Crusade that strikes at the heart of freedom

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The Independent Online
The prospect of two British directors of a Canadian company, Sir Patrick Sheehy and Rupert Pennant-Rea, being cuffed and fingerprinted at the John F Kennedy airport is, it has to be admitted, intriguing. Imagine: agents of the Immigration and Naturalisation Service storm Concorde, tear them away from their Louis Vuitton and haul the executives off to a Long Island court. That business leaders should be held directly responsible for the actions of their companies is a great novelty in this irresponsible business climate of ours. There would, too, be a certain irony in seeing the former editor of the Economist - a periodical noted for its American enthusiasms - arraigned before a federal judge for anti-Americanism.

That drama is not going to happen. The State Department has sent warning letters: all Mr Pennant-Rea needs to do is avoid holidaying in Orlando. But the humour quickly drains from the picture. What the Americans are proposing is not only high-handed, it is deeply confused. The Helms-Burton Act targets firms that occupy Cuban property nationalised after the Castro revolution in 1959. Signing it was not Bill Clinton's finest hour, for it flies in the face of international law and those principles of free trade that American politicians are so fond of lecturing everyone else about. What is proposed by the Americans is a kind of bullying. Never mind that Sheehy's company has broken no Canadian or British or international law by its Cuban acquisition. Never mind the uproar that would greet the arrest at Heathrow of an American on the grounds that the United States permits funds to be raised for Irish terrorists.

Pupils in civics lessons used to be told that the theoretical reach of the British Parliament was untrammelled. It could even legislate to ban smoking in the waiting rooms of Calais gare maritime. The Helms-Burton Act is a similar form of nonsense. This is "extraterritoriality" with a vengeance.

The eagle's stretch has long been wide. The intelligence agencies of America the Superpower have always interested themselves in the trading activity of firms based overseas. But during the Cold War, other governments, including the British, signed up to rules proscribing the sale of arms and arms-related equipment to the Soviet Union and the other Communist powers. The Americans used their muscle, but did not ride roughshod over British sovereignty. Today American elbows are much in evidence over trade to the "rogue states", including Iran and Iraq and North Korea but usually with the connivance of the British or Japanese or other governments.

Cuba is different. There is no global interest and very little relevance even to the national security of the US. Helms-Burton is about a shibboleth of American domestic politics - being tough on Fidel. It should therefore not be seen as some concerted act of aggression against British interest. Indeed, the ill-judged and half-baked nature of the exercise is shown by its effect on Canada where there is now serious talk about counter- legislation allowing Canadian firms to sue the US government in Canadian courts - conjuring the prospect of mounties distraining on US embassy furniture in Ottawa.

The United States is risking damage to the fabric of world trade and investment for the sake of a fixation. Cuba is a mere wart, a hemispheric disfigurement. Castro's neo-Stalinist regime staggers into a miserable dotage. There are practical and legal issues to do with who owned what in the days of General Batista. But none justifies Helms-Burton and its ham-fisted bid to impose American domestic priorities on foreign nationals by interfering so crudely with freedoms of trade and movement. Some sort of statute of limitations has to apply to an event - the Castro revolution - which took place nearly 40 years ago.

As legislation Helms-Burton may only be temporary. Republican dominance in the House of Representatives may not last beyond November. Were Bill Clinton to win this autumn, it is entirely possible that come next spring, political circumstances would allow the repeal of this extraordinary piece of legislation. We hope.

For it must not become a precedent. If the Americans are saying the Cuban or any other government is not legitimate, that view has to be argued multilaterally. There is, sketchy in parts but surprisingly robust in others, a body of convention and treaty that makes up international law. The United States of America is one party to it, not its arbiter. Domestic political whim cannot just substitute for procedure and negotiation - especially as the axis of world trade turns on its new eastern pivot. (Contrast American trade policy towards Cuba and that other Communist country, China.) Americans have to observe the norm of reciprocity, too. How they would scream if other countries started prosecuting US-headquartered corporations for offences committed in third-party countries against, say, German or British or Spanish law.

The United States could seek to persuade its allies over Cuba. It has bilateral leverage, especially with countries like Britain that count as good and loyal friends. (The vigour of Ian Lang's speech last night should give the Americans pause for thought.) But to bend Britain, France or Canada to the American line demands higher grade argument than the United States has supplied. The proper course of policy ought to have been: persuade those foreign governments to make it an offence to trade with Havana. Instead, the Americans have struck at the heart of the free enterprise system by seeking to dragoon commercial firms in a political crusade. Seeking to arrest or exclude Sir Patrick Sheehy is not only ridiculous, it is dangerously antagonistic to principles Americans ought to hold dear.