The 2012 Russian Foreign Agent Law : An evaluation of the legitimacy of the Foreign Agent Law with reference to freedom of association and expression as specified in the European Convention on Human Rights

Abstract

This paper analyzes the legitimacy of the newly adopted Russian Foreign Agent Law, which compels all politically active non-governmental organizations (NGOs) that receive foreign funding to register as ‘foreign agents’ with the Ministry of Justice (MoJ). The Russian authorities have viewed foreign funded NGOs as threats to their national security. Stricter regulatory control is justified with the need for supervisory oversight of their activities, prevent interference in the affairs of the state and to protect against attempts to exercise foreign influence. This thesis seeks to establish what implications such registration has for the operations of NGOs, and assesses the legitimacy of the provisions with reference to freedom of association and expression as prescribed in the European Convention on Human Rights (ECHR), in addition to their right to seek and secure resources. The research of this paper is qualitative in nature, principally based on a desk study and supplemented with some semi-structured interviews. The methodological approach can be described as an external approach of law, meaning the examination of how legal rules move into social reality through their application and interpretation in a given social, historical and political context. The results of this study show that the ‘foreign agent’ status restricts the organizations’ freedom of association and expression by discrediting them in the eyes of the public, consequently limiting their ability work efficiently in society. It demonstrates that the vagueness of the law provides too much discretionary power to the MoJ, consequently opening up for arbitrary application of the law. Ensuring organizational transparency and protection against attempts to exercise foreign influence do not constitute legitimate aims as prescribed in the limitation clauses of the ECHR, and the proportionality assessment indicates that the law was not necessary in the context in which it came about. The provisions of the law are thus clearly directed at restricting the independence and authority of NGOs. This study therefore demonstrates how States are increasingly establishing legal obstacles in order to limit the influence of civil society actors critical of the government