International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 72

Cross -Border Philanthropy
States, Public Space, and Cross-Border Philanthropy: Observations from the Arab Transitions

BARBARA LETHEM IBRAHIM 1

Overview
In a quiet annou ncement in the official Gazette, the government of Egypt amended its
provisions on foreign funding in the Penal Code (Article 78) to provide much harsher
punishments in cases involving the offer or receipt of foreign funding. This move, taken in fall of
20 14, signals the intent of the military-dominated government to exercise tighter control over
which non -state actors can receive funding and for what purposes. An assessment of the ways
states are currently attempting to regulate capital flows across their borders is an important
element of the power struggles that mark a transition process under way across the Arab region
today.

After four years of chaotic and unpredictable politics, earlier euphoria over the fall of
aging dictators has given way to a wear y public who desire stability. At least for the time being,
the majority appear willing to trade their short-lived freedoms for a modicum of order. Countries
like Egypt have seen increased public support for measures to restrict the space for civil society ,
including arrest of peaceful demonstrators, journalists , and bloggers, and reduced access to
cross-border funding. For those who fought and paid a high price to rid the region of dictatorial
leaders, these are disheartening reversals. By 2013, articles b egan to appear arguing that civil
liberties had become more limited under the post-uprising state than during the Mubarak years. 2
In light of these and other developments, some observers have been ready to declare the
Arab spring over and its uprisings a failure. But on closer analysis, irreversible changes are
occurring in the relationship between the state and its citizens, a dynamic that has yet to play
itself out fully. State leaders are now required to ta ke account of their politically awakened
citize nry in ways that were unthinkable before. The present analysis is a mid-course attempt to
identify some of the key issues molding policy regulation of an important aspect of civic life, the
mobilization of funds for public purposes, particularly internatio nal funding flows for
philanthropic purposes. We examine the impact of policy changes on domestic civic life, as
observed through the lens of recent developments in the Arab region. Many examples are drawn
from Egypt , where the author has most experience, with additional material from Tunisia, where
civil society has arguably maintained a freer status over the past four years.

1 Senior Advisor and Founding Director, John D. Gerhart Center for Philanthropy and Civic Engagement,
American University in Cairo. Email: bibrahim@aucegypt.edu .
Special thanks are due to Rahma Ali for excellent assistance in tracking down elusive references for this
paper.
2 For example, see Al-Ahram Online (May 2013).

Three main premises are explored. The first is that when states restrict the flow of
international philanthropic capital, the effects are felt most strongly by the citizen sector,
predominately actors in civil society such as political parties, NGOs and more informal social
action groups. This is because states reserve to themselves the right to accept foreign grants and
donations with minimal or no oversight of how they are utilized. Furthermore, in recent years
most countries have reduced restrictions on foreign direct investment in the private sector, a
move necessary to remain competitive in the global economy. Thus it is predominately civil
society that is weakened vis -à-vis the other sectors of society when policy restrictions are
tightened.

Thomas Carothers has noted that more than 50 countries in recent years have enacted or
seriously considered legislative or other restrictions on the ability of local NGOs to form and
operate. At the core of many of these efforts are measures to impede or block foreign funding for
civil society groups .3 Measures adopted include administrative and legal obstacles, propaganda
campaigns against NGO s that accept foreign funding, and harassment or expulsion of external
aid groups offering civil society support. The majority of governments engaged in pushback are
semi-authoritarian regimes, a category applying to many Arab states before and during the Arab
transitions.

The second premise is that it is generally agreed to be reasonable for contemporary
governments to maintain some monitoring of and legal restrictions on the flow of capital and
goods across their borders. As crime and terrorism have become increasingly globalized, these
may constitute legitimate threats to public welfare when cash, weapons, drugs, or undocumented
persons can move unimpeded across borders. Nonetheless, groups or individuals who are
determined to use illicit means to send or receive funds across borders will be unlikely to be
deterred by laws, which are notoriously difficult to enforce consistently. This leaves citizens and
groups whose intent is to respect the law most likely to be disadvantaged when restrictive laws
are passed.

In assessing restrictive cross-border funding policies and their implementation, some sort
of means test is desirable that weighs the likely threat to basic public order or human welfare
before judging those policies to be too harsh or lenient. Because such standards have yet to be
agreed upon among western countries, let alone across the vastly different countries of the global
south, there is ample room for debate and differences of opinion as to how these laws should be
applied.

Thus a third premise of the paper is that one useful way to gauge the reasonableness of a
law or policy restricting cross-border philanthropy is to apply a principle of proportionality: do
the means of control and the punishments for noncompliance in a particular law match the
purported severity of threats to society that it was designed to address? Are the laws precise
enough to be effective in targeting harmful behavior, or are they written in such a way as to bring
collateral damage to socially desirable entities or cause s? A related problem is identified in the
dearth of studies that measure concretely the societal good generated from those civil society
programs and services supported by external funding. In the absence of empirical evidence of
benefit, it becomes easier for governments to argue that blanket restrictions serve the public
interest.

3 Carothers (2014).

Protection, Civic Freedoms , and the Social Contract
In liberal democracies, the basic pact between the government and the governed should
be one of balanced power. Officials face popular elections on a regular basis, and in the interim
period it is understood that a free and active citizen sector (including an independent media) acts
as a watchdog to guarantee the proper functioning of government. Thus legislation to curtail the
activities of civil society face s special scrutiny; in cases justified by special circumstances such
as war or terrorist threats, laws typically include sunset clauses to limit the duration of
application. In recent years, strong opposition to laws such as the U .S. Patriot Act or policies
framed around protecting homeland security have received harsh and sustained public criticism
as contested issues in election campaigns and elsewhere.

The situation in authoritarian states and in many transitioning countries of the global
South is quite different. There the state assumes a position elevated above the people it governs,
in a form of dominance that does not recognize inalienable rights of assembly or civic rights for
citizens. In the Arab region in particular we can see a blend of this kind of state supremacy,
which exists alongside a form of paternalism that is fundamentally hostile to a free and open civil
society. In this view of correct governance, often spearheaded by security forces, citizens are
incapable of acting for their own benefit in organizing civic life. They must therefore be
regulated by agencies that take on the moral authority to decide what is beneficial and what
brings harm. This fundamentally patronizing stance by governments toward their citizens is
typically expressed in the language of “protection ” or maintenance of order, with state media
utilized to support policies through fear or mobilization of anger toward opposition groups. For
example, throughout 2014 in Egypt, young activists and revolutionaries were blamed regularly
by state-affiliated television and newspaper commentators for the state of the economy or the
lack of order in society. This deflects attention from responsibility of the security forces to
maintain order, and from state management of the economy and the transition process in general.
The patriarchal framework is applied to cross-border philanthropic giving in authoritarian
settings through two official tenets, repeated throughout the state bureaucracy until large parts of
the public accept their veracity as well. The first is that foreign donors never have helpful or
altruistic motives for their donations, and in fact they are in the service of foreign governments
and/or political groups. The second operating assumption is related — that those in the local
society who accept foreign -sourced donations must therefore be working as external agents and
cannot be patriotic citizens. These damaging assertions are made routinely and in multiple
venues, so that they take on the air of invincible truths. State media, public statements of high
officials, security prosecution investigations, and judicial verdicts all operate to reinforce these
views.

Thus the place of “foreign funding ” in political discourse in many if not all Ar ab states is
to keep large parts of the organized citizen sector alienated from the broader public, constantly
on the defensive, and fearful of legal action should their activities or budgets grow to have
significant impact. This is possible, in turn, because of the underdevelopment of local
philanthropic sources, especially in the sensitive areas of rights, democracy promotion, and
protection of minorities.

It initially appeared that the anti-foreign funding discourse would lose its potency
following the Arab uprisings beginning in 2010. Young revolutionaries were globally connected
in terms of ideas and networks but not for the most part beholden to outside financing. These
were initially seen as largely domestic uprisings with domestic consequences, although in each
case elements of external political influence eventually interceded, Bahrain being the most
dramatic case in point. Regional and international influence became increasingly apparent in the
transition period of early elections (in Egypt) or constitutional negotiations (in Tunisia). It was
often unclear whether states or private actors were behind the money flows, especially in support
of groups like the Salafists, which entered politics for the first time after 2011. In Egypt, the
picture became increasingly murky, with Qatar, the U .S., and Turkey ultimately accused of
supporting the election and subsequent conduct of the short-lived Mohamed Morsi regime in
Egypt. A discourse of dangerous foreigners that had prevailed during the Mubarak years was
once again installed as a way of mobilizing public support for the post -Morsi interim government
and presidency of Abdel Fattah al Sissi.

Domestic Politics in Transition: The Case of Egypt
With that framework in mind, a quick review of Egypt ’s 2011 uprising and subsequent
transition period illustrate show the dialectic between local and international politics has
impacted the free expression of dissent and the funding of democratic forces in that country. This
sets the backdrop for a closer look at restrictions on international or cross-border funding of civic
and philanthropic entities that have emerged over the ensuing transition years.
The relationship of state, law, and civil society shifted multiple times during the four
years following Egypt ’s January 2 5th revolution .4 That uprising was sparked by converging
forces within the citizen sector, including labor unions, opposition parties and groups like Kefaya
(“Enough ”), and newer youth movements such as 6th of April and We are All Khaled Said.
Within days the protests in Tahrir were joined by a range of Islamist factions, most prominently
the Muslim Brotherhood. By the end of the dramatic 18 days, it was clear, however, that it was
the armed forces who were firmly in control and behind the sudden departure of President
Mubarak on February 11. Over the early months of rule by the Supreme Council of the Armed
Forces, street protests and labor actions were continuous, and the army was initially reluctant to
intervene. Then a sit-in in Tahrir square was aggressively removed mid-summer, and a peaceful
march in support of Coptic Christians was violently dispersed with many deaths in October
2011.

As police forces began to reappear on the streets, and in response to a series of bloody
protests, security forces steadily regained the upper hand. Presidential elections took place before
a constitution was drafted and under an election law that did not stipulate or enforce transparency
in campaign finance or equal access to media. Following the announcement of victory for
Muslim Brotherhood leader Mohamed Morsi in June 2012, public demonstrations took on a
sectarian tone, largely male and unfriendly to women, with flags of Gulf countries, al Qaida, and
the Brotherhood appearing alongside the ubiquitous Egyptian flag s of previous periods.
However, as opposition to the policies of the Morsi regime mounted, huge street demonstrations
reemerged, particularly following his unilateral decree increasing presidential powers at the
expense of the judiciary. These were reminiscent of the original Tahrir protests, more diverse in
terms +of class and gender, but preyed upon violently by murky groups that were variously
identified with the Brotherhood or remnants of the Mubarak regime. By July 2013 two huge
4 Egyptians tend to call the events of January and early February 2011 a revolution, while political
scientists and others prefer to use the term uprising. In all cases, it will be several more years before we know
definitively if those events result in profound governance changes.

 

opposing camps had gathered in major squares in Cairo, one supporting the elected government
and the other challenging its legitimacy and calling for early elections.

Military and pro -Mubarak groups aligned with the young leaders of the Tamarod
movement mounted a massive anti -Morsi recall petition and encouraged throngs to gather in
Tahrir. State-controlled media kept sentiments high against the MB as the army once again
stepped in to “save the nation, ” calling on Morsi to negotiate. He refused, the military moved to
arrest him and his top officials, and formal power transferred to the armed forces once again.
Under a military “road map” for the country, an interim president was appointed along with a
new prime minister and cabinet.

From that point onward and until early 2015, independent citizen action was
progressively curtailed, whether it was initiated by pro -Morsi supporters or secular rights groups
opposed to military actions they believed violated human rights or due process. The military
regime accomplished this with little public outcry, using media campaigns around an official
“war on terror, ” and later by encouraging a “back to work ” and normality campaign. These were
welcomed by what appeared to be a majority of Egyptians, tired of the chaos and hopeful of
restoring a seriously dysfunctional economy.

How are the tightening restrictions on domestic political expression linked to laws and
regulations governing cross-border giving? Given the global communications and networks in
which civil society operates now in all part s of the world, lines between domestic and
international actions are increasingly blurred. Governments use this to their advantage to paint
local citizen groups as unpatriotic for associating internationally, as noted above. In a sense, this
might be seen as a validation of the strength and impact of empowered citizen-led initiatives. But
a vibrant civil society sector can be quickly undermined by legal restrictions on cross-border
relationships coupled with threats of prosecution and jail time. That is clearly illustrated in
Egypt, both in the past by the overreactions of an aging Mubarak regime with a weak hold on
power, and later during the uncertainties of a transition period. The means used by both
governments are surprisingly similar, as described below. In that evolving context in Egypt, we
can examine the three interlinked propositions.

Premise 1. Cross-border funding restrictions disproportionately impact civil society
This first premise may appear obvious; nonetheless, through examining the factors
underpinning it, avenues for redress could become clearer. In the Arab region, a close reading of
laws restricting access to cross-border partnership and funding suggest that behind state
discourse around protecting national interests and public order are a set of alternative
motivations. First, one can see a clear distinction between the application of laws to primarily
development organizations — those providing social services like health care, education or
childcare, for example, which are largely left to work unfettered — and those engaged in rights or
democracy promotion. States selectively apply restrictive laws and regulations to civil
organizations in those fields based on the perception that they exist to provoke opposition to the
state or its policies. With no quarter allowed for the concept of loyal criticism, the fact that these
organizations maintain foreign ties is in itself evidence of disloyalty. Proof of harm is rarely or
never established except for guilt by association. Usually it is enough to publicly imply
unpatriotic motives to the group under scrutiny and then subject it to legal prosecution .5

5 NGO Law Monitor: Egypt (2014).

Thus the Mubarak regime in Egypt repeatedly assured western governments that its anti –
terror laws would never be used except to prosecute drug traffickers, armed groups, and avowed
terror organizations. However, local human rights and democracy defenders were subjected to
legal proceedings based on its provisions, including the provisions against accepting foreign
funding without permission. 6 Civil society organizations with close ties to the regime during the
Mubarak years received large grants, including many from external sources, without being
subject to review or prosecution.

Similarly, in the period immediately following the fall of Mubarak, international NGOs
in the process of registering to operate in Egypt found themselves subject to prosecution for
democracy -promotion activities that had been frequently and carefully coordinated with relevant
officials. The line between civic education and politics is murky in transitioning countries, and
when the military leaders wanted to stop those activities, it was enough to circulate rumors that
NGOs were using foreign grants to “divide ” the country and to carry out Israeli plots; arrests,
trials, and prison sentences ensued. It stretches credulity that those who ordered these
investigations really believed the NGOs capable of “undermining national sovereignty, ” but it
was convenient to use those charges for two reasons: to signal to other international groups that
Egypt was not welcoming to cross-border philanthropy, and to intimidate local groups from
developing independence through their funding sources. This case is discussed further below in
the context of disproportionate punishment.

By 2014 there were heightened fears among the human rights and civic education
community in Egypt that similar selective prosecution was on the increase. A directive from the
Ministry of Social Solidarity over the summer of 2014 required all entities serving a social
purpose, regardless of their current registration, to re-register with the Ministry and be subjected
to its regulations. A 45 -day deadline for registration was renewed until October, with notice that
violators after that date would be prosecuted. The fact that similar requirements were not
enforced for private companies, which routinely engage in social responsibility projects and
grant-making, and whose foreign funding infusions are many multiples higher, suggest the
targeting of civil society.

Taken together, selective application of laws and regulations create a crushing
environment for the citizen sector and reduce much -needed support for Egypt ’s transition at a
time of economic crisis. Under the current trend to increase penalties and prison sentences for
infractions of the foreign funding laws in Egypt, for example, organizations such as Oxfam UK,
which has operated in the country for over 30 years, suspended its local operations and later
closed down. Other western donors have shifted their programs to Tunisia, where the climate for
international cooperation is more open. Egyptian human rights organizations have made
arrangements to place staff on indefinite leave in order to protect them should an investigation
take place, and some are moving their core operations to other countries in the region for an
indefinite period.

This has the effect of further weakening a sector already suffering from the extreme
polarization of politics that arose in 2013 around the removal of Mohamed Morsi’s Muslim
Brotherhood government and subsequent prosecution of his followers. It removes from public
6 The case of the Ibn Khaldun Center and its 28 defendants shook Egyptian civil society over the period
2000 to 2003, when the state subjected its staff and chairman to three trials involving seven-year prison sentences,
for accepting foreign funding without state permission.

 

life the very organizations with the leadership and values that could enable them to initiate
reconciliation efforts across that deep divide.

Premise 2: Reasonable monitoring of and restrictions on the flow of capital and goods across
borders are acceptable, but not selective application
Following the first parliamentary elections in Egypt in 2012, the Carter Center, which
maintained an office in Cairo, commented on a range of issues it felt warranted concern, though
it was unable to investigate them fully under its international observer mission. One was the
apparent influx of unattributed outside funding to election campaigns and the lack of effective
oversight of campaign contributions. Rights activists have long decried the practice of paying
voters in cash or food for going to the polls. Further concerns were raised when raids on the
Muqattam headquarters of the Muslim Brotherhood in 2013 allegedly turned up documents
detailing large sums of Gulf funding allocated for specific individual candidates who were also
members of that group. These appear to be legitimate instances of potential harm to the free and
fair election process. It is an area where established democracies have labored for long to set
limits on funding sources and amounts and to enforce them.

Outside campaign funding and lack of transparent accounting for campaign spending
were the most frequently mentioned concern in transitioning Tunisia as well, as reported in a
recent FRIDE study on foreign funding there. 7 Opposition politicians and their supporters
expressed the view that Ennahda’s electoral victory was a result of the party’s deeper financial
coffers, which they were convinced came from abroad. Ennahda p arty’s “funding from Qatar” is
a recurrent theme that many in Tunisia take for granted, despite the lack of hard evidence. 8
Interestingly, other civil society groups like human rights and community -based NGOs have
mostly welcomed external donor support, noting that local philanthropy is almost completely
lacking. When questions are raised, it is usually by community members who can be reassured
by open sharing of information about the project in question and origin of funding.
Tunisia seems on the whole to have escaped the media -fed suspicion around external
funding sources that is rampant in Egypt, and its interim government has encouraged
international partners in the transition process. At least three major private donors that originally
planned to establish programs in Egypt in 2011 have switched to working in Tunisia. The same
is true of a consortium of European donors who wanted to contribute to the Arab spring
opportunity but were discouraged by Egypt’s unwelcoming climate and are now operating in
rural Tunisia.

In Egypt, suspicions of possible cross-border funding of political candidates and parties
rose to new heights in the period following Morsi’s removal and the lead -up to presidential
elections in 2014, with the arrest and prosecution of a number of foreign journalists on
allegations of working for the Muslim Brotherhood. These cases, and the standards of evidence
allowed during the ensuing court trials, have raised both local and international concern. A
different area of media bias was raised by the Carter Center observer mission in 2014, which
commented on the unequal access to local media during the presidential campaign, noting that
one candidate had excessive access to state media through a position in the cabinet.

7 FRIDE (2013).
8 Kausch (2013).

Similar
concerns have been raised by Egyptian authorities, who shut down a number of local private
satellite channels for alleged ties to the MB, yet have little control over channels viewed in Egypt
but licensed and broadcast from abroad. If non-Egyptian channels choose to promote a political
viewpoint or party (as was the accusation against channels in the Al Jazeera group) there is very
little legal recourse. These are the gray areas of cross-border funding and influence that bear
further scrutiny and standards that are internationally accepted.

But what about cases where “harm” is a shifting matter and states change course in their
views on cross-border cooperation? In the previously mentioned NGO trial case, accused
organizations had early indications from Egyptian authorities that their activities were welcome.
The prosecuted international organizations originated in the U.S. and Germany, two countries
where Egypt has strong links through joint counterterrorism programs. During the protracted
legal proceedings, prosecutors ignored attempts to convince them that NGO activities for
democratic education and training, such as preparing women and youth to compete in legislative
elections, are in fact one way of building a strong non -violent polity and civil sector, essential in
the fight against terrorism.

Support for the view that these prosecutions and others like them may have intentions
other than protection from harm comes from the case mounted against Dr. Amr Hamzawy, an
activist, professor of political science and politician elected to the first short-lived parliament
after January 25. In one tweet, he used his Twitter account to express dismay over the way
evidence was marshaled and the verdict reached in the NGO case. As a result he was prevented
from traveling to attend an overseas academic conference and charged with insulting the
judiciary, a serious criminal act. Many similar Twitter comments by other irate Egyptians with
less public prominence were ignored. In a letter to the Egyptian Minister of Justice concerning
the case, the Academic Freedom Committee of the Middle East Studies Association stated in
part:
… At the beginning of June 2013, an Egyptian court ruled that several Western-backed
non -governmental organizations operating in Egypt aimed to “undermine Egypt’s
national security and lay out a sectarian, political map that serves United States and
Israeli interests” and were receiving funding from outside to pursue that aim. The ruling
prompted critical responses from both inside and outside Egypt. Several critics suggested
that insufficient evidence had been provided to prove the allegations and so, they
appeared to be political in intent. Indeed, this was precisely what Dr. Hamzawy posted in
a single tweet on June 5. It reads: “Verdict in case of foreign funding of CS shocking,
transparency lacking, facts undocumented & politicization evident.” It is for these words
that he is now being accused of insulting the Egyptian judiciary.
We are fully aware that insulting the judiciary is a crime in Egyptian law; however, we
fail to see how the above words can be read as defamatory. Instead, the charges against
Dr. Hamzawy appear to be part of a broader, systematic effort to stifle critical free
expression…. 9

That legal case was eventually dropped against Dr. Hamzawy, who remains a critic of the
government’s ban and prosecution of the Muslim Brotherhood, though himself an avowed
secular liberal within the Egyptian political constellation. From past experience, however, it can
be revived whenever his public statements run afoul of official positions.

9 Letter Concerning Charges Against Amr Hamzawy (2014).

 

The most direct threat to free citizen expression in Egypt came with the passage by
presidential decree of a controversial Protest Law in November 2013. Public expressions of
opposition to government policy or practice were effectively silenced through intensified arrests
and prosecution of citizens who mount peaceful demonstrations. The stiff penalties in this law
for any form of protest not directly approved in advance by the Interior ministry was the clearest
indication to date that the same citizen mobilization that had enabled the military to topple Morsi
was no longer to be tolerated.

Article 8 of the new law requires that organizers of any public assembly, whether a
protest, march, or general meeting, submit a written notice to the nearest police station with their
plans at least three working days in advance. Article 10 allows the Minister of Interior or the
concerned security director to cancel, postpone, or change the route of a protest .10 The terms of
this law will receive constitutional challenge in due time. They violate access to free association
enshrined in the latest constitution of 2014, which grants rights for public demonstrations
following “notification of the relevant authorities ” only.

Currently, hundreds of activists are in prison, some held without charge, others serving
three – to five -year prison sentences for violating the provisions of the new law. They view their
actions as peaceful civil disobedience of an unconstitutional law. Many face deteriorating health
following prolonged hunger strikes. However, public opinion appeared willing to accept these
measures, along with others like the closure of private television channels and newspapers, and
bringing security forces back onto university campuses. The approval rating for the performance
of President Al Sissi ranged between 45 percent in early summer to 82 percent in September
2014 as terror threats against security forces escalated. 11 These are well beyond the actual
numbers he garnered in the spring presidential ballot , where turnout was low. At least in the
short run, a combination of suppression of dissent and fear of increasing violence trump public
support for free expression.

Premise 3: Protecting domestic political space from external “harm”: is proportionality
applied?
Whereas the previously mentioned registration directive and the Protest Law are aimed
primarily toward curbing domestic political expression, the September amendments to Article 78
of the criminal code are a direct challenge to foreign funding and cross-border capital flows for
philanthropic purposes. The new provisions impose life imprisonment and a fine of 500,000 LE
(roughly US$72,000) for anyone who solicits, assists , or receives funding or other support from a
foreign source with the intent to “harm the national interest, ” “compromise national
sovereignty ,” or “breach[] security or public peace. ” A foreign source is defined in the law to
include “a foreign country, any individual who works for it, a legal person, a local or foreign
organization, or any other entity not affiliated or working for a foreign country. ” The amended
law likewise imposes the penalty of life imprisonment on anyone who gives or offers such funds,
or “facilitates ” their receipt.
That means in theory that the entire staff of an organization, whether a private foundation
like the Ford Foundation or the semi-governmental Canadian International Research Center
(IDRC), donor agencies operating in Egypt for over 50 years, could be subject to these draconian punishments.

10 Egypt’s Protest Law Nov (2013).
11 The Egyptian Center for Public Opinion Research (Baseera) (2014).

Could an IDRC grant to teach research methods to young policy change advocates
be seen as “harming the national interest? ” Would the program officer who made the grant and
the clerk who issued the check be liable to life sentences mandated under the new penalty
clauses? Proportionality is absent in this law, both because of its vague wording and because it
does not specify graduated penalties for differing degrees of responsibility and harm.
While the expressed intent of the law is to curtail funding for armed insurrection or terror
organizations, such vague wording leaves open to wide interpretation those activities or causes
that could be seen as harmful. Generic language such as “harm the national interest ” or
“compromise national sovereignty ” gives prosecutors vast discretion to use the law selectively.
The potential effect on fragile democratic practices is great, given that common acts — such as
criticizing the indictment of individuals in political cases or sending observer missions to
monitor national elections in Egypt — have been defined repeatedly by the state as infringement s
on sovereignty. The latter is invoked so regularly that most citizens believe monitoring — whether
by local citizens or international observers — to be a suspicious political act. However, the
Egyptian Ministry of Foreign Affairs routinely sends its own observer missions to monitor other
countries ’ elections. Consistency does not seem to be a high priority in these matters. Or perhaps,
as was previously noted, the state take s for itself privileges that citizens are not felt to be capable
of managing.

State sovereignty often emerges as the value that trumps all other values or rights in non –
democratic states, especially during periods of military rule. It is a curiously elastic concept
because on the one hand, state powers are free to define what are perceived as threats to
sovereignty, while allowing themselves free access to the very resources or relationships that are
described as “harmful. ” So funding for citizen groups that originates beyond national borders is
automatically suspect and subject to scrutiny or oversight in the laws of many Arab states. But
government bodies have license to freely solicit huge amounts of foreign -sourced grants, loans,
and in-kind supplies of weaponry and surveillance equipment, for example, for which there is no
oversight or concern over potential harm. 12

From the perspective of foreign donor states and organizations, the amended law has
similarly dangerous implications, as their representatives may be held liable under the new
provisions. The amendments state: “Anyone who gives, offers or promises any of the above
mentioned things for the purpose of committing any of the crimes stated for in the previous
paragraph shall be subject to the same penalties. Anyone who facilitates the commission of any
of the above mentioned crimes shall be subject to the same penalties .” This puts donors as well
as their Egyptian partners and employees at potential risk as well.

It has been noted by the International Center for Not -for -Profit Law and others that the
new amendment specifies even stronger punishment for state employees than for private citizens
who violate this law, including death sentences for public officials. Those provisions open the
way for legitimate court challenges to members of regimes that solicit foreign donations if those
can be shown to harm the vague concept of national interests. This double-edged sword aspect of
12 Interestingly, however, a case brought against the state by rights groups in Egypt late in 2014 does appear
to have halted, at least temporarily, the application of a sweeping effort to collect and review email and other
internet communication using foreign -sourced equipment and software. The case is based on the new penalty
clauses and the argument that such indiscriminate infringement of the privacy of normal citizens creates a form of
national harm.

 

the law, clearly drafted with Morsi government officials in mind but capable of application to
any subsequent government, may in fact be sufficient reason for its further amendment in the
future.

Conclusion and Recommendations
The above assessment is bleak on a first reading, with wider implication in the Arab
region given the historic role Egypt plays as an intellectual and political trendsetter. Tunisia
presents a more hopeful case where pluralistic politics and openness to international cooperation
mark for the most part their transitions period. Some historians of Egypt would balance the
picture by noting that xenophobic tendencies have co-existed with periods of cosmopolitan
assimilation for millennia in Egypt. And experiences in Latin America and elsewhere suggest
that heightened nationalism and rejection of foreign influence were hallmarks of military regimes
throughout the 1980s and 19 90s. That did not prevent the ultimate ascendance of more
democratic and open societies at the end of a transition period.

What efforts might local civil society and its partners internationally take to ease the
current restrictive situation in Egypt and elsewhere in the region? The suggestions made here are
an amalgam of observations from working inside the philanthropy sector and from studying the
role of philanthropy in transition successes elsewhere. They are also indebted to an interesting
set of ideas by Akrum Bastawi, 13 who reviewed the methods utilized by Mubarak -era economic
reformers in Egypt for possible lessons applicable to civil society and cross-border donors.

1. The international philanthropic community can help by developing codes of conduct
for cross-border work based on respect for local cultures and legal traditions that also
enshrine basic shared principles of human welfare as well as operating procedures that
lend greater transparency and accountability to their endeavors. They also have a role
to play in compiling and sharing effective practices with governments and lobbying
through their global associations such as WINGS and the OECD Net -Forward group
of private donors.

2. International donors would be well -served to work more collaboratively with each
other in cross-border settings, especially during the unpredictable and fast-changing
situations brought on by sudden regime change or the end of war or civil conflict. This
would enable them to share credible insights on the political and social environment in
which they hope to invest and therefore be more likely to “do no harm ” when
engaging with local counterparts. This would also increase chances that programs are
sustained beyond the usual two – to three -year post-regime change period in which
international enthusiasm is highest. Civil society development needs long incubation
and steady support, especially in environments such as Libya or Yemen where the
sector was severely restricted under an ancien régime.

3. Cross-border donors who are reluctant to take risks in a transition setting such as
Egypt or Tunisia with direct grant -making have a number of alternatives. The one with
longest -term potential impact is to support the growth and effectiveness of local
philanthropy. Whether foundations, endowments, social businesses, or more informal
citizen and community funds, local philanthropy has a better chance of staying the
course regardless of the restrictions that may be placed on external capital.

13 Akrum Bastawi is a specialist in international economic relations and a former adviser to the Egyptian
government.

 

When a flourishing and diverse local philanthropy sector emerges in the Arab region, foreign
funding will recede as a political hot -button issue. It can then take its rightful place as
one auxiliary source of support among others.

4. Consider support for (and the registration of) local for-profit entities that have both an
income -generating and a social purpose. While an unusual move for most donors, this
could have a dual advantage. Social businesses, as they are often called, can cross –
subsidize their public benefit activities with the revenues from for-profit activities,
whether fee-based social services, consulting, or a novel solution to a pressing societal
problem. They may also be able to maintain company legal status and avoid the harsh
measures applied currently to non -profits.

5. Civil society in local settings can begin a serious process of self -assessment and self –
regulation. This begins with admitting that violations of law and ethical standards do
occur, which hurt everyone else. Standards can be drawn up and education programs
instituted within the sector that display to government bodies a seriousness of purpose
about truly serving the public good.

6. Local civil society needs to take itself seriously in the coming period and act less like
youthful rebels and more like professional partners in development. By this we mean
that the strategies built around street politics and engagement have their place and will
always be one of the tools in the struggle for civil liberties. But the waning support for
young activists in countries like Egypt is a wake -up call that the important work of
building broad constituencies, raising awareness beyond the urban centers, and
providing tangible benefits to the public must also be part of the next phase of Arab
civic life.

7. This does not in any way suggest a deflection from the essential watchdog and defense
functions of rights and public policy groups. It will require, however, taking steps
toward greater empathy with one ’s supposed “enemy.” If security forces awake each
day to deal with suicide bombers, drug lords, and fraudsters, and they see evidence
that civic groups have no respect for their work, how can the wall of mistrust ever be
lowered? What are the tactics for finding and working with individuals within state
agencies who may be sympathetic and willing to show flexibility and innovation?
How do we prepare “our ” candidates for influential public office? There are lessons to
be learned from other transition contexts where pressure to change institutions was
exercised while also making concerted efforts to reduce levels of mistrust on both
sides.

8. One data-driven lever for greater influence of the civil sector might come from a
credible estimation of its total contribution to the GDP. Using economic models to
monetize the services, information dissemination , and voluntary labor generated by the
sector would shift the debate from one of liabilities to one of assets. In countries like
Egypt where the sector is large, it could eventually shift the way government agencies
negotiate with civic leaders and bring them to the policy table. An academic research
team in Egypt is pursuing this project in 2015, on the assumption that once a new
parliament is seated in the summer, its members will benefit from factual evidence to
enable them to evaluate a draconian NGO draft law which the government recently
circulated.

9. Western governments need to do more to put teeth and consequences into their
rhetoric about support for civil society around the globe. If the U.S., Canada, Japan,
and EU countries were to work in tandem to impose meaningful consequences on
governments that are happily receiving foreign aid but restricting their civil sector
from doing the same, it is certain that changes would happen rapidly.
10. Perhaps with serious collective efforts at all levels, the unfortunate momentum of anti –
civil society and anti-global cooperation legislation can be stemmed and reversed.

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

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

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

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

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

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

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

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

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27

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

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 –
terrorism.” 150
 In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, https://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
https://www.charityandsecurity.org/analysis/Restrictiv e_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Gabon%20on%20be
half%20ofAG_10_1.pdf .
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/Pages/OralStatement.aspx?MeetingN
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
https://www.defence.lk/new.asp?fname=Sri_Lankas_National_Security_20140819_02 .

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

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

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

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

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

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

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;
 public order;
 the protection of public health or morals; or
 the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.

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

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