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