Uncle Sam sticks his nose

On February 3, 2006, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, enforced an American statute in Mexican territory forcing Mexico City’s Sheraton Hotel, a Mexican company and subsidiary of a U.S. corporation (Starwood Hotels and Resorts Worldwide, Inc.), to expel a group of Cuban citizens out of the premises of the said hotel. The group of Cubans was staying at the hotel attending business meetings with executives of American companies. (1)

The OFAC administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. (2)

The abovementioned episode was an extraterritorial application of “The Cuban Liberty and Democratic Solidarity Act” -also known as the Helms-Burton Act-. The Act was primarily designed by the U.S. Congress to inhibit foreign countries and U.S. corporations (or their subsidiaries based in third countries), from doing business in or with Cuba.

In fact, the Act expressly urges the President to encourage foreign countries to restrict trade and credit relations with Cuba.

The extraterritorial application of the Helms-Burton Act, had a major impact in Mexico’s political setting and raised the question: How far is the U.S. willing to go with the extraterritorial application of its public policy in order to pursue their international purposes?

As the Helms-Burton Act establishes, it was enacted in 1996 “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”. (3)

In “Section. 2. Findings” of the Act, the American Congress listed some events that made the Cuban economy decline of at least 60 percent, as of 1996, being the first one in the list the end of Cuban subsidization by the former Soviet Union and 36 years of communist tyranny and economic mismanagement by the Castro Government.

Despite the problem that there is a clear absence of democracy in Cuba, which is not the main stream of this opinion, what I find questionable is the set of reasons or findings of the American Congress to enact and enforce the Statute. Section 2 of the Act addresses that “…(9) The United States has shown deep commitment, and considers it a moral obligation, to promote an protect human rights and fundamental freedoms…”.

On the other hand, the fact that the OFAC is enforcing U.S. laws abroad should not pass unnoticed by the international community, almost every country in the world has an American corporation (or subsidiary) within the limits of its territory, consequentially, they are a potential target for the OFAC’s arbitrary procedures.

Although the Helms-Burton Act has been criticized internationally since its enactment, the only countries that had designed specific countermeasures against its application has been ironically Mexico -Commerce and Investment Protection Act from Extraterritorial Enforcement of Foreign Law- and Canada -Foreign Extraterritorial Measures Act-.

I insist, “the ends doesn’t justify the means” the fact that the U.S. “moral obligation” to promote and protect human rights could be a reasonable cause, doesn’t give them “carte blanche” to run over foreign legal systems arbitrarily enforcing their public policy.

The extraterritorial application of the law must obey international treaties; diplomatic and judiciary channels are the obvious outset to interpret and resolve controversies between nations, we must condemn the unilateral decision of the Department of the Treasury of applying U.S. laws abroad.

The expansion of American freedom and form of democracy has struck the international scenario for decades in many ways, some reprehensible, some not; perhaps divine inspiration, moral obligation or the idea of “manifest destiny” is still shaping the decisions and measures of the OFAC’s officers, is it? Is just a question.

(1) Commercial activity with Cuba is forbidden for U.S. citizens and firms.
(2) http://www.ustreas.gov/offices/enforcement/ofac/mission
(3) Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, (Codified in Title 22, Sections 6021-6091 of the U.S. Code) P.L. 104-114, One Hundred Fourth Congress of the United States of America.