More Thoughts on Commission on Unalienable Rights

Carol Giacomo, a member of the New York Times Editorial Board and a former diplomatic correspondent for Reuters, has expressed her concern over the State Department’s creation of the Commission on Unalienable Rights,[1] which was discussed in prior posts.[2]

She says the Department’s Human Rights Bureau and Congress were not included in the decision to establish this Commission. Instead it was a personal project of Secretary Pompeo and that next month the Department plans to say more about it. This underscores the concern that this commission is motivated by conservative political and religious beliefs and organizations.

This concern, she claims, also is illustrated by Vice President Pence’s promotion of religious freedom as “our first freedom” and arguing that human rights are becoming politicized and conflated with economic and social goals.

Another is a statement by a conservative religion commentator, R.R. Reno, that he is “increasingly against human rights” which “as the epitome of social responsibility short-circuits collective judgment and stymies action for the sake of the common good.” Reno is the Editor of First Things, a publication of the Institute on Religion and Public Life that “keeps its eyes on first things: our religious faith, love of family and neighbor, the sanctity of life, the achievements of Western civilization, and the dignity of the human person.”

Giacomo also reports that the House of Representatives is considering a proposal to restrict funding for this new entity while several Democratic senators have sent a letter to Secretary Pompeo expressing “deep concern” with the process and intent of this decision.

Harold Hongju Koh, a Yale law professor who was assistant secretary of state for human rights in the Clinton administration, said that a shift to “natural law” would conflict with the view that “modern human rights are based on the dignity inherent in all human beings, not on God-given rights.”

Conclusion

This blogger strives to follow Jesus as a member of a Presbyterian church and believes that religious freedom is a basic human right for all people in the world. But he worries that this Commission and related actions might be surreptitious ways to advance a conservative political and religious agenda and to promote the re-election of Donald Trump. Therefore, this blogger thinks that attention should be paid to this Commission and related activities of this Administration.

For example, for his year’s celebration of the Fourth of July, President Trump reportedly will deliver a speech at the Lincoln Memorial. [3]  Perhaps he will use that occasion to proclaim about unalienable rights.

Not mentioned by Giacomo, but probably related to the new Commission, was last July’s first ever Ministerial to Advance Religious Freedom that was hosted by the State Department and that will be discussed in a future post.

=================================

[1] Giacomo, A New Trump Battleground: Defining Human Rights, N.Y. Times (June 17, 2019.

[2] Is The Trump Administration Attempting To Redefine International Human Rights, dwkcommentaries.com(June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights, dwkcommentaries.com (June 17, 2019).

[3] Nirappil, Hermann & Jamison, Officials: Trump to speak at Lincoln Memorial during July Fourth celebration, Wash. Post (June 5,, 2019).

Is Trump Administration Attempting To Redefine International Human Rights?

Since the end of World War II, treaties and international institutions have defined and developed international human rights and institutions, as discussed in previous posts. [1]

Commission on Unalienable Rights [2]

Now with little fanfare the U.S. State Department recently announced the establishment of  the Commission on Unalienable Rights. Here are the key provisions of its Charter:

  • The Commission will provide the Secretary of State with “informed advice and recommendations concerning international human rights matters . . . [and] fresh thinking about human rights and . . . reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.” (Para. 3) (emphasis added).
  • The Commission’s advice and recommendations will help “guide U.S. diplomatic and foreign policy decisions and actions with respect to human rights in international settings . . . [and] recover that which is enduring for the maintenance of free and open societies.” (Para. 4) (emphasis added).

The Commission will be composed of “no more than fifteen members who have distinguished backgrounds in international law, human rights, and religious liberties.” Its membership “will be a bipartisan, diverse group of men and women.”

The phrase “unalienable rights,” of course, comes from the second paragraph of the U.S. Declaration of Independence of July 4, 1776: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” (Emphasis added.)

At first glance this may sound like an unobjectionable reference to an important document and concept of U.S. history. But it may be much more than that. It may be an attempt by the Trump Administration to redefine international human rights, as suggested by Eric Posner, Professor at the University of Chicago Law School.

Reactions of Professor Eric Posner [3]

Posner so far has been the only one to have noticed this Commission. He says “the significance of . . . [this Commission] should not be overlooked. It puts the government’s imprimatur on an assault upon one of the cornerstones of modern liberalism: international human rights.”

This conclusion, Posner argues, follows from the Commission’s name, implicitly emphasizing that these rights are endowed ‘by their Creator” and come from “natural law” and “natural rights.” This interpretation, he claims, also is suggested by the Charter’s reference to “discourse,” implying that contemporary human rights is merely talk, not law. In short, this Charter is conservatives’ “declaration of intent. Its plainly stated goal is not just to wipe away the baleful foreign influence of human rights ‘discourse’ but to revive [conservative] 18th-century natural law.”

In Posner’s opinion, the reference to natural law is an indirect endorsement of contemporary Roman “Catholic conservative intellectuals, who kept alive the academic tradition of natural law long after mainstream secular intellectuals forgot what it was —[and, therefore,] . . .  goodbye to reproductive rights and protections for sexual minorities.” Posner also claims that Robert George, a prominent Catholic intellectual, natural-law theorist, and opponent of abortion rights and same-sex marriage, played a role in the creation of the Commission. In other words, this new commission will provide “the ideological justification for the anti-abortion foreign policy that the Trump administration has undertaken”

Natural law, says Posner, can also be used by conservatives to argue for “expanded religious freedoms that override statutes with secular goals, and to push back against progressive government programs like universal health care. The ‘right to health,’ a centerpiece of ‘human rights law,’ is firmly rejected by natural-law theorists like George.

“But the mission of the commission may be even bolder,” in Posner’s opinion. ”If we take the idea of natural law seriously, it not only overrides statutes in foreign countries that protect abortion rights and respect same-sex marriage. It also overrides American laws that protect abortion rights and respect same-sex marriage. One can imagine a day when a Supreme Court justice, taking a page from [former Supreme Court Justice Anthony] Kennedy, invokes natural law — supposedly endorsed by the founders, after all, and embodied in the sacred Declaration — to vote to overturn Roe v. Wade and to prepare the path for an even holier grail, the abolition of state laws that grant abortion rights.”

“Liberals hoped that human rights, sanctified by the sacrifices of the victims of totalitarianism, would provide common ground in a world of competing ideologies. But what human rights actually helped produce was a liberal international order that has offended a great many people who do not share liberal values. The backlash began years ago in authoritarian countries, in developing countries that saw human rights as an affront to their traditions and as a mask for imperialist goals, and in highly religious countries. These countries advanced interpretations of human rights law that conform with their values or interests but made little headway against dominant elite opinion. What is new is that the government of the world’s most powerful nation [the U.S.], long acknowledged (if grudgingly) as the leader of the international human rights regime, has officially signed on to that backlash.”

Presumably this Posner argument is expanded in his recent book, The Twilight of Human Rights Law.[4]

Conclusion

Although noted author and commentator George Will is not a fan of President Trump, he probably is sympathetic to the recent trumpeting of “ unalienable rights” and “natural law” and “natural rights.” In the “Introduction” to his new book, The Conservative Sensibility, Will says “We [conservatives] seek to conserve the American Founding” with a “clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders’ thinking.” Indeed, “Americans codified their Founding doctrines as a natural rights republic in an exceptional Constitution, one that does not say what government must do for them but what government may not do for them.”

Therefore, according to Mr.Will, “The doctrine of natural rights is the most solid foundation—perhaps the only firm foundation—for the idea of the political equality of all self-directing individuals..”

In retrospect, perhaps the Trump Administration has been dropping hints that something like the Commission might be coming by the State Department’s using the phrase “unalienable rights” in various statements and documents.[5]

Although this blogger has no objection to contemporary references to the language of our Declaration of Independence, he does object to the notion that this new Commission is an underhanded way to implement current political preferences of this Administration. Moreover, this blogger suggests that it is too simplistic to use notions of natural law to preempt the decisions on the previously mentioned contemporary issues.

After all, natural rights and human rights treaties can be seen as compatible allies, just as English and American common law are compatible with their respective statutes. Such multilateral treaties with provisions for implementation and amendment are drafted by committees and individual nation states are not bound by the treaties unless and until they ratify the treaties. Similarly domestic statues in the U.S. and U.K. are prepared and adopted by legislatures, often as a result of common law developments, and always are subject to subsequent amendment.

===========================================

[1]  See posts listed in the following: List of Posts to dwkcommentaries—Topical: Law (INTERNATIONAL CRIMINAL COURT); List of Posts to dwkcommentaries—Topical: Law (REFUGEE & ASYLUM)List of Posts to dwkcommentaries—Topical: Law (TREATIES); List of Posts to dwkcommentaries—Topical: Law: U.S. (ALIEN TORT STATUTE); List of Posts to dwkcommentaries—Topical: Law U.S. (TORTURE VICTIMS  PROTECTION ACT).

[2] State Dep’t, Notice: Department of State Commission on Unalienable Rights, 84 Fed. Reg. 25109 (May 30, 2019); State Dep’t, Charter: Commission on Unalienable Rights (created: May 10, 2019); State Dep’t, Membership Balance Plan: Commission on Unalienable Rights (created: May 10, 2019).

[3] Posner, The administration’s plan to redefine ‘human rights’ along conservative lines, Wash. Post (June 14, 2019).

[4] Posner, The Twilight of Human Rights Law (Oxford Univ. Press, 2014-).

[5]  State Dep’t, Secretary Tillerson’s Testimony before Senate Appropriations Committee (June  13, 2017) (“Our mission is at all times guided by our longstanding values of freedom, democracy, individual liberty, and human dignity. The conviction of our country’s founders is enduring: that all men are endowed by their creator with certain unalienable rights.” (Emphasis added); State Dep’t, [Secretary Tillerson’s] Remarks With Secretary General of the Community of Democracies Thomas Garrett (Sept. 17, 2017) (“In our Declaration of Independence, our founders boldly stated that all are endowed by their creator with the unalienable rights of life, liberty, and the pursuit of happiness.” (Emphasis added); State Dep’t, [Secretary Tillerson’s] Remarks at the “Conversation on the Value of Respect” Event (Jan. 12, 2018) (“It was the Secretary of State Thomas Jefferson who wrote that we are all endowed with certain unalienable rights – life, liberty, and the pursuit of happiness”); State Dep’t, Remarks on the Release of the 2017 Country Reports on Human Rights Practices (April 20, 2018) (these annual reports “are a natural outgrowth of our values as Americans. The founding documents of our country speak to unalienable rights, fundamental freedoms, and the rule of law – revolutionary concepts at the time of our founding that are now woven into the fabric of America and its interests both at home and abroad”); State Dep’t, The State Department Role in Countering Violent Extremism (May 30, 2018) (“America is committed to individual rights, and we recognize the inherent worth and dignity of every human being. We are all, in the words of the Declaration of Independence, endowed by our Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness”); State Dep’t, 2018 Country Reports on Human Rights Practices (Mar. 13, 2019) ((Secretary Pompeo’s Preface :”The United States was founded on the premise that all persons “are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. Our Constitution secures these unalienable rights . . . in the First [and Fifth] amendments.” ((emphasis added); State Dep’t, Secretary of State Michael R. Pompeo At the Celebration of Israel’s 71st Independence Day (May 22, 2019) (both the Israel Declaration of Independence of 1948 and the U.S. Declaration of Independence of 1776 “speak of central ideas that are ‘self-evident’ – In the American case, it’s the truth that men are created equal and have rights that are unalienable”) (Emphasis added).

 

 

 

U.S. and Cuban Churches Denounce U.S. Embargo and Recent Additional U.S. Actions Against Cuba

On April 26 the National Council of  the Churches of Christ in the USA and the Cuban Council of Churches issued the following Joint Statement. [1]

“Today, Friday, April 26, the fifth day after Easter Sunday, we come together once again as two Christian ecumenical councils to affirm our faith and love in Jesus Christ. Like the disciples walking to Emmaus (Luke 24:13-35), we desire to walk together with the resurrected Christ and share with him the bread that he has blessed with us and for us.”

“Our Councils have prayed, walked and worked together for many years. We have done so not only to witness to all the blessings we have received from God as a fruit of our unity in love, faith, and hope, but also to testify to the power of the Holy Spirit in all times of challenge to our dream of bringing our peoples and nations together. We have stood for peace when many cried for war. We have taken a stand for family unity when others tried to divide our families.”

“Since 1968, the National Council of the Churches of Christ in the USA has called for normal diplomatic relations with Cuba, for the removal of the economic blockade [embargo] imposed on Cuba, and for removal of travel restrictions.”

“Today, after our two nations began to make significant progress toward normalized relations, we are facing a critical moment that threatens to erase the gains already made.  We, therefore, reaffirm our solidarity in Christ and stand together to:

  • Work together to end the blockade — rejected by the vast majority of United Nations member countries — which has an extraterritorial effect, and for normal relations between our people and nations;
  • Express our opposition to the Trump Administration’s addition of new restrictions on travel between Cuba and the United States;
  • Express our opposition to the decision by the Trump Administration to no longer maintain the suspension of Title III of the Helms-Burton legislation, an action that will further hinder the quality of life of the Cuban people and will create enormous and unnecessary legal problems worldwide;
  • Express our opposition to the limitation and restriction of family remittances from the United States to Cuba;
  • Advocate for the reopening and normalization of consular services between the two countries, on a humanitarian basis, since it will facilitate the access to visas and the normalization of relations among families and between our peoples.”

“Finally, these recent actions by the Trump Administration will hinder us as we pursue together God’s mission and will be another obstacle to develop further our relations, partnerships, and the spiritual growth of the churches in the United States and Cuba. We, therefore, call on the churches in our countries along with all our partner ecumenical bodies, faith-based organizations, and all people of good will in our region and around the world to join us in our advocacy, solidarity, and action for a better present and future for our two countries, churches and people.”

“All this is from God, who reconciled us to himself through Christ,
and has given us the ministry of reconciliation; that is,
in Christ God was reconciling the world to himself,
not counting their trespasses against them, and
entrusting the message of reconciliation to us.” 

– Corinthians 5:18-19 NRSV”

The National Council of Churches of Christ in the USA, which was formally organized in 1950,  has 38 member communions with 45 million people in over 100,000 congregations.

The Cuban Council of Churches (CIC), which was founded in 1941, is the leading institution of the ecumenical movement in Cuba, with 52 churches and Christian institutions as members, including Protestants, Reformists, Evangelists, Pentecostals, Episcopalians, and Orthodox; in addition to other ecumenical institutions and associate members.

=================================

[1] National Council of Churches, Joint Statement: Facing a Critical Moment (April 26, 2019); Council of Churches of Christ of the United States and the Council of Churches of Cuba pronounce themselves against the blockade, Granma (April 28, 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).

Update on Trump Administration’s Threat To  Allow U.S. Litigation Over Cuba’s Expropriated Property

A prior post reported that the Trump Administration was considering not continuing the waiver of the right of certain owners of Cuban property that was expropriated in 1959-60 to bring litigation in U.S. federal courts.  Here are two updates.

First, Engage Cuba, an U.S. bipartisan coalition supporting normalization of U.S.-Cuba relations, published a strong objection to such a move.[1] Here are the reasons for its objection:

  • “There are 5,913 certified claims of seized American property in Cuba . . . [and] the State Department estimates that a flood of up to 200,000 claims if the suspension [of the right to sue] were ended.”
  • “Property claimants would be more successful in earning compensation through high-level diplomatic engagement, given that foreign companies are unlikely to cooperate.“
  • “Future attempts to encourage legal business with Cuba would be much more difficult . . . [and the authorization of U.S. litigation] would have a chilling effect on the broader effort to continue normalizing relations and could spill into other areas like travel, academic exchange, and research collaboration.”
  • “As U.S companies are not exempt from Title III suits, they could face a slew of lawsuits and would be extremely unlikely to expand operations in Cuba despite their past success on the island.”
  • “Companies based in Europe and Canada are among the top foreign investors in Cuba [and] Canada, the U.K. [and Mexico] all have laws prohibiting their companies from complying with Title III suits . . .[plus the] European Union . . . has indicated it will do [the same] . . . if the law goes into effect. The result could be a retaliatory measure that allows litigation against U.S. companies. These legal tensions could also spill over into other aspects of bilateral relationships with U.S. allies.”
  • “Thousands of U.S. lawsuits against Chinese companies could upset an already delicate trade relationship and provoke retaliation. Meanwhile, the U.S. has already left a vacuum in Cuba for adversarial influence, particularly from Russia and China. As business with U.S. companies becomes less viable for the Cubans, they will increasingly turn to our adversaries, who offer them favorable credit terms and invest in high-profile projects.”
  • U.S. “isolation rarely allows for improvements in human rights, and Cuba is no exception. Strained relations with our allies will only escalate this problem. Without a multilateral effort to hold the Cuban government accountable, the U.S. will have a harder time pushing Cuba toward greater freedom.”

Second, an anonymous Administration source said that it is very likely to act on this  proposal, but limit it to only the 6,000 existing claims and to exempt U.S. companies currently doing business in Cuba. Although this would reduce the harmful effects of such a change, it still is objectionable for the reasons advanced by Engage Cuba.

===========================================

[1]   Engage Cuba, Urgent: Trump Administration May Allow Lawsuits for Confiscated Property in Cuba (Jan.—2019).

 

 

 

 

 

 

·

 

 

 

Small Chance of Liberalized U.S. Rules for Agricultural Exports to Cuba  

The U.S.-China trade war initiated by the Trump Administration has had a significant negative impact on U.S. agricultural exports to that country. In response, some U.S. senators and representatives have been pressing for relaxation of U.S. restrictions on such exports to Cuba. These advocates include Senators Heidi Heitkamp (Dem., ND), Amy Klobuchar (Dem., MN) and Tine Smith (Dem., MN)  and Representatives Collin Peterson (Dem., MN) and Tom Emmer, (Rep., MN). [1]

In addition, a bipartisan group of over 60 agricultural associations, businesses and elected officials from 17 states have urged the two congressional agriculture committees to include in the pending farm bills a provision to remove restrictions on private financing of U.S. agricultural exports to the island. [2]

This week Cuba President Miguel Diaz-Canel in New York City for a meeting of the U.N. General Assembly met separately with a bipartisan and bicameral group of Members of the U.S. Congress, including Sen. Ron Wyden (Dem., OR), Rep. Karen Bass (Dem., CA), Rep. Kathy Castor (Dem., FL), Rep. Robin Kelly (Dem., IL) Rep. Gregory Meeks (Dem., NY) and Rep. Roger Marshall (Rep., KA). Rep. Marshall told AG NET that the U.S. “can and should be Cuba’s number one supplier of commodities like sorghum, soy, wheat, and corn.”

But legislation to expand such exports by allowing credit sales to Cuba did not make it into the pending farm bills in both houses of the Congress, and most observers and participants think chances are nil of such a provision being added. And Senator Heitkamp’s provision in the Senate bill to allow the U.S. Department of Agriculture to use federal funds to develop the Cuban market could easily be cut from the bill in a conference committee.

The reason has more to do with politics than economics, according to Ted Piccone, a specialist in Latin American issues at the Brookings Institution. “It basically comes down to domestic politics in Florida,” Piccone said.

=========================

[1] Spencer, Little appetite for effort to bolster ag trade with Cuba, StarTribune (Sept. 21, 2018).

[2] Engage Cuba, Agriculture Groups Support Farm Bill Cuba Provision that Would Save $690 Million (Sept. 5, 2018).