The April 2013 UN Report of the Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, highlights concerns about laws and regulations that quash freedom of assembly and association around the world. The report focuses on access to financial resources for civil society groups, which is often restricted under the guise of countering terrorism, and the right to hold peaceful assemblies. After reviewing international legal framework protecting these rights, he notes that restrictions must pass a “proportionality and necessity” test, to ensure that laws and regulations are not overbroad and do not arbitrarily restrict civil society. Counterterrorism justifications and the Financial Action Task Force are given close scrutiny.
The right of association
Regarding the ability of associations to access financial resources, Kiai said “The right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources…from domestic, foreign, and international sources.” Counterterrorism laws are “one of the most common measures used by government to limit access to funding…” he said. While states do have an interest in protecting public safety, Kiai argues that “The onus is on the Government to prove” that restricting the rights of a civil society organization will promote security.
One example highlighted by the report is of the Financial Action Task Force’s Recommendation 8, which calls on governments around the world to craft laws that ensure civil society organizations are not abused for the financing of terrorism. Kiai, however, points out that “very few, if any instances of terrorism financing have been detected as a result of CSO-specific supervisory measures.” He also criticized the FATF recommendation because it “fails to provide for specific measures to protect the civil society sector from undue restrictions to their right to freedom of association…”
These restrictions on civil society run counter to their intended goals of preventing terrorism. According to Kiai, bolstering civil society, rather than restricting it, is a more effective means to combat terrorism. He states:
“…civil society organizations play a significant role in combatting terrorism. By their direct connections with the population and their prodigious work in, inter alia, poverty reduction, peacebuilding, humanitarian assistance, human rights, and social justice, including in politically complex environments, civil society plays a crucial role against the threat of terrorism.”
The report raises the issues of “sectoral equity,” noting that “commercial companies and other entities have been abused for terrorist purposes” and calling on states “to avoid measures that disproportionately target or burden civil society organizations, such as imposing onerous vetting rules, procedures of other CSO-specific requirements not applied to the corporate sector at large.”
Kiai notes that unregistered associations have protection under international human rights standards and “are eligible to access funding.” He notes that the International Covenant on Civil and Political Rights makes no distinction between registered and unregistered associations.
The justification for restrictions on civil society are limited those which the Covenant’s article 22, paragraph 2 describes as “prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Kiai warns that these are subject to a proportionality and necessity test, and “restrictive measures must be the least intrusive means to achieve the desired objective…” (emphasis added)
He notes that while transparency and accountability regulations for civil society can be a legitimate interest of government, they “must be the least intrusive means to achieve the desired objective.” In some cases, he notes, transparency and accountability justifications have “been used to exert extensive scrutiny over the internal affairs of associations as a way of intimidation and harassment.”
The right of assembly
The report goes into detail on the need to protect the right to hold peaceful assemblies. It notes that the ability to hold such events “is of the utmost important to the work of civil society actors.” The International Covenant on Civil and Political Affairs, article 25, recognizes the right to take part in public affairs, and Kiai says “in far too many instances, the ability to hold peaceful assemblies has been denied or restricted by authorities in violation of international human rights norms and standards.”
After arguing that the presumption should be in favor of hold peaceful assemblies, and providing a safe and enabling environment for it, Kiai recommends that simple and clear notification procedures govern regulation of assemblies, that they be allowed access to public spaces, that Internet access be protected and that when restrictions are necessary, reasonable alternatives be provided.