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| 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,
Maina Kiai
