The Role of Parliaments in the Coming About of the EU’s Global Human Rights Sanctions Regime

JCMS | 12 July 2022

There is a widespread consensus in the literature that the European Union’s (EU) Common Foreign and Security Policy (CFSP) is dominated by the Council of the European Union (hereinafter: the Council) and the European Council. The EU Treaties secure the privileged position of the Member States in this policy area through the Council/European Council and guarantee that the EU’s foreign and security policy remains mostly in the hands of the Member States. The same Treaties provide the European Commission and the European Parliament only with a marginal role – or, as primary EU law tells us, they have ‘specific’ role.

Given that sanctions are mostly used to achieve foreign and security policy objectives, they are inextricably linked to the CFSP and its rules. This means that only the Council – where the representatives of the Member States negotiate with each other – can establish and modify the EU’s sanctions regimes irrespective of the fact that other EU institutions, let alone national parliaments, may have different preferences regarding the EU’s foreign policy priorities. In addition, following CFSP rules, the establishment of EU sanctions regimes requires the unanimous agreement of the Member States.

If EU foreign policy continues to be dominated by the Member States, how can we explain the long-lasting activism of (national, cross-level and European) parliaments in EU sanctions regimes? Why did parliaments of different levels engage in the EU’s human rights sanctions regime if they lack explicit competences to shape EU foreign policy? Why did parliaments invest so much time and energy into a project that was unlikely to yield many fruits? The Treaties certainly did not help parliaments to achieve their foreign policy objectives; nor did the EU Member States, which are often eager to emphasize their prerogatives in diplomatic matters. These questions are tackled in a recent article in JCMS.

Parliaments in action to adopt new EU sanctions

In 2010, the European Parliament was the first legislature to announce its preference to create a ‘European Magnitsky Act’. One should realise, however, that examining only the European Parliament would be a one-sided approach if the aim is to understand the role of legislatures in the coming about of the EU’s global human rights sanctions regime. Indeed, parliaments of different levels worked in parallel – and sometimes even together – to induce changes in national and European foreign policy thinking on the need of a European human rights sanctions regime. These parliaments or groups of parliamentarians included: national parliaments (in particular the Dutch parliament); the Parliamentary Assemblies of the Organization for Security and Co-operation in Europe and of the Council of Europe; the Foreign Affairs (AFET) Interparliamentary meeting; the Inter-Parliamentary Conferences for the CFSP and the Common Security and Defence Policy (CFSP/CSDP) and the European Parliament.

The reason why parliaments of different levels do matter, despite formally weak competences in EU sanctions policy, is that between 2010 and 2020 they exerted indirect pressure on executives and forced foreign ministers and their officials to justify and explain their (non-)actions in the field of sanctions policy. The main research focus of the article is less about their influence on EU restrictive measures; rather, it assesses their ability to provide a forum for debate where executives were scrutinized for their (non-)actions in human rights-related sanctions.

In an age when there is an ever-blurring line between domestic and foreign policy, the ability of parliaments to provide a forum for foreign policy debates is increasingly important. In fact, lobby activism – done mostly by Bill Browder, the former employer of deceased Sergei Magnitsky – to create a human rights sanctions regime took place mostly in parliaments and not in national foreign ministries. In 2011, Mr Browder even argued that the European External Action Service may have its own opinion about the (im-)possibility to create a human rights sanctions regime but ‘the decision of whether to impose sanctions will be based on public opinion and how that opinion affects democratically-elected members of parliaments and governments in the EU’.

In fact, parliaments do not necessarily accept the power asymmetry in foreign policy matters and do seek visibility in international relations. The European Parliament, for instance, often adopts resolutions relating to EU foreign policy and in particular to human rights issues. Some members of the national parliaments (MPs) frequently put human rights issues on the agenda, partly because the local electorate of some EU Member States have high standards and expectations in that regard. The performance of MPs in (international) human rights issues, therefore, may secure their re-election while the refusal to engage in these issues may potentially end MPs’ political careers.

Parliamentary action at different levels

The process of pressuring EU executives to adopt an EU global human rights sanctions regime ran in parallel at three different parliamentary levels. Since 2010, at the supranational level, the European Parliament called for travel bans and asset freezes against individuals responsible for the murder of Sergei Magnitsky and even recommended concrete names to be listed by the Council. The European Parliament also organized meetings in its Human Rights Subcommittee to keep the human rights sanctions regime on the EU’s agenda. Moreover, for the first time in its history, in 2019 the European Parliament devoted an entire plenary debate to the possible creation of a (human rights) sanctions regime.

At the cross-level, for instance, the members of the AFET interparliamentary committee invited the then newly appointed High Representative Josep Borrell, who is responsible for proposing sanctions regimes in the EU, to ask whether he would be ready to negotiate an EU-wide ‘Magnitsky Act’ with the Member States. The Inter-Parliamentary Conferences on CFSP/CSDP also adopted conclusions to press foreign ministries to adopt a human rights sanctions regime.

Finally, at Member State level, the Dutch parliament was clearly one of the most active legislatures. Already in 2011, Dutch MPs passed a resolution calling on the government to impose sanctions against perpetrators of human rights violations. Despite the initial reluctance of the Dutch government, MPs did not remain passive and continuously urged the Dutch executive to adopt the necessary measures even in the absence of EU level support. One of clear results of Dutch MPs’ efforts was that in 2018 the Dutch Foreign Ministry organised a diplomatic meeting with fellow EU Member States in The Hague to see whether there was a multilateral support for the human rights sanctions regime.

Taking parliaments seriously in foreign policy

The results of this research do not suggest that the powers of the parliaments have been widened in the last few years despite their success in promoting the EU human rights sanctions regime. The lesson is that parliaments can successfully keep certain issues on the EU’s agenda and, even if they lack formal competences, can truly pressure EU executives to adopt certain restrictive measures. The role of parliamentarians, therefore, should not be underestimated in today’s foreign policy-making, especially if one seeks to understand the EU’s diverse agenda on different sanctions regimes.

Authors:

Viktor Szép is postdoctoral researcher at the University of Groningen. Viktor is a member of the H2020 ENGAGE consortium on EU external action and has an interest in the EU’s Common Foreign and Security Policy (CFSP) and sanctions.