The International Journal
of Not-for-Profit Law

Volume 15, Issue 2, December 2013

Gabrielle Gould1

On May 30, 2013, UN Special Rapporteur Maina Kiai presented his second thematic report to the United Nations Human Rights Council. The report focuses on the ability of civil society organizations (CSOs) to seek, secure, and utilize financial resources from international, foreign and domestic sources. The report also outlines practical guidelines to facilitate peaceful assemblies.
In this article, we provide a synopsis of the first section of the report dealing with access to resources. The synopsis is followed by an appendix of select statements presented by States during the clustered interactive dialogue as well as links to other relevant references.

Freedom of Association and Access to Resources

1. The Ability to Seek, Receive and Use Resources Is an Integral Part of the Freedom of Association

The UN Special Rapporteur states the general principle as follows:

The right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources – human, material and financial – from domestic, foreign, and international sources.

Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, para. 8, U.N. Doc. A/HRC/23/39 (24 April 2013).

Moreover, he calls upon States:

To ensure that associations – registered and unregistered – can seek, receive and use funding and other resources from natural and legal persons, whether domestic, foreign or international, without prior authorization or other undue impediments, including from individuals; associations, foundations or other civil society organizations; foreign Governments and aid agencies; the private sector; the United Nations and other entities.

Id. para. 82(b).

The UN Special Rapporteur also addressed the impact of funding restraints on other fundamental rights and freedoms:

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.

Id. para. 9.

2. International Legal Basis

The UN Special Rapporteur cites established international norms reaffirming the ability of CSOs to access resources, including foreign funding. Among other examples, the UN Special Rapporteur references communication No. 1274/2004 of the Human Rights Committee, Korneenko et al. v. Belarus:

“The right to freedom of association relates not only to the right to form an association, but also guarantees the right of such an association freely to carry out its statutory activities. The protection afforded by article 22 extends to all activities of an association ….” Accordingly, fundraising activities are protected under article 22 of the [International Covenant on Civil and Political Rights], and funding restrictions that impede the ability of associations to pursue their statutory activities constitute an interference with article 22.

Id. para. 16.2

The UN Special Rapporteur also references Article 6(f) of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which:

explicitly refers to the freedom to access funding, stating that the right to freedom of thought, conscience, religion or belief shall include, inter alia, the freedom “to solicit and receive voluntary financial and other contributions from individuals and institutions.” Id. para. 15.

The report also notes that Human Rights Council resolution 22/6 calls on states to ensure that reporting requirements “do not discriminatorily impose restrictions on potential sources of funding.” Id. In addition, the UN Special Rapporteur references the UN Declaration on Human Rights Defenders, which states:

“everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration” Id. para. 17.

3. Definition of “Resources”

The UN Special Rapporteur adopts a broad definition of “resources,” stating:

The term “resources” encompasses a broad concept that includes financial transfers (e.g., donations, grants, contracts, sponsorships, social investments, etc.); loan guarantees and other forms of financial assistance from natural and legal persons; in-kind donations (e.g., contributions of goods, services, software and other forms of intellectual property, real property, etc.); material resources (e.g. office supplies, IT equipment, etc.); human resources (e.g. paid staff, volunteers, etc.); access to international assistance, solidarity; ability to travel and communicate without undue interference and the right to benefit from the protection of the State.

Id. para. 10.3

4. Examples of Problematic Constraints

Under Article 22(2) of the International Covenant on Civil and Political Rights:

no restrictions may be placed on the exercise of [the right to freedom of association] 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 of others.

Id. para. 19.

Applying this standard, the UN Special Rapporteur identifies specific practices that violate international law:

Under international law, problematic constraints include, inter alia, outright prohibitions to access funding; requiring CSOs to obtain Government approval prior to receiving funding; requiring the transfer of funds to a centralized Government fund; banning or restricting foreign-funded CSOs from engaging in human rights or advocacy activities; stigmatizing or delegitimizing the work of foreign-funded CSOs by requiring them to be labeled as “foreign agents” or other pejorative terms; initiating audit or inspection campaigns to harass CSOs; and imposing criminal penalties on CSOs for failure to comply with the foregoing constraints on funding. The ability of CSOs to access funding and other resources from domestic, foreign and international sources is an integral part of the right to freedom of association, and these constraints violate article 22 of the International Covenant on Civil and Political Rights and other human rights instruments, including the International Covenant on Economic, Social and Cultural Rights.

Id. para. 20.

Common Justifications for Restricting Access to Resources

In his report, the UN Special Rapporteur examines four common arguments used by States to restrict the ability of CSOs to access funding.

1. Counter-Terrorism

The UN Special Rapporteur first addresses the commonly invoked justification that funding restrictions are necessary to fight terrorism and money laundering. Specifically, he states that it is a violation of international law for counterterrorism or “anti-extremism” measures “to be used as a pretext to constrain dissenting views or independent civil society.” Id. para. 23.

Citing the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mr. Kiai continues:

[s]tates shall not invoke national security as a justification for measures aimed at suppressing opposition or to justify repressive practices against its population. The onus is on the Government to prove that a threat to one of the grounds for limitation exists and that measures are taken to deal with the threat.

Id.

Mr. Kiai also highlights the concept of sectoral equity:

The Special Rapporteur also calls for sectoral equity, noting that commercial companies and other entities have been abused for terrorist purposes. He calls on States to avoid measures that disproportionally target or burden civil society organizations, such as imposing onerous vetting rules, procedures or other CSO-specific requirements not applied to the corporate sector write large.

Id. para. 24.

States often justify funding restrictions based on Financial Action Task Force (“FATF”) Recommendation 8, which “recommends that ‘countries review the adequacy of laws and regulations” to ensure that nonprofit organizations are not abused for terrorist financing. Id. para. 25. However, Mr. Kiai clarifies that:

Recommendation 8 does not adequately take into account that States already have other means, such as financial surveillance and police cooperation, to effectively address the terrorism financing threat. Moreover, FATF fails to provide for specific measures to protect the civil society sector from undue restrictions to their right to freedom of association by States asserting that their measures are in compliance with FATF Recommendation 8. The Special Rapporteur insists on the need to combat terrorism, but he warns against the implementation of restrictive measures – such as FATF Recommendation 8 – which have been misused by States to violate international law.

Id.

2. State Sovereignty and Foreign Interference

States also assert that foreign funding restrictions are necessary to protect state sovereignty or traditional values against foreign interference. Indeed, in some countries, foreign funding of CSOs has been “deliberately depicted as a new form of imperialism or neo-colonialism.” Id. para. 27.

After citing problematic laws in Russia, Egypt, Ethiopia, and elsewhere, Mr. Kiai states:

The protection of State sovereignty is not listed as a legitimate interest in the Covenant. The Special Rapporteur emphasizes that States cannot refer to additional grounds, even those provided by domestic legislation, and cannot loosely interpret international obligations to restrict the right to freedom of association. In his view, such justification cannot reasonably be included under “the interests of national security or public safety” or even “public order”. Affirming that national security is threatened when an association receives funding from foreign source is not only spurious and distorted, but also in contradiction with international human rights law.

Id. para. 30. The UN Special Rapporteur similarly observes:

It is paradoxical that some of the States stigmatizing foreign-funded associations in their own countries are receiving foreign funding themselves (in the forms of loans, financing or development assistance), often in substantially greater amounts than that flowing to CSOs in their own country.

Id. para. 29.

On a similar theme, the UN Special Rapporteur states:

Where domestic funding is scarce or unduly restricted, it is critical for associations to be free to rely on foreign assistance in order to carry out their activities. The Special Rapporteur recalls again that “governments must allow access by NGOs to foreign funding as a part of international cooperation to which civil society is entitled, to the same extent as Governments.”

Id. para. 34. Moreover:

Human Rights Council resolution 22/6 calls upon States to ensure that “that no law should criminalize or delegitimize activities in defence of human rights on account of the origin of funding thereto.”

Id. para. 31. The UN Special Rapporteur continues:

Protection of State sovereignty is not just an illegitimate excuse, but a fallacious pretext which does not meet the requirement of a “democratic society.” The expression “democratic society’ places the burden on States imposing restrictions to demonstrate that the limitations do not harm the principles of ‘pluralism, tolerance and broadmindedness.”

Id. para. 32. Accordingly:

Associations, whether domestic- or foreign-funded, should therefore be free to promote their views – even minority and dissenting views, challenge governments about their human rights record or campaign for democratic reforms, without being accused of treason and other defamatory terms.

Id.

3. Transparency and Accountability

Governments sometimes assert that foreign funding restrictions are necessary to ensure greater transparency and accountability of civil society. In response, the UN Special Rapporteur states:

Combating fraud, embezzlement, corruption, money-laundering and other modes of trafficking is legitimate, and may qualify as being in the “interests of national security, public safety, or public order”. Nevertheless, it is not sufficient to simply pursue a legitimate interest, limitations need also to be prescribed by law and “be necessary” in a democratic society. In this regard, limitations must be proportionate to the interest to be protected and must be the least intrusive means to achieve the desired objective.

Id. para. 35.

The Special Rapporteur also cautions against the possible abuses of this justification:

The transparency and accountability argument has, in some other cases, been used to exert extensive scrutiny over the internal affairs of associations, as a way of intimidation and harassment. The Special Rapporteur warns against frequent, onerous and bureaucratic reporting requirements, which can eventually unduly obstruct the legitimate work carried out by associations. Controls need therefore to be fair, objective and non-discriminatory, and not be used as a pretext to silence critics.

Id. para. 38. He further advises States to address violations of legitimate restrictions in a manner that is proportional to the violation:

The Special Rapporteur is of the view that if an association fails to comply with its reporting obligations, such minor violation of the law should not lead to the closure of the association (e.g. Belarus) or criminal prosecution of its representative (e.g. Egypt); rather, the association should be requested to promptly rectify its situation. Only this approach corresponds to the spirit and the letter of freedom of association.

Id.

The Special Rapporteur cites examples of violations of international law which attempt to invoke the justification of promoting transparency and accountability:

For instance, the obligation for associations to route funding through state channels; to report on all funds received from foreign sources and how these are allocated or used (e.g. Kyrgyz Republic); to obtain authorization from the authorities to receive or use funds (e.g. Jordan, Sudan) all constitute human rights violations.

Id. para. 36.

4. Aid Effectiveness

States sometimes assert that aid effectiveness is a legitimate basis to impose foreign funding restrictions. In response:

the Special Rapporteur highlights that coordination of aid is not listed as a legitimate ground for restrictions under the Covenant.

Id. para. 40. Moreover, even if the restriction pursued 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 Governments’ priorities contradict one of the most important aspects of freedom of association, namely that individuals can freely associate for any legal purpose. Hence, Governments which restrict funding in the name of aid effectiveness violate the key democratic principles of “pluralism, tolerance and broadmindedness” and therefore unduly restrict freedom of association.

Id. para. 41.

Recognizing the important role of CSOs in pursuing development agendas, the Special Rapporteur calls for policies that strengthen, rather than restrict, civil society:

He believes that instead of aiming to limit the participation of civil society actors, aid effectiveness rather aims to provide all relevant stakeholders, including associations, with greater influence to contribute to, inter alia, poverty reduction, strengthening of democratic reforms and human rights promotion.

Id. para. 42.

The independence of the civil society sector, including in terms of access to funding, should therefore be guaranteed. In the context of ongoing discussions related to the post-2015 Millennium Development Goals, the Special Rapporteur believes that civil society involvement and contributions to development are paramount, and that States should exert all efforts to support, rather than inhibit, their work.

Id.

Conclusions and Recommendations

Based on this legal framework, the Special Rapporteur inter alia calls upon States:

to ensure that associations – registered and unregistered – can seek, receive and use funding and other resources from natural and legal persons, whether domestic, foreign or international, without prior authorization or other undue impediments, including from individuals; associations, foundations or other civil society organizations; foreign Governments and aid agencies; the private sector; the United Nations and other entities.

Id. para. 82(b);

to recognize that undue restrictions to funding, including percentage limits, is a violation of the right to freedom of association and of other human rights instruments, including the International Covenant on Economic, Social and Cultural Rights.

Id. para. 82(c);

to recognize that regulatory measures which compel recipients of foreign funding to adopt negative labels constitute undue impediments on the right to seek, receive and use funding.

Id. para. 82(d); and

to adopt measures to protect individuals and associations against defamation, disparagement, undue audits and other attacks in relation to funding they allegedly received.

Id. para. 82(e).

Appendix A

Selected States’ Responses to the Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association

During the clustered interactive dialogue, States presented the following oral statements indicating their responses to the UN Special Rapporteur’s report.

Sampling of States Endorsing the UN Special Rapporteur’s Report

A number of States affirmed their support of the report. A few examples follow:

We fully concur with Mr. Kiai’s statement that the ability to seek, receive and use resources, including financial resources, from domestic, foreign and international sources is an integral part of freedom of association and vital to an independent and dynamic society.

Oral Statement of the European Union.

You are very right in stating that the ability to seek, secure and use resources is essential to the existence of any association and that nothing in human rights law allows us to conclude that foreign funding is to be subjected to stricter rules than any other sources. Imposing excessive restrictions on funding of civil society organizations also means imposing excessive restrictions on freedom of association, unless of course the conditions clearly defined in Art. 22 of the ICCPR are met.

Oral Statement of the Czech Republic.

States should give particular consideration to the Special Rapporteur’s statement that “freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources – human, material and financial – from domestic, foreign, and international sources.” The report further details the array of international commitments that reflect the importance of access to funding and resources for the full enjoyment of the freedom of association, including key paragraphs from the Council’s resolution 22/6 on human rights defenders.

Oral Statement of the United States.

Mr. Kiai, we welcome the approach taken in your report to stress that States do not only have a positive obligation under international human rights law to actively protect peaceful assemblies, but also to facilitate the exercise of the right to peaceful assembly. The exercise of the right to freedom of association and peaceful assembly should not be subjected to unnecessary burdensome regulations such as prior government approvals or centralized channeling of funds.

Oral Statement of Austria.

A civil society with access to resources is an essential element of democratic growth.

Oral Statement of Paraguay.

Concerning the freedom of association, your report rightly points out that this is not only a legal authority of natural and moral entities, but equally the opportunity to seek, receive and utilize human, material, and financial resources from domestic but also foreign or international donors. In this regard, abusive restrictions imposed on methods of financing associations violate international law of human rights and impede the enjoyment of this fundamental freedom.

Oral Statement of France.

It is thus understandable Mr President that any measures we take as governments, which might infringe on these freedoms, should attract attention. And funding is one such issue, whether it is from domestic or foreign sources. Undue restrictions on funding of civil society can only incapacitate them, and democracy and the enjoyment of human rights will be poorer for it.

Oral Statement of Botswana.

We fully share your assessment that funding restrictions impeding the ability of associations to pursue their statutory activities constitute an interference with article 22 of ICCPR. Restrictions against receiving funding of foreign origin not only threaten associations’ very existence, their public denouncing undermines gravely their credibility and legitimacy in the population. Slovakia subscribes and supports recommendations contained in the SR’s report.

Oral Statement of Slovakia.

An important part of freedom of assembly and association is the right of civil society to receive resources from domestic, foreign and international sources. Still, the report recognizes that undue barriers to funding of associations are put in place. There is a negative trend to restrict access to foreign funding, visible in many different countries. […] It must be clear, regardless of situation or context, that there is a strong need for a free and open civil society for democratic development.

Oral Statement of Sweden.

Sampling of States Challenging Aspects of the Report

Some States did not support the principles articulated by the Special Rapporteur. Many of these States instead focused on justifications for constraint. A few examples follow:

1. Counter-Terrorism

While we 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 national security and counter-terrorism.

Oral Statement of Sri Lanka.

As we mentioned to the Special Rapporteur the foreign funding of national organizations should not be taken/considered in isolation from the overall political situation inside the country and the security challenges, instability and conflicts that threaten the most important rights, namely the right to life.

Oral Statement of Sudan.

The African Group considers that it is for each state in a sovereign and legitimate manner to define what constitutes a violation of its legislation with respect to human rights. […] The Group would like simply to reiterate that it is the responsibility of governments to ensure that the origin and destination of funding to associations is not utilized for terrorist purposes or are oriented towards activities which encourage incitement to hatred and violence.

Oral Statement of Gabon on behalf of the African Group.

1. State Sovereignty

It is our firm belief that associations will play their role in the overall development of the country and advance their objectives, if and 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 by the special rapporteur undermines the principle of sovereignty which we have always been guided by.

Oral Statement of Ethiopia.

The report ignores the legitimacy of a sovereign state and portrays civil society organizations as an entity that can do no wrong…The Special Rapporteur’s advocacy to allow civil society organizations access to foreign funding to the same extent as those of Governments under international cooperation is fundamentally flawed. Governments are legitimate representatives of the people with greater responsibility and obligations while civil society organizations are only a sub-section of the society with particular ideology and agenda. The proposition of the Special Rapporteur to give blanket legitimacy to civil society organizations for foreign funding is too detached from the complex reality under which states have to function balancing both their responsibility to protect while ensuring fundamental freedoms for their people.

Oral Statement of India. See also Oral Statement of Gabon on behalf of the African Group, supra.

1. Transparency and Accountability

The changes and amendments to the national legislation 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.

Oral Statement of Azerbaijan. See also Oral Statement of Ethiopia, supra.

1. Aid Effectiveness and Funding Control

A clear distinction has to be made, however, between individuals and associations receiving funding, since they require different legal and regulatory frameworks to govern the flow of funds, in particular foreign funding. We agree with the principles of accountability, transparency, and integrity of the activities of civil society organisations and NGOs. However, this should not be limited to accountability to donors. National mechanisms to follow-up on activities of such entities, while respecting their independence have to be established and respected…. However, the diversification of the venues of international cooperation and assistance to States towards the funding of civil society partners fragments and diverts the already limited resources available for international assistance. Hence, aid coordination is crucial for aid effectiveness.

Oral Statement of Egypt.

References

The full report of the UN Special Rapporteur:

Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, para. 8, U.N. Doc. A/HRC/23/39 (24 April 2013), https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39_EN.pdf

Oral statements submitted to the clustered interactive dialogue:

UN Office of the High Commissioner for Human Rights, Oral Statement – Austria, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Austria_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Azerbaijan, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Azerbaijan_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Botswana, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Botswana_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Czech Republic, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Czech%20Republic_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Egypt, 30 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf.

UN Office of the High Commissioner for Human Rights, Oral Statement – Ethiopia, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Ethiopia_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – European Union, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/EU__12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – France, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/France__12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Gabon on behalf of the African Group, 30 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Gabon%20on%20behalf%20ofAG_10_1.pdf.

UN Office of the High Commissioner for Human Rights, Oral Statement – India, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/India_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Paraguay, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/paraguay_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Slovakia, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Slovakia_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Sri Lanka, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Sri%20Lanka_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Sudan, 31 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Sudan_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – Sweden, 31 May 2013, available at: https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Sweden_12.pdf

UN Office of the High Commissioner for Human Rights, Oral Statement – United States, 30 May 2013, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/USA_10_1.pdf