Vanderbilt Journal of Transnational Law

First Page



The extraterritorial application of U.S. economic sanctions and trade controls is a perennial topic of discussion among international trade practitioners and a frequent cause for concern abroad. While long present in one form or another as part of several U.S. trade and export control programs, there has been a resurgence in the use of unilateral extraterritorial trade regulation by the United States following the unraveling of widespread international consensus on who should be the targets for such controls and sanctions as a result of the breakup of the Soviet Union, and the demise of the international Coordinating Committee on Multilateral Export Controls. Moreover, the pressures created by rapidly developing new means of conducting domestic and international commerce online and over the Internet now exacerbate the problems created with these types of controls, by vastly increasing both the number of international transactions and the speed with which they are conducted.

The most recent focus of the discussion of unilateral extraterritorial controls in the popular and academic press has been the Helms-Burton Act, which revised the terms of the U.S. embargo of Cuba. The amendments to the Cuban embargo controls that the Helms-Burton Act introduced have generated significant opposition from other countries, such as Canada and the United Kingdom. Additionally, the European Union has expressed its opposition through the initiation of a complaint with the World Trade Organization. Rather than the novel changes brought about by the Helms-Burton Act alone, however, it is the long-standing use of traditional "blacklisting" tools as part of the government's trade regulation and sanctions programs that most clearly highlights the difficulties inherent in unilateral extraterritorial controls. Using the Cuban embargo program as an example, this Article explores the question of the legitimacy of these "blacklisting" measures under international standards, including those advocated and espoused by the United States itself in connection with the Arab League's boycott of Israel. An emerging rule of customary international law, the Article concludes, proscribes the use of blacklisting to conduct international secondary boycotts.