Should the EU adopt a Global Magnitsky Act?

Should the EU adopt a Global Magnitsky Act?

As the EU is contemplating the adoption of an EU wide global human rights sanctions regime, leading international sanctions expert Professor CLARA PORTELA provides important background and context for the debate.

Background

Already back in 1806, the French Emperor Napoleon tried to bring the United Kingdom to its knees with a blanket trade embargo (It failed).  Just a few weeks ago, on April 18, 2019, EU lawmakers called for the imposition of special sanctions on Chinese officials, for their role in the repression of Muslim and other religious as well as ethnic minorities. Meanwhile, the US State Department recently announced new sanctions against Cuba and Iran.

The term “sanctions” – formally defined as the penalties imposed for disobeying a law or rule – is everywhere, but most of us do not have a detailed understanding of the issue. So, I turned to Professor CLARA PORTELA, a leading international sanctions expert, to help clear up some of the main questions and misconceptions surrounding the subject – about the sanctions process itself as well as the questions related to compliance and the efficacy of this complicated and often controversial political instrument.

For starters, some background: The EU has the power to impose sanctions in order to promote international peace and security, prevent conflict, fight terrorism, defend democratic principles and human rights, and prevent the proliferation of weapons of mass destruction. Types of sanctions include

• Financial sanctions–  i.e. investment bans or the freezing of Central Bank assets
• Sectoral sanctions  –  i.e. arms embargoes and aviation bans
• Commodity sanctions –  i.e. on oil, diamonds, charcoal or luxury goods
• Diplomatic sanctions – i.e. the limitation of diplomatic staff
• Individual sanctions–  i.e. travel bans and assets freezes

Among countries targeted by EU sanctions are Iran, Venezuela, Myanmar, Belarus, Ukraine, Syria and North Korea.

Until the 1990s, international bodies like the UN and the US regularly imposed comprehensive sanctions, meaning a full trade embargo directed against the whole economy of a particular target country. This often led to severe hardships of the affected population in these countries. Since the mid-1990s, the UN as well as the EU impose almost exclusively targeted sanctions. The advantage of such targeted measures is that they can be directed towards non-state actors and individuals, holding them directly responsible for serious crimes and human rights violations.

At the center of the sanctions debate is the question how governments, as well as other social and political entities, most effectively punish human rights violations and other breaches of international norms and rules. One of the greatest challenges remains to stop human rights violations as they are occurring, or to prevent them altogether. Relatively new sanctions regimes, like so-called targeted or ‘smart’ sanctions, are considered to be more effective because they target specific human rights violators quickly and directly. In doing so, they allegedly provide an important deterrent effect, which means they supposedly prevent new human rights violations from occurring.

The most well-known example of a targeted sanctions regime for human rights is the Magnitsky Act, named after Russian tax lawyer Sergei Magnitsky who was jailed and brutally murdered in Russia in 2009, after exposing a massive tax fraud scheme committed against his employer, the British investment company Hermitage Capital Management, by Russian authorities and the Russian mob.

The legislation was first proposed by the British businessman William Browder, owner of Hermitage Capital, who has led a tireless campaign to bring Magnitsky’s murderers to justice.

Browder argues that the global expansion of the law will provide governments and human rights advocates with important new tools in their fight to hold human right violators accountable.

The Magnitsky Act imposes two types of sanctions:  Travel and visa bans as well as asset freezes. The original Magnitsky Act was passed in the US in 2012, punishing Russian officials implicated in Magnitsky’s murder, including (Russian) individuals profiting from this crime. Since 2016, the law applies globally, allowing the US government toimpose sanctions against human rights violators regardless where these crimes occur. Other countries that have adopted similar legislation – a full or partial Magnitsky Act – are Canada, the U.K., Estonia, Latvia and Lithuania.

On November 20, 2018, representatives of all EU member states, as well as representatives from the US and Canada, met at the EU Global Human Rights Sanction Regime summit in The Hague. As part of the discussions, the Norwegian Helsinki Committee and other human rights organizations proposed that the Dutch government work with EU members to develop a Human Rights Entry Ban Commission.

On December 10, 2018, on the 70th anniversary of the Universal Declaration of Human Rights, the European Ministers of Foreign Affairs unanimously approved a proposal by the Dutch government for an EU-wide Magnitsky Act (EU Global Human Rights Sanctions Regime).

The EU member states are currently debating the adoption of such legislation.

Interview

S.B.: Dr. Portela, thank you very much for taking the time to help us understand this complex issue of sanctions a bit better. Please tell me a little about your background – what is the specific focus of your research with regards to sanctions? 

C.P.: I started to be interested in the issue when I realized that the European Union was imposing sanctions as part of its foreign policy. I was always intrigued by the fact that international relations scholars paid so much attention to military  intervention, peace keeping operations, and so on, but so little attention was focusing on sanctions. It is one of the key instruments the EU has been using to respond to most foreign policy crises. If we think, for example, of the issue of nuclear proliferation in Iran, how did the EU respond to that?  It responded by imposing sanctions. How did the EU respond to war in Syria or to the Ukraine crisis? It responded by imposing sanctions.

A few years back there was a big debate as to whether sanctions could be a peaceful instrument to resolve conflict or prevent conflict, whether you could stop bloodshed. Meaning, if they could act as ‘corrective’, to solve [certain] problems at the international level, or whether you actually would be causing so much damage to the civilians in the target country that this instrument was not worthwhile considering.

Something I also understood very quickly is that the whole sanctions debate is very focused on the US Other actors have a very different concept of what they want to do with sanctions, so you have a different application of sanctions when you look at Europe, Africa or Canada. But not many scholars have realized that.

S.B.: Since the mid-1990s, most sanctions imposed are targeted sanctions. What caused this shift? 

C.P.: This mainly refers to United Nations practice – the UN is a particularly powerful body in this regard, because even though it does not impose many sanctions, when it does impose them, they are binding on all states in the world. So, they have a very powerful instrument. What happened during the Cold War is that the UN did not really use sanctions as a tool to address international conflict [due the obvious divide between the East and the West.] They only introduced sanctions against South Africa and Southern Rhodesia, because of the white minority rule. But then, at the beginning of the 1990s, there were three big crises. One of them was Iraq, and the other two were Yugoslavia and Haiti.  Here the UN Security Council imposed mandatory comprehensive embargoes. They had a tremendous impact, particularly in the case of Iraq because Iraq was very import and export dependent. The moment you ban trade with a country like Iraq, you are creating a lot of damage to the economy. The problem is that the Iraq sanctions regime remained in place for many years. This caused a lot of harm to the civilian population, and it created a very significant backlash with international civil society. Many countries were opposed to the continuation of the sanctions. But due to the rules of the UN Security Council, it was not possible to lift the embargo in the absence of an agreement of the permanent members. And the US was adamant that it did not want the embargo to be lifted. So this led to a humanitarian catastrophe, with shortages of food and medicines. Basically the situation became unsustainable. It became clear to the international community that a similar situation would not be supported by other members of the UN in the future. Their objection was of central importance because these other countries are the ones who have to implement the sanctions.

So, this is how comprehensive sanctions as a tool of the UN came to an end. The question now was whether they could be replaced by something that carried some real force, more than just verbal condemnation, or whether sanctions would be dropped altogether, leaving the Security Council with very few [effective] tools at its disposal. This is how a group of countries, mainly the European countries, promoted the idea of reconfiguring the tool of international sanctions into what they called ‘smart’ sanctions or targeted sanctions. These were supposed to be designed in such a way that only responsible individuals or the elites that support them or the economic sectors that produce the revenue they need to sustain their power would be affected.

The problem is that even though they have been in operation for more than twenty years, not many people have realized that the character of sanctions has changed altogether. Sometimes sanctions do not consist of more than an arms embargo and trade in all other items continues to be possible. Or sometimes sanctions consist of blacklisting a few individuals, like in the case of EU sanctions on Burundi. These sanctions consist of a visa ban on four individuals. This means only four individuals in Burundi are subject to the sanctions, so this has nothing to do with a full economic embargo like we witnessed in cases like Iraq.

S.B.: In what way, then, do these UN and EU targeted sanctions you just described differ from the sanctions the planned new EU Global Human Rights Sanctions Regime, meaning a European Magnitsky Act, envisions?

C.P.: The instrument used is actually the same, because you impose a visa ban or an asset freeze, blocking the property of a number of individuals, blocking transactions with these individuals and sometimes also companies. The only difference is that until now, the EUimposes these sorts of measures on a group of individuals that is linked to a specificpolitical situation in a country – for example, the leadership of Venezuela. Theidea is that this group of individuals is in power and you want to condemn their policies and you want to promote some sort of change, some change in the country. So, the moment these individuals introduce changes to the policies or a new government takes over, these people will not be black listed anymore, because there will be no more reason for themto be on the black list. But the objective is not to identify them as egregious violators of human rights.  The intention is really to promote some political change, some movement in the political landscape of Venezuela.

Now, with the Magnitsky list the situation is different, because it is meant to be a list for human rights violations. So, it will be detached from a specific country. This means that the intention is not very clear, or as straightforward as it used to be.

“The creation of a human rights sanction regime or a Magnitksy list actually requires extra clarity regarding what exactly is the objective of the sanctions regime. What do countries want to do when they create these multi-national lists that highlight [human rights] violations? Do they want to reverse the violation? Do they want to bring the individuals to justice? Or do they want the individuals to change behavior and to stop perpetrating human rights abuses? That is the question – it is not exactly clear what you want to do with this list.”

Perhaps you want to just have a list featuring the most egregious violations of human rights worldwide, in order to make it clear how strongly you condemn these individuals, that you declare them personae non gratae, but without having any real expectation that anything will change, except for showcasing the atrocities  they have committed.

S.B.: Isn’t the idea to punish these individuals, in some form at least, through asset freezes, or visa bans, when other punitive measures are not an option, at that moment? And by publicly singling out these perpetrators of serious crimes, to help prevent future humanrights violations or to stop human rights violations as they occur?

C.P.: Well, this could be the case, one could see the lists as punishment and this could also have a deterrent effect in the future; in the sense that it gives publicity to the violations that have taken place. Now, it is possible that in some cases they [the issuers of the list] want the individuals to change behavior. But it really depends on the situation. One also wonders, in the case of Venezuela, for example – the moment in which you black list thevarious individuals, you are sort of making it clear or you are sending the message that you want them to change something. Either to relinquish power, to organize new elections or to stop repression, or to liberalize, to open the economy. The idea is that over time, if they comply, they will be de-listed, once the violations no longer prevail. But one wonders with a list like the Magnitsky list, is there any possibility that the persons will be de-listed at all?  Or have these individuals committed violations of such gravity that irrespective of what they do – even if they stop the violations – they will continue to be on the list?

S.B.: So, this is the question of once you are on the list, how do you get off it? What kind of due process do you have?

C.P.: If you can get off the list at all, because if you have committed genocidal acts, such as allegedly in the case of the Myanmar military in the operations against the Rohingya: Is it enough to stop this oppression? If you stop these operations, and never do it again, then are you going to be taken off the list? Perhaps that possibility does not even exist. I am not saying that there is anything right or wrong about the Magnitsky list or this approach;what I am trying to emphasize is that there are important questions raised about the Magnitsky list just because with such a list the instrument (targeted sanctions) changes its nature completely.

S.B.: Just to be clear about the process: In the EU, sanctions are imposed as part of the EU’s Common Foreign and Security Policy (CFSP). Do individual member countries also impose sanctions on their own, separate from EU policy? And if so, how is this process coordinated?

C.P.: All members of the United Nations are obliged to apply UN Security Council sanctions, but then, in principle, every country has the possibility of imposing its own sanctions. Now, in the case of the European Union, the situation is slightly different, because the European Union, as an organization, has competence for external trade. This means that individual member states cannot restrict trade on their own. So this is why they do it via the European Union. With other countries, like for example African organizations, both possibilities exist – individual countries can decide to impose restrictions by themselves or they can do it through international organizations. Actually there is a tendency to operate via international organizations, recently. There is an extra level of legitimacy to the imposition of sanctions at the regional level, with all members onboard, rather than pursuing unilateral sanctions. But regional organizations, unlike the UN, do not have special powers. They derive their sanctioning powers from that of individual states.

S.B.: The reason I mention this is because, asidefrom the planned legislation in the EU,William Browder is urging countries to pass their own version of the Magnitsky Act. But Swedish Foreign Minister Margot Wallström, for example, just recently indicated that she does not see any need for a Swedish Magnitsky legislation at this point, since Sweden complies with EU and UN sanction policy.  What would be the advantage for a country like Sweden to create its own separate global human rights sanctions regime? 

C.P.: She is completely right: if there is already EU sanctions legislation in place, it becomes binding on all member states. Individual sanction regimes would become simply redundant. Technically, the EU can blacklist human rights abusers in the absence of a Magnitsky list, by including them in existing country lists or put in place new ones. Thus, the establishment of a Magnitsky list will not allow the EU to do anything it is not already capable of doing. When members disagree on whether to list somebody or not, the person in question is not listed as unanimity is required. This does not normally happen, as states feel that the strength of a political message of unity prevails over the interest in blacklisting specific individuals. However, there is an important distinction here. As I mentioned already, the European Union has competence for external trade, thus, members cannot impose trade restricting measures on their own. What members states can do [at the national level] is impose arms embargoes, if they wanted to – they actually don’t do it, but they have the power,  because arms trade is excluded from provisions of trade at the EU level; and they can impose visa bans.

S.B.: So, asset freezes, for example, would be considered part of the economic side of sanctions?

C.P.: Generally yes, particularly if they concern companies. I think you can still list individuals and even companies and freeze their assets at the national level, but it really would stop there. Because sanctions with a bearing on the economy could hardly be adopted by individual states, at the national level. EU member stateshave gotten accustomed to using the EU as an organization for the imposition of sanctions, because of the competence issue. It has now become common place for all members to use the EU in order to enhance the legitimacy of the variousmeasures; also to make them more effective, because if you manage to get sanctions approved at the EU level, then you have 27 other countries behind you (soon to be 26). While if you adopt the measures at the national level, you are basically more isolated. It does not have the same strength, it does not have the same international legitimacy. So, the fact that the Baltic republics have adopted their own sanction regimes, without channeling them via Brussels, this is a bit of an exception. It does not correspond to European practice over the past twenty years.

S.B.: Still speaking about  the sanction process, but now moving  into the issue of target compliance – you mention in one of your papers that the  compliance ratio for targeted sanctions is about 20% – 34%, and that that is similar to comprehensive sanctions. When one hears that figure, it does not sound very good.

C.P.: Yes, you are right, it does not sound very good, but these sort of evaluations rely on a calculation based on a list of sanction regimes that have been imposed over the years and the policy outcome that was achieved;defined as whether ultimately the target of the sanctions decided to comply with the objectives of the sender (the country or entity that imposed the sanctions). And this evaluation is difficult to make, because even in those cases in which the target modifies behavior, it is never completely clear whether this change of behavior is due to the sanctions; particularly because you have many other elements at play and you have many other actors who are also trying to influence the situation.

But, in any case, it’s only a minority of cases where we can actually witness a change of behavior. It is true that this does not sound very encouraging, but again, I think a number of qualifications should be made. First of all, one should not always assume that one of the reasons why sanctions are imposed is because you want the target to change behavior. Sometimes you know full well that the target is not going to change behavior, no matter what you do. At the same time, being an entity that strongly condemns a specific behavior, you do not want to be contributing to it. You do not want to be seen as condoning it. You know that your society is reluctant to be an accomplice in this. So, you basically stop the communication or the aid to the country, in order to manifest your condemnation, in order not to have anything to do with what is going on in that country. And you also do not want to have anything to do with the ruling elite. So it’s not that every time a sender is imposing sanctions that they do it naively believing that this is going to have such an impact and it is going to upset the targeted leadership so much that they will reconsider their policies. That is not the case.

“One should not always assume that one of the reasons why sanctions are imposed is because you want the target to change behavior. Sometimes you know full well that the target is not going to change behavior, no matter what you do. At the same time, being an entity that strongly condemns a specific behavior, you do not want to be contributing to it. You do not want to be seen as condoning it. You know that your society is reluctant to be an accomplice in this.” 

S.B.: What you are saying is that there really is an important psychological aspect involved in the sanctions process. 

C.P.: Exactly. Of course you want to stigmatize the target, but I think that the imposition of sanctions is also a way of building the identity of the sender. In the sense that you are positioning yourself as being completely in opposition to a specific violation. And many of the target countries are aid recipients, so you do not want to be seen as funding a regime that is murderous, that is genocidal, that is misbehaving. You do not want to be seen as being on good terms with these sorts of regimes.

S.B.: Coming back to the Magnitsky Act,Mr. Browder has argued that Magnitsky (Act) sanctions are like highly specified cancer drugs, targeting individuals, avoiding punishing the general population. Do you agree with this assessment?

C.P.: I certainly do, because within targeted sanctions, we also have different types of measures. Some of them are super-targeted – they basically consist of blacklisting individuals with names and surnames. Then there are other sanctions that are also considered to be targeted, but they are much less discriminating, for example blacklisting a central bank, or harbors, or banning investments or banning trading commodities. So, these are issues that affect many more people, not limited just to specific elites. The advantage of the Magnitsky List is that it does not affect commodities, it affects exclusively individuals, and to some extent also entities that are directly involved in a violation. I would describe the Magnitsky List as a culmination, the crowning of targeted sanctions, because here the link to the [individual] countries is completely severed. Now the only thing that matters is the violation and the individual that has perpetrated it. So it’s decoupled from political crisis.And I think altogether this is a positive development, or at least it is not negative [in itself].

“I would describe the Magnitsky List as a culmination, the crowning of targeted sanctions, because here the link to the [individual] countries is completely severed.  Now the only thing that matters is the violation and the individual that has perpetrated it. So it’s decoupled from political crisis.”

The only thing that concerns me is that if you change your approach in such a fundamental way that you are no longer addressing these specific individuals for human rights violations in the context of a specific political crisis, like, for example, in Venezuela – implying that once the current crisis is over, the blacklisting will be over too – then you have to take extra care to make it very clear what exactly you are trying to achieve. Do you want these people to change behavior? Are you expecting them to stop their [criminal] behavior, or are they to stay on the list, no matter what they do in the future, because of the serious violations they have committed already? Do you want them to be brought to justice? Do you want the International Criminal Court to indict them? Do you want the national judicial systems to indict them? What exactly are you expecting to do? And I am not saying one thing would be right and another thing would be wrong. I am just saying that it is very important in this context to specify what the Magnitsky regime is all about.

S.B.: So, is this then the greatest hurdle the planned Magnitsky Act has to clear within the EU before it can be adopted? Including the need to better specify the so-called listing criteria, that determine who will be included in the blacklisting?

C.P.: The listing criteria are definitely important but I think we are talking about two different things. The definition of the criteriathat give rise to the variouslistings can be narrower or broader and of course they have to be very well defined, in the case of Magnitsky type legislation. But the issue that I am raising is slightly different. It is not about who gets listed and for what reason. The fundamentalquestion is what are we trying to achieve with this listing? Or do you list people just in order to highlight the magnitude of the violations and to publicize their role as the most serious human rights abusers worldwide? So, what is the next step? Can these people get off the list? Are we expecting a change of behavior in them? Who are we expecting to take action?

S.B.: Is this uncertainty or lack of definition at the moment a deal breaker for the EU? How would you address this problem?

C.P.:  No, I do not think that this is obstructing the adoption of the law. I think this has much more to do with disagreements among member states. You know that there are different degrees [as] to which member states are ready to antagonize Russia. For some member states the sanctions have already reached their limit and they do not want to go beyond what has already been agreed on. Other countries are much more hawkish and they are much more interested in going beyond the current level of sanctions. Even though the initiators (the Dutch ministry) havebeen emphasizing that the sanctions regime is not about Russia, and it is not about SergeiMagnitsky, there is still a close general association between Mr. Magnitsky and the Russian leadership. The opposition mainly comes from those countries that are not willing to antagonize Russia.

Then there is also a general skepticism among some countries about the purpose such legislation would fulfill,because basically it does not allow the EU to do anything that it has not been doing already. Whenever there have been major human rights abuses, the EU has had the possibility of reacting with the imposition of a sanction regime and it has done so.  Actually most sanction regimes imposed by the EU respond to some kind of human rights violations. The very idea of detaching international political crises and the sanction regime is something that comes as a shock and basically surprises member states because they use these blacklists in order to address international crises. And if you now decouple the international crisis and the blacklisting of individuals responsible for human rights violations, it’s not exactly clear what problems this solves for you.

S.B.: This brings me backto the question what sanctions can accomplish, especially smart sanctions. The Global Magnitsky Act clearly  envisions a “trickle down” effect – the idea that the mere threat of inclusion on a sanctions list will serve as an effective deterrent for certain mid-level human rights violators, such prison administrators and guards. Do you actually think that they can have a palpable effect, that they can change behavior on the ground?

C.P.: It is difficult for me to answer this question because I have not been at the receiving end of the sanction regimes. But one of the main reasons the EU has been keeping sanctions for such a long time on many countries such as Zimbabwe or Myanmar or Belarus is precisely because there was an opposition that they wanted to support. They felt that the opposition would be safer if the sanctions remained in place. Actually, the opposition in these countries called for the sanctions, particularly in the case of Myanmar and also of Belarus. So, even though the sanctions on Myanmar were considered fully ineffective, because they were really not improving the situation on the ground for anybody, the democratic opposition, led by Aung San Suu Kyi at the time, was very much in favor of keeping the sanctions in place, because this would provide her and her party with something like a bargaining chip vis a vis the military junta. If we remember the very famous case of South Africa – the South African black population was suffering most of the effects of the sanctions. Still, they were in favor of the sanctions because they attracted international attention, they kept the topic on the top of the international agenda. So it is very difficult for a sender to refrain from imposing sanctions when the democratic opposition that the sender is trying to support openly calls for it.

In the case of Belarus, I am thinking very specifically of Andrei Sannikov who stated very clearly that the prison guards he dealt withwerequite concerned – they did not want to be known in their neighborhoods as people who were blacklisted because they had done unacceptable things in their jobs. Of course these are not the top decision makers but even for them, the fact that part of the international community is really watchingwhattheyare doing, andit will not ignore whether theychoose one course or another, this is something that can constrain the abusive behavior. So if we believe the testimony of Mr. Sannikov and other activists in Belarus, then we can at least believe that if the sanctions are not responsible for having brought about the democratization of Belarus, at least they have provided an incentive for the leadership not to increase repression. Mr. Sannikov did not die in prison, while Mr. Magnitsky did. Perhaps the self-restraint of the authorities could be linked to the presence of sanctions and to the threat of further sanctions to be imposed by the senders.

S.B.: You mentioned the hesitation of some EU member states to further anger Russia (with regards to a Global Magnitsky Act). On April 18, a group of 57 EU lawmakers issued a draft resolution calling on China to stop its brutal repression of minority Muslim populations, and to stop the persecution of other religious and ethnic minorities, including Christians and Tibetan. The EU parliamentarians specifically call for the adoption of “targeted sanctions against officials responsible for the crackdown in the Xinjiang Uyghur Autonomous Region.” The resolution also asks the EU and global partners “to halt all exports and technology transfers of goods and services that are being used by China to extend and improve its cyber surveillance and predictive profiling apparatus.” How serious is the hesitation in the EU of ‘offending’ an economic power player like China? Or put differently, has China become too important, is it immune to sanctions, in some way?

C.P.: Calls for sanctions against various countries are often issued by the EP, sometimes by the plenary and sometimes by individual MEPs, but they are rarely followed by the Council. In spite of its status as a key global economic player and permanent member of the UN Security Council, China is not immune to sanctions. It is already a target of sanctions. It has been under an EU arms embargo since Tiananmen Square events in 1989. Resentful of the embargo, it almost persuaded the EU to lift it in the early 2000s. This said, one must admit that Beijing nevertheless enjoys special treatment among EU sanctions targets. The China arms embargo is the only sanction agreed by the Council that has never been formalized into binding Common Foreign and Security Policy (CFSP) legislation. The embargo remains in existence, but it is based on a gentlemen’s agreement, uniquely in the EU sanctions context. The MEPs’ proposal to embargo material for internal repression and surveillance technology could be seen as an extension of the original arms embargo, which does not explicitly cover this kind of equipment.

S.B.: So, from your very special vantage point as an expert on sanction regimes, what is the biggest misconception the public has about sanctions?

C.P.: I think there are basically two big misunderstandings. The first misunderstanding is the lack of awareness of targeted sanctions. When you talk sanctions, people automatically think of Iraq, of large scale hunger, the spreading of diseases and child mortality.  This is very far removed from the reality of targeted sanctions today, where sometimes we just have a handful of individuals that are put on a blacklist, in addition to  an arms embargo- currently the four individuals in Burundi, or the Moldovan leadership for about one decade, for example.

At the same time, the possibility of imposing comprehensive embargoes is still there, and the US famously still has a comprehensive embargo on Cuba.So the comprehensive sanction threat has not completely disappeared from the landscape. But, other than that, most of the sanctions imposed by the US are targeted, and all of the sanctions imposed by the UN and the EU are targeted, so this is really one of the biggest misconception.

The second misconception which is even more severe is the fact that people are convinced that sanctions are imposed because the sender wants to compel a change of behavior in the target and because it is convinced that it will eventually bring about this result. In fact, sanctions fulfill a number of different functions for the senders. One of them is to draw a clear line between what is acceptable or unacceptable behavior in international relations. I mean, everybody knows the rules, but everybody knows that some transgressions are not as severe as others. So, how can you tell the transgressions that are really severe from those that are not? When a transgression is severe you will see some sanction imposed. So, basically drawing a line between what is acceptable and what is not, this is one of the main function of sanctions. Also, as I mentioned at the beginning, for many countries imposing sanctions is a way of addressing the concerns of the population. If something really scandalous happens in another country, and as a government you are still seen as supporting that country, following a “business as usual” logic, then this makes you unpopular with your own electorate. So, many sanctions are really imposed for domestic consumption, even if the senders know that they won’t be able to change the calculations or the situation on the ground in the country in question. Sometimes sanctions are also imposed in order to support international organizations, precisely because they are empowered to do something thanks to the use of sanction. I think this is clearly the case with the UN It is also a way of giving credibility to the idea of global governance and the idea of a global organization that can address crises.

I would also refer to aninsightful argument by a group of Norwegian researchers – Hovi, Huseby, and Sprinz – who claimed in a 2005 article that there was no surprise in seeing the low success rate of sanctions because basically when one country tells another it wants it to change its behavior, and the target country refuses to change behavior, normally sanctions will follow. So, from that point of view, sanctions are not a coercive attempt, but the sanction may actually be the outcome of a failed coercive attempt. And if the target has not reacted to the threat in the first place, it made its calculation and it decided it was not in its interest to change behavior, then why would it change its behavior after the sanctions are imposed?  All this is to say that there are many different rationales why countries impose sanctions and sometimes they really do it without expecting that they will manage to change anything on the ground, but they still will go ahead.  So it is a bit simplistic to reduce the utility of sanctions to whether they manage to produce a change of behavior in the target country or not. Because they really follow a very different kind of logic and they fulfill a myriad of functions that would not be fulfilled in the absence of these measures.

S.B.: So, from your perspective, will the EU adopt a global human rights sanctions regime – what are the chances?

C.P.: I think one can clearly see that this [legislation] is proceeding at a much slower pace than other sanctions regimes the EU has agreed on recently; one of them addressing the use of chemical weapons, and the other one on cyber security. These two regimes came into being much faster. So the fact that it is not even clear if the human rights sanction regime is going to prosper or notillustratesthat there are some difficulties with it. I reckon that it will eventually come about, but at the same time it’s still going to take a bit longer. My prediction is that eventually members states will come together over the passing of the bill. But at the same time it is a bit delicate, because whether it is a good idea or it is a bad idea, it’s not something that can be determined at this stage. The devil really is in the detail. With a meaningful description of objectives, with a meaningfullist of criteria it could become a useful instrument.

“The question is … whether the [EU Global Human Rights Sanctions] regime will be designed intelligently enough, whether it will be possible to prevent abuses of this …regime. One can clearly see the risk that some really egregious human rights violators are listed alongside perpetrators of much lesser abuses. In between, there will be a grey area in which hardly anyone might feature. So, there is a clear risk of inconsistency later on.”

But the question is obviously whether the regime will be designed intelligently enough, whether it will be possible to prevent abuses of this sanction regime. One can clearly see the risk that some really egregious human rights violators are listed alongside perpetrators of much lesser abuses. In between, there will be a grey area in which hardly anyone might feature. So, there is a clear risk of inconsistency later [on]. And coming up with an endless list of egregious and not so egregious human rights violations,  that do not follow any purpose, other than simply to highlight them, this is a sanctions regime that might harm the credibility of the EU as a defender of human rights. The question is will the EU find a way of utilizing these lists in order to improve the human rights situations somewhere or not? And this is obviously a very big open question.

S.B.: So, how far along are we in process of adopting this legislation?

C.P.: We are definitely halfway through, because the issue has received a lot of publicity. It has already been taken up by the [EU] Council and the negotiations are ongoing, so this is already quite serious progress. When I started conducting my research on the possibility of an EU Magnitsky list, about one year ago, several member states told me that this issue had not even been officially raised, it was not on the agenda. The fact that it has made its way onto the agenda [now] and that it is being discussed by member states at the moment, this is quite encouraging. So, the progress is definitely slow, that is obvious, but I would be surprised if this adoption of some form of a Magnitsky listdid not come about in one way or another.

S.B.: Dr. Portela, thank you very much for taking the time to share your expertise and insights today.