|(Excerpts of the book written by the uruguayan lawyer, Alberto Caymares)
The project or projects were introduced at the U.S. Congress 102 Session, by Robert Torricelli, New Jersey's representative, and senator Bob Graham.
The first version definitively differs from the one approved. In some cases the difference is purely semantic, in others, it's profound; and in this last situation, the difference lays either on the open concealment of intentions, or on the sanctions to the new dispositions, which shows the same toughness but look less rude in its political formulation.
The project's whereabouts and its result will be explained in order to present a more reliable history of its sanctioning and to achieve a better understanding of the Law's political intention.
It's sanctioning: On October 23, 1992, the Torricelli Law , sanctioned at the U.S. Congress, was enacted by ex- president George Bush in the middle of an electoral campaign, with the intention, among others, to gain Florida's vote.
According to Buenos Aires newspaper, "Página 12" (10/24/94), Bill Clinton, a presidential candidate, did not remain behind. He said to feel himself "proud" of passing the Bill; and declared it was an important date to the Cuban democracy cause.
The project had an introductory explanation of itself: "To promote a pacific transition to Democracy in Cuba" by means of the "application of appropriate pressures to the Cuban Government and the support to the Cuban people".
The year(1991) in which the project appeared, deserves a particular analysis; it was the year in which the Soviet Union was disintegrated, and the hope for the Cuban Government collapse was strong.
In this way saw it Andrés Oppenheimer in his book "The final hours of Fidel Castro", whose edition(1992) had the subtitle: "The secret story behind the falling of Comunism in Cuba"; which was changed in the 1993 edition into "The secret story behind the gradual collapse of Comunism in Cuba".
The discovery was made by the Argentine magazine "Humor" (Prisma, January-February, 1994), that emphasized the difference between both editions. And it is clear, in 1993 the imperial euphoria had already passed, although the Torricelli-Graham (Bob) Law was functioning with all the democratic and republican support.
Robert Torricelli expressed, with no amazement, in Section 2, part six of his project law: " The fall of communism in the former Soviet Union and Eastern Europe, the now universal recognition in Latin America and the Caribbean that Cuba provides a failed model of government and development, and the evident inability of Cuba's economy to survive current trends, provide the United States and the international democratic community with an unprecedented opportunity to promote a peaceful transition to democracy in Cuba."
LEGISLATIVE CHARACTERISTICS OF TORRICELLI LAW
This Law was contained in a much more extensive law: Authorization and National Defense Law for fiscal year 1992, or as it was definitively denominate: Authorization of National Defense Law for fiscal year 1993.
It's in Title XVII, Section 1701 of the main Law, that it begins to be treated:
Title XVII, Section 1701:
Title: Cuban Democracy Act of 1992
The original text said: "Cuban Democracy Law of 1991". As it can be seen, there is no other difference than the syntactic one.
Democracy in Cuba. Reference to democracy, reproduced in Helms-Burton Law, which can be found in every declaration made by the U.S. President and U.S foreign policy government employees, is another aspect worthy of being highlighted
It is possible to set down that for the United States the terms of democracy and capitalism goes together, meaning that the shape of the political democracy is equivalent to the capitalist economic system.
This must be the reason why the U.S. government supported all the 70´s military dictatorships, and also conspired to overthrow Salvador Allende in Chile, just because he constituted a route to socialism within the classic bourgeois democracy form.
What interests U.S. in relation to these countries it's the conservation of their highly dependant capitalist fashion under its area of influence. In any way, according to the International Law, each country must choose the political regime it determines without interference from abroad.
LEGAL ORIGIN OF TORRICELLI LAW
The "Democracy in Cuba Act", came up from a U.S. state branch: the United States Congress, reason why, the attempt to regulate the political life of any other sovereign state, lacks absolute validity. It is as if the National Assembly of People's Power of Cuba, could sanction a norm pertaining to Miami, the state of Florida or to any other U.S city .
On this aspect Cuban lawyer Jose Peraza Chapeaux, expressed:
"With no caution, the norm values a foreign government, and assess its internal acts to the detriment of the sovereignty principle, that is the cornerstone of the contemporary International Law, without which it is unthinkable the existence of the international community, because the regulator of this community, because the International Law is, by its own nature, a right of coordination and not of subordination".
There is no other opinion on this matter; we do not know if there is any defending the extraterritoriality right of certain state's sanctioned legal norm to rule another country without its approval. The resolutions condemning the blockade, which were approved in the UN General Assembly, destroy any existing doubt".
SECTION 1704. INTERNATIONAL COOPERATION
"Cuban Trading Partners. The President should encourage governments of countries that conduct trade with Cuba to restrict their trade and credit relations with this country in a manner consistent with the purposes of this title."
The original text had the following subtitle: "Negotiations with other countries"; while now it goes directly to Cuba's commercial partners, meaning absolutely all countries negotiating with Cuba.
This disposition violates the Letter of the United Nations, GATT of 1947 and 1994 and that of the WTO of equal date.
On the other hand, there is an attempt to grant extraterritorial reach to a US internal law.
"Sanctions against countries assisting Cuba"
Sanctions. The President may apply the following sanctions to any country that provides assistance to Cuba: (A) The government of such country shall not be eligible for assistance under the Foreign Assistance Act of 1961 or for assistance or sales under the Arms Export Control Act.
Such country shall not be eligible, under any program, for forgiveness or reduction of debt owed to the United States Government."
"Definition of assistance".
For purposes of paragraph (1), the term "assistance to Cuba" means assistance to or for the benefit of the Government of Cuba that is provided by grant, concessional sale, guaranty, or insurance, or by any other means on terms more favorable than that generally available in the applicable market, whether in the form of a loan, lease, credit, or otherwise, and such term includes subsidies for exports to Cuba and favorable tariff treatment of articles that are the growth, product, or manufacture of Cuba; and (B) does not include -
v donations of food to nongovernmental organizations or
individuals in Cuba, or
v exports of medicines or medical supplies, instruments, or equipment that would be permitted under section 1705(c).
Applicability of section. This section, and any sanctions imposed pursuant to this section, shall cease to apply at such time as the President makes and reports to the Congress a determination under section 1708(a).
After threats and prohibitions come the sanctions for those States that do not accept the Law's extraterritoriality in terms of "cooperation", as it express it. Those are words with a police content. Those who do not "cooperate" with the international gendarme shall receive the corresponding sanctions.
The interference in third countries internal affairs is evident and, of course, this is condemned explicitly by the International Law
On the other hand, the Law defines meticulously what must be understood for assistance, so that nothing could escape of its control. Regarding this, we'll see an increase meticulousness in Helms Burton Law.
This control and its exceptions, say the Torricelli, will not be applied in case of donations of food, but listen! they must go to nongovernmental organizations (surely the so called dissident groups) or physical people who wont be other than those cooperating with the blockade.
It is well known that, from the blockade's very beginning, medicines, medical equipments, etc originated in the U.S. cannot enter Cuba nor any other country in transit to Cuba; but at present these are possible under the conditions we will see.
In order to demonstrate this hypocrisy, is enough to remind the three hundred computers seized by the U.S. Government to "Pastors for Peace", whose destiny were no other than some Cuban health care centres.
SECTION 1705. SUPPORT FOR THE CUBAN PEOPLE
All former aspects were related with the state of Cuba.
This section treats the "assistance" for the Cuban people. It is indicated in the text:
Provisions of Law Affected. The provisions of this section apply notwithstanding any other provision of law, including section 620(a) of the Foreign Assistance Act of 1961, and notwithstanding the exercise of authorities, before the enactment of this Act, under section 5(b) of the Trading With the Enemy Act, the International Emergency Economic Powers Act, or the Export Administration Act of 1979.
This section is applied despite any other law or previous transaction, which implies an extreme inflexibility that is also directed to food donations or medical equipment sales which purpose is to benefit the blockade policy. Let us see:
"Donations of Food. Nothing in this or any other Act shall prohibit donations of food to nongovernmental organizations or individuals in Cuba."
"(c) Exports of Medicines and Medical Supplies. Exports of medicines or medical supplies, instruments, or equipment to Cuba as stated in Section 1705 (c)".
However, in this aspect of food and medicines donations, four exceptions are indicated. These are:
"except to the extent such restrictions would be permitted under section 5(m) of the Export Administration Act of 1979 or section 203(b)(2) of the International Emergency Economic Powers Act
"except in a case in which there is a reasonable likelihood that the item to be exported will be used for purposes of torture or other human rights abuses;
"except in a case in which there is a reasonable likelihood that the item to be exported will be reexported; and
"except in a case in which the item to be exported could be used in the production of any biotechnological product."
But there is another important restriction in this aspect regarding the "assistance" for the Cuban people and it's the following:
Onsite verifications. (A) Subject to subparagraph (B), an export may be made under subsection (c) only if the President determines that the United States Government is able to verify, by onsite inspections and other appropriate means, that the exported item is to be used for the purposes for which it was intended and only for the use and benefit of the Cuban people.
And again there appears another exception:
(B) Subparagraph (A) does not apply to donations to nongovernmental organizations in Cuba of medicines for humanitarian purposes.
Everything is easy to understand, reason why the readers should get their own conclusions. We would like to stop in one item: torture in Cuba.
The Law states that those medical instruments that could be used to torture, could not be exported and this conduct to reframe the human rights subject.
It is well known that Cubans that fought against Batista never tortured a prisoner.
And after 1959 they didn't do it against the mercenaries or dissidents.
That illegal and cruel practice was taught in Latin American countries by the U.S. through military training institutions, mainly as a result of the "North American experience" in Viet- Nam.
So, we can not recognize the U.S. moral authority to proclaim itself a bastion of human rights.
Let us see the licenses theme in order to go on with the other aspects of the Law, related with the "assistance" for the Cuban people.
Licenses. "Exports permitted under subsection (c) shall be made pursuant to specific licenses issued by the United States Government.
It means that in addition to all the exceptions, and the inspection in situ, it is necessary to ask for the respective licenses.
On the other hand, and with the purpose of not giving the least chance, all these specifications are present in the Law's original text.
It recommences the old project with:
(1) Telecommunications services between the United States and Cuba.
(2) Telecommunications facilities. Telecommunications facilities are authorized in such quantity and of such quality as may be necessary to provide efficient and adequate telecommunications services between the United States and Cuba.
(3) Licensing of payments to Cuba. (A) The President may provide for the issuance of licenses for the full or partial payment to Cuba of amounts due Cuba as a result of the provision of telecommunications services authorized by this subsection, in a manner that is consistent with the public interest and the purposes of this title, except that this paragraph shall not require any withdrawal from any account blocked pursuant to regulations issued under section 5(b) of the Trading With the Enemy Act.
(B) If only partial payments are made to Cuba under subparagraph (A), the amounts withheld from Cuba shall be deposited in an account in a banking institution in the United States. Such account shall be blocked in the same manner as any other account containing funds in which Cuba has any interest, pursuant to regulations issued under section 5(b) of the Trading With the Enemy Act.
In addition to the economic damages, there are also others, certified by UNESCO, in the sense that "the blockade decreed by the U.S.A. against Cuba seriously injures the education, science, culture and the communications causing with it severe damages to the spirituality of the Cubans". (6)
The Torricelli-Graham project was less severe, because it admitted the payments although with a certain ceiling (2), (a) and (B).
A paragraph no contained in this one, was added in the definitive sanction:
(g) Assistance To Support Democracy in Cuba. The United States Government may provide assistance, through appropriate nongovernmental organizations, for the support of individuals and organizations to promote nonviolent democratic change in Cuba
This apparently innocent paragraph replaces the original's long dispositions, in which appears a series of measures aiming to undermine the Cuban Government integrity. It contained referring sections to educational, scientific and cultural exchanges, specifying, in addition, the pursued aims:
A) "to promote a greater respect to the human rights".
B) "To promote practical and democratic values".
C) "To stimulate pluralism and the diversity of political points of view within Cuba".
D) "To promote the opposition pacific activities and the recognition of these".
Another section took care of the expenses of the "travellers" and another one, simply of "Attendance for Dissidents and Organizations of Dissidents in Cuba..."
1) "monetary Support to dissidents with no means to support themselves and their relatives";
2) "Support to print writing works made by dissidents in the U.S. and their distribution in Cuba.
3) "Provide with provision of paper and other means..."
4) "Delivery of radios and facsimiles..."
And then, (h), News Buroes. "the President shall permit the opening of buroes in the United States....."