Protecting Civil Society Space: Strengthening Freedom Of Association, Assembly And Expression

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The Slow Crawl From Rhetoric To Reality

In a perverse manner the restrictive regimes engendered by Covid regulations offered panoramas of what repression of populations in totalitarian states can look like. Government legislation essentially crippled freedoms of movement and association. We witnessed the return of borders in Europe with Schengen stalled; there were restraints on association and limitations of movement; curfews; a governance of gatherings and mobility.

However, it does not need a plague for some governments to deny their populations much cherished freedoms, although the virus can provide convenient smokescreens. While the restrictions were generally imposed for the benefit and well-being of society, there were many cynical examples of restraints being used for the benefits of despotic leaders and their acolytes. Other governments happily waived any such efforts at subterfuge, and continued to clamp down anyway on basic freedoms.  

Over the last 10 years an increasing number of governments have adopted new laws and practices that constrain civic space – the set of conditions that allow civil society and individuals to organise, participate and communicate freely and without discrimination or surveillance.  In doing so, they strive to influence the political and social structures around them, and importantly, hold them to account for their legislation and actions. These constraints have taken a wide variety of forms, and affect a diverse range of actors, but many have targeted formal civil society, media outlets and academic institutions.

Civil society space is the place civil society actors occupy within society; the environment and framework and legal grid in which civil society operates; and the relationships among civil society actors, the State, private sector and the general public. 

If the space for civil society and youth organisations is shrinking, the consequences for democratic societies could be considered an impediment to the exercise of citizens’ rights to freedom of association and expression; and therefore, a serious threat to democracy, human rights and the rule of law.

Civil society does not, however, exist in isolation or a vacuum, being an integral part of democratic systems and societies. Therefore, current efforts by governments around the world to curtail the enabling environment, to ‘shrink’ the space for civil society – or to keep that space at very minimal level – needs to be understood as part of a wider trend towards electoral self-interest, the erosion of liberal democracy or political regress – a trend that is affecting all stakeholders in democratic societies, not only civil society. 

Over the last years, civil society organisations in the EU Fundamental Rights Agency’s Platformhave voiced increasing concern about the legal and practical challenges affecting their work. They include:

  • Regulatory environment: (changes in) legislation that affect civil society organisations’ work;
  • Finance and funding: availability and accessibility of resources;
  • Right to participation: difficulties in accessing decision-makers and providing input into law- and policymaking;
  • Ensuring a safe space: attacks on, and harassment of, human rights defenders, including negative discourse aimed at delegitimising and stigmatising civil society organisations.

These challenges are often cumulative, putting pressure on civil society organisations and human rights defenders. 

The international and regional standards on freedom of association, assembly and expression, and the ability to defend rights oblige states to respect the independence of civil society actors. However, critical civil society actors, such as watchdog NGOs and other human rights defenders, have been put under particular pressure across the EU, since they highlight social injustice, speak ‘truth to power’, protest against certain government policies, or defend the rights of others at times of ‘crises’.

These civil society actors are essential to upholding the rule of law, fundamental rights and democratic accountability – the Union’s founding values – as enshrined in Article 2 of the Treaty on European Union (TEU). The EU, therefore, must protect civic space from unjust interference by EU Member States and even by the Union’s institutions and agencies. 

The EU’s new budget package for 2021–2027, known as the multiannual financial framework (MFF), will have an impact on civil society support. Under the Commission’s MFF proposal, a new Neighbourhood, Development, and International Cooperation Instrument (NDICI) worth 89 billion euros will set aside 1.5 billion euros specifically for civil society organizations, and the same amount for human rights and democracy. This comes with the caveat that, despite approval of the overall MFF package, some Member State governments are keen to revise the Commission’s proposals downward.

EU civil society support faces a pivotal moment. The union has been fine-tuning this support in recent years and is now contemplating further reforms. Civil society around the world is undergoing far-reaching changes as new types of informal activism emerge, governments try to constrict civic activity, and digital technology has major political implications. 

A report by Carnegie Europelays down suggestions as to how the EU should improve its Civil Society assistance

  • Tie critical measures to civil society support;
  • Set minimum thresholds for mainstreaming;
  • Engage with unfamiliar civil society partners;
  • Define clearer rules on government-organized nongovernmental organizations (GONGOs);
  • Focus on systemic resilience;
  • Help local fund raising;
  • Widen support networks;
  • Better connect civil society to politics;
  • Assess the civil society impacts of other EU policies; and
  • Link civil society to foreign policy.

All the above can be summarised in guiding principles that are driving a rethink by the EU on relations with Civil Society, after years of tokenistic support:

  1. Build coalitions and supportive structures, for dialogue between civil society, business and authorities/international institutions;
  2. Catalyse cooperation between government and non-state actors in developing, implementing, monitoring and evaluating public policies, to ensure that people have an input to policies and programmes that affect their lives and livelihoods;
  3. Create enabling, institutional, legal and financial mechanisms with the aim of fostering government-civil society dialogue and cooperation.

“Political freedoms are not a luxury in a democratic state; they are a necessity. A democratic society cannot be built or preserved if freedom of assembly and freedom of association are not guaranteed, encouraged and respected. These political freedoms are an indispensable check on any democratic power. Freedom of assembly and freedom of association are key building blocks of democratic security.”

*State of Democracy, Human Rights and the Rule of Law, Role of Institutions, Threats to Institutions, Report by the Secretary General of the Council of Europe 2018. 

A vibrant, thriving, inclusive and pluralistic civil society is an essential pre-condition for democracy. The European Court of Human Rightsacknowledged that the role of “watchdog” of democracy may also be exercised by non-governmental organisations. Any effort to strengthen democratic institutions should also support the spontaneous flourishing of civil societies and non-governmental groups, so they can have their own say on how their democracies are being shaped. And this support should come strong and clear from the EU, especially in cases where its own Member States are undermining civil society’s role and existence. 

It is now time to move on from that rhetoric.

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