1. Introduction
As
we approach a new millennium in a changing international atmosphere, the
imperative of respect for the rules of international law governing conduct of
relations among various international actors becomes ever more apparent. The
collapse of the bipolar international system, coupled with increasing
globalization and global interdependence -- that has somewhat justified the
application of the concept of “global village” -- requires the prevalence of the
rule of law which makes relations in
this emerging community more predictable and more dependable.
It
was in this context, that the Non-Aligned Movement proposed in 1989 to launch
the United Nations Decade of International Law, because of the conviction that
there was a very urgent need for development of international law, promotion of
acceptance of its principle and enhancing of respect for the rule of law in
international affairs. The expectations of the international community
following the end of Cold War for emergence of such a rule based global order
were also manifested at the United Nations Congress on Public International
Law, which emphasized that international law should become the common language
for international relations.
The
rule of law requires collective decision-making in the international community
-- and as far as possible even collective implementation. It is only through this process that the
views and interests of all could be maintained and ensured. Progressive
development of international is inherently a collective exercise and can only
find meaning when it is done through a process of consensus formulation in the
international community.
Yet,
there is a growing tendency among very few powerful states to insist on
unilateral measures. One of the most extreme forms of such unilateral measures
take the form of extraterritorial application of national legislation in the
form of economic sanctions imposed against third parties which has become an
instrument of foreign policy to advance national agenda. This practice which
does not evolve around a consensus-building process, if not totally
antithetical to the rule of law, can indeed create no legal norm or obligation
for members of the international community.
It
has been pointed out that "sanction can offer a nonmilitary alternative to
the terrible option of war". Yet,
such extra-territorial sanctions clearly disturb the conduct of normal
international economic relations. Resentment against the extra-terrestrial
effects of national legislation has been voiced by many scholars, jurist and
practitioners.
2.
Extraterritorial Jurisdiction in International Law
Although
international law does not provide a uniform set of provisions concerning the
limits of extraterritorial jurisdiction, the criteria to test the
extraterritorial effects of administrative, judicial and legislative acts of
states is to see whether or not the act in question is compatible with
universally-accepted norms of international law. Professor Stern, in analyzing the legality of
unilateral measures, suggests that "in order to know whether or not a
unilateral measures of a state is allowed in international law, that measure
will have to pass successive tests". She is of the view that "first
it should be asked if unilateral measure was in conformity with the material
obligations of that state, and then to verify that it did not become illegal
because the manner in which it was applied which infringed the sovereignty of
other states".[1]
There
are few exception on the exercise of territorial jurisdiction which more or
less have received the recognition in the community of states, including
jurisdiction over nationals for offenses committed abroad, jurisdiction in
select cases of treason, homicide and competition regulations.
3. Impermissibility of Extraterritorial
Sanctions
Notwithstanding
the divergence of view as to the acceptability or reasonableness of exercise of extraterritorial jurisdiction,
and without entering into the debate on the question of the nature and the type
of jurisdiction, the practice of states indicates that they oppose the
extraterritorial application of national legislation, particularly when it aims
at third parties. When a state legislates for conduct of foreign states or
persons, it is usurping the sovereign rights of foreign countries.
Extraterritorial measures infringe various principles of international law and
adversely affect trade and economic cooperation among countries.
In
a brief look at the unilateral measures with extraterritorial effects, we may
clearly note that following principles of international law are at stake:
3.1. The Principle of Sovereignty and
Territorial Integrity of States
Territorial
sovereignty is an essential foundation of contemporary international relations.
International law has evolved and developed upon this foundation. Without
respect for sovereignty, there will be no internationally accepted norms and
rules of conduct. The imperative of respect for sovereignty, sovereign equality
and territorial integrity of states has been incorporated in a number of
international instruments, inter-alia, the Charter of the United
Nations, the Manila Declarations on the Peaceful Settlement of International
Disputes and the Declaration on the Principles of International Law concerning
Friendly Relation. Furthermore, reference may be made to various judgments of
the Permanent Court of International Justice and the International Court of
Justice, decisions of other international fora, and views of prominent jurists
in which the paramount importance of the principle of territorial sovereignty
have been underlined.
The
ruling in the famous S. S. Lotus Case provides the limits of state
jurisdiction, which in the view of the Court are necessary in order to avoid
anarchy in international community:
Now
the first and foremost limitation imposed by international law upon a state is
that -- failing the existence of a permissive rule to the contrary -- it may
not exercise its powers in any form in the territory of another state. In this
sense, jurisdiction is certainly territorial; it can not be exercised by a
state outside its territory... In these circumstances, all that is required of
a state is that it should not overlap the limits which international law place
upon its jurisdiction."[2]
Extending
the jurisdiction of certain domestic decisions and legislation beyond the
state's boundaries by definition involves violation of sovereign rights of
other states particularly as regards the application of those rights within
their own territorial jurisdiction.
Thus, with very few exceptions, extraterritorial application of domestic
laws runs contrary to the principle of sovereignty, sovereign equality and
territorial integrity of states, and impermissible under international law.
3.2. The principle of
Non-Intervention
The very well established principle of non-intervention
constitutes a foundation for avoidance of anarchy in world order and is thus a
fundamental norm of international law incorporated in many legal instruments,
various commentaries, several resolutions of the General Assembly of the United
Nations and other fora, and in numerous judgments of the International Court of
Justice. It strongly rejects intervention and interference in both internal and
external affairs of other states. This principle is considered a corollary of
the principle of sovereign equality of states. The International Court of
justice in elaborating the principle has ruled that:
In
the view of the generally accepted formulations, the principle forbids all
states or groups of states to intervene directly or indirectly in internal or
external affairs of other states. A prohibited intervention must accordingly be
one bearing on matters in which each state is permitted by the principle of
state sovereignty, to decided freely. One of these is the choice of political,
economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such
choices, which must remain free ones.[3]
The
final Acts of the Conference on Security and Cooperation in Europe reiterates
the prohibition of intervention by provision of Article IV that:
The
Participating states will refrain from intervention, direct or indirect,
individual or collective, in the internal or external affairs falling within
the domestic jurisdiction of another participating state, regardless of their
mutual relation.[4]
Imposition
of extraterritorial sanctions against third parties interrupts economic
cooperation and trade relations among sovereign states. The Helms-Burton and
D’amato Acts, which respectively seek explicitly to overthrow the Fidel Castro
Government and change the Iranian domestic and foreign policy, and for that purpose, set rules of conduct for
any person in the world, could indeed be considered clear cases of violation of
the universally accepted principle of non-intervention in internal and external
affairs of other states and the principle of territorial sovereignty.
3.3. The Principle of Self-determination:
One
of the main features of the principle of self-determination is freedom of
people to determine their own choice of political, economic, social and
cultural system, and it is no other state's business to dictate a particular
form of government or to advise and ask for any changes in the exercise of
sovereign rights of a country. International jurisprudence has recognized early
on that in the absence of treaty restrictions, states have complete freedom in
their economic activities. Economic independence is, therefore, an essential
part of sovereignty and any threat to such economic independence is tantamount
to a threat to sovereignty as such.”[5]
This
principle has been emphasized in numerous resolutions of the UN and many
regional and international conventions.
Article 32 of the Charter of Economic Rights and Duties of States
stipulates that "No state may use or encourage the use of economic,
political or any other type of measures to coerce another state in order to
obtain from it the subordination of its sovereign rights." Moreover the
reasoning of the International Court of Justice in the case concerning Military
and Paramilitary Activities In and Against Nicaragua clearly indicates that the
Court considered any attempt to subordinate the right of a people to determine
their cultural, economic, and political systems and their foreign policy agenda
constitute an unlawful coercion.
Extraterritorial
application of national laws such as Helms-Burton and D’amato aim at
restricting the right of the peoples of the target states to determine their
approach to domestic and international issues violates their right to
self-determination.
3.4. The Right to Development
As the Vienna Declaration and Program of Action of June 25,
1993 has delineated, the Right to Development has become a "universal and
inalienable right and integral part of fundamental human rights." The
Declaration on Right to Development describes this principle as "an
inalienable human right by virtue of which every human person and all peoples
are entitled to participate in, contribute to, and enjoy economic, social
cultural and political development, in which all human rights and fundamental
freedoms can be fully realized."[6]
The application of economic coercion, especially
when it is used against developing countries, infringes the international law
of human rights. Paragraph 4 of the Human Rights
Commission Resolution entitled "Human Rights and Unilateral Coercive
Measures" expressly lists restrictions on trade, blockade, embargoes and
freezing of assets as coercive measure constituting human rights offenses.[7]
Furthermore, as S.K. Chatterjee has pointed out:
Development
being a value-oriented concept may vary from society to society. In this
process of value-oriented development these is no room for imposition of one
person's values on others.[8]
3.5. Countermeasures
The
coercive economic measures adopted by the United States in the form of
extraterritorial sanctions against Iran, Cuba and Libya are not justifiable as
countermeasures. The contemporary international law restricts the extent to
which an injured state may resort to economic or political coercion by way of
countermeasures. Firstly, only the injured of victim state is entitled to
resort to countermeasures as defined and limited by international law.
Secondly, resort to specific types of countermeasures are prohibited. The
International Law Commission listed the "extreme economic or political
coercion designed to endanger the territorial integrity or political
independence of the state" among the outlawed countermeasures.
3. 6. Dispute Settlement:
The
recourse to dispute settlement procedure is the mandatory norm in nearly all
bilateral, multilateral and global instruments dealing with various subject
matters of political, economic, social, cultural, scientific and technical
nature. Therefore, any state has to exhaust all available dispute settlement
procedures before taking a unilateral action or countermeasure. The
"Understanding on Rules and Procedures Governing the Settlement of
Disputes" adopted as an annex to the Agreement Establishing the World
Trade Organization (WTO), inter alia, incorporate restrictions on the
use of individual countermeasures. A similar provision exists in the "
North American Free- Trade agreement (NAFTA).
4. Impermissibility of Unilateral Imposition of
Sanctions
Some
of the most famous contemporary cases of extraterritorial application of
domestic law also include imposition of unilateral sanctions. The imposition of sanctions is permissible
only by the United Nations under Chapter VII of the Charter in order to give
effect to Security Council decisions with respect to maintaining or restoring
international peace and security. Thus, unilateral resort to the economic
measures by any individual states to coerce another sovereign state to obtain
from it the subordination of its sovereign right is illegal and has no place in
the international law. The UN General Assembly has repeatedly denounced
unilateral economic coercion as a means of achieving political goals. For
example the embargo against Cuba has been considered as internationally illegal
by the General Assembly and contrary to the sovereignty of state and the
principle of non-intervention.[9] Furthermore, General Assembly resolution,
50/10 while expressing concern over "application by member states of laws
and regulations whose extraterritorial effects affect the sovereignty of other
states and the legitimate interests of entities or persons under their
jurisdiction, and freedom of trade and navigation" reiterates its call to
all states to refrain from promulgating and applying such laws and measures in
conformity with their obligations under the Charter of the United Nations and
international law.
5. Concluding Remarks
The
economic sanctions imposed on Cuba, Iran and Libya are examples of a post-cold
war trend to use U.S. economic power to achieve diplomatic ends. While
American international lawyers are divided in their opinion as to whether the
provisions of the Helms-Burton and D’amato Acts violate international law,
there is general agreement among other jurists and governments that they do.
The inter-American Juridical Committee in August 1996 observed that “all states
were subject to international law in their relations and no state might take measures
that were not in conformity with
international law without incurring responsibility". Some aspects of
incompatibility of those acts with international law where detailed in a
report. The views of the governments of European states, Canada and Mexico on
the incompatibility of secondary sanctions with international law have also
been widely published.
The serious international opposition to US unilateral measures, particularly those with an extraterritorial dimension, indicates that the world community has detected the gravity of this new tendency and its implications which go will beyond the attempt by the United States to implement its hostile policy against Iran or a few other states.
The
response to the imposed sanctions against third parties by the community
of states has taken various forms of
protection and counteraction. In addition to diplomatic negotiations and
objections voiced through many statements, declarations and resolutions,
governments and regional and international organizations have embarked on the process of enacting
"blocking" statutes and "claw-back" provisions.
The
gravity of unilateral measures and particularly secondary sanctions and their
implications which disturb economic cooperation and commercial relations of
states in violation of many norms of international law compel us to carry out a
comprehensive study to find a way out of this serious situation, otherwise as
Professor Vauyhan Lowe asserts:
The
simple fact is that these problems will continue as long as states persist in
using business as tools of and over-reaching foreign policy and do so in a
manner which displays a cavalier indifference to the constraints of the rules
of the international law.[10]
[1]
Brigitte Stern, “Can the
[2] PCIJ Series A, No. 10, pp. 18-19
[3]
ICJ Report, Case Concerning Military and Paramilitary Activities In and
Against
[4]
Conference on Security and Cooperation in
[5] See the
Austria-German Customs Union Case (1931), refereed to in "Recent US Trade
Restriction Affecting Cuba,
[6]General
Assembly Resolution XLI of December 4, 1984.
[7]See
Resolution dated March 4, 1994 of the United Nations Commission on Human
Rights.
[8]
S.K. Chatterjee, “International Law of Development”, in Encyclopedia of
Public International Law, Volume 9, p. 200.
[9]See Resolution 47/19 of 24 November, 1992; 48/16 of 3 November 1993; 49/9 of 26 October 1994; and 50/10 of November 1995.
[10] Vauyhan Lowe ,"US Extraterritorial Jurisdiction: The Helms-Burton and D’amato Acts", International and Comparative Law Quarterly, April 1997.