The existence of civil and non-governmental organisations in Latin America is being threatened. Freedom of association is a human right, and according to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms: ‘States have the primary responsibility and duty to protect, promote and give effect to all human rights and fundamental freedoms’, and guarantee ‘that every person subject to its jurisdiction, individually or collectively, can enjoy in the practice of all those rights and freedoms’. Likewise, this Declaration recognises that all people, individually or collectively, play some role in the realisation of human rights, campaigning for them and defending them, sharing information, holding the powerful accountable and demanding justice, equality, dignity and freedom. Human rights cannot be made effective without a conducive, safe and open space for civil society, free of excessive state controls, interference and discrimination.
Moreover, the Declaration on Human Rights Defenders grants special recognition to those who work, individually or collectively, for the realisation of human rights and for the right to all people to form organisations, associations or non-governmental groups and to join or participate in them as a fundamental pillar of the international human rights system. This declaration, adopted in 1998, represented a:
Paradigm shift, as it is addressed not just to States and to human rights defenders, but to everyone. It emphasizes that there is a global human rights movement that involves us all and that we all have a role to fulfil in making human rights a reality for all.
Civil society organisations play an essential role in the promotion and protection of human rights and constitute a tool that allow people to work for the elimination of human rights violations and hold those responsible accountable. Enshrined in the main human rights instruments, the right to freedom of association allows people to create formal or informal groups and join them to undertake collective action towards a common goal.
The cited Declaration on Human Rights Defenders describes in particular the rights of every person, individually or collectively, to form organisations, associations or groups of civil society, and to join or participate in them to promote or defend human rights, all of which is a key component of the right of association. Likewise, it expresses the importance of civil society organisations to have the capacity to freely exercise the rights of association and expression, through activities such as gathering, obtaining and disseminating ideas and information; advocating for human rights; participating in government and the management of public affairs; accessing and communicating with international human rights organisations; and presenting proposals on reforms, policies and legislation at local, national and international levels.
Right to raise funds
For this to be possible, states must provide an adequate legal framework for the establishment of groups and organisations and ensure an environment in which they can carry out their work without state or third-party interference, which includes the right to receive funding.
The right to seek, receive and use resources from national, foreign and international sources is an essential element of the right to freedom of association. The UN Human Rights Council has emphasised the importance of safeguarding the ability of civil society organisations to raise funds and has urged states not to criminalise or de-legitimise advocacy activities of human rights because of its funding sources.
Similarly, the UN Special Rapporteur on the situation of human rights defenders has stressed the importance of safeguarding the ability of NGOs to raise funds, that the right to access funding is protected in major international and regional human rights treaties, and that the Declaration explicitly recognises the right to access funding as a self-standing substantive right under Article 13:
Everyone 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 means, in accordance with article 3 of the present Declaration.
Furthermore, Article 2 of the International Covenant on Human Rights Economic, Social and Cultural (ICESCR) requires signatory states to adopt measures, resorting, among other means, to ‘international assistance and cooperation, especially economic and technical’ until reaching full effectiveness of the rights recognised by the Covenant. This includes financially assisting civil society organisations whose activities aim at the full realisation of these rights.
States must also ensure that administrative requirements do not limit the exercise of the right to freedom of association by subjecting organisations to excessive scrutiny or imposing onerous and bureaucratic reporting requirements. In particular, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that, although independent bodies have the right to examine associations’ files as a transparency and accountability mechanism, this procedure cannot be arbitrary and must be applied in accordance with the principle of non-discrimination and right to privacy, otherwise associations’ independence and safety of their members would be put at risk.
Civil society organisations have the right to obtain financing without undue state interference. According to the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, all associations, whether registered or not, must enjoy the right to collect and obtain financing from national, foreign and international entities, including individuals, companies, civil society organisations, governments and international organisations.
However, organisations’ sources of income have been reduced and many countries in Latin America have imposed controls and stricter restrictions to access resources. Furthermore, several countries in Latin America have imposed illegitimate restrictions on organisations that receive funds from abroad, and many have been forced to close. For instance, the process of closing civic space in Nicaragua through the gradual and sustained implementation of a repressive state strategy includes a series of patterns such as the criminalization of people considered to be opponents of the government, the arbitrary deprivation of nationality, the prohibition of protests and social demonstrations, measures to dismantle social movements and media outlets, and the selective persecution of anyone who questions the government in any area of civic, social, and even religious participation.
Restrictive laws
In Paraguay, Congress is currently trying to pass a bill which establishes the control, transparency and accountability of non-profit organisations. Under the premise of promoting control, measures are being introduced which would seriously affect the right to freedom of association, hinder access to financing and generate an excessively bureaucratic and punitive regulatory framework for the various institutions.
This draft law, if approved, will negatively impact the right to freedom of association, violating international conventions such as the ICCPR (Article 22) and the American Convention on Human Rights (Article 16), ratified by Paraguay.
It is worth highlighting some concerning aspects about this draft law:
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- Contradiction to legal and constitutional norms: the law violates the right to the inviolability of private communication, freedom of association and basic principles of administrative law.
- Confiscatory measures: the law seeks for the state to appropriate private resources from civil and non-governmental organisations, centralising their administration in the Ministry of Economy and Finance, thus attacking their autonomy and independence.
- Disproportionate sanctions: these are excessive and indefinite for natural and legal persons linked to civil and non-governmental organisations, applicable to anyone who has a supervisory role or who conducts the internal administration of civil or non-governmental organisations, as well as to any legal person, organism, entity or natural person. They seek to establish fines of up to one thousand minimum wages, suspensions and even dissolution, without due process or legal guarantees.
- Excessive state control: the law imposes excessive and onerous information requirements, hindering the management and access to financing of civil and non-governmental organisations. Mandatory registration is established in the Ministry of Economy and Finance without clear procedures, opening the door to discretion and arbitrary restrictions.
Laws such as this one are being implemented throughout the region, which violate fundamental rights and hinder the work of the civil sector. States with similar or worse conditions are Perú, Venezuela, El Salvador, and Nicaragua, where civil and non-governmental organisations are not only being threatened or their resources being denied or hindered, but in extreme cases such as Nicaragua and Venezuela, they are being completely shut down by the governments.
Resistance necessary
Let us not forget that all of the advancements made in the realm of human rights in Latin America are due in large part to volunteers and workers of multiple organisations who have risked their own lives to defend a greater cause. If we let governments get away with this, our rights and ability to defend and fight for them will be inevitably taken away from us.
This week we are delighted to publish a new post by Sara Cristina Benítez-Mongelós, the blog’s regional correspondent for Latin America. You can read her previous posts here and here.
The GCHRP Editorial Team
