EU Global Human Rights Sanctions Regime: A novel approach to sanctions

On December 7, 2020, the EU Council adopted both Decision (CFSP) 2020/1999 (“Decision”) and Regulation (EU) 2020/1998 (“Regulation”),[1] establishing for the first time an EU Global Human Rights Sanctions Regime (“EUGHRSR” or “Regime”). This is the result of a long process aimed at introducing a specific regime that would allow the EU to target individuals for human rights violations separately from the EU’s political and economic strategy toward their States of origin.

  1. Toward the adoption of the EU Global Human Rights Sanctions Regime

In the past, the EU issued several sanctions lists[2] targeting, among others, human rights violations. Such initiatives were part of a broader policy aimed at countering political and economic crises in specific States or regions. For instance, Council Regulation (EU) 36/2012 responded to the escalation of repression and violation of human rights in Syria, Council Regulation (EU) 2016/44 addressed the Libyan crisis, and Council Regulation (EU) 2017/2063 dealt with the deterioration of human rights in Venezuela.

Against this backdrop, the EU felt it urgent to develop a specific approach toward human rights violations, and in March 2019 the European Parliament adopted a resolution calling “for the swift establishment of an autonomous, flexible, and reactive EU-wide sanctions regime.” On December 9, 2019, preparatory work to establish the EUGHRSR was launched by the High Representative of the Union for Foreign Affairs and Security Policy (“High Representative”). Consistently throughout the process, the EU Action Plan on Human Rights and Democracy 2020–2024 included a commitment to developing the Regime.

Actually, the EUGHRSR follows a widespread legal trend in developing human rights–specific sanction regimes. Starting with the Magnitsky Act, adopted in the United States in 2012, several countries, such as Canada and the United Kingdom, have issued regulations addressing human rights violations through sanctions, while others, such as Australia, are going to adopt similar regulations shortly.

  1. The new EU Global Human Rights Sanctions Regime

The EUGHRSR is based on the Decision, which sets out the main principles binding to the Member States, and the Regulation, which provides more detailed provisions directly binding to any individual subject under the EU’s jurisdiction.

The Regime targets natural and legal persons, entities and bodies, which may include State and non-State actors, as well as other actors exercising effective control or authority over a territory. They are subject to sanctions to the extent that they are responsible for, involved in, or associated with serious human rights violations and abuses worldwide. In particular, the EUGHRSR provides a list of violations—including genocide, crimes against humanity, and others—and includes other human rights violations and abuses insofar as they are widespread, systematic, or otherwise of serious concern as regards the objectives of common foreign and security policy.

The list of sanctioned parties, in Annex I, is established and amended by the EU Council, acting by unanimity upon a proposal from a Member State or from the High Representative. The decision to include a party on the list and the grounds for listing shall be communicated by the EU Council to the sanctioned party, which has the opportunity to present observations.

Sanctions include (a) a ban against entering into or transiting through the EU; (b) the freezing of assets belonging to, owned by, or controlled by the sanctioned parties; and (c) a prohibition against making funds and economic resources available to them. Nevertheless, Member States may establish exemptions, notably for humanitarian purposes.

The scope of application of the Regulation is established in Article 19 and it includes, inter alia, (i) any natural person inside or outside the territory of the European Union who is a national of a Member State; (ii) any legal person, entity, or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State; and (iii) any legal person, entity, or body in respect of any business done in whole or in part within the Union.

As for enforcement of the Regime’s provisions, Member States shall designate the competent authorities and identify them on the websites listed in Annex II. Furthermore, they shall set forth the rules on penalties applicable to infringement of the provisions.

Finally, the Decision shall apply until December 8, 2023 and shall remain under ongoing review. The measures on traveling bans and asset freezing shall apply to the sanctioned parties listed in Annex I until December 8, 2021.

  1. Food for thought

Unlike previous sanctions imposed for human rights violations, the EUGHRSR introduces a structural novelty by establishing a gap between the imposition of such sanctions and the context in which the violations occur. Indeed, the Regime gives the EU the opportunity to sanction individuals in cases where it is difficult for economic and political reasons to find unanimity to target States or regions. Nevertheless, such an approach could lead to imposing sanctions against individuals without any relevant action regarding critical geopolitical issues that are strongly linked to the violations.

Furthermore, the EUGHRSR still requires unanimity to impose sanctions, but many believe that sticking with the unanimity requirement could undermine efforts to target violation of human rights. The debate during drafting of the Regime drew attention to the importance of a possible shift from unanimity to a qualified majority voting system; European Commission President Ursula von der Leyen supported such a change.

Finally, the objective scope of application also raised some concerns. Firstly, the list of violations does not include corruption, which is, however, mentioned in the Magnitsky Act. Secondly, there is no reference to the violation of freedoms of expression and association.

[1] Council Decision (CFSP) 2020/1999 of December 7, 2020 concerning restrictive measures against serious human rights violations and abuses Council Regulation (EU) 2020/1998 of December 7, 2020 concerning restrictive measures against serious human rights violations and abuses. Available here and here.

[2] An overview of EU sanctions is available here.

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