Academic journal article Houston Journal of International Law

In Memory of Sergei Magnitsky: A Lawyer's Role in Promoting and Protecting International Human Rights

Academic journal article Houston Journal of International Law

In Memory of Sergei Magnitsky: A Lawyer's Role in Promoting and Protecting International Human Rights

Article excerpt

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.

I.     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. …

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