Republika Srpska (RS, one of the two entities in Bosnia and Herzegovina) plans to adopt a Law on Special Registry and Transparency of the Work of Non-Profit Organisations. The bill targets civil society organisations (CSOs) that “are financially or in some other way assisted by the foreign entities as agents of foreign influence” (art. 1 of the draft law). ECNL supports partners in Bosnia and Herzegovina to develop strategies for responding to the law. The below is a summary of discussions on why the legislation is problematic and how it follows a broader trend of laws, which are contrary to human rights law and use wrongful assumptions.
The draft law in Republika Srpska
On September 28, 2023, the Republika Srpska National Assembly passed in first reading the draft law on Special Registry and Transparency of the Work of Non-Profit Organisations. The legislation would require non-profit organisations that receive funds from abroad to register as “agents of foreign influence” and be barred from political activity. This includes proposing any kind of policy papers or legislation changes to institutions or political representatives. Some of the key problems with the draft law include:
- Vague terminology;
- Labelling CSOs;
- Excessive reporting: biannual reporting for CSOs that already report to the government;
- Possibility for bureaucratic harassment: regular inspection is carried out once a year, additional inspections of the legality of the work of CSOs receiving foreign funding could be based on requests from citizens and various bodies;
- Prohibition of engaging with authorities and discussing public policy: due to the draft law's broad definition of political activity, this may possibly include any public communication or participation in public events with decision-makers;
- Equal burden on both big and small CSOs, regardless of the amount of foreign funding they receive;
- Heavy sanctions, including the possibility to terminate the registration of the CSO.
The draft law would create an environment of mistrust towards organisations that receive foreign funding. In addition, the bill is not based on a specific risk: the government of Republika Srpska has not presented any specific cases or examples of foreign influence by CSOs that have endangered the country. Instead of solving an existing problem, the law would actually create problems, both for CSOs and the administration that must implement it.
The broader trend: laws that unfairly target the international flow of donations
The ability to receive funding from domestic or foreign sources is one of the rights and key elements of CSOs’ financial sustainability. Bosnia and Herzegovina is not the first country where CSOs have been targeted because they receive foreign funding. Over the past years we have seen a wave of similar regulations. For example, Belarus and Azerbaijan severely restrict foreign funding: they have introduced permission/approval for receiving foreign funding or have limited its receipt only to certain topics (e.g. culture, etc.). Uzbekistan requires approval and identification of a “national partner” when receiving foreign grants.
One trend to limit CSOs’ foreign funding and overall work and activism has been through legislation on so-called “foreign agents” or foreign interference. In 2012 Russia was one of the countries that first used this type of law to target specifically CSOs. While the law has been promoted as aiming to increase transparency, it has in fact restricted independent CSOs and led to the closure of a number of organisations. The law was changed several times to also give the Russian Ministry of Justice the power to register organisations as foreign agents even without CSO consent. Similar laws have been proposed in Kyrgyzstan, Ukraine, Georgia, Hungary.
The use of the term “foreign agent” or its variations is in itself stigmatising for CSOs. For example, the Georgian translation of the term “agents of foreign influence” comes with a strong negative connotation, and is usually interpreted as a synonym for a “foreign spy.” There is a similar problem in other languages, such as Russian or Bulgarian. In the case of CSOs, whose reputation is one of their key assets, this is highly damaging. CSOs rely on their good image to engage people in their activities and collect donations for their causes: creating mistrust about their real aims puts all that in danger.
Foreign agent laws contradict international standards
Such laws contradict international standards by restricting freedom of association, impacting access to resources, and introducing a blanket presumption of suspiciousness that could further obstruct and stigmatise legitimate CSO work. They also restrict freedom of expression and the right to participation (by introducing prohibition of vaguely defined political activities). Last but not least, they are a clear example of discrimination, as they treat foreign-funded CSOs differently from other CSOs or foreign-funded companies.
So far, no EU country has introduced a similar law. Hungary repealed its legislation after the European Court of Justice had determined that it “introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations”. Other international organisations have expressed similar concerns:
- Josep Borrell, EU High Representative for Foreign Affairs (on the draft Georgian law): “this law is incompatible with EU values and standards”.
- European Court of Human Rights (on the Russian law): “a legal regime that places a significant “chilling effect” on the choice to seek or accept any amount of foreign funding, however insignificant”
- OSCE/ODIHR and the Venice Commission (on the draft Republika Srpska law): “the rationale for developing the Draft Law is unclear and apparently it is not based on any risk assessment or consultation with associations and others potentially affected”.
- Council of Europe Commissioner for Human Rights (on the draft Republika Srpska law): “The legitimate aim of increasing the transparency of the work of NGOs should not be sought through disproportionate or discriminatory means, to the detriment of the effective enjoyment of human rights and freedoms.”
- UN Special Rapporteurs (on the draft Republika Srpska law): “the sweeping imposition of the label of “agents of foreign influence” on civil society organisations and human rights defenders simply because they receive foreign funding cannot be deemed necessary in a democratic society”.
The main arguments
Countries adopting a foreign agent type of legislation have used various arguments, but the two most common reasons for proposing such laws are:
- protecting the country from illegitimate foreign influence;
- following the US example of the Foreign Agents Registration Act (FARA).
Do foreign agent laws really aim to limit foreign influence?
The logic that foreign funding means foreign influence is incorrect. Indeed, governments should be aware of this, because they do not apply the very same logic for all entities. While aiming to regulate or restrict foreign funding to CSOs, governments in fact continue to try and attract foreign funding through projects or loans from foreign banks or governments, or by stimulating foreign investment. In many countries the setting up of a company is a fast process, and foreign investors receive tax or other incentives for investments. In most cases, the amount of foreign funding flowing to the CSO sector is just a small fraction of all the foreign funding flowing in the country.
On the other hand, once the narrative that CSO foreign funding leads to negative foreign influence is accepted, it sets a precedent and makes further restrictions on foreign funding legitimate. These again may come in various forms, including the requirement for permission to access foreign funding, limiting foreign funding to specific objectives, or creating lists of undesirable organisations (as we have seen in Russia). This will inevitably undermine an important source of income for independent civil society, and negatively impact critical areas of CSO operation.
Are foreign agent laws targeting CSOs the same as FARA?
The US FARA was adopted in 1938 to fight Nazi propaganda. While often cited as a reason for adopting foreign agent laws in other countries, there is one very important difference between FARA and laws similar to the one in Russia: FARA does not target CSOs specifically. Moreover, despite the fact that some of its formulations are vague, FARA is narrowly implemented:
- Under FARA one does not have to register simply because one receives funds from a foreign source. In fact, many US CSOs receive foreign funding and do not register.
- There are only 526 registered entities and individuals overall (as of November 2023).
- Most of those registered are law firms and lobbyists. Less than 5 % are CSOs, and those are mainly branches of foreign political parties.
Countries may have legitimate concerns that their policy-making might be influenced from abroad. However, we have seen that such arguments in reality may be used to introduce laws that restrict civic space. The unsupported assumption that foreign funding to CSOs equals foreign interference creates more problems than it solves: it is a slippery slope that unfairly targets CSOs and does not address the actual concerns for the dangers posed by foreign influence.