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The Reformed EU Human Rights Sanctions Regime: A Step Forward or an Empty Threat?

Published online by Cambridge University Press:  31 August 2021

Jernej LETNAR ČERNIČ Open the ORCID record for Jernej LETNAR ČERNIČ [Opens in a new window]
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Extract

Human dignity, effective human rights protection and the rule of law are the backbones of the legal system of the European Union (EU).1 The EU and its member states have been front-runners in human rights protection not only on its own territory, but also beyond in their relationship with third countries. They have been the principal standard-setters in the field of business and human rights (BHR). The majority of the EU member states (15 out of 27) have so far adopted National Action Plans on Business and Human Rights.2 As far as legislative action goes, the EU has in recent years adopted two binding legal acts in the BHR field, namely, a Directive requiring obligatory non-financial reporting for large corporations3 and a Regulation concerning mandatory due diligence for the EU-based importers of minerals and metals from conflict-ridden areas.4 More recently, the European Parliament and the European Commission have been working towards adoption of a general directive for obligatory human rights and environmental due diligence for large corporations.5

Keywords

business and human rightscorporate accountabilityChinaEuropean Unionsanctions
Type
Developments in the Field
Information
Business and Human Rights Journal , Volume 6 , Issue 3 , October 2021 , pp. 559 - 566
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

Conflicts of interest: The author declares none.

*

Professor of Constitutional and Human Rights Law, Faculty of Government and European Studies, New University, Ljubljana and Kranj, Slovenia. This piece was prepared within the framework of a research project co-financed by the Slovenian Research Agency: ‘A Holistic Approach to Business and Human Rights’ (no. JP-1790).

References

1 They are part of the fundamental values, pursuant to Article 2 of the Treaty on the European Union and form part of the EU Charter of Fundamental Rights, which proclaims in Article 1 that ‘Human dignity is inviolable. It must be respected and protected’.

2 OHCHR, ‘State National Action Plans on Business and Human Rights’, https://www.ohchr.org/en/issues/business/pages/nationalactionplans.aspx (accessed 12 July 2021).

3 ‘Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups Text with EEA relevance’, Official Journal of the European Union, L 330, 15.11.2014, 1–9.

4 ‘Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas’, Official Journal of the European Union, L 130, 19.5.2017, 1–20.

5 European Parliament, ‘Resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability’ (2020/2129(INL)).Google Scholar

6 ‘Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses’, Official Journal of the European Union, L 410I, 7.12.2020, 13–19, art 1.

7 ‘Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses’, Official Journal of the European Union, L 410I, 7.12.2020, 1–12.

8 Treaty on the Functioning of the European Union, Official Journal of the European Union, C 326, 26.10.2012, 47–390.

9 Joined Cases C-402/05 P and C-415/05, P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, EU:C:2008:461.

10 Nadia Zelyova, ‘Restrictive Measures: Sanctions Compliance, Implementation and Judicial Review Challenges in the Common Foreign and Security Policy of the European Union’ (2021) 22 ERA Forum 159, 161.

11 Ibid.

12 Ibid, 162.

13 Council Regulation (EU) 2020/1998, note 7, art (2)(1)(a–d).

14 Council Decision (CFSP) 2020/1999, note 6, art 2(1).

15 Council Regulation (EU) 2020/1998, note 7, art 3(1).

16 Ibid, art 3(2).

17 Ibid, art 3(3).

18 Ibid, art 14.

19 Ibid, art 14(2). See also Kadi II, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission v Kadi, [2013] ECLI:EU:C:2013:518.

20 Council Regulation (EU) 2020/1998, note 7, art 4.

21 Ibid, art 16.

22 EU Commission, ‘Restrictive measures (sanctions)’, https://ec.europa.eu/info/business-economy-euro/banking-and-finance/international-relations/restrictive-measures-sanctions_en#tool (accessed 12 July 2021).

23 ‘Council Implementing Regulation (EU) 2021/371 of 2 March 2021 implementing Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses’, Official Journal of the European Union, L 71 I, 2.3.2021, 1.

24 ‘Council Implementing Regulation (EU) 2021/478 of 22 March 2021 implementing Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses’, ST/6935/2021/INIT, Official Journal of the European Union, L 99I, 22.3.2021, 1–12.

25 Ibid, 3–6.

26 Ibid, 4.

27 Ibid, 6–7.

28 Ibid, 7–8.

29 Ibid, 8–9.

30 Ibid, 10.

31 Ibid, 10–12.

32 Ibid, 10.

33 XPCC has ‘4391 industrial, construction, transport and commercial enterprises’. PRC, ‘Establishment, Development and Role of the Xinjiang Production and Construction Corps’, http://www.china.org.cn/e-white/20030526/9.htm (accessed 12 July 2021).

34 ‘Council Implementing Regulation (EU) 2021/478 of 22 March 2021 implementing Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses’, ST/6935/2021/INIT, Official Journal of the European Union, L 99I, 22.3.2021, 1–12, Annex I, Section B, 1.

35 ‘Council Decision (CFSP) 2020/1999, note 6, Annex I, Section A.

36 Ibid, Annex I, Section B.

37 ‘Council Implementing Regulation (EU) 2021/998 of 21 June 2021 implementing Regulation (EU) No. 401/2013 concerning restrictive measures in view of the situation in Myanmar/Burma’, ST/9554/2021/INIT, Official Journal of the European Union, L 219I, 21.6.2021, 45–54.

38 See, for instance, Joshua Cheetham, ‘Myanmar coup: the shadowy business empire funding the Tatmadaw’, BBC News, https://www.bbc.com/news/world-asia-56133766 (accessed 12 July 2021).

39 ‘Council Implementing Regulation (EU) 2021/638 of 19 April 2021 implementing Regulation (EU) No 401/2013 concerning restrictive measures in view of the situation in Myanmar/Burma’, ST/7710/2021/INIT, Official Journal of the European Union, L 132I, 19.4.2021, 1–11, Annex 1, Section B, 2.

40 ‘Council Implementing Regulation (EU) 2021/997 of 21 June 2021 implementing Article 8a (1) of Regulation (EC) No. 765/2006 concerning restrictive measures in respect of Belarus’, ST/9448/2021/INIT, Official Journal of the European Union, L 219I, 21.6.2021, 3–44, Annex I, Sections A and B.

41 Article 2(1) of the Draft Proposal provides that the ‘Directive shall apply to large undertakings governed by the law of a Member State or established in the territory of the Union’. ‘Recommendations as to the Content of the Proposal Requested, Recommendations for Drawing up a Directive of the European Parliament and of the Council on Corporate Due Diligence and Corporate Accountability’ (10 March 2021) (2020/2129(INL)).

42 The current Draft Proposal provides for ‘an early-warning mechanism for risk-awareness and as a mediation system, allowing any stakeholder to voice reasonable concerns regarding the existence of a potential or actual adverse impact on human rights, the environment or good governance’. Ibid, art 9(1).

43 PRC’s Government, ‘Foreign Ministry Spokesperson Announces Sanctions on Relevant EU Entities and Personnel’ (22 March 2021), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1863106.shtml (accessed 12 July 2021). See also Deutsche Welle, ‘EU–China investment deal put on ice over sanctions’ (4 May 2021), https://www.dw.com/en/eu-china-investment-deal-put-on-ice-over-sanctions/a-57427703 (accessed 12 July 2021).

44 European Commission, ‘EU–China Comprehensive Agreement on Investment’, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2115 (accessed 12 July 2021). See also Surya Deva, ‘Being Naïve or Putting Business First?: The EU–China Comprehensive Agreement on Investment, Human Rights and the Hong Kong Situation’, VerfBlog (19 January 2021), https://verfassungsblog.de/being-naive-or-putting-business-first/ (accessed 12 July 2021).

45 See, for instance, ‘Dealing with China’, The Economist (20–26 March 2021) 7–8.