A HELMS-BURTON ACT ANALYSIS: IS THIS TYPE OF EXTRATERRITORIAL JURISDICTION CONSISTENT WITH OUR TREATY/AGREEMENTS, CUSTOMARY INTERNATIONAL LAW & POST-COLD WAR POLCY?

I. Introduction

On March 12, 1996, United States President Bill Clinton signed into law the Cuban Liberty and Democratic Solidarity Act of 1996.⁽¹⁾ Generally known as the Helms-Burton Act,⁽²⁾ it was named for its principal sponsors, United States Senator Jesse Helms (R-N.C.) and United States Congressman Dan Burton (R-Ind.). LIBERTAD is a comprehensive attempt to codify all economic sanctions against Cuba, which have been imposed pursuant to executive orders issued by past United States Presidents. LIBERTAD limits importation of certain crops and finished products that are known to originate from Cuba.⁽³⁾ It also prevents the President from diminishing his authority to annul current embargo conditions and allows him to grant foreign aid when there is a democratically elected government in Cuba.⁽⁴⁾ In addition it also establishes a cause of action for former Cuban nationals who are now United States citizens and United States nationals who lost property or assets in 1960.⁽⁵⁾ Finally, the Act authorizes the United States Secretary of State to assess which foreigners (family or business affiliation) have been "trafficking" in confiscated property, and deny them visas for entry and allows the United States Attorney General to deny entry to such foreigner(s).⁽⁶⁾

This Note explores the legal implications of LIBERTAD in a comparative analysis of United States law and international law. It lays a foundation, based on history and policy, of the events leading to the passage of LIBERTAD. Additionally, this Note analyzes the legality of this new law and its conformance to permissible extraterritoriality laws. It also examines precedent concerning the Act of State Doctrine, based on precedents from the United States Courts of Appeals and the United States Supreme Court. The Note concludes by expressing opposition to LIBERTAD, not as an ineffective means to bring down Fidel Castro's dictatorship, but as a process which ultimately contravenes principles of international law to which the United States has vowed to adhere and to promote worldwide.

II. Events Leading To The Passage Of LIBERTAD

The following sections describe events and developments that explain the history of United States relations with Cuba, Fidel Castro's policies, and United States reaction to the Cuban Communist regime. It is important to illustrate the turbulent history of Cuba and the extent of the relationship between the United States and Cuba prior to Castro's revolution in light of the passage of LIBERTAD.

A. United States Interests Prior to Castro's Revolution

Prior to 1959, Cuba was an important trading partner, a strategic port and the Latin American rising star.⁽⁷⁾ The United States secured Cuba's independence from Spain in 1898 which resulted in United States victory in the Spanish-American war.⁽⁸⁾ Although the Platt Amendment⁽⁹⁾ prohibited the United States from annexing Cuba, the United States was able to establish coaling and naval stations in Cuba, opening the doors for American investment.⁽¹⁰⁾ Between 1902-1959, a series of corrupt and brutal dictators reigned in Cuba,⁽¹¹⁾who aided American and foreign investors any way possible, while depriving Cubans of basic necessities. ⁽¹²⁾ By 1959, private investors and some Cubans controlled nearly all sectors of the Cuban economy, such as sugar, tobacco, mining and tourism industries.⁽¹³⁾ Most of the revenue generated in Cuba by these industries went back to the United States or Europe and the revenue that stayed went into the bank accounts of the dictators and members of their juntas, leaving Cuba ripe for upheaval.⁽¹⁴⁾

B. Fidel Castro's Policies

In 1958, Cuban Dictator Fulgencio Batista fled Cuba making way for Cuban Revolutionary Leader Fidel Castro.⁽¹⁵⁾ Castro was not an overt Communist', in fact he had some United States support because Batista's corrupt activities were alleged to involve Mafia organizations from New York and Miami.⁽¹⁶⁾

Castro moved to reform the Cuban Constitution⁽¹⁷⁾ and to enact major land and property reforms known as the Agrarian Land Reform (LRA),⁽¹⁸⁾ which redistributed ownership of all land in Cuba. This was one of the first confiscation laws which affected foreign investors and attempted to compensate them. However, it did not come into affect.⁽¹⁹⁾ In 1960, the Cuban government demanded that United States oil companies in Cuba process newly acquired Soviet oil.⁽²⁰⁾ When United States refineries refused to do so, they were seized.⁽²¹⁾ In his most radical policy, Castro decreed a comprehensive expropriation of all United States properties, including those properties owned by foreign investors.⁽²²⁾ Confiscation of these properties proved to be one of the most domestically popular initiatives of Castro's government, especially among the rural poor. ⁽²³⁾ Consequently, Castro's political agenda was set on a direct collision course with United States interests and policies in the Caribbean.

C. United States Retaliatory Polices

In 1961, the United States retaliated by launching a covert action, known as the Bay of Pigs,⁽²⁴⁾ in an attempt to overthrow Castro. The men participating in the invasion were Cuban exiles, trained by the United States military and the Central Intelligence Agency (CIA). When it was evident that Castro had popular support and a strong military force, President John F. Kennedy⁽²⁵⁾ refused to send air-support, resulted in the capture and execution the of invasion force.⁽²⁶⁾

In 1962, President Kennedy imposed a trade embargo on Cuba.⁽²⁷⁾ Initially, the embargo was imposed pursuant to § 620(a) of the Foreign Assistance Act of 1961,⁽²⁸⁾ and Cuban Import Regulations⁽²⁹⁾ which halted all foreign assistance to Cuba and authorized the President to establish and maintain a total embargo on all trade between the United States and Cuba. In order to fill potential gaps, in cases where Cuban products arrived at a foreign country and were subsequently shipped to the United States, President Kennedy consolidated all embargo efforts under the authority pursuant to the Trading with the Enemy Act.⁽³⁰⁾ Additionally, the Cuban Assets Control Regulations⁽³¹⁾ authorized the Office of Foreign Assets Control, under the direction of the United States Department of Treasury, to freeze all assets of the Cuban government that were within United States jurisdiction. The regulation defined "persons subject to the jurisdiction of the United States:" as (1) citizens or residents of the United States; (2) any person actually within the United States; and (3) any incorporated entity doing business in the United States (including partnerships; associations, corporations or any other organizations).⁽³²⁾ This broad definition of "persons" was significantly different from definitions applicable to licenses issued to countries that actively participated in trade with North Korea, China and Vietnam⁽³³⁾ pursuant to the Foreign Assets Control Regulation⁽³⁴⁾.

In 1964, Congress amended the International Claims Settlement Act of 1948⁽³⁵⁾ to enable United States nationals to file claims against the Cuban government. In addition, Congress allowed "nationals" to file claims before the Foreign Claims Settlement Commission (FCSC)⁽³⁶⁾ within the United States Department of Justice. Presently, the FCSC has validated a grand total of 5,911 claims valued at $1.8 million, which would be valued at $6 million in today's dollars.⁽³⁷⁾

Reacting to the end of the Cold War, Congress passed the Cuban-Democracy Act (CDA) of 1992,⁽³⁸⁾ severely narrowing the President's discretion to effectively conduct foreign relations with Cuba.⁽³⁹⁾ The purpose of the Act was to bring about a peaceful transition to democracy and resumption of economic growth in Cuba.⁽⁴⁰⁾ The Act authorizes the United States government to create an international coalition with other countries to create a multilateral embargo.⁽⁴¹⁾ Whereas, United States subsidiaries in foreign countries originally had to obtain an export license in the United States if they wished to sell to Cuba, the Cuban Democracy Act (CDA)⁽⁴²⁾ prohibits licenses altogether.

Essentially, foreign shipping companies are prohibited from trading in the United States if they have recently traded with Cuba. This provision stirred international opposition to the CDA. Partners in the North American Free Trade Agreement (NAFTA) and European Union (EU) members especially did not appreciate the extraterritorial provisions of the CDA, in which Congress essentially dictates that Europe cannot trade with Cuba.⁽⁴³⁾ The demise of the Soviet Union ended the era of relative economic stabilization which Cuba had enjoyed for several decades. This placed Castro in a position where reforms were an immediate necessity for his regime to survive in a new emerging world order.

D. The End Of The Cold War

The Soviet Union was Cuba's largest trading partner from 1962-1989. Soviet subsidies essentially maintained the Cuba economy during this time.⁽⁴⁴⁾ In exchange for oil, Cuba gave the Soviets sugar at a disproportionate price.⁽⁴⁵⁾ In 1976, Cuba received U.S.$0.152 more than the world price per pound for its sugar from the Soviets and bought Soviet oil at U.S. $6.37 per barrel less than the world price.⁽⁴⁶⁾ This subsidy had nothing to do with economics and everything to do with politics.⁽⁴⁷⁾ The subsidy maintained itself until 1989, leaving Cuba open to an economic dependency on the Soviet Union.

In 1989, Cuba was forced to face reality. It was clear that the Soviet Union was extending itself beyond any sort of economic reality. Castro was aware that economic collapse was imminent. The Soviet system broke down and all subsidies to Cuba ended in 1992.⁽⁴⁸⁾ Castro was under pressure to initiate reforms to stabilize Cuba's weak economy.⁽⁴⁹⁾ In 1991,in anticipation of the Soviet Union's demise, Castro revitalized the economy by replacing sugar as the principle hard currency earner for the next 5 years. In 1993, Castro permitted Cubans to own and spend dollars in dollar denominated bank accounts.⁽⁵⁰⁾ Subsequently, Castro enacted major reforms in agriculture, allowing semi-private ownership and allowing farmers to set up small farmer's markets as well as allowing self-employment in several labor sectors, including the service sector.⁽⁵¹⁾ Castro also reformed Cuban law⁽⁵²⁾ to allow limited ownership of property as a means of attracting foreign investment.⁽⁵³⁾ Castro reformed transportation, real estate, tourism, communications and finance. All were reforms intended to financially support the bankrupt Marxist system.⁽⁵⁴⁾

Castro succeeded, in part, as demonstrated by Cuba's economy achieving a level of stabilization. In 1995, Cuba reported a growth rate of 2.5% which was estimated to double in 1996.⁽⁵⁵⁾ The price of the dollar has dropped from 125 pesos in mid-1994 to 25-35 pesos.⁽⁵⁶⁾ Additionally, Sherritt International of Canada⁽⁵⁷⁾ alone has agreed to invest half a million dollars in oil exploration and the development of cobalt and nickel mining in Cuba.⁽⁵⁸⁾ In 1994, Cuban Vice President Carlos Lage⁽⁵⁹⁾ claimed that in the first six months of 1994, 69 companies visited Cuba and "signed letters of intent for future contracts to take effect when the United States embargo comes to an end." ⁽⁶⁰⁾

E. The Cuban Air Force Attack & The Cuban-American Factor

On February 24, 1996, apparently relying on standing orders of President Fidel Castro,⁽⁶¹⁾ MIG-23 and MIG-29 aircraft of the Cuban Air Force shot down two Cessna 337 light planes flown by a Cuban-American organization⁽⁶²⁾ based in Florida.⁽⁶³⁾ In response, President Clinton condemned the attack and announced that he would sign the LIBERTAD Act, which he had initially opposed. Given, proximity of Presidential elections, President Clinton's reaction was conditioned to accommodate Cuban-Americans in Florida.

The Cuban-exile community has had a powerful impact on policy towards Cuba.⁽⁶⁴⁾ Although in terms of popular vote, Cuban-Americans in Dade County do not sway Presidential elections either way, many fail to see the political capital that can be generated by wealthy Cuban-Americans such Jorge Mas Canosa, President of the Cuban - American National Foundation (CANF), a powerful lobbying group.⁽⁶⁵⁾ Many Cuban-Americans joke that before Washington contemplates a course of action which has any relation to Cuba, it must call Mas Canosa for permission.

CANF has had a key role in designing the CDA in a manner which would target the loopholes of the original embargo acts imposed on Cuba in 1962. Past administrations have been reluctant to close these loopholes because of the international ramifications.⁽⁶⁶⁾ After the two Cessnas were shot down, CANF, under Mas Casnosa's direction sought to smear Castro's regime and promote support for LIBERTAD. President Clinton, facing re-election, and aware of the political gains in capital and votes, decided reluctantly to sign the LIBERTAD. If this year had not been an election year, LIBERTAD probably would have never been signed.

III. Cuban Liberty & Democratic Solidarity Act (LIBERTAD)

A. Legislative Findings, Purpose and Intent

Congressional findings illustrate a list of reasons why the United States Congress has chosen this policy towards Cuba. The following sections are relevant to determining the Congressional purpose and intent. The end of the Cold War and the end of Soviet subsidies have led to a significant decline in the standard of living for the Cuban people.⁽⁶⁷⁾ In observing human rights in Cuba, it is clear that Cuba's policy has long been to incarcerate all who would protest against the government in public, despite the human rights commitments Cuba has agreed to adhere to.⁽⁶⁸⁾ It is also evident that each time there is a serious threat of Cuban dissidence achieving some sort of popularity, Castro allows thousands of dissidents to leave Cuba for United States shores, thereby relieving him of the responsibility for the problem.⁽⁶⁹⁾ Finally, the Cuban state under Fidel Castro, has continued to pose a national security threat to the United States as it acts like a rogue state which has no regard for international principles, which harbors criminals and is a conduit for drugs headed to the United States. ⁽⁷⁰⁾

B. LIBERTAD

The goals of LIBERTAD were designed to cripple Castro's regime, establish a political scene ripe for a democratic movement and reassert the economic interests of the United States to the world.⁽⁷¹⁾ These goals are clear in the different titles of the LIBERTAD. Title I strengthens international sanctions againts the Castro Government, Title II provides for assistance to a free and independent Cuba, Title III protects property rights of United States Nationals and Title IV excludes certain aliens, found to have trafficked in expropriated property from entering into the United States.

The most significant provisions of Title I are as follows: 1) further enforcement of the economic embargo against Cuba, including civil penalties imposed for violation of the Trading with the Enemy Act;⁽⁷²⁾ 2) prohibitions against indirect financing of Cuba;⁽⁷³⁾ 3) United States opposition to Cuban membership in international financial institutions;⁽⁷⁴⁾ 4) withholding foreign assistance aid from any independent state of the former Soviet Union found to be providing assistance to military and intelligence facilities in Cuba;⁽⁷⁵⁾ 5) authorization of support for democratic and human rights groups and international observers,⁽⁷⁶⁾ and 6) importation safeguards which ensure prohibition of sugars, syrups and molasses from countries which purchase such goods from Cuba.⁽⁷⁷⁾

According to Title II of LIBERTAD, once a transitional and democratically elected government has been established in Cuba,⁽⁷⁸⁾ the United States will provide economic assistance to the Cuban people, ⁽⁷⁹⁾ coordinate all assistance programs,⁽⁸⁰⁾ and terminate the United States imposed economic embargo against Cuba.⁽⁸¹⁾ Title II also sets up a systematic approach for determining whether a government is transitional or democratic.⁽⁸²⁾ Finally, LIBERTAD requires the settlement of outstanding United States claims of confiscated property certified under § 507 of the International Claims Settlement Act of 1949.⁽⁸³⁾

In § 301 of Title III, Congress makes the following findings: (1) Individuals enjoy a fundamental right to own property and that right is enshrined in the United States Constitution.⁽⁸⁴⁾ (2) The wrongful confiscation of property by the Cuban Government . . . undermines the comity of nations, the free flow of commerce and economic development.⁽⁸⁵⁾ (3) International law recognizes objective jurisdiction.⁽⁸⁶⁾ (4) The United States government has an obligation to its citizens to provide protection against wrongful confiscation by foreign countries.⁽⁸⁷⁾ (5) To deter trafficking in wrongfully confiscated property, United States nationals who were the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States.⁽⁸⁸⁾

Title III contains a provision creating a cause of action against current property owners who traffic⁽⁸⁹⁾ in confiscated property claimed by United States nationals. It should be noted that United States courts are forbidden to apply the Act of State Doctrine.⁽⁹⁰⁾ and only claims that have been certified by the Foreign Claims Settlement Commission can go forward in suits against third parties.⁽⁹¹⁾ Additionally, Title III extends to claimants who were not United States nationals at the time of the confiscations.⁽⁹²⁾ Finally, under Title III, the President may suspend the effective date for liability and causes of actions⁽⁹³⁾ for a period of not more than six months and may continue to suspend both for subsequent periods of six months so long as he issues a statement of waiver before Congress. The President must determine that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.⁽⁹⁴⁾

Title IV is designed to exclude any aliens from the United States who have confiscated property of United States nationals or who traffic in such property.⁽⁹⁵⁾ The method of enforcement authorizes the United States Secretary of State to deny a visa to such persons and additionally authorizes the United States Attorney General to exclude any person who may attempt to enter the country.⁽⁹⁶⁾ Those excluded are: (1) persons who have directed or overseen the confiscation of property owned by a United States national;⁽⁹⁷⁾ (2) a person who currently traffics in confiscated property;⁽⁹⁸⁾ (3) a person who is a corporate officer or principal shareholder with a controlling interest of an entity which has been confiscated;⁽⁹⁹⁾ and (4) a spouse, minor child, or agent of an excludable person under (1), (2) and (3).⁽¹⁰⁰⁾

IV. Analysis

This part of the Note will analyze LIBERTAD from three perspectives; permissible extraterritorial jurisdiction, United States common law precedent concerning the Act of State doctrine and United States case law. It also examines international reaction to LIBERTAD by looking at United Nations Resolutions, the European Union law, the North American Free Trade Agreement and the Organization of American States. This Note examines the consistency of United States policy and the unconstitutionality of LIBERTAD and finally, states arguments for both support and opposition of LIBERTAD. However, it concludes that policies such as LIBERTAD violate international law as well as the United States Constitution.

A. Jurisdiction

LIBERTAD contains a provision which grants the United States extraterritorial jurisdiction under Title III, § 301(9).⁽¹⁰¹⁾ It states that international law recognizes territorial jurisdiction, which prescribes laws for acts that have occurred outside the United States, but nevertheless, have substantial impact within United States territory. Although this provision of LIBERTAD is construed to give jurisdiction to Congress, an examination of past extraterritorial laws would not support LIBERTAD's aggressive assertion of extraterritorial jurisdiction.⁽¹⁰²⁾

This provision is tailored very closely to the Restatement of the Law of Foreign Relations,⁽¹⁰³⁾ § 402(1)c,⁽¹⁰⁴⁾ which allows states to prescribe laws against acts which occur outside the territory, but have a substantial impact within the territory. Opponents⁽¹⁰⁵⁾ of LIBERTAD, argue that the confiscation of properties no longer has a substantial effect within the territory of the United States, given the 36 year period which has gone by. Moreover, it is unlikely that the United States government can argue that after 36 years, the confiscations of 1959 impact the United States economy in a substantial way. Additionally, Title III is inconsistent⁽¹⁰⁶⁾ with the principles of international law since the international system has not yet recognized the claims of United States citizens against traffickers of confiscated property.⁽¹⁰⁷⁾

Proponents⁽¹⁰⁸⁾ of LIBERTAD argue that the Act is within the sovereign powers of the United States to prescribe such extraterritorial laws. Although, there has been a 36 year lapse between the conduct and the effect, the confiscations did and possibly still do have a considerable impact on the thousands of Cuban-Americans and the several United States companies who lost properties during the confiscations.⁽¹⁰⁹⁾ Moreover, the United States government can assert that the international system is consistent with LIBERTAD, in that international law recognizes the ownership and use of property as a fundamental human right.⁽¹¹⁰⁾

Opponents may contend that LIBERTAD goes beyond the limitations to prescribe as they are set forth in Restatement § 403, where the exercise of jurisdiction by a foreign state would be limited or curtailed if it was to be found that the jurisdiction was "unreasonable."⁽¹¹¹⁾ United States jurisdiction is unreasonable given § 403(2)b, which states that jurisdiction is unreasonable if the connections. . . between the regulating state and the person principally responsible for the activity to be regulated. . . are too distant. Mexico, Canada and the European Union (EU) are not responsible for the original confiscations and should not pay the price for Cuba's expropriation policies. Consequently, such jurisdiction is unreasonable given that the connection between the United States and Mexico, Canada and the EU are non-existent when it comes to Cuba. The United States is simply imposing punitive measures towards neutral third parties.

Proponents of LIBERTAD have maintained that the connections between the United States and the persons liable under the act are legitimate; in other words United States policy towards Cuba has been no secret. Recent investors in Cuba should have known the potential risks of United States retaliation if they were investing in in expropriated property in without Cuba compensating the United States nationals who lost the property. Given the demise of the Soviet bloc and Communist ideology,⁽¹¹²⁾ which did not respect property rights, it would be a great miscalculation for the investors to think that the United States would forgive and forget Cuba's punitive policies against the United States.

An examination of the Cuban defense of Act of State Doctrine which may limit the Cuban's government and the foreign investor's liability is necessary at this point. Title III of LIBERTAD, § 302a(6) mandates that United States courts should not decline to hear a case based upon the Act of State Doctrine. Congress calls for the courts to make a determination on the merits in an action. ⁽¹¹³⁾ The Act of State doctrine is a judicially created doctrine which has created much confusion because the Supreme Court has not issued majority opinions on exceptions to the Act of State Doctrine. There has been considerable pressure from the Executive and Legislative branches (Sabbatino Amendment or Second Hickenlooper Amendment)⁽¹¹⁴⁾ for the Court not to apply the doctrine in a claim of title or other right to property expropriated by a foreign state. The Act of State Doctrine has prevented United States courts from deciding the validity of foreign acts.⁽¹¹⁵⁾ As stated by Chief Justice Fuller in Underhill v. Hernandez, "[e]very Sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory."⁽¹¹⁶⁾

Traditionally, the purpose of this court - created principle, was to defer to the Executive branch on foreign affairs matters because the Supreme Court feared the possibility of embarrassing situations which could undermine the Executive Branch's efforts towards rapprochement with a rogue state.⁽¹¹⁷⁾ The United States Supreme Court has been reluctant to disregard this court created principle, irrespective of whether it is explicitly authorized under the United States Constitution.⁽¹¹⁸⁾

The source of the Court's reluctance comes from the traditionally recognized separation of powers, where the Judiciary branch has refused to adjudicate foreign affairs matters which are constitutionally delegated to the Executive and Legislative branches.⁽¹¹⁹⁾ However, a modern formulation has appeared, where the Supreme Court uses a "balancing test" to determine proper use of the Act of State Doctrine.⁽¹²⁰⁾ Additionally, the Supreme Court has explained, with specificity, exactly what governmental actions are actually considered to be an Act of State.⁽¹²¹⁾

Opponents to LIBERTAD have difficulty explaining a way to avoid §302a(6), which prohibits United States courts from applying the Act of State Doctrine.⁽¹²²⁾ Nevertheless, opponents argue that Sabbatino requirements are still necessary regardless of the provision prohibiting use of the Act of State Doctrine. There could be significant repercussions for United States foreign policy concerning the European Union and NAFTA partners.⁽¹²³⁾ In light of the recent actions undertaken by the European Union and NAFTA, President Clinton would be hard pressed to issue a Bernstein ⁽¹²⁴⁾ letter. Although international law ⁽¹²⁵⁾ supports a fundamental right to own property,⁽¹²⁶⁾ the economic reality is that only a small percentage of the world's population actually owns property, especially in less developed countries. Additionally, the Supreme Court is not required to follow § 302a(6) since adherence to this provision would entail a Congressional infringment on powers of interpretation, textually granted in Constitution to the Judiciary.⁽¹²⁷⁾

Proponents of LIBERTAD argue that there is no Act of State Doctrine required by the United States Constitution or international law.⁽¹²⁸⁾ It can be inferred that with the passage of the Hickenlooper Amendment and § 302a(6), Congress intends to mandate to the courts the inapplicability of the Act of State Doctrine regarding confiscation of property cases. Congress is prohibiting the courts avoiding adjudication. The courts thus have no choice but to adjudicate the acts of foreign states, while protecting United States nationals who invest abroad. Congress has not side stepped the Constitution, because the Constitution has no specific language to allow the Act of State Doctrine. A small foreign policy impact is very likely (in conjunction with a Bernstein letter from the Executive), since relations with Cuba will not improve until Castro leaves office.

International law is more clear.⁽¹²⁹⁾ The international community recognizes the fundamental human right to own property. Additionally the fall of the Soviet Union and the Eastern bloc, indicate that the world is beginning to accept principles of democracy and capitalism, which also protect the right to own property. Therefore, it is entirely permissible for Congress to dictate to United States courts that the Act of State Doctrine should not apply to situations where United States property has been illegally confiscated.

B. International Law - Consistency

The passage of the Cuban Democracy of Act 1992⁽¹³⁰⁾ created great international opposition because the act contained certain extraterritorial provisions.⁽¹³¹⁾ The European Union did not take any formal action but voiced its opposition to this type of legislation.⁽¹³²⁾ LIBERTAD goes even further, creating a cause of action, and essentially extending extraterritorial jurisdiction further than the framers of the Restatement of Foreign Relations ever intended. In addition, Title III is the type of policy the United States usually condemns, especially because of its potential to create trade wars.⁽¹³³⁾ This section looks at the consistency of LIBERTAD with United Nations Resolutions, WTO and GATT obligations, NAFTA obligations and OAS obligations and resolutions.

1. United Nations Resolutions

The U.N General Assembly has adopted a number of resolutions concerning extraterritorial acts and human rights violations. On November 24, 1992, the U.N. General Assembly adopted a resolution "expressing concern over measures having extraterritorial effect on the sovereignty of other states and affirming support for the principles of sovereign equality and non-intervention." ⁽¹³⁴⁾ Opponents of LIBERTAD would argue that Title III is an unprecedented provision mandating United States extraterritorial jurisdiction.⁽¹³⁵⁾ Since 1992, the U.N. General Assembly has repeatedly voted to condemn United States actions to enforce United States law abroad.⁽¹³⁶⁾ The international community, through the organs of the United Nation has consistently promoted territorial sovereignty and non-intervention in the foreign investment laws of other countries. Additionally, the General Assembly, in accordance with the resolutions mentioned above, has repeatedly voted to dismantle the economic, commercial and financial embargo imposed against Cuba by the United States.⁽¹³⁷⁾ Moreover, most of the world believes the best way to deal with Cuba is through a policy of constructive engagement,⁽¹³⁸⁾ a policy the United States follows with other dictatorships.⁽¹³⁹⁾

Proponents of LIBERTAD would argue that United States has shown a consistent commitment to promote and protect human rights in accordance with the Charter of the United Nations⁽¹⁴⁰⁾ and in the Universal Declaration of Human Rights.⁽¹⁴¹⁾ Although Cuba is a signatory state to the 1928 Inter-American Convention on Asylum⁽¹⁴²⁾ as well as the International Covenant on Civil and Political Rights,⁽¹⁴³⁾ Cuba has been notorious in violating the Covenant by prohibiting its citizens from leaving Cuba and surrounding foreign embassies until dissidents who seek political asylum are arrested.⁽¹⁴⁴⁾ The U.N. General Assembly passed Resolution 47-139, on December 18, 1992,⁽¹⁴⁵⁾ Resolution 48-142 on December 20, 1993⁽¹⁴⁶⁾ and Resolution 49-200 on December 23, 1994.⁽¹⁴⁷⁾ All referenced the Special Rapporteurs reports to the United Nations and condemned violations of human rights and fundamental freedoms in Cuba.⁽¹⁴⁸⁾

Cuba's flagrant violations of human rights law warrants some sort of sanctions from the international community, and if the international system is not willing to take multilateral actions against Cuba, then the United States, the remaining superpower, has no choice but to take action and champion human rights and property rights, both essential to the Charter of the United Nations and the Universal Declaration of Human Rights.⁽¹⁴⁹⁾ Therefore, it would be appropriate for the international community to freeze Cuban assets abroad and impose a multilateral embargo against Cuba to force Castro to succumb to international concerns and obligations.

2. Consistency With WTO & GATT Obligations

The European Union, through the European Commission⁽¹⁵⁰⁾ has found only one provision of LIBERTAD to conflict with the European Union and the General Agreement on Trade and Tariffs (GATT).⁽¹⁵¹⁾ § 110 of LIBERTAD prohibits the importation of certain products unless the country certifies that the product does not originate from Cuba.⁽¹⁵²⁾ In accordance with the provisions concerning dispute resolution of the World Trade Organization (WTO),⁽¹⁵³⁾ the European Union will bring the dispute to adjudicate the potential breach of the United States obligations to the WTO. The European Union can be expected to argue that Title I of § 110 violates Article XI of GATT, which excludes any prohibitory measures other than duties, taxes or other charges.⁽¹⁵⁴⁾ The United States unilateral exclusion of these products is unjustified and will pose a grave problem to EU members who frequently obtain sugar, syrup and molasses from Cuba, which are shipped to Europe to make finished products which are then sold in the United States. Consequently, the European Union would argue that Title I of LIBERTAD violates United States obligations to the WTO/GATT as a prohibitory measure, and such prohibitory measures were one of the most the compelling reasons to establish WTO/GATT; to rid the world of exclusionary and protectionist trade policies.

Additionally, the European Union can be expected to argue that LIBERTAD violates Article I of GATT, which prohibits discriminatory practices and mandates equal preference for all goods.⁽¹⁵⁵⁾ Again, LIBERTAD violates one of the main goals of the creation of the World Trade Organization; the end to discriminatory trade practices.

In response, the United States can be expected to contend that the LIBERTAD falls within one of the permissible exceptions stated in Article XX of GATT.⁽¹⁵⁶⁾ This exception allows trade sanctions for products resulting from prison labor. The United States would need only to show the realities of Cuba's New Foreign Investment Law of 1995,⁽¹⁵⁷⁾ which does not allow Cuban workers to be directly hired by foreign companies. Instead, Cubans are hired through state agencies which arrange the work and negotiate wages, while at the same time the state agencies retain approximately ninety to ninety five percent of the wages payable to Cuban workers.⁽¹⁵⁸⁾ Hence, such conditions essentially constitute a form of economic slavery or prison labor. Additionally, proponents would rely on another exception of GATT; the national security exception stated in Article XXI of GATT.⁽¹⁵⁹⁾ § 2(28) of LIBERTAD declares that for the "past 36 years, the Cuban Government has posed and continues to pose a national security threat to the United States of America."⁽¹⁶⁰⁾ Consequently, the United States defends its actions as consistent with the exceptions set forth in GATT in the interests of its own national security⁽¹⁶¹⁾ and territorial sovereignty.⁽¹⁶²⁾

3. Consistency with NAFTA Obligations

Canada and Mexico (North American Free Trade Agreement members) will bring a Chapter 20⁽¹⁶³⁾ complaint against the United States to dispute LIBERTAD. NAFTA members may be expected to contend that Title IV, § 401⁽¹⁶⁴⁾ of LIBERTAD conflicts with United States commitments to the Agreement, specifically with Chapter 16.⁽¹⁶⁵⁾ Chapter 16 prohibits the exclusion of professionals, business visitors, traders and investors and intra-company transferees, because one of the main purposes of NAFTA is to facilitate free trade among member countries. Denying investors free movement within the NAFTA countries would frustrate free trade.⁽¹⁶⁶⁾ § 401 of LIBERTAD calls for the United States Secretary of State to deny a visa to, and authorizes the United States Attorney General to exclude any person from the United States, who has confiscated properties, traffics in confiscated property, who is a corporate officer, principal or shareholder of confiscated property, or who is a spouse, minor child or agent thereof. Consequently, Title IV conflicts with Chapter 16 of the Agreement because it does not allow entry to certain categories of persons who have some sort of contact with confiscated properties.

The United States may be expected to argue that Title IV of LIBERTAD would fall under a permissible exception set forth in Chapter 21; the national security exception.⁽¹⁶⁷⁾ The national security exception allows the United States to take whatever actions it deems necessary to protect vital security interests. Since the status of United States relations with Cuba has been unchanged and ongoing for 37 years, Cuba's government is viewed as a continuing threat to democratic systems in the Americas. Therefore, Title IV is in harmony with the exception provisions of Chapter 21 of the Agreement.

4. Consistency With OAS Obligations & Resolutions

The members of the Organization of American States (OAS) have been unable to convince United States that it is violating the Organization of American States charter, specifically Article 19 which prohibits economic sanctions to coerce a sovereign's will.⁽¹⁶⁸⁾ In the Proclamation of the Eight Meeting of Ministers of Foreign Affairs of the OAS at Punta del Este, Uruguay allowed the United States and other countries to impose an economic embargo against Cuba. ⁽¹⁶⁹⁾ In 1975, in the Sixteenth Meeting of the Consultation of Ministers of Foreign Affairs of the OAS, the OAS approved a resolution that allowed individual members to normalize relations with Cuba if they wished to do so, in accordance with each country's national policy and interests.⁽¹⁷⁰⁾ Since the 1975 resolution, almost all OAS members have established diplomatic and economic relations with Cuba.

After the passage of LIBERTAD, in August of 1996, an 11-member panel declared unanimously that LIBERTAD was illegal, because this type of exercise of jurisdiction did not conform with norms established by international law.⁽¹⁷¹⁾ The OAS Permanent Council's thirty-four members will soon condemn LIBERTAD for its outlandish extraterritorial provisions which are unprecedented and violative of international law. Consequently, the United States will most likely be out-voted, however the OAS has no enforcement mechanisms to compel any country to refrain from taking a certain course of action.⁽¹⁷²⁾ Nevertheless, a strong opposition in the OAS Permanent Council might have a publicly embarrassing impact for the United States, and might prove effective in the long term, by destabilizing United States influence in the region.⁽¹⁷³⁾

IV. Conclusion

A. Recent Retaliation

The last segment of this Note examines current developments of United States trading allies against LIBERTAD, consistency of LIBERTAD with current United States policy and finally, the constitutionality of LIBERTAD.

As a result of Title IV, which excludes any persons from United States territory who are known to "traffick" confiscated property, the United States Department of State has declared that Ian Delaney, Director of the Canadian mining company Sherritt International and eight other senior corporate officers and their immediate families will be prohibited from entering United States territory.⁽¹⁷⁴⁾ Sherritt International, a Toronto based multinational corporation has approximately $250 million dollars worth of Cuban assets operated through a joint venture with the Cuban government (joint company) to mine nickel.⁽¹⁷⁵⁾ This joint company, was one of the United States companies confiscated in 1961.⁽¹⁷⁶⁾

In August 1996, the United States Department of State issued warning letters about United States visa restrictions to company executives of Grupo Domos in Mexico.⁽¹⁷⁷⁾ The head of Grupo Domos, Javier Garza, received a letter of exclusion that applies to his staff and his family, stating that if his company does not cease all business activity in Cuba, their names will be entered in the appropriate visa lookout system and port of entry exclusion, and consequently, all visas will be denied.⁽¹⁷⁸⁾ Mr. Garza's son, a 13 year-old who attends prepatory school in Wisconsin and who is a United States citizen, has been denied entry as well.⁽¹⁷⁹⁾ In response to LIBERTAD, on September 19, 1996 the Mexican Senate passed "mirror legislation" to counter LIBERTAD.⁽¹⁸⁰⁾ Under the Mexican Senate version, individuals or companies who fail to inform the Mexican Foreign Ministry or Commerce Ministry of damages to their commercial activities caused by the LIBERTAD, will be subject to a (US)$905,000 fine: Those supplying information to foreign authorities about Mexican companies would be subject to a (US)$300,000 fine and companies willing to comply with any foreign law with "extraterritorial effects" would be fined (US)$150,000. ⁽¹⁸¹⁾

In June 1996, the Canadian Parliament passed retaliatory legislation to counter LIBERTAD's extraterritoriality impact.⁽¹⁸²⁾ The new law allows Canadians to countersue in Canadian courts to recover for damages awarded by United States Courts as result of a Title III authorized cause of action.⁽¹⁸³⁾ On October 28, 1996, European Union foreign ministers also agreed on a new law to counteract LIBERTAD.⁽¹⁸⁴⁾ The retaliatory law is essentially the same as Canada's. It forbids European companies or individuals from complying with LIBERTAD and allows European companies to counter sue United States companies in Europe.⁽¹⁸⁵⁾

These retaliatory measures indicate the unwillingness of the international community to succumb to a United States extraterritorial law of this magnitude. These measures taken by Canada, Europe and Mexico illustrate the potential loss to United States international trade and industry in these countries. It would have been more prudent for the United States to enact LIBERTAD back in 1967, when Cuba began compensating Italy, Spain, Mexico, Canada and Switzerland for expropriations of property.⁽¹⁸⁶⁾ Enacting a law similar to LIBERTAD would have been more equitable to our allies at that time, rather than 37 years later when our allies have already invested in Cuba.

B. Is LIBERTAD Consistent with United States Trade/Post-Cold War Policy?

The United States has been the champion of free trade⁽¹⁸⁷⁾and in its participation in the global market, it has promoted free markets and free trade areas while minimizing protectionist policies. The demise of the Soviet Union called for the removal of trade embargos and sanctions against communist countries. This strategy of openness, was thought to have accelerated the collapse of communist regimes. The United States previously dealt with a number of rogue countries which fell into communists hands, but now has established foreign relations with these countries. Countries such as China, Vietnam and North Korea are all examples of nations which still have communist regimes, have expropriated United States investments but have opened relations the United States. This policy is called constructive engagement.⁽¹⁸⁸⁾ Under this policy, a larger country which disagrees with the government or policy of another country, exposes the other country to trade and diplomatic relations, in the hope that its government will accede to the larger country's concerns, such as improving human rights. This policy has been looked upon more favorably than imposing economic sanctions because it is believed that cultural, economic and diplomatic relations will lead to an informational exchange that will promote political change more quickly, and will result in the defusion of local nationalism against the United States.

LIBERTAD is inconsistent with this United States policy.⁽¹⁸⁹⁾ United States policy towards Cuba has vast implications in domestic politics, almost equal to that of foreign policy toward Israel.⁽¹⁹⁰⁾ LIBERTAD will not create the democracy in Cuba which the United States so desires. Fidel Castro is a man of incredible charisma and astuteness, and he has kept the reins of power in Cuba because he has been always able to throw coal into the fire. In other words, the more the United States pressures on Cuba the more Castro is able to rally support for his regime, especially in an island nation which is more nationalistic than socialist or communist. Despite LIBERTAD, Castro will survive, as he has for 37 years without any United States aid or trade. It is very likely that Castro will rally international opposition against LIBERTAD and attempt to discredit United States policy as an extreme extraterritorial law which violates principles of sovereignty and non-intervention which are firmly rooted in customary international law. In the end, LIBERTAD could prove to hurt United States interests, by igniting a potential trade war between the United States and NAFTA members and the EU, as well as causing some countries to return to protectionist and isolationist policies.

In addition, the United States will have to defend its actions by asserting the national security exceptions allowed in WTO/GATT and NAFTA. By taking this action, the United States sets a bad precedent for other countries who feel the need not to comply with their respective WTO/GATT or NAFTA obligations. They will now be more inclined to use the national security exemptions, when it wants to isolate another country. Therefore, an increase in countries using the national security exemptions will eventually hamper the purposes and goals of creating free trade areas and abolishing tariffs.

C. Is LIBERTAD Constitutional?

LIBERTAD is a rare, but clear example of Congressional attempt to curtail the President's authority to conduct foreign relations. Congress has never before tied the Executive's hands as it has with LIBERTAD. Title I and II establish a list of criteria which restrict the President's powers to establish relations with Cuba,⁽¹⁹¹⁾ lift the economic embargo,⁽¹⁹²⁾ grant Foreign Assistance to Cuba,⁽¹⁹³⁾ and withhold foreign assistance to Russia⁽¹⁹⁴⁾ and International Monetary Institutions.⁽¹⁹⁵⁾ These criteria also dictate how the United States should vote in the OAS,⁽¹⁹⁶⁾ provide detailed requirements for a coordination of assistance plan,⁽¹⁹⁷⁾ and for settlement of outstanding United States claims to confiscated property and more.⁽¹⁹⁸⁾ All these provisions are an unprecedented attempt by Congress to control the President's discretionary authority granted to that office under Article II of the United States Constitution.⁽¹⁹⁹⁾ It would be extremely interesting to see this issue before the United States Supreme Court and to observe how it views these provisions. A potential scenario might involve a United States national who lost property in 1961 and a foreign corporation with assets in the United States and investments in the confiscated property in Cuba as the defendant. A powerful argument could be made, declaring that LIBERTAD's provisions create a limitation on the ability of the Executive to conduct foreign relations with respect to Cuba.⁽²⁰⁰⁾ Traditionally, foreign policy towards a particular country, especially concerning economic sanctions, has rarely been codified because governments change and statutes unnecessarily delay the Executive's conduct of foreign relations.

Finally, although President Clinton has signed the waiver to delay causes of actions for six months, meaning no United States national can bring a claim in United States courts,⁽²⁰¹⁾ liability for confiscations has been in effect since August. Since the United States has re-elected a second term President, it is possible that he might act with some latitude and continue to sign waivers to delay Title III, under the authority of LIBERTAD. Allowing causes of actions to go forward might only disrupt the forces uniting and harmonizing international trade regulation, and create an atmosphere for a trade war between Europe and the Americas. For those reasons, LIBERTAD should be repealed or found unconstitutional, because it works contrary to the principles of Article II of the United States Constitution,⁽²⁰²⁾ as well as against United States policy towards communist regimes. Furthermore, LIBERTAD is contrary to the obligations which the United States has vowed to undertake and promote in codified international law and customary international law.

1. Cuban Liberty and Democratic Solidarity (LIBERTAD) Act, 22 U.S.C. § 6021-6091 (1996). Pub. L. No. 104-114, 110 Stat. 785 (Mar. 12, 1996); available in LEXIS, Nexis Library (hereinafter LIBERTAD).

2. The final version of the Helms-Burton bill passed the U.S. Senate on February 28, 1996, by a vote of 74 to 22 and the U.S. House of Representatives on March 6, 1996, by a vote of 336 to 86.

3. LIBERTAD, supra note 1, at § 110(d), requires the President, under § 902(c) of the Food Security Act of 1985, not to allocate any sugar import quota to a country that is a net importer of sugar unless appropriate officials of that country verify to the President that the country does not import, in order to re-export to the United States, any sugar produced in Cuba. Id.

4. LIBERTAD, supra note 1, at Title I of § 102(h) codifies the economic embargo against Cuba and Title III of §s 201-207 set forth conditions under which Cuba would receive financial assistance, repeal of the economic embargo, requirements for determining a democratically elected government and settlement of outstanding United States claims to confiscated property. Id.

5. Id. at Title III of § 302 (creating a cause of action for United States property expropriated in 1961-62).

6. Id. at Title IV of § 401(excluding aliens from United States territory who have trafficked in expropriated property).

7. Anthony Maingot, J.h. Parry and Phillip Sherlock, a Short History of the West Indies 205-206 (1987). Due to the unique geographical position of Cuba to the United States, there had been a close relationship between Cuba and the United States government. The United States made various investments in Cuba in the sugar, tobacco and mining industries. Id.

8. Id. at 208 (discussing United States and Hispanic Revolutions against Europe).

9. Id. The Platt Amendment prohibited the United States government from annexing Cuba as it had annexed Puerto Rico; the Amendment restricts United States intervention in Cuba to protect United States interests, to preserve Cuban independence and to protect life, liberty and individual liberty. Id.

10. Id. United States presence in Cuba signified security for investments and opened the door to investments from both Europe and the United States. Id.

11. Id. at 225-228. In 1905- Estrada Palma; 1917-Menocal; 1921-General Zayas; 1923-Machado; 1934-Mendieta; 1944-Dr. Grau San Martin; 1952-Fulgencio Batista; 1958- present, Fidel Castro. Id.

12. Anthony Maingot, J.h. Parry and Phillip Sherlock, supra note 7, at 237-238.

13. Id.

14. Id. at 239.

15. Debra Evenson, Revolution in The Balance; Law And Society in Contemporary Cuba 13 (1994). Batista's resignation as President of Cuba resulted in riots and public upheaval which easily allowed Castro to take advantage of the confusion and invade Cuba's major cities. Id.

16. Anthony Maingot, J.h. Parry and Phillip Sherlock, supra note 7, at 237. Fidel Castro designed his image as a proponent of reform to end decades of corruption. Later when he seized power, he showed his true colors when he confiscated all foreign property and allied himself with the Soviet Union. Id.

17. Michael W. Gordon, the Cuban Nationalizations: the Demise of Foreign Private Property 148 (1976). Ley Fundamental del la Republica, [Constitution][Cuba] 1940.

18. Id. at 75, citing Ley de Reforma Agraria May 17, 1959, LRA, Decreto No. 1426, Gaceta Official (Edicion Extaordinaria), May 17, 1959.

19. Id.

20. Legislative Reference Service, Library of Congress, 88th Cong., 1st Session, Expropriation of American-Owned Property by Foreign Governments in the Twentieth-Century 16 (Comm. Print 1963) (hereinafter Expropriation in Twentieth-Century).

21. Id.

22. Michael W. Gordon, supra note 17, at 98, citing Ley 851, July 6, 1960, Gaceta Oficial (July 7, 1959). Castro amended Art. 24 of the Cuban Constitution to allow for confiscation by competent authority and for a cause of "national interest." The day after the amendment, Cuba enacted the expropriation decree. Id.

23. Anthony Maingot, J.h. Parry and Phillip Sherlock, supra note 7, at 288-290. Castro desperately needed a plan to consolidate his political power in Cuba, especially among the rural poor, so he devised property confiscation policies to get the rural poor to support his regime. Id.

24. Id. at 240. United States strategy was to invade Cuba via the Cochinos Bay, (Bay of Pigs), by training and sending Cuban exiles who left when Castro seized power 1959. The assault was immediately crushed because Castro's forces outnumbered the invasion forces and President Kennedy refused to give the order to back the invasion forces with air support. Id.

25. John Fitzgerald Kennedy, elected United States President in 1960.

26. Anthony Maingot, J.h. Parry and Phillip Sherlock, supra note 7, at 240.

27. Proclamation 3447 of February 3, 1962, 27 Fed. Reg. 1085 (1962) (hereinafter Proclamation of OAS). The proclamation recites the resolutions passed at Punta del Este, Uruguay, by a bare two-thirds vote, of the Eighth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States, declaring that "the present government of Cuba is incompatible with the principles and objectives of the Inter-American system." This proclamation was interpreted by the United States government as giving authorization under international law for the imposition of the embargo, and overriding the prohibition against economic sanctions contained in the Charter of the Organization of American States. Id.

28. Foreign Assistance Act, 22 U.S.C. § 2370(a) (1961), Pub. L. No. 87-195, § 620(a).

29. Cuban Import Regulations 31 C.F.R. § 515.201, 27 Fed. Reg. 1116 (Feb. 7, 1962).

30. Trading With the Enemy Act, 50 U.S.C. app. § 5(b) (1941-76).

31. Cuban Asset Control Regulations, 31 C.F.R.§ 515.101, 28 Fed. Reg. 6974 (1963).

32. Id. at 31 C.F.R. § 515.329, tracking the corresponding sections of the Foreign Assets Control Regulations, 31 C.F.R. § 500.329.

33. The United States policy, after the collapse of the Communist bloc has been one of constructive engagement towards the remaining communist countries, attempting to make them more democratic and free from tyranny. See also, U.N. GAOR, 49th Sess., U.N. Doc. A/49/L.200 (1994); U.N. GAOR, 50th Sess., U.N. Doc. A/50/L.198 (1995).

34. Foreign Assets Control Regulation, 31 C.F.R. § 500.329.

35. International Claims Settlement Act, 22. U.S.C. § 1643 (1994).

36. United States Foreign Claims Settlement Commission (FCSC) is located within the United States Department of Justice. United States investors who have lost property or assets abroad by act of a foreign government, may formally file a complaint with the FCSC, where the complaint is registered and authority to freeze the assets of the foreign government is sought from the President of the United States.

37. Supporting Democracy in Cuba: Hearings on S. 381 and H.R. 927 Hearings before the Senate Committee on Foreign Relations, 104th Congress, 1st Session (1995) (Statement of Ignacio E. Sanchez, Att'y, Kelley Drye & Warren), available in WESTLAW, 1995 WL 357720 (hereinafter Sanchez). Mark P. Sullivan, Congressional Research Service, Cuba-U.S. Relations: Should the U.S. Increase Sanctions on Cuba? 11 (1995).

38. Cuban Democracy Act, 22 U.S.C. §s 600-6010 (1994); Pub. L. No. 102-84, Oct. 23, 1992.

39. Id. at § 1706(a), Oct. 23, 1992, 22 U.S.C. § 6005(a)(1). § 6005(a)(1) prohibits the issuance of licenses to foreign subsidiaries of United States firms, which previously was left to the President's discretion.

40. U.S. Congress, House of Representatives, Mr. Torricelli speaking on the Cuban Democracy Act of 1992, H 9084, 102nd Congress., 2nd Sess. Congressional Record (September 22, 1992), vol. 138, no. 130, pt. 2.

41. Id.

42. Cuban Democracy Act, supra note 38; § 1706-1712, 106 Stat. 2315, 2578-81 (1992), which generally prohibits foreign firms that are owned and controlled by United States nationals from entering into any trade or financial transactions with Cuba, without regard to the strategic importance of the goods traded. This legislation removed the existing license criteria under the old Assets Control Regulations.

43. European Parliament Resolution. Eur. Parl. Doc. (C 021) 156 (1993). This Resolution condemns the extraterritoriality of the CDA.

44. Anthony Maingot, J.h. Parry and Phillip Sherlock, supra note 7, at 240. After the United States embargo against Cuba, Castro needed desperately to stabilize a degrading economy, so he turned to Moscow for economic aid in return for political support and continued defiance of United States foreign policy. Id.

45. Id. at 241. Soviet subsidies came to aid the Cuban economy which suffered significantly from the abrupt United States embargo which cut off much needed support. Cuba had become dependent on investments and the tourism industry for oil, food, clothing and hard currency from the United States. Id.

46. Id.

47. Id. Cuba was the Soviet Union's most significant ally in the Americas.

48. Open For Business: Bereft of Patrons, Desperate to Reduce His Economy, Fidel Castro Turns to An Unusual Solution: Captalism, Time, Feb. 20, 1995 at 51-52, (hereinafter Open for Business). Soviet subsidies were successful in keeping the Cuban economy afloat, but when the communist bloc began to spend more than it could afford and collapse was imminent, Castro began to look for new ways to keep his "socialist" dream alive; even reluctantly opening the doors slightly towards capitalism. Id.

49. Id.

50. Id.

51. Id. at 53.

52. Ley de la Inversion Extranjera, Ley No. 77, (Cuban Foreign Investment Act of 1995), September 5, 1995, (hereinafter Cuban Foreign Investment Act). This Act was enacted by the National Assembly of the Popular Power of the Republic of Cuba, pursuant to Art. 75, para. b of the Cuban Constitution, as amended in 1992. Ley Fundamental del la Republica, [Constitution][Cuba] art. 75. para. b.

53. Wayne S. Smith, Cuba's Long Reform, Foreign Affairs, March/April 1996 at 103.

54. Id. at 102-103.

55. Cuban Foreign Investment Act of 1995, supra note 52, at art. 10. Foreign Investment may be legally authorized by the Cuban government in all areas of the Cuban economy, with the following exceptions: health services, educational services and the armed forces institutions.

56. Smith, supra note 53, at 102.

57. Sherritt International of Canada is a Canadian multinational corporation which has significant investments in Cuba, specifically in the mining of natural resources that can be extracted from Cuba.

58. The Economist Intelligence Unit, EIU Country Report, Cuba, 4th Quarter, 1994, at 17.

59. Cuban Vice-President Carlos Lage.

60. Reuter's News Service, July 23, 1996. Cuban Vice President Carlos Lage declared that despite passage of LIBERTAD, most foreign investment firms have reaffirmed their commitment to invest in Cuba, bringing a total number of 240 joint ventures in Cuba. Id.

61. Interview with President Fidel Castro published in Time, Mar. 11, 1996, at 38. President Castro stated to the Joint Chiefs of Staff that if Hermanos al Rescate violated Cuban airspace, the aircraft would not be allowed to drop leaflets on Cuban soil. Id.

62. Id. Cuban humanitarian organization, called Hermanos al Rescate, which fly several planes out of Miami to rescue Cuban nationals who have fled Cuba.

63. The Wash. Post, Feb. 25, 1996, at A1. Cuba attacks Hermanos al Rescate planes in international airspace.

64. Open for Business, supra note 48.

65. The Man Who Would Oust Castro, Time, Oct. 26, 1992 at 56. Jorge Mas Canosa, President of Cuban American National Foundation (CANF), an influential Cuban-American leader is rumored to be in the position to become President of a newly democratic Cuba. CANF advocates the return of a democratic Cuba without Fidel Castro, the restoration of the 1940 Cuban Constitution, and settlement or restitution for all confiscated properties. Id.

66. Andreas F. Lowenfeld, Agora: The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act, 90 Am. J. Int'l L. 419, 419 (1996). United States Secretary of State Warren Christopher sent a letter to United States House of Representatives Speaker Newt Gingrich on September 20 , 1995 stating that he "was deeply concerned" about LIBERTAD and that he would recommend the President to veto the bill of it passed Congress. Id.

67. LIBERTAD, supra note 1, at § 2(1). The economy of Cuba has experienced a decline of at least 60% in the last 5 years as a result of the end of its subsidization by the former Soviet Union of between $5 billion and $6 billion dollars annually. Id. The welfare and health of the Cuban people has substantially deteriorated as a result of this economic decline and the refusal of the Castro regime to permit free and fair democratic elections in Cuba. Id. at § 2(2).

68. Id.

69. Id. at § 2(19). It is now evident that the Castro government continues to utilize blackmail such as the immigration crisis with which it threatened the United States in the summer of 1994. It also uses other unacceptable and illegal forms of conduct in order to influence the actions of sovereign state in the Western Hemisphere in violation of the Charter of the Organization of American States (OAS) and other agreements consistent with international law. Id.

70. Id. at § 2(28). For the past 36 years, the Cuban Government has posed and continues to pose a national security threat to the United States of America. Id.

71. LIBERTAD, supra note 1, at § 3:

(1) To assist the Cuban people in regaining their freedom and prosperity;

(2) To strengthen international sanctions against Cuba;

(3) To protect United States national security;

(4) To hold and internationally supervise democratic and free elections;

(5) To provide a policy framework for United States support of transition to a free Cuba;

(6) To protect United States nationals against confiscations of the property in 1959.

72. Id. at § 102.

73. Id. at § 103.

74. Id. at § 104.

75. Id. at § 106.

76. LIBERTAD, supra note 1, at § 109.

77. Id. at § 110.

78. Id. at § 201.

79. Id. at § 202.

80. Id. at § 203.

81. LIBERTAD, supra note 1, at § 204.

82. Id. at § 205-206. § 205, Requirements for Determining a Transition Government:

(1) has legalized all political activity;

(2) has released all political prisoners and allowed for investigations of Cuban prisons by appropriate international human rights organizations;

(3) has dissolved the present Department of State Security in the Cuban Ministry of Interior, including the Committee for the Defense of the Revolution and the Rapid Response Brigades;

(4) has made public commitments to organizing free and fair elections for new government,

(a) to be held in a timely manner within a period not to exceed 18 months after the transition government assumes power;

(b) with participation of multiple independent political parties that have full access to the media on an equal basis, including (in the case of radio, television, or other telecommunications media) in terms of allotments of time for such access and the times of day such allotments are given; and

(c) to be conducted under the supervision of internationally recognized observers, such as the Organization of the American States (OAS), the United Nations (UN) and other such election monitors.

83. Id. at § 207.

84. Id. at § 301(1).

85. Id. at § 301(2).

86. LIBERTAD, supra note 1, at § 301(9).

87. Id. at § 301(11).

88. Id. at § 302.

89. Id. at § 302(6). Definition of Traffics: Any 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, or

(ii) engages in commercial activity using, or otherwise benefitting from, confiscated property, or

(iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) and (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person, without authorization of any United States national who holds a claim to the property.

90. Id. at § 302a(6). The Act of State Doctrine, is a judicially created doctrine which precludes United States courts from judging acts of foreign nations. See supra text accompanying note 87.

91. LIBERTAD, supra note 1, at § 303(3)(b). § 514 amends Title V of the International Claims Settlement Act, 22 U.S.C. 1643, (1949).

92. Id. at § 306 c(1)(b).

93. Id. at § 306(b)(1) & (2).

94. Id. at § 306(c)(1)(b).

95. Id. at § 401.

96. LIBERTAD, supra note 1, at § 401(a).

97. Id. at § 401(a)(1).

98. Id. at § 401(a)(2).

99. Id. at § 401(a)(3).

100. Id. at § 401(a)(4).

101. LIBERTAD, supra note 1, at Title III, § 301(9). International law recognizes that a country has the ability to provide for rules of law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory. Id.

102. United States extraterritorial laws have been quite different than LIBERTAD. LIBERTAD's extraterritorial reach has overreached recognized limits by the international community.

United States prescriptive jurisdiction has been recognized through the following types:

1. Territorial:

A) Hartford Fire Insurance Co. v. California, 113 S.Ct. 2891 (1993). The Supreme Court held that the Sherman Antitrust Act applies extraterritorially unless there is an actual conflict between the laws of the United States and a foreign state, and the conflict does not permit dual compliance. The Rule of Reasonableness then mandates an interest balancing test, where the state with the greatest interest has preference over the state with the lesser interest. Id.

B) Sale v. Haitian Centers Council, Inc., et al, 113 S.Ct. 2549 (1993). The Supreme Court held that Haitians can be sent back on the high seas, despite the United Nations Convention Relating to the Status of Refugees. Id.

C) Grunenthal GmbH v. Hotz, 712 F.2d 421 (9th Cir. 1983). This court held the defendant's misrepresentation about ownership of a United States corporation was significant and in furtherance of a fraudulent scheme, therefore United States securities laws would apply extraterritorialy. Id.

2. Nationality:

A) Citizen: Blackmer v. United States, 284 US 421 (1932). The Supreme Court held that it was permissible for the United States government to execute a subpoena on a United States national living abroad. Id.

B) Corporate: The Pipeline Controversy, B. Cater, Intl. Eco. Sanctions, Improving Haphazard Regime, p. 83-85 (1988). In June 1982, United States President Ronald Reagan announced unprecedented broadening of trade controls against the Soviet Union. These controls were designed to prevent Soviet construction of a natural gas pipeline to Europe. Through the Export Administration Act, the President prevented foreign subsidiaries of United States firms from exporting equipment and technology even through it was from a foreign origin and the controls restricted independent foreign companies from exporting foreign-origin products that were made with technology acquired through licensing agreements with United States companies. Due to considerable pressure from United States allies, the business community and Congress, and the apparent ineffectiveness of the regulations, the President eventually rescinded those extraterritorial controls. Id.

3. Protective:

A) United States v. Romero-Galue, 757 F.2d. 1147 (1985). This court held that the United States Coast Guard can board ships (with permission of the flag state) it suspects it may be breaching United States laws designed to protect the national security or which may be potentially interfering with the United States attempt to curtail the drug trade. Consequently, United States drug laws can be applied extraterritorially. Id.

4. Universal:

Any country can apply this type of jurisdiction in cases concerning Piracy, Genocide, War Crimes, Torture andTerrorism.

103. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 444. (herinafter RESTATEMENT)..

104. Id. at § 403. A state has jurisdiction to prescribe laws with respect to conduct outside its territory that has or is intended to have substantial effect within its territory.

105. Opponents to LIBERTAD would be, for most part, the international community, the NAFTA partners (Mexico and Canada) and the European Union, given the considerable investments these countries have in Cuba and the United States.

106. LIBERTAD, supra note 1, at Title III. Title III of LIBERTAD is inconsistent with international customary law, in that the United States is seeking to punish third parties (EU & NAFTA partners), because they now own a part of confiscated property. Usually, countries who have lost properties due to confiscations, do not attempt to punish third parties.

107. Hearings on U.S. Policy Towards Cuba Before the Subcommittee on Western Hemisphere of the House Committee on International Relations, 104th Congress, 1st Session (1995) [Statement by Peter Tarnoff, United States Under-Secretary of State for Political-Affairs], available in 1995 WL 306730 (hereinafter Tarnoff). At the Hearing, Tarnoff concedes that the extraterritoriality provision of LIBERTAD (Title III), could be potentially detrimental to United States policy interests throughout the globe, and that moreover the United States can expect some sort of retaliation because of its trading allies. Id.

108. Proponents of LIBERTAD would be the sponsors of the legislation, U.S Senator Jesse Helms (R-NC), United States Representative Dan Burton (R-Ind.), the Cuban American National Foundation and most members of the Republican party.

109. Sanchez, supra note 37. The estimated value of United States confiscated properties totaled $6 billion.

110. Id. The protection of individual property rights is consistent with what Article 17 of the United Nations Universal Declaration of Human Rights intends to correct. United Nations Universal Declaration of Human Rights, Dec. 10, 1948, U.N. GAOR 217 (III 1948)(48-0, 8 abstentions).

111. Restatement (Third), supra note 104, at § 403.

(1) In determining whether the exercise of jurisdiction is unreasonable the following factors are relevant and must be examined:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place in the territory, or has a substantial, direct and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be 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 the regulation to the regulationing state, the extent which other states regulate such activities, and the degree of 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, economic and legal system;

(f) the extent that the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with the regulation any another state.

(3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own, as well as the other state interest, in exercising jurisdiction, in light of all the relevant factors, Sub§ (2); a state should defer to the other if that state's interest is clearly greater.

112. The Communist ideology promotes the notion that private property does not exist, that all property is owned by the state, therefore no private ownership of property is recognized in Communist state.

113. LIBERTAD, supra note 1, at Title III, § 302a(6). No Court of the United States shall decline, based upon the act of state doctrine, to make determination on the merits in an action brought under paragraph (1)." Id.

114. Sabbatino Amendment or Second Hickenlooper Amendment, 22 U.S.C. § 2370(e)(2), (1962)[hereinafter Hickenlooper]. No court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits, giving effect to the principles of international law in a case in which a claim of title or other rights to property is asserted by any party including a foreign state . . . based upon (or traced through) a confiscation or other taking . . . by an act of that state in violation of the principles of international law . . . . Id.

115. Underhill v. Hernandez, 168 U.S. 250, 252 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 398 (1964). Neither case allowed United States Courts to adjudicate the acts implemented by a foreign state.

116. Underhill v. Hernandez, 168 U.S. 250.

117. Sabbatino, 376 U.S. at 398. The Supreme Court held that United States courts cannot adjudicate acts of foreign governments because a subsequent decision will (1) possibly offend the foreign government and damage negotiations with the United States, or (2) undermine the Executive's authority to conduct foreign relations, as granted by Art. II of the Constitution. After this decision Congress passed the Hickenlooper Amendment. Hickenlooper, supra note 114. The Supreme Court reversed itself, declaring that the expropriations did indeed violate international law.

118. Sabbatino, 376 U.S. at 427. There are two instances when the Act of State Doctrine does not apply and the foreign government act can be litigated to ascertain the validity. There must exist (1) a small foreign policy impact and (2) there is a violation of international law which is clear, such as a treaty violation. If there is a great a foreign policy impact and international law is unclear (e.g. customary international law), then United States courts would assume the foreign governments act was valid and apply the Act of State Doctrine, preventing litigation.

119. Id.

120. Sabbatino, 376 U.S. 398.

121. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 684 (1976). In order for the Act of State Doctrine to even be considered, there are two requirements: (1) an Official Act of the foreign government (through decree, resolution, order or statute) (2) done within its own territory.

122. LIBERTAD, supra note 1, at Title III, § 302a(6). Congress, through LIBERTAD, has prohibited United States courts from applying the of Act of State Doctrine. "No Court of the United States shall decline, based upon the act of state doctrine, to make determination on the merits in an action brought under paragraph (1). Id.

123. EU and NAFTA could retaliate through various means such as mirror legislation or imposing tariffs on certain United States imports.

124. Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71, amended 210 F.2d. 375. The Court of Appeals held that it will refuse adjudicate foreign acts, unless there is some evidence to indicate that the Executive has acted in a way to free United States courts from any constraints. This evidence, known as the Bernstein letter, is from the Legal Advisor of the United States Department of State and advises the Judiciary that there need not be any consideration of the act of state doctrine in a particular case. Id.

125. Sabbatino, 376 U.S. 398, 426 (1964).

126. Id. at 427.

127. Marbury v. Madison, 5 U.S. 137, 138 (1803). This landmark case infers and creates, from Articles I, II, and III of the United States Constitution, powers delegated to the legislative, executive and judiciary branches, respectively. From this interpretation, the Supreme Court has recognized the separation of powers doctrine, in which foreign relations is recognized as within the purview of the Executive branch and should not be infringed by any of the other branches.

128. Sabbatino, 376 U.S. at 427.

129. Statement of President Ronald Reagan, 19 Weekly Comp. of Pres. Doc. 1216-1218, Sept. 9, 1983. Under International law, no United States investment should be expropriated unless the taking (a) is done for a public purpose; (b) is accomplished under due process of law; (c) is non-discriminatory; (d) does not violate any previous contractual arrangements between the nationals or companies concerned and the government making the expropriation; and (e) is accompanied by prompt, and adequate and effective compensation. Id. 22 U.S.C. § 284j (1989) authorizes the President of the United States to instruct the Executive Directors of the International Bank for reconstruction and Development and the International Development Association to vote against any loan or utilization of funds that would benefit a country who has expropriated or nationalized United States property. Id.

U.N. GAOR, 27th Sess., U.N. Doc.A/1803 (1962), the General Assembly (87-2, 12 abstentations) declares that the nationalization and expropriation of property shall be based on grounds of public utility, security or national security or interest, which are recognized as overriding purely individual or private interests both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. See supra note 106, U.N. recognizes the fundamental right to own property.

130. Pub. L. No. 102-84, supra note 38, at §s 6001-6010.

131. Id. at § 6005(a)(1). The issuance of licenses to foreign subsidiaries of United States, previously was left to the President's discretion, is prohibited. Id.

132. Eur. Parl. Doc. (C 021) 156 (1993). The extraterritoriality of the CDA is condemned. Id.

133. See supra text accompanying note 163.

134. From 1992-1996, the United Nations has adopted resolutions condemning and calling for an end to the unilateral economic embargo imposed by the United States against Cuba. As the years progress, more and more countries have been siding with Cuba on this issue. The United States closest trading partners (such as Great Britain) have finally sided with Cuba, calling for an end to the trade embargo.

U.N. GAOR, 47th ess., U.N. Doc. A/ 47/L.19 (1992)(voting to eliminate the unilateral application of economic and trade measures imposed against one state to the other).

U.N. GAOR, 48th Sess., U.N. Doc. A/48/L.16 (1993)(voting essentially the same).

U.N. GAOR, 49th Sess., U.N. Doc. A/49/L.9 (1994)(voting 101- 2 in favor of elimination of the imposed measures, with 48 abstentions).

U.N. GAOR, 50th Sess., at 484, U.N. Doc. A/50/L.10/401 (1995)(voting 113-3 in favor of elimination of the imposed measures, with 38 abstentions).

U.N. GAOR, 51th Sess., U.N. Doc. A/51/L.4 (1996)(voting 137- 3 in favor, with 25 abstentions).

135. The United Nations does not encourage the export of laws, such as LIBERTAD. Furthermore, LIBERTAD is unprecedented overreach of extraterritorial law.

136. U.N. GAOR, 48th Sess., U.N. Doc. A/48/L.16 (1993)(condemning any extraterritorial laws, specifically the Cuban Democracy Act of 1992 (CDA); the resolution was adopted by a vote 59-3, with 71 abstentions). U.N. GAOR, 49th Sess., U.N. Doc. A/49/L.9 (1994)(again condemning the CDA; this time by a margin of 88-4, with 57 abstentions).

137. U.N. GAOR, 48th Sess., U.N. Doc. A/50/L.10 (1995)(voting against the United States embargo 117- 3, in November of 1995). In 1994 the voted was 101- 2; the only countries that voted with the United States were Israel and Uzbekistan, which both trade with Cuba.

138. Constructive engagement, is a policy in which there is active trade and extensive diplomatic relations in hope that eventually the un-democratic country will eventually have to accede to the concerns of the international community.

139. The policy of "constructive engagement" has been followed through by the United States in China in 1960's-70's, North Korea in 1992 and Vietnam in 1995.

140. United Nations Charter, June 26, 1945, 59 Stat. 1031 TS. No. 993, 3 Bevans 1153.

141. Universal Declaration of Human Rights, Dec. 10, 1948, U.N. GAOR, 217 (III 1948); LIBERTAD, supra note 1, at § 2(9). Congress finds that the United States has shown a deep commitment, and considers it a moral obligation, to promote and protect human rights and fundamental freedoms as expressed in U.N. Charter and Universal Declaration of Human Rights. LIBERTAD, supra note 1, at § 2(9).

142. Inter-American Convention on Asylum, __1928. (cite omitted).

143. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

144. LIBERTAD, supra note 1, at § 2(18). Although Cuba is a signatory state to the 1928 Inter-American Convention on Asylum and the International Covenant on Civil and Political Rights, "it nevertheless surrounds embassies in its capital by armed forces to thwart the rights of its citizens seeking political asylum . . . punishing them by imprisonment or execution . . . ." Id.

145. U.N. GAOR, 47th Sess., U.N. Doc. A/47/L.139 (1992).

146. U.N. GAOR, 48th Sess., U.N. Doc. A/48/L.142 (1993).

147. U.N. GAOR, 49th Sess., U.N. Doc. A/49/L.200 (1994); U.N. GAOR, 50th Sess., U.N. Doc. A/50/L.198 (1995).

148. LIBERTAD, supra note 1, at § 2(22).

149. U.N. GAOR 217A (III), at 71, U.N. Doc. A/810, Art. 17 (1948)(maintaining that the protection of individual property rights is a basic human right and no one shall be deprived except upon just compensation).

150. Delegation of the European Commission; European Union: Demarches Protesting the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996; March 5, 1996; March 13, 1996, 35 I.L.M.397, (1996) (hereinafter European Protests).

151. The European Union protests the following provisions of LIBERTAD.

1) The extraterritorial reach; LIBERTAD, supra note 1, at Title III, § 301(9).

2) Denial of visas to executives and shareholders of companies that participate in transactions with confiscated properties; Id. at Title IV, § 401.

3) Prohibition of financing United States-owned or controlled firms that might have some distant transactions with Cuba; Id. at Title I, § 103.

4) Reduction of payments to international institutions, such as the International Monetary Fund (IMF); Id. at § 104.

5) Reduction in United States foreign assistance to the Russian Federation; Id. at § 106.

6) Cause of action against expropriated property; Id. at Title III, § 302.

However, in-depth analysis of GATT/WTO has determined that only Title I, § 110 of LIBERTAD conflicts with GATT/WTO; the rest are policy disagreements between European Union and the United States.

152. LIBERTAD, supra note 1, at § 110. Importation of (European Union) sugar, syrup and molasses, is prohibited unless the country (European Union) certifies that these products do not originate from Cuba. Further enforcement of the economic embargo against Cuba include civil penalties imposed upon violation of Trading with the Enemy Act. Id. Importation safeguards ensure prohibition of sugars, syrups and molasses from countries which purchase such goods from Cuba. Id.

153. Terence P. Stewart, The World Trade Organization, § 301, 582-583, American Bar Association, 1996.

154. Gatt, Analytical Index: Guide to GATT Law and Practice, 287-289 (1994).

Article XI of GATT specifically states:

"No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale of any product destined for the territory of any other contracting party." Id.

155. Gatt Index, supra note 155, at Article I. (prohibiting discriminatory practices, in accordance with Most-Favored Nation Treatment).

156. Id. at Article XX.

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary means or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(E) relating to products of prison labor. Id.

157. Cuban Foreign Investor Act, supra note 52; (granting legal protections to foreign investors).

158. Maria C. Werlau, Foreign Investment in Cuba and Labor Rights, April 4, 1996, distributed by CubaNet.

159. Gatt Index, supra note 155, at Article XXI.

Nothing in this Agreement shall be construed, . . .

(b) to prevent any contracting party from taking any action which it considers necessary from the protection of its essential national security interests, . . .

iii) taken in time of war or other emergency in international relations.

160. LIBERTAD, supra note 1, at§ 2(28). Congressional Findings, stated that Cuba has been and remains a national security threat to the United States of America. Id.

161. Examples of national security threats; a) illegal drug trade, b) violations of territorial integrity, c) threats to vital economic United States interests which are located abroad, ie. oil, d) acts of terrorism against the United States.

162. Cases brought to the WTO/GATT dispute panel concerning "what is essential national security interests?,";GATT Doc. L/5424, adopted on 29 November 1982, 29S/9, 11.Art. XXI(b).

1) Argentine war with Great Britain over the Easter Islands.

Council discussion in 1982 concerned trade restrictions applied, for non-economic reasons, by the European Economic Community (EEC), Canada and Australia against imports from Argentina. Representatives of the EEC, Canada and Australia stated it is the inherent rights countries to ascertain what constitutes an essential security interest. Notification and justification was not required by Art. XXI and in addition, the WTO/GATT dispute panel had neither the competence nor the responsibility to deal with the political issue raised by Argentina. The representative of Argentina noted that in order to justify restrictive measures by a contracting party invoking the Art. XXI exception, specific reasons of national security were required to be stated. Id.

There were no trade restrictions which could be applied without being notified, discussed and justified. The panel (council) concluded that " . . . the contracting parties undertake, individually and jointly: . . . to abstain from taking restrictive trade measures, for reasons of non-economic character, not consistent with the General Agreement." Id.

2) United States embargo with Nicaragua.

The dispute panel decided that it was not authorized to examine the United States justifications for the invocation of Art. XXI: (b)(iii) concerning the 1985 United States trade embargo against Nicaragua; the panel could not find the United States to be either complying with its obligations under the General Agreement nor to be failing to carry out its obligations under the Agreement. GATT Doc.L/6053, dated 13 October 1953 (un-adopted), paras. 5.1-5.3. Case brought to the WTO/GATT dispute panel concerning restrictive measures "taken in time of war or other emergency in international relations", Art. XXI(b)3.

(1) Arab League Boycott.

The 1970 Working Party Report on the Arab League boycott of Israel and the secondary boycott against firms having relations with Israel, observing that at this time there was ongoing war between Israel and the United Arab Republic (UAR), it would not be reasonable for the UAR to do business with such countries. Several members of the working party (dispute panel) agreed with UAR, because of the state of war which existed in this region. The United States was a strong advocate is maintaining that this type of extraterritorial policy went against the norms and principles established in GATT. GATT Doc. L/3362, adopted on 27 February 1970, 17S/33, 39, para. 22.

163. North American Free Trade Agreement, December 17, 1992, Canada-United States-Mexico, 32 I.L.M. 296, 32 I.L.M. 605 (1993) (hereinafter NAFTA).

"Subject to paragraphs 2, 3 and 4, disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT) may be settled in either forum at the discretion of the complaining party". Id. at Part Seven, Chapter 20, Article 2005, GATT Dispute Settlement.

164. LIBERTAD, supra note 1, at Title IV, § 401. Title IV is designed to exclude any alien from the United States who has confiscated property of United States nationals or who traffics in such property. The method of enforcement authorizes the United States Secretary of State to deny a visa to such persons and additionally authorizes the United States Attorney General to exclude any person who may attempt to enter the country. Those excluded are: (1) persons who have directed or overseen the confiscation of property owned by a United States national; (2) a person who currently traffics in confiscated property; (3) a person who is a corporate officer, principal, shareholder with a controlling interest of an entity which has been confiscated; and (4) a spouse, minor child, or agent of an excludable person under (1), (2) and (3). Id.

165. NAFTA, supra note 163. Chapter 16, Article 1603 provides:

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, including the provision of Annex 1603.

2) A party may refuse to issue immigration documents authorizing employment to a business person where the temporary entry of that person might affect adversely:

(A) The settlement of a labor dispute that is in progress, at the intended place of employment;

(B) The employment of any person who is involved in such dispute. Id. at Chapter 16, Article 1603.

166. NAFTA, supra note 163, Annex 1603.

167. NAFTA, supra note 163.

Chapter 21, Article 2102: National Security provides,

(b) To prevent any party from taking any actions that it considers necessary for the protection of its essential security interests, . . .

ii) taken in a time of war or other emergency in international relations.

168. F.v. Garcia-amandor, the Inter-american System, Treaties-conventions & Other Documents, Vol. 1, Part 1 (1983);O.a.s. Charter, Art. 19, 33 I.L.M. 981 (1994)(stating the following):

"No state may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind." Id.

169. Proclamation of OAS, supra note 27.

170. OAS Resolution, July 29, 1975, O.A.S. Doc. OEA/Ser. G. CP/doc. _ /75, July 29, 1975, 14 I.L.M. 1354, (1975)(voting of 16- 3, with 2 abstentions; the United States voted in favor of the resolution). (cite omitted).

171. OAS Committee Declares U.S. Helms-Burton Law Illegal, Agence France Presse, August 27, 1996.

172. O.A.S. Doc. OEA/Ser. G. CP/doc. 2803/96, Aug. 27, 1996,35 I.L.M. 1322, (1996). Pursuant to the June 1996 Resolution of the General Assembly of the Organization of American States (OAS), the Inter-American Juridical Committee was directed to examine the validity of LIBERTAD under international law. The Committee found that the law conflicted with Articles 118 and 19 of the Charter of the OAS and concluded that "exercise of jurisdiction over acts of 'trafficking' in confiscated property does not conform with the norms established by international law . . . ." Id.

173. OAS Resolution, supra note 170. The OAS Resolution ended the multilateral embargo against Cuba, resulting in the United States being the only country to impose economic sanctions while most other nations opened trade and established diplomatic relations with Cuba. This resolution was a profound blow to United States hegemonic influence over policy concerning Cuba. United States hegemony over Cuba began to fall apart when Mexico became the first country to re-establish diplomatic relations with Cuba. Id.

174. Michael May, Latin America, Jane's Intelligence Review Vol. 3, No. 9, p. 16, Sept. 1, 1996.

175. Id.

176. Id.

177. Molly Moore, "Mexican Family Feels the Sting; Helms-Burton Act/How Trade Law Aimed at Cuba Hurts, International Herald Tribune, Sept. 10, 1996.

178. Id.

179. Id. Passed by Mexican Senate (1996), not law yet, needs to pass lower-house.

180. Id.

181. Id.

182. Molly Moore, supra note 177.

183. Id.

184. Eur. Parl. Doc. (COM _ ) (1996). (cite omitted).

185. Id.

186. Saying Boo to Helms-Burton, the Economist, Oct. 19, 1996, at 49. The Cuban Ministry states that between 1967-1986, Cuba began paying compensation to Mexico, Britain, Canada, France Italy, Spain and Switzerland. Compensation to Italy, Switzerland and France is already complete and other payments, such as a 20 year deal with Spain which began in 1986, are in progress. Olga Miranda, legal counselor to Cuba's foreign ministry, and a member of the permanent arbitration organization in the Hague stated that the United States closed the door on such negotiations. Id.

187. The United States has engaged in many trade pacts with several countries which have policies similar to the United States. Examples are the North American Free Trade Agreement between Canada-United States-Mexico which gradually reduces tariffs for these three countries. NAFTA, supra note 163. Another is the Caribbean Basin Economic Recovery Act of 1983 which grants NAFTA parity to Caribbean countries. (cite omitted) A final pact is the potential Free Trade Initiative of the Americas, which the United States will soon support. (cite omitted).

188. Extract of a speech by Sir Leon Brittan, Vice President of the European Commission before the European-American Chamber of Commerce (EACC), November 7, 1996. European policy towards Cuba has not been soft, but it has been a policy of constructive engagement, through which the EU encourages democratic reform, amelioration of human rights, broadening of private enterprise and development of a civil society. Id.

189. Tarnoff, supra note 82. Significant policy change, such as the proposed ban on the entry of sugar products from other countries that import Cuban sugar into the United States, would likely be viewed by others as a secondary boycott, similar to the Arab League boycott against Israel which the United States vigorously opposed. Several of LIBERTAD's provisions, particularly those concerning confiscated United States properties overseas, could be difficult to defend under international law. The LIBERTAD's sanctions could affect persons not directly related to any decision to invest in or do business involving confiscated United States properties (e.g. shareholders in mutual funds, spouses and dependents of principals). If enacted, these provisions could prompt retaliatory measures that would severely disrupt essential United States trade relationships. Precedents could also be set which could undermine United States commercial interests around the globe. Id.

190. United States foreign policy towards Cuba has been dominated by Cuban-American lobbies seeking revenge and who have no interest in Cuba if Castro is in power. The power of these lobbies is comparable the Jewish-American lobby which has considerable influence in Washington over foreign policy concerning Israel.

191. LIBERTAD, supra note 1, at § 205-206.

192. Id. at § 204. Termination of the United States imposed economic embargo against Cuba.

193. Id. at § 104. United States opposition to Cuban membership in international financial institutions

194. Id. at § 106. Withholding of foreign assistance aid from any independent state of the former Soviet Union, found to be providing assistance to military and intelligence facilities in Cuba.

195. Id. at § 104.

196. LIBERTAD, supra note 1, at § 105. United States opposition to termination of the suspension of the Cuban Government from participation in the Organization of American States.

197. Id. at § 203. Coordination of assistance program; implementation and reports to Congress; reprogramming.

198. Id. at § 207. Settlement of outstanding United States claims to confiscated property.

199. U.S. Const. art. II, §2, cl. 2.

200. United States v. Curtiss Wright, 299 U.S. 304, 307 (1936). "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as the representative of the nation." Id.

201. LIBERTAD, supra note 1, at § 306B(1). The President may suspend the effective date under subsection (a) for a period of not more than six months if the President determines and reports in writing to the appropriate Congressional committees at least 15 days before such effective date that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba. Id.

202. U.S. Const., art II, § 2, cl. 2. All contents copyright © 1997, New England School of Law, Boston, Massachusetts.
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