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The European Union Global Human Rights Sanctions Regime (EUGHRSR)

Published online by Cambridge University Press:  04 March 2021

Tom Ruys
Tom Ruys*
Affiliation:
Professor of International Law, Ghent Rolin-Jaequemyns International Law Institute (GRILI), Ghent University
Rights & Permissions [Opens in a new window]

Extract

On December 7, 2020, the Council of the European Union adopted two legal instruments, Council Decision (CFSP) 2020/1999 and Council Regulation (EU) 2020/1998, which together make up the new EU Global Human Rights Sanctions Regime (EUGHRSR). Similar to the U.S. “Global Magnitsky Act,” and in contrast with the EU's existing country-specific sanctions regimes, the EUGHRSR seeks to address human rights abuses worldwide, by providing for the imposition of travel bans as well as financial sanctions on individual human rights offenders—state and non-state alike. The list of designated (natural and legal) persons will be reviewed on a periodic basis.

Information

Type
International Legal Documents
Information
International Legal Materials , Volume 60 , Issue 2 , April 2021, pp. 298 - 318
Copyright
Copyright © American Society of International Law 2021

Introduction

On December 7, 2020, the Council of the European Union adopted two legal instruments, Council Decision (CFSP) 2020/1999Footnote 1 and Council Regulation (EU) 2020/1998,Footnote 2 which together make up the new EU Global Human Rights Sanctions Regime (EUGHRSR). Similar to the U.S. “Global Magnitsky Act,”Footnote 3 and in contrast with the EU's existing country-specific sanctions regimes, the EUGHRSR seeks to address human rights abuses worldwide, by providing for the imposition of travel bans as well as financial sanctions on individual human rights offenders—state and non-state alike. The list of designated (natural and legal) persons will be reviewed on a periodic basis.

Background and Context

The recent origins of the EUGHRSR can be traced back to the adoption of the Sergei Magnitsky Rule of Law Accountability Act by the United States in 2012.Footnote 4 The 2012 Act came into being as a result of the outrage following the death in police custody of Sergei Magnitsky, a Russian whistleblower who had previously unveiled a massive tax fraud scheme involving Russian officials.Footnote 5 The 2012 Act provided for travel bans and asset freezes for persons believed to be involved in Magnitsky's death or in the corruption exposed by him. Its substantive and geographic scope was considerably expanded with the introduction in 2016 of a separate “Global Magnitsky Act.” As its name suggests, the latter instrument is truly global in reach, and empowers the U.S. government to impose travel bans and asset freezes on any foreign individuals suspected of gross human rights violations or acts of significant corruption.

The U.S. Global Magnitsky Act was met with enthusiasm by many human rights NGOs—notwithstanding their traditional suspicion towards the compatibility of targeted sanctions with due process guarantees—with some seeing it as heralding a “new era of smart sanctions.”Footnote 6 The move also inspired the adoption of similar human rights sanctions regimes in other countries, including Canada, the United Kingdom, and the three Baltic States, Estonia, Lithuania, and Latvia.Footnote 7

Toward the end of 2018, the Netherlands triggered discussions on the creation of a similar regime at the EU level.Footnote 8 The proposal gained momentum in 2019, and met with strong support from the European Parliament.Footnote 9 In December 2019, the Foreign Ministers of the EU member states gave the green light to the EU High Representative for Foreign Affairs and Security Policy to commence legislative preparatory work.Footnote 10

One year later, the Council formally adopted Council Decision (CFSP) 2020/1999 and Council Regulation (EU) 2020/1998, creating the EUGHRSR. The adoption and publication of the two instruments was accompanied by a press release of the European External Action Service,Footnote 11 as well as a Commission Guidance NoteFootnote 12 on the implementation of Regulation (EU) 2020/1998, which has direct effect in the EU legal order. The names of persons and entities subject to sanctions under the EUGHRSR remained to be added at a later stage in time.

Contrary to its U.S. forerunner and the proposal of the European Parliament,Footnote 13 the EUGHRHSR deliberately avoids any reference to Magnitsky's name in an effort to avoid the impression that the regime is directed primarily against Moscow. Another important difference from the U.S. Global Magnitsky Act and the European Parliament's proposal,Footnote 14 as well as from similar legislation in other states, relates to the fact that the EUGHRSR does not extend to acts of corruption. It is noted, however, that the EU has previously targeted individuals involved in misappropriation of state funds through its country-specific sanctions instruments,Footnote 15 and can be expected to continue doing so in the future.

Content

The EUGHRSR provides for three types of sanctions, namely, travel bans, asset freezes, and a prohibition to make funds or economic resources available, either directly or indirectly, to listed natural or legal persons. Persons can be listed when believed to be responsible for: (a) genocide; (b) crimes against humanity; (c) a limited set of “serious human rights violations” (including torture but also, for example, arbitrary detention); and (d) other human rights violations, insofar as they are widespread, systematic, or of serious concern in light of the objectives of the EU's Common Foreign and Security Policy (CFSP), as laid out in Article 21 of the Treaty on European Union. Sanctions can also be imposed on those who materially support the foregoing acts, or “associated” persons. The regime targets not only state actors, but also “other actors exercising effective control or authority over a territory,” as well as other “non-state actors,” thus implicitly acknowledging that non-state actors are not beyond the reach of human rights law.

The instruments contain various safeguards to avoid any conflict with Member States' international obligations. Thus, Member States can set aside travel bans in light of their obligations as host countries of an international organization. They can also authorize the release of frozen funds to enable payments into or from accounts of a diplomatic or consular mission, insofar as the payment is intended for official purposes. The instruments emphasize the interaction between international human rights law and international humanitarian law. In addition to the standard exemptions (e.g., for payments for basic needs or legal services), a separate derogation allows Member States to lift sanctions when the provision of funds or economic resources is necessary for humanitarian purposes. The Commission Guidance Note stresses, somewhat confusingly, that the financial sanctions “do not apply extra-territorially.”Footnote 16 The more accurate formulation would be that the scope of application of Regulation 2020/1998—which is identical to that of other EU sanctions instruments—remains within the bounds of permissive principles of jurisdiction by refraining from creating obligations for non-EU operators unless the business is conducted at least partly within the EU. As with other EU sanctions, targeted persons can lodge administrative delisting requests with the Council and/or challenge their listing before the EU courts, although this procedure requires time, and awards of damages remain exceptional. Enforcement of the sanctions regime ultimately rests with the competent authorities of the EU Member States.

Significance and Effect

In all, the EUGHRSR constitutes an important addition to the EU's existing sanctions toolbox. It underscores the importance attached by the EU to the protection of human rights as part of its CFSP objectives. It serves as a warning that there is a cost for serious human rights abuses, particularly for those oligarchs with assets within the EU (whether in the form of bank accounts or real estate in French skiing resorts).

At the global level, the initiative fits within a broader move from large-scale embargoes and other “sectoral” sanctions—which may cause “collateral” harm to the civilian population—to more “targeted” or “smart” sanctions, as well as a trend involving the increased recourse to unilateral or “non-UN” sanctions in response to breaches of international law (whether through mere “retorsions” or actual “third-party countermeasures”).

At the EU level, the initiative fits within a trend to complement the traditional country-specific sanctions instruments with additional, “thematic” instruments. Like other thematic instruments (e.g., for cyberattacks), the EUGHRSR allows for greater flexibility, specifically a more rapid and efficient response in the face of ongoing human rights violations. It further has the benefit of directing its stigmatizing effect to specific individuals, as opposed to a state.

Reservations nonetheless remain.Footnote 17 In particular, while the EUGHRSR may allow for greater flexibility than reliance on country-specific sanctions instruments, it remains to be seen how the two will interact in the EU's practice. Importantly, notwithstanding recent calls from Commission President von der Leyen to use qualified majority voting in the sanctions domain,Footnote 18 the inclusion of individuals on (or their removal from) the EUGHRSR sanctions list still requires unanimity amongst the EU member states. This leaves room for the same divide et impera tactics that have undermined EU sanctions policy in the past.

On a more general level, debate remains regarding whether sanctions against human rights offenders have (only) a signaling and deterring objective, or are also punitive in nature. Related to this is the question of exit strategy—under what conditions will sanctions be lifted? The unilateral (non-UN) character also raises the question of legitimacy and may fuel accusations of double standards, as certain individuals are listed and other obvious candidates left out. Most in the Western world will regard the EUGHRSR and consorts as an important tool in the fight against impunity and for the promotion of human rights. Yet dissenting voices may criticize the proliferation of unilateral Magnitsky-style sanctions—with the lists of designated persons differing from one jurisdiction to another—as a lex horrenda Footnote 19 and a recipe for international tension. Against this background, one question that remains largely unanswered concerns the effectiveness of sanctions (sectoral and targeted) in changing behavior.Footnote 20

Either way, the introduction of a “Magnitsky-style” sanctions regime by a bloc of 27 EU Member States is bound to give further impetus to the spread of such regimes to other countries. Already in December 2020, nine other European countriesFootnote 21 “aligned” themselves with Council Decision (CFSP) 2020/1999.Footnote 22 Several other countries are reportedly preparing or considering similar legislation.Footnote 23

COUNCIL DECISION (CFSP) 2020/1999 (EUGHRSR)

This text was reproduced and reformatted from the text available at the EUR-Lex website (visited February 4, 2021), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D1999&qid=1612465021926.

DECISIONS

COUNCIL DECISION (CFSP) 2020/1999

of 7 December 2020

concerning restrictive measures against serious human rights violations and abuses

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 29 thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy, Whereas:

  1. (1) The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights and is committed to protect those values, which play a key role in ensuring peace and sustainable security, as cornerstones of its external action.

  2. (2) Human rights are universal, indivisible, interdependent and interrelated. States have primary responsibility to respect, protect and fulfil human rights, including ensuring compliance with international human rights law. Human rights violations and abuses worldwide remain of great concern, including the significant involvement of non-State actors in human rights abuses globally as well as the severity of many such acts. Such acts violate the principles and threaten the objectives of the Union's external action as set out in Article 21(1) and (2) of the Treaty on European Union (TEU).

  3. (3) 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 a Union regime of general scope for restrictive measures against serious human rights violations and abuses.

  4. (4) This Decision establishes a framework for targeted restrictive measures to address serious human rights violations and abuses worldwide. In that regard, the Council emphasises the importance of international human rights law and of the interaction between international human rights law and international humanitarian law when considering the application of targeted restrictive measures under this Decision. This Decision does not affect the application of other existing or future Council decisions under the common foreign and security policy establishing restrictive measures in view of the situation in certain third countries, and which address human rights violations or abuses.

  5. (5) Such targeted restrictive measures will pursue common foreign and security policy objectives as set out in Article 21 TEU, and they will contribute to Union action to consolidate and support democracy, the rule of law, human rights and the principles of international law in accordance with point (b) of Article 21(2) TEU. The application of such targeted restrictive measures will be consistent with the Union's overall strategy in this area and enhance the Union's capacity to promote respect for human rights.

  6. (6) Further action by the Union is needed in order to implement certain measures,

HAS ADOPTED THIS DECISION:

Article 1

1. This Decision establishes a framework for targeted restrictive measures to address serious human rights violations and abuses worldwide. It applies to:

  1. (a) genocide;

  2. (b) crimes against humanity;

  3. (c) the following serious human rights violations or abuses:

  1. (i) torture and other cruel, inhuman or degrading treatment or punishment,

  2. (ii) slavery,

  3. (iii) extrajudicial, summary or arbitrary executions and killings,

  4. (iv) enforced disappearance of persons,

  5. (v) arbitrary arrests or detentions;

  1. (d) other human rights violations or abuses, including but not limited to the following, in so far as 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 Article 21 TEU:

  1. (i) trafficking in human beings, as well as abuses of human rights by migrant smugglers as referred to in this Article,

  2. (ii) sexual and gender-based violence,

  3. (iii) violations or abuses of freedom of peaceful assembly and of association,

  4. (iv) violations or abuses of freedom of opinion and expression,

  5. (v) violations or abuses of freedom of religion or belief.

2. For the purpose of applying paragraph 1, regard should be had to customary international law and widely accepted instruments of international law, such as:

  1. (a) the International Covenant on Civil and Political Rights;

  2. (b) the International Covenant on Economic, Social and Cultural Rights;

  3. (c) the Convention on the Prevention and Punishment of the Crime of Genocide;

  4. (d) the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;

  5. (e) the International Convention on the Elimination of All Forms of Racial Discrimination;

  6. (f) the Convention on the Elimination of All Forms of Discrimination against Women;

  7. (g) the Convention on the Rights of the Child;

  8. (h) the International Convention for the Protection of All Persons from Enforced Disappearances;

  9. (i) the Convention on the Rights of Persons with Disabilities;

  10. (j) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime;

  11. (k) the Rome Statute of the International Criminal Court;

  12. (l) the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3. For the purposes of this Decision, natural or legal persons, entities or bodies may include:

  1. (a) State actors;

  2. (b) other actors exercising effective control or authority over a territory;

  3. (c) other non-State actors.

4. When establishing or amending the list set out in the Annex with regard to other non-State actors under point (c) of paragraph 3, the Council shall take into account in particular the following specific elements:

  1. (a) the objectives of the common foreign and security policy as set out in Article 21 TEU; and

  2. (b) the gravity and/or impact of the abuses.

Article 2

1. Member States shall take the measures necessary to prevent the entry into, or transit through, their territories of:

  1. (a) natural persons who are responsible for acts set out in Article 1(1);

  2. (b) natural persons who provide financial, technical, or material support for, or are otherwise involved in, acts set out in Article 1(1), including by planning, directing, ordering, assisting, preparing, facilitating, or encouraging such acts;

  3. (c) natural persons who are associated with the persons covered by points (a) and (b); as listed in the Annex.

2. Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.

3. Paragraph 1 shall be without prejudice to the cases where a Member State is bound by an obligation under international law, namely:

  1. (a) as a host country of an international intergovernmental organisation;

  2. (b) as a host country of an international conference convened by, or under the auspices of, the United Nations;

  3. (c) under a multilateral agreement conferring privileges and immunities; or

  4. (d) pursuant to the 1929 Treaty of Conciliation (Lateran Pact) concluded by the Holy See (Vatican City State) and Italy.

4. Paragraph 3 shall be considered to apply also in cases where a Member State is host country of the Organization for Security and Cooperation in Europe (OSCE).

5. The Council shall be duly informed in all cases where a Member State grants an exemption pursuant to paragraph 3 or 4.

6. Member States may grant exemptions from the measures imposed under paragraph 1 where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings or meetings promoted or hosted by the Union, or hosted by a Member State holding the Chairmanship in office of the OSCE, where a political dialogue is conducted that directly promotes the policy objectives of restrictive measures, including the ending of serious human rights violations and abuses and the furthering of human rights.

7. Member States may also grant exemptions from the measures imposed under paragraph 1 where entry or transit is necessary for the fulfilment of a judicial process.

8. A Member State wishing to grant exemptions referred to in paragraph 6 or 7 shall notify the Council in writing. The exemption shall be deemed to be granted unless one or more of the Council members raises an objection in writing within two working days of receiving notification of the proposed exemption. Should one or more of the Council members raise an objection, the Council, acting by a qualified majority, may decide to grant the proposed exemption.

9. Where, pursuant to paragraph 3, 4, 6, 7 or 8, a Member State authorises the entry into, or transit through its territory of persons listed in the Annex, the authorisation shall be strictly limited to the purpose for which it is given and to the persons directly concerned thereby.

Article 3

1. All funds and economic resources belonging to, owned, held or controlled by:

  1. (a) natural or legal persons, entities or bodies, who are responsible for acts set out in Article 1(1);

  2. (b) atural or legal persons, entities or bodies, who provide financial, technical, or material support for or are otherwise involved in acts set out in Article 1(1), including by planning, directing, ordering, assisting, preparing, facilitating, or encouraging such acts;

  3. (c) natural or legal persons, entities or bodies, who are associated with the natural or legal persons, entities or bodies covered by points (a) and (b);

as listed in the Annex, shall be frozen.

2. No funds or economic resources shall be made available directly or indirectly to or for the benefit of the natural or legal persons, entities or bodies listed in the Annex.

3. By way of derogation from paragraphs 1 and 2, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:

  1. (a) necessary to satisfy the basic needs of the natural or legal persons, entities or bodies listed in the Annex and dependent family members of such natural persons, including payments for food, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

  2. (b) intended exclusively for the payment of reasonable professional fees or the reimbursement of incurred expenses associated with the provision of legal services;

  3. (c) intended exclusively for the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources;

  4. (d) necessary for extraordinary expenses, provided that the relevant competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation; or

  5. (e) to be paid into or from an account of a diplomatic or consular mission or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic or consular mission or international organisation.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

4. By way of derogation from paragraph 1, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, provided that the following conditions are met:

  1. (a) the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in paragraph 1 was listed in the Annex, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

  2. (b) the funds or economic resources will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

  3. (c) the decision is not for the benefit of a natural or legal person, entity or body listed in the Annex; and

  4. (d) recognition of the decision is not contrary to public policy in the Member State concerned.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

5. Paragraph 1 shall not prevent a natural or legal person, entity or body listed in the Annex from making a payment due under a contract or agreement entered into, or an obligation that arose, prior to the date on which such natural or legal person, entity or body was listed therein, provided that the Member State concerned has determined that the payment is not, directly or indirectly, received by a natural or legal person, entity or body referred to in paragraph 1.

6. Paragraph 2 shall not apply to the addition to frozen accounts of:

  1. (a) interest or other earnings on those accounts;

  2. (b) payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to the measures provided for in paragraphs 1 and 2; or

  3. (c) payments due under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned, provided that any such interest, other earnings and payments remain subject to the measures provided for in paragraph 1.

Article 4

1. By way of derogation from Article 3(1) and (2), the competent authorities in the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the provision of such funds or economic resources is necessary for humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies, food, or the transfer of humanitarian workers and related assistance or for evacuations.

2. The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under this Article within four weeks of the authorisation.

Article 5

1. The Council, acting by unanimity upon a proposal from a Member State or from the High Representative, shall establish and amend the list set out in the Annex.

2. The Council shall communicate the decisions referred to in paragraph 1, including the grounds for listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing that natural or legal person, entity or body with an opportunity to present observations.

3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review the decisions referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.

Article 6

1. The Annex shall include the grounds for listing the natural or legal persons, entities or bodies referred to in Articles 2 and 3.

2. The Annex shall contain, where available, the information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include: names and aliases; date and place of birth; nationality; passport and identity card numbers; gender; address, if known; and function or profession. With regard to legal persons, entities or bodies, such information may include: names; place and date of registration; registration number; and place of business.

Article 7

1. The Council and the High Representative shall process personal data in order to carry out their tasks under this Decision, in particular:

  1. (a) as regards the Council, for preparing and making amendments to the Annex;

  2. (b) as regards the High Representative, for preparing amendments to the Annex.

2. The Council and the High Representative may process, where applicable, relevant data relating to criminal offences committed by listed natural persons, and to criminal convictions or security measures concerning such persons, only to the extent that such processing is necessary for the preparation of the Annex.

3. For the purposes of this Decision, the Council and the High Representative are designated as ‘controller’ within the meaning of point (8) of Article 3 of Regulation (EU) 2018/1725 of the European Parliament and of the Council Footnote (1), in order to ensure that the natural persons concerned can exercise their rights under Regulation (EU) 2018/1725.

Article 8

No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Decision, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, in particular a claim for extension or payment of a bond or of guarantee or indemnity, in particular a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

  1. (a) designated natural or legal persons, entities or bodies listed in the Annex;

  2. (b) any natural or legal person, entity or body acting through or on behalf of one of the natural or legal persons, entities or bodies referred to in point (a).

Article 9

In order to maximise the impact of the measures set out in this Decision, the Union shall encourage third States to adopt restrictive measures similar to those provided for in this Decision.

Article 10

This Decision shall apply until 8 December 2023 and shall be kept under constant review. The measures set out in Articles 2 and 3 shall apply as regards the natural or legal persons, entities, and bodies listed in the Annex until 8 December 2021.

Article 11

This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Done at Brussels, 7 December 2020.

For the Council The President

J. BORRELL FONTELLES

ANNEX

List of natural and legal persons, entities and bodies referred to in Articles 2 and 3

  1. A. Natural persons

  2. B. Legal persons, entities and bodies

COUNCIL REGULATION (EU) 2020/1998 (EUGHRSR) [December 7, 2020]

This text was reproduced and reformatted from the text available at the EUR-Lex website (visited February 4, 2021), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020R1998&qid=1612464271872.

REGULATIONS

COUNCIL REGULATION (EU) 2020/1998

of 7 December 2020

concerning restrictive measures against serious human rights violations and abuses

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,

Having regard to Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abusesFootnote (1),

Having regard to the joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission,

Whereas:

  1. (1) On 7 December 2020, the Council adopted Decision (CFSP) 2020/1999, which establishes a framework for targeted restrictive measures to address serious human rights violations and abuses worldwide. That Decision provides for the freezing of funds and economic resources of, and the prohibition to make funds and economic resources available to, natural or legal persons, entities or bodies responsible for, providing support to or otherwise involved in serious human rights violations or abuses, as well as those associated with the natural and legal persons, entities and bodies covered. Natural and legal persons, entities and bodies subject to the restrictive measures are listed in the Annex to Decision (CFSP) 2020/1999. That Decision emphasises the importance of international human rights law and of the interaction between international human rights law and international humanitarian law when considering the application of targeted restrictive measures.

  2. (2) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy, the right to defence, and the right to the protection of personal data. This Regulation should be applied in accordance with those rights.

  3. (3) The power to establish and amend the list in Annex I to this Regulation should be exercised by the Council in order to ensure consistency with the process for establishing, amending and reviewing the Annex to Decision (CFSP) 2020/1999.

  4. (4) For the implementation of this Regulation, and in order to ensure maximum legal certainty within the Union, the names and other relevant data concerning natural and legal persons, entities and bodies whose funds and economic resources are to be frozen in accordance with this Regulation should be made public. Any processing of personal data should comply with Regulations (EU) 2016/679Footnote (2) and (EU) 2018/1725Footnote (3) of the European Parliament and of the Council.

  5. (5) Member States and the Commission should inform each other of the measures taken pursuant to this Regulation and of other relevant information at their disposal in connection with this Regulation.

  6. (6) Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and make sure that they are implemented. Those penalties should be effective, proportionate and dissuasive,

HAS ADOPTED THIS REGULATION:

Article 1

For the purposes of this Regulation, the following definitions apply:

  1. (a) ‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after the date of entry into force of this Regulation, under or in connection with a contract or transaction, and in particular:

  1. (i) a claim for performance of any obligation arising under or in connection with a contract or transaction;

  2. (ii) a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;

  3. (iii) a claim for compensation in respect of a contract or transaction;

  4. (iv) a counterclaim;

  5. (v) a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;

  1. (b) ‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for that purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

  2. (c) ‘competent authorities’ refers to the competent authorities of the Member States as identified on the websites listed in Annex II;

  3. (d) ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but may be used to obtain funds, goods or services;

  4. (e) ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

  5. (f) ‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;

  6. (g) ‘funds’ means financial assets and benefits of every kind, including, but not limited to:

  1. (i) cash, cheques, claims on money, drafts, money orders and other payment instruments;

  2. (ii) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

  3. (iii) publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;

  4. (iv) interest, dividends or other income on or value accruing from or generated by assets;

  5. (v) credit, right of set-off, guarantees, performance bonds or other financial commitments;

  6. (vi) letters of credit, bills of lading, bills of sale;

  7. (vii) documents showing evidence of an interest in funds or financial resources;

  1. (h) ‘territory of the Union’ means the territories of the Member States to which the Treaty on European Union (TEU) is applicable, under the conditions laid down in the TEU, including their airspace.

Article 2

1. This Regulation applies to:

  1. (a) genocide;

  2. (b) crimes against humanity;

  3. (c) the following serious human rights violations or abuses:

  1. (i) torture and other cruel, inhuman or degrading treatment or punishment;

  2. (ii) slavery;

  3. (iii) extrajudicial, summary or arbitrary executions and killings;

  4. (iv) enforced disappearance of persons;

  5. (v) arbitrary arrests or detentions;

  1. (d) other human rights violations or abuses, including but not limited to the following, in so far as 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 Article 21 TEU:

  1. (i) (trafficking in human beings, as well as abuses of human rights by migrant smugglers as referred to in this Article;

  2. (ii) sexual and gender-based violence;

  3. (iii) violations or abuses of freedom of peaceful assembly and of association;

  4. (iv) violations or abuses of freedom of opinion and expression;

  5. (v) violations or abuses of freedom of religion or belief.

2. For the purpose of applying paragraph 1, regard should be had to customary international law and widely accepted instruments of international law, such as:

  1. (a) the International Covenant on Civil and Political Rights;

  2. (b) the International Covenant on Economic, Social and Cultural Rights;

  3. (c) the Convention on the Prevention and Punishment of the Crime of Genocide,

  4. (d) the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;

  5. (e) the International Convention on the Elimination of All Forms of Racial Discrimination;

  6. (f) the Convention on the Elimination of All Forms of Discrimination against Women;

  7. (g) the Convention on the Rights of the Child;

  8. (h) the International Convention for the Protection of All Persons from Enforced Disappearance;

  9. (i) the Convention on the Rights of Persons with Disabilities;

  10. (j) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime;

  11. (k) the Rome Statute of the International Criminal Court.

  12. (l) the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3. For the purposes of applying this Regulation, natural or legal persons, entities or bodies may include:

  1. (a) State actors;

  2. (b) other actors exercising effective control or authority over a territory;

  3. (c) other non-State actors, subject to Article 1(4) of Decision (CFSP) 2020/1999.

Article 3

1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body as listed in Annex I shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I.

3. Annex I shall include, as identified by the Council in accordance with Article 3 of Decision (CFSP) 2020/1999:

  1. (a) natural or legal persons, entities or bodies, who are responsible for acts set out in Article 2(1);

  2. (b) natural or legal persons, entities or bodies, who provide financial, technical, or material support for or are otherwise involved in acts set out in Article 2(1), including by planning, directing, ordering, assisting, preparing, facilitating, or encouraging such acts;

  3. (c) natural or legal persons, entities or bodies, who are associated with the natural or legal persons, entities or bodies covered by points (a) and (b).

Article 4

1. By way of derogation from Article 3, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:

  1. (a) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I, and dependent family members of such natural persons, including payments for food, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

  2. (b) intended exclusively for the payment of reasonable professional fees or the reimbursement of incurred expenses associated with the provision of legal services;

  3. (c) intended exclusively for the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources;

  4. (d) necessary for extraordinary expenses, provided that the relevant competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation; or

  5. (e) to be paid into or from an account of a diplomatic or consular mission or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic or consular mission or international organisation.

2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within two weeks of the authorisation.

Article 5

1. By way of derogation from Article 3, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the provision of such funds or economic resources is necessary for humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies, food, or the transfer of humanitarian workers and related assistance or for evacuations.

2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within four weeks of the authorisation.

Article 6

1. By way of derogation from Article 3(1), the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, if the following conditions are met:

  1. (a) the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 3 was listed in Annex I, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

  2. (b) the funds or economic resources will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

  3. (c) the decision is not for the benefit of a natural or legal person, entity or body listed in Annex I; and

  4. (d) recognition of the decision is not contrary to public policy in the Member State concerned.

2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within two weeks of the authorisation.

Article 7

1. By way of derogation from Article 3(1) and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I, the competent authorities of the Member States may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that:

  1. (a) the funds or economic resources will be used for a payment by a natural or legal person, entity or body listed in Annex I; and

  2. (b) the payment is not in breach of Article 3(2).

2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within two weeks of the authorisation.

Article 8

1. Article 3(2) shall not prevent the crediting of frozen accounts by financial or credit institutions that receive funds transferred by third parties onto the account of a listed natural or legal person, entity or body, provided that any additions to such accounts will also be frozen. The financial or credit institution shall inform the relevant competent authority about any such transaction without delay.

2. Article 3(2) shall not apply to the addition to frozen accounts of:

  1. (a) interest or other earnings on those accounts;

  2. (b) payments due under contracts, agreements or obligations that were concluded or arose before the date on which the natural or legal person, entity or body referred to in Article 3 was included in Annex I; or

  3. (c) payments due under judicial, administrative or arbitral decisions rendered in a Member State or enforceable in the Member State concerned, provided that any such interest, other earnings and payments remain subject to the measures provided for in Article 3(1).

Article 9

1. Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy, natural and legal persons, entities and bodies shall:

  1. (a) supply immediately any information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 3(1), to the competent authority of the Member State where they are resident or located, and transmit such information, directly or through the Member State, to the Commission; and

  2. (b) cooperate with the competent authority in any verification of the information referred to in point (a).

2. Any additional information received directly by the Commission shall be made available to the Member States.

3. Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.

Article 10

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Article 3.

Article 11

1. The freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out in good faith on the basis that such action is in accordance with this Regulation, shall not give rise to liability of any kind on the part of the natural or legal person or entity or body implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen or withheld as a result of negligence.

2. Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.

Article 12

1. No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, in particular a claim for extension or payment of a bond or of a guarantee or indemnity, in particular a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

  1. (a) natural or legal persons, entities or bodies listed in Annex I;

  2. (b) any natural or legal person, entity or body acting through or on behalf of one of the natural or legal persons, entities or bodies referred to in point (a).

2. In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim.

3. This Article is without prejudice to the right of the natural or legal persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.

Article 13

1. The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information in respect of:

  1. (a) funds frozen under Article 3 and authorisations granted under Articles 4, 5, 6 and 7;

  2. (b) violation and enforcement problems and judgments handed down by national courts.

2. The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.

Article 14

1. Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 3, it shall amend Annex I accordingly.

2. The Council shall communicate the decision referred to in paragraph 1, including the grounds for listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing that natural or legal person, entity or body with an opportunity to present observations.

3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review the decisions referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.

4. The list in Annex I shall be reviewed at regular intervals and at least every 12 months.

5. The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.

Article 15

1. Annex I shall include the grounds for the listing of natural or legal persons, entities or bodies concerned.

2. Annex I shall contain, where available, the information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include: names and aliases; date and place of birth; nationality; passport and identity card numbers; gender; address, if known; and function or profession. With regard to legal persons, entities or bodies, such information may include: names; place and date of registration; registration number; and place of business.

Article 16

1. Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

2. Member States shall notify the Commission of the rules referred to in paragraph 1 without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.

Article 17

1. The Council, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’) shall process personal data in order to carry out their tasks under this Regulation. These tasks include:

  1. (a) as regards the Council, preparing and making amendments to Annex I;

  2. (b) as regards the High Representative, preparing amendments to Annex I;

  3. (c) as regards the Commission:

  1. (i) adding the contents of Annex I to the electronic, consolidated list of persons, groups and entities subject to Union financial sanctions and to the interactive sanctions map, both publicly available;

  2. (ii) processing information on the impact of the measures provided for in this Regulation such as the value of frozen funds and information on authorisations granted by the competent authorities.

2. The Council, the Commission and the High Representative may process, where applicable, relevant data relating to criminal offences committed by listed natural persons, to criminal convictions of such persons or to security measures concerning such persons, only to the extent that such processing is necessary for the preparation of Annex I.

3. For the purposes of this Regulation, the Council, the Commission service listed in Annex II to this Regulation and the High Representative are designated as ‘controller’ within the meaning of point (8) of Article 3 of Regulation (EU) 2018/1725, in order to ensure that the natural persons concerned can exercise their rights under Regulation (EU) 2018/1725.

Article 18

1. Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex II. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex II.

2. Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after the entry into force of this Regulation, and shall notify it of any subsequent amendment.

3. Where this Regulation sets out a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex II.

Article 19

This Regulation shall apply:

  1. (a) within the territory of the Union, including its airspace;

  2. (b) on board any aircraft or vessel under the jurisdiction of a Member State;

  3. (c) to any natural person inside or outside the territory of the Union who is a national of a Member State;

  4. (d) to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;

  5. (e) to any legal person, entity or body in respect of any business done in whole or in part within the Union.

Article 20

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 7 December 2020.

For the Council The President

J. BORRELL FONTELLES

ANNEX I

List of natural or legal persons, entities or bodies referred to in Article 3

  1. A. Natural persons

  2. B. Legal persons, entities and bodies

ANNEX II

Websites for information on the competent authorities and address for notifications to the Commission

BELGIUM

https://diplomatie.belgium.be/nl/Beleid/beleidsthemas/vrede_en_veiligheid/sancties

https://diplomatie.belgium.be/fr/politique/themes_politiques/paix_et_securite/sanctions

https://diplomatie.belgium.be/en/policy/policy_areas/peace_and_security/sanctions

BULGARIA

https://www.mfa.bg/en/101

CZECH REPUBLIC

www.financnianalytickyurad.cz/mezinarodni-sankce.html

DENMARK

http://um.dk/da/Udenrigspolitik/folkeretten/sanktioner/

GERMANY

http://www.bmwi.de/DE/Themen/Aussenwirtschaft/aussenwirtschaftsrecht,did=404888.html

ESTONIA

http://www.vm.ee/est/kat_622/

IRELAND

http://www.dfa.ie/home/index.aspx?id=28519

GREECE

http://www.mfa.gr/en/foreign-policy/global-issues/international-sanctions.html

SPAIN

http://www.exteriores.gob.es/Portal/en/PoliticaExteriorCooperacion/GlobalizacionOportunidadesRiesgos/Paginas/SancionesInternacionales.aspx

FRANCE

http://www.diplomatie.gouv.fr/fr/autorites-sanctions/

CROATIA

http://www.mvep.hr/sankcije

ITALY

https://www.esteri.it/mae/it/politica_estera/politica_europea/misure_deroghe

CYPRUS

http://www.mfa.gov.cy/mfa/mfa2016.nsf/mfa35_en/mfa35_en?OpenDocument

LATVIA

http://www.mfa.gov.lv/en/security/4539

LITHUANIA

http://www.urm.lt/sanctions

LUXEMBOURG

https://maee.gouvernement.lu/fr/directions-du-ministere/affaires-europeennes/mesures-restrictives.html

HUNGARY

https://kormany.hu/kulgazdasagi-es-kulugyminiszterium/ensz-eu-szankcios-tajekoztato

MALTA

https://foreignandeu.gov.mt/en/Government/SMB/Pages/SMB-Home.aspx

NETHERLANDS

https://www.rijksoverheid.nl/onderwerpen/internationale-sancties

AUSTRIA

http://www.bmeia.gv.at/view.php3?f_id=12750&LNG=en&version=

POLAND

https://www.gov.pl/web/dyplomacja

PORTUGAL

http://www.portugal.gov.pt/pt/ministerios/mne/quero-saber-mais/sobre-o-ministerio/medidas-restritivas/medidas-restritivas.aspx

ROMANIA

http://www.mae.ro/node/1548

SLOVENIA

http://www.mzz.gov.si/si/omejevalni_ukrepi

SLOVAKIA

https://www.mzv.sk/europske_zalezitosti/europske_politiky-sankcie_eu

FINLAND

http://formin.finland.fi/kvyhteistyo/pakotteet

SWEDEN

http://www.ud.se/sanktioner

Address for notifications to the European Commission:

European Commission

Directorate-General for Financial Stability, Financial Services and Capital Markets Union (DG FISMA) Rue de Spa 2

B-1049 Brussels, Belgium

Email:

Footnotes

1 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

1 See page 13 of this Official Journal.

2 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

3 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

References

ENDNOTES

1 Council Decision (CFSP) 2020/1999 of Dec. 7, 2020, concerning restrictive measures against serious human rights violations and abuses, 2020 O.J. (L 410 I) 13.

2 Council Regulation (EU) 2020/1998 of Dec. 7, 2020, concerning restrictive measures against serious human rights violations and abuses, 2020 O.J. (L 410 I) 1.

3 Global Magnitsky Human Rights Accountability Act, 22 U.S.C. § 2656.

4 Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, 19 U.S.C. § 2101.

5 For an account of the events, see, e.g., Council of Europe Parliamentary Assembly, Report of the Committee on Legal Affairs and Human Rights (Rapporteur Andreas Gross), Refusing Impunity for the Killers of Sergei Magnitsky, Doc. 13556 (2013) (Nov. 18, 2013) 8-43.

6 Michelle Smoler, The Global Magnitsky Act represents New Era of Smart Sanctions, Human Rights First (Sept. 20, 2017), https://www.humanrightsfirst.org/blog/global-magnitsky-act-represents-new-era-smart-sanctions.

7 See Tom Ruys, Reflections on the “Global Magnitsky Act” and the Use of Targeted Sanctions in the Fight against Grand Corruption, Revue Belge de Droit International 492, 495496 (2017) (with references). Civil society efforts to spread similar legislation in other jurisdictions has been spearheaded among others by Sergei Magnitsky's erstwhile friend and client, Bill Browder, who founded the “Global Magnitsky Justice Campaign.”

8 Andrew Rettman, Dutch Flesh Out Proposal for EU Human Rights Sanctions, EU Observer (Nov. 19, 2018), https://euobserver.com/foreign/143424.

9 European Parliament resolution of Mar. 14, 2019, on a European human rights violations sanctions regime, 2019/2580(RSP), https://www.europarl.europa.eu/doceo/document/TA-8-2019-0215_EN.html.

10 Alexandra Brzozowski, EU Ministers Break Ground on European “Magnitsky Act,” EURACTIV (Dec. 10, 2019), https://www.euractiv.com/section/justice-home-affairs/news/eu-ministers-break-ground-on-european-magnitsky-act.

11 European External Action Service Press Release 201207_14, Questions and Answers: EU Global Human Rights Sanctions Regime (Dec. 7 2017), https://eeas.europa.eu/headquarters/headquarters-homepage/90013/questions-and-answers-eu-global-human-rights-sanctions-regime_en.

12 European Commission, Commission Guidance Note on the Implementation of Certain Provisions of Council Regulation (EU) 2020/1998, C(2020) 9432 final (Dec. 17, 2020).

13 The Resolution of the European Parliament (supra note 10) stressed that the EU human rights sanctions regime ought to “symbolically carry Sergei Magnitsky's name” (¶ 2).

14 Id. ¶ 4.

15 See, e.g., Council Regulation (EU) No 208/2014 of Mar 5, 2014, concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, 2014 O.J. (L-66 ) 1 (as amended).

16 European Commission, supra note 13, 2.

17 For early critical reflections on the (draft) regime, see, e.g., Nienke van der Have, The Proposed EU Human Rights Sanctions Regime: a First Appreciation, 30 Security & Hum. Rts. 56 (2019); Yulia Miadzvetskaya, Habemus a European Magnitsky Act, European Law Blog (Jan. 13, 2021), https://europeanlawblog.eu/2021/01/13/habemus-a-european-magnitsky-act.

18 State of the Union Address by President von der Leyen at the European Parliament Plenary, Brussels (Sept. 16, 2020), https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_20_1655.

19 Lex horrenda was the epithet famously used by the late Ian Brownlie in the discussions within the International Law Commission (ILC) on third-party countermeasures. See ILC, Summary record of the 2672nd meeting, U.N. Doc. A/CN.4/SR.2672, Y.B. Int'l L. Comm'n 34, 35 (2001-1).

20 See also, e.g., Thomas J. Biersteker, The effectiveness of United Nations targeted sanctions, in Targeted Sanctions: The Impacts and Effectiveness of United Nations Action 220 (Thomas J. Biersteker et al. eds., 2016); Alexandra Hofer, The Efficacy of Targeted Sanctions in Enforcing Compliance with International Law, 113 AJIL Unbound 163 (2019)

21 Not including Switzerland, for instance.

22 Council of the EU, Declaration by the High Representative on behalf of the European Union on the alignment of certain countries concerning restrictive measures against serious human rights violations and abuses, Dec. 22, 2020), https://www.consilium.europa.eu/en/press/press-releases/2020/12/22/declaration-by-the-high-representative-on-behalf-of-the-european-union-on-the-alignment-of-certain-countries-concerning-restrictive-measures-against-serious-human-rights-violations-and-abuses. Switzerland is not included.

23 Michael O'Kane, Japan Parliamentary Group to Draw Up Legislation on Human Rights Sanctions, EU Sanctions (Jan. 28, 2021), https://www.europeansanctions.com/2021/01/japan-parliamentary-group-to-draw-up-legislation-on-human-rights-sanctions.