Opening the litigation floodgates would harm U.S. companies and punish the Cuban people even more, writes Marjorie Cohn.
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.”
President Donald 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. “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 trade embargo 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, President 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 Cuba’s government.
In 1996, President 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 President Barack Obama took some limited steps toward normalization of relations, Helms-Burton would have prevented him from lifting the embargo.
Notorious Title III Provision
After the Cuban Revolution, the new government led by Fidel Castro nationalized the property of Cuban nationals, many of whom then fled the country 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.
Clinton’s waiver was also motivated by the European Union’s 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 Jan. 16, the president waived Title III for only 45 days, from Feb. 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 property’s 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.
Nationalization Was Legal
The U.S. State Department takes the well-established position that a sovereign’s 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 Cuba’s 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 Guild’s International Committee.
‘Make Rubio Happy’
On Jan. 16, Sen. Marco Rubio (R-Florida) wrote an ominous tweet:
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.
If you are trafficking in stolen property in #Cuba, now would be a good time to get out.
— Marco Rubio (@marcorubio) January 17, 2019
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 Miami’s Cuban-American community, once known as Cuba’s “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 today’s 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 Venezuela’s legitimate president, albeit in violation of international law. Rubio is part of Trump’s 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 Feb. 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 Maduro’s government. Rep. Debbie Mucarsel-Powell (D-Florida) accused the Trump administration of “using Venezuelans’ suffering to score political points here in Florida,” adding, “We shouldn’t be using this as a political weapon.”
But, “Trump doesn’t care about Latin America. It’s still about domestic politics,” LeoGrande told The New Republic. “Trump thinks he won Florida because of the Cuban American vote. Rubio convinced him that that’s 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.
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 Cuba’s 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.
This article, first published on Truthout, was reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”
Just bring up the idea of the possibility of legal claims for Native Americans to the likes of Rubio and Trump and they may have to back down. Legal presidents can be unnerving.
Last I read, several years ago, land claims had been settled, with the Native Americans taking much less than what they were originally asking for. Now, I don’t know if this included the land that the govt. holds in stewardship.
I have always wanted to go to Cuba but never have. It stood up to us, struggled and seems to be doing well enough. I have to think the Cuban people feel pretty good about themselves.
Their pride became somewhat overbearing, but still commendable when they offered to send their doctors to Louisiana when the great hurricane hit. Such chutzpah. Wonderful. Of course we refused. Of course, when the offered us their well-schooled baseball players, it was an offer we couldn’t refuse.
They should. Their doctors have helped a lot around the world. Trump tried to push the embargo through the U.N. but it was voted down. There are many countries that hold Cuba in high regard because of the doctors they send to help during epidemics or if a country is short of doctors. Brazil was one. But Bolsonaro expelled them all.
Here’s an article on Trump’s failed attempt at the U.N. and a little bit about Cuban doctors and why Cuba is held in high regard. Very interesting, the things we are not supposed to know.
If such is suddenly the attitude of the claimants to governmental power in Washington, how do they propose to make the Native Americans whole? Those people were stripped of an entire continent and all the resources therein. Are all the corporate dynasties built upon stolen treasure from throughout the Americas to be confiscated and delivered back to the heirs of its rightful owners? All the generations benefiting from such expansive “trafficking” boggles the mind. Or will the absurdly facile excuse that the Amerindians simply didn’t properly practice or understand Western tort laws be trotted out yet again and sham sympathies expressed that the consequences are just their tough luck?
Everyone knows: all the grandiloquent legal rhetoric used to justify material theft and political oppression is just a straightforward exercise of the principle that “might makes right.” I remember being taught back in 1962 in high school World History class that the Germans, specifically the belligerent Prussians including “sketchy” philosophers like Nietzsche and Hegel, were the originators of such amoral rationalizations, but really it was America’s founding fathers from the moment they planted their boot heels on the North American continent. And to be totally objective, the Spanish, Portugese, Dutch and French were just as avaricious and hypocritical in their exploitation of the “New World,” usually ascribing to “God” their assumed authority to subjugate other people and steal their stuff. And the conquest of the “New World” soon extended to the entire world, including India, China, Persia, all of Africa and the Pacific archipelago.
Of course Marco Rubio thinks he can get away with taking back centuries-worth of ill-gotten goods from the indigenous peoples of Cuba (and Venezuela, Nicaragua, and Bolivia) for the benefit of his financial backers, both the Latino Blancos and the Zionists. He just needs the assistance of the organised criminals in DC and Manhattan who have lots of practice in the trade. Funny how Rubio was right about Trump being a puppet… only the Trumpster has become HIS puppet, never Putin’s. The scoundrels within the power elite facilely switch sides and allegiances as long as there is the common goal of profit and power.
The U.S. was already putting the screws to Cuba. Cuba was helping Venezuela when U.S. had started putting sanctions on that country.
As I said many times, this is a dying empire in its death throes, a wounded bear, thrashing out. Yes it has some powerful weapons, so does Russia. But who dares blink first?
There’s still a few days to act this week, call the White House, et. al. See https://www.lawg.org/don’t-let-trump-strengthen-the-embargo-on-cuba/
““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.”
And so, when we crack open the shell, the nut falls out – another U.S. attempt to bring a rogue, socialist state in Latin America to heel via increased financial repression. Having a functioning socialist state in the same hemisphere is like kryptonite to the empire’s oligarchs.
I think it is long past time for governments around the world to sit down and take a long hard look at trade with the USA. Is it really worth it? Investing in the USA, is it worth the risk of having those assets stolen by that government. Is working within the American controlled financial system worth the hastle and the real time losses of revenue from US applied sanctions on other countries. A country like China might take a short term financial hit if it stopped trading with the USA, but doing so would free it up to trade with any other country it wanted to. Russia does not trade with the USA and it is surviving okay. It would also show the world how to get out from under the tyranny of the out of control American Establishment. In my opinion the US has acted badly enough internationally to justify cutting it off from international trade and embargoing it until it returns to it`s sences. Would that be cost free? Of course not. Would it disrupt world trade for a while? Of course it would. But would the pain be worth it? Of course it would in the long run , To reduce this rogue nation to penury would be the best thing to happen to the world today.
What the USA needs most is regeime change and what better way than for the world to sanction that country so that a starving American public would rise up against their government. Their economy would not have to take much of a hit for the people to hit the bricks and throw that scum out of the halls of Washington. Don`t forget they have 300 million guns at their disposal , so that is a plus.
Dan Kuhn, its slow and a long time coming but trading between countries without be blackmailed by the US seems inevitable. Trump’s heavy handedness will only serve to accelerate it. It seems embargoes and blockades have always been with us but the US control of commercial transactions has never been so apparent and used in so heavy handed a way. It first became clear to many during the 90’s when our sanctions and the 660 committee, I think that was the name, literally choked off commerce and resulted in hundreds of thousands dying in Iraq. Recall the gross statement by Madeleine Albright’s about dying Iraqi women and children that it was worth it.
The power to tax is the power to destroy, it is sometimes said, but certainly sanctions have the power to destroy and kill. Not the leaders but ordinary people. I have always thought Putin defying our right to exercise such power was the real reason he became enemy number one.
For the good of the world and the United States people, I hope the world defies us and denies the power over commerce we now have.
Dan you are dead right, if ever a Nation needs to be contained, economically punished & sanctioned for its obscene, illegal & immoral behaviour, its the US? But that preparation is well under way, the de-dollarisation has already begun with China & Russia denomination away from the US dollars in Trade & Petrodollar transactions in rubbles or yuan & dumping US Treasuries & other Nations are building up their Gold reserves to hedge against the coming US dollar, fiat money Ponzi scheme collapse! The entire corrupt US Petrodollar system that enables the recycling of US dollars as the Worlds reserve currency is what enables & drives America’s evil Foreign Policy adventures & illegal Regime change ops? Destroy or remove the Dollar dominance & America loses the ability to FUND ITS WARS using its out of control Military Industrial complex! The sooner this Collapse happens the better off the World & its free people will be! The American Empire needs to be stopped & go the way of the Dinosaurs towards extinction? America it is the biggest threat to Global humanity & is right up there with Climate change as a major threat to the Worlds survival as a species!
That’s right. Even Japan has been slowly selling off its T-bills. U.S. is a big market for sure, but the Silk Road Economic Belt offers even bigger opportunities. I have to wonder if the U.S., via Saudi Arabia, was responsible for the discord between India and Pakistan. China had made a large loan to Pakistan, but Pakistan also took an even larger loan from Saudi Arabia.
The ghost anti-Castro lobby, equates Cuba with Venezuela. Venezuela is being used to bash Bernie, part of Trump’s reelection campaign. Pretty sick.
Since there are two governments, I think it is best to try to find ways of working with both. Venezuela is much more polarized then the US.
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Trump could have been a good president had he chosen to be one. But he didn’t. Instead, he’s terrible. He seems to enjoy being terrible at everything and angering everyone. Hard to say which is worse, his thuggish Imperial foreign policy or his “Let them eat cake!” domestic policy.
He’s following PNAC. In a haphazard way maybe, but he’s following it, he’s following orders like a good soldier. A shame really, because trade could have been a bridge to peace.
The US policy towards Cuba has been a lie from the very beginning. The American government is a Mafia organization dedicated to crime of every description.
I am surprised at the comments here. Does nobody realize the billions of dollars the USA has prevented Cuba from having access to over the last sixty years, not to mention the human consequences? Cuba has a health system praised highly by the World Health Organization and helps people all over the globe by providing medical staff and equipment to those in need, just the opposite to the USA. to preten the country needs further punishment is grotesque.
Please tell me what it is in the DNA of the US population of “leaders” which makes them inherently and unalterably vicious and cruel, both inside their Homeland but especially when interfering and causing death and destruction to people who are trying to live their own lives in their own “sovereign countries”.
ps this “DNA” refers to a recent official critcism of Russians!
They seem to rise to power as business bully-boys, and bribe or become public officials because the US failed to protect elections and mass media from economic power. Whatever circumstances make a bully in the family and community, make a business and political tyrant in the US.
As Johan Galtung says: “From the top down”. Violence from top, flows down to bottom.
The two greatest threats to the USA are Russia and China. Simply put, this maneuver along with others in the Caribbean arena are to place road blocks for further future expansion of Russian and Chinese policies.
The USA must keep the “reserve currency status” of the USA dollar alive at all costs to fund all their strongarm policies worldwide. Nations buying USA debt is becoming less attractive day by day.
Terrible things happen when nations try to ditch the dollar….Everything on the planet is about “profit and market share”
You folks need to read between the lines to discover true motive
I hope this is a joke, Mr Obama.
This article really highlights the vindictive, criminal actions of a Country that believes it has the God given right to dominate, interfere & control every other Nation around the Globe, whether that’s by Military warfare or economic warfare? Is it any reason why America has become the most hated & despised Nation on Earth thanks to it’s cruelty & barbaric, immoral behaviour against any Sovereign Nation or Govt that opposes its mandates & commands? Cuba has put up with America’s ridiculous, criminal nonsense for 59 yrs as punishment for wanting to uphold its own Sovereignty & independence? And you can add Russia, China, Iran, Syria & Venezuela or others, to the list of Countries who treasure having their own Sovereignty! How is it possible that one Country, called America, can dictate & determine all other Countries right to determine their own future & Sovereign Independence? The last Country that tried that strategy was Nazi Germany & it resulted in a World War. The parallels with that Fascist Nazi Party & the American Empire are similar? Just as the Nazi’s sort to dominate & destroy Nations that opposed their Global ambitions, so does the American Empire, which seems to have picked up the baton from the Nazis & are running this race to Unipolar domination in a World thats becoming increasingly Multipolar? Both were & are willing to murder millions to achieve those goals? Already, the writing is on the wall for the death of the American Empire just like it happened to Nazi Germany? Hubris, Military & Economic overreach & a Country saddled with trillions of dollars of Debt won’t be able to defy the laws of Historical gravity & reality & its just a matter of time of when this collapse happens, but it is going to happen?
If you have any truthful sources, you certainly read between the lines.
Yes it must, if the Empire is to survive. But the living things on this planet cannot afford its survival. I know it will be terrible, and not just for the American people. I know what’s at stake, and I weigh that against the, perhaps, billions of people who will die in wars, their children starved, raped, trafficked, sick with disease thru biologic weapons. I weigh it against the people, working 2 jobs and still failing to make ends meet, falling further into debt and despair. I weigh it against the only home we may ever have, planet earth. The price is too damn high for me.
Perhaps the millions of Iraqi people who have had their homes and life devastated by the Americans can sue for compensation as well. Does kind of selfish and arrogant action by the US work both ways?
It would work both ways if we had a real UN to enforce international law.
“Does kind of selfish and arrogant action by the US work both ways?”
No, only a soulless hegemon gets to sue.
It is absurd to introduce lawsuits into our relations with the Cuban people. Our nation needs to offer a tabula rasa between our governments, quickly followed by a kumbya for our two peoples, a kumbaya in the original meaning of the word. Cuba is, was, and remains a focal point, a fork in the road for both nations, their cultures and destinies. The Bay of Pigs Fiasco surely instigated JFK’s assassination and many an assassination(s) followed. That single political fiasco managed to elevate, by rifle fire, a new strength and influence by the darkest policing agencies within the American government. It offered our version of the “Black Hand”, a government approved methodology copied from the modus operandi of the Sicilian mob. A spawn of alphabet agencies appeared, who now did the bidding of the richest corporate oligarchs of that time such as the Rockefeller brothers…
The only plan(s) we ever offered the Cuban people were to establish there, three of the worst elements of our capitalist architecture; mafia financed gambling houses and all those vices that gather ’round such establishments, vacationing Hollywood actors on the look out for new amusements of every sort, away from the prying eyes of our “mainland” news media gossip columns and last but not least, interference with Cuba’s internal affairs based on the abominable belief that our way is the best way. This implacable ignorance on our part, so beautifully articulated by that renowned author, Eric Hoffer’s in his book, True Believer…
In sharp contrast, what has Canada’s historic relationship been with Cuban people? Wellll, theirs did not foment a series of events that dragged the whole world into the Cuban missile crisis! Canadian commerce is booming in Cuba (visit the Berukoff’s business enterprises on the web) and add to this, a three billion dollar investment from a myriad of countries from around the world. What pray tell, constitutes the Canadian and American foreign policies towards Cuba today? It’s simple, pick at old scabs, be unrelenting and hostile by holding grudges and carrying on with revenge policies disguised as lawsuits…Whycan’t the financial wizards of the U.S. of A. see a potential booming investment in constructing the largest, tallest mega retirement community at Guantanamo instead of those tax draining and useless prison cells. Comm’on Donald, you buildt a few in Florida! and that was atop a swamp, you don’t like swamps, right?!
A very informative and reasonable article. Interesting that the US Supreme Court had decided that compensation should be via international negotiation, and that Cuba has compensated other nations for takings, but the US has refused.
There may be a negotiation problem in that, where a nation has confiscated property from a oligarchy dictatorship, it has a case that the property taken had been taken from the people by the oligarchy. This should be quantified in a model case by the UN, so that rogue oligarchy nations like the US may not pretend to have unresolved claims.
Similarly, the US must be forced to recognize that small countries with one-party democracies, often legacies of communist revolutions against oligarchies, often could not permit completely open democracies without allowing rogue manipulators like the US to control their politics by economic war techniques. If those rogues were regulated by the UN, many such systems would eventually incorporate more efficient mixed economies as well as more open democracies.
The UN simply needs more power and autonomy from economic rogue powers like the US, that control its institutions by economic power, just as the US oligarchy controls the formerly democratic institutions of the US. By taxing its members (instead of begging for funds) and disciplining them to enforce embargoes upon states that defy its directives or evade its taxes, the UN could become a force for progress rather than an instrument of economic oligarchy.
Perhaps the majority will alter its charter to disenfranchise rogue states from the Security Council.
Surely you don’t expect the US in general or the Trump regime in specific to pay attention to the niceties of international law, do you? We’ve been doing this sort of thing for so long that we think it’s actually legit. Trump may push this far enough to cost the US a whole lot of support that I know he doesn’t think he needs to worry about.