By Szilvia Sandberg, edited by Adrian Sandberg
Note: This article builds on a piece I published previously on the FCPA Blog which has been substantially updated and expanded to reflect recent developments in this area.
Development of human rights sanctions regimes
In our highly globalised and geopolitically unstable world, sanctions law, particularly sectoral sanctions, have gained in relevance in international commerce due to high penalties, reputational damage and the spider’s web of extraterritorial of sanctions regimes. However, it was not always so. International punishment mechanisms have been traditionally state-centric, which made effective sanctions for human rights abuses virtually impossible. A good example for that were multilateral sanctions under the United Nations Security Council, however the existence of the Security Council veto meant that the Permanent Members tended support their allies, making agreement on sanctioning individuals who committed human rights violations possible only in very isolated cases. A new legal framework was needed.
The first modern human rights sanction regime was created in the United States government after the death of Russian tax lawyer Sergei Magnitsky in a Moscow prison in 2009. Due to the efforts of international human rights groups and tireless campaigning by Mr. Magnitsky’s client, Bill Browder, the Sergei Magnitsky Rule of Law Accountability Act was enacted in 2012 during the Obama administration and was subsequently expanded to the Global Magnitsky Act in 2016 Together, these laws enable the imposition of specific sanctions against targeted individuals added by the Office of Foreign Assets Control (OFAC) to the Specially Designated Nationals List (SDN).
In terms of the development human rights regime of the European Union, the EU faced similar challenges, with targeted sanctions against individuals for human rights violations nearly impossible due to the lack of appropriate instruments. After the 9/11 attacks, restrictive measures against certain persons and entities to combat terrorism were introduced through Council EC regulations No 2580/2001 (December 2001) and No 881/2002 (May 2002). In 2018, the attempted assassination by poisoning of former Russian military intelligence officer Sergei Skripal and his daughter Yulia in Salisbury, England triggered the creation of EU regulation 1542 (October 2018) concerning restrictive measures against the proliferation and use of chemical weapons. EU regulation 796 (May 2019) subsequently made targeted sanctions possible in respect of cyber-attacks threatening the EU or its Member States. However, despite those actions, the only way for the EU to condemn human rights violations would have been to impose country embargoes rather than specific sanctions against targeted individuals.
That changed in 2020 with EU regulation 2020/1998 (December 2020) and Council Decision (CFSP) 2020/1999 (December 2020). Those historic milestones, inspired by the US Global Magnitsky Act, created the EU Global Human Rights Sanctions Regime (GHRSR). It established a horizontal mechanism for imposing sanctions for serious human rights violations. Similar to international humanitarian law, the GHRSR is supposed to defend ius cogens norms and applies amongst other things to genocide, crimes against humanity, torture, slavery, extrajudicial killings, enforced disappearance of persons, arbitrary arrests or detentions and other human rights abuses set out in Article 21 of the Treaty of European Union (Article 2 of (EU) 2020/1998).
Actions taken according to the GHRSR in response to human rights abuses include freezing of all funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body (Article 3 of (EU) 2020/1998). Similar to OFAC’s administration of the Global Magnitsky Act, sanctioned persons listed in Annex I are automatically added by the European External Service (EEAS) to the consolidated list of persons, groups, and entities subject to EU financial sanctions (CFSP List). A review of the CFSP and SDN lists is essential in terms of sanctions lists screening, something which companies must be aware of when choosing the right sanctions lists screening software for them.
Similarly, in the UK, the Global Human Rights Sanctions Regulations 2020 impose financial sanctions and travel restrictions against targeted individuals for any activity carried out by or on behalf of a State within the territory of that State. The activity “has to violate” an individual’s right to life, right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, or right to be free from slavery, not to be held in servitude or required to perform forced or compulsory labor (Part 1, Regulation 4 of 2020 No. 680). The UK law is applicable if the human rights abuse is carried out outside the United Kingdom by any person, or in the United Kingdom by a person who is not a UK citizen. As a result, financial sanctions against individuals or entities are added to the UK Sanctions List (UKSL). The Canadian parliament also passed its own Magnitsky-inspired law with the Justice for Victims of Corrupt Foreign Officials Act (S.C. 2017, c. 21), which came into law on 18 October 2017.
Room for improvement?
In March 2021, a coordinated effort took place the EU, United Kingdom, Canada, and the United States used their respective human rights sanctions regimes to simultaneously impose sanctions on Chinese government officials for human rights violations against Uighur and other minorities.
However, despite that promising coordination, human rights sanctions regimes are not entirely harmonized. For example, there are different interpretations of human rights violations caused specifically by corruption. The U.S. Global Magnitsky Act authorises economic sanctions against and denial of entry into the United States of any foreign person who committed human rights abuse or corruption. Similarly, the UK government announced a Global Anti-Corruption Sanctions Regulations on 26 April 2021, which was designed to complement the UK’s global human rights sanctions regime. The Justice for Victims of Corrupt Foreign Officials Act in Canada also empowers the government to issue targeted sanctions against individuals responsible for human rights abuses or significant corruption.
In contrast, the EU Global Human Rights Sanctions Regime (GHRSR) does not include corruption as a basis for human rights sanctions. Therefore, in resolution of 8 July 2021 of the EU Global Human Rights Sanctions Regime (2021/2563(RSP)), the European Parliament formally called on the European Commission to produce a legislative proposal to extend the scope of the GHRSR to include acts of corruption. In addition, the EU Parliament has repeatedly urged the introduction of qualified majority voting for adoption of sanctions under the GHRSR instead of the current requirement of a unanimous vote in favour by all European Member States (Article 5 of (CFSP) 2020/1999)) as a way to streamlining the process of imposing sanctions.
A study by the European Parliament in 2025 recommended that future improvements to the GHRSR should broaden the geographic and thematic scope to include more diverse violations and regions due to the current dominance of sanctions imposed on Russian nationals and entities. In addition, the report also mentions the lack of de-listing pathways (other than court challenges or death) which reduces incentives for behavioural change on the part of designees. Finally, the participation of civil society actors in proposing names for designation should be strengthened through the establishment of formal channels for proposals.
Based on the above mentioned challenges and recommendations, we might get the feeling that much remains to be done in this policy field. Nevertheless, the early legal initiatives, as well as the first coordination efforts among human rights sanctions regimes, should not be underestimated, because these are meaningful legal steps against international human rights abuses. Piece by piece, the international community is creating the legal mechanisms to finally give effect to the fundamental rights of human beings as envisaged in the Universal Declaration of Human Rights ratified almost 80 years ago.
Image: pixabay.com
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