|Maina Kiai: Where domestic funding is scarce or unduly restricted, it is critical for associations to be free to rely on foreign assistance in order to carry out their activities
Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association
27. In recent years, the protection of State sovereignty or of the State’s traditional values against external interference has also been increasingly invoked to restrict foreign funding or to launch slander offensives against those receiving foreign funding.
Foreign funding to civil society has been deliberately depicted as a new form of imperialism or neocolonialism and recipients have been subject to defamation, stigmatization and acts of harassment. This tendency has a serious impact on the work of civil society actors, not to mention their ability to access funding as it deters them from seeking foreign funding. This situation is particularly alarming for associations promoting human rights and democratic reforms who have been accused of “treason” or of “promoting regime change”.
28. For instance, in the Russian Federation, a new law adopted in July 2012 requiresforeign-funded non-commercial organizations engaging in “political activities” – which is broadly defined as attempts to influence official decision-making or to shape public opinion for this objective – to register as organizations “performing the functions of foreign agents”, which in Russian is synonymous with “foreign spy”. The adoption of this law has been followed up by a series of audits of organizations, including prominent human rights organizations. In Egypt, the State-owned press has campaigned against civil society organizations, branding them as foreign agents due to foreign funding that some of them allegedly received. In Ethiopia, legislation not only prohibits associations working in rightsbased areas from receiving more than 10 per cent of their funding from foreign sources, but also requires associations to allocate at least 70 per cent of their budget to programme activities and no more than 30 per cent to administrative costs, which are broadly defined. The enforcement of these provisions has a devastating impact on individuals’ ability to form and operate associations effectively, and has been the subject of serious alarm expressed by several United Nations treaty bodies.13 In the same vein, a law on associations, adopted in January 2012 in Algeria, prohibits associations from receiving funding from legations and foreign non-governmental organizations, unless a “cooperative relation duly established with the foreign entity” – subject to prior authorization from the relevant authorities – is in place. Serious concerns about this legislation were expressed by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression further to his mission to Algeria. (14)
29. It is paradoxical that some of the States stigmatizing foreign-funded associations in their own countries are receiving foreign funding themselves (in the form of loans, financing or development assistance), often in substantially greater amounts than that flowing to CSOs in their country. Others are the very same States providing funding to associations abroad, while rejecting foreign funding for associations in their own countries. But what is clear is that these new trends have a dramatic effect on civil society as they have not only resulted in restrictions to the enjoyment of freedom of association, but also led to further human rights violations.
30. In order to analyse whether the limitation motivated by the protection of State sovereignty complies with international human rights law, it must first be explored whether it falls within one of the limited legitimate grounds for restrictions. The protection of State sovereignty is not listed as a legitimate interest in the Covenant.
The Special Rapporteur emphasizes that States cannot refer to additional grounds, even those provided by domestic legislation, and cannot loosely interpret international obligations to restrict the right to freedom of association. In his view, such justification cannot reasonably be included under “the interests of national security or public safety” or even “public order”. Affirming that national security is threatened when an association receives funding from foreign source is not only spurious and distorted, but also in contradiction with international human rights law.
31. Human Rights Council resolution 22/6 calls upon States to ensure that “that no law should criminalize or delegitimize activities in defence of human rights on account of the origin of funding thereto.” Article 2 of the International Covenant on Economic, Social and Cultural Rights requires States to “take steps, individually or through international assistance and co-operation […] to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant”. Coupled with article 11 of the same Covenant, which provides for States to “take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent” (emphasis added), this means that States have the obligation to mobilize resources that are available within the society as a whole, but also to gather those that are available from the international community.15 Hence, restrictions on foreign funding under the guise of preservation of State sovereignty arguably constitute a violation of States’ obligation to respect, protect and fulfil these rights, as it amounts to failure on the part of the State to maximize resources through international assistance and cooperation. This is also the sense of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, which stipulate that violations of these rights notably include: “the adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights […]; the adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed.” (16)
32. Protection of State sovereignty is not just an illegitimate excuse, but a fallacious pretext which does not meet the requirement of a “democratic society”. The expression “democratic society” places the burden on States imposing restrictions to demonstrate that the limitations do not harm the principles of “pluralism, tolerance and broadmindedness”.(17) Associations, whether domestic- or foreign-funded, should therefore be free to promote their views – even minority and dissenting views, challenge governments about their human rights record or campaign for democratic reforms, without being accused of treason and other defamatory terms. Dissenting views should be seen by the authorities as an opportunity for dialogue and mutual understanding. The European Court of Human Rights in affirming this principle ruled that “an organisation may campaign for a change in the legal and constitutional structures of the State if the means used to that end are in every respect legal and democratic and if the change proposed is itself compatible with fundamental democratic principles.”(18)
33. In addition to the fact that justification on the grounds of State sovereignty violates international norms and standards related to freedom of association, the Special Rapporteur is extremely concerned about increased denigration and unfounded accusations against individuals and organizations receiving foreign funding. Special procedures mechanisms have expressed their particular dismay about cases of vicious verbal attacks, intimidation, property damage, physical assaults and even criminalization against activists accused of having ties to a foreign entity, on the sole ground that they had allegedly received foreign funding (e.g. Azerbaijan, Uzbekistan). Allowing or inciting public discredit on individuals’ or organizations’ honour and reputation or inciting nationalist and xenophobic sentiment is likely to cause associations to engage in self-censorship and, more gravely, to incite hatred
and fuel further human rights violations.
34. Finally, the Special Rapporteur is concerned that in most cases, States which restrict or stigmatize foreign funding under the guise of preservation of sovereignty are also those which limit access to domestic funding or which subject associations to discriminatory treatment due to the thematic area they focus on. Where domestic funding is scarce or unduly restricted, it is critical for associations to be free to rely on foreign assistance in order to carry out their activities. The Special Rapporteur recalls again that “governments must allow access by NGOs to foreign funding as a part of international cooperation to which civil society is entitled, to the same extent as Governments”.(19) He believes that States must demonstrate a change in mentality by highlighting that funding associations contribute to the development of a flourishing, diversified and independent civil society, which is characteristic of a dynamic democracy.
13. CAT/C/ETH/CO/1, para. 34; CCPR/C/ETH/CO/1, para. 25
14. A/HRC/20/17 Add. 1 paras. 83-86; see also CEDAW/C/DZA/CO/3-4, para. 19.
15. See Audrey Chapman and Sage Russell (eds.), Core Obligations: Building a Framework for
Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002).
16. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht, 22-26 January 1997), para. 14 (d) and (e); see also the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986), para. 72.
17. European Court of Human Rights (ECtHR), Handyside v. the United Kingdom, application No. 5493/72, judgement of 7 December 1976, para. 49.
18. ECtHR, Zhechev v. Bulgaria, application No. 57045/00, judgement of 21 June 2007, para. 47.
19. A/59/401, para. 82.
Human Rights Council
Twenty third session
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association,