The Constitutionality of Russia's 'Undesirable' NGO Law

Abstract

In recent years, Russian lawmakers have expressed heightened concern about the activities of foreign non-governmental organizations (“NGOs”) operating within their country. Russian officials view these NGOs as a potential source of foreign interference in Russian internal affairs. They have responded to this perceived threat with a series of laws that increasingly hinder the work of international NGOs. The most recent anti-NGO law, passed in May 2015, takes the most aggressive steps yet. This law (the “Undesirable NGO Law”) allows Russia’s Prosecutor General to declare certain organizations “undesirable.” Such a label can be issued with minimal process and effectively constitutes a death sentence for foreign NGOs — many of which seek to protect human rights in Russia. Affected organizations include the National Endowment for Democracy, the MacArthur Foundation, and the Committee Against Torture.The Undesirable NGO Law provoked immediate criticism from both Russian civil society dissidents and international observers. Critics were quick to question the law’s constitutionality but failed to construct a thorough legal argument. This Article attempts to fill that gap with the first comprehensive constitutional analysis of the Undesirable NGO Law.The Article addresses threshold considerations related to constitutional supremacy and the authority of the Constitutional Court in Russia — both of which are relevant to resolving conflicts between the Undesirable NGO Law and the Russian Constitution. Next, the Article identifies and discusses key issues raised by the Undesirable NGO Law, including tension with Russian constitutional provisions for separation of powers, protection of civil rights, and the right to judicial appeal. The Article also assesses conflicts with Russian treaties and incorporated international law.Notwithstanding the multiplicity of constitutional questions raised by the Undesirable NGO Law, the Article concludes that the law will likely withstand legal scrutiny. Ingrained cultural and institutional challenges to comprehensive protection of civil rights in Russia operate as seemingly insurmountable barriers to realistic opposition. Nonetheless, the Article posits that simply considering the constitutional problems with the Undesirable NGO Law is a crucial way to continue the conversation and appeal to the sympathy and reason of the Russian people.