UK sanctions post-Brexit –setting the stage for a new human rights sanctions regime

At a recent press conference, the UK Foreign Secretary Dominic Raab confirmed the UK’s plans to establish a new ‘human rights sanctions regime’ after Brexit, also known as a ‘Magnitsky-style’ regime. This announcement is the latest in a global trend of new human rights-focused sanctions regimes.

Sanctions for human rights violations 

Imposing sanctions for human rights violations is by no means a new idea. Sanctions are typically used to encourage a country or regime to change its behaviour when it is acting in a way that violates international law, peace and/or security; this includes committing or enabling human rights violations. For example, UN sanctions regimes typically provide for sanctions to be placed on those who plan, direct or commit acts violating international human rights law or that constitute human rights abuses or violations (examples include the Libya and Mali sanctions regimes, both implemented in 2018). However, historically sanctions regimes have been geographically focused. In contrast, the recent human rights-focused regimes enable a state to impose sanctions on individual offenders, without imposing a more jurisdiction-focused regime alongside it.

The origins of “Magnitsky” regimes

The original “Magnitsky Act” was adopted by the US in 2012 following the death of a Russian lawyer in prison. The 2012 Magnitsky Act provided for sanctions to be imposed (including asset freezes, visa bans and financial restrictions) on those considered responsible for Magnitsky’s death. The 2012 Act was then followed by a ‘global’ Magnitsky Act in 2016 which granted the US President powers to sanction individuals who commit human rights violations worldwide. The regime prohibits US companies from entering into transactions with sanctioned people or entities and imposes substantial fines on those who do. Canada, Estonia, Lithuania and Latvia all followed and have adopted similar regimes.

The UK has already enacted provisions in the Sanctions and Anti-Money Laundering Act 2018 to empower the UK government, post-Brexit, to adopt sanctions against individuals who commit gross human rights violations. Following the Foreign Secretary’s remarks, the UK government may seek to build a new human-rights focused sanctions regime around this existing power or it could seek to introduce additional powers specifically to deal with human rights issues. In terms of oversight of these powers, the 2018 Act allows designated individuals to request for a sanction to be revoked or varied, and if that fails, challenge the decision by way of judicial review (with closed material proceedings rules in place to allow the government to place sensitive evidence before the court without having to disclose it to the designated individual). It will be interesting to see how the sanctions regime develops in light of this oversight.

For its part, the EU has also announced its own plans to introduce a similar Magnitsky-style regime and Australia is currently consulting on whether to enact such measures.

Human Rights Sanction Regimes in practice

In one of the most high-profile examples, Canada and the US both used their respective Magnitsky powers in 2018 to impose sanctions on individuals from Saudi Arabia linked to the murder of journalist Jamal Khashoggi.

The US has used the powers increasingly over the last year. In December 2019, President Trump announced the imposition of sanctions under the Global Magnitsky Act on over 19 individuals accused of human rights abuses, which included military leaders in Myanmar, a Latvian oligarch and Cambodian elites accused of corruption. The broad range of individuals sanctioned highlights the potential ambit of these powers.

What does this mean for sanctions compliance?

The development of these regimes adds to the already complicated sanctions landscape. That complexity will only grow once the UK starts to impose its own sanctions regimes outside of the European Union—something that may well happen soon given the recent ministerial comments. Businesses which operate in industries or countries with a history of human rights abuses should be particularly diligent. This is an evolving area which requires continued monitoring as states develop existing and new regimes.