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Charter on Civil Society Rights?

CIVICUS World Assembly workshop summary
During the CIVICUS World Assembly from 21-25 June in Glasgow, 15 delegates, including
representatives from CIVICUS, Conectas Human Rights, STRATGICO, International Center for
Not-for-Profit Law-ICNL, Zimbabwe Lawyers for Human Rights, the Canadian International
Development Agency and Amnesty International, among others, debated the benefits and
drawbacks of a potential charteri on civil society rights. The workshop asked whether there was a
need for a charter to protect civil society rights, or whether something else would be more
effective and appropriate.
Adriana Ruiz-Restrepo of STRATGICO (Colombia) led the debate in favour of a charter, while
Rieky Stuart, CIVICUS board member and former executive director of Oxfam Canada, led the
argument against the charter. The discussion was vibrant and engaging, with the main concerns
resting on issues of timing, impact, substance and approach.
In late 2004, CIVICUS began considering the possibility of an international charter on civil society
rights, as a tool which would clarify the rights protecting civil society and provide an opportunity
for international civil society to advocate for the recognition of those rights. CIVICUS originally
saw the work around the charter as composed of three stages (1) the compilation, into one
document, of all international and regional protections of the rights to freedom of expression,
assembly and association; (2) the creation of a manual which would advise civil society
organisations on tactics to respond to threats to their rights; (3) the development of an
international legal instrument which would protect and guarantee rights relating to civil society.
Timing
Adriana Ruiz-Restrepo argued that the timing is right for a legal charter on civil society rights,
because new threats to civil society have presented a clear need for further rights protections.
Laws express the legal aspirations of society, creating norms and institutionalising our commonly
accepted values. All the currently accepted universal rights have evolved over time. The French
and American Revolution brought about individual civil and political rights, and the Industrial
Revolution inspired the acceptance of economic, social and cultural rights. Now, in an era in
which economic and political power have become so absolute in many countries, the only way
citizens can effectively influence public policy is through organising and empowering themselves
collectively. Law needs revisions to reflect these changes.
There is a growing need to define and institutionalise the roles, rights and responsibilities of the
collective citizenry -- civil society. We do not need a new set of rights, but new way of
understanding rights which incorporates the idea that citizenry is not only singular, but collective.
Theoretically, individual civil and political rights could be used to defend civil society, however,
they are very difficult to use in many constitutional courts.
At the moment, civil society in numerous countries is increasingly being restricted, often under the
guise of the war on terrorism. As a result, governments are able to restrict freedom of association

by raising taxes for organisations, restricting cooperation funds, and labelling peaceful activists as
terrorists. Civil society needs a way to resist governmental interference in communications and
organisational activities and operations.
However, other participants cautioned, that, while there might be a need to clarify the rights to
association, and the rights of NGOs to make policy claims on government and to take political
action, at the moment, the likelihood of getting such a charter passed may be unlikely. Given the
current global political situation, governments are more willing to restrict civil society than to give
it more freedom. If such a document was brought to the United Nations, it would be necessary to
have a substantial amount of support behind it.
We must be careful not to open up pandoras box by creating an instrument which would actually
make it easier for repressive governments to restrict civil society. There is a critical mass of
influential governments which would be opposed to such a charter. Considering the strength of
opposition, civil society might be better advised to reserve the right to reject restrictive legislation,
rather than lay out its demands beforehand.
Simultaneously, however, the argument against a charter is an argument for such an instrument.
As one delegate said, Civil society cant wait for five countries in Latin America to pass a law like
that in Venezuela before it says anything.

Impact
Workshop participants debated the possible expected impacts of a charter. While some claimed it
would be instrumental in defining and protecting the civil society sector, others argued states
would be unlikely to sign such a document, and those who did would be unlikely to fulfil their
obligations.
A charter on civil society rights could be an international step forward in representing and defining
civil society as a sector. Civil society cannot continue to define itself as not other things, (ie. the
space outside the market, family and government in which citizens organise around a common
cause). Because there is a lack of consensus on what civil society is and what it represents, it is
easy to label as terrorists and bandits. As long as there is a lack of clarity on underlying rights for
civil society, it will be very difficult to protect civil society.
Such a charter would constitute an international authority on the rights of civil society. It would be
a benchmark of universally accepted standards to which local civic actors can refer, and hold
their leaders accountable. Even if it is not enforceable, it would still serve to set standards.
In considering the charter, however, it is necessary to consider its opportunity costs. We must
analyse the possible results of what will happen if such an instrument is introduced. As we have
seen in the past, there is a blatant disconnect between international law and its implementation at
the national level. Many governments will simply sign international agreements, with no intention
of meeting their obligations, just to be in line with larger countries, especially if they know they will
not be held accountable. For example, North Korea and Zimbabwe are signatories to the
International Covenant on Civil and Political Rights, but both countries violate their obligations
regularly.
Because of the current environment, and the pervasive effects of the war on terrorism, there
might be even less willingness by governments to accede to the obligations included under a
possible charter on civil society rights. The United States, for example, would be unlikely to stop
wiretapping activities because of organisations legal rights to privacy.

As one delegate pointed out, however, Just because there are thieves, do we stop building law?
Although there exists a possibility that such a charter would not be followed by all states, does
that undermine its existence?
Substance
What would such a charter consist of? As it is currently perceived, the charter would not pretend
to give birth to a new catalogue of rights, nor be an international covenant on civil society rights.
Rather, it would be a new way of reading and interpreting the rights currently included in
international and regional human rights instruments.
The vague definitions of civil society, along with lack of clarity on the amount of protection for civil
society provided by current international legal instruments, however, makes the discussion
around the substance of a possible charter complex.
In order to create a charter, civil society must first be clear on who it will aim to protect, and who it
will not. It must also clarify who will be the duty bearer responsible for upholding and
guaranteeing those rights, and how they will be held accountable. Most importantly, it must also
define which rights it will seek to protect.
There is no single definition of civil society at the moment, making it difficult to outline the rights to
which it is entitled. Before the project begins, there is a clear need to conceptualise a widely
accepted view of civil society. In many countries, there is a lack of clarity between what
separates political party and civil society activities.
In creating a charter, we also must be clear that civil society includes more than just the good
guys. Civil society includes those who have a common interest but not necessarily an interest in
the public good. Why would we want to build in special rights for the collective when we are not
sure what it is? Possibly we should limit the duties and rights of organisations, rather than create
something uncontrollable. In contrast, however, there is also a need to separate the good from
the bad, and a clear set of guidelines and standards may serve this purpose.
The extent of current rights for civil society, and their implementation, also remains unclear.
NGOs as legal entities already enjoy some legal rights. If NGOs are terminated by governments,
they have the right to take their cases to international bodies. When NGOs in Greece and Turkey
have been shut down, they have taken their cases to the European court. These cases, however,
are very difficult to make given the current interpretation of civil and political rights; in fact, the
European Court is the only international body which has heard such cases.
There were also concerns about the ability of one universal charter to apply to the unique
situations in each individual country and region. Some delegates argued the instrument needs to
be something which relates to cultures and the legal systems of individual countries. Conversely,
international law was also argued to be flexible, as it would be incorporated into national law. The
creators of the charter would not be showing countries how to work, but merely providing
standards which can then be adapted to national context.
While much of the discussion around the possibility of a charter revolves around the use of
international law, workshop participants cautioned against allowing it to become a lawyers
debate. When the movement for civil society rights becomes dominated by lawyers, it becomes
fragmented and risks excluding vital voices. The ultimate goal is to create a campaign which
protects civil society. Technicalities must not bog down the discussion, or allow it to become
inaccessible to the average non-lawyer civil society activist. The campaign must be something
we can write on a mountain.

Approach

While workshop participants agreed on the need to reform old legislation and create space for
CSOs to act in the public sphere, there was tremendous debate on the type of document, who
would take ownership over it, and the process of enacting that change. Delegates questioned
whether the charter should be an international agreement signed by governments, or would it be
a mere self-reflection activity for civil society. They debated the benefits and drawbacks of
immediately demanding a charter, or working up to it gradually.
Participants disagreed on the nature of the final document.Some participants argued for a nonbinding international statement or national level contract or compact, while others said it is
necessary to have a document which gives civil society legal authority to demand protection for
its rights.
National level compacts already exists in many countries, such as Canada, which outline the
rights and responsibilities of both the government and civil society. While this may be effective in
some countries, it is unlikely to work in some of the most repressive regimes, such as Belarus
and Zimbabwe. For the same reasons, an aspirational document might not be effective in
changing the policies of repressive regimes.
Guidelines on principles and rights of civil society already exists in many forms, although they
may not be publicly known, but civil society does not have the authority to enforce them. One
delegate argued that the campaign requires support and endorsement by international agencies,
such as the United Nations, in order to ensure some degree of enforceability.
The European Charter of Active Citizenship (May 2006)ii was highlighted as a new development
initiated by a coalition of NGOs for the protection of civil society in Europe. It includes protections
for 10 types of rights for civil society.
The group was cautioned against putting everything on the table in the beginning. If the campaign
aims to high i.e. the creation of an internationally binding UN charterit might get nothing.
Before the campaign starts, it must recognise that compromises will have to be made. The final
document will probably only be 60 per cent of what was envisioned.
Overall, there seemed to be consensus that the realisation of a charter, or other document, would
not be immediate. The process must be taken through baby steps. We must build knowledge
and define the rights to which we are referring. While numerous documents exist on the principles
and rights of civil society, many of them created by ICNL and CIVICUS, the concept of those
rights is not currently part of the public dialogue. The public, and the international community,
must be more aware of these principles before its possible to start a campaign for a charter. The
campaign would need to stimulate public debate between civil society and the public on the right
to organise public opinion and engage in the political system.
Some Concrete Ideas

The campaign could start through a consultation process with civil society and other
stakeholders; however we must be careful that it does not become too watered down.
The document must belong to civil society, and be designed to protect civil society. It is
important to acknowledge that while government can be involved in the process, they
must be prevented from diluting the process. In order to get buy-in by the legal
community, the campaign may also ask senior justices to comment on a draft charter or
the possibilities of such a charter.
Rather than investing time and energy in the creation of a charter, delegates also argued
that the campaign might be more successful if it chose to build collective knowledge and
strengthen legal frameworks on a regional and national basis. We would then have
models of success and examples of how change can happen. We would be able to
provide support and solidarity, and offer alternative best practices. As opposed to

creating a generalised international document, we could fit our approaches to the local
needs.
The campaign would not necessarily need to create something completely different from
what already exists. Perhaps, we could advocate for the inclusion of different
interpretations of the rights existing in current instruments. By creating new law, the
campaign might put existing rights at risk.
The campaign could also try to generate public interest in the campaign by asking for a
general statement on civil society rights, by regional bodies and the United Nations. Such
a statement or recommendation could also serve to encourage national courts to interpret
currently existing law in an innovative way, inclusive of civil society rights.

Conclusions:
While there was passionate debate from all sides of the argument in favour and against a charter
on civil society rights, in general there seemed to be some degree of consensus on certain
aspects. The workshop delegates agreed that there is a definite need to conceptualise civil
society, and define what we mean by civil society rights. Although some organisations, such as
ICNL and CIVICUS have outlined general principles and best practices, an understanding of civil
societys rights is not part of the current public dialogue. A campaign must also raise awareness
about the vital roles of civil society and the need for its protection. Delegates also argued that the
campaign cannot demand an international legal instrument immediately (if at all), it must start with
small steps and work up through a process of consultation. The process will make evident
whether a charter, or another instrument, is required. Generally, the campaign must strike a
balance between bold ideas and concrete small steps. It cannot rush into something which could
endanger civil society even further, but it must not stand back and let violations of civil societys
rights to freedom of association, assembly and expression continue unabated.

In this document, Charter refers to a potential international legal instrument, not necessarily only a
charter and not excluding other documents, such as declarations, treaties, conventions, or protocols.
ii
European Charter of Active Citizenship (May 2006). For more information, visit
www.activecitizenship.net.
i