¹ Chayes, Abram, The Cuban Missile Crisis: International Crises and the Role of Law xi (University Press of America, 1987)Google Scholar [emphasis added].

² Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, Public Law 104–14, 110 Stat. 785, 104th Congress, 2d Sess. (Mar. 1996); see also U.S. Congress, House of Representatives Conference Report 104–468, 104th Congress, 2d Sess. (Mar. 1, 1996) [hereinafter Helms-Burton Act or Helms-Burton or the Act].

³ See Chayes, supra note 1 at 100–5.

⁴ For a detailed history and analysis of both the legal and economic measures the U.S. has taken against Cuba before Helms-Burton, see Krinsky, Michael and Golove, David, United States Economic Measures against Cuba (Mass: Aletheia Press, 1993)Google Scholar; for a critical factual review of Helms-Burton in the context of U.S.-Cuba policy since the ascension of Castro, see Kiger, Patrick J., Squeeze Play: The United States, Cuba and the Helms-Burton Act (Washington D.C.: Center for Public Integrity, 1996)Google Scholar; and for an analysis suggesting that working with the Castro government offers the best opportunity to effect a peaceful transition to a free market and democratic institutions in Cuba, seeSmith, W.S., “Cuba’s Long Reform” (1996) 75:2 Foreign Affairs 99.CrossRefGoogle Scholar

⁵ Analysis of governmental notice or intent is an accepted tool of constitutional argument in the United States viz constitutionally proscribed purposes: see, e.g., Ely, J.H., “Legislative and Administrative Motivation in Constitutional Law,” (1970) 79 Yale L.J. 1205.CrossRefGoogle Scholar Analogous methods are also accepted in Canada under the rubric of legislative history: see Hogg, P.W., Constitutional Law of Canada, s. 57.1(b), 1284–86 (3rd ed., Toronto: Carswell, 1992).Google Scholar I reference the concept here in relation to general international law standards.

⁶ Verbatim quote of Congressman Dan Burton taken by the author as co-panelist at the Indiana State Bar Association, Continuing Legal Education International Law Forum, Dispute Resolution, Indianapolis, Indiana, Dec. 9, 1996.

⁷ E.g., Clagett, B., “Title III of the Helms-Burton Act is Consistent with International Law,” (1996) 90 Am. J. Int’l L. 434.CrossRefGoogle Scholar

⁸ U.S. Constitution, Art. 6: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the Land.” As between a treaty [in the U.S. constitutional sense of that term (see U.S. Constitution, Art. 2, s. 2(2), viz requirement of Senate ratification by two-thirds vote) ] and an inconsistent Act of Congress, last in time prevails: Chae ChanPingv. United States (Chinese Exclusion Case), (1889) 130 U.S. 581; Whitney v. Robertson, ( 1888) 124 U.S. 190. See generally Sedler, R.A., “Federal and State Power Over International Trade Under the United States Constitution,” in Irish, M. and Carasco, E. (eds.), The Legal Framework for Canada-United States Trade 165, 170–71 (Toronto: Carswell, 1987)Google Scholar; see and compare with Fairley, H.S., “Jurisdiction over International Trade in Canada” in Irish and Carasco, supra at 131 et seq.Google Scholar

⁹ See Hogg, supra note 5 at 285–87 (viz treaty implementation). See generally in the context of trade issues Fairley, H.S., “Constitutional Aspects of External Trade Policy” in Royal Commission on the Economic Union and Development Prospects for Canada: Case Studies on the Division of Powers 1 et seq. 62 (Toronto: University of Toronto Press, 1985).Google Scholar

¹⁰ An example is separation of power concerns as between the president and Congress: United States v. Curtis-Wright Export Corp, ( 1936) 299 U.S. 304 (Executive Branch as the exclusive agent of the nation in foreign affairs). See also Tribe, L., American Constitutional Law 211–13, 219–39, 353–61 (2nd ed., Mineóla N.Y.: Foundation Press, 1988)Google Scholar and constitutional limitations imposed by the Bill of Rights: Reid v. Covert, (1947) 354 U.S. 1 (jurisdiction of military courts); Baker v. Carr, (1962) 369 U.S. 186; Goldwater v. Carter, (1979) 444 U.S. 996 (political questions doctrine).

¹¹ See infra notes 58–69, 207–10, and accompanying text.

¹² Helms-Burton, supra note 2, s. 3(1), (2), (4), and (5).

¹³ Ibid., s. 3(3).

¹⁴ Ibid., s. 3(6).

¹⁵ E.g., for Canada, perceived interference with Canadian subsidiaries of U.S. parent companies mandated by the expansion of the U.S. embargo of Cuba pursuant to the Cuban Democracy Act, 1992, 22 U.S.C., s. 6000 et seq. predates Helms-Burton. See infra notes 70–76 and accompanying text.

¹⁶ See and compare Title 1, s. 101 (Statement of Policy) of Helms-Burton to the Cuban Democracy Act, 1992, 22 U.S.C, s. 6002 (Statement of Policy).

¹⁷ Helms-Burton Act, supra note 2, Title 1, s. 101 (4).

¹⁸ Ibid., s. 4(13).

¹⁹ Ibid., s. 306(d).

²⁰ Ibid., s. 306(b).

²¹ In a move apparendy not anticipated by Congress, President Clinton allowed Tide III to come into force on Aug. 1, 1996 (the “effective date pursuant” to s. 306(a)), but suspended the right to sue thereunder for a six-month period pursuant to § 306(b). See United States, Statement by the President, and Fact Sheet (White House: Office of the Press Secretary, July 16, 1996); United States, Statement by the President on Suspending Title III of the Helms-Burton Act, Jan. 3, 1997, reprinted in (1997) 36 I.L.M. 316 (renewing suspension to July 31, 1997).

²² Pursuant to s. 302(a)(1) of Title III, “liability for trafficking” accrues for any such conduct continuing after the end of the 3-month period beginning on the effective date of this title: i.e., Nov. 1, 1996. Thus a right of action is established for any trafficking in confiscated property after Nov. 1, 1996, notwithstanding that Title III suits are suspended to a later (indefinite) date.

²³ 22 U.S.C, s. 1643 et seq.

²⁴ Helms-Burton Act, supra note 2, s. 302(a)(5), (c).

²⁵ Ibid., s. 302(a)(2), (5).

²⁶ Ibid., s. 302(b).

²⁷ Ibid., s. 306(c)(3).

²⁸ Ibid., s. 401(b)(a).

²⁹ Ibid., s. 401(a).

³⁰ U.S. News Release, “United States Statement on the Helms-Burton Act” (mimeo, Mar. 1996) at 1 [hereinafter U.S. Statement].

³¹ Guidelines on implementation were released by the U.S. Department of State, effective on publication in the Federal Register as of June 17, 1996. See U.S. Department of State, Bureau of Inter-American Affairs, Guidelines Implementing Title IV of the Cuban Liberty and Democratic Solidarity Act (Public Notice 2403, June 12, 1996). “The Guidelines contain provisions for prior notice to affected parties advising that his/her name will be entered in the visa lookout system and port of entry exclusion system … effective 45 days after the date of notification, absent the receipt of information from the affected party supporting a conclusion that he/she has not trafficked or is no longer trafficking in confiscated property”: Ibid., 6.

³² Only one Canadian company, Sherritt International, has been subject to formal Title TV sanctions to date (as at Mar. 17, 1997), along with one Mexican company, Grupo Domos. But see Morton, P., “Helms-Burton Ban May Be Expanded: U.S. May Throw Out ’Unwelcome’ Mat for Executives from 24 More Companies,” Finandal Post (Feb. 11, 1997) 7.Google Scholar

³³ For overviews of the Canada-U.S. trade relationship, see Doran, C.F., Pacific Partners: Canada and the U.S. (Washington: Brassey’s, 1994)Google Scholar; Eden, L., From Silent Integration to Strategic Alliance: the Political Economy of N.A. Free Trade (Ottawa: Centre for Trade, Policy and Law, 1991).Google Scholar The Canada-U.S. border was demilitarized by the Rush-Bagot Agreement (Naval Forces on American Lakes), Apr. 28, 29, 1817, U.K.-U.S., 8 Stat. 231, TS. No. 110 1/2.

³⁴ Helms-Burton Act, supra note a, s. 3(13).

³⁵ U.S. Statement, supra note 30 at 3.

³⁶ The recently published Guidelines of the Department of State, supra note 31, shed no further light on the distinction save to reference s. 401(b)(2) of the Act. See s. 9(h) (definition of “Traffics”).

³⁷ Helms-Burton Act, supra note 2, s. 401(b)(2). The Title III definition is arguably the broader of the two, incorporating the concepts of “improves,” and its application remains subject to the administrative discretion of and interpretation by the U.S. State Department, whereas the definition that applies to Title III will be judicially interpreted and applied by U.S. federal district courts. There may also be considerable variation between district court decisions of first instance.

³⁸ Ibid.

³⁹ Ibid.

⁴⁰ U.S. Statement, supra note 30 at 3.

⁴¹ Helms-Burton Act, supra note 2, s. 401(b)(2). This has certainly been the author’s experience in advising a number of private clients on compliance issues under Canadian law in relation to Helms-Burton.

⁴² The White House, Office of the Press Secretary. “Statement by the President” (Mar. 12, 1996), U.S. Congress and Administrative News, 104th Congress, 2nd Sess. No. 2 (Apr. 1996) 581–1 [hereinafter Initial White House Statement].

⁴³ Numerous references deploring the shooting down of the U.S. civilian aircraft can be found. See, e.g., Fagan, D., “Cuba Quarrel Snares Canada,” Globe and Mail (Feb. 28, 1996) A1Google Scholar; Canada, Statement, Notes for an Address by The Honourable Christine Stewart, Secretary of State (Latin America & Africa), To the Symposium on Helms Burton and International Business (Ottawa: Canadian Foundation for the Americas/Center for International Policy, May 16, 1996) 2 [hereinafter Address Can. Sec. State (Latin America)].

⁴⁴ Initial White House Statement, supra note 42.

⁴⁵ Canada, Department of Foreign Affairs and International Trade News Release, “Canadian Statement on the Helms-Burton Act to the MAI Negotiating Group” (mimeo., Mar. 14–15, 1996) [hereinafter Canadian Statement in MAI].

⁴⁶ Ibid., 2.

⁴⁷ Sallot, J., “Chretien Joins Word War with Helms over Cuba,” Globe and Mail (Mar. 9, 1996) A4.Google Scholar (Response of Prime Minister Chretien to Senator Helms’ reported analogy of Canada’s relations with Cuba to Neville Chamberlain’s appeasement of Adolf Hitler, suggesting Helms should recall American appeasement of former Cuban dictator, Fulgencio Batista).

⁴⁸ McKenna, B., “EU Shares Canada’s Dismay over U.S. Anti-Cuba Bill,” Globe and Mail (Mar. 19, 1996) B2.Google Scholar

⁴⁹ North American Free Trade Agreement, done Dec. 17, 1992, in force jan. 1, 1994, [1994] Can. T.S. No. 2 [hereinafter NAFTA].

⁵⁰ General Agreement on Tariffs and Trade, done at Geneva, Oct 30, 1947, in forcejan. 1, 1948, 55-61 UNTS 194, 4 Basic Instruments and Selected Documents (BISD) (Geneva, 1969) [hereinafter GATT]; WTO, Final Act and Agreement Establishing the World Trade Organization, done at Marrakesh, Apr. 15, 1994, reprinted in ( 1994) 33 I.L.M. 1143. The text of the GATS, GATT Multilateral Trade Negotiations (The Uruguay Round) Doc. MTN/FA, Part II, Annex lB, and Add.i (Dec. 15, 1993) is reprinted in (1994) 33 I.L.M. 44.

⁵¹ See Address Can. Sec. State (Latin America), supra note 43 at 3.

⁵² E.g., Fox, D., “Thousands Face U.S. Blacklist over Cuba Links,” Reuter European Community Report (May 7, 1996)Google Scholar; Friedman, A., “Russia Applies to Join OECD Club,” Globe and Mail (May 22, 1996) A12;Google Scholar Grant, J., “EU Warns U.S. on Iran, Libya Legislation,” Reuter European Community Report (May 6, 1996).Google Scholar

⁵³ E.g., “U.S. Remains Isolated in WTO on Blockade of Cuba,” Inter Press Service (Apr. 17, 1996) and Drohan, M., “U.S. Trade Partners Demanding Answers,” Globe and Mail (May 21, 1996).Google Scholar

⁵⁴ E.g., “Working Level Officials from NAFTA Partners Discuss Cuba Bill,” BNA International Trade Daily (Apr. 29, 1996) and Sallot, Jeff, “Central-American Leaders at Ottawa Meetings Assert Economic Rights of Nations,” Globe and Mail (Apr. 17, 1996) Aio.Google Scholar

⁵⁵ See “Central American States Declare Opposition to U.S.-Cuba Policy,” Deutsche Presse – Agentur (May 16, 1996); Hicks, S., “Chretien Meets Central American Leaders,” B.C. Cycle (May 16, 1996)Google Scholar; Sallot, J., “U.S. Sanctions against Cuba Subject of Chretien’s Summit with Central American Leaders,” Globe and Mail (May 16, 1996) A6Google Scholar; Williams, H., “Six Central American Leaders Cite Fruitful Meeting,” Agence France Press (May 17, 1996)Google Scholar and Williams, H., “Canadian, Central American Chiefs Want Closer Ties, Less Dependence on U.S.,” Agence France Presse (May 14, 1996).Google Scholar

⁵⁶ See Address Can. Sec. State (Latin America), supra note 43 at 1, where Minister Stewart observes:

⁵⁷ The literature in support of the key U.S. role in this context is voluminous. See, e.g., Jackson, J., World Trade and the Law of GATT (Charlottesville: Michie, 1969)Google Scholar; Hudec, R., Enfordng International Trade Law: The Evolution of the Modern GATT Legal System (Salem, N.H.: Butterworths, 1993).Google Scholar

⁵⁸ Canada, Department of Foreign Affairs and International Trade, A Statement by the Honourable Art Eggleton, Minister for International Trade on the Helms-Burton Bill (96/7, Mar. 13, 1996); NAFTA, supra note 49, Chap. 20, Art. 2007 (Commission - Good Offices, Conciliation and Mediation) and Art. 2008 (Request for an Arbitral Panel).

⁵⁹ See World Trade Organization, “United States: The Cuban Liberty and Democratic Solidarity Act: Request for the Establishment of a Panel by the European Communities,” WT/DS38/2 (Oct. 8, 1996) [hereinafter EU Panel Request].

⁶⁰ NAFTA, supra note 49, e.g., Arts. 1102 (National Treatment), 1103 (Most-Favoured Nation Treatment), 1105 (Minimum Standard of Treatment), 1110 (Expropriation and Compensation). NAFTA Art. 1105(1) provides: “Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security” [Emphasis added].

⁶¹ Ibid., Art. 1603 (Grant ofTemporary Entry); Annex 1603 (Temporary Entry for Business Persons).

⁶² See GATT, supra note 50, e.g.: Art. 1 (General Most-Favoured Nation Treatment); Art. 3 (National Treatment); Art. 5 (Freedom of Transit); Art. 11 (General Elimination of Quantitative Restrictions); Art. 23 (Nullification and Impairment); and under GATS, supra note 50, e.g.: Art 2 (Most-Favoured Nation Treatment); Art. 3 (Transparency); Art. 4 (Increasing Participation of Developing Countries); Art. 6 (Domestic Regulation). See discussion in EU Panel Request, supra note 59 at 2–3.

⁶³ See Eggerston, L., “Eggleton Delays Challenge of Helms-Burton: Waiting for EU Trade Case against U.S.,” Globe and Mail (Feb. 7, 1997) B1.Google Scholar

⁶⁴ The formal EU request for a WTO panel determination was outstanding from Oct. 1996 (see EU Panel Request, supra note 59), delayed first by the U.S. pursuant to WTO Dispute Settlement Understanding (DSU) procedures, and subsequently by EU-United States negotiations. The tripartite WTO panel was announced on Feb. 20, 1997, naming Arthur Dunkel (Switzerland) as chair, Tommy Koh (Singapore), and Ted Woodfield (New Zealand): World Trade Organization, U.S. — The Cuban Liberty and Democratic Solidarity Act: Constitution of the Panel Established at the Request of the European Communities, WTO Doc. WT/DS38/3 (Feb. 20, 1997); see generally GATT Multilateral Trade Negotiations (The Uruguay Round), Understanding on Rules and Procedures Governing the Setdement of Disputes, GATT Doc. MTN/FA, PL 2 Annex 2 (Dec. 15, 1993) and GATT Doc. MTN/FA/Corr. 1 (Dec 15, 1993), reprinted in (1994) 33 I.L.M. 112, WT/BS 38/3.

⁶⁵ See Morton, P., “U.S. Plans to Boycott WTO Panel in Helms-Burton Row,” Financial Post (Feb. 21, 1997) 3,Google Scholar quoting Undersecretary of Commerce Stuart Eizenstat: “The WTO is not an appropriate forum for resolving differences over what is essentially a disagreement in foreign policy.... We will make clear that the panel established has no competence to proceed because this is a matter of national security and foreign policy.” See also Blustein, P. and Swardson, A., “U.S. Vows to Boycott WTO Panel: Move Escalates Fight with European Union over Cuba Sanctions,” Washington Post (Feb. 21, 1997) A01Google Scholar; Blustein, P., “WTO Powers Are Put to the Test: Dispute Over Cuba Sanctions Has U.S. Crying Foul Early in the Game,” Washington Post (Feb. 22, 1997)Google Scholar Dot (quoting a senior U.S. official: “Our position is that matters related to national security and foreign policy should simply not be considered by the WTO … So this has nothing to do with our commitment to the WTO”).

⁶⁶ See the Statement of the United States Delegation to the WTO Dispute Setdement Body on the Request of the European Communities and their Member States for the Establishment of a Dispute Settlement Panel on the U.S. Cuban Liberty and Democratic Solidarity (LIBERTAD) Act (mimeo., Nov. 20, 1996) 2 (“The United States reiterates that our dispute with the Community is not fundamentally a trade matter and thus is not of a nature that we should ask a trade panel to decide.”)

⁶⁷ E.g., NAFTA, supra note 49, Art. 1603(1): “Each party shall grant temporary entry to business persons who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this Chapter” [emphasis added].

⁶⁸ E.g., GATT, supra note 50, Art. 21 (Security Exceptions); GATS, supra note 50, Art. 14. For a good historical discussion on the original intent behind such escape clauses, see Jackson, J., World Trade and the Law of the GATT 533–73 (Charlottesville: Michie, 1969).Google Scholar

⁶⁹ de Jonquieres, Guy, “Britain in Fierce Attack on U.S. Trade Policies,” Financial Times (May 22, 1996) 4,Google Scholar quoting EU Trade Commissioner Sir Leon Brittan, in support of Canadian Trade Minister Art Eggleton in OECD debate (Paris meeting, May 1996), adding that Helms-Burton could only be characterized as “extra-territorial and expropriatory.”

⁷⁰ See Fairley, H.S. and Currie, J.H., “Projecting Beyond the Boundaries: A Canadian Perspective on the Double-Edged Sword of Extraterritorial Acts”Google Scholar in Young, M.K. and Iwasawa, Y (eds.), Trilateral Perspectives on International Legal Issues 119, at 124–27 (Irvington, New York: Transnational Publishers, 1996)Google Scholar [hereinafter Projecting Beyond the Boundaries].

⁷¹ R.S.C. 1985, c. F-29 (as amended) [hereinafter FEMA].

⁷² Government of Canada News Release, “Government Introduces Foreign Extraterritorial Measures Bill” (May 28, 1984). See generally Graham, W.C., “The Foreign Extraterritorial Measures Act” (1986) 11 Can. Bus. L.J. 410.Google Scholar

⁷³ Protection of Trading Interests Act, 1980, c. 11 (U.K.).

⁷⁴ For a useful contemporary overview, see Reid, , “Blocking Orders and Other Remedies under the UK Protection of Trading Interests Act, 1980” in American Conference Institute, Institute for International Law and Business, Beyond Cuba: U.S. International Business Restridions … Compliance with Libertad and Other Controls (Washington, D.C.: June 24, 1996).Google Scholar

⁷⁵ See Foreign Extraterritorial Measures Act (U.S.) Order 1992, SOR/92–584, Oct. 9, 1992, Can. Gaz. Pt. 2, at4048, am. SOR/96-84,Jan. 15, 1996, Can. Gaz. Pt. 2, at 611 [hereinafter FEMO].

⁷⁶ See Kennish, T. and Shriver, E., “LIBERTAD and the Cuban Assets Control Regulations vs. the Canadian Foreign Extraterritorial Measures Act: Collision Course or Near Miss?” in Canadian Institute, After Cuba: U.S. Extraterritorial Restrictions on Canadian Business (Toronto: Canadian Institute, June 26, 1996), Tab 13.Google Scholar

⁷⁷ An Act to Amend the Foreign Extraterritorial Measures Act, S.C. 1996, c. 28 (Royal Assent Dec. 30, 1996, in forcejan. 1, 1997), reprinted in (1997) 36 I.L.M. 117. See also Forsythe, Douglas H., “Canada: Foreign Extraterritorial Measures Act Incorporating the Amendments Countering the U.S. Helms-Burton Act” (Introductory Note to After Cuba, Ibid., 111–140)Google Scholar [hereafter Note on FEMA Amendments].

⁷⁸ FEMA, supra note 71 (as amended), s. 7 (offences) viz. disclosure of records to foreign tribunals (s. 3) and prohibited compliance with measures of a foreign state or foreign tribunal (s. 5) (corporate fines to maximum of $1.5 million; imprisonment of corporate officers and directors to a maximum of five years); FEMA s. 8.1 allows the Attorney General to issue, upon application by a Canadian or a person carrying on business in Canada, a special recovery order in cases where a U.S. federal court gives judgment under the Helms-Burton Act. FEMA s. 9( 1 ) is broadened to allow recovery of sums paid in satisfaction of any judgment rendered under scheduled legislation, not restricted (as originally enacted) to antitrust rulings; see also FEMA ss. 9( 1. 1 ) (recovery of legal costs), and g(a) (execution on property in Canada). See discussion in Forsythe, Note on FEMA Amendments, supra note 77 at 114.

⁷⁹ FEMA, supra note 71, s. 8(1.1) (non-recognition or enforcement of scheduled provisions of foreign trade laws).

⁸⁰ Ibid., s. 2.1(a). Helms-Burton is the only foreign legislation appearing on the schedule (as at Mar. 20, 1997). One must acknowledge parenthetically that blocking statutes, in particular to the extent they create clawback rights of action in relation to the assets of foreign nationals, are themselves extraterritorial acts in violation of international law unless justified as necessary and proportional “countermeasures.” Therefore, the international law legitimacy of the most recent FEMA amendments is contingent on the illegitimacy under international law of the foreign legislative enactments to which it responds. See generally 2 Restatement (Third) of Foreign Relations Law of the United States (2 vols.), s. 905 at 380 et seq. (St. Paul, Minn.: American Law Institute, 1987) [hereinafter American Restatement].

⁸¹ D.O. Oct. 23, 1996, translated and reproduced in (1997) 36 I.L.M. 133 (translation and introductory note by J. Vargas).

⁸² Council Reg. (EC) No. 2271/96, [1996] O.J. (L309) 39, reprinted in (1997) 36 I.L.M. 125. The Council Regulation specifically blocks recognition and enforcement not only of Helms-Burton but also of two other U.S. statutes: the preceding extension to the embargo of Cuba in the Cuban Democracy Act, 1992, supra note 15, and the Iran and Libya Sanctions Act, 1996, Pub. L. 104-172, 110 Stat 1541, 50 U.S.C. 1701 et seq.

⁸³ Cf. Fairley, H.S. and Contini, J.S., “Lunge, Parry and Riposte: Coping with United States Trade Laws in the Intellectual Property Transactions of Canadians,” (1991) 8 Can. Int. Prop. Rev. 126Google Scholar; Fairley, H.S., “Extraterritorial Assertions of Intellectual Property Rights in International Trade,” in Stewart, G.S., Tawfik, M. and Irish, M. (eds.), International Trade and Intellectual Property: The Search for a Balanced System 141 et seq. (Boulder Col.: Westview Press 1994).Google Scholar

⁸⁴ See a discussion of opinion in the Organization for Economic Coopération and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD) in Fairley, H.S., “Does the Helms-Burton Act Violate International Law: An Argument in the Affirmative,” text of remarks presented at the Regent University Conference, Helms-Burton: Simple Justice for U.S. Citizens or Foreign Policy Disaster, Tab 5, 16–18 (Washington D.C., July 9, 1996).Google Scholar

⁸⁵ See OAS, Opinion of the Inter-American Juridical Committee in Fulfilment of Resolution AG/DOC. 3375/96 of the General Assembly of the Organization of American States, entitled Freedom of Trade and Investment in the Hemisphere, OAS Doc. CJI/SO/II/doc.67/96 rev. 5 (Aug. 23, 1996) [hereinafter Inter-American Juridical Committee Opinion], pursuant to OAS Resolution AG/doc. 3375/96 (June 4, 1996), reproduced at (1996) 35 I.L.M. 1329.

⁸⁶ See the letter of transmittal from Committee Chair Eduardo Vio Grossi and text of Committee Resolution CJI/Res. II-14/96 ( Aug. 23, 1996), reproduced at (1996) 35 I-L.M. 1327–28.

⁸⁷ UN Doc. A/51/394, Sept. 23, 1996.

⁸⁸ Res. 51/17, UN Doc. A/51/L.15 (Nov. 7, 1996), approved by 137 votes to 3 with 25 abstentions (Nov. 12, 1996).

⁸⁹ Supra note 85 (recital).

⁹⁰ Ibid., para. 5.

⁹¹ Ibid., para. 6.

⁹² Ibid., para. 8.

⁹³ Ibid., para. 9.

⁹⁴ See infra, Pt. 4, notes 137–41 and accompanying text.

⁹⁵ See commentary to the Inter-American Juridical Committee Opinion by Prof. Seymour Rubin, (1996) 35 I.L.M. 1322 at 1326, concluding that the opinion “supports the doctrinal basis for fair treatment and protection of private foreign investment – which is essential for today’s interdependent economies. At the same time, it condemns the application of provisions which, in Helms-Burton, are questionable under international law.”

⁹⁶ Brownlie, Ian, Principles of Public International Law 295 (4th ed., Oxford: Oxford University Press, 1990).Google Scholar See also “Projecting Beyond the Boundaries,” supra note 70 at 119–21.

⁹⁷ The Steamship Lotus; France v. Turkey ( 1927) P.C.I.J. Ser A, No. 10, 18–19.

⁹⁸ See Brownlie, supra note 96 at 300–5; Kindred, H. et al., International Law Chiefly as Interpreted and Applied in Canada 467–70 (4th ed., Toronto: Emond Montgomery, 1987)Google Scholar; Williams, and Castel, , Canadian Criminal Law: International and Transnational Aspects 133–37 (Toronto: Butterworths, 1981).Google Scholar See also generally, Akehurst, , “Jurisdiction in International Law” (1972–73) 46 B.Y.I.L. 145Google Scholar; Mann, , “The Doctrine of Jurisdiction in International Law” (1964–I) 11 Rec. des Cours 1.Google Scholar

⁹⁹ Brownlie, supra note 96 at 307.

¹⁰⁰ For Canada, see Statute of Westminster, 1931 (U.K.), 33 Geo. V, s. 3, incorporated into the Constitution of Canada by virtue of s. 52(2) (b) of the Canadian Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), c. 11; see also Croft v. Dunphy, [ 1933 ] A. C. 156 ( P.C. ). For the United States, see United States Constitution, Art. 1, s. 8 (plenary powers of Congress, in particular (3) To regulate commerce with foreign nations); Art 2, s. 2 ( 1 ) (military commander in chief), and (2) (treaty power); United States v. Curtiss-Wright Export Corp. ( 1936) 299 U.S. 304 (extraterritorial jurisdiction as an incident of national sovereignty).

¹⁰¹ Statute of the International Court of Justice, Art. 38, para. 1(c) (sources of international law).

¹⁰² A.G. Ontario v. Reciprocal Insurers, [1924] A.C. 328 at 345 (P.C.); Cox v. Army Council, [1963] A.C. 48 (H.L.); Air India v. Wiggins, [1980] 2 All E.R. 593 at 597 (H.L.). See also Dreidger, E.A., The Construction of Statutes 218 (2nd ed., Toronto: Butterworths, 1983).Google Scholar For the U.S. counterpart, see e.g., Equal Employment Opportunity Commission v. Arabian American Oil Company, 111 S. Ct 1227 (1991).

¹⁰³ See Helms-Burton, supra note 2, Title III, s. 302 (a)(i).

¹⁰⁴ E.g., sanctions pursuant to the Cuban Democracy Act, 1992, supra note 15. For a detailed history and critical analysis of the legal and economic measures invoked against Cuba, see sources cited, supra note 4.

¹⁰⁵ Brownlie, supra note 96 at 299–300.

¹⁰⁶ Ibid., 300.

¹⁰⁷ Ibid.., 304.

¹⁰⁸ See infra, PL 4, notes 142–51 and accompanying text.

¹⁰⁹ Brownlie, supra note 96 at 304.

¹¹⁰ 1 American Restatement, supra note 80, Pt. 4, at 230 (Intro. Note).

^11l Ibid., ch. 2 at 304 (Intro. Note).

¹¹² Ibid., 304–5.

¹¹³ Ibid., ss. 421–23. See also Kindred, H. et al., International Law – Chiefly as Interpreted and Applied in Canada 419–539 (4th ed., Toronto: Emond Montgomery, 1987).Google Scholar

¹¹⁴ The only possible exception here is the statutory presumption of legitimacy attaching to FCSC-certified claims. See notes 25, supra and 204, 205 infra, and accompanying text. For a current discussion, see Strauss, A.L., “Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in Domestic Courts” (1995) 36 Harv. Int’l L.J. 373.Google Scholar

¹¹⁵ This point is also a favourite of Helms-Burton defenders. For example, “Due Process” requirements of the U.S. Constitution (Amendment 5, 1791, viz. federal law and Amendment 4, 1868, viz. state law) restrict the circumstances under which defendants may be impleaded in U.S. federal and state courts, which apply a “minimum contacts” test for asserting in personam jurisdiction: International Shoe Co. v. Washington, (1945) 326 U.S. 310; for contemporary restatements with respect to the nature of the necessary minimum contacts, see Asahi Metal Industries Co. v. Superior Court, ( 1987) 480 U.S. 102; Bumham v. Superior Court, (1990) 495 U.S. 604; Helicopteros Nacionales de Colombia, S.A. v. Hall, (1984) 466 U.S. 408. See also Friedenthal, J.H. et. al., Civil Procedure 95–100 (St. Paul, MN: West Publishing, 1985)Google Scholar and other secondary sources cited therein.

¹¹⁶ 1 American Restatement, supra note 80, s. 431.

¹¹⁷ It is abundantly clear that most foreign courts would not enforce Title III awards of U.S. courts on “public policy” grounds provided in the form of a specific blocking statute and on general principle. See infra notes 152–60 and accompanying text viz. direct conflict test.

¹¹⁸ Brownlie, supra note 96 at 298; and notes 70–75, supra, and accompanying text.

¹¹⁹ Ibid., 298–99 [emphasis added].

¹²⁰ Helms-Burton Act, supra note 2.

¹²¹ See, e.g., Kiger, Squeeze Play, supra note 4, ch. 3 (“The Rise of the Cuban American Right”) at 25–35 (viz Cuban-American pressures in U.S. politics).

¹²² Jennings, R.Y., Oppenheims International Law 512–13 (9th ed., London: Longman, 1992)Google Scholar [hereinafter Oppenheim].

¹²³ Brownlie, supra note 96 at 481.

¹²⁴ See Prof. Brownlie’s discussion ibid., 481–82 and infra note 129 et seq.

¹²⁵ Inter-American Juridical Committee Opinion, supra note 85, para. 5(c) (principles).

¹²⁶ Ibid., para. 6(b) (viz. non-conformity of Helms-Burton with international law).

¹²⁷ (Second Phase) [1955] ICJ Rep. 4 [hereinafter Nottebohm].

¹²⁸ Ibid., 16–17.

¹²⁹ Brownlie, supra note 96 at 410–20.

¹³⁰ Nottebohm, supra note 127.

¹³¹ Oppenheim, supra note 122; 1 American Restatement, supra note 80, s. 402, comment, at 239–40, Reporters’ Note 1, at 242–43.

¹³² Nottebohm, supra note 127 at 25–6. See also Brownlie, supra note 96 at 413.

¹³³ Helms-Burton Act, supra note 2, s. 4 (13).

¹³⁴ See: 1 American Restatement, supra note 80, s. 711 (and comments at 184–90), which provide, inter alia:

A state is responsible under international law for injury to a national of another state caused by an official act or omission that violates …

• (b) a personal right that, under international law, a state is obligated to respect for individuals of foreign nationality

• (c) a right to property or another economic interest that, under international law, a state is obligated to respect for persons, natural or juridical, of foreign nationality.

The Comments to s. 711 (at 185) define “injury” to mean:

While the comment goes on to distinguish state responsibility in this context from “jurisdiction to prescribe, adjudicate or enforce in relation to nationals of another state,” it admits (at 185) that “a state may claim that a particular excess of jurisdiction caused injury to its national.”

¹³⁵ See notes 13 and 14, supra, and accompanying text.

¹³⁵ See 1 American Restatement, supra note 80, s. 712(1) ( “State Responsibility for Economic Injury to Nationals of Other States, viz. requirement of ’just compensation’ for the taking by the state of the property of a national of another state” ), and comment at 197–202. See also The Factory at Chorzow, P.C.I.J. Ser. A, No. 17 (1928); Case Concerning German Interests in Polish Upper Silesia, P.C.I.J. Ser. A, No. 7 (1926). The “prompt, adequate and effective” formula dates from a famous exchange between U.S. Secretary of State Cordell Hull and the Minister of Foreign Relations of Mexico in 1938, concerning the compensation of U.S. nationals: 3 Hackworth, , Digest of International Law 655–61 (Washington, DC: Gov’t Printing Office, 1942).Google Scholar While the appropriateness of this standard has been vigorously challenged by developing countries in the forum of the General Assembly of the United Nations and elsewhere (see discussion and sources cited in 1 American Restatement, s. 712, Reporters’ Notes 1 and 2 at 202–7), it is not in issue between the U.S. and most of its principal Helms-Burton adversaries, including Canada, which are also capital-exporting states. The Inter-American Juridical Committee Opinion, supra note 85, para. 5(a) (viz. applicable principles of international law), concedes this point and acknowledges the obligation in terms analogous to the American Restatement, as follows:

¹³⁷ Inter-American Juridical Committee Opinion, supra note 85, paras. 5(d) through (f) (viz. principles and rules of international law that apply to the protection of property rights of nationals).

¹³⁸ See discussion of trafficking definitions in Helms-Burton Pt. 1, s. D.1 and 2, supra, notes 34–41 and accompanying text.

¹³⁹ Helms-Burton, s. 302(a)(1) and (2) presumptively favours FCSC-certified claims under the International Claims Setdement Act, 1949, in relation to civil liability and quantum respectively under Tide III. See notes 25 and 26, supra, and accompanying text.

¹⁴⁰ Due process concerns centre around the fact that, in the typical case, the FCSC determination is based solely on the claimant’s submissions and other available evidence, without any submissions from the expropriating state. For an overview and account of the FCSC process, see the Hon. Ridgway, Defissa A., “Foreign Claims Settlement Commission of the United States List of Corporate Claims, Select Excerpts from the Final Report of the Cuban Claims Program, Background Information on the FCSC,” American Conference Institute, Beyond Cuba, supra note 74.Google Scholar

¹⁴¹ Inter-American Juridical Committee Opinion, supra note 85, paras. 6(d)-(h).

¹⁴² 1 American Restatement, supra note 80, ss. 402, 403.

¹⁴³ United States v. Aluminium Company of America et al., 148 F.2d 416 (2nd Cir., 1945).

¹⁴⁴ International judicial exchanges arising from the extraterritorial application of U.S. antitrust laws illuminated the conflict: e.g., United States v. Imperial Chemical Industries et al., 100 F.Supp. 215 (S.D.N.Y 1952) and the countervailing British decision in British Nylon Spinners Ltd. v. Imperial Chemical Industries Ltd., [1953] Ch. 19 (CA.), made permanent [1955] 1 Ch. 37 (CA.). For a discussion of the confrontation between Canada and the United States in the Canadian Radio Patents cases in the 1960s, see Lane, , “American Antitrust Law and Canadian Patent Rights” (1970) 118 U. Pa. L. Rev. 983CrossRefGoogle Scholar; Henderson, , “Foreign Courts and the National Interest: the Effect of Foreign Judgments on Activities in Canada” (1974) 17 C.P.R. (2d) 130 at 131–33.Google Scholar

¹⁴⁵ Timberlane Lumber Co. v. Bank of America, 549 F. 2d 597 (9th Cir. 1976) (am. by rehearing en banc 1977) [hereinafter Timberlane I]. Mannington Mills Inc. v. Congoleum Corp., 595 F. 2d 1287 (3rd Cir. 1979) [hereinafter Mannington Mills]; Timberlane Lumber Co. v. Bank of America, 547 F. Supp 1453 (N.D. Calif. 1983).

¹⁴⁶ Timberlane 1., ibid., 609. But see the more heavy-handed approach of the 11th Circuit in Re Grand Jury Proceedings and the Bank of Nova Scotia, 740 F. 2d 817(nth Cir. 1984), and the commentary by Paikin, , “Bank of Nova Scotia II: The American Subpoena and the Muldnational Enterprise,” (1984) 9 Can. Bus. LJ. 497.Google Scholar

¹⁴⁷ (1993) 113 S. C. 2891 [hereinafter Hartford Fire].

¹⁴⁸ See Brief of the Government of the United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in Support of Petitioners, Counsel for the Government of the United Kingdom of Great Britain and Northern Ireland (U.S.S.C. File No. 91-1128, Feb. 12, 1992) and Brief of the Government of Canada as Amicus Curiae in Support of Certain Petitioners Counsel for the Government of Canada Amicus Curiae (U.S.S.C. File Nos. 91–1111, 91–1128, Nov. 19, 1992) [hereinafter Amicus Briefs].

¹⁴⁹ Hartford Fire, supra note 147 at 2910. See infra note 151 and accompanying text.

¹⁵ See, e.g., Alford, R.P., “The Extraterritorial Application of Antitrust Laws: A Postscript on HartfordFire Insurance Co. v. California” (1993) 34 Va. J. Int. L. 213Google Scholar; Pellini, M.C., “The Extraterritorial Jurisdiction Analysis in Light of Hartford Fire Insurance Co. v. California: How Peripheral Has the International Comity Notion Become?” (1994) 55 Ohio St. L.J. 477Google Scholar; Trenor, J.A., “Jurisdiction and the Extraterritorial Application of Antitrust Laws after Hartford Fire,” (1995) 62 Chi. L. Rev. 1583.CrossRefGoogle Scholar

¹⁵¹ See Clagett, supra note 7 at 436–37.

¹⁵² American Restatement, supra note 80, s. 415.

¹⁵³ Hartford Fire, supra note 147 at 290.

¹⁵⁴ U.K. and Canadian Amicus Briefs, supra note 148.

¹⁵⁵ Hartford Fire, supra note 147 at 2922.

¹⁵⁶ See notes 77–80, supra, and accompanying text.

¹⁵⁷ See notes 75–76, supra, and accompanying text.

¹⁵⁸ FEMO, supra note 75, s. 5.

¹⁵⁹ Ibid. s. 2.

¹⁶⁰ Helms-Burton Act, supra note 2, s. 401(a). See also Equal Employment Opportunity Commission v. Arabian American Oil Company, (1991) 499 U.S. 244 (applying the presumption that an act of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States).

¹⁶¹ See SterlingDrug v. Bayer, 14 F. 3d 733 at 746–47 (2nd Cir. 1994) [hereinafter Sterling Drug] and Silverman v. Berkson, 661 A. 2d 1266 (N.J. 1995) [hereinafter Silverman]. However, see Swanson v. Schlumerger Tech, 895 2d 719 (Tex. App. Texarkana, 1994) [hereinafter Swanson] for a contrary proposition.

¹⁶² This proposition is premised on the criteria established by U.S. Federal Courts and the American Restatement, supra note 80, summarized infra notes 165–169 and accompanying text. The argument is developed further in Projecting Beyond the Boundaries, supra note 70 at 127–34.

¹⁶³ Timberlane I, supra note 145.

¹⁶⁴ Mannington Mitts, supra note 145.

¹⁶⁵ Timberlane I, supra note 145 at 614, as expanded by Mannington, supra note 145 at 1297–98.

¹⁶⁶ American Restatement, supra note 80, ss. 402, 403.

¹⁶⁷ Ibid., s. 402, Comment at 239.

¹⁶⁸ Ibid., s. 403(1).

¹⁶⁹ Ibid., s. 403(2).

¹⁷⁰ Ibid., s. 403(3) [emphasis added].

¹⁷¹ Ibid.

¹⁷² Timberlane/Mannington criteria, supra note 165; Restatement criteria, supra note 169, s. 403(2)(d), (h).

¹⁷³ Timberlane/Mannington criteria, ibid.; Restatement criteria, s. 403(2)(b).

¹⁷⁴ Timberlane/Mannington criteria, ibid., No. 2; Restatement criteria, s. 403(2)(d), (g), (h).

¹⁷⁵ Timberlane/Mannington criteria, ibid., Nos. 6, 7; Restatement criteria, s. 403(2)(h).

¹⁷⁶ Timberlane/Mannington criteria, ibid., No. 10; Restatement criteria, s. 403(2)(e), (f).

¹⁷⁷ Helms-Burton, supra note 2, s. 2 (findings).

¹⁷⁸ Ibid., s. 3(1) (purposes).

¹⁷⁹ Sherritt International, the only Canadian company subject to Tide IV sanctions to date, has been criticized for its apparent stance that human rights were not a concern for international business (viz. Sherritt’s mining operations in Cuba), but has more recently defended the “ethics” of its Cuban operations, claiming “moral high ground” in opposition to the policy objectives of Helms-Burton and the balance of the U.S. embargo of Cuba. Compare Olijnyk, Z., “Sherritt’s Delaney defends Cuban operations,” Financial Post (Feb. 25, 1997) 13,Google Scholar quoting Sherritt Chairman Ian Delaney: “We have done more to improve the lot of the average Cuban [than the U.S. embargo].” See also Lane, Charles, “Cuban Trade: Canada’s Hypocrisy over Helms-Burton,” Globe and Mail (July 27, 1996) D2,Google Scholar in which Chairman Delaney is quoted as being “not one for long, long social debates,” viz. “I have only two responsibilities: That is to keep the compensation of Cuban workers balance sheet solvent and get the strategy right.”

¹⁸⁰ [1996] O.J. (L322) 1 (Dec. 2, 1996), reprinted in (1997) 36 I.L.M. 213.

¹⁸¹ Ibid., para. 1 (objective).

¹⁸² Ibid.

¹⁸³ Ibid., para. 4.

¹⁸⁴ U.S.: Statement by the President on Suspending Title III of the Helms-Burton Act (Jan. 3, 1997), reprinted in (1997) 36 I.L.M. 216; cf. U.S., The White House, Office of the Press Secretary, Report on Support for a Democratic Transition in Cuba (Jan. 28, 1997) (report to Chairman of designated House and Senate committees of Congress pursuant to s. 202 (g) of Helms-Burton, supra note 2).

¹⁸⁵ Done at Havana, Jan. 22, 1997, reprinted in (1997) 36 I.L.M. 210.

¹⁸⁶ Ibid., paras. 1–4.

¹⁸⁷ Clagett, supra note 7 at 438–39.

¹⁸⁸ Ibid., 439, citing discussion in Rose, C., “Property as the Keystone Right?” (1996) 71 Notre Dame L. Rev. 329.Google Scholar

¹⁸⁹ See discussion in Brownlie, supra note 96 at 532-35 and authorities referenced therein.

¹⁹⁰ See Clagett, supra note 7.

¹⁹¹ UN General Assembly, Universal Declaration of Human Rights, 1948 G.A. Res. 217, UN Doc. 1/777 (1948), Art. 17(1) and (2); Clagett, supra note 7 at 439; 1 American Restatement, supra note 80, s. 711, Comment (d), at 187.

¹⁹² (1966) Annex to A. Res. 2200, 21 GAOR, Supp. 16 UN Doc. A/6316, at 52 ( 1986), in force for Canada Aug. 19, 1976, [1976] Can. T.S. No. 47 [hereinafter UN Covenant on Civil Rights].

¹⁹³ (1966) Annex to A. Res. 2200, 21 GAOR, Supp. 16 UN Doc A/6316, at 52, in force for Canada, Aug. 19, 1976, [1976] Can. T.S. No. 46 [hereinafter UN Covenant on Economic Rights].

¹⁹⁴ Statute of the International Court of Justice, Art. 38(1)(b)) and (c). On the relationship between treaties and the development of customary law, see D’Amato, A., The Concept of Custom in International Law 103–66 (Ithaca: Cornell University Press, 1971),Google Scholar which argued that large multilateral treaties represent state consensus indicative of customary norms.

¹⁹⁵ Supra note 192, Arts. 1(1), 2, 3, 6, 9, 18.

¹⁹⁶ Supra note 13, Art. 2(3).

¹⁹⁷ U.S. Constitution, Amendment 5 (1791) (just compensation requirements for a taking of property ) and Amendment 14 (1868) (applying due process requirements to State laws). For discussion with relevant authorities on the constitutional nexus between personal property rights, see Tribe, supra note 10 at 777–79, 1335–37, 1373–75; for the Fifth Amendment requirement of just compensation, see Tribe 589–92, 605–7.

¹⁹⁸ See Constitution Act, 1982, Canadian Charter of Rights and Freedom, s. 7 (legal rights extending to life, liberty and security of the person); Gold, A.D. “The Legal Rights Provisions - A New Vision or Déjà Vu,” (1982) 4 Sup. Ct. L. Rev. 107Google Scholar; Fairley, H.S., “Enforcing the Charter: Some Thoughts on an Appropriate and Just Standard for Judicial Review,” (1982) 4 Sup. Ct. L. Rev. 217 at. 234Google Scholar (suggesung appropriateness of process-oriented judicial review, inter alia, in absence of entrenched property rights); cf., McBean, J., “The Implication of Entrenching Property Rights in Section 7 of the Charter of Rights,” (1988) 26 Alta. L. Rev. 548.Google Scholar

¹⁹⁹ UN Covenant on Economic Rights, supra note 193, Arts. 11, 12, 13; cf. acknowledgment of a constitutional entitlement to the “necessaries” of life under the Charter in Singh v. Minister of Employment and Immigration, [1985] l S.C.R. 177 (plurality opinion per Wilson J. suggesting an entitlement to necessaries of life in contradiction to economic or proprietary rights). See also Fairley, H.S., “Developments in Constitutional Law: The 1984–85 Term,” (1986) 8 Sup. Ct. L. Rev. 53 at 73–74.Google Scholar

²⁰⁰ See reported exchanges of public comment viz. “appeasement of dictators” between Senator Jesse Helms and Canadian Prime Minister Jean Chrétien, supra note 47.

²⁰¹ See: “U.S. Recognizes New Government of Cuba” 40( 1022) U.S Dept. of State Bulletin 128 (Jan. 26, 1959).

²⁰² See “U. S. Breaks Ties with Government of Cuba, maintains its Treaty Rights in Guantanamo Base” 44(1126) U.S. Dept of State Bulletin 103 (Jan. 23, 1961).

²⁰³ See sources and analysis cited, supra note 4.

²⁰⁴ See discussion supra notes 23–25, and accompanying text.

²⁰⁵ See sources cited supra note 115 on “minimum contacts,” and constitutional due process requirements under U.S. law.

²⁰⁶ I do not explore any limitations raised by separation of powers issues as between the president and Congress that limit the scope of Helms-Burton, or the direction by Congress in the act that the “Act of State” doctrine does not apply to preventjudicial enforcement of Title III, Helms-Burton Act, s. 302 (a) (6). See Banco NaàonalDe Cuba v. Sabbatino, 376 U.S. 398, 416 (1964) (“the courts of one nation will not act in judgment on the acts of another nation within [the latter’s] own territory”); for critique of the doctrine, see Bazyler, , “Abolishing the Act of State Doctrine,” (1986) 134 U. Pa. L. Rev. 325.CrossRefGoogle Scholar

²⁰⁷ See discussion and sources, supra notes 65–69 and accompanying text.

²⁰⁸ Here, I do not challenge the dual concepts of sovereignty and equality as the cornerstones of public international law, but necessarily concede political and economic limits to formal equality in legal confrontations. In confirmation of the basic rules, see United Nations Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, A. Res. 2625 (25), 25 UN GAOR, Supp. (No. 28) 121, UN Doc. A/8028 (1971), reprinted in (1970) 9 I.L.M. 1292 ((1) declaration of principles … sovereign equality of states); Brownlie, supra note 96; Kindred et al., supra note 98 at 15–24.

²⁰⁹ In a historical analysis and critique of the GATT dispute settlement process from 1948 through 1990, published in the course of the Uruguay Round leading to the WTO, Prof. Robert Hudec took the view that U.S. claims to “self-help remedies … could well destroy GATT’s present legal system single-handedly. It is essential that GATT somehow bring about a change in that U.S. legal policy.” Hudec, R., Enfordng International Trade Law: The Evolution of the Modem GATT Legal System 365 (Salem N.H.: Butterworths, 1993).Google Scholar

²¹⁰ See Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, (ICJ General List No. 90, Dec. 12, 1996) (questions of law arising from Iranian claims and obligations of the United States under the 1955 bilateral Treaty of Amity, Economic Relations and Consular Rights confirm the jurisdiction of the Court, notwithstanding supervening political events, use of force and military conflict in Persian Gulf); cf. Military Activities In and Against Nicaragua (Jurisdiction), [1984] ICJ Rep. 392 ( viz. assumption on jurisdiction, despite amendment by the United States of its reservation of jurisdiction to the World Court).

²¹¹ See supra note 136 and sources cited therein; the Nottebohm case, supra notes 127–30 and accompanying text.

²¹² For Canada, see Agreement Relating to the Setdement of Canadian Claims, Done at Havana, Nov. 7, 1980, in force June 26, 1981, [1981] Can. T.S. No. 18; for a critical analysis of state-to-state settlements between Canada-Cuba, France-Cuba and Spain-Cuba, see Locke, Barbara E., “Resolution of U.S. Claims against Cuba: Comparative Models,” in American Conference Institute, The Evolving Cuban Marketplace: What Every U.S. Business Should Know (Miami: Holland & Knight, Apr. 28, 1994).Google Scholar

²¹³ Krinsky and Golove, supra note 4, xvi.

²¹⁴ See discussion, supra note 27 and accompanying text; Helms-Burton, supra note 2, s. 306(c)(3):

²¹⁵ See Projecting Beyond the Boundaries, supra note 70 at 134–43 (discussing Canada’s assertion of extraterritorial jurisdiction as a tool of international lawmaking in its own interests, viz. coastal state fisheries and environmental jurisdiction); accord, Note on FEMA Amendments, supra note 77 at 111.

²¹⁶ Note on FEMA Amendments, supra note 77 at 111 (the author, Douglas H. Forsythe, is a foreign service officer of Canada’s Department of Foreign Affairs and International Trade, and there is no disclaimer indicating that his is not an official view).

²¹⁷ The affirmation of principle is Judge Huber’s in The Island of Palmas Case (Netherlands v. United States), (1928) 2 R.I.A.A. 829 at 838. Huber (sole arbitrator), continues:

²¹⁸ Projecting Beyond the Boundaries, supra note 70 at 143.

²¹⁹ Ibid., 144–45.