Part III – IEEPA Sanctions v. Individual Gov’t Officials – The Search for Concrete Enforcement Tools re Intentional RFI with Satellites

One additional option for a concrete enforcement tool to stop intentional RFI against satellites is for the US and European governments to sanction individuals (even government officials) engaged in intentional RFI with satellites.

Options #3: Employ International Emergency Economic Powers Act (IEEPA) Authority to Sanction Individuals (including foreign government officials) Engaged in Jamming Satellite Signals in A Manner Injurious to US National Security or US Economy.

Some of the RFI incidents meant to stop information flows to citizenry in particular countries has caused collateral damage that has disrupted US military, diplomatic, and other government (e.g. FBI) communications.  The IEEPA gives the President broad authority “to deal with any unusual and extraordinarythreat, which has its source in whole or substantial part outside theUnited States, to the national security, foreign policy, or economy ofthe United States, if the President declares a national emergency withrespect to such threat.” Specifically, the President may, among other actions, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States….” Recently, the President used IEEPA authority to sanction former and current Russian officials involved in the situation in Ukraine and also individuals involved in the arms sector and other important sectors of the Russian economy.

The President presumably has the authority to use IEEPA to sanction government officials involved in the jamming of satellite signals if the action or the collateral consequences of such actions threaten US national security or the US economy. Even making rumblings of using such authority for intentional RFI used to suppress democratic movements and/or an informed citizenry could help increase cooperation of officials responsible for the intentional RFI or responsible for taking necessary actions under the ITU radio regulations to stop intentional RFI from occurring. As stated by the Director of Treasury Dept.’s Office of Foreign Assets Control (OFAC) in a 2007 report: “The impact of these sanctions has been significant and, at times, dramatic. When OFAC designnates an individual or entity, any assets within the United States or the possession or control of a U.S. person anywhere in the world, must be frozen. Trade with or through the United States is cut off. Moreover, many non-U.S. businesses and banks have voluntarily severed all ties with individuals and entities that OFAC has listed. As a result, designated persons may lose access to their bank accounts outside the United States, disrupting their operations and freedom of access.” Of course, if the officials do not have assets abroad in the US or in the possession or control of a US person, the sanctions may not have much impact unless non-U.S. businesses and banks do in fact follow suit. (Russian Deputy Prime Minister Dimitry Rogozin tweeted out this point to President Obama following his listing under the recent Executive Orders). The EU has also blocked the assets of individual Russian officials involved in the Ukraine situation, although achieving consensus among the 28 EU member states for these types of sanctions can be difficult. See http://rt.com/news/sanctions-russia-eu-us-338/

 

Summary of Part I, II, III of “In Search of Concrete Tools”: A few concrete (legal) enforcement tool options to assist in stopping intentional RFI do exist – two in the hands of governments (Option 1 of making compliance with anti-harmful interference obligations an eligibility criteria for developing countries under GSP and other trade preferences and Option 3 of imposing economic sanctions against individual government officials) and one in the hands of private operators suffering RFI (suit in domestic courts under FSIA or analogous statutes).   The governmental options will not interfere with any US or European government military freedom, at least not directly. The question is whether concern over intentional RFI (and its collateral consequences) has reached a level that will have the US and EU governments consider adoption of either of the governmental options. Development of real enforcement teeth within the ITU is unlikely, although again those processes can be further strengthened. I should reiterate that technology plays a very important role in solving the problem, and the law is there to buttress or backstop the technological developments.

Again, stay tuned for my forthcoming article on this topic.

© Copyright: Matthew Schaefer. All rights reserved.

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