Legal violations; political ramifications
One of the most important principles of the international law on jurisdiction, emanating from the famous Lotus Case (1927) PCIJ Ser. A No. 10, is that while it empowers a sovereign country to legislate on internal matters, it also allows the country to legislate on the affairs of a foreign country, national, living or non-living person, etc. For example, the Indian Parliament can legislate against Hafiz Saeed and his Jamaat-ud-Dawa. Similarly, the Pakistani Parliament is completely sovereign in passing legislation against Bal Thackeray and his group of hoodlums, roaming the streets of Mumbai, threatening Muslims.
What the law, however, does not allow is the enforcement of said legislation outside its territorial boundaries, unless there is an agreement between the countries, to allow the contrary. Simply put, India cannot violate the territorial sovereignty of Pakistan in arresting Hafiz Saeed to enforce its legislation and the same goes for Pakistan in terms of Bal Thackeray.
Lately, a joke has been making rounds inside the policy making circles of Washington and Tel Aviv that the rate at which Iran is “losing” its nuclear scientists, there may not be a need for a military action after all! Joke aside, such behaviour may have serious political ramifications for the international order as Iran has publicly at the highest level accused both the countries for killing its nuclear scientists. As you would recall, some Iranian nuclear scientists have died under mysterious circumstances lately! The fact that both the intelligence agencies of the US and Israel, CIA and Mossad, respectively, have in the past pursued killing of foreign nationals in foreign lands to advance their national security strategies, lend credence to Iran’s claims. Furthermore, Israel has not unequivocally denied charges levelled against it by Tehran, further bolsters the Iranian case. If Iranian rhetoric is to be believed, then both the Americans and Israelis have abused the application of international law.
Iran’s relations with the US have been frosty, to put it mildly, ever since 1979. The US, has since passed number of legislations against Iran, its people, companies, curtailing Iran’s economic clout in the world. The strategy has been to weaken the Iranian regime. The US Congress has passed these legislations under prescriptive jurisdiction, allowing it to apply its national law to any Iranian event, territory, property, person, wherever they may be present inside Iran. To that end, President Carter, in 1979, issued Executive Order 12170, freezing Iranian assets worth billions of dollars inside the United States. This was done in pursuance of the fundamental rule of international law that the state has absolute jurisdiction over its territory.
More recently, exercising the abovementioned fundamental rule, President Obama has signed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), wherein the US has further restricted imports of caviar, pistachios, and rugs of Iranian-origin. This however does not mean that the US in pursuance of its laws can violate the sovereign territory of Iran and shut down Iranian carpet weavers, factories, or forcefully stop Iranian farmers from growing pistachio.
The same Lotus Case, which empowers a sovereign state to legislate on matters outside of its territorial boundaries, also restricts the enforcement of such law outside of its boundaries. ‘The first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state’, reads a few lines from the judgment in the Lotus Case. The United States and Israel, prima facie, have violated this fundamental principle of international law either directly or indirectly. Under the law, both the US and Israel could have arrested and tried these scientists, if and when they had entered their physical territories. By using to its advantage the prescriptive jurisdiction to legislate against Iran and by ditching the responsibility that comes with it; not to violate the sovereign territory of Iran, it has set a bad precedence for others.
Aspiring regional powers like India, by citing this behavior, may further destabilise the South Asian region. Indeed an argument was advanced by New Delhi, in the wake of American occupation of Afghanistan due to the September 11, 2001, tragedy, that if the US has the right to hunt its enemies outside of its borders, why should India not adopt the same path vis-à-vis Pakistan and its alleged harbouring of persons wanted under Indian laws.
Indeed, it is foremost the responsibility of bigger nations to behave in accordance with the law, so that others could follow, making this world a better place.