The Report: Defending Civil Society

In February 2008,the World Movement for Democracy and the International Center for Not-for-Profit Law launched the Defending Civil Society project with the publication of this report which illustrates legal restrictions imposed on civil society groups worldwide and articulates international principles protecting civil society. The reports are available in the following languages: Arabic, Chinese, English, French, Russian, and Spanish.

• Executive Summary
• Eminient Persons Group
• Six Principles
• Recommendations

Executive Summary

Civil Society is facing serious threats today across the globe. An offensive against the spread of democracy has spread and intensified. This ongoing backlash against democracy has been characterized by a pronounced shift from outright repression of democracy, human rights and civil society activists and groups to more subtle governmental efforts to restrict the space in which civil society organizations (“CSOs”) – especially democracy assistance groups – operate.

Too many regimes still employ standard forms of repression, from activists’ imprisonment and organizational harassment to disappearances and executions. But in other states – principally, but not exclusively authoritarian or hybrid regimes – these standard techniques are often complemented or pre-empted by more sophisticated measures, including legal or quasi-legal obstacles such as barriers to entry to discourage or prevent the formation of organizations, and barriers to resources to restrict organizations’ ability to secure the resources required to carry out their activities.

Governments have tried to justify and legitimize such obstacles as necessary to enhance accountability and transparency of non-governmental organizations (“NGOs”); to harmonize or coordinate NGO activities; to meet national security interests by countering terrorism or extremism; and/or in defense of national sovereignty against foreign influence in domestic affairs.

This report exposes such justifications as rationalizations for repression, and, furthermore, as violations of international laws and conventions to which the states concerned are signatories.

The report articulates well-defined international principles protecting civil society (see below), already embedded in international law, including norms and conventions that regulate and protect civil society from government intrusion. These principles include: the right of NGOs to entry (that is, the right of individuals to form and join NGOs); the right to operate to fulfill their legal purposes without state interference; the rights to free expression and to communication with domestic and international partners; the right to seek and secure resources, including the cross-border transfer of funds; and the state’s positive obligation to protect NGO rights.

The report concludes by calling upon:

• international organizations to endorse the report and the principles it identifies;
• civil society organizations to conduct national and regional discussions to mobilize support for the reform of legal frameworks governing them; and
• democracy assistance organizations to distribute and promote the report and its recommendations to its partners and grantees.

Eminent Persons Group

By endorsing the Defending Civil Society report, the following individuals help raise the issue of the increasingly restrictive environment for civil society around the world, promote the report, and monitor the implementation of its recommendations.

• His Holiness the Dalai Lama – Tibet
• Vaclav Havel – Czech Republic
• Desmond Tutu – South Africa
• Kim Campbell – Canada
• Fernando Henrique Cardoso – Brazil
• Anwar Ibrahim – Malaysia
• Saad Eddin Ibrahim – Egypt

This Eminent Persons Group has shown their support by issuing an endorsement letter and urging all governments, the international community, and citizens worldwide to protect and enhance civil society space.

The African Commission on Human & People’s Rights also endorsed the reports findings. See endorsement letter here.

Six Principles

To protect civil society organizations from the application of the legal barriers described in this paper, this section seeks to articulate principles that govern and protect CSOs from repressive intrusions on the part of governments.

Principle 1: The Right to Entry (Freedom of Association)

1. International law protects the right of individuals to form, join and participate in civil society organizations.
   1. Broad scope of right. Freedom of association protects individuals in their right to establish a wide range of civil society forms, including trade unions, associations, and other types of NGOs.
   2. Broadly permissible purposes. International law recognizes the right of individuals, through NGOs, to pursue a broad range of objectives. Permissible purposes generally embrace all ‘legal’ or ‘lawful’ purposes and specifically includes the promotion and protection of human rights and fundamental freedoms.
   3. Potential founders. The architecture of international human rights is built on the premise that all persons, including non-citizens, enjoy certain rights, including freedom of association.
       
2. Individuals are not required to form a legal entity in order to enjoy the freedom of association.
    
3. International law protects the right of individuals to form an NGO as a legal entity.
   1. The system of recognition of legal entity status, whether a “declaration” or “registration/incorporation” system, must ensure that the process is truly accessible, with clear, speedy, apolitical, and inexpensive procedures in place.
   2. In the case of a registration/incorporation system, the designated authority must be guided by objective standards and restricted from arbitrary decision-making.
       

Principle 2: The Right to Operate Free from Unwarranted State Interference

1. Once established, NGOs have the right to operate free from unwarranted state intrusion or interference in their affairs. International law creates a presumption against any state regulation that would amount to a restriction of recognized rights.
   •   Interference can only be justified where it is prescribed by law, to further a legitimate government interest, and necessary in a democratic society. States must refrain from restricting freedom of association through vague, imprecise, and overly broad regulatory language. 
   • It is incumbent upon the state to ensure that applicable laws and regulations are implemented and enforced in a fair, apolitical, objective, transparent and consistent manner.
   • Involuntary termination or dissolution must meet the standards of international law; the relevant government authority should be guided by objective standards and restricted from arbitrary decision-making.
2. NGOs are protected against unwarranted governmental intrusion in their internal governance and affairs. Freedom of association embraces the freedom of the founders and/or members to regulate the organization’s internal governance.
3. Civil society representatives, individually and through their organizations, are protected against unwarranted interference with their privacy.

Principle 3: The Right to Free Expression

Civil society representatives, individually and through their organizations, enjoy the right to freedom of expression.

1. Freedom of expression protects not only ideas regarded as inoffensive or a matter of indifference but also those that offend, shock or disturb, since pluralism is essential in a democratic society. NGOs are therefore protected in their ability to speak critically against government law or policy, and to speak favorably for human rights and fundamental freedoms.
    
2. Interference with freedom of expression can only be justified where it is prescribed by law, in the interests of a legitimate government interest, and necessary in a democratic society. States must refrain from restricting freedom of expression through vague, imprecise, and overly broad regulatory language.
    
3. Stemming from the well-recognized protection of individuals to freedom of assembly, NGO representatives have the right to plan and/or engage in the advocacy of legal aims, including human rights and fundamental freedoms.

Principle 4: The Right to Communication and Cooperation

1. Civil society representatives, individually and through their organizations, have the right to communicate and seek cooperation with other elements of civil society, the business community, international organizations and governments, both within and outside their home countries.
    
2. Individuals and NGOs have the right to form and participate in networks and coalitions in order to enhance communication and cooperation, and to pursue legitimate aims.
    
3. Individuals and NGOs have the right to use the Internet and web-based technologies to communicate more effectively.

Principle 5: The Right to Seek and Secure Resources

Within broad parameters, NGOs have the right to seek and secure funding from legal sources. Legal sources must include individuals and businesses, other civil society actors and international organizations, inter-governmental organizations, as well as local, national, and foreign governments.

Principle 6: State Duty to Protect

1. The State has a duty to promote respect for human rights and fundamental freedoms, and the obligation to protect the rights of civil society. The State’s duty is both negative (i.e., to refrain from interference with human rights and fundamental freedoms), and positive (i.e., to ensure respect for human rights and fundamental freedoms).
    
2. The State duty includes an accompanying obligation to ensure that the legislative framework relating to freedom of association and civil society is appropriately enabling, and that the necessary institutional mechanisms are in place to ensure the recognized rights to all individuals.
    

Recommendations

Next Steps: Building Solidarity and Promoting Adoption of the Principles

The Defending Civil Society report seeks to help mount a global response to the issue of increasingly restrictive environments for civil society organizations, particularly activities focusing on democracy and human rights. The report discusses ways in which governments have erected barriers, presents and analyzes a number of justifications for those barriers, and outlines the principles that governments are violating.

To advance the adoption of these principles and help protect the political space for civil society, the World Movement for Democracy encourages civil society organizations to take action and build solidarity around the international principles outlined above.

Several actions and strategies have been suggested through the various consultations undertaken in producing this report.

Actions Directed to the International Community at Large:

• Call on democratic governments and international organizations, including the United Nations , international financial institutions, and appropriate regional organizations, to endorse the report and the principles it articulates, and to encourage national governments to adhere to them.
• Urge established democracies and international organizations to reaffirm their commitments to democratic governance, rule of law, and respect for human rights, and develop consistent policies based on the principles.
• Urge established democracies and international organizations to reaffirm that proposed restrictions on freedom of association are subjected to the rigorous legal analytical test defined in Article 22 of the ICCPR (see Under Scrutiny section) and energetically publicize transgressions, particularly on the part of ICCPR signatories.
• Urge democratic governments and international organizations to ensure and increase assistance for civil society organizations as part of their efforts to protect and enhance public space for citizens to initiate and engage in activities to advance and consolidate democratic transitions.
• Organize discussions and hearings in parliaments , congresses, and national assemblies to raise lawmakers’ awareness of the issues and principles.
• Monitor the degree to which the principles in the report are being applied in bilateral and multilateral relations.
• Call on the Community of Democracies to endorse the report and its principles, and urge it to establish a committee to monitor violations of the principles around the world.
• Encourage UN special rapporteurs to incorporate the principles into their reports and other UN documents.

Actions for Civil Society Organizations:

• Facilitate national and regional discussions to generate interest in, and mobilize support for, the findings of this report and legal reform of legal frameworks governing civil society organizations.
• Integrate the report’s principles in broader democracy-assistance strategies, including efforts at the local and national levels to enhance women’s and youth participation in political, social, and economic affairs; to establish independent judiciaries to enforce the rule of law; and to strengthen free and independent media.
• Insist that proposed restrictions on freedom of association are subjected to the rigorous legal analytical test defined in Article 22 of the ICCPR (see Under Scrutiny section) and energetically pursue transgressions, particularly on the part of ICCPR signatories, through energetic publicity and litigation in appropriate international courts.
• Translate the report into various local languages to deepen understanding of the issues among grassroots civil society organizations.
• Explore more effective ways to use new technologies and “virtual” space to conduct democracy and human rights work and to mobilize support for such work.

Actions Directed to Democracy Assistance Organizations:

• Call on democracy assistance foundations and organizations to endorse this report and its principles.
• Encourage democracy assistance foundations to facilitate national, regional, and international discussions among civil society groups to develop ideas for reforming legal frameworks for civil society work.
• Insist that proposed restrictions on freedom of association are subjected to the rigorous legal analytical test defined in Article 22 of the ICCPR (see Under Scrutiny section) and energetically pursue transgressions, particularly on the part of ICCPR signatories, through energetic publicity and litigation in appropriate international courts.
• Ensure that democracy assistance foundations and organizations distribute copies of this report to all of their partners and grantees around the world.