America's Abuse of "Long-Arm Jurisdiction" and Its Harm
February 2023
Table of contents
introduction
1. The Basic Situation of America's "Long-Arm Jurisdiction"
2. The implementation and expansion of the "long-arm jurisdiction" of the United States
3. The dangers of the US "long-arm jurisdiction"
conclusion
introduction
Historically, the United States has continuously and frequently implemented "long-arm jurisdiction" over countries.
Countries subject to the "long-arm jurisdiction" of the United States include both allies of the United States and countries that are hostile or have tense relations with it.
In recent years, the scope of jurisdiction has shown a trend of continuous expansion, and the long arm is getting longer and longer.
By citing examples of the United States' abuse of "long-arm jurisdiction," this report reveals in depth the serious harm it has brought to the international political and economic order and the international rule of law.
1. The Basic Situation of America's "Long-Arm Jurisdiction"
◆"Long-arm jurisdiction" in American law specifically refers to the jurisdiction exercised by the judiciary over persons or entities whose domicile or residence is outside their territory. It was originally established by the U.S. Supreme Court in the 1945 "International Shoe Company v. This kind of jurisdiction allows state courts, when trying civil and commercial cases, to exercise "personal rights" on the basis that the defendant has a "minimum connection" with the state in cases where the defendant's domicile is not in the state and the court cannot exercise jurisdiction. Jurisdiction".
◆According to international law, a country's exercise of jurisdiction over an extraterritorial person or entity generally requires that the person or entity or its actions have a real and sufficient connection with the country.
However, the United States adopts the "minimum connection principle" in exercising "long-arm jurisdiction" and continues to lower the threshold for exercising "long-arm jurisdiction".
Some kind of extremely weak connection with the United States, such as having a branch in the United States, using US dollars for settlement or other financial services, and using the US mail system, etc., constitutes a "minimum connection".
◆In order to achieve the purpose of "long-arm jurisdiction", the United States has further developed the "principle of effect", that is, as long as an act occurring abroad produces the so-called "effect" in the United States, regardless of whether the perpetrator has American nationality or domicile, and regardless of the Jurisdiction can be exercised regardless of whether the conduct complies with the law of the place where the conduct occurred.
The U.S. has also continued to expand the scope of its "long-arm jurisdiction," exercising excessive and unreasonable jurisdiction over people or entities outside the region, imposing U.S. domestic laws on non-U.S. Market and reliance on U.S. technology, punishing or threatening it.
◆Essentially, the US "long-arm jurisdiction" is an outrageous judicial practice in which the US government abuses "extraterritorial jurisdiction" over entities and individuals in other countries in accordance with its own laws, backed by US comprehensive strength and financial hegemony.
2. The implementation and expansion of the "long-arm jurisdiction" of the United States
◆In the process of long-term external use, the United States has gradually developed a huge, mutually complementary, and interlocking "long-arm jurisdiction" legal system, and has continuously lowered the threshold for strikes and expanded discretion. tool of interest.
This practice ignores the sovereignty of other countries and willfully interferes in the internal affairs of other countries, which seriously damages the legitimate interests of other countries and the normal order of international exchanges.
The expansion of "long-arm jurisdiction" in the United States is all-round. Relying on the "principle of minimum connection" and "principle of effect", a huge and complex "long-arm jurisdiction" legal system and enforcement system have been established, and the scope and scope of application have continued to expand.
◆"Long-arm jurisdiction" has also become a means for the United States to impose excessive unilateral sanctions, especially secondary sanctions. The United States often uses judicial power to pursue the legal responsibility of foreign entities and individuals that fail to comply with US sanctions laws to ensure the extraterritorial effectiveness of US sanctions laws be realized.
In addition to "long-arm jurisdiction", the United States also uses administrative, economic, financial and other means to implement secondary sanctions.
◆Compulsory extraterritorial evidence collection is another important way of "long-arm jurisdiction".
In the judicial proceedings involving other countries, the United States frequently takes unilateral coercive measures to obtain evidence outside the territory, bypassing the normal judicial and law enforcement cooperation channels between countries, and directly requires banks and Internet companies with branches or listed in the United States to provide them with evidence outside the United States. Account information, data and other evidence.
When negotiating with foreign countries, they often use excuses such as "judicial independence" and "low efficiency of normal judicial assistance or law enforcement cooperation".
This is a typical "long-arm jurisdiction", which seriously violates the judicial sovereignty of other countries and the legitimate rights and interests of the subjects of evidence collection.
◆The United States has established a whole-of-government "long-arm jurisdiction" implementation and operation mode in which various departments cooperate and act together.
The U.S. President and the U.S. Congress are the decision-makers of relevant sanctions. Most economic sanction decisions are made by the U.S. President, and the U.S. Congress participates in sanction decision-making through legislative activities under certain circumstances.
The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) is the core sanction enforcement agency. Its main responsibilities include freezing assets within U.S. jurisdiction, drafting and adjusting lists of sanctioned individuals and entities, and reviewing and issuing licenses.
The State Department's Office of Economic Sanctions Policy and Implementation (SPI) is responsible for formulating and implementing sanctions related to foreign policy.
The Commerce Department's Bureau of Industry and Security (BIS) administers the list independently of OFAC.
In addition, the U.S. government provides support for the enforcement of economic sanctions by controlling the two major cross-border fund payment and clearing systems, SWIFT and CHIPS, and when necessary, forces them to cut off ties with financial institutions in sanctioned countries to achieve the purpose of economic sanctions.
◆The United States continues to strengthen the "long-arm jurisdiction" legislation.
There are many laws in the United States related to "long-arm jurisdiction", mainly including the "Trading with the Enemy Act", "International Emergency Economic Powers Act", "Countering America's Enemies with Sanctions Act", "Foreign Corrupt Practices Act", "Helms-Burton Act" ", etc., the "Patriot Act", the annual "National Defense Authorization Act" and other laws also contain "long-arm sanctions" clauses, in addition to a series of presidential executive orders involving "long-arm jurisdiction".
More and more U.S. federal legislation contains long-arm clauses, the purpose of which is to prevent Americans from circumventing U.S. laws by setting up subsidiaries in foreign countries, to prevent foreigners from being less restricted than Americans, and to avoid irregularities in the formulation of relevant international rules. The situation is conducive to the national interests of the United States, so as to use the domestic law of the United States to realize the "long-arm jurisdiction" foreign policy.
◆The United States has a tendency to apply the concept of "long-arm jurisdiction" to criminal cases in the judicial field, which is an extreme abuse of "long-arm jurisdiction".
In recent years, many U.S. federal laws have provided for extraterritorial effect clauses, and the U.S. Department of Justice has begun to use these clauses to conduct criminal investigations and initiate criminal proceedings.
In these criminal proceedings, when examining the basis of its own jurisdiction, the federal courts have also begun to use the concept of "long-arm jurisdiction" to broadly interpret the connection between the case and the United States, continuously expand the scope of personal and territorial jurisdiction, and reduce the scope of protective jurisdiction. and universal jurisdiction and other jurisdictional thresholds.
3. The dangers of the US "long-arm jurisdiction"
◆The United States is the only "sanctions superpower" in the world.
According to the 2021 Sanctions Assessment Report issued by the U.S. Department of the Treasury, as of fiscal year 2021, the U.S. has imposed more than 9,400 sanctions that have taken effect.
◆Aggravate the tension between countries and impact the international order.
Healthy inter-state relations are the "ballast stone" for maintaining the peace and stability of the international order.
As early as the 1990s, the United States promulgated the "Helms-Burton Act", using the "long-arm jurisdiction" mechanism to impose economic sanctions on individuals and entities that conduct transactions with Cuba worldwide, which aroused strong dissatisfaction from the European Union.
The European Union passed the "Blocking Act" in 1996, which blocked the effect of the US "long-arm jurisdiction" measures in the EU in the form of legislation, and gave individuals and entities in the EU the right to sue US individuals and entities.
The EU frequently puts forward proposals and initiates initiatives in the United Nations General Assembly, the Security Council, the World Trade Organization and other international institutions, calling on the international community to pay attention to the dangers of the US "long-arm jurisdiction", and even launched the World Trade Organization dispute settlement procedure.
So far, the "long-arm jurisdiction" of the United States has involved China, Russia, Iran, Syria, North Korea, Cuba, France, the United Kingdom, Germany, Japan and many other countries.
Drezner, a professor at Tufts University in the United States, published an article in the "Foreign Affairs" magazine, criticizing that successive US governments have abused economic coercion and economic violence and used sanctions as the first choice to solve diplomatic problems. Humanitarian catastrophe.
◆Since 1979, the United States has imposed various unilateral sanctions on Iran and other countries for a long time.
In 1996, the so-called "D'Amato Act" was thrown out, prohibiting foreign companies from investing in the energy industries of Iran and Libya, and implementing "long-arm jurisdiction" that is extremely harmful and far-reaching.
Since then, the United States has increased its sanctions on Iran layer by layer and escalated step by step.
During the Trump administration of the United States, it imposed sanctions and "extreme pressure" on Iran in an attempt to use pressure to promote change and subvert the Iranian regime.
The then Iranian President Hassan Rouhani once stated that the Trump administration’s sanctions had caused at least 200 billion U.S. dollars in economic losses to Iran, and that the U.S. sanctions against Iran were inhumane, criminal and terrorist acts.
◆From 1980 to 1992, the United States imposed unilateral sanctions on Libya. From 1992 to 2003, the United States coerced and wooed its allies to expand unilateral sanctions on Libya.
The World Bank pointed out that Libya suffered economic losses due to sanctions as high as 18 billion U.S. dollars, and Libyan officials believe that the sanctions caused it to lose 33 billion U.S. dollars.
◆After the Gulf War, the United States imposed brutal unilateral sanctions on Iraq, causing serious consequences.
From August 1990 to May 2003, the sanctions resulted in a loss of US$150 billion in Iraq's oil revenues, resulting in Iraq's per capita annual income not reaching the level of 1990 (US$7,050).
In addition, the sanctions have also caused a severe humanitarian disaster in Iraq. The infant mortality rate in Iraq has doubled, and the mortality rate of children under five has increased sixfold.
At the same time, Iraq's education, medical care, and social security systems were destroyed, and the literacy rate dropped from 89% in 1987 to 57% in 1997.
◆Destroying the purpose and function of various international governance mechanisms.
The United States frequently implements unilateral sanctions outside the framework of the United Nations.
In 2021 alone, the U.S. Department of the Treasury, the Department of Commerce and other departments have imposed various sanctions against more than 2,000 entities.
As a result, the sanctions function of the Security Council has been impacted, seriously affecting its normal operation in maintaining international peace and security.
The U.S., which is not a member of the ICC, has imposed sanctions on ICC prosecutor Bensouda and another senior official, Mochochoko, over the ICC's attempts to investigate U.S. servicemen suspected of war crimes in Afghanistan. Aroused unanimous condemnation of international public opinion.
Regardless of its "301" measures have been ruled by the World Trade Organization Dispute Settlement Body as a violation of international law, the United States continues to launch various unilateral "301 investigations" on imports from China and other countries, and maintains the existing "301" Tariff measures have directly undermined the tariff concessions achieved by the multilateral trading system after many rounds of difficult negotiations, blatantly trampled on the purpose and spirit of the multilateral trading system, and damaged the cornerstone of the multilateral trading system.
◆Damage the interests of enterprises in other countries.
In order to maintain the leading position of the United States in economy and technology, the United States has abused its public power to interfere in normal international commercial transactions and competition, comprehensively used measures such as the export control entity list and economic sanctions, and restricted other countries under the pretext of national security and human rights violations. Chinese enterprises obtain raw materials, items and technologies that are crucial to their survival and development, and even use secondary sanctions to prohibit other enterprises around the world from conducting normal trade with them, in an attempt to fundamentally disrupt the supply chains of such enterprises .
◆The detention of senior executives of the French Alstom Group is a typical case.
In 2013, in order to win the business competition with Alstom of France, the United States used the Foreign Corrupt Practices Act to arrest Alstom executive Pierucci on the grounds of overseas bribery and induced him to sign a The plea agreement, based on which more evidence and information unfavorable to Alstom was obtained. In the end, Alstom had to accept the acquisition request of General Electric of the United States. Since then, Alstom has completely disappeared from the ranks of the world's top 500 companies. .
The "long-arm jurisdiction" of the United States has been completely reduced to a tool for state power to suppress commercial competitors and interfere with normal international commercial transactions, completely departing from the long-standing self-proclaimed liberal market economic philosophy of the United States.
◆In recent years, the United States has frequently used the "Global Magnitsky Human Rights Accountability Act" to impose unilateral sanctions against the subjects of countries it has identified as engaging in so-called "serious violations of human rights". However, during the implementation of such sanctions, Often ignore the basic fact that the sanctioned subjects also enjoy human rights protection, and violate the basic human rights of the sanctioned subjects.
◆During the global spread of the new crown epidemic, the US government stubbornly insisted on imposing unilateral sanctions on countries such as Iran and Syria, which made it difficult for the sanctioned countries to obtain medical supplies needed to fight the epidemic in a timely manner.
Due to sanctions, Iran is unable to import essential medicines and medical equipment, seriously affecting the health of millions of Iranians.
The Iranian government applied to the International Monetary Fund for a special anti-epidemic loan of US$5 billion to raise anti-epidemic funds, but was blocked by the United States.
The United States has blocked Iran's import of new crown vaccines by freezing Iran's overseas funds and threatening vaccine suppliers.
According to an analysis by the Brookings Institution of the United States, during the worst period of the Iranian epidemic, the impact of the continued sanctions imposed by the United States was further intensified, which may cause as many as 13,000 deaths.
conclusion
The "long-arm jurisdiction" of the United States has been around for a long time. Its content and measures are constantly changing with the development of the times, but its essence has not changed substantially. tool of the regime's hegemony.
In recent years, the United States has abused its "long-arm jurisdiction", lowering the threshold, increasing its strength unprecedentedly, and expanding the scope of its targets.
This not only undermines the principle of sovereign equality of states, violates international law, and erodes the multilateral international order with the United Nations at its core, but also creates and intensifies tensions and conflicts among major powers in the international community, posing a threat to the international security system established after World War II. .
At the same time, it interferes with and distorts normal international commercial transactions and international trade order, disrupts the normal supply chain of global trade, greatly damages the interests of enterprises, and increases the operating costs of enterprises.
The United States should abandon its illegal unilateral sanctions and "long-arm jurisdiction" measures, and earnestly fulfill its international responsibilities as a permanent member of the UN Security Council.
(Website of the Ministry of Foreign Affairs)