Ingrid Burke, RAPSI

Russia’s ban on the adoption of its orphans by American citizens was fast-tracked in the aftermath of the US decision to impose sanctions against certain Russian individuals believed to have violated human rights in the context of the 2009 death of attorney Sergei Magnitsky in a Moscow pre-trial detention center.

Background: the Magnitsky Act & the Dima Yakovlev Law

According to its own text, America’s Sergei Magnitsky Rule of Law Accountability Act of 2012 (Magnitsky Act) aims: “[t]o impose sanctions on persons responsible for the detention, abuse, or death of Sergei Magnitsky, for the conspiracy to defraud the Russian Federation of taxes on corporate profits through fraudulent transactions and lawsuits against Hermitage, and for other gross violations of human rights in the Russian Federation, and for other purposes.”

Russia’s answer to the Magnitsky Act came in the form of the Dima Yakovlev Law, named for a two-year-old Russian boy who died of heatstroke after his adoptive US father left him locked in a car for hours on a hot summer day in 2008. His father was later acquitted on charges of involuntary manslaughter, inciting a wave of criticism in Russia.

The bulk of the Dima Yakovlev Law centers on the activities of Americans who, in one way or another, are seen as having undermined the fundamental human rights and freedoms of Russian citizens. Toward this end, the law imposes a ban on the entry into Russia of certain US citizens found to have violated such rights and freedoms, and provides for a freeze on these individuals’ assets. It further provides for the suspension of the activities of politically minded NGOs receiving US funding, and prohibits American nationals with Russian citizenship from NGO involvement.

The adoption article prohibits US citizens from adopting Russian children and provides for the termination of the US/Russia adoption Agreement signed by both countries in 2011. In signing the bill into law, Russian President Vladimir Putin issued a decree aimed at improving conditions for Russian orphans. The multifaceted decree took aim at a number of overarching policy goals and called for the establishment of perks for Russian adoptive parents.

The law’s entry into force on January 1, 2013 gave rise to a host of issues surrounding the terms of the Agreement’s termination, the resolution of which will prove crucial for the orphans and families whose adoptions had previously been pending.

The US Department of State remains unclear on Russia’s termination intentions, pointing to a one-year notice clause provided for in the text of the Agreement.

For Russia’s Ministry of Foreign Affairs, however, there is no question: the agreement has been terminated.

Article 17(5) of the Agreement Between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children states: “This Agreement shall remain in force until one year from the date that one of the Parties informs the other Party through diplomatic channels of its intention to terminate this Agreement.”

America's understanding of the Agreement's termination protocol

A press release issued by its Intercountry Adoption department last week stated that the Russian government had decided to “terminate the Agreement under Article 17(5).” The statement went on to explain that in accordance with the clause, the Agreement “will remain in force for one year, until January 1, 2014.”

State Department spokeswoman Victoria Nuland told reporters Wednesday, however, that at present, somewhere between 500 and 1,000 American families are at various stages of the process of adopting Russian orphans. On Tuesday, she explained that the fates of these “pipeline” adoptions remain unclear: “We would obviously like to see those adoptions be able to move forward. But we have now been informed by the Russian Government that they are going to formally suspend our agreement.”

So where do these families stand? Is the Intercountry Adoption department correct in assuming that the Agreement will remain in effect for one more year, in accordance with the text of its termination clause, or will Russia’s recent “suspension” of the Agreement serve to nullify the termination clause’s applicability?

Speaking with RAPSI Wednesday, State Department press officer Peter Velasco confirmed that at this point, the answers to these questions remain unclear, but that negotiations seeking such clarity remain underway between the US and Russia.

According to Velasco, “under [the State Department’s] reading of the agreement there is a termination clause which states that it would remain... for one year until January 1, 2014. So that’s our understanding of it.” He added that while the US remains committed to fulfilling all obligations under the Agreement as long as it remains in force, ambiguity surrounding its termination remains a crucial issue. In the midst of this ambiguity, the State Department is urging Russia on humanitarian grounds to follow through with the adoptions that remain in the pipeline.

He added that the State department is “very disappointed” with Russia’s decision to terminate the Agreement, noting that the adoption ban is inconsistent with the spirit of the agreement.

Russia's understanding of the Agreement's termination protocol

Russia’s Foreign Ministry released a statement Wednesday attributing the State Department’s confusion to an issue of semantics: “On January 1, the Foreign Ministry officially granted the US Embassy in Moscow a notification on the termination, rather than the ‘suspension,’ of the aforementioned agreement due to the commencement of the [Dima Yakovlev Law.] Any other interpretations, or attempts to misrepresent the nature of our position are unacceptable. We have ended the aforementioned agreement." 

Beyond the confusion posed by the suspension v. termination debacle remains the question of the one-year notification clause. The Foreign Ministry’s response doesn’t explicitly mention the one-year notification clause, and could be meant merely to clarify that the notification that was issued was meant to express an intent to terminate the Agreement, thus evoking Article 17(5), rather than rather than an intent to suspend, a move not provided for by the agreement.  

Velasco made clear that when referencing the Agreement’s notification clause and the ongoing negotiations arising therefrom, he was speaking from the vantage point of the State Department’s interpretation of the Agreement’s text, thus leaving room for the possibility that Russia’s Foreign Ministry might have its own interpretation.

The Agreement provides for such differing interpretations, stating in Article 17(7) that: “Any disputes between the Parties related to the interpretation or application of this Agreement shall be resolved through negotiations between the Executive Bodies of the Parties. If the said Executive Bodies do not reach an agreement, the dispute will be resolved through diplomatic channels.”

Inspiring hope that all of these concerns may be moot in the first place, Presidential Press Secretary Dmitry Peskov told RIA Novosti that: “Now, the Agreement remains valid.” He added that it will remain in effect for the rest of the year, and will expire on January 1, 2014.

Assuming that this does in fact represent President Putin’s official stance, it would likely give rise to a simple solution as “negotiations between the Executive Bodies of the Parties” is established by the Agreement as the first line of defense. 

Regardless of how it all pans out, somewhere between 46 Russian orphans (Russia’s estimate) and 500-1,000 American families (America’s estimate) are anxiously awaiting the dispute’s resolution as Russia and the US continue to grapple with their respective obligations under the Agreement’s termination.