On March 16, 2022, a virtual side event, Respect, Protect and Fulfil: Guaranteeing Access to Resources as a State Responsibility, was held at the UN Human Rights Council 49th Session. The event focused on how “Restrictions on access to resources have a debilitating impact on civil society, and inevitably on the promotion and protection of human rights, humanitarian response, and development. Given the wide and cross-cutting nature of such practice, [speakers discussed] how such restrictions are implemented, identifying commonalities and differences, and making recommendations to address these challenges.” This follows a call for input from the UN Special Rapporteur on freedom of peaceful assembly and of association, Clément Voule, who will present a report to the UN General Assembly (UNGA) on this topic. The Charity & Security Network’s submission noted the impact of sanctions, bank derisking, and lack of adequate access to the international financial system for civil society organizations, as well as donor restrictions that impede flow of aid funds and harm program implementation.
The event was co-sponsored by the Asian Forum for Human Rights and Development (FORUM-ASIA), ARTICLE19, the International Center for Not-for-Profit Law (ICNL), the European Center for Not-for-Profit Law, the World Movement for Democracy, and CIVICUS, and was moderated by Susan Wilding, Head of Geneva Office, CIVICUS.
Below are the Charity & Security Network’s key takeaways.
Access to resources is not a privilege
Clément Voule, Special Rapporteur on freedom of peaceful assembly and of association, noted that access to resources is not a privilege, but is intended to build a society that supports the communities experiencing marginalization, and that civil society organizations (CSOs) play an important role in doing so. “Countries need to understand if we don’t allow civil society to function and [receive] funding, we can’t achieve the 2030 Agenda and we can’t ‘Build Back Better’ after COVID. The right to participate is important and civil society is a main part of this.”
Transparent, not targeted: civil society needs appropriate mechanisms
Appropriate mechanisms are one of the most fundamental asks civil society is making, noted Anjali Bharadwaj, social activist and founder of organization Satark Nagrik Sangathan (SNS) – India. “[Civil society] wants to be transparent, but they cannot be targeted.” She recommended that civil society regulation be conducted by an independent operator, separate from government regulation, that can enable civil society to operate without fear. Ms. Bharadwaj stated that in addition to civil society, “government actions have to be transparent” referring to political parties in India being able to receive foreign funding, while Draconian laws, such as the country’s Foreign Contribution (Regulation) Act, constrict civil society within India from receiving foreign funding. “We’re proud to be the world’s largest democracy, so we can’t function like this.”
Civil society operations in authoritarian regimes
Mónica López Baltodano, Director of Popol Na and member of Articulation of Social Movements (AMS) – Nicaragua, discussed the need for all actors operating in this space to understand the challenges CSOs and civilians face when operating under authoritarian regimes. Civil society in Nicaragua is facing restrictions due to legislation, like the Foreign Agent Law, which targets CSOs, individuals, and businesses that receive foreign funding, and requires them to provide an unreasonable amount of information. This has led to unjustified closures and criminalization of CSOs. “In Nicaragua, mining companies have more rights than individuals and organizations.” Despite these challenges, “CSOs continue to operate in the country even against the restrictive legal backdrop.” Ms. Baltodano emphasized the importance of the international community in supporting CSOs and civilians living under authoritarian regimes, particularly in contexts of closing civic space and closing space for independent media.
Humanitarian aid and sanctions and derisking, oh my!
Jeremy Rempel, Head of Humanitarian Financing, International Council of Voluntary Agencies (ICVA) highlighted the importance of the humanitarian imperative and that sanctions create challenges for humanitarian action. He shared that geographic areas deemed to have terrorists makes humanitarian access completely challenging. There are also indirect challenges that arise due to sanctions, such as cases where there are no direct restrictions imposed, but ambiguity in how sanctions are applied leads banks to perceive risk, and thus unintended consequences like derisking occur. Mr. Rempel stated that local CSOs are particularly at risk for financial access restrictions. “The most vulnerable populations in crisis suffer the most from restrictions like sanctions. CSOs that are set up to help are most restricted.” He recognized that CSOs are willing and able to implement accountability measures. His recommendations included reducing both unintended and intentional ambiguities, building out humanitarian exemptions in sanctions regimes for CSOs to operate, donor states modeling correct behavior, and providing clear guidance to banks and financial institutions to avoid derisking.
Civil society and the myth of under regulation
Otto Saki, Global Program Officer, Civic Engagement and Government, Ford Foundation, discussed civil society’s extensive transparency, regulatory, and compliance measures. “There is a danger of over regulation under the myth that there is under regulation and oversight of civil society. There is also a myth that civil society is unaccountable; most recipients of foreign funding are audited and receive funding through formal channels.” He noted the primacy of the United States dollar (USD) in cross-border regulations means that the U.S. has responsibility in this regard. Mr. Saki also pointed to the emergence of new types of finance, like cryptocurrency, creating an immediate need to carve out laws for this type of money exchange and to understand the risks.
The Financial Action Task Force (FATF) and the case of Pakistan
Karen Janjua, Community World Service Asia (CWSA) – Pakistan, spoke to vague and abstract FATF guidance having a detrimental effect on CSOs in Pakistan. After Pakistan’s most recent Mutual Evaluation, conducted in October 2018, the country’s National Counter Terrorism Authority (NACTA) was tasked with writing new legislation. Operating under vague and abstract FATF guidance, the security sector’s investigations of CSOs turned to harassment. This led to 65,000 – 110,000 Pakistani CSOs’ registrations being shut down. These CSOs had to re-register, forcing many to leave the country. “There were no gains, just lots of disruption.” An office was eventually established for CSOs to receive free registration support. Likewise, security, tax, and government actors were left to ensure Pakistan is removed from the FATF Grey List, without receiving support on how to go about this. To avoid such disruptions in the future, “FATF training centers should offer in-country process consultations for countries to identify their training needs before their Mutual Evaluations. CSOs should use collective action to approach countries and help with the evaluation of Recommendation 8, which has been done in Tunisia and Indonesia with success.”