In December 2020, the European Union adopted two complementary legal instruments, namely Council Decision (CFSP) 2020/1999 (Council Decision) and Council Regulation (EU) 2020/1998 (Council Regulation), which have provided the Union with a new Common Foreign Security Policy (CFSP) tool, a new sanctions regime.
The new regime, also presented as the ‘EU Magnitsky Act’, represents the latest development of EU targeted sanctions, in line with a global trend toward individualisation. It empowers the Union, more precisely the (Foreign Affairs) Council, to impose restrictive measures on individuals personally responsible for serious human rights violations and abuses worldwide. Targeted individuals, once having listed in the regime, are subjected to two types of restrictive measures: (1) financial sanctions (meaning that EU operators must comply with the obligation to freeze all assets, funds and economic resources of the listed persons, and must also ensure that they do not make any funds or economic resources available to them) (see Article 3 Council Regulation) and (2) travel ban (meaning that Member States shall take the measures necessary to prevent the entry into, or transit through, their territories) (see Article 2 Council Decision).
In the following blog post, the new EU regime will be subject to a SWOT (Strengths-Weaknesses-Opportunities-Threats) analysis. This kind of study is usually applied for evaluating business projects, initiatives or products, and it is rarely used in the legal field. However, the advantage of a SWOT analysis is that it has a clear and schematic structure – which can be most valuable in the legal field too. In fact, it will allow us to better understand the new regime, assessing (and comparing) its potentials and limits, particularly focusing on what obstacles it must overcome or minimize to achieve the desired results.
Today, more than forty EU sanctions regimes are currently in force: 90% of them are country-based regimes, while thematic regimes represent a small minority (see chemical weapons, cyber-attacks, terrorism and now human rights). The latter have a horizontal or global scope.
Source: EU Sanctions Map
Despite the numerical inferiority, the strongest advantage of thematic, horizontal or global regimes is that they do not encounter territorial borders. In this way, they provide the Union with greater flexibility to target individuals worldwide, regardless of whether they commit those abuses in their own state, in other states or across borders.
Although it is not the first time that the EU has adopted sanctions in response to human rights violations (well-known country-based regimes are Belarus, Myanmar, Nicaragua, Venezuela and Syria), the Magnitsky Act has introduced a 2.0 sanctioning strategy, enabling the Union to adopt geographically-free listing decisions. The new regime does not replace the existing geographic regimes. It coexists with them, but it also provides the Union with an alternative that emphasizes the mere individual responsibility of targets, regardless their country of origin. The advantage of this new ‘black-list’ mechanism, is that it can accommodate multiple nationalities (such as Chinese, North Korean, Libyan, Eritrean, South Sudanese and Russian ones) in a single list, thus obviating the need to create new legislation for just few targets per country. In addition, by focusing on the personal responsibility of natural and legal persons, the EU has the opportunity to avoid political, economic and strategic conflicts of interests with third countries. In fact, such countries could hardly claim to be targeted and stigmatised by a horizontal (country-neutral) regime (for a different and country-based perspective – see the Venezuela v Council case, and the recent Opinion of Advocate General Hogan affirming that a third State may have legal standing in an action for annulment of restrictive measures adopted by the Council against that State (see also para. 123 of the Opinion).
First of all, the most evident weakness of the new EU regime is the lack of a clear definition of ‘serious human rights violations and abuses’. As already presented on this Blog, this concept appears extremely vague, creates ambiguity and generates several questions, for instance concerning the human rights violations that are at stake, the degree of seriousness or cruelty required for violations and abuses to be considered ‘serious’, and whether a single (isolated) violation of human rights can fall into the scope of the regime.
The new EU legal framework (see Article 1 Council Decision and the corresponding Article 2 Council Regulation) presents a long and open list of human rights violations to be taken into account, ranging from genocide and torture (jus congens) to abuses of freedom of expression and gender-based violence (core European Fundamental Rights, enshrined in both the EU Charter and the European Convention of Human Rights (ECHR)). The ‘only’ requirement indicated is that those violations or abuses must be ‘widespread, systematic or are otherwise of serious concern’ as regards the CFSP objectives set out in Article 21 TEU (without providing additional guidelines). Thus, the scope of application of the EU Magnitsky Act remains open to interpretation. Such legal uncertainty ultimately risks to negatively impact the effectiveness of the new EU regime, and puts the CJEU under ‘interpretative pressure’.
The second main weakness does not specifically concern the human rights sanctions regime per se, but affects EU targeted restrictive measures as a whole. In fact, they already represent a topic of abundant litigation, and consequent vulnerability for the Union, before the EU Courts. The most sensitive challenge emerges from the tension between, on the one hand, the EU obligation to grant targeted individuals effective legal remedies, and, on the other hand, the unsuccessful attempts (of the Council) to provide them with adequate statements of reasons and evidence concerning the listing decision. In the new regime, this challenge risks to be further exacerbated – expanding the opportunities for litigation in the EU Courts. In fact, due process guarantees may be negatively impacted by the global (horizontal) scope of the regime, which implies the dependency on third-country sources of information and third-country potentially non-cooperative (or even hostile) authorities (such as in the case of China which has recently imposed retaliatory counter-sanctions in response to the EU’s human rights measures). Lastly, at the moment, it is currently unclear to what extent the EU can trust ‘external’ evidence.
Another feature of the new sanctions regime that merits to be highlighted, is that it is an autonomous, non-UN-based regime which ultimately aims to defend and promote human rights globally. In this way, it will certainly reinforce the visibility of the Union as human rights advocate, consolidating its commitment to protect and promote human rights not only within its borders, but also when acting externally, at the global level. In line with CFSP objectives as defined by EU primary law (see Articles 3.5 and 21.2 TEU) and the EU Action Plan on Human Rights and Democracy 2020-2024, the regime has the potential to contribute to the development of international law – including international humanitarian law.
Moreover, the implementation of the new sanctions regime will contribute to fight impunity worldwide. Perpetrators of serious human rights violations will be sanctioned no matter where their actions take place. As a result, the EU regime will also represent a new tool of deterrence, with the view of preventing atrocities and pushing for a more progressive understanding of the Responsibility to Protect (R2P) principle. This principle, first introduced by the International Commission on Intervention and State Sovereignty in 2001, calls the whole international community to respond to mass atrocities (including genocide and crimes against humanity).
The main challenge for the new EU autonomous sanctions regime consists in the recognition of its legitimacy by the international community. More precisely, third countries may challenge (or even refuse) the commitment of the Union to adopt unilateral (global) sanctions which aim to punish perpetrators of human rights violations worldwide, beyond EU borders. The recent Chinese counter-sanctions and suspension of the ratification of the EU – China Comprehensive Agreement on Investment proves that the authority of the Union to impose autonomous targeted sanctions is far from being globally accepted.
In addition, several legal instruments (inter alia UN conventions, the Rome Statute of the International Criminal Court, and the ECHR at the European level), competent institutions and judicial bodies are already committed to defend human rights and punish their violations. Therefore, it is questionable how the EU regime will fit within this ‘multi-level regulatory system’, a system whereby different legal instruments and bodies coexist and interact.
According to this SWOT analysis, the new EU horizontal sanctions regime has great potential, even if it also presents several obstacles to overcome. Ironically, some of the strengths of the new regime also represent its greatest vulnerabilities. For instance, if the regime reinforces the visibility of the Union as human rights advocate, it also raises concerns about the legitimacy of EU autonomous sanctions.
In conclusion, the new regime being very young, it is not yet possible to fully evaluate its role as a valid alternative to pre-existing EU country-based sanctions regimes. Will the Union progressively shift from geographic to thematic sanctions? Only time will tell.