European Union adopts its first human rights sanctions regime

On 7 December 2020, the Council of the European Union adopted the EU’s first global human rights sanctions regime. This new regime allows the EU to impose travel bans and financial sanctions on targeted individuals, entities and bodies (including state and non-state actors) responsible for, involved in or associated with serious human rights violations and abuses worldwide, irrespective of where they occurred. This “horizontal” regime will apply in addition to the existing EU geographical sanctions regimes, which have listed more than 200 individuals and entities for human rights violations.

Background

On 9 December 2019, the Council welcomed the launch by the High Representative of the Union for Foreign Affairs and Security Policy (the “High Representative”) of preparatory work to establish an EU framework for sanctions against serious human rights violations and abuses. It then approved, on 17 November 2020, the conclusions on the EU Action Plan on Human Rights and Democracy 2020-2024, which set out the EU’s level of ambition and priorities in this field, which included its relations with third party countries, and also included a commitment to develop a new horizontal EU global human rights sanctions regime.

Ahead of Human Rights Day on 10 December, the Council adopted on 7 December 2020 the Council Decision 2020/1999 and the Council Regulation 2020/1998 concerning restrictive measures against serious human rights violations and abuses. Proposed by the High Representative, the Council Decision sets out the political and legal basis for the new regime. The Council Regulation (which entered into force on 8 December 2020) is a joint proposal of the High Representative and the Commission that details the measures of the sanctions regime established by the Council Decision. While the Council Decision is legally binding on all EU Member States, the Council Regulation is directly binding on the national administrative authorities as well as on private operators.

According to its accompanying press release, this adoption “emphasises that the promotion and protection of human rights remain a cornerstone and priority of EU external action and reflects the EU’s determination to address serious human rights violations and abuses”.

Who is targeted?

The new regime targets individuals and entities responsible for or involved in serious human rights violations or abuses worldwide. It can also target individuals and entities associated with the perpetrators of such violations or abuses. These entities (and individuals) can be both state and non-state actors, regardless of their nationality or domicile, and regardless of the location of the human rights violations.

It is for the Council, acting unanimously upon a proposal from an EU Member State or the High Representative, to establish, review and amend the sanctions list (set out in Annex I to the Regulation, which does not yet include any names at the time of writing). The names will be included in the EU consolidated list of persons, groups and entities subject to sanctions.

Which human rights violations are covered?

The EU regime covers genocide, crimes against humanity and other serious human rights violations and abuses, including: (i) torture and other cruel, inhuman or degrading treatment or punishment; (ii) slavery; (iii) extrajudicial, summary or arbitrary executions and killings; (iv) enforce disappearance of persons; and (v) arbitrary arrests or detentions.

Other human rights violations or abuses, such as human trafficking or sexual and gender-based violence, can also fall under the scope of the sanctions regime where those violations or abuses are widespread, systematic or are otherwise of serious concern as regards the objectives of the common foreign and security policy set out in the EU Treaty.

What is the scope of application of the sanctions?

As opposed to certain US sanctions which may have an extraterritorial scope, EU sanctions are only applicable in the EU territory (including its airspace) or to EU persons - i.e. nationals of EU Member States (located or domiciled inside or outside the EU territory), companies incorporated or constituted under the law of an EU Member State, non-EU companies in respect of any business done in whole or in part within the EU and board aircrafts and vessels under the jurisdiction of an EU Member State.

Which sanctions can be imposed?

The EU regime provides for restrictive measures similar to the ones applicable to listed individuals under the existing geographical regimes, namely: (i) a travel ban; (ii) the freezing of all funds and economic resources belonging to, owned, held or controlled by listed individuals and entities; and (iii) the prohibition for persons and entities in the EU to make funds or economic resources available to those listed, either directly or indirectly. Economic resources are broadly defined to include assets of every kind that can be used to obtain funds, goods or services. Sanctions are applied and enforced by EU Member States, including with respect to the enactment of the applicable penalties for the infringement of the restrictive measures and the granting of derogations in the limited circumstances foreseen by the regulation (e.g. for humanitarian purposes).