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something many DU'ers know. The embargo against which the General Assembly votes a condemnation yearly is the U.S. embargo on Cuba. There are complex extraterritorial effects you don't seem to grasp. Maybe this will help you a little, but I doubt it:
DEALING WITH U.S. EXTRATERRITORIAL SANCTIONS AND FOREIGN COUNTERMEASURES
By
HARRY L. CLARK*
Published in
20 U. Penn. Jnl. Int'l Econ. L. 61 (1999)1. INTRODUCTION
In March 1997, a Canadian subsidiary of Wal-Mart Stores Inc. faced an increasingly common dilemma. United States authorities demanded that it comply with U.S. sanctions regulations by ending sales in Canada of clothing that is manufactured in Cuba. At the same time, Canadian authorities insisted that Wal-Mart Canada Ltd. continue to carry the Cuban-origin products or face fines of up to C$1.5 million for noncompliance with countermeasures designed to neutralize the impact of U.S. sanctions.1 The company's first response was to remove the items from its stores, but it reversed course within two weeks. After apparently deciding that the risk of liability was more severe under Canadian law, Wal-Mart Canada announced that it was restocking its shelves with Cuban-origin clothing.2 A U.S. government spokesman later stated that U.S. officials are considering whether or not to take action against Wal-Mart.3
This Article reviews U.S. extraterritorial sanctions, countermeasures established by other Jurisdictions, difficulties that arise when the two overlap and possible means of dealing with conflicting legal requirements. Section 2 outlines foremost U.S. sanctions that have an extraterritorial scope: (1) embargo regulations, particularly as they apply to U.S.-owned or controlled foreign companies and to reexports of U.S.-origin items by foreign persons; 2) recent statutes that strengthen extraterritorial sanctions against Cuba, the 1992 Cuban Democracy Act and 1996 Cuban Liberty and Democratic Solidarity (LIBERTAD) Act or "Helms-Burton Act" as it is popularly known; and 3) the 1996 Iran and Libya Sanctions Act, which mandates "secondary boycott" sanctions against foreign persons who pursue major petroleum-related investments in Iran or Libya.
Part III reviews countermeasures established by the European Union ("EU"), Canada, Mexico and others in response to extraterritorial U.S. sanctions. The principal elements of these countermeasures forbid compliance with U.S. sanctions ("blocking" provisions), prohibit recognition of judgments under U.S. sanctions and authorize recovery of damages attributable to judgments handed down under U.S. sanctions ("clawback" provisions).
Part IV describes challenges to U.S. extraterritorial sanctions under international trade agreements and related negotiations to reconcile U.S. and foreign policies. Dispute settlement initiatives have not been pursued to a decision, but negotiations have not succeeded in freeing companies from conflicting national laws. This is true notwithstanding agreements that the United States and the EU concluded in May 1998 that were intended to address EU concerns about extraterritorial sanctions and the U.S. desire for coordinated sanctions policies, particularly with respect to Cuba. Key arrangements are contingent on enactment of U.S. legislation to insulate EU persons from the Helms-Burton Act alien-exclusion provisions, and there are few prospects of such legislation passing the Congress in the foreseeable future.
Part V assesses potential legal liability and other problems for a company that, like Wal-Mart, is caught between the dictates of U.S. sanctions and foreign countermeasures.
Part VI identifies possible means of minimizing risks of difficulty for companies that might face this conundrum. Careful formulation and implementation of internal guidelines can be of substantial benefit. The first and most important step is to make informed advance decisions about how to address conflicting legal requirements rather than waiting for problems to arise.
(snip/...) http://www.dbtrade.com/publications/extra_territorial.htm
~~~~~~~~~~~~~~~~~~~~~~Cuba Report To UN On Why USA's Blockade Must End
Tuesday, 11 October 2005, 10:15 am
Press Release: Cuba Government
Report by Cuba on Resolution 59/11 of the United Nations General Assembly
“The necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba”
August 15, 2005
INTRODUCTION
The economic, commercial and financial blockade impose by the United States against Cuba is the longest-lasting and cruelest of its kind know to human history and is an essential element in the United States’ hostile and aggressive policies regarding the Cuban people. Its aim, made explicit on 6 April 1960 is the destruction of the Cuban Revolution: (…) through frustration and discouragement based on dissatisfaction and economic difficulties (…) to withhold funds and supplies to Cuba in order to cut real income thereby causing starvation, desperation and the overthrow of the government (...)”
It is equally an essential component of the policy of state terrorism against Cuba which silently, systematically, cumulatively, inhumanly, ruthlessly affects the population with no regard for age, sex, race, religious belief or social position.
This policy, implemented and added to by ten US administrations also amounts to an act of genocide under the provisions of paragraph (c) of article II of the Geneva Convention for the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and therefore constitutes a violation of International Law. This Convention defines this as ‘(…) acts perpetrated with the intention to totally or partially destroy a national, ethnic, racial or religious group’, and in these cases provides for ‘the intentional subjugation of the group to conditions that result in their total or partial physical destruction’.
The blockade on Cuba is an act of economic war. There is no regulation of International Law which justifies a blockade in times of peace. Since 1909, in the London Naval Conference, as a principle of International Law it was defined that ‘blockade is an act of war’, and based on this, its use is only possible between countries at war.
Although the total blockade on trade between Cuba and the United States was formally decreed by an Executive Order issued by President John F. Kennedy on 3 February 1962, measures that are part of the blockade were put in place just a few weeks after the triumph of the Cuban Revolution on 1 January 1959.
On 12 February 1959, the US Government refused to grant a modest credit requested by Cuba to maintain the stability of the national currency. Later, other measures were applied such as the restriction of the supply of fuel to the Island by American transnational companies, the halting of industrial factories, the prohibition of exports to Cuba and the partial, and later total, suppression of the sugar quota.
By virtue of the blockade, among other restrictions, Cuba cannot export any product to the United States, or import any merchandise from this country: American tourists are prohibited from visiting; the dollar cannot be used in the country’s transactions with foreign countries; the country has no access to the credit, and cannot carry out transactions with regional or American multilateral financial institutions and their boats and aircrafts must not enter American territory.
The blockade has a marked extraterritorial component. In 1992, with a view to intensifying the effects of Cuba’s loss of 85% of its foreign trade after the Soviet Union and the European socialist block fell apart, the United States passed the Torricelli Act, which removed Cuba’s ability to purchase medicines and food from US subsidiaries in third countries which stood at US$718 million in 1991. The Torricelli Act placed tight restrictions on ships sailing to and from Cuba, thus making formal its serious extraterritorial provisions. A ship from a third country that docks in Cuban waters cannot enter a port in the United States until 6 months have passed and said country has obtained a new permission permit.
The 1996 Helms-Burton Act made the effects of the blockade worse, increased the number and scope of the provisions with an extraterritorial impact, instituted persecution of and sanctions on actual and potential foreign investors in Cuba and authorised funding for hostile, subversive and aggressive acts against the Cuban people.
(snip/...) http://www.scoop.co.nz/stories/WO0510/S00197.htm
~~~~~~~~~~~~~~~~~~~~~~~~~
"Denial of Food and Medicine:
The Impact Of The U.S. Embargo
On The Health And Nutrition In Cuba"
-An Executive Summary-
American Association for World Health Report
Summary of Findings
March 1997After a year-long investigation, the American Association for World Health has determined that the U.S. embargo of Cuba has dramatically harmed the health and nutrition of large numbers of ordinary Cuban citizens. As documented by the attached report, it is our expert medical opinion that the U.S. embargo has caused a significant rise in suffering-and even deaths-in Cuba. For several decades the U.S. embargo has imposed significant financial burdens on the Cuban health care system. But since 1992 the number of unmet medical needs patients going without essential drugs or doctors performing medical procedures without adequate equipment-has sharply accelerated. This trend is directly linked to the fact that in 1992 the U.S. trade embargo-one of the most stringent embargoes of its kind, prohibiting the sale of food and sharply restricting the sale of medicines and medical equipment-was further tightened by the 1992 Cuban Democracy Act.
A humanitarian catastrophe has been averted only because the Cuban government has maintained a high level of budgetary support for a health care system designed to deliver primary and preventive health care to all of its citizens. Cuba still has an infant mortality rate half that of the city of Washington, D.C.. Even so, the U.S. embargo of food and the de facto embargo on medical supplies has wreaked havoc with the island's model primary health care system. The crisis has been compounded by the country's generally weak economic resources and by the loss of trade with the Soviet bloc.
Recently four factors have dangerously exacerbated the human effects of this 37-year-old trade embargo. All four factors stem from little-understood provisions of the U.S. Congress' 1992 Cuban Democracy Act (CDA):- 1. A Ban on Subsidiary Trade: Beginning in 1992, the Cuban Democracy Act imposed a ban on subsidiary trade with Cuba. This ban has severely constrained Cuba's ability to import medicines and medical supplies from third country sources. Moreover, recent corporate buyouts and mergers between major U.S. and European pharmaceutical companies have further reduced the number of companies permitted to do business with Cuba.
2. Licensing Under the Cuban Democracy Act: The U.S. Treasury and Commerce Departments are allowed in principle to license individual sales of medicines and medical supplies, ostensibly for humanitarian reasons to mitigate the embargo's impact on health care delivery. In practice, according to U.S. corporate executives, the licensing provisions are so arduous as to have had the opposite effect. As implemented, the licensing provisions actively discourage any medical commerce. The number of such licenses granted-or even applied for since 1992-is minuscule. Numerous licenses for medical equipment and medicines have been denied on the grounds that these exports "would be detrimental to U.S. foreign policy interests."
3. Shipping Since 1992:The embargo has prohibited ships from loading or unloading cargo in U.S. ports for 180 days after delivering cargo to Cuba. This provision has strongly discouraged shippers from delivering medical equipment to Cuba. Consequently shipping costs have risen dramatically and further constricted the flow of food, medicines, medical supplies and even gasoline for ambulances. From 1993 to 1996, Cuban companies spent an additional $8.7 million on shipping medical imports from Asia, Europe and South America rather than from the neighboring United States.
4. Humanitarian Aid: Charity is an inadequate alternative to free trade in medicines, medical supplies and food. Donations from U.S. non-governmental organizations and international agencies do not begin to compensate for the hardships inflicted by the embargo on the Cuban public health system. In any case, delays in licensing and other restrictions have severely discouraged charitable contributions from the U.S.
Taken together, these four factors have placed severe strains on the Cuban health system. The declining availability of food stuffs, medicines and such basic medical supplies as replacement parts for thirty-year-old X-ray machines is taking a tragic human toll. The embargo has closed so many windows that in some instances Cuban physicians have found it impossible to obtain life-saving medicines from any source, under any circumstances. Patients have died. In general, a relatively sophisticated and comprehensive public health system is being systematically stripped of essential resources. High-technology hospital wards devoted to cardiology and nephrology are particularly under siege. But so too are such basic aspects of the health system as water quality and food security. Specifically, the AAWH's team of nine medical experts identified the following health problems affected by the embargo:
1. Malnutrition: The outright ban on the sale of American foodstuffs has contributed to serious nutritional deficits, particularly among pregnant women, leading to an increase in low birth-weight babies. In addition, food shortages were linked to a devastating outbreak of neuropathy numbering in the tens of thousands. By one estimate, daily caloric intake dropped 33 percent between 1989 and 1993.
2. Water Quality: The embargo is severely restricting Cuba's access to water treatment chemicals and spare-parts for the island's water supply system. This has led to serious cutbacks in supplies of safe drinking water, which in turn has become a factor in the rising incidence of morbidity and mortality rates from water-borne diseases.
3. Medicines & Equipment: Of the 1,297 medications available in Cuba in 1991, physicians now have access to only 889 of these same medicines - and many of these are available only intermittently. Because most major new drugs are developed by U.S. pharmaceuticals, Cuban physicians have access to less than 50 percent of the new medicines available on the world market. Due to the direct or indirect effects of the embargo, the most routine medical supplies are in short supply or entirely absent from some Cuban clinics.
4. Medical Information: Though information materials have been exempt from the U.S. trade embargo since 1 988, the AAWH study concludes that in practice very little such information goes into Cuba or comes out of the island due to travel restrictions, currency regulations and shipping difficulties. Scientists and citizens of both countries suffer as a result. Paradoxically, the embargo harms some U.S. citizens by denying them access to the latest advances in Cuban medical research, including such products as Meningitis B vaccine, cheaply produced interferon and streptokinase, and an AIDS vaccine currently under-going clinical trials with human volunteers.
(snip/...) http://www.cubasolidarity.net/aawh.html
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