Do Cubans Really Know the Helms-Burton Act?
By Vicente Morin Aguado
HAVANA TIMES – It was recently announced that the waiver on Title III of the Helms-Burton Act will be lifted, which is extremely controversial because it allows US citizens to file lawsuits on their property that was confiscated and nationalized by the budding Cuban Revolution.
This action of toughening down on the US’ embargo received the same response it always has from the Cuban government: we continue the struggle; nothing has changed here.
The “Cuban Liberty and Democratic Solidarity (Freedom) Act”, the official name of Helms Burton, was signed by President Clinton in 1996. Even though the governments of the two countries appear to be locked in a never-ending battle, their citizens have forged ties over many decades that sidestep politics.
The Cuban government has outrightly rejected what it considers to be a meddling legal regulation, and people on the Island are repeating ingrained phases in the many interviews that are being broadcast by the state-controlled media. “They’re coming to take everything away, they’ll take away our homes, schools, hospitals, it’s been 60 years, we can’t let this happen…”
These answers just go to prove that the Cuban people haven’t read the Helms-Burton Act. The Party/State system has skillfully handpicked fragments from the text that it believes best suits its propaganda, without giving citizens the opportunity to know everything that the US Congress voted on. This technique of transmitting biased information is common practice for the Cuban government.
The legal text doesn’t include a single sentence that refers to property being used for social purposes, nor does it threaten to take away the limited property or usufruct from those who live in multi-family buildings that existed before the Revolution. If you read the Act, you’ll see that this is the case, as it clearly specifies which kinds of property are subject to claims:
“A person “traffics” in confiscated property if that person knowingly and intentionally: (i)(I) transfers, distributes, dispenses, brokers, or otherwise disposes of confiscated property, (II) purchases, receives, obtains control of, or otherwise acquires confiscated property, or (III) improves (other than for routine maintenance), invests in (by contribution of funds or anything of value, other than for routine maintenance), or begins after the date of the enactment of this Act to manage, lease, possess, use, or hold an interest in confiscated property, (ii) enters into a commercial arrangement using or otherwise benefiting from confiscated property, or (iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person, without the authorization of any United States national who holds a claim to the property. (Section 401, Chapter IV)
Does a hospital fit into this definition? No. Likewise, it doesn’t refer to a Sports Center or a Day-Care Center either. However, the Hotel Capri and Nico Lopez oil refinery do fall under this concept.
The Helms-Burton Act has well-known objectives, to influence in the change that the US government promotes for Cuba, which is also the wish of many Cubans, although it’s difficult to know how many exactly because those who live on the island don’t have the freedom to express themselves. This freedom is precisely one of the changes the US says it is hoping for.
It’s important to note that the Act is temporary in nature, it serves as a mechanism to place pressure on the Cuban government, the lawsuits would never end up being applied. The condition it lays out is the end of the ruling socialist totalitarian system of government:
“(I)In general.–All rights created under this section to bring an action for money damages with respect to property confiscated by the Cuban Government–shall cease upon transmittal to the Congress of a determination of the President under section 203(c)(3) that a democratically elected government in Cuba is in power.” (Section 302)
This would lead to a definitive termination which includes the end of the embargo:
“If the President takes action under subsection (a) to suspend the economic embargo of Cuba, the President shall immediately so notify the Congress. The President shall report to the Congress no less frequently than every 6 months thereafter, until he submits a determination under section 203(c)(3) that a democratically elected government in Cuba is in power, on the progress being made by Cuba toward the establishment of such a democratically elected government.” (Section 204, Title II)
There’s still a lot to say, the efficacy of beginning a long and controversial process of lawsuits for properties confiscated 60 years ago is going to be felt.
The application of Title III directly marks foreign investors who have profited off properties that are being claimed in the US, which is facing opposition from these investors’ governments (mainly in Europe and Canada) as is to be expected.
They don’t seem too worried in Revolution Square for now, it’s normal for there to be hoo-ha in politics, but how this legislation is actually implemented is another story. For better or worse, for many Cubans, life carries on the same as always.
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Vicente Morin Aguado: [email protected]
To your comment about those who have read Helms-Burton Bob, you should add the same about the US Cuban Democracy Act. Other than the usual communist supporters, few would disagree with its sentiments and declared objectives. But it clearly failed in its objectives and the US if wise, would have recognized that and reviewed their options.
I repeat my long held view that the embargo merely serves as a useful whipping boy for the Castro communist regime, and I think that because of that, they would actually hate to lose it! Dragging out the dead cat resolution at the UN being merely a somewhat cynical ploy.
A new political ploy by The US Government to try and polish its reputation as World Leader ?
About the examples: Capri and Oil refinery I believe it is a correct expression because you emphasize the essential, commercial use properties…
Yes, it’s always good to know what you’re talking about. In that vein: https://www.treasury.gov/resource-center/sanctions/documents/libertad.pdf
That said, we’ve read Helms-Burton closely. It’s problematic on many levels:
1. No, it’s not just about the refinery and the Hotel Capri. Any commercially used property worth more than $50,000 is now eligible for legal action.
2. Activating Title III significantly broadens the number of those eligible to sue, from the original 6,000-some certified claimants. Anyone who was a U.S. citizen as of 1996 is now eligible to seek redress in U.S. courts. In other words, although John Bolton and Mike Pompeo suggest it’s just about U.S. citizens, Helms-Burton also includes a large number of people who were Cuban citizens at the moment of confiscation.
3. The law does not specify foreign investors as potential defendants; as it is written, it could well open lawsuits against any Cuban state entity (in fact, a partial activation in March already allows lawsuits against 200-some Cuban entities linked to the armed forces). Although the Trump administration will likely want suits to focus on foreign businesses, the law is so broad it could potentially blanket the whole island with lawsuits. 4. Weaponizing the courts of one country to solve a legal problem in another country overrides international law and is considered problematic by — best guess — 90% of lawyers worldwide. This is the “law of the jungle”, as the EU ambassador in Havana called it.
5. On a practical level, the law doesn’t make sense; a fully implemented Helms-Burton is, at best, emotional therapy for those with a grievance against the Cuban government. It neither moves certified claims holders closer to a compensation (in fact, it moves them farther away from that goal), nor is it more likely now than in the 1990s that more shortages of fuel, eggs, cooking oil and toilet paper will lead to regime change. It’s even counter-productive if you have the long-term goal of achieving respect for private property; the net effect of the increased uncertainty for foreign investors — a drop in economic activity in Cuba — will hurt most those Cubans that are most vulnerable. Or do you envision people rioting in the streets of Alamar and Regla under the banner of respect for private property?
I’m actually quite surprised at this rather cavalier interpretation of the Helms Burton Act. First, it’s hardly temporary. It’s been in place since 1996. To say that the purpose of Helms Burton is to “influence in the change that the US government promotes for Cuba” is more than naive. The aim of my government is to end Cuban sovereignty. One might think that this will result in greater “freedoms” but think again.
The latest application of the Helms Burton Act is designed to allow law suits against foreign investors in Cuba. Any foreign investor profiting from any independent or joint enterprise that includes any property that was nationalized after 1960 can potentially be sued in American courts.
The purpose of this strategy is to economically strangle Cuba. Most of your major hotels are joint ventures, many large projects are joint ventures. If European or Mexican companies think they might be sued in American courts they will be reluctant to make these investments.
Your neighbors in Venezuela have been facing a similar situation. Within months after Chavez’s election 15 years ago the US began undermining the Venezuelan economy by preventing them from obtaining dollars from their sale of oil. By forcing them to use other currencies we devalued their purchasing power for imports and increased their price. This has been a major cause for inflation in that country. We hear a lot about corruption in Venezuela but hear very little about financial imperialism. Bolton, the presidents advisor stated openly that his goal was to seize the Venezuelan oil industry and place it under the control of American capitalists.
The aim of this American administration isn’t to increase individual freedoms in Cuba. It is to gain control of most of the nations assets. This includes banks, hotels, farmland, real-estate, ports, airports etc. those institutions will be run for profit and those profits will leave your island. Industries that perform poorly will simply close or be left for the government to subsidize.
If you doubt this, simply ask your neighbors in Puerto Rico, who are US citizens. Ask them what’s happened since the island is being run by vulture capitalists? Schools, closed, hospitals, closed, poverty increasing all over the island. And as a consequence, increases in drug use and crime. Don’t think for a moment that this can’t happen in Cuba.
Helms Burton is your classic Trojan horse. It promises freedom and liberty, but is designed to deliver an economic system that has no morality, no social purpose, no willingness to be subordinate to democracy. It has one purpose and only one, to extract profit and leave the social consequences to what their economist call “externalities.” This means the social cost of what they do is external to their business model. In other words, someone else pays those cost, not them. this is what Trump has in mind for Cuba.
I believe that if you surveyed all of those that rant about the embargo, the number that have actually read and understand Helms-Burton is closer to one in a thousand than it is to one in a hundred.
I believe if you surveyed all of those that have posted “end the embargo”, “END THE EMBARGO!” on the internet that the percentage of those who have bothered to actually communicate effectively with their elected representatives is the same ratio.
While the embargo has been ineffective for 60 years in achieving it’s goals, the same can be said for the vast majority of those who campaign to end it.
Who has read Helms-Burton and figured out it states seven (7) things necessary to end that act, that five (5) of those have been done, that one (1) of the remaining is a question of definition, and that the remaining one (1) can be accomplished simply by both side putting their pride away?
Who understands that the group of old hard liner anti-reconciliation folks in Miami is very small but politically effective because they speak out to decision makers while the majority only rants on the internet?