Friday, January 4, 2013

It's Complicated: Russia, the U.S., and the Magnitsky Act

Sergei Magnitsky’s grave
Source: Wikimedia Commons
By Joanna Wasik, Georgetown Law '12, Guest Blogger 

The Magnitsky Act is a decisive step forward in the U.S.’s promotion of human rights and the rule of law abroad. Before it can be heralded as a triumph, however, we must recognize the complicated context of how the Act was enacted, how it will be implemented, and its short term and long-term effects. A closer inspection reveals a delicate interplay of domestic politics, international trade, and political maneuvering in international affairs that must be weighed when assessing the Act’s utility.

The Sergei Magnitsky Rule of Law Accountability Act of 2012 (“Magnitsky Act”)() was signed into law in 2012 as part of a larger bill, the Russia Permanent Normal Trade Relations law or PNTR. The PNTR normalized trade relations with the Russian Federation and abolished the Jackson-Vanik amendment, which had restricted trade with Russia and other former communist countries since 1974. Pursuant to Russia’s entry into the World Trade Organization in August 2012, U.S. legislators were eager to let U.S. companies take advantage of reduced trade barriers with the economic powerhouse. As reported by the New York Times, some estimate that the Russia PNTR could double the amount of U.S. exports to Russia over the next 5 years.

This same law, which offers an open hand of normalization of trade relations, also contains a slap for those who violate human rights in Russia. The Magnitsky Act allows the United States to deny visas to Russian officials who are deemed human rights abusers, and to freeze their U.S. assets. As detailed by Freedom House, the provision is named for Sergei Magnitsky, a Russian lawyer who died in prison in 2009 after exposing multimillion-dollar fraud by Russian officials. No one has been charged or held accountable for his death in Russia, though the beatings and denial of medical care by jailers and the Russian Department of Interior officials were responsible for his death. In addition to the death of Magnitsky, Human Rights First details many other cases of individuals in Russia whose human rights have been violated with impunity. Freedom House has hailed the Magnitsky Act as a victory for human rights and accountability, calling for such provisions to be applied to U.S. relations with other countries and for European states to pass similar legislation.  

Before it can be heralded as a triumph, however, the background and implications of the Magnitsky Act need to be explored.

First, there is the question of efficacy. By preventing the entry of Russian elites into the U.S. and allowing their assets to be frozen, the Act directly reaches those who would like to travel to and have business interests in the United States. Although the State Department already keeps a visa black list of suspects involved in the Magnitsky death and has done so since well before the passage of the Act, the Magnitsky Act expands the list to individuals responsible for other “extrajudicial killings, torture, or other gross violations of internationally recognized human rights.” The implementation of this relatively broad mandate will be the key to its success; if the individuals in question have not been convicted of crimes in their home countries, the U.S. must be careful in its determinations of whom to place on the blacklist.

The way in which the Magnitsky Act became part of the PNTR is also an important part of evaluating it. John McCain (R-AZ), for example, would not support the passage of the PNTR until it was linked with the Magnitsky Act. Other than their focus on relations with Russia, the PNTR and Magnitsky Act do not deal with the same subject matter; Russia’s recent accession to the WTO is not directly linked with the Putin regime’s longtime disregard for the rule of law. Senator McCain has been one of Russia’s sharpest critics in the U.S., and his insistence on the inclusion of the Magnitsky Act in the PNTR suggests that he used the Magnitsky Act as a way to ensure that the PNTR would not appear to reward bad behavior by Russia, ranging from backsliding on democratic gains to using its natural resources as a political tool. The Magnitsky Act is a true human rights bill; however, it targets Russia in part for reasons unrelated to the country’s human rights record.

Most recently, the Magnitsky Act has also instigated political conflict, which has impacted not just the realm of international affairs but also invaded the lives of U.S. citizens. The swift negative reaction of the Putin administration showcases an inevitable aspect of human rights legislation: it presupposes one nation’s authority to pass judgment on the actions of state actors worldwide. While the concept of human rights is powerful and important for the very reason that it transcends national boundaries, it is often denounced by oppressive regimes as meddling in their internal affairs. As reported by the Voice of Russia, Putin stated, “While talking about the ‘reset’ in relations with Russia, [the Act] is making things worse. Russia did nothing to prompt such a behavior. The Guantanamo base, which was established 8 years ago, is still functioning. Guantanamo inmates are kept in shackles and chains, like in the Middle Ages. Those who open secret jails have legitimized torture and are now pointing out our faults. Of course, we aren’t flawless, but it’s our business to deal with our shortcomings.”

In retaliation for the human rights provision of the Act, on December 27, Putin stated that he would sign into law a bill banning the adoption of Russian children by American citizens. The Dima Yakovlev Law takes its name from a Russian adoptee who died of heatstroke after his American adoptive father left him in a parked car for nine hours. Yakovlev’s adoptive father was subsequently acquitted of manslaughter. While the Magnitsky Act is aimed at punishing abuses perpetrated by state actors, the Dima Yakovlev Law is an asymmetrical response, taking aim directly at the American public. It will immediately block 46 adoptions scheduled to take place as well as numerous future adoptions. In addition, the Dima Yakovlev Law undermines the advances only recently codified in the US-Russia Bilateral Adoption Agreement of November 2012, which strengthened procedural safeguards in the adoption processes between the two countries. Partly because Russia is not a party to the Hague Adoption Convention, international adoption between the U.S. and Russia has long been an extremely difficult, delicate, and often frustrating process. As a result of the Putin regime’s reaction to the Magnitsky Act, such adoptions will be impossible, at least in the short term.

Thus, the complicated backdrop of the Magnitsky Act allows it to be analyzed in many different contexts. The Act serves as a reminder that human rights legislation may emerge in various forms from the domestic legislative process, and that it may instigate immediate consequences in international affairs with uncertain long-term effects on bilateral relations. However, it also showcases the symbolic and practical influence that the U.S. can wield in advancing human rights around the world, and, if implemented in a careful and effective way, may serve as an example for other countries in their dealings with human rights abusers.

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