Helms-Burton Act (Libertad): Violation of
International Law & International Agreements
For almost forty years, Cuba has been a thorn in the side of the United States. In fact, during this period of time, the U.S. has placed an embargo on Cuba, hoping to bring down the government of Fidel Castro and to restore the backyard entertainment center Cuba used to be prior to its revolution.1However, despite a total embargo, the government of Fidel Castro has survived every American effort, and is well and alive thumbing its nose at the United States.
In 1996, the Helms-Burton Act (HBA) was swiftly passed and signed by President Clinton into law. Its aim, in keeping with the Cuban-American relationship, purports to be the precipitation of democratic reforms, i.e., the introduction of capitalism and the free market economy in Cuba.
The HBA empowers U.S. citizens to bring suit against foreign nationals or entities whose business is to "traffic" U.S. property seized by the Cuban government subsequent to the Cuban Revolution. Further, it empowers the United States government to deny entry to foreign nationals and their families who have been found guilty of violating the Act, and have been found "trafficking" in seized U.S. property.
This paper attempts to comment on the illegality of the HBA by looking at the principles of Public International Law, and international agreements currently in effect. It will attempt to first familiarize the reader with the HBA and then to show that it does not have a legally accepted basis upon which to apply its restrictive mandates. The HBA is nothing but an attempt to restrict not only acts of domestic nationals and entities in dealing with other international player, but also, attempts to restrict acts of foreign nationals in foreign lands in violation of accepted public international law principles.
Brief historical overview
Cuba, a republic in the Caribbean, about ninety miles South of Florida, is the largest island in the West Indies.2The American and Cuban relationship has been overshadowed by Fidel Castro's adherence to the Socialist principles and his zealous attempt to place the good of his people and his country above the interests of the United States.
Cuba and the United States have a history going back to the end of the Spanish-American war of 1898 when the U.S. gained control of the Cuban island.3Shortly after U.S. control was established in Cuba, The Platt Amendment4was incorporated into the Cuban Constitution.5
This incorporation allowed the U.S. to intervene in the local governance of Cuba. One such interference required the Cuban government to seek approval from the U.S., should it desired to enter into any treaties with any other nation.6The Amendment also established the U.S.'s right to maintain a military base on the island. Today, despite the nullification of the Amendment, and a revolution, the U.S. still maintains its military base in Guantanamo.7
Thus stabilized, the United States conducted trade with Cuba. Shortly before 1959, Cuban-American trade reached $500 million per year ($2.5 billion in 1994 dollars) and U.S. nationals had sunk billions of dollars in Cuban industries.8In fact by 1959, the year of the Castro revolution, U.S. companies had heavily invested in Cuba: International Telephone and Telegraph: $131 million, Moa Bay Mining: $88.3 million, American Sugar $81 million, Standard Oil: $71.6 million, and Texaco: $51 million.9
Thus, the U.S. was heavily involved in the Cuban affairs both economically and politically, without much concrete benefits to Cuba. The only concession that was made by the U.S., was the passage of the Sugar Act of 1948.10Since seventy seven percent of Cuban export was dependent on Sugar, the Sugar Act mandated the United States to purchase seventy percent of the Cuban export of Sugar.11Of course, Cuba was to sell to the United States at a premium price of eighty percent of the world market price.12
Shortly before 1959, the United States halted its support of the Batista regime on grounds that the regime was increasingly repressive.13Fidel Castro was considered a welcome alternative to the Batista Regime. The lack of U.S. support for Batista, led to its government's fall in 1959, and to Fidel Castro's assention into power.14By late 1959, however, the U.S. became cognizant of the fact that the Castro government was, unlike Batista, not open to the idea of allowing foreign entities to own and control Cuba's national resources. Following certain hostile acts toward the U.S. owned sugar companies in Cuba, talks began in the U.S. of reducing the Cuban sugar quota.15
So threatened, Castro began talks with the Soviet Union, and began developing trade with the Soviets to exchange sugar for oil,16and other industrial goods.17A move that prompted the U.S. and British governments to instruct American and British refineries in Cuba to refuse to process the Soviet oil.18
Once the U.S. and British owned oil refineries refused to process the imported Soviet oil, Castro's government saw no other alternative but to seize the refineries.19Once these refineries were seized, Cuba then nationalized all U.S. commercial property it controlled. Thus, the first economic sanction against Cuba was born when the U.S. reduced the Cuban sugar quota, and then eliminated it altogether.20Cuba, retaliated by nationalizing $1 billion dollars worth of U.S. private investment in the island.21By 1961, it was clear that Castro had espoused Marxist-Leninist principles. A revelation that led the U.S. State Department to classify Cuba as "a bridgehead of Sino-Soviet imperialism within the inner defenses of the Western Hemisphere."22
Form then on, the United States followed a foreign policy that aimed for the political and economical isolation of Cuba. So isolated, Cuba saw no other recourse but to follow a policy of friendship with the only entity willing to help it: the Soviet Union. Animosity between the two country then became a way of life. This animosity and antipathy of the U.S. government towards Cuba could be seen through out the 1960's, from the Cuban Missile Crisis, to 1970's and Cuban military involvement in Ethiopia and Angola, to the 1980's and the Reagan's Red-Scare in Latin-America,23to the 1990's and the "humanitarian" actions of the Cuban-American gangs know as "Hermanos al Rescate"24
The U.S.-Cuban relationship could be classified as one of "threat" and the "threatened." Cuba remained the thorn in the side of the United States and, in turn, the United States, actively sough the destruction of the Castro government, by any means, short of direct military invasion since that route had already been unsuccessfully attempted.25
In the 1990's, the world witnessed major changes. These changes affected Fidel Castro's foreign investment policies. Indeed, with the fall of the Soviet Union, and its disintegration, Cuba lost one major benefactor and when the Soviet aid vanished, Cuba faced a major economic and political crisis. By 1994, major political unrest26prompted the Cuban government to reform its foreign investment policies and become more open and inviting toward foreign capital and companies.27
The Cuban reforms included permission for private ownership of land and formation of joint ventures with foreign companies.28This move by the Cuban government alerted the U.S. to the fact that time may be rip to tighten the almost forty year noose around Cuba.The United States government, sought to take advantage of the vulnerable economic situation Cuba found itself engulfed in and proceeded to tighten the embargo on Cuba, and passed into law the Cuban Democracy Act (CDA) in 1992.29It was hoped, that without the Soviet help, the U.S. embargo will inevitably bring down the Castro government30and hence allow the United States to re-establish its profitable ventures in Cuba, and return to the good times of the 1950's.
The CDA's aim was the prohibition of any trade between Cuba and all firms, owned or operated by U.S. nationals.31But the aims of the CDA became very limited when American firms, prohibited from doing business in Cuba, were left behind when other foreign entities, taking advantage of the new Cuban policies, started to conduct profitable business in Cuba.32Another policy was needed to be pursued if the long standing embargo was to see its intended result. The question was how to pass a law that would affect U.S. trading partners' behavior.
The perfect opportunity, for the U.S. to justify an increase of pressure on the Castro's government, and to respond to the new Cuban open investment policies, presented itself when two planes belonging to Cuban-American gangs in Florida were shot down over Cuban airspace.33Without much debates or hearing, the Congress passed the Helms-Burton Act (HBA), and President Clinton signed it into law on March 12, 1996. The HBA codifies the embargo against Cuba, and allows the U.S. nationals to bring an action, in U.S. District Courts, against any person or entity who is engaged in the "trafficking" of seized U.S. property.34Moreover, as mentioned before, HBA allows the U.S. Officials to prevent entry into the United States of persons, and their dependents, who have been deemed in violation of HBA.35Needless to say, this act, as it will be demonstrated, is in clear violation of international law, and international treaties such as the General Agreement on Tariffs and Trade, and North American Free Trade Agreement.
In sum, the U.S.-Cuban relations have been a tumultuous one, in which, for almost forty years, the United States has sough to be compensated for lost investments, and, more importantly, has sough to overthrow Fidel Castro's government. However, the unpopularity of the U.S. policies towards Cuba, has resulted in nothing more than the isolation of the United States in its endeavor to bring back what Cuba was before the populist revolution led by Fidel Castro. In fact, the isolation of the U.S. in its polices towards Cuba can be seen when, in the last UN vote, 143 nations supported a UN resolution chastising U.S. policy toward Cuba.36Moreover, in recent poles, even within the United States, the idea of destroying a country's economy and starving its people has grown to be an unpopular one.37
The Helms-Burton Act
"To seek international sanctions against the Castro government in Cuba," the HBA proclaims, "to plan for support of a transition government leading to a democratically elected government, and other purposes."38In March 1996, President Clinton signed into law the HBA.39According to a senior government official, HBA will affect between 100 and 200 companies who can be said that are "trafficking"40in confiscated U.S. property in Cuba.41
At first, this Act appears to be nothing more than a U.S. foreign policy limited to Cuba.42But, looking deep inside the Act's aims and functions, one cannot help but notice the far reaching effects of it on businesses, foreign countries, international trade agreements, and international law itself.43
The Act is written in terms of four titles. They are: I) Strengthening International Sanctions Against the Castro Government;44II) Assistance to Free and Independent Cuba;45III) Protection of Property Rights of United States Nationals; and IV) Exclusions of Certain Aliens. The heart of the Act, and by far the most controversial parts of it, is found in Title III and to some extent, in Title IV.
This is where most controversies about the HBA begin. The Congress, in its findings, has declared that the Cuban government has been offering foreign investors an opportunity to purchase an equity interest, manage, or enter into joint ventures using confiscated property.46That this "trafficking" in confiscated property provides badly needed financial benefits to Cuba which undermines the United States efforts to bring about an end to the populist government of Cuba and establish a democratic regime and free market economy in Cuba.47
To mend this situation, the Act has created two kinds of plaintiffs. To bring an action under this Act, each class of plaintiff: 1) must have acquired ownership of their claim to the property before March 12, 1996, if the property was confiscated before that date;48which attempts to eliminate the creation of a market for claims to confiscated property;492) must not have acquired post-confiscation ownership by assignment if the property was confiscated on or after March 12, 1996;503) fixes the statute of limitation for bringing an action against those who have engaged in the prohibited "trafficking" at two years after the such persons have ceased their activities;514) and the claim must meet the minimum amount in controversy of exceeding the sum of $50,000, exclusive of interest, cost, and attorney's fees;52and 5) who may have a claim after the end of the 3-month period beginning on the effective date of Title III.53
The first class of plaintiff are those who's evidence of ownership has been certified by Foreign Claims Settlement Commission under Title V of the International Claims Settlement Act of 1949 ("the Commission").5To successfully bring a suit, a plaintiff needs to have his claims certified by the Commission, following which a court has the obligation to "accept as conclusive proof" such a claim of ownership.55
Once these showings have been successfully made, the plaintiff becomes entitled to recovery of any amount that has been certified by the Commission,56or the fair market value of the confiscated property, calculated as being either the current value of the property or the value of it at the time of the confiscation plus the interest, whichever is greater.57
The other class of plaintiffs are those whose claims have not been certified by the Commission.58In such a case, a court may appoint the Commission (or any other entity) as a special master to determine the ownership and the amount of the claim.59Still, such a determination is only for evidentiary purposes and are not to be viewed as a certification.60
Additionally, this class of plaintiffs, are precluded from bringing an action on a claim if: 1) they were eligible to bring an action but failed to get their claims certified by the Commission;61or 2) their claim was denied by the Commission;62or 3) no other person has made a claim to the property at issue.63
Title III does not concern itself only with the above enumerated issues. There are other provisions included in this Title. As it will be mentioned later, one important defense that has been used in the past by governments of the world to justify their actions has been excluded.64Moreover, any plaintiff bringing a claim under this Act, may not bring another claim in civil action based on the same subject matter seeking monetary or non-monetary compensations,65nor can any plaintiff bring any other actions which would be acceptable to bring under this Act.66
One aspect of the Act that is worth noticing and will be discussed later in this paper in more detail, is the fact that this Act renders inapplicable the Act of State doctrine which would have been a tremendous hurdle to overcome by any plaintiff.67Moreover, the Act gives the President several ways to suspend68the effective date of the Act, or for the termination of the rights granted under this Act.69
Thus, Title III attempts to create liability within the U.S. for activities that involve properties situated outside the territory of the U.S.70Using this, the United States is asserting its "extraterritorial" prescriptive jurisdiction over activities of foreign, and domestic owned foreign entities and/or nationals.71However, unlike other laws seeking to prevent or reduce the effects of foreign activities within the U.S., such as anti-trust laws, Title III of the Act is aiming only at external forces, nationals and entities.72
Entitled "Exclusion From the United States of Aliens Who Have Confiscated Property of United States National or Who Traffic in Such Property,"73section 401 of Title IV of HBA seeks, as its title makes abundantly clear, to exclude anyone from the U.S. territory, including their dependents, spouse, children or agents, who has been found to be in violation of the dictates of the Act.74
This Title's aim, as was the aim of Title III, is to encourage persons who have the ability to make decisions to refuse doing business with Cuba and to "traffic" in confiscated properties; properties, the United States claims to be property of its nationals. Control of one's nation's borders is one essential feature of sovereignty,75and thus the United States has a legitimate right to exclude anyone from entry into its territory.76
Title IV, provides for enigmatic exemptions. Section 401(c) empowers the Secretary of State to exempt the denial of entry into the United states of a foreign national if the foreigner is seeking to enter the U.S. for the purposes of litigation of an action under Title III, or that the entry is necessary for medical purposes.77Moreover, when President Clinton signed the HBA, he carved out an additional exemption to it, under which, the Act cannot restrict diplomats traveling to the U.S. or the UN.78Not to provide for this would have placed the U.S. in violation of other treaties, the UN treaty amongst them. This innocuous and seemingly legitimate control of borders, may lead to violations of international agreements such as the North American Free Trade Agreement (NAFTA), which limits restrictions that can be placed on business travel.79While it is true that such concerns may be legitimate, one cannot, and should not assume that the U.S. national security concerns are without merit.80
Act of State Doctrine
The Act of State provides that certain acts of a foreign state will be presumed valid, and that the U.S. court will not sit in judgment of those acts.81The notion of Act of State is essentially a judicial doctrine, and the courts in most states have exercised restraint in challenging the doctrine, especially when it comes to acts of expropriation.82Essentially, in cases where the principal acts have occurred on foreign soil, the courts prefer using foreign laws, unless such a use would be in conflict of U.S. domestic laws.83
The removal of the Act of State doctrine (a doctrine that was most famously described in Banco Nacional de Cuba v. Sabbatino,)84 from the defenses Cuba could present is significant in that it denies what has long been recognized as a bonafide and legitimate policy aiming to prevent conflict of laws, to exercise comity between the courts and to prevent the extraterritorial application of the U.S. and interpretation of foreign laws.
The Sabattino case arose out of the Cuban reaction when President Eisenhower exercised his newly acquired powers under the Sugar Act of 1948 and reduced the Cuban sugar quota.85In turn, the Cuban government adopted Law No. 851, characterizing the quota reduction as an act of aggression against Cuba for political purposes and called for taking of counter-measures.86
This Cuban counter-measure gave discretionary powers to the Cuban authorities to nationalize American property in Cuba.87Among the companies that were nationalized, was Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a Cuban corporation whose stock was mostly owned by U.S. residents.88Once nationalized, C.A.V.'s wholly owned subsidiary entered into a second contract for the sale of the Cuban sugar.89But once the sugar was delivered to its final destination, the subsidiary refused to pay the Cuban government's share of the proceeds.90Instead it turned to C.A.V.'s receiver Sabbatino.91Thus, Banco Nacional de Cuba, who held the right to payment under the second contract, brought suit in the U.S. District Court against Sabbatino and C.A.V.'s subsidiary.92
The U.S. Supreme Court took notice of the fact that although a system for compensation for the confiscated property has been provided, it was illusory;93and, that the U.S. State Department had described the Cuban retaliatory measures as "manifestly in violation of those principles of international law which have long been accepted by the free countries of the West, and it is in its essence discriminatory, arbitrary and confiscatory."94
In reaching its decision, the Court came to the conclusion that however offensive to the public policy of this country and its constituent states an expropriation of the kind conducted by the Cuban government may be, both the goal of protection of national interest95and progress toward establishing the rule of law among nations are best served by maintaining intact the act of state doctrine.96Thus, the court refused to pass judgment on the acts of the Cuban government and the proceeds from the sale of the sugar were released to Cuba.
Shortly after the Sabbatino decision, Congress passed the so-called Sabbatino Amendment.97The Amendment clearly aimed to overturn the decision reached by the Court in the Sabbatino case. However, decisions of the courts based upon this Amendment have interpreted the Sabbatino Amendment extremely narrowly to require the non-application of the Act of State Doctrine only when there are claims of title to specific property actually before the court.98
But, excluded from the HBA, the Act of State Doctrine is not available to the Cuban government to protect itself from the reach of the U.S. citizens. If Cuba is to challenge the HBA and to defend its appropriation of U.S. property, it must do so using other arguments. The fact that the Cuban government had offered to compensate U.S.-based corporations and that they refused such a compensation can be significant. Indeed, the U.S.-based corporations, hoping to minimize taxes paid to the pre-Revolutionary Cuban government, had kept the book value for their property low.99Then, the same corporations refused to accept compensation based on the same book value...
Authority to Pass Such Law
The President has been explicitly empowered, with the advice and consent of the Senate, to make treaties.100Moreover, the Congress has been empowered to "define and punish offenses against the Law of Nations."101It is generally agreed that the President has wide authority to declare the Official U.S. position vis a vis international law.102In this, the presidential decision can be influenced by the Congress, or can even be dictated by it, but the President does have the center stage in the pronunciation of the U.S. views in the international arena.103
Indeed, international law, whether a treaty or as part of the customary international law, is part of U.S. law and therefore must be given the appropriate arena in the U.S. courts.104The supremacy clause of the Constitution has included treaties and any laws of the United States made pursuant to the Constitutional mandates in its definition of "supreme law of the Land."105
The provisions of the HBA have created an interesting situation. The President is the sole organ of the federal government in the field of international relations.106This power is not given to the President by the Congress, they are powers that must be exercised with the Congress.107Thus, even thought it is the President's prerogative to conduct foreign affairs, HBA has made the conduct of foreign affairs one that is being dictated by the Congress, and has in effect subordinated the office of the Presidency, or the Executive Branch, to the Congressional will.
It has been previously accepted that the danger of embarrassing, or even seriously embarrassing, the United States dictates the deferment of other branches of government to the President's judgment and discretion when it comes to the international arena.108However, HBA has switched this accepted notion, and has placed in the hands of Congress decisions that deeply affect foreign policy and international law, perhaps in contravention of the U.S. Constitution or the Law of Nations.109
Violation of International law
Title III of HBA is in violation of International Law. Indeed, The exercise of jurisdiction by a state can typically be based on five recognized prescriptive jurisdiction.110They are territory nationality, protective, passive personality and universal.111We will first briefly examine the international application of each and then how each differ or are similar in the U.S. view of these notions.
It is an essential attribute of the sovereignty of a nation to possess jurisdiction over all persons and things within that nation's territorial limits and in all causes, civil and criminal, arising within these limits.112Accordingly, the mere physical presence of any person within a nation's territory is considered a sufficient enough reason to establish jurisdiction over that person regardless of the person's permanent residence.113If one person is merely visiting, even as a tourist, then such a person, for as long as he remains within the territory of a given nation, has submitted himself to the jurisdiction of the courts of that particular nation.114
Two principles dominate the nationality jurisdiction: Active Jurisdiction, under which jurisdiction is assumed by the state where the person accused of the wrongdoing is a national,115and Passive Jurisdiction, under which jurisdiction is exercised by the state of which the victim is a national.116
Additionally, international law recognizes jurisdiction of a state over adjudication of crimes against its security, integrity or its vital economic interests.117This principle is usually referred to as the protective principle of prescriptive jurisdiction. This interesting principle has made each nation its own judge in deciding what has endangered its security or its financial credit so as to allow it to exercise such jurisdiction over a person, and has made the application of the protective jurisdiction quite arbitrary.118
Finally, Universal Jurisdiction refers to crimes that come under the jurisdiction of all nations, no matter where they have been committed.119Certain acts are in general against the interests of the international community and as such, every nation can advocate jurisdiction over them.120Acts such as piracy in the high sees, for example, are such crimes where every nation in the world is affected. Therefore, no matter which nation happens to get a hold of the offenders, they can decide to exercise jurisdiction and punish the offender.121
The United States view on prescriptive jurisdiction has been voiced in the Restatement (Third) of Foreign Relations Law, sections 402 and 403.
§ 402 of the Restatement (Third)
§ 402 of the Restatement (Third) of Foreign Relations Law provides for the basis upon which a nation can exercise its prescriptive jurisdiction. A nation may prescribe law with respect to: 1(a) conduct that wholly or in substantial part takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has, or is intended to have substantial effect within its territory; 2) the activities, interests, status, or relations of its nationals outside as well as within its territory; and 3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state, or against a limited class of other state interests.122
It appears that Title III of HBA cannot be based on any of the factors above, except the "substantial effect" as stated in 1(c) of the Restatement. Indeed, HBA is not based on the nationality principle since it attempts to control acts of other nationals, not necessarily U.S. nationals, in foreign lands.123Section 402's protective principles do not apply either, as the aim of HBA is not to protect the United States against outside threats to its security, but to allow U.S. nationals to bring suit in U.S. courts against any entity "trafficking" in U.S. confiscated businesses in Cuba.124
Hence, only 1(c) may be even remotely considered applicable.The "substantial effect" principles have been a source of controversy. The U.S. courts have, in the past, used this principle to exercise extraterritorial jurisdiction and to impose U.S. laws on U.S.'s trading partners.125Disputes have risen that have led to American Courts applying U.S. anti-trust laws extraterritorially because of the substantial effects that overseas practices have on the U.S. market.126Other such disputes, but involving nationality principles of § 401, have risen in the context of American export controls when the United States attempted to restrict American owned subsidiaries located overseas to enter into trade with China, or to participate in the construction of Soviet pipeline to Western Europe.127
It is difficult to understand the "substantial effect" dealing with Cuba has within the United States. When a foreign entity does business in Cuba, even if such business may involve land or assets confiscated over forty years ago, it is difficult to see any effect within the U.S. In fact, it is open to debate whether any effect is felt within the United States when acts prohibited by HBA occur, as they do everyday. In principle, it is the acts of the Cuban government, nearly forty years ago, that had a "substantial effect" in the United States,128and not any act that may be committed by any person or entity doing business with Cuba today. Nothing that foreign entities do, or transact in, has any effect in the United States, other than placing U.S. companies and person at a disadvantage.
Besides placing the America firms behind the Canadians and the Europeans who are making profitable deals in Cuba, the only other effect that may be felt within the United States as a result of foreign nationals or entities actions in Cuba in contravention of HBA, is stated in §301(6) of HBA: "the trafficking in confiscated property provides badly needed financial benefit, including hard currency, oil, and productive investment and expertise, to the current Cuban Government and thus undermines the foreign policy of the United States."129
It is indeed a new development in international law to find basis for prescriptive jurisdiction on badly conceived foreign policy, a policy that the world of civilized nations, have decided that should be changed.130Thus, prevention from full implementation of United State's foreign policy, is in effect "substantial" enough to warrant prescriptive jurisdiction!The Restatement (Third) takes the position that a state may exercise jurisdiction based on effect in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable under Restatement (Third) of Foreign Relation Laws §403.131
§ 403 of the Restatement (Third)
Restatement (Third) §403(1) requires a test of "reasonableness" to be conducted even if one of the bases for jurisdiction under §402 has been found to be present, before a state may exercise jurisdiction to prescribe law with respect to a person or activity having a connection with another state.132
Indeed, a court is asked to evaluate all relevant factors including: a) the link of the activity to the territory of the regulating state, or the extent to which the activity takes place within the territory, or has substantial, direct, or foreseeable effect upon or in the territory; b) the connections, such as nationality, residence, or economic activity, between the regulation state and the person principally responsible for the activity to the regulated, or between that state and those whom the regulation is designed to protect; c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities and the degree to which the desirability of such regulation is generally accepted; d) the existence of justified expectations that might be protected or hurt by the regulation; e) the importance of the regulation to the international political, legal, or economic system; f) the extent to which the regulation is consistent with the traditions of the international system; g) the extent to which another state may have an interest in regulation of the activity; and h) the likelihood of conflict with regulation by another state.133
It is necessary to look at the entire scope of the "reasonableness" in order to be able to conclude that Title III of HBA asks a court to enter into a political realm for which courts are not qualified, especially where the political realm pertains to foreign policy. In fact, the "comments" to §403 reflect the undetermined nature of such an evaluation when it states that: "the list of consideration in (2) is not exhaustive, [but] the weight to be given to any particular factor or group of factors depends on the circumstances."134
Looking at all the above cited factors, one is faced with many open ended factors and a highly subjective evaluation of the matter. It is no help to think that "reasonableness" is indeed in the eye of the beholder. Thus, this section cannot be predictable as to how it affects the implementation of HBA, but one can only say that in all probability, it will not be an impediment to finding prescriptive jurisdiction, if one has passed the §402 hurdles.
But, whether any court will be able to conclude, with a straight face, that as a result of a "substantial effect" in the U.S., which is the non-working of foreign policy as planned, then it is "reasonable" for the U.S. court to exercise jurisdiction over criminals who are contributing to the demise of the U.S. foreign policy, remains to be seen.
Principle of Continuity
One other relevant issue under international law is the principle of "continuous nationality" which requires a claimant to an expropriated property to show that the subject of the claim has been "continuously owned from the date the claim arose, and at least to the date of presentation, by nationals of the state asserting the claim."135It is well settled that no claimant is entitled to diplomatic protection of the state whose assistance is invoked unless such claimant was a national of that state at the time when the claim arose and continuously thereafter until the claim is presented.136Thus, this requirement requires a claim to be a national one, not only at the time the claim is presented but also at the time where the appropriation has occurred.137
Title III of HBA claims that since Fidel Castro has taken power in 1959, he has trampled on the fundamental rights of the Cuban people;138and through his personal despotism, he has confiscated the property of (i) millions of his own citizens; (ii) thousands of United States nationals; and (iii) thousands more Cubans who claim asylum in the United States as refugees because of prosecution and later became naturalized citizens of the United States.139
Consequently, it is dubious what exactly HBA is trying to achieve. If, as the circumstances of the Act's passage demonstrate, it is intended to protect and to satisfy the Cuban-American gangs whose activities in the Cuban waters prompted the passage of HBA, then, asking for the return of property owned by individuals who were not U.S. nationals at the time of the taking, is in violation of long standing U.S. principles vis a vis international law.
Indeed, as the act itself proclaims, many Cuban-Americans, who mostly reside in Florida, have seen their property confiscated and now are eagerly awaiting an opportunity to bring suit in the United States courts for compensation. Allowing any such suit to be brought, will indeed place any Court in a position to either strike down long standing principles, or to flatly deny standing to bring such a case.
HBA is a Secondary-Boycott
Certain scholars have argued that HBA is in intent and effect a secondary boycott of Cuba because it is attempting to force the nationals of third States to participate in the American embargo on Cuba.140Interestingly enough, the United States has openly opposed the imposition of such a boycott upon Israel by the Arab nations and has passed legislation prohibiting U.S. companies from compliance with such laws.141
Thus, it is argued, that the United States is in violation of its own policy, and that of the international law, when it seeks to impose its foreign policy and embargo towards Cuba on other nations.142In fact, the United States can hardly deny this intent, when the act itself proclaims that one reason it has been enacted is to prevent Cuba from escaping the effects of the U.S. policy and its embargo.Of course, it can be vaguely argued that it is perfectly possible to deal with Cuba, as long as the third entity is not trafficking in appropriated property. In light of the fact that before the Cuban Revolution, 80% of the Cuban land was owned by the U.S. nationals and those affiliated with it, then this faint specter of an argument in favor of HBA becomes even less of an argument.
In short, Title III of HBA, is in violation of international law as it can barely justify itself in light of §402. It is not certain exactly what "substantial effect" the makers of the HBA refer to when they speak of action of foreign nationals or entities dealing with Cuba and confiscated properties. But that is the only way one could justify the passage of the law, if we are to at least, for the sake of appearances, to argue that HBA is consistent with the American views and understanding of international law. In any event, it is difficult to distinguish the reasons why HBA exists, because long lasting U.S. principles and domestic policies go contrary to the spirit and intent of this Act.
Violation of International Agreements
Not only is HBA in violation of international law, it is also violating treaties United States has entered into with other foreign bodies, namely, the European Union, Mexico and Canada.
North American Free Trade Agreement
The North American Free Trade Agreement (NAFTA) is a congressional-executive agreement.143In fact, it is a treaty that binds the United States in its relations with other nations. In considering potential claims brought under HBA, courts have to consider the effect of such law on NAFTA and its workings.144NAFTA purports to have, as a working principle, the "harmonious development and expansion of world trade and [to] provide a catalyst to broader international cooperation..."145
Thus one of the intended spiritual intention of this agreement is the development of trade. Yet, HBA aims at punishing those who want to expand and engage in trade with Cuba.The HBA is in violation of at least two articles of NAFTA. The "minimum standard of treatment" requiring each signatory to the agreement to treat investments of other Parties according to the international law.146If HBA is in violation of international law, then it is also in violation of NAFTA. Moreover, parties to NAFTA have agreed to grant temporary entry to business persons.147It guarantees to facilitate temporary entry of business persons engaged in business activities as long as that person complies with the existing immigration measures.148
Title IV of HBA which condones the refusal of entry into the United States of those who are engaged in "trafficking" in confiscated U.S. property, will be in clear violation of NAFTA, should the United States refuse to grant entry to a Canadian or Mexican business person who is otherwise is engaged in forbidden business with Cuba.Also, NAFTA's requirements that no Party is to adopt or maintain prohibition or restriction on the importation or exportation of goods,149has been placed in a state of vacuity. Because, Title I of HBA has placed a prohibition on entry of any goods that have 1) Cuban origin; 2) is or has been located in or transported from or through Cuba; or 3) is made or derived in whole or in part of any article which is the growth, produce or manufacture of Cuba.150
One the one hand, NAFTA dictates no prohibition as such, and on the other hand HBA places exactly the kind of prohibition that has been prescribed in NAFTA.These prohibitions clearly deny Canada or Mexico the right to import any product that has ever touched Cuban soil,151and thus places a restriction on the manner in which Canada or Mexico decide to do business. Although there is an "out" for the United States, the spirit of NAFTA, at least, has been violated. Indeed, in section 110(b)(2), it is stated that Article 309(3) of NAFTA permits the United States to adopt such prohibitive measures.152In doing so, the United States is inevitably interfering with domestic affairs of the other signatories of NAFTA.
The European Union (EU) has complained that HBA is in violation of Articles I, II, V, and XI of General Agreement on Tariffs and Trade (GATT).153In fact, the British Government has called HBA a "straightforward attempt to interfere in the commercial decisions of foreign companies about the sourcing of raw materials,"154and that it represents a prima facie case of the United State's breach of obligations under World Trade Organization (WTO).155
Article I of the GATT, entitled "General Most-Favored-Nation Treatment," provides that with respects to customs duties and charges imposed on importation, any advantage, favor, privilege or immunity granted by any party to any product shall be accorded immediately and unconditionally to the like product.156Thus, this protection prevents any Party to discriminate against another and prevents uneven treatment between the signatories as it pertains to trade, imports and exports. Thus, it is conceivable that the United States may refuse entry of sugar by an EU member 157who has purchased the sugar in Cuba, and yet allow the same product to enter the U.S. if it is exported by another EU member exporting Belgian sugar.158This discrimination would be in direct violation of GATT.
Article III of GATT calls for national treatment of foreign imported goods.159In essence this provision provides that whatever restrictions exist on a domestic product, or taxes or laws affecting such products, the exact same shall apply to the imports so as not to place the domestic product at an advantage vis a vis the imported one. Once more, HBA is in direct violation of GATT, in that a EU member would be in violation and thus its goods would be prevented from entry into the U.S. if any ingredients used to make its product have been made in Cuba, whereas the exact same product, imported by an American firm, who has not made use of the Cuban ingredients, would face no import restrictions, placing the domestic firm at an advantage, in direct conflict with GATT.
"Or other measures," places HBA in conflict with Article XI of GATT. This Article states that no prohibition or restriction other than duties, taxes or other charges, whether made through quotas, import or export licenses or other measures, (emphasis added), shall be maintained by any other contracting party on the importation or sale for export of any product destined for the territory of any other contracting party.160Consequently, an EU corporation using Cuban sugar as ingredient, or dealing in Cuban sugar itself, will feel the grunt of HBA at the moment it tries to deal with the United States who then will be in violation of GATT since the prohibition placed by HBA on imports of goods of Cuban origins can be seen to be "other measures" as mentioned.161
Lastly, the Act is in violation of Article V of GATT which provides for the freedom of transit of goods (including baggage), and also vessels and other means of transport.162Contrary to this freedom, HBA prohibits the entry into the United States of any goods that has been located in or transported from/or through Cuba.163Thus, once more, there is a clear violation of GATT. This violation may be deeper than what meets the eye. In fact, if the EU country in question, dealing with Cuban sugar (to be consistent) wants to sell its goods in Canada, then it has to take the longer route to Canada, because such goods may not enter the United States, and therefore create an economic disadvantage for the EU country. In an even more blunt illustration of the absurdity of HBA, is the question of whether an aircraft, even if not transporting goods, but fueled in an airport in Cuba, may cross U.S. airspace or does it find itself re-routed several miles to the West of U.S. territory? This absurdity and other unfair practices makes HBA a point of contention between the EU, Canada and Mexico versus the United States.
European Union Reaction
Shortly after the passage of HBA, the U.S. trading partners took measure to counteract the effects of the Act in their respective sovereign nations. In fact the EU has several options in order to combat the U.S.'s policies aimed at the elimination of investments in Cuba. The EU officials see it as essential to voice their discontent against the extraterritorial reach of HBA, and other similar legislation previously passed by the U.S. legislature.164
To this end, several measures have been proposed. For example, the EU may decide to refuse U.S. Executives' access to EU nations; or, can create a "watch list" of U.S. companies taking legal actions against EU companies and then retaliate in kind; or pass "neutralizing" legislation that will refuse to honor any adverse judgment passed upon an EU company in a U.S. court.165In short, HBA has become a source of souring relation between the EU and the U.S.
United Kingdom (UK)
The UK has been dealing with the U.S.'s extraterritorial activities since the 1950's.166The Anglo-American conflict has led to the passage, by the British Parliament, of Protection of Trading Interest Act (PTIA).167Although PTIA was passed in the 1980's, it is still relevant today. This Act, in essence, enables the British government to make Orders and Directions to: 1) prohibit compliance by any person in the UK with foreign laws for regulating and controlling international trade outside the country concerned which damage or threatening to damage the trading interests of the UK; 2) prevents UK courts from ordering the production of evidence in the UK requested by a foreign court where the request infringes upon UK jurisdiction; 3) prevents UK courts from enforcing awards of multiple damages by foreign courts; and 4) enables British citizens and corporations and other persons carrying on business in the UK to recover in UK courts the multiple part of multiple damages awarded against them in an overseas court.168
It is interesting to note that since the passage of PTIA, in all but one of the occasions, the intransigent laws were those of the United States!169The UK correctly views that in international law, and in practice of comity towards other nations, a state should exercise jurisdiction only over matters occurring within its territory and over conduct of its own citizens and corporations.170In fact, as we have seen earlier, the U.S., at least on paper and as pronounced in the Restatement (Third), holds very much the same principles to be true. Yet, HBA seem to go against all such established principles.In a more recent move on the part of the UK, following the passage of the Cuba Democracy Act of 1992, an Order was issued prohibiting any person in the UK from complying with the extraterritorial aspects of the U.S. embargo on Cuba.171Again, UK has correctly taken a stand that the U.S. embargo on Cuba is a bilateral matter between those two countries.172The 1992 Order was in part superseded by the EU's response to the U.S. sanctions.
EU, WTO and the U.S.
The EU responded to the passage of HBA both politically and legally. Politically by formally protesting the U.S. law through notes to the U.S. administration and the U.S. Congress173and legally, by logging a complaint with the World Trade Organization, in Geneva.174In the complaint, the EU asked for a panel of three judges to assess the case unless a solution through negotiations can be reached.175
The request was granted in November 1996; however, WTO agreed to suspend its activities regarding the issues presented to it by the EU for review, pending ongoing negotiations.There are indications that the negotiations between the EU and the U.S. will lead nowhere. Instead, it seems that both entity will quietly forget about the law and conduct business as usual. Indeed, the EU's demands that HBA be repealed will likely not come true.176At the same time it is apparent that the United States understands the overreaching of HBA, but cannot pass legislation to the contrary, and thus things remain at a stand still, for the moment. In fact, the disputes panel of the WTO, that was suspended, was allowed to lapse.177However, the EU is ready to instigate another panel at the WTO if the U.S. takes any action in compliance with HBA that would be against the EU's interests.178Meanwhile, the U.S. government's suspension of the effective dates of Title III has created an uneasy truce between the U.S. and the EU.179
The fact of the matter remains, that no matter how one is to justify HBA, it is against the stated policies of the U.S., and established principles of international law declared by this country. These policies purport to have as objective the growth in the world trade. Yet, the U.S.'s measures in HBA goes contrary to these stated objectives. In an interesting move, and one that may be representative of the easing of the sanction against Cuba, and one that may be the result of the skillful manipulation of the mutually satisfactory visit of the Pope to Cuba, the U.S. declared that it will allow flights into Havana for humanitarian and family visits and permits $1,200 in annual gifts to relatives residing in Cuba.180Moreover, and perhaps more significant, is the preliminary approval for U.S. makers of medical gear and pharmaceuticals to attend a trade show in Cuba.181
The United States' declared policies towards Cuba may well prove themselves fruitless in that they only serve to isolate the United States from its trading partners around the world. Furthermore, the hostilities of the United States towards the lonely island of Cuba, may only strengthen the Government of Fidel Castro. Cuba, under Batista's corrupt regime, served as America's brothel, and is now embargoed for its attempt to be free.182Moreover, provision of the HBA have been suspended and are being ignored fearing a real challenge of it in WTO. A challenge that is a not welcomed, either by the EU nor the U.S., because, on the one hand, if the United States wins, which is extremely unlikely, then the road becomes clear for all GATT and WTO members to enact domestic laws that go directly to enhance and support their nations foreign policy.183
A situation that is clearly unwelcomed and that predictably would lead to the demise of all world organizations that aim at the brining together of trading parties.On the other hand, if the EU succeeds in its case against the U.S. and HBA, which is perfectly plausible, then it is likely that the U.S. government would advocate the "national security" exception to the WTO and GATT.184This move, then in all likelihood, will give a similar excuse to all other members of WTO and GATT to act in similar fashion and, in the name of "national security," legislate extraterritorial foreign policy.185Clearly, another result that would undermine the purposes behind trade organizations and trading partners. In short, the United States has created a potential destructive weapon that if it insists on its applicability will surely result in the destruction of the already precarious agreements that has led to the creation of the WTO.
While the U.S. administration has so far suspended the "right to bring an action" as permitted by §306(c)(2) of HBA, liability is continuing to attach. On April 7, 1997, Senator Helms announced that: "if the President waives [Title III] again, we will give him hell."186Thus, it may be that the uneasy truce between the U.S. and its European partners may well be short lived by short sighted and self serving politically motivated legislation.
Other Countries Reaction
In a spoof of HBA, the Canadian lawmakers introduced a law that demands compensation for land seized from their Tory ancestors during the American Revolution.187Lately, Canada has become Cuba's largest trading partner, and is active in many different areas from tourism to beer-brewing.188Moreover, Canada is extremely annoyed at the U.S.'s attempts to dictate its foreign trade policy. Canada also has laws that are in direct conflict with HBA. Thus, any consideration as to the reasonableness of extraterritorial application of the U.S. law, according to the Restatement (Third) §403, will fail because such consideration will have to take into account the conflicting Canadian laws.
Canada has joined the EU in the WTO complaint,189and, similarly to the UK, will not recognize court rulings issued in accordance with HBA, and will not help the collection of judgments issued against Canadian firms.190Moreover, a targeted Canadian firm will be allowed to bring counter-suits against Canadian subsidiaries of American firms who make use of HBA.191In this manner, Canada not only has counter measures in place against HBA, but wants to permit the descendants of loyalists who fled to Canada to reclaim their property that was unjustly and illegally confiscated by the revolutionary Americans!
Mexico has found itself in an interesting position. On the one hand, Mexico is only recovering from the peso devaluation of 1994, and the resulting high interest rates, unemployment, fallen domestic consumption and foreign investment; all factors that have increased the importance of export for Mexico.192On the other hand, Mexico's trade surplus with the United States is about $600 million per month.193With all this, Mexico has been placed in an unenviable political position vis a vis the U.S.
Despite this position, Mexico has joined forces with Canada in its action for unfair trade practices under NAFTA and has tried to convene a NAFTA dispute resolution panel.194Mexico has also passed laws to reverse the effects of HBA. Comparable to the UK and Canada, the Mexican legislation makes it illegal for any Mexican entity to cooperate with foreign authorities concerning their activities; and prohibits the Mexican courts from recognizing judgments based on HBA; and finally it allows Mexican companies to sue in Mexican courts for the recovery of damages assessed against them under the HBA.195
Any consideration of reactions to the HBA cannot be complete without that of Cuba. Cuba firmly believes that its economic problems cannot be solved by the United States, nor by the economic system so advocated and encouraged to be implemented in Cuba.196Understandably, Cuba has condemned the HBA and on December 24, 1996, it adopted the Reaffirmation of the Cuban Dignity Act.197Cuba has also attacked the HBA's existence in WTO believing it to be in violation of the Uruguay Round provisions on most-favored-nation treatment to other countries, and other trade agreements.198
Cuba believes that the UN resolution 51/17, which overwhelmingly condemned the continuation of the Cuban Embargo,199shows the U.S. intransigence towards Cuba and the U.S. insensitivity towards its other trading partners.The Cuban Dignity and Sovereignty Act proclaims that Cuba is indeed willing to pay adequate and just compensation for expropriated property,200but that it will deny such compensation to any company, entity or person who makes a claim under HBA.201
Moreover, any money that has been sent by persons of Cuban origin residing outside Cuba to family members inside Cuba will be tax free, and the government will do all in its power to expedite such monetary transactions.202If anything, HBA has strengthened the Cuban resolve to stand, unbowing, in front of the forty-year old U.S. assault against it.
Support of Helms-Burton
In its attempt to oust Fidel Castro from Cuba, the U.S. has reached a point when it may become necessary for it to defend laws it has passed that affect other nations and their nationals. Both NAFTA203and GATT204provide for a "national security" exception and thus, the U.S. can advocate national security and justify its actions under such a theory. "Good faith" is not expressly mentioned in any part of NAFTA or GATT as it pertains to the determination of "national security." The requirements for the determination of the existence of a threat to a nations' security is a concept that is left to be defined by the nation advocating such a defense.205Therefore, it is conceivable that the United States may truly believe its national security is placed in jeopardy by the Castro government.
In such a situation, the U.S. must be ready to prove the nature of "national security" threat a tiny Island, with starving people, can impose upon it. The only grounds upon which other signatories to NAFTA or GATT may challenge such an assertion by the U.S. then is to show the U.S. has passed HBA in bad faith.206Showing bad faith, as in showing intent, may prove itself an insurmountable task.
Last in Time Doctrine
The Constitution of the United States does not prohibit the President nor the Congress from violating international law in a domestic arena.207In this, the "Last in Time" doctrine recognizes that statutes may override treaties, which further recognize the power of the federal government.208Thus, it may be said that the President may take note of international law when he sets foreign policy; but in the end the government's decision supersedes international law within the United States.209It therefore is perfectly legal for the United States to pass domestic laws conflicting with the international law, that are aimed at controlling the activities of its citizens.
The question then becomes how the United States proposes to follow valid international laws, to which it is a signatory, and at the same time, follow valid domestic laws that are in direct conflict of those international agreements. In the end one has to be given up. Either the U.S. will have to acknowledge its allegiance to global trade and give up its efforts against Cuba through the implementation of the HBA, or the U.S. will have to surprise the world by placing its animosity towards Cuba first and foremost; an act that will mean the U.S. negating its membership in GATT, or NAFTA...
Substantial Effect in U.S.
The United States can also argue that in fact all that has been said about HBA is nothing but much ado about nothing. Indeed, those who are most affected by this law are U.S. nationals who cannot purchase Cuban goods and cannot even deal with Cubans under any pretense. In fact, the U.S. could argue that HBA, in the end, is a law that is aimed at U.S. nationals and which will place the U.S. companies at a disadvantage by prohibiting these U.S. companies to deal with the lucrative Cuban markets.
U.S. could also argue that foreign nationals and entities are only affected if they "traffic" in U.S. property while trading with Cuba. Foreign nationals and entities, unlike their American counterparts, are free to do any kind of trade in Cuba, as long as no seized U.S. property is involved. Thus, it may be said that the U.S. trading partners are too sensitive; and that these partners want the best of both world and they want to deal with the U.S., and profit from its immense market and opportunities, and at the same time, to trade with countries that are a threat to the U.S. "national security." Clearly, it would be unreasonable to demand the U.S. to forgo its security, its property and its foreign policy for the sake of foreign companies.
Helms-Burton Act is in Violation of International Law
The United States may have legitimate claims. Indeed, an appropriated property must be fairly and promptly compensated. This is the U.S.'s declaration of its understanding of international law. Fair and just compensation is a subjective and often disruptive concept. In the case of the Cuban-American relationship, it has been disruptive. Indeed, the U.S. will not accept appropriate compensation based on the book value of what it owned before the Cuban Revolution.210Having saved on taxes that were due to the Batista regime, the U.S. now wants the Castro government to disregard the book value declared and compensate the U.S., using another measure of assessing the value of the nationalized property.
The HBA, aimed at forcing the Cuban government's demise and aiming to prohibit trade with Cuba of any kind has over-stepped its boundaries and has entered into the realm of interference with sovereign nations' domestic and foreign policies towards Cuba. The HBA, as shown above, is in violation of NAFTA and GATT. The Europeans will not hesitate to call another dispute resolution panel under the terms of WTO should the U.S. start implementing HBA. So far, it appears that the U.S. government has understood the over-reaching of its attempt at drowning Cuba. But whether the legislature understands this, remains to be seen.
In short, the HBA has potentially placed the U.S. in a position of either having to back track and repudiate HBA, and so be embarrassed in the world arena, or to insist and inevitably deal a potentially fatal blow to the WTO and to NAFTA. Both agreements' establishment were fought hard for by the U.S. Such a move would inevitably discourage new countries in their attempt to join these two organizations, and thus open their market to U.S. goods. Indeed, China is poised to enter WTO, and with a quarter of the world population, it would be a monumental loss for the U.S. to lose the Chinese market to the Europeans. At the end, there is no sound and intelligent way one could argue in favor of HBA.
The U.S. aims at destroying the Cuban government would be probably better served if, with an open door policy, the U.S. "bombarded" Cuba with BigMacs, U.S. ideas, U.S. fashion, U.S. money, U.S. products and U.S. citizens. After forty years, it should be apparent to the U.S. that its policy is only hurting itself and placing U.S nationals and entities behind in the economic invasion that has already begun in Cuba. U.S. would be well served to learn from the past, notably the Vietnam example, where the U.S. had to finally change it policies when faced with the Europeans taking advantage of all the good deals while their U.S. counter part had to sit on the side-lines and watch.
Back in 1975, Secretary of State, Henry Kissinger, of all people, espoused the idea that the U.S. should open up towards Cuba and improve its relations with it.211In doing so, he believed that the U.S. should be the first to do so, and act like a superpower: "Behave chivalrously;" he advocated, "do it like a big guy, not like a shyster."212The U.S government would be serving its nationals and its companies' interest if it would realize the truth in Mr. Kissinger's statement.
Bak to Top
1 Thomas Jefferson described Cuba as "a fruit that will soon fall into our hands." In 1868 Cuba's first war of independence began under Jose Marti, and then was continued by Antonio Maceo. During the war, American mercenaries guarded the U.S. assets in Cuba which included sugar mills. The U.S. military which was in control of most Cuban Sugar lands, by the end of the war sold most of the land to U.S. Interest for pennies an acre. Cuba, at the time was an important asset for the countering then naval presence on Britain, and its constant rivalry with the U.S. for the domination of Latin America. In 1952 Fulgencio Batista led a successful military coup. Once in power, he formed a partnership with the Mafia, and Havana became one of the best bases for the traffic of narcotics, money laundering and prostitution. The Batista's corruption was so bad and so obvious that U.S. government had difficulties justifying its rapport with that Batista, yet, rapport was needed since at the time, the U.S. corporations owned 80% of Cuban land, most of the sugar industry, public utilities, oil refineries, nickel industry and the railroads. Once Fidel Castro became triumphant, the U.S. did nothing, since the last revolution has led to self serving leaders. However, when the Castro government passed the Urban Reform Law which limited ownership of land by any individual or entity, and then nationalized other land, United States retaliated. Gary Erb, Cuba-A Brief History, Rebels and Dollars, available on-line at <http://www.oz.net/~vvawai/sw/sw33/pgs_20-30/cuba.html>.
2 With a population of more than 10,000,000 and a surface covering 44,218 square mile. See, Lawrence Urdang et. al., Random House College Dictionary, 323, 1972.
3 David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125, 1997.
4 Senator Orville Platt of Connecticut offered the amendment to the Army Appropriation Act of 1901. This amendment required the Cuban government to: "maintain a law public debt; refrain from signing any treaty impairing its obligation to the United States; to grant to the United States the right of intervention to protect life, liberty and property; validate the acts of the military government; and, if requested, provide long-term naval leases." The Platt Amendment further agitated the Cubans and they sent a delegation from the constitutional convention to Washington to oppose the amendment, but they soon found that McKinley had already signed it into law. The Platt Amendment along with the Cuban Trade Reciprocity Treaty, established the framework of the U.S. dominance in Cuba. Afterwards, the delegates to the constitutional convention tried to modify the Platt Amendment before adding it to the Cuban Constitution, but they failed when the U.S. refused any changes and threatened that U.S. soldiers would remain in Cuba until the Amendment was enacted into Cuban constitution. Thus, the seeds of almost [one hundred years] of antagonism were planted. Wesley Wolfe, The Cuban Nation, 1898-1959, available on-line at <http://www.msstate.edu/Archives/History/text/wolfe.html>.
5 David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125, 1997.
8 Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 907, 1995.
9 Id. (note 19).
10 Id. at 908. The Sugar Act of 1937 is Act Sept. 1, 1937, c. 898, 50 Stat. 903, which was formerly classified to chapter 34 (s 1100 et seq.) of Title 7, Agriculture. The Sugar Act of o1937 expired on Dec. 31, 1947, and was superseded by the Sugar Act of 1948, which in turn expired on Dec. 31 1974, and which has been eliminated from the Code. See, 12 U.S.C.A 1150(a), Historical Notes.
14 David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125, 127, 1997.
15 Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 908, 1995.
17 John Yoo, Federal Courts as Weapon of Foreign Policy: The Case of the Helms-Burton Act, 20 Hastings Int'l & Comp. L. Rev. 747, 749 (1997).
18 Id at 750.
19 Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 908, 1995.
21 Id. Property that was nationalized by Castro's government is now valued at U.S.$5.6 billion. See, David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125, 127 (note 12), 1997.
22 Id. at 911.
23 U.S., during that time, was extremely concerned about the exportation of Socialist's social justice ideas to other Latin American countries, namely Grenada and Nicaragua. Id. The fear was that because these Latin American countries were experiencing civil unrest, then, Castro's nationalistic and Socialist views could impregnate those nations and would lead to the establishment of a plebeian government, much to the dismay of the Western powers.
24 "Brothers for Rescue" are an American based group of Cuban nationals whose aim is political changes in Cuba. This group of people often fly missions around Cuban airspace to look for refugees. See, David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125 (note 4), 1997.
25 See Bay of Pigs and the disastrous attempt to invade Cuba. The Castro regime, alerted of the invasion, defeated the rogue Cuban-American gangs who, with the help of the Central Intelligence agency and the U.S. military, were armed and trained as soldiers to be used for the Cuban invasion. President Kennedy's lack of air-support, it is said, was the reason for the humiliating defeat of the U.S. backed gangs.
26 In August 5, 1994, a crowed of 20,000 to 30,000 had gathered in anticipation of a ferry hi-jacking by refugees bound for the U.S.. In response to the riots, Castro threatened to release a wave of refugees toward Florida. A threat that was made good, and by August, an influx of Cuban refugees were being processed. Castro, attempted to bargain with the United States in that he would prevent the refugee influx in exchange for an easing of the Embargo against Cuba, but the U.S. refused to tie immigration talks to the Embargo. See, Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 903-5, 1995.
27 David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125, 1997.
28 Id. note 38.
29 Id. at 130.
31 Id.; Chapter 69 of the Cuban Democracy Act of 1992 reads:
(a) The President should encourage the governments of countries that conduct trade with Cuba to restrict their trade and credit relations with Cuba in a manner consistent with the purposes of this chapter. [...]
(b) (1) The President may apply the following sanctions to any country that provides assistance to Cuba:(A) The government of such country shall not be eligible for assistance under the Foreign Assistance Act of 1961 [22 U.S.C.A. 2151 et seq.] or assistance or sales under the Arms Export Control Act [22 U.S.C.A. 2751 et seq.].(B) Such country shall not be eligible, under any program, for forgiveness or reduction of debt owed to the United States Government.
32 Canada's imports from Cuba grew from U.S.$130 million in 1993 to $U.S.237 million in 1995.
33 See, David S. De Falco, The Cuban Liberty and Democratic Solidarity Act of 1996, 3 J. Int'l Legal Stud. 125 (note 4), 1997.
34 Id. at 131.
36 The vote of November 1997, in the general assembly, was supported by all except Israel and Uzbekistan, both heavily dependent on U.S. foreign help. See, Freeing Cuba, The Nation, available on-line at <http://www.thenation.com/issue/980126/0126edt1.htm>; also, this is not the first time that an overwhelming majority of countries have voted to end the Cuban embargo. On November 8, 1997, Ricardo Alarcon, president of Cuba's National Assembly while addressing an audience at Casa de Las Americas in New York, that such a vote has been coming up regularly for the past six years. Every time, the United States could not get a fourth vote, and that each year, a great majority of countries have rejected the U.S. policies towards Cuba. U.S. politicians, Alarcon continued, talks of "democracy" ad nauseam. But when they use the word, they mean the untrammeled freedom to rule the world's roost and rake in the mega-profit. Leslie Feinberg, UN Votes to Lift Cuba Blockade... Again, Workers World, Nov. 20, 1997; available on-line at <http://www.workers.org/ww/cuba1120.html>.
37 Gloria La Riva, House Takes New Steps Against Cuba's People, as available on-line at <http://www.workers.org/ww/cuba0626.html>.
38 The Cuban Liberty and Democratic Solidarity Act of 1996; also known as The LIBERTAD.
39 Ricardo J. Cata, International Legal Developments in Review: 1996, Foreign Law, 31 Int'l Law. 527, 528, Summer 1997.
40 The word "Traffics" is defined as: "A person traffics in confiscated property if that person knowingly and intentionally: I) sells, transfers, distributes, dispenses, brokers, manages or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property; ii) engages in a commercial activity using or otherwise benefiting from confiscated property; or, iii) causes, directs, participates in, or profits from, trafficking (as described in clause (I) or (ii) by another person, or otherwise engages in trafficking (as described in clause (I) or (ii)) through another person, without the authorizations of any U.S. national who holds a claim to the property. Section 1(b)(4)(13)(A).
41 Ricardo J. Cata, International Legal Developments in Review: 1996, Foreign Law, 31 Int'l Law. 527, 528, Summer 1997.
42 Anthony M. Solis, The Long Arm of U.S. Law: The Helms-Burton Act, 19 Loy. L.A. Int'l & Comp. L.J. 709, 711, 1997.
43 Id. at 710.
44 Title I sets out the U.S. desire to strengthen its economic embargo against Cuba. See, Solis, supra. "The Congress hereby reaffirms section 1704(a) of the Cuban Democracy Act of 1992, which states that the President should encourage foreign countries to restrict and credit relations with Cuba in a manner consistent with the purpose of that Act." See, Title I. §102(a)(1); "The Congress further urges the President to take immediate steps to apply the sanctions described in 1704(b)(1) of that Act against countries assisting Cuba." See, Title I, §102(a)(2). Moreover, this Title incorporates the Trading With the Enemy Act and establishes civil penalties not to exceed $50,000 on any person who violates any license, order, rule or regulation issued in compliance with provisions of this Act. Title I, §102(d)(1). Moreover, §103 calls for the "prohibition against indirect financing of Cuba" by preventing the extension of any loans, credit or other financing while knowing the recipient of such an assistance is involved in financing transaction involving any U.S.'s confiscated property, see §103(a). §104 of Title I, proclaims the U.S.'s opposition to Cuban membership in International Financial Institutions. §107 of Title I calls for the continuation of television broadcast to Cuba.
45 Title II sets out the requirements for lifting the economic sanctions and provides a list of inducements to a transition of government. See, Solis, supra. §201 declares the U.S. policy to be 1) to support the self-determination of the Cuban people, 2) to recognize that the self-determination f the Cuban people is a sovereign and national right of the citizens of Cuba which must be exercised free of interference by the government of any other country, 5) to provide appropriate forms of assistance; 7) to deliver assistance to Cuba once a transitional government has been established; 8) to encourage other countries and multilateral organizations to provide similar assistance as the U.S.; 14) to remove the economic embargo once the President has made the determination that a democratically elected government in Cuba has begun; 16) to pursue trade relations with a free, democratic and independent Cuba. §202 is concerned with assistance for the Cuban People once a transition government has been established; §204 lays forth conditions that are necessary to be present before the termination of the economic embargo of Cuba; and §207 sets forth conditions that are necessary for the settlement of outstanding U.S. claims to confiscated property in Cuba.
46 Helms-Burton Act, Title III, §301(5).
47 Helms-Burton Act, Title III, §301(6).
48 Helms-Burton Act, Title III, §302(A)(4)(B)
49 W. Fletcher Fairy, The Helms-Burton Act: The Effect of International Law on Domestic Implementation, 46 Am. U.L.Rev. 1289, FN. 108, 1997.
50 Helms-Burton Act, Title III, §302(a)(4)(C).
51 Helms-Burton Act, Title III, §305.
52 Helms-Burton Act, Title III, §302(b).
53 Helms-Burton Act, Title III, §302(a)(1)(A).
54 Helms-Burton Act, Title III, §303(a)(1).
56 Helms-Burton Act, Title III, §302(a)(1)(A)(i)(I).
57 Helms-Burton Act, Title III, §302(a)(1)(A)(i)(III).
58 Helms-Burton Act, Title III, § 303(a)(2).
61 Helms-Burton Act, Title III, §302(a)(5), moreover (C) establishes a priority for the plaintiffs with certified claims.
62 Helms-Burton Act, Title III, §302(a)(5)(B).
63 Helms-Burton Act, Title III, §302(a)(5)(D).
64 See, Helms-Burton Act, Title III, §302(a)(6).
65 Helms-Burton Act, Title III, §302(f)(1)(A).
66 Id. (f)(1)(B).
67 Helms-Burton Act, Title III, §302(a)(6).
68 Id. §306(b)-(d).
69 Id. §302(h).
70 Robert M. Muse, A Public International Law Critique of the Extraterritorial Jurisdiction of the Helms Burton Act (Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), 30 Geo. Wash. J. Int'l L. & Econ. 207, 211, 1996-1997.
72 Title III applies to any foreign entity "trafficking" in the property taken from the U.S. nationals by the Cuban government after their populist revolution. Id. note 13.
73 Helms-Burton Act, Title IV, §401
74 Id. §401(a)(4).
75 Raj Bhala, Fighting Bad Guys With International Trade Law, 31 U.C. Davis L. Rev. 1, ___, 1997.
77 Helms-Burton Act, Title IV, §401(c).
78 Raj Bhala, Fighting Bad Guys With International Trade Law, 31 U.C. Davis L. Rev. 1, ___, 1997.
81 Barry E. Carter, et.al., International Law, 669, 1995.
82 Id. at 670.
84 376 U.S. 398 (1964)
85 Id. at 401
87 The law in part reads: "WHEREAS, the attitude assumed by the government [...] of the United States, which constitutes an aggression, for political purposes, against the basis interests of the Cuban economy, as recently evidenced by the Amendment to the Sugar Act just enacted in the United States Congress [...], forces the Revolutionary Government to adopt without hesitation, all and whatever measures it may deem appropriate or desirable for the due defense of the national sovereignty and protection of our economic development process. WHEREAS, it is advisable [...]to confer upon the President and Prime Minister of the Republic full authority to carry out the nationalization of the enterprises and property owned by physical and corporate persons who are nationals of the United States of North America, or of enterprises which have majority interest of participation in such enterprises, even thought they be organized under the Cuban Law [...] Id.
88 Barry E. Carter, et.al., International Law, 673, 1995.
90 Id at 674.
93 376 U.S. 398, 402 (1964)
94 Id at 403.
95 The court observed that if he act of state doctrine principle of decision binding on federal and state courts alike but compelled by neither international law nor the Constitution, its continuing validity depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs. Id at 427-28.; moreover, the court also observed that the act of state doctrine has certain Constitutional underpinnings in that it arises out of basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. Id at 423.
96 Id at 437.
97 Also known as Second Hickenlooper Amendment, 22 U.S.C. §2370(e)(2). It reads: Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state based upon a confiscation or other taking after January 1, 1959 [...]
98 Barry E. Carter, et.al., International Law, 688, 1995.
99 Teresa Gutierrez, U.S. vs. Cuba, Workers World News, July 25, 1996; available on-line at <http://www.workers.org/cuba/helms.html>.
100 U.S. Const. art II, §2.
101 Id. art I, §8.
102 Barry E. Carter, et.al., International Law, 245, 1995.
104 Id., see also, Paquette Habana, 175 U.S. 677 (1900) which also states that for the purpose of administering international law, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usage of civilized nations, and, as evidence of these the words of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are referred to but the judicial tribunals to see what the law is. Paquette Habana, at 700.
105 U.S. Const. Art VI.
106 United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 320 (1936).
109 The investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens.[...] [A]nd operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the international family. [...] The court recognizes this and [...] [it] founds the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations. Id. at 318.
110 Barry E. Carter, et.al., International Law, 728, 1995.
112 Lord Macmillan as quoted, Barry E. Carter, et.al., International Law, 729, 1995.
114 It must also be noted that presumably, unless other wise stated, a legislation is restricted in its scope and application to persons, property and events in the territory over which it has territorial jurisdiction. Id. There are other aspects of territorial jurisdiction. For example "subjective territorial jurisdiction" gives to a state that has passed such a law, territorial jurisdiction if a crime has been started within its territory but finished somewhere else. Conversely, "objective territorial jurisdiction" gives a state territorial jurisdiction over a person who has commenced a crime on another's territory but has completed it within that nation territory and has led to harmful effects to the social ad economic order of that nation. Id.
115 Id at 733.
116 Id at 734.
117 Most criminal codes contain rules embodying the substance of this principle. Id.
118 Id. at 735.
121 Other such crimes are war crimes. Id. Debates are ongoing as to whether offenses towards the environment should also be included into such a category of crime.
122 Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987); hereinafter referred to as § 402.
123 In fact if the aim of the HBA has been to regulate conduct within the U.S. and the U.S. nationals and entities, then why the Act needed to be passed at all? The CDA passed in 1992 aimed exactly at the regulation of conduct within the U.S. and the regulation of U.S. nationals and entities. Thus, if HBA's only attempt is to do the same as CDA, then the Congress and the President have created two laws that do the exact same thing.
124 John Yoo, Federal Courts as Weapons of Foreign Policy: The Case of the Helms-Burton Act, 20 Hastings Int'l & Comp. L. Rev. 747, 754, 1997.
126 Id at 755.
129 Helms-Burton Act, Title III, §301(6).
130 See UN latest vote on U.S. economic embargo on Cuba.
131 Restatement (Third) of Foreign Relations Laws §402, comment (d).
132 Id. §403(1).
133 Restatement (Third) of Foreign Relation Law of United States, § 403 (1987); hereinafter referred to as §403.
134 §403, comment (b).
136 Marian Nash Leich, Contemporary Practice of the United States relating to International Law, 76 Am. J. Int'l L. 836, 1982.
138Helms-Burton Act, Title III, §301(3)(A).
139 Id §301(3)(B).
140 David P. Fidler, LIBERTAD v. Liberalism: An Analysis of the Helms-Burton Act from Within Liberal International Relations Theory, 4 Ind. J. Global Legal Stud. 297, 317, 1997.
142 Id at 318.
143 Fast track, is a type of executive agreement known as a congressional-executive agreement. This types of agreement requires the president to involve the congress in the negotiation process. see, Harold H. Koh, Fast Track and United States Trade Policy, 18 Brook. J. Int'l L. 143, 1992. The simplest example of a congressional-executive agreement is one specifically authorized by statute, or joint resolution of the Congress (a resolution passed by both houses and signed by the President, which the same legal affect as a statute). see, Barry E. Carter, et. al., International Law, 208 (1995).
144 W. Fletcher Fairey, The Helms-Burton Act: The Effect of International Law on Domestic Implementation, 46 Am. U. L. Rev. 1289, 1322, 1997.
145 Preamble of North American Free Trade Agreement, as appearing in, Paul B. Stephan, III, et. al., Documents for International Business and Economics, 301 (1996). Other principles are to CREATE an expanded and secure market for the goods and services produced, REDUCE distortions to trade; ESTABLISH clear and mutually advantageous rules governing [...] trade; ENSURE a predictable commercial framework for business planning and investment; BUILD on their respective rights and obligations under General Agreement on Tariffs and Trade and other multilateral and bilateral instruments of cooperation; ENHANCE the competitiveness of their firms in global market; FOSTER creativity and innovation and promote trade in goods and services [...], CREATE new employment opportunities and improve working conditions [...]; PRESERVE [...] flexibility to safeguard the public welfare; PROMOTE sustainable development [...]; Id.
146 Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security. NAFTA, Article 1105(1).
147 Article 1603 of NAFTA reads: 1) Each party shall grant temporary entry to business persons who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this chapter [...] 2) a party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might affect adversely: a) the settlement of any labor dispute that is in progress at the place or intended place of employment; or b) the employment of any person who is involved in such dispute [...] NAFTA, Article 1603. Moreover, a business person has been defined as a person who is a citizen of a Party who is engaged in trade in goods, the provision of services or the conduct of investment activities [...]. NAFTA, Article 1608.
148 W. Fletcher Fairey, The Helms-Burton Act: The Effect of International Law on Domestic Implementation, 46 Am. U. L. Rev. 1289, 1324, 1997.
149 Except as otherwise provided in this agreement, no Party may adopt of maintain any prohibition or restriction on the importation of any good of another party or on the exportation of sale for export of any good destined for the territory of another Party, [...]. NAFTA, Article 309(1).
150 Helms-Burton Act, Title I, §110(a).
151 Brian J, Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements?, 4 Tulsa J. comp. & Int'l L. 361, 1997.
152 In the Event that a Party adopts or maintains a prohibition on the importation from or exportation to a non-party of a good, nothing in this Agreement shall be construed to prevent the Party from: (a) limiting or prohibiting the importation from the territory of another Party of such good of that non-party; or (b) requiring as a condition of export of such good of the Party to the territory of another Party, that the good not be re-exported to the non-party, directly of indirectly, without being consumed in the territory of the other Party. NAFTA, Article 309(3).
153 Brian J, Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements?, 4 Tulsa J. comp. & Int'l L. 361, 367, 1997.
156 GATT, Article I(1).
157 Based on Helms-Burton Act, Title I, section 110(a).
158 Brian J, Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements?, 4 Tulsa J. comp. & Int'l L. 361, 367, 1997.
159 The contracting parties recognize that the internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production. GATT, Article III(1). also, the products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin [...]. GATT, Article III(4).
160 GATT, Article XI (1).
161 Brian J, Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements?, 4 Tulsa J. comp. & Int'l L. 361, 368, 1997.
162 Goods (including baggage), and also vessels and other means of transport, shall be deemed to be in transit across the territory of a contracting party when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk, or change in the mode of transport, is only a portion of a complete journey beginning and terminating beyond the frontier of the contracting party across whose territory the traffic passes. [...] GATT, Article V(1); also, there should be freedom of transit through the territory of each contracting party, via routes most convenient for international transit, for traffic in transit to or from the territory of other contracting parties. Id. V(2).
163 Helms-Burton Act, Title I, section 110(a)(2).
164 Section 5 of the Iran-Libya Sanction Act o 1996 reads:
(a) [Iran] Except as provided in subsection (f), the President shall impose 2 or more of the sanctions described in paragraphs (1) through (6) of section 6 if the President determines that a person has, with actual knowledge, on or after the date of the enactment of this Act [Aug. 5, 1996], made an investment of $40,000,000 or more (or any combination of investments of at least $10,000,000 each, which in the aggregate equals or exceeds $40,000,000 in any 12-month period), that directly and significantly contributed to the enhancement of Iran's ability to develop petroleum resources of Iran.
(b)(1) [Libya] Except as provided in subsection (f), the President shall impose 2 or more of the sanctions described in paragraphs (1) through (6) of section 6 if the President determines that a person has, with actual knowledge, on or after the date of the enactment of this Act [Aug. 5, 1996], exported, transferred, or otherwise provided to Libya any goods, services, technology, or other items the provision of which is prohibited under paragraph 4(b) or 5 of Resolution 748 of the Security Council of the United Nations, adopted March 31, 1992, or under paragraph 5 or 6 of Resolution 883 of the Security Council of the United Nations, adopted November 11, 1993, if the provision of such items significantly and materially--(A) contributed to Libya's ability to acquire chemical, biological, or nuclear weapons or destabilizing numbers and types of advanced conventional weapons or enhanced Libya's military or paramilitary capabilities;(B) contributed to Libya's ability to develop its petroleum resources; or(C) contributed to Libya's ability to maintain its aviation capabilities.
(b)(2) Except as provided in subsection (f), the President shall impose 2 or more of the sanctions described in paragraphs (1) through (6) of section 6 if the President determines that a person has, with actual knowledge, on or after the date of the enactment of this Act [Aug. 5, 1996], made an investment of $40,000,000 or more (or any combination of investments of at least $10,000,000 each, which in the aggregate equals or exceeds $40,000,000 in any 12-month period), that directly and significantly contributed to the enhancement of Libya's ability to develop its petroleum resources.
165 Edward Roussel, Europe to File Protest over Helms-Burton Act, Miami Herald, October 2, 1996; available on-line at <http://www.fiu.edu/~fcf/europe.protest.helms.html>.
166 Nicholas Davidson, U.S. Secondary Sanctions: The UK and EU Response, 760 PLI/Comm 515, 517 (1997).
168 Id at 520-21; see 1980 [UK], Ch 11 §1 through §6.
169 Id at 520.
170 Id at 518.
171 Id at 522.
173 Id at 528.
174 Edward Roussel, Europe to File Protest over Helms-Burton Act, Miami Herald, October 2, 1996; available on-line at <http://www.fiu.edu/~fcf/europe.protest.helms.html>.
176 1998 WL 8801517; EU/U.S.: No End in Sight to Cuba Row, European Report, April 10, 1998.
177 Adrian Croft, EU Allows Helms-Burton Challenge to Lapse, Reuters, April 20, 1998; available on-line at <http://www.pathfinder.com/money/latest/rbus/RB/1998Apr20/527.html>.
180 Owen Ullmann, et.al., Business v. The Righteous: Why Trade Sanctions Are Softening; Business Week, April 20, 1998; available on-line at <1998 WL 8131781>.
182 Gore Vidal, The End of History, The Nation, 1996; available on-line at http://www.thenation.com/issue/960930/0930Vida.htm
183 Caleb Elfenbein, Helms-Burton Undermines WTO, 1998; available on--line at <http://misc.vassar.edu/misc/spring_97/feb21/opinions/helms-burton.html>.
186 Robert L. Muse, A Public International Law Critique of the Extraterritorial Jurisdiction of the Helms-Burton Act (Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), 30 Geo. Wash. J. Int'l L. & Econ. 207, FN 14 (1997).
187 David Crary, Parody of U.S. Anti-Cuba Law Introduced in Parliament, San Diego Daily Transcript, October 22, 1996.
189 Anthony M. Solis, The Long Arm of U.S. Law: The Helms-Burton Act, 19 loy. L.A.Int'l & Comp. L.J. 709, 729 (1997).
190 David Crary, Parody of U.S. Anti-Cuba Law Introduced in Parliament, San Diego Daily Transcript, October 22, 1996.
192 Ricardo J. Cata, International Legal Developments in Review: 1996, 31 Int'l Law. 527 (1997).
194 Anthony M. Solis, The Long Arm of U.S. Law: The Helms-Burton Act, 19 loy. L.A.Int'l & Comp. L.J. 709, 731 (1997).
195 Ricardo J. Cata, International Legal Developments in Review: 1996, 31 Int'l Law. 527, 529 (1997).
196 Gloria La Riva, House Takes New Steps Against Cuba's People, Workers World News, June 26, 1997; available on-line at <http://www.workers.org/ww/cuba0626.html>.
197 36 I.L.M. 472.
198 Brian J. Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements? 4 Tulsa J. Comp. & Int'l L. 361, FN 31 (1997).
199 The UN votes of November 12, 1996 on the necessity of ending the U.S. Embargo against Cuba passed by a vote of 137 in favor to 3 against (Israel, U.S. and Uzbekistan), and 25 abstentions.
200 ACT No. 80, Article 2.
201 Id Article 4.
202 Id Article 10.
203 NAFTA, Chapter 21, Article 2102 reads: nothing in this agreement shall be construed: a) to require a party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; b) to prevent any party from taking any actions that it considers necessary for the protection of its essential security interest [...] (iii) relating to the implementation of national policies [...]; c) to prevent any party from taking action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
204 GATT, Article XXI reads: nothing in this agreement shall be construed (a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests; [...] or (c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace.
205 Brian J. Welke, GATT and NAFTA v. The Helms-Burton Act: Has the United States Violated Multilateral Agreements? 4 Tulsa J. Comp. & Int'l L. 361, 376 (1997).
207 John Yoo, Federal Courts as Weapons of Foreign Policy: The Case of the Helms-Burton Act, 20 Hastings Int'l & Comp. L. Rev. 747, 757, 1997.
208 Id at 758.
210 Teresa Gutierrez, U.S. vs. Cuba, Workers World News, July 25, 1996; available on-line at <http://workers.org/cuba/helms.html>.
211 Freeing Cuba, The Nation; available on-line at <http://www.thenation.com/issue/980126/0126edt1.htm>.
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