Instituting a Global Sanctions Regime
By Emma Carrol on instituting a global sanctions regime and its impact on international law. A brief analysis of the impact of a global sanctions regime on international human rights law, and its introduction at the EU.
Victoria Skeie and myself attended Oslo Freedom Forum from 27th-29th May 2019. Oslo Freedom Forum is an annual human rights event. It featured three days of talks from global activists, an exposition of companies and organizations working to advance human rights, and a series of panels and workshops on a variety of topics. It culminated in a series of talks about defending the environment. Speakers for the 2019 Oslo Freedom Forum include North Korean Defector and former deputy ambassador of North Korea to the United Kingdom Thae Yong-ho, Kenyan transgender activist Audrey Mbugua, American historian and author Timothy Snyder, Uyghur rights advocate and attorney Nury Turkel, economist, and Magnitsky Act champion Bill Browder, among many others.
Of particular interest to those of you who follow PluriCourts’ work was a session entitled “Instituting a Global Sanctions Regime”. This was a session based around a sanctions regime propounded by Bill Browder called the Magnitsky Act. But, what is this Magnitsky Act and what does it mean for international law?
What is the Magnitsky Act?
The Magnitsky Act originated in the USA and was adopted in 2012 in response to the death of a Russian tax accountant Sergei Magnitsky in a Moscow prison. It was initially only directed at relevant Russian nationals, but in 2016, it was extended to apply globally to individuals of any nationality. This 2016 Act has been the basis for acts in the UK (Criminal Finances Act 2017) and Canada (Justice for Victims of Corrupt Foreign Officials Act 2017 (Sergei Magnitsky Law)). And, is now the basis for a European Union wide proposed “Global Magnitsky Act”. The Magnitsky Act represents the idea that in response to human rights violations and/or corruption, individuals instead of states are sanctioned. Sanctions against individuals represent the narrowest expression of a targeted sanction, discriminating clearly between targets and non-targets. These acts have been effective as they target the individual assets and interests of those senior officials or executives who are responsible for human rights violations and corruption.
Impact on International Law
International law is, for the most part, concerned with state obligations. From an international law perspective, the Magnitsky Act is interesting for several reasons.
First, in international human rights law the obligations of states parties relates only to the protection of the rights of their own citizens or those under their jurisdiction. The international human rights regime is, in principle, respectful of the principle of state sovereignty. It however leaves a lacuna, which human rights violators may fill. Whilst there has been some fracturing of the principle of state sovereignty through country-specific human rights resolutions and special procedures, there is limited scope for them to address or protect human rights violations outside of their jurisdiction.
Second, and related to the first point, the international human rights accountability system lies with states. The protection of human rights in states that are unwilling or unable to comply with their human rights obligations is often left to the UN system, which is state-centric. It is states that make up the UN bodies, and can raise issues to intervene in cases of human rights violations. And, it is states, and not individual representatives of those states, that ratify human rights treaties. Thus the UN Human Rights Council when examining cases of violations of human rights usually focus on the states concerned and not on the state officials. This creates circumstances where individual state officials are then able to hide behind this system of state accountability.
Third, for states to be bound in the first place they must have ratified relevant treaties. Notwithstanding jus cogens principles of international law, the obligations of states are restricted to the treaties, which they have ratified.
The Magnitsky Acts effectively extends the jurisdiction, of those states who have enacted it, to respond to human rights violations anywhere in the world. Regardless of whether the individuals concerned were on the territory of that state, or committed against their nationals.
What will the imposition of a Global Sanctions regime mean for the EU?
So far, all EU sanctions or negative measures are formally linked to states, with the exception of individuals with links to terrorist activities under Article 75 TFEU. On 14th March 2019 the European Parliament passed a resolution calling for the European Council “to swiftly establish an autonomous, flexible and reactive EU-wide sanctions regime 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.” The introduction of an EU Magnitsky type Act would allow for sanctions against human rights violators and those involved in corruption, obviating the need for a new sanctions regime. It would reduce the complexity of the current system, and enable the EU to introduce sanctions in the absence of UN Security Council resolutions or a countrywide sanction regime. The inclusion of corruption is a welcome addition to EU sanctions given its close connection to human rights violations.
The 14th March Resolution has tried to address criticisms levelled at the negative measures system currently in place at the EU, which is claimed to violate the right to fair trial and unduly expand state jurisdiction. It highlights the need for “the regime to be legally sound and in full compliance with the highest possible standards in terms of the protection and observance of due process rights of the individuals or entities concerned”. It has called for decisions based on “clear and distinct criteria and directly linked with the crime committed in order to guarantee a thorough judicial review”. Furthermore, with regard to issues of jurisdiction it stresses that universal jurisdiction is applicable. Although it is unclear as to whether corruption implores this level of jurisdiction.
The proposal is currently being discussed in a working group of the Council of Ministers. It will be interesting to see how this plays out at the EU level. If the European Parliament’s Resolution is to be implemented it will place severe restrictions on those responsible for human rights violations and corruption, whom hold assets in EU countries. These restrictions will have strong and far-reaching consequences in the field of human rights protection.
 European Parliament, Motion for a resolution on a European human rights violations sanctions regime 2019/2580(RSP) B8-0180/2019, 11th March 2019, available at http://www.europarl.europa.eu/doceo/document/B-8-2019-0180_EN.html?redirect
 European Parliament, Study: Targeted sanctions against individuals on grounds of grave human rights violations – impact, trends and prospects at EU level, April 2018, available at http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603869/EXPO_STU(2018)603869_EN.pdf
 GOPAC, Prosecuting Grand Corruption as an International Crime, 18th November 2013, available at http://gopacnetwork.org/Docs/DiscussionPaper_ProsecutingGrandCorruption_EN.pdf