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Us Extraterritorial Jurisdiction: The Helms-burton and D'Amato Acts

Published online by Cambridge University Press:  17 January 2008

Vaughan Lowe
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Extract

The history of clashes over extraterritorial jurisdiction between the United States of America and other States in the Americas, Europe and elsewhere is a long one. That history is commonly traced back to the antitrust claims arising from the Alcoa case in 1945, in which the “effects” doctrine was advanced in the peculiar and objectionable form in which it is applied, not simply to acts which constitute elements of a single offence but which occur in different jurisdictions but, rather, to the economic repercussions of acts in one State which are felt in another. The conflict persisted into the 1950s, with the clashes over US regulation of the international shipping and paper industries. In the 1960s and 1970s there were further clashes in relation to the extraterritorial application of US competition laws, notably in disputes over shipping regulation and the notorious Uranium Antitrust litigation, in which US laws were applied to penalise the extraterritorial conduct of non-US companies, conducted with the approval of their national governments, at a time when those companies were barred by US law from trading in the United States. It was that litigation which was in large measure responsible for the adoption in the United Kingdom of the Protection of Trading Interests Act 1980, which significantly extended the powers which the British government had asserted in the 1952 Shipping Contracts and Commercial Documents Act to defend British interests against US extraterritorial claims.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 46 , Issue 2 , April 1997 , pp. 378 - 390
Copyright
Copyright © British Institute of International and Comparative Law 1997

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References

1. Both Acts are complex. This article does no more than summarise the main provisions of interest to (public) international lawyers.

2. Public Law 104–114 of 12 Mar. 1996. reproduced in (1996) 35 I.L.M. 357; 22 U.S.C. 6021 et seq. Communist regimes around the world may fall, but at least the US Congress is keeping alive the tradition of tendentious language in its legislation.

3. 22 U.S.C. s.2370(a). For a helpful summary of the legal basis of the US embargo of Cuba, see the Committee on Inter-American Affairs, “The Legality of the Extra-Territorial Reach of the Cuban Democracy Act of 1992” (1996) 51 The Record of the Association of the Bar of the City of New York 322.

4. 22 U.S.C. ss. 6001 et seq.

5. See the UN Security Council statement on the incident, reproduced at (1996) 35 I.L.M. 493.

6. S.116(14)–(15).

7. Ss.101–116.

8. Ss.201–207.

9. Ss.301–306.

10. The right of action does not extend to those who are not US citizens.

11. The date is set by ss.302(a)(l) and 306.

12. The term “property” includes (subject to an exception for certain residential real property) real, personal, mixed and intellectual property, and any present, future or contingent right, security or other interest in property: s.4(l 2). The property must be worth at least $50,000: s.302(b).

13. Ss.4(4), 301–306.

14. The Commission certified private claims against Cuba in excess of $1.8 billion, and the US federal government had further claims of around $200 million. Cuban assets frozen in the US amounted to about £33 million. See Digest of United States Practice in International Law. 1979(1983).p.119.Google Scholar

15. Owners who were US nationals at the time of the taking and were eligible to register their claims with the Commission should have done so; and if they did not do so (or if their claim was denied by the Commission) they may not bring actions under Title II I: see s.305(a) (5)(A), (B). Owners who were not US citizens at the time of the taking did not have this opportunity. This category includes the expatriate Cubans who became naturalised US citizens after the taking of their property. They may bring Title III claims as uncertified claimants, as long as they obtained their interest in the property before the enactment of Helms-Burton on 12 Mar. 1996: s.302(a)(4).

16. Being the greater of its current value and its value when confiscated plus interest: s. 302(a)(1)(i)(III).

17. S.302.

18. S.302(a)(6).

19. Given the breadth of this provision, it is not clear what the owner/manager/lessee, or whatever, of confiscated property can do with it without being guilty of trafficking. The tale of Br'er Rabbit and the Tar Baby comes to mind.

20. S.4(13)(B).

21. S.306(c)(l)(B).

22. The provision is mandatory: and the power to grant exemptions to diplomatic and consular officials and those seeking entry for the purpose of engaging in medication or litigation is narrowly defined: see Department of State. “Guidelines implementing Title IV of the Cuban Liberty and Democratic Solidarity Act”, Federal Register. Vol.61. No. 117. 17 June 1996. p.30655.Google Scholar

23. S.401.

24. S.401 (b)(2) contains a definition of trafficking different from that applicable to Title III. It does not extend to the routine (non-improving) maintenance of property, for example. But the definition is still broad, extending to those who directly or indirectly enter into commercial arrangements using or otherwise benefiting from confiscated property.

25. Public Law 104–172:50 U.S.C. 1701 et seq.; (1996) 35 I.L.M. 1273.

26. Ss.2.3.

27. S.5(a).

28. S.5(b).

29. The modification is that foreign nationals get hit with the carrot: they remain bound to observe the US laws (including e.g. the Libyan sanctions under D'Amato) even if the Iranian sanctions under the D'Amato Act are waived.

30. S.4(c).

31. S.4(b).

32. S.4(d).

33. S.5(a).(b)(2).

34. S.5(b)(l).

35. S.9(c).

36. S.9(a). The acknowledgement that there might be another sovereign State whose claim to exercise jurisdiction over the alleged offender might be stronger than that of the US is a welcome development.

37. S. 11.

38. The best sources are to be found on the internet: UK. http://www.fco.gov.uk: Canada, http://www.dfait-maeci.gc.ca: Mexico, http://www.demon.co.uk/mexuk/: and see Japan. http://www.mofa.go.jp.

39. Organisation of American States. Inter-American Juridical Committee Opinion Examining the US Helms–Burton Act, 27 Aug. 1996: (1996) 35 I.L.M. 1322.

40. See the agreement dated 11 May 1979: (1980) 18 I.L.M. 551.

41. Thus disregarding the principle of continuous nationality in international claims. See e.g. Lillich, Richard B. and Christenson, Gordon A.. International Claims: Their Preparation and Presentation (1962), pp.9–12Google Scholar and passim. The authors quote a statement made by the Foreign Claims Settlement Commission that “it has been the position of the Department of State that naturalization is not retroactive so as to justify the espousal of claims arising prior to the acquisition of United States citizenship”: idem. p.11. See also Sir Jennings, Robert and Sir Watts, Arthur, Oppenheim's International Law (9th edn, 1992). pp.512–513.Google Scholar

42. See the line of cases applying the principle established in Luther v. Sagor [1921 a] 3 K.B. 532 (CA). See further Collier, J. G.. Conflict of Laws (2nd edn. 1994). pp.363–366.Google Scholar

43. See the Cutting case. Moore, J. B.. Digest of International Law. Vol.11 (1906), pp.228–242Google Scholar; and for a more recent US rejection of passive personality as a basis of jurisdiction see Digest of United States Practice in International Law, 1975 (1976), p.339.Google Scholar

44. Not even Helms–Burton is without its beneficial side-effects.

45. See e.g. Lowe, A. V.. Extraterritorial Jurisdiction (1983). pp.79–193.Google Scholar

46. On which see Lowe (1981) 75 A.J.I.L. 257.

47. Council Reg. (EC) 2271/96, Art.l. The Regulation and the Joint Action are both published in (1996) O.J. L309 (29 Nov.).

48. Art.l, para.2. The Commission has the power to add or delete regulations made under laws listed in the annex: Art.7(c).

49. Art.4.

50. Art.2. Provisions concerning the confidentiality of information appear in Art.3.

51. Art.5. para.l.

52. Art.9.

53. Art.5. para.2.

54. But that obstacle is of overwhelming importance, and may in practice preclude the application of the Art.6 clawback in the context of the D'Amato law.