Controversy over Kejriwal’s remark of new form of Covid-19 in Singapore brings to fore overarching extra-territorial international laws
@prashanthamine
Mumbai: Increasingly countries around the world are emulating the United States of America (USA) in enacting laws that transcend its national boundaries. Countries like Singapore, China and Great Britain have enacted laws that empower them to take action against anyone outside their own territorial borders.
Until recently international laws and treaties between two sovereign nations was governed by the United Nations Convention on the Law of the Seas (UNCLS) which came into effect on November 14, 1994.
Delhi Chief Minister Arvind Kejriwal had very nearly rubbed the Singapore government the wrong way with his controversial remarks on May 19 about the alleged new form of Covid-19 in the South-East Asian city-state of Singapore.
Had the Singapore government invoked the provisions of its Protection from Online Falsehood and Manipulation Act, 2019 (POFMA), a person, organisation or a company found spreading falsehood regarding Singapore online would have had to pay a fine ranging from $60,000 to $1 million, six years in jail, or both.
His remarks came just days after the Singapore government supplied India with Oxygen cylinders on April 25 at the height of the second wave of Covid-19 as the country was trying to overcome the shortage of Liquified Medical Oxygen (LMO).
Enraged over the comment, Singapore conveyed its strongest objections to Indian envoy to what it called as “unfounded assertions”. It was little wonder then that Union External Affairs Minister (EAM) S Jaishankar said the Delhi chief minister does not speak for India and that the two countries have been solid partners in combating the pandemic.
If that was not enough, in a bid to placate a visibly agitated Singapore government, EAM spokesperson, Arindam Bagchi, said the Indian High Commissioner P Kumaran clarified to the Singapore government that the Delhi chief minister had “no competence” to comment on COVID-19 variants.
Kejriwal on Tuesday asked the Centre to immediately halt air services with Singapore arguing that a new coronavirus strain found in that country was particularly harmful to children and possibly trigger a third wave of the pandemic in India. The Singapore’s health ministry trashed the claim made by Delhi chief minister Arvind Kejriwal.
The controversy over Kejriwal’s comments and Singapore very nearly threatening to invoke the provisions of its POFMA has once again reignited the debate over some overarching extra-territorial international laws enacted by some rich and powerful nations around the world.
It is not just Singapore which has enacted such a law, in recent times China has enforced applicability of its draconian National Security Law (NSL) to curb dissidents in Hong Kong and anyone around the world perceived to be engaged in activities against mainland China.
China had passed the NSL and amended the Basic Law on May 28, 2020 and begun its implementation on June 30, 2020 to cover the Hong Kong Special Administrative Region (HKSAR). Under Article’s 20,22, 24 and 29, any person who is not a permanent resident of HKSAR could be tried for secession, subversion, terrorism and for colluding with foreign forces to endanger national security. The punishment under the NSL ranges from 3 years to maximum 10 years jail term, or life imprisonment.
The United Kingdom has recently unveiled its draft Online Harms Reduction Regulator Bill also known as the Online Safety Bill, that deals with providing security to British nationals from Online Harm that covers wide ranging subjects like terrorism, racial hatred and others that might even emanate from across its international borders.
The UK government feels that the proposed legislation will end the era of self-regulation. The bill seeks to impose statutory duties on the providers of regulated services to help keep their users safe online and appoint The Office of Communications (OFCOM) is the independent regulator to oversee the regulatory framework.
Some in the international community may be frowning at this overreach indulged into by some countries. But United States of America has been enacting laws and signing bilateral or multi-lateral treaties like The Trading with the Enemy Act (TWEA) of 1917, or the more recent The Export Controls Act, 2018, that have been more in the form of sanctions or curbs imposed on other countries.
It is often said in lighter-vein in the US, that it is “only the domestic courts that could effectively curb the enforcement of US laws abroad!” Since 1970’s the extra-territorial reach of the US laws has increased. The US has very gradually begun applying its laws extra-territorially into realms of environment, economic regulations, terrorism, atomic energy, exports and other issues.
The extraterritorial reach of U.S. law derives from statutes enacted by Congress (prescriptive jurisdiction); regulations and rules administered by the administration (enforcement jurisdiction); as well as litigation in domestic courts (adjudicative jurisdiction). Some provisions of the US laws, bilateral treaties and multi-lateral treaties have often encroached upon sovereignty of other nations.
Some of the controversial US laws, bilateral and multi-lateral treaties include – the Joint Comprehensive Plan of Action (JCPOA), or better known as the Iran nuclear deal, Instrument in Support of Trade Exchanges (INSTEX), International Emergency Economic Powers Act, 1977 (IEEPA), Atomic Energy Act (AEA), 1954, The Arms Export Act, 1976, National Emergencies Act, 1976, the Export Controls Act of 2018, to name a few.
International jurisdiction was originally simple – a country’s jurisdiction ended at its borders. Over the time things got blurry as actions outside the country had its impact inside or impacted its nationals. Countries began to claim the right to regulate these “extra-territorial” actions. International law soon let countries regulate beyond their borders and thus “prescriptive jurisdiction” was born. Countries however, lack practical and legal powers to enter other countries to enforce their laws or collect on judgments.
The “enforcement jurisdiction” does not extend beyond national borders. Whereas, the “adjudicative jurisdiction” (powers to hear and settle legal disputes) and the jurisdiction to enforce laws are territorially limited. So far, the International Law has been governed by the United Nations Convention on the Law of the Seas (UNCLS) which was signed on December 10, 1982 at Montego Bay, Jamaica and entered into force on November 14, 1994.
