|This informational update gives a brief sketch of the Helms-Burton Law, outlines the arguments for its repeal and presents you with a number of ways to get involved in the struggle for a more rational and just U.S. policy toward Cuba.
In early March 1996, President Clinton signed The Cuban Liberty and Democratic Solidarity Act, tightening the 38-year-old embargo against Cuba. Helms-Burton, as the law is commonly known, is named after its primary sponsors, Senator Jesse Helms of North Carolina and Representative Dan Burton of Indiana.
The bill had been tabled in late 1995 after Senator Helms was unable to overcome several Democratic filibusters, but was reborn and moved swiftly through Congress in February 1996 shortly after two planes piloted by a Cuban exile group were shot down by Cuban fighter jets off the Cuban coast. Despite his previously expressed reservations, President Clinton lent his support to the bill to avoid offending Cuban-American voters in Florida and New Jersey, two states with large numbers of electoral college votes. By the time the dust of crisis had settled, prospects for improved relations between the U.S. and Cuba in the near-term were devastated.
International condemnation of the law was swift and furious. The closest trading allies of the United States, including Canada and Mexico, expressed outrage at the law and immediately threatened varied forms of retaliation.
For their part, the Cuban people reacted with disappointment and anger, recognizing that they would feel the brunt of the latest attempt to strangle Cuba's economy. As a street vendor in Havana said to a reporter days after the passage of Helms-Burton, "we are human beings here. I'm not talking about communism or capitalism. I'm here fighting to make a living like anyone else."
In the past year, a contentious and lively dialogue has emerged around relations between the United States and Cuba. Indeed, the prominence of Helms-Burton has focused the energy of many disparate forces on ending the embargo of Cuba. If 1996 was a year in which the politics of intolerace were at a high point, 1997 may very well be a year of progress for the politics of reason and reconciliation.
The "Libertad" Act
The Cuban Liberty and Democratic Solidarity Act of 1996 contains four "titles." While the majority of mainstream debate has focused on Titles III and IV, all aspects of the bill require attention. Each, in its own way, reflects the irrationality which has afflicted U.S. policy toward Cuba for over 35 years.
Title I. "Strengthening International Sanctions against the Castro Government"
The cornerstone of Title I is the codification of the embargo. Previous to the passage of Helms-Burton, the embargo was actually a myriad of executive orders. The President had the authority to change the policy, strengthen it or loosen it, as he saw fit. Title I restricts the President from taking major steps toward normalization, including negotiating a settlement of the property dispute, without an act of Congress. In addition, Title I restricts goods produced in third countries which contain Cuban inputs from being sold in the U.S.; calls on the President to seek international sanctions against Cuba; and reaffirms U.S. opposition to the funding of Cuba by international financial institutions of which the U.S. is a member, for example, the World Bank.
Title II. "Assistance to a Free and Independent Cuba"
Title II enumerates requirements and factors for determining that a transition toward democracy in Cuba is underway. Until each of these criteria is met, the embargo is to stay in effect. The list contains such requirements as "legalized political activity," the release of all political prisoners, the dissolution of the present Department of State Security, and a public commitment to organize free and fair elections that do not include either Fidel or Raul Castro.
Title II also mandates a report by the Administration to Congress assessing the amount of support the U.S. is willing to give to a "transition" government. This report, released in January 1997, stated the intention of the U.S. government to provide a transitional government with up to $7 billion in aid. The Cuban government immediately branded the offer a bribe.
Title III. "Protection of Property Rights of United States Nationals"
The Helms-Burton law's centerpiece is Title III, which gives U.S. nationals and corporations the right to sue foreign companies which "traffic" in property expropriated from the U.S. entity after the 1959 Cuban Revolution. Trafficking, a term usually reserved for the narcotics trade, refers to involvement in a venture that uses property confiscated by the Cuban government.
Helms-Burton expands the right to sue over confiscated property to individuals and corporations who were not U.S. nationals at the time of the confiscation, but rather who later became U.S. nationals. Cuban exiles with property valued at more than $50,000 at the time of confiscation could collect, as could non-U.S. corporations, such as Bacardi, which later became introduced U.S. operations.
Title IV. "Exclusion of Certain Aliens"
Title IV denies U.S. visas to executives of companies that are found to traffic in confiscated property claimed by a U.S. national, as defined in Title III. It bars entry into the United States to senior officals or major stock holders, and their families, of companies that do business in Cuba on property expropriated from American citizens. Under a Helms-Burton mandate, the State Department keeps an updated "blacklist" of banned foreign executives. To date, executives from Italy, Mexico, Canada and the United Kingdom have been barred.
Helms-Burton At One Year
To say Helms-Burton has been unpopular would be a substantial understatement. The European Union, Canada and Mexico have taken steps to challenge the law in the World Trade Organization and under NAFTA, seeking the nullification of the law on the grounds that it violates international trade law. Many nations have enacted antidote legislation that bars their nationals from complying with Helms-Burton, under the threat of fines.
For Canada in particular, Helms-Burton has become a matter of pride, with that country showing a suprising level of independence from its southern neighbor. Not willing to be outdone by Senator Helms, two members of Canada's parliament, John Godfrey and Peter Milliken, have introduced legislation that allows for loyalists who fled to Canada at the time of the American Revolution to sue U.S. citizens for compensation for property confiscated by the new U.S. government in 1776. Compensation was never provided for the confiscated property.
The forces that have aligned against Helms-Burton, including the business, foreign affairs, academic, church and progressive activist communities are employing different means toward a common end: the repeal of Helms-Burton.
The Primary Arguments for Repealing Helms-Burton
The Property Issue
In 1960, deteriorating bilateral relations between the United States and Cuba following the Cuban Revolution led the government of Fidel Castro to nationalize the holdings of all U.S. corporations. Since this time, no significant progress has been made toward providing compensation to the U.S. nationals for this nationalized property.
Proponents of Helms-Burton claim the law is a legitimate way to resolve the outstanding claims of those who had property confiscated by the Cuban government and to reinforce the primacy of the right to private property in international law. There is no reason to believe this is the case. Indeed, most of the companies with U.S. certified claims to Cuban properties strongly and actively opposed Helms-Burton.
According to international law, Cuba's expropriation of the properties owned by both U.S. and Cuban nationals was in 1960 and remains today solely a domestic matter, exclusively subject to Cuban law. Indeed, opponents to Helms-Burton in the U.S. contended early in Congressional deliberations that the law contradicts even U.S. federal court rulings. For instance, they cited the finding of the U.S. federal court for the southern district of New York that "...confiscations by a state of the property of its own nationals, no matter how flagrant and regardless of whether compensation has been provided, do not constitute violations of international law."
Robert Muse, a prominent international legal expert argues, "In enacting Helms-Burton, the U.S. violated its own explicit statements of adherence to the nationality of claims principle of international law." Incidentally, Cuba has offered to enter into negotiations with the U.S. companies and individuals whose property was nationalized, as it has with the nationals of other countries. But the Cuban government insists that this issue be dealt with in the context of a larger set of negotiations on the future relationship between the U.S. and Cuba.
International Trade Issues
Helms-Burton is the latest incarnation of U.S. efforts to internationalize its embargo of Cuba. Both the 1992 Cuba Democracy Act and Helms-Burton target foreign investment in Cuba, seeking to undermine Cuba's international access to capital.
Foreign nations argue that Helms-Burton violates international trade laws and norms by trespassing on the sovereignty of third countries. These countries regularly refer to the provisions of Helms-Burton that threaten their nationals as "extra-territorial."
Mexico, Canada and the European Union, among others, believe that their trade relationships with Cuba are a matter in which the United States has no right to interfere. Indeed, to many observers, the United States' stance is quite suprising given its policies concerning "free trade" and the interests it has involved in the sucess of that trade and its instruments, including the World Trade Organization. Recall the strong U.S. opposition to the Arab boycott of third countries that traded with Israel.
The U.S. has said, of course, that foreign companies are free to trade with Cuba, so long as they respect as sacred the right of U.S. citizens to their property. This defense rings hollow. U.S. corporations held much of the most valuable land in Cuba before the revolution. Helms-Burton would leave few of the most enticing investment opportunities available. Also, many countries have pointed out that Title III not only directly restricts many companies, but instills a general fear of retaliation in international businesses that even further limits trade. Any business interested in Cuba must take abnormal steps to protect itself, an expense many believe outweighs the gains possible from a relatively small and shaky market. Anyone familiar with the embargo and its attendant restrictions knows this is a well used tactic of U.S. policy.
Means to an End
European officials say the U.S. action clearly demonstrates an "enormous" difference in the two blocs' approach to dealing with Cuba. While Washington is seeking to isolate Havana (a policy that has not yet ousted Castro after 37 years) the E.U. and Canada have gone out of their way to set up a political and economic dialogue with Cuba. The United States, they argue, is accomplishing only one thing by continuing its isolationist tactics: its own isolation in the international community. One reflection of this isolation was the U.N. General Assembly's overwhelming approval (138 - 3) of a resolution protesting the U.S. embargo in November 1996.
Rather than initiating communication with Cuba, which in 1994 resulted in a successful compromise on the topic of immigration, Helms-Burton further pushes the U.S. relationship with Cuba into one of non-negotiation.
Drug traffic intradiction might head the long list of potential areas of cooperation. In early 1997, the Cuban and U.S. Coast Guards acted together to search a boat suspected of being a drug courier, eventually seizing nearly 6 tons of cocaine. Despite this example, the U.S. refuses to enter into a bi-lateral program with Cuba to reduce drug trafficking.
The Cuban People?
Many analyses of Helms-Burton, and indeed of U.S. policy on the whole have overlooked the interests of those U.S. policy supposedly assists: the Cuban people. Helms-Burton is unarguably another step in efforts to undermine the economic security of the Cuban people.
It has been clearly shown, most recently in a report by the American Association of World Health, that the U.S. embargo negatively affects the health and well-being of the Cuban people. A policy that endangers the Cuban population does not reflect the moral sentiments of the majority of the U.S. population.
But beyond moral imperative, most analysts agree that current U.S. policy, in that it is reactive and poorly formulated, strengthens the hand of hard liners in the Cuban government. Certainly this is not in the interests of the Cuban people.
Regardless of their political sentiment, the people of Cuba desire an end to the hostility that exists between their government and that of the United States. The Cuban people simply want the opportunity to chart their own course, free of U.S. interference.