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.

Deferred Action for Childhood Arrivals: A Risky Step Forward for Youth Immigrant Rights

by Adina Appelbaum

Twitter: @abappelbaum

On July 15, 2012, the Obama Administration announced the Deferred Action for Childhood Arrivals (DACA) initiative, a program that has the potential to help as many as 1.76 million young immigrants avoid deportation and obtain work authorization for two years.  To qualify for the program, individuals must be under the age of 31; have arrived in the U.S. before turning 16 and resided in the country for at least five years; be enrolled in or have graduated from high school (or have a GED or be a veteran); and have no felonies or significant misdemeanors, among other requirements.

Undocumented students line up at Navy Pier to apply for deferred action.

Source: John H. White, Chicago Sun-Times

DACA represents a step in the right direction for child and young adult immigrant rights. In the short-term, applicants granted deferred action may be free from deportation, obtain crucial employment authorization and a Social Security number, have an incentive to stay in school, and be able to “come out” from living in the shadows of lacking proper legal documentation.

On the other hand, the significant uncertainty of DACA as a discretionary presidential action, which makes no permanent legal change in a person’s immigration status, means there is a substantial chance it could do more harm than good. The risks are even greater for unaccompanied children. The precarious nature of DACA is arguably not in line with the intentions of Articles II and III of the Convention on the Rights of the Child (CRC) to prohibit discrimination and promote the best interests of the child. DACA’s weaknesses thus represent an opportunity to illuminate why a more comprehensive immigration reform is needed.

Human Rights in the Shadows of “Too Big To Fail”

by Gabe Lezra

Dani hasn’t had many early mornings recently. More and more, he has found himself with nowhere to be during the day; he graduated high school more than ten years ago, and began working with his father in construction. He goes weeks without work now, trying his best to find odd jobs, local contracting work, and fly-by-night dishwashing. But the phone hasn’t been ringing: he is thirty-two years old, a high-school graduate, and a member of Spain’s new lost generation.

Dani’s is a common story in Southern Spain. Hundreds of thousands of people lost their jobs during the financial crisis, as Spain, with its nascent manufacturing and construction industries, was particularly hard-hit by the credit crunch. Without banks to lend capital to companies to invest in new buildings, this generation was quite suddenly out of a job.

Most of them still are. Youth unemployment in Spain as a whole is over 50%; it’s even higher in the South where Daniel lives. The national unemployment rate hovers around 25%, the highest in the European Union; in 2005, the unemployment rate in Spain was 9.2%, only incrementally more than the EU average of 9.0%. Average income has dropped 4% while the cost of living has increased; seeing people in aging designer clothes foraging in the trash outside of grocery stores is commonplace. All of this, concludes a recent Cáritas report, has caused a “notable drop in well-being.”

The narrative in the United States has been one of recovery since the height of the crisis; in Spain, it has been one of cuts. Austerity measures imposed by Prime Minister Mariano Rajoy in conjunction with European Union officials and the European Central Bank have seen the ranks of Spain’s unemployed swell to 5.78 million people in October, up from 5.69 million in September, and 2.6 million four years ago.

If we have learned anything from the crisis in the United States it is that a financial regulatory system should not be based on outdated political policies like “too big to fail”—that regulatory regimes must be regulatory. In Spain, we can see the human cost of these failings; in Spain, we can see with particular clarity that the real effects of a financial crisis are on the day-to-day lives of the working class.

It is time for a new perspective on economic crises driven by this understanding. It is time to engage thoughtfully with the human costs of crises—of austerity measures imposed by governments that disproportionately harm the poor, of cuts to vital social services that leave young people like Dani with nowhere to turn. It is time to view the effects of financial crises through a human rights lens.

The Forgotten and the Shunned: Street Children in Egypt

by Mai El-Sadany

Twitter: @MaiE_89

 

Courtesy of  www.flickr.com

"You can never do justice in portraying the injustice of life and humans towards these children." Such are the words of Nelly Ali, anthropologist and PhD student who has been working with, conducting research, and actively blogging on the issue of street children in Egypt.  

 

Street children, also known as awlad al-shaware’ in Egyptian Arabic, are generally defined as young boys and girls who live on the streets and have minimal to no contact with their parents or guardians; they depend on the street for their shelter, income, and sustenance.

 

Since the revolution and with the majority of attention focused on Egypt’s political dynamics, there has been almost no attentiveness towards this marginalized community. As Egypt prepares to adapt a new constitution (the status of which will be determined after a second round of voting on December 22) there remains an alarming absence of necessary discussion on issues of human rights, more specifically the rights of the child, the working rights of minors, and various protections for trafficking. As such the issue of awlad al-shaware’ becomes one that must promptly be revisited.

Italy Attempts to “Push-back” its International Human Rights Duties

by Lauren Esterle

“No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”  -  Art. 33 of the UN Refugee Convention

Enshrined in the 1951 Refugee Convention and considered a rule of customary international law, the principle of non-refoulement is an essential component of asylum and international refugee protection that safeguards migrants, whatever their status, from forcible return to countries where they may be exposed to persecution. In recent years, however, the principle has faced barriers as States have attempted to deal with increasing migration flows by intercepting vessels on the high seas and preventing them from reaching their destinations.  This process, sometimes aided by bilateral agreements between individual countries, places the principle of non-refoulement at risk if migrants onboard are not first individually screened for refugee status. Furthermore, the location of these interceptions, on the high seas or territorial waters, has influenced States’ opinions of how, if and when they should be held accountable for violations of their obligations under international law.

The European Court of Human Rights highlighted this problem in its 2012 decision Hirsi v. Italy, which examined a 2009 incident where the Italian coastguard intercepted approximately 200 migrants thirty-five nautical miles south of Lampedusa, Italy (on the high seas) and returned them to Tripoli without ever informing the migrants of their final destination or screening the group for possible asylum seekers. The Court noted that the Italian Minister of the Interior had stated that the operation was an effective push-back policy resulting from 2009 bilateral “friendship” agreements concluded with Libya. Although the case only dealt with an operation led by Italy, the agreements referenced by the Minister also alluded to organized joint patrolling operations by mixed crews of Libyans and Italians, on ships supplied by Italy in both international and Libyan territorial waters.  

Human Rights and Debt Relief in the Age of Vultures

The Argentine Libertad, held in Ghana
due to a sovereign debt dispute.
http://commons.wikimedia.org/wiki/File%3ALibertad.JPG

by Blake Hulnick

Twitter: @bhulnick

When Argentina officially took its place on the UN Security Council on October 22^nd, the celebrations were brief, and Argentina’s Minister of Foreign Affairs, Hector Marcos Timerman, had an urgent piece of business to raise with Secretary-General Ban Ki-moon.  The Fragata Libertad, an Argentine naval frigate, had been detained in Temma, Ghana for weeks, and the government continued to demand its unconditional return.

The Libertad finds itself in this unusual predicament because a U.S.-based investment firm petitioned courts in Ghana for its seizure in their quest to be made whole on a long-unpaid $1.6 billion judgment stemming from Argentina’s 2001 default. The unfolding situation provides a rare public glimpse into a novel field in international law beginning to reverberate throughout the human rights community.

The Argentine government called the attachment of their ship a violation of the Vienna Convention’s diplomatic immunity rules and even outright extortion, but the issue may be more complicated. For years, so-called “vulture funds” have built a business model acquiring distressed sovereign debt,  often at deep discounts on the secondary market from frustrated creditors. The funds then pursue collection in every corner of the world, often at many times the original amount. Where they succeed, the result can be a substantial profit. The funds’ harshest critics say they frustrate third world debt relief efforts, hamper hard-won economic reforms, and raid the treasuries of poor countries struggling to provide basic social services and ensure the human rights of their citizens.

Litigation and Health Reform in Brazil: Balancing Access to Health with the Creation of a Durable and Equitable Health System

By John Thorpe

Good health is a precondition for the enjoyment of most of the rights we cherish.  A young woman crippled by opportunistic HIV/AIDS infections faces significant challenges to vote, let alone to contest barriers to vote.  Good health ensures that we can work and work productively.  It also promotes early childhood education and gives children an opportunity to perform at their highest potential.  As The Global Network has noted, the broad negative social impact that neglected tropical diseases have on education, economic development, and women’s empowerment is illustrative of the fundamental nature of good health. 

Recognizing that the right to health is a pillar of individual and collective dignity, the international community enshrined it in article 12 of the International Covenant on Economic, Social, and Cultural Rights.  Yet historically, the right has lacked broad institutional support and reliable mechanisms for enforcement.  Recent codifications of the right to health into national constitutions are changing this by, among other things, opening up the possibility of litigation for individuals seeking access to care and medication.  Brazil serves as a good example.  Since codifying the right to health in its constitution, Brazil has witnessed a veritable explosion in health related litigation (in Brazil’s Rio Grande do Sul state, health related lawsuits filed against the state have increased over 1000% from 2002-2009).  Although this trend in litigation is raising a number of questions regarding sustainability and equity, one thing is clear: litigation is moving the public discourse from debate over the right to health’s epistemological validity in the rights framework to inquiries into pragmatic methods and optimal institutional structures to ensure its enjoyment in practice.  Litigation, while not a permanent answer to health inequity and in need of reform, is providing poor Brazilians with access to necessary medication and with an effective tool to claim their right to health where current distributional structures are failing.