By
Monika Mehta*
In an increasingly disturbing
global trend, governments are creating legal barriers for civil society to
access resources, particularly foreign funding.
For example, recently enacted registration laws have designated non-governmental
organizations (NGOs) receiving foreign funding as “foreign agents” or similar
terms that undermine the organization’s perceived legitimacy or independence,
others have limited the total amount of their funding which can come from
foreign sources. In most cases from the way these laws have been used, these
laws are violating citizens’ right to freedom of association. The human rights community has been reactive
in its response to government crackdowns on civil society, which has led to the
ratification of such laws as Russia’s Foreign Agents Law and India’s Foreign
Contribution Regulation Act. Now that
these laws are trending around the world, the question becomes, why have they
not been more holistically challenged in court?
The implications are enormous,
and yet very few civil society groups have challenged these sorts of laws in
their domestic court, or in regional human rights courts. It seems that the growth of such legislation
can only be stopped by strong jurisprudence in favor of the right to freedom of
association. Herein lies one of the main
problems, there is very little jurisprudence from domestic, regional, or
international bodies that definitely states that the right to freedom of
association includes the right to access resources, particularly foreign
funding. The U.N. Special Rapporteur on the right to freedom of association and
assembly, Maina Kiai, has stated in his
report that freedom of association does include a right to access foreign
resources. Many international human
rights organizations have come to the same conclusion.
Most recently, the American Bar
Association Center for Human Rights wrote
a white
paper arguing that there is enough basis in international law and standards
to conclude that the right to freedom of association includes a right to access
resources, particularly foreign funding. Thus, any attempt to restrict this
right may only be permitted where the government can show that a proposed restriction on fundamental
association rights is sufficiently limited and necessary to justify the
infringement. An overly broad,
vaguely worded law, without a clearly stated and identified reason to restrict
access to funding for NGOs would likely be found to be incompatible with the
protection and enforcement of the right to freedom of association.
As more NGOs challenge these
laws in regional and domestic courts, governments will no longer be able to use
legal barriers to hinder, dissolve, or restrict NGOs. Laws should not be used to infringe on
fundamental rights, and when it is attempted, governments must justify that
infringement under the international and constitutional frameworks of their
country or amend the laws to comply with their obligations.
*International Human Rights
Attorney
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