In its time, Jackson-Vanik, a provision added to the Trade Act of 1974, was a model of effective U.S. rights-promotion policy. It linked granting of normal trade relations with then-communist states to their providing freedom of emigration to their citizens.
Until 1992, the president had to certify annually that the Soviet Union and its allies respected this fundamental human right for trade to proceed. The pressure on the Politburo in part compelled an opening, and millions of Soviet Jews and other minorities who faced systematic discrimination were able to emigrate.
If Russia's WTO accession talks conclude soon as hoped, Congress is likely to consider legislation exempting Russia from the amendment's provisions - although it has had no practical impact since the Soviet period, if Jackson-Vanik stays on the books, the US will be in violation of WTO rules and American firms would stand to lose big.
It is in this context that the Sergei Magnitsky Rule of Law Accountability Act of 2011, introduced by Sen. Ben Cardin (D-Md.), has received renewed interest from members. The bill would compel the Secretary of State to compile a list of those she has "reason to believe" are responsible for Magnitsky's persecution and death, the fraud committed against the company, Hermitage, he was representing at the time, as well as anyone else found to have violated the rights of those who exposed abuses by the Russian government. Those on the list would be denied visas and face asset freezes.
Some have claimed that this would represent an effective new forum for Congress to engage on these issues given the likely impending repeal of Jackson-Vanik. They're wrong.
First, while Jackson-Vanik dealt with a universal right on a global scale, this bill is targeted at one individual's case in a single country. While the U.S. government is in a position to make a judgment about another government's implementation of the freedom to emigrate, it cannot possibly make definitive public judgments - nor should it - about the guilt of individuals for a specific crime committed in a foreign country.
(That's not to say the State Department need grant individuals it suspects of criminal activities visas - indeed, applications from such individuals are denied regularly.) That the bill specifically calls for investigation of a private firm's claims of financial machinations by the Russian government is particularly inappropriate - all the more so given that the company is led by a British citizen who allegedly renounced his U.S. citizenship to avoid paying U.S. taxes.
Second, Jackson-Vanik was targeted at communist countries with entrenched one-party systems that by their nature systematically deprived their citizens of basic human rights. Russia's political system today, for all its many flaws, is not the Soviet Union of 1974; far from a consolidated democracy, it is also not a static autocracy.
Its transformation from the Soviet system - far more non-linear and drawn-out than Western observers predicted - is ongoing. Its legal system, for example, has undergone significant changes since Magnitsky's death to strengthen anti-corruption mechanisms and prevent pre-trial detention for all economic crimes. And the move to online tenders for government contracts has sparked unprecedented publicity surrounding kickbacks.
Clearly, all is far from roses, but the point is that Russians themselves, not the Secretary of State, are the only ones who can create accountability for Sergei Magnitsky's death and build the rule of law in their country. The United States can help, by facilitating their efforts, voicing support, speaking openly about cases like Magnitsky's, and drawing the Russian government into as many norm-based international institutions (like the WTO) that create binding legal obligations as possible.
Finally, unlike Jackson-Vanik, the Magnitsky legislation is unlikely to be effective. One thing is for sure: it will change the conversation in Moscow about his case. Currently, it evokes outrage among the politically active, but for Russia's largely apolitical new middle class, who saw in Magnitsky one of their own - a competent professional just doing his job - the case has been a rallying cry (if muted) to push behind the scenes for change.
If this bill passes, the conversation will be about the United States. It would provide convenient cover for the perpetrators of the crimes the bill sanctions, who can easily travel elsewhere and find other banks.
Congress deserves a voice on human rights and the development of the rule of law in Russia. When China's exemption from Jackson-Vanik was granted in the 1990s, the Congressional-Executive Commission on China, which monitors human rights and the development of the rule of law, was created.
A similar body could be created for Russia - though it’s important to manage our own expectations about creating change, as opposed to facilitating and assisting it, in complex societies like these.
Or Congress might consider a boost in funding for some of the innovative approaches to these issues pursued by the Obama administration, including efforts on U.S.-Russia civil society to civil society cooperation, that saw a group of Russian government officials and NGO leaders come to Washington earlier this month to meet with a wide array of relevant stakeholders and get into the nuts and bolts of anti-corruption measures. The bill before Congress, however, would not do justice to Magnitsky, or the legacy of Jackson-Vanik.
Samuel Charap is director for Russia and Eurasia at the Center for American Progress.