Documents considered by the Committee on 24 October 2018 Contents

11EU sanctions regime for chemical attacks

Committee’s assessment

Politically important

Committee’s decision

Cleared from scrutiny; drawn to the attention of the Defence, Foreign Affairs and International Development Committees

Document details

(a) Council Decision concerning restrictive measures against the proliferation and use of chemical weapons; (b) Council Regulation concerning restrictive measures against the proliferation and use of chemical weapons

Legal base

(a) Article 29 TEU; unanimity; (b) Article 215 TFEU; QMV

Department

Foreign and Commonwealth Office

Document Number

(a) (40097), 11936/18; (b) (40098), 11938/18

Summary and Committee’s conclusions

11.1On 28 June 2018, the European Council—the meeting of the EU’s Heads of State and Government—called for “a new EU regime of restrictive measures to address the use and proliferation of chemical weapons” to be adopted “as soon as possible”. Its request came in response to a number of recent chemical attacks, including the assassination of North Korea’s Kim Jong-nam in Malaysia in February 2017; repeated use of chemical weapons in Syria, most recently in the city of Douma in April 2018; and, of course, the Russian Novichok nerve agent attack in Salisbury in March this year. The UK has been reported as one of the driving forces behind the European Council’s call for action.147

11.2In response to the European Council’s conclusions, the European External Action Service (EEAS)—responsible for formally proposing EU foreign policy measures for consideration by the Member States in the Council—circulated the finalised draft legal acts to establish a new EU-wide sanctions framework on 25 September 2018.148 These would, once invoked against specific people or entities, require EU Member States to impose “asset freezes and travel bans […] to those involved in or responsible for the use and proliferation of chemical weapons”. The new framework would complement the existing EU sanctions under the Common Foreign & Security Policy (CFSP) that already apply against countries including Russia, Syria and North Korea, but allow people to be sanctioned regardless of their nationality (the sole criterion being that those listed must be involved in some manner in the use of chemical weapons).149

11.3The new framework does not currently list any specific persons or entities:150 article 4 of the draft Council Decision provides that the Member States “acting by unanimity” upon a proposal from a Member State or from the [EU] High Representative [Federica Mogherini], shall establish and amend the list. Any proposals to make such changes would be subject to parliamentary scrutiny via this Committee in the usual way. Those listed will be able to challenge the sanctions applied to them before the General Court of the European Union.

11.4The new legal framework will remain in force for 12 months, until October 2019, after which it would need to be extended by a further unanimous Decision of the remaining Member States (the UK being due to withdraw as a Member State in March 2019). If it is not extended, any sanctions applied under it would expire automatically.

11.5The Minister for Europe (Sir Alan Duncan) submitted the EEAS proposals and an Explanatory Memorandum151 for scrutiny on 11 October 2018, ahead of their scheduled formal adoption by EU Foreign Affairs Ministers in Luxembourg on 15 October.152 In the Memorandum, he expresses the UK’s strong support for the EEAS proposal as an “important signal of the UK’s and its EU partners’ continued commitment to upholding global norms, supporting the existing international architecture (particularly the effective implementation of the Chemical Weapons Convention), and deterring the use and proliferation of chemical weapons”.

11.6The Minister also states that it is the UK’s intention to “continue to press” for all the measures agreed so far to be fully implemented, presumably referring to the inclusion of specific people—for example the perpetrators of the Salisbury attack — in the list of subjects of the new sanctions regime. We understand it is not yet known when the first listings are likely to take place. The Government is also pushing the EU to implement similar horizontal sanctions frameworks to target the perpetrators of human rights abuses and cyber-attacks.

Our assessment

11.7The Foreign Affairs Council adopted the legal acts establishing the new EU sanctions framework targeting perpetrators of chemical attacks on 15 October 2018. The Government overrode the scrutiny reserve to propose their adoption, given the short amount of time available between the proposal’s formal circulation and adoption by the Council. In light of the UK’s interest in pursuing coordinated European action, following the Novichok attack that occurred on UK soil, we understand the Government’s reasons for voting in support of the new sanctions framework in spite of the scrutiny reserve.

11.8In the absence of any initial listing of specific persons or entities, it is difficult to judge the likely effectiveness of the new regime. It appears to have been established to avoid the appearance of directly attacking foreign governments—in particularly Russia—by applying the new regime to those seen as responsible for specific actions (use of chemical weapons) irrespective of their nationality, political affiliation or the location of their transgressions. However, as the effect of listing persons or entities is the same as if they had been listed under a country-specific regime, and the Member States must still unanimously agree to the inclusion of new people and organisations as subject of the sanctions,153 the listing process is likely to remain politically charged.154

11.9There is, of course, also a wider Brexit context. When the UK leaves the EU on 29 March next year, it will also cease to be bound by the Common Foreign & Security Policy of which this new sanctions regime forms part. Naturally, the Government will also lose its current veto over most new EU foreign policy measures and its current (significant) degree of influence over the general direction of the CFSP.

11.10While both the UK and the EU have expressed a desire for a close security partnership after Brexit, the legal and institutional practicalities of that new relationship are yet to be established. The EU would benefit from a close relationship with the UK in the field of foreign policy, especially in the field of sanctions: as the House of Lords EU Committee noted in December last year, the UK “currently plays a leading role in developing EU sanctions policy, is most active in proposing individuals and entities to be listed, and is home to the largest international financial centre of the bloc”155 (making asset freezes more effective when they include London). However, the UK cannot expect to be involved in the EU’s decision-making structures for the CFSP in the same way as Member States. In the event of a ‘no deal’ Brexit, day-to-day foreign policy cooperation—coordinated, for example, via the weekly meeting of the EU’s Political & Security Committee—would be severely disrupted in March 2019.

11.11The UK will be able to impose sanctions unilaterally more easily once outside the Common Foreign & Security Policy: the Sanctions and Anti-Money Laundering Act 2018156 gives the Government the necessary powers to implement an independent sanctions policy from EU ‘exit day’.157 However, the UK’s undoubted capacities in this field notwithstanding, it is likely to find it more difficult to coordinate concerted EU-wide restrictive measures once outside of the Union’s political structures. If the UK imposes foreign policy sanctions that the EU-27 do not, this is likely to reduce their overall effectiveness. The House of Lords’ European Union Committee concluded in December 2017 that “while informal engagement with the EU on sanctions […] can be very valuable, it is no substitute for the influence that can be exercised through formal inclusion in EU meetings”.158

11.12The Committee will continue to monitor the discussions on the UK’s future relationship with the EU closely, including any new institutional architecture and the implications for the autonomy of UK foreign policy after Brexit. It will also consider any formal proposals for listings under the new chemical attacks sanctions framework, or for parallel sanctions regimes for human rights abuses or cyber-attacks, in due course.

11.13We draw these developments to the attention of the Defence, Foreign Affairs and International Development Committees.

Full details of the documents:

(a) Council Decision concerning restrictive measures against the proliferation and use of chemical weapons: (40097), 11936/18; (b) Council Regulation concerning restrictive measures against the proliferation and use of chemical weapons: (40098), 11938/18.

Previous Committee Reports

None, this is a new sanctions framework.


147 Reuters, “EU to agree new sanctions regime for chemical attacks“ (24 September 2018).

148 The documents remain classified as LIMITE until their publication in the Official Journal and are therefore not publicly accessible at the time of consideration by the Committee.

149 The legal acts are aimed at natural and legal persons “who are responsible for, provide financial, technical or material support for or are otherwise involved in: manufacturing, acquiring, possessing, developing, transporting, stockpiling or transferring chemical weapons; using chemical weapons; [or] engaging in any preparations for the use of chemical weapons”.

150 This is a common practice with the imposition for EU sanctions: often the legal framework setting out the criteria for, and consequences of, being listed are adopted, and those actually subject to the sanctions are added by the Member States at a later stage. See for example our recent Report on the EU’s sanctions vis-à-vis certain Venezuelan officials.

151 Explanatory Memorandum submitted by the Foreign & Commonwealth Office (4 October 2018). Not yet available online.

152 Although the Committee was made aware of the proposal on 4 October 2018, the Explanatory Memorandum was not submitted until 11 October.

153 The European Commission recently suggested the European Council should take a decision under a so-called “passerelle” clause in the Treaty to allow EU sanctions regimes to be adopted and amended by Qualified Majority. We are awaiting an Explanatory Memorandum from the Foreign Office on this Commission document, and plan to make a Report to the House in due course.

154 For example, it was reported in September 2018 that the new Italian Government had blocked the addition of a new name to the EU’s sanctions regime targeting those responsible for Russia’s annexation of Crimea in Ukraine.

155 House of Lords External Affairs EU Sub-Committee, “Brexit: sanctions policy“ (12 December 2017).

157 ‘Exit day’ is either 29 March 2019 or the end of any subsequent post-Brexit transitional period, should the Withdrawal Agreement be ratified.

158 House of Lords EU Committee, “Brexit: sanctions policy“ (December 2017).




Published: 30 October 2018