As the human rights situation in Belarus has continued to deteriorate, efforts by the European Union to impose sanctions on Belarussian officials have stalled due to a failure to meet unanimity within the EU Council (i.e. the Union’s body comprised of heads of member States that is responsible for making unanimous decisions on its Common Foreign and Security Policy). This political impasse has re-opened discussions around the importance of moving towards qualified-majority decision-making in certain foreign policy areas, notably on human rights issues, as well as decisions to impose sanctions. At the centre of these debates lies the EU’s proposal for a Magnitsky-style human rights sanction regime of its own.
On Wednesday 16 September, while the 45th session of the Human Rights Council was underway in Geneva and the European Union delegation was preparing for the urgent debate on the situation in Belarus, held on Friday 18 September at its behest, in Brussels, EU chief Ursula von der Leyen delivered her first highly anticipated State of the Union Address.
Amongst several announcements relating to human rights, including measures to promote non-discrimination, rights in the digital age (e.g. access and privacy), the rights of migrants and of LGBTQI persons, perhaps the most significant for the international human rights system, was her announcement of a proposal for the establishment of a European Magnitsky-style human rights sanction regime.
Discussing the EU’s simultaneously ‘strategically important’ and ‘challenging’ relationship with China, Ms von der Leyen said:
“Europe is not without issues – think for example of anti-semitism. But we discuss them publicly. Criticism and opposition are not only accepted but are legally protected.
So we must always call out human rights abuses whenever and wherever they occur – be it on Hong Kong or with the Uyghurs.
But what holds us back? Why are even simple statements on EU values delayed, watered down or held hostage for other motives?
When Member States say Europe is too slow, I say to them be courageous and finally move to qualified majority voting – at least on human rights and sanctions implementation.
This House has called many times for a European Magnitsky Act – and I can announce that we will now come forward with a proposal.
We need to complete our toolbox”.
While such plans for an EU-wide individual sanction regime have been nearly a year in the making – since EU foreign ministers took the decision to begin work on such legislation on December 9 2019 – its urgent need has been strongly felt in recent weeks, as the EU found itself ill-equipped to respond in a timely and targeted manner to human rights situations of concern (i.e the poisoning of Russian opposition leader Alexeï Navalny and the crackdown on protests in Belarus). In both cases, the EU institutions have expressed their intention to impose sanctions but the bureaucratically and politically heavy process of EU sanctioning has frustrated rapid responses.
Indeed, given that sanctions fall within the remit of the EU’s Common Foreign and Security Policy, they must be adopted in a unanimous decision by the European Council, which only meets several times per year. Moreover, if the Council Decision includes an asset freeze and/or other types of economic and/or financial sanctions, those measures need to be implemented in a Council regulation, which requires several additional procedural steps.
The situation in Belarus is a case in point. While EU foreign ministers agreed to sanctions of 40 Belarussian officials at a meeting in late August, these have not been implemented due to a political deadlock created by Cyprus’ decision to withhold from joining consensus until the EU added several Turkish officials to its sanction list, in response to the tensions surrounding drilling in the east Mediterranean.
There exists, however, a legal avenue to overcome this institutional hurdle. Article 31.3 of the Treaty of the European Union provides that in certain cases, ‘The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority’. This opens the door for the adoption by the Council of a Magnitsky-style regime, which allows for the listing, by qualified-majority, of individuals allegedly responsible for human rights violations.
As demonstrated by the Baltic States who have used their Magnitsky regimes to quickly respond by sanctioning (on 30 August) 30 Belarussian officials, including embattled President Lukashenko, such a regulation would facilitate a much prompter response from the block. Additionally, it would allow the world’s largest economy to join the growing ‘Magnitsky coalition’, in a move that would significantly increase the effectiveness of such sanctions. Indeed, on Thursday 24 September, the UK’s Foreign Secretary announced:
“We are willing to join the EU in adopting targeted sanctions against those responsible for the violence, the repression and the vote-rigging, although the EU process has now been delayed in Brussels.
“Given that delay, given [Lukashenko’s] fraudulent inauguration, I have directed the FCDO [Foreign, Commonwealth and Development Office] sanction team to prepare Magnitsky sanctions for those responsible for the serious human rights violations and we’re co-ordinating with the United States and Canada to prepare appropriate listings as a matter of urgency.”
This political paralysis of the EU Council has led to significant frustration within the other EU institutions, leading von der Leyen to announce a Magnitsky-style proposal the day before the EU parliament passed a resolution, which ‘reiterates its call on the EU Council to establish a comprehensive, effective and timely EU-wide restrictive measures mechanism (the so-called Magnitsky list) that would allow for the targeting of any individual, state and non-state actors, and other entities responsible for or involved in grave human rights violations and abuses, without any further delay’. In a separate resolution on the same day regarding the issue of the poisoning of Alexeï Navalny, the EU parliament similarly reiterated its call for the “Council to prioritise the approval of the EU Magnitsky-style human rights sanctions mechanism and its implementation in the near future, which will include a list of individuals and could also include sectoral sanctions aimed at the Russian regime.”
There is therefore little doubt that the EU Council will very soon proceed to adopt this proposal for a human rights sanction regime, which would make little sense without a qualified-majority provision. A first glimpse at the text suggests that similarly to other Magnitsky-style regimes, this legislation will allow EU asset-freezes and visa-bans for perpetrators of crimes against humanity, genocide, torture, slavery, extrajudicial killings, enforced disappearances, and arbitrary arrests. It thus has a similar material scope to comparable legislation in other countries, though like its UK counterpart, it unfortunately also omits grand corruption as a sanctionable crime.
Featured image: “why europe needs Magnitsky Law – EP book launch“, 13 November 2013, copyright ALDE Group
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