Tag: Helms-Burton (Libertad) Act

European and Other Countries’ Reactions to New U.S. Anti-Cuban Policies

Strong objections to the  new U.S. policies regarding Cuba have been registered by Europe and Canada, both major investors in, and having significant business with, Cuba. Russia also objects for more strategic reasons.

Europe and Canada[1]

The EU is the largest foreign investor in Cuba and the latter’s top export market. In December 2016, the EU and Cuba concluded a new framework for boosting economic and trade links that were encouraged by the Obama administration’s efforts to reset relations with Havana. Some European companies, including Spanish hotel chain Meliá Hotels International SA, recently have announced fresh investments there.

Immediately after the U.S. announcement of the activation of Title IIII of the Helms-Burton Act, the EU  by its High Representative/Vice President Federica Mogherini and its Commissioner for Trade Cecilia Malmström) issued this joint statement: “In the light of the United States Administration’s decision to not renew the waiver related to Title III of the 1996 Helms-Burton (LIBERTAD) Act, the European Union reiterates its strong opposition to the extraterritorial application of unilateral Cuba-related measures that are contrary to international law. This decision is also a breach of the United States’ commitments undertaken in the EU-US agreements of 1997 and 1998, which have been respected by both sides without interruption since then. In those agreements, the US committed to waive Title III of the Helms-Burton Act and the EU, inter alia, suspended its case in the World Trade Organization against the US.”

This EU statement added, “The EU will consider all options at its disposal to protect its legitimate interests, including in relation to its WTO rights and through the use of the EU Blocking Statute. [This EU Statute] prohibits the enforcement of US courts judgements relating to Title III of the Helms-Burton Act within the EU, and allows EU companies sued in the US to recover any damage through legal proceedings against US claimants before EU courts.”

Canada, whose companies are other major investors in, and conductors of business with, Cuba, also issued an immediate rejection of this U.S. change of policy. Its Minister of Foreign Affairs, Chrystia Freeland, stated, “Canada is deeply disappointed with today’s announcement. We will be reviewing all options in response to this U.S. decision.” She added the following:

  • “Since the U.S. announced in January it would review Title III, the Government of Canada has been regularly engaged with the U.S. government to raise our concerns about the possible negative consequences for Canadians—concerns that are long-standing and well known to our U.S. partners.”
  • “I have met with U.S. Secretary of State Mike Pompeo to register those concerns. Canadian and U.S. officials have had detailed discussions on the Helms-Burton Act and Canada’s Foreign Extraterritorial Measures Act. I have also discussed this issue with the EU.”
  • Finally, “I have been in contact with Canadian businesses to reaffirm we will fully defend the interests of Canadians conducting legitimate trade and investment with Cuba.”

According to EU Ambassador to the U.S., Alberto Navarro, there is “enormous worry” by European businesses.  “There are business people who’ve been . . .[in Cuba] 20, 30 years, who’ve made bets on investing their financial resources in Cuba to stimulate commerce, tourism, international exchange, and many of them tell me that they haven’t lived through a similar situation.” He also said, “”any country can adopt whatever legislation it wants, and apply the law within its own country, we can criticize whether we like it or not. What that country cannot do is impose its legislation on others. We are the front line of defense in Cuba, and obviously have legitimate interests in Cuba and we want to defend them and protect our citizens and our investors.”

The EU and Canada also issued a joint statement that said the U.S. decision would have “an important impact on legitimate EU and Canadian economic operators in Cuba” and that they would seek to use the WTO dispute-resolution framework to protect their companies. This U.S. decision was “regrettable” and an “extraterritorial application of unilateral Cuba-related measures contrary to international law.” It “can only lead to an unnecessary spiral of legal actions.”

The EU and Canada already have so-called blocking statutes against some U.S. sanctions on Cuba, which bans the enforcement of U.S. court judgments against EU and Canadian firms and allows counterclaims to be filed against U.S. firms bringing legal action. However, these blocking statute have rarely been used.

A former Canadian ambassador to Cuba, Mark Entwistle, got it right when he opined that the origins of these new U.S. policies “lie partly in the historic dynamics of American presidential politics and partly in an obsession in some circles about a mythical existential threat posed by the developing Caribbean island nation.”

Moreover, according to Entwistle, the activation of Title III of the Helms-Burton Act “seeks to impose American domestic law on other countries” or attempts “to off-load responsibility to third parties and internationalize what is and should be a bilateral issue between the United States and Cuba.” This is extraterritoriality that “ violates basic sovereignty,”  supposedly highly valued by Trump. This recent Trump decision, however, fits with his scepticism of, if not outright hostility towards,  rules-based multilateral systems.

These sentiments were echoed by EU member, France, whose Finance Minister Bruno Le Maire said Europe would respond to any sanctions by the U.S. on investments in Cuba. “If the American administration decided to also impose a regime of sanctions on investments in Cuba, in contravention of what has been decided for several years now by our American allies, we would react. Europe would also react and is ready to also impose sanctions at our end.”

In Spain, another EU member which has large investments in hotels and other tourism-related ventures on the island, a senior government official said its government  promised that it will ‘absolutely support’ Spanish companies established on the island in the face of the U.S. new policies and that it understands that “the EU will support, together with Spain, those companies that have their commercial activities, legitimate and well organized in Cuba and in other countries.”

Another EU member, Portugal, joined the choir by saying that it “regrets the US decision to authorize the filing of legal actions in its territory [under] . . .Title III of the Helms Burton Law against certain foreign companies operating in Cuba, ” This U.S. decision “reinforces the commercial tension between the [EU] . . .and the United States.”

The United Kingdom’s Foreign Office joined in these objections. It stated, “The extraterritorial application of … sanctions, which we consider to be illegal under international law, threaten to harm UK and EU companies doing legitimate business in Cuba by exposing them to liability in U.S. courts. We will work alongside the EU to protect the interests of our companies.”

Also critical was Ivan Briscoe, the Latin American director for the International Crisis Group, an independent Belgium-based organization “working to prevent wars and shape policies that will build a more peaceful world” and to sound “the alarm to prevent deadly conflict.” He said, John Bolton’s “honoring one of U.S.’ greatest military fiascos from 60 years back [the Bay of Pigs invasion] suggests U.S. policy to Latin America owes more now to a perverse Cold War nostalgia than practical benefits for people of the region.”

Mexico added its objections to the new U.S. measures. It said that it “lamented” the U.S. decision that the government will work to protect Mexican companies that have business interests in Cuba.

Russia[2]

Russia’s Deputy Foreign Minister Sergei Ryabkov considers the new U.S. sanctions against Cuba and Venezuela to be illegal and it plans to do everything to support its allies in these two countries. “Venezuela and Cuba are our allies and strategic partners. We join the voices of those who condemn US impositions on Latin America or any other region of the world.”

A spokeswoman of the Russian Foreign Ministry, Maria Zajárova, added that Moscow “is against any unilateral sanction.”

Conclusion

This blog supports the objections from the EU and its members, including the United Kingdom (still a member), Canada and Mexico. Also deserving special commendation is Ivan Brisco’s rejecting John Bolton’s statement:“honoring one of U.S.’ greatest military fiascos from 60 years back [the Bay of Pigs invasion as suggesting that] U.S. policy to Latin America owes more now to a perverse Cold War nostalgia than practical benefits for people of the region.”

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[1] EU, Joint Statement by High Representative/Vice President Federica Mogherini and Commissioner for Trade Cecilia Malmström on the decision of the United States to further activate Title III of the Helms-Burton (Libertad) Act (April 17, 2019) (his EU Joint Statement was issued shortly after the EU’s Press Release, EU, Latin America and Caribbean: Partnering for prosperity, democracy, resilience and global governance (April 17, 2019)); Assoc. Press, EU Ambassador: Trump Cuba Policy Worries European Companies. N.Y. Times (April 24, 2019); Global Affairs Canada, Government of Canada will defend interests of Canadians doing business in Cuba  (April 17, 2019); Entwistle, The Trump Administration’s new Cuba restrictions are harmful and belligerent, Toronto Globe & Mail (April 19, 2019); Anchfield, Canada pushes back against U.S. move to allow lawsuits against foreign firms in Cuba, Toronto Globe & Mail (April 27, 3029); Norman & McBride, EU, Canada Vow to Fight New U.S. Sanctions on Cuba,  W.S.J. (April 17, 2019); The European Union could prohibit the application of Judgments of US courts against their companies, Diario de Cuba (April 17, 2019); Reuters, Europe Would Respond to Any U.S. Sanctions on Investments in Cuba: French Minister, N.Y. Times (April 18, 2019); Madrid promises to ‘defend” the interests of Spanish companies in Cuba, Diario de Cuba (April 17, 2019); Parra, Spain wants EU to challenge US policy in Cuba, Wash. Post (April 17, 2019); Portugal: Application of Helms-Burton reinforces commercial tension between the European Union and the US, Cubadabate (April 20, 2019); Reuters, UK Condemns U.S. Application of Cuba Sanctions to Foreign Companies, N.Y. Times (April 18, 2019); Reactions: Canada and Mexico promise to protect their companies in Cuba,  Diario de Cuba (April 18, 2019); Reuters, Trump’s Cuba Hawks Try to Squeeze Havana Over Venezuela Role, N.Y. Times (April 18, 2019); Gómez, What antidotes are there against Helms-Burton?, Cubadebate (April 25, 2019) (details about these laws against Helms-Burton Act: 1996 EU Statute of Blockade, the 1996 Canadian Foreign Extraterritorial Measures Act, the 1996 Mexico Law on Protection of Trade and Investment of Foreign Standards that Contravene International Law and the 1996 Cuba Law of Reaffirmation of Cuban Dignity and Sovereignty (Law 80)).

[2] Reuters, Russia Says It Will Help Venezuela, Cuba to Weather U.S. Sanctions: RIA, N.Y. Times (April 18, 2019); Assoc. Press, Putin Envoy in Caracas Rejects US Revival of Monroe Doctrine, N.Y. Times (April 18, 2019).

 

National Security Advisor Bolton Discusses New U.S. Sanctions Against Cuba

On April 17, as discussed in a prior post, the U.S. State Department announced new sanctions against Cuba. The major change was eliminating the waiver of Title III of the Helms-Burton (LIBERTAD) Act allowing U.S. litigation by U.S. owners of Cuban property that was expropriated by the Cuban government in the early years of the Cuban Revolution. This Act also allows the U.S. to deny or revoke U.S. visas to any person or corporate officer “involved in the confiscation of property or trafficking in confiscated property,” as well as their family members.

Later that same day in a Miami speech National Security Advisor John Bolton  proudly announced that “President Trump decided to END the Helms-Burton Title III Waivers, once and for all and that under Title IV of Helms-Burton no U.S. visas would be issued to “anyone who traffics in property stolen from Americans.” In addition, Bolton announced additional anti-Cuba measures.[1] As noted in a prior post, Bolton’s hostility towards Cuba is not new.

The Additional New Sanctions

The additional new sanctions announced by Bolton are the following:

  • Remittances from Cubans in the U.S. to family members on the island will be reduced by the U.S. Treasury Department to $1,000 per person [payor or payee?] per quarter. According to Bolton, the unlimited remittances permitted by the Obama Administration had allowed the Cuban government to evade U.S. sanctions and obtain access to hard currencies.
  • “Non-family travel” or “veiled tourism” to Cuba will be subject to new (and unspecified) restrictions in order to “steer American dollars away from the Cuban regime, or its military and security services, who control the tourism industry in Cuba.” (However, there still are 12 categories of permissible U.S. nationals travel to Cuba under Treasury Department regulations.)
  • The State Department will add five companies to its Cuba Restricted List, including Aerogaviota, an airline controlled by Gaviota, a group of tourism-relative companies controlled by the Cuban Armed Forces.[2]
  • The U.S. Treasury Department will adopt new regulations to “end the use of “U-turn transactions,” which allow the regime to circumvent sanctions and obtain access to hard currency and the U.S. banking system.”

Bolton’s Remarks

Bolton, once again, referred to Cuba, Venezuela and Nicaragua as the “troika of tyranny” and their leaders as “the three stooges of socialism.” They all now are “beginning to crumble” and the U.S. “looks forward to watching each corner of this sordid triangle of terror fail.”

While accusing Cuba of propping up Venezuela’s Maduro with thousands of security force members in the country, Bolton also warned “all external actors, including Russia, against deploying military assets to Venezuela to prop up the Maduro regime.”. The United States will consider “such provocative actions a threat to international peace and security in the region.” Bolton noted  that Moscow recently sent in military flights carrying 35 tons of cargo and a hundred personnel.

In short, from Bolton’s perspective, “the destinies of our nations will not be dictated by foreign powers; they will be shaped by the people who call this Hemisphere hme. Today, we proudly proclaim for all to hear: the Monroe Doctrine is alive and well.” (Emphasis added.)

In addition, Bolton had harsh words for President Obama’s efforts to normalize relations with Cuba. The National Security Advisor said, “Tragically, the Obama administration’s misguided Cuba policy provided the Cuban regime with the necessary political cover to expand its malign influence and ideological imperialism across the region.” He added, “In no uncertain terms, the Obama administration’s policies toward Cuba have enabled the Cuban colonization of Venezuela today.” The Trump Administration’s changes were designed to reverse “the disastrous Obama-era policies, and finally end the glamorization of socialism and communism.”

“To justify its policy of normalizing relations with Cuba, President Obama said Cuba (quote) ‘poses no genuine threat.’ Tell that to the American diplomats who were attacked in Havana. Tell that to the terrorized people of Venezuela. The reality is that the Obama government sought to normalize relations with a tyrannical dictatorship.”  In contrast, Bolton reminded his audience that Trump met with Cuban opposition activists like the Ladies in White and called the late Fidel Castro “a brutal dictator.”

Bolton also implicitly criticized Obama by saying “Naïve beliefs have now given way to clear-eyed common sense. We are no longer surrendering American liberty in the name of global governance. We are no longer selling out our friends to appease our adversaries. [We] are no longer sacrificing the interests of the American people to pursue idealistic fantasies—in Havana, Tehran, or anywhere else.”

After reciting the U.S. and allies’ efforts regarding Venezuela, Bolton said when Maduro falls, “we know that Cuba will be next.”

“Let me be clear: The Trump administration will NEVER, EVER abandon you,” Bolton said. “We will need your help in the days ahead. We must all reject the forces of communism and socialism in this hemisphere — and in this country.”

The Ignominious Timing and Location of the Announcement

Bolton intentionally and ignominiously chose the date and location for this announcement. Last week Bolton tweeted, “[I am] Pleased to announce that I will be joining the Bay of Pigs Veterans Association on April 17 in Miami to deliver remarks on the important steps being taken by the Administration to confront security threats related to Cuba, Venezuela, and the democratic crisis in Nicaragua.”

The date, April 17, was the 58th anniversary of the U.S. disastrous invasion of Cuba’s Bay of Pigs (Playa Girón). Recall that this failed military invasion of Cuba was undertaken by the Central Intelligence Agency (CIA)-sponsored paramilitary group Brigade 2506.  The U.S. gravely underestimated the force-power in Cuba and consequently led their troops to their own destruction. The U.S.-sponsored combatants were members of a counter-revolutionary military group (made up of mostly Cuban exiles who had traveled to the U.S. after Castro’s takeover plus some U.S. military personnel).This invading force was defeated within three days by the Cuba Revolutionary Armed Forces under the direct command of Fidel Castro.[3]

The location of Bolton’s remarks was  the Miami gathering of the Bay of Pigs Veterans Association. In his remarks Bolton paid them homage. He compared the aging Cuban Americans to “the brave men of Bunker Hill, Belleau Wood and Normandy,” and said the new measures were being undertaken to “honor your courage . . . by boldly confronting the evils of socialism and communism in the hemisphere.”

In his remarks, Bolton said, “This is just the beginning. As long as the people of Cuba, Venezuela and Nicaragua stand for freedom, the United States will stand with them. The remarkable story of Brigade 2506 helped inspire President Trump’s hard-hitting Cuba policy. During the 2016 campaign, he visited you here in Miami, he heard your heroic accounts, he saw your stirring pictures and today he is proud to stand by your side.”

“Together, we can finish what began on those beaches, on those famous days in April, 58 years ago today,” Bolton said to rousing applause from the aging brigade members who backed Trump in 2016 when he narrowly won the state.

Conclusion

Bolton’s vigorous embrace of the Monroe Doctrine is outrageous. That Doctrine is a self-proclaimed right to intervene militarily and otherwise in any other country in the Western Hemisphere when a U.S. president deems it appropriate.  From a Latin America perspective it was often seen as a U.S. license to intervene at will in other countries’ internal affairs and is contrary to international law. It, therefore, was entirely appropriate for then Secretary of State John Kerry in 2013 to state that “ the Monroe Doctrine is dead once and for all.”[4]

Also inappropriate was Bolton’s criticism of President Obama’s adoption of policies to normalize U.S.-Cuba relations. I thought and still think that was one of his administration’s greatest accomplishments.[5]

Another objection needs to be registered to Bolton’s comments about the Bay of Pigs. The U.S. financed, organized and ineptly assisted the Bay of Pigs invasion, I always have regarded it as horrible stain on U.S. relations with Cuba that repeatedly needs to be denounced.

Future posts will look at reactions to these U.S. policies from Cuba, the U.S. and other countries.

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[1] This post was updated after discovering on April 20 the text of Bolton’s speech on the website of the U.S. Embassy in Cuba.  See U.S. Embassy in Cuba, Ambassador Bolton Bay of Pigs Veterans Asociation-Brigade 2506 (April 17, 2019); Gámez Torres, Bolton coming to Miami to discuss U.S. action on Miami to discuss action on Cuba, Venezuela and Nicaragua, Miami Herald (April 12, 2019); Solomon, Reichmann & Lee (AP), Trump Cracks Down on Cuba, Nicaragua and Venezuela, Wash. Post (April 17, 2019); DeYoung, Trump administration announces new measures against Cuba, Wash. Post (April 17, 2019); Bolton announces new sanctions against Cuba, Venezuela and Nicaragua, Wash. Post  (Jan. 17. 2019 (partial video of Bolton’s remarks); Gámez Torres, U.S. restricts travel, remittances to Cuba as part of a new policy under Trump, Miami Herald (April 17, 2019).

[2] These five entities were added to the Cuba Restricted List on April 24, 2019: State Dep’t, Department of State Updates the Cuba Restricted List (April 24, 2019); State Dep’t, List of Restricted Entities and Subentities Associated with Cuba as of April 24, 2019 (April 24, 2019). See also these posts to dwkcommentarie.com: New Restrictions on U.S. Travel to Cuba and Transactions with Certain Cuban Entities (Nov. 8, 2017); More Cuban Businesses Forbidden to U.S. Visitors (Nov. 16, 2018); U.S. Authorizes U.S. Litigation Against Entities on Cuba Restricted List (Mar. 5, 2019); Cuba Modifies Its Cuba Restricted List (Mar. 13, 2019).

[3] Bay of Pigs Invasion, Wikipedia; Brigade 2506: Official Site of the Bay of Pigs Veterans Association.

[4] Johnson, Kerry Makes It Official: ‘Era of Monroe Doctrine Is Over,’ W.S.J. (Nov. 18, 2013).

[5] See posts listed in the “U.S. (Obama) & Cuba (Normalization), 2014,” “U.S. (Obama) & Cuba (Normalization), 2015,” “U.S. (Obama) & Cuba (Normalization), 2016,” and “U.S. (Obama) & Cuba (Normalization), 2017” sections of List of Posts to dwkcommentaries—Topical: Cuba.

 

State Department’s Announcement of New Sanctions Against Cuba

On April 17, the U.S. announced new sanctions against Cuba. The major change was eliminating the waiver of Title III of the Helms-Burton (LIBERTAD) Act allowing U.S. litigation by U.S. owners of Cuban property that was expropriated by the Cuban government in the early years of the Cuban Revolution. This Act also allows the U.S. to deny or revoke U.S. visas to any person or corporate officer “involved in the confiscation of property or trafficking in confiscated property,” as well as their family members.[1]

State Department’s Announcement of Sanctions[2]

The State Department made the official announcement of this change in remarks to the Press by Secretary of State Mike Pompeo, who said the following:

  • “In 1996, Congress passed the Cuban Liberty and Democratic Solidarity Act, also known as Libertad. Until Title III of that act, United States citizens who had their property confiscated by the Castro regime were given the right to file suit against those who traffic in such properties.”
  • “But those citizens’ opportunities for justice have been put out of reach for more than two decades. For now more than 22 years, every president, every secretary of state has suspended Title III in the hope that doing so would put more pressure on the Cuban regime to transition to democracy.”
  • The “Trump administration recognizes reality. We see clearly that the regime’s repression of its own people and its unrepentant exportation of tyranny in the region has only gotten worse because dictators perceive appeasement as weakness, not strength.”
  • “President Obama’s administration’s game of footsy with the Castros’ junta did not deter the regime from continuing to harass and oppress the heroic Ladies in White, a group of women dedicated to peacefully protesting the regime’s human rights abuses.”
  • “More broadly, the regime continues to deprive its own people of the fundamental freedoms of speech, press, assembly, and association. Indeed, according to NGO reports, Cuban thugs made more than 2,800 arbitrary arrests in 2018 alone. In the run-up to the country’s recent sham constitutional referendum, one that enshrined the Communist Party as the only legal political party in Cuba, the regime harassed, beat, and detained leaders and – opposition leaders and activists. Three hundred and ten people were arbitrarily detained according to the Cuban Commission on Human Rights and National Reconciliation.”
  • “Cuba’s behavior in the Western Hemisphere undermines the security and stability of countries throughout the region, which directly threatens United States national security interests. The Cuban regime has for years exported its tactics of intimidation, repression, and violence. They’ve exported this to Venezuela in direct support of the former Maduro regime. Cuban military intelligence and state security services today keep Maduro in power.”
  • “Sadly, Cuba’s most prominent export these days is not cigars or rum; it’s oppression. Detente with the regime has failed. Cozying up to Cuban dictators will always be a black mark on this great nation’s long record of defending human rights.”
  • “For these reasons, I’m announcing that the Trump administration will no longer suspend Title III. Effective May 2nd, . . . the right to bring an action under Title III of the Libertad Act will be implemented in full. I have already informed Congress of my decision.”
  • “Implementing Title III in full means a chance at justice for Cuban Americans who have long sought relief for Fidel Castro and his lackeys seizing property without compensation. For the first time, claimants will be able to bring lawsuits against persons trafficking in property that was confiscated by the Cuban regime. Any person or company doing business in Cuba should heed this announcement.”
  • “In addition to being newly vulnerable to lawsuits, they could be abetting the Cuban regime’s abuses of its own people. Those doing business in Cuba should fully investigate whether they are connected to property stolen in service of a failed communist experiment. I encourage our friends and allies alike to likewise follow our lead and stand with the Cuban people.”
  • “As I said throughout my trip to South America this last week, the Trump administration is committed to helping grow the wave of democracy, good governments, and openness, which is steadily building throughout the entire Western Hemisphere. On my trip last week, I saw these positive changes firsthand, and told our friends and allies that we’re with them. We’re on the side of what’s right and what is just.”
  • “Today we are holding the Cuban Government accountable for seizing American assets. We are helping those whom the regime has robbed get compensation for their rightful property. And we’re advancing human rights and democracy on behalf of the Cuban people.”

Immediately after the Secretary’s remarks, Kimberly  Breier, Assistant Secretary of State for Western Hemisphere Affairs, responded to journalists’ questions. Here are her significant responses:

  • “[O]bviously we’ve been in very deep and close contact with our allies in Europe and Canada and around the world as we consulted on this decision over the past several months as the Secretary had been shortening the period of suspension with his previous decisions. I think it’s clear if you look in the macro sense we have broad agreement with our allies in Europe and Canada and around the world on the policy objective, which is to promote democracy in Cuba and to free the Cuban people from the tyranny that they live under.”
  • “We are in broad agreement on this. Where we sometimes disagree is on the best way to achieve that. And I think at the end of the day, you’ll need to speak to the European Union and to our allies as to what response they will have, but I would like to emphasize that European companies that are operating in Cuba will have nothing to worry about if they are not operating on property that was stolen from Americans post-revolution. So I think the vast number of European companies will not have any concerns operating in Cuba.”
  • We “took a decision today based on our laws and our sovereign concerns for the property of American citizens and Europeans will respond as they see fit, and we will continue to work closely with them on this policy and on the policy in Venezuela.”
  • The “decision today is part of the trajectory that started with the Trump Administration’s NSPM-5, which was announced in June of 2017.[3]The objective of that was . . . to support the Cuban people and to deny resources to the regime, and in particular to the security services in Cuba. So this is part of a trajectory. We have since published a Cuba restricted list. We have since amended the restricted list several times, and this is part of the trajectory of the administration trying to ensure that we support the people of Cuba and not the regime of Cuba.”
  • The “Secretary’s decision was about the actions of the Cuban regime; certainly, the actions of the Cuban regime in Venezuela are part of the context of the moment in which we are living. And we are very clear, and . . . the Lima Group, which is a group of 12 countries in the Western Hemisphere, for the very first time this week announced its concern over Cuba’s role in Caracas and made public its concern, and called on the Cuban regime to support the transition in Caracas. So I think it’s a very important moment in our relations in the hemisphere as well.”
  • Over “the past two years building off of NSPM-5 and looking at the various tools that we have to implement the President’s vision for how we would conduct this policy. I think you’re going to be seeing quite a bit more from us, and that this is the beginning of a new process on this that recognizes the reality on the ground in Cuba, which is in the past 20-plus years the underlying reality in Cuba has not changed for the average Cuban..[There was no direct response to the question about whether the U.S. was considering t returning Cuba to the State Sponsors of Terrorism list.[4]]
  • “There will not be any exemptions [from this new sanction for any U.S. company doing business in Cuba].” (Emphasis added.)
  • The “Foreign Claims Settlement Commission . . . has certified nearly 6,000 claims for property confiscated in Cuba with a total value of approximately 2 billion. With interest, we believe that value is somewhere in the $8 billion range. The most recent estimate we have from 1996, at the time that the law was enacted, that there could be up to 200,000 uncertified claims that were not certified by the Foreign Claims Settlement Commission, and that value could very easily be in the tens of billions of dollars. But it will depend on, of course, whether claimants decide to pursue legal cases or not.”[5]

The day before the official announcement in an embargoed briefing for journalists, an unidentified senior State Department official said that foreigners who have been trafficking in such properties  have “had over 20 years of profiting from property stolen from American citizens.”

Hints of This and Other Anti-Cuba Measures[6]

For the last several weeks the Administration has been hinting that more anti-Cuba measures were coming.

One such  hint came from Vice President Mike Pence at a U.N. Security council meeting on April 10, when he said, “For decades, Cuba has tried to create client states across our region.  While normal countries export goods, Cuba exports tyranny and strong-arm tactics.  Even now, Cuban military and intelligence services train and support and equip Venezuela’s secret police as they silence opponents, jail and torture members of the opposition.” Pence added, “Last week, the United States took action to sanction ships transporting Venezuelan oil to Cuba.  And soon, at President Trump’s direction, the United States will announce additional action to hold Cuba accountable for its malign influence in Venezuela.” (Emphasis added.)

 Two days later, President Trump issued his Proclamation on Pan American Day and Pan American Week, which said, in part, “Sadly, the people of Cuba, Venezuela, and Nicaragua continue to live under tyranny and authoritarianism.  The brutality and corruption of the illegitimate former regime in Venezuela has crippled the country and brought it to ruin.  We must not forget that the struggle is one between dictatorship and democracy, between oppression and freedom, and between continued suffering for millions of Venezuelans and an opportunity for a renewed future of freedom and prosperity.  The community of democracies in our Western Hemisphere must continue to support the people of Venezuela, Cuba, and Nicaragua as they fight for the restoration of democracy and liberty. (Emphases added.)

Another tip came from the State Department when it announced that  that the U.S. was adding four companies and nine vessels  to the list of Venezuelan companies  that were sanctioned for transporting oil to Cuba.[7] The Department also said the U.S.“will continue to do all we can to stand up against Cuba’s support for the former Maduro regime and its hostility to the Venezuelan people’s aspiration to a peaceful, prosperous, democratic future. Cuba’s intervention only seeks to delay the inevitable—the peaceful transition back to freedom and democracy that is underway in Venezuela, led by the Venezuelan people, Interim President Juan Guaido, and the National Assembly.”  (Emphasis added.)

Another hint came directly from Secretary Pompeo on April 14 in a speech in Cucata, Colombia, when he said, “ “Cubans must understand too that there will be cost associated with continued support of Nicolas Maduro.”  (Emphasis added.)

Conclusion

Later the same day (April 17), U.S. National Security Advisor John Bolton in a speech in Miami addressed these new sanctions and other santi-Cuba measures that will be discussed in a subsequent post. Another post will review the responses to these new measures from the U.S., Cuba, Europe and Canada.

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[1]  Baker, Trump to Increase Pressure on Cuba by Lifting Lawsuit Limits, N.Y. Times (April 16, 2019); Reuters, In Major Shift, Trump to Allow Lawsuits Against Foreign Firms, N.Y. Times (April 16, 2019); Assoc. Press, Trump to Allow Lawsuits Over US Properties Seized in Cuba, N.Y. Times (April 16, 2019); DeYoung, Trump administration will allow U.S. citizens to sue over property seized after 1959,  Wash. Post (April 16, 2019).

[2] State Dep’t, [Secretary Pompeo’s] Remarks to the Press (April 17, 2019); State Dep’t, Briefing With Assistant Secretary for Western Hemisphere Affairs, Kimberly Breier (April 17, 2019).

[3] NSPM refers to National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (June 16, 2017). See President Trump Announces Reversal of Some Cuba Normalization Policies, dwkcommentaries.com (June 19, 2017).

[4] See posts listed in the “Cuba: State Sponsor of Terrorism?” section of List of Posts to dwkcommentaries—Topical: CUBA.

[5]  See Resolution of U.S. and Cuba Damage Claims, dwkcommentaries.com (April 6, 2015).

[6] White House, Remarks by Vice President Pence at a Special Session of the United Nations Security Council  on the Crisis in Venezuela/New York, NY (April 10, 2019); White House,  Proclamation on Pan American Day and Pan American Week (April 15, 2019); State Dep’t, The United States Takes Action To End Cuba’s Malign Influence on Venezuela (April 12, 2019).

 

Another Two Week Suspension of Title III of the Helms Burton Act

On April 3, the U.S. Department of State stated, “Today, Secretary of State Michael R. Pompeo announced his decision to continue for two weeks, from April 18 through May 1, 2019, the current suspension with an exception of the right to bring an action under Title III of the 1996 Cuban Liberty and Democratic Solidarity (LIBERTAD) Act. The current suspension expires April 17.” The statement also noted that the  Suspension does not apply to: the “right to bring an action against a Cuban entity or sub-entity identified by name on the State Department’s List of Restricted Entities and Sub-entities Associated with Cuba (known as the Cuba Restricted List), as may be updated from time to time.“ [1]

The Department’s statement added, “The Department continues to examine human rights conditions in Cuba, including ongoing repression of the rights of the Cuban people to free speech, free expression and free assembly. The Department is also monitoring Cuba’s continued military, security, and intelligence support to Nicolas Maduro, who is responsible for repression, violence, and a man-made humanitarian crisis in Venezuela.” Therefore, “We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting the Cuban dictatorship.”

Comments at U.S. Reception Honoring NATO

Perhaps this U.S. statement was made at this time because the U.S. was hosting a celebration of NATO’s 70th anniversary with representatives of other NATO members, many of whom object to the prospect of U.S. litigation against foreign firms for using Cuban property formerly owned by U.S. nationals. [2]

One prominent spokesman of such objections was Spain’s Foreign Minister Joseph Borrell, who said his country “has told the U.S. administration that Spain is concerned about Washington’s potential decision to allow U.S. citizens to sue foreign firms doing business in Cuba.” The Spanish message included “its firm rejection, as a matter of principle, to the extraterritorial application of national sanction laws, considering it contrary to international law,” This was the Foreign Minister’s message on April 1 to U.S. Secretary of State Mike Pompeo and on April 3 to U.S. National Security Advisor John Bolton.[3]

Canadian Foreign Minister Cryslia Freeland also met with Secretary Pompeo on this occasion and told him that “the Government of Canada will defend the interests of Canadians conducting legitimate trade and investment with Cuba, if the United States enforces Title III of the Helms-Burton Act.” [4]

 Cuba’s Reactions [5]

After the announcement of the new two-week suspension, Cuba Foreign Minister Bruno Rodriguez issued the following two tweets:

  • The first said (per Google Translate), “I reject the announcement of . . . [Secretary Pompeo] about #HelmsBurton law, an aberration that should never have existed. [It] violates International Law, damages all #Cuba, each family. 191 countries claim to be eliminated in its entirety. US aggression against #Venezuela must cease without further pretexts.” ·
  • The second (again per Google Translate) said the following: “The Helms-Burton Act is not applicable in #Cuba or against Cubans or foreigners. It’s “Monroeist” [Monroe Doctrine] domination purpose arouses the overwhelming rejection of the international community. The new measures are isolating the #US even more. They will fail to achieve their goals.”

Cuba’s President, Miguel Díaz=Canel, also tweeted on this development. He said (per Google Translate): “We reject the #EEUU announcement on #HelmsBurton law. They persist in the threats, with arrogance they pose a genocidal law that violates International Law, condemns #Cuba and Cuban families. 191 countries demand [in U.N. General Assembly] that it be eliminated in its entirety. #SomosCuba”

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[1] State Dep’t, Secretary Pompeo Extends for Two Weeks Title III Suspension with an Exception (LIBERTAD Act) (April 3, 2019).

[2] State Dep’t, Remarks at the Reception to Celebrate NATO’s 70th Anniversary (April 3, 2019); State Dep’t, Briefing on the Upcoming NATO Ministerial (April 2, 2019).

[3] Reuters, Spain Rejects Possible U.S. Lawsuits Against Foreign Firms in Cuba, N.Y. Times (April 3, 2019); Guimōn,  The US repeals and prolongs the suspension of a law that would toughen the embargo on Cuba, El Paīs (April 3, 2019).

[4] Gomez,  Canada will defend its investments in Cuba if the United States applies title III of Helms-Burton, CubaDebate (April 4, 2019); Readout of Foreign Affairs Minister’s meeting with U.S. Secretary of State, Global Affairs Canada (April 4, 2019).

[5] Havana rejects the new partial suspension of the Helms-Burton, DiariodeCuba (April 4, 2019).

 

 

U.S. Authorizes U.S. Litigation Against Entities on Cuba Restricted List

On January 16, 2019, U.S. Secretary of State Mike Pompeo extended for 45 days the right to bring certain lawsuits in U.S. federal courts  by Americans who owned property in Cuba that was confiscated by its government. The stated reasons for this 45-day extension, instead of the long-standing practice of granting six-month extensions was to “permit us to conduct a careful review of the right to bring action under Title III [of the Helms-Burton or LIBERTAD Act] in light of the national interests of the United States and efforts to expedite a transition to democracy in Cuba and include factors such as the Cuban regime’s brutal oppression of human rights and fundamental freedoms and its indefensible support for increasingly authoritarian and corrupt regimes in Venezuela and Nicaragua.”  [1]

Secretary Pompeo’s New Statement [2]

On March 3, Secretary Pompeo issued another statement on this subject with two parts.

The first part granted “an additional suspension for 30 days through April 17, 2019, of the right to bring an action under Title III [of this federal statute as] necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.” with the below exception. Beginning March 19, suspension shall not apply to:

The second part of this statement, however, contained an exception to this further suspension. Beginning March 19, this suspension will not apply to the “right to bring an action against a Cuban entity or sub-entity identified by name on the State Department’s List of Restricted Entities and Sub-entities Associated with Cuba (known as the Cuba Restricted List), as may be updated from time to time.” This exception protects, for now any foreign firm from such U.S. litigation.

The Cuba Restricted List [3]

This statement explained that the “Cuba Restricted List identifies entities and sub-entities under the control of Cuban military, intelligence, or security services. These security services are directly responsible for the repression of the Cuban people. We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting the Cuban dictatorship.”

The first such Restricted List was promulgated by the State Department in November 2017,, with a list of 180 entities and subentities that the Department had determined were owned or controlled by “the large military-run corporations that dominate the Cuban economy. These include GAESA and CIMEX, the holding companies that control most retail business on the island; Gaviota, the largest tourism company; and Habaguanex, the firm that runs Old Havana.

This list was amplified on November 14,  2018, with the addition of 26 subentities. According to the State Department, “direct financial transactions [by U.S. nationals] with these entities are generally prohibited because they would disproportionately benefit those entities or personnel at the expense of the Cuban people or private enterprise in Cuba.”

Cuba’s Reaction  [4]

Also on March 4 the Cuba’s foreign Ministry issued the following lengthy rejection of this U.S. move:

  • “The Ministry of Foreign Affairs rejects in the strongest terms the new escalation in the US aggressive behavior against Cuba.”
  • “Since its entry into force in 1996, the Helms-Burton Act has sought to universalize the economic blockade through brutal and illegal pressures exerted by the United States against third countries, their governments and companies.  It is intended to suffocate the Cuban economy and generate or increase shortages among the population with the purpose of imposing in Cuba a government that serves the interests of the US.”
  • “Given the illegitimate character of the goals they pursue, which are contrary to International Law, the Helms-Burton Act and the blockade arouse universal rejection, which has been reiterated for almost three decades at the most important regional and international fora.  The most recent example of that was the United Nations General Assembly meeting held on November 1, [2018] when said policy was rejected through 10 consecutive votes, thus leaving the US in complete isolation.”
  • “Title II of the Helms-Burton Act states that the overthrowing of the revolutionary government, the subsequent tutelage by a US intervenor and the ultimate establishment of a counterrevolutionary government subordinated to Washington would unequivocally pursue the return or compensation to former owners for all the properties they or their descendants might claim, regardless of whether or not they were US citizens at the moment when nationalizations took place or the fact that they abandoned them. During all that period, the economic blockade would continue to be fully implemented.”
  • “Consequently, Cubans would be forced to return, reimburse or pay to US claimants for the house where they live, the area on which their communities are built, the arable land  where they farm  their products, the school where their children are educated, the hospital or polyclinic where  they receive medical assistance, the place where their workplace is located or where they have a private business, and also for subsidized services such as electricity, water, and communications enjoyed by the population.”
  • “This is an aspiration that can only be conceived by the minds of those who identify Cuba s a colonial possession.  According to the Helms-Burton Act, the economic blockade would be lifted only when that ambition is fulfilled.”
  • “This law relies on two fundamental lies: the notion that nationalizations carried out soon after the triumph of the Revolutionary were illegitimate or inappropriate and that Cuba is a threat to the US national security.”
  • “Cuban nationalizations were carried out in accordance with the law, strictly abiding by the Constitution and in conformity with International Law. All nationalizations included processes of fair and appropriate compensation, something that the US government refused to consider.  Cuba reached and honored global compensation agreements with other nations which are today investing in Cuba, such as Spain, Switzerland, Canada, United Kingdom, Germany and France.”
  • The real threat against regional peace and security are the irresponsible declarations and actions of the US government as well as the destabilizing plans against Latin America and the Caribbean aimed at pursuing the stated purpose of imposing the Monroe Doctrine.”
  • [Cuba’s] Reaffirmation of   Cuban Dignity and Sovereignty Act of December 24, 1996, states that the Helms-Burton Act is illegal, inapplicable and has no legal value or effect whatsoever. It considers null and void any claim under that law by any natural or juridical person.”
  • “According to that [Cuban] law, claims for compensation for nationalized properties could be part of a process of negotiation on the based on equality, mutual respect between the governments of Cuba and the United States, and be “reviewed together with the indemnifications the Cuban State and people are entitled to as a result of the damages caused by the blockade and   aggressions of every sort, of which the US government is responsible”. It also makes it clear that those who resort to procedures or mechanisms under the Helms-Burton Act to the detriment of others shall be excluded from possible future negotiations.”
  • “The Cuban Government reiterates to all economic partners and foreign companies operating in Cuba that full guarantees will be granted to foreign investments and joint projects. Article 28 of the Cuban Constitution, which was ratified by an overwhelming majority on February 24, 2019, also recognizes those guarantees, which are also included in [Cuban] Law No. 118 on Foreign Investments of March 29, 2014.”
  • “Today’s [U.S.] decision imposes additional obstacles to our economic development and progress goals, but the United States will keep on failing to achieve its main purpose of submitting by force the sovereign will of Cubans and our determination to build socialism. The majority feelings of the peoples of Cuba and the United States in favor of improving relations and establishing a civilized and respectful coexistence shall prevail.”

Other Reactions

John Bolton, U.S. National Security Advisor commented the same day in the following tweet: “Cuba’s role in usurping democracy and fomenting repression in Venezuela is clear. That’s why the U.S. will continue to tighten financial restrictions on Cuba’s military and intel services. The region’s democracies should condemn the Cuba regime.”

Senator Marco Rubio (Rep., FL) had a similar tweet: “Today expect the United States to take the first in a series of steps to hold the regime in #Cuba accountable for its 60 years of crimes & illegality which includes its support for the murderous #MaduroCrimeFamily. Justice is coming. And more to come.”

Rubio also joined with U.S. Senator Rick Scott (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL) in issuing the following lengthier statement supporting this Trump Administration move. [5]

Senator Rubio made the initial comments of the Press Release,“‘President Trump is sending a strong message that the United States will not sit idly by while the Cuban regime continues to support the Maduro crime family at the expense of the Venezuelan people,’ Rubio said. ‘For 60 years, the Cuban regime has forced millions into exile, destabilized neighboring countries, given safe harbor to fugitives from justice and to international terrorists, and made millions trafficking in stolen property. By beginning the process of implementing Title III of the Helms-Burton Libertad Act, the United States is holding the Cuban regime accountable for its crimes, including its support for the murderous Maduro crime family. Justice is coming — and it is just getting started.’”

Senator Scott added, “The Administration’s plan to fully and immediately implement Title III and IV of the Libertad Act signals to the international community that the United States is serious about its commitment to freedom and democracy in Cuba. Allowing American citizens to sue for stolen property in Cuba and denying foreign nationals involved in trafficking stolen property entry into the United States is a huge step toward cutting off the money supply to the Castro Regime. It is clear that where we see instability, chaos and violence in Latin America, we also see the fingerprints of the Castro regime and their money – and this action by the administration is an important step in stabilizing the entire region. President Trump’s strong action on the Libertad Act will further hold the Cuban regime accountable. I urge him to continue with the planned implementation this month so we can help begin a new day of freedom and democracy for Cuba and its people.”

Representative Diaz-Balart stated, “Today, the Trump Administration took another important step toward righting some of the wrongs perpetrated by a dictatorship that brutally oppresses its people and opposes U.S. interests at every opportunity. Shamefully, for nearly twenty-two years since the LIBERTAD Act’s enactment, unscrupulous businesses have ignored this important provision in U.S. law and have chosen to partner with tyrants. This is just the first action of many regarding the Administration’s actions on Title III. Justice for the victims of the Castro regime’s confiscations is long overdue. Years of consecutive extensions may have lulled some into a false sense of impunity. Yet now companies which willingly entangle themselves in partnerships with the anti-American, illegitimate, and oppressive regime in Cuba are on notice that they will be held responsible for their part in callously benefiting from the extensive losses suffered by victims of the regime. I will continue to work with the Administration, Senator Rubio, and my congressional colleagues to ensure the United States continues to pressure the Castro regime and move forward with the full implementation of Title III.”

 Conclusion

This U.S. announcement may have only symbolic significance.

First, according to the Associated Press, “virtually none of the businesses [on the State Department’s Cuba Restricted List has] . . . any links to the U.S. legal or financial systems, meaning the ability to sue [in the U.S.] is unlikely to have any effect on the Cuban economy or foreign businesses that work with the socialist government.” In lawyer’s language, any lawsuit in a U.S. court against an entity on the Cuba Restricted List should be subject to a very strong objection for lack of personal jurisdiction over the Cuban entity, meaning any such case very likely would be dismissed at the commencement of the case. [6]

Second, another potential defense to a U.S. lawsuit might be sovereign immunity.

Third, it would be insane for any U.S. claimant to sue any of the Cuban entities in a Cuban court, which would throw out any such case and perhaps impose some penalty on the claimant for bringing such a case.

Fourth, if any of the Cuban entities are present in other countries of the world, a lawsuit there by a U.S. claimant presumably would not be subject to a lack of personal jurisdiction defense, but other defenses might be available plus other countries’ possible hostility to the overall purposes of the Helms-Burton Act and U.S. policies towards Cuba.

Finally Cuba correctly observes that it recognizes that it has an international legal obligation to compensate foreign owners of expropriated property and that it has settled many (all?) such claims by non-U.S. persons. Moreover, under the U.S.-Cuba rapprochement in 2015-16 the two counties had discussions about the U.S. claims although the details have not been publicly released. A major impediment to such a negotiated settlement is Cuba’s lack of financial resources for such payments. Therefore, this blogger has suggested in another post that the only realistic result is for the two countries to reach an overall settlement, including Cuba’s claims against the U..S., which would have the net effect of the U.S. government’s paying the U.S. claims for expropriated property,   =================================

[1] Update on Trump Administration’s Threat To Allow U.S. Litigation Over Cuba’s Expropriated Property, dwkcommentaries.com (Jan. 30, 2019).

[2] State Dep’t, Secretary Enacts 30-Day Suspension of Title III (LIBERTAD Act) With an Exception (Mar. 3, 2019); Reuters, Foreign Partners Excluded From U.S. Lawsuits Against Cuban Firms: Official, N.Y. times (Mar. 4, 2019). 

[3] New Restrictions on U.S. Travel to Cuba and Transactions with Certain Cuban Entities, dwkcommentaries.com (Nov. 8, 2017);More Cuban Businesses Forbidden to U.S. Visitors, dwkcommentaries.com (Nov. 16, 2018).

[4] Cuba Foreign Ministry, Declaration of the Ministry of Foreign Affairs: Cuba Strongly Rejects New Aggressive Escalation by the United States (Mar. 4, 2019).

[5] Press Release: Rubio, Scott, & Diaz-Balart Commend Trump Administration’s Decision to Hold the Communist Cuban Regime Accountable for Crimes (Mar. 4, 2019).

[6] Assoc. Press, Trump Symbolically Tightens Embargo on Cuba, N.Y. Times (Mar. 4, 2019). See The Personal Jurisdiction Requirement for Civil Lawsuits in U.S. Courts, dwkcommentaries.com (Aug. 8, 2011).

President Trump Considering Another Hostile Action Against Cuba 

On January 16, U.S. Secretary of State Mike Pompeo extended for 45 days the right to bring certain lawsuits in U.S. federal courts  by Americans who owned property in Cuba that was confiscated by its government. [1]

The Announcement

The State Department stated that this 45-day extension, instead of the usual six-month extension, “will permit us to conduct a careful review of the right to bring action under Title III [of the Helms-Burton or LIBERTAD Act] in light of the national interests of the United States and efforts to expedite a transition to democracy in Cuba and include factors such as the Cuban regime’s brutal oppression of human rights and fundamental freedoms and its indefensible support for increasingly authoritarian and corrupt regimes in Venezuela and Nicaragua.”

This announcement added, “We call upon the international community to strengthen efforts to hold the Cuban government accountable for 60 years of repression of its people. We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting this dictatorship.”

This right to sue was created by Title III of the Helms-Burton Act of 1996. It would permit lawsuits against persons who profit from property in Cuba that was expropriated from Americans. For example, there could be hundreds of lawsuits against corporations around the world, such as  Spanish companies that run Cuban hotels as well as Chinese and Turkish firms renovating Cuban ports. Exempt from this provision of  the Act  are U.S. companies involved in U.S. legal travel to Cuba such as AirBnB, airlines and cruise companies. But the exact meaning of this exemption could be tested in litigation, for example, over U.S. and foreign airlines landing at Havana’s Jose Marti Airport, which is built on land expropriated from a family now living in Miami.

Every  U.S. president since the enactment of the Helms-Burton Act, starting with Bill Clinton and including Trump in 2017 and 2018, has suspended Title III, for six months each time, because of its potential to alienate U.S. allies and complicate any future American detente with Cuba. Moreover, not suspending title III would create a huge obstacle to new foreign investment in Cuba.[2]

The most recent extension of only 45 days and the stated reason for this extension raise the real possibility that the Trump Administration will grant no additional suspensions or waivers of Title III and thereby permit such lawsuits.

Reactions to This Announcement[3]

This announcement predictably was applauded by Senator Marco Rubio (Rep., FL). He said in a tweet that it “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.” A similar opinion was expressed by Representative Mario Diaz-Balart (Rep., FL).

Three U.S. experts on Cuba, however, criticized this possible change. Professor William LeoGrande of American University said, “It would cause an enormous legal mess, anger U.S. allies in Europe and Latin America, and probably result in a World Trade Organization case against the U.S.” He added that the State Department previously had estimated that allowing Title III to go into effect could result in 200,000 or more lawsuits being filed. Another expert, Phil Peters, said, “If they take this decision they will be moving from a policy of limiting U.S. engagement with Cuba to a policy of very actively trying to disrupt the Cuban economy.” The third, Michael Bustamante, assistant professor of history at Florida International University, stated, “Legitimate property claims need to be resolved, but in the context of a bilateral negotiation. Those backing the enforcement of Title III seem most intent on sowing havoc rather than achieving a positive good.”

Cuban authorities naturally had negative reactions to this proposed change. President Miguel Diaz-Canel said on Twitter that “we vigorously reject this new provocation, meddling, threatening and bullying, in violation of international law.”

Cuban Foreign Minister Bruno Rodriguez described the announcement as “political blackmail and irresponsible hostility aimed at hardening the blockade on Cuba. The government of President Donald Trump threatens to take a new step that would reinforce, in a dangerous way, the blockade against Cuba, would flagrantly violate International Law and directly attack the sovereignty and interests of third countries. It . . . [is] a hostile act of extreme arrogance and irresponsibility [issued in] the disrespectful and slanderous language of the State Department’s public message.”

Conclusion

This U.S. announcement follows shortly after U.S. Senators Robert Menendez and Rubio called for another hostile U.S. action against Cuba—the re-establishment of the U.S. parole policy for Cuban medical professionals, which was criticized in a recent post.[4]

Both of these proposed U.S. actions may well have been promoted or provoked by National Security Advisor John Bolton, who has long-held hostile opinions about Cuba and more recently has called Cuba, Venezuela and Nicaragua “the Troika of Tyranny.” Moreover, on November 1 in Miami, Bolton said the Administration was “seriously” considering new measures against the Cuban government, including allowing Cuban exiles whose properties were confiscated by the Castro government to file lawsuits in U.S. courts against foreign companies currently using those properties.[5]

Both of these proposed hostile actions by the U.S., in this blogger’s opinion, are ill-advised as unnecessarily creating additional conflicts with a close neighbor, with whom the U.S. should be fostering better relations as was done by President Obama after December 17, 2014.

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[1] U.S. State Dep’t, Secretary’s Determination of 45-Day Suspension Under Title III of LIBERTAD Act (Jan. 16, 2019); Reuters, U.S. Considering  Allowing Lawsuits Over Cuba-Confiscated Properties, N.Y. Times (Jan. 16, 2019); Assoc. Press, Trump Weighs Dramatic Tightening of US Embargo on Cuba, N.Y. Times (Jan. 17, 2019).

[2] U.S..State Dep’t, United States Determination of Six Months Suspension under Title III of LIBERTAD Act (July 14, 2017); Lederman, Trump administration again suspends a part of Cuba embargo, Fox News (July 14, 2017); Whitefield, Trump to suspend lawsuit provision of Helms-Burton Act in August, Miami Herald (July 17, 2017); U.S. Continues To Suspend Part of Its Embargo of Cuba, dwkcommentaries.com (July 20, 2017); U.S. State Dep’t, United States Determination of Six Months Suspension under Title III of LIBERTAD Act (Jan. 24, 2018); State Department Creates Cuba Internet Task Force and Suspends Enforcement of Statutory Liability for Trafficking in Certain Cuban Expropriated Property, dwkcommentaries.com (Jan. 25, 2018); U.S. State Dep’t, Secretary’s Determination of Six Months Suspension under Title III of LIBERTAD Act (June 28, 2018); Whitefield, Trump administration extends ban on lawsuits over confiscated property in Cuba, Miami Herald (June 28, 2018).

[3] Fn. 1; Guzzo, U.S. might allow lawsuits over U.S. properties nationalized in Cuba, Tampa Bay Times (Jan. 17, 2019); Cuba Foreign Minister Rodriguez, Cuba strongly rejects the threat of activation of Article III of the Helms Burton Act, Granma (Jan. 17, 2019).

[4] Senators Menendez and Rubio Call for Restoring U.S. Parole Program for Cuban Doctors, dwkcommentaries.com (Jan. 11, 2019).

[5] U.S. National Security Advisor Announces New U.S. Hostility Towards Cuba, dwkcommentaries.com (Nov. 3, 2018).

U.S. National Security Advisor Announces New U.S. Hostility Towards Cuba

On November 1, immediately after the U.N. General Assembly’s overwhelming condemnation of the U.S. embargo (blockade) of Cuba that was discussed in a prior post, U.S. National Security Advisor John Bolton in a speech at Miami Dade College’s Freedom Tower announced new sanctions against Cuba, Venezuela and Nicaragua. The same day in an interview by the Miami Herald, Bolton made other assertions about the U.S. and Cuba.

Bolton’s Speech[1]

Bolton opened by saying the U.S. was “confronted once again with the destructive forces of oppression, socialism, and totalitarianism” and “the perils of poisonous ideologies left unchecked, and the dangers of domination and suppression.”

Now this administration “will no longer appease dictators and despots near our shores,. . . [and] will not reward firing squads, torturers, and murderers.” Instead the U.S. “will champion the independence and liberty of our neighbors . . . [and] will stand with the freedom fighters” against the “Troika of Tyranny in this Hemisphere—Cuba, Venezuela, and Nicaragua.”

“This Troika of Tyranny, this triangle of terror stretching from Havana to Caracas to Managua, is the cause of immense human suffering, the impetus of enormous regional instability, and the genesis of a sordid cradle of communism in the Western Hemisphere.” The “Cuban, Venezuelan, and Nicaraguan people suffer in misery because socialism has been implemented effectively. “

Bolton’s harshest rhetoric was reserved for the regime in Havana, which he accused of silencing “dissidents and suppressing every kind of freedom know to man.” There, “a brutal dictatorship under the façade of a new figurehead continues to frustrate democratic aspirations, and jail and torture opponents.”

“In Cuba, we continue to stand firmly with the Cuban people, and we share their aspirations for real, democratic change. Members of this administration will never take a picture in front of an image of Che Guevara, as Barack Obama did.. . . [The] National Revolutionary Police force [is] the agent of oppression of the Cuban people. This oppression of dissidents and suppressing every kind of freedom known to man is what typifies the regime in Havana.”

“Under this administration, there will no longer be secret channels of communication between Cuba and the United States.” (this suggests the elimination of various bilateral meetings on various subjects in Havana and Washington that were started in the Obama Administration and so far continued by the Trump Administration.[2])

“The [U.S.] will not prop up a military monopoly that abuses the citizens of Cuba.” The current U.S. “policy includes concrete actions to prevent American dollars from reaching the Cuban military, security, and intelligence services. . . .[We] have been tightening sanctions against the Cuban military and intelligence services, including their holding companies, and closing loopholes in our sanctions resolutions. In this respect, I believe that within days the administration will add over two dozen additional entities owned or controlled by the Cuban military and intelligence services to the restricted list of entities with which financial transactions by U.S. persons are prohibited. And I believe even more will come as well. The Cuban military and intelligence agencies must not profit from the United States, its people, its travelers, or its businesses.” (Nearly 200 agencies, companies and hotels already on the list.[3])

“In response to the vicious attacks on Embassy Havana, we have also scaled back our embassy personnel in Cuba. This President will not allow our diplomats to be targeted with impunity. And we will not excuse those who harm our highest representatives abroad by falsely invoking videos, or concocting some other absurd pretext for their suffering.”

“We will only engage with a Cuban government that is willing to undertake necessary and tangible reforms—a government that respects the interests of the Cuban people.”

Bolton even may have hinted at U.S. efforts to topple the governments in these three countries when he said, “We are an impatient people too and it’s time to see the people of those three countries have free governments.”

Bolton’s Interview[4]

In an interview the same day by the Miami Herald, Bolton again addressed the subject of U.S. diplomats who have suffered medical problems that surfaced while they were stationed in Cuba. “I think it’s very important that somebody must be held accountable for what happened to our diplomats. It’s a fundamental principle of how America operates in the world, that Americans abroad do not get harmed with impunity,”

“There is no conceivable theory [whether] it was accidental or somehow caused by some equipment malfunction” that absolves Cuba, Bolton said. “We are continuing to be concerned for the safety of our personnel. We are not satisfied with the performance of the government of Cuba respecting their security, so we are going to take a very careful look at that and make some decisions.”

Bolton also said the Administration was “seriously” considering new measures against the Cuban government, including allowing Cuban exiles whose properties were confiscated by the Castro government to file lawsuits in U.S. courts against foreign companies currently using those properties. (A provision of the Helms-Burton law that allows such lawsuits has been regularly suspended every six months by both Republican and Democratic presidents. Failure to suspend it again would allow the lawsuits to be filed.[5])

Other measures under consideration include insisting that Cuban workers on U.S. companies’ projects on the island be hired directly so that the workers  get to keep all of the wages paid by the companies, rather than have the Cuban government skim significant portions of those wages.

The U.S., said Bolton, opposes any increase of Russian involvement in Cuba and that hopefully the next time President Trump meets Putin that message will be communicated.

Reactions to Bolton’s comments[6]

Cuba immediately condemned Bolton’s harsh comments about the island., saying that the new sanctions were a futile attempt to change Cuban policies and would only further isolate the U.S. internationally.

“We energetically reject these measures which will impact the economy and country’s development on top of the impact of the economic blockade,” the Director of U.S. affairs at the Foreign Ministry, Carlos Fernandez de Cossio, said at a Havana press conference. “They will fail. They will not break the will of Cubans.”

In particular, the Cuban official attacked the possibility of the U.S.’ allowing  U.S. citizens whose property was seized by the Cuban government to sue foreign companies that have invested in the properties on the island. Fernandez de Cossio said such a measure would be unprecedented and violate international law, further isolating the U.S. “There is no possibility whatsoever for people who abandoned Cuba and abandoned property in Cuba to come back and claim them,” he said.

However, Cuba reiterated its openness “to having a frank, professional, open and respectful dialogue with the U.S. Cuba is open to discussing any topic, if it’s based in respect.”

Conclusion

Given Bolton’s long record of hostility towards Cuba, this speech and interview are not surprising. Yet as the Vox article stated, they sound “like a renewal of America’s Cold War stance toward Latin America, [when] US spent decades opposing, and in some cases fighting, communist forces. From Nicaragua to Guatemala to Chile, [and when] the US used its power to squash many left-leaning movements in the region mostly because of its opposition to the Soviet Union.”

Needless to say, John Bolton’s service as National Security Advisor, in this blogger’s opinion, is an unmitigated disaster on many levels, including these recent comments about U.S. policies regarding Cuba and other countries in Latin America. Yes, there are U.S.-Cuba disagreements, but the proper way to address, and hopefully resolve, them is through the ongoing, respectful bilateral meetings.

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[1] White House, Remarks by National Security Advisor Ambassador John R. Bolton on the Administration’s Policies in Latin America (Nov. 2, 2018); Ward, John Bolton just gave an “Axis of Evil” speech about Latin America, Vox (Nov. 1, 2018); Assoc. Press, US vows tough approach to Venezuela, Nicaragua and Cuba, Wash. Post (Nov. 1, 2018); U.S. National Security Advisor talks Venezuela, Russia and Cuba relations, and the alleged attacks on U.S. personnel in Cuba, Miami Herald (Nov. 1, 2018); Rogin, Bolton promises to confront Latin America’s ‘Troika of Tyranny,’ Wash. Post (Nov. 1, 2018); Gaouette, Bolton praises Brazil’s far-right leader, slams Latin America’s ‘troika of tyranny,’ CNN (Nov. 1, 2018); Rodriguez, Bolton praises Brazil’s Bolsonaro as a ‘like-minded’ partner, Politico (Nov. 1, 2018); Wemer, John Bolton Takes Latin American “Troika of Tyranny” to Task, Atlantic Council (Nov. 1, 2018); McBride, Trump Administration Tightens Sanctions Against Cuba, Venezuela, W.S.J. (Nov. 1, 2018).

[2] See these posts to dwkcommentaries: U.S. and Cuba’s Efforts To Continue Normalization (December 9, 2016); Recent U.S.-Cuba Developments (June 15, 2018); U.S. and Cuba Continue To Hold Dialogues on Common Issues (July 12, 2018).

[3] U.S. State Dep’t, List of Restricted Entities and Subentities Associated with Cuba as of November 9, 2017).

[4] Gámez Torres, Bolton: Somebody must be held accountable in Cuba attacks, Miami Herald (Nov. 1, 2018).

[5]   E.g., State Department Creates Cuba Internet Task Force and Suspends Enforcement of Statutory Liability for Trafficking in Certain Cuban Expropriated Property , dwkcommentaries.com (Jan. 25, 2018).

[6]  Assoc. Press, Cuba Condemn[s] US’s Latest Tough Talk About the Island, N.Y. Times (Nov. 2, 2018); Reuters, Cuba Lashes Out at Trump Administration Over New Sanctions, N.Y. Times (Nov. 2, 2018).

 

 

 

Does Cuba Have a Right To Terminate the U.S. Lease of Guantanamo Bay?

Whether Cuba has a legal right to terminate its lease of Guantanamo Bay to the U.S. is an important issue that has been addressed by Michael J. Strauss, an expert in international relations with a specialty in territorial leases by states. [1] A prior post referred to his 2013 article that touched on this topic, and this post is based upon his more extensive discussion of the issue in his 2009 book and a 2014 article. His book also helps clarify the history regarding the amount of the rent charged to the U.S. under the lease. [2]

Does Cuba have a legal right to terminate the lease?

As the lease does not grant Cuba an express right of termination and as there has been no decision by a court or arbitrator on the validity of any other purported termination right, no definitive answer can be given as to whether Cuba has a legal right to terminate the lease. At least the following four theories have been suggested for such a result.

First, after the Revolution, Cuba asserted that the lease was perpetual and, therefore, invalid. For example, a 1970 book by the Cuban Ministry of Foreign Affairs asserted, “The contract for the lease in perpetuity . . . lacks existence and juridical validity because it is faulty in its essential elements: a) radical incapacity of the government of Cuba to cede a piece of national territory in perpetuity; b) for the same reason, the object and the reason are illegal; c) consent was wrested through irresistible and unjust moral violence.” (Book at 104, 171.)

Strauss, however, rejects the notion that the lease is perpetual. As noted in the prior post, the lease does not have a set termination date, unlike most U.S. leases (commercial and residential) and most leases “at the state level” (or “are otherwise open to termination by various means”). (Book at 106.) The absence of a termination date, however, does not mean that the lease is perpetual as most perpetual “leases [at the state level] . . . tend to explicitly [so] specify.” (Book at 107.)

Moreover, “the lease has had clearly stated conditions by which it can be ended.” The original 1903 lease was for “the time required for the purposes of [U.S.] coaling and naval stations.” And the 1934 treaty, reconfirming the lease, provided that it could be terminated by U.S. abandonment of Guantanamo Bay or by mutual agreement. (Book at 108, 215, 233.)

In addition, on two occasions after the Cuban Revolution, the U.S. has considered terminating the lease. One was in U.S. internal discussions about ways to resolve the Cuban Missile Crisis of 1962, but that idea was rejected internally and not publicly disclosed. (Book at 109-12.) The second was the idea’s incorporation in section 201 of the Helms-Burton (Libertad) Act of 1996 requiring the U.S. in order to provide assistance to a hoped-for free and independent Cuba to “be prepared to enter into negotiations . . . to return the [U.S.] Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” (Book at 112-14, 249-50.)

A second legal theory for Cuba’s termination of the lease is a fundamental change in circumstances (rebus sic stantibus) from the lease’s negotiation and signing in 1903 to today. This theory is covered by Article 62 of the Vienna Convention on the Law of Treaties and was discussed in the prior post. Strauss discusses the views on this issue by international legal scholars and notes the reluctance of international tribunals to invoke this ground. Another difficulty with this theory is the passage of time (over 112 years). As a result, Strauss does not see it as a winning approach for Cuba. (Book at 114-19.) Related to this theory is the 1970 argument by Cuba that the purpose of the lease had ceased to exist: the purpose of the 1903 lease (enable the U.S. to maintain Cuba’s independence and protect its people) was negated by the 1934 treaty’s emphasis on friendly relations between the two countries and that treaty’s purpose was negated by the hostile relations after the Cuban Revolution. (Book at 171.)

A third legal theory, also discussed in the prior post, would be the argument that the lease was procured by “the threat of force or use of force in violation of the principles of international law embodied in the [U.N.] Charter” under Article 52 of said Vienna Convention. That Convention, however, provides in Article 4 that it can be used only by states that are parties to the Convention and only after they became parties, and Cuba became such a party on September 9, 1998. Moreover, the U.N. was not in existence when the lease was signed in 1903. Nor, says Strauss, has “a new peremptory norm of general international law emerged” on this issue that could be a basis for a Cuban claim of a right to terminate the lease. (Book at 119-21.) This theory was put forward in 1970 as part of an argument advanced in a book by Cuba’s Foreign Ministry. (Book at 171.)

The fourth legal theory for a Cuban claim to a right to terminate would be based on alleged U.S. breach of the lease. This is covered by Article 60 of said Vienna Convention and is limited to a “material breach,” which for present purposes is “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Strauss discussed two possible grounds for this theory:

  • The lease restricts U.S. use of Guantanamo Bay to a “coaling station” or a “naval station,” and Cuba would have to argue and prove that the U.S. has exceeded those uses. Strauss is skeptical of such a general argument because the U.S. consistently has opted for a broad interpretation of these limitations with Cuba’s tacit agreement and because it should be difficult to satisfy the definition of “material” breach. However, the U.S. use of Guantanamo as a facility for detention of alleged terrorists after 9/11 and the U.S.’ alleged violations of the human rights of such detainees would be a stronger claim reinforced by consistent Cuban objections to such uses and by the remote possibility that Cuba could be subject to liability for any human rights violations at the Base. (Book at 121-23, 144-55, 174; Cuba Responsibility.)
  • In Article III of the second part of the 1903 lease the U.S. “agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within [Guantanamo].” The U.S. has clearly breached this provision by having a McDonald’s Restaurant and a bowling alley on the site, but it is difficult to see such ventures as a “material breach” of the lease. A stronger argument for such a claim could be built on the U.S.’ more recently having private-contractor employees participate in the interrogation and alleged abuse of detainees. Such an argument also ties in with the assertion that the U.S.’ use of Guantanamo as a detention facility and its alleged abuse of detainees constitutes a material breach of the lease. But do such breaches affect the object and purpose of the lease and thus constitute a material breech? (Book at 123; Private Sector; Cuba Responsibility.)

The Amount of the Rent

The original 1903 lease called for annual rent of $2,000 in gold coin for Guantanamo Bay and Bahía Honda without a breakdown for the two territories. Because the Guantanamo Bay territory constituted 94.5% of the total territory, the rent hypothetically could be divided on that basis, resulting in annual rent for Guantanamo of $1,890. This amount, argues Strauss, was “considerably higher than what any other party would have paid in 1903 for renting the same territory.” In other words, the rent was a material element, not a token or trivial amount. (Book at 126.)

In 1916, however, the U.S. presumably abandoned Bahía Honda, and the rent remained at $2,000 in gold coin, which in Strauss’ judgment was still in excess of the fair market value of the Guantanamo territory. (Book at 127.)

In 1933, at the start of the Great Depression, the U.S. left the gold standard, and the next year (1934), the U.S. Dollar was devalued with “the value of old U.S. gold dollars being fixed at $1.693125 in legal U.S. currency. The annual rent of $2,000 in gold for Guantanamo Bay, when converted at this rate, became $3,386.25. This was the amount the [U.S.] began paying annually to Cuba, by U.S. government check, starting in 1934.” This change was made unilaterally by the U.S. without a signed agreement with Cuba, which acquiesced in the change. (Book at 127-30.)

Similar changes were made unilaterally by the U.S. in 1973 with an increase of the annual rental check to $3,676.50 (based upon a 1972 revision in the value of the old U.S. gold dollar) and in 1974 to $4,085 (based upon a 1973 revision in the value of the old U.S. gold dollar). (Book at 130-31.) [3]

As mentioned in a prior post, since 1974 the $4,085 figure has continued to be used by the U.S. for the annual rental checks that have not been cashed by Cuba since the Cuban Revolution take-over of the government in 1959 (except for the first one in 1959). (Book at 136-37).

As Strauss recognizes, the rental amount has never been adjusted to reflect ever changing fair market values of the territory. As a result, the annual rental for at least the half-century after the Cuban Revolution has become a token payment. (Book at 131-32.)

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[1] Strauss is Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Stratégiques, Paris, specializing in territorial leases as phenomena of international relations and international law for resolving sovereignty disputes. Prior to entering academia, he was an international journalist and served as bureau chief for Agence France-Presse’s AFX News in Paris, Knight-Ridder Financial News in Madrid, and Dow Jones News Service in Geneva. He took his Ph.D. in International Relations and Diplomacy from the above Centre and his M.Sc. in Journalism from Columbia University, where he was an International Fellow in the School of International Affairs. He is the author of The Viability of International Leases in Resolving International Sovereignty Disputes: A Comparative Study.

[2] The Strauss article that was cited in the prior post is Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013) [hereafter “Cuba Responsibility”].  This post is based upon Strauss’ The Leasing of Guantanamo Bay (Praeger International 2009) [hereafter “the Book”] and U.S. Socialism in Cuba: Implications of Prohibiting the Private Sector at Guantanamo Bay, 24 Am. Soc’y for Study of Cuban Economy 129 (2014) [hereafter “Private Sector”]

[3] The earlier post erroneously asserted the $4,085 rental fee started in the mid-1930’s.