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Protesters demonstrating for the emigration rights of Jews in the Soviet Union, ‘Solidarity Sunday for Soviet Jewry,’ New York City, 1984Barbara Alper/Getty Images
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The Cold War Zombie Law That Uses Jews as an Excuse

Decades after Soviet Jews won their freedom, Washington still uses the Jackson-Vanik amendment to squeeze Kazakhstan and other Central Asian countries

by
Vladislav Davidzon
January 07, 2022
Barbara Alper/Getty Images
Protesters demonstrating for the emigration rights of Jews in the Soviet Union, 'Solidarity Sunday for Soviet Jewry,' New York City, 1984Barbara Alper/Getty Images

In hindsight, the supposedly peaceful dissolution of the Soviet Union more closely resembles the slow motion fragmentation of the Ottoman Empire than the Hegelian conclusion of history. The recent war between Armenia and Azerbaijan, the attempt by Belarusian strongman Alexander Lukashenko to flood Europe with refugees, and the extended standoff between Moscow and Kyiv are just a few of the most well-known ongoing crises. In the last few days, the president of Kazakhstan, Kassym-Jomart Tokayev, has declared a two-week-long state of emergency and invited Russian-led peacekeeper forces to intervene in nationwide protests over the price-controlled cost of gas. With years of pent-up anger at the Kazakh state now erupting on the streets, the country that shares a 5,000-mile border with Russia may be in the midst of a full-blown uprising, threatening the system that former President Nursultan Nazarbayev had stewarded since August 1991.

More sober-minded observers saw even at the height of those triumphalist delusions 30 years ago that the breakup of the USSR would not lead to the end of history, but instead unleash a host of regional nationalisms, local governance issues, border disputes, and conflicts with Moscow that would complicate the democratic transitions of newly independent countries. What was truly unpredictable, however, was the way in which certain aspects of Cold War great power diplomacy would continue to lumber on, zombielike, in today’s Central Asia.

For decades, the Soviet Union rigorously regulated the internal movement of its citizens while also banning them from crossing its borders. It was essentially impossible to leave the country or to emigrate abroad without official permission, which was by design a cumbersome and humiliating process, with most requests denied or requiring people to quit their jobs. The Soviet authorities had little interest in encouraging mass migration out of the workers’ paradise. The vast majority of Soviet citizens would never have a chance to see the outside world—at best they might enjoy a visit to the Warsaw Pact countries on a student exchange or work trip. Many Soviet Jews in particular worked in sensitive sectors, which convinced Soviet authorities to view their intention to abscond as a national security threat—especially as the refusenik movement began to spread in the late 1960s.

The ensuing American campaign to support the migratory freedom of Soviet Jews rallied American Jews of all different backgrounds. The Soviet Union was eventually forced to rescind its ban on Jewish refusenik emigration in the early 1970s, which led to Russophone Jewish diasporas stretching from Los Angeles to Tel Aviv and from London to Berlin, while the U.S. campaign would culminate in the passage of the Jackson-Vanik amendment to the Trade Act of 1974, denying permanent normal trading relations with the United States to nonmarket economies that restricted emigration rights. This piece of legislation would have far-reaching consequences for U.S. diplomacy over the next half century, and the movement as a whole was an international success, proffering a rare moment of heroic unity and collective achievement that American Jewry can still look back on with nostalgia and pride.

The name of the amendment came from its two Democratic co-sponsors: Sen. Henry M. Jackson of Washington and Rep. Charles A. Vanik of Ohio. It was swiftly signed into law by President Gerald Ford in January 1975 and would serve as the blueprint for future attempts to link U.S. human rights agendas around the world to bilateral trade relations. The 2012 Magnitsky Act would be based on similar premises, updating and in some cases replacing the previous iteration of the amendment. Jackson-Vanik was a resounding success of late-Cold War diplomacy, but its partial survival and continued usage in 2022 is curious. With the post-Soviet sphere once again in turmoil, and issues of migration back at the top of European and American concerns, now is a good time to take a closer look at it.

My own family was among the last cohort of émigrés to benefit from Jackson-Vanik before the Soviet Union finally disappeared. I arrived in New York City with my sister and grandmother on the last flight out of Moscow on Aug. 18, 1991—the morning of the hardline Communist coup that would fail to dislodge Gorbachev. I owe my own American citizenship to the amendment and the opportunity it provided my family to leave the collapsing Soviet empire. But the problem the amendment was designed to solve ceased to exist on Dec. 25 of that year, when the hammer and sickle flag was lowered for the last time from the Kremlin, and the constituent Soviet states (at least ostensibly) went their own ways.

Conventional accounts of the movement to free Soviet Jewry point to the fact that the Soviet Union complied with Jackson-Vanik (it did not have much choice if it wanted to preserve even the most basic trade relations), and slowly let large numbers of its Jewish population emigrate to Israel and America over the course of the following decade and a half. Some critics have been skeptical about the practical impact of the amendment, positing that it was mostly a feel-good gesture that shackled the hands of U.S. diplomats without even being primarily responsible for the ability of Jews to finally escape the Soviet Union. Regardless of its actual place in diplomatic history, the amendment does represent one of the more resounding and noble achievements of American Jewish communal lobbying of U.S. foreign policy: a gracious act by American Jews to aid their European brethren in what was still the wake of the Holocaust, resulting in (among other things) a robust Soviet Jewish immigrant literature, a subset of the great American émigré genre.

What is odd—and comes as a shock to many Americans who didn’t know—is that in 2022, the law is still more or less operational. Russia, Ukraine, and Moldova are now permanently off the list, having received permanent free trade status, while the dictatorship of Belarus is still on it (though Jewish life there is tolerated and indeed protected by the Lukashenko regime). Trade conditions for the nations that remain on the list are subject to an annual review process that requires documentation of their compliance with Jackson-Vanik, which many of them understandably view as an unnecessary indignity.

According to critics, the amendment’s requirements survive because they give American diplomats leverage in negotiations with post-Soviet states that remain on the list. The State Department, in other words, sees Jackson-Vanik requirements as a useful tool for shaping the behavior of states in Russia’s near-abroad, even though the once-embattled Jewish populations that used to live there have long since escaped to freedom.

Four of the five post-Soviet Central Asian states are still subject to the amendment’s requirements. Kyrgyzstan is the only one to have been permanently removed from the list, while Kazakhstan, Tajikistan, Turkmenistan, and Uzbekistan are still required to prove that they are not antisemites on an annual basis (if they want normal trading relations with the United States). Uzbekistan, where I was born and lived until I was 4 years old, has put serious lobbying efforts into being removed from the list. Yet of the post-Soviet nations who have yet to be freed of Jackson-Vanik, the government in Nur-Sultan has put the most time and resources into attaining permanent free trade status. Indeed, Kazakhstan’s efforts on this matter are perhaps the most illustrative of the amendment’s strange afterlife, which, according to Blair Ruble of the Woodrow Wilson Center represents “a solution to a non-existent problem in a non-existing country.”

Kazakhstan, home to numerous ethnic and religious minorities and great natural resource wealth, prides itself on being a beacon of tolerance and a magnet for foreign investment (time will tell how much this week’s fiery uprising will impact that reputation). It has now been two decades since Kazakhstan was granted “market economy country” status under U.S. and EU rules and over six years since it joined the World Trade Organization as a full member. The country has been a model partner for the United States in the campaign against al-Qaida and ISIS and is critical to regional security, sharing massive borders with China and Russia, being near Afghanistan and Iran, and sitting on the Caspian Sea. It is also one of the most demographically interesting countries in the world, containing 100 ethnic groups including not only Kazakhs but Russians, Ukrainians, Uzbeks, Uighurs, Tatars, and Germans.

Ironically, the Jewish community of Kazakhstan is mostly united and vocal in its support of the now-beleaguered Kazakh government. Organized Jewish life in Kazakhstan has existed for hundreds of years. Though Kazakhstan was briefly home to several thousand Jewish refugees during the Second World War, the community is now fairly small—there are an estimated 3,000 to 10,000 Jews living in the country. According to a State Department Report to Congress Concerning Emigration Laws and Policies of Kazakhstan, “The Jewish population in Kazakhstan, mostly European Jews who arrived during the Soviet period, fell from a reported 22,762 in 1979 to 18,379 in 1989, largely due to emigration. Since Kazakhstan became independent the Jewish population has been able to emigrate freely and a large percentage of this population has settled in Israel or the United States.”

There is, by all accounts, virtually no antisemitism or impediment to Jewish life or immigration coming from the Kazakh state. Indeed, the Kazakh Jewish community is quite well respected and looked after by the authorities in Nur-Sultan. Both local Jewish leaders and rabbis serving the community (including the chief rabbi of Kazakhstan, Yeshaya E. Cohen) have made numerous public statements testifying to their satisfaction with their relationship to the government. Several of them hold foreign passports.

When I went to the Kazakh Embassy in Washington to interview the ambassador to the United States, Yerzhan Ashikbayev, he was both gracious and very emphatic about the continued usage of Jackson-Vanik requirements as part of U.S. foreign policy. Ashikbayev, who was assigned to D.C. in April 2021, has put renewed effort into lobbying for Kazakhstan to be taken off the list.

“The amendment is now 47 years old, exactly as old as I am,” he told me with an affable chuckle. He pointed out that the State Department’s own International Religious Freedom and Human Rights reports have declared the issue to be resolved. “Overall, there are no incidents, we basically do not have antisemitism in our culture, and Kazakhstan has a hundred ethnic groups. We do not use the word ‘minority’ in our political lexicon, as we do not differentiate between citizens. We do believe that it is high time for the United States to finally make sure that Kazakhstan graduates from Jackson-Vanik.”

“Today we have seven synagogues functioning in the country,” Ashikbayev added, “and the annual pilgrimage to the grave site of Rabbi Levi Yitzchak Schneerson is the largest Jewish pilgrimage site in Central Asia.” (Schneerson was framed by the KGB, arrested, tortured, and exiled to Almaty, where he died during the Second World War.) “Jewish communities in Kazakhstan are thriving. And we have seen a major diplomatic breakthrough last year when the Abraham Accords were signed, but those same steps were taken by Kazakhstan almost 30 years ago when we established relations with Israel in 1992.”

I asked Ashikbayev if the annual waiver renewal process was a serious political and economic issue, or whether it was purely a matter of national pride. “In terms of the annual waiver renewal process, we do practically nothing, the U.S. State Department does that automatically every year and there is almost nothing needed from our side,” he said. “But from a political point of view it sends the wrong political message. If one is unaware of the country, you might think that it is one of the countries in the world in which the Jewish community has problems. … We do see bipartisan support over the past 10-15 years to repeal the law.”

The issue of the annual waiver renewal process and the lack of progress on repealing it is a bother to both the Uzbek and Kazakh authorities, but one private sector analyst with long experience in Central Asia and who has observed this situation in particular explained to me that the issue has had minimal effect on Kazakh business or politics over the years. “This is entirely a question of national pride for the government of Kazakhstan,” he said. A bill to “authorize the extension of nondiscriminatory treatment (normal trade relations treatment) to the products of Kazakhstan” was introduced in the U.S. House of Representatives in October, but is currently stuck in committee. A previous attempt to resolve the issue in Congress stalled in 2017.

“The State Department does not routinely comment on congressional inquiries,” a State Department spokesperson responded to my inquiries about the fate of the legislation. But the agency’s own Report to Congress Concerning Emigration Laws and Policies of Kazakhstan answers some relevant questions:

Kazakhstan’s constitution provides for the right to emigrate, and the government generally respects the right in practice. A law on national security prohibits persons with previous access to state secrets from taking up residence abroad for five years after that access. A permanent exit visa is required for emigrants, requiring criminal background checks, credit checks, and letters from parents and any dependents expressing no objection to the issuance of an exit visa. In practice, this visa requirement does not serve as a significant impediment to emigration.

A more relevant obstacle that remains in the way of Kazakhstan’s quest for trade normalization is an unresolved investment dispute. Though the country positions itself internationally as a safe haven for business, Kazakhstan has a lingering repetitional issue over its ongoing treatment of international bondholders, including the American fund manager Argentem Creek Partners. Argentem had invested in the country’s oil and gas industry in the mid-2000s, and saw those investments forcibly taken over by the Kazakh authorities in what an international tribunal later ruled was a coordinated campaign of harassment by various Kazakh officials and police. Argentem’s managers had a track record of investing in emerging economies and turning around troubled companies in countries like Ukraine.

For several years since, Argentem and the original owners of the seized energy assets have been pursuing compensation in international courts. In 2013, a Swedish arbitrator awarded the owners of the nationalized assets $500 million in damages. The Kazakhs can no longer appeal that ruling, but having lost their case, they have so far declined to compensate bondholders, including Argentem. Taking a calculated diplomatic risk, the government escalated last year by filing a countersuit in a New York court, which has so far only created more doubt about its approach to the rule of law. Until the investment dispute is settled, American supporters of trade normalization with Kazakhstan will remain in a relatively weak position, and Jackson-Vanik probably isn’t going anywhere.

When I asked Ambassador Ashikbayev whether the Americans have tried to link Kazakhstan’s trade status to the ongoing court drama, he denied “any linkage between these issues.” But a senior member of the U.S. government who is familiar with the particulars of the Kazakhstan portfolio told me on background, and quite bluntly, that normal trade relations will not be established until all outstanding accounts are settled. This seems to be a clear-cut case of the way that U.S. diplomats still use Jackson-Vanik to gain leverage in negotiations over issues that have nothing to do with the people the law was designed to help.

As the experienced private sector analyst explained to me, this law and procedure is a sword of Damocles that the Americans hold over the heads of the Central Asians, and it is indeed a humiliation to them. Sure, most bilateral negotiations contain an implicit quid pro quo that each country must balance against its national pride, he explained. Yet it also says a lot about the Kazakhs that they still care about this issue, where others might not care enough to keep pursuing it.

U.S. diplomats still use Jackson-Vanik to gain leverage in negotiations over issues that have nothing to do with the people the law was designed to help.

In the wake of the U.S. withdrawal from Afghanistan, American diplomats are in no mood to voluntarily shed whatever leverage they still have left, especially in a region where the two main actors are Russia and China. “Any little edge in these negotiations is very important, and they are always looking for a bit more leverage,” the analyst said. “The thought is that this is just a side issue dealing with a small minority—it can’t do any harm and there is no risk to anyone. Yet there is surely a bad feeling left over.”

Indeed, there is something off-putting, if not outright concerning, about the ongoing usage of the amendment in such cases. “We had very few tools to change Russian behavior in the post-Cold War period, and up until 1990, the immigration problem was indeed a very serious issue,” explains Ruble. “It was a tool that was on the books when there were very few other tools in the toolkit which could be used to change the behavior of Russia and other post-Soviet states. Thus it remained in usage long after Jewish emigration was no longer an issue and even long after the actual issues themselves became defunct.”

There are also those in the U.S. foreign policy community who see the amendment as an impediment to a practical sanctions campaign against Russia: If the U.S. refuses to repeal its sanctions laws, regardless of whether or not the target of the sanctions has changed its behavior, what incentive is there for Russia (or anyone else, for that matter) to make the concessions demanded by such laws?

Whether or not the continued usage of Jackson-Vanik in situations that have nothing to do with immigration rights proves to be a liability for American foreign policy more generally, it will almost certainly become a liability for Jews. If the State Department continues to try and shape the behavior of transitioning post-Communist states by conditioning normal economic relations on a phantom Jewish-related issue from several decades ago, it will not contribute to affection for the Jewish communities in those countries, even if sophisticated local elites know better.

For whatever it’s worth, this Central Asian-born Jewish American knows from experience and long observation that both Kazakhstan and my native Uzbekistan, at least, do not practice any form of state-sanctioned antisemitism. Their Jewish communities are for the most part prosperous, secure, and free to emigrate whenever they want. The lumbering zombie of Jackson-Vanik is, if anything, unhelpful to relations between Jews and non-Jews in Central Asian nations. Perhaps it would be best for everyone involved if this Cold War anachronism could be retired for good.

Vladislav Davidzon is a Russian American writer, translator, and critic. He is the Chief Editor of The Odessa Review and a Non-Resident Fellow at the Atlantic Council. He was born in Tashkent, Uzbekistan, and lives in Paris.

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