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Hastings International and Comparative Law Review

Authors

John Yoo

Abstract

The Helms-Burton Act's validity must be tested not only against principles of international law and the obligations of international trading agreements, but the statute's use of the federal judiciary. Although the Act may be consistent with jurisdictional principles and agreements such as GATT and NAFTA, it may force federal courts into a role ill-suited for U.S. national security policy and inconsistent with basic constitutional principles.

Professor Yoo argues that whether Helms-Burton violates international law is insignificant to domestic enforcement of Congressional foreign policy objectives. Further, the national security exceptions to GATT and NAFTA provide sufficient latitude to permit the Act's enforcement. The most troubling aspect of Helms-Burton, then, is the use of the federal judiciary under Title Ell. Federal courts are not the centralized instruments necessary for effective implementation of foreign policy. Moreover, the Act's use of the federal courts could threaten the independence of the Judicial Branch.

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