US reacts to Ortega’s fourth consecutive term in power in Nicaragua

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On January 10, 2022, Nicaraguan President Daniel Ortega was sworn in for his fourth consecutive term, despite the United States and European Union allegations that the election was a “sham”. On the same day, the United States imposed sanctions on Nicaraguan officials accused of undermining democracy.

In recent years, the Office of Foreign Assets Control of the United States Department of Treasury (“OFAC”) has designated a significant number of current and former officials of the Government of Nicaragua as Specially Designated Nationals (“SDN”). As a result of this designation, all assets and interests in SDN property that are in the United States or in the possession or control of US persons are blocked and must be reported to OFAC.

Below, we discuss the sanctions the US government has imposed with respect to the ongoing conflict in Nicaragua.

Background

Daniel Ortega became a leader of Nicaragua‘s left-wing Sandinista revolution in the 1980s, when he fought the dictatorship of Anastasio Somoza. After governing Nicaragua between 1984 and 1990, he was defeated in the 1990 elections, but was elected President of Nicaragua in 2006 and re-elected in 2011 and 2016. In 2021 he ran again for election and received almost 76% of the vote, after first ordering the detention of his political rivals under a controversial treason law passed in December 2020 by Nicaragua’s National Assembly.

The 2021 presidential elections have been heavily questioned by the international community, given Ortega’s actions to prevent opposition candidates from running under the rubric of “treason” charges.

On December 8, 2021, the regional body of the Permanent Council of the Organization of American States (“OAS”) issued a resolution“urge[ing] the Nicaraguan government at . release all political prisoners and accept a high-level mission of good offices. . . [for] the implementation of comprehensive electoral reforms. . . “

Sanctions imposed by the United States

  1. Executive Order 13851

On November 27, 2018, President Trump released Executive Order (“EO”) 13851, Freezing of the property of certain persons contributing to the situation in Nicaragua. In sum, EO 13851 authorizes the Secretary of the Treasury (in consultation with the Secretary of State) to freeze property and interests in property that is in the United States, that enters the United States, or that is or enters in the possession or under the control of US persons, of persons determined to:

  • Have engaged or attempted to engage, directly or indirectly, in
    among othersserious human rights violations in Nicaragua, actions or policies that undermine democratic processes or institutions in Nicaragua, or transactions involving deceptive practices or corruption by, on behalf of, or otherwise related to current public officials or elders of the government of Nicaragua;

  • Be an officer or officer of an entity that has, or whose members have, engaged in any activity described above;

  • Be an official of the Government of Nicaragua at any time on or after January 10, 2007;

  • Have materially assisted, sponsored or provided financial, material or technological support, or goods or services in support of any activity described above, or anyone whose property and interests in the property are blocked pursuant to ‘EO 13851; or

  • Be owned or controlled by, or have acted or purported to act for or on behalf of, directly or indirectly, any person whose ownership and interests in ownership are blocked pursuant to EO 13851.
  1. November 2021 sanctions

On November 15, 2021, OFAC designated the Public Ministry of Nicaragua and nine others as SDN, pursuant to EO 13851, “for serving as an official of the Government of Nicaragua at any time on or after January 10, 2007”. The Public Ministry of Nicaragua. According to OFAC, the Nicaraguan Public Ministry, “[r]relying on Nicaraguan law, including Law 1055, . . . Ha[d]unjustly arrested and investigated presidential candidates and prevented them from running for office, thus undermining democracy in Nicaragua. »

On the same day, the United States Department of State (“State Department”) issued a Press releasedeclaring “[w]With these new sanctions, the United States, joined by our international partners, continues to take concrete action to respond to the Ortega-Murillo government’s attacks on civil liberties and free and fair elections. We are pleased that Canada and the United Kingdom have also imposed targeted measures today. . . We stand with the region to call for the return of democracy to Nicaragua and the immediate and unconditional release of political prisoners.”

In particular, the UK penalties imposed against eight Nicaraguan officials, including Vice President Rosario Murillo, Ortega’s wife, while Canada imposed sanctions on eleven Nicaraguan officials.

The next day, November 16, 2021, President Biden Published an opinion, which “continues[ed] for 1 year, the national emergency declared in Executive Order 13851 regarding the situation in Nicaragua,” pursuant to Section 202(d) of the National Emergencies Act (50 USC 1622(d)). President Biden has also Published a “Message to Congress”, which explained that, “[t]he situation in Nicaragua, including the Nicaraguan government’s violent response to protests that began on April 18, 2018, and the Ortega regime’s systematic dismantling and weakening of democratic institutions and the rule of law, its its use of indiscriminate violence and repressive tactics against civilians, as well as its corruption leading to the destabilization of Nicaragua’s economy, continues to pose an unusual and extraordinary threat to United States national security and foreign policy. »

Finally, on the same day, President Biden Published a “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Persons Responsible for Policies or Actions that Threaten Democracy in Nicaragua”, which, among otherssuspended entry into the United States, as immigrants or nonimmigrants, of certain individuals associated with the Nicaraguan government, including elected officials, nongovernmental individuals who serve as their agents, and certain family members of these people.

  1. Sanctions of January 10, 2022

On January 10, 2022, OFAC designated certain Nicaraguan military officials, the Nicaraguan Minister of Defense, the Nicaraguan Institute of Telecommunications and Mail (“TELCOR”) and the Nicaraguan State Mining Company (“ENIMINAS”) as SDN, pursuant to EO 13851.

According to OFAC, the Nicaraguan military “not only refused to order the disarmament and dismantling of paramilitary or ‘para-police’ forces during and after the political uprisings, but the military also provided arms to the para-police who committed acts of violence against Nicaraguans”.

Additionally, according to OFAC, TELCOR “is an autonomous entity under the leadership of the Nicaraguan Presidency that implements regulations and monitors compliance for telecommunications and postal services.” Besides, “[s]Since 2007, the regime has targeted the media in an effort to silence them, often using TELCOR as a tool of repression. ” Specifically, “[b]since April 2018, [TELCOR] attempted to discredit pro-democracy protesters and amplify pro-government content” and “suspended Channel 21 television’s operating license after former presidential candidate and Channel 21 executive, Reverend Guillermo Osorno of the Nicaraguan Christian Way party publicly denounced anomalies in the electoral process. process.”

Finally, according to OFAC,[t]he creation by the government of Nicaragua in 2017 of the state-owned company ENIMINAS has increased state involvement in the mining sector, particularly in gold extraction, through joint ventures with private companies.[t]The value of Nicaragua’s gold exports has increased dramatically in recent years, generating profits for its private sector allies and increasing revenues for ENIMINAS, which is managed by senior ruling party officials.

OFAC also designated six individuals “to be officials of the government of Nicaragua or to have served as officials of the government of Nicaragua at any time on or after January 10, 2007”, due to their association with the entities described above. .

On the same day, the State Department took action to impose visa restrictions on “116 individuals complicit in undermining democracy in Nicaragua, including mayors, prosecutors, university administrators, as well as police, prison and military officials” .

Conclusion

In general, the US government has increasingly used sanctions as a tool in US efforts to create political change abroad. In this regard, OFAC stated that “[t]he sanctions. . . are not intended to be permanent but are issued to encourage positive behavior change by those identified and the authoritarian regime they support. The United States has made it clear that sanctions waivers may be available to individuals and entities. . . who are taking concrete and meaningful steps to promote democracy and the rule of law in Nicaragua.

We will continue to monitor developments in this area and encourage you to subscribe to be kept informed of the latest developments. Please contact the authors or your usual Herbert Smith Freehills contacts for more information.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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