Although Title III has been suspended since the enactment of the Act and Title IV has not been enforced, the continued existence of the Act, the required bi-annual suspension by the President of Title III and threats of enforcement of Title IV has been sufficient to create chaos in the international trade arena.

The European Union’s (E.U.) forceful pronouncement of the Act before the World Trade Organization, U.S. threat of use of national security as a defense to any such challenge and the potential erosion of the Organization’s power as an entity were it to rule on the validity of the Act has given rise to a series of compromise between the U.S. and the E.U.

SCOPE-This pathfinder covers Title III and Title IV of the Helms-Burton Act.Most of the resources explored and listed deal with affirmative acts of trading with foreign countries by providing everything you need to know to conduct international commercial transactions, rather than prohibitions on trade, the issue focused on here.

-International Legal Materials- 35 I.L.M 357 Appendix A

-U.S. Code via U.S. House of Representatives-http://uscode.house.gov/usc.htm

-U.S.Code via Cornell-http://www4.law.cornell.edu./uscode/
 

1) International Claims Settlement Act creates the Foreign Claims Settlement Commission-1643(a) (1)
    Enforced by the Department of Justice (DOJ)- 28 C.F.R. Part O-Appendix B

2) Department of Justice (DOJ)

  Summary of the Provision of Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 61 FR 24955 Appendix C

3) Department of State (DOS)

  Guidelines Implementing Title IV of the Cuban Liberty and Democratic Solidarity Act, 61 FR 30655, Appendix D

CASE LAW-NONE-no cases litigated. EU complaint before the WTO was suspended and later allowed to expire.(#24 on the agenda),
-http://www.wto.org/dispute/bulletin.htm
-Determination Letter sent to foreign companies doing business with Cuba warning of Title IV violations-Appendix E
OTHER-OAS Non-binding Opinion-finds Act in violation of international law- Appendix F

TREATISES-M.N. Shaw-International Law

-This resource covers International Law in general and has a small section that  explains the proper procedure of expropriation and compensation in accordance with International Law.
 

BOOKS-Main Library-checked out

Table of Contents-valuable tool for quick reference-topics covered are extremely focused and relevant to the embargo as opposed to International Law in general. Both are resources are extremely reccent and would be helpful.

1) Anatomy of a Failed Embargo:U.S. Embargo Against Cuba-HF 1500.5 U5 K36 1998- Appendix H

2) Confronting the U.S. Embargo-H.F 1500.5 U5 S38 1999-Appendix H
 
 
 

ARTICLES

LEXIS/WESTLAW-area by topic-international law-keyword search-"Helms Burton and Cuba"

Recovered 6 articles, one article cites the Bureau of National Affairs’ International Trade Reporter Citations-excellent source for tracking the current debate.

BNA-paper copy in the International Law Library-easy to use, has highlights, topical index, country checklist-in alphabetical order, list of internet cites-see Appendix I

LEGAL TRAC-info trac-Recovered 58 articles-see list of articles for further reading below. These articles selected are the most relevant to the debate.
LIST OF ARTICLES FOR FURTHER READING

1) Fighting Bad Guys with International Trade Law, Raj Bhala. U.C.Davis Law Review, 1997; 31 U.C. Davis L. Rev. 1

2) Sovereignty matters: the expanded embargo against Cuba. Susan Kohn Ross, John W. Shi.
The Los Angeles Daily Journal S:ep 24, 1996 v 185 p7 col 1(31 col in)

3) U.S. business stands by as foreign rivals profit from Cuban investment; companies that plan ahead will have edge when market opens. Lawrence E. Koslow
The National Law JournalApril 6, 1998 v 20 n32 pB12 col 3 (41 col in)

4) Helms-Burton bill: a sound solution? U.S. should end embargo against Cuba immediately. (International Law: Reexamining Relations with Cuba; A Legal Perspective) Mario M. Cuomo.
New York Law Journal Feb 20, 1996 v 215 n33 pS1 col 4 (28 col in)

5) U.S . Embargo of Cuba: an overview: what activities are prohibited, permitted? (International Law:Reexamining Relations with Cuba; A Legal Perspective.) Michael Krinsky
New York Law Journal Feb20, 1996 c 215 n33 pS2 col 1 (35 col in)

6) Extraterritorial application of the United States' trade embargo against Cuba: the United Nations General Assembly's call for an end to the U.S. trade embargo. Jerry W. Cain Jr.
Georgia Journal of International and Comparative Law Fall 1994 24 n2 p379-396

SABIO-go to  "global newsbank" then to "international news"-This resource has good news articles that tracked the debate.

PBS-http://www.pbs.org- word search on "Helms Burton"-online newshour on Helms Burton-is excellent for examining the political debate,  has transcripts.
 

NETSCAPE-Canada-news-1 article-Give's Fidel Castro's opinion on the non-enforcement of Title IV of the Helms-Burton Act.

LEXIS-news-millions of articles, no way to limit by date

NPR-The history of the debate can be found here-http://www.npr.org
-The Limitation on this resource is that like LEXIS above, there are thousands of articles and no way to restrict by date.

OTHER RESOURCES

LEXIS/WESTLAW(online)-keyword search in Bureau of National Affairs (BNA) articles-International Trade Daily Reporter, Daily Reports for Executives-Regulations, Laws and Economics-Difficulty encountered here is that it is impossible to pull up a specific article by citation. One has to enter the resource and scroll back by date. Time-consuming. Remarkable resource nonetheless.

National Trade Data Bank (NTDB)-excellent source of information for dealing with non-embargoed countries.
 
 

KEEPING CURRENT GENERALLY
    ALTA VISTA-keyword search-"Helms-Burton" supplied 1,356 web pages that deals with the international debate.

SAMPLING A FEW SITES:

1) Close Up Foundation Page On U.S. Policy Toward Cuba.
-http://www.closeup.org/cuba.htm

2) Cuba Solidarity Around the World: Background on the U.S. Blockade Against Cuba
-http://www.igc.apc.org/cubasoli/intersol.html

3) Time for New U.S.Cuba Policy
-NY Daily News
-http://www.cambiocubano.com/ghos2.html

4) The Great Cuba Debate: The Letters; Fidel Castro: What will happen to Cuba When he leaves?
-http://www.peacemagazine.org/9705/cubalett.htm

5) Conference on a Loose Canon
-Helms-Burton : A Loose Canon?
-http://www.ciponline.org/confer.htm
Center for international Policy at http://www.ciponline.org/confer.htm#CIP

6) Summary of European Union Legislation in Retaliation to the Helms-Burton Act
-http://www.us.net/cip/eu.htm

7) The Cuba Policy Report
-http://www.uscubapolicy.com/

8) A Report on the Immediate Impact of the Cuban Liberty and Democratic Solidarity Act(Libertad)
-http://www.canfnet.org/english/press/e960712a.htm

9) Albright-U.S. E.U. Understanding on Expropriated Property
-http://secretary.state.gov/www/statements/1998/980518a.htmll
 
 
 

YAHOO!'s keyword search produced 2600 web pages relating to the issue. this site is comparable to the Alta Vista site as both are good for tracking the debate on current issues.The Act, the debate, and the international reaction is fully covered here.

-http://search.yahoo.com/bin/search?p=helms+burton

UNITED NATIONS-go to other useful links, able to access U.N. International Law site, International law pathfinder-Guide to U.N. System reference sources in the field of International Law at http://www.un.or.at/uncitral/en-index.htm
-WTOcite-search-Resources-"Helms Burton" retrieved articles in English , French and Spanish-some articles required a password/subscription for access.Great article at http://www.wto.org/anniv/castro.htm
Publications-nothing on Helms Burton/Cuban Embargo-Related Sites-GPO and Department of Commerce

INTERNATIONAL TRADE COMMISSION
News Releases by month and year. Must scroll down each article since word search is not possible. This resource has articles on international trade generally.
good site at http://usitc.gov/tr/NEWSGRO7.HTM

EUROPEAN UNION
-Via News and Press Release under the European Commission a word search on "Helms Burton" was conducted. The number of documents retrieved =1,086,650. These documents are in various languages and are fairly current. This is a good source for tracking E.U.'s opposition to the Act.
 

COMMERCE DEPARTMENT
Site Search on "helms Burton" links to Alta Vista-see Keeping Current Generally
 

BUREAU OF EXPORT ADMINISTRATION-'99 Foreign Policy Report-Chapter 5-Embargoed countries-list of embargoed countries-http://www.bxa.doc.gov/_vti_bin/shtml.dll/sitesearch.htm

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
-has Reports that are current on international trade developments
-Press Releases-must be accessed by year then by month. Must screen each article to find out what's covered-unable to perform a word search here.

CENSUS BUREAU, TRADE DATA ON GOODS AND SERVICES-good for current trade data, export seminars etc.,  nothing on Helms Burton.
 

WORLD TRADE ORGANIZATION-excellent cite to gauge trade disputes between member countries.
-Helms Burton complaint suspended and allowed to expire after negotiations-see below for text.
-http://www.wto.org/dispute/bulletin.htm
SETTLED & INACTIVE CASES-Item #(24) United States - The Cuban Liberty and Democratic Solidarity Act, complaint by the European Communities (WT/DS38). May 1996 the European Communities requested consultations with the United States concerning the Cuban LibertyandDemocratic Solidarity (LIBERTAD) Act of 1996 and other legislation enacted by the US Congress regarding trade sanctions against Cuba. The EC claims that US trade restrictions on goods of Cuban origin, as well as the possible refusal of visas and the exclusion of non-US nationals from US territory, are inconsistent with the US obligations under the WTO Agreement. Violations of GATT Articles I, III, V,
XI and XIII, and GATS Articles I, III, VI, XVI and XVII are alleged. The EC also alleges that even if these measures by the US may not be in violation of specific provisions of GATT or GATS, they nevertheless nullify or impair its expected benefits under GATT 1994 and GATS and impede the attainment of the objectives of GATT 1994. The European Communities requested the establishment of a panel on 3 October 1996. The DSB established a panel at its meeting on 20 November 1996. At the request of the EC, dated 21
April 1997, the Panel suspended its work. The Panel's authority lapsed on 22 April 1998, pursuant to Article 12.12 of the DSU.

NAFTA homepage-various sections of the North American Free Trade Agreement are implicated by Title IV of the Helms-Burton Act which prohibits entry  into the United States business people who benefit from the "trafficking" of "confiscated property".
See NATFA Facts to stay current in doing business with Canada and Mexico.

Organization for Economic Cooperation and Development-news and current events-nothing found with keyword search on "Helms Burton".
 

World Bank-about economics in the international arena-relevant for conducting foreign trade generally.

GPO-has C.F.R, P.L., Database list-good place for legislative history.
 

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RESEARCH APPLIED

JOYCE BALETTE
INTERNATIONAL SALES TRANSACTIONS
PROFESSOR SERRA
4/22/99

THE U.S. TRADE EMBARGO AGAINST CUBA: THE HELMS-BURTON ACT-TITLES III AND IV
 
 

Introduction
The Effects of the Helms-Burton Act
OAS Non-Binding Opinion
Possible NAFTA Violations
E.U's Vehement Protests
Conclusion

 

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INTRODUCTION

The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 is a culmination of the U.S. embargo against Cuba and was enacted,states Troia "shortly after a Cuban MiG-29 fighter jet (MiG) shot down two unarmed U.S. civilian planes in international airspace in February, 1996…in order to strengthen the economic embargo the United States has maintained against Cuba since 1959.
According to Raj Bhala, "… few U.S. international trade statutes have generated as much controversy as the Helms-Burton Act. The language and legislative history of the Helms-Burton Act indicate that its fundamental objective is to overthrow Fidel Castro’s communist dictatorship in Cuba."
HISTORY
For nearly forty years and immediately following Fidel Castro’s ascent to power, the United States has maintained an economic embargo against Cuba.
According to Troia, this authority to impose the embargo came from Section 620(a) of the Foreign Assistance Act of 1961. However, Lowenfeld in his article, "Agora:The Cuban Liberty and Democratic Solidarity (Libertad) Act: Congress and Cuba: The Helms Burton Act" asserts that "doubts arose about whether authority under the Foreign Assistance Act was sufficient to support the application of the embargo to U.S. persons outside of the United States….Accordingly, the regulations were amended to plug the perceived gaps in the embargo, pursuant to the additional authority of the Trading With the Enemy Act."
According to Folsom, Gordon and Spanogle, "the boycott of Cuba began as a response to the Cuban nationalization of all United States-owned property in 1959 and 1960" The embargo covered all goods "except unsubsidized food, medicine, and medical supplies".
The U.S. responded by amending the Sugar Act of 1948 thereby altering Cuban sugar quota. In 1975, "boycott provisions were amended to allow foreign subsidiaries of U.S. companies to trade with Cuba under a licensing procedure." Then in 1977, the Cuban Assets Control Regulations were passed in order to restrict Cuba’s access to its assets in the United States and to prohibit U.S. citizens and corporations from conducting business transactions in Cuba. Because U.S. subsidiaries abroad had developed significant trade with Cuba, anti-Castro groups in the U.S pushed for the enactment of the Cuban Democracy Act in 1992. Its goal was to limit trade with Cuba by foreign subsidiaries of U.S corporations. Troia states that "the 1992 Act denied foreign subsidiaries of U.S.-owned companies licenses if those subsidiaries conducted business in Cuba, even though investing in Cuba may have been fully legal under the laws of the subsidiaries’ country of origin." As a result, "U.S.-owned and controlled firms in third countries are now prohibited under American law from exporting to and importing from Cuba any commodities irrespective of the strategic importance of goods, the degree of independence exercised by the affiliate of the American corporation, the sourcing and transformation of the product in the third country or the foreign policy of the third country"
Consequently, the Act has serous repercussions in Canada where historical and continued trade with Cuba is supported by the Canadian government. As a direct response to the Cuban Democracy Act, Canada issued Foreign Extraterritorial Measures Act, United States Order, 1992 which were reflective of the concept of Canadian control and independence. The proper test for these Canadian enactments was whether or not the measurers "adversely affects significant Canadian interests." The enactments in two different jurisdictions places American officers and directors and management of U.S. corporations whose subsidiaries trade with Cuba and the Canadian subsidiaries’ officers in a difficult position….The United States Order blocks the extraterritorial application of the Cuba Act in Canada." Ultimately, the Department of External Affairs has taken a stance that Canada will continue to maintain normal trade relations with Cuba and insists that "where goods are produced domestically or reprocessed or transformed in Canada, the Canadian government will not permit third countries trading policy to dictate whether such good can be exported , and foreign ownership of the Canadian manufacturer is insufficient reason for such trading policy to apply, as it is Canada’s view that these are Canadian goods."

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THE HELMS-BURTON ACT: the effects
Lowenfeld asserts that "in the so-called Cuban Democracy Act of 1992 , Congress narrowed the President’s discretion, by providing that no licenses were to be issued to foreign subsidiaries of U.S. firms. Helms-Burton goes a significant step further in expressing distrust of the President. It provides in section 102(h), that the economic embargo of Cuba…including all restrictions under the Cuban Assets Control Regulations shall remain in effect, subject to section 204 of the Act. Thus, not only is the President’s authority to modify the regulation stripped away, it seems that the obligation to renew the embargo each year (and the option not to do so) is eliminated. Section 204 authorizes the President to take steps to suspend the embargo, but only upon submitting a determination to Congress that a transition government ie. A government without Fidel Castro or his brother, is in power in Cuba."

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ORGANIZATION OF AMERICAN STATES(OAS) NON-BINDING OPINION ON THE VALIDITY OF HELMS-BURTON PROVISIONS
 In September of 1996, the General Assembly, the juridical body of the OAS, met "to examine and decide upon the validity under international law", the highly controversial provisions of the Helms-Burton Act. The Committee’s authority to give an Opinion stems from Article 98 of the OAS Charter. This Opinion has no binding effect on member States.
 According to the OAS report, [The General Assembly Resolution—with the U.S. in solitary dissent—was unusually vigorous. Ordinarily, the General Assembly would "request" an opinion of the Juridical Committee; in this care it "directed" the Committee to formulate its opinion and to do so "as a matter of priority". This deviation from normal diplomatic delicacy of style may have reflected considerable irritation at what may have been perceived as U.S. arrogance with respect to foreign policies of the other sovereign states, is that enforcement, if not mere enactment, or Helms-Burton would violate international law…."It should be noted that the juridical Committee has no jurisdictional or arbitral authority, nor any procedures for dispute resolution. "…while the Committee may and should enunciate and explicate international law principles, it cannot enter into their application.]
 It should be noted that while Article 18 of the OAS Charter provides that "no State or group of States has the right to intervene , directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other state", Article 19 announces that "No State may use coercive measures of an economic…nature…to force the sovereign will of another State" and that Helms-Burton is in direct contravention of both Articles.
 Further, according to the OAS Opinion on the rules of international law and expropriation the law is:
a. [Any State that expropriates, nationalizes or takes measures tantamount to expropriati0on or nationalization of property owned by foreign nationals must respect the following rules: such action must be for a public purpose, nondiscriminatory, and accompanied by prompt and adequate and effective compensation….
b. The obligation of a State in respect of its liability for acts of expropriation consists of restitution of the asset expropriated or adequate compensation for the damage caused…
c. When a national of a foreign State is unable to obtain effective redress in accordance with international law, the State of which it is a national may espouse the claim through an official State-to-State claim. It is a condition for such espousal that from the time of the occurrence of the injury until the settlement of the claim the holder thereof must without interruption have been a national of the claimant state and not have the nationality of the expropriating State.
d. Claims against a State for expropriation of the property of foreign nationals cannot be enforced against the property of private persons except where such property itself is the expropriated asset and within the jurisdiction of the claimant State. Products grown or produced on such property do not under customary international law constitute expropriated property.
e. Any use by nationals of a third State of expropriated property located in the expropriating State where such use conforms to the laws of that state, as well as the use anywhere of products or intangible property not constituting the expropriated asset itself, does not contravene an norm of international law.
f. The nationals of foreign States have the right to due process of law in all judicial or administrative procedures that may affect their property. Due process includes the possibility of effectively contesting both the basis and the quantum of the claim in a legal or administrative proceeding.]
According to the OAS Opinion, the Act has the "effect of;
 a) [Transforming the espousal of a State-to-State claim under international law into a domestic legal claim asserted under internal law by a national against nationals of third States.
 b) Conferring the right to make such claims on persons who were not nationals of at the time of the alleged loss.
 c) Attributing responsibility for acts of a foreign State to private persons who might be nationals of third States.
 d) Authorizing the determination of a quantum of compensation in a manner that could increase it to three times the loss caused by the act of expropriation.
 e) Creating liability for a private defendant for the total value of an asset expropriated without taking into account the value of the "benefit" derived by him from its use or the claimed "loss" caused to the alleged original owner by such use.
 f) Allowing claims that should be filed against a foreign State to be enforced by means of proceedings brought against the nationals of third States without endowing them with effective means to refute or contest the allegations against them or the third State in respect of the existence or the valuation of such claims, including on the basis of conclusive certificates issued by an internal administrative commission.
 g) Confusing a claim for damages or restitution, based on nationalization, with an action in rem to claim wrongfully "confiscated property" and in addition with an action in personam for unjust enrichment from the use of such wrongfully "confiscated property" by any person subsequently involved in such a broad-ranging and indeterminate manner.
 h)Creating liability for nationals of third States for the lawful use of expropriated property in the territory of the expropriating State or for the lawful use of property which does not itself constitute expropriated property.]
 The OAS Committee concluded that Helms-Burton is violative of international because:
a. [The domestic courts of a claimant State are not the appropriate forum for the resolution of State-to-State claims.
b. The claimant state does not have the right to espouse claims by persons who were not nationals at the time of the injury.
c. The claimant State does not have the right to attribute liability to nationals of third States for a claim against a foreign State.
d. The claimant State does not have the right to attribute liability to nationals of a third State for the use of expropriated property located in the territory of the expropriating State where such use conforms to the laws of this latter State, nor for the use in the territory of third States of intangible property of products that do not constitute the actual asset expropriated.
e. The claimant State does not have the right to impose liability on third parties not involved in a nationalization through the creation of liability not linked to the nationalization or unrecognized by the international law on this subject, thus modifying the juridical based for liability.
f. The Claimant State does not have the right to impose compensation in any amount greater than the effective damage, including interest, that results from the alleged wrongful act of the expropriating State.
g. The claimant State may not deprive a foreign national of the right in accordance with due process of law to effectively contest the bases and the quantum of claims that may affect his property.
h. Successful enforcement of such a claim against the property of nationals of a third State in a manner contrary to the norms of international law itself could constitute a measure tantamount to expropriation and result in responsibility of the claimant State.]
On the issue of jurisdiction and extraterritoriality the Committee examined the norms that are applicable in the context of international law. First the Committee noted that, in relations with other States, all States are subject to international law and that measures that are taken that are taken by a State that are inconsistent with international law leave such State with the possibility of incurring liability. Secondly, there is a limitation imposed on the exercise of jurisdiction and that any State acting outside of the scope of such jurisdiction must assume responsibility. Thirdly, the "principle of territoriality" dictates that one State "may not exercise its power in any form in the territory of another State." A fourth limitation on jurisdiction that the Committee announces is that for jurisdiction to confer to a particular State, the act sought to be regulated must have occurred at least partially within the claimant state or "must justify the application of the laws of its territory only insofar as an act occurring outside of its territory has a direct, substantial and foreseeable effect within its territory and the exercise of such jurisdiction is reasonable." Lastly the Committee asserts that there is an exception to the "principle of territoriality" where a State may exercise jurisdiction if "there exists a substantial or otherwise significant connection between the matter in question and the State’s sovereign authority, such as ….acts performed abroad by its national and in certain specific cases of the protection objectively necessary to safeguard its essential sovereign interests." Not using territoriality as it basis, the Committee nonetheless found that Helm-Burton’s applicability to aliens abroad who were "trafficking in confiscated property" where "neither the alien nor the conduct in question has any connection with the territory and there is no apparent connection between such acts and the protection of its essential sovereign interest, a State which sought to exercise jurisdiction would be in violation of international law.

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THE ACT’S POSSIBLE VIOLATION OF THE NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)-TITLE IV’S EXCLUSION OF CERTAIN ALIENS
NAFTA Home Page-Read the Agreement

 Title IV provides as grounds for exclusion from entry into the United States, by the Secretary of State and the Attorney General, [any alien …after the date of enactment of this Act, who:
1) has confiscated…or converts or has converted for personal gain, confiscated property, a claim to which is owned by a United States national;
2) "traffics" in confiscated property….
3) is a corporate officer, principal, or shareholder with a controlling interest in an entity which has been involved in the confiscation of property or trafficking of confiscated property….
4) is a spouse, minor child or agent of a person excludable under paragraph (1), (2) or (3).
 This Title adversely impact foreign investors seeking to do business in the United States. Antonella Troia asserts that there are arguments to support a claim by Canada and Mexico that Helms-Burton violates NAFTA. According to Troia, "Chapter Eleven of NAFTA sets out each NAFTA party’s obligation in respect to investors from other NAFTA countries and their investments within its territory. Article 1102 of NAFTA expressly states that each NAFTA country is to "accord to investors of another NAFTA country treatment no less favorable than it accords in like circumstances, to its own investors with respect to …disposition of investments. This …means that the United States cannot grant investors and investments of Canada and Mexico less favorable treatment than the United States accords to its own investors and invest-ments….Additionally, Article 1105 provides for treatment in caaordance with international law and this provision becomes crucial when arguing that Helms-Burton violates principles of international law particularly by its extraterritorial application."
 Troia notes further that because Title IV of the Helms-Burton Act denies the entry of foreign investors into the US for those trading with Cuba, Chapter Eleven Most Favored Nations provisions are defeated and that "the U.S enforcement of Title IV penalty for investing in Cuba may allow the United States to refuse to treat investors from Canada and Mexico as it treats foreign investors who do not invest in Cuba." Thus, "by denying Canadian investors…access into the United States, Title IV allows the United Sates to take action contrary to Chapter Eleven’s prescriptions."
 Another argument can be raised by Canada and Mexico under Article 1108(4) which states that a NAFTA party may not adopt, after the enactment of NAFTA, any measure to require an investor of another party by reason of nationality to dispose of investments existing at the time of its enactment. Because Helms-Burton was adopted post-NAFTA and although it doesn’t directly require disposal of Cuban investments, it succeeds in doing so indirectly. However, because Helms-Burton does not discriminate among NAFTA-party investors on the basis of nationality, there is a strong argument against possible NAFTA violation.
POSSIBLE CHAPTER 16 VIOLATION
 According to Troia, "NAFTA purports to promote the temporary entry of business persons by prohibiting pre-NAFTA requirements like employment validation and labor certification for all categories of "business persons" covered by NAFTA." A "business person" is defined as "a citizen of a NAFTA party who is engaged in trade of goods, the provision of services or the conduct of investment activities." To promote the objectives of this Chapter the act liberalizes investment laws and reduces barriers to trade "by facilitating business travel among the NAFTA countries."
 The four categories of "business persons" created by NAFTA are:
1)business visitors;
2)professionals;
3)traders and investors; and
4)intra-company transferees.
 The entry requirements are such that there is no prior approval requirement and no numerical restrictions as to the number of these persons crossing from one NAFTA country to another. "Title IV of Helms-Burton seeks to exclude any foreign national from the United States is such national is involved in the confiscation of U. S. property in Cuba, or in the trafficking of U.S property confiscated by the Castro regime."
 Consequently, "Canadian and Mexican companies are clearly involved in the trafficking of confiscated U.S. property in Cuba. Sherritt, the Canadian nickel mining company which took over the Moa nickel mine in Cuba, previously owned by the United States, is also a trafficker under Helms-Burton. As a result, Sherritt executives are a class of excludable foreign nationals under Title IV because they knowingly benefit from confiscated U.S. property. Title IV has already operated to allow the U.S. Department of State to warn Sherritt’s executives that they, their spouses and dependent children will be denied visas to enter the United States." Grupo Domas-a Mexico-based telephone company has received similar warnings.
 Thus, Title IV of Helms-Burton which excludes foreign business people who are otherwise admissible under NAFTA violates NAFTA’s Chapter Sixteen temporary-entry provisions. Troia further states that "Chapter Sixteen provide a NAFTA party the power of exclusion of business persons seeking entry if the admitting country determines that the result of such admission would adversely impact a labor dispute in said country. Because Title IV of Helms-Burton does not meet the labor-dispute exception of NAFTA, its provisions are violative of that Agreement.
 The General NAFTA objectives of Chapter 1, Article 102 which states that "the main objective of this Agreement…to eliminate barriers to trade and to facilitate the across the border movement of foods and services between the territories of the parties" is also violated. Enforcement of Title IV exclusion would operate to frustrate the main objectives of NAFTA..Article 102 articulates another NAFTA objective that is being circumvented by the operation of Title IV of Helms-Burton. This objective seeks to "increase substantially investment opportunities in the territories of the NAFTA parties. This objective, because "it has already forced major Canadian and Mexican investors to discontinue their investments in Cuba in order to avoid U.S. sanctions…." violates NAFTA. Accordingly, "Title IV’s penal effect operates to substantially decrease Canada and Mexico’s investment opportunities….As a result, Helms-Burton allows the United States to decrease the investment opportunities for Canada and Mexico within the U.S., while maintaining its investment opportunities in Canada and Mexico."
Canada’s lack of ferocity in challenging the Helms-Burton Act is explained by the Bureau of International Affair’s observance in the International trade Reporter that, "Canada is reluctant to challenge the Helms-Burton legislation…through the North American Free Trade Agreement or the World Trade Organization for fear of permanently damaging the effectiveness of those institutions…." The article states further that "The Clinton Administration has clearly stated that it would invoke national security exemptions to block a NAFTA or WTO case brought against Helms-Burton law, and that could irreparably harm the usefulness of dispute settlement mechanisms of both bodies….Instead, Canadian officials are ‘playing their cards intelligently" by letting the European Union take the lead in combating Helms-Burton by trying to negotiate a settlement with the Clinton Administration."

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EU VEHEMENTLY PROTESTS THE HELMS-BURTON ACT: TRACKING THE CHRONOLOGY OF THE INTERNATIONAL POLITICAL DEBATE

EUROPEAN UNION

 This section will trace the debate as reported in the International Trade Reporter-the International Trade Daily, the Daily Report for Executives, Regulation, Laws and Economics and the American Society of International Law.
 In March of 1996, the Senate passed House Bill 927 by a 74-22 vote. This bill went on to become the Helms-Burton Act of 1996. Title III which created a private right of action for Americans against third-parties doing business in Cuba contained a waiver provision which allows the President "to delay the Aug 01, 1996 effective date for six months if it is necessary to the national interest and it would aid in the democratic transition in Cuba." Further six months suspensions are authorized.
 Title IV, the other controversial provision, which is an "exclusion" provision is waivable on a case-by-case basis for entry into the U.S. in order to defend Title III allegations or for humanitarian reasons.
On March 05 1996, the European Commission took the stance that the Helms-Burton Act was a "clear" violation of international law, recognizing that the Act could result in lawsuits against European companies with business in Cuba." The International Trade Reporter cites the E.U. as stating that "we are opposed to unilateral action of any kind by one nation toward another on trade sanctions, but we are especially against the extraterritorial measures in the Helms-Burton bill." The article notes the E.U.’s position as one whereby the E.U. is willing to assess its legal options which includes taking the issue before the European Court of Justice. The European Commission spokesperson stated that "you cannot have a situation where if one country decides that it does not like the policies of another country it can impose sanctions on third countries that might do business with that country."
In front of the World Trade Organization (WTO) on April 16, 1996, Cuba, without calling for any formal action, attacked the Helms-Burton goals which diminishes foreign investment in Cuba. Cuba’s position "drew widespread support from the other nations" whereas the United States’ position received no foreign support. Wielding the sword of "national security" as its defense, the article reports that the U.S has vowed to "block any attempt to formally censure it."
Six months later, in November 1996, the E.U. passed Council Regulation (EC) no. 2271/96 which blocks recognition and enforcement of the Helms-Burton Act. The Preamble-to remove, neutralize, block or otherwise counter the effects of the U.S. Libertad Act of 1996 and related regulation insofar as it purports to regulate activities with the jurisdiction of member states. Article 1-Purpose-to protect Community commercial activities against the extra-territorial application of legislation set forth….Article 5-Non-Compliance With Foreign Orders-Persons shall not comply with orders from the laws set forth in the annex; exceptions apply where non-compliance may result in serious damage to a natural or legal person.
Shortly thereafter, in Dec 1996, the E.U. issued its Council of Ministers Common Position on Cuba. The objectives of this enactment were to encourage a transition to democracy in Cuba, Cuba’s recognition of human rights and an improvement in the standard of living. In regards to the opening of the Cuban economy, the enactment stated that "full cooperation with Cuba will depend upon improvements in human rights." The President’s January 1997 Statement for the renewal of suspension of Title III, the President asserted that "we and our allies agree on the vital need for a transition to democracy on the island, but differences over how to achieve that aim have overshadowed the goal itself…. Over the past six months, our efforts have yielded real progress….Today, in order to consolidate and build on the momentum we have generated for democratic change in Cuba, I have decided to extend for another six months the suspension …under Title III…. A number of developments show the strengthened international consensus for change in Cuba. The European Union…in December adopted an historic ‘Common Position’ binding all 15 member nations to promote democracy and reform in Cuba. The E.U.’s action explicitly makes any improvements in political or economic relations with Cuba contingent on concrete advances in human rights and political freedoms on the island."
 In May of 1997 the U.S. and E.U. signed a Memorandum of Understanding whereby the E.U. agreed to suspend proceedings of the WTO panel (the E.U. had filed a complaint with the WTO against the U.S. in regards to Helms-Burton) in exchange for the continued suspension of Title III. In addition, the President of the U.S. "will seek authority to grant waivers of enforcement of Title IV to countries that have developed disciplines and principles for strengthening investment protection." The E.U. reserved the right to "resume panel procedure, or to begin new proceedings if action is taken against E.U. companies or individuals under Title III or Title IV of the Libertad Act…"
 Ten months later, March 1998, BNA’s International Trade Daily reports that the Clinton Administration plans to ask Congress to consider waiving Title IV of the Helms-Burton Act. According to the report, "the request will be contingent on the United States concluding an agreement with the European Union on a set of guidelines or ‘disciplines’ designed to deter" investment in expropriated property in Cuba in the future.
Reporting further on the status of the debate on April 15, 1998, the International Trade Daily continues "The United States and the European Union have intensified their negotiations toward an agreement that would avert a major trade dispute over a U.S. law…and are looking to conclude the talks, if possible, this month….Last year the E.U. filed a complaint against the United States in the WTO over the issue. But it suspended the complaint as part of an agreement concluded between the two sides in April 1997 to jointly develop a set of binding disciplines aimed at deterring investment in expropriated property. The E.U. had threatened to reintroduce the complaint, but last week decided to drop the case for the time being….Sources… said that there were still at least two important issues that needed to be resolved in the talks: whether the agreed disciplines would apply to past expropriations—specifically, those identified in the roughly 6,000 compensation claims filed by U.S. nationals against the Cuban government, worth an estimated $600 billion—and whether the agreement would prohibit so-called secondary boycotts, such as sanctions under Helms-Burton, as proposed by the E.U.
Later, Larson, Assistant Secretary of State for Economic and Business Affairs, announced that the Administration would ask Congress to enact a waiver for the Act’s Title IV exclusion provision. It should be noted that "no such sanctions have been imposed under the law so far." Meanwhile, the E.U. had decided not to renew its suspended WTO case at the end of the month when the expired.
 One week later the International Trade Daily reports a dramatic shift in the E.U.’s position whereby the E.U. vowed on April 22 to re-open its complaint if the State Department, who had sent a French oil company a Title IV determination letter, was sanctioned. The E.U. spokesperson stated "if the State Department takes action against any European company,…the Commission will immediately launch a new WTO case."
 At the same time, weekly negotiations to come up with binding disciplines were being conducted. On May 01, the E.U. was insisting that "any agreement on a discipline for investment protection would cover only the issue of future expropriated properties. At the E.U.’s insistence, it would only cover appropriated properties on a case by case basis and those that are recognized by international law." The report assesses the U.S. position as one of "insisting on a more systematic, blanket coverage approach."
 On May 07 1998, the national debate on the Helms-Burton Act manifested itself before the House Ways and Means Trade Subcommittee. Private sector witnesses called for a lifting of the embargo against Cuba, while members of Congress representing Cuban-American constituencies insisted the so-called embargo was working. The U.S. Chamber of Commerce representative testified that "the cause of democracy in Cuba
would be best served by allowing Americans to travel and conduct business in Cuba." He noted that Castro’s presence in Cuba had not wavered and that the Act had resulted strained relations with U.S. trading partners. He also noted that as a result of the embargo against Cuba the U.S. had lost $500 million in lost wheat sales over the past 10 years.
 BNA’s Daily Report for Executives, Regulations, Laws and Economics, on May 19th stated that "After months of negotiations, the United States and the European Union agreed May 18th to a formula that is designed to lead to a solution of the extraterritorial legal dispute over Helms-Burton…. Despite the breakthrough, however, and Administration statements that Congress should support the deal, Republican supporters of the laws immediately denounced it. In exchange for the E.U. refraining from reviving a complaint with the WTO, the U.S. has agreed to either implement of seek measures that would protect E.U. companies from any penalties….The deal finalized here would also set up a procedure to address future disputes over expropriated properties not only in Cuba…." The British Prime Minister, and current E.U. rotating President stated that "the basis for a lasting solution to European complaints about ‘illegal and extraterritorial’ aspects of Helms-Burton…the agreement is contingent on getting the U.S. Congress to revise aspects of the controversial Helms-Burton legislation." The report states further that Clinton Administration officials told journalist that Congress would grant the changes that were necessary. The article notes further that " the so-called disciplines for strengthening investment protection…will include a registry of any properties in dispute over expropriated action. Any company that invests in properties deemed to be in legitimate legal dispute will be denied financial assistance, subsidies, loans, export credits, and any other government assistance." Oversight and location of this registry is yet to be determined.
Chairman of the Senate Foreign Relations Committee, and co-sponsor of the Helms-Burton Act, Republican Jessie Helms’ reaction to the agreement is that the Act is being diluted "for a lot of hot air" and that the agreement lends legitimacy to "the E.U.’s theft of American property in Cuba."

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CONCLUSION

The Cuban government contests the issue that the humanitarian group’s airplanes, shot down in 1996, were in international airspace. Meanwhile, the United States has adjudicated on the wrongful death claims in Cuba’s disfavor and has levied on U.S. third-party payments for monies owed to Cuba for telephone services.
 The Helms-Burton Act reflects the nature of the political games played in both the national and international arena, as well as the political might of Cuban-Americans in Florida. The Act paints Castro as a tyrant, has major democratic aspirations for Cuba and appears to stiffly penalize third-country business people and their family for doing business with Cuba, no matter how remotely related the transaction is to the expropriated property. It has subjected the United States to a firestorm of criticisms, has caused other countries to enact laws to neutralize its effects, has and landed a complaint against the U.S before the World Trade Organization (WTO).
 President Clinton has exercised his authority to suspend the Title III since the Act’s inception, and Title IV is hardly being enforced. Foreign governments that do business with Cuba saw Helms-Burton as a threat to their sovereignty giving rise to years of debates and negotiations on the issue.
The current landscape in one in which the suspension of Title III and the lack of enforcement of Title IV returns the situation to the status quo ante, with the countries of the European Union agreeing to do their best to force Cuba to observe international law human rights requirements as well as agreeing to use a joint effort to bring about democracy in Cuba.