Widening the US Embargo Against Cuba Extraterritorially. A few public international law comments on the `Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996'.

August Reinisch¹

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I. Introduction

On 12 March 1996 President Clinton signed into law the latest anti-Cuba sanctions bill, the `Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996',² also widely known after its sponsors in Congress, Senator Jesse A. Helms (Republican-North Carolina) and Representative Dan Burton (Republican-Indiana), as the Helms-Burton Act (the `Act'). Predictably this immediately caused an uproar in the Western hemisphere. It led America's closest allies to condemn in diplomatic notes the legislation as a violation of international law, and to threaten to invoke dispute settlement procedures under NAFTA and WTO provisions.³

The Act raises a number of interesting conflict of laws and jurisdiction of courts questions which cannot be addressed in an exhaustive fashion in this short comment. What should be addressed in a more detailed manner, however, is the intriguing aspect, inherent in this latest piece of extraterritorial US legislation, of the broader `public order' considerations lying behind such unilateral international law enforcement attempts and the limits imposed on such action by the same international law.

In some respects the ado about the Act appears to revolve around the pitting of substantive against formal rules of international law. While the US maintains that it is defending property rights of its citizens that had been infringed in violation of an international `treatment of aliens' standard, Europeans and America's NAFTA trade partners regard the US action as a violation of the international rules of `jurisdiction to prescribe', which delimit each sovereign's legislative sphere.

It is very likely that the two sides will not enter into a meaningful dialogue, but rather misunderstand each other fundamentally, because their lines of argument will probably fall back on these two completely different levels of discourse. This comment will undertake to avoid this almost pre-ordained misunderstanding, and try to address the two competing claims along with their proper counter-arguments. In other words, it will ask whether the protection of private property as an intended goal of the legislation could prove acceptable for the purpose of exercising jurisdiction to prescribe as a matter of international law, and on the other hand, whether the perceived unlawfulness of extraterritorial legislation is indeed as rigorous as is claimed by America's trading partners.

Before entering the debate about the lawfulness of the Helms-Burton Act under international law, a brief summary of the operative provisions of the legislation seems appropriate.

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1 Mag. iur. et phil. (University of Vienna), LL.M. (NYU), Dr. iur (University of Vienna). University Lecturer at the University of Vienna (Austria); currently Visiting Scholar at The Paul H. Nitze School of Advanced International Studies/Johns Hopkins University, Washington D.C. (USA). The author wishes to acknowledge the helpful comments to a draft of this article by Kevin C. Kenny and Christoph H. Schreuer.

2 Public Law 104-114, H.R. 927; reprinted in 35 ILM (1996) 357-378.

3 European Union: Démarches Protesting the Cuban Liberty and Democratic Solidarity Act, reprinted in 35 ILM (1996) 397. As of June 1996, requests for consultations concerning the Act have been brought forward by Canada and Mexico under NAFTA Chapter 20 and the EU and its Member States under the WTO dispute settlement procedure. Within the OAS the Inter-American Juridical Committee has been seized of the matter.

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