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Entities to which International Guarantees Apply

Introduction


     Autonomous concepts

The terms “association” and “non-governmental organization” - as with all terms found in universal and regional human rights treaties, soft-law instruments, and political undertakings (hereafter “universal and regional human rights standards”) - have an autonomous meaning. National provisions cannot, therefore, be conclusive in determining whether or not an entity, whatever its institutional form, is a non-governmental organization for the purpose of the universal and regional standards that apply to them.

     Membership not essential

Although many non-governmental organizations will have a membership, this is not an essential characteristic of them. However, as already noted (see International Guarantees: General and Specific) those non-governmental organizations that are not membership-based cannot rely on universal and regional human rights standards concerning freedom of association. See Paragraph 2 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

     Need for an institutional structure

AA particular body will only be regarded as a non-governmental organization for the purpose of universal and regional human rights standards where it not only has a defined objective but also has a degree of stability as regards its existence. Thus, it should be more than a mere gathering of people desirous of sharing each other’s company; it must have some kind of institutional (but not necessarily formal) structure. See S B v. United Kingdom (decision), 13 May 1988, McFeeley v. United Kingdom (decision), 15 May 1980 and Djavit An v. Turkey, 20 February 2003.

The holding of various forms of protest action, such as demonstrations and public meetings, will not be sufficient to constitute those involved as a non-governmental organization since such action is, despite its organized character, still essentially ephemeral in nature. However, protest action – which is protected by the right to freedom of assembly – is an important activity often undertaken by non-governmental organizations. See Friend and Countryside Alliance and Others  v. United Kingdom (decision), 24 November 2009.

     No need to have legal personality

In many instances, non-governmental organizations will be bodies with a formal status – namely, ones with legal personality - and the option of acquiring legal personality should always be available to those who wish to establish a non-governmental organization unless it can clearly be demonstrated that the lack of such personality will not impede the pursuit of the organization’s activities. However, universal and regional human rights standards also require that it be possible to establish entities of an informal character so long as they have, or are meant to have, more than a fleeting existence. See Paragraph 3 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Sidiropoulos and Others v. Greece, 10 July 1998Gorzelik and Others v. Poland, 17 February 2004, Stankov and United Macedonian Organisation ‘Ilinden’ v. Bulgaria, (decision), 29 June 1998 and Zvozskov et al. v. Belarus, 17 October 2006.

     Freedom to choose form

It should be up to those establishing an organization to decide whether it will have legal personality or be something more informal. Therefore, states cannot provide that non-governmental organizations can only be established as entities with legal personality. However, this does not mean that certain institutional forms - including the acquisition of legal personality – cannot be required for non-governmental organizations in order to enjoy particular benefits, such as exemption from certain forms of taxation. See Paragraph 3 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

     No distribution of profits

Non-governmental organizations must either be entirely non-profit-making or use any profits derived from trading or other commercial activities solely for the pursuit of their objectives. Therefore, such profits must not be distributed to their members, if there are any. An organization that is in essence commercial cannot be regarded as a non-governmental organization. See Paragraph 1 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Cēsnieks v Latvia (decision), 12 December 2002.

However, non-governmental organizations may still be established to advance the interests of their membership (if they have one) in other ways, whether economic, moral, physical, social, or spiritual.

     General exclusion of political parties and professional and trade regulatory bodies

Universal and regional human rights standards do not treat political parties as non-governmental organizations, although political parties are protected by the right to freedom of association. See Paragraph 1 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

Similarly, bodies that are established by law and that members of professions (such as architects, doctors, and lawyers) are required to belong to rather than choose to belong to will not normally be regarded as non-governmental organizations protected by universal and regional human rights standards specifically relating to non-governmental organizations. See Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981 and O V R v. Russia (decision), 3 April 2001.

A similar view will be taken of other entities membership of which is required for regulatory or institutional reasons, such as chambers of commerce, hunting associations, student unions, tenants’ unions, and works councils. See Weiss v. Austria (decision), 10 July 1991, Johansson v. Sweden (decision), 17 January 1996, M A v. Sweden (decision), 14 January 1998, Langborger v. Sweden, 22 June 1989 and Karakurt v. Austria (decision), 14 September 1999.

     Legislative basis not an automatic disqualification

However, a body that is established pursuant to a legislative requirement that operates autonomously and does not in substance have the characteristics of a public body will be treated as a non-governmental organization for the purpose of universal and regional human rights standards. See Sigurdur A Sigurjónsson v. Iceland, 30 June 1993 and Chassagnou and Others v. France, 29 April 1999.



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