Open letter by Ambassador Brian Aggeler, Head of the OSCE Mission to BiH, to the members of the Republika Srpska National Assembly

Dear Members of the Republika Srpska National Assembly,

As democratically elected representatives, you have agreed to fulfill the solemn obligation of representing the best interests of your constituencies. In light of this responsibility to the electorate, on behalf of the OSCE Mission to Bosnia and Herzegovina (Mission), I raise deep concerns regarding pending legislation that could seriously and negatively impact everyone living in the Republika Srpska (RS).

As you are certainly aware, RS authorities have unfortunately decided to move forward with adopting the Law on the Special Registry and Publicity of the Work of Non-Profit Organizations. If adopted, this law would profoundly and severely violate the basic human rights of citizens in the RS and Bosnia and Herzegovina’s (BiH) own international and domestic commitments, including rights enshrined in the constitutions of both BiH and the RS.

Commonly – and misleadingly – referred to as the “Foreign Agents Law,” this law would impinge on the right to freedom of association by critically reducing the already rapidly shrinking space for the functioning of civil society organizations, the independent media and human rights defenders in the RS. This law would further prevent co-operation with international partners and organizations, including those of which BiH is itself a member.

While RS authorities have attempted to frame this law as promoting transparency, it could be easily weaponized to stigmatize and restrict the aforementioned local actors, all of whom are already operating under difficult and constrained conditions in the RS. Civil society organizations, the independent media and human rights defenders play indispensable roles in any democratic society.

The involvement of diverse individuals, associations, groups, organizations and institutions is vital in ensuring the fulfillment of and respect for fundamental human rights. Thriving functional democracies rest on the protection of these fundamental human rights, including the freedom of association. In turn, this enables citizens to come together to realize and enjoy many other rights.

The freedom of association and related human rights enable civil society organizations to create space for discourse, raise the awareness of the public and of institutions on essential issues, enable engagement across all levels of decision- and policy-making, and provide live and virtual town squares in which ideas are shared and developed.

Both domestic and international law protect these crucial functions. Societies cannot grow, develop or heal if citizens lack the freedom to connect and cooperate with those who share their values, engage in discourse where there are disagreements, and work on core social, cultural, political or economic causes. Put plainly, a society without freedom of association would not be a democratic society. In light of this, governmental authorities in democratic societies must respect the peaceful expression of differing and dissenting views, and, as a consequence, must publicly acknowledge – through action, law and policy – the important and legitimate role of civil society organizations, independent media and human rights defenders.

Concerned that these rights were under threat, and based on the draft law, the Mission requested a formal assessment by the OSCE’s Office of Democratic Institutions and Human Rights, which provides support, assistance and expertise to OSCE participating States and civil society to promote democracy, rule of law, human rights, tolerance and non-discrimination. ODIHR then invited the Council of Europe’s Venice Commission, which assists CoE member states in ensuring compliance with European and international standards shaping democracy, human rights and the rule of law, to issue a joint Opinion that enumerated severe deficiencies of the draft and urged the RS Government to reconsider its adoption entirely.

Specific concerns highlighted in the joint Opinion include issues regarding onerous reporting requirements and an increase in governmental inspections, both of which seem designed to impede the basic functionality of these originations. Statutory limits on the participation of civil society organizations in political activities or action, without a clear definition of what that would constitute, impose limits on the fundamental right of association.

Further, the requirement that civil society organizations be included in the special registry, as well as certain labelling obligations, would likely lead to the stigmatization and side-lining of these organizations. Finally, this law would allow for the banning of civil society organizations absent objective and necessary criteria. Based on an objective reading, this draft text is excessively vague and ambiguous, making it difficult to anticipate potential abuse and violations, thereby undermining the principle of legal certainty.

Further, the law makes it very difficult, if not impossible, for civil society organizations to co-operate with international organizations, including the OSCE, or to work on any human rights issues. As an OSCE participating State, BiH committed itself to upholding relevant international human rights standards and OSCE human dimension commitments, noting the latter includes more than 10 unanimous commitments adopted over the last 30 years, including but not limited to the Copenhagen Document, which guarantees, amongst others, the right of association; the Moscow Document, which enumerates the narrow conditions under which such rights may be derogated; and the Charter of Paris for a New Europe, which affirms the freedoms of association and peaceful assembly. Per these commitments, governmental institutions in BiH, including elected bodies, have an obligation to institute and implement legal frameworks that protect both these rights and those who rely upon them.

This draft law, if adopted, would clearly and meaningfully contravene these commitments, commitments voluntarily undertaken by BiH as a member of the OSCE. In doing so, it would violate the rights of citizens in the RS by denying them access to and the enjoyment of their fundamental rights.

Following other regressive actions that restrict the enjoyment of fundamental freedoms in the RS, including the recent re-criminalization of defamation through amendments to the RS Criminal Code, the Mission views this so-called “Foreign Agents “ as yet another serious step backwards from the full enjoyment and preservation of human rights and fundamental freedoms.All elected officials must refrain from taking any action that would undermine these rights. This includes immediately and permanently rejecting this draft law and any other similarly regressive legislation and further ensuring that all future legislation complies with the international and domestic human rights standards to which BiH has obligated itself.

The OSCE shares these grave concerns as a sincere and committed partner to promoting a better life for all citizens, and we are prepared to support all willing authorities aiming to do the same.

The Mission further remains committed to support the work of the civil society organizations, human rights defenders and independent media under attack by this and related legislation. We welcome continued engagement on this and other issues of mutual concern.