13 May 2024

Challenges to Georgia’s EU Integration: Is the Georgian ‘Russian Law 2.0’ contrary to the Georgian Constitution?

Georgia has garnered attention for its protests against the Law ‘On Transparency of Foreign Influence’, which has been also labelled the ‘Russian Law 2.0’. International NGOs and human rights organizations have primarily focused on the potential violations of the rights to freedom of expression and association, and rightly so. However, the question our contribution poses is different: will the ‘Russian Law 2.0’ be be contrary to the Euro-Atlantic provisions in the Georgian Constitution?

The Draft Law ‘On Transparency of Foreign Influence’ aims to regulate various organizations operating within Georgia and was originally submitted by the ruling pro-Russian ‘Georgian Dream’ party in March 2023. Specifically targeting non-governmental and media entities receiving more than 20% of their annual income from foreign sources, the law mandates their registration as organizations serving the interests of foreign agents. Some reports have rightly dubbed the Georgian Draft Law as ‘Russian Law 2.0’ since it mirrors the Foreign Agents Law adopted in Russia in 2012. The Russian government used the legislation to exercise state control over media and NGOs, as documented by Human Rights Watch already in 2013. Moreover, some scholars claim that the Foreign Agents Bill in Russia has given unlimited power to the executive branch and ‘turned the rule of law into a fiction’.

In February 2023, 400 Georgian NGOs and media outlets have issued a statement claiming that ‘the attempts to adopt this Russian bill attack not only the independent civil society organizations and the critical media, but the people of Georgia themselves.’ The Georgian Dream party was forced to withdraw the draft law after massive protests by the Georgian population in March 2023. What is more important, Georgia was given the EU candidate status for membership in December 2023.

Contrary to its previous commitments not to propose such a law, the Georgian Dream Party reintroduced a revised version of the Law in April 2024 with a minor shift in terminology, replacing ‘agents of foreign influence’ with ‘organizations pursuing the interests of a foreign power.’ Beyond this semantic change, the law retains far-reaching powers to interfere with the functioning of such organizations.

Committed to their preference for a European future, as of May 1st 2024, the Georgian people have shown steadfast determination in their protests against the ‘Russian Law 2.0’, taking to the streets for over three weeks. Massive rallies in Tbilisi, featuring the EU and Georgian flags assembled masses under the main slogan ‘Yes to Europe, No to Russian Law’. The resolve of the Georgian people to protest seems to match the unwavering determination of the Georgian Parliament to adopt the Law: it has passed two readings, and Parliament aims to pass it in the third reading by mid-May 2024.

It is not surprising the path chosen by the Georgian Parliament was openly welcomed by the Deputy Chairman of the Russian Security Council, Dmitriy Medvedev, who supported the reintroduction of the Law. Alarmingly, Russian influence is getting traction in its neighboring countries. In Kyrgyzstan, a recent law on ‘foreign representatives’ mandates non-profit organizations, including media outlets, to identify themselves as such and submit regular financial reports. Similarly, in Abkhazia, a breakaway region within Georgia occupied by Russia, legislation mirroring Russia’s ‘foreign agent’ law is being considered, raising concerns about the erosion of democratic principles and confirming the Russian influence. This ‘Russian-inspired path’ stands in contrast to the Euro-Atlantic aspirations of the Georgian people and the Georgian constitution.

What do the Georgian Constitution’s Euro-Atlantic provisions have to do with the Foreign Influence Law?

First of all, inserting Euro-Atlantic aspirations of the country in its Constitution is not a widespread practice, but some countries like Ukraine and Georgia have done so. Euro-Atlantic provisions were introduced into the Georgian Constitution through constitutional amendment in 2018. In particular, the Georgian Constitution in Article 78 states:

The constitutional bodies shall take all measures within the scope of their competences to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization.”

The interpretation of Article 78 has already been discussed in a case on a possibility of impeachment of the President of Georgia over her foreign visits without the approval of the government. In its decision of 16th October 2023, the Constitutional Court decided that the President violated the Constitution by exceeding her foreign policy powers established in Article 52 of the Constitution by making visits without the approval of the government. In their dissenting opinion, the judges of the Constitutional Court of Georgia – Irine Imerlishvili, Giorgi Kverenchkhiladze, and Teimuraz Tughush referred to Article 78 by stating that, ‘integration into the European Union represents the national interest declared by the Georgian constitution, parliament, government, and the great majority of the Georgian people. Unwavering support for European integration process is universally declared by all state bodies, which is also dictated by Article 78 of the Constitution of Georgia, which indicates the need for state bodies to take measures to promote integration within their competence.’ In broad terms, the judges asserted that even if the President’s actions formally violated the Constitution, they did not harm the state’s foreign policy, as they were aimed at EU integration.

The position of the dissenting judges is shared by the Institute for Development of Freedom of Information of Georgia which has affirmed that the President’s support for Euro-Atlantic integration, including informal visits and statements, is not only within her authority but also a direct obligation under Article 78 of the Constitution. On the other side, some experts claim that Art. 78 only provides that the constitutional bodies should make maximum political efforts within the framework of their legal powers.

Fit for European integration purpose?

Returning to the question of whether the ‘Russian Law 2.0’ aligns with Georgia’s aspirations for European integration, it’s worth mentioning that the Georgian Government and President hold opposing views. For example, Prime Minister of Georgia, Irakli Kobakhidze, in his briefing on May 1st, 2024, claimed that ‘Transparency stands as one of the fundamental European values. There’s no evidence to suggest that requiring NGOs to publish a declaration once a year contradicts European principles.’ Moreover, on May 3rd, 2024, in his X message, Prime Minister Kobakhidze reiterated that ‘the enactment of the transparency law is a crucial prerequisite for achieving depolarization, which is the main recommendation of the European Union’. Contrary to the Prime Minister, Georgian President Salome Zourabichvili in one of her interviews, stated that the Law was aimed at derailing the country’s bid to the EU and she would veto the Law. However, Parliament would be able to overturn her veto.

The EU institutions are also firm in their conviction that the ‘Law on Transparency of Foreign Influence’ is contrary to Georgia’s EU integration commitments. First of all, the EU Delegation to Georgia in its communication of 4 April 2024 recalls that the European Council granted Georgia candidate status on the understanding that the relevant steps set out in the Commission’s recommendation of 8 November 2023 are taken: Step 9 includes a recommendation for Georgia to make sure that civil society can operate freely, and Step 1 calls on Georgia to fight disinformation against the EU and its values.

Then, on 24 April 2024, Josep Borrell, High Representative of the European Union for Foreign Affairs and Security Policy, issued a stark warning to Georgia’s political leaders, urging them to withdraw the contentious draft law on foreign influence. Borrell asserted that the proposed legislation, if enacted, would clash with EU norms and values, potentially imperiling Georgia’s progress toward EU integration. In its part, the European Parliament adopted a resolution on April 25th 2024 where it stressed that the draft law violates objectives established as Steps 1 and 9 in the Commission’s Recommendations for Georgia. Finally, on May 1st, EU Commission President, Ursula von der Leyen reiterated that ‘The European Union has also clearly expressed its concerns regarding the law on foreign influence.

Whether the Constitutional Court of Georgia will consider the case on the constitutionality of the ‘Russian Law 2.0’ remains to be seen. Either the President of Georgia, the Government or one fifth of the Members of Parliament can access the Court after the bill has been signed into law. The outcome of such a case will depend on the interpretation by the Court which remains under the strong political influence of the pro-Russian government, as claimed by the Georgian experts. If the Court takes into account the statements and recommendations of the EU, which clearly support the view that the law is contrary to Georgia’s EU aspirations, it might conclude that the Georgian Parliament has not taken ‘all measures within the scope of their competences’ to ensure the full integration of Georgia into the EU under Article 78 of the Georgian Constitution. Consequently, the ‘Russian Law 2.0’ is contrary to Article 78 of the Georgian Constitution. Georgians have shown their courage by protesting against the ‘Russian Law 2.0’, and the Georgian Dream Party should also summon the courage not to betray the European aspirations of its population by making deals with Russia. History and the Constitution are watching.