Jackson–Vanik amendment

The Jackson–Vanik amendment to the Trade Act of 1974 is a 1974 provision in United States federal law intended to affect U.S. trade relations with countries with non-market economies (originally, countries of the Communist bloc) that restrict freedom of emigration and other human rights.

The amendment, named after its major co-sponsors Henry M. "Scoop" Jackson of Washington in the Senate and Charles Vanik of Ohio in the House of Representatives, both Democrats, is contained in Title IV of the Trade Act of 1974. The Trade Act of 1974 passed both houses of the United States Congress unanimously, and President Gerald Ford signed the bill into law with the adopted amendment on January 3, 1975. Over time, a number of countries were granted conditional normal trade relations subject to annual review, and a number of countries were liberated from the amendment.

In December 2012, the Magnitsky Act was signed into law by President Obama, repealing the Jackson-Vanik amendment.^[1]

Background

Richard Perle, Jackson's staffer who drafted the amendment in an interview said that the idea belongs to Jackson, who believed that the right to emigrate is the most powerful among the human rights in certain respects: "if people could vote with their feet, governments would have to acknowledge that and governments would have to make for their citizens a life that would keep them there."^[2] While there was some opposition, the American Jewish establishment on the whole and Soviet Jewry activists (particularly the National Conference on Soviet Jewry) supported the amendment over Nixon and Kissinger's objections.^[3]

It is believed that item 3 addressed the "diploma tax" imposed in 1972 on would-be emigrants with higher education received in the Soviet Union. The Soviets announced the abolishing of the tax just before the introduction of the amendment in Congress, arguably in an attempt to prevent it.^[4]

Content

The amendment denies most favored nation status to certain countries with non-market economies that restrict emigration, which is considered a human right. Permanent normal trade relations can be extended to a country subject to the law only if the President determines that it complies with the freedom of emigration requirements of the amendment. However, the President has the authority to grant a yearly waiver to the provisions of Jackson-Vanik, and these waivers were granted to the People's Republic of China starting in the late 1970s and in later decades, to Vietnam and Laos.

The core provision of the amendment was codified as 19 U.S.C. 2432(a), Sec. 402 "Freedom of Emigration in East-West Trade" of the Trade Act of 1974 (Pub.L. 93–618, 88 Stat. 1978), which was enacted January 3, 1975:

(a) Actions of nonmarket economy countries making them ineligible for normal trade relations, programs of credits, credit guarantees, or investment guarantees, or commercial agreements

To assure the continued dedication of the United States to fundamental human rights, and notwithstanding any other provision of law, on or after January 3, 1975, products from any nonmarket economy country shall not be eligible to receive nondiscriminatory treatment (normal trade relations), such country shall not participate in any program of the Government of the United States which extends credits or credit guarantees or investment guarantees, directly or indirectly, and the President of the United States shall not conclude any commercial agreement with any such country, during the period beginning with the date on which the President determines that such country -

(1) denies its citizens the right or opportunity to emigrate;

(2) imposes more than a nominal tax on emigration or on the visas or other documents required for emigration, for any purpose or cause whatsoever; or

(3) imposes more than a nominal tax, levy, fine, fee, or other charge on any citizen as a consequence of the desire of such citizen to emigrate to the country of his choice,

and ending on the date on which the President determines that such country is no longer in violation of paragraph (1), (2), or (3).

Exit USSR visa of the type 2. For those who received permission to leave the USSR permanently and lost Soviet citizenship. Not all were able to receive this kind of exit visa

Effects

The countries subject to the amendment included the Soviet Union (and later the post-Soviet states), the People's Republic of China, Romania, Hungary, Czechoslovakia, East Germany, Bulgaria, Mongolia, Albania, Cambodia, Laos, and Vietnam.^[5]

Of Soviet Bloc countries, Poland was exempt from the Amendment, but from 1982 to 1987 its unconditional MFN status was suspended due to its actions against Solidarność. Yugoslavia was also exempt; however, in 1991-1992, due to violent events in the former Yugoslavia, the MFN status of Serbia and Montenegro was suspended.^[5]

Soviet Union

At first the Jackson–Vanik amendment did little to help free Soviet Jewry. The number of exit visas declined after the passing of the amendment.^[3] However, in the late 1980s Mikhail Gorbachev agreed to comply with the protocols of the Organization for Security and Cooperation in Europe. Lazin (2005) states that scholars differ on how effective the amendment was in helping Soviet Jews. Some argue that it helped bring the plight of Soviet Jews to the world's attention, while others believe it hindered emigration and decreased America's diplomatic bargaining power.^[3]

Since 1975 more than 500,000 refugees, large numbers of whom were Jews, evangelical Christians, and Catholics from the former Soviet Union, have been resettled in the United States. An estimated one million Soviet Jews have immigrated to Israel in that time.

Jackson-Vanik also led to great changes within the Soviet Union. Other ethnic groups subsequently demanded the right to emigrate, and the ruling Communist Party had to face the fact that there was widespread dissatisfaction with its governance.

Former Soviet dissident Natan Sharansky wrote in his 2004 book The Case for Democracy:

"...Kissinger saw Jackson's amendment as an attempt to undermine plans to smoothly carve up the geopolitical pie between the superpowers. It was. Jackson believed that the Soviets had to be confronted, not appeased.

Andrei Sakharov was another vociferous opponent of détente. He thought it swept the Soviet's human rights record under the rug in the name of improved superpower relations.... One message he would consistently convey to these foreigners (the press) was that human rights must never be considered a humanitarian issue alone. For him, it was also a matter of international security. As he succinctly put it: "A country that does not respect the rights of its own people will not respect the rights of its neighbors." (p.3)

Post-soviet states

Baltic states: Estonia, Latvia and Lithuania

Since Estonia, Latvia and Lithuania were subject to the Amendment due to their forcible incorporation into the Soviet Union, they were liberated from the Amendment upon their restoration of independence on September 6, 1991.^[5]

Kazakhstan

Kazakhstan’s Jewish community reportedly requested the US to cancel Jackson Vanik amendment for Kazakhstan. In an article titled “A Relic of the Cold War,” journalist Robert Guttman refers to the Amendment as an “outdated and rather meaningless piece of legislation.” The U.S. Chamber of Commerce argues that the application of Jackson-Vanik on Kazakhstan puts U.S. companies at a competitive disadvantage. ^[6] The Chamber urges the U.S. Congress to graduate Kazakhstan from Jackson-Vanik.^[6]

Kyrgyzstan

Kyrgyzstan first received conditional normal trade relations in 1992. In 1997 it for found fully compliant with the Jackson-Vanik provisions, but it status remained subject to annual review. On May 18, 2000, Public Law 106-200 authorized the President to extend unconditional normal trade relations to Kyrgyzstan.^[5]

Moldova

Moldova first received conditional normal trade relations in 1992. In 1997 it was found to be fully compliant with the Jackson-Vanik provisions, but its status remained subject to annual review.^[5]

On November 16, 2012 the U.S. House of Representatives passed a bill that would repeal the Jackson–Vanik amendment for Russia and Moldova. After approval by the Senate, the law repealing the effects of the Jackson–Vanik amendment on Russia and Moldova was signed by President Barack Obama on December 14, 2012.^[7]

Russia

On November 16, 2012 the U.S. House of Representatives passed a bill that would repeal the Jackson–Vanik amendment for Russia and Moldova. After approval by the Senate, the law repealing the effects of the Jackson–Vanik amendment on Russia and Moldova was signed together with Magnitsky bill by President Barack Obama on December 14, 2012. ^[7][8][9]

Ukraine

On December 6, 2005 the Anti-Defamation League (ADL) urged the United States House of Representatives to delay approval of Ukraine's graduation from the amendment. ADL National Director Abraham Foxman wrote: "We expect more from democratic states than we do from totalitarian ones. This year alone has seen a steep increase in acts of violence and vandalism against Jews across Ukraine. There have been attempts to ban everything from Jewish organizations to Jewish holy texts. The university MAUP... actively promotes anti-Semitism of the most vicious kind."^[10]

People's Republic of China

Until the accession of the PRC to the World Trade Organization in December 2001 the PRC was covered by the provisions of Jackson-Vanik. Although the President of the United States, starting in the late 1970s, used the waiver provisions of the amendment to grant normal trade relations trade status, the existence of the amendment meant that there was a congressional effort to overturn this waiver each year, creating a yearly controversy especially during the 1990s after the Tiananmen protests of 1989. Congress specifically removed the PRC from coverage by Jackson-Vanik in the late 1990s as part of its entry into the World Trade Organization, as the provisions of Jackson-Vanik were inconsistent with WTO rules.

U.S. legal challenge

In April 2011, American University in Moscow professor Eduard Lozansky and former Reagan administration official Antony Salvia filed a federal lawsuit in Washington D.C. against the Obama administration arguing the law is illegal.^[11][12]

See also

• Aliyah from the Soviet Union in the 1970s

References

Further reading

• Brumley, Robert H. (1990). "Jackson–Vanik: Hard Facts, Bad Law?". Boston University International Law Journal 8 (2): 363–372. 
• Jochnick, Christopher B.; Zinner, Josh (1991). "Linking Trade Policy to Free Emigration: The Jackson–Vanik Amendment". Harvard Human Rights Journal 4 (1): 128–151. 
• Korey, William (1988). "The Jackson–Vanik Amendment in Perspective". Soviet Jewish Affairs 18 (1): 29–47. doi:10.1080/13501678808577593. 
• Lazin, Fred A. (2011). "Jewish Influence in American Foreign Policy: American Jewry, Israel and the Issue of Soviet Jewry, 1968–1989". The Lawyer Quarterly 3 (1): 157–169. 
• McMahon, Michael S. (1980). "The Jackson–Vanik Amendment to the Trade Act of 1974: An Assessment after Five Years". Columbia Journal of Transnational Law 18 (3): 525–556. 

External links

• Subchapter IV—Trade Relations With Countries Not Receiving Nondiscriminatory Treatment