On 7 December 2020, the EU Council adopted a landmark decision and a regulation setting up for the first time a global human rights sanctions framework for the EU.1 The EU can now respond to serious human rights violations and abuses worldwide – regardless of where they take place – by targeting the individuals, entities and bodies concerned (including state and non-state actors) with asset freezes and travel bans.2 So far only the framework is in place; no persons or entities have yet been designated.
A year ago, on 9 December 2019, the eve of Human Rights day, EU Member States welcomed the launch by the EU's Chief Diplomat, the High Representative of Foreign Affairs and Security Policy, of preparatory work to establish an EU framework for sanctions against serious human rights violations and abuses.3
On 17 November 2020, the Member States approved the EU Action Plan on Human Rights and Democracy 2020-2024, which included the EU's objectives and priorities in this field for its relations with all third countries and a commitment to a new horizontal EU global human rights sanctions programme.4
Again symbolically marking Human Rights day, the EU has now adopted the framework. The EU regime follows the introduction of similar frameworks in the US, Canada and the UK,5 which impose travel bans and asset freezes on perpetrators of serious human rights abuses. Similar measures are expected to be adopted in Australia. The UK Global Human Rights sanctions list was recently updated with new designations in response to serious human rights violations in Belarus, and now includes more than 50 names.6 The US regime casts a wider net, by the sheer number of designations. As of October 2020, 107 individuals and 107 entities from 36 countries have been designated under the US Global Magnitsky sanctions programme.
Scope of the human rights violations covered
The EU regime applies to acts such as genocide, crimes against humanity and other serious human rights violations or abuses (including torture, slavery, extrajudicial killings, arbitrary arrests or detentions, but not corruption). Other human rights violations or abuses can also fall under the scope of the sanctions framework, where those violations or abuses are widespread, systematic or are otherwise of serious concern in respect of the objectives of the common foreign and security policy set out in the EU Treaty.7
Consequences of the sanctions
The sanctions would subject designated individuals, entities and bodies to an asset freeze and a travel ban (in the case of individuals). Under the EU asset freeze, all funds and economic resources in the EU belonging to or controlled by these parties will be frozen. Furthermore, no funds or economic resources may be made available – directly or indirectly – to or for their benefit. Economic resources are broadly defined to include anything that can be used to obtain funds, goods or services. Limited exceptions apply.
The asset freeze sanctions apply to the EU territory (including its airspace), to nationals of EU Member States (including those located outside the EU), and on board vessels and aircraft under Member State jurisdiction. Sanctions also apply to companies incorporated or registered under the law of an EU Member State and to other non-EU companies in respect of business done in whole or in part in the EU. This means that non-EU companies may be affected by the measures once specific parties are listed, depending on the particular circumstances in which business activities are performed in the EU.
Proposing sanctions under the EU global human rights regime
The key question – as yet unanswered - is who will be targeted by the new regime. As a matter of procedure, the High Representative of the EU for Foreign Affairs and Security Policy and any EU Member State can make a proposal for listing. It is then for the Member States in the Council to decide on the proposal.8 Controversially, unanimity is required, which has resulted in other recent EU sanctions decisions being delayed. A proposal by the Netherlands for qualified majority voting was rejected, however.
Now that the EU has equipped itself with the new global human rights sanctions regime, when can "teeth" in the form of listings be expected? Proposals are likely early in 2021. While the EU is refusing to speculate, the individual designations included in other countries' Magnitsky sanctions give guidance as to what might be anticipated.
1 For Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, and Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses see here.
2 See also the Council Press release of 7 December 2020.
3 See Press release of the Foreign Affairs Council of 9 December 2019, p. 6. In 2018, the Dutch Government launched preliminary discussions among EU Member States for a specific EU sanctions regime, and the European Parliament adopted a resolution calling for such an "autonomous, flexible and reactive EU-wide mechanism" in March 2019.
4 See the Council Conclusions on the EU Action Plan on Human Rights and Democracy 2020-2024 and the Press release of 19 November 2020.
5 See the relevant UK sanctions list. See also the White & Case alert on this topic.
6 The UK sanctions list currently includes 55 individuals and 2 entities. Approximately 50% of the designated individuals were involved in some capacity in the death of Sergei Magnitsky.
7 See Article 21 of the Treaty on European Union (“TEU"). For more detail, see Article 2 of the Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses and Article 1 of the Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses.
8 For more detail, see Article 5 of the Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses.
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