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Jessica Tillipman
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Bill Steinman
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Richard L. Cassin
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Julie DiMauro
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Thomas Fox
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Marc Alain Bohn
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Bill Waite
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Shruti J. Shah
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Russell A. Stamets
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Richard Bistrong
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Eric Carlson
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New sanction regimes put the spotlight on human rights abuses

Regimes for combating human rights abuses are gaining momentum, examples of which include the European Parliament resolution of March 10, 2021 recommending to the EU Commission the introduction of corporate due diligence and corporate accountability, and Germany’s Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz) of June 11, 2021. Meanwhile, international sanctions regimes also turned their spotlight on human rights violations worldwide.

Imposing targeted sanctions against individuals for human rights violations was formerly impossible within the EU 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 poisoning of Sergei Skripal, a former Russian military officer, and his daughter, Yulia, in Salisbury, England also triggered EU regulation 1542 (October 2018) concerning restrictive measures against the proliferation and use of chemical weapons. And EU regulation 796 (May 2019) made targeted sanctions possible against 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 by imposing country embargos instead of 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 created the EU Global Human Rights Sanctions Regime (GHRSR), sometimes called the EU’s answer to the U.S. Global Magnitsky Human Rights Accountability Act (knowns as Global Magnitsky Act), by creating 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 inter alia 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 TEU (Article 2 of (EU) 2020/1998).

A response under the GHRSR for those human rights abuses can result in 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). And, 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).

In fact, the EU initiative under the GHRSR was inspired by the Global Magnitsky Act adopted in the United States in 2016, which expanded the original Sergei Magnitsky Rule of Law Accountability Act signed into law by President Barack Obama in December 2012. The full legal basis for Global Magnitsky sanctions are found in four places: Executive Order 13818, two statutes (Global Magnitsky Human Rights Accountability Act and International Emergency Economic Powers Act (IEEPA)), and the Code of Federal Regulations (Global Magnitsky Sanctions Regulations). Together, these enable imposition of specific sanctions against targeted individuals added by OFAC (the Office of Foreign Assets Control) to the Specially Designated Nationals List (SDN).

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 person. As a result, financial sanctions against individuals or entities are added to the UK Sanctions List (UKSL). The Canadian parliament also initiated its own Magnitsky-inspired legislation with the Justice for Victims of Corrupt Foreign Officials Act (S.C. 2017, c. 21), which came into law on October 18, 2017.

In a coordinated effort under their respective human rights sanctions regimes, in March 2021 the EU, United Kingdom, Canada, and the United States simultaneously imposed sanctions on Chinese government officials for human rights violations against Uyghurs and other minorities.

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 authorizes 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 April 26, 2021, which is supposed to complement the UK’s global human rights sanctions regime.

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 July 8, 2021 of the EU Global Human Rights Sanctions Regime (2021/2563(RSP)), the European Parliament called on the European Commission to produce a legislative proposal to amend the current EU GHRSR legislation by extending its scope to include acts of corruption. In addition, the EU Parliament urged the introduction of qualified majority voting for adoption of sanctions under the scope of the EU GHRSR instead of the currently applicable unanimity (Article 5 of (CFSP) 2020/1999)) as a way to simplify the process of imposing sanctions.

Although much remains to be done, the early legal initiatives, as well as the first coordination among human rights sanctions regimes, are meaningful legal steps against international human rights abuses. Piece by piece, the international community is creating the legal mechanisms to defend the fundamental rights of human beings as envisaged in the Universal Declaration of Human Rights published more than 70 years ago.

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