10. Access to resources

The right to freedom of association encompasses the right to mobilize resources, including human and financial.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has explained that the right to freedom of association includes the ability to seek, receive and use resources – human, material and financial – from domestic, foreign and international sources.^[1] UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 8(e).

The term “resources” encompasses a broad concept that includes financial transfers (e.g. donations, grants, contracts, sponsorships, social investments, etc.); loan guarantees and other forms of financial assistance from natural and legal persons; in-kind donations (e.g. contributions of goods, services, software and other forms of intellectual property, real property, etc.); material resources (e.g. office supplies, IT equipment, etc.); human resources (e.g. paid staff, volunteers, etc.); access to international assistance, solidarity; ability to travel and communicate without undue interference and the right to benefit from the protection of the state.^[2] UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 10.

The right to access funding is a direct and essential component of the right to freedom of association, as confirmed by various sources both at the global and regional level.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association dedicated a specific report on access to resources and found that “the ability to access funding and resources is an integral and vital part of the right to freedom of association,”^[3] UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful Assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, April 24, 2013, para. 8. explaining:

Many associations, in particular those formed to defend human rights, function as “not-for-profit” entities and therefore depend almost exclusively on external sources of funding to carry out their work. Therefore, “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.”^[5] UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maini Kiai, UN Doc. A/HRC/23/39, April 24, 2013, para. 9.

Similarly, the Human Rights Committee has consistently expressed concern over funding restrictions as an impediment to fully realizing the right to freedom of association. For example, after reviewing Egyptian legislation, which required NGOs receiving foreign funding to register with the government, the Committee stated that:

In Ramazanova v. Azerbaijan, the ECtHR found that State measures hampering an NGO’s access to funding may infringe its right to the freedom of association, thereby recognizing that access to resources is part and parcel of the right to freedom of association. The Court found that:

The UN Human Rights Committee, the Inter-American Court and Commission on Human Rights and the European Court of Human Rights have all recognized that restricting access to foreign funding may constitute a violation of the right to freedom of association, thereby asserting the principle that accessing resources is part and parcel of the right to freedom of association. access foreign funding

International law has consistently held that the right to freedom of association includes accessing foreign funding and that limitations to it may constitute violations of the right to freedom of association.

The Human Rights Committee commented that legislation in Egypt^[8] UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Egypt, UN Doc. CCPR/CO/76/EGY, 28 November 2002, para. 21. and Ethiopia restricting foreign funding warrants revision. The Ethiopian law prohibited Ethiopian NGOs from obtaining more than 10% of their budget from foreign donors^[9] As of May 2017 this law is still in place in Ethiopia. . The law in question also prohibited NGOs considered by the government to be “foreign,” from engaging in human rights and democracy related activities:

The European^[11] Ramazanova v. Azerbaijan, ECtHR, Judgment of 1 February 2007, para. 59. and Inter-American human rights systems have also found that restricting access to foreign funding may infringe on an NGO’s right to freedom of association.^[12] Ramazanova v. Azerbaijan, ECtHR, Judgment of 1 February 2007, para. 59. The IACHR has determined that:

The Inter-American Commission also found that restrictions on receiving “international funding to defend political rights” are not permitted by international law.^[14] IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, para. 185 (noting that “a situation different from the one just described would be one in which an organization was proselytizing on behalf of a certain political party or candidate to a particular post. Under this circumstance, the activity would not be protected by the aforementioned standard.”).

International institutions have specifically emphasized and acknowledged the right to access foreign funding for associations protecting human rights. The United Nations General Assembly’s Declaration on Human Rights Defenders states:

The Special Representative of the Secretary-General on the Situation of Human Rights Defenders has also stated that:

The Human Rights Council resolution 22/6 calls upon States to ensure:

Because access to funding, domestic and foreign, is a part of the right to association, any restriction to accessing funds is a restriction on the right to freedom of association and must be evaluated against the legal international framework to meet the narrowly tailored regime developed by the Human Rights Committee.^[18] Aleksander Belyatsky et al. v. Belarus, Human Rights Committee, UN Doc. CCPR/C/90/D/1296/2004, 24 July 2007, para. 7.3. It is instructive to note that the same test is applicable to restrictions on the right to freedom of association as guaranteed in Article 11 of the ECHR and Article 16 of the ACHR (see Association Section 6)

No vague terminology

Any restriction on an association’s access to funding, including foreign funding, must be precisely drafted so as to eliminate the possibility of arbitrary or overly-broad interpretations of its terms.^[19] See Ezelin v. France, ECtHR, Judgment of 26 April 1991, paras. 21–22, 45. For example, in Zhechev v. Bulgaria, the ECtHR found that the term “political activity” was too broad and open to so many potential interpretations that most activities carried out by any organization could be considered a political activity:

A complete ban on access to domestic or foreign funding for groups engaged in activities of e.g. a “political nature” in order to maintain and protect a vague “national interest” does not meet the legality and proportionality requirement under international law.^[21] See UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Information note to the Government of India. Analysis on international law, standards and principles applicable to the Foreign Contributions Act 2010 and Foreign Contributions Regulations 2011. To meet the proportionality criteria, the State measure must always pursue a pressing need, and it must be the least severe (in range, duration, and applicability) option available to the public authority in meeting that need.^[22] See Mr. Jeong-Eun Lee v Republic of Korea, Human Rights Committee, UN Doc. CCPR/C/84/D/1119/2002, Views of 20 July 2005, para. 7.2. Blanket bans seldom meet that standard.

The ECtHR found that restrictions on the funding of political parties, namely those vying for public office in elections, may be justified. In Parti Nationaliste v. France, a Basque separatist political party in France was prohibited from receiving funding from a foreign political party. The ECtHR found that the restriction on foreign funding of associations involved in promoting candidates for public office served a legitimate aim and was proportionate.^[23] Parti Nationaliste Basque-Organization Regionale D’Iparralde v. France, ECtHR, 7 June 2007, para. 47. The Court recognized that the protection of the institutional order – including the sovereignty of the State – is legitimate under Article 11 of the European Convention.^[24] Parti Nationaliste Basque-Organization Regionale D’Iparralde v. France, ECtHR, 7 June 2007, para 43.

The court clearly makes a distinction between political parties vying for power and organizations involved in “political activities.” The latter is too vague and therefore too broad to form the basis for restricting the right to freedom of association.^[25] Zhechev v. Bulgaria, ECtHR, Judgment of 21 June 2007, para. 55. Similarly, the IACHR has distinguished foreign funding restrictions for political parties or organizations speaking on behalf of a political party as not falling within the same protected standard.^[26] IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser/L/V/II Doc. 66, 31 December 2011, para. 185.

Protecting national interests?

The reasons for which freedom of association may be restricted are exhaustively determined under international law (see Association Section 6.2). The general argument of “protecting national interests” to limit access to foreign funding is not a protected aim under international law. In a joint report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and association and the UN Special Rapporteur on extrajudicial, arbitrary and summary executions noted:

Within the same realm, the ECtHR has held that States may not refuse to register or acknowledge an association on the basis that it was founded by “foreigners” or is a branch of an international association.^[28] Moscow Branch of Salvation Army v Russia, ECtHR, Judgment of 5 October 2006, para. 86; see also, Partidul Comunistilor Nepeceristi and Ungureanu v. Romania, ECtHR, Judgment of 2 February 2005, para. 49.