In December 2017, the Trump Administration promulgated the Global Magnitsky Sanctions pursuant to the Global Magnitsky Human Rights Accountability Act (the “Global Magnitsky Act“), the International Emergency Economic Powers Act and additional legal authorities (the “Global Magnitsky Sanctions“).
The Global Magnitsky Sanctions target certain corruption and human rights abuses worldwide. While just one of a number of U.S. sanctions programs, the Global Magnitsky Sanctions are, in scope and substance, extraordinary in an number of ways.
- First, the Global Magnitsky Sanctions require no jurisdictional nexus between the United States and the conduct and persons they target. Thus, the Global Magnitsky Sanctions are an assertion of U.S. universal jurisdiction over covered corrupt acts and human rights abuses.
- Second, the Global Magnitsky Sanctions define corruption broadly, well beyond bribery which is the primary or exclusive target of anti-corruption laws that typically apply to foreign corruption.
- Third, the Global Magnitsky sanctions effectively regulate and directly punish foreign government officials in the area of corruption and, in this respect, depart from other U.S. anti-foreign bribery law (namely the Foreign Corrupt Practices Act) and international frameworks (e.g., OECD and UN anti-corruption frameworks) that defer to national governments and laws to regulate and punish their own officials in connection with bribery and other corrupt conduct.
- Fourth, the Global Magnitsky Sanctions framework– particularly the Global Magnitsky Act– expressly carves out a role in the sanctions designation process for Congress, foreign countries and NGOs, vesting all three of these constituencies with formal and potentially powerful roles in the process of identifying and designating sanctionable conduct and/or persons. This aspect of the Global Magnitsky Sanctions framework is, like others, extraordinary and worth watching closely. (Watch this website and visit www.masspointpllc.com for more on this point).
- Fifth, the Global Magnitsky Sanctions, given their reach and the severity of the penalties they authorize, vest the United States– particularly the U.S. Executive Branch– with extraordinary enforcement powers, and decisions to impose sanctions will undoubtedly entail legal, policy and political considerations, each or a combination of which will likely give rise to controversy.
- Finally, for now, the Global Magnitsky Act and Sanctions (and the legal mechanics underpinning them, such as the assertion of universal jurisdiction) are likely to be further internationalized. Other countries have adopted versions of the Global Magnitsky Act and sanctions (e.g., Canada) and more are considering one or both (e.g., the United Kingdom).
The adoption by the United States of the Global Magnitsky Sanctions is a significant legal and policy development, both domestically and internationally. As stated in an earlier MassPoint PLLC article on the Global Magnitsky Sanctions, “the United States’ Global Magnitsky Act and sanctions program are singular in their force. Other countries have adopted versions of a Magnitsky Act . . . but none of these other Magnitsky frameworks rival the potential sweep and impact of the United States’ Magnitsky framework.”
The objective of this website is to provide analyses and updates on the Global Magnitsky Sanctions and related foreign and international developments and issues.
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