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Practical Aspects of Freedom of Association Azerbaijan Materials Baku Materials.Qxd 2003 baku_book.qxd 2003. 01. 21. 15:51 Page 5 A CKNOWLEDGMENTS Enabling Civil Society: Practical Aspects of Freedom of Association, A Source Book is a compila- tion of the work of many. It is a collection of writings that address issues critical to the growth and development of civil society and non-governmental organizations (NGOs), together with a selection of related laws, court decisions, and interpretive materials. It is the hope of the Public Interest Law Initiative (PILI) and the Open Society Institute–Assis- tance Foundation Azerbaijan (OSI-AF) that this volume can serve as a useful resource for NGOs and others in dealing with challenges undermining the growth and development of NGOs and the wider civil society. The Source Book grew out of a roundtable discussion in early 2002 organized by PILI and OSI-AF, with support from the Council of Europe. That meeting brought together over fifty NGO, government, and international participants in Baku, Azerbaijan, to discuss “The Development of Civil Society in Azerbaijan: Practical Aspects of Freedom of Asso- ciation.” The constructive discussion that occurred informed the preparation of the Source Book. We would like to thank the Council of Europe for its support of the meeting and more generally, acknowledge its very useful work on freedom of association issues in Azer- baijan. The Source Book has been prepared by Columbia University’s PILI in close cooperation with OSI-Azerbaijan. The effort was led by Edwin Rekosh, the Executive Director of PILI, with assistance from Patricia Armstrong and Jeremy McBride, consultants to PILI, and Linda S. Schmidt, a student at Columbia University School of Law. Farda Asadov, the Exec- utive Director, and Fuad Suleymanov, the Law Coordinator in the Civil Society Department, led the OSI-AF contribution. For their cooperation with this project and for their contributions to the Source Book, we would like to thank the International Center for Not-for-Profit Law, the Central Euro- pean and Eurasian Law Initiative of the American Bar Association, the Access Initiative, the Open Society Institute (New York), Oxfam-GB, and INTERIGHTS, as well as Sabit A. Bagirov, Alan Fowler, Annagi Hajiev, Mick Moore, and Sheelagh Stewart. We are grate- ful to them all. baku_book.qxd 2003. 01. 21. 15:51 Page 6 Finally, the Government of Azerbaijan participated in the discussions that led to the Source Book and we want to acknowledge its willingness to consider seriously greater open- ness for Azerbaijan’s third sector. Only with such openness can civil society and NGOs be full, engaged and constructive participants in development in Azerbaijan. PILI is grateful for the generous support for the Source Book by the Open Society Insti- tute, Budapest, and OSI-AF. baku_book.qxd 2003. 01. 21. 15:51 Page 1 I NTRODUCTION The development of civil society has been itive steps, the effective practice of freedom one of the hallmarks of the post-commu- of association has often not followed legal nist period. But the relationship between developments. Although legislation and civil society and government in this process international commitments provide a basis has often been difficult, particularly given a for the realization of guarantees, now it is history of government neglect and hin- important to focus on implementation and drance of civil society, and its innate suspi- enforcement of law to ensure that freedom cions about the objectives and intentions of of association is respected, protected, and an independent sector. At the heart of the fulfilled. existence of an active civil society is free- In many countries, non-governmental dom of association—the ability of citizens organizations (NGOs), a key part of civil to interact and organize with and among society, face obstacles in conducting even one another for any purposes that are not the most basic of affairs. Restrictions in illegal and do not infringe on the rights of acquiring legal personality, securing finan- others. Governments have an obligation to cial support, and operating independently allow citizens to exercise this right, be it for- are among the important factors limiting mally or informally, and to facilitate that their ability to make constructive contribu- exercise, with restrictions limited to those tions to national development and growth. needed to protect individual rights, public And suspicions and mutual distrust order, or public health, to ensure national between governments and NGOs have security, or to prevent criminal activity. resulted in the formulation of laws, policies, Associational rights require the conver- and procedures without the participation of gence of supportive laws, institutions, and the NGOs that are affected. (A description practices in order to find meaningful exer- of the foundations necessary for civic life cise. Over the last decade, many countries and effectiveness by Alan Fowler is con- have ratified international treaties, adopted tained in an accompanying sidebar.) new national laws, and undertaken institu- Ways must be found for government tional reforms. Notwithstanding these pos- and civil society to work together to imple- 1 baku_book.qxd 2003. 01. 21. 15:51 Page 2 ment legal commitments and thereby the reason for giving so much attention to enhance the ability of civil society to make civil society and NGOs, as well as the value positive contributions to economic and of a supportive environment that enables social development in the country. We hope their growth and development—including that Enabling Civil Society: Practical Aspects of such matters as tax policy, the internal Freedom of Association, A Source Book, can be NGO governance, transparency, and a resource in these efforts. Chapter 1, using accountability, and voluntary self-regula- Azerbaijan as a case study, identifies key tion. In chapter 5, excerpts of key interna- legal and practical challenges and obstacles tional laws and court decisions are provid- facing NGOs and their contributions to ed for further reference. economic, social, and political development While we hope that the Source Book will in a post-communist society. Chapter 2 out- be a useful resource for NGOs and gov- lines relevant international law, with a par- ernment officials alike, the development of ticular focus on European standards. Chap- civil society is fundamentally an issue for ter 3 highlights a number of key challenges each particular government and all of its to the full realization of freedom of asso- citizens. Solutions to existing problems and ciation, which also encompasses public challenges, whether due to failures in law or advocacy and freedom of expression; par- in practice, will be effective only if they are ticipation and access to information; and appropriate to local circumstances and the importance of the existence of an inde- developed by those who must live with pendent judiciary. Chapter 4 reminds us of them. ARCIN: THE FOUNDATIONS FOR CIVIC LIFE AND EFFECTIVENESS By Alan Fowler* The foundations for civic life and effectiveness of Civil Society Organisations (CSOs)– to whatever end— can be encapsulated in the following five terms. They can be regarded as nec- essary conditions for civic evolution, capacity, viability, and contribution or obstacle to devel- opment. 2 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 3 Association [A] Resource mobilisation [R] Communication [C] Information [I] Negotiation [N] Suggestions are made below for “boundary determining” questions related to each of these factors. Together, the answers establish the operational scenario from which enabling strate- gies can be considered. Where appropriate, answers can and should be posed, and disaggre- gated, in terms of member and third-party serving CSOs, gender, stratification by econom- ic status, and division by identity (caste, clan, ethnicity, religion, language, etc.). Factor A – Association: Is peoples’ associational life spontaneous and free both formally and informally? Or is it highly circumscribed and typically subject to political and security vet- ting or strong social control? High or Low “A”. How is associational life distributed over dif- ferent social groups? Are second and third order organisations to be found? For what groups and purposes? What is the source, or sources, of associational constraint: lack of political tol- erance and space, legal restrictions, administrative obstacles, costs, social norms? Who holds power over limiting conditions? Factor R - Resource mobilisation: Do people have the time, energy, materials, assets, financial surplus and mobilisation skills required for viable civic association and continuous creation of benefits? High or Low “R”. How reliant are CSOs on “external” — as opposed to self-generated and controlled—resources to continue to function? How autonomous is their resource base from government? What is the primary constraint: legal restrictions, lack of economic potential or disposable surplus, no cultural pre-disposition towards private phil- anthropy, inadequate financial infrastructure? Factor C - Communication: Is communication easy, free, intense and low cost or dif- ficult, restricted, and costly? High or Low “C”. How wide ranging can and do people com- municate and learn about the ‘necessities’ of others? How intense are urban-rural linkages for what purposes? What is the major constraint? Poor physical infrastructure making trav- el and access difficult, gender differentiated cultural restrictions limiting communication by and to women, technology
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