Bolivia: Amicus brief on NGO regulations

PRESENTS AMICUS CURIAE

José Miguel Vivanco presents this amicus brief to the Constitutional Court in the case with file number 9304-2014-19-AIA on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th Floor, New York, NY 10118-3299. For that purpose, we respectfully state:

I. Purpose of the Amicus Curiae Submission

The issue presented before the Court is the constitutionality of the Law on Legal Entities (Ley de Otorgación de Personalidades Jurídicas, Law 351/2013), which Bolivia's Plurinational Assembly passed in March 2013, and the presidential decree (Decree No. 1597) issued to regulate it in June 2013.[1] We request that the Constitutional Court accept us as Friends of the Court with the purpose of offering an analysis of international human rights law applicable to the present case.

Specifically, the National Ombudsman asked the Court to consider whether article 7, paragraph 2, part 1 of the Law on Legal Entities, and article 19, part (g) of Decree No. 1597 violate the 2009 Bolivian Constitution.

Human Rights Watch respectfully submits this brief to present international human rights law arguments supporting the view that the above provisions violate Bolivia's international legal obligations to protect the right to freedom of association, and are therefore unconstitutional under Bolivian law.

II. Background on Human Rights Watch and Our Interest in the Case

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and impartial with respect to any political, religious, or economic organizations or movements. By mandate, the organization can receive no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the United Nations Economic and Social Council, the Council of Europe and the Organization of American States, and maintains a working relationship with the Organization of African Unity.

Human Rights Watch regularly monitors the human rights situation in Bolivia, and has expressed concern regarding the fact that the Law on Legal Entities and its regulatory decree undermine basic human rights provided for in international treaties ratified by Bolivia.[2]

As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

III. International Human rights Law applicable to this case

Bolivia is obligated by norms of international law, incorporated into Bolivian law by its Constitution, to protect human rights within its jurisdiction, including the right of freedom of association.

The purpose of this amicus curiae brief is to provide information to this Honorable Court on international obligations that derive from such international conventions, which, as binding legal commitments made by Bolivia as a sovereign state, are applicable to this case. On this occasion, this Honorable Court has the opportunity to uphold Bolivia's international obligations to guarantee the right to freedom of association and human rights defenders' ability to work independently.

A. Freedom of Association is a Fundamental Right Under International Law and the Bolivian Constitution.

Freedom of association is a fundamental human right protected by international law, according to international conventions and other legal instruments identified below. Having ratified the international conventions identified below, the obligations they impose are legally binding on Bolivia as a State Party, and are also recognized by the 2009 Constitution as norms incorporated into the Constitution.

1. International Treaties to which Bolivia is a Party

The American Convention on Human Rights (Pact of San Jose) in article 16 states that: "[e]veryone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes" and that "[t]he exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others."[3] In relation to this right, and all others in the Convention, Bolivia has to respect this right and to ensure all persons the free and full exercise of the right without discrimination and in particular to take legislative or other measures as may be necessary to give effect to it.[4]

The International Covenant on Civil and Political Rights (ICCPR) in article 22 provides that "[e]veryone shall have the right to freedom of association with others…" and that "[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by 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."[5] As a State Party Bolivia has likewise undertaken to respect this right, to ensure all persons the free and full exercise of this right without discrimination and to take legislative or other measures as may be necessary to give effect to it.[6]

In addition to the preceding treaties, several other instruments of international law are also relevant to the protection of freedom of association. Such instruments include the following:

The American Declaration of the Rights and Duties of Man, which guarantees the right to freedom of association in the following terms: "Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature."[7]

The Universal Declaration of Human Rights, which states that "[e]veryone has the right to freedom of peaceful assembly and association."[8]

2. The Status of International Human Rights Treaties Under Bolivian Law

The 2009 Bolivian Constitution protects freedom of association and assembly (article 21 of the Constitution protects the right to "freedom of assembly and association… with legal purposes"[9]). It also provides that international treaties ratified by Bolivia that include broader protections for human rights prevail over the Constitution (article 256 of the Constitution provides that "treaties and human rights instruments… ratified by the State that provide protections for human rights prevail over the Constitution" and that "the rights recognized in the Constitution will be interpreted in accordance to international human rights treaties."[10])

When interpreting these standards, this Honorable Court noted, in a 2010 ruling, that "decisions issued by the Inter-American Court of Human Rights… are part of constitutional norms" and these decisions "provide a basis" to analyze "the whole legal system."[11] Similarly, this Honorable Court has repeatedly relied on decisions and reports by other international human rights bodies, including the Inter-American Commission of Human Rights, the UN Human Rights Committee, and Special Mandates of the UN Human Rights Council, to interpret the scope of rights protected by the Bolivian Constitution and international human rights treaties.[12]

IV. Law No. 351/2013 and Presidential Decree No. 1597 Restrict the Right to Freedom of Association in Violation of Bolivia's International Legal Obligations

The Law on Legal Entities provides that an organization's permit to operate can be revoked if it performs activities different from those listed in its statute, or if it violates the law and its regulatory decrees.[13]

Presidential Decree No. 1597, for its part, allows any government office to request that the Ministry of Autonomy revoke an organization's permit to operate if it performs activities different from those listed in its statute, or if any of the representatives of the organization named in its permit application is criminally sanctioned for carrying out activities that, using the organization, "undermine security or public order."[14] The Plurinational Assembly may also request that permits be revoked in cases of "necessity or public interest."[15]

In addition, the decree states that the organizations' statutes must specify the extent to which their activities "tak[e] into account the guidelines established in the national plans, the national policies and the sectorial policies."[16]

The specific provisions challenged in this case contribute to undermining the right to freedom of association and the ability of human rights defenders to work independently. Specifically, article 7 of the Law on Legal Entities provides that non-governmental organizations and foundations must specify in their statutes "their contribution to economic and social development."[17] And article 19 of Decree No. 1597 provides that organizations can be dissolved if they "fail to comply with [official] policies and rules."[18]

These vague provisions invite arbitrary, politically motivated decisions and undermine the right to freedom of association, recognized both in the Constitution and in human rights treaties.[19] The UN Human Rights Committee, the body which oversees Bolivia's compliance with the ICCPR, in its review of Bolivia, explicitly expressed its concern regarding "Act No. 351 of 2013 and its implementing regulations (Supreme Decree No. 1597)" referencing article 22. The Committee called on Bolivia to "amend its legislation on the legal status of NGOs in such a way as to eliminate the requirements that place excessive restrictions on their ability to operate freely, independently and effectively."[20]

The Inter-American Commission of Human Rights has noted that "[t]he freedom of association, in the specific case of human rights defenders, is a fundamental tool that makes it possible to fully carry out the[ir] work ... [b]ecause of this, when a state impedes this right, it not only restricts the freedom of association, but also obstructs the work of promoting and defending human rights."[21] In this respect, the Inter-American Court of Human Rights has repeatedly noted that "[s]tates have the duty to provide the necessary means for human rights defenders to conduct their activities freely...[and] to refrain from placing restrictions that would hinder the performance of their work"[22] and held that the exercise of freedom of association includes the right "to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right."[23]

With respect to laws that seek to control the operation of civil society organizations, the Inter-American Commission of Human Rights has repeatedly noted that states should "refrain from promoting laws and policies that use vague, imprecise, and broad definitions of the legitimate motives for restricting the establishment and operation of human rights organizations,"[24] and must ensure that authorities in charge of regulating the laws governing civil society organizations do not enjoy "broad discretion or provisions containing vague or ambiguous language that might create a risk that the law could be interpreted to restrict the exercise of the right of association."[25] The power granted to the Ministry of Autonomy to revoke a permit in cases in which an organization "fails to comply with [official] policies and rules" is one example of such an impermissibly broad discretion.

The UN special rapporteur on the rights to freedom of peaceful assembly and of association has noted that associations "should be free to determine their statutes"[26] and has stressed that restrictions on the right to association must-in order to be "necessary in a democratic society"-respect the principles of "pluralism, tolerance and broadmindedness."[27] According to the rapporteur, "[t]he suspension and the involuntary dissolution of an association are the severest types of restrictions on freedom of association… [and] it should only be possible when there is a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law... it should be strictly proportional to the legitimate aim and used only when softer measures would be insufficient."[28]

V. Petition

For the abovementioned reasons, hoping that our input can contribute to the just resolution of this case, we ask this Honorable Court to:

1) Accept Human Rights Watch as a Friend of the Court in this case, and

2) Take into account the legal arguments and international standards presented in this brief when evaluating the constitutionality of Law No. 351/2013 and Decree No. 1597.

José Miguel Vivanco

Executive Director of the Americas Division

Human Rights Watch

[1] Ley de Otorgación de Personalidades Jurídicas (Law on Legal Entities), Gaceta Oficial, No. 351/2013, signed into law on March 22, 2013, http://www.gacetaoficialdebolivia.gob.bo/normas/descargarPdf/141719 (accessed July 1, 2015); Reglamento parcial a la Ley de Otorgación de personalidades jurídicas (Regulatory Decree on the Law on Legal Entities), Gaceta Oficial, Decree No. 1597/2013, signed on June 5, 2013, http://www.gacetaoficialdebolivia.gob.bo/normas/descargarPdf/142134 (accessed July 1, 2015).

[2] See Human Rights Watch, "Bolivia: Universal Periodic Review, March 2015," March 16, 2015, http://www.hrw.org/news/2015/03/16/bolivia-universal-periodic-review-march-2015; "Bolivia: Letter to President Evo Morales on Human Rights Legislation," December 15, 2014, http://www.hrw.org/news/2014/12/15/bolivia-letter-president-evo-morales-human-rights-legislation

[3] American Convention on Human Rights ("Pact of San José, Costa Rica"), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, ratified by Bolivia on June 6, 1979, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art. 16.

[4] Pact of San Jose, op. cit., articles 1 and 2.

[5] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force February 10, 1972, ratified by Bolivia on August 12, 1982, art. 22.

[6] ICCPR, arts. 2 (1), (2).

[7] American Declaration of the Rights and Duties of Man, adopted April 1948, O.A.S. Res. XXX, OAS/Ser.L/V/I.4 Rev. 9 (2003), art. XXII.

[8] Universal Declaration of Human Rights, art. 20, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), an international instrument widely regarded as customary international law.

[9] Constitution of Bolivia, art. 21.

[10] Constitution of Bolivia, art. 256 (I). See also, arts. 13 (IV) and 410 (II).

[11] Constitutional court, Case 0110/2010-R, Constitutional ruling, May 10, 2010.

[12] See, for example, Constitutional Court, Case 2055/2012, Constitutional ruling, October 16, 2012 (citing UN Human Rights Committee's General Comment 32 and several decisions by the Inter-American Court of Human Rights to interpret the scope of the presumption of innocence); Constitutional Court, Case 0330/2012, Constitutional ruling, June 18, 2012 (citing the Inter-American Court of Human Rights decision in "Saramaka v. Suriname", a report by the Inter-American Commission of Human Rights and a report by the UN Special Rapporteur on the rights of indigenous peoples to interpret the scope of the right to free, prior and informed consent); Constitutional Court, Case 0137/2013, Constitutional ruling, February 5, 2013 (citing the Inter-American Court of Human Right's case law on the presumption of innocence and the right to life); Constitutional Court, Case 0770/2012, Constitutional ruling, August 13, 2012 (citing the Inter-American Court of Human Right's case law on the prohibition of ex post facto criminal law); and Constitutional Court, Case 0206/2014, Constitutional ruling, February 5, 2015 (Citing the Inter-American Commission on Human Right's decision in "Baby boy v. United States" and UN Human Rights Commitee's General Comment 28 to interpret the scope of the right to life).

[13] Law on Legal Entities, art. 14;

[14] Regulatory Decree on the Law on Legal Entities, art. 19.

[15] Regulatory Decree on the Law on Legal Entities, art. 19 (b)

[16] Regulatory Decree on the Law on Legal Entities, art. 11(II) (a).

[17] Law on Legal Entities, art. 7.

[18] Regulatory Decree on the Law on Legal Entities, art. 19.

[19] Constitution of Bolivia, art. 21; Pact of San José, art. 16; ICCPR, art. 22.

[20] Human Rights Committee, "Concluding observations on the third periodic report of the Plurinational State of Bolivia," U.N. Doc. CCPR/C/BOL/CO/3, 6 December 2013, para. 24.

[21] Inter-American Commission on Human Rights, "Report on the situation of human rights defenders in the Americas," OEA/Ser.L/V/II.124 Doc. 5 rev.1, http://www.cidh.org/countryrep/Defenders/defenderschap1-4.htm#assembly_ (accessed July 27, 2015), para. 69.

[22] Inter-American Court, Kawas-Fernández case, Judgment of April 3, 2009, Inter-Am Ct.H.R., Series C. No. 196, para. 145; Inter-American Court, Valle-Jaramillo et al case, Judgment of November 27, 2008, Inter-Am Ct.H.R., Series C No. 192, para. 91.

[23] Inter -American Court, Baena-Ricardo case, Judgment of February 2, 2001, Inter-Am Ct.H.R. Series C No. 72, para. 156. The IACHR has noted that this applies to civil society associations as well as associations of labor unions, "Second report on the Situation of Human Rights Defenders in the Americas," OEA/Ser.L/V/II. Doc. 66, December 31, 2011, para. 175.

[24] IACHR, "Report on the Situation of Human Rights Defenders in the Americas," OEA/Ser.L/V/II.124 Doc. 5 rev.1, March 7, 2006, recommendation 17; IACHR, "Second report on the Situation of Human Rights Defenders in the Americas," para. 165.

[25] "Second report on the Situation of Human Rights Defenders in the Americas," para. 172.

[26] UN Human Rights Council, "Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai," A/HRC/20/27, May 21, 2012, http://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session... (accessed July 27, 2015), para. 97.

[27] Ibid., paras 17 and 84(e).

[28] Ibid., paras. 75 and 100 (emphasis added).