The United Nations recognized non-governmental organisations (NGOs) as legitimate international entities at its birth (see UN Charter, Article 71). From that time forward, a host of UN treaties and declarations set standards, primarily the rights of association, peaceful assembly and expression, that guarantee the existence and operation of NGO. The protections in the International Covenant on Civil and Political Rights (Articles 19, 21 and 22) are echoed in a host of other instruments, many of which mandate that the rights must be secured without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

While many international instruments that guarantee the rights necessary for NGOs to exist and operate, freedom of association is not well developed. One useful step forward was the General Assembly’s consensus adoption in 1998 of the Declaration on Human Rights Defenders. While the Declaration addresses only one type of NGO, human rights groups are often early targets of government regulation means that governments’ acknowledgment of their rights in the Declaration should perforce be relevant to less-controversial groups.

Most UN instruments are formulated in terms of the rights of individuals rather than organizations, if the rights to association, assembly and expression are to benefit individuals, then the organizations those individuals form must share the rights as well. If organizations were prohibited from carrying on activities open to individuals, then it would be doubtful whether the freedoms existed. The dual nature of these rights is acknowledged by the Declaration on Human Rights Defenders which speaks throughout of the rights of everyone, "individually and in association with others".

For freedom of expression and the press to be meaningful to NGOs there must be access to the media. Among the UN instruments that articulate the right to such access are the Universal Declaration of Human Rights (Article 19) and the International Covenant on Civil and Political Rights (Article 19(2)). Article 6 of the UN Declaration on Human Rights Defenders makes this explicit: "Everyone has the right, individually and in association with others:

(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;

(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms (…)"

While there is a strong presumption against interference with freedoms of association, peaceful assembly and expression by governments, these freedoms are not absolute. Some regulation may be necessary, both in the public interest, and to protect the rights of individuals. The International Covenant on Civil and Political Rights (Articles 19, 21 and 22) sets out permissible restrictions on the rights guaranteed, stating that "the exercise of the right" of freedoms of assembly and association may only be restricted where the limit is prescribed by law, necessary in a democratic society, and imposed to preserve the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. In addition, Article 19 states that the exercise of freedom of expression must respect the reputations of others and Article 20 prohibits propaganda for war and "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." The guarantees of association, assembly and expression are generally not "non-derogable" rights under international law, i.e., they may be suspended, for example, in time of public emergency.

UN standards do not provide a definition or required terminology for NGOs. They also do not set out rules regarding necessary procedures for establishment, operation or termination of NGOs. However, certain principles are clear. Governments have discretion in the manner in which NGOs are established and regulated, as long as national law and practice do not effectively render freedom of association meaningless. Freedom of association is a right and entitlement, and not something that must first be granted by the government to its citizens. Thus, there should be no pre-condition for individuals to associate with one another and NGOs need not acquire formal legal status in order to exist. The state legal apparatus should facilitate, promote and protect the existence and operation of organizations. This includes the ability of NGOs to "solicit, receive and utilize resources." (Declaration on Human Rights Defenders, Article 13) Once organizations exist, they should have the same rights and obligations and be entitled to do what individuals can lawfully do, without being subject to any special requirements because of their status as separate legal entities. NGOs can pursue their objectives as long as they and the means employed are lawful.

With regard to the legal status or activities of foreign individuals and organizations, the Convention Relating to the Status of Refugees (Article 15), the Convention Relating to the Status of Stateless Persons (Article 15), and UN Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live (Article 8) establish the right of non-citizens to freedom of association.

The ability of NGOs to participate in the conduct of public affairs is a right under Article 25 of the International Covenant on Civil and Political Rights: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions (…) to take part in the conduct of public affairs, directly or through freely chosen representatives (…)." In addition, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) requires State Parties to "guarantee the rights of (…) public participation in decision-making (…) in environmental matters. (Article 3(1)) And the Declaration on Human Rights Defenders affirms the right of everyone, "individually and in association with others" to participation in government." (Article 8)

Analysis provided by: Patricia Armstrong, a human rights consultant based in New York.