to
perceive and determine what is just (ibid. p. 7). Thanks to these capacities, human beings can be
habituated to virtue, which can be best done through partic ipation in the communal life in the
polis, the civil society.

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Cicero in turn referred to a civilized political community, which was the equivalent of res
publica (commonwealth), “an assemblage [of men] associated by a common acknowledgment of
right and by a community of interests ” (Cicero 1966). It includes groups, communities , and
individuals united by laws and institutions , which organize their activities in such a way as to
create a flexible equilibrium among them. Because justice and reason are rooted in man ’s natural
“social spirit, ” such organization s induced individuals to for go a measure of self -interest in the
interest of the common good (Islamoglu 2001, p. 1891).
Community with Virtues Derived from Natural Laws
Willem van Moerbeke used communicat io politica and civilis communitas as translations
of koinonía politiké in approximately 1260. It was not, however, until the fifteenth century that
Leonardo Bruni, a Florentine humanist, challenged the earlier translation with societas civilis , a
term tha t would famously enter into all European languages (Hallberg and Wittrock 2006, p. 30) .
In the sixteenth century, Jean Bodin built upon Aristotle by arguing that the state is a
natural fact: “The state is the civil society that can exist on its own without associations, and
other bodies, but it cannot do so without family ” (Bodin in Bobbio 1989, p. 35). Bodin claimed
that there are various forms of the political ethos ( mores ), which affect the shaping of various
forms of government: monarchy, aristocracy, a nd democracy. Bodin ’s main idea was to create an
ethos of pacification, peaceful coexistence, and cooperation between citizens, which would
secure the stability of public goods and institutions even in a society lacking consensus on its
highest values. In Bodin ’s eyes, the best way to guarantee this was through the absolute
sovereignty of state power (Rhonheimer 2005, p. 21) .
The Aristotelian logic of a society as a work of nature was not challenged until the
seventeenth century, when most notably Thomas Ho bbes and John Locke argued that societies
are formed as the result of a social contract between human beings. Hobbes believed that in their
original state of nature , people lived in a society of “all against all ” and had to compete for
scarce resources. Th is, he argues in Leviathan , creates a war in which every person is governed
by his own reason and has a natural right to do anything to preserve his own liberty or safety
(Hobbes 1909). As constant war and insecurity allowed no development and made the lif e
“solitary, poore [ sic ], nasty, brutish, and short, ” Hobbes saw that people needed agreements
based on the natural precepts and the general rules of reason among each other in order to create
peace and, hence, improve their li ves (i bid.).
Through such mut ual contracts between individuals, the state of nature could be left
behind and the formation of a common power, the Leviathan , the civil government, the state,
could bec ome possible. Whereas individuals in the state of nature fought against each other, in
civil society the impartial state maintained peace in a community of people acting in a civic
manner (Hobbes 1909, pp. 105 –109). The motive to come together was not that people were
naturally inclined to do so, as Aristotle had asserted ; they were driven by the fear of coercive
common power ( ibid. p. 101). The existence of such a power, the state, thus created a condition
in which the state of nature gave way to civil society; i.e., it became rational for people to act in a
civil manner and to cooperate ra ther than fight for their vested interest.
Skinner (1996) suggests that Hobbes actually repudiated the entire classical theory of
eloquence and its ideal of the vir civilis , the good citizen, the virtuous, wise, rational
man. Instead, according to Skinner ’s interpretation (1996, p. 291), Hobbes had claimed that
reason unaided by eloquence would be sufficient to persuade others of the truths of civil science,

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that eloquent men would have not sustained but destroyed civil life, and that the most important
du ties of citizenship are grounded in the private sphere.
Whereas Hobbes wanted all lawmaking, both judicial and exe cutive powers, to be
exercised by a single body and to have authority even over the individual ’s religious doctrines
and beliefs, Locke made a separation between the legislative and executive powers in order to
prevent the power of government from threatening the rights of the society (Locke 1965).
Locke ’s ideas were grounded in the doctrine of a God -given Natural Law, which posits that
individu al citizens have certain natural rights as human beings that cannot be taken away from
them (Locke 1965; Laslett 1960).
Locke promoted the civic virtue of tolerance and advocated that individuals be allowed to
meet together, to form associations, and to enter into relations of their choice – the government
being a unitary outgrowth of the freedom to form an association. He saw that communities are
formed when people unite in order to further their own and their community ’s interests. By
agreeing to form a legislature, people give their individual power up to the community. Like
Hobbes, Locke did not generally hold that the state and civil society would be s eparate realms
but rather that they would co exist . In Two Treaties of Government , he d id, however,
inc onsistently assert that the dissolution of legislative power does not necessarily mean the end
of society, whereas if society is dissolved its government cannot remain.
Enlightenment Ideal and the Epistemological Centrality of Morality and Reason
During t he Age of Enlightenment, a number of thinkers contributed to the advancement
of the concept of civil society. Human beings were rational and capable of shaping their own
destiny without an absolute authority exerting control over them. Montesquieu further developed
the distinction between a nonpolitical civil society ( l’état civile ) and the state ( l’état politique ).
Largely under Bodin ’s influence, he came to believe in the “rule of law ” within a civil society.
Whereas governments use laws to influence and steer human conduct, civil society uses moeurs
(nonlegal , internalized restrain ts established by custom) and manières (conduct not regulated by
law or religion) (Montesquieu 1949; Richter 1998). Rousseau maintained that Locke ’s idea of
expanding individual rights ignored common goods and would ultimately lead to a war among
people. Instead he proposed a new social order that would maintain harmony and provide
equality and freedom for all . T he State, as a supreme power, would govern, enact laws, and
define t he common good (Colás 2002) . Civil liberty would emerge when all people we re willing
to abide by the general will out of a belie f that it would lead to common good.
It was first and foremost the Scottish Enlightenment thinkers David Hume, Adam
Ferguson, a nd Adam Smith who began to refer to civil society clearly as a network of human
relationships separate from the State. The distinction, according to Ferguson (1995), was
necessitated by the rise of state despotism, i.e., the state ’s endeavor to “cover ” soc iety by forcing
its way through it “from above ” (Holenstein 2009, p. 16). Hume suggested that people set their
goals on the basis of morality but use reason in achieving them. By using reason to follow their
self -interests in an enlightened manner, people would eventually achieve the interests of society
as a whole. While rejecting the social contract theory, Ferguson presented civil society as a
developed and redefined society, where civil liberties were safeguarded by the government and a
certain level of social, political, and particularly economic advancement has been reached. He
saw civil society as opposed to a rude nation (Pietrzyk 2001) and believed that through

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governmental policies, education, gradual knowledge, and development, rude society might be
transformed into civil society (Setianto 2007).
Smith agree d with Ferguson that the binding principle of civil society is a private
morality predicated on public recognition by one ’s peers, joined through bonds of moral
sentiment (Smith 1976). He laid t he foundation for civil society as an economic society separate
from but protected by the State and mediated by a social order constituted by private property,
contracts, and “free ” exchanges of labor (Smith 1993, p. 36). For Smith, civil society was not
only a refuge from the economic realm but also a wellspring of economic abilities. In Smith ’s
view, liberal commercial society both required and encouraged civic virtue. Inspired by Ferguson
and Smith, the firm distinction between the civil society, family, and the state became key to the
German conception of civil society later advanced by Hegel.
Whereas Smith understood individuals to be motivated mainly by self -interest, for
Immanuel Kant this was an inadequate basis upon which to construct a moral order because it
was not grounded in a sense of mutual obligation and respect (Calabrese 2004, p. 318). Instead,
for Kant, civil society meant that the ends sought by one should not be won at the expense of the
wellbeing of another (Kant 1997, 28). For him, the public sphere was the place where the private
interests of members of civil society could be reconciled with t he universal moral obligations; he
believed that individuals need to accept a political authority (the State) in order to achieve a
condition of j ustice and rights (Kant 1991, pp. 54 –55). Accordingly, the main purpose of civil
society is to force human beings to respect one another ’s rights (Setianto 2007). Kant was ahead
of his time by suggesting that civil society would not need to be nation -bound but rather could be
universal.
Classical Modernity and the Distinction between State and Civil Society
Whereas the classical thinkers emphasized the identity of the state and society, during the
modern era the two began to be seen as independent entities . G. W. F. Hegel, the leading thinker
of Romanticism, saw human needs, the satisfaction of individual interests, and private property
as the defining features of civil society. He treated civil society as a “system of needs ” in which
individuals reconcile their particular private interests with social demands and expectations,
which are ultimately mediated by the universal state (Hegel 1991).
For Hegel, the significance of civil society is that individuals find satisfaction only in
relation to other free i ndividuals who are not family members but rather independent persons
(Peddle 2000, pp. 118 –120). Hegel argued that civil society is well suited to balancing the
diverse range of human needs and interests , but that the state, as the highest form of ethical life,
gives order to the system of needs by ensuring the stability of private property, social class, and
the division of labor. Occupying the realm of capitalist interests, civil society was not necessarily
civil and without conflict. The state ’s task was thus to correct the faults of civil society. In short,
a well -functioning civil society cannot exist without the guidance of the state.
Hegel ’s modern understanding of civil society changed the meaning of civil society
entirely: whereas for Kant “bürgerli che Gesellschaft ” and “Staat ” had been synonyms, for Hegel
they became antonyms (Zaleski 2008, p. 264). He used the German term “bürgerliche
Gesellschaft ” (bourgeois society) to denote civil society as “civilian society ”; i.e., a sphere of
economic and soc ial arrangements regulated by civil code rather than directly dependent upon
political state itself (Honderich 2005, pp. 367 –368). In contrast to the preceding dyadic models,
Hegel provided a triadic scheme, in which civil society as an intermediate moment of ethicity

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(i.e., being ethical) became situated between the macro -community of state and the micro –
community of the family (Bobbio 1989, p. 31). Whereas both the family and state had well –
defined cat egories, Hegel ’s civil society was a fuzzier concept that encompassed practically
everything outside those two realms .
Hegel ’s followers split based on their political leanings. To the right, Hegel ’s theory led
to a liberal distinction between political so ciety and a civil society that encompassed all non -state
aspects of society, including culture, society, and politics (Zaleski 2008, p. 263). Alexis de
Tocqueville followed Hegel ’s perception of social reality in general terms by distinguishing
between pol itical society and civil society but contested Hegel by putting weight on the system
of civilian and political associations as a counterbalance to both liberal individualism and
centralization of the state. According to his liberal stance, the effectivenes s of civil society as an
“independent eye of society ” depends upon its organizational form (Tocqueville 1969). Building
on Montesquieu ’s template, Tocqueville used the term mores to denote the totality of intellectual
and moral state of a nation, the total ity of customs, public opinion, and beliefs, which he saw as
having a greater influence upon democracy than laws and the physical environment (i bid.).
On the left, Hegel ’s ideas became the foundation for Karl Marx ’s civil society as an
economic base , in co ntrast to the “superstructure ” of the political society, the state (Marx 1977).
Marx gave civil society a more politically charged name, “bourgeois society, ” as for him it was a
product of a historical subject, the bourgeois, which legitimate d its struggle s against the
absolutist state in the language of the rights of man and citizen, whereas in reality it serve d only
the particular interests of the bourgeois (Richter 1998, p. 33). He rejected the positive role of the
state put forth by Hegel , as he believe d that under capitalism, the state functions as a repressive
apparatus, an instrument of class domination (Bobbio 1989, pp. 27 –29; Marx 1970). He agreed
with Hegel that civil society was where the real action is, yet he conceived it to be so robustly
shape d by class antagonism that it could not ensure the common good among competing interests
(Brown 2001, p. 74). In a bourgeois society, people treat one another as a means to their own
ends and, in so doing, are isolated from other people (Anheier, Glasius a nd Kaldor 2001, pp. 12 –
13).
Gramsci (1971) followed Hegel in distinguishing civil society from the State, but
preferred the Marxian thought that the historical development of society occurred in civil society
and not in the State. However, whereas Marx ha d considered civil society as coterminous with
the socioeconomic base of the state, Gramsci located it in the political superstructure and made it
the locus of the formation of ideological power. For him, civil society was a sphere wherein
ideological appa ratuses operate d and whose task it was to exercise hegemony and through
hegemony to obtain consensus (Bobbio 1989, p. 29). While in Marx ’s writings civil society is
portrayed as the terrain of individual egotism, Gramsci described civil society as a sphere of both
the individual and organizations with the potential for rational self -regulation and freedom.
Even though Gramsci portrayed civil society as the arena, separate from state and market,
he specifie d that the distinction betwe en the state and civil s ociety wa s only methodological , for
even a policy of non -intervention like laissez faire is established by the state itself (Gramsci
1971). He present ed a fully developed civil society as a system able to resist the “incursions ” of
economic crises and to p rotect the state ( ibid. p. 238). The state, narrowly conceived as
government, is protected by hege mony organized in civil society, while the coercive state
apparatus fortifies the hegemony of the dominant class. However, while Gramsci accept ed a role
for t he state in developing civil society and in shaping public opinion, he warned against

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perpetuating state worship (i bid. p. 268). Civil society, he came to believe, explained why a
communist revolution had been much easier in Russia than in Italy. Whereas “[i]n Russia the
state was everything…, in the West, there was a proper relationship between state and society,
and when the state trembled, a sturdy structure of civil society was at once revealed ” (i bid. p.
238).
As Fleming (2000) notes, Gramsci ’s work drove twentieth -century analysts to add three
crucial components to the understanding of civil society. First, it was understood that civil
society was more than a mere transmitter of established practices or beliefs; it formed a site of
social contestation, in which collective identities, ethical values, action -orienting norms, and
alliances were forged. Second , the dynamic, creative side of civil society became emphasized in
the formation o f informal networks, initiatives, and social movements, which transc ended the
framewor k of formal associations. Third , largely thanks to Habermas (1991), civil society came
to be seen as “public sphere, ” a coercion -free arena for discussion and mutual learning, detached
from the systematizing effects of the state and the e conomy, where people come together to form
a common discourse, the public, and in doing so compel the state to legitimate itself before
public opinion.
Postmodern Influences
Just as the French R evolution had fueled an adjustment of the concept of civil so ciety in
the early nineteenth century, so did the emergence of political opposition to the authoritarian
regimes in the former Soviet bloc in the late 1980s. While civil society had been in limbo for
decades, the concept was suddenly revived in the early 1 990s as its role in democracy,
democratization, and development became understood (Jensen and Miszlivetz 2005, p. 3). Since
then, globalization and the related formation of a “global civil society ” have been the leading
force s behind the civil society deve lopment. The 1990s witness ed not only a multiplication of
NGOs but also a globalization of New Social Movements (NSMs). Kumar (2000) explains that
even though the NSMs had linked people together to bring about a social change at the regional
or national le vel since the mid -1960s, with the help of global or international organizations, these
movements were able to establish cross -border linkages and operate at international level, thus
becoming mega -movements or trans -national social movements (TSMs).
Along with NSMs, postmodernism brought along, inter alia, a heavy emphasis on
transformation theory (Collard & Law 1989), organization theory (Greenwood & Hinings 1996),
social capital (Coleman 1988; Putnam 1995), political opportunity structures (Kitschelt 1986 ;
Kriesi 1995), and resource mobilization (McCarthy & Zald 1987). Furthermore, New Public
Management (Osborne & Gaebler 1992; Borins 1994; Hughes 1998) became an increasingly
dominant paradigm for public sector reform. The “Washington Consensus ” of the ear ly 1990s ,
which combined neo liberal economic strategy with an emphasis on liberal representative
democracy (Edwards & Hulme 1995), portrayed the state more as a problem than a solution,
which in turn had a significant influence on the t heoretical debate. T he new conditionality
presumed by the related funding mechanism portrayed civil society as a sort of panacea, the
“magic bullet ” (i bid.), replacing the state ’s service provision and social care.
The Tocquevillean line of thought, which placed citizens ’ ass ociations in the core of civil
society and thus of democracy, was famously refreshed by Putnam (1995), who stressed the
production and accumulation of social capital. For him, social capital is an essential element of
good performance of any society , for c ivic virtue is most powerful when embedded in a sense

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network of reciprocal social relations. Putnam ’s basic thesis was not, however, altogether new .
Social capital had already been elaborated on by Bourdieu (1986) and Coleman (1988), both of
whom stressed the less normative aspect of civil society, the importance of civic participation
and the various social benefits generated by it. Nevertheless, Putnam popularized its utilization
and fueled further interest on the topic. Forming association s— the coming t ogether of people for
a common purpose — is thought to teach the “habits of the heart ” (Bellah et al. 1996) of social
behavior and to bind individual citizens to an idea of unity larger than selfish desires, thus
forming a self -conscious and active political society as well as a vibrant civil society functioning
independently from the state.
Current Understanding
While the twentieth century, in aggregate, was about the neglect and even the systematic
destruction of civil society through statist ideologies, t he twenty -first century has so far allowed
its rediscovery and restoration. Such a civic renaissance was an outcome of fresh outpouring of
social entrepreneurship and civic reinvention, lost faith in centralized systems of government,
and increased efficie ncy and credibility of CSOs, as well as a renewed quest for values and
interest in volunteerism (Eberly and Streeter 2002, p. 3). Also, increased new and inherited
wealth has made unprecedented resources available for charitable investment (Havens and
Sche rvish 1999, p. 1). As a result, civil society has became understood as to form an essential
mediating structure not only because it stands as a buffer between the individual and the large
impersonal structures of the state and the market but also because i t plays a crucial role in
cultivating citizenship as well as generating and maintaining values in society. Without civil
society, “values become another function of the megastructures, most notably the state ” (Berger
& Neuhaus 1977, p. 2).
That being said, the growth of the anti -globalization movement and obvious bumps on
road towards democracy, for instance in Russia, caused the universality and legitimacy of civil
society to be questioned. The neoliberal Washington Consensus became replaced by a “post –
Was hington Consensus ” that now acknowledged that the state does indeed play an important role
in democratic development (Öniş & Şenses 2005). As apparent particularly in times of
challenging crisis, state -centered policies became again very en vogue and civil society relegated
to the role of a supporting actor at best (Freise, Pyykkönen & Vaidelyte 2010). What also stands
out is that the current use of civil society has been moving away from the field of politics and
state building. It has become a sphere, an arena operating be yond the confines of national
societies , polities , and economies. What hold it together are not the borders of a nation -state but
rather ideas, values, networks, and social capital.
Toward Social Economy
Social economy (SE) has become a major institution o f civil society, contributing to the
organization of its associative fabric and the development of participative democracy but also of
a potent economic and societal actor. As an activity, the SE is historically linked to grassroots
associations and cooper atives, which make up its backbone (European Economic and Social
Committee 2007, p. 7). In general, the social economy refers to the part of the economy proper
that is neither private nor public but consists of constituted organizations, with voluntary
mem bers, undertaking activities for the greater good of local communities and marginalized
groups, a possible surplus of which is used for the good of the community of members or for
society. (Social Economy Lisburn 2012.) It can be further broken down into t hree sub -sectors:

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1) Community sector (usually small, local, modestly funded, dependent on
voluntary effort)
2) Voluntary sector (formal, independent, not -for -pro fit and strong volunteer input)
3) Social enterprise sector (businesses with primarily social objective s, surpluses
principally reinvested for that purpose in the business or in the community)
In this view, the SE is interpreted in the broader sense of civil economy and constitutes a
key component of the broader economy and not a parallel or niche market or a dependent sector
(Restakis 2006, p. 10). According to the prominent definition of SE, it includes those
organizations that are animated by the principle of reciprocity for the pursuit of mutual economic
or social goals, often thro ugh social control of c apital (i bid. p. 12).
What is noteworthy is that this definition includes also those for -profit businesses that
share their surpluses and benefits with their members (and/or the wider community) in a
collectively owned structure. However, the definition w ould exclude those non -profit and
voluntary organizations that are entirely dependent on grants or donations (Restakis 2006, p. 12).
Its applicability stems from the fact that it recognizes the central role of reciprocal (non –
commercial and non -monetary) t ransactions as economic activities in their own right (Ninacs &
Toye 2002). The various organization of the social economy can thus be seen as a sort of hybrid
enterprises that perform a blend of commercial activities (sale of goods and services), non –
comm ercial but monetary activities (public funding, donations), and non -monetary activities
(volunteer work) to achieve their goals (Restakis 2006, p. 9).
The conceptual delimitation of SE has been presented in the Charter of Principles of the
Social Economy p romoted by the European Standing Conference of Co -operatives, Mutual
Societies, Associations and Foundations (CEP -CMAF). The principles in question are (1) the
primacy of the individual and the social objective over capital, (2) voluntary and open
membersh ip, (3) democratic control by the membership, (4) the combination of interests of
members/users and/or the general interest, (5) the defense and application of the principle of
solidarity and responsibility, (6) autonomous management and independence from public
authorities, and (7) most of the surpluses have to be used in pursuit of sustainable development
objectives, services of interest to members or the general interest.
In its review on the evolution of Social Economy in Europe, the European Economic a nd
Social Committee (EESC), a EU consultative body that proclaims itself as a “bridge between
Europe and organized civil society ” [emphasis added], acknowledges that the concept of the SE
is closely linked to the concepts of social cohesion, local and regi onal development, innovation,
and employment, as well as with the project of building Europe (European Economic and Social
Committee 2007, pp. 29 –33). SE has demonstrated its capacity to increase the levels of social
cohesion by complementing and, above al l, paving the way for public action. The SE has
contributed to the social and work integration of clearly disadvantaged people and geographical
areas, but it has also increased the entire society ’s democratic culture, boosted its degree of
social participa tion, and managed to give a voice and negotiating capability to social groups
previously excluded from the economic process and from the process of drafting and applying
public policies.
The SE also constitutes a strategic motor for local and regional deve lopment by
contributing to endogenous economic development, restoring competitiveness to extensive areas

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and facilitating their integration at the national and international level as well as rectifying
significant spatial imbalances. The SE ’s capacity for innovation stems from its direct contact
with the broader society, which endows it with a special capacity for detecting new needs,
channeling them into the public administration and traditional profit -making private enterprises,
and, where appropriate, co ming up with creative innovatory responses.
“To reach the levels of welfare and progress that the ‘Western ’ countries of the European
Union enjoy, ” the EESC (2007, p. 33) explains, “the European social and economic model has
needed the contribution of the SE, which has proved capable of occupying a space that balances
economic and social aspects, mediates between public institutions and civil society and evens out
social and economic imbalances in a plural society and economy. ” At the European level, Socia l
Economy Europe, the EU -level representative institution for the social economy, has represent ed
and promote d social economy in Europe since 2000. The European Parliament ’s “Social
Economy Intergroup ” provides a forum for a dialogue between all social eco nomy players and
members of the European Parliament. The social economy is also represented in the European
Economic and Social Committee through the “Social Economy Category ” that brings together
members from cooperatives, mutual societies, associations, foundations, and NGOs with social
aims (Social Economy Europe 2012).

Figure 1
As Restakis (2006, p. 5) notes, there are two broad currents of thought in the debate on
the defining elements of the social economy ( Figure 1 ). The first is commonly traced ba ck to the
French sociologist Frédéric Le Play, who saw the social economy as functioning apart from the
market, which he interpreted to mean the economic sector that was populated by capitalist firms
and the state. For him, the social economy was a niche, a sort of a parallel market that was also
dependent on the state for its survival. It was needed in order to create an institutional order to
correct the undesired effects of the market. The objective that Le Play was pursuing was not
welfare or wealth, bu t social peace that is the reconciliation of morality and economics through
the moralization of individual behavior.
According to Restakis (2006, p. 6), the second current reaches back to the idea of the
civil economy, which is conceptualized as a dimensi on of the market. In this view, the market is
not identified exclusively with private enterprise but rather as an open domain in which the state,
the commercial sector, and the social economy all play a role. With in this current, the recent
neo liberal atti tudes that direct and restrict the social economy to utilitarian and economic

International Journal of Not -for -Profit Law / vol. 1 6, no. 1, September 2014 / 69

purposes have brought the term into closer association with the operations of the conventional
market. The apparent outcome of this has been the equation of the social economy wi th “social
enterprises ” understood as revenue generating, non -profit activities that are meant to serve social
or community purposes ( ibid. p. 8.) .

Figure 2
The three sectors of the overall market are distinct above all in that the institutions within
them operate on different economic principles ( Figure 2 ). The first sector is the domain of
governments of various levels , and as such its central economic goal is greater equality. The
economic principle central to the private sector is, in turn, efficiency , while social economists are
working towards the reinsertion of social goals, reciprocity/solidarity , into economic thinking
and decision -making. Even though distinct, these sectors are not hermetically sealed off from
each other; there are incalculable t ransfers and borrowings. Moreover, certain organizations
operate at the boundaries of these distinctions (Restaki s 2006, p. 12; Lewis 2006, p. 3 ).

Figure 3
Pearce (2003) prefers to use the word “system ” instead of “sector, ” as the latter implies to
him a homogeneous economy that can be divided in to three parts. Otherwise his vision parallels
closely with Restakis ’s ideas. He argues there are three main ways of thinking about how to
manage our economic life, each sector essentially stemming from a differe nt way of managing
the economy, from a different mode of production ( Figure 3 ).

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The first sector/system is about redistribution and planning, whereby it has come to be
viewed by many as bureaucratic, paternalistic, centralized, and inefficient, and as suc h
counterproductive to the profit -driven and competitive private sector seeking to maximize
financial returns to individual owners. The third sector/system is about citizens working together
to meet and satisfy needs themselves (Pearce 2003, p. 26).
Who’s Making Whom?
It is hard to define civil society without defining its relationship with state. Chambers and
Kopstein (2008) have made an important move beyond the binary traditional division by
suggesting that civil society does not have to be either again st or in support of the state, but
depending on the context it may also be apart from, in dialogue or partnership with, or even
beyond the state. As a result, civil societies, Miller et al. (2009) propose, can be depicted as
being contentious, manipulated, disciplined, competitive and interest -oriented, repressed, or
normative.
All that is certain is that civil society is not a stand -alone concept. As the discussion
above shows, it is paired historicall y with the concept of the state; they are not just link ed but
help define each other. Bobbio (1989, p. 42) argues that two processes , the state -making -society
and the society -making -state , are contradictory. The completion of the former would lead to a
state without society, i.e., the totalitarian state ; the c ompletion of the latter would lead to society
without the state, i.e., the extinction of the state. As they are indeed contradictory, the two
processe s are unattainable. Society and state act as two necessary elements that are separate but
contiguous, dist inct but interdependent, internal articulations of the social system as a whole
(Bobbio 1989, p. 44).
The weaker the layer of civic association, the stronger the vertical relationship of the
ind ividual and the state becomes — a relationship characterized not by voluntary action and
cooperation but by power, authority, and dependence (Eberly and Streeter 2002, p. 8). The
reciprocal, interdependent, and constantly realigning interaction between civil society and the
state is well explained by Putnam ’s (1988) tw o-level game theory. It admits a reciprocal
interaction between the domestic and the international arenas affecting the foreign policy
construction in a given country. At the national level, the domestic groups pressure the
government to adopt politics fav orable to their interest and the politicians seek power while
constructing these coalitions. At the international level, the national government seeks to
maximize its own ability to satisfy domestic pressures, while minimizing the adverse
consequences of t he ac tions developed abroad (ibid.).
Increased transnationalism on the one hand and international agreements and coalitions
on the other can make the game more complex. In the EU context, for instance, the two -level
game model can be inserted in the relati on between the member states and their domestically
organized civil society. On the other hand, Putnam ’s model can be applied in the relation
between the Europ ean -level organized civil society and the EU. Civil society no longer acts only
at the national l evel but has become more transnational and asserted its role as an independent
actor in the world society. As the EU increases its supranational mechanisms, it also increases
the importance of organized civil society in the EU multi -level governance system .

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Plurality of Civil Society
Recognizing that civil society does mean different things to different people is one of the
keys to moving forward, because it gets us beyond false universals and entrenched thinking
(Edwards 2004). Civil society is equally tr aditional and modern (Kocka 2007, pp. 85 –86). As
described above, its meaning has changed on a number of occasions. Despite its opposite origins,
in everyday contemporary practice civil society is assumed to form the antithesis of the state. If
civil socie ty is defined in opposition to the state then it is difficult to provide a positive definition
of “civil society ” because it is a question of listing everything that has been left over after
limiting the sphere of state (Bobbio 1989). It is, however, even more important to acknowledge,
as Giner (1995, p. 304) has done, that “[t]here is no such thing as the classical conception of civil
society. There is a Lockean interpretation, but there is also a Hegelian one; and then there are
Hobbesian, Marxian and Gra mscian theories of it. ” Different conceptions are based on different
interpretations of classical traditions. These interpretations lead to different outcomes and
expectation on what can be expected from civil society.
Wiarda (2003, p. 137) makes the valid observation that in theory civil society sounds
wonderful, yet in reality it is often less than that. Civil society cannot be seen as a magic formula
that will inevitably lead to democratic and socially just outcomes and save the world. It can be
seen to include also less civil actors, operations , and objectives that are, for instance,
disintegrative, clientelistic, unrepresentative or otherwise biased, divorced from power realities,
or even illegal. It is beneficial where it works; yet it has also been co nceived in statist and
corporatist terms or as an arena of elitist competition rather than self -sustaining cooperation
underpinned by a strong popular base ( ibid.) .
Civil society is a product whose origins are inherently and distinctly Western (Kocka
2004, p. 76). Western, particularly Western European and North American, urban societies are
regarded to have been better suited to the development of a stable pluralist civil society than
others, yet even there the development might have occurred as an “uninte nded outcome ” of the
efforts of state -makers as argued by Tilly (1975, p. 633). Be it as it may, this type of ethnocentric
account overlooks the great diversity of the concept of civil society, and fails to see its different
manifestations in different (no n-Westerns) societies.
Being fundamentally Western ought not to be taken to suggest that civil society cannot
exist elsewhere. Rather an analysis has to acknowledge and address this bias (Warkentin 2001).
It has become palpable that transplanting a workabl e model from its original context to another
with dissimilar history, economy, societal structure, and political culture is a problematic task.
Recognizing that civil society does indeed mean different things to different people provides us
with the keys t o move forward for it gets us beyond broad generalizations and normative
thinking.
In general terms, “Western ” is used to refer to an emphasis on individualism, absence of
feudal and semifeudal restraints, freedom of association, liberty, and participatory and pluralist
politics, along with middle -class, entrepreneurial, and free -market economics (Wiarda 2003, p.
13). Most frequently, it refers to the Montesquieuan understanding of civil society as a multitude
of independent citizens ’ associations that medi ate between the individual and the state and, if
needed, defend the freedom of the individual against usurpation by the state. The logic stressing
the civil society ’s associational core and the development of individual meaning and identity was
then promot ed and developed further by Tocqueville and fuelled the contemporary

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communitarian theorists, such as Etzioni, Bellah, Taylor, and Putnam, in their critique of the
presentation of humans as atomistic individuals put forth by Locke, Hobbes, and more recentl y
Rawls (1971).
Edwards (2004) suggests that in addition to civil society as “associational life ” or as “the
good society, ” its function as the “public sphere, ” as the arena for argument and deliberation as
well as institutional collaboration, ought not t o be forgotten. Edwards, a cknowledging that all of
these three schools of thought have something to offer, yet none of them provide complete and
convincing picture of civil society by themselves, call s for integrating these different
perspectives into a mu tually supportive framework. In all three schools civil society is an
essentially collective, creative, and value -based action, providing thus an essential counterweight
to individualism, cynicism, and overbearing influence of state authority ( ibid.).
Civ il Society as an Arena
A number of conclusions can be drawn from what is described above. From civil
dialogue come great ideas that can lead to important solutions. While not all civil society
organizations are necessarily civil nor do they necessarily pur sue the common good, the
democratizing role of civil society as a whole cannot be denied. By virtue of their mere existence
as autonomous actors, the various types of CSOs have pluralizing effect and consequently
strengthen the institutional arena and the entire society. As Mercer (2002, p. 8) explains, “more
civic actors means more opportunities for a wider range of interest groups to have a ‘voice, ’
more autonomous organizations to act in a ‘watchdog ’ role vis -à-vis the state, and more
opportunities for n etworking and creating alliances of civic actors to place pressure on the state. ”
Given that many CSOs work at the grassroots level and include marginalized groups, they not
only widen but also deepen possibilities for citizen participation ( ibid.).
This being said, civil society remains one of the most misunderstood and misused
concepts there is. The reason is obvious. What has been meant by the term has fluctuated
considerably through time. In addition, the concept continues to mean very different things in
different countries and languages. Using it in a global context easily obscures more than it
illuminates. As a concept, it remains normativ e, loaded, complex, and context -dependent. The
liberal democratic assumptions that often shine through Anglophone literature on civil society
only restrict the exploration of this complexity and limit the extent to which these studies may
actually engage with broader debates about the politics of development. A less value -laden and
more contextualized approach is nee ded to better understand the role that various civil society
organizations play in different contexts.
Looking back to the very beginning and going back to the basics, the concept of civil
society is very revealing in this respect. The largely undisputed l inkage to the concept of the
state, which has formed the very basis of the Western (post -Hegelian) though t, should be
rethought or at least broadened as to allow for more innovative solutions to issues commonly
restricted within the national frame. After a ll, civil society is a social construct invoked not just
in debates on democracy and governance but also with respect to intercultural understanding,
progress, and social cohesion.
Civil society preceded the state. Aristotle knew no concept of state as we know it today.
His koinonía politiké was a coercion -free association that channeled the collective pursuits to
serve the common goal of attai ning a good society. Not until the Scottish Enlightenment
thinkers, most notably, was a clearer distinction develop ed between a nonpolitical civil society

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and the state. No matter what the linkage is — be it juxtaposition, symbiosis, or something in
between — it restricts the concept of civil society within the frame of a particular nation state. In
so doing, it limits civ il society ’s characteristic intent of building an association of free, equal, and
like -minded persons united not by a citizenship but by ethos .
The commonly used concept of the third sector is mis leading in two crucial respects: I t is
not the third and it is really not even a sector. Through recent years, the borders between the
public, private, and the community sectors have become increasingly blurred. A substantial
range of practices and new organizational arrangements that blend their own missions eithe r with
business practices or public service production have emerged, creating something that is now
referred to as a “fourth sector. ” While the three -sector model surely helps us to make sense of
society, the boundaries it implies remain arbitrary. Civil s ociety is not so much embedded in the
third sector as it is linked to the processes that that produce social capital and common action. As
Gilbert (2004, p. 116) suggests, “[i]f state -supported nonprofit groups enlarge the social capital
of civil society, then why not for -profit, company sponsored bowling teams. ”

Figure 4
Inspired by the model put forth by CIVICUS, the World Alliance for Citizen
Participation, this article aims to conceptualize civil society as an arena, a public space or realm
where div erse societal values and interests interact. The borders of this space are complex, fuzzy,
blurred, negotiated and yet easily penetrable as people come together to discuss and seek to
influence the broader society. As such, it does not belong to the distin ct arenas of the market,
state or family but exists where these amalgamate ( Figure 4 ). There are clear overlaps and
incalculable transfers between the different arenas. For some organizations located at or near the

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border, these distinctions form the very core of their existence. Social economy organizations
that have both value and profit -based goals are good examples of this.
Civil society is the arena that occupies the space where the other arenas of the society —
namely the family, the state, and the mark et— interact and overlap and where people associate to
advance common interests. To associate refers to uncoerced and self -generating collective action
that is not part of the formal political decision -making process, controlled directly by state
institutio ns, or dependent on the state interests. While it is true that voluntary associations form
the basic building blocks of Western notions of civil society and the Putnamian idea of their
ability to foster social capital is by now well established, one cannot but ponder whether
participation in associations really makes individuals more “civic ” and active. Could it simply be
that active citizens tend to join ass ociations more often their less -engaged counterparts?
The civil society arena more generally is par t of a complex dual transition from industrial
to postindustrial society and from national state to transnational policy regimes (Anheier 2008).
The further it develops, the further it comes to comp ose not just an increased number and range
of groups and o rganizations but also increased linkages between them . This only amplifies the
corrective voices of civil society as a partner in governance and the market (Connor 1999). Civil
society should not be seen only passively, as a network of institutions, but al so actively, as the
context and product of self -constituting collective actors (Cohen and Arato 1992). It occupies the
space reserved for the formation of demands (input) for the political system and to which the
political system has the task of supplying answers (output) (Bobbio 1989, p. 25). A framework
that places less emphasis on organizational forms and allows for a broader focus on the functions
and roles of informal associations, movements, and instances of collective citizen action makes it
more dif ficult to dictate strictly who is in and who is out. Only such an action/function -oriented
definition is able to take into account the entire range of civil society actors .
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Change , 36, pp. 263 -290.

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 .

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 –
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 .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 29

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.”

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
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