10.1 Does an association have a right to access 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.
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.
10.2 Associations may access financial resources in general
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,” explaining:
The ability to seek, secure and use resources is essential to the existence and effective operations of any association, no matter how small. The right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources – human, material and financial – from domestic, foreign, and international sources.
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.”
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:
The State Party should review its legislation and practice in order to enable non-governmental organizations to discharge their functions without impediments, which are inconsistent with the provisions of article 22 of the Covenant, such as prior authorization, funding controls, and administrative dissolution.
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:
even assuming that theoretically the association had a right to exist pending the state registration, the domestic law effectively restricted the association’s ability to function properly without legal entity status. It could not, inter alia, receive any ‘grants’ or financial donations that constituted one of the main sources of financing of non-governmental organizations in Azerbaijan. Without proper financing, the association was not able to engage in charitable activities which constituted the main purpose of its existence.
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
10.3 Associations may 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 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 State party should revise its legislation to ensure that any limitations on the right to freedom of association and assembly are in strict compliance with articles 21 and 22 of the Covenant, and in particular it should reconsider the funding restrictions on local NGOs in the light of the Covenant and it should authorize all NGOs to work in the field of human rights. The State party should not discriminate against NGOs that have some members who reside outside of its borders.
The European 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:
[t]he right to receive international funds in the context of international cooperation for the defense and promotion of human rights is protected by freedom of association, and the State is obligated to respect this right without any restrictions that go beyond those allowed by the right of freedom of association.
The Inter-American Commission also found that restrictions on receiving “international funding to defend political rights” are not permitted by international law.
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:
[e]veryone has the right, individually and in association with others, to solicit, receive, and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful mean
s.
The Special Representative of the Secretary-General on the Situation of Human Rights Defenders has also stated that:
Governments must allow access by NGOs to foreign funding as a part of international cooperation, to which civil society is entitled to the same extent as Governments.
The Human Rights Council resolution 22/6 calls upon States to ensure:
that no law should criminalize or delegitimize activities in defense of human rights on account of the origin of funding thereto.
10.4 Stringent conditions for restricting funding
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. 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. 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:
[I]n the present case these courts [Bulgarian national courts] deemed that a campaign for changes in the constitution and the form of government fell within that category. In another recent case these same courts had, more questionably, stated that the ‘holding of meetings, demonstrations, assemblies and other forms of public campaigning’ by an association campaigning for regional autonomy and alleged minority rights also amounted to political goals and activities within the meaning of Article 12 § 2 of the Constitution of 1991.’
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. 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.
10.5 Political parties and foreign funding
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. 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. 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:
When a state invokes national security and protection of public order […] It is not sufficient for the State to refer generally to the security situation. National, political or government interest is not synonymous with national security or public order.
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.