More on Title III

It appears likely from the State Department’s announcement that Title III of the Helms-Burton law will be allowed to go into effect around March 1. No U.S. President has permitted this: Since enactment in 1996, Clinton, Bush, Obama, and Trump have blocked it every six months.

As a result, those whose properties in Cuba were expropriated and who can identify a foreign business connected to that property, can sue the foreign business in U.S. courts – even if the plaintiff was not a U.S. citizen or resident at the time of the taking.

My opinion on all this is here. Some more info on Title III:

The law is presented as protection for claimants who were never compensated. But the right to sue is limited. Cuban Americans can’t sue for their homes. No one can sue for a property worth $50,000 or less when it was taken. And the right to sue expires if Cuba’s socialist government goes away, or if the President decides to suspend it again.

The law also shields two classes of business from Title III lawsuits.

First are those engaged in “the delivery of international telecommunication signals to Cuba.” In other words, companies delivering voice or data traffic to the Cuban network are protected, while those whose businesses extend into the Cuban domestic network are not.

Then there are those engaged in “transactions and uses of property incident to lawful travel to Cuba, to the extent that such transactions and uses of property are necessary to the conduct of such travel.” The House-Senate report accompanying the bill put it more simply: “any activities related to lawful travel to Cuba” are protected. Those who want to sue, for example, based on ownership of a port facility, are surely searching for ways to argue that this language should not apply.

In theory, the damages could be substantial; the law fixes them at three times the property’s current value, plus court costs and attorneys’ fees.

Finally, some U.S. businesses who lost property in Cuba were partially compensated through a tax deduction. In November 1962, the IRS allowed them to deduct Cuba confiscation losses from their business income.

The Helms-Burton threat

In Cuba Standard, a column of mine on the Administration’s consideration of allowing Title III of the Helms-Burton law to go into effect next February. Spoiler: It’s a bad idea.

Alan Gross and Cuban law (Updated)

“What he did is not a crime.”

– State Department spokesman P.J. Crowley on USAID contractor Alan Gross

“In March 1999, the Cuban Government passed legislation which would impose 8 to 20 year prison sentences on any Cuban citizen found to be collaborating with activities funded through Section 109 of the LIBERTAD Act. In March 2003, the Cuban Government arrested and sentenced to long prison terms Cuban citizens the Cuban Government accused of collaboration with Section 109 activities. Individual Cuban citizens and Cuban NGOs as well as U.S. individuals and organizations participating in the program to be funded under this APS must be fully apprised of the implications of the March 2003 Cuban Government crackdown.”

– USAID in 2008 soliciting bids of $100,000 to $5 million for one-to-three-year Cuba projects

Update: A reader looked up parts of the Cuban criminal code and, under an “attenuating circumstances” heading, found this: “to have committed the crime in the belief, albeit erroneous, that he had the right to carry out the sanctionable act.”

Other parts:

SECCIÓN DÉCIMA: La Expulsión de Extranjeros del Territorio Nacional
ARTÍCULO 46.
1. Al sancionar a un extranjero, el tribunal puede imponerle, como sanción accesoria, su expulsión del
territorio nacional si por la índole del delito, las circunstancias de su comisión o las características
personales del inculpado, se evidencia que su permanencia en la República es perjudicial.
2. La expulsión se cumple después de extinguida la sanción principal.

3. No obstante lo dispuesto en el apartado anterior el Consejo de Ministros puede decretar la
expulsión del extranjero antes de que éste cumpla la sanción principal impuesta, la que, en este caso, se declarará extinguida de conformidad con lo establecido en el inciso j) del artículo 59.

SECCIÓN SEXTA: Las Circunstancias Atenuantes o Agravantes
ARTÍCULO 52. Son circunstancias atenuantes las siguientes:
c) haber cometido el delito en la creencia, aunque errónea, de que tenía derecho a realizar el hecho sancionable;

A Helms-Burton primer

Whether or not you like the point of view in this paper (pdf, 19 pages), it provides lots of good background on the 1996 Helms-Burton law – its provisions, how they have been applied and against whom, the European reaction, EU bargaining with the United States, and unsuccessful efforts to have sanctions applied against Spain’s Sol Melia hotel chain on behalf of the Sanchez family.

It provides some context that I missed in some earlier discussions here, explaining how Spain led the EU to its “common position” as part of a bargain that kept the United States from allowing the law’s Title III sanctions to take effect. Title III would allow Cuban Americans to sue in U.S. courts those foreign investors whose investments touch their former properties in Cuba. Title III has never gone into effect.

The paper doesn’t include my favorite quote on Helms-Burton, so I’ll provide it:

“In a few short years, there will be freedom, democracy, and human rights in Cuba, and we’ll all go down there and have a good time.”

-- Congressman Dan Burton, March 13, 1996