International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 40
Freedoms of Association and Assembly and NGO Regulation in Greece and England
KONSTANTINOS D. MAGLIVERAS 1
As in other European countries, thousands of nongovernmental organizations (NGOs)
have been established and are currently in operation in Greece. Their precise number is not
known, not least because Greece, unlike jurisdictions such as England, has no central registry f or
NGOs and no other public country -wide method to record their creation and dissolution.
There is also no generally acceptable definition of “NGO ”. For the purposes of this
article, NGO is defined as an association of individuals, who have freely agreed to pursue
specific purposes and goals (other than creating syndicates, collective bargaining bodies, trade
unions , or political parties) and who carry out the mandate without aiming for direct profit or
gains, monetary or otherwise — provided, first, that activities benefit the general public; second,
that the organization has been established and is regulated by a constitutive instrument ; and third,
that it has received some form of official recognition by a competent public authority and is
subject to State supervision.
This article compares the NGO regulatory regimes of Greece and England. It concludes
by recommending that Greece add the legal entity “nongovernmental organization” to its Civil
Code and regulate it according to the role it plays in societa l affairs, similar to the special
treatment of organizations designated “charities” in English law.
Both Greece and England accept and uphold international and regional human rights law .
Both also recognize the competence of multilateral judicial and quasi -judicial organs, including
the European Court of Human Rights. Even so, t he two countries differ in four pertinent respects.
First is the type of legal system. Greece is a civil law or Continental law country , whereas
England is a common law country. Seco nd is the duration of a pertinent legal tradition.
Charitable institutions are much more firmly embedded in the Anglo -Saxon world than in
Continental Europe. Accordingly , when NGOs first appeared there, England already ha d a long
and distinguished traditio n of private legal entities known as charities, with a charitable or
philanthropic remit to promote the common good. As a considerably more recent State, by
contrast, Greece did not have such a tradition, and the founders of NGOs had and continue to
have to borrow other types of legal vehicles from the Greek Civil Code in order to establish their
organizations. A third difference is in the two countries’ constitutions. Greece has a written
1 Professor, Depart ment of Mediterranean Studies, University of the Aegean, Greece. Attorney at Law,
Member of the Athens Bar Association.
The research for preparing this article was carried out in the context of the Research Programme THALES –
Investing in knowledge societ y. It was co -financed by the European Union (European Social Fund – ESF) and
Greek national funds through the Operational Program “Education and Lifelong Learning” of the Greek National
Strategic Reference Framework (NSRF).
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 41
constitution ; England does not. Finally, the two countries differ on the impacts of global and
regional treaties. In the Greek legal order , treaties ratified by the Parliament take precedence over
domestic law and form part of the domestic legal order without further enactments. In the United
Kingdom , by contrast, treaties must be incorporated in a specific legislative instrument before
they are deemed domestic law. 2
II. NGOs in the Greek Legal Order
A. The Constitution of Greece
According to Article 11 of the Constitution of Greece, “Greek cit izens have the right to
asse mble peacefully and without carrying weapons .”3 The Police are entitled to be present only
during public gatherings held outdoors. Such gatherings may be prohibited on the basis of a
reasoned decision by the Police if they may cause a serious risk fo r publ ic safety or if the
socio economic life in a specific area will be adversely affected. Detailed provisions on when and
how public gatherings may be prohibited are to be found in a number of legislative instruments.
Despite the fact that the Greek Constituti on was promulgated in 1975, some of the se instruments ,
which are still in force , were adopted when the country was under a military dictatorship ( April
1967 – July 1974).
As regards the r ight to association, Article 12 of the Constitution provides that:
Greek citizens have the right to establish associations and not -for -profit organizations by
observing the legislation, which, however, may not subject the exercise of this right to a
[prior ] permit [issued by a public authority] .
Such organizations may n ot be dissolved, save when the legislation has been violated or when
crucial provisions of the organizations ’ charters or statutes have been b reache d. Even in these
cases , dissolution is not automatic. It requires the prior issuance of a court judgment, wh ich not
only must record the infraction but must also conclude convincingly that the infraction is of such
importance that it justifies the termination of the activities. In these instances, the dissolution can
be understood as the penalty that the NGO mus t pay because it has breached the legislation or
because its members have breach ed its constitutive instrument. The latter instance might be
regarded as an anomaly: why should the NGO be punished and disbanded when it was the
members who violated the terms of its charter? The simple answer is that the NGO is so closely
knitted with its members that they are almost inseparable and the actions (or omissions) of the
latter cannot but have serious and direct consequences on the former. Article 12 further stipul ates
that the dissolution provis ions will be applied by analogy to associations of natural persons not
incorporated as organizations. It is of some interest to observe that, while Article 11(2) expressly
allows the legislat ure to lay down rules determining when public gatherings can be curtailed or
even prohibited, no such stipulation is to be found as regards the exercise of the right to set up
associations and not -for -profit organizations.
2 Thus, while the European Human Rights Convention was ratified by the UK in March 1951, it only
became part of British law through the promulgation of the Human Rights Act 1998, which came into force in
3 All translations in the present article are the author’s.
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 42
The Constitution limits the application of the rights and freedom s laid down in Article s
11 and 12 to “Greek citizens ,” seemingly excluding all aliens who live lawfully in Greece. 4
W hile this restriction could have been upheld when the Constitution was first promulgated in
1975, it is now rather obsolete, at least as it applies to a specific group of aliens : the nationals of
the other Member States of the European Union who have exercised the rights and freedoms
conferred on them by EU law 5 and reside in the Greek territory. Thus it can be argued that
Articles 11 and 12 of the Constitution have been de facto amended , and the rights and freedoms
enshrined therein apply by analogy to those EU nationals (i.e. , the citizens of another Member
State) living in Greece pursuant to the applicable rules of the European Union.
Give n that the Constitution has been revised repeatedly since Greece acceded to the
(then) European Economic Community in January 1981, there have been ample opportunities to
harmonize its text with the compulsory rules of EU law. However, this has not happene d, while
there exist EU Member States which have introduced a more favorable regime for EU citizens ,
compared to o ther aliens. For example, Article 146 of the Constitution of Croatia, which was
promulgated in 1990 and last amended in 2013, provides: “In th e Republic of Croatia, all rights
guaranteed by the European Union acquis communautaire shall be enjoyed by all citizens of the
European Union. ”6
The need to harmonize the text of the Greek Constitution with EU law is further
supported if one were to invok e the Charter of Fundamental Rights of the European Union,
which entered into force on December 1, 2009. 7 The Charter, which was initially proclaimed as a
political declaration by European leaders at the Nice Euro pean Council on December 7, 2000,
became le gally binding on EU institutions as well as on national governments with the coming
into force of the Treaty of Lisbon (also known as “the Reform Treaty ”) in December 2009. The
Charter has the same legal validity as the EU ’s constitutive instruments — namely , the Treaty on
European Union and the Treaty on the Functioning of the European Union. The p rovisions of the
Charter are addressed to the national authorities of Member States and are bind ing upon them
when implementing EU law in the domestic legal order. The freedom s of assembly and
association are expressly protected by Article 12(1) of the Charter, which reads:
Everyone has the right to freedom of peaceful assembly and to freedom of association at
all levels, in particular in political, trade union and civic matters, which implies the right
of everyone to form and to join trade unions for the protection of his or her interests.
By using the word “everyone ,” Article 12(1) arguably covers the following three categories of
individuals: (a) the citizens of a Member State residing in the State of nationality (e.g. , a Greek
citizen living in Greece); (b) the citizens of a Member State residing in a Member State other
4 The Greek Constitution is not the only one in Europe that limits these rights solely to its own citizens. Cf.
Articles 8(1) and 9(1) of the German Constitution: “All Germans shall have the right to assemble peacefully …” and
“All Germans shall have the right to f orm corporations and other associations.” www.btg –
5 Principally, the free movement of persons, including the right of establishment. See Article 3(2) of the
Treaty on European Union; and Articles 26(2), 45 et seq., and 49 et seq. of the Treaty on the Functioning of the
European Union, Official Journal of the European Union , C 83, March 30, 2010.
6 The text of the Constitution is available at https://www.sabor.hr . The term “acquis communautaire”
denotes the totality of primary and secondary EU law, including the constitutive instruments of the European Union.
7 Official Journal of the European Union , C 83, 30.3.2010, p. 389.
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 43
than that of their nationality (e.g. , a Greek citizen living in Croatia); and (c) the citizens of all
non -Member States residing in any Member State (e.g. , a citizen of South Sudan living in
There are no known cases where the Greek State has deliberatel y violated the right to
assemble and the freedom of association enjoyed by citizens of other Member States, as
guaranteed by the rules of EU law , including the Charter of Fundamental Rights. For purposes of
legal clarity the Constitution ought to be revised in order to state that these rights extend to all
EU nationals 8 and, in keeping with the aforementioned interpretation of the Charter , to all aliens
residing lawfully in Greece as well . However, because the Greek Constitution subscribes to the
principle of reciprocity in its relations with other States, it could be argued that the express
enjoyment of these rights and freedoms by third -country nationals could require that the same
rights are enjoyed by Greek nationals within their jurisdictions, a fact that is extremely difficult
B. Multilateral Human Rights Treaties Bindi ng Greece 9
As regards the global and regional treaties for the protection and promotion of human
rights which have been ratified by Greece , reference will be made to the International Covenant
on Civil and Political Rights (ICCPR), adopted under the auspi ces of the General Assembly of
the United Nations in 1966, 10 and to the aforementioned European Human Rights Convention
(ECHR), adopted by the Council of Europe in 1950. 11
1. Treaty Enforcement
As noted above, international conventions which have been duly ratified by Parliament ,
enter into force automatically , and without any further procedure form an integral part of the
Greek legal system while taking precedence over any conflicting legislative provision , pursuant
to Article 28(1) of the Constitution. Gi ven the important role that the rules of public international
law play today , not only in intrastate relations but also in interstate dealings (both bilateral and
multilateral), the wording of Article 28(1) begs the question whether it could be interpreted to
mean that ratified treaties also take precedence over the Constitution as well . While this question
as it relates to the freedoms of assembly and association is theoretical — the corresponding rights
are defined quite precise ly— it is clear that the Const itution cannot be used as a vehicle to negate
the right to establish NGOs, if their creation is protected by treaties already ratified by Greece.
To measure the compatibility of Constitutional provisions protecting fundamental
freedoms to international hu man rights standards , one could make use of two modes. The first is
the domestic one: the competent State organs, principally the courts of justice , rule on the
compatibility. The second is the external or multilateral one: judicial organs or semi -judicial
8 Cf. Article 23(1) of the German Constitution, which refers to the establishment of the European Union
and stipulates that the changes to the EU founding treaties will lead to the amendment of the Constitution.
9 The content of this sub -chapter applies, mutatis mutandis , to the English legal system as well.
10 Greece ratified it by virtue of Act 2462/1997, Official Gazette of the Hellenic Government (FEK) 1997
(Issue) A’ (No.) 25.
11 Originally Greece had ratified it under Act 2 329/1953, FEK 1953 Α΄ 68. However, the military
dictatorship renounced it in 1969 and withdrew from the Council of Europe. It was ratified again under Legislative
Decree 53/1974, FEK 1974 A’ 256, when Greece acceded anew to the Council of Europe.
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 44
entities with an international remit rule on the compatibility — in the case of the ICCPR, the
Human Rights Committee ; in the case of the ECHR, the European Court of Human Rights (the
so -called Strasbourg Court ).
Greece has recognized the jurisdiction of b oth the Human Rights Committee and the
Strasbourg Court. Accordingly, once domestic courts have ruled on complaints, these
multilateral entities have the right (and the mandate) to determine if the r espondent State
(Greece) has breached its duties under th e relevant treaty. For purposes of these transnational
entities , the domestic legal system is unified , so it makes no difference whether the violation
stems from actions by a State official (e.g. , a judge) , an act of Parliament , a ministerial decision
or by the Constitution itself . Should the respondent State be found in violation of the respective
treaty, it must take all necessary actions to rectify the violation and ensure that it will not recur .
The judgment may also entitle the complainant party to com pensation (depending on the specific
provisions of each treaty) .
2. Treaty Provisions
The right s of assembly and association are guaranteed under Article 11 of the ECHR a s
well as under Articles 21 and 22 of the ICCPR. Their text runs as follows:
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others.
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
Article 2 1
The right of peaceful assembly shall be recognized. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the 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.
1. Everyone shall have the right to freedom of association with others.
2. No restrictions may be plac ed on the exercise of this right other than those
which 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
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 45
(References to the right to f orm and to join trade unions as well as to the freedom of association
as it applies to the armed forces and to the police have been omitted, because they are outside the
amb it of the present article. )
The wording of these two multilateral instruments is almost identical , with the exception
that the drafters of the ICCPR separated the right of assembly (Article 21) from the freedom of
association (Article 22). In essence , thes e provisions stipulate that everyone (i.e. , not on ly the
citizens of contracting S tates but anyone who reside s in their territory) shall enjoy them with no
restrictions other than those expressly stipulated ; c ontracting parties are not allowed to add other
limitations. Those States wishing to curb the ir exercise may do so only by invoking specific
restrictions contained in the treaties themselves (e.g. to invoke a domestic state of emergency
suspending certain rights and freedoms) . But even then , the Human Rights Committee and the
European Court of Human Rights , acting as supervisory mechanism s of the ICCPR and the
ECHR , are competent to rule on whether the imposed limitations are compatible with the ir
provisions. If the y are found to be in violation, the re spondent State must correct them,
regardless of the consequences in domestic affairs.
Finally, it is of some interest to compare the above clauses with the Universal Declaration
on Human Rights (UDHR), which was adopted in December 1948 by the UN General
Assembly. 12 The UDHR is not the first multilateral (non -binding) instrument for the protection
and promotion of human rights and fundamental freedoms (this hon or goes to the American
Declaration on the Rights and Duties of Man 13), but it is the most importa nt one. Over the years,
it has immensely influence d not only global and regional human rights conventions but also
national Constitutions around the world. 14
Article 20 of the UDHR stipulates that everyone shall have the right to freedom of
peaceful assemb ly and association and that no one shall be compelled to belong to an
association. 15 The UDHR thus has a wider scope than the ECHR and the ICCPR ; it does not
include the limitations envisaged in the ECHR and the ICCPR . Further, in stipulating that a State
cannot force the population to participate in specific associations , the UDHR again differs from
the ECHR and the ICCPR. Under the UDHR, for example, a state could not establish a single
environmental NGO and require all citizens who wish to work on environ mental issues to join it.
C. Greek Civil Code
In Greece, NGOs are formed as various legal vehicles under the Civil Code, which
largely match the types of organizations established by the Civil Codes of other European
12 Genera l Assembly Resolution 217 A (III) of 10 December 1948. There are currently 438 different
translations of the UDHR, see https://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx
13 Adopted by the Ninth International Conference of American States in April 1948, see
14 See H. Hannum, “The S tatus of the Universal Declaration of Human Rights in National and International
Law” [1995 -96] 25 Georgia Journal of International & Comparative Law 287.
15 Arguably the corresponding provisions in the American Declaration of the Rights and Duties of Man
(Article XXI and Article XXII) were more eloquently drafted, as they talked about the right to assemble “in
connection with matters of common interest of any nature” and the right of association as a manifestation of
protecting one’s “legitimate interests of a political, economic, religious, social, cultural, professional, labor union or
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 46
states. 16 Four forms of organization ar e relevant: societies or associations ( somateio );
associations of individuals pursuing a specific purpose but not regarded as societies or
associations ; foundations ( idryma ); and civic non -profit companies or corporations (astiki mi
kerdoskopiki etaireia ).
1. Society or Association
Based on empirical research, societies or associations are the most common legal vehicle
employed to set up NGOs in Greece. A lot of the stipulations affecting a somateio center on the
court system. The procedure to establish t hem is straightforward and relatively inexpensive.
Under Article 79 of the Civil Code , the founders or the persons entrusted with its administration
must apply for registration with the Court of First Instance in whose jurisdiction the seat of the
somateio will be located. The application, which need not be notarized, 17 must be accompanied
by the organization’s constitutive instrument. The instrument must be in writing , in compliance
with the requirement in Article 63 of the Civil Code that the charters or statutes of all legal
persons be drawn up in writing. Under Article 78 of the Civil Code , the organization acquires
legal personality once it has been entered into the relevant court registry . On the whole, courts
enter organizations in these registries wit hout closely examining the ir constitutive instrument.
Indeed, registration is rarely refused and it is a more or less rubber stamp procedure. When it is
refused, the founders can seek review before the competent court of justice and upon appeal the
case co uld be heard by Areios Pagos, the highest civil court in the country .
The Civil Code regulates a somateio extensively. 18 The regulations take precedence over
provisions of the organization’s constitutive instrument. For example , under Article 88(2) of the
Civil Code , member s who believe that they have been improperly expelled from the organization
are entitled to file within two months a judicial review of the expulsion before the competent
court of justice 19. In addition , the legality of any decision adopted by the assembly of members
may be challenged again before the competent court by anyone with a legitimate interest,
including those members who dissent ed from the decision, within six months of the decision ’s
adoption . Under Article 101 of the Civil Code, further, if the court of justice voids the decision,
the ruling affects all members , not just those who had contested its legality. Finally, Article 89 of
the Civil Code proclaims the equality of all members participating in a somateio . Additional
rights may be conferred on specific members only if the totality of members consents, acting
through the assembly.
16 The Greek Civil Code entered into force in February 1946. It was considerably influenced by the German
Civil Code (Buergerliches GezetzBuch – BGB), originally adopted in the 19th century. Subsequent revisions in the
Greek Civil Code were also influenced by the BGB.
17 By contrast, commercial companies which operate as sociétés anonymes or as companies with limited
responsibility must have the constitutive (founding) instrument or charter drawn up by a notary public. Greek
commercial law was influenced by French law, although nowadays there is a large corpus of European Union law in
18 See Articles 78 to 106 of the Civil Code.
19 Invariably this wi ll be the court of first instance in whose jurisdiction the NGO has its registered seat.
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2. Organizations of Individuals Not Regarded as Societies or
The second type of legal vehicle is envisaged in Article 107 of the C ivil Code:
organizations which are composed of individuals (i.e. natural persons) drawn together to pursue
a specific purpose but which are not regarded as societ ies or association s. Such entities are
obliged to have their constitutive instrument in writin g. The Civil Code does not contain any
further provisions on this type of legal vehicle other than to stipulate that its provisions dealing
with companies or corporations ( etaireia ) shall apply by analogy. 20
Article 108 of the Civil Code de fines a foundation (idryma ) in the following terms: if, by
virtue of a founding act, property (estate) was designated to serve a specific purpose, the
foundation will acquire legal personality by virtue of a presidential decree approv ing its
establishment. If the act creating the foundation takes the form of a legal transaction while the
owner of the property is alive, then under Article 109 of the Civil Code, the transaction must be a
legal document drawn up by a notary public. 21 Foundations, as opposed to somateio , have no
members and, accordingly , no general assembly. An idryma is run by its administration.
(It should be noted that, over and above the idryma , the Greek legal system acknowledges
the existence of another vehicle, the koinofeles idryma , whic h large ly corresponds to the English
institution of “charity ”, at least as far as the notion of charitable purpose or goals is concerned.
By contrast to a Civil Code idryma , a koinofeles idryma does not serve a private aim or purpose.
Rather , its funda ment al aim is to be “charitable”, a term that includes religious and philanthropic
purposes and, generally, any goal which is for the benefit of the public at large. This type of
organization is regulated by special legislation. 22)
The requirement of a presidential decree to set up an idryma demonstrates that compared
to the other legal entities that can be used for establishing NGOs , foundations are subject to
heavier intervention by the state. Unlike laws which are deliberated in Parliament, agreed by
Parliame nt and promulgated by the President of the Hellenic Republic (the proper name of
Greece) ,23 presidential decrees must be signed by the President , reviewed by the Council of State
(the highest -ranking administrative court in the country) , and then issued by the competent
ministers. 24 The Council of State, when exercising its advisory role, can recommend to the
competent ministers not to proceed because, for example, clauses in the foundation ’s constitutive
instrument violate the legislation or go against morality ( bonos mores ).
The State, however, does not have absolute discretion. If it refuses the creation of a
foundation, it must give proper reasons. The founders can seek review by the courts by arguing
20 See Articles 741 to 784 of the Civil Code.
21 Note that a foundation can also be set up by a will. In this case, the legal form of the will must follow the
relevant stipulations of the Civil Code. Generally, see K. Magliveras, “The Greek Law of Succession,” in D. Hayton
(ed.), European Succession Laws (3d ed.) (Bristol: Jordans, 2002), 271.
22 Until the promulgation of Act 4182/2013 ( FEK 2013 A’ 185), which has been amended by Article 32 of
Act 4223/2013 (FEK 2013 A’ 287), it was regulated by virtue of Act 2039/1939 .
23 See A rticle 42 of the Constitution.
24 See Article 43 of the Constitution.
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that the refusal violates the rights conferred by the Greek Constitution and ratified internati onal
treaties. In this instance , the competent court will be the Council of State, which will rule on
whether the grounds furnished by the State are valid. By the same token , if the presidential
decree has been issu ed, any other person who can show a legitimate interest in the case can apply
for its annulment before the Council of State .
A foundation can also be dissolved by a presidential decree , under Article 118 of the
Civil Code , in the following three broad si tuations: (a) when its aim has already been attained or
has become unattainable ; (b) when the foundation has deviated from its stated aim ; (c) or when
its operation is immoral or violates the applicable laws or breaches public order.
In some respects, Gre ece regulates foundations differently from other European
countries. The WWF 25 supplies an illustration . WWF was registered as a foundation ( fondation ,
Stiftung ) in Switzerland in 1961 , pursuant to Articles 80 et seq . of the Swiss Civil Code. 26 In
Greece, a WWF International Program Office was created in 1991 under the name Global Fund
for Nature — WWF Greece. Three years later, the Greek national organization was established
with the legal status of a charitable foundation. Its statute was ratified by the Pres idential Decree
of January 11, 1994 .27 It was then amended by the Presidential Decree of June 5, 2001 ,28 and by
Article 18 of Act 2443/1996. 29
Even though an idryma and a fondation are essentially the same legal vehicle, their
regulation differs in a number of respects. 30 Article 84 of the Swiss Civil Code stresses the role
played by the supervisory authority, which has to be a public law entity operating at the level of
the Confederation, a canton, or a commune. The supervisory authority, which is determined
according to the goals of the foundation, ensures, inter alia , that the resources given to the
fondation are used for the intended purposes with no deviation. Under Article 88, m oreover, the
supervisory authority can dissolve a fondation on its own , withou t applying to a court for a
dissolution order, if it deems that the organization’s objectives have become unattainable and
cannot be maintained by modifying its constitutive instrument or that its objectives have become
unlawful or immoral. 31 Additional req uirements can d epend on whether the competent body is at
the level of the Confederation or of a canton . F or example , the Federal Supervisory Board for
foundations requires a minimum initial capital of 50,000 Swiss francs (about 49 ,000 Euro). 32
Another notable difference is that whereas Greek foundations have a single mandatory organ,
25 WWF is globally referred to by the abbreviation of its original name, World Wildlife Fund, which was
later changed to World Wide Fund for Nature.
26 An official translation of the Swi ss Civil Code, which was also influenced by the German Civil Code, is
available at www.admin.ch/ch/e/rs/2/210.en.pdf
27 FEK 1994 Β’ 22 of January 18, 1994.
28 FEK 2001 Β’ 790 of June 22, 2001.
29 FEK 1996 A’ 265 of December 3, 1996. The purpose of this amendment was to exclude it from the
provisions of the aforementioned Act 2039/1939 on account of its operational and admini strative autonomy.
30 See L. R. Arrivillaga and G. von Schnurbein, “The Swiss Legal Framework on Foundations and Its
Principles About Transparency,” International Journal of Not -for -Profit Law , Vol. 16, no. 1, September 2014, 30.
31 See Article 88 of the Sw iss Civil Code.
32 Note that since July 1, 1999, all fondations must be entered in an electronic registry, which is open and
available to the public ( https://www.edi.admin.ch/esv/05263/index. html?lang=de ).
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Swiss foundations have two: the council (the supreme governing body) and the board of trustees
(audit board) ; the latter appoints the external auditors.
4. Civic Not -for -Profit Organizations
Articles 741 et seq. address the fourth type of legal vehicle envisaged in the Greek Civil
Code , civic not -for -profit companies , corporations , and organizations . These are entities set up
by at least two natural persons or legal persons who make joint contributions and commitments
to carry out a particular social or economic aim. The founders of NGOs have often used the
astiki mi kerdoskopiki etaireia to pursue philanthropic aims.
Given the wide -ranging scope of the type of entity, it has also been used for a variety of
other purposes and activities, including commercial and scientific. In addition, the Greek
government has used these vehicles for prog rams financed by the European Community and the
European Union and undertaken by different legal entities . Article 8 of Act 2372/1996 ,
“Establishment of operators to accelerate the development process and other provisions ,”
requires the formation of civic not -for -profit companies for those seeking to implement EC – and
EU -financed programs dealing with , among other things, the economic and social inclusion of
less privileged groups. 33 Arguably, these companies do not meet the criteria of an NGO .
5. NGOs as Legal Persons
Finally, it should be clarified that the Greek Civil Code treats societies and associations
as well as foundations as legal persons in order to distinguish them from the natural persons who
act as their founders or members. 34 The Civil Code do es not seem to allow the organizations to
participate in other legal persons, whether new or preexisting . Article 62 stipulates: “The
capacity of a legal person does not extend to legal relationships, which require the faculty/status
of a natural person .” Thus, legal persons do not have the capacity to establish other legal person s
even in collaboration with natural persons.
III . NGOs in the English Legal Order
England has a long and distinguished tradition in NGOs. It can boast of many important
and succe ssful NGOs , and a good share of them are active on the international plane.
Philanthropy is deeply rooted in the Anglo -Saxon world , which has no doubt contributed
considerably to establishing NGOs as a trusted institution in England. 35 The creation of the
Oxford Committee for Famine Relief in 1942 marked a fresh way of looking after the interests of
those most in need, irrespective of the country where they are located. Initially the Oxford
Committee, which is now internationally known as Oxfam, aimed at ensuring the supply of vital
relief to civilians in European countries occupied by the Axis powers during World War II,
principally Belgium and Greece. Today, Oxfam, as an international confederation comprising 17
33 FEK 1996 Issue A’ 29 of February 28, 1996. The Act is apparently still in force.
34 Note that the provisions examined here form part of the third chapter of the Civil Code, which is titled
“Legal Persons.” The legal provisions on natural persons (individuals) are contained in the second chapter of the
35 Generally, see W.K. Jordan, Philanthropy in England, 1480 -1660: A Study of the Changing Pattern of
English Social Aspirations (London: G. Allen & Unwin, 1959).
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 50
organizations, 36 is active in more than 90 countries and works alongside local partners. 37 Its main
objectives are to address the root causes of poverty and to respond to humanitarian
Oxfam considers itself part of the so-called “non -profit sector .” It is one of the signatories
of the INGO (international nongovernmental organization) Accountability Charter, which was
concluded in 2005 and further developed in 2014 as a voluntary commitment to high standard s
of transparency, accountability , and effectiveness. 39
At the same time, Oxfam is a registered charity in England and Wales as well as in
Scotland. The notion of a “registered charity ” denotes that an organization with charitable
purposes and aims is under the supervision of the Charity Commission (if registered in England
and Wales) or the Office of the Scottish Charity Regulator (if registered in Scotland) . Since these
two entities operate as “non -Ministerial Government Departments ,” they form part of the wider
public administration system in Great Britain. Even so , they are completely independent of
ministerial influence. To that extent, they can be considered as regulatory authorities enjoying
budgetary and administrative independence. These two entities act under the principal legislative
instruments covering “charities ”: the Charities Act 2011 (England and Wales) and the Charities
and Trustee Investment (Scotland) Act 2005. 40
The Charities Act 2011, which came into effect on March 14 , 2012, sets out how charities
in England and in Wales are to be registered and regulated. According to section 1 of the
Charities Act 2011, 41 “charity ” means an institution that meets the following two conditions:
first, it has been established for charitable purposes only; and second, it falls into the ambit of the
control of the High Court. 42 What constitutes “charitable purposes ” is laid down in sections 2 and
3 of the Charities Act 2011:
(a) the prevention or relief of poverty;
(b) the ad vancement of education;
36 Most of these organizations are in countries of the so -called First World and not in the countries where
Oxfam implements its programs: Oxfam America ; Oxfam Australia ; Oxfam -in-Belgium ; Oxfam Canada ; Oxfam
France ; Oxfam Germany ; Oxfam Great Britain ; Oxfam Hong Kong ; Oxfam India ; Oxfam Intermón (Spain) ; Oxfam
Ireland ; Oxfam Mexico ; Oxfam New Zealand ; Oxfam Novib (Netherlands) ; Oxfam -Québec ; Oxfam Ital y; and
Oxfam Japan .
37 For the list of countries, see https://www.oxfam.org.uk/what -we -do/countries -we -work -in.
38 For the current Oxfam Strategic Plan (2013 -2019), which is titled “The Power of People Against
Poverty,” see https://www.oxfam.org/en/about/accountability/oxfam -strategic -plan -2013 -2019 .
39 For the curren t text of the Accountability Charter, see
https://www.ingoaccountabilitycharter.org/wpcms/wp -content/uploads/INGO_CHARTER_web.pdf .
40 It should be noted that even though the United Kingdom of Great Britain and Northern Ireland is a
unitary State, there exist three separate legal regimes covering, respectively, England and Wales, Scotland, and
Northern Ireland. This divergence of legislation also applies in th e case of regulating charities. For purposes of
convenience only the provisions of the Charities Act 2011 will be examined here.
41 Note that the English legislation is broken down into “sections” and not into “articles,” as is the case with
Continental European legislation.
42 The High Court (the full title is “Her Majesty’s High Court of Justice in England”) is one of the senior
British courts with territorial jurisdiction in England and Wales . Its principal function is to consider important legal
cases. But it has also been endowed with other juridical tasks.
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 51
(c) the advancement of religion;
(d) the advancement of health or the saving of lives;
(e) the advancement of citizenship or community development;
(f) the advancement of the arts, culture, heritage or science;
(g) the advancement of amateur sport;
(h) the advancement of human rights, conflict resolution or the promotion of religious or
racial harmony or equality and diversity;
(i) the advancement of environmental protection;
(j) the relief of those in need because of youth, age, ill -health, disability, financial
hardship or other disadvantage;
(k) the advancement of animal welfare;
(l) the promotion of the efficiency of the armed forces of the Crown or of the efficiency
of the police, fire and rescue services or ambulance services; and
(m) any other aim, which may reasonably be regarded as analogous to any aims falling
within any of above (a) to (l). 43
If one were to argue that some of the above should not be regarded as activities usually promoted
by NGOs (e.g. , the advancement of citizenship or the promotion of the efficiency of the British
armed forces ), it should be remembered that “charity ” in the English legislation has a specialized
Section 2 of the Charities Act 2011 stipulates that all activities must be “for the public
benefit ,” a term not expressly defined in the legislation but rather left to be interpreted by the
Charity Commission. Thus, the Charity Commission has described the term “public benefit ” as
Public benefit is an essential part of what it is to be a charity. But it is not just a legal
requirement that charities have to meet and that we regulate. It also provides charities
with a positive opportunity to demonstrate the benefits they bring to the public, in return
for the financial and other benefits that come from being a charity, such as public
Moreover, it has acknowledged that there can be no precise definition of “ public benefit .”
Rather, it must be examined on a case -by -case basis. 46
43 For analysis, see J. Garton, The Regulation of Organised Civil Society (Oxford: Hart Publishing, 2009),
44 See N. Malik, “Defining ‘Charity’ and ‘Charitable Purposes’ in the United Kingdom,” International
Journal of Not -for -Profit Law , Volume 11, Issue 1, November 2008, available at
45 See Charity Commission, Public Benefit: An Overview , September 2013, 3, available at
46 See Charity Commission, Analysis of the Law Relating to Public Benefit , September 2013, available at
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 52
Pursuant to section 30 of the Charities Act 2011 , every charity must be entered in the
register kept by the Charity Commission ,47 except for those whose annual gross income does not
exceed GBP 5,000 ( about 6,5 00 Euro). Section 37 stipulates that an institution is conclusively
presumed to be a charity when it appears on the register. Registered charities must reveal their
total income. Larger charities must also submit a financial profile disclosing , inter alia, their
long – and short-term investments.
Greece and England have followed different models for the regulation of NGOs. Greece
has de facto allowed individuals to endow their organizations with legal personality by using the
private law entities envisaged in the Civil Code (other than commercial enterprises and
companies) , but so far it has not drafted a regulatory framework specific to NGOs. In England,
by contrast , the longstanding existence of charities, as a separate and regulated legal entity,
arguably obviated the need for NGO -specific legislation . Any interested NGO could become a
registered charity , so long as its activities fell within the broadly worded permissible purposes ,
and gain the advantages that this status entails.
Lacking the legal category of “charity,” Greece ought to adopt a regulatory framework
tailored to the e ver increasing number of NGOs. The ordinary operation of the very large number
of NGOs currently active in Greece demands the existence of a framework, which would not
have to be elaborate . It will be submitted that small changes to the Civil Code would al low
add ing NGO s as another tailor-made legal vehicle available to individuals seeking to pursue their
legitimate interests together, especially interests that are protected by the Constitution . The Civil
Code ought to recognize the NGO as a separate entity with legal personality, distinct from the
other legal vehicles.
In particular, the Civil Code ought to allow a group of individuals , regardless of
citizenship (i.e. both Greek citizens and aliens), to set up a legal person specifically categorized
as a “nongovernmental organization ” and enjoying full juridical personality , separate from
associations, (charitable) foundations, and not -for profit undertakings. As for regulatory details,
the Civil Code could stipulate that the elaborate provisions on associations ( somateio ) will apply
In Greece, as in other Continental European countries, the codification of rules and
custom is a guiding principle of the legal culture. Civil Code s, as the principal regulatory
instrument governing private-to-private dealings and transactions, should keep pace with societal
changes and trends. There is no doubt that the establishment and operation of thousands of
NGOs in Greece in the past 25 years has been such a trend. England, having no such tradition in
codification, has perhaps been more flexible by adopting purposely -drafted legislation whenever
the need arose.
Arguably, the Greek Civil Code has been allowed to lag behind societal developments.
The last overhaul concerned family law and took place in the early 1980s. The addition of NGOs
to the list of legal vehicles in the Civil Code will offer a tailor -made entity to those wishing to
exercise their freedom of association. It will also increase the number of international NGOs
operating on Greek territory .
47 The Register of Charities is available at https://www.charitycommission.gov.uk/find -charities .
International Journal of Not -for -Profit Law / vol. 18, no. 1 , February 2016 / 53
One author has described the power of the NGOs in the following terms:
As norm entrepreneurs, [NGOs] advocate substantive constitutional principles, human
rights, the rule of law and democracy. Furthermore, NGOs strengthen these principles in
situations where state organs or agencies fail to fulfil their essential functions and, in
exceptional situations, even act as surrogates of state officials where state institutions
have broken down. 48
A type of organization that might have the potential to play such an n instrumental role cannot be
left without customized regulation, especially in today’s Greece, where traditional legal
principles such as the rule of law have arguably been traumatized while the enemies of the rule
of law such as corruption have become the order of the day. Although proper regulations cannot
guarantee that NGOs will successfully take over where the State has failed, segments in society
expect them to pursue the wider good.
Finally, it is high time that Greece harmonized its Constitution with EU law and
institutions. The Constitution ought to state clearly that the rights guaranteed by Articles 11 and
12 extend to the citizens of all EU member states, rather than, as now, only to Greek nationals.
England, lacking a written Constitution, has not had to face this issue.
These are urgent issues that must be addressed. The sooner they are dealt with, the
greater the benefits that NGOs and their members can confer on Greek society.
48 T. Kleinlein, “Non -State Actors from an International Constitutionalist Perspective: Participation
Matters!” in J. d’Aspremont (ed.), Participants in the International Legal System. Multiple Perspectives on Non –
State Actors in International Law (Abingdon: Rou tledge, 2011), 41, 44.
e are tired of tolerating IBIS’ political
interference in Bolivia.” 119
A September 2014 article in the New York Times asserted that foreign “money is
increasingly transforming the once -staid think -tank world into a muscular arm of foreign
governments’ lobbying in Washington.” 120 The following week, United States
Representative Frank Wolf wrote a letter to the Brookings Institution, in which he urged
them to “end this practice of accepting money from … foreign governments” so that its
work is not “compromised by the influence, whether real or perceived, of foreign
Some governments assert that foreigners are not only seeking to meddle in domestic
political affairs, but also seeking to destabilize the country or otherwise engage in “regime
change.” Accor dingly, they argue that foreign funding restrictions are necessary to thwart efforts
to destabilize or overthrow the government currently in power.
In 2013 in Sri Lanka , the government justified a recent registration requirement for all
CSOs on the grounds that it was necessary to “thwart certain NGOs from hatching
117 Jonathan Lis, “Draft bill: NGOs with foreign funding to be defined ‘foreign agents,’” Haaretz , May 26,
2013, accessed September 8, 2014, https://www.haaretz.com/news/national/.premium -1.592754 .
118 “Some Azerbaijani NGOs Cooperated with Armenian Special Services Under ‘People’s Diplomacy,’”
Trend, August 15, 2014, accessed September 8, 2014, https://en.trend.az/news/politics/230 3147.html .
119 Agence France -Presse, “Bolivia expels Danish NGO for meddling,” Global Post , December 20, 2013,
accessed September 16, 2014, https://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
https://www.nytimes.com/2014/09/07/us/politics/foreign -powers -buy -influence -at-think -tanks.html?_r=0 .
121 Letter from Representative Frank Wolf to Strobe Talbott of the Brookings Institution, September 9,
2014, accessed September 17, 2014, https://s3.amazonaws.com/s3.documentcloud. org/documents/1301186/rep –
frank -wolfs -letter -to-strobe -talbott -at.pdf .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 23
conspiracies to effect regime change by engaging in politics in the guise of doing social
A drafter of the Russian “foreign agents” law justified the initiative when it was pending
in pa rliament, stating, “There is so much evidence about regime change in Yugoslavia,
now in Libya, Egypt, Tunisia, in Kosovo — that’s what happens in the world, some
governments are working to change regimes in other countries. Russian democracy needs
to be prot ected from outside influences.” 123
In 2005, the Prime Minister of Ethiopia expelled civil society organizations, explaining,
“there is not going to be a ‘Rose Revolution’ or a ‘Green Revolution’ in Ethiopia after the
election” 124 — a reference to the so -called “color revolutions” that had recently occurred
in Georgia and elsewhere.
In June 2012, Uganda’s Minister for Internal Affairs justified the government’s threats to
deregister certain CSOs, stating that CSOs “want to destabilize the country because that
is what they are paid to do…. They are busy stabbing the government in its back yet they
are supposed to do humanitarian work.” 125
In the process of driving civil society organizations out of Zimbabwe , President Mugabe
justified his policies by claiming that the CSOs were fronts for Western “colonial
masters” to undermine the Zimbabwean government. 126 Similarly, the central committee
of Mugabe’s party claimed, “Some of these NGOs are working day and night to remove
President Mugabe and ZANU PF from power. They are being funded by Britain and
some European Union countries, the United States, Australia, Canada and New
In a March 2014 interview justifying a draft “foreign agents” law, Kyrgyzstan’s
President Atembaev argued, “Activities conducted by CSOs are obviously aimed at
destabilization of the situation in the Kyrgyz Republic…. Some CSOs do not care about
how they get income, whose orders to fulfill, which kind of work to execute…. There are
122 Xinhua, “Sri Lanka to Investigate NGOs Operating in Country,” Herald , June 13, 2013, accessed
September 8, 2014, https://www.herald.co.zw/sri -lanka -to-investigate -ngos -operating -in-country/ .
123 “Russian parliament gives first approval to NGO bill,” BBC , July 6, 2012, accessed September 8, 2014,
https://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
https://www.newvision.co.ug/news/632123 -govt -gets -tough -on-ngos.html .
126 Thomas Carothers, “The Backlash Against Democracy Promotion,” Foreign Affairs , March/April 2006,
accessed September 9, 2014, https://www.foreignaffairs.com/articles/61509/thomas -carothers/the -backlash -against –
democracy -promotion .
127 “29 NGOs banned in crackdown,” New Zimbabwe , February 14, 2012, accessed September 9, 2014,
https://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 24
forces interested in destabilizing the situation in Kyrgyzs tan and spreading chaos across
Central Asia and parts of China.” 128
In July 2014, the vice chairman of the China Research Institute of China -Russia Relations
argued that China should “learn from Russia” and enact a foreign agents law “so as to
block the way for the infiltration of external forces and eliminate the possibilities of a
Color Revolution.” 129
2. Transparency and Accountability
Another justification commonly invoked by governments to regulate and restrict the flow
of foreign funds is the importance of upholding the integrity of CSOs by promoting transparency
and accountability through government regulation. Consider, for example, the following
responses by government delegations to the UNSR’s Resource Report:
Egypt : “We agree with the principles of accountability, transparency, and integrity of the
activities of civil society organisations and NGOs. However, this should not be l imited to
accountability to donors. National mechanisms to follow -up on activities of such entities,
while respecting their independence have to be established and respected.” 130
Maldives : “While civil societies should have access to financing for effective operation
within the human rights framework, it is of equal importance that the organizations must
also ensure that they work with utmost integrity and in an ethical and responsible
Azerbaijan : “The changes and amendments to the national legisl ation on NGOs have
been made with a view of increasing transparency in this field…. In that regard, these
amendments should only disturb the associations operating in our country on a non –
transparent basis.” 132
Similarly, in response to a United Nations Hum an Rights Council panel on the promotion
and protection of civil society space in March 2014, the following government delegations
responded with justifications invoking transparency and accountability:
128 “Алмазбек Атамбаев: “Хочу максимально успеть,” Slovo.kg , March 23, 2014, accessed September
9, 2014, translated by Aida Rustemova, https://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
130 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly an d Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extran et.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf .
131 UN Office of the High Commissioner for Human Rights, “Interactive Dialogue with the Special
Rapporteur on the Rights to Peaceful Assembly and of Association, M aldives Oral Statement,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/ 23rdSession/OralStatements/Maldives_12.pdf .
132 UN Office of the High Commissioner for Human Rights, “Remarks by Azerbaijan,” May 31, 2013,
accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 25
Ethiopia , on behalf of the African Group: “Domestic l aw regulation consistent with the
international obligations of States should be put in place to ensure that the exercise of the
right to freedom of expression, assembly and association fully respects the rights of
others and ensures the independence, accou ntability and transparency of civil society.” 133
India, on behalf of the “Like Minded Group”: “The advocacy for civil society should be
tempered by the need for responsibility, openness and transparency and accountability of
civil society organizations.” 134
Pa kistan , on behalf of the Organisation of Islamic Cooperation members : “It may be
underscored that securing funding for its crucial work is the right of civil society,
maintaining transparency and necessary regulation of funding is the responsibility of
sta tes.” 135
Kyrgyzstan has also employed this argument to justify a draft “foreign agents” law. The
explanatory note to the draft law claims that it “has been developed for purposes of ensuring
openness, publicity, transparency for non -profit organizations, inc luding units of foreign non –
profit organizations, as well as non -profit organizations acting as foreign agents and receiving
their funds from foreign sources, such as foreign countries, their government agencies,
international and foreign organizations, fo reign citizens, stateless persons or their authorized
representatives, receiving monetary funds or other assets from the said sources.”
3. Aid Effectiveness and Coordination
A global movement has increasingly advocated for greater aid effectiveness, including
through concepts of “host country ownership” and the harmonization of development
assistance. 136 However, some states have interpreted “host country ownership” to be
synonymous with “host government ownership” and have otherwise co -opted the aid
effectivene ss debate to justify constraints on international funding. For example:
133 UN Office of the High Commissioner for Human Rights, “Statement by Ethiopia on behalf of the
African Grou p at the 25th session of the Human Rights Council On the Panel Discussion on the Importance of the
Promotion and Protection of Civil Society Space,” March 11, 2014, accessed September 9, 2014,
134 UN Office of the High Commissioner for Human Rights, “Joint Statement: India on behalf of like –
minded countries,” March 11, 2014, accessed September 9, 2014,
%20of%20LMG_PD_21.pdf . The “Like Minded Group” consists of Algeria, Bahrain, Bangladesh, Belarus,
Chi na, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri
Lanka, Sudan, Uganda, United Arab Emirates, Vietnam , and Zimbabwe .
135 UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on be half of OIC:
Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
136 See the Aid Effectiveness Agenda of the Paris Declaration (2005), the Accra Agenda for Action (2008),
and the Busan Partn ership for Effective Development Cooperation (2011).
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 26
In July 2014, Nepal ’s government released a new Development Cooperation Policy 137
that will require development partners to channel all development cooperation through
the Ministry of Fi nance, rather than directly to CSOs. The government argued that this
policy is necessary for aid effectiveness and coordination: “Both the Government and the
development partners are aware of the fact that the effectiveness can only be enhanced if
the owne rship of aid funded projects lies with the recipient government.” 138
Sri Lanka ’s Finance and Planning Ministry issued a public notice in July 2014 requiring
CSOs to receive government approval of international funding. Justifying the
requirement, the Ministry claimed that projects financed with international funding were
“outside t he government budget undermining the national development programmes.” 139
In response to the UNSR’s Resource Report, the representative of Egypt stated, “The
diversification of the venues of international cooperation and assistance to States towards
the fund ing of civil society partners fragments and diverts the already limited resources
available for international assistance. Hence, aid coordination is crucial for aid
At the recent Africa Leaders Summit, the Foreign Minister of Benin s poke a t a workshop
on closing space for civil society. He asserted that CSOs “don’t think they are
accountable to government but only to development partners. This is a problem.” He said
Benin needs “a regulation to create transparency on resources coming from a broad and
the management of resources,” stating that the space for civil society is “too wide.” 141
The Intelligence Bureau of India released a report in June 2014 claiming that foreign –
funded CSOs stall economic development and negatively impact India’s GDP growth by
2 to 3 percent. 142 The report stated, “a significant number of Indian NGOs, funded by
some donors based in the US, the UK, Germany, the Netherlands and Scandinavian
137 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, accessed September 9, 2014,
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, https://www.dailymirror.lk/news/50038 -no -foreign -funds -without -approval -ministry.html .
140 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly and Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_1 0_1.pdf .
141 Personal notes of author.
142 “Foreign -funded NGOs stalling development: IB report,” Times of India , June 12, 2014, accessed
September 9, 2014, https://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27
countries, have been noticed to be using people centric issues to create an enviro nment
which lends itself to stalling development projects.” 143
4. National Security, Counterterrorism, and Anti -Money Laundering
As discussed above, governments also invoke national security, counterterrorism, and
anti -money laundering policies to justify restr ictions on international funding, including cross –
border philanthropy. For example, the Financial Action Task Force (FATF), an
intergovernmental body that seeks to combat money laundering and terrorist financing, stated:
The ongoing international campaign against terrorist financing has unfortunately
demonstrated however that terrorists and terrorist organisations exploit the NPO
sector to raise and move funds, provide logistical support, encourage terrorist
recruitment or otherwise support terrorist organi sations and operations. This
misuse not only facilitates terrorist activity but also undermines donor confidence
and jeopardises the very integrity of NPOs. Therefore, protecting the NPO sector
from terrorist abuse is both a critical component of the globa l fight against
terrorism and a necessary step to preserve the integrity of NPOs. 144
Governments have leveraged concerns about counterterrorism and money laundering to
justify restricting both the inflow and outflow of philanthropy. For example: 145
The governm ent of Azerbaijan justified amendments relating to the registration of
foreign grants, stating that the purpose of the amendments was, in part, “ to enforce
international obligations of the Republic of Azerbaijan in the area of combating money –
143 Rake sh Krishnan Simha, “Why India Should Follow Vladimir Putin’s Lead on NGOs,” Russia & India
Report, June 15, 2014, accessed September 9, 2014,
144 Financial Action Task Force, “International Standards on Combating Money Laundering and the
Financing of Terrorism & Proliferation: The FATF Recommendations,” Financial Action Task Force Report, 2013,
54, accessed September 9, 2014,
https://www.fatfgafi.org/media/fa tf/documents/recommendations/pdfs/FATF_Recommendations.pdf . See also
Financial Action Task Force, “Risk of Terrorist Abuse in Non -Profit Organisations,” Financial Action Task Force
Report, June 2014, https://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
145 Constraints by donor governments on the outflow of cross -border donation s, albeit beyond the scope of
this article, similarly present significant barriers to cross -border philanthropy. These states assert that they have an
international responsibility to regulate the outflow of cross -border donations in order to ensure that fu nding destined
for other countries will not support criminal or terrorist activities in those foreign jurisdictions. For more information
about the justifications employed and the implications for civil society, please see: Ben Hayes, “Counter -Terrorism,
‘Policy Laundering’ and the FATF: Legalizing Surveillance, Regulating Civil Society,” Transnational
Institute/Statewatch Report, February 2012, https://www.statewatch.org/analyses/no -171 -fafp -report.pdf .
146 Charity & Security Network, “How the FATF Is Used to Justify Laws That Harm Civil Society,
Freedom of Association and Expression,” Charity & Security Network , May 16, 2013, accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 28
The British Virgin Islands (BVI) enacted a law requiring that CSOs with more than five
employees appoint a designated Anti -Money Laundering Compliance Officer. 147 The
law also imposes audit requirements for CSOs that are not required of businesses. These
burdens were justified with explicit reference to FATF’s recommendation on nonprofit
organizations and counterterrorism. 148
In response to the UNSR’s Resource Report, a group of thirteen African states responded,
“It is the responsibility of governments to ensure that the origin and destination of
associations’ funds are not used for terrorist purposes or directed towards activities which
encourage incitement to hatred and violence.” 149
In 2013, a Sri Lankan government representative similarly stated, “While w e agree that
access to resources is important for the vibrant functioning of civil society, we observe
that Mr. Kiai does not seem to adequately take into account the negative impact of lack of
or insufficient regulation of funding of associations on natio nal security and counter –
In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, https://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
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Arabia , Belarus, China, and Vietnam ,152 which weaves together a number of different
justifications, including foreign interference, accountability, and national security:
[C]ivil society cannot function effectively and efficiently without defined
limits…. Civil society must also learn to protect its own space by guarding against
machinations of donor groups guided by extreme ideologies laden with hidden
politicized motives, which if allowed could potentially bring disrepute to the civil
society space…. There have also been those civil society organizations, who have
digressed from their original purpose and indulged in the pursuit of donor -driven
agendas. It is important to ensure accountability and responsibility for their
actions and the consequences thereof and also guard against compromising
national and international security. 153
Similarly, Ethiopia, in its statement in response to the UNSR’s Resource R eport,
referenced justifications relating to state sovereignty, aid coordination, and accountability and
It is our firm belief that associations will play their role in the overall
development of the country and advance their objectives, if a nd only if an
environment for the growth of transparent, members based and members driven
civil society groups in Ethiopia providing for accountability and predictability is
put in place. We are concerned that the abovementioned assertion [about
lightening the burdens to receive donor funding] by the special rapporteur
undermines the principle of sovereignty which we have always been guided by. 154
Similarly constructed statements have also been put forward by Pakistan and other states. 155
152 The “Like Minded Group” consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt,
India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda,
UAE, Vietnam, and Zimbabwe. UN Office of the Hig h Commissioner for Human Rights, “Joint Statement: India on
behalf of like -minded countries,” March 11, 2014, accessed September 9, 2014,
154 UN Office of the High Commissioner for Human Rights, “Oral Statement: Ethiopia,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Et hiopia_12.pdf .
155 See, e.g., UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on Behalf of
OIC: Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
ehalf%20of%20OIC_PD_21.pdf : “By virtue of its dynamic role civil society is well poised to build convergences
with the view to develop synergies between state institutions and their own networks. These synergies would
facilitate proper utilization of resources at the disposal state institutions an d civil society actors. In this regard, it
may be underscored that securing funding for its crucial work is the right of civil society, maintaining transparency
and necessary regulation of funding is the responsibility of states…. Within this social space, the civil society can
play its optimal role by working in collaboration with state institutions. Better coordination between civil society
actors and state institution [sic] would also facilitate enhancement of international cooperation in the field of hu man
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In this section, the a rticle briefly surveyed justifications presented by governments to
constrain the inflow of international funding, including philanthropy. In the following section,
we analyze constraints and their justifications under international law.
International Legal Framework
1. International Norms Protecting Access to Resources and Cross -Border Philanthropy
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states,
“Everyone shall have the right to freedom of association with others….” 156 Acco rding to the
The right to freedom of association not only includes the ability of individuals or legal
entities to form and join an association 158 but also to seek, receive and use resources 159 —
human, material and financial — from domestic, foreign and in ternational sources. 160
The United Nations Declaration on Human Rights Defenders 161 similarly states that
access to resources is a self -standing right:
“[E]veryone has the right, individually and in association with others, to solicit, receive
and utilize reso urces for the express purpose of promoting and protecting human rights
and fundamental freedoms through peaceful means….” 162
According to the Office of the United Nations High Commissioner for Human Rights, this right
specifically encompasses “the receipt of funds from abroad.” 163
156 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
157 While reports of the UNSR are not binding international law, his reports are referenced here because
they provide a comprehensive articulation and explanation of international law.
158 International law generally recognizes the freedom of association, and t his section follows that
formulation. Addressing the applicability of international law to non -membership organizations is beyond the scope
of this article, but for more information, please see: International Center for Not -for -Profit Law & World Movement
for Democracy Secretariat, “Defending Civil Society Report, Second Edition,” June 2012, 35,
https://www.icnl.org/research/resources/dcs/DCS_Report_Second_Editi on_English.pdf .
159 The UNSR defines “resources” as a broad concept that includes financial transfers (e.g., donations,
grants, contracts, sponsorship, and social investments), loan guarantees, in -kind donations, and other forms of
support. See United Nation s Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 10, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
160 Ibid., para. 8.
161 The UNSR notes that while “the Declaration is not a binding instrument, it must be recalled tha t it was
adopted by consensus of the General Assembly and contains a series of principles and rights that are based on
human rights standards enshrined in other international instruments which are legally binding. Ibid., para. 17.
162 United Nations General Assembly, Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms ,
UN Res. 53/144, Article 13, https://www.un.org/Docs/asp/ws.asp?m=A/RES/53/144 .
163 United Nations Office of the High Commissioner for Human Rights, “Declaration on Human Rights
Defenders,” UN OHCHR, accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 31
Reinforcing this position, 164 in 2013 the United Nations Human Rights Council passed
resolution 22/6, which calls upon on States “[t]o ensure that they do not discriminatorily impose
restrictions on potential sources of funding aimed at supporting the work of human rights
defenders,” and “no law should criminalize or delegitimize activities in defence of human rights
on account of the origin of funding thereto.” 165
The freedom to access resources extends beyond human rights defenders. For example,
the Declaration on the Elimination of A ll Forms of Intolerance and of Discrimination Based on
Religion or Belief states that the right to freedom of thought, conscience, and religion includes
the freedom to “solicit and receive voluntary financial and other contributions from individuals
and in stitutions.” 166 Access to resources is also an integral part of a number of other civil,
cultural, economic, political, and social rights. As the UNSR states: 167
For associations promoting human rights, including economic, social and cultural rights,
or those involved in service delivery (such as disaster relief, health -care provision or
environmental protection), access to resources is important, not only to the existence of
the association itself, but also to the enjoyment of other human rights by those benef itting
from the work of the association. Hence, undue restrictions on resources available to
associations impact the enjoyment of the right to freedom of association and also
undermine civil, cultural, economic, political and social rights as a whole. 168
Acc ordingly, “funding restrictions that impede the ability of associations to pursue their statutory
activities constitute an interference with article 22” of the International Covenant on Civil and
Political Rights. 169
2. Regional and Bilateral Commitments to Pro tect Cross -Border Philanthropy
164 This article briefly examines international norms governing global philanthropy. But it also recogniz es
that there are distinct limits to the impact of international law. For example, there is often an implementation gap
between international norms and country practice. In addition, there are few binding international treaties, such as
the ICCPR, and de tails are often left to “soft law,” such as the reports of the UNSR. At the same time, there is
concern that any effort to create a new global treaty on cross -border philanthropy or foreign funding would lead to a
retrenchment of existing rights.
165 United Nations General Assembly, Protecting Human Rights Defenders, March 21, 2013, UN Human
Rights Council, Resolution 22/6, para. 9, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC /RES/22/6 .
166 United Nations General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief , November 25, 1981, UN General Assembly Resolution A/RES/36/55,
Article 6(f), https://www.un.org/documents/ga/res/36/a36r055.htm .
167 In similar fashion, the UN Committee on Economic, Social and Cultural Rights recognized the link
between access to resources and economic, social and cultural rights, when it expressed “deep concern” about an
Egyptian law that “gives the Government control over the right of NGOs to manage their own activities, including
seeking external funding.” See Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161, 176,
https://www.bayefsky.com/themes/public_general_concluding -observations.php .
168 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 9, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploa ds/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
169 Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted
on October 31, 2006, para. 7.2.
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While this article is focused on global norms, cross -border philanthropy is also
protected at the regional level. For example:
The Council of Europe Recommendation on the Legal Status of NGOs states:
“NGOs should be free to s olicit and receive funding — cash or in -kind donations —
not only from public bodies in their own state but also from institutional or
individual donors, another state or multilateral agencies ….” 170
According to the Inter -American Commission on Human Rights, “states should allow and
facilitate human rights organizations’ access to foreign funds in the context of
international cooperation, in transparent conditions.” 171
In May 2014, the African Commission on Human and Peoples’ Rights (ACHPR)
adopted, in draft for m, a report of the ACHPR Study Group on Freedom of Association
and Peaceful Assembly, with a specific recommendation that States’ legal regimes should
codify that associations have the right to seek and receive funds. This includes the right to
seek and re ceive funds from their own government, foreign governments, international
organizations and other entities as a part of international cooperation to which civil
society is entitled, to the same extent as governments.
The European Court of Justice (ECJ) has issued a series of important decisions about the
free flow of philanthropic capital within the European Union. 172
In addition, many jurisdictions have concluded bilateral investment treaties, which help
protect the free flow of capital across borders. Some treaties, such as the U.S. treaties with
Kazakhstan and Kyrgyzstan, expressly extend investment treaty protections to organizations not
“organized for pecuniary gain.” 173 Indeed, the letters of transmittal submitted by the White
House to the U.S. Senate sta te that these treaties are drafted to cover “charitable and non -profit
170 Council of Europe, “Recommendation CM/Rec (2007)145 of the Committ ee of Ministers to member
states on the legal status of non -governmental organisations in Europe,” adopted October 10, 2007, Article 50,
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, https://www.icnl.org /research/resources/assembly/oas -human –
rights -report.pdf .
172 For more information on these decisions, see: European Foundation Center and Transnational Giving
Europe, “Taxation of Cross -Border Philanthropy in Europe After Persche and Stauffer: From landloc k to free
movement?”, European Foundation Center Report, 2014,
https://www.efc.be/programmes_services/resources/Documents/TGE -web.pdf ; European Foundation Centre, “ECJ
rules in favour of cross -border giving ,” EFC briefing, January 27, 2009, accessed September 9, 2014,
https://www.efc.be/programmes_services/resources/Documents/befc09 08.pdf .
173 U.S. -Kyrgyz Bilateral Investment Treaty, Article 1(b); U.S. -Kazakh Bilateral Investment Treaty, Article
1(b). See also Article 1(2) of the China – Germany BIT: “the term ‘investor’ means … any juridical person as well
as any commercial or other c ompany or association with or without legal personality having its seat in the territory
of the Federal Republic of Germany, irrespective of whether or not its activities are directed at profit.”
174 Letters of Transmittal available at the U.S. State Departm ent website:
https://www.state.gov/documents/organization/4 3567.pdf .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 33
A detailed discussion of investment treaty protection for cross -border philanthropy is
beyond the scope of this article. This issue is presented in brief form, however, beca use it is a
significant avenue for further exploration, as it expands the international legal argument beyond
human rights and implicates bilateral investment treaties with binding enforcement
mechanisms. 175 For further information on this issue, please see International Investment Treaty
Protection of Not -for -Profit Organizations 176 and Protection of U.S. Non -Governmental
Organizations in Egypt under the Egypt -U.S. Bilateral Investment Treaty. 177
3. Restrictions Permitted Under International Law
Continuing the discussion of global norms, ICCPR Article 22(2) recognizes that the
freedom of association can be restricted in certain narrowly defined conditions. According to
No restrictions may be placed on the exercise of this right other than those wh ich are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. 178
In other words, international law allows a government to restrict access to resources if the
(1) prescribed by law;
(2) in pursuance of one or more legitimate aims, specifically:
o national security or public safety;
o public order;
o the protection of public health or morals; or
o the protection of the rights and freedoms of others; and
175 In addition, the European Court of Human Rights has held that Article 1 of the First Protocol of the
European Convention on Human Rights protects the right to peaceful enjoyment of one’s possessions. (Article 1 of
the First Protocol of the Euro pean Convention reads: “Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general p rinciples of international law. The preceding provisions shall
not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment o f taxes or other contributions or
penalties.” In addition, the right to property includes the right to dispose of one’s property (Clare Ovey & Robin
White, The European Convention on Human Rights , 3rd edition (Oxford: Oxford University Press, 2002)), which
would seem to embrace the right to make contributions to CSOs for lawful purposes.
176 Luke Eric Peterson & Nick Gallus, “International Investment Treaty Protection of Not -for -Profit
Organizations,” International Journal of Not -for -Profit Law 10(1) (December 2007),
177 Nick Gallus, “Protection of U.S. Non -Governmental Organizations in Egypt under the Egypt -U.S.
Bilat eral Investment Treaty,” International Journal of Not -for -Profit Law 14(3) (September 2012),
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 34
(3) “necessary in a democratic society to achieve those aims.” 179
States should always be guided by the principle that the restrictions must not im pair the
essence of the right … the relations between right and restriction, between norm and
exception, must not be reversed. 180
The burden of proof is on the government. 181 In addition:
When a State party invokes a legitimate ground for restriction of freed om of expression,
it must demonstrate in specific and individualized fashion the precise nature of the threat,
and the necessity and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the [ activity at issue] and the
The following section amplifies this three -part test contained in Article 22(2).
A. Prescribed by law
The first prong requires a restriction to have a formal basis in law. This means that:
restrictions on the right to free dom of association are only valid if they had been
introduced by law (through an act of Parliament or an equivalent unwritten norm of
common law), and are not permissible if introduced through Government decrees or other
similar administrative orders. 183
As discussed above, in July 2014, the Sri Lankan Department of External Resources of
the Ministry of Finance and Planning disseminated a notice to the public, declaring that any
organization or individual undertaking a project with foreign aid must have appro val from
relevant government agencies. Similarly, in July 2014, Nepal’s government released a new
Development Cooperation Policy that will require development partners to channel all
development cooperation through the Ministry of Finance, rather than directly to civil society. In
both cases, the restriction s were based on executive action and not “introduced by law (through
179 Case of Vona v. Hungary (A pp no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
180 United Nations Human Rights Council, Report of the Special Rappo rteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 16, UN Doc. A/HRC/20/27 (May 21, 2012),
https://www.ohchr .org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 -27_en.pdf .
181 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 15, Civil and
Political Rights: The Human Rights Committee, May 2005,
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf .
183 See UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Fre edoms, July 2011, 44,
https://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf : “It would
seem reasonable t o presume that an interference is only “prescribed by law” if it derives from any duly promulgated
law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra
vires would seem not to be ‘prescribe d by law,’ at least if they are invalid as a result.”
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 35
an act of Parliament or an equivalent unwritten norm of common law).” Accordingly, they
appear to violate the “prescribed by law” standard required under Article 22(2) of the ICCPR.
This prong of Article 22(2) also requires that a provision be sufficiently precise for an
individual or NGO to understand whether or not intended conduct would constitute a violation of
law. 184 As stated in the Johannesburg Principles, “The law must be accessible , unambiguous,
drawn narrowly and with precision so as to enable individuals to foresee whether a particular
action is unlawful.” 185
This prong helps limit the scope of permissible restrictions. As discussed above, certain
laws ban funding of organizations that cause “social anxiety,” have a “political nature,” or have
“implied ideological conditions.” These terms are undefined and provide little guidance to
individuals or organizations about prohibited conduct. Since they are not “unambiguous, drawn
narrowl y and with precision so as to enable individuals to foresee whether a particular action is
unlawful,” there is a reasonable argument that these sorts of vague restrictions fail the
“prescribed by law” requirements of international law.
B. Legitimate aim
The second prong of Article 22(2) requires that a restriction advance one or more
“legitimate aims,” 186 namely:
national security or public safety;
the protection of public health or morals; or
the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.
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they are taken to protect the existence of the nation or its territorial integrity or political
independence against force or threat of force.” 189 In addition, a state may not use “ national
security as a justification for measures aimed at suppressing opposition … or at perpetrating
repressive practices against its population.” 190 This includes defaming or stigmatizing foreign
funded groups by accusing them of “treason” or “promoting regime change.” 191
Accordingly, under international law, governments cannot rely on generalized claims of
“state sovereignty” to justify constraints on global philanthropy. In the words of the UNSR:
Affirming that national security is threatened when an association receives funding from
foreign sources is not only spurious and distorted, but also in contradiction with
international human rights law. 192
This brief analysis is not intended to explore the details of the aid effectiveness and
sovereignty justifications. Rather, the goal is to illustrate how the “legitimate aim” requirement
of in ternational law can help inform the analysis of certain justifications presented by
governments, such as arguments based on “aid effectiveness” and “sovereignty.”
C. Necessary in a Democratic Society
Even if a government is able to articulate a legitimate aim , a restriction violates
international law unless it is “necessary in a democratic society.” As stated by the Organization
for Security and Co -operation in Europe, the reference to necessity does not have “the flexibility
of terms such as ‘useful’ or ‘conv enient’: instead, the term means that there must be a ‘pressing
social need’ for the interference.” 193 Specifically, “where such restrictions are made, States must
demonstrate their necessity and only take such measures as are proportionate to the pursuance of
legitimate aims in order to ensure continuous and effective protection of Covenant rights.” 194
As stated by the UNSR:
In order to meet the proportionality and necessity test, restrictive measures must be the
least intrusive means to achieve the desired ob jective and be limited to the associations
189 See the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub -Commission on
Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1984)],
which were adopted in May 1984 by a group of international human rights experts convened by the International
Commission of Jurists, the International Association of Penal Law, th e American Association for the International
Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher
Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative s ource of
interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency. They
are available at: https://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
191 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 27, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
192 Ibid., para. 30
193 OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Key Guiding Principles of
Freedom of Association with an Emphasis on Non -Governmental Organizations , para. 5
194 United Nations Human Rights Committee, General Comment No. 31 (2004), para. 6, UN Doc.
CCPR/C/21/Rev.1/Ad d. 13, May 26, 2004.
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falling within the clearly identified aspects characterizing terrorism only. They must not
target all civil society associations…. 195
Consider, for example, Ethiopian legislation imposing a 10 percent cap on the for eign
funding of all CSOs promoting a variety of objectives, including women’s rights and disability
rights. As discussed above, Ethiopia has asserted a counterterrorism rationale to justify foreign
funding constraints. Ethiopia does not establish a “ direct and immediate connection between the
[activity at issue] and the threat.” 196 In addition, the cap is not the “least intrusive means to
achieve the desired objective and … limited to the associations falling within the clearly
identified aspects characterizi ng terrorism.” Accordingly, the counterterrorism objective fails to
justify the Ethiopian cap on foreign funding.
The UNSR also applied this test to the “aid effectiveness” justification. In response, he
even if the restriction were to purs ue a legitimate objective, it would not comply with the
requirements of “a democratic society.” In particular, deliberate misinterpretations by
Governments of ownership or harmonization principles to require associations to align
themselves with Government s’ priorities contradict one of the most important aspects of
freedom of association, namely that individuals can freely associate for any legal
In addition, “longstanding jurisprudence asserts that democratic societies only exist
where ‘pluralis m, tolerance and broadmindedness’ are in place,” 198 and “minority or dissenting
views or beliefs are respected.” 199
Applying this test, the UNSR has note