European Democracy Hub

On December 7, the EU adopted the global human rights sanctions regime. This has attracted much attention and is certainly a step forward for human rights protection. Yet, it is not clear that the regime in itself denotes a major upgrade in EU human rights and democracy policies. The EU will need to define precisely what the new sanctions regime adds to existing policy approaches; in some ways, it could even raise new concerns for the union’s democracy agenda.

 

 

The Long Road to a New Regime

The last few months have seen high-level, prominent debates about sanctions. The EU has imposed targeted sanctions in response to fraud and repression in Belarus’s August 2020 presidential election and the poisoning in the same month of Russian opposition leader Alexei Navalny, while inching toward restrictive measures against Turkey as well. These events sharpened the backdrop to preparations for the new sanctions regime.

Agreement on the regime came after the EU had fallen behind other actors on human rights measures. In 2012, the United States introduced the so-called Magnitsky Act, named after the Russian human rights lawyer Sergei Magnitsky, who was killed in detention. The act allows the U.S. government to sanction human rights violators, freeze their assets, and ban them from entering the country. Canada has similar provisions. The Baltic states introduced their own national human rights travel bans to offset the delay to an EU-level mechanism. The United Kingdom has pressed ahead with its own post-Brexit Magnitsky-style sanctions, which it has used against over fifty individuals.

Richard Youngs
Richard Youngs is a senior fellow in the Democracy, Conflict, and Governance Program, based at Carnegie Europe. He works on EU foreign policy and on issues of international democracy.
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The Netherlands spearheaded the push for an EU sanctions mechanism; Denmark and Sweden were enthusiastic supporters. The eight members of the Nordic Council indicated they might establish their own sanctions mechanism if the EU did not introduce one. Some EU member states were initially lukewarm to the idea. Press reports suggested that several opposed any new mechanism being called a “Magnitsky Act” so as not to stir problems with Russia. Yet, with human rights abuses worsening across the world, the EU clearly needed to upgrade its policy instruments. Member states’ concerns were supposedly overcome by the end of 2019, when EU ministers agreed to proceed with a new human rights sanctions regime. The European Parliament and other actors expressed dismay that even after this agreement, it took a long time for the EU institutions to finalize the new provisions.

A New and Not-So-New Approach

The regime is novel in enabling the EU to target individuals in a way that is separate from the union’s wider strategy toward their country of origin. This will make it easier for the union to impose targeted measures against individuals guilty of human rights abuses. The new setup is part of a wider trend of complementing geographic with thematic sanctions; the EU has introduced sanctions regimes relating to cyber attacks against the union and the use of chemical weapons.

In practice, in most cases where the EU has acted on human rights grounds in the last decade, its measures have anyway targeted individuals. While the number of EU sanctions has steadily increased, the union has only rarely adopted measures on human rights concerns that go beyond restrictions against individuals. Except when it has adopted wider UN sanctions related to serious conflict and security issues—like the wars in Syria and Ukraine—the EU has generally been averse to applying sanctions to whole countries rather than to small numbers of individuals.

The logic behind such targeted measures is, of course, to react to human rights abuses without punishing the general population. While this is eminently sensible, the increasing recourse to highly targeted sanctions often appears to have led to disappointing results. Decades of debates have not produced clarity on sanctions’ effectiveness. This is, first, because it is almost impossible to isolate the effect of sanctions on regime actions and, second, because states that impose sanctions can have many aims other than the ones they declare in invoking the measures. Still, it is clear that in most cases where the EU has rolled out sanctions, grievous human rights problems persist; Iran, Myanmar, Venezuela, and Zimbabwe are notable examples.

The key question is whether the EU will use its new regime frequently or only in a small number of cases. Political will is ultimately more important than specific procedural changes, however welcome the latter may be. The new regime does not, in itself, reflect any major strengthening commitment to democracy and human rights. The general trend in recent years has been toward a more cautious and even hands-off EU approach to these questions. Even when the EU has imposed restrictive measures, it has invariably targeted fewer individuals, with softer restrictions and for shorter periods of time, than the U.S. measures in each case.

The new regime is set up in a way that could restrict the frequency with which it is used, reflecting the fact that some governments still have misgivings. EU member states have rowed back from agreeing to a system of qualified majority voting for the regime, which would have allowed a majority of countries representing a majority of the EU’s population to approve any new measures; instead, unanimity will be required. There will be no independent body to recommend sanctions, and civil society organizations will not have the ability to suggest sanctions that they have in the U.S. regime. Member states were not willing to give the European Commission full responsibility for drawing up sanctions lists. There is no objective set of uniform criteria for deciding where sanctions are applied, meaning that human rights abusers from friendly regimes may well escape attention. Given these limitations, the new rules are unlikely to unleash a wave of critical EU measures.

Politics and Human Rights

A broader concern lies in the relationship between the new regime and the EU’s wider foreign policy strategies. The mechanism is certainly welcome in making it easier to impose sanctions on individuals and, possibly, nonstate actors for serious human rights abuses. However, the downside of this is that the EU’s sanctions policy may begin to diverge from its wider diplomatic strategies at the country level. While the EU routinely insists that sanctions can work only when they dovetail with other foreign policy measures, in practice the new sanctions regime could widen a disconnect between human rights and other concerns.

Separating measures out from country strategies will bring greater flexibility and may often helpfully untie tightly drawn rights issues from broader geopolitics. But the flipside is that sanctions will be imposed without any focus on a country’s wider political problems. There is a risk in focusing sanctions increasingly tightly on individuals when the main challenge facing human rights and democracy around the word is a gradual autocratization that may not involve egregious abuses.

The EU’s new sanctions regime is not set up to address this more structural challenge to human rights and democracy. The list of human rights abuses that fall within the mechanism’s scope centers on core issues like torture, killings, violence, slavery, and genocide. The regime excludes corruption as a targetable offense, making it harder to seize kleptocrats’ funds. Interestingly, the new setup does include the freedoms of expression and association, which could entail some incursion into more structural political issues. Yet, the focus on these rights is unlikely to be commensurate with the ubiquity of their abuse: in well over one hundred countries, restrictions on the freedoms of expression and association are an integral and routine part of regime power strategies and a matter of general state policy in a way that would be difficult to pin on a handful of individuals.

The EU may now focus more on sanctioning small groups of individuals for egregious rights abuses while deepening its strategic relations with such regimes at the country level. If this were to be the case, the new sanctions framework could prove counterproductive to the broader agenda of democracy support. Sanctions on small groups of individuals are not purely symbolic; they can sometimes act as a deterrence and impose real costs on regime elites. Yet, European leaders tend to oversell sanctions as tough actions in defense of human rights, when in fact they are extremely circumscribed and carefully drawn so as not to affect realpolitik cooperation with offending regimes. For instance, an EU decision to impose sanctions on a handful of Saudi officials while member state governments ramp up their arms sales, security cooperation, and energy relations with Saudi Arabia would hardly count as a robust democracy and human rights policy.

A cynic might feel that measures against individuals even help forestall action to counter more serious authoritarian trends. Individuals included on EU sanctions lists could well be delisted without any positive systemic change in their country of origin. The narrow focus matters because it is the lack of wider democratic rights and accountability that underpins and sustains the kind of serious human rights abuses that the EU’s new regime targets. In essence, this regime addresses only the symptoms, not the underlying drivers, of global human rights problems.

Cross-cutting Pressures?

Another question is how the global human rights sanctions regime will relate to other EU sanctions frameworks. With the EU now running several sanctions mechanisms and types of conditionality, it is not clear what the hierarchy or ordering of these will be. Notwithstanding the new regime’s importance, human rights may still be well down the pecking order of priorities.

It seems likely that the EU’s main priority will be to toughen its responses to terrorism, digital attacks on Europe, and the use of chemical weapons—the other areas in which the EU has specific thematic sanctions regimes. In many cases, different sanctions could overlap; for instance, states that use chemical weapons may well be those whose officials are guilty of human rights abuses. Yet, the EU may often impose sanctions with the main aim of influencing actions in these other areas, rather than on human rights issues as such. As a human rights regime was not yet available, the sanctions related to the Navalny poisoning were adopted under the chemical weapons sanctions regime. The EU’s foreign policy chief and most member states were at pains to stress this was a measure limited to the use of banned chemicals, not a broad response to Russia’s domestic political situation.

This issue of priorities also applies to the EU’s use of conditionality beyond sanctions. The EU is especially concerned about climate change and is ratcheting up its climate conditionality by insisting that third countries commit to cutting carbon emissions as a precondition to new trade and aid deals. Imagine that such pressure pays off and a particular country agrees to cooperate on climate goals; even if the EU has major concerns over human rights abuses in that country, the union is unlikely in such circumstances to press on rights issues in a way that would scupper its climate change agenda.

In short, the EU’s human rights sanctions regime will stand alongside a range of other policy objectives on which the union has begun to wield sanctions and other forms of conditionality. How all these different instruments relate to each other is likely to become a major issue within EU external action. The union only has a certain amount of political leverage and may be overloading itself with different sanctions regimes that could begin to trip over each other in the diverse goals they pursue.

Potential, With Risk

In conclusion, while the EU’s new sanctions regime could prove a useful instrument and may increase pressure on those member states generally not supportive of human rights actions, the union will need a clearer guide for what the setup adds to existing policies and how it relates to other restrictive measures. It will take time for the ongoing shift from geographic to thematic sanctions to filter through the EU’s external relations system. For now, the new regime’s advantage is also, potentially, its main drawback. The measure’s core rationale is to delink human rights sanctions from other aspects of EU foreign policies. Yet, the effectiveness of external pressure on human rights and democracy depends on more, not less, linkage between the EU’s multiple policy tools. Diplomats generally recognize that the new regime will be of major significance only if it feeds into a more strategic EU commitment to supporting democracy and human rights that mobilizes all policy instruments.

The author thanks Katherine Champanionek, Clara Portela, Ken Godfrey, EU officials, and members of the European Democracy Hub advisory group for their input.

This article is part of the European Democracy Hub initiative run by Carnegie Europe and the European Partnership for Democracy.