By Gökalp Erbaş
A comparison of the cases of Georgia, Hungary, Slovakia and Türkiye where the law is relatively new or has been discussed.
Georgia
Georgia may be the best recent example of the US and EU’s attitude towards foreign agent legislation in countries that are shifting from pro-west international alignment or showing tendencies to do so. Since the bill was introduced in the Georgian parliament, the US has been making very clear threats. White House Press Secretary Jean-Pierre has publicly stated that the US would radically change its relations with Georgia if the law were enacted. O’Brien, the head of the US Office of Sanctions Coordination, has also signaled that sanctions will be imposed if the draft approved by the parliament remains unchanged. Many sanctions have already been imposed, including visa restrictions on Georgian citizens and a freeze on EU funding to Georgia. From the EU’s point of view, the adoption of the law would jeopardize Georgia’s possible EU membership the most. In a telephone conversation with an EU commissioner, Georgian Prime Minister Kobakhidze was threatened with “suffering the fate of Fico”, the Slovak Prime Minister who was assassinated and seriously wounded last May.
NGOs have been engaged in a very systematic and organized opposition to the law since the day it was first discussed. Under the umbrella of the Georgian Civil Society Institute, hundreds of NGOs, led by the Open Society Foundation, have been issuing joint declarations and organizing organized street demonstrations. Thousands of NGOs, active in every field imaginable, somehow(!) act like an army in every policy except Georgia’s sovereignty and in accordance with the US/EU line. In this case, even though the Georgian government is generally in line with the West, it has mobilized the Georgian government and public opinion on a “Law on Transparency of Foreign Influence” inspired by the American FARA and the Russian foreign agent law. In February 2023, the first draft of the law was introduced in parliament but was withdrawn in March due to street protests led by NGOs. Last May, the third and final revised draft of the law was submitted to parliament and passed by 84 votes to 30. On 18 May, the law was returned to parliament after being blocked by a presidential veto. However, it was passed by the parliament again on 28 May. It is anticipated that the law will be put into practice in the coming weeks.
Foreign funding is a key point in the Georgian version of the law. The law applies to NGOs that receive more than 20 per cent of all their income and media organizations that receive more than 20 per cent of their non-commercial income annually from a foreign source. Individual Georgian citizens who receive such funding from foreign sources are not covered by the law per se, but if this income is transferred to these NGOs or media organizations through various means and if this amount falls within the mentioned percentage, these institutions are covered by the law.
Organizations that receive the above-mentioned percentage of funding from foreign sources that meet these conditions must register through a process run by the Ministry of Justice. Organizations that are registered as “organizations operating in the interests of a foreign power” must make their status publicly visible. Organizations will be inspected every six months by Ministry of Justice officials and will face fines if they fail to meet the certification requirements set out in the law. In its current form, the law does not give the ministry the power to terminate the activities of the organization in question. The sanctions of the law are limited to various fines in different cases.
Slovakia
Slovakia elected a new coalition government in October last year and a new president in April 2024. The main agenda of the 2023 elections was high inflation, the energy crisis due to the war in Ukraine, corruption within the state, migrants and LGBT. Robert Fico’s return to government came at a time when the majority of Slovaks clearly felt that the military, financial and cultural sacrifices made to the EU had not paid off. According to recent polls, half of the population sees the United States as a security threat, while 60 per cent do not see Russia as responsible for the war in Ukraine. At a time when countries around the world were increasing their military defense capacities, the government was donating a fleet of fighter jets to Ukraine with a sudden decree. At a time when food security was recognized as a major issue for the foreseeable future on the continent, import laws were being changed in favor of Ukraine at the expense of Slovak farmers. There was a visible population problem in Europe. Although the main causes were based on much deeper sociological realities, LGBT ideology’s attempt to dismantle the heterosexual relationship and the classical institution of the family began to be seen as one of the sources of the population problem. This environment prepared the ground for Fico and his SMER party. “From now you will hear the voice of an independent Slovakia from Slovak ministers and you will see an independent Slovak foreign policy”, Robert Fico exclaimed after winning the election. And so the first act of the new government was to suspend financial and military aid to Ukraine and to activate the channels of communication with Moscow. The Slovak government now argues that it is not in Slovakia’s interest not to act independently, that this is not Europe’s or even Ukraine’s war, but the US’s war with Russia.
Fico’s quest for an independent foreign policy put the foreign agent law on Slovakia’s agenda. According to data, more than 80,000 NGOs are active in the country. Although Slovakia’s proposed law has been submitted to the parliament in draft form, it is not yet possible to make clear comparisons. However, the law basically works as follows: NGOs that receive more than €5,000 in annual funding from foreign sources must register as a “foreign-funded organisation” and carry this sign while operating. They are also obliged to present the nationality, identity and donation amount of all donors in an annual report. The government has a plausible argument: if these NGOs represent the Slovak people, why can’t they survive without foreign funding and why can’t they rely on the people whom they claim to represent?
Hungary
In June 2017, the Hungarian Government led by Viktor Orban submitted a draft law for parliamentary approval and passed it. The law required NGOs operating in Hungary with foreign aid in the amount of approximately €24,000 per year to be labelled as “foreign-funded organizations” and to fulfil various transparency obligations. The law had to be revoked in 2020 after the European Court of Justice ruled that it was invalid under EU law. However, Hungary has not stopped dealing with NGOs and the national threats they pose. In December 2023, the “Act on the Defense of National Sovereignty” was passed by the parliament. The main motivation for the law was in particular the financing of election campaigns by Hungarian politicians with money from outside the country. The 2022 elections were full of scandals in this respect. Péter Márki-Zay, the prime ministerial candidate of the united opposition to Orban, admitted in statements after the election that he had received hundreds of thousands of dollars in aid from the United States alone. We know that Hungarian law prohibits political parties from receiving foreign aid, and this is also the case in most countries. How then does the political funding system work? Just before the elections, a US-based NGO called “Action for Democracy” (A4D) was set up. This NGO collects large sums of money through large-scale donation campaigns and passes them on to Hungarian NGOs. From these local NGOs the budget for the election campaign is organized. The advisory board of this NGO includes names such as former NATO commanders, former US Deputy Defense Secretaries and former ambassadors.
The law takes measures to prevent and expose these indirect money transfer mechanisms. According to the law, an Office for the Protection of Sovereignty will be created to oversee the fulfilment of the law’s requirements. The office will present a National Sovereignty Report to the public every year. The report will consist of financial analyses conducted by the office on NGOs throughout the year.
Türkiye
In Türkiye, the debate started with an article in the 9th Judicial Package, the latest draft of which was recently sent to parliament. Unlike the other examples we have analyzed, the “law on influence espionage” in previous drafts did not constitute a separate law. It was an additional provision in the espionage law on what is legally considered espionage. The official justification and purpose of the proposed law reads as follows: “Apart from the provision or disclosure of documents and information, no sanctions are envisaged for other activities carried out to the detriment of the security of the State and its internal or external political interests. The article aims to sanction certain acts carried out in line with the strategic interests or instructions of a foreign state or organization to the detriment of the security and internal or external political interests of the State by introducing a new offence under the name of “other activities”.” We saw that this article was removed from the latest draft submitted to the parliament in July.
Even if the proposed article had been included in the final draft of the judicial package, as will be seen, we would not see it in the same family with foreign agent laws around the world. There is a fundamental difference between this proposed law and the examples we have analyzed. In other cases, the funding of local NGOs by foreign sources and the indirect transfer of funds to political forces and the circumvention of national laws were perceived as a risky situation. Therefore, they have responded with laws requiring transparency, accountability and systematization with varying degrees of strictness. In Türkiye, however, the law on influence espionage within the Espionage Law, which has flickered in and out of existence for a short period of time, introduces an additional criminal definition of the offence and provides a punishment-oriented response. While it shares the rationale of protecting the sovereignty of the state against foreign-backed lobbying activities, it differs completely in terms of function and criteria.
For NGOs and especially digital media organizations in Türkiye that follow the political agendas of foreign states, the need to make their financial and political relations transparent to the public has become apparent. It is clear that an unregulated NGO structure has a negative potential, ranging from circumventing the law to becoming an apparatus for color revolution plans, as in Ukraine and Georgia. The transparency of foreign-funded lobbying and media activities is now considered a matter of sovereignty by both sides of the international polarization. However, the collective West is also hypocritical on this issue. For example, it sees the law as legal and democratic for the US and Israel or favors temporary sanctions with the same functional outcomes; but for the forces rising against it, it only portrays similar legislation as a lawless intensifier of authoritarianism.
Conclusion
Among the criticisms of the law, the risk of political abuse and the alleged negative impact of being labelled as a “foreign-backed organization” on the image of the organization are certainly not baseless. In order to reduce the risk of abuse significantly, the law should be harmonized with the Constitution and the ambiguous expressions such as “state interests”, “situations that endanger the sovereignty of the state”, “for or in the interests of foreign sources” should be clarified. “Foreign financial assistance in a certain proportion” is currently the most logical evaluation criterion for the registration of NGOs under the law. In addition, while there should be criminal sanctions for deviating from registration protocols, the focus of the law should be on monitoring and informing the public, not the punishment. If the evaluation is based on rhetoric and impressions rather than clear indicators, the law may be open to abuse and may damage its reputation in the eyes of the public. The issue of negative image can be seen as a trade-off created by the transparency that the law will bring. In a truly globalized world where hegemony has ended, perhaps external funding would no longer pose the current dangers. However, at the moment, considering the risks that such a law would eliminate, this trade-off seems acceptable.
References
- Law Of Georgıa On Transparency Of Foreıgn Influence. (n.d.). სიპ ”აქართველოს აკანონმდებლო აცნე”.
- https://matsne.gov.ge/en/document/view/6171895?publication=0
- OECD (2024), OECD Economic Surveys: Slovak Republic 2024, OECD Publishing, Paris, https://doi.org/10.1787/397ca086-en.
- info@finstat.sk. (n.d.). Databáza nadácií, neziskových organizácií a združení – prijatie a použitie podielu 2% z dane, hospodárenie, účtovné závierky. https://finstat.sk/databaza-nadacii-neziskovych-organizacii-zdruzeni?page=8
- Act LXXXVIII of 2023 on the Protection of National Sovereignty. (2023, December). Magyar Közlöny.
- Őry, M. (2022, September 27). Hungarian Opposition Received Millions from the USA – Politics. Hungary Today. https://hungarytoday.hu/hungarian-opposition-received-millions-from-the-usa/
- 9. Yargı paketi. (n.d.). hukukihaber.net. https://hukukihabernet.teimg.com/hukukihaber-net/uploads/2024/07/9-yargi-paketi.pdf