Interview | ODIHR: Georgian Democracy Threatened by Foreign Agents Law

In an exclusive written interview with the Georgian service of Radio Liberty on April 30, Matteo Mecacci, Director of OSCE Office for Democratic Institutions and Human Rights, spoke about the negative consequences the foreign agents bill will have on the CSOs and democracy at large in Georgia. With kind permission from RFE/RL, we offer our readers the original English transcript of the interview.

RFE/RL: In your review of last July on so-calledForeign Agents Laws” which was prepared by the ODIHR Panel of Experts on Freedom of Assembly and Association, with contributions of a high-level expert and in consultation with the UN Special Rapporteur on the request of the Public Defender of Georgia, you focus on a number of challenges and issues its adoption may create in terms of human rights and civil freedoms and how these kinds of legislative initiatives lack rationale. The OSCE/ODIHR’s recent statement of April 16 says you are “deeply concerned by the Georgian government’s decision to reintroduce the draft foreign agent law, with a clearly negative impact on civil society and respect for #HumanRights. Our offer stands to assist in line with our previous recommendations”. What does that mean, what could be your assistance?

Last year, we published an analysis of the compliance of so-called “foreign agent” laws that have proliferated in recent years with international standards and their impact on civil society.

We did not review Georgia’s draft law itself at the time as the legislative initiative was formally recalled by parliament. Now that the bill is back on the table, we offer our cooperation and our expertise. We can be requested by any Georgian public body for an urgent legal review of the draft law or adopted law. Apart from legal analysis, we would be glad to engage in dialogue with all those involved at the political level. Our main aim would be to discuss the objectives of this law, and how these could be addressed in line with Georgia’s human rights commitments.

Did you communicate with the Georgian Dream besides publishing the above statement?

We are sure that the state authorities are closely following ODIHR’s public statements on this and many other issues. We have also reached out directly to state authorities to offer our cooperation.

It is known that the Georgian Dream had not made any changes in their initiative before reintroducing it this time but the term “an agent of foreign influence” had been replaced with “an organization carrying out the interests of a foreign power” – does it make any real sense/change?

A blanket labeling of civil society organizations and human rights defenders as foreign agents or anything similar creates an atmosphere of mistrust, fear, and hostility that makes it difficult for civil society to operate. The European Court of Human Rights has also said clearly that this kind of labeling is not just unjustified and prejudicial but also has a strongly stigmatizing effect on their activities.

If the essence and content of the draft law are approved, the impact on civil society will still be negative. The draft law imposes restrictions on civil society organizations simply for receiving foreign funding, which is too broad. Some of the provisions are also vague which increases the risk of arbitrary application.

What kind of threats does the draft law on the Transparency of Foreign Influence pose for the state and future of democracy in general and to the fundamental human rights and freedoms in Georgia ensured by the international human rights acts and the Constitution of Georgia if this draft law is adopted?

The right to freedom of association is crucial for societies to develop and prosper. Our comparative legal analysis shows that while the labels may differ, these laws directly target civil society organizations and make it harder for them to do their important work.

If states do decide to introduce new rules, they cannot be based on a general or abstract assumption that all funding from abroad is suspicious or a potential threat to national interests.

The introduction of so-called “foreign agents” law negatively impacts not only the work of civil society organizations and freedom of association but also many related rights, such as the right to public and political participation or the right to freedom of peaceful assembly and, ultimately, on the human rights situation in the country overall. Thriving and prosperous democracies have vibrant and well-developed civil societies in which “foreign agents” legislation is regarded as unnecessary. If adopted, this draft law could have a chilling effect on the operation of all associations and human rights defenders in Georgia.

What are the most concerning parts of this draft law in terms of placing additional regulations, restrictions on civil society and media organizations?

The right to freedom of association is a cornerstone of any democracy and underpins a broad range of other human rights. Access to funding, including international and foreign funding, is an essential element of the right to freedom of association, a fact that is underlined in the Joint Guidelines on Freedom of Association published by ODIHR together with the Council of Europe’s Venice Commission.

There are a number of requirements that can be imposed on civil society organizations and are justifiable from a human rights perspective. These include tax and customs declarations or measures to prevent money laundering or terrorism, as long as they are in line with international standards and do not specifically target the civil society sector.

However, the so-called “foreign agent” laws to introduce new obligations such as separate registration, labeling, reporting, accounting, and disclosure requirements, as well as special oversight, inspections, and potential sanctions, are overly burdensome for civil society organizations and are imposed only because of funding received from international or foreign sources. Such legislation, therefore, generally fails to comply with the strict requirements provided in international human rights law, namely that they are prescribed by law, pursue a legitimate aim recognized by international standards, are proportionate and necessary in a democratic society, and are not discriminatory.

The declared purpose of this draft law is defined as follows: “This law, with the purpose of ensuring transparency of foreign influence, regulates a registration of an entity as an organization carrying foreign interests and other issues linked to the transparency of the activities of an organization carrying foreign interests.” I will ask the question in the same manner as the initiators of this draft law formulate it – “What is wrong with the transparency? Isn’t it a Western value?”

Human rights are indivisible and universal. While enhancing transparency is certainly an essential component of good governance in the public sector to achieve a legitimate aim, such as the prevention of crime like corruption, embezzlement, money laundering, or terrorism, so-called “foreign agents” legislation poses serious threats to the reputation, functioning, or even existence of civil society organizations and is harmful to any free society.

The major point of concern with foreign agent or similar laws is about the purpose and consequences of transparency requirements, such as labelling or imposing additional reporting obligations, when such funding is received from foreign sources, and unjustified sanctions for the failure to comply. These laws result in undermining the independence and credibility of CSOs.

In certain countries, due to the economic situation or the absence of legislation to encourage philanthropic activity, the funding mainly comes from international donor institutions. I understand that the majority of civil society organizations in Georgia receive financial support from international donor institutions (and indeed, almost all larger organizations voluntarily reveal the list of their donors). This draft law, if adopted, would, therefore, turn the vast majority of civil society institutions overnight into “foreign agents” or “representatives of foreign powers,” which is contrary to the spirit of international cooperation.  

What is wrong in the rhetoric of the Georgian Dream party when it tries to justify the necessity of the introduction of this kind of law by referring to, as they say, the existence or proceedings of the same kind of legislation in Western democracies like the US, France, Germany – that every state tries to protect itself from a foreign influence why should Georgia abstain from doing so. Are there similarities between this legislative initiative and the legislation of any Western democracy? What are the practices in the world you may compare this draft law with?

There is a fundamental difference between the draft law under discussion and legislation in the US and some other countries. In the latter, the legislation does not label civil society simply for receiving foreign funding but rather seeks to ensure that private companies or non-profits that take part in advocacy or lobbying efforts on behalf of a foreign power register with the authorities and then that this information is made publicly available. Such legislation does not apply to independent civil society organizations or media as such, and the mere receipt of funding from abroad is not sufficient to presume that they are “agents” of a foreign power and put into question their independence. The issue is not the origin of the funding received by the organization but the nature of its activities and the work it conducts in the country.

Let me give you a concrete example. Many organizations working on disability issues heavily rely on funding from international sources. In line with any of these “foreign agent” laws, they will all be considered as foreign agents or foreign representatives. It is clear that this is neither appropriate nor justified.

Threat to the election environment: Why do you think civil society and media organizations are to be targeted with additional regulations that create a threat of stigmatization, especially in the context of upcoming parliamentary elections in Georgia? How could this type of law threaten a transparent, fair, and competitive election environment? For the civil society and media entities covered by this legislative initiative, certain reputational, operational, and existential issues are being created whether they refuse to register or follow the law in case it’s adopted. In their speeches, the GD politicians openly name the most active, independent civil society (like ISFED, TI-Georgia, GYLA, EECMD) and media organizations, and certain figures as enemies for the stability, peace, and progress of the country.

ODIHR considers the participation of domestic observers and civil society as important to a transparent democratic election. As such, ODIHR regularly assesses the ability of civil society to take part in its election observation missions. ODIHR will be conducting a needs assessment mission ahead of the upcoming parliamentary election in Georgia on May 20-25 and will publish a report with its findings shortly afterwards.

The initiators claim that they are ready for the detailed, meaningful discussion of the draft law and ready to make it better. Is there an issue of making any changes in this bill to make it better/useful, or is there a question about its idea and purpose in general?

With our wealth of experience and expertise accumulated over decades of work across the OSCE region, ODIHR is well-positioned to offer advice to authorities on how best to achieve these objectives while respecting fundamental rights and freedoms. ODIHR is glad to have had close and fruitful cooperation with Georgia over many years, where we have worked on many projects and programmes together with the authorities and civil society organizations.

We have offered our cooperation to the state authorities and are ready to engage in and support constructive and inclusive dialogue to ensure that all of Georgia’s legislation is in line with its human rights commitments.   

Another postulate of the Georgian Dream representatives is that every foreign money carries particular interests, which should be transparent to avoid “shadow financing” of certain anti-state activities and interference of foreign malign influence in Georgia’s politics through certain NGOs and media outlets. Could any kind of point of view of the Government serve as a legitimate justification for the introduction of this kind of law?

I’d like to stress that imposing an obligation to report on foreign funding on the one hand and labeling all civil society organizations as foreign agents or representing the interests of foreign powers simply because they receive funding from abroad are two completely separate issues. 

As I’ve already mentioned, organizations that carry out lobbying or are really acting under the instruction of foreign states may be subject to additional scrutiny, but this is because of the work they carry out and whom they work for, and not only due to the source of their funding. It is not justified to treat all foreign funding as suspicious.

If the proceeding is fulfilled despite domestic and international concerns, warnings (including one of ODIHR’s “deep concerns”), and calls for the withdrawal of this draft law, how will the ODIHR act next?

Our mandate is to work with countries—both the national authorities and civil society—to improve respect for democratic principles and human rights. We will continue to support civil society in Georgia and engage with the government and parliament to ensure the best possible outcome for the people of Georgia.

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