Academic journal article Houston Journal of International Law

Who's Isolating Whom?: Title III of the Helms-Burton Act and Compliance with International Law

Academic journal article Houston Journal of International Law

Who's Isolating Whom?: Title III of the Helms-Burton Act and Compliance with International Law

Article excerpt


James Osborne's heirs want the White House back;(1) and because they are Canadians, they cannot run for president. But fortunately, Canadian Members of Parliament Peter Milliken and John Godfrey have introduced legislation that would allow the descendants of some 80,000 British loyalists to claim compensation for property expropriated during the American Revolutionary War.(2)

Has Parliament lost its bearings? Did the authors consider the legislation's implications under international law? Did they consider Canada's obligations under the U.N. Charter, the North American Free Trade Agreement (NAFTA), or the World Trade Organization? In fact, the apparent lack of concern for these issues reflects Parliament's anger towards Congress(3) for failing to recognize U.S. international obligations in passing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996.(4)

The Helms-Burton Act, which seeks to deter foreign investment in Cuba,(5) has four Titles. Title I aims to strengthen the economic embargo over Cuba.(6) Title II promises generous aid to the free and independent Cuban government.(7) Title III, the most controversial and the inspiration for the Godfrey-Milliken bill,(8) allows U.S. nationals to sue individuals who "traffic"(9) in expropriated property in Cuba.(10) Lastly, Title IV denies admission into U.S. territory for all "traffickers"(11) and their families.(12)

This Comment focuses on Title III's consistency with U.S. obligations to its neighbors in the Western Hemisphere. The discussion begins with the history and development of the Helms-Burton Act. Next, this Comment examines international reactions to Helms-Burton, especially the reactions of Mexico and Canada. This Comment then evaluates Title III's compliance with international standards regarding the extraterritorial application of domestic law. The final part of this Comment examines U.S. obligations under the NAFTA, the U.N. Charter, and the Charter of the Organization of American States (OAS) and questions Title III's compliance with those obligations.


The Helms-Burton Act is the most recent development in the U.S. boycott of Cuba. President John F. Kennedy started the embargo under the authority of the Foreign Assistance Act of 1961(13) and the Trading with the Enemy Act of 1917.(14) In 1992 anti-Castro groups pressured the United States to enact the Cuban Democracy Act of 1992,(15) which restricted trade between Cuba and foreign subsidiaries of U.S. corporations.(16) The legislation sparked a quick, negative response from the international community, which felt the law was an impermissible extraterritorial extension of U.S. jurisdiction.(17) The U.N. General Assembly voted to denounce the Cuban Democracy Act of 1992 on three separate occasions: November 24, 1992, November 3, 1993, and October 26, 1994.(18)

While the United Nations was denouncing the Cuban Democracy Act of 1992, the Foreign Relations Committee in the U.S. Congress was drafting and debating what would become Helms-Burton.(19) The seeds of Helms-Burton lay in the collapse of communism in the former Soviet Union.(20) Prior to 1989, the Soviet Union provided between US$4-6 billion in subsidies each year for the Cuban economy.(21) But in the years following the cessation of the subsidies, Cuba fell into severe economic decline.(22) U.S. legislators feared that the Castro regime would seek to cure its capital crunch by selling properties expropriated from U.S. nationals.(23) Thus, Congress wrote Helms-Burton in part to "discourage persons and companies from engaging in commercial transactions involving confiscated property, and in so doing to deny the Cuban regime of Fidel Castro the capital generated by such ventures."(24)

Before March 1996, the Clinton Administration had mixed feelings about Helms-Burton. The President worried that the bill constrained his authority to conduct foreign affairs. …

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