Opinion: A nation of laws — just not international law

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Palli column headBy Jose Manuel Pallí, Esq.

In high school, in Buenos Aires, I had to study Latin at the British school I attended. To make it worse, I had to study Latin in English, even though Argentina speaks Spanish, which is more amenable to Latin than English could ever be. Back then, there was one single reason why I envied my cousins who lived and studied in the USA: they could choose the courses they took in high school, while I was stuck with Latin in a school system where there were no elective courses.

Same thing happened in law school. The five-year law school curriculum I had to follow in Argentina was the same for every student. When I opted to become a lawyer in Florida, my studies at University of Miami Law School were pretty flexible. You could become a lawyer here without ever sitting through an International Public Law class, or even for a Conflicts of Law one (there was no International Private Law course available that I can remember).

So it has never surprised me that most U.S. lawyers have such a rudimentary knowledge of international law, if they have any understanding of it at all. Besides, many Americans perceive international laws and tribunals (unless we run them) as an unwarranted imposition on our “superior” legal system, the vaunted rule of law we are so proud of. And even if we claim to be a nation of laws, one thing seems clear: we neither understand nor see the need to subject ourselves to international law. And that may well be the reason why a “law” like the Helms-Burton Act, specially its Titles III and IV, is not more often properly described as what it is: a delusional exercise in jurisdictional overreach.

And it also explains why some of my colleagues in South Florida are, yet again, getting ready for a litigation fest over Cuban claims. The Helms-Burton Act, passed by the U.S. Congress in 1996, is a restriction upon the president’s constitutionally bestowed power to conduct the foreign policy of the United States. At the same time, this “law” purports to “help” the president implement our now immutable — without the acquiescence of Congress — hostile “policy” towards Cuba by resorting to the third branch of our much celebrated “separation of powers”: the judiciary. This is, in and of itself, an aberration that only shows the utter contempt the bearers of the U.S. political-institutional system feel towards relations with countries in what they consider their “backyard” — a contempt born out of the absolute ignorance and disinterest of the American people with regard to the southern part of our western hemisphere, a disinterest their “representatives” share, except when they smell any kind of electoral advantages.

Helms-Burton was a bill headed nowhere long before it became a “law”. It was introduced at the House of Representatives in early 1995, and then-Secretary of State Warren Christopher told its sponsors it would be vetoed by President Bill Clinton if Congress ever passed it. It became “law” only because of an ill-advised tantrum from the Cuban government: the shooting down of a couple of unarmed U.S. civilian airplanes which had repeatedly violated Cuban airspace under what the Cuban side saw as U.S. indifference. Our response to the murder of the U.S. crew members was also a tantrum: the signing into law of the Helms-Burton Act by President Clinton (although its most extravagant provisions, Titles III & IV, would remain frozen for more than 23 tears).

Sure, since Titles III and IV of the Helms-Burton Act were enabled May 2 last year, we have seen a number of claims filed against foreign and even U.S. companies that we deem to be “trafficking” assets seized by the Cuban revolution from its own nationals 60 years back, when the owners of those assets were American only in the rightful meaning of that word: they were citizens of the western hemisphere.

We have even seen a couple of Florida U.S. District courts give some level of credibility to such claims, by rejecting the defendants’ motions to dismiss. But the fact remains that the absence of any legal precedents in this type of litigation and the many other obstacles — jurisdictional, constitutional, evidentiary — for prevailing and collecting on them must be giving the contingency fee committees in many law firms plenty of second thoughts.

The fact I have been a lawyer in two different countries, Argentina and the United States, with two very different legal systems by no means makes me an “international lawyer” or an expert in international law. But the fact I did not get to choose what law courses I took and which ones I skipped while studying law in Argentina does give me an advantage over quite a few of my U.S. colleagues. Since I took my first course in Public International Law in Argentina I have been aware that it is in this particular field that all nations’ jurisdictional powers are grounded.

It is precisely Public International Law that makes “laws” like Helms-Burton a laughable attempt to exert extra-territorial jurisdiction in order to achieve policy goals which are not even foreign policy goals, but rather domestic and electoral in nature.

That is not to say that a bully nation like ours cannot simply ignore the constraints of Public International Law. We have done it in the past, and we will do it in the future. “Get over it”, a member of our pack of “stable geniuses” might tell you. What gives Helms-Burton and the cast of characters surrounding its revival these days a kind of quaint feeling is the fact that Cuba has overcome half a century of exactly the same kind of measures recently announced as the “new” policy aimed at subverting the Cuban government.

By now, I assume, we are all used to the present “administration’s” lack of any kind of foreign policy ideas beyond sending our dim-witted president to one-on-one meetings with other world “leaders”. To many of his followers (too many) Trump is the incarnation of Isaiah’s prophecy about our great nation: “A little child shall lead them”.

You can ask for no better proof that Cuba is not seen as a foreign policy issue by anyone in the White House than the absence of any attempt by our tremendous president to sit down for a Cuba Libre chat with Raúl Castro. The Cuban comandante must be the only autocrat Mr. Trump has yet to meet and love. What we got in this case was a speech last April from a cheerleading guy (one Mr. Bolton) who is a relic from the past and sneers when he tells a bunch of doddering relics from the Cold War era exactly what that audience wanted to hear (and dreaded, at the same time): we will be as tough against Cuba as this country has ever been in the past, by allowing fewer remittances, less non-family travel, and hollering “Down with Castro” even louder, even if this leads us to 60 more years of status quo ante (my Latin courses did pay off, after all).

But how much domestic and electoral clout can the hardliners in the Cuban-American community in South Florida still wield when the long time gone by has erased the lyrics of the Cuban national anthem from the foggy minds of many of those Cubans in attendance at the Helms-Burton revival last April at the Biltmore Hotel in Coral Gables. Still, consolation may be found in knowing that, just as with regard to Maduro’s Venezuela, everything is on the table when it comes to ridding Cuba of “communism”, including a Big Mac and a milk shake, just in case.

José Manuel Palli is a Cuban-born lawyer, originally trained as such in Argentina and a member of the Florida Bar since 1985

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