Proposed EU Sanctions Against Uganda: Thoughts on This New Extraterritorial Human Rights Regime

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On 11 February 2021, the European parliament adopted three resolutions on human rights situations in Uganda, Rwanda and Kazakhstan. Notably, for Uganda, it called for sanctions against individuals and entities responsible for human rights violations. My claim is that sanctions are an interplay between international relations and international human rights law regimes. Whereas they have the potential to greatly contribute to the fight against impunity in targeted states, they also risk creating unintended consequences within the ambit of human rights. Therefore, a closer analysis of the effectiveness of sanctions is needed.

This EU parliament resolution is premised on the new EU Global Human Rights Sanctions Regime (EUGHRSR), that was adopted by the Council of the European Union (EU Council) on 7 December 2020. This followed a proposal by the European Commission and the High Representative of the EU for Foreign Affairs and Security Policy, Josep Borrell. Lawyers regard this as a significant development due to its exterritoriality.

The sanctions regime comprises three distinct measures- prohibitions against listed individuals entering into or transiting through the region, funding to listed individuals or entities and freezing of funds and assets. This new human rights regime is similar to the United States Global Magnitsky Human Rights Accountability Act and UK’s Global Human Rights Sanctions Regulations 2020. Since the adoption of the new EU sanctions regime, the big question has been; who will be targeted by the new regime?

Human rights situation in Uganda 

Uganda has had a turbulent post-independence history since 1962,with civil wars, political instability and authoritarian rule characterised by gross human rights violations like torture, enforced disappearances and murders.

On 16 January 2021, Yoweri Museveni was re-elected as president of Uganda for a sixth term. His closest rival Robert Kyagulanyi and other opposition candidates rejected the results, alleging fraud and other human rights violations by the state during the electoral process. Human rights observers also noted the use of the COVID-19 pandemic as a pretext for state orchestrated repression. The EU has been actively engaged with both the opposition and government, while condemning the human rights abuses committed by state agents during the electoral process. The resolution by the EU Parliament, is targeted towards individuals and organisations responsible for human rights violations in Uganda. It also triggers reflections on the effectiveness of sanctions beyond the human rights regime.

Human rights or Foreign Policy Tool?

From a political perspective, Josep Borrell illuminates an EU that is ready to speak a language of power in regards to human rights, affirming that “It is up to Europe to mobilize fellow democracies to defend and promote fundamental human rights and democratic values in the international arena”.

This mirrors EU’s external action that is set out in Article 21(1) of the Treaty of the European Union:

“The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”.

This illustrates that while the idea of imposing sanctions is linked to breach of international human rights standards by a state, it is also tool of foreign policy in international relations.

Effectiveness of the sanctions

Besides holding human rights violators accountable for their actions, such sanctions are meant to provide a deterrent effect. This is premised on the fact that the restrictive measures apply to states, non-state actors(entities) ,and also individuals. Opinions from members of Civil Society in Uganda suggest that the sanctions are a positive step that could trigger the state to investigate the human rights violations and hold the perpetrators accountable for their actions. However, in his response to the sanctions, President Museveni maintained that it would not have any adverse effect on the country. His response further echoes the principle of non-interference in internal affairs states under international law. This begs another question: how effective are such sanctions in dealing with impunity?

There is a lack of scholarship on the effectiveness of human rights sanctions, in the field of international law. Nonetheless, Nienke Van der Have’s research is quite instructive in understanding the conceptual aim of the new EU Human Rights Sanctions regime, with two notable criticisms; First, “the potential for unintended negative effects” and second, “the potential failure to induce changes of behavior”.

While the EU seeks to expand its language of power, certain elements need to be considered. It is important to note that the impact of sanctions varies from one case to another, depending on a range of conditions.

For a targeted state like Uganda, economic sanctions have the potential to limit the citizens’ Economic Social and Cultural Rights in relation to access to medicines, food and water.

Economic sanctions are defined to mean:

“the withdrawal of customary trade and financial relations for foreign- and security-policy purposes. Sanctions may be comprehensive, prohibiting commercial activity with regard to an entire country, like the long-standing U.S. embargo of Cuba, or they may be targeted, blocking transactions by and with particular businesses, groups, or individuals”.

As a developing country with an estimated Gross domestic product (GDP) of $ 2631, Uganda is heavily dependent on foreign aid for the provision of such essential services. With COVID-19 causing significant disruptions in the global economy, it is important to assess the potential impact of economic sanctions on the right to health and access to medicines, medical supplies and other essential goods from EU states.

Conclusion

Previously, President Museveni has lobbied European businesses to invest in Uganda, with improved economic relations between Uganda and the EU over the last years. It remains to be seen how economic sanctions would impact on these relations. From a human rights perspective, it could impact on the right to work, for those employed by EU businesses.

To avoid negative effects of economic sanctions, the Committee on Economic Social and Cultural Rights under General Comment 8,para 14 presents a useful guideline to the external entities implementing sanctions to:

“to take steps, individually and through international assistance and cooperation, especially economic and technical” in order to respond to any disproportionate suffering experienced by vulnerable groups within the targeted country”.

Such obligations could be argued in response to the disproportionate suffering of ­vulnerable groups in humanitarian contexts. One notable element within the new EU sanctions regime is the express inclusion of exceptions, under the Guidance Note. Specifically, the delivery of humanitarian assistance, as recognised under international humanitarian law. This provision is directly applicable to the context of Uganda, the third largest refugee-hosting nation in the world.

A host of business entities within the EU could possibly get affected by the sanctions. The EU has supported Uganda’s private sector in the past, encouraging investors from Europe to invest in the country. Regulatory intelligence expert, Helen Chan, argues that human rights sanctions create uncertainty and disruptions within business communities. This suggests a need for proper coordination by the EU, to avoid adverse effects to the business community.  

Similarly, there could be challenges with the compliance among EU states, if there is no involvement of a central agency. Such a body would coordinate the sanctions and also make proper assessments of the sanctions. This may be useful to keep in mind, in order to avoid unintended consequences.

In sum, the EU sanctions against Uganda will make human rights compliance and implementation more achievable if targeted to specific individuals, not the state. The high poverty rates, economic disparities and post war transitions in the Ugandan context, in particular, make a disincentive such as EU economic sanctions infeasible for the future of human rights compliance in the country. Therefore, individual sanctions, if carefully crafted and assessed through human rights lenses, would be more effective than economic sanctions.

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Comments

Marcin J. Menkes says

March 9, 2021

Dear Tony,

thank you for drawing attention to the resolutions with the interesting post!

When it comes to chosing between smart and general economic sanctions, the EP resolution does precisely what you suggest: it 'reiterates' that the sanction must be adopted under the EU human rights sanction mechanism. The latter allows for adoption of sanctions against those 'responsible for, involved in or associated with'human right violations.

As the resolution condemns supression of political opposition (including media and civil society), mentioning militarisation of the campaign, the scope of possible sanctions seems limited to political decision-makers and, perhaps, the military.

Regarding the possible collateral damage of economic sanctions and their effectiveness, these are the principle reasons behind the development of smart sanctions.

Best regards
MJM