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The EU’s struggles with its new human rights regime

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As the UN High Commissioner for Human Rights Michelle Bachelet condemned Iran for the execution of regime critic Ruhollah Zam (pictured), calls for punishing human rights violations in a more effective manner are once again growing louder. In light of this, the EU’s adoption of its long-anticipated new global human rights sanctions regime is a welcome step in global politics – and for the EU itself, who hitherto had to take criticism over its lack of a Magnitsky-style human rights regime to punish human rights violators around the globe, writes Louis Auge.

While the EU’s regime drew inspiration from the American system, Brussels was wise not to create a carbon copy of the Magnitsky Act. After all, the Act has come under fire for several legal shortfalls that are seen as human rights violations in their own right. These are centring around its vague selection criteria, lack of due process and, following from this, abuse for political purposes by the US administration – all of which have thrown the validity of the Magnitsky Act as a tool for human rights enforcement into doubt.

Still, even if the EU has managed to create a legislative mechanism that is less arbitrary than Washington’s, important questions remain the bloc will need to address if it seeks to make its sanctions regime an effective instrument in the fight against human rights abuses – without making it a human right issue itself.

Guaranteeing due process

The EU now possesses “a framework that will allow it to target individuals, entities and bodies… responsible for, involved in or associated with serious human rights violations and abuses worldwide, no matter where they occurred.” In this stated ambition it broadly mirrors Magnitsky, and upon closer inspection, has some of the same consequences as well, whether this was intended or not.

Just like the Magnitsky Act, the EU regime provides the legal legitimacy to freeze all funds, assets and other economic resources associated with the targeted individual. The asset freezing can notably be extended to include “non-designated entities” as well as to individuals merely “associated” with the sanctions targets. In other words, the degree of collateral damage arising from EU sanctions can be much more extensive than anticipated, especially considering that the emphasis on targeting individuals was a deliberate choice by Brussels precisely to limit damage beyond the sanctioned individual itself.

This ability to cast the net wide has serious consequences for the targeted individual. If the consequences of the American sanctions regime are a lesson, then the freezing of financial resources makes finding legal representation practically impossible. The adverse effects are only exacerbated given the European Commission’s priority of recent years to elevate the Euro’s standing in global affairs relative to the US Dollar. A response to the extraterritoriality of US sanctions, strengthening the Euro could ironically increase the impact of the European sanctions regime outside the external market – making them effectively extraterritorial in nature.

It’s obvious that these conditions have a serious impact on due process under the EU sanctions regime. Much would already be improved over the Magnitsky Act if the EU were to ensure that the right to defence is upheld, a notion which the European Court of Justice emphasised in a seminal 2008 ruling which stipulated that “the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights” need to be respected. It’s evident that Brussels has, if unwittingly, created circumstances that contradict this requirement. Indeed, previous EU sanctions regimes have been notorious for breaching this fundamental right, as can be readily determined by the numerous annulments of counter-terrorist and country sanctions imposed by the EU in the past.

Guilt and innocence 

A closely related issue fraud with uncertainties concerns the listing criteria and the provision of evidence upon which listing decisions are based. The European regime is not governed by an independent body for recommending sanctions, and no objective, uniform set of criteria exists to decide when to apply them. Defining clear and distinct criteria is the responsibility of member states but thus far this has only been done in the context of the EU’s horizontal, that is non-targeted, sanctions legislation.

This gap in the context of the new sanctions regime leaves a lot of room for arbitrary agenda-setting, particularly when the information member states rely on to draw up specific criteria is already tainted by political bias. Civil society organizations like NGOs do not have the power to directly suggest sanctions, as they do in the US, which removes a vector of politicisation from the sanctions process, at least on paper. However, considering the power some NGOs wield in public discourses and influencing political decision-making at the highest level, particularly in countries like Germany, there is a real danger that criteria will be drawn up with pre-conceived notions of guilt in mind.

As such, Brussels could well be tempted to swiftly assign culpability, mirroring the Magnitsky Act’s lose framework where the US treasury can cite “cause to believe” as sufficient to justify a listing. Why that’s problematic becomes clear not only by the fact that the target has little recourse to defend itself, but also in light of the far-reaching effects the sanctions have on the individual’s life.

Good intentions are not everything

Sanctions are, by nature, long-term restrictions, which should not be imposed lightly and therefore require irrefutable proof before doing so. The standard of what constitutes legitimate evidence to justify asset freezes and other quasi-permanent punitive measures should be high and is at the core of whether sanctions are just and in line with European and international human rights law – especially because, in reality, sanctions are penalties intended as an alternative to trial.

What does all of this mean for the EU? Many questions need to be answered and details resolved before the bloc’s new sanction regime is being applied for the first time. Member states have not yet proposed any entities for placing under sanctions, so there’s time to tackle these important issues. Brussels has tried hard to avoid replicating the Magnitsky Act, but more needs to be done to ensure its new sanctions regime is truly a worthy addition to the human rights toolbox rather than one of its problems.

EU

‘Right to disconnect’ should be an EU-wide fundamental right, MEPs say 

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Always on’ culture poses serious risks, MEPs say ©Deagreez/Adobe Stock  

The European Parliament calls for an EU law that grants workers the right to digitally disconnect from work without facing negative repercussions. In their legislative initiative that passed with 472 votes in favour, 126 against and 83 abstentions, MEPs call on the Commission to propose a law that enables those who work digitally to disconnect outside their working hours. It should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods.

The increase in digital resources being used for work purposes has resulted in an ‘always on’ culture, which has a negative impact on the work-life balance of employees, MEPs say. Although working from home has been instrumental in helping safeguard employment and business during the COVID-19 crisis, the combination of long working hours and higher demands also leads to more cases of anxiety, depression, burnout and other mental and physical health issues.

MEPs consider the right to disconnect a fundamental right that allows workers to refrain from engaging in work-related tasks – such as phone calls, emails and other digital communication – outside working hours. This includes holidays and other forms of leave. Member states are encouraged to take all necessary measures to allow workers to exercise this right, including via collective agreements between social partners. They should ensure that workers will not be subjected to discrimination, criticism, dismissal, or other adverse actions by employers.

“We cannot abandon millions of European workers who are exhausted by the pressure to be always 'on' and overly long working hours. Now is the moment to stand by their side and give them what they deserve: the right to disconnect. This is vital for our mental and physical health. It is time to update worker’s rights so that they correspond to the new realities of the digital age,” rapporteur Alex Agius Saliba (S&D, MT) said after the vote.

Background

Since the outbreak of the COVID-19 pandemic, working from home has increased by almost 30%. This figure is expected to remain high or even increase. Research by Eurofound shows that people who work regularly from home are more than twice as likely to surpass the maximum of 48 working hours per week, compared to those working on their employer’s premises. Almost 30% of those working from home report working in their free time every day or several times a week, compared to less than 5% of office workers.

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Brexit

Scottish government comment on efforts to stay in Erasmus

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Minsters have welcomed the support of around 150 MEPs who have asked the European Commission to explore how Scotland could continue to take part in the popular Erasmus exchange programme. The move comes a week after Further and Higher Education Minister Richard Lochhead held productive talks with Innovation, Research, Culture, Education and Youth Commissioner Mariya Gabriel to explore the idea. Until last year, over 2,000 Scottish students, staff and learners took part in the scheme annually, with Scotland attracting proportionally more Erasmus participants from across Europe - and sending more in the other direction - than any other country in the UK.

Lochhead said: “Losing Erasmus is huge blow for the thousands of Scottish students, community groups and adult learners - from all demographic backgrounds - who can no longer live, study or work in Europe.“It also closes the door for people to come to Scotland on Erasmus to experience our country and culture and it is heartening to see that loss of opportunity recognised by the 145 MEPs from across Europe who want Scotland’s place in Erasmus to continue. I am grateful to Terry Reintke and other MEPs for their efforts and thank them for extending the hand of friendship and solidarity to Scotland’s young people. I sincerely hope we can succeed.

“I have already had a virtual meeting with Commissioner Gabriel. We agreed that withdrawing from Erasmus is highly regrettable and we will continue to explore with the EU how to maximize Scotland’s continued engagement with the programme. I have also spoken with my Welsh Government counterpart and agreed to keep in close contact.”

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EU

Leaders agree on new ‘dark red’ zones for high-risk COVID areas

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At a special meeting of European heads of government, to discuss the rise of infection rates across Europe and the emergence of new, more contagious variants, leaders agreed that the situation warranted the utmost caution and agreed on a new category of ‘dark red zone’ for high-risk areas.

The new category would indicate that the virus was circulating at a very high level. People traveling from dark red areas could be required to do a test before departure, as well as to undergo quarantine after arrival. Non-essential travel in or out of these areas would be strongly discouraged.

The EU has underlined that it is anxious to keep the single market functioning especially concerning the movement of essential workers and goods, von der Leyen described this as of the “utmost importance”. 

The approval of vaccinations and the start of roll-out is encouraging but it is understood that further vigilance is needed. Some states which are more dependent on tourism called for the use of vaccination certificates as a way to open up travel. The leaders debated the use a common approach and agreed that the vaccination document should be seen as a medical document, rather than a travel document - at this stage. Von der Leyen said: “We will discuss the suitability of a common approach to certification.”

Member states agreed to a Council recommendation setting a common framework for the use of rapid antigen tests and the mutual recognition of COVID-19 test results across the EU. The mutual recognition of test results for SARS-CoV2 infection carried by certified health bodies should help facilitate cross-border movement and cross-border contact tracing.

The common list of appropriate COVID-19 rapid antigen tests should be flexible enough for addition, or removal, of those tests whose efficacy is impacted by COVID-19 mutations.

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