Helms-Burton Act Title III:
The extent in which European operators in Cuba can be adequately protected by the EU Blocking Regulation and through the use of the WTO dispute settlement system
Eva Wever
Email: eva.wever@student.uva.nl Student number: 12393118 Master thesis Amsterdam Law School
International and European Law
Track: International Trade and Investment Law Supervisor: Dhr. Dr. G. Vidigal
Abstract
This paper will focus on the question whether, and to what extent, the use of the EU Blocking Regulation and the WTO dispute settlement system are able to provide European operators in Cuba with adequate protection against the effects of the extra-territorial application of Title III of the Helms-Burton Act. Besides a critical analysis, the paper includes commentaries and advisory notes in respect of these two instruments. The content and normative opinions of this paper are based on evaluative research. The conclusion is that neither the EU Blocking Regulation, nor the use of the WTO dispute settlement system can provide European operators in Cuba with adequate protection. This paper firstly suggests that a reconsideration of the Blocking Regulation is needed, in order to ensure consistent interpretation, application and enforcement within the EU. This will avoid differences of treatment among EU operators, guarantee unity among EU Member States in their response to secondary sanctions and will give the EU a better chance in negotiations with the US. This also recognizes the highly political nature of the topic, causing it to be likely that the solution lies within diplomacy. Secondly, this paper asserts that the WTO is not the politically appropriate forum to settle disputes concerning Title III sanctions, as it is unlikely that the US will address an adverse Panel Report against it effectively and set limitations on the use of extra-territorial sanctions in order to diminish the effects flowing from the application of Title III. This paper therefore suggests that a better route to take might be through the use of countermeasures in the form of leveraging access to EU markets as a means to push for negotiations.
Keywords: Extra-territorial Sanctions; Helms-Burton Act; EU Blocking Regulation; WTO law; WTO Dispute Settlement; National Security Exception; Countermeasures
List of abbreviations
Abbreviation Explanation
US - United States of America
EU operators - Natural and legal persons within the legal sphere of the EU
EU - European Union
WTO - World Trade Organization
WTO DSB - Dispute Settlement Body of the WTO GATT - General Agreement on Tariffs and Trade GATS - General Agreement on Trade in Services ECFR - European Council on Foreign Relations
Table of contents
1. Introduction... Page 5 2. The US embargo against Cuba and the Helms-Burton Act...Page 6
2.1 Historic overview of the nature and objectives of the US sanctions
against Cuba...Page 6 2.2 The Helms-Burton Act of 1996 and the EU’s reactions
and subsequent suspension of Title III...Page 8 2.3 Enforcement of Helms Burton Title III by the US in 2019, its implications
for EU operators in Cuba and the reactions of the EU... Page 10
3. Protecting EU operators in Cuba through the EU Blocking Regulation...Page 12 3.1 How the EU Blocking Regulation protects EU operators against
enforcement of Title III Helms-Burton...Page 13 3.2 Catch 22: the complicating effects of the EU Blocking Regulation...Page 14 3.3 Concluding remarks and advisory note...Page 20 4. Protecting EU operators in Cuba through initiation of WTO proceedings
against the US...Page 22 4.1 Whether Title III of the Helms-Burton act violates WTO law... Page 23 4.2 The national security exception and whether the WTO DSB has
jurisdiction to review unilateral sanctions employed on the basis of
this exception... Page 28 4.3 The extend in which Title III of the Helms-Burton Act can be justified by the
national security exception... Page 30 4.4 Concluding remarks and advisory note... Page 34 5. Overall conclusion... Page 37 Bibliography... Page 39
1. Introduction
1.1 On April 17 2019, the US, under the Trump Administration, ceased the suspension of Title III of the Helms Burton Act, causing it to become fully effective. On the basis of this Title, third state nationals, including EU operators, that make use of Cuban properties which were nationalized during the Cuban Revolution, are exposed to compensation claims in US courts by the original owners.1 In response to this change in foreign policy, the EU issued a statement and expressed its objection to the extra-territorial application of these unilateral sanctions in relation to Cuba.2 In this statement, the EU stressed that it “will consider all options at its disposal to protect its legitimate interests, including in relation to its WTO rights and through the use of the EU Blocking Statute.”3 The research question of this paper therefore is, whether, and to what extent, these two options are indeed able to provide European operators in Cuba with adequate protection against the effects of the extra-territorial application of Title III of the Helms-Burton Act.
1.2 This paper is based on evaluative research and forms a normative opinion with regard to the US sanctions under Title III of the Helms-Burton Act and with regard to the before mentioned instruments of protection.
1.3 Before addressing the core of the research question, this paper will first generally set out the US embargo against Cuba, the Helms-Burton Act of 1996, the reasons for the suspension and subsequent activation of Title III of this Act, and its implications for EU operators in Cuba. In the next chapter, the focus will be on the EU Blocking Regulation as a means to protect EU operators in Cuba against the effects flowing from the application of Title III. More specifically, this paper will set out how the Regulation provides for protection and, on the other hand, what the complicating effects are in practice. In the last main chapter, the focus will be on the possibility of starting a procedure at the WTO as a means to protect the legitimate interest of EU operators. More specifically, this paper will analyze whether Title
1 Joy Gordon, ‘The U.S. Embargo Against Cuba and the Diplomatic Challenges to Extraterritoriality’ (2014) 36 Fletcher Forum of World Affairs 63, page 67.
2 European Commission, ‘Joint Statement by High Representative/ Vice President Federica Mogherini and Commissioner for Trade Cecilia Malmstrom on the decision of the United States to further activate Title III of the Hems Burton (Libertad) Act’ [2019] Statement/19/2171, <https://europa.eu/rapid/press-release_STATEMENT-19-2171_en.htm> accessed 8 November 2019 [Joint Statement European Commission].
III violates WTO law, whether the WTO DSB has jurisdiction to review the unilateral sanctions under Title III in case the US invokes the national security exception and lastly, what the likeliness is that Title III will be found justified by this exception in case a dispute comes before a Panel. Recognizing that the issue at hand is highly political in nature, the analysis of both of these two main chapters will be followed by a critical commentary including an advisory note.
2. The US embargo against Cuba and the Helms-Burton Act
This chapter will set out a short historic overview of the nature and objectives of the US sanctions against Cuba. Moreover, the Helms-Burton Act of 1996 will be introduced, together with the EU’s reactions and subsequent suspension of Title III of the Act. Lastly, this chapter will set out the reasons for the enforcement of Title III by the US in 2019, its implications for EU operators in Cuba and the reactions of the EU in response to this. 2.1 Historic overview of the nature and objectives of the US sanctions against Cuba
2.1.1 During the Cuban Revolution in 1959, General Batista, a faithful ally of the US, was overthrown by the popular uprising led by Fidel Castro. This marked the start of hostilities from the United States towards Cuba.4 The subsequent economic and social reforms undertaken by the government of Fidel Castro were not received positively by Washington.5 One of the measures taken by the revolutionary government was the agrarian reform of May 1959, which put an end to the latifundia system in Cuba.6 Under this reform, large agricultural estates owned by a single person, family or company7 were expropriated for the public good.8
2.1.2 In June 1959, Washington for the first time started imposing sanctions against the island by cutting the Cuban sugar imports from the US market.9 This impacted Cuba’s economy, since
4 Salim Lamrani, The economic war against Cuba: a historical and legal perspective on the U.S. blockade (Monthly Review Press 2013), page 17.
5 Id., page 18. 6 Id., page 19.
7 Dimas Castellanos, Ted Henken & Miriam Celaya (eds), Latin America in Focus: Cuba (ABC- CLIO 2013), page 468.
8 Id., page 78.
its exports and imports were almost totally dependent on the US market during that time, as noted by Lamrani.10 As explained by Gordon, the US embargo against Cuba was tightened by President Eisenhower in 1961 by allowing under the Trading with the Enemy Act the imposition of economic sanctions on a hostile country during a period of national emergency.11 In that same year, the US Congress passed the Foreign Assistance Act, banning all aid to communist countries.12 In the next year, President Kennedy further tightened the economic embargo by prohibiting all trade with Cuba.13 Later on in time, the US Congress passed two additional laws tightening the embargo: the Cuban Democracy Act and the Helms-Burton Act.14
2.1.3 The United States Government describes the US embargo on Cuba as “the most comprehensive set of U.S. economic sanctions on any country”, with the intention to “weaken the Castro regime by denying it hard currency”.15 It is thus clear that the initial goal of the US sanctions against Cuba was to cause economic hardship, with the hope that Castro’s communist regime would be overthrown. Through these means, the US expressed its disapproval of communism.16 The next section will discuss how the US has evolved their objectives of the embargo against Cuba over time.
2.1.4 De Melfi notes several different objectives for the economic sanctions of the US against Cuba. The initial objective of overthrowing the Castro regime changed over time to retaliation for the expropriation of US property in Cuba,17 and later to containment of communism when it became clear that the US would not have their property returned and the Castro regime in Cuba would not be overthrown.18 The most recent objective of the US 10 Id., page 20. 11 Gordon (n 1) page 64. 12 Id., page 64. 13 Ibid. 14 Ibid.
15 ‘Economic Sanctions: Agencies Face Competing Priorities in Enforcing the U.S. Embargo on Cuba’ (U.S.
Government Accountability Office, 30 November 2007),<https://www.gao.gov/new.items/d0880.pdf> accessed 7 November 2019.
16 Christy DeMelfi, ‘Nothing but the Facts: An In-Depth Analysis of the Effects of Economic Sanctions Against Cuba’ (2006) 5 Journal of International Business and Law 137, page 153.
17 Ibid.
sanctions against Cuba can stipulated as changing the internal situation in Cuba19, which is rooted in the ideas of opposition to communism and the promotion of democracy.
2.2 The Helms-Burton Act of 1996 and the EU’s reactions and subsequent suspension of
Title III
2.2.1 The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, also known as the Helms-Burton Act, was signed in March 1996 as a response to the shooting down of two US-registered private jets by the Cuban Air Force in February 1996.20 The Act was enacted “to seek international sanctions against the Castro government in Cuba, to plan for support of a transition government leading to a democratically elected government in Cuba, and for other purposes.”21 The Act is therefore an enforcement of the economic embargo against Cuba. Title III of the Act, called “protection of property rights of United States nationals” regulates liability for trafficking in confiscated property claimed by US nationals.22
2.2.2 Title III section 301 (11) of the Helms-Burton Act specifies that:23
To deter trafficking in wrongfully confiscated property, United States nationals who were the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States that would deny traffickers any profits from economically exploiting Castro’s wrongful seizures.
Section 4 (13) of the Act states that a person “traffics” in confiscated property if:24
(...) That person knowingly and intentionally: (i) Sells, transfers, distributes, dispenses, brokers, manages or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property (ii) engages in
19 Ibid.
20 Jonathan Law (ed), A Dictionary of Law (8th edition, Oxford University Press 2015), page 296.
21 Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, P.L. 104-114, 110 Stat. 785, 22 U.S.C. §§ 6021-6091 (1996) [Helms-Burton Act], Preamble.
22 Id., Title III.
23 Id., Title III Section 301 (11). 24 Id., Title III Section 4 (13).
commercial activity using or otherwise benefiting from confiscated property, or (iii) causes, directs, participates in, or profits from, trafficking by another person, or otherwise engages in trafficking through another person, without the authorization of any United States national who holds a claim to the property.
2.2.3 The Helms-Burton Act expanded the extraterritorial impact of the embargo against Cuba.25 Especially Title III of the Act contributed to this effect by ruling that nationals of third states that invest in, or otherwise make use of, Cuban properties that were nationalized by the Castro regime following the Cuban Revolution, are subject to suit for damages in US courts by the original owners, that are now US nationals.26 It is clear that this discourages foreign investment in Cuba, as third state nationals are subject to US sanctions when making use of confiscated property in Cuba.
2.2.4 The extraterritorial intrusiveness of the Helms-Burton Act caused for opposition amongst US allies, including the European Union. The European Commission already expressed its fundamental objection to the draft of the Helms-Burton Act in 1995.27 When the Act eventually entered into force in 1996, the European Union denounced it as a violation of international law and an unlawful interference in its affairs28 and reacted in two ways. Firstly, it responded with retaliatory legislation by creating a Blocking Regulation29 and, secondly, it responded by requesting for the establishment of a WTO Panel.30
2.2.5 As noted by Gordon, the US responded by arguing “that the Helms-Burton Act was a matter of national security, and therefore exempt from GATT” and GATS, and that a WTO Panel could not review that determination.31 The WTO Panel was eventually constituted in
25 Gordon (n 1), page 66. See also DeMelfi (n 16), page 147. 26 Gordon (n 1), page 67.
27 European Commission, ‘Communication from the Commission to the Council and the European Parliament: Relations between the European Union and Cuba’ [1995] COM (95) 306, <http://aei.pitt.edu/2830/1/2830.pdf> accessed 8 November 2019, page 7.
28 See for example: Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/1 [EU Blocking Regulation], Preamble.
29 Ibid.
30 United States – The Cuban Liberty and Democratic Solidarity Act (1996), Request for the Establishment of a Panel by the European Communities, WT/DS38/2.
February 1997,32 which led to the decision of the US to waive the application of Title III and IV of the Act. In turn, the EU decided to suspend its WTO proceeding, which enabled the parties to negotiate the ‘Understanding’ of May 1998. According to this understanding, as noted by Cremona, the US committed to suspend the enforcement of Titles III and IV of the Act, whereas the EU committed to apply certain disciplines when dealing with former US property in Cuba – like the promotion of democracy – and to drop its case against the US before the WTO.33 Because of this, no suit was filed in a US Court during that time as Title III had been suspended soon after it officially took effect.34
2.3 Enforcement of Helms-Burton Title III by the US in 2019, its implications for EU operators in Cuba and the reactions of the EU
2.3.1 Over time, the suspension of Title III was renewed every six months by each successive US President, according to their statutory authority, enshrined in Title III section 306 of the Helms-Burton Act.35 On April 17, 2019, the US, under the Trump Administration, for the first time ceased the suspension of Title III. Pompeo, the US Secretary of State, announced this change in foreign policy by noting that in previous years the opportunity of US citizens to file suit under Title III has been put out of reach “in the hope that doing so would put more pressure on the Cuban regime to transition to democracy”, but that it is clear now that there is no improvement in that regard.36 The US Government therefore believes it is time to hold Cuba accountable for the seizure of American assets.37 Pompeo moreover stated that the Trump Administration is of the opinion that Cuba’s behavior “undermines the security and stability of countries throughout the region, which directly threatens United States national security interests”.38 On this note, Pompeo argues that Cuba is exporting tactics of repression and violence against fundamental principles of human rights, for example by
32 United States – The Cuban Liberty and Democratic Solidarity Act (1997), Constitution of the Panel Established at the Request of the European Communities, WT/DS38/3.
33 Marise Cremona (ed), Developments in EU External Relations Law (Oxford University Press 2008), page 83. 34 Law (n 20), page 296.
35 Helms-Burton Act (n 21), Title III Section 306.
36 Michael Pompeo, US Secretary of State, ‘Remarks to the Press’ (U.S. Embassy in Cuba, 17 April 2019) <https://cu.usembassy.gov/remarks-to-the-press-3/> accessed 8 October 2019.
37 Ibid. 38 Ibid.
supporting the communist regime in Venezuela.39 The US Government is therefore of the opinion that by the activation of Title III the US is “advancing human rights and democracy on behalf of the Cuban people”.40
2.3.2 “Trafficking” is defined broadly by the Act and encompasses anyone who derives an economic benefit from confiscated property. Title III therefore seems to affect any business conduct performed in relation to such Cuban property, as noted by Growling WLG.41 The activation of Title III therefore creates significant legal exposure for compensation claims for international operators conducting business in Cuba.42 These potential lawsuits are intended to terminate trafficking in expropriated property that was formerly owned by US nationals, including Cubans who have later obtained a US citizenship.43 In effect, the threat of such lawsuits discourages international investment in Cuba44, as many operators are keen to keep good relationships with the US.
3.3.3 An example of multinational European operators sued under Title III of the Helms-Burton Act are the cases relating to the online service providers Trivago and Booking.com. In June 2019, the Angulo Cuevas family (now US nationals), and heirs to the Cuban island Cayo Coco, filed a lawsuit for damages in a US District Court in Florida against (amongst other defendants) the German company Trivago GmbH and the Dutch company Booking.com.45 The Cuevas family’s property was confiscated during the Cuban Revolution and they claim that because tourists are now able to book stays at the Cayo Coco Resorts, built after the confiscation, through the online providers Trivago and Booking.com, these companies “have exploited Cuevas family’ property for decades without paying them – the rightful
39 Ibid. 40 Ibid.
41 Thomas Timmins, Richard Dearden, Gregory Biniowsky & Emily Hayes, ‘Cuba update: Helms Burton Title III activated’ (Gowling WLG, 8 May 2019) <https://gowlingwlg.com/en/insights-resources/articles/2019/cuba-update-helms-burton-title-iii-activated/> accessed 8 October 2019.
42 Ibid.
43 EU Blocking Regulation (n 28), Annex 2.
44 Janet Kim, Paul Burns, Sunny Mann, Brian Cacic, Lise Test & Daniel Andreeff, ‘Trump Administration To End Suspension of Title III of Helms-Burton and Impose Additional Restrictions on Cuba’ (Baker McKenzie, 26 April 2019) <http://sanctionsnews.bakermckenzie.com/trump-administration-to-end-suspension-of-title-iii-of-helms-burton-and-impose-additional-restrictions-on-cuba/> accessed 8 October 2019.
45 Mario Echevarria, Esther Sanchez, Consuelo Cuevas et al. v. TRIVAGO GmbH, BOOKING.COM B.V. et al (2019) No.19cv22621 (United States District Court of the Southern District of Florida).
owners – any compensation whatever”.46 The family is therefore suing the defendants on the basis of Title III of the Helms-Burton Act.47 These European service providers were in that same month sued for the same reasons by the Del Valle family and the Falla family,48 heirs to several parcels of land in Varadero, now used for hotel purposes.49 Moreover, in September 2019, Trivago and Booking.com have been sued for offering services in respect of the Spanish Melia Hotel chain, operating in Cuba and making use of properties confiscated during the Revolution.50 This class action suit is the most extensive action so far under Title III of the Helms-Burton Act.
2.3.4 As noted before, the EU issued a statement on the decision of the US to activate Title III of the Helms-Burton Act and, just like in 1996, expressed its strong opposition to the extra-territorial application of unilateral measures in relation to Cuba.51 The statement describes the enforcement as a breach of international law and of the United States commitments under the EU-US understanding of 1998.52 The EU moreover stresses in its statement that it “will consider all options at its disposal to protect its legitimate interests, including in relation to its WTO rights and through the use of the EU Blocking Statute.”53 The next two chapters will analyze whether these two means can indeed provide EU operators with adequate protection.
3. Protecting EU operators in Cuba through the EU Blocking Regulation
This chapter will analyze whether, and to what extent, EU operators doing business in Cuba can be adequately protected against the effects of enforcement of Title III of the Helms-Burton Act through use of the EU Blocking Regulation. More specifically, this chapter will set out how the EU Blocking Regulation provides for protection and, on the other hand,
46 Id., page 2-3. 47 Id., page 3.
48 Mario Del Valle, Enrique Fallla, Mario Echevarria et. al, v. TRIVAGO GmbH, BOOKING.COM B.V. et al., (2019) No. 19cv22619 (United States District Court of the Southern District of Florida).
49 Id., page 2-3.
50 Marciela Mata et al. v. Melia Hotels International, TRIVAGO GmbH, BOOKING.COM B.V. et. al (2019) No. 19cv22529 (United States District Court of the Southern District of Florida).
51 Joint Statement European Commission (n 2). 52 Ibid.
what the complicating effects are of this Regulation in practice. The chapter will finish with an advisory note.
3.1 How the EU Blocking Regulation protects EU operators against enforcement of Title III Helms-Burton
3.1.1 The EU Blocking Regulation provides natural and legal persons within the legal sphere of the EU (defined in the Guidance Note of the European Commission as “EU operators”54) with protection “against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom”, according to the preamble of the Regulation.55 Through this Regulation, the EU shows its opposition to secondary sanctions by blocking the implementation of such sanctions.56
3.1.2 According to the European Commission, the Regulation protects EU operators in three ways. First of all, it “nullifies the effect in the EU of any foreign decision (…) based on the listed extra-territorial legislation or the acts and provisions adopted pursuant to them” (article 4 of the Regulation).57 This means such decisions will not be recognized or enforced within the EU. Therefore, US convictions requiring the enforcement of an economic penalty against an EU operator on the basis of Title III, will not be executed in the EU.58 According to the Commission, this protects EU operators from the effects of such decisions within the European Union.59
54 European Commission, Guidance Note, ‘Questions and answers: adoption of update of the Blocking Statute’ [2018] C277, I/03, OJ C277I,
<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.CI.2018.277.01.0004.01.ENG&toc=OJ:C:2018:277I:TOC> accessed 8 November 2019 [Guidance Note Blocking Statute], section 1.1.
55 EU Blocking Regulation (n 28), Preamble.
56 Stefan Brocza, ‘The EU Legal Protection System against the Effects of Extra-territorial Application of Legislation Adopted by a Third Country, and Actions Based Thereon or Resulting Therefrom’ (2019) 9 KLRI Journal of Law and Legislation 145, page 158.
57 Guidance Note Blocking Statute (n 54), section 1.4. See also: European Commission, ‘The Blocking Statute: protecting EU operators, reinforcing European strategic autonomy’, <https://ec.europa.eu/fpi/what-we-do/blocking-statute_en> accessed 9 October 2019 [Statement European Commission on the Blocking Statute]. See moreover: EU Blocking Regulation (n 28), article 4.
58 Guidance Note Blocking Statute (n 54), section 1.4. 59 Ibid.
3.1.3 Secondly, the Regulation “allows EU operators to request an authorization to comply with the listed extra-territorial legislation, if not doing so would cause serious harm to their interests or the interests of the EU” (article 5(2)).60 This article is a follow-up on article 5(1) of the Regulation, which prohibits compliance, actively or by deliberate omission, by EU operators with any requirement or prohibition based on or resulting from the listed extra-territorial legislation.61 On this note, article 9 of the Regulation is also of importance, which provides that each Member State of the EU shall determine the penalties to be imposed in the event of a breach of any relevant provision of the Regulation by an EU operator.62 This implies that the national authorities of the EU Member States are obliged to apply and implement the Blocking Regulation and ensure full compliance by imposing penalties on non-compliance.63
3.1.4 Thirdly, the Regulation “allows EU operators to recover damages arising from the application of the listed extra-territorial legislation from the natural or legal persons or entities causing them” (article 6).64 This provision legally empowers EU operators to seek compensation for the losses they have suffered as a result of the application of the Helms-Burton Act and is also referred to as the “claw back provision”.65 On the basis of this provision, legal costs could for example be recovered by means of “seizure and sale of assets held by [the relevant US person or entity] within the Community, including shares held in a legal person incorporated within the Community.”66
3.2 Catch 22: the complicating effects of the EU Blocking Regulation
3.2.1 Since important provisions, including Title III, of the Helms-Burton Act were waived in 1996, the EU Blocking Regulation did not get much attention and was not modified much, especially in regards to its content, since the time it was drafted. As noted by De Ruyt, the
60 Ibid. See also: EU Blocking Regulation (n 28), article 5(2). 61 EU Blocking Regulation (n 28), article 5(1).
62 EU Blocking Regulation (n 28), article 9.
63 Guidance Note Blocking Statute (n 54), section 1.4.
64 Ibid. See also: Statement European Commission on the Blocking Statute (n 57). See moreover: EU Blocking Regulation (n 28), article 6.
65 Guidance Note Blocking Statute (n 54), section 1.4. 66 EU Blocking Regulation (n 28), article 6(4).
fact that the Regulation has never really been used much, forms its core weaknesses.67 This changed to a certain extent in May 2018 when the US announced the reintroduction of extra-territorial sanctions legislation against Iran. Because of this, the European Commission amended the annex to the Blocking Regulation by including the US-Iran sanctions legislation. Although the working of the Blocking Regulation was already criticized in earlier years, this event led to more attention to the debate as the complicating effects became clearer in practice. On this basis, this paper will regard the recent opinions in literature on the EU Blocking Regulation in respect of the protection of EU operators in Iran therefore also of importance.
3.2.2 To describe and analyze the complicating effects of the EU Blocking Regulation, this chapter will set out the problems that follow from each of the provisions mentioned in section 3.1 which are supposed to provide for protection, namely article 4, 5 and 6 of the Regulation.
Article 4 of the EU Blocking Regulation
3.2.3 Firstly, as regards to article 4 of the EU Blocking Regulation, it can be argued that although this provision does, in theory, lead to protection of EU operators against the European execution of a US conviction, such an execution in practice would most likely in many EU Member States already fail on other grounds, as argued by Van der Aa and Stax. 68 They note that in respect of the execution of foreign criminal judgments, it is common in the EU that this is only possible when the breached foreign norm also leads to a punishment in the country where the execution is sought.69 In the Netherlands, this condition is laid down in article 3(1)(d) of the Enforcement of Criminal Judgments (Transfer) Act, which states that a sanction imposed in a third state, can only be executed in the Netherlands when the perpetrator, in case of a conviction, would also be punishable according to Dutch law.70 Besides this, article 3(1)(b) of this Act states that the sanction cannot consist of the payment of legal costs or a conviction of compensation to the injured party.71 It follows therefore
67 Jean De Ruyt, ‘American Sanctions and European Sovereignty’ (2019) 54 European Policy Brief, page 2.
68 Neyah Van der Aa & Seppe Stax, ‘Amerikaanse sancties op Iran en de Europese blokkeringsverordening: Europese ondernemingen in een lastige spagaat’ (2019) Nederlands Tijdschrift Voor Europees Recht 71, page 74.
69 Id., footnote 26.
70 Ibid. See also: Wet overdracht tenuitvoerlegging strafvonnissen (WOTS), Stb. 1986, 593 (1986) (NL), article 3(1)(d). 71 Id., article 3(1)(b).
from these provisions that a US conviction for compensation on the basis of Title III of the Helms-Burton Act, is not executable in the Netherlands according to its national law.
3.2.4 So, although it can be argued that article 4 of the EU Blocking Regulation does ensure that the European execution of a US conviction based on Title III of the Helms-Burton Act is not possible, it is clear that this protection is not all that far reaching or relevant as in most EU Member States, such an execution would already fail on other grounds.
Article 5 of the EU Blocking Regulation
3.2.5 Article 5 is considered to be the most important article of the Regulation but also the most complicating one for EU operators. Article 5(1), which prohibits EU operators from complying with decisions following from Helms-Burton Title III, basically states that European companies cannot terminate their trade with- or investment in Cuba because of the threat of US sanctions. When an EU operator does terminate or reject Cuba-related trade or investment on that basis, that operator will be in breach of article 5(1) of the EU Blocking Regulation. In such a situation, that EU operator will, on the basis of article 9 of the Regulation, risk that sanctions will be imposed against it by its own Member State.
3.2.6 A Dutch person or company, in such a situation, will be at risk of being convicted of a criminal offence. The Dutch law implementing the Blocking Regulation namely determines that article 5(1) of the Regulation will be inserted into the Dutch Economic Offences Act.72 Consequently, article 1(2) of the Dutch Economic Offenses Act states that economic offenses are infringements of regulations set by or pursuant to article 5(1) of the EU Blocking Regulation.73 Article 2(1) of that Act determines that economic offenses, like the aforementioned infringements of the EU Blocking Regulation, are criminal offenses when committed intentionally.74 Article 6(1)(2) then stipulates that a person or company committing such an economic offence will, in the case of a criminal offence, be punished with an imprisonment of maximum 2 years, community service or a fine of the fourth category.75
72 Wet uitvoering antiboycotverordening, Stb. 1999, 34 (1998) (NL), article 2. 73 Wet op de economische delicten (WED), Stb. 1950, 258 (1950) (NL), article 1(2). 74 Id., article 2(1).
3.2.7 It is clear that under the Blocking Regulation, EU operators will be in violation of their own national laws when complying with a US court order based on the Helms-Burton Act. On the other hand, not complying with such a US decision may result in US courts imposing further sanctions in the form of for example the seizure of their assets in the US for compensation; denying that EU operator access to the American market; or denying that operator to make use of US dollar transactions.76 Such limitations could harm European entities to a great extent. Most international transactions are namely performed in dollars, involving US banks, which are not allowed to finance transactions that conflict with US sanctions laws.77 Losing the opportunity to make use of this system is something that many companies are not willing to risk.
3.2.8 The EU Blocking Regulation therefore does not seem to be an effective mechanism to counteract the sanctions under Title III. It only seems to complicate matters for EU operators. The Regulation places European persons and entities that also have assets in the US – which is often the case with multinational companies – between a rock and a hard place: adhering to US sanctions, but with the risk of being convicted by its own Member State or adhering to the EU Blocking Regulation, but then risking the enforcement of further US sanctions or measures by the Office of Foreign Assets Control of the US (OFAC).78 3.2.9 Access to and good relationships with the US market is of great importance for many
multinational companies. On that basis, companies are more willing to withdraw from the Cuban market, and accept the risk of incurring fines in the EU than loose its access to the American market.79 This is also grounded in the fact that the Blocking Regulation has had a
76 Brocza (n 56), pages 183-184.
77 Bas Knoop & Jeroen Piersma, ‘Antisanctiewet brengt Europese bedrijven niets’ Het Financiële Dagblad (25 Mei 2018) <https://fd.nl/economie-politiek/1255212/anti-sanctie-wet-brengt-europese-bedrijven-niets> accessed 7 November 2019.
78 ‘About: Office of Foreign Assets Control’ (U.S. Department of the Treasury)
<https://www.treasury.gov/about/organizational-structure/offices/pages/office-of-foreign-assets-control.aspx> accessed 22 October 2019. According to this website, the OFAC “administers and enforces economic sanctions and trade sanctions based on US foreign policy and national security goals”.
reputation of weaker enforcement compared to US sanctions.80 It must be noted however, that this reputation is chancing these days. Most notably because the Blocking Regulation is applied more and more by EU courts due to the increase in extraterritorial sanctions by the US and the applicability of the Regulation.81
3.2.10 An example of a recent case showing a strong enforcement and a strict application of the EU Blocking Regulation is PAM v. Exact. In this case, the District Court of The Hague in the Netherlands ruled that Exact, a Dutch software supplying company, is under an obligation of compliance as to its contract concluded with PAM.82 This means that Exact must continue to supply to a company which in turn supplies that software in Cuba.83 The reason why Exact terminated the contract is because of the transfer of ownership of Exact to an American investment company, causing the US sanctions legislation in respect of Cuba to become now besides secondarily, also primarily applicable to Exact.84 The Dutch Court ruled that this situation is a risk that Exact has to bear, which cannot be passed onto PAM, and that it cannot justify the termination of the contract by force majeure.85 The fact that Exact will consequently be exposed to US sanctions does not change the situation according to the Court.86 The Court furthermore noted that it is possible that Exact is in breach of the EU Blocking Regulation by giving effect to the Helms-Burton Act.87 Following this decision, Dutch authorities have started an investigation as regards to this breach.88
3.2.11 While enforcement of the Blocking Regulation, and therefore jurisprudence on the matter, is still in its early stages, it can be concluded that the aforementioned Dutch case focuses on whether the termination of the contract was based on the threat of US sanctions, hinting at a
80 Sahra Arif, ‘The EU Blocking Regulation and its impact on European companies’ (Kneppelhout Korthals Advocaten, 8 October 2019)
<https://www.kneppelhout.nl/actueel/the-eu-blocking-regulation-and-its-impact-on-european-companies> accessed 5 December 2019. 81 Ibid.
82 Rechtbank Den Haag 25 Juni 2019, ECLI:NL:RBDHA:2019:6301 (NL), para 4.11. 83 Id., para 2.3.
84 Id., para 2.2 and 2.9. 85 Id., para 4.10. 86 Ibid.
87 Ibid.
88 Marc Padberd & Sahra Arif, ‘Navigating between U.S. secondary sanctions and the EU Blocking Regulation’ (Kneppelhout Korthals Advocaten, 24 October 2019) <https://www.kneppelhout.nl/actueel/navigating-between-u-s-secondary-sanctions-and-the-eu-blocking-regulation#_ftn3> accessed 5 December 2019.
strict application of the Regulation, as noted by Padberg and Arif.89 In contrast to this, however, two German cases concerning the EU Blocking Regulation in respect of the US-Iran sanctions, follow a reasoning where the focus is more on the commercial consequences and impact of the US sanctions on the EU operators in question, therefore suggesting a more lenient application of the Regulation and less stringent enforcement.90 From these practices, it appears that EU Member States are not applying the Regulation in a consistent way.91 Considering that Member States are free to set their own penalties for violation of the Regulation, there appears to be a risk that EU operators may be treated differently under the Blocking Regulation depending on where their businesses are incorporated within the EU, as noted by Padberg and Arif.92
3.2.12 As regards to article 5(2) of the Blocking Regulation, it can also be concluded that this provision complicates matters for EU operators.93 A person or company will probably want to initiate a request for authorization to comply with a decision based on Helms-Burton Title III when it finds itself in a situation of conflicting obligations. However, the question then becomes one of whether the conflict is severe enough to accept the request. 94 Van der Aa and Stax argue that when such a request is denied, the entity in question has consequently adversely put itself on the radar of European authorities, without a solution that has been provided.95
Article 6 of the EU Blocking Regulation
3.2.13 In regards to article 6 of the EU Blocking Regulation, it seems quite tangible that a claim of damages can be made against a US national by an EU operator. Van der Aa and Stax however note that in a concrete instance it is likely that some troubles will be encountered with respect to for example jurisdiction, causality and execution.96 Besides this, van der Aa
89 Ibid.
90 Zivilkammer LG Hamburg 18, 15 October 2018, 318 O 330/18 (DE). And: Zivilkammer LG Hamburg 19, 28 November 2018, 319 O 265/18 (DE). As noted in: Ibid.
91 Padberg & Arif (n 88). 92 Ibid.
93 Van der Aa & Stax (n 68), page 75. 94 Ibid.
95 Ibid. 96 Ibid.
and Stax rightly argue that when the damage is done by an American government agency, for example in the case of asset seizure, denied licenses or denied visas as sanctions following non-compliance with the US decision made on the basis of Helms-Burton Title III, there will be the problem of state immunity.97 Article 6 therefore seems to be a somewhat optimistic provision, with unrealistic expectations.
3.3 Concluding remarks and advisory note
3.3.1 From the foregoing considerations, it can be concluded that while on paper the EU Blocking Regulation strives to protect EU operators against the effects of the extra-territorial application of Title III of the Helms-Burton Act, the opposite seems to be true in practice, due to the complicating effects that follow from it. The fact that the Regulation has not been used or modified much since the time it was drafted forms one of its core weaknesses.98 This is because meanwhile, connections between European multinationals and the US market, and especially with regard to the US financial system, have grown much wider as compared to the situation in 1996, which is something the Regulation does not take into account.99 3.3.2 While several EU operators have been sued in the US on the basis of Title III and the
Blocking Regulation has been hinted at, there is no practical use of it yet as no final US judgment has been rendered under Title III so far. Regarding breaches of the Regulation, the investigation of Exact is still ongoing. Because of this, it can be concluded that only time will tell what the practical outcome of the Blocking Regulation will be in respect to these sanctions. Opinions and literature referred to above in relation to the protection of EU operators in Iran however give a clear indication.
3.3.3 Especially article 5(1) of the Regulation puts EU operators in a difficult position, leading to an unsolvable Catch-22, as they “may have to abide by two sets of legislation which are outright contradictory”, as stated by Lefeber.100 Additionally, he adds that the Regulation thus puts law-abiding citizens in a lose-lose situation.101 It can therefore be concluded that
97 Ibid.
98 De Ruyt (n 67).
99 Brocza (n 56), page 183.
100 René Lefeber ‘Frontiers of International Law: Counteracting the Exercise of Extraterritorial Jurisdiction’ (2004) 10 Leiden Journal of International Law 1, page 2.
instead of providing EU operators protection in respect to trade and investment in Cuba, the Regulation is working counterproductive. It rather harms those operators and makes doing business in Cuba more difficult. The risk of a Catch-22 situation leads to the fact that companies are actually less willing to do business on the island.102
3.3.4 As for the need to reconsider the Regulation, Knoop and Piersma refer to Van der Aa, who argues that the solution for the problem does not lie in the Regulation itself but in diplomacy, meaning reconsideration is not necessarily needed.103 It can thus be argued that the Blocking Regulation is only useful as a political pressure medium in negotiations with the US, similar to 1996.
3.3.5 This paper however suggests, to the contrary, that a reconsideration of the Blocking Regulation is needed so EU operators can partially be relieved from the burden created by the current Regulation. While a Catch-22 situation can hardly be solved as contradictory legislation is something which is inherent when giving resistance to secondary sanctions, this paper maintains that it is important that at the very least, a consistent application of the Regulation is ensured within the EU.
3.3.6 While enforcement of the Regulation and thus jurisprudence on the matter is still in its early stages, it appears that EU Member States are not applying and interpreting the Regulation in a consistent way.104 Taking the fact into account that Member States are free to set their own penalties for violation of the Regulation, there appears to be a clear risk that EU operators are treated differently under the Regulation depending on where their businesses are incorporated within the EU. 105
3.3.7 As noted before, the Regulation seems to be interpreted and applied strictly in the Netherlands. Moreover, its national law formulates severe consequences in case of a breach, with a risk of being convicted of a criminal offense. In contrast to this, as noted before, German Courts seem to interpret and apply the Regulation in a more lenient way. Besides this, the consequences in case of a breach of the Regulation also seem to be less severe for
102 Van der Aa & Stax (n 68), page 78. 103 Knoop & Piersma (n 77).
104 Padberg & Arif (n 88). 105 Ibid.
German operators. Under German law, a breach of article 5(1) of the Regulation is considered to be an administrative offence106, and while a fine can reach high numbers, there is no risk of imprisonment.
3.3.8 The aforementioned considerations show that there is thus a clear risk under the Blocking Regulation that EU operators from one Member State will be treated less favorably compared to EU operators from another Member State. This paper therefore suggests that there a need to reconsider the Blocking Regulation by way of ensuring uniform interpretation and considering uniform penalties for breaches of the Regulation. This way, enforcement of these penalties against EU operators not complying with the Regulation is better secured. Besides this, it will guarantee unity among EU Member States in their response to US secondary sanctions. This united resistance against secondary sanctions is an important factor to ensure. Differences within the EU will namely weaken its chance in negotiations with the US, as noted by the European Council on Foreign Relations (ECFR).107 These differences and lack of enforcement also create a credibility problem. As the ECFR has confirmed through interviews, EU Member States are perceived by the US as not adequately enforcing their own sanctions.108 The ECFR notes that without tackling this problem, “the EU will not be able to address the challenge of secondary sanctions”.109 Enforcement of penalties on EU operators however lies in the hands of each EU Member State itself, according to EU law. To ensure a better and united enforcement on this matter, the ECFR suggests that it might be an idea for Member States to authorize the European Commission to help and “improve coordination between national authorities”.110
4. Protecting EU operators in Cuba though initiation of WTO proceedings against the US This chapter will analyze whether EU operators doing business in Cuba can be adequately
protected against enforcement of Title III of the Helms-Burton Act through the initiation of WTO proceedings against the US. More specifically, this chapter will investigate whether it
106 Außenwirtschaftsverordnung (AWV), BGBI. I S. 2865 (2013) (DE), section 82(4).
107 Ellie Geranmayeh & Manuel Lafont Rapnouil, ‘Meeting the Challenge of Secondary Sanctions’ (European Council
on Foreign Relations, 25 June 2019)
<https://www.ecfr.eu/publications/summary/meeting_the_challenge_of_secondary_sanctions> accessed 12 December 2019.
108 Ibid. 109 Ibid. 110 Ibid.
is likely that the US sanctions under Helms-Burton Title III will be found to be in violation of WTO law and, if so, whether such sanctions can be justified by the WTO national security exception, in light of the recent Panel Report in Russia –Traffic in transit. Moreover, this chapter will look into the question of whether the WTO Dispute Settlement Body (DSB) has jurisdiction to review unilateral sanctions employed on the basis of the national security exception.
4.1 Whether Title III of the Helms-Burton act violates WTO law
4.1.1 The EU responded in 1996 to the enactment of the Helms-Burton Act by starting a WTO procedure on the grounds of, amongst others, an objection to Title III of the Act, alleging a breach of the GATT and the GATS.111 Compared to the other complaints brought forward by the EU, it is safe to say that the objection to Title III in relation to WTO law has been the most controversial.
4.1.2 While scholars generally agree on the extra-territorial intrusiveness of Title III of the Helms-Burton Act, there are divergent opinions in regards to the assertion that Title III violates WTO law. On this note, Trachtman for example stipulates that while Title III “may certainly be argued to be ‘extraterritorial’, WTO law does not proscribe extraterritoriality per se” and that it is therefore not a clear-cut case what grounds for attack exist under WTO law.112 Before this paper will conclude on whether it is likely that US sanctions on the basis of Helms-Burton Title III will be found to be in violation of WTO law by a Panel, this chapter will first set out the main arguments maintaining why Title III is in violation of WTO law (position of the EU) and why Title III is not in violation of WTO law (position of the US).
Position of the EU: Why Title III Helms-Burton is in violation of WTO law
4.1.3 From the Panel request by the EU in 1996, it follows that the EU maintains that the creation of a right of action under Title III of the Act is inconsistent with articles II, III, VI, XVI, XVII113 and XXIII114 of the GATS and moreover with article XXIII of the GATT.115 To
111 US – Helms-Burton Act, Request for a Panel by the EC (n 30), point (e).
112 Joel Trachtman, ‘Regulatory jurisdiction and the WTO’ in William Davey & John Jackson (eds), The Future of
International Economic Law (Oxford University Press 2008), page 200.
further investigate these assertions by the EU, this chapter will explain and analyze each of these provisions in relation to Title III of the Helms-Burton Act.
4.1.4 The GATS is a trade agreement for the service sector and “applies to measures by Members affecting trade in services”.116 The term “trade in services” within the meaning of this agreement applies to a diverse range of international transactions and covers trade in goods and the international movement of capital (particularly investments) and people, as noted by Sauvé.117 Title III of the Helms-Burton Act therefore appears to fall within the scope of the GATS as it constitutes a measure by the US affecting trade in services, particularly investments. More specifically, Title III affects service suppliers, as they are liable for compensation claims under Title III of the Act.
4.1.5 Article II of the GATS regulates the most-favored-nation treatment (MFN-treatment).118 On the basis of this provision, it can be argued that the US, by means of Title III of the Helms-Burton Act, does not accord to service suppliers of the EU, that are also conducting business in Cuba, treatment no less favorable than that it accords to like service suppliers of the EU, having no ties to Cuba. It can therefore be argued that Title III discriminates against such EU operators as they are likely to be trafficking in confiscated property and consequently exposed to compensation claims and possible further US sanctions, causing injurious economic effects and therefore withholding them from competing on a level playing field with operators that do not hold ties to Cuba, as noted by Yoo.119
4.1.6 Article III of the GATS imposes an obligation of transparency on WTO Members.120 This obligation requires Members to publish promptly all relevant measures of general
114 Id., point (viii).
115 Id., points (vi) and (vii).
116 General Agreement on Trade in Services (1994), Marrakesh Agreement Establishing the World Trade Organization [GATS], article I(1).
117 Pierre Sauvé, ‘Assessing the General Agreement on Trade in Services – Half-Full or Half-Empty?’ (1995) 29 Journal of World Trade 125, page 125.
118 GATS (n 116), article II.
119 John Yoo, ‘Federal Courts as Weapons of Foreign Policy’ (1997) 20 Hastings International and Comparative Law Review 747, page 759.
application that pertain to or affect the operation of the GATS,121 and to inform annually the Council for Trade in Services of the introduction of any new laws, or changes to existing laws, that significantly affect trade in services.122 On the basis of this provision, it can be argued that the US has breached its obligation of transparency by activating Title III of the Helms-Burton Act without adhering to its obligations under Article III of the GATS.
4.1.7 Article VI of the GATS concerns obligations as regards to domestic regulation.123 It can be argued that the US infringes this provision as Title III of the Helms-Burton Act can hardly be considered to be administered in a “reasonable” manner due to its extra-territorial reach and consequences for third state nationals, while its goal is to hold Cuba accountable for the seizure of American assets.124
4.1.8 Article XVI of the GATS concerns market access commitments.125 The US has made commitments in respect of market access in relation to several service sectors, in particular with regards to the movement of service suppliers. While it can be agued that Title IV of the Helms-Burton Act, relating to the exclusion of persons from the US, violates this provision of the GATS, Title III appears to be more difficult to argue. It can however be asserted that when an EU operator is faced with a compensation claim under Title III of the Act and it does not comply, there is a probable risk that it will be subject to further sanctions in the form of for example restrictions of access to the US market.
4.1.9. Article XVII of the GATS lays down the national treatment obligation.126 According to paragraph 3 of this article, treatment shall only be considered to be less favorable if it modifies the conditions of competition in favor of services or service suppliers of the Member compared to like services or service suppliers of any other Member.127 In China –
Publications and Audiovisual Products, the Panel laid out the elements a claim under article
121 Id., article III(1). 122 Id., article III(3). 123 Id., article VI.
124 Id., article VI(1). As noted in: Pompeo (n 36). 125 GATS (n 116), article XVI.
126 Id., article XVII. 127 Id., article XVII(3).
XVII needs to possess.128 When determined that: the services of the EU operator in question are inscribed in the US’ schedule of commitments; there are no relevant conditions or qualifications in respect of the US’ national treatment commitments in respect to those services; Title III affects the supply of these services; and when determined that Title III accords less favorable treatment to such an EU operator in comparison with like domestic (US) service suppliers, it can be concluded that the US is in violation of its national treatment obligation under the GATS.129
4.1.10 Article XXIII:3 of the GATS concerns nullification or impairment of a specific commitment undertaken by a Member.130 This means a specific commitment in relation to market access or national treatment. The EU has noted in its request for a Panel in 1996 that even if Title III is found not to be in conflict with any of the provisions of the GATS, Title III still nullifies or impairs “benefits which the EC could reasonably expect to have accrued to it under the specific commitments of the US and Cuba under GATS”.131 These benefits are according to the EU:132
Trade in services between the EC and the US and between the EC and Cuba, unhindered by the interruption of financial services, the threat of seizure of assets for the purposes of satisfying compensation claims in respect of “trafficking” and by the harassment of its citizens through the denial of visas and exclusion from the US (or the threat thereof).
4.1.11 It can be argued that the foregoing, following from the application of Title III, is indeed a nullification or impairment of reasonably expected benefits under the specific commitments of the US and Cuba. More specifically, of the benefits of progressive liberalization of trade and investment in services, as noted by Sauvé.133
128 WTO Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications
and Audiovisual Entertainment Products (1997) WT/DS363/R, para. 7.944. 129 Ibid.
130 GATS (n 116), article XXIII:3.
131 US – Helms-Burton Act, Request for a Panel by the EC (n 30), point (viii). 132 Ibid.
4.1.12 Article XXIII of the GATT also concerns nullification or impairment, but then regarding benefits accruing to a Member under the GATT.134 This article is the only GATT article the EU asserted in 1996 to be breached in relation to Title III of the Helms-Burton Act. The benefits under the GATT the EU believed to be impaired relate to unrestricted trade, without being subject to unwarranted legal action.135 The EU moreover asserted that Title III impedes the attainment of certain general objectives of the GATT, like the expansion of trade, the balance of rights and obligations between WTO Members (like the right of access to markets) and the principle that WTO Members should not try to force other Members to chance their sovereign policies through trade sanctions.136
Position of the US: Why Title III Helms-Burton is not in violation of WTO law
4.1.13 In academic literature, Title III’s conformity with GATT and GATS has most extensively been advocated by Clagett, a senior American lawyer. Instead of a violation of international law, he sees Title III as a representation of “a progressive development in international law” as noted by Fidler.137 Clagett believes that the EU mischaracterizes Title III “as a restraint on trade rather than an imposition of private civil liability for knowingly and intentionally receiving or dealing in tainted property”.138
4.1.14 Spanogle, professor of law in Washington D.C., also believes that the EU does not have a valid complaint when seeking relief from Title III on the basis of WTO law.139 In relation to the GATS, Spanogle is of the opinion that there is no cause for complaint, as Title III does not apply to trade in services in the sense of providing cross-border services into the territory
134 General Agreement on Tariffs and Trade (1994), Marrakesh Agreement Establishing the World Trade Organization [GATT], article XXIII.
135 US – Helms-Burton Act, Request for a Panel by the EC (n 30), point (vi). 136 Id., point (vii).
137 David Fidler, ‘LIBERTAD v Liberalism: an analysis of the Helms-Burton Act from within liberal international relations theory’ (1997) 2 Indiana Journal of Global Legal Studies 297, page 236.
138 Brice Clagett. ‘The controversy over Title III of the Helms-Burton Act: Who is breaking international law – The United States, or the States that have made themselves co-conspirators with Cuba in its unlawful confiscations?’ (1996) 30 George Washington Journal of International Law and Economics 271, page 301.
139 John Spanogle, ‘Can Helms-Burton be Challenged under WTO?’ (1998) XXVII Stetson Law Review 1313, page 1316.
