LUKAS HARTH, FLORIAN KRIENER, JONAS WOLFF
INTRODUCTION
Ever since the 2016 U.S. presidential elections, foreign interference in Western democracies’ domestic processes has been a major topic on both sides of the Atlantic. For instance, the Alliance for Securing Democracy at the German Marshall Fund of the United States has started to track “authoritarian interference” by Russia and China in North American and European countries. Situating foreign interference in a broader context of what is called hybrid threats, EU institutions have adopted a range of legislative acts, in policy areas like “energy security, safeguarding of critical infrastructure, data protection, screening of foreign investment and transparency of political funding.” In June 2020, the European Parliament (EP) decided to step up the fight against foreign interference by setting up a special committee endowed with the task to analyze the broad range of forms of foreign interference in democratic institutions and processes of the EU and its member states as well as to propose recommendations for a proper response. In March 2022, the EP officially adopted the committee’s report on “foreign interference in all democratic processes in the European Union.”
The starting point of the report is the perception “that malicious and authoritarian foreign state and non-state actors [such as Russia, China, and others] are using information manipulation and other tactics to interfere in democratic processes in the EU.” This threat perception has only increased with the Russian war of aggression against Ukraine, which was accompanied by “disinformation of an unparalleled malice and magnitude.” At its core, the report outlines a detailed list of elements for a future EU strategy against foreign interference.
One element of the report poses a serious problem. Based on an overly broad notion of what constitutes foreign interference that violates universal democratic and human rights standards, the report recommends potentially severe restrictions on the foreign funding of civil society organizations (CSOs). In doing so, in an official resolution adopted with overwhelming support, the EP explicitly endorses arguments that, in recent years, have been put forward by various governments around the world to justify what has been dubbed the “shrinking” or “closing” of civic spaces. This raises the concern that the EU’s response to what it perceives as a threat to democracy might, inadvertently, pave the way for measures that do more harm than good to democracy in Europe and worldwide.
In fact, there have already been initiatives within the EP explicitly aimed at increasing restrictions on EU-funded nongovernmental organizations (NGOs) as well. Most notably, back in 2017, a draft report on budgetary control of financing NGOs from the EU budget, among other things, included the demand to restrict EU funding to NGOs that “argue by means of verifiable facts” that their objectives are not “contrary to the fundamental values of the European Union, democracy, human rights and/or strategic commercial and security-policy objectives of the European Union Institutions.” Even if such ideas will perhaps never become official EU policy, one can well imagine certain EU member states using the EP resolution to justify their ongoing attempts to restrict foreign funding of CSOs. In addition, the EP’s approach to foreign interference also contradicts the EU’s external efforts aimed at countering the shrinking of civic spaces worldwide.
FOREIGN INTERFERENCE IN THE EP RESOLUTION AND IN INTERNATIONAL LAW
The EP’s call to action against foreign interference uses several key concepts in an overly wide manner—and in a way that sits uneasily with the EU’s own insistence on defending civic space in its relations with other countries.
First, the resolution argues that “foreign interference constitutes a serious violation of the universal values and principles on which the Union is founded,” including democracy and human rights standards, and that “information manipulation and other interference tactics to interfere in democratic processes in the EU . . . constitute a violation of international law.” Although the resolution mentions “foreign interference” repeatedly, it does not provide a definition for this term. In the end, therefore, foreign interference is generally presented as incompatible with international law throughout the entire resolution. In our opinion, this broad assertion does not conform to the standards of international law.
The majority of interferences by foreign states in the domestic affairs of another state are permitted under international law. The International Court of Justice (ICJ) famously held in its Nicaragua v. United States of America judgment that, to be in violation of international law, interferences must be “coercive,” which is the “very essence of prohibited intervention.” Coercion can only be assumed when a state (or in this case the EU) is effectively barred from exercising its sovereign will due to the external pressure from another state. In its case law, the ICJ has only assumed coercive intervention when a state supports violent insurgents in a foreign state or uses military force (see Democratic Republic of the Congo v. Uganda and Nicaragua v. United States). Furthermore, there is an emerging consensus that severe interferences with the election infrastructure of a state will amount to coercion, such as if voting machines were rigged. Below this threshold, interferences are generally considered permissible.
Attempts by some states to outlaw interferences in a broader sense have frequently not attracted a consensus (such as in the United Nations General Assembly) and are therefore not generally accepted as rules of international law. Less intrusive interferences, including the influence of public opinion and decisionmaking processes in other states, are frequently practiced by a variety of states, including the EU and most of its member states, for instance in the context of international democracy and human rights support. They constitute a general practice among states and therefore do not in their entirety violate international law. The broad employment of “foreign interference” thus seems to exceed the scope of prohibited intervention in international law.
Second, the resolution classifies “foreign interference, information manipulation and disinformation” as an “abuse of the fundamental freedoms” enshrined in the Charter of Fundamental Rights of the European Union. Again, the resolution does not define the meaning ascribed to the term “abuse” or give further arguments about why these activities would qualify as an abuse. This is particularly worrying as the implications of an abuse of rights are far reaching. As stipulated by Article 54 of the charter, EU rights and freedoms do not protect any activity aimed at the destruction of the rights enshrined in the charter. Accordingly, someone trying to destroy the charter rights will not enjoy the fundamental rights protection in this endeavor. Due to this far-reaching consequence, international human rights bodies have been very careful in assuming an abuse of rights. They have only applied the abuse of rights provision against extremist organizations seeking to establish a fascist or otherwise totalitarian government. (See cases expounded by the European Commission for Human Rights regarding the German Communist Party and the Human Rights Committee in M.A. v. Italy). Due to the destructive nature of these ideologies, a state could not stand idly by and allow these totalitarian groups to gain power through legal means. Accordingly, an abuse of rights may only be assumed when there is an extraordinary danger to the democratic order emanating from the group in question. Therefore, not all foreign interferences, information manipulations, or acts of disinformation can qualify as an abuse of rights. Such actions are regularly used to gain short-term political advantages without seeking a fundamental change in the system of government. The resolution’s assertion is thus overly broad.
Third, the resolution argues in favor of increasing the transparency of foreign funding of CSOs. It aims to ensure “that all non-profit organisations, think tanks, institutes and NGOs that are given input in the course of parliamentary work into the development of EU policy or any consultative role in the lawmaking process are fully transparent, independent and free from conflicts of interest in terms of their funding and ownership.” The meaning of “transparency” and “conflict of interest” are, again, not defined. Yet the context of the resolution and its preambles suggest that any contributions from Russia or China would amount to a conflict of interest. Similarly, the resolution expounds that “it should therefore be made illegal in all Member States to engage in any covert activity financed by foreign actors that aims to influence the process of European or national politics.” Thereby, even minor covert funding could be outlawed.
These very broad standards on covert foreign funding and transparency stand in contrast to recent jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). In Ecodefense and Others v. Russia, the ECtHR held that NGOs generally have a right to receive foreign funding. This may only be restricted in a commensurate manner to the alleged threat. Blanket restrictions on foreign funding seem incompatible with this principle. In this line, the CJEU highlighted in European Commission v. Hungary that the transparency restrictions on foreign funding must not have a deterring effect on civil society. Accordingly, transparency requirements must remain minimal, unless there is a specific threat that requires further oversight and control. In particular, foreign funding should only be subject to reporting requirements if it passes a certain threshold. The meanings of “transparency,” “conflict of interest,” and “covert funding” thus require further definition. Otherwise, there is risk of restricting the space for CSOs in an excessive manner.
FOREIGN INTERFERENCE AS A JUSTIFICATION OF CIVIC SPACE RESTRICTIONS
As this analysis of the EP resolution on foreign interference shows, the resolution employs at least some international legal concepts in an overly broad fashion. This has the immediate implication that the resolution’s proposals may not be fully in accordance with or even required by international law. What is more, the arguments and recommendations put forward by the EP could themselves enable future violations of human rights standards within the EU or, at least, be used by governments within and outside the EU in order to justify overly restrictive policies concerning the foreign funding of CSOs.
As emphasized in the beginning, the use of concepts such as “foreign interference,” “abuse,” and “covert funding” bears striking similarities to the justifications put forward by governments that have, during the last two decades, adopted harsh NGO laws restricting the foreign funding of domestic CSOs and/or discriminating against foreign-funded CSOs as “foreign agents” (see the examples cited by Douglas Rutzen, Maina Kiai, and Annika Elena Poppe and Jonas Wolff). As Rutzen noted back in 2015, the argument that states have to protect themselves “from foreign interference in domestic political affairs” constitutes a prominent justification of foreign funding restrictions. The individual statements Rutzen cites echo the EP resolution’s notion of a “conflict of interest”: According to Russian President Vladimir Putin, for instance, Russia’s so-called foreign agents law merely aimed at ensuring “that foreign organisations representing outside interests . . . would not intervene in our domestic affairs.” Along similar lines, Hungary’s Prime Minister Viktor Orbán in 2014 justified the monitoring of CSOs as a means of ensuring transparency when it comes to foreign influence that is exercised through supposedly domestic CSOs. And just as the EP wants to make sure that CSOs and think tanks that give input on EU policy “are fully transparent, independent and free from conflicts of interest,” Rutzen quotes the sponsor of a draft foreign agents law in the Israeli Knesset who emphasized that organizations should have an “obligation of proper disclosure, in which they have to present themselves as clearly representing foreign interests.”
In fact, another major argument made to justify restrictions on foreign-funded CSOs has been the need to ensure transparency and accountability. In response, the then special rapporteur on the rights of freedom, peaceful assembly, and of association, Maina Kiai, argued in a 2013 report to the UN Human Rights Council that foreign-funded CSOs “should be accountable to their donors,” not to the respective national governments. Transparency requirements, according to Kiai, are only permitted if necessary to prevent illegal activities and should, at most, consist of “a mere notification procedure of the reception of funds and the submission of reports on their accounts and activities.” Kiai’s fairly maximalist interpretation of CSOs’ “right to seek and use foreign funding,” while very much contested, was explicitly endorsed by the EU. Indeed, just one day prior to the adoption of the report on foreign interference, on March 8, 2022, the EP passed the resolution “Shrinking space for civil society in Europe,” which notes that “restrictions imposed on CSOs receiving foreign funding is contrary to Union law” and emphasizes “a presumption in favour of CSOs’ freedom to seek and receive funding from any source.”
The other way around, in its own response to the global shrinking civic space phenomenon, the EU, along with EU member states and other state and nonstate donors, has deliberately tried to circumvent restrictions imposed on the foreign funding of CSOs, such as using more covert means to support human rights defenders under threat. In its response to civic space restrictions, for instance, the EU has been relying increasingly on the European Endowment for Democracy (EED), which is formally independent of the EU and has less rigid funding rules and more room to operate in politically difficult contexts. In line with the EP resolution analyzed here, critics may well argue that the EED is precisely an instrument that provides covert funding to interfere in the domestic politics of other countries. In a similar vein, the wording of the EP resolution risks undermining the criticism of civic space restrictions, including of foreign funding restrictions of CSOs, as contained in documents like the EU Commission’s Rule of Law Reports.
CONCLUSIONS
Policymakers and experts seeking to work against the global spread of restrictive NGO laws frequently emphasize the problem of overly vague language that designates political activities by foreign-supported CSOs as intrinsically problematic and thus to be restricted or even prohibited. When it comes to the nature of those restrictions, registration and reporting requirements have been identified as key mechanisms used to ensure state control over CSOs. Fortunately, there is no reason to assume that the EP resolution on foreign interference is part of a deliberate attempt by EU institutions to adopt similar regulations with the aim to restrict civic space across the countries of the European Union. Yet, as mentioned in the beginning, there are members of the EP that do aim at imposing restrictions on EU-funded NGOs. In 2017 the EP, including the conservative sponsors of the Draft Report on Budgetary Control of Financing NGOs From the EU Budget from the European People’s Party (EPP) Group, decided to shelve the proposal after Orbán “compared it to a controversial Hungarian bill.” However, the debate about whether and how to increase the “accountability” and “transparency” of EU-funded NGOs is far from settled.
Even if EU institutions will continue to refrain from adopting restrictive policies themselves, our analysis shows that the legal language of the resolution could well be used by other actors that do pursue such a strategy in order to justify their behavior. At the same time, such an all-encompassing approach against foreign interference will weaken the EU’s diplomatic efforts against restrictive foreign-funding regulations vis-á-vis both member states such as Hungary and on the international stage.
The counterterrorism regulations developed by the Financial Action Task Force (FATF) might serve as a warning in this regard. In response to the terrorist attacks on the United States on September 11, 2001, the FATF adopted Recommendation 8, which identified nonprofit organizations as “particularly vulnerable” to be used for the financing of terrorism. In the following years, this guideline served to justify the implementation of overly restrictive NGO rules all around the world (see the studies by Thomas Carothers and Saskia Brechenmacher and Ben Hayes). And when, in 2016, civil society activists finally convinced the FATF to revise the contested norm, “much of the damage was already done.”
The EU would be well advised to take this experience into consideration when further developing its own approach to what it perceives as malign foreign interference. This applies both to the EP itself, which has already established a follow-up special committee tasked with refining and implementing the report from its predecessor, and to the other EU institutions that are supposed to take up the recommendations from the resolution. To minimize the risks identified in this contribution, the EU should revise its approach to foreign interference so that it is more targeted, better anchored in international law, less vulnerable to misuse, and in line with the EU’s own activities in the area of international democracy and human rights support.
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