After several days of mass protests and clashes between demonstrators and police in early March, the ruling party of Georgia, a former Soviet state in the Caucasus, succumbed to pressure and abandoned its proposed laws on foreign agents.
But the uproar and media attention surrounding the Georgia initiative and its demise should not mask a larger trend when it comes to such laws, which target foreign-funded media and non-governmental organizations or NGOs. In the past decade, they have emerged in countries around the world. China, India, Cambodia, Australia And Uganda are among dozens of countries that have foreign agent laws on their books.
And a few days after the repeal of the Georgian bills, Politico reported that that the European Union was going to develop its own register of foreign agents.
Too wide, prone to abuse
The impetus for the passage of these laws in recent years has come from rising international tensions and concerns of national authorities about foreign influences on home affairs and public opinion.
The interpretation and application of “foreign agents” laws vary from jurisdiction to jurisdiction. But all tend to require the registration and exclusion of organizations with foreign funding or “influence”. In many cases, their activities are also unreasonably restricted.
By represent my experience NGOs classified as foreign agents could potentially use such laws as a tool against groups that provide human rights and social assistance or monitor the transparency of government agencies. Any organization that is involved in any way in international activities and is deemed by a state to influence domestic policy or public opinion risks being recognized as a foreign agent.
Legislation in Georgia would have required non-governmental organizations and media outlets to receive more than 20% of their funding from abroad be included in a special register of “agents of foreign influence”. They would also have to file an annual financial return or be fined $9,500.
The authors of the law on Georgia compared it to the American Act on Registration of Foreign Agentsor FARA, which applies to any ‘agent of a foreign client’.
But critics argued that it was a copy Russia’s more repressive foreign agent law. That’s what human rights organizations say Russian law allows the Kremlin to obstruct the work of NGOs and independent media harassing dissenting citizens.
Since Russia passed its foreign agent law in 2012, I’ve seen authorities use vague legal terms like “political activity,” “foreign funding,” and “foreign influence” to determine whether an NGO is a foreign agent. These vague legal concepts allow executive authorities and courts to interpret the law as broadly as they like and arbitrarily decide who is or is not a foreign agent.
And this broad and arbitrary classification of foreign agents is not unique to Russia. It also applies to foreign agent laws in more democratic countries. However, the more authoritarian a regime is, the more negative impact these laws have on civil society.
How Foreign Agent Laws Began
The first foreign agent law, FARA, was enacted in the US in 1938 to counter Nazi propaganda. This law is still in force, but has undergone major changes. The concept of propaganda has gone out of it, and it is indicated target is to identify foreign influence in the US and address threats to national security.
While FARA does not impose repressive restrictions on civil society, it can be interpreted very broadly if desired. The large number advisory opinions issued by the FARA unit on individual requests indicates how difficult it can be to determine who needs to register as a foreign agent.
Both Russia and Georgia referred to FARA when drafting their own foreign agent laws. However, there is an important difference between their legislation and that of the FARA: in the Russian and now-abandoned Georgian versions, “foreign agents” are not required to carry out activities on behalf of a foreign government, political party, company or individual.
As such, the use of the terms “foreign agent” and “agent of foreign influence” is legally incorrect – agency activity does not even need to be proven.
Nevertheless, the legal ramifications are very real for those labeled as ‘foreign agents’. In Russia, these organizations are not participate in educational activities in public schools, organize public events, or produce or distribute materials for children. And their programs and activities can be canceled by government authorities, even if they don’t break the law.
Civil rights violations
Similar legislation in other countries also violates civil rights and freedoms. Chinese law requires NGOs to get government permission to carry out their activities and register with the security authorities, along with a number of other serious restrictions that make it essentially impossible for them to operate. As the Guardian newspaper has done pointed out“Foreign NGOs must refrain from political or religious activity or conduct themselves in a manner that harms ‘China’s national interests’ or ‘ethnic unity’.”
In Uganda, NGOs cannot operate in any part of the country unless they get permission from the District NGO Oversight Commission and the local government. They must also sign a memorandum of understanding with government representatives.
In 2022 international human rights organizations including Amnesty International and Human Rights Watch called the Indian government stops applying the Foreign Contribution Regulation Act to civil society. They argued that the law was used for the Center for Advancing Social Concerns, a prominent local NGO that monitors human rights violations. Indian authorities accused the group of “depicting India’s human rights record in a negative light…to the detriment of India’s image”, and searched his office and seized documents.
Aside from these legal ramifications for NGOs, state rhetoric against foreign agents can lead citizens to distrust important NGOs and other organizations that protect human rights and provide public services. And the unfair application of the foreign agent law to individuals leads to a return to the Soviet rhetoric of “enemies of the nation.” Vladimir Putin’s riots against unspecified “scum and national traitors’ and the ‘fifth columnWanting to destroy Russia for the sake of the West is an extreme manifestation of this rhetoric.
International courts have recognized how foreign agent laws have violated citizens’ rights and freedoms. In June 2022, the European Court of Human Rights ruled that Russia had violated the right to freedom of assembly and association with regard to NGOs considered to be foreign agents. Two years earlier, the European Court of Justice determined that the Hungarian law on foreign agents unlawfully violates the rights and freedoms of individuals and violates the Charter of Human Rights of the European Union. However, neither decision has produced any practical results, as the legislation in Russia and Hungary remains intact.
In the aftermath of the 2022 Russian invasion of Ukraine and foreign interference in elections in the US And Canadameasures to protect the sovereignty of the state become more popular.
Countries must ensure transparency in financial transactions to curb corruption, money laundering, terrorist financing and other crimes. However, creating unnecessarily broad laws for foreign agents that stigmatize and restrict law-abiding NGOs, independent media and individuals threatens democratic values.