Multilateralism as a panacea to America’s long arm jurisdiction

Herald Correspondent

At many international fora, countries have condemned sanctions imposed against Zimbabwe by the United States and its allies since the turn of the millennium.

Various groupings such as the Southern African Development Community(SADC), African Union (AU), Common Market for Eastern and Southern Africa(COMESA), the Non-Aligned Movement (NAM), among others, have all registered concern about the sanctions, now being increasingly referred to as unilateral coercive measures.

Individual countries and leaders, such as Russia, China, South Africa, Kenya, Senegal, and so on have had emphatic opposition to the sanctions on Zimbabwean people which have pauperised the populace, drawn back its development and weakened the Southern African country’s capacity to take care of its people in a number of ways.

Zimbabwe is one of few global countries that are suffering the bondage of sanctions imposed by Western countries, principally at the instigation of the US.

It is submitted that, for the family of nations that are opposed to unilateral sanctions, it is critical to unite and institute real, practical actions that will assist countries under the illegal sanctions to overcome their challenges.

Can the world translate sympathy and solidarity into tangible bulwark against the US unilateral actions?

This article argues that true multilateralism could be the panacea to America’s unilateralism policy, practiced through the draconian long arm jurisdiction established in 1945.

Long arm jurisdiction

This is a principle that in general, allows the United States to practice and enforce law over persons and countries that it ordinarily should not have power over. Sanctions imposed by the US on persons, entities and countries, are a good example of this practice.

According to US domestic law, long-arm jurisdiction refers to jurisdiction over persons or entities domiciled or resident outside the territory of the sanctioning state.

As stated by the international law, the exercise of a country’s jurisdiction over an extraterritorial person or entity generally requires that the person or entity or its conduct has a real and sufficient connection to that country.

Yet the US exercises long-arm jurisdiction on the basis of the “minimum contacts” rule, constantly lowering the threshold for application. Even the flimsiest connection with the United States, such as having a branch in the United States, using US dollar for clearing or other financial services, or using the US mail system, constitutes “minimum contacts.”

To exercise long-arm jurisdiction, the United States has further developed the “effects doctrine,” meaning that jurisdiction may be exercised whenever an act occurring abroad produces “effects” in the United States, regardless of whether the actor has US citizenship or residency, and regardless of whether the act complies with the law of the place where it occurred.

The United States has also been expanding the scope of its long-arm jurisdiction to exert disproportionate and unwarranted jurisdiction over extraterritorial persons or entities, enforcing US domestic laws on extraterritorial non-US persons or entities, and wantonly penalising or threatening foreign companies by exploiting their reliance on dollar-denominated businesses, the US market or US technologies.

In essence, long-arm jurisdiction is an arbitrary judicial practice, wielded by the US government on the strength of its national power and financial hegemony, to enforce extraterritorial jurisdiction over entities and individuals of other countries on the ground of its domestic law.

A special report carried out by Xinhua recently shows that the practice of long arm jurisdiction has many perils.

Sanctions strain relations between countries and undermine the international order. Healthy state-to-state relations are the bedrock for peace and stability in the international order.

In the 1990s, the United States introduced the Helms-Burton Act to impose economic sanctions through long-arm jurisdiction on individuals and entities worldwide conducting transactions with Cuba.

It sparked strong opposition from the European Union, who in 1996 passed the Blocking Statute to neutralise through legislation the effects of US long-arm jurisdiction within the EU, and enable individuals and entities in the EU to sue individuals and entities in the United States.

Apart from this, the EU put forward a series of proposals and initiatives at the UN General Assembly, the Security Council, the World Trade Organisation and other international bodies, calling on the international community to pay attention to the harmful effects of US long-arm jurisdiction, and even resorted to the WTO dispute settlement procedures.

According to Xinhua, citing Professor Daniel Drezner of Tufts University, successive US administrations for abusing economic coercion and economic violence and using sanctions as the preferred solution to diplomatic problems, which have been ineffective and causing humanitarian disasters.

Zimbabwe sanctions

Sanctions imposed on Zimbabwe and other countries by the US show the true extent of long arm jurisdiction practice by America.

The result has been harsh laws that has affected Zimbabwe, Syria, Brazil, Cuba, China and other major powers.

Additionally, America has persecuted various individual in its quest for economic monopoly.

However, this is a complete contrast to the multilateral values that led to the formation of the United Nations whose history is grounded in the maintenance of international peace and security.

America’s constant meddling in international affairs has severely weakened this international body’s mandate leading to mounting challenges of protectionism and isolationism.

For example, sanctions on Syria as a result of the Global Magnitsky Human Rights Accountability Act (2016) enacted by the US giving it power to impose unilateral sanctions on entities in various countries deemed to have engaged in serious human rights violations severely weakened its ability to fight the Covid-19 pandemic.

The same happened in Zimbabwe’s case which was slapped with sanctions imposed by the United States Department of Treasury’s Office of Foreign Assets Control (FOCAC) in mid-January.

Effective multilateralism has thus been hindered by America’s quest for world hegemony. However, that can be countered through the adoption of sincere policies and their implementation by dedicated leaders and states.

Multilateralism as a panacea to long arm jurisdiction practices

Multilateralism is defined as “international governance” or global governance of the “many,” and its central principle was “opposition [to] bilateral discriminatory arrangements that were believed to enhance the leverage of the powerful over the weak and to increase international conflict”, according to Miles Kahler; while Robert Keohane has defined it as “the practice of co-ordinating national policies in groups of three or more states.”

According to experts, multilateralism implies collective action by countries to seek or protect their interests.

Since larger states often act unilaterally, while smaller ones may have little direct power in international affairs aside from participation in the United Nations, multilateralism may involve several nations acting together, as in the UN, or may involve regional or military alliances, pacts, or groupings.

Experts explain that these multilateral institutions are not imposed on states but are created and accepted by them to increase their ability to seek their own interests through the co-ordination of their policies.

Moreover, they serve as frameworks that constrain opportunistic behaviour and encourage co-ordination by facilitating the exchange of information about the actual behaviour of states regarding the standards to which they have consented.

Multilateralism therefore means that countries choose to work together to achieve common goals or to uphold certain values.

Global leaders such as President Xi Jinping of China have spoken strongly in support of multilateralism.

In 2021, President Xi asserted that pursuing multilateralism was inseparable from the United Nations, international law and co-operation among countries.

The world needs genuine multilateralism, President Xi said, adding that all countries should act in accordance with the purposes and principles of the UN Charter, refrain from pursuing unilateralism and hegemonism, and should not use multilateralism as a pretext to form small circles or stir up ideological confrontation.

In Zimbabwe, President Mnangagwa is an advocate for multilaterism and opposes the hegemonism of the West.

At the United Nations General Assembly in 2022, President Mnangagwa said Zimbabwe was ever committed to the principles of the UN Charter and multilateralism in the resolution of the complex and intersecting challenges facing the world.

The UN should remain the beacon and source of hope for the global citizenry. As leaders, we have a weighty burden and responsibility to make the UN deliver to the expectations of all the peoples of the world, President Mnangagwa said.

China’s pursuit of multilateralism

China’s pursuit of multilateralism is a stark contrast to US’ hegemonism, long arm jurisdiction and unilateralism.

This offers a template on how the world could be better governed by all, for all in true spirit of friendship.

China seeks to co-operate with all countries of the world on an equal footing, upholding the sovereign equality of nations.

This has resulted in the maintenance of cordial relations with both developing and developed countries leading to beneficial co-operation on both diplomacy and economic fronts.

Concerning Africa, multilateral relations have been forged as a result of one platform, The Forum on China-Africa Cooperation (FOCAC) which was established in 2000.

It is a partnership platform between China and 53 African states (all African states except Eswatini, which maintains diplomatic relations with Taiwan).

Trade has thrived as a result of Africa’s relations with China resulting in a surge of 11 percent from 2021 to $282 billion in 2022

Multilateralism from China’s point of view, is therefore about seeking consensus through consultation and managing common affairs through co-operation for shared benefits and win-win results.

The Asian giant has lately proposed a number of blueprints and frameworks that could be the new rallying centres for the world, away from the crutches of the US.

The Belt and Road Initiative (BRI) is one example; it seeks to build a more just economic order where nations of the world participate in a global economic corridor characterised by trade, investments and infrastructural developments. Zimbabwe, which joined the BRI in 2018, is among hundreds of beneficiaries in the network.

Another initiative led by China to spur inclusivity and global economic growth and development is Global Development Initiative.

It is meant to foster friendship, goodwill and symbiotic co-operation, and build an international order in which multilateralism, inclusivity, democracy and human rights are safeguarded.

In 2021, President Xi Jinping asserted that the macro policy focus of the international community needs to prioritise development and that mechanisms to address policy divergences and undertake robust mutual supporting behaviour among the world’s leading economies were critical for realising this end.

He noted the importance of ensuring that policies are continuous, consistent and sustainable and that the practice of forging joint programmes based on equality and balance can stimulate stronger links in international development programmes while significantly boosting the fruition of the United Nations Sustainable Development Goals.