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Formation

International Standards


      European Convention on Human Rights, Article 11, 16 and 17

Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. 

      International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 36

Migrant workers and members of their families who are documented or in a regular situation in the State of employment shall enjoy the rights set forth in the present part of the Convention [articles 36-56] in addition to those set forth in part III [articles 8-35].

      International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 40

1. Migrant workers and members of their families shall have the right to form associations and trade unions in the State of employment for the promotion and protection of their economic, social, cultural and other interests.
2. No restrictions may be placed on the exercise of this right other than those that are prescribed by law and are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.

     Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly resolution 53/144), Article 5

Article 5
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.

      Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, Article 5 and 15

Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 15
1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

      Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Paras. 2, 4, 16, 17, 18, 19 and 20

I. Basic principles
(...) 2. NGOs encompass bodies or organisations established both by individual persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based. (...)
4. NGOs can be national or international in their composition and sphere of operation.

III. Formation and membership 

A. Establishment
(...) 16. Any person, be it legal or natural, national or non-national, or group of such persons, should be free to establish an NGO and, in the case of non-membership-based NGOs, should be able to do so by way of gift or bequest.
17. Two or more persons should be able to establish a membership-based NGO but a higher number can be required where legal personality is to be acquired, so long as this number is not set at a level that discourages establishment.

B. Statutes
18. NGOs with legal personality should normally have statutes, comprising the constitutive instrument or instrument of incorporation and, where applicable, any other document setting out the conditions under which they operate.
19. The statutes of an NGO with legal personality should generally specify:
a.its name;
b.its objectives;
c.its powers;
d. the highest governing body;
e. the frequency of meetings of this body;
f. the procedure by which such meetings are to be convened;
g. the way in which this body is to approve financial and other reports;
h. the procedure for changing the statutes and dissolving the organisation or merging it with another NGO.
20. The highest governing body of a membership-based NGO should be the membership and its agreement should be required for any change in the statutes. For other NGOs the highest governing body should be the one specified in the statutes.

Explanatory Memorandum

Paragraph 2

22. The diversity of NGOs is reflected in the fact that they can be both membership and non-membership-based bodies, echoing the distinction in the explanatory report on Convention No. 124 between “associations” (“a number of persons uniting together for some specific purpose”) and “foundations” (“an identified property devoted to a given purpose”). Furthermore the persons establishing NGOs can be natural or legal, including a combination of these, and NGOs themselves (uniting several such bodies to pursue aspects of their objectives collectively).

Paragraph 4

25. Although many NGOs may have a focus that is local or regional in character, the objectives of some NGOs may be best pursued at the national or international level and in the case of others there may be a need to work at several or even all of these levels. The choice of level(s) at which to operate should always be a matter for those founding and belonging to the organisations concerned. It may well be that those belonging to an NGO will wish to change the level(s) at which it operates and they should be free to make such a change.

Paragraph 16

(...) As it is a fundamental principle that any person or group of persons should be free to establish an NGO, restrictions on the formation of NGOs either by persons who do not have the nationality of the state in which this takes place or by legal persons should not be imposed. In the case of non-nationals, this freedom is also specifically recognised in Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144).
Moreover, subject to their evolving capacities, the freedom of association explicitly guaranteed to children by Article 15 of the Convention on the Rights of the Child would enable them to found NGOs.
In the case of a non-membership-based NGO, establishment should be possible through the making of a gift where the founder is alive or of a bequest following his or her death. However, this provision should not be interpreted as being applicable to all legal forms. In some countries, for instance, the possibility of establishment by will does not exist for all non-profit-making legal forms.
Paragraph 17
No minimum number is prescribed in guarantees of freedom of association for the number of persons required to establish a membership-based NGO. The guarantee of this freedom to everyone should, in principle, mean that only two persons are required to establish such a body. However, it is accepted that the acquisition of legal personality might afford a justification for setting a higher threshold for the establishment of a membership-based NGO. Nonetheless there could be no justification for setting a minimum that clearly discouraged or inhibited the establishment of membership-based NGOs.

B. Statutes
Paragraph 18
NGOs, especially those with legal personality, must heed the needs of various parties – members, founders, users, beneficiaries, donors, staff and public authorities – as regards their organisation and decision-making processes. This is most easily achieved by NGOs with legal personality having clear statutes, howsoever described under the law of the member state in which they have been established, setting out the conditions under which they are to operate. Nonetheless it is recognised that in some legal systems it is possible to achieve this goal without formally adopted statutes (e.g., informal associations in the Netherlands).
Paragraph 19
The requirements set out in this paragraph concern the matters that are most likely to be crucial to establishing the conditions under which NGOs are to operate. Those establishing or belonging to NGOs (as well as those responsible for their direction in the case of non-membership-based bodies) are free to specify additional matters in their statutes but they should not normally be under any obligation to do so. The term “powers” refers to the authority given by the statutes (expressly or impliedly) to do particular things in pursuit of an NGO’s objectives.
Paragraph 20
The requirement that the membership should form the highest governing body of a membership-based NGO is a manifestation of the exercise of freedom of association by their members. This does not mean that the members cannot delegate the authority to take action to other bodies but they should always be able to revoke that delegation and determine the matter themselves.
Such a consideration does not apply in the case of non-membership-based NGOs and so the highest
governing body should be determined by the statutes, whether as originally drawn up by their founders or as subsequently amended in the prescribed manner.]

      Fundamental Principles on the Status of Non-Governmental Organisations in Europe, Principles 15, 16, 17, 18 and 19

Establishment
15. Any person, be it legal or natural, national or foreign national, or group of such persons, should be free to establish an NGO.
16. Two or more persons should be able to establish a membership-based NGO. A higher number may be required where legal personality is to be acquired, but this number should not be set at a level that discourages the establishment of an NGO.
17. Any person should be able to establish an NGO by way of a gift or bequest, the normal outcome of which is the creation of a foundation, fund or trust.

Content of statutes
18. Every NGO with legal personality should have statutes. The “statutes” of the NGO shall mean the constitutive instrument or instrument of incorporation and, where they are the subject of a separate document, the statutes of the NGO. These statutes generally specify:
– its name;
– its objectives;
– its powers;
– the highest governing body;
– the frequency of meetings of this body;
– the procedure by which such meetings are to be convened;
– the way in which this body is to approve financial and other reports;
– the freedom of this body to determine the administrative structure of the organisation;
– the procedure for changing the statutes and dissolving the organisation or merging it with another NGO.
19. In the case of a membership-based NGO, the highest governing body is constituted by the members. The agreement of this body, in accordance with the procedure laid down by law and the statutes, should be required for any change in the statutes. For other NGOs the highest governing body is the one specified in the statutes.

Explanatory Memorandum

Paragraph 15 of the fundamental principles reiterates, and develops, the principle that any person or group of persons should be free to establish an NGO, already mentioned in the section on basic principles. Two kinds of restriction are encountered in practice in some states: firstly, on the establishment of NGOs by foreign nationals and, secondly, on establishment by legal entities. There are no grounds for these restrictions.
The question of the minimum number of people needed to establish an NGO was discussed at length during the preparatory work, since this number varies under national law. In some states one person is enough, whereas in others the law sets a higher threshold, which may be two, three or five people, or even more. In the end, the participants decided to draw a distinction between informal organisations and those wishing to acquire legal personality. In the first case, two people should suffice to establish a membership-based NGO, whereas a greater minimum number of members may be required before legal personality can be granted. In that event, the figure should not be so large as to discourage the actual establishment.
Paragraph 17 of the text deals with foundations, funds and trusts, which are the normal forms taken by NGOs established by means of a donation or bequest.
As regards their organisation and decision-making processes, NGOs, in particular those with legal personality, must heed the needs of various parties: members, users, beneficiaries, their highest governing body, their staff, donors and, in certain circumstances, national or local administrative authorities. They must therefore have clear statutes, setting out the conditions under which they operate and which should be available for consultation by the above-mentioned parties, with a view to ensuring legal certainty. Paragraph 18 of the text lists several examples. They illustrate the type of information of general usefulness which the statutes should contain.
Subject to generally applicable administrative, civil and criminal law, the conditions under which an NGO operates, as set out in their statutes, are entirely a matter for the NGO itself, in the persons of its members. A decision to amend the statutes accordingly lies with the NGO’s highest governing body, consisting of its entire membership, so as to ensure that the proposed amendment commands sufficient support among members.]



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