Donald Trump Threatens a 'Second Embargo' of Cuba
Havana. (Pedro Szekely / Flickr)
The Trump administration is threatening to unleash a flood of lawsuits
involving Cuba, which no U.S. president has ever done. It has set a deadline
of March 2 to announce whether it will create, in the words of the National
Lawyers Guild, a second embargo of Cuba one that would be very
difficult to dismantle in the future.
Trump may give current U.S. citizens standing to sue in U.S. courts even if
they were Cuban citizens when the Cuban government nationalized their
property after the 1959 Revolution. They would be able to bring lawsuits
against U.S. and foreign companies that allegedly profit from the
nationalized properties.
In accordance with international law, the Cuban government had offered
compensation to U.S. nationals for the taking of their property, as I
explain below. If Trump permits myriad new lawsuits to proceed, it would
unleash a tsunami of litigation that would harm U.S. companies and punish
the Cuban people even more.
For 59 years, the United States has maintained a cruel embargo against Cuba.
The embargo on Cuba is the most comprehensive set of U.S. sanctions on any
country, including the other countries designated by the U.S. government to
be state sponsors of terrorism Iran, North Korea, Sudan, and Syria,
according to the U.S. government.
In 1960, the Eisenhower administration declared a partial embargo on trade
with Cuba in an attempt to pressure Cuba to change its form of government.
The embargo was prompted by a secret State Department memorandum that
proposed a line of action which, while as adroit and inconspicuous as
possible, makes the greatest inroads in denying money and supplies to Cuba,
to decrease monetary and real wages, to bring about hunger, desperation and
overthrow of government.
This type of action is illegal under international law, according to Idriss
Jazairy, the U.N. special rapporteur concerned with the negative impact of
sanctions.
Coercion, whether military or economic, must never be used to seek a change
in government in a sovereign state, said Jazairy. The use of sanctions by
outside powers to overthrow an elected government is in violation of all
norms of international law. That includes the Charter of the Organization
of American States and the Charter of Economic Rights and Duties of States.
Nonetheless, John F. Kennedy expanded the embargo in 1962 and every U.S.
president since has continued it, hurting the Cuban people, but not
succeeding in overthrowing Cubas government.
In 1996, Bill Clinton signed the Helms-Burton Act, which codified the
embargo into law so that no president could unilaterally lift the sanctions
against Cuba. Although Barack Obama took some limited steps toward
normalization of relations between the United States and Cuba, Helms-Burton
would have prevented him from lifting the embargo.
Will Trump Open the Floodgates of Litigation?
After the Cuban Revolution, the new government led by Fidel Castro
nationalized the property of Cuban nationals, many of whom then fled Cuba
and emigrated to the United States. Helms-Burton contains a notorious
provision in Title III that allows private lawsuits against U.S. and foreign
entities for allegedly trafficking in property confiscated in Cuba since
1959. Trafficking as defined includes knowingly engaging in a commercial
activity or otherwise benefitting from confiscated property.
Every U.S. president beginning with Clinton has delayed the implementation
of Title III by waiving its provisions in six-month increments. Clinton put
Title III on hold because it triggered immense opposition from U.S. allies,
whose companies operating in Cuba would become targets of litigation in U.S.
courts, American University professor and Cuba scholar William M. LeoGrande
wrote in The Conversation.
Clintons waiver was also motivated by the European Unions filing of a
complaint against the United States in the World Trade Organization and
adoption of a statute that forbids EU members and their firms from complying
with Title III.
Thus far, the Trump administration has followed suit with three six-month
waivers. But on January 16, the president waived Title III for only 45 days,
from February 1 to March 17, while his administration conducts a careful
review of whether to allow the provision to go into effect. He will
announce his decision by March 2.
If Trump does activate Title III, it would be the first time since
Helms-Burton was enacted. It would tie up U.S. and foreign firms in a tidal
wave of litigation if they do business with Cuba including in medicine and
agriculture and have allegedly benefited from confiscated properties.
Up to 200,000 people who were not U.S. citizens at the time of their
propertys confiscation would be able to file claims for property they held
in Cuba when they were Cuban citizens. This is considerably more than the
nearly 6,000 claims already filed by U.S. parties at the time their property
was nationalized.
Cubas Nationalization Did Not Violate Either U.S. or International Law
The U.S. State Department takes the well-established position that a
sovereigns nationalization of the property of its own nationals does not
violate international law. In 1962, U.S. Secretary of State Dean Rusk told
the National Business Advisory Council:
Any sovereign national has the right to expropriate property, whether owned
by foreigners or nationals. In the United States we refer to this as the
power of eminent domain. However, the owner should receive adequate and
prompt compensation for his property.
On several occasions, Cuba has offered to negotiate compensation of the
nearly 6,000 claims of U.S. parties, as it has successfully done with claims
from other countries. It is well-known that all nationalizations of foreign
property, including that of the U.S., were provided by law with a commitment
to compensation, which the U.S. government refused even to discuss, while it
was adopted by the governments of claimants of other countries, all of which
enjoyed due compensation, the Ministry of Foreign Affairs of Cuba said in a
statement.
Permitting lawsuits to proceed under Title III would overturn long-standing
law. In 1964, the U.S. Supreme Court held in Banco Nacional de Cuba v.
Sabbatino that U.S. courts should not decide the legality of taking property
in Cubas jurisdiction and that state-to-state negotiations provide the best
way to resolve these issues.
Title III attempts to reverse that precedent, placing the long-term future
of U.S.-Cuban relations into innumerable private hands and holding hostage
the ability to normalize relations for decades, according to the National
Lawyers Guilds International Committee.
Trump Says Make Rubio Happy
On January 16, Sen. Marco Rubio (R-Florida) ominously tweeted, Todays
waiver of Title III of Helms-Burton for only 45 days instead of the
customary 180 days & the accompanying warning, is a strong indication of
what comes next.
Does Rubio have inside information? Very likely. The New York Times recently
called Rubio a virtual secretary of state for Latin America. Indeed, Trump
described his Cuba policy to White House staff early in his term: Make
Rubio happy.
Rubio and Rep. Mario Diaz-Balart (R-Florida), whose brother pressured
Clinton into signing Helms-Burton, are the leading advocates for Title III.
They represent the richest and most conservative people in Miamis
Cuban-American community, once known as Cubas One Percent, LeoGrande
writes. Since Title III exempts private residences and small businesses from
potential compensation, it is the one-percenters people who owned
businesses worth more than $433,000 at todays prices who have the most to
gain if Trump unblocks Title III and allows litigation to proceed.
Trump is also apparently making Rubio happy by recognizing Juan Guaidó as
Venezuelas legitimate president, albeit in violation of international law.
Rubio is part of Trumps inner circle working with the opposition in
Venezuela to carry out an illegal coup.
Venezuela is really an extension of the position on Cuba, Ricardo Herrera,
director of the Cuba Study Group, told The New Republic. Both nations are
targets in a plan to reassert U.S. control over Latin America, and finally
overthrow the Cuban Revolution, according to The Wall Street Journal.
At a February 18 rally in Miami, Trump played to a large voting bloc by
criticizing Venezuelan President Nicolás Maduro. South Florida has the
largest population of Venezuelans in the United States, many of whom are
opposed to Maduros government. Rep. Debbie Mucarsel-Powell (D-Florida)
accused the Trump administration of using Venezuelans suffering to score
political points here in Florida, adding, We shouldnt be using this as a
political weapon.
But, Trump doesnt care about Latin America. Its still about domestic
politics, LeoGrande told The New Republic. Trump thinks he won Florida
because of the Cuban American vote. Rubio convinced him that thats what
made the big difference in Florida. Many older Cuban Americans oppose the
Cuban government and have been pivotal votes for Republican presidential
candidates in the swing state of Florida.
Who Stands to Lose If Title III Is Activated?
It is the Cuban people who would suffer most from the activation of Title
III. A torrent of lawsuits would not only discourage foreign firms from
trading with, investing in, or operating in Cuba; they would also endanger
the food supply and other essentials for life in Cuba for years to come.
They would weaken Cubas fragile economy.
Title III could affect firms that currently operate in Cuba on confiscated
property and companies that profit from such trafficking. Because of
jurisdictional issues, U.S.-based companies would be the most vulnerable to
these lawsuits, which would disadvantage them internationally. They would be
unlikely to expand their operations in Cuba.
Ending the suspension of Title III would have a chilling effect on future
efforts to normalize relations with Cuba because it was written to prevent
future U.S. administrations from interfering with this private litigation.
Sanctioning lawsuits under Title III could also negatively impact areas such
as travel, academic exchanges and research collaboration.
Meanwhile, Cuba has asserted its own claims against the U.S. for billions of
dollars of injury due to the impact of the illegal and expanded
multinational economic embargo against Cuba, which had been intentionally
enacted to deny money and supplies to Cuba, to impose hunger and hardship
and seek to overthrow its government, as quoted above. One such case filed
in Cuban civil courts in 2000 sought over $120 billion in damages. A prior
case sought more than $180 billion in damages based on illegal acts of
violence and sabotage, including CIA sponsorship of the Bay of Pigs
invasion; this resulted in a judgment in 1999. Cuba seeks resolution of its
claims as part of its attempt to mutually resolve issues between Cuba and
the United States.
Activating Title III would represent a quantum leap in hostility [against
Cuba], LeoGrande maintains. By refusing to further suspend Title III, Trump
would effectively be punishing the Cuban people with a second embargo.
Cuba represents no threat to the United States. It is time to end the
illegal 59-year-old embargo against Cuba once and for all.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn / Truthout
