The US Currently Occupies a Position of Extraordinary Asymmetrical Leverage,
But Its Unilateral Approach Entails Broader Geopolitical Risk
Friday, 2nd July 2021.
The first in a series
As the world’s leading superpower, the US may have unmatched military strength, but in recent decades the US has preferred to weaponize economic sanctions as its instrument of choice to project power and influence around the globe.
Economic boycotts, blockades and other trade sanctions have a long history dating back millennia. Sanctions became a more prominent tool of economic statecraft in the second half of the 20th century as the US and other Western countries saw financial and trade pressures as preferable to warfare as a means to enforce the new post-war global order, allowing countries in a position of economic power to achieve many of the same geopolitical ends without having to put boots on the ground and troops in harm’s way.
Sanctions may be imposed on a multilateral or unilateral basis, but the US is the single indispensable player in the global sanctions game, with the most expansive sanctions coverage and the most aggressive and effective enforcement capability. Without the US, multilateral sanctions have no real teeth, and acting alone the US can still effectively impose its will on companies and individuals around the world to compel them to play by its rules.
The power of US sanctions arises from the confluence of US dominance in terms of undisputed military, economic and technological leadership in a world which is globally-interconnected to an unprecedented degree. The centrality of the US role in the international order, and more particularly the dominance of the US dollar globally, allows the US an unparalleled reach and acts as a leverage multiplier on an exponential scale.
But this unchecked power to levy sanctions inevitably has met with strong opposition from across the globe, not only from governments and businesses targeted by US sanctions but also by those in third countries whose foreign policy and business interests are curtailed by US secondary sanctions. The EU and Canada and other nations traditionally aligned with the US have led the pushback up to this point, and now China has entered the fray, increasing the risk of geopolitical confrontation as well as increasing the compliance risks for multinational companies.
In this part one of this series, we will briefly outline the history of US secondary sanctions, the basis of the assertion by the US of extraterritorial jurisdiction and why it is in the unique position to enforce the same, something other countries may aspire to do but as a practical matter cannot do to any meaningful degree. In following installments in this series, we will explore in more detail the counter-measures being undertaken by other countries, specifically looking at the blocking statutes adopted by the EU, Canada and China (now supplemented by China’s new Anti-Sanctions Law) as well as efforts to work around US long-arm jurisdiction through de-coupling from the US dollar in international trade transactions.
The Rise of Smart Sanctions
Over the last few decades, the US has ramped up its utilization of sanctions while at the same time enhancing their effectiveness and refining their precision. Economic embargoes and blockages historically had been criticized as being too blunt an instrument, often not only impacting targeted bad actors but also indiscriminately inflicting serious harm on innocent bystanders. In many cases, this was considered to be fundamentally at odds with the stated humanitarian or human rights objectives of the sanctions, but even where sanctions were designed to address national security objectives, the human costs were often seen as excessive.
Madeleine Albright, US Secretary of State under President Clinton, exemplified the apparent indifference on the part of the US to the human suffering caused by sanctions when she stated in a 1996 interview with the influential US television news program “60 Minutes” that even if (hypothetically) the trade embargo against Iraq under Saddam Hussein had resulted in the deaths of half a million Iraqi children, “the price is worth it.”
In the aftermath of the 9/11 terrorist attacks in 2001, the US devised new “smart” sanctions that were more targeted and more powerful. Under related legislation and executive orders, penalties were imposed on designated persons in sanctioned countries as well as on non-state actors such as terrorist organizations and drug cartels. Such designations are made by the Office of Foreign Assets Control (OFAC) under the US Treasury Department, and the targeted parties are set out on the List of Specially Designated Nationals and Blocked Persons (SDN List), which is one of several sanctions lists maintained by OFAC.
For designated persons with few ties to the US, it may appear at first blush that being included on the SDN List may have little to no practical effect, and in some cases such a designation may be worn as a badge of honour by persons who openly oppose US foreign policy and proudly flout US-imposed rules that the US seeks to enforce beyond its own borders.
However, in other cases, SDN designation can have a crushing impact. All US-controlled assets of the designated parties are frozen, and a blanket ban is imposed on all investment, trade or credit transactions of any type between any US person and an entity or individual listed on the SDN List. Moreover, under OFAC’s fifty percent rule, such list-based sanctions also apply to any entity that is fifty percent or more owned by a listed entity or individual.
Even more devastating for the targeted persons, many non-US parties, particularly foreign banks, may similarly refuse to deal with parties on the SDN List out of fear of being blacklisted themselves. Thus, the combination of the fifty percent rule and the broader shunning of the targeted persons by major non-U.S. banks and many other non-US parties has a powerful cascading effect, allowing the tentacles of US sanctions to extend down the chain through the targeted person’s financial empire, potentially cutting all members of the group off from the entire US dollar-denominated and US dollar-dominated global financial system, thereby choking off key sources of revenue around the world.
This precision-guided economic ballistic missile has been deployed in a range of scenarios, targeting a wide spectrum of bad actors, from terrorist organizations and their sponsors, to drug traffickers and related facilitators, and also to government officials and state-owned enterprises deemed by the US to be engaged in human rights violations, breaches of anti-proliferation protocols and other acts in contravention of international law or otherwise contrary to US foreign policy and national interests.
The potential range of targets for SDN designation is set at the discretion of the particular US administration. For example, President Trump prohibited transactions with Petroleos de Venezuela, S.A. and the government of Venezuela, affecting, among other things, profit distributions together with securities and loan transactions connected to the government of Venezuela. In 2018, the Trump Treasury Department placed certain Iranian banks on the SDN List, resulting in their being denied access to the global SWIFT payments network. In 2020, the Trump administration imposed sanctions on various high-ranking officials in China and Hong Kong in respect of claimed human rights violations in Xinjiang and Hong Kong. More recently, President Biden imposed sanctions on Russian officials and enterprises in connection with claimed cybersecurity attacks and election interference.
Leveraging US Technology Leadership
The SDN List is not the only weapon in the US arsenal of economic measures that can target foreign companies around the world. The Bureau of Industry Security (BIS) under the US Commerce Department administers two additional lists: The Denied Persons List and the Entity List. The Denied Persons List consists of individuals and companies that have been denied export and re-export privileges generally by BIS. The Entity List includes entities deemed to be involved in activities that threaten the national security or foreign policy interests of the US, such as the sale of U.S.-sourced dual-use technology to countries subject to sanctions. Exports of certain sensitive US-sourced technologies to the entities so listed would be subject to license restrictions.
Similarly, re-export of products containing controlled US-sourced technology and software is also subject to license requirements under the US Export Administration Regulations (EAR). This re-export ban applies to designated products made in the US or products made anywhere in the world which incorporate not less than 25% of the controlled US-origin technology, and where the end user is based in a country designated as a state sponsor of terrorism (specifically, Cuba, North Korea, Iran and Syria), the threshold for triggering the re-export license requirement drops to only 10%. For certain specified items, the de minimus level is set to 0%, constituting a total ban on re-exports.
Exemptions to the restrictions on US persons entering into transactions with companies or individuals included on the SDN List or Entity List may be obtained under general or special licenses, but such licenses typically are strictly limited in order to avoid undermining the objectives and effectiveness of the relevant sanctions program.
While the SDN List provides for a blanket ban on all transactions with the sanctioned party, the restrictions under the Entity List are limited to transactions involving the controlled US-sourced technology. However, as a practical matter, for companies that depend on access to such US-sourced technology, in many cases being “blacklisted” on the Entity List can be tantamount to an economic death penalty.
That was the nearly case when China’s ZTE violated the terms of its prior plea deal in 2018 and was slapped with a seven-year ban on acquiring specified US-sourced technology, which would essentially have shuttered its global Android mobile handset business since it would no longer be able to bundle the popular Google AppStore, Gmail and YouTube apps with the base Android system. Had Trump not intervened in order to keep the then pending US-China trade negotiations on track, ZTE might not have survived.
In 2019 the US also placed Huawei on the Entity List and further hit the Chinese telecom equipment giant with a ban on the purchase of semiconductor chips incorporating sensitive US technology. As a result, Huawei handset sales are projected to fall from a high of 170 million units in 2020 (when Huawei was still utilizing chips purchased and stockpiled prior to the ban taking effect), ranking third globally behind Samsung and Apple for that year, to only 45 million units in 2021, which will drop it to seventh place overall. The company posted a 16.5% decline in overall revenue year-on-year for Q1 2021, compared to a 3.8% increase for 2020, driven primarily by strong sales in China, which offset declining international sales.
Secondary Sanctions – An Exercise of Raw Geopolitical Power
The US actions against Huawei have dealt the company a serious but not fatal blow. While the US is well within its rights to control exports of its sensitive technology by US technology companies, in this case the US has gone well beyond this, by enlisting technology companies from around the world to play along and shut Huawei out of the US-dominated global semiconductor supply chain.
This is the essence of, and demonstrates the immense power of, US sanctions: the US leverages its technology leadership and its dominant position in the global financial system to restrict conduct not only on the part of US persons but also companies and individuals outside of the US. While there are some important technical distinctions between secondary sanctions under OFAC rules and the re-export bans for sensitive US-sourced technology under the EAR, in both cases the US couples an expansive view of the reach of its long-arm jurisdiction with strong-arm tactics designed to compel foreign parties to conform to US foreign policy or risk forfeiting access to the US financial system or US technology.
Two early examples of secondary sanctions arose under the Cuban Liberty and Democratic Solidarity Act (LIBERTAD), more commonly known as the Helms-Burton Act, and the Iran and Libya Sanctions Act (ILSA), sometimes referred to as the D’Amato Act, both of which came into effect in 1996 and were designed to prevent both US and foreign companies from engaging in certain transactions with Cuba, Iran, and Libya.
The attitude of the US was summed up in this remarkably blunt statement by Senator D’Amato, who was the principal sponsor of the ILSA: “Now the nations of the world will know they can trade with them [Iran and Libya] or trade with us. They have to choose.”
The US rationale for imposing secondary sanctions is straight-forward. US companies and individuals are blocked from conducting the prohibited transactions under the direct sanctions imposed by the US. If foreign competitors are not similarly restricted and step into the vacuum created by the withdrawal of US companies (a process known as “backfilling”), then US companies will lose business to their foreign competitors while at the same time US policy objectives may be blunted or frustrated completely. So from a US perspective, secondary sanctions are seen as a type of “anti-circumvention” measure.
There is a broad bipartisan consensus among US politicians supporting increasingly aggressive imposition of sanctions. This is not just a position taken by Republican presidents but also by Democrat presidents, and not just by the executive branch but also (perhaps even more particularly) by the Congress – they all are enthusiastic proponents and purveyors of US unilateral sanctions (although Trump was an outlier by any measure in terms of going it alone, often without even the fig leaf of nominal consultation and coordination with Western allies).
The US political class is keenly aware of the unrivalled economic power the US possesses, and they are not hesitant to exercise it to go after those they regard as bad actors to achieve US foreign policy objectives. Moreover, they are all too willing to demand that the rest of the world fall in line even if they do not share the same views on geopolitical ends or means.
The US Against the World
When it comes to such secondary sanctions, the US has friends but no allies, at least no willing allies. The entire world is united in their objections to what is universally decried as a blatant overreach on the part of the US and an abuse of its dominant position in the global system.
Legal scholars challenge US unilateral secondary sanctions on the grounds that the related exercise of extraterritorial jurisdiction contravenes core principles of customary international law. More fundamentally, governments around the world, including many of the closest partners of the US, protest the extraterritorial elements of US secondary sanctions as an infringement of their sovereignty.
In response to the 1996 US sanctions against Cuba (under the Helms-Burton Act) and Iran and Libya (under the D’Amato Act), a WTO case was brought against the US by Canada, several European countries and others. In addition, Canada, the EU and others adopted blocking statutes, making it illegal for their nationals to comply with US sanctions orders. As a result of this pressure campaign, the US eventually agreed to waive enforcement of certain of the more objectionable extraterritorial aspects of these acts, and in respect of Iran, re-engaged with its Western counterparts to forge a consensus approach in parallel with its own continuing unilateral sanctions program.
That broad consensus among the leading Western nations in terms of approach to sanctions continued through the Obama years even as the US administration expanded the use of enhanced secondary sanctions. But when Trump reversed course in 2018 and reimposed sanctions on Cuba and Iran, including additional secondary sanctions, countries around the world once again complained loudly, and the EU and Canada dusted off their old blocking rules from twenty years earlier. However, this time they found that their complaints and counter-measures were largely ineffectual in the face of the potential massive economic penalties under the US secondary sanctions, and in an act of almost universal capitulation, companies around the world bowed to the US edicts.
The calculation was simple – most large multinational companies cannot afford to lose access to the US market by running afoul of US secondary sanctions. More importantly, no company, regardless of size, can afford to be labelled as a sanctions violator and risk being cut off from the global banking system.
US dominance of the global financial system is so complete that it occupies a position of extraordinary asymmetrical leverage. When the US under Trump barred Iranian banks from the SWIFT network, Belgium-based SWIFT complied and the EU acquiesced. But this set a potentially dangerous precedent, giving the US apparent unquestioned authority to impose the extraordinary penalty of what one writer has termed “financial excommunication.”
The US has been very aggressive going after global banks for failure to comply with US sanctions. To cite just a few examples:
- Barclays entered a plea deal in August 2010, admitting to processing prohibited payment transactions with Cuba, Iran and Sudan, and agreeing to forfeitures in the amount of US$ 298 million; 
- in December 2012, HSBC signed a deferred prosecution agreement (DPA) with the US Department of Justice, and paid US$1.9 billion in fines and forfeitures for stripping identifying information from prohibited payment transactions with sanctioned countries and parties in an effort to evade US sanctions rules;
- in the largest bank prosecution to date, French bank BNP Paribas was assessed fines totalling US$8.9 billion for processing blocked payments with Iran, Cuba and Sudan in disregard of warnings; and
- Standard Charted Bank entered into an amended DPA in April 2019 and paid fines and penalties in excess of US$1 billion for illegal payment transactions with Iran made by its former employees in Dubai.
The banks typically are not willing to risk taking these cases to trial, so they negotiate a plea deal or a DPA. This provides certainty as to the result and ensures that they are not “blacklisted” and so are able to remain in business, but such an approach does leave the US legal position unchallenged (including with respect to US long-arm jurisdiction), potentially further emboldening the US to take ever more aggressive enforcement actions.
In addition, US officials have adopted a practice of strategic ambiguity, intentionally creating uncertainty as to the line between permitted versus proscribed conduct, knowing that this has the effect of expanding the scope of proscribed activities. As a result, banks have tended to adopt a policy of over compliance to ensure that they stay well outside the known lines drawn by the US, which further strengthens the US hand in respect of secondary sanctions. In effect, by cowing the global banks into not just minimum mandatory compliance but over compliance, the US has enlisted them as powerful front-line enforcers of US foreign policy.
Add to this the dominance of the US dollar in international trade transactions (somewhere between 50 to 80 percent of international trade is invoiced in US dollars) and the US position that clearing of US dollar payments through the US banking system on its own provides a sufficient nexus to support US jurisdiction over US dollar-denominated transactions anywhere in the world (US courts have deemed this to be an “export” of services on the part of the US banking system), and the circle is complete. Few companies anywhere in the world can escape the reach of US secondary sanctions and long-arm jurisdiction.
The Intended and Unintended Costs of Sanctions
Just as there are direct sanctions and secondary sanctions, there are direct costs and collateral costs arising therefrom, and in both cases the lines separating the categories are blurred.
Direct costs clearly are borne by the sanctioned countries and parties, but US companies which lose out on business opportunities with sanctioned counterparties under direct US sanctions also suffer direct economic losses, essentially being forced to subsidize US foreign policy. By enacting secondary sanctions, the US now also requires foreign companies to pay the same opportunity costs to advance US foreign policy objectives which they may not share or which indeed may be directly contrary to the applicable policy positions and legal requirements in their home jurisdictions.
Other costs take arise from counter-measures to secondary sanctions as countries around the world, both friends and foes of the US, seek to reassert their sovereignty and to reduce the risks associated with asymmetric interdependence with the US. Such counter-measures include attempts to block US secondary sanctions by legal means via blocking rules, as well as efforts to circumvent US dollar hegemony by creating alternative payment systems which are de-coupled from the US banking system, which de-dollarization would tend to erode US assertion of extraterritorial jurisdiction on the basis of clearing of US dollars through the US banking system.
In a similar vein, China is seeking to develop not just technological independence from the US but global technological leadership. Technological independence would free China from the reach of US export controls and certain categories of secondary sanctions, while technological leadership could fundamentally shift the balance of power and potentially could result in a global technological divide, with the rest of the world having to choose either the US/Western standard or the China standard or pay the additional costs for a dual-standard approach. China cannot achieve either of these objectives quickly or easily, but if past is prologue, then the prospects for China’s outlook over the medium term cannot be lightly discounted.
The US will not readily cede its dominant position in any of these areas, nor should it be expected that the US will voluntarily decline to utilize its leverage to pursue legitimate policy goals simply in the name of comity among nations or even in deference to principles of customary international law which go beyond its treaty obligations, as some foreign commentators and critics seem to suggest it should do. Moreover, the apparent leading challengers to the US position, China and the EU, have much work to do before they can compete with let alone hope to surpass the US in any one of these areas.
However, a persuasive argument can be made that the US should exercise more self-restraint out of an enlightened sense of self-interest, recognizing that the US cannot expect that it will retain its unprecedented position of dominance in perpetuity and so should seek to abide by a standard of conduct which it would hope an eventual successor would also follow. President Clinton expressed similar sentiments in a speech at Yale in 2003, but given the prevailing pro-sanctions bipartisan consensus in the US, one would be hard pressed to find any current US politician espousing similar views today.
A more realpolitik approach for the US would be to take note of the growing campaign around the world to push back against US secondary sanctions and extraterritorial jurisdiction through the adoption of more aggressive counter-measures. These counter-measures create a real risk that a new Cold War-like arms race could develop not just in respect of technology standards and supply chains but also in the form of competing legal and global payment systems.
Creating multiple global payment systems to rival SWIFT would take time to set up and gain traction, and their success ultimately will depend on the rise of alternative global currencies (e.g., the Euro, Yuan, new Central Bank Digital Currencies or crypto-currencies) to displace the US dollar at least in part as the primary currency of international trade. While such redundant systems would entail additional costs, they also offer the promise of a hedge against the risks of being cut off from the sole legacy system. This comes with an important caveat: So long as the US dollar was not entirely eclipsed in importance by the other currencies, an aggressive US administration theoretically could still use its sanctions power to cut off access to the US-dominated financial systems, which could still severely handicap global banks and MNCs even in a world with redundant alternative global payment systems and competing currencies.
On the other hand, stronger blocking statutes, fully implemented with enhanced penalties, may satisfy nationalistic impulses around the world to push back against what is viewed as clear abuse by the US of its current dominant position, but as a practical matter such counter-measures may only result in a choice-of-law stalemate, where multi-national companies may have to choose which laws they will obey and which laws they will ignore. Even the current, largely impotent, blocking rules introduce much higher levels of complexity for multinational companies, which imposes additional compliance costs on all MNCs.
Such prospects should mitigate in favour of more self-restraint on the part of the US, but current political realities in the US suggest that the generally altruistic approach historically adopted by the US in most other areas of its leadership role in the global system may be less likely to be manifested in respect of the question of unilateral secondary sanctions and extraterritorial jurisdiction. If the US continues to fail to seek a better balance through appropriate multi-lateral consultation and coordination, we can expect even more aggressive responses, which may turn out to be the unfortunate lasting legacy of current US sanctions policies.
Robert Lewis is a lawyer based in Beijing. He was admitted to practice in California in 1985. He has worked in prominent U.S., U.K. and Chinese law firms in China for nearly 30 years. He is currently Senior International Consultant with Chance Bridge Partners, a leading boutique full-service business law firm in Beijing, as well as co-founder and Senior Expert of docQbot, an award-winning legal tech company providing bilingual automated contract solutions for China-related transactions. He is also the author of the book, The Rules of the Game of Global M&A: Why So Many Chinese Outbound Deals Fail. He is fluent in spoken Mandarin and written Chinese.
With contributions by:
Li Li has more than ten years of experience as an international lawyer. She focuses on cross-border dispute resolution and cross-border compliance, and has represented Chinese and foreign companies in the complex commercial litigation and international arbitration cases before Chinese courts, Chinese arbitration institutions, foreign courts and international arbitration institutions. Ms. Li also has extensive experience in cross-border compliance, particularly in relation to U.S. export controls and U.S. sanctions compliance. Li Li is currently the head of the Compliance Department of Chance Bridge Partners.
Next article in series:
China Joins EU and Others in Adopting Tough Counter-measures to Push Back Against Perceived US Sanctions Overreach
Beijing Raises the Stakes with New Anti-Sanctions Law, But Can China’s Counter-measures Succeed Where the EU and Others Have Failed?
The opinions expressed in this article are those of the authors and do not reflect the opinions of InHouse Community Ltd, or it’s employees.
 See https://www.ustreas.gov/ofac
 “US sanctions Chinese officials over Xinjiang ‘violations'”, www.bbc.com. July 9, 2020; “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy”. United States Department of the Treasury. 7 August 2020. .
 Jerry Gray, Foreigners Investing in Libya or in Iran Face U.S. Sanctions, N.Y. TIMES (July 24, 1996), http://www.nytimes.com/1996/07/24/world/foreignersinvesting-in-libya-or-in-iran-face-us-sanctions.html.
 See, eg, United States v Homa; United States v Banki