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Article European Union: Global Human Rights Sanctions Regime Enters into Force

(Jan. 12, 2021) On December 7, 2020, the European Union (EU) enacted its Global Human Rights Sanctions Regime to hold perpetrators of serious human rights violations and abuses accountable. The sanctions regime enables the EU to implement targeted restrictive measures no matter who is responsible for the respective infringements or where they occur. The EU Global Human Rights Sanctions Regime is also referred to as the “European Magnitsky Act,” after the Magnitsky Act passed by the U.S. Congress in 2012 to target Russia and expanded in 2016 to cover worldwide acts.

Background

Currently, there are about 40 different sanctions regimes in place in the EU. However, sanctions according to the new provisions will not replace any of the existing geographic sanctions regimes that address human rights violations and abuses—for example, those in place for Syria, Belarus, or Venezuela. With this sanctions regime, the EU takes a more thematic approach in that restrictive measures apply to a particular issue, no matter whether they target state or nonstate actors, rather than a country, and even include cross-border incidents. This systematic approach is already known from other sanctions regimes within the EU—for example, those on chemical weapons or cyberattacks, which are also applicable to offenders worldwide.

The Sanctions Regime

The EU Sanctions Regime consists of two acts, Council Regulation (EU) 2020/1998 and Council Decision (CFSP) 2020/1999. The regulation complements Council Decision (CFSP) 2020/1999 and specifies the measures provided for in the Council Decision’s sanctions regime. Furthermore, enacted as a regulation, its provisions are directly applicable in the member states. (Treaty on the Functioning of the European Union (TFEU), art. 288, para. 2.) The Council Decision is addressed to the EU member states.

Scope

The sanctions set out in the sanctions regime are applicable if a serious human rights violation or abuse occurs. It does not matter where it occurs. The sanctions regime provides a nonexhaustive list of offenses that qualify as such—in particular, genocide and crimes against humanity—and mandates that customary international law and international law instruments, such as the Rome Statute of the International Criminal Court, be taken into account to decide whether a human rights abuse has occurred. (Council Regulation (EU) 2020/1998, art 2, para. 1, (a) & (b); Council Decision (CFSP) 2020/1999, art 1, para. 1 (a) & (b).) Other human rights violations or abuses fall under the regime’s provisions if they “are widespread, systematic or are otherwise of serious concern” as regards article 21 of the Treaty on European Union. Such violations include sexual and gender-based violence, violations or abuses of freedom of opinion and expression, and violations or abuses of freedom of religion or belief, among others. (Regulation art 2, para. 1 (d); Decision art 1, para. 1 (d).)

The sanctions regime covers natural and legal persons, entities, or bodies that may include state actors, other actors exercising effective control or authority over a territory, or other nonstate actors, subject to article 1(4) of Decision (CFSP) 2020/1999. (Regulation art. 2, para. 3; Decision art. 1, para. 3.). Anyone who provides financial, technical, or material support, or is otherwise involved in a human rights abuse or violation or associated with the perpetrators may also be targeted with restrictive measures. (Regulation art. 3.)

Possible Sanctions

Possible sanctions that may be imposed on perpetrators include the freezing of “all funds and economic resources belonging to, owned, held or controlled by any or legal person, entity or body as listed in Annex I” to the sanctions regime. (Regulation art 3.) Natural persons may also be subject to a travel ban to the EU. (Decision art. 2, para. 1.)

Exceptions

However, as an exception, some provisions allow member states to release certain frozen funds or economic resources when, for example, the funds or economic resources are necessary to satisfy basic needs, are the subject of arbitral or judicial decisions, or are intended exclusively to cover the fees or service charges for the maintenance of frozen funds or economic resources. (Regulation art. 4 para. 1 or art. 6, para. 1.)

In case a member state makes use of such an exemption, it must notify the other member states and the European Commission, whereas the relevant time frame differs according to the relevant provision. (Regulation arts. 4–7.)

With regard to travel bans, certain exemptions are possible as well—for example, if the member state is the host country of an international governmental organization or the entry is necessary due to judicial proceedings. (Decision art. 2, paras. 3 & 4, 6 & 7.) In such cases, the member state must inform the Council about any granted exemptions and, in certain cases, Council members can raise objections. (Decision art. 2, paras. 5 & 8.) If one or more Council members raise objections, the Council decides with a qualified majority if the proposed exemption is granted. (Decision art. 2, para. 8.)

Member states are obligated to inform each other and the European Commission of measures taken, in particular regarding the freezing of funds or any national enforcement problems. (Regulation art. 13.)

List of Perpetrators

Perpetrators targeted by restrictive measures will be listed in annex I to the regulation and decision. The Council may amend the list according to the procedure set out in article 14 of the regulation upon a proposal from the EU high representative or member states. (Decision art. 5.) The grounds for the listing must be communicated to the person, entity, or body concerned, followed by an opportunity for them to present their observations. (Regulation art 14, paras. 1 & 2.) A revision of this list must take place at least every 12 months. (Regulation art. 14, para.4.) According to article 15 of the regulation, the grounds for the listing are also included in annex I.

Penalties

The member states determine the penalties in case the provisions of the regulation are violated. They must “take all measures necessary to ensure that [the penalties] are implemented. The penalties provided for must be effective, proportionate and dissuasive.” (Regulation art. 16, para. 1.) The European Commission must be notified about these rules and any change thereof by the member states. (Regulation art. 16, para. 2.)

According to article 10 of the regulation, it is also “prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Article 3.” (Regulation art. 10.)

Reactions

EU High Representative Josep Borrell noted the importance of the sanctions regime by saying that “[t]his is a landmark agreement, the first of its kind and it will allow the European Union to target serious human rights abuses and violations worldwide and not going country by country with endless discussions for every specific case. We are sending a clear signal to those responsible about the strong commitment for human rights of the European Union.” (Video available)

In the press conference of December 7, 2020, he also mentioned prospective sanctions and addressed the situation in specific countries—namely, Venezuela, Georgia, Turkey, Belarus, Ethiopia, and Hong Kong.

Prepared by Viktoria Fritz, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist

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Chicago citation style:

Gesley, Jenny. European Union: Global Human Rights Sanctions Regime Enters into Force. 2021. Web Page. https://www.loc.gov/item/global-legal-monitor/2021-01-12/european-union-global-human-rights-sanctions-regime-enters-into-force/.

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Gesley, J. (2021) European Union: Global Human Rights Sanctions Regime Enters into Force. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2021-01-12/european-union-global-human-rights-sanctions-regime-enters-into-force/.

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Gesley, Jenny. European Union: Global Human Rights Sanctions Regime Enters into Force. 2021. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2021-01-12/european-union-global-human-rights-sanctions-regime-enters-into-force/>.