The ghost threat of Title III of Helms-Burton

This article was originally published in Spanish in the economic leading newspaper Expansión. 

 

On the 16th of January, senior officials for the Trump Administration announced the suspension of Title III of the Cuban Liberty and Democratic Solidarity Law for 45 days-instead of the usual 6 months. This law came into effect on the 1st March 1996 and is often referred to as Ley Helms-Burton, whose application would allow US citizens object to expropriations of properties in Cuba to present judicial resources before the courts. It does not recover their assets, but denies those who exploit said goods all benefit that comes from them. In law, this is defined as trafficking.

Since it came into force, due to pressure from the EU, Titles III and IV have been adjourned sine die by presidential mandate by newspapers consecutively for 6 months, in the same way as during the presidential terms of Clinton, Bush and Obama.  Trump has also extended the suspension, but with the pretext of carrying out a ‘careful review’ announcing his intention to suspend it for 45 days instead of the usual 6 months.

According to sources from the American Business and Economic Council, 5.913 certified claims exist which amount to 9.000 million dollars, amongst the most notable are those of the La Habana Airport and the installment of ports in Santiago de Cuba. We thus present some of the difficulties and contradictions in the Helms-Burton Law.

 

  1. Political Sanctions. Titles III and IV do not aim to resolve a judicial problem such as  American expropriators, but perpetuate the hostile political climate, hindering Cuba’s relations with third world countries in an economic, commercial and financial way, and worsening its ability to attract direct investment of foreign capital to improve its own development. In light of this, it revolves around a political type of sanction. Proof of this is that the action of these claims will cease ‘when a powerful Cuban government has been democratically elected’.

 

  1. Violation of the territorial principle and the lack of competition. Application of the Helms-Burton Law violates the principle of territory in international law and thus has been denounced repeatedly by the General Assembly of the UN. In detail, Resolution 1803 of the 14th December 1962 highlights how the competent court in the case of compensation arising from litigation to ‘State jurisdiction which adopts these measures’; in this case, the Cuban court. This extraterritorial exercise can only be carried out when it is expressly agreed by the affected State, or, in this case, is established by international agreements, which is not what is currently occurring. Consequently, ‘federal courts do not have access to jurisdiction in a dispute which concerns another country that expropriates properties in its own territory, even if international law is violated’, is what the Supreme Court of the USA determined on the 13th March 1964 at the National Bank of Cuba-Sabbatino.

 

  1. Absence of Negotiation as a Solution. Practically all of the international community advocates negotiating differences between the USA and Cuba. Further, the Commission to Resolve Foreign Claims (FCSC) depends on the American Department of Justice, who is the one who carries out the list of claims under Title III.

 

  1. Undetermined Compromise. The Cuban government has never denied the right to compensate expropriates legally contemplating an undetermined compromise, whose negotiation was always rejected by the USA.

 

  1. Zero international help. The eventual application of this will have no international support. Practically all of the international community opposes US embargo against Cuba. Additionally, numerous antidote laws on embargo exist. These include the European Regulations CE 2271/96, which offers protection against the effects of extraterritorial application of laws such as that of Helms-Burton, in the interest of safeguarding the sovereignty of the member States of the ERU and the commercial activity of its nationals. This corresponds to the basic rules and principles of International Law which cannot be constrained by a foreign jurisdiction that does not invest in undetermined countries, including Cuba. Countries like Japan, Canada and Mexico also have antidote laws of the same nature.

 

  1. Unpopularity of the USA. The majority of US public opinion is constantly opposed to the economic block Cuba faces, as they recognize practically all of the surveys. Finally, the University of Florida discovered that in Miami, 60% of Cuban-US nationals born outside of Cuba were in favour of the end to embargo.

Authors: José María Viñals and Renato Landeira