Extraterritorial Application Of U.S. Economic Sanctions Under Protective Principle:A Critical Review

The extraterritorial application of United States economic sanctions are at times premised on the protective principle.The US secondary sanctions prohibiting the transactions between foreign persons and a target state and putting criminal penalties on those violators are applied extraterritorially under the protective principle,which has been criticized by other states and most scholars as a misuse.Nonetheless the substantial issues of the protective principle remain untouched.The question of whether the extraterritorial application of US economic sanctions can be justifiable under the protective principle can be divided into two sub-questions: how to define“vital interest” of a state? And under what sort of influence caused by offences will a state's exercising its protective jurisdiction be legitimate? Behind the curtains of this two sub-questions are the values or purposes of the protective principle.Never can we find out a proper standard for the application of the protective principle unless the values of this principle are well-understood.Conventional theories claim that the protective principle is based on a state's right of self-defence.This is a hypothesis of the rational basis of the protective principle.This hypothesis originated from the statues of medieval Italian northern cities which were premised on the right of legitimate self-defence under natural law.The protective principle in modern law was born by the French Code of Criminal Procedure of 1808 under the background of Nationalism and the right to self-defend.The hypothesis that the protective principle derives from the right of self-defence roots in specific criminal law theories which are prevalent in the past,whereas it has been imcompatible with the future development of the protective principle.Reasons for this are outlined here: 1.the basis of this hypothesis is a theory considering criminal jurisdiction as a right sharing the same nature with the right of war,which has been no longer accepted by modern international law.2.this hypothesis itself is a vague theory and cannot provide enough helpful resources for us to design a legitimate standard for the application of the protective principle.3.the emphasis of this hypothesis is on the right of self-defence,and as a result of it states may be misguided to expend their extraterritorial jurisdiction improperly against an unbiased purpose of criminal jurisdiction.The values of the protective principle can be concluded into two fundamental principles that have little concern with the right of self-defence: Principle I is “to ensure the existence and the integrity of the personality of a state”,and Principle II is“to keep a balance between the protection of a state's vital interests and the protection of individual rights”.Principle I can be induced from the basic legislative mode of the protective principle recognized generally by most states.It reveals that the purpose for a state to exercise the protective principle is to protect the existence and the integrity of its personality as a state,thus the application of the protective principle shall be limited within the protection of a state's vital security interests and vital personality interests.Principle II emerges out of modern criminal law theories and modern international law theories.Under this principle,a state shall respect individual rights when protecting its vital interests under the protective principle rather than exercise its extraterritorial jurisdiction at the stake of infringing individual freedom.The values of the protective principle and major states' legislation and judicial practice reveal that there are two necessary requirements for applying the protective principle: firstly,there should be offences against a state's vital security interests or personality interests;secondly,the offences against a state's vital security interests or personality interests should have caused a harm enough to trigger the application of the protective principle.According to this two requirements,the extraterritorialapplication of the US economic sanctions cannot be justified under the protective principle.A state's vital security interests mainly refer to the security interests to survive as a state,that is,the security interests necessary for the survival of a state,rather than abstract legislative purposes for national security.A state's vital personality interests mainly include the fundamental personal dignity of a state and the integrity of fundamental governmental functions.Offences against a state's fundamental personal dignity include the following conducts: counterfeiting of a state's seal,currency or national emblem or other symbols of sovereignty,falsification of official documents,infringement on the sovereign or delegation of a state,and infringement on the freedom of a state's will.Libel or insult of a state is not an offence against a state's fundamental personal dignity that may trigger the application of the protective principle.The integrity of fundamental governmental functions means the inviolability of the basic government functions necessary to maintain the existence of a state,such as the freedom of the will of a state's constitutional institutions or defense institutions.It does not refer to the whole functions of a government in the broadest meaning.Under the second requirement of the application of the protective principle,only when there is an actual damage or a direct,reasonably foreseeable and substantial threat against a state's vital interests can the affected state exercise its jurisdiction upon certain conduct.A direct,reasonably foreseeable and substantial threat is a threat that is grave and imminent and can be deduced from a direct causal relationship of high probability.Some US economic sanctions are adopted in the name of protecting national security,while what these economic sanctions call “national securities” are just abstract legislative purposes,not the vital security interests safeguarded by the protective principle.Therefore,the extraterritorial application of US economic sanctions cannot be supported by the protective principle merely for their self-proclaimed security purposes.The decision of the United States v.Evans indicates that foreign persons who plan to reexport goods,technologies or servicesthat have United States origins into target states,and make false or fraudulent statements to the US Government regarding the destination of the transaction in order to obtain approval for exportation,shall be punished by US economic sanctions under the protective principle for infringing or attempting to infringe the functions of US government by defrauding it.The Evans applied the protective principle in a wrong way.Export control is not a fundamental governmental function protected by the protective principle.Only when specific vital interests of the United States are threatened in a particular case can the extraterritorial application of its economic sanctions be justifiable under the protective principle.Nonetheless,secondary sanctions that prohibit the transactions between foreign persons and the target states are illegitimate under the second requirement of the application of the protective principle.According to the opinion of the United States v.Akova,the re-exportation of certain US-origin goods that are planned to transport into Iran and may be used to facilitate Iran's military force by a foreign person threatens the security of the United States.The reasoning of the Akova does not make sense.The extraterritorial transactions between third-country nationals and the target state do not have any direct,reasonably foreseeable or substantial threat to the United States.The extraterritorial application of US economic sanctions violates the values of the protective principle.This practice is not a legitimate way to apply the protective principle,nor can it offer any useful material for the future development of the protective principle.It is well acknowledged that the scope of the protective principle is not definitely certain,and it is hardly evitable that the meaning of a state's “vital interests” will be broadened gradually following the increasing demand for states to combat transnational crimes.Whereas the values of the protective principle and the shared values of the international community require states to apply the protective principle on limited crimes rather than expand it in an exorbitant way.