Legislating against foreign funding of human rights: A tool of repression in the former Soviet Union
This article by EHRAC Lawyer Kate Levine originally appeared in Sharing worst practice: How countries and institutions in the former Soviet Union help create legal tools of repression, a Foreign Policy Centre publication launched on 26 May 2016, ed. Adam Hug.
The ability of civil society organisations (hereafter: ‘NGOs’) to seek, secure and use resources, including foreign funding, is a fundamental component of their right to exist and effectively operate. The latter is given legal expression in the right to freedom of association, as codified in international human rights law. That states are permitted to regulate, in accordance with the law and subject to certain criteria, the establishment and operation of NGOs within their jurisdiction is not disputed. However, lawful regulation of NGOs must be distinguished from violations of their right to freedom of association, including through unjustified attempts to restrict their access to funding (foreign or local). An alarming increase in legislative efforts to severely limit access to foreign funding for NGOs (often under the guise of ‘protecting national security’) has been widely documented in recent years. The examples are by no means geographically limited, and encompass the Middle East and North Africa, south Asia, sub-Saharan Africa, and Latin America, as well as the former Soviet Union. This article focuses on the particularly hostile tactics employed by the Russian Government, and the efforts of the Yanukovych regime in Ukraine and the incumbent Government of Kyrgyzstan to mirror these practices. It also looks at amendments to existing NGO laws in Azerbaijan that have made it practically impossible for local human rights NGOs to receive foreign funding. The harm caused by the application of these laws is twofold: not only has it become incredibly challenging for local human rights NGOs in these countries to sustain themselves (in some cases resulting in their closure), but navigating the new legal landscape diverts considerable time and resources away from the core work of protecting human rights. Furthermore, foreign donors have in many cases been forced out. This article highlights some of the reactions of NGOs and international bodies to these challenges, and concludes by considering possible shared motives behind the laws in question.
Access to foreign funding within the international human rights law framework
At international level, the right to freedom of association is enshrined in Article 22 of the United Nations (UN) International Covenant on Civil and Political Rights (ICCPR). Although the text of Article 22 does not expressly refer to the right of civil society to access funding, the UN Human Rights Committee and the UN Special Rapporteur on the Right to Freedom of Association have underlined that this provision incorporates the ability of individuals and NGOs to seek, receive and use resources (human, material and financial) from domestic and foreign, public and private, sources. Further, Resolution 22/6 of the UN Human Rights Council, Article 6(f) of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and Article 13 of the UN Declaration on Human Rights Defenders refer to the right of individuals and NGOs to seek and use financial resources for the promotion and protection of human rights and the concomitant duty of states to not unreasonably restrict the exercise of this right. Within the Council of Europe, the right to freedom of association is guaranteed by Article 11 of the European Convention on Human Rights (ECHR), and the incorporation of the right of access to financial resources is affirmed by resolutions, reports and statements issued by the Committee of Ministers, the Expert Council on NGO Law of the Council of Europe Conference of INGOs and the Parliamentary Assembly, among others. It is therefore not disputed that the obligation on states to enable individuals and NGOs to seek, secure and use financial resources is fundamental to the exercise of the right to freedom of association. For restrictions on any aspect of the right to freedom of association to be lawful under the ICCPR and the ECHR, they must be “prescribed by law”, “necessary in a democratic society in the interests of national security or public safety”, including for the protection of public order, public health or morals, or for the protection of the rights of others (under Article 22(2) ICCPR and Article 11(2) ECHR). The recent attempts by Russia, Azerbaijan, Ukraine and Kyrgyzstan to restrict the freedom of association of NGOs through impeding access to foreign funding (as discussed below) are clearly unlawful and form part of a wider crackdown on independent civil society and the protection of human rights.
Russia’s stigmatisation of foreign funding
Following President Putin’s re-election in 2012, a raft of repressive laws were enacted, one of the key aims of which is to stifle dissent and the work of human rights defenders by clamping down on peaceful protests and restricting freedom of speech. Key among these laws is the Federal Law introducing Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of Activities of Non-Commercial Organisations Performing the Function of Foreign Agents, otherwise known as the ‘Foreign Agents Law’, which was enacted on 21 November 2012. The ‘Foreign Agents Law’ requires Russian NGOs to register as ‘foreign agents’ with the Ministry of Justice if they engage in ‘political activity’ and receive foreign funding. The initial definition of ‘political activity’ was very vague, and an amended definition adopted by the Duma in February 2016 may encompass all aspects of advocacy and human rights work. Further, the connotation of ‘foreign agent’ as a spy or a traitor in the post-Soviet context is unambiguous. In May 2014, the Ministry of Justice was granted authorisation to unilaterally register NGOs as ‘foreign agents’ without their consent if the Ministry decides that they are engaged in ‘political activity’ and they are in receipt of foreign funding. NGOs refusing to register within six months of being designated a ‘foreign agent’ by the authorities face potentially crippling fines, or even suspension (without a court order) at the discretion of the Ministry of Justice. Further, any information published by an NGO on the registry of ‘foreign agents’ must be marked as being published and distributed by an organisation ‘performing the functions of a foreign agent’. As noted by Amnesty International, the Law was ‘designed to stigmatise and discredit NGOs engaged in human rights, election monitoring and other critical work. It is providing a perfect pretext for fining and closing critical organisations and will cut often vital funding streams’.
Building on the efforts of the ‘Foreign Agents Law’, on 23 May 2014 President Putin signed Federal Law No. 129-FZ on Amendments to Certain Legislative Acts of the Russian Federation (Law on Undesirable Organisations), which entered into force on 3 June 2015. Under the new law, foreign or international organisations (such as donors) can be declared ‘undesirable’ by the Prosecutor General’s Office (with agreement of the Ministry of Foreign Affairs) if they are deemed a threat to the state’s “constitutional order, security of the State or its defence capacity”. Organisations labelled ‘undesirable’ (through a process which is not disclosed) are prohibited from operating or distributing information in Russia. Moreover, Russian organisations are not only required to cease ‘involvement’ (defined in broad terms) with ‘undesirable’ organisations but must also refuse funds from such groups. Continued cooperation exposes local groups to heavy fines and even criminal prosecution. Although on its face a direct attack on foreign and international groups, the Law is ultimately aimed at “suffocating Russian civil society, cutting them off from their international partners, and leaving them in limbo”.
‘Copycat’ measures in Ukraine and Kyrgyzstan
Less than a year after the adoption of the ‘Foreign Agents Law’ in Russia, its attraction to other repressive governments in the region was becoming evident. In response to the growing momentum of the anti-government protests at Maidan, in January 2014 the Ukrainian Parliament adopted a number of measures designed to restrict human rights. One such law amended the existing legal framework on NGOs so as to allow groups receiving foreign funding and engaging in so-called ‘political activities’ to register as ‘foreign agents’. The law was then swiftly repealed by Parliament when pro-Russian President Yanukovych fled the country and an interim Government was formed. In May 2014, a group of Parliamentarians in Kyrgyzstan introduced a draft law that imposed much of the same requirements through enacting amendments to a number of existing laws regulating NGOs. Pursuant to the draft, the Kyrgyz authorities would be able to label NGOs receiving foreign funding and conducting ‘political activity’ (broadly defined) as ‘foreign agents’. As of April 2016, the Kyrgyz Parliament is considering a revised draft of the law that no longer includes the provisions on ‘foreign agents’ but imposes burdensome (and arguably unnecessary) reporting requirements on all NGOs. These requirements may be deemed ‘unnecessary’ restrictions on the right of NGOs to freedom of association.
Azerbaijan’s shrinking space for foreign funding
In 2013 and 2014, Azerbaijan introduced a number of restrictive amendments to its NGO laws. Of particular significance for groups seeking or relying on foreign funding were amendments to the Laws on NGOs and on Grants introduced in October 2014. Pursuant to these changes, local NGOs are allowed to receive foreign funding only if the foreign donor has an agreement with the Ministry of Justice, a registered local branch or representative, and has obtained the right to give a grant in Azerbaijan (for which an opinion on the financial need of the grant issued by a state body is required). These changes followed amendments to the Law on NGOs introduced in February and December 2013 respectively. The former impose a threshold (AZN 200, approx. £90) for cash grants, require larger grants to be made by bank transfer to an account held by the organisation itself, and require grants to be registered with the Ministry of Justice in order to qualify for tax exemption. Under the December 2013 amendments, individual recipients of grants must also register grants in the same way as registered organisations. Given the burdensome registration requirements and severe delays in registration of NGOs, many unregistered groups would have received funds via the bank accounts of their chairs or founders; under the 2013 amendments, this is effectively prohibited. In several judgments, the European Court of Human Rights has found that the burdensome registration requirements and delays in registering NGOs breached the ECHR. All of the amendments also introduced hefty sanctions, including fines. Adopted at a time of increasing repression of independent civil society in Azerbaijan, these amendments have been used to convict leading NGO leaders (such as Rasul Jafarov, Chair of the Human Rights Club, and Intigam Aliyev, renowned human rights lawyer and Chair of the Legal Education Society) on politically motivated charges stemming from alleged failures to comply with the NGO laws. Notwithstanding that some of the human rights defenders who were convicted (including Intigam and Rasul) have now been released, they and others are still forced to operate within an even more obstructive legal environment.
Impact of these laws and reactions from NGOs and international actors
In Russia, over 122 NGOs have been designated as ‘foreign agents’, including many of the most prominent human rights groups such as Memorial Human Rights Centre, Public Verdict Foundation and the interregional NGO Committee Against Torture. The majority of groups on the register were identified as ‘foreign agents’ following a series of invasive state inspections in March 2013, as a result of which the groups were then forced to register or face administrative charges. Some groups decided to shut down instead of carry the shameful label of ‘foreign agent’. Although a handful of these groups have restructured under a different name, others have closed down forever and their staff are either working independently or for other organisations (some outside of Russia). Nearly 60 groups have been subject to administrative court proceedings and fined for failing to register as a ‘foreign agent’, and the leaders of at least eight NGOs have faced administrative charges personally. Further, as a direct result of the enforcement of the ‘Law on undesirable organisations’, several large foreign donors have either been banned from grant-making in Russia (the Washington based National Endowment for Democracy, and George Soros’ Open Society Foundations and the Open Society Institute’s Assistance Foundation), or have decided to cease doing so in light of the risk of being labelled ‘undesirable’ (the MacArthur Foundation and the Charles Stewart Mott Foundation). Russian NGOs and have also sought to fight back through a combination of legal action, advocacy, and attempts to circumvent the laws. In February 2013, Memorial Human Rights Centre and the European Human Rights Advocacy Centre brought a case against Russia (Ecodefense and others v Russia (No. 9988/13) – pending communication) at the European Court of Human Rights on behalf of originally 13 (now 15) Russian NGOs, in which the applicants allege that the ‘Foreign Agents Law’ and its enforcement violates their rights to freedom of association and expression under the ECHR. A positive judgment from the Court would give international judicial support to the unanimous condemnation of the Law by international civil society, the United Nations, the European Union, the Council of Europe Commissioner for Human Rights and the Parliamentary Assembly, and the European Commission for Democracy through Law (‘Venice Commission’). A serious concern though, is that by the time the Court issues a judgment, the landscape of Russian civil society may have irreparably changed. There has also been unequivocal condemnation of the ‘Law on undesirable organisations’, though no legal challenges have yet been brought.
The enforcement of recent amendments to the NGO laws in Azerbaijan has only intensified the repression of organisations that have been critical of the Government. As noted, it has also facilitated the prosecution of leaders of these organisations in what have widely been classified as politically motivated prosecutions. The majority of these cases were brought during Azerbaijan’s Chairmanship of the Council of Europe’s Committee of Ministers, prompting even fiercer criticism from some organs of the regional grouping; though others argued that this ‘fait accompli’ has merely underlined the increasing loss of influence of foreign diplomacy on the Aliyev regime. International organisations, including donors operating in Azerbaijan have also come under attack, with several (such as the National Endowment for Democracy and Oxfam) being forced to close down their operations in the country.
The impact of the short-lived imitation of the ‘Foreign Agents Law’ in Ukraine is perhaps difficult to discern in the aftermath of the Maidan protests and the overthrow of President Yanukovych. However, it did underline the political influence of Russia on Ukraine, which continues to be evidenced in the conflict between pro-Russian ‘separatists’ and Ukrainian forces in eastern Ukraine. In Kyrgyzstan, it remains to be seen whether the draft amendments to the NGO laws have nearly the same impact as in Russia, Ukraine or Azerbaijan.
While Azerbaijan adopted a different model to Russia, Ukraine, and Kyrgyzstan, the underlying rationale of all of these laws is the same: to reduce the space within which independent civil society can operate, including through restricting access to foreign funding. Where the laws in question have been implemented (Russia and Azerbaijan), civil society (and human rights defenders and their NGOs in particular) have come under significant pressure, including through being forced to allocate scarce resources to managing the effect of the laws’ implementation while continuing to seek protection and redress for victims of human rights abuses. These laws have also succeeded in bringing to a halt the operations of a number of foreign donors in these countries.
There does not appear to be irrefutable evidence that Azerbaijan was directly encouraged by Russia to adopt the various amendments to the NGO laws; although analysed together, the ‘Foreign Agents Law’ and the Azerbaijani NGO laws (and the examples from Ukraine and Kyrgyzstan) certainly point towards a trend in the region to clamp down on civil society through attacking the credibility of NGOs and cutting off a key source of support. The promulgation of these laws appears to be based on a shared mistrust by these states of independent NGOs who receive foreign funding and who may have the potential to influence the political status quo. In Ukraine, for example, foreign support for local organisations involved in the 2004 ‘Orange Revolution’ led some, including the Russian Government, to claim that the political changes then and in 2014 were orchestrated by Western governments and private philanthropists, acting from behind the scenes. This suspicion has only worsened in Russia in particular where, following the annexation of Crimea, President Putin claimed that:
“Western special services do not give up their attempts to use non-governmental groups to discredit Russian authorities and destabilise the internal situation in Russia. They are already planning actions for the period of the forthcoming elections in 2016 and 2018.”
Given the express similarities in the language used in the Ukrainian and Kyrgyz ‘Foreign Agents Laws’ and the Russian law, it is difficult to avoid the conclusion that the former took direct inspiration from the latter. Without access to the machinations of political elites, it is much harder to determine whether the adoption of these laws was the result of active collaboration between the States in question. However, on the evidence that we have available to us so far, it seems clear that Russia has, and continues to, fuel the notion that Western interference in the state’s ‘internal affairs’ must be blocked through, for example, cutting off access for local civil society to Western support and engagement. The distrust of independent national and international civil society evidenced by these states is fundamentally opposed to the norms of international human rights law, which, as discussed, protects the right to freedom of association, including the right of NGOs and individuals to seek, secure, and use resources.
 See for example: The Observatory for the Protection of Human Rights Defenders, ‘Violations of the right of NGOs to funding: from harassment to criminalisation’, Annual Report 2013;
 A legal challenge to the Law was also mounted before Russia’s Constitutional Court, although ultimately the Court upheld the Law.