IN MEMORY OF SERGEI MAGNITSKY: A LAWYER'S ROLE IN PROMOTING AND PROTECTING INTERNATIONAL HUMAN RIGHTS.

Author:Wilson, Thomas H.
 
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ABSTRACT

Private practitioners can, and should, play a larger role in the promotion and protection of human rights through their representation of clients and the standards to which they hold themselves professionally. Since the United Nations' introduction of international human rights concepts to the world community, we, as a global community, have struggled to find ways to enforce the rights we have sworn to protect. International and domestic enforcement mechanisms are limited in their ability to protect the rights of individuals who are outside the jurisdictional reach of those laws. In response, members of the international community developed and deployed--and are continuing to develop and deploy--new alternative enforcement strategies, many of which target transnational companies. Lawyers who represent transnational companies must recognize the latent liability international human rights violations pose to their clients' businesses. Further, lawyers must counsel their clients on how to identify and mitigate (or avoid altogether) lurking human rights violation risks. In an effort to facilitate this outcome, bar associations and professional legal organizations have begun tackling human rights issues through direct advocacy and educational efforts, and by considering amendments to Rules of Professional Conduct. By raising awareness of international human rights issues among members of the legal profession, not only will attorneys provide better counsel and advocacy for their clients, they will also be working to create a more just world.

  1. INTRODUCTION II. WHAT'S BEEN DONE: A BRIEF HISTORY OF INTERNATIONAL HUMAN RIGHTS AND THE EXISTING INTERNATIONAL LEGAL FRAMEWORK A. International Policies and Frameworks B. International Enforcement Mechanisms III. THE "HARD LAW" PROBLEM: LIMITATIONS ON ENFORCING INTERNATIONAL HUMAN RIGHTS THROUGH TRADITIONAL LEGAL MECHANISMS IN THE UNITED STATES IV. COMBATTING HUMAN RIGHTS VIOLATIONS: ALTERNATIVE ENFORCEMENT MECHANISMS A. The Magnitsky Act(s) Revisited B. The United Kingdom's Modern Slavery Act of 2015 and Australia's Proposed 2018 Modern Slavery Act C. Alternative Non-Legal Enforcement Concerns V. PROMOTING INTERNATIONAL HUMAN RIGHTS THROUGH THE LEGAL PROFESSION VI. PRACTICE POINTERS AND CONCLUSION I. INTRODUCTION

    The importance of, and the role attorneys can play in, promoting and protecting international human rights can best be demonstrated through the deplorable treatment of Russian attorney Sergei L. Magnitsky at the hands of his own government. The treatment of Sergei Magnitsky serves as a shocking illustration of the position attorneys occupy, and the ability they possess to raise awareness of corruption and abuse, as well as the grave injustices visited upon victims of human rights violations.

    Sergei Magnitsky was a Russian tax attorney who uncovered a tax fraud embezzlement scheme linked to the Russian government. (1) The scheme was perpetrated against investment fund Hermitage Capital Management and its London-based hedge fund manager William F. Browder, who at one time was the largest portfolio investor in Russia. (2) Using stolen Hermitage Capital Management documents, certain Russian Interior Ministry officials, and others at their direction, filed tax refund claims amounting to $230 million in an attempt to claim refunds on alleged tax overpayments made by Hermitage Capital Management. (3) After Magnitsky uncovered the tax scheme, he went to the authorities with this information. Magnitsky was then arrested by Interior Ministry officials, who claimed he had evaded paying taxes and embezzled money. Magnitsky was held without bail on charges of assisting in a $17.4 million tax fraud. (4)

    In prison, Magnitsky was subjected to subhuman treatment. He developed abdominal pains, was refused medical treatment on multiple occasions, and was eventually beaten to death. (5) After Magnitsky's death, a Russian report concluded that the investigation into Magnitsky's alleged crimes, conducted by the Interior Ministry officials who Magnitsky had accused of embezzlement, was tainted by "obvious conflict[s] of interest." (6) The report also concluded that while in prison, Magnitsky was "completely deprived of medical care before his death" and ultimately subjected to "inhumane and humiliating" treatment. (7)

    Magnitsky's treatment and the circumstances surrounding his death sparked a global response. Due in part to Browder's unrelenting advocacy, the United States passed the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 ("Magnitsky Act"). (8) Although the stated purpose of the Act was to establish normal trade relations with Russia, (9) the Act actually "target[ed] individuals who are responsible for or participated in efforts to conceal the legal liability for, or financially benefitted from, the detention, abuse, or death of Sergei Magnitsky, or were involved in the criminal conspiracy uncovered by Magnitsky." (10) The Act emphasized the importance of international human rights by stating that "[h]uman rights are an integral part of international law, and lie at the foundation of the international order," and by outlining the various ways in which Magnitsky's human rights were violated by Russia. (11) Specifically, the 2012 version of the Magnitsky Act required the President to compile a list of Russian citizens connected to Sergei Magnitsky's murder and submit that list to Congressional committees. (12) Once compiled, Congress had the power to prohibit those individuals from entering the United States and to freeze any assets they hold in the United States. (13) Through the Magnitsky Act, Congress blocked eighteen Russian officials and businessmen from entering the United States and froze all identified individuals' assets located within the United States. (14)

    The Magnitsky Act has had a significant impact on Russian human rights abusers by restricting their movements and limiting their investment opportunities. The Act's effectiveness is evidenced by the Russian government's continued and substantial efforts to (1) punish the United States for passing the Act, (15) (2) discredit Magnitsky and Browder, (16) and (3) have the Act repealed. (17)

    Sergei Magnitsky's actions serve as a reminder of the importance of the rule of law and that lawyers are in a unique position to both protect and promote international human rights. There are many ways private practitioners can work through their practices and use their unique skill sets to protect and promote international human rights. On one hand, lawyers can work to protect human rights indirectly by counseling clients on how to avoid or mitigate the existence or development of human rights violations in their businesses. Additionally, attorneys can protect and promote human rights directly through the legal profession by incorporating international human rights concepts into the ethical and professional rules, by educating fellow attorneys, and through direct advocacy.

    Human rights violations represent manifest injustices and result from abusive imbalances of power. (18) Sergei Magnitsky's efforts to combat corruption and his death at the hands of human rights abusers serves as a disturbing beacon--a call for all attorneys to seek justice by promoting and protecting international human rights. His sacrifice renewed global interest in developing and implementing legal and extralegal solutions designed to deter future international human rights abuses. As attorneys, we can and should defend his legacy by actively incorporating international human rights issues into our practices, ensuring his sacrifice was not in vain.

    Part I of this article will provide an overview of how international human rights have developed and been traditionally enforced. Part II will discuss the limitations of those enforcement mechanisms. Part III will focus on alternative enforcement strategies and how those strategies affect transnational corporations (19)--which are particularly relevant to private practice. Part IV will outline recent developments in the legal profession by bar associations--namely the State Bar of Texas--which are designed to help attorneys better identify and address international human rights in their practices. Lastly, Part V will discuss practical steps attorneys can take to better integrate international human rights issues into their practices.

  2. WHAT'S BEEN DONE: A BRIEF HISTORY OF INTERNATIONAL HUMAN RIGHTS AND THE EXISTING INTERNATIONAL LEGAL FRAMEWORK

    Despite the enumeration of certain individual rights in several Western democracies' foundational documents, (20) human rights issues were conspicuously absent from the international stage until recently. Prior to the twentieth century, those human rights that had been recognized and incorporated into legal frameworks were, for the most part, a creature of domestic, national law. (21) The first modern effort to secure human rights at the international level occurred just after World War I with the League of Nations. (22) But it was not until the human rights atrocities witnessed during World War II that the international community came together to champion the creation and enforcement of human rights on an international scale. (23) This post-WWII endeavor yielded the United Nations, an international institution formed to not only safeguard global peace, but to protect human rights as well. (24)

    1. International Policies and Frameworks

      In 1946, the United Nations established the Commission on Human Rights to set standards governing the conduct of member nation states in regard to international human rights. (25) Out of the Commission came the Universal Declaration of Human Rights ("UDHR"). (26) The promulgation of the UDHR in 1948 is seen as a watershed moment for the development of international human rights. (27) The adoption of the UDHR marked the first instance in which the international community...

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