Just like this entire, inappropriately named law – Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 – Title III of the Helms Burton Act is absolutely illegal, not only in terms of international law, but also with respect to constitutionality, process, and judicial competence. It allows U.S. citizens who were the object of nationalizations of expropriations of assets valued at more than 50,000 dollars – undertaken in accordance with Cuban law beginning January 1, 1959 – to present claims before U.S. courts against persons who "traffic" with their former properties, with no regard for the reasons or basic foundations of nationalization processes. Among these is the exclusive competency in such matters of courts in the expropriating country, as established in Resolution 1803 (XVII) approved by the United Nations General Assembly, December 14, 1962, entitled Permanent Sovereignty over Natural Resources, which stipulates, "In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication."
Disregarding international law, and the most elemental norms of international judicial competence, the U.S. courts are given jurisdiction they do not have. It is true that judicial power is an attribute of national sovereignty, exercised exclusively by courts of a given state within its territory. But it is also true that extraterritorial reach can only be exercised when this is expressly accepted by the foreign state involved, or mandated by international covenants.
Thus, the following violations can be noted:
- The national courts of a state do not constitute an appropriate forum to consider and rule on complaints against another state.
- No state has the right to attribute responsibility to third-country nationals for the use of expropriated property located in the territory of an expropriating state, when such use complies with the laws of the latter.
- Likewise, it has no right to attribute responsibility to third parties not involved in a nationalization, affording, to its detriment, responsibility not linked to the nationalization, and not recognized by international law on this matter, thus modifying the legal basis for liability.Worth mentioning are two of the factual and "legal" supports of this absurd regulation: the concept of a U.S. national and that of trafficking.To define a U.S. national, that is, a person with the right to make a claim, used is a concept and attribution of nationality that goes beyond the legal limits established for other persons, including Cuban-Americans in legal relations, providing them state protection as U.S. citizens at the time of nationalization. This is a flagrant violation of any system used to consider nationality in a given state, accepting as citizens, in terms of protection under the law, those who in reality are not, but are rather simply present in U.S. territory, and were actually residing in Cuba at the time of the nationalizations. If a complaint with international consequences is admitted by a given state, it is necessarily required that the plaintiff be a citizen of the state in which the claim is filed, at the time when the alleged illegal act took place, and–at least–at the time of the filing by the interested state before a body with the jurisdiction to address it. This necessary possession and continuity of nationality is in no way a requirement for the exercise of diplomatic protection by the state, but rather a fundamental one, a substantive requisite for the exercise of such protection.The term "trafficking" used in the Helms-Burton refers not only to the sale, transfer, purchase, or rental of property in question, but also applies to anyone who engages in, or benefits from, commercial or investment activity which in any way involves a nationalized property. Responsibility is demanded of those who have nothing to do with the alleged wrongful act. Thus other violations are evident:
- No state has the right to consider claims from persons who were not its citizens at the time of an alleged damage or injury.- No state has the right to attribute responsibility to third-country nationals for the use of products or intangible goods that are not exactly the same as those expropriated. In terms of procedural issues, affected third parties are left defenseless, and arbitrary procedures not outlined in any related legal document are instituted, making for the following violations:
- No state has the right to impose compensation for any amount that exceeds the actual damage (including interest) which results from an alleged illegal act by an expropriating state.- No state may deprive a foreign national of the right to effective defense, in accordance with due process, regarding the basis and the amount of claims that may affect foreigners and their property.The above constitutes an international wrongful act, by which the U.S. government incurs international responsibility:
- The effective enforcement of a claim against the property of a third-country national, in contravention of the principles and norms of international law, would constitute, in itself, a measure equivalent to an expropriation, and would give rise to liability on the part of the acting state.International law, as the basis for relations between states in the international judicial community and guarantor of world peace, cannot accept such arbitrary acts, which constitute economic coercion against a sovereign state, hidden within a legal framework.
The implementation of Title III would open a Pandora's Box, and could have a boomerang effect, with complaints filed against the U.S. government itself by other states. Several other nations denounced the Helms-Burton Act, immediately following its approval, citing the extraterritoriality of provisions that could be implemented in their territory. The international reaction was not long in coming, and several laws and regulations were established in other countries as "antidotes" – including those in Canada dated October 22 of 1996; Mexico, October 23 that same year; CE No. 2271/96 approved by the European Union Council; and Spain's Law 27 dated July 13,1998.
Universal condemnation of the Helms-Burton has been repeatedly expressed in the United Nations General Assembly, with the votes of 189 nations during the last session, opposed only by the U.S. and Israel.
Moreover, on May 3, 1996, the European Union submitted a request for consultation to the World Trade Organization (WTO) and subsequently, on October 3 of the same year, the EU Council of Foreign Ministers filed an appeal with the WTO challenging the Helms-Burton Act. On November 20, the Dispute Settlement Body, in accordance with its rules, agreed to create a panel to issue an opinion within a period of six months. Shortly after the law's first anniversary, a compromise between the European Union and the U.S. was announced, to end the controversy just prior to WTO action. On April 11, 1997, some 13 months after the law was adopted, the European Union announced an agreement "of principle" with the U.S. that would lead to the tabling of the proposed process on April 25. This is largely due to the repeated suspension of Title III, the most extraterritorial feature of this misnamed law.Reactions like this may be repeated, and the adoption of antidote laws may resume. Independent states are not disposed to having their sovereignty arrogantly violated by a foreign state.And what about the avalanche of claims that can be expected? Some estimate 200,000, others 400,000. This would lead to protracted proceedings before the courts, causing long delays and significant expenses for the plaintiffs, with dubious prospects for success.Transferring these purported claims to individuals, so they can appeal to the courts, removes them from the diplomatic arena and possible government negotiations, despite the fact that Washington itself has included the issue of compensation for nationalizations on the bilateral agenda announced following the reestablishment of diplomatic relations.But the boomerang could also affect their own citizens, impacting U.S. businesses which have commercial relations with Cuba, along with tourists interested in seeing the country, in violation of their constitutional right to travel.Activating Title III, in addition to these risks and problems, constitutes an open mockery of the international community's rejection of the blockade, and international law.Cuba, for its part, as the Foreign Ministry recently recalled, adopted Law No. 80, Reaffirmation of Cuban Dignity and Sovereignty, on December 24, 1996, declaring the Helms-Burton Act unlawful, unenforceable, and without legal effect. (Granma)