An opinion piece by Carlos Lusverti, Latin America Legal Consultant at the International Commission of Jurists.
A number of authoritarian countries, from Russia to Cambodia to Nicaragua have recently adopted legislation to limit the work of independent civil society organizations (CSOs), and numerous independent NGOs have been forced to close as a consequence. Unfortunately, Venezuela is following a similar pattern.
Threats to the independence of civil society organizations
Venezuelan civil society organizations have long operated in a context where serious legal obstacles impair their independence and impede their exercise of the rights to freedom of association, expression and assembly. These obstacles include the adoption and application of domestic laws used to target human rights defenders and the continuous attempts to halt or limit CSO operations.
In 2021, the National Office against Organized Crime and Terrorism Financing adopted an Administrative Ruling that obligated CSOs to register in a Unified Register against Organized Crime and Terrorist Financing and to provide information about their activities. As the local NGO, Centro para los Defensores y la Justicia put it, this is “evidence of the continuous efforts to link the legitimate actions of the organizations with alleged terrorism, as well as the progress in the measures to neutralize the work of the organizations through arbitrary limitations to international cooperation.” Most NGOs have refused to register because they consider that this registry does not meet the legal and international requirements for this type of regulation.
Recently, in May 2022, the National Assembly presented draft legislation that would serve to dramatically restrict the capacity of international and non-Venezuelan organizations to engage in assistance and cooperation with Venezuelan CSOs. These measures were justified by dubious and absurd references to the principles of sovereignty, non-intervention and self-determination. If approved, this law could have a devastating impact on the right to freedom of association and other fundamental freedoms, as it would block access to funds that support the work of human rights defenders and will allow the government to interfere with their work.
The draft legislation establishes obligations to domestic civil society organizations, particularly to register in order to be able to perform cooperation activities. This is not a simple inscription; it is a new elaborate process on which international aid will be conditioned.
It also includes an obligation for CSOs to answer any request of information made by any person, including those questions related to confidential information. Many CSOs work with victims of human rights violations and with persons that are protected by the attorney-client or doctor-patient communication. In addition, the draft establishes a requirement of audits for CSOs but is silent as to the requirements and formalities of the audit which would be regulated by the Executive Branch.
Finally, the draft includes the possibility of “prohibit[ing], suspend[ing], restrict[ing] or eliminat[ing]” any CSO that promotes the adoption of “coercive unilateral measures” against Venezuela. The provision does not establish which entity will evaluate and enforce this clause, or the proceedings and length of the sanctions that would be imposed on CSOs. The Inter-American Commission on Human Rights has said that “the ambiguous language of this initiative could lead to a subjective interpretation by authorities (…)Freedom of association is fundamental to the exercise of human rights work.”
International standards on the freedom of association and the protection of human rights defenders’ rights
Freedom of association is protected under international law, including under the International Covenant on Civil and Political Rights (ICCPR, Article 22); the American Convention on Human Rights (Article 16) and the Declaration on Human Rights Defenders (article 5). Individuals and organizations are entitled to form associations and non-governmental organizations and to ask, receive and use resources for protecting human rights, including international funds.
Under international law, States must respect and protect the right of freedom of association. The exercise of this freedom is not restricted, except for such purposes as national security, public health and public order, and even then, any restrictions must be strictly necessary and use the least intrusive means of achieving the purpose. They must comply with principles of legality, meaning the law must be clear and predictable in application, and must be non-discriminatory. The UN’s Special Rapporteur on the situation of human rights defenders (HRDs) have stated that according to Article 22 of the ICCPR even the right to freedom of association is not absolute; it is subject to limitations, but such limitations should be admissible and to be valid, they must cumulatively meet the following conditions: (a) it must be provided by law; (b) it may only be imposed for specific purposes such as national security or public safety, public order, protection of public health or morals or the protection of the rights and freedoms of others; and (c) it must be necessary in a democratic society for achieving one of these purposes. The present draft law appears to fall afoul of many of these conditions. It does not appear to serve a legitimate purpose; it is certainly not strictly necessary on security or public order grounds. It is not clear in its scope of application and is directed in a manner that is discriminatory as it relates to engagement with non-Venezuelan associations.
The Special Rapporteur on HRDs identified that the kinds of laws that limit cooperation for human rights defenders, unduly grant supervision powers to government officials, restrict their activities and interfere with the CSO’s freedom to carry out activities without governmental interference. The denial of registration and the arbitrary and expensive registration requirements, as well as the excessive governmental supervision and monitoring, breach article 22 of the ICCPR.
Lessons from the International law to protect the freedom of association
The Venezuelan authorities must refocus their laws, policy and practices in a manner that respects the independence of human rights defenders and civil society organizations, especially of those who publicly criticize the government. The authorities must abstain from persecuting and stigmatizing civil society organizations and their members.
The National Assembly should withdraw the draft law on international cooperation or modify the critical aspects of this draft that disregard international human rights law.Op-eds