Áreas de oportunidad

Some of the enabling legal conditions for the formation of CSOs are thus the constitutional guarantee for freedom of association; the right to choose the form of incorporation including informal existence; undemanding, clear and non – discriminatory requirements of formation of CSOs and their coalition.

Constitutional Guarantee for the freedom of association

The first basic issue relating to the legal treatment of civil society organisations in the country involves not the specific laws governing CSOsbut the broader legal context

12_{International Center for Non-Profit-Law (ICNL) and World Movement for Democracy, Defending}

Civil Society (ICNL 2008); for detail discussion on the global trend of governments limiting CSOs formation, operational activity and financial resource, See generally the ‘The Legal and Regulatory Framework for Civil Society: Global trend in 2012-13’ Global Trend in NGO Law, ICNL <

http://www.icnl.org/research/trends/Global%20Trends%20in%20NGO%20Law%20Final%20October %2016.pdf > accessed 10 February 2015.

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within which the legal treatment of CSOs is rooted. The law may put the underlying enabling condition for CSOs by providing a constitutional guarantee to the freedom of association. With the constitutional guarantee for the freedom of association, due process of the law requires that any other subordinate laws, policies or government decisions will necessarily comply with the freedom to associate.

Freedom of association in principle is the right to form new association and/or to join existing associations with the purpose of pursuing a particular rights and interests.13 Such freedom to associate ensures individuals to interact and organize among themselves; and to collectively express, promote, pursue and defend common interests. The essence of freedom of association indeed lies in the fact of accession which characteristically enable the association achieve goals which an individual would not be able to attain single-handedly, or at least not effectively; as associations offer solidarity, safety and identity. More and more the individual, in order to realize his own capacities or to stand up to the institutionalized forces that surround him, has found it imperative to join with others of like mind in pursuit of common objectives.14 This is particularly true for CSOs that promote democracy because at least in pluralist model of democracy interest groups play an essential role by filling gaps left by political parties and thus availing adequate representation for the full range of diverse interests that influence the public governance.15

Freedom of association guarantees ‘everyone’ (natural or legal) to form and join association.16 Underscoring the universality of the freedom of association, the international and regional treatises including the ICCPR, and International Convention on the Elimination of All Forms of Racial Discrimination specifically stipulate provisos that ensure freedom of association to everyone without distinction of any kind as race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, birth or other status.17 _{Such safeguards oblige governments to}

13 _{ICCPR, Article 22; ECHR, Article 11}

14 _{Thomas Emerson, ‘"Freedom of Association and Freedom of Expression”’ (1964) Faculty}

Scholarship Series. Paper 2797, 1 <http://digitalcommons.law.yale.edu/fss_papers/2797. Accessed 14 April 2015

15 _{Manfred Nowak, , ‘U.N. Covenant on Civil and Political Rights: ICCPR Commentary’(2005) Engle,} 385

16 _{ICCPR, Article 22(1); ECHR, Article 11.}

17 _{The right to freedom of association is a fundamental human right guaranteed by many of the major} international and regional legal instruments without any discrimination. See, The Convention on the

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recognize and to take all appropriate measures as to enable ‘everyone’ to enjoy their freedom of association. Thus, firstly, an enabling law as a matter of principle should guarantee the enjoyment of freedom of association to all individuals without distinction of any kind. 18

Where the rights of individuals to form and to join associations are explicitly guaranteed in the supreme law of a nation, it obliges governments to recognize and to take all the appropriate measures as to enable the formation of CSOs. Such measure will reduce the ‘transaction cost’19 _{of incorporating CSOs as it offers organisations}

and their members a constitutional shield against any form of interference except on certain compelling legally prescribed grounds, necessary in a democratic society to protect the rights and safety of the state and the public.

Thus, where the freedom of association for a lawful purpose is constitutionally guaranteed and enforced, it likely prompts persons who are interested to promote a particular private or public purpose, including the promotion of human rights and democracy, to come forward and form CSOs. Thus the legal recognition and protection for the freedom to associate could allow a much broader range of associations to flourish. On the other hand, where individuals’ right to form associations are not guaranteed or are highly restricted, it is highly likely that people will be discouraged to form CSOs. The central issue at the heart of an enabling law is therefore the constitutional recognition of the freedom of association, not as a privilege that the government can give or take away at it pleases, but as a fundamental right.

Elimination of All forms of Discrimination against Women (1989), Article 7; Convention on the Rights of the Child (1990), Article 15; UN Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declarations on Human Rights Defenders), (1998) Article 5; The International Covenant on Economic, Social and Cultural Rights (UN, 1966), Article 15; ICCPR, Article 22(1); ECHR, Article 11 18 _{The major international legal instruments protects guarantees freedom of associations to different} sections of the society. See, The Indigenous and Tribal Peoples Convention (ILO Convention No. 169) (1989), Article 6; The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN, 1990), Articles 26, 36 and 40; The Framework Convention for the Protection of National Minorities (UN, 1995), - Articles 3, 7, 8, 15, 17 and 18; The Convention on the Participation of Foreigners in Public Life at Local Level (CoE, 1992), Articles 3 and 4; The Convention on the Rights of Persons with Disabilities (UN, 2006), Article 29; The Convention relating to the Status of Refugees (UN, 1950), Article 15; The Convention relating to the Status of Stateless Persons (UN, 1960), Article 15

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The right to choose the form of incorporation

The most important aspect of the right to freedom of association is the ability to create a legal entity in order to act collectively in a field of mutual interest, since ‘without the right to form, the freedom of association would have no practical meaning.’20 Thus, at the most basic level a law must allow the formation and incorporation of diverse types of CSOs. Generally, the public benefit CSOs that are outward looking, and membership CSOs that are more representative could have a greater potential to influence the democratization process. Yet the flourishing of different types of CSOs irrespective of their membership size or benefit orientation could help for the democratization process by representing different interests and enhancing civic virtues and civic skills.

An enabling law therefore allows CSOs to be incorporated either as formal or informal; membership or non-membership; public benefit or private benefit organisation; network organisation etc. Depending on their purposes of formation and resource capability, they can also be constituted either at the grassroots, district, local, national, regional or international level.

Formation of CSO coalitions

Besides the rights of individuals to form and to join CSOs, an enabling law also permits and facilitates the formation of a coalition or network of CSOs who wish to join hands to pursue or defend common objectives. The formation of coalitions or networks will help CSOs to share resources and experiences and join more hands for the accomplishment of a common goal. In addition to the collaboration and horizontal learning among themselves, the formation of coalitions of CSOs is also particularly important for the democratization process since the joining of hands of different organisations can help them to become stronger, gain more voice and create a strong pressure group. Thus the law can create enabling legal conditions for the formation of CSOs by allowing diverse forms of incorporation including the formation of coalition or network of CSOs.

Undemanding, Clear and Non –discriminatory formation requirements

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In addition to allowing different forms of incorporation, the law may also facilitate the formation of CSOs by putting undemanding and non-discriminatory minimum requirements. The legal prerequisites for establishing a CSO should be limited to minimum conditions that are necessary for the legitimate exercising of the fundamental freedom of association. Thus for instance the law should not be onerous on the number of persons required to form CSOs as it would discourage the formation of CSOs. From the perspective of individuals’ rights to form associations, it can be argued that at least theoretically the minimum number of persons to form associations is two. Neither should it be cumbersome on the value of material resources required to establish endowments and trusts as it would otherwise deter the formation of CSOs. Furthermore, an enabling law demands that states must refrain from restricting formation of association (freedoms of association) through vague, imprecise and overly broad regulatory language.21

An enabling law does not either discriminate on who can form CSOs and on the conditions of formation. The freedom of association entails that all persons should be entitled to form and to join CSOs without any discrimination whatsoever as to sex, political or other opinion, ethnic or social origin, language, religion etc.22 However, a case that is often in contest is that of foreigners, particularly in pursuing purposes such as democratization. Although the engagement of foreigners in democratization can be seen as interventionist in terms of the elements of internal sovereignty, nonetheless coalitions formed among foreign and domestic CSOs could be particularly relevant for democratization for two reasons. First, in terms of funding advocacy groups within countries where local funding is deficient, foreign CSOs might strengthen the local

21 _{The International Centre for Not-for-Profit Law and World Movement for Democracy Secretariat at} the National Endowment for Democracy, Defending Civil Society: A Report of the World Movement for Democracy (World Movement for Democracy and ICNL 2008) 4.

22 _{International standards also indicate that the freedom of association is given for ‘every person’} notwithstanding any discrimination whatsoever. Underscoring the universality of the freedom of association, the international and regional treatises including the ICCPR and International Convention on the Elimination of All Forms of Racial Discrimination specifically stipulate provisos that ensure freedom of association to everyone without distinction of any kind as race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, birth or other status. See also, The Convention on the Elimination of All forms of Discrimination against Women (1989), Article 7; Convention on the Rights of the Child (1990), Article 15; UN Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declarations on Human Rights Defenders), (1998) Article 5; The International Covenant on Economic, Social and Cultural Rights (UN, 1966), Article 15; ICCPR, Article 22 (1); ECHR, Article 11.

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resource pool. Secondly, because internal advocates of democratization are so vulnerable, mutually beneficial networks of local and foreign CSOs would allow actors and institutions across borders to cooperate directly and work collaboratively.23 Moreover the rights of individuals to form associations with a person of their own choice should be extended to include foreigners as long as the purpose their association is lawful and remain within the legal bounds.