Getting Human Rights Sanctions Right

Carefully crafting laws like the one responding to the death of Sergei Magnitsky will maximize their moral legitimacy—and their impact.

The arrest of Sergei Magnitsky, a lawyer who, in the course of his duties exposing fraud directed against his client, uncovered compelling evidence of official corruption and malfeasance on the part of Russian law enforcement and government officials, was a travesty. His treatment, which led to his death in prison in 2009, was criminal.

Despite the consistent invocation by the Kremlin about “interference in domestic affairs,” the reality produced by globalization has eroded any clear distinction between “domestic” and “foreign” affairs. To the extent that Russia itself seeks to integrate into the global economy and to persuade others to invest in the country, how it deals with corruption and upholds the rule of law are very much the concerns of “outsiders.” Given that Magnitsky’s client was a major foreign investor in Russia, it was foolhardy for anyone in the Russian government to assume that the circumstances of his detention and death would not become an issue in Moscow’s bilateral relations with Western countries, beginning with the United States. Moreover, as much as the Kremlin may try to wish it away, the United States will never de-link how Russia conducts its domestic affairs from its diplomatic efforts to engage Moscow. The Russian government should have had no illusions that the Magnitsky case would not have had an impact on the U.S.-Russia relationship.

Nevertheless, the way in which the U.S. Congress has decided to weigh in on the matter is also problematic. Not because Magnitsky’s detention and death were outrages, and not because similar cases have highlighted a looming gap between Russian rhetoric about adhering to the rule of law and actual practice, but because of questions as to whether or not Congressionally-defined sanctions are the most effective tool for signaling both American disquiet as well as creating incentives for positive change.

To begin with, I tend to agree with the principle affirmed by the Supreme Court in the landmark ruling in United States vs. Curtiss-Wright Export Corporation, that the executive is the “sole organ of the federal government in the field of international relations” (299 U.S. 304 (1936)). Congress passes the enabling legislation that permits the executive branch to take action, and thereafter is free to give the president its advice and counsel, most notably through “sense of the House or Senate” resolutions. Both the George W. Bush and Barack Obama administrations have stressed this point in signing statements attached to various bills: Congress can advise, but cannot usurp, the president’s right to carry out foreign policy.

An American president already has an extensive toolkit to use against violators of human rights, including visa bans and asset freezes. Indeed, many of the individuals involved in the Magnitsky affair were sanctioned by the Obama administration in summer 2011. So, why the need for further Congressional action? Part of it is rooted in what legendary New York Times A. M. Rosenthal observed back in the 1990s when looking at executive orders barring trade with Iran: “[W]hat the President giveth he can canceleth.” The concern that a president may roll back sanctions even if a majority of the members of Congress wants them to continue is therefore a driving force to give sanctions “the non-cancelable stability of legislation,” as Rosenthal put it. Similarly, with the Magnitsky act, Congress is saying to President Obama that they do not fully trust his stewardship of the U.S.-Russia relationship—and want to be able to have a direct impact on how that relationship is conducted.

The problem is, however, that Congress often reacts to a situation, deploys a sledgehammer when a scalpel might be the better tool. Jackson-Vanik, the famed predecessor legislation, is a good case in point. Designed to force the Soviet Union to permit more Jews to emigrate to Israel and to support human rights, it ended up seeing the numbers of émigrés drastically reduced and the fledgling human rights movement destroyed. Moreover, because it was designed to prevent then-presidents Richard Nixon (and subsequently Gerald Ford) from striking ad hoc, informal arrangements with their Soviet counterparts, it had no provisions for the president to waive the terms of the legislation and no mechanism for automatically graduating countries once they fulfilled the criteria of the act. Russia has been certified to be in compliance with the provisions of Jackson-Vanik for two decades. Other, smaller ex-Soviet states, ones with no powerful lobbies or interests in the corridors of Capitol Hill to plead their cases, saw their relations with the U.S. impeded by the dead hand of the legislation.