OAS JURIDICAL COMMITTEE SAYS PROVISIONS OF HELMS-BURTON
"NOT IN CONFORMITY WITH
INTERNATIONAL LAW"
By:
Preston Brown
Washington
Acting pursuant to a resolution of the General Assembly of the Organization of American States (the "OAS"), on August 23, 1996, the Inter-American Juridical Committee (the "Committee") of the OAS issued an advisory nonbinding opinion (CJI/SO/II/doc. 67/96 rev. 5, the "Opinion") that provisions similar to certain of those in the Helms-Burton Act were "not in conformity with international law."
At its 1996 June meeting, the General Assembly of the OAS instructed the Committee to decide on the "validity" of the Helms Burton Act under international law (Resolution AG/doc.3375/96). The Committee based its opinion on certain enunciated premises, including the following: it did not intend to interpret or pronounce on the internal legislation of member states; the term "legislation" referred to a law whose content is "similar" to that of the Helms-Burton Act; it did not deem it convenient to issue a statement on provisions covering the admission of aliens and dealings with regard to international financial institutions as it noted there were legal mechanisms for settling disputes regarding those issues; and it limited its opinion to two legal issues suggested by the legislation: the protection of the property rights of nationals and the extraterritorial effects of jurisdiction.
The Committee's conclusions on both issues were based on the extremely broad definition of "trafficking" in the legislation. For example, with respect to the first issue, the Committee stated that:
The claimant State does not have the right to attribute liability to nationals of third States for the use of appropriated property located in the territory of the expropriating State where such use conforms to the laws of this latter State, nor for the use in the territory of third States of intangible property or products that do not constitute the actual asset expropriated. Opinion 6(d).
With respect to the question of extraterritoriality, the Committee concluded that:
. . . the exercise of jurisdiction by a State over acts of "trafficking" by aliens abroad, under circumstances whereby neither the alien nor the conduct in question has any connection with its territory and there is no apparent connection between such acts and the protection of its essential sovereign interests, does not conform with international law. Opinion 9.
While the opinion is nonbinding, it could have significance in the interpretation of provisions such as Article 1105(1) of NAFTA, which provides that each NAFTA party must treat the investments of a NAFTA investor in accordance with international law.
