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Law is like music

The legal dimension of NGOs

Frits Hondius

Trustee, The Europhil Trust. Former Deputy Director of Legal Affairs of the Council of Europe.

This paper was read at the UIA Symposium on “Civil society and the sense of Europe Associations” and was published in Transnational Associations, 1/2002. © UAI/UIA.

I have been asked by the organizers of the UAI Symposium held in Brussels on 20 October 2001 to make some remarks, as the final speaker, on the legal dimension of NGOs. My chronological position in the programme is in a way indicative for the role lawyers are often expected to play. When you have a problem, call in the lawyers, and bring up the law. The term ‘law’ stands not only for texts in the statute books but also for case law. Do we have interesting decisions handed down by supreme courts or by international tribunals (such as those in The Hague, Luxembourg and Strasbourg) that can help to illuminate and guide us to the correct solution of the problem at hand? However, the fact that it was necessary to submit a problem to court or legal consultation raises the question why the matter did arise only at this late stage and not earlier. Where were the lawyers when the original position was being formulated or negotiated?

I belong to the school of legal philosophy of Wolfgang Friedmann who has always argued in favour of full participation of legal experts in any decision-making process; not only during the final stage, but from the beginning. Lawyers can help decision-makers to articulate their aims and products. Legal critique a posteriori is unhelpful. I give as an example the critical comments recently made by the Netherlands State Commission on private international law about alleged shortcomings the UIA’s brainchild, the 1986 European Convention no 124 on the recognition of the legal personality of international NGOs1. No matter how well founded such comments, one cannot help asking: where was the Commission at the time when the treaty was being negotiated in Strasbourg? The Commission should know that there is great reluctance to modify a treaty once concluded. States know what they have in hand and are uncertain about what will be the result of tampering.

Law is like music: a set of agreed principles, rules and conventions applied to ever changing circumstances.

Just as harmony is the supreme principle of music, so Rule of Law is the supreme principle of law. The extent of that principle is not always fully understood. ‘Rule of Law’ not only means that the law must be known, understandable, just and enforceable; but also, and more fundamentally, that there must be law. There must not be no-go zones of non-law.

What about the law governing civil society? In a recent contribution to the Festschrift Cremona2, I have examined to what extent civil society is a legally well-defined category. My research led me, unexpectedly, to the Western confines of Europe, the Republic of Ireland, whose 1938 Constitution refers to civil society as a value and a standard. This provision, which modern Ireland owes to its founding father Eamon de Valera, has hitherto attracted little attention but deserves a great deal more. It has been rumoured that it might even be dropped from the Constitution on the occasion of a future reform. I earnestly appeal to Irish policy-makers and legislators to preserve this precious jewel. I also express the hope that other countries in the European Union will take inspiration from this provision.

The 1938 constellation was the grave political situation of Europe with the Spanish Civil War raging and World War II looming. De Valera cautioned his fellow citizens to steer clear of any extremisms, whether left or right, religious, political or other, and to exercise their rights in harmony with the civil society. It would be half a century before the notion of civil society was again addressed as a basic constitutional principle. This time it would be in Eastern Europe, by the leaders of Solidarnosc in Poland.

One of the safeguards of civil society is the presence of a legal framework, clear and precise enough to allow civil society institutions, such as NGOs, to exist, to function properly, efficiently and independently and to allow the outside world to know, identify and understand civil society institutions. In other words, to receive answers to three fundamental questions: who are you? what is your aim? how do you operate?

We are commemorating at present the centenaries of three major laws in Europe underpinning NGOs: the 1601 Statute of Elizabeth 1 on charities, the 1900 German BGB (civil code) governing inter alia foundations and associations, and the French Loi 1901 on associations. All three have been the object of retrospection and forward-looking studies. The International Seminar on Charity Law at the London School of Economics3 took stock of the extraordinary and wholesome effect of English law throughout the world, inside and outside ommonwealth countries, fortified through dynamic interpretation by the courts. In Germany, the academic community has focused attention during a conference in May 2000 at Schloss Salzau jointly called by the Max-Planck-Institut and the University of Kiel, on the necessary reform of foundation law in particular to relax the grip of the State on the establishment process of foundation4. The celebration of the 1901 French Law on Associations has given rise to an impressive series of conferences and other manifestations, including the re-publication of the proceedings of the National Assembly5. Apart from the fact that the assembled deputies were addressed as “Messieurs” – not a woman in sight -we learn with astonishment that one of the purposes of the law was to do away with association as a criminal offence (delit d’association) and this more than a century after the proclamation of the Declaration of rights of Men and Citizens. The explanation of this oddity was that the French Revolution was hostile to any intermediary institutions between the citizen and the State.

Where there is a fire there must be smoke and vice versa. Where there are NGOs there must be law that governs them. Even in the former Soviet Union, where the law expressed the will of the Communist Party and the bureaucracy, laws were always duly made to fit the institutions.

In democratic countries, all the law one needs for the prospering of NGOs comprises two basic elements: first, protection of the fundamental freedom of association and peaceful assembly and secondly, law enabling civil society institutions, such as associations and foundations, to be recognized as personae in public life. I recently had occasion to recall this combination of legal principles in a note to the Netherlands Minister of Justice in connection with the intended ratification by the Netherlands of the NGO Convention no 124. Concerns had been expressed to the Ministry that some countries might interpret certain restrictions and limitations allowed by article 4 of the Convention in a dictatorial or arbitrary fashion. I have pointed out that there is no ground for such fears since Article 11 of the European Convention on Human Rights forbids such inroads on the freedom of association that this Convention is jus cogens, taking precedence over laws and ordinary treaties, such as Convention no 124.

There is a new dimension to the law on civil society and NGOs: the Internet. This creates wonderful opportunities for people to get together, without any need for travel or visas. This world of virtual association and assembly has given rise to the emergence of a new type of NGO which Professor Karsten Schmidt of Bonn University has called the “virtual legal person” (virtuelle Rechtsperson) or the “as if” NGO6. While this new form deserves encouragement, in particular because it empowers communication between and assembly of less well-endowed people, regardless of borders, it calls for close scrutiny. One of its possible side effects is a weakening of personal privacy, protected by article 8 of the European Human Rights Convention. Another is the blurring of the dividing line between fact and fancy and therefore a weakening of the freedom of information (article 10 of the European Human Rights Convention) which includes the freedom to seek and receive information.

There is no need in this article to present a full panorama of national and international laws governing NGOs. There is ample information available on the subject, particularly since the end of communism in Central and Eastern Europe.

The end of communism was hastened by civil society organizations, whether legal or not. On the other hand the collapse of the monolithic State brought with it a wave of new NGOs both to give expression to the reborn fundamental freedoms of association as well as to fill the gap left by the collapse of the former State institutions of health care, social assistance etc. The new democracies of Central and Eastern Europe have turned to those of Western Europe and North America for advice and guidance both in terms of law and organization and management. Their western partners are often embarrassed by the question: “what is the Western model?” because there is no such single model. There is a kaleidoscopic variety between law and practice of Western countries with regard to NGOs. The present author has documented the laws on foundations worldwide in his encyclopedia book “Foundations”7. A similar book on associations will appear shortly. The contrasts between different legal systems in Western Europe are startling. To give just one example: English charity law is allergic to any political activism on the part of NGOs, whereas such activism is considered perfectly in order in countries such as Holland or Germany. So the East European question “what is the West European answer?” will receive no response or a variety of possible responses. This has given rise in Western Europe to a critical self-assessment by and on civil society organizations regarding common features that characterize their legal systems in spite of the apparent contrasts.

Above all, “the West”, whatever it stands for, warns “the East” against the tendency to overlegislate. A friend of mine, on loan to a Central European country as NGO adviser, has been happily inventing NGO laws, allegedly to help that country to gain admission to the European Union. I reminded him that there are already plenty of laws, beginning with the 1948 UN Universal Declaration of Human rights and article 71 of the Charter of the United Nations, which declares the role of NGOs in international relations. These are useful and time-honoured wheels which do not need to be re-invented.

Do not legislate when there is no need. In the Russian Federation, there is a proliferation of laws, partly overlapping on NGOs. The result is confusion, contradictions and an open invitation to the bureaucracy to impose its own interpretations.

We should at this juncture recall a basic truth. NGOs, no matter how international, have no alternative to incorporation under some country’s national law. There is no international law regime, not even the one intended by the European Commission for European associations, under the mysterious motto of “social economy”. Social economy is a French concept that does not mean much to the rest of Europe.

We should also recall that those who want to assemble and associate often do not care much about the law. I came across a lady in Amsterdam who ran a very useful operation called “Russia Desk”. I asked Olga what was its legal status. Answer: “It’s a helpdesk”. I pressed further about what chapter of the law that belonged to. Answer: “We are part of a network”. I concluded for myself that her helpdesk was possibly an association under the Civil Code and the network an operation falling under telecommunications law.

The law reform process in Central and Eastern Europe has had a positive effect on the countries of Western Europe. This process is buffeted between the desire of Eastern Europe to overhaul its legislation and the impatience of North America to import NGO notions coming from its commerce oriented culture, but foreign to the culture of ex-Communist countries –example “non profit organization”. The nations of Western Europe have taken the lead in building bridges between national NGO systems.

No piece of architectures is more symbolical than the bridge, such as the Pont de l’Europe between France and Germany or the new bridge between Denmark and Sweden. Some bridges link not only one land site to another, but also past and present, such as the historic Kapellbrucke of Lucerne, destroyed by fire and reconstructed by modern technology.

The NGO bridge Europe has constructed is the Convention no 124 of the Council of Europe, which says basically: if you are an NGO legally created under the laws of country A, you will be recognized as such in countries B, C and D. No need to harmonize your laws first. No need to introduce something in your domestic law to please foreign jurisdictions. France once tried in vain to introduce into its civil code a common law NGO institution, the charitable trust (in its Quebec form, the fiducie). One day “Le Monde” announced: “the fiducie is dead.” The transplant failed. But if countries voluntarily accept to recognize other countries’ NGOs, is there still a need for the Convention no 124? The answer is yes. There is a fundamental difference between enacting a position in one’s domestic law and accepting an international undertaking to this effect by signing a treaty before the international community of States.

Under Convention no 124 there is no more need to effect complicated gymnastics in order to accommodate each other’s NGO institutions. We accept each other as we are. I recall here the wise words of Professor Merle, one-time President of the UIA : “What we NGOs have in common is that we are all different.”

The story does not stop here. While NGOs are all different, surely there must also be something they have in common. An exercise to discover what they have in common is in progress at the Council of Europe in Strasbourg on the basis of a report by Professor Jeremy Mc Bride of the University of Birmingham. This endeavour has the aim of distilling therefrom a recommendation, or a ‘charter’, of fundamental principles governing the legal status of NGOs in Europe. Needless to say, the Union of International Associations takes a lively interest in this activity8. It should also be hoped that the experts discussing the draft charter will pay due attention to other work in the same direction, such as, for example, the draft Handbook for NGO Laws, prepared by ICNL, Washington DC, at the behest of the World Bank9.

Notes 

1. Opinion of 29 February 2000 of the Netherlands State Commission for Private International Law to the Minister of Justice.

2. Frits W Hondius. “Civil Society, the Human Dimension of Europe”, in Mainly Human Rights-Studies in Honour of J. J. Cremona, p. 105.

3. Conference “Charity: 400 years of the Statute of Elizabeth”, Centre for Civil Society, London School of Economics, 18/19 June 2001.

4. Hopt/Reuter Stiftungsrecht in Europa, Carl Heymanns Verlag KG Köln, 2001.

5. Mission interministérielle pour la Célébration Centenaire de la loi du 1er juillet 1901 relative au contrat d’association, “L’avènement de la loi de 1901 sur le droit d’association” Edition des Jouraux Officiels 2001.

6. Karsten Schmidt, “Ersatzformen der Stiftung:. in op.cit footnote 4, p. 175-196.

7. Frits Hondius/Tymen van der Ploeg Foundations Mohr Siebeck Tubingen 2000.

8. The secrecy with which this draft has ben prepared by governmental experts and the Secretariat of the Council of Europe seems in flagrant denial of the openness which it recommends to NGOs. The text, already several years in the files of the Council of Europe, will not be revealed before March 2002. NGOs, its benefiaries, have not been informed of the draft, nor been enabled to comment on it.

9. International Center for not-for-profit Law, Washington DC “Handbook on good practices for laws relating to non-governmental Organization”, revised discussion draft, September 2000.

                                                                                                                                                      

 


    [1] Marcel Merle, "Le concept de transnationalité", in Mélanges René-Jean Dupuy, Pedone, 1991.

    [2] Marcel Merle, "L'article 71 de la Charte" in La Charte des Nations Unies, Commentaire article par article, edited by J.P. Cot and A. Pellet, Paris: Economica, 1991.

    [3] See Transnational Associations, Brussels: UAI, 1993, No. 6.

    [4] V. Alain Destexhe, "L'humanitaire impossible, ou deux siècles d'ambiguité". Paris: A. Colin, 1993.

    [5] A full list of these projects (texts and comments by the authors) appears in the International Statutes Series, Vol. 1, UAI, 1988.

    [6] Text and preparatory work in Transnational Associations, 1986, No. 3.

    [7] See the discussion opened on this point at the Symposium held by the UAI in October 1992, Transnational Associations, 1993, No. 2.

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