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Helms-Burton: Extending the Limits of US Jurisdiction

Published online by Cambridge University Press:  21 May 2009

Jens van den Brink
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Extract

On March 12, 1996, President Clinton signed the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 also known by the names of its principal sponsors, Senator Helms (R-NC) and Representative Burton (R-IN), as the Helms-Burton Act. The United States thereby enacted a Bill that ‘internationalizes’ an essentially bilateral conflict with Cuba, which can be traced back to the Cuban Revolution, 37 years ago. The Act strengthens economic sanctions against Cuba, intending to protect property rights of Americans, eventually improve the human rights situation, cause the removal of the Castro regime3 and lead to the establishment of a democratically elected government.

Type
Research Article
Information
Netherlands International Law Review , Volume 44 , Issue 2 , August 1997 , pp. 131 - 148
Copyright
Copyright © T.M.C. Asser Press 1997

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Footnotes

*

Currently a student at the Faculties of Law and Political Science at the University of Amsterdam. This article was originally written during my stay for the Fall semester 1996 at Columbia University School of Law. I would like to thank Professor Th.M. de Boer and Professor E.W. Vierdag for their helpful comments.

References

1. See 142 Cong. Rec. E 371 (daily ed. March 14,1996) (statement by Representative Burton).

2. Pub. L. No. 104–114, 110 Stat. 785 (March 12, 1996) (hereinafter the Act).

3. ‘…a transition government in Cuba is a government that (7) does not include Fidel Castro or Raul Castro’, Section 205 (a) of the Act.

4. ‘The best way to get change in Cuba is not to clobber your allies, and that's what they have done’. Statement by Sir Leon Britten, Vice-President of the Commission of the European Community recarding Helms-Burton; see CNN interactive, US news, ‘Clinton Imposes Anti-Cuba Sanctions, but Delays Implementation’, (July 16, 1996).

5. 142, Cong. Rec. S1479, S1483 (daily ed. March 5, 1996) (statement of Sen. Bingaman, citing former Chief Holmes in a dissenting opinion).

6. See, e.g., ‘US policy: Held Hostage in Miami’, Washington Post (February 29, 1996): ‘Question: who sets US policy towards Cuba?

(A) the President

(B) Congress

(C) any Cuban-American with an airplane

The answer apparently is “C”.’

Some claim ‘Brothers to the Rescue’ went looking for trouble by violating Cuba's sovereign airspace on several previous occasions and thus ‘suckered’ the US into enacting Helms-Burton. However, the shooting still constitutes a flagrant violation of international law, which has been acknowledged by the UN Security Council, see statement of the President of the UN Security Council on February 26, 1996, at 35 ILM (1996) pp. 493–494.

7. The Bill was approved by the Senate by a vote of 74–22 and in the House a day later by a vote of 336–86, see 142 Cong. Rec. S1511 (daily ed. March 5, 1996); see also 142 Cong. Rec. H1749 (daily ed. March 6, 1996).

8. See supra n. 5, at S1486 (statement of Sen. Simon).

9. Over 5,000 properties, with a total value of over §6 billion, were confiscated. See De Volkskrant, ‘Conflicts US-EU Averted’ (July 17, 1996).Google Scholar

10. Hearings on US policy toward Cuba before the Western Hemisphere Subcommittee of the House Committee on International Relations, 104th Cong., 1st session (1995) (statement by Peter Tarnoff, Under Secretary of State for Political Affairs).

11. Pub. L. No. 102–84, October 23, 1992, 22 USC ss. 6001–6010 (1994).

12. Idem Section 1706(a).

13. In a letter to Speaker Gingrich on September 20, 1995, Christopher writes: ‘We believe that HR 927 would actually damage prospects for a peaceful transition … (and) would jeopardize a number of key US interests around the globe.’

14. Emphasis added, see supra n. 5, at §1505 (statement by Sen. Helms).

15. See supra n. 5, at S1493.

16. Damrosch, L.F., “The Civilian Impact of Economic Sanctions’, in Enforcing Restraint: Collective Intervention in Internal Conflicts (Council on Foreign Relations, 1993) p. 275.Google Scholar

17. See s. 2 (5) of the Act.

18. The Act even refers to the appropriate UN SC Res. (No. 940 of July 31, 1994) ins. 2 (26).

19. SC Res. 841 (June 16, 1993). However, some did declare democracy a basic right, e.g., Art. 5(d) of the Charter of the Organization of American States.

20. See, e.g., Henkin, L., International Law; Politics, Values and Functions (Martinus Nijhoff, 1990) p. 152.Google Scholar

21. ‘So it can be said that the US embargo on Castro is between 3 and 5 years old and just beginning to work’. Hearings on s. 381 before the Senate Committee on Foreign Relations, 104th Cong., 1st session (1995) (statement of Otto J. Reich, President of the US Cuba Business Council).

22. ‘To augment the comprehensive economic embargo on Cuba, the Cuban Democracy Act added further restrictions on trade by US subsidiaries abroad with Cuba. These provisions have reduced such trade from over §700 million in 1992 to nearly zero today’, see the statement by Peter Tarnoff, supra n. 10.

23. ‘The Clinton State Department, in its most recent worldwide human rights report, admitted that the condition of human rights in China has deteriorated in the past year in spite of the fact that President Clinton changed his campaign position and granted China “MFN” status’, Otto Reich, supra n. 21. Reich argues that the size of China's internal market would practically nullify the effects of an embargo on China.

24. This measure would run counter to collectively agreed upon obligations vis-à-vis those institutions and would represent an attempt to influence improperly their internal decision-making processes’ (1996). ‘Demarche Protesting Libertad’, Delegation of the European Commission, 35 ILM (1996) pp. 397, 398.Google Scholar

25. S. 106 of the Act.

26. See the letter from Wendy R. Sherman, Assistant Secretary of Legislative Affairs, to B.A. Gilman, Chairman, House Committee on International Relations (April 28, 1995), in Cuba Policy or Cuba Folly? (US-Cuba Foundation and Cuban Comm. For Democracy, 1995).

The European Union has also protested against the possible effects of this provision, ‘especially at this critical junction in time’, see supra n. 24.

27. ‘The principle of international law and practice in the area of expropriation is very well established. Let me quote from the legal brief prepared by Robert Muse which summarizes very clearly the international law of claims:

‘If international law is to apply to a governmental taking of property, a party claiming the loss must occupy at the time of loss the status of an alien with respect to the Government that took the property. The injured person must be a foreign national. The U.S. courts have stated on numerous occasions that confiscations by a State of the property of its own nationals, no matter how flagrant and regardless of whether other compensation has been provided, do not constitute violations of international law.’

See supra n. 5, at S1487 (statement of Sen. Simon).

28. See supra n. 5, Joint Corporate Committee on Cuban Claims, at S1488.

29. See S. 4 (13).

30. Ibid. at (II).

31. S. 306 (b) (1) granted the President this authority to suspend.

32. S. 306 (b) (2) of the Act gave him the required authority for this second suspension.

33. S. 302 (a) (1) (A) of the Act.

34. S. 302 (b) of the Act.

35. International Shoe v. Washington, 326 US 310 (1945).

36. This provides an escape hatch for smart investors. One infamous Dutch investor, Joep van den Nieuwenhuizen, by-passed Libertad by leaving it up to friendly investors, who were lacking any connections to the US, to purchase a majority interest in the Curacaose Dokmaatschappij-Holding BV, which is listed on the Roll of Shame, see infra section 4.2, with an option to acquire the interests in the corporation when the dangers of Helms-Burton have disappeared – see NRC Handelsblad (26 September 1996) p. 17.Google Scholar

37. See ‘The Many Sins of the Helms-Burton Law’, in The Globe and Mail (July 1, 1996).Google Scholar

38. See supra n. 5, at S1489. The list includes the following States: Australia, Austria, Brazil, Canada, Chile, Colombia, Ecuador, China, the Dominican Republic, France, Germany, Greece, Honduras, Hong Kong, Israel, Italy, Jamaica, Japan, Mexico, the Netherlands, Panama, South Africa, Spain, Sweden, the United Kingdom and Venezuela.

39. See respectively, the European Union Council Regulation (EC) No. 2271/96, Protecting Against the Effects of the Extraterritorial Application of Legislation Adopted by a Third Country, 36 ILM (1997) p. 125;Google Scholar Amendments countering the US Helms-Burton Act to Canada's Foreign Extraterritorial Measures Act (FEMA), 36 ILM (1997) p. 111;Google Scholar The Mexican Act to Protect Trade and Investment from Foreign Norms that Contravene International Law, 36 ILM 133 (1997).Google Scholar

40. 35 ILM (1996) pp. 1322, 1333.Google Scholar

41. See S. 306 (b)(2).

42. See S. 306 (d).

43. ‘Title III of the Helms-Burton Act is Consistent with International Law’, 90 ILM (1996) pp. 434, 437.Google Scholar

44. Mann, F.A., Further Studies in International Law (Clarendon Press, 1990) p. 126, at p. 186.Google Scholar

45. E.g., Inter-American Juridical Opinion of the OAS Examining the US Helms-Burton Act, 35 ILM (1996) pp. 1322, 1331: ‘(d) The claimant State does not have the right to attribute liability to nationals of third States for the use of expropriated property located in the territory of the expropriating State where such use conforms to the laws of this latter State’.Google Scholar

46. Or, as Judge Learned Hand formulated the principle in the Alcoa case: ‘…it is settled law … that any state may impose liabilities even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends’; US v. Aluminium Co. of America, 148 F.2d 416, 443–44 (2d Cir. 1945).

47. SirJennings, Robert and SirWatts, Arthur, Oppenheim's International Law, vol. 1, 9th edn. (Longman, 1992) pp. 474–475.Google Scholar

The European Advisory Committee on the Restatement stated: ‘In our view, the exercise of jurisdiction based on territory is not justified in cases where all that has occurred within the territory is the effects of certain conduct and not at least part of the conduct itself. See Henkin, L. and others, International Law, Cases and Materials (West Publishing Co., 1993) p. 1055.Google Scholar

48. (France v. Turkey) 1927 PCIJ (Ser. A) No. 10.

49. Restatement s. 403, 1 ALI (1987) pp. 244–245.Google Scholar

50. Schachter, O., International Law in Theory and Practice (Martinus Nijhoff, 1991) p. 263.Google Scholar

51. Resulting from the harm that is inflicted upon the US by the trade in confiscated US property which was never compensated.

52. See, e.g., Lowenfeld, A., ‘Congress and Cuba: the Helms-Burton Act’, 90 ILM (1996) pp. 419, 431.Google Scholar

53. See supra section 4.4.

54. See 35 ILM (1996) p. 483.Google Scholar

55. Timberlane Lumber Co.v. Bank of America National Trust and Savings Association, 549 F 2d 597 (9th Cir. 1976).Google Scholar

56. See Restatement s. 403 (2) (h). Or, see Hartford Fire Insurance Co. v. California, 509 US 764 (1993).Google Scholar

57. The option of risking liability does not seem like a very appealing third choice.

58. See Oppenheim, , op. cit. n. 44, at pp. 433–434, note 14.Google Scholar

59. Loc. cit. n. 52, at p. 430.Google Scholar

60. It reads: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’.

61. I will not deal with the constitutional implications, such as possible problems with the separation of powers. This problem has been expressly discussed by the Supreme Court in Banco National de Cuba v. Sabbatino, 376 US 398, 423 (1964).Google Scholar

62. See Underhill v. Hernandez 168 US 250, 252 (1897).Google Scholar

63. Ratchik, J.R., ‘Cuban Liberty and the Democratic Solidarity Act of 1995’, 11 AUJ Int. L & Pol. (1996) pp. 343, 364.Google Scholar

64. Kelsen, H., Principles of International Law, 2nd edn., (Holt, Rinehartand Winston, 1966) pp. 438–439.Google Scholar

65. 406 US 759 (1972).

66. See, supra n. 5, at S1490 (statement of Sen. Dodd).

67. Title IV of the Act.

68. S. 401 (a) (4) of the Act.

69. S. 401 (a) (4) of the Act.

70. See Kelsen, , op. cit. n. 64, at p. 366.Google Scholar

71. 12 17, 1992, Canada-Mexico-USA, 32 ILM.Google Scholar

72. Prof. Roessler of Georgetown University School of Law, argued that WTO law does not govern because the US does not restrict trade within its own territory; discussion at the panel entitled US Trade Sanctions: Are they Legal?, during the International Law Weekend of the American Branch of the International Law Association, 1996, in New York City.

73. See, e.g, ‘EU Puts US “bully” in WTO Dock’, Financial Times (October 3, 1996).Google Scholar

74. See ‘US puts World Trade at Risk in Cuba Fight’, Christian Science Monitor (October 22, 1996).Google Scholar

75. See supra section 4.1.

76. See supra section 4.4.

77. See supra section 4.3.

78. ‘Opposition parties and independent civic organizations remain prohibited. Freedom of association does not exist. The regime does not tolerate freedom of speech or opinion. Those who dare speak out for democratic principles are harassed if they become too vocal. [P]roponents of peaceful change are detained for hours or several days and released with a warning to alter their behavior or suffer the consequences;’

Peter Tarnoff, supra n. 10.

79. As Commerce Secretary Mickey Kantor put it: ‘The US, as the most powerful economic and military entity on earth, needs to provide leadership. I would hope and expect our partners to review their policies and go along’. See Time (August 19, 1996) p. 36.CrossRefGoogle Scholar

80. De Volkskrant (July 13, 1996).Google Scholar