Op-Ed: “Adoption of the first EU Human Rights Sanctions Regime: What is at Stake?” by Celia Challet

In the field of the Common Foreign and Security Policy (CFSP), the adoption of new sanctions regimes by the EU is common practice. As shown by the recent adoption of sanctions against Belarus, Turkey, and individuals and entities for the poisoning of Alexei Navalny, the EU frequently adopts and amends sanctions regimes. The sanctions regime that was adopted on 7 December 2020 is, however, of a very different kind. For the first time, the EU has adopted a global human rights sanctions regime. Decision (CFSP) 2020/1999 and Regulation 2020/1998 enable the EU to adopt targeted restrictive measures to address serious human rights violations and abuses worldwide. Such measures can apply to individuals, entities and bodies, including State and non-State actors responsible for, involved in or in association with such violations and abuses (Article 1 of the Decision and Article 2 of the Regulation).

The restrictive measures will consist of travel bans applying to individuals, and asset freezes against individuals and entities. Persons and entities within the EU will also be forbidden from directly or indirectly making funds available to those listed.

The scope of this new sanctions regime is particularly broad: pursuant to Article 1 of the Decision, the EU can adopt restrictive measures as a response to genocides, crimes against humanity, and other serious human rights violations or abuses (for example torture, slavery, extrajudicial or summary executions, enforced disappearance, or arbitrary arrests or detentions). The EU can also sanction other human rights violations or abuses if they are widespread, systematic or are of serious concern as regards the objectives of the CFSP laid down by Article 21 TEU. This includes trafficking in human beings and abuses of human rights by migrant smugglers, as well as sexual and gender-based violence. It also includes violations or abuses of certain fundamental freedoms, such as the freedom of peaceful assembly and association, freedom of opinion and expression, and freedom of religion or belief. In other words, the EU can virtually address any serious human rights concerns worldwide. It will be for the Council, following a proposal from the High Representative of the EU for Foreign Affairs and Security Policy, or from a Member State, to add persons and entities to the sanctions list and to review it.

This new sanctions regime constitutes a significant evolution in the field of EU sanctions, for a wide number of reasons.

Firstly, it clearly reflects the EU’s willingness to put greater emphasis on the protection of human rights and fundamental freedoms in the framework of its external action. As stressed by the Council in its November 2020 Conclusions on the EU Action Plan on Human Rights and Democracy 2020-2024, human rights and democracy are being increasingly challenged and put into question on the international scene and within certain third States. This new sanctions regime answers to calls from, inter alia, the European Parliament, which had pushed for the adoption of a global human rights sanctions regime. It also reflects current trends in the sanctions regimes worldwide: both the US and the UK have already adopted a human rights sanctions regime, and Australia is considering this possibility. Within the EU itself, Member States such as Estonia, Latvia and Lithuania are applying a human rights-targeted sanctions regime (which, as of today, only targets several Russian officials). There was, thus, an opportunity, if not a pressing need, for the EU to position itself as a key actor in terms of sanctions for human rights violations.

Beyond a formal emphasis on human rights protection, this new sanctions regime could also facilitate the EU’s response to human rights violations in practice. The wide scope of application of this framework of sanctions provides the EU with a significant flexibility to target persons and entities responsible for serious human rights violations worldwide. It could provide a faster way to sanction such persons and entities in case of an urgent human rights crisis. Indeed, since the legal bases for the imposition of sanctions have already been negotiated and adopted, the Council would ‘only’ need to amend the sanctions lists, which is faster than negotiating a whole new framework of sanctions. In addition, this new framework could help overcome the reluctance of some Member States to sanction individuals and entities if such restrictive measures were linked to a framework of sanctions targeting a specific country. This new sanctions regime could potentially put an end to the lack of sanctions for human rights violations occurring in countries such as Russia or Saudi Arabia.

Secondly, the EU Human Rights Sanctions regime is a significant illustration, if not a confirmation, of the progressive shift from EU country sanctions towards thematic sanctions, namely sanctions which are not related to a situation in a specific country. It adds on to the recently adopted and/or amended sanctions regimes related to, for example, cyber-attacks and the use of chemical weapons. Such sets of sanctions present the advantage, as also explained above, of specifically targeting the persons and entities considered as responsible for such behaviour, without officially linking them to a specific country.

However, a certain number of legal questions still surround this new EU sanctions regime. The first one relates to its interaction with other current sanctions regimes. Indeed, the EU has already adopted a certain number of sanctions regimes in order to address human rights violations and abuses in specific countries. Such is the case, for example, of the sanctions against Belarus, Venezuela, Iran and Syria (see the EU’s sanctions map for a comprehensive overview). These sets of sanctions mostly consist of the same type of restrictive measures as the new EU Human Rights sanctions regime (travel bans and asset freezes), but they have been adopted as a response to the human rights situation in the countries concerned. The new sanctions regime follows a different approach, since it seeks to address human rights violations and abuses regardless of the country in which they have taken place.

In principle, this framework of restrictive measures adds on and is complementary to the country-specific human rights sanctions regime. However, one can wonder about the coexistence of the two types of sanctions regimes in practice. If persons or entities are ‘eligible’ for the sanctions lists of both the Human Rights sanctions regime and the framework of sanctions that specifically targets human rights violations in their country, on which sanctions list will they be added? If a person is already on the list of sanctions targeting a specific country for human rights violations, can he/she also be listed on the EU Human Rights sanctions regime? Doesn’t it equate to a double sanction for the same acts? Such a situation could also make it harder for the targeted persons to challenge the restrictive measures imposed upon them before EU and national courts: it means that they would have to potentially challenge two different sets of sanctions.

A second question revolves around the scope of the new sanctions framework as such, particularly as regards the notion of human rights violations or abuses which are widespread, systematic or serious as regards the objective of the CFSP. How will the Council assess that the conditions for sanctioning individuals involved in such human rights violations or abuses have been met? On the basis of what criteria will it assess whether or not certain violations or abuses are systematic or widespread? Should the targeted persons challenge these sanctions before the Court of Justice of the European Union, these questions are mostly to be raised in the course of the judicial proceedings.

The EU Human Rights Sanctions Regime therefore represents a major development in the field of EU sanctions, not only due its characteristics but also in view of the legal developments that it will foster. It will be of utmost interest to see how this sanctions regime is implemented in practice, and which individuals and entities will be added first on the list by the Council.

The legal texts are available here, published in the Official Journal.

Celia Challet is an Academic Assistant in EU law at the College of Europe and Ph.D. candidate at Ghent University (Belgium).