The EU adopts a new global human rights sanctions regime

Background

The GHRSR has been in the making for over two years.  Preliminary discussions among EU Member States for a specific EU human rights-related sanctions regime started in late 2018.  Further impetus was then given in March 2019 when the European Parliament adopted a resolution calling for an “autonomous, flexible and reactive EU-wide sanctions regime that would allow for the targeting of any individual, state and non-state actors, and other entities responsible for or involved in grave human rights violations”.

The new EU regulation follows the recent international trend towards introducing human rights specific sanctions regimes (often called “Magnitsky” sanctions) and similar legislative frameworks are now in place in the U.S., Canada and the UK, with Australia expected to enact legislation in this area this year (see our article here). 

The scope of the regime

The GHRSR will allow the EU to adopt the following restrictive measures in response to human rights abuses and violations:

• a travel ban applying to individuals; 
• the freezing of funds and economic resources of individuals and entities; and 
• the prohibition of making funds and economic resources available to targeted individuals and entities. 

According to the GHRSR, “serious human rights violations and abuses” include acts such as genocide, crimes against humanity, torture and other cruel, inhuman or degrading treatment or punishment, slavery, extrajudicial, summary or arbitrary executions and killings, enforced disappearance of persons, arbitrary arrests or detentions.  Other human rights violations or abuses can also fall within the scope of the GHRSR where such violations or abuses are “widespread, systematic or are otherwise of serious concern”.

Importantly, not only can the perpetrators be targeted, but also individuals and entities who provide financial, technical or material support to “serious human rights violations and abuses”, as well as individuals and entities associated with them.  Thus, the Council of the European Union will have considerable latitude to target a multiplicity of individuals and entities under the regime.

The need for a thematic approach

The adoption of the regime marks the EU’s “determination to enhance its role in addressing serious human rights violations and abuses worldwide”¹.   The main goal of the new regime is to “enable the EU to stand up in a more tangible and direct way for human rights”².   Although the EU has previously targeted perpetrators of human rights abuses on a case-by-case basis, the GHRSR will give the EU greater flexibility to go after perpetrators regardless of where they are, dispensing of the need to set up a country-specific legal framework each time for each specific case ³.   This reflects a wider shift in the EU sanctions framework towards thematic rather than geographical sanctions regimes as is reflected also in the EU’s cyber, chemical weapons and terrorism-related sanctions regimes. 

The GHRSR does not, however, replace the existing EU country-specific regimes where human rights abuses are targeted.  For example, the recent sanctions imposed on Belarusian officials in response to human rights violations will not be incorporated into the GHRSR.

Designations and the question of unanimity 

The Council Decision provides that the High Representative of the European Union for Foreign Affairs and Security Policy and EU Member States will be able to put forward proposals for sanctions listing.  It will then be for the Council to decide, “acting in unanimity”, whether to implement the sanctions designations.  

In the run up to its adoption, the GHRSR reignited the debate surrounding qualified majority voting in the Council on sanctions issues.  Currently, the imposition of sanctions by the EU requires unanimity among EU Member States.  However, there have been calls, including from the European Commission’s President Ursula von der Leyen, to move towards a qualified majority voting system “at least for human rights and sanctions implementation” ⁴.   In part, this movement towards reform of the EU’s sanctions-related decision-making process has been motivated by Cyprus’ recent initial refusal to approve sanctions against Belarus, as part of its political manoeuvring to force the EU to adopt further sanctions against Turkey ⁵.   A qualified majority voting system would mean that only 15 of 27 EU Member States representing at least 65% of the total EU population would need to vote in favour of a proposal in order for it to gain approval.  For many, including President von der Leyen, the unanimity requirement in the GHRSR is likely to be disappointing. 

Concluding thoughts

At present, no individuals or entities have been targeted using the GHRSR, so we will have to wait to see whom the EU decides to target first, and whether the EU’s designations will align with similar sanctions imposed by the U.S., Canada and the UK.  Going forward, EU companies and investors will need to consider whether their business or investment activities in higher-risk jurisdictions, and with certain higher-risk entities and individuals, could be impacted by this new regime.  In many cases, additional measures, including contractual protections, will be required to enable those companies and investors to transact and invest with confidence that their reputational and legal risks are being appropriately managed.    

In parallel with the EU’s introduction of the GHRSR, the UK also designated 11 individuals and one entity from Russia, Venezuela, The Gambia and Pakistan on Human Rights Day.  Alongside further measures introduced by the U.S., 31 actors were designated by the UK and U.S. for their alleged involvement in serious human rights abuses.  This move demonstrates the seriousness of the UK’s intent to coordinate sanctions measures with its wider allies beyond the EU.       

Footnotes

_{1. https://eeas.europa.eu/headquarters/headquarters-homepage/90013/questions-and-answers-eu-global-human-rights-sanctions-regime_en 
2. https://eeas.europa.eu/headquarters/headquarters-homepage/90013/questions-and-answers-eu-global-human-rights-sanctions-regime_en 
3. https://eeas.europa.eu/headquarters/headquarters-homepage/87884/long-and-complex-road-towards-eu-global-human-rights-sanctions-regime_en 
4. https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_20_1655 
5. https://www.euronews.com/2020/09/21/eu-s-credibility-at-stake-warning-as-cyprus-prevents-belarus-sanctions}