The rights of association, assembly and expression that are essential for a non-governmental organisation (NGO) to exist and operate are guaranteed by the European Convention on Human Rights (Articles 10 and 11), as well as by other instruments, including the European Social Charter, Revised (Article 5); the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations; the Convention on the Participation of Foreigners in Public Life at Local Level; and the Framework Convention for the Protection of National Minorities (Articles 3, 7 and 8). Other provisions guarantee 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.

The growing jurisprudence of the European Court on Human Rights enhances the understanding of these provisions. In addition, the Council of Europe has prepared a clear, comprehensive and useful statement of principles regarding NGOs -- the Fundamental Principles on the Status of NGOs in Europe (available at http://www.coe.int/T/E/Legal%5FAffairs/Legal%5Fco%2Doperation/Civil%5Fsociety).

Legal guarantees of association, assembly and expression carry a strong presumption against interference, but they are not absolute. Some regulation is permissible, both in the public interest and to protect the rights of individuals. The European Court has articulated three criteria that restrictions must meet: First, they must be prescribed by law. Second, any restriction must be imposed in pursuit of a legitimate and specified public policy interest. Third, restrictions must be necessary in a democratic society to achieve the intended purpose. "Necessary" has been construed to mean more than merely useful or desirable. Further, pluralism, tolerance and broad-mindedness are hallmarks of democracy. Restrictions must also be appropriate and proportionate to the legitimate aim pursued by their imposition, applied in a non-discriminatory way, and accompanied by appropriate procedural guarantees that ensure due process and judicial review. In any event, restrictions must not be used in such a way as effectively to deny the exercise of the right.

Article 11 of the European Convention makes clear that freedom of association is a right and entitlement, and not something that must first be granted by the government. Thus, there is no pre-condition for individuals to associate with one another and NGOs need not acquire formal legal status in order to exist.

Council of Europe treaties also address the rights of foreigners and international NGOs. The Convention on the Participation of Foreigners in Public Life at Local Level guarantees to foreign residents, "on the same terms as to its own nationals" the right to the freedoms of expression, peaceful assembly and association. (Article 3) The Convention on the Recognition of the Legal Personality of International NGOs provides for reciprocal recognition of groups active in more than one state that is a party to the agreement.

Rules regarding the establishment and operation of NGOs are otherwise the subject of national, not international law. Council of Europe treaties do not provide, for example, a definition or required terminology for NGOs or procedures for the establishment, operation or termination of NGOs. However, the Fundamental Principles on the Status of NGOs in Europe provide guidance on best practice in many areas. For example:

• "Any person, be it legal or natural, national or foreign national, or group of persons, should be able to establish an NGO." (¶15).
• Non-governmental organisations (NGOs) may or may not have members.
• The government body overseeing legal status should be independent of control of the executive (¶33) and should be separate from bodies that determine eligibility for tax and other benefits. (¶36)
• The system for establishment of NGOs should be quick, simple and inexpensive, based on rules that are clear and publicly available, and with a minimum of government discretion. (¶¶26-31)
• "NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and be subject to the same administrative, civil and criminal law obligations and sanctions generally applicable to them." (¶8)
• NGOs should be operated in accordance with their statutes and responsible to their members if they exist, "but NGOs are otherwise sovereign in determining the arrangements for pursuing their objectives." (¶¶43-49)
• NGOs should be free to pursue their objectives, provided that both the objectives and the means employed are lawful. Policy initiatives and lawful economic or business activities should be permitted. (¶¶4, 10-11, 13, 74-78)
• "NGOs may solicit and receive funding - cash or in-kind donations - from another country, multilateral agencies or an institutional or individual donor, subject to generally applicable foreign exchange and customs laws" (¶50) and there should be clear, objective standards for the eligibility of NGOs for public support. (¶57)
• NGOs shall report on their accounts and activities to members and, as appropriate, to donors and government agencies in connection with support or tax privileges, always respecting legitimate rights to privacy and business confidentiality. (¶¶ 60-65)
• "NGOs may be regulated in order to secure the rights of others (…) but they should enjoy the benefit of the presumption that any activity is lawful in the absence of contrary evidence" (¶66); NGOs should have the ability to challenge supervisory actions administratively and judicially; and sanctions should based on law and proportional to a violation established. (¶¶ 67-70) Compulsory termination of an NGO should be only in "exceptional circumstances" with "compelling evidence." (¶ 71)

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