Sovereignty versus society: are there any “good” laws on foreign agents

By Maxim Krupsky, Visiting Russian Scholar at The Fletcher School

Discussion of controversial foreign agent legislation often comes down to a binary opposition between Russian and American versions of it and suggests that there is some kind of “good” foreign agent legislation. However, this is not so, says lawyer Maxim Krupsky.
Mass protests in Georgia against legislative initiatives providing for the creation of a register of “agents of foreign influence” have become an important international event. And although the bills were withdrawn from parliament under pressure from the public, it is possible that the Georgian authorities will return to this initiative.

Agency Standard

As in the case of the adoption of Russian “foreign agency” legislation in 2012, Georgian legislators referred to the fact that their initiatives are analogous to the American FARA law, which has been in force in the United States since 1938, and do not violate the rights and freedoms of citizens. The civil society of Georgia, on the contrary, saw in the scandalous initiatives the danger of the Russian scenario of the development of “foreign agency” legislation and the practice of its application, which over the past ten years has turned into a consistent cleansing of public space from independent civil initiatives.

The difference between the Russian and American versions of the “foreign agency” legislation is indeed quite large, both in terms of normative wording and in terms of law enforcement. One of the key differences, perhaps, is that FARA requires evidence of the actions of a potential foreign agent on the order, request or under the leadership of a foreign principal and the implementation of political activities in his interests, which, in fact, forms the very fact of agency (intermediary, representative) activities. The mere receipt of foreign funding in order to be recognized as a foreign agent is not enough here.

In turn, none of the versions of the Russian “foreign agent” legislation, including the current one, required and does not require evidence of such a connection and even the actions themselves in the interests of a foreign principal, in fact turning the status of a foreign agent into a fiction, which, however, has extremely tangible and very real negative consequences for those who got into the registry, from a range of restrictions on activities and reputational losses to huge administrative fines and criminal prosecution if, for example, the status of a foreign agent is not indicated.

However, in my opinion, reducing the discussion of the legislation on foreign agents to the binary opposition of its Russian and American versions, which has become almost traditional in Russia, leads one away from understanding the very essence of this quasi-legal institution and makes one think that there is some kind of “good” legislation on foreign agents.

Bad Examples

Over the past ten years, more than 60 countries around the world have developed legislation that somehow restricts the activities of non-profit organizations, 96 states have taken measures to prevent NGOs from working at full capacity. The idea of introducing special reporting for foreign-funded NGOs is being discussed even in the European Union. The main arguments of the developers, as a rule, come down to the protection of state sovereignty and national interests, and such arguments are used regardless of the degree of development of democratic institutions in the country. Although the same FARA, in terms of its enforcement, cannot be compared with Russian legislation, it also differs in rather vague wording. Insurance against abuse in his case is an independent US judiciary and a more developed democratic tradition of law enforcement, which, in particular, does not lead to the persecution and stigmatization of public organizations that can be observed in Russia.

Nevertheless, international experience shows that the guard of “foreign agency” legislation is extremely unreliable, and its application in practice can pose a different degree of danger to civil society, depending on the level of development of democracy, political, social, cultural and historical context.

For example, in 2022, major international human rights organizations called on the Indian government to stop using the local Foreign Contribution Regulation Act to put pressure on civil society. The reason for this was the persecution by the Indian authorities of the non-profit organization Center for Promotion of Social Concerns. The center, in particular, was accused of providing UN special rapporteurs and foreign embassies with negative information about the human rights situation in India, thereby damaging the country’s image.

The Chinese version of “foreign agency” legislation obliges non-profit organizations to obtain permission from the state to carry out their activities and register with security agencies, and also imposes a number of significant restrictions on them, essentially making their work impossible. No less repressive “foreign” laws were passed in Uganda and Cambodia. For example, Cambodian law requires all associations and NPOs to be “politically neutral” and allows the government to arbitrarily ban any organization if it “endangers peace, stability and public order or harms national security, national unity, culture and traditions of Cambodian society” . In Uganda, the law prohibits NPOs from operating in any part of the country unless they have received permission from the NGO Monitoring Committee (DNMC) and the local government, and have signed a Memorandum of Understanding (MoU) with government officials.

In Australia, the Foreign Influence Transparency Scheme Act has been in force since 2018, which also contains rather vague language and, under threat of criminal prosecution with a penalty of up to five years in prison, obliges a person acting in the interests of a foreign principal to undergo appropriate registration , including regardless of whether such activity is paid. However, this law also contains a very wide list of activities that do not require registration, which include the provision of humanitarian assistance, charitable and religious activities, legal representation, creative activities, etc.

In 2020, the European Court of Justice ruled that the Hungarian version of the law on foreign agents (the so-called transparency law), which imposes on non-profit organizations that receive more than the legal amount of foreign donations per year, the obligation to register as “organizations receiving funding from abroad ”, and to publicly report all donations over €1,400, unjustifiably violates individual rights and freedom of assembly and is contrary to the European Union Charter of Human Rights.

Thus, in my opinion, it is impossible to formulate “foreign agency” legislation with a sufficient degree of certainty and avoid unreasonably imposing additional burdensome duties on foreign agents. It will always carry the danger of politically motivated use, undermining confidence in independent public institutions, and stigmatizing civil activists in the eyes of society in one way or another, with rather dubious expediency. It is unlikely that any of us seriously believes that it is difficult for modern states to obtain comprehensive information about the activities and sources of funding of the same non-profit organizations that are already subject to reporting from all sides. No special “foreign agency” legislation is needed for this.

The opinion of the editors may not coincide with the point of view of the author

This article has been translated from Russian. To read the original article, click here.