Helms-Burton Invites a Closer Look at Counter-Measures
Jeannette M E Tramhel, The George Washington Journal of International Law and Economics
ROBERT L. MUSE*
The existence of [a] State's right to exercise jurisdiction is exclusively determined by public international law. F.A. Mann'
Over one year after its enactment it is surprising how little understood the Cuban Liberty and Democratic Solidarity Act (Helms-Burton Act or Act)2 is within American legal circles. It is this author's view that a better understanding of the Act will continue to elude lawyers in this country so long as they fail to recognize it for what it is-a new and radical departure in the foreign relations practice of the United States. In unprecedented fashion the Helms-Burton Act puts the federal courts of this country to the task of achieving a set of U.S. foreign policy objectives in Cuba. The means to the achievement of those distinctly political goals of the Act is the private right of action created by Title III of the statute.3
Because Title III of the Helms-Burton Act is an exercise in foreign policy, its legitimacy must be assessed under governing principles of public international law.4 Regrettably, at present few U.S. lawyers beyond academe seem to be conversant in those principles. It is therefore not surprising that certain lawyers have emphasized aspects of the law that they do recognize and upon which they can comment upon. For example, some have treated the Act as another opportunity to provide corporate "compliance" advice, while others have approached it as a "trade" matter of a U.S. domestic regulatory character.5 These analyses are inadequate to the development of a thorough understanding of the statute. They are not unlike viewing a nuclear attack on a country through a keyhole of administrative penalties for a breach of the target nation's environmental laws, rather than looking at it from the larger perspective of the permitted use of state force in public international law.
That the Helms-Burton Act was intended as a foreign policy endeavor was hardly a secret closely kept among the statute's proponents. The text of the law as well as its legislative history demonstrate that the lawsuit rights of Title III were always meant (and quite openly at that) to be the instrument of the political, social, and economic transformation of Cuba set out with great specificity in Title II of the Act.6
Whether or not such a coerced transformation of Cuban society and that country's institutions is a permissible endeavor on the part of the United States is a question that can only be answered by reference to such public international law precepts as the principle of nonintervention by states in the internal affairs of other states.7 A second question that is also answerable only by reference to public international law is whether Title III is a legally permissible means to the goal of a transformed Cuba that the statute seeks.8 The answer to this question is found in the constraints public international law imposes on a state's ability to assert prescriptive jurisdiction over conduct occurring outside its national territory. This Article will address the issue of extraterritorial law in relation to the Helms-Burton Act.
Limitations of space, however, prevent exploration of most of the public international law issues that the Helms-Burton Act presents. But, this Article will have achieved one of its purposes if, to even a small degree, it assists in stimulating discussion as to what those legal issues are.9 Much is at stake with respect to the HelmsBurton Act. Indeed, if the essence of law is that one accepts external standards for one's conduct, then the question for the United States arising from that statute is this: Does it, as the preeminent power in a post-Cold War world, intend to conform its foreign policy objectives and methods to public international law?10 I suggest that the first step in eliciting an affirmative reply to that question is for international lawyers to ensure that policymakers within the United States know exactly how the Act violates that law. …