I thank you all for your presence and for accepting the invitation of the Permanent Mission of Cuba to the UN to discuss a topic of great importance to Cuba, for international relations and for bilateral relations between Cuba and the US.
On several occasions, we have said that it is not possible to conceive a full bilateral relationship between Cuba and the US and for this relationship to be sustainable as long as the Helms-Burton Act remains in force.
It is about this law that I intend to share some ideas.
Given that it is a very comprehensive and lengthy legislation, I will limit my remarks to highlight the most relevant aspects, above all those of a political nature, with the aim of calling attention on the significance of the law as an instrument that guarantees obstacles for a civilized and respectful relationship between our two countries.
Its formal name is Cuban Liberty and Democratic Solidarity Act, but it is usually known by the names of the sponsors: Senator Jesse Helms and Congressman Dan Burton.
It is not the only instrument of US policy against Cuba, but it is the most comprehensive and far reaching.
Nevertheless, it is a legal and political instrument insufficiently studied.
Inspite of the serious challenges and implications it poses for International Law and for US Constitutional Law; despite the manner in which it interferes in the sovereign rights of other countries; in spite of being a very ambitious law due to its aims, extension and broad scope, it is not a piece of legislation about which there is frequent deliberation and debate.
The Helms-Burton act is a weapon of aggression with imperialistic aims of domination.
As you most probably know, Cuba has suffered from the US for more than 60 years a policy of hostility and economic asphyxiation.
The central element of that policy is the economic blockade. Other components are attempts to subvert Cuba´s constitutional order through illegal means and to discredit the Cuban government and political system, with millions of dollars provided every year by budgets approved in Congress.
This policy of hostility is expressed and supported by the Helms-Burton Act signed by President Bill Clinton, in March of 1996.
The law has four chapters or titles.
Premises
The first thing that may call one’s attention is that the law rests on certain false premises. One of them is the absurd idea that Cuba is and poses a threat to the national security of the United States.
Why is it necessary to introduce this fallacy, even if most would not believe it?
The issue is that a threat to national security is a category that not only mobilizes sentiments and concerning interpretations, but also unleashes automatic reactions by US government institutions, committed by law to react in the face of threats of that nature.
Qualifying Cuba as a threat serves as a justification for punitive actions.
I am fairly sure that there can be very few officials in the US government that seriously consider Cuba as a threat to national security. But the truth doesn´t matter. Congress, through the Helms-Burton, has already established by law that Cuba is a threat.
The second important fallacy is that the nationalizations carried out in Cuba in the early 1960s were illegitimate and illegal.
At the triumph of the Cuban Revolution, in early 1959, a law was enacted, based on the Constitution of 1940, to confiscate the properties and goods obtained through embezzlement and other forms of corruption during the dictatorship of Fulgencio Batista by crooks, politicians and associates of that regime.
However, that act of confiscation was totally different from the nationalizations carried out later on. Its motivations were also completely different.
Nationalizations, also prescribed in the Constitution of 1940, were expropriations supported by the existing national legislation and were fully in accordance with International Law.
There is abundant documentation to illustrate how nationalizations included proposals of compensation in line with international practice and International Law. Historical records show how the US government chose to ignore those proposals and forego any possibility of negotiation and settlement.
In 1964, in a case involving Banco Nacional de Cuba (Cuba’s National Bank) versus Sabbatino, the US Supreme Court determined that the policy of the United States Federal Courts would be to honor the Act of State Doctrine, which dictates that the propriety of decisions of other countries relating to their internal affairs would not be questioned in the court of the United States.
The Helms Burton Act was aimed precisely at challenging such important precedence of US jurisprudence.
It is possible to assume that if the Helms-Burton Act was to be put to the test by the US Supreme Court, the ruling would be similar to the determination reached in the case of Banco Nacional de Cuba versus Sabbatino.
Contrary to what happened with the rest of the countries whose nationals had properties nationalized by Cuba, American owners were left out of a compensation settlement due to the attitude taken by the US government, which had already determined to provoke a regime change in Cuba with the use of military force.
The Helms-Burton Act, therefore, set itself the task of rewriting history and codifying a false version of the legitimate process of nationalizations that occurred in Cuba.
Consequently, this law is built fundamentally on the basis of those two false premises and it is on those grounds that the economic blockade against Cuba is codified.
Title I
The first Title of the law is the one basically dedicated to the responsibility of codifying the blockade. That objective included the two premises previously mentioned, namely, the definition of Cuba as a threat to the US and the definition of the nationalizations as illegitimate and illegal.
Title I also codified, as legal mandates, preexisting regulations relative to the economic blockade, which until then and with few exceptions rested on executive orders by the US President and regulations of several government Departments.
The aim of codification has been mainly to tie the hands of the President, in other words, to preempt any decision by executive action that would put an end or alleviate the economic blockade.
In addition, Title I codified the obligation of the US government to internationalize the blockade, to try to ensure that it has impact against Cuba´s commercial and financial transactions in any country around the world. The law instructs the President to encourage foreign governments to restrict their commercial and credit relations with Cuba and commits US diplomats to urge other governments to cooperate with what they call the embargo.
It is evident that the Helms-Burton seeks to codify the economic siege of Cuba.
One of the basis of criticism of this law, from a Constitutional point of view, is that the aim of codifying the blockade implies depriving or limiting the capacity of the executive branch in the US government to conduct foreign policy, at least in regards to Cuba.
Some consider it a usurpation by Congress of the prerogatives of the executive branch in steering foreign policy.
Such an opinion supports the criteria shared by several US law scholars and practitioners asserting that the Helms-Burton Act has serious flaws and contradictions, based on purely legal and conceptual grounds.
It is an argument that deserves study and would surely generate debate about the Constitutionality of the Act.
It is important to point out, despite what was just said, that in the effort to codify everything related to the economic blockade, the law also largely codified the prerogatives of the President relating to each and every regulation of the blockade.
Among those prerogatives is that of establishing exceptions to the blockade with certain limitations.
Consequently, it can be argued that, in practical terms and if political will were to exist, the President of the United Sates can introduce significant changes to the coercive measures established by the blockade, even if it were impossible to abolish it in its entirety without an act of Congress.
It follows from this statement that no US President should hide behind the Helms-Burton to claim the impossibility to change such an unjust and destructive policy.
Title II
Title II of the law is the closest thing to a colonial platform of anything written or legislated at the end of the twentieth century.
It consists of a description and plan of action for the way in which the US conceives Cuba once the objective of regime change is met and the overthrow by force of Cuba´s constitutional order is achieved.
This title describes with remarkable detail how the US government would designate an intervening administrator of Cuba, entrusted with the task of organizing an interim government, arranging the country politically and legally, distributing properties, abolishing existing institutions, such as labor unions and social organizations, and determining, after an unspecified length of time, when the conditions are ready to abolish the economic blockade.
In other words, Cuba, a country that for over 150 years has fought for and defended its right to full and sovereign independence, would, according to the Helms-Burton, be governed from Washington and by Washington.
Among other provisions, Title II states that the economic blockade would continue in full force until all properties nationalized by Cuba or abandoned by former owners would be returned to them or their descendants or paid for in their full value.
The text and aims of Title II are contrary to International Law. They imply an absolute contradiction with the UN Charter, with numerous resolutions of the UN against colonialism, against the interference in the domestic affairs of other Sates, against the use of threats or of force, and against the use of unilateral economic coercive measures for political aims.
Title II is a drastic and evident assault against the principle of equal sovereignty among Sates. It contradicts numerous international instruments to which the US is party.
Titles III and IV
Title III and IV are additional expressions of the extraterritoriality of the Helms-Burton and the economic blockade as a whole.
In open violation of International Law both titles are dedicated to threaten and take reprisal actions against companies and business people from third countries that invest in the Cuban economy or develop commercial relations with our country, in a legitimate fashion, with full respect for the laws of their countries of origin, the Cuban legislation and to International Law.
In the case of Title III, the law establishes the possibility of legal demands in US courts and for those courts to take action against companies or individuals that invest or develop commercial activity with entities in Cuba related to properties that were nationalized in the early 1960s.
There is no parallel to such intention anywhere in the world. It is a flagrant violation of the rules that govern international trade. If repeated in other jurisdictions for similar alleged reasons, the result would be chaos.
As previously said, to sustain its intentions the law arbitrarily and unilaterally defines the process of nationalizations in Cuba as illegal and illegitimate. According to experts, the law also infringes on the role of the judicial branch by overstepping the legislative prerogatives and attempting to rule and dictate what US jurisprudence traditionally reserves for judges and courts.
It would be convenient that further study is done on the legal implications of the implementation of this Title of the law.
It should be remembered that based on a provision of the Helms-Burton itself, all US Presidents from 1996 until April 2019 waived every year the possibility for courts to take action if legal demands were presented according to Title III. All Presidents until then understood the absurd consequences and the dangerous precedent of putting in the hands of US courts issues related to business transactions in another country by companies and people who are not under US jurisdiction.
The governments of several allies of the US were emphatic in rejecting the Helms-Burton, specifically Title III, and called the attention on its dangerous consequences. Some of those governments issued countervailing legislation to protect their citizens from the Helms-Burton.
It was President Donald Trump, during his government, the one who decided to put an end or not to renew the waiver, and the current government of Joseph Biden has followed suit with absolute loyalty.
It is interesting to observe that while the waiver was suspended since 2019 and dozens of demands have been formalized, no favorable verdict has been returned, which is perhaps an evidence of the intrinsic flaws of the law.
It is also interesting to note that even though Title III was conceived to act with reprisals against companies and individuals of third countries, most of the demands that have been formalized are rather directed against US companies and individuals.
In the case of Title IV, its coercive effect is to deny or threaten to deny entry visas to the US for business people of third countries that invest or have business relations with Cuban entities related to properties that were nationalized or abandoned by former owners.
The US government has applied this measure with a selective approach since 1996 against individuals or several countries and their families.
Debate and approval
I should point out, before concluding that the process of discussion and approval of this law, back in 1995 and 1996, turned out to be quite complicated. Since the first drafts were introduced, the unusual and absurd nature of the legislation became evident.
The Congressional records of the debates are witness to the solid argumentations regarding the legal and political deficiencies of the proposed legislation.
If the political context and climate of the time are studied, together with the conditions under which such an aggressive instrument of coercion was approved as legislation, it will be easier to understand how the US political system has been manipulated for decades to promote and consolidate hostile aims against Cuba, responding to the interests and priorities of a very narrow political spectrum of society, that is alien to the logic of the legal system, as well as the opinions and aspirations of the majority of Americans.
Importance
This law known as the Helms-Burton deserves study and attention, due to its hostile nature, contrary to important precepts of US legality and jurisprudence; because of the damage that it provokes against Cuba, the US, third countries, with the intrinsic aim to perpetuate hostility from the US against Cuba, and attempt to close any possibility of building a respectful and civilized relationship between the two countries.
(Cubaminrex)
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