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The Rise, Spread, and Contagion of Restrictive Civil Society Laws in the World’S Strongest Democratic States

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The Rise, Spread, and Contagion of Restrictive Civil Society Laws in the World’S Strongest Democratic States ARTICLE THE COUNTER-ASSOCIATIONAL REVOLUTION: THE RISE, SPREAD, AND CONTAGION OF RESTRICTIVE CIVIL SOCIETY LAWS IN THE WORLD’S STRONGEST DEMOCRATIC STATES Chrystie F. Swiney∗ ABSTRACT In recent years, an increasing number of democratic states, including fully consolidated, long-standing democratic states, have adopted laws that impose new restrictions on the ability of civil society organizations (CSOs) to operate autonomous from government control, a phenomenon that is unsurprising in authoritarian contexts, but perplexing in democratic ones. This Article explores this curious phenomenon, often referred to as the closing space trend, which began in earnest at the turn of the 21st century, and has been gaining momentum and intensity ever since. This trend, which has caught the attention of political scientists, global civil society watchdogs, and scholars of non-governmental organizations (NGOs) has inexplicably gone unnoticed by legal scholars. Moreover, the non-legal scholars and watchdogs who track this phenomenon tend to focus exclusively on the most egregious examples from non-democratic (or weakly democratic) contexts, such as Russia, Egypt, and China. This Article, which falls at the intersection of comparative, international, and not- for-profit law, and draws on democratic theory, international relations ∗ Chrystie F. Swiney (JD/ PhD (ABD)) is an international lawyer, political scientist, and scholar of international law and international relations. She holds graduate degrees from Harvard Law School (JD), Oxford University (MPhil), and Georgetown (MA/ PhD (ABD)), where she is completing her dissertation on the spread of restrictive civil society laws in strong, consolidated democratic states. She also serves as a doctoral fellow at Georgetown, is the Principal Investigator on a joint project between Georgetown’s Law Center and the Global Parliament of Mayors, an international NGO, and is the lead author of Global Trends in NGO Law. Learn more about Chrystie, including her research and publications, at http://chrystieswiney.georgetown.domains/ [https://perma.cc/A2JH-7H48]. 399 400 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 43:2 scholarship, and studies of civil society-state relations, attempts to rectify this glaring gap in the legal literature, in addition to documenting an aspect of the broader closing space trend that, until now, has been neglected. It presents novel data and empirical research on all new legal restrictions adopted by the world’s strongest democratic states, which this Article carefully defines, from 1990 until 2018. Findings of this Article confirm that the closing space trend is, in fact, a global phenomenon, one that transcends geography, gross domestic product (GDP), development status, and most importantly, one that is not confined only to repressive, non-democratic regimes known for their distrust of civil society. ABSTRACT ..............................................................................399 I. INTRODUCTION ..........................................................401 II. RESTRICTIVE CIVIL SOCIETY LAWS .....................407 A. Types of Legal Restrictions on CSOs ......................407 B. Examples of Restrictive CSO Laws .........................408 1. Hungary ..............................................................408 2. India ...................................................................409 3. The United States ...............................................410 4. Poland ................................................................411 5. Australia .............................................................411 6. Italy ....................................................................412 7. Austria ................................................................413 III. THE ASSOCIATIONAL REVOLUTION .....................414 A. The End of the Cold War, Democracy’s Victory, and the Rise of CSOs ......................................................414 B. CSOs’ Rising Global Influence, Visibility and Spread .......................................................................416 1. At the Domestic Level .......................................416 2. At the International Level ..................................417 C. CSOs, Revolutions, Protests, & Mass Uprisings .....419 D. The Law of Coercive Responsiveness .....................421 IV. THE COUNTER-ASSOCIATIONAL REVOLUTION 422 A. Identification of A Global Problem ..........................423 1. The International Center for Not-for-Profit Law ....................................................................424 2019] COUNTER-ASSOCIATIONAL REVOLUTION 401 2. Civicus ...............................................................425 B. Existing Explanations Fail to Explain Adoptions by Democratic States .....................................................427 V. KEY DEFINITIONS & DISTINCTIONS .....................428 A. Strong Democratic State...........................................428 B. Restrictive CSO Law ................................................430 C. Civil Society Organization .......................................434 VI. FINDINGS: THE SPREAD OF RESTRICTIVE CSO LAWS IN STRONG DEMOCRATIC STATES ...........436 VII. WHY DOES IT MATTER THAT NON- GOVERNMENTAL ORGANIZATIONS REMAIN NON-GOVERNMENTAL? ...........................................444 A. International Human Rights Law, The Freedom of Association & Democratic Theory ...........................445 B. The Connection between CSOs’ Autonomy and Democracy ...............................................................447 VIII. CONCLUSIONS AND IMPLICATIONS .....................452 I. INTRODUCTION Civil society, an amorphous term defined in numerous ways, is primarily composed of organizations established voluntarily by coalitions of individuals to advance certain shared interests, or to address common concerns, which can include virtually anything with the exception of profit-making.1 Civil society organizations (CSOs), the so-called third sector wedged between the state and the market, include advocacy organizations, student groups, cultural and sports clubs, social movements, community associations, philanthropic foundations, religious organizations, professional associations, labor unions, chambers of commerce, and informal voluntary groups, among 2 others. They include Human Rights Watch, Doctors without Borders, 1. See U.S. DEPARTMENT OF STATE, NON-GOVERNMENTAL ORGANIZATIONS (NGOS) IN THE UNITED STATES (2017); see JONAS WOLFF & ANNIKA E. POPPE, PEACE RESEARCH INSTITUTE FRANKFURT, FROM CLOSING SPACE TO CONTESTED SPACES: RE-ASSESSING CURRENT CONFLICTS OVER INTERNATIONAL CIVIL SOCIETY SUPPORT 5 (2015); see generally FERGUSON, supra note 1. 2. Civil Society Organizations (“CSOs”) and Non-Governmental Organizations (“NGOs”) are often used synonymously or interchangeably. However, CSO is a broader, umbrella term, while NGO is more specific: it is just one type among many types of CSOs. This Article’s research intends to focus on this broader category of not-for-profit groups that lie 402 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 43:2 Parent-Teacher Associations, and community babysitting clubs, in addition to the Ku Klux Klan, the Alt-Right, and the United Aryan Front.3 Perhaps the only thing that unites this disparate array of organizations is what they are not: they are non-governmental and not- for-profit.4 Though their work often overlaps with the state and the market, and their collaboration with both sectors is typical, their autonomy from both spheres, particularly the state, is what makes CSOs distinct.5 Yet, in an increasing number of countries around the globe, representing all regime types, in all regions, with all levels of economic and military strength, civil society’s autonomy from the state is being slowly chipped, and in some cases entirely stripped, away.6 While this erosion of civil society’s autonomy is accomplished in a variety of ways, many of which are illegal and extralegal in nature, including assaults, murders, stigmatization campaigns, and bureaucratic harassment, an increasingly popular tool used by government actors to restrict CSOs’ independence is the law. Through the passage of legislation that imposes new restrictions on the ability of CSOs to outside both the government and corporate sectors; as such `the Author has chosen to use the term CSO. 3. See Thomas Carothers, Civil Society: Think Again, FOREIGN POL’Y, 18, 19-20 (2000). 4. See Audie Klotz, Transnational Activism and Global Transformations: The Anti- Apartheid and Abolitionist Experiences, 8 EUR. J. INT’L REL. 49, 50 (2002); RISSE-KAPPEN, THOMAS, ED. BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS, DOMESTIC STRUCTURES AND INTERNATIONAL INSTITUTIONS 3 (1995). 5. See generally EDUARDO SZAZI, NGOS: LEGITIMATE SUBJECTS OF INTERNATIONAL LAW (2012); INT’L CTR. FOR NOT-FOR-PROFIT LAW & WORLD MOVEMENT FOR DEMOCRACY SECRETARIAT AT THE NAT’L ENDOWMENT FOR DEMOCRACY, DEFENDING CIVIL SOCIETY REPORT n.1 (2012). 6. See GODFREY MUSILA, FREEDOM HOUSE, FREEDOM UNDER THREAT: THE SPREAD OF ANTI-NGO MEASURES IN AFRICA 9 (2019); ANDREW CUNNINGHAM & STEVE TIBBET, INT’L COUNCIL OF VOLUNTARY AGENCIES, SCOPING STUDY ON CIVIL SOCIETY SPACE HUMANITARIAN ACTION 1 (2018); KENDRA DUPUY ET AL., NONPROFIT AND VOLUNTARY SECTOR QUARTERLY, DO DONORS REDUCE BILATERAL AID TO COUNTRIES WITH RESTRICTIVE NGO LAWS? A PANEL STUDY, 1993-2012 100 (2017) [hereinafter DUPUY et al., PANEL STUDY]; 84 KENDRA DUPUY ET AL., WORLD DEVELOPMENT, HANDS OFF MY REGIME! GOV’T’S RESTRICTIONS ON FOREIGN
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