The European Union officially adopted the GHRSR on 10 December 2020 – World Human Rights Day. This new EU sanctions regime is part of a larger Magnitsky Laws regime which was first initiated by the USA1 in 2012 and later was followed by Canada2 and the UK3, among other states.
The sanctions under the GHRSR of the European Union include4:
- EU travel ban applying to individuals,
- freezing of assets in the EU applying to both individuals and entities, and
- prohibition of EU-based individuals and entities from making funds and economic resources available to perpetrators.
The scope of the sanctions cover "serious" human rights violations such as genocide, crimes against humanity, torture, slavery, extrajudicial executions, enforced disappearances, and arbitrary detentions but there is no exhaustive catalogue. The first list of sanctioned individuals and entities is expected to be published in early 2021.
Will the EU Global Human Rights Sanctions Regime be effective?
Financial sanctions and travel bans are nothing new in the European Union's external action. However, up until now the EU could only use such sanctions in a country-specific basis. Through this new sanctions regime the EU is much more flexible and does not need to establish specific legal frameworks for each case.5
Certainly, the GHRSR will have a deterrent effect. Individuals, state officials or companies that enjoy impunity in their respective jurisdictions will have to consider repercussions from the European Union for their future activities, irrespective of where the abuses take place. Given that someone listed under the sanctioned persons list will face a travel ban and their assets being frozen in not just one state but in all 27 EU member states, the GHRSR has the potential to become an effective tool in the European Union's arsenal.
With that said, the GHRSR also has its shortcomings. A unanimous vote of all 27 EU member states is required for an individual or entity to be sanctioned. This may preclude the EU from sanctioning a wide range of individuals or entities, especially in politically sensitive cases in which at least one EU member state has close ties with a perpetrator's country of origin .
Moreover, the concept of a "Magnitsky Law" emerged from the exposure of a corruption scandal in Russia by Mr. Sergei Magnitsky, a Russian tax advisor, who died in police custody in 2009. By contrast, the GHRSR does not include corruption in its list of human rights violations that can be grounds for sanctions, unlike similar laws adopted in other jurisdictions, such as the USA that enacted the initial Global Magnitsky Act in 2012.
How Does It Affect Turkish Individuals and Entities: The Interplay Between the EU and CoE
As the first list of sanctioned individuals and entities will be adopted in early 2021, it would be mere speculation to say that any Turkish individuals or entities will be on the list. However, the GHRSR has global reach and, thus, has the potential to affect Turkish individuals and entities.
An area of specific relevance to Turkey under the new sanctions regime could be related to judgments from the European Court of Human Rights ("ECtHR"). Although the ECtHR is an organ of the Council of Europe ("CoE"), of which Turkey is a member state, and not a European Union body, ECtHR judgments may direct the European Union's future global sanctions policy. This is because the ECtHR is the only regional human rights court that has jurisdiction over non-EU states and its judgments carry significant authority.
The enforcement of ECtHR judgments is monitored by the Committee of Ministers of the CoE but this body does not possess any effective tools and, thus, the lack of enforcement of ECtHR judgments has become a major issue in the recent years. Turkey is among the countries that are criticized for not implementing ECtHR judgments effectively.
With these factors in mind, it would not be a surprise for the European Union to use its new sanctions regime to target individuals and entities that it deems to be responsible for the ongoing failure to enforce ECtHR judgments. Such a policy could work for the benefit of both the European Union and the Council of Europe since the former would have judicial rulings to support its targeted sanctions and the latter would enjoy better enforcement of ECtHR judgments.
Moreover, while the lack of enforcement of ECtHR judgments may be a result of inaction on the part of state entities and officials in CoE member states, the GHRSR will allow the EU to sanction private individuals and companies responsible for human rights violations in the first place. In other words, if, for instance, a company engages in forced labour in Turkey but does not face any legal consequences within the Turkish jurisdiction despite an ECtHR judgment, the members of the board of executives or its C-level staff could directly face EU sanctions under the new regime.
The European Union's new Global Human Rights Sanctions Regime is part of a larger legal trend to hold specific individuals and entities accountable for their human rights abuses on a global scale. The EU joins the USA, Canada, and the UK who have already enacted comparable laws in their respective jurisdictions while Australia is in the process of adopting a similar sanctions regime.6
It is hard to predict at this point in which direction the GHRSR will go and how far its list of sanctioned persons will reach. A common expectation in policy circles is that the EU will largely follow in the footsteps of other states that have enacted Magnitsky laws and adopt a similar list of sanctioned individuals. With that said, the regional dynamic between the European Union and the Council of Europe could influence the direction of the GHRSR.
Although Turkish individuals and entities do not seem to be the immediate targets of this new regime, it is highly advisable for Turkish individuals and entities that have assets in EU countries or that do business in the EU to conduct human rights due diligence as a priority and to establish compliance programs in order to avoid facing any sanctions.
1. "Global Magnitsky Act." United States Department of State, www.state.gov/global-magnitsky-act.
2. Government of Canada. "Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)." Justice Laws Website, laws.justice.gc.ca/eng/acts/J-2.3/FullText.html. Accessed 15 Dec. 2020.
3. The UK Foreign, Commonwealth & Development Office. "UK Global Human Rights Sanctions.", https://www.gov.uk/government/collections/uk-global-human-rights-sanctions.
4. "EU Adopts a Global Human Rights Sanctions Regime." European Council, 7 Dec. 2020, www.consilium.europa.eu/en/press/press-releases/2020/12/07/eu-adopts-a-global-human-rights-sanctions-regime.
5. "The Long and Complex Road Towards an EU Global Human Rights Sanctions Regime." EEAS - European External Action Service - European Commission, 31 Oct. 2020, eeas.europa.eu/headquarters/headquarters-homepage/87884/long-and-complex-road-towards-eu-global-human-rights-sanctions-regime_en.
6. Galloway, Anthony. "Human Rights Offenders to Be Barred From Australia Under Magnitsky-Style Laws." The Sydney Morning Herald, 5 Dec. 2020, www.smh.com.au/politics/federal/human-rights-offenders-to-be-barred-from-australia-under-magnitsky-style-laws-20201203-p56kio.html.
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