Limitations to Freedom of Association of Civil Society Organizations in Latin America Limitations to Freedom of Association of Civil Society Organizations in Latin America: Comparative view and special case study of Nicaragua, Bolivia, Ecuador, Cuba and Venezuela Dr. Carlos Eduardo Ponce Silén Copyright © 2010 by Carlos E Ponce TXU001718976 1 Limitations to Freedom of Association of Civil Society Organizations in Latin America Contents Summary 3 Introduction 4 Part I: Freedom of Association, Civil Society and Common Restrictions in Alba Countries 8 Part II: Comparative Civil Society Regulation in Latin America 27 Part III: Techniques applied by NGOs in restrictive scenarios to improve their work and become effective against the backlash 32 Conclusions 44 Annex I: Common Trends in the Alba Countries 46 Annex II: Civil Society regulations comparative chart 59 About the Author 81 2 Limitations to Freedom of Association of Civil Society Organizations in Latin America Limitations to Freedom of Association of Civil Society Organizations in Latin America: Comparative view and special case study of Nicaragua, Bolivia, Ecuador, Cuba and Venezuela “Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.” i Summary Freedom of association is not a matter of good will or special concession from any government; it is a duty. Freedom of association is a fundamental human right embodied in labor movements, freedom of expression, democracy, and among other international instruments ratified by the States. It is an obligation of governments to respect freedom of association and avoid any threats to civil society organizations or activists. An ongoing backlash against democracy was found in several Latin American countries. Backlash against democracy is the current tendency in several countries that achieved some level of democracy to go backward and dismantle democratic institutions, create their own version of rule of law, limit liberties and attempt against human rights. Traditional and new by authoritarian leaders around the world have recently started to crack down on democracy- promotion efforts in their countries. This included direct and more subtle efforts by governments to restrict the right of association and the space of civil society organizations, activists, and interest groups. I have been developing a study which included a view of some trends in authoritarian countries in Latin America against CSOs, current limitations on CSOs or NGOs to operate, international legislation that protects civil society, and some guidelines and recommendations for NGOs and activists to improve their work, even in this restrictive environment. Some of the information for this report came from the excellent research from direct interviews to civil society leaders in the region and the extensive and excellent research from World Movement for Democracy and the International Center for Not-for-Profit Law (ICNL). 1 This study took into account only the “worst” countries in terms of the number and kinds of restrictions placed against CSOs and other activists; the countries of Alba, or the Bolivarian Alliance of the Americas, a group founded by Venezuela that includes Nicaragua, Bolivia, Cuba, Ecuador, and Venezuela. 1 The International Center for Not-for-Profit Law (“ICNL”) has identified a “growing regulatory backlash against civil society organizations in many parts of the world.” ICNL, one of the main organization whose role is defend civil society, notes that, particularly in Latin America, the Middle East, the former Soviet Union and Africa, not-for-profit organizations have encountered a range of obstacles including the outright seizure of assets and facilities, dissolution, de-licensing, restrictions or bans on the use of foreign funding and intimidation. 3 Limitations to Freedom of Association of Civil Society Organizations in Latin America Introduction Freedom of association is not a matter of good will or special concession from any government; it is a duty. Freedom of association is a fundamental human right embodied in labor movements, freedom of expression, democracy, and among other international instruments ratified by the States. It is an obligation of governments to respect freedom of association and avoid any threats to civil society organizations or activists. The Declaration on Human Rights Defenders 2 guarantees that everyone has the right to meet peacefully; to form, join, and participate in non-governmental organizations, associations, and groups; and to communicate with non-governmental and intergovernmental bodies, such as the United Nations (UN) and the Organization of American States (OAS). Also, the Declaration on Human Rights Defenders specifically provides that everyone is entitled to these rights at the national and international levels, individually, and in association with others. When analyzing the restrictions against civil society ii , the first problem is the definition of “civil society”. At its most fundamental, civil society is associated with non-government; everything not included in any of the branches of the government. Other groups limited the term to some sectors, like advocacy groups, non-profit organizations, and activists. The problem with all these definitions was how to include business organizations or companies, media conglomerates, unions, and other groups. The more commonly used terms are Non- Governmental Organization (NGO), (which got broader use since its inclusion in the UN Charter, Chapter X, Article 71), civil society organizations or non-profits. In all of these the critical point is the right to freedom of association, or the right of these organizations to operate freely. Many NGOs, activists, and democracy/human rights defenders find their rights violated by authoritarian or repressive regimes and governments. This is because of their critical roles in promoting human rights awareness, defending the rule of law, promoting democracy principles, defending the environment, promoting environmental justice, educating and empowering citizens, promoting positive changes in terms of policies, and increasing debate on the national and international levels. Direct actions against groups and individuals include intimidation and harassment, arbitrary arrest and detention, disappearances, torture, and other physical violence. Other forms of repression occur through national legislation, parallel repressive groups, use of corrupted/controlled judicial systems, and other non-physical activities by governments or followers of a regime. In several cases national laws and regulations violate the right to freedom of association iii by imposing discriminatory restrictions on the right to obtain funding, or require centralized control of international funds by the government entities, impose ridiculous and bureaucratic registration or re-registration procedures, deny access to information, and limit areas of work. 2 Adopted by the United Nations General Assembly on March 8, 1999 (A/RES/53/144) 4 Limitations to Freedom of Association of Civil Society Organizations in Latin America In some countries, like Canada, the government directly or indirectly fosters the existence of an organized “civil society”. In others like Zimbabwe, China, or Cuba, the regimes prohibit anything that looks like organized groups. In Latin America, some governments have placed limitations on Civil Society Organizations (CSOs) to operate. The risks of having organized people controlling the public sector, denouncing human rights violations, educating people, or promoting public policy is anathema to authoritarian or quasi-authoritarian regimes. An ongoing backlash against democracy was found in several Latin American countries. Backlash against democracy is the current tendency in several countries that achieved some level of democracy to go backward and dismantle democratic institutions, create their own version of rule of law, limit liberties and attempt against human rights. Traditional and new by authoritarian leaders around the world have recently started to crack down on democracy- promotion efforts in their countries. 3 This included direct and more subtle efforts by governments to restrict the right of association and the space of civil society organizations, activists, and interest groups. iv Sometimes, governments have claimed that some restrictions have been necessary to protect sovereignty against foreign aggressors (“the evil empire”), to enhance the accountability of NGOs to fight against extremists, or to coordinate foreign assistance or national security. Sometimes the situation is more than paradoxical in cases where “civil society” promoted democratic changes. In some countries, as soon as the new government began to rule, the officials began to think about imposing restrictions to CSOs and NGOs. v This research provides a view of some trends in authoritarian countries in Latin America against CSOs, current limitations on CSOs or NGOs to operate, international legislation that protects civil society, and some guidelines and recommendations for NGOs and activists to improve their work, even in this restrictive environment. This study takes into account only the “worst” countries in terms of the number and kinds of restrictions placed against CSOs and other activists; the countries