ANALYSIS: PASSING OF GEORGIAN FOREIGN AGENT LEGISLATION IN A GREATER GEOPOLITICAL CONTEXT

Photograph: Jelger Groeneveld, CC BY 2.0 , via Wikimedia Commons

 

The influential Russian law targeting “foreign agents” passed in 2012 has had a ripple effect throughout Eastern Europe and former Soviet states. This law and its imitators abroad seek to classify civil society organizations (CSOs) that receive funding from “foreign” sources[1] beyond a certain threshold (defined differently between states) as “foreign agents”, requiring them to register under this status and publicize this information in their media. Foreign agent laws have begun appearing in the European Union – a similar law in Hungary was struck down by the Court of Justice of the European Union (CURIA), and others are under review in Bulgaria and Slovakia. The most recent „victory“ in this wave of civil society restriction came in Georgia on May 14th, when that nation passed a law limiting foreign influence amid heavy protests.

The foreign agent law in the US (known as FARA) was enacted in 1938 to combat propaganda outlets leading up to the Second World War. In its current edition, the law is vague in its definitions of actions constituting sufficient political involvement on behalf of foreign entities.[2] The continued existence of this rarely-used law has also been used as justification by Russian President Vladimir Putin, who stated that his foreign agent law was “the same” as FARA.[3] However, the Russian law (and its Georgian successor) go even further than the US law in their restrictions on civil society. The foreign agent law passed in Russia in 2012 does not require that agents engage in “political” activity as in the US law – simply the existence of foreign funding is considered sufficient to label an organization as a foreign agent. It also does not distinguish between foreign sources, which means it could be used against a wide range of NGOs – especially those who operated internationally or in partnership with NGOs in other countries.

The Law on “Transparency of Foreign Influence” passed in Georgia on May 14th, 2024, is a close copy of its Russian inspiration. It contains a broad definition as to what constitutes a “foreign power” providing funding – it can include a foreign state entity, individuals who are not Georgian citizens, any legal entity not established in Georgian legislation, and – importantly – any kind of organization based on a foreign country’s law or international law.[4] This final provision could be interpreted to include practically any NGO that operates in multiple countries, or any NGO that focuses on issues covered in international law that are controversial in Georgia (for example: LGBT+ rights). This problem has already been seen in Russia, where CSOs working on issues like LGBT+ rights or environmental protection have been faced with lawsuits for not registering as foreign agents.[5] The rhetoric surrounding the law also demonstrates its geopolitical alignment – the originating Georgian Dream party claims that their goal is to curb US and EU influence in Georgian politics, a step that could tighten their relationship with Russia. Critics within Georgia, including President Salome Zourabichvili, have described the law as part of a Russian destabilization campaign that could damage the nation’s accession to the EU. This is especially prescient given the extensive differences between the new law and the current EU draft proposal on transparency of interest representation.

The differences between Georgia’s legislation and the EU proposal are severe, especially in light of Georgia’s status as a candidate for future membership. A statement from the European External Action Service (EEAS) in April 2024 mentions that this law contravenes the recommendations made for Georgia to accede to the EU, namely those regarding the free operation of CSOs and fighting against misinformation.[6] If Georgia wishes to continue its candidacy this law will pose a major challenge, given that one of the requirements of the EU proposal would be that state legislation not diverge from its provisions to be more or less stringent.[7] The language used in both laws indicates their differences. In the EU draft, the use of “interest representation” as the key term demonstrates its focus on the actions of organizations and their funders, whereas Georgia’s use of “foreign agent” places the emphasis on the actors themselves. The EU proposal also recognizes that interest representation activities can have legitimate and beneficial purposes, while the Georgian law serves to stigmatize any organizations with international ties by requiring that registered organizations make public their “foreign agent” status.[8]

Hungary’s attempt at introducing similar legislation in 2017 (which was later struck down by the CURIA) provides some insight as to how such a law could play out in an EU member-state. Similar to the legislation in Georgia, the Hungarian law uses a broad definition of what qualifies as “support from abroad” to justify increasing pressure on NGOs. The CURIA’s decision was based on two violations of EU law. The first was art. 63 of the Treaty on the Functioning of the EU (TFEU), which enshrined the right to free movement of capital within the Union. Hungary’s attempt to restrict funding from other member-states to Hungarian organizations was found to violate this provision. It was also found to be in breach of arts. 7, 8, and 12 of the Charter of Fundamental Rights of the EU, which deal with the right to free association and personal privacy (as Hungary’s law would have required the disclosure of personal data belonging to organization leaders). Although Hungary has compiled and repealed the law, the replacement legislation introduced in 2021 still has the potential to harm the capacity of Hungarian NGOs.[9] Hungary’s continued efforts to limit civil society activities represent the gravity of this worrying trend’s expansion into the EU, a concern compounded by the „success“ of the law in Georgia. Whether this will create more support for the adoption of the current draft proposal remains to be seen. However, the tide continues to sweep through Europe – Bulgaria may be next.

Bulgaria’s equivalent foreign agent legislation was introduced by the nationalist Revival party in late 2022 and has remained under review in parliament since then. The draft includes a broad range of foreign sources of funding beyond just foreign state entities which would be used to restrict the operation of Bulgarian NGOs, including foundations and not-for-profits based abroad.[10] Like its Hungarian predecessor, this law would likely be found to be in violation of TFEU provisions on the free movement of capital. Considering the chilling effect the new law in Georgia is predicted to have on that state’s EU candidacy, the Bulgarian draft could bring a similar concern – potentially even further delaying Bulgaria’s entry into the Eurozone. If this draft law continues to be considered in parliament following the next election on June 9th, 2024, Bulgaria risks damaging its status within the EU, not to mention serious damage to its civil societies and their beneficial operations.

Author: Tara Osler,

Second-year law student

at McGill University in Montreal, Canada,

and an intern at the BCNL through the

McGill Centre for Human Rights and Legal Pluralism’s International Human Rights Internship Program