A/HRC/23/39
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
14
15
16
10
A/HRC/20/17 Add. 1 paras. 83-86; see also CEDAW/C/DZA/CO/3-4, para. 19.
See Audrey Chapman and Sage Russell (eds.), Core Obligations: Building a Framework for
Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002).
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.
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