On Extraterritorial Jurisdiction In U.S. Unilateral Sanctions

Since World War II,the U.S.has frequently imposed unilateral sanctions on foreign countries,and has formed a relatively complete sanctions system.Domestic laws are the main basis for the U.S.to implement unilateral sanctions,and the sanctions bills passed by the U.S.Congress mainly include general bills and special bills.The former is mainly authorized bills,including the Trading with the Enemy Act and the International Emergency Economic Powers Act,which authorize the President to declare a state of emergency and to impose foreign sanctions by means of executive orders.The latter were enacted mainly for specific countries and regions,such as the Helms-Burton Act for Cuba and the Iran Sanctions Act for Iran.The United States has added a number of extraterritorial jurisdiction provisions to its sanctions legislation,such as defining "U.S.person" and "any person under the jurisdiction of the United States," and including extraterritorial entities under the direct or indirect control of U.S.subjects in U.S.jurisdiction;and adopting In addition,the United States can also rely on CHIPS to regulate and penalize offshore dollar transactions.These measures target non-U.S.persons outside the U.S.and fall under extraterritorial jurisdiction.International law recognizes that states may have extraterritorial jurisdiction under certain circumstances,but it should be consistent with the relevant doctrines of jurisdiction.The principle of territorial jurisdiction normally excludes extraterritorial jurisdiction and allows a state to exercise jurisdiction over the entirety of the act only when a portion of the elements of the act occur in its territory.The principle of personal jurisdiction requires the existence of a nationality link between the extraterritorial subject and the state,and allows jurisdiction only when certain connection points can reflect the close link between the state and the extraterritorial subject,such as residence in the field of family and parent-subsidiary in the field of taxation.The protective jurisdiction principle allows a state to exercise jurisdiction when there are obstacles to the application of both territorial and personal jurisdiction,and when the extraterritorial conduct poses a direct,reasonably foreseeable and substantial threat to the state,but in practice there is ambiguity as to how to define such a threat and its extent,which needs to be discerned.In addition,there is the principle of effects,the principle of negative personality,and the principle of universal jurisdiction that can form the basis for extraterritorial jurisdiction by a state.However,the extraterritorial jurisdiction of the United States in the context of unilateral sanctions does not correspond to its theoretical basis.For each specific sanction measure,the conduct element occurs outside the U.S.territory,and the control relationship does not reflect the close connection between the extraterritorial subject and the U.S.in unilateral sanctions,and there are obstacles to the application of the principles of territoriality and personal jurisdiction.The United States usually imposes foreign sanctions based on the state of emergency,so it is necessary to discuss the principle of protective jurisdiction at the overall level.The specific interests of the state should refer to national security interests and national personality interests,among which personality interests are manifested externally in the form of coercion of governmental functions,while the extraterritorial conduct to which the U.S.extraterritorial jurisdiction refers is in most cases normal trade conduct,which can hardly be said to pose a threat to the specific interests of the U.S.,and if it exists,the threat is not direct,reasonably foreseeable and substantial.Thus,there is no legitimate basis for the extraterritorial application of U.S.unilateral sanctions.The United States has always insisted that it imposes unilateral sanctions for the purpose of protecting national security and by means of territorial and personal jurisdiction,but in fact it has caused serious harm to the international community.The EU and Russia have successively introduced blocking and anti-sanctions laws to counteract the negative effects of unilateral U.S.sanctions.Although the U.S.has not yet imposed large-scale sanctions on China,the possibility of action thereafter cannot be ruled out,so it is necessary for China to give early warning and take corresponding countermeasures.