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Global Magnitsky Sanctions Export Human Rights Framework of the Sergei Magnitsky Act Globally, Assert U.S. Universal Jurisdiction Over the Corrupt Acts and Human Rights Abuses They Target, and Impose Financial and Immigration Sanctions

This post is an excerpt from the second part in a MassPoint series on the Global Magnitsky Act and Sanctions; the first in the series is available here. Future installments will discuss, among other topics, details of the key legal authorities for the Sanctions—the Global Magnitsky Act and Executive Order 13818—as well as the substantial differences between them (hint: EO 13818 significantly expands the scope and reach of U.S. sanctions). For more information about the series or MassPoint’s other publications or services, please contact the author, Hdeel Abdelhady, at habdelhady@masspointpllc.com or +1-202-630-2512.

On December 20, 2017, the U.S. President issued Executive Order 13818 “Blocking the Property of Persons Involved in Serious Human Rights Abuse and Corruption.” The Order declares a “national emergency” with respect to “serious human rights” abuses and a broad range of corrupt acts that threaten “the stability of international political and economic systems” and “constitute an unusual an extraordinary threat to the national security, foreign policy, and economy of the United States.”

EO 13818 in substantial part implements the Global Magnitsky Human Rights Accountability Act (“Global Magnitsky Act”), a 2016 law that authorizes the President to freeze certain property and restrict the entry into the United States of “foreign persons” that the President determines, “based on credible evidence,” are responsible for certain corrupt acts and human rights abuses committed wholly or substantially outside of the United States (the “Global Magnitsky Sanctions”).

“The Global Magnitsky Act’s default position is the applicability of U.S. sanctions in response to acts wholly or substantially occurring outside of the United States.”

The Global Magnitsky Act Has its Roots in the Sergei Magnitsky Act of 2012

The Global Magnitsky Act builds and expands on the Sergei Magnitsky Rule of Law Accountability Act of 2012 (the “Sergei Magnitsky Act”). The Sergei Magnitsky Act requires the President to identify and impose sanctions on persons that the President determines, “based on credible information,” to be responsible for the “detention, abuse, or death” of Russian lawyer and whistleblower Sergei Magnitsky, who in 2009 died in prison in Russia after publicly accusing Russian government entities and officials of corruption and other wrongs. The Sergei Magnitsky Act addresses corruption indirectly, such as by identifying ways in which corruption impedes human rights protections and permits human rights abuses against individuals “seeking to expose illegal activities” by government officials.

The Global Magnitsky Act Exports the Human Rights Framework of the Sergei Magnitsky Act Globally

As the above description indicates, the Sergei Magnitsky Act targets persons and places tied to specific events that occurred in one country. Moreover, the Sergei Magnitsky Act can be read to have been adopted or operate as an alternative or last recourse for justice and accountability, following Congress’ findings that there was a denial of “any justice or legal remedies” to Mr. Magnitsky by “all state bodies of the Russian Federation” and “impunity since his death of state officials.”

In contrast, the Global Magnitsky Act contains no analogous Congressional findings, nor does it expressly state or imply that it is a last or alternative resort where adequate legal processes to adjudicate corruption or human rights abuses are unavailable in foreign countries where relevant events took place or parties are located, or before foreign tribunals to which relevant states have submitted to jurisdiction. Instead, the Global Magnitsky Act’s default position is the applicability of U.S. sanctions (supported by “credible evidence”) without the requirement of a jurisdictional nexus with the United States. Accordingly, the Global Magnitsky Act asserts U.S. universal jurisdiction over the corrupt acts and human rights abuses it targets. EO 13818 goes much further, as discussed in detail in forthcoming installments of this MassPoint series.

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Post Author: MassPoint PLLC

MassPoint PLLC is a boutique law and strategy firm that works with diverse clients to meet legal, strategy, and risk management needs in a globalized, complex world.