Isabel Alfonso on Title III: ‘Implementation of such an obtuse law is not feasible’

In an ongoing series started last week dealing with possible consequences of the implementation of Title III of the Helms-Burton Act, what follows is this week’s installment of questions and answers. Our contributor is María Isabel Alfonso, a professor of Spanish and Cuban culture at St. Joseph’s College, New York. She is a founder of Cuban Americans For Engagement (CAFE).

If you’d like to read the questions and answers from our first contributor, Professor William LeoGrande, click here.

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Progreso Weekly (PW): Do you believe Title III of Helms-Burton will be enacted by this administration? And if so, why now?

Maria Isabel Alfonso (MIA): Since the Helms-Burton Act was codified in 1996, Presidents Bill Clinton, George W. Bush and Barack Obama, within their respective mandates, have rejected its implementation every six months due to international pressure and its unpopularity. The current nefarious anti-progressive coalition, together with the anti-Cuban forces within the current administration, led by National Security Adviser John Bolton and seconded by Secretary of State Mike Pompeo, has referred to Cuba, along with Nicaragua and Venezuela, as members of the “axis of evil,” and now as a ” troika of tyranny.” This helps to explain the new course taken in announcing the suspension of Title III for 45 days, instead of the customary six months. Its implementation depends on current developments in the region, and the weight the administration places on the uninformed and dangerous policies that put at stake their own internal economic and political stability.

PW: Applying it now could have a double purpose: (1) to increase pressure on Cuba as part of its policy on the region; and (2) electoral politics for the presidential elections of 2020. Any thoughts on this?

MIA: The application of the law would be part of a strategy of external pressure towards Cuba, while internally, it would seek to capture a more retrograde, and a minority sector, of the Cuban-American electorate in view of the 2020 elections. However, at a time when the U.S. seems to be more isolated than ever in the region, we should hope that those responsible for making a decision like this recognize that the implementation of such an obtuse law is not feasible. The current administration already has its hands full. The situation in Venezuela, the investigation of Russia election-interference, and the possibility of another government shutdown, are all currently going on creating an almost obsolete congress before the tantrums of a president trying to obtain a budget for his wall. We should hope they understand how to prioritize and realize that it is not convenient for them to complicate things further with the implementation of a law that has received unanimous rejection, not only in the region (Mexico and Canada), but also by the member countries of the European Union.

PW: From the legal point of view, does it mean a violation of international law and American laws?

MIA: The Cuban Liberty and Democratic Solidarity Act (Libertad) or Helms Burton, constitutes a violation of the practices of international law. Since its creation in 1996, Mexico and Canada worked with members of the OAS to curb this law. The Juridical Committee of this institution unanimously established that the foundations of the law were against international law, evidenced in the reactions against it in the United Nations, and in general throughout the international community. Title III, specifically, gives U.S. citizens (including those who were not citizens at the time of confiscation) the right to file lawsuits in local U.S. courts against individuals and businesses involved in negotiations (“trafficking,” as stated in the language of this law) in Cuban territory that counts as confiscated property. The law has been perceived as a gesture of interference that threatens the sovereignty of third countries. It contravenes even the spirit of free commercial exchange reflected in the current North American Trade Agreement (T-MEC, UMSCA), which promotes, at least in the letter of the law “good regulation practices” to promote economic growth and commercial exchange among its members. The Helms Burton, by extraterritorially penalizing members of the Agreement, is placed in a position of antagonism that will not be well received, neither by the members of the treaty nor by their European and Asian counterparts.

PW: Can you foresee reactions from the affected countries? There are some, like Canada, that previously have passed antidote laws.

MIA: Canada has drawn up, even before the Helms Burton, laws that check the scope of US legislation against trade with Cuba. Such is the case of the Foreign Extraterritorial Measures Act (1985); Foreign Extraterritorial Measures Order (FEMA, 1992); and the CBO or Canadian Blocking Order, which is intended to counteract the Cuban Democracy Act of 1992, later transformed, following the passage of the Helms Burton, in the Amendment Blocking Order or FEMA Order, 1996. These laws authorize the Attorney General of Canada to issue ordinances to block extraterritorial measures that affect international trade and that infringe on Canadian sovereignty.

Mexico, on the other hand, has enacted similar laws such as the Law on Protection of Trade and the Investment of Foreign Regulations that Contravene International Law, which, since its application on October 23, 1996, prohibits acts that violate the law, trade or investment, as a consequence of compliance with extraterritorial laws.

Member countries of the European Union have opposed in international forums, and through various regulations, the unconstitutionality of Helms Burton. It is foreseen that with the demise of the Common Position and the adoption of the Agreement on Political Dialogue and Cooperation (ADPC) by the European Union and Cuba, only the region’s opposition to the application of this law would be radicalized.

PW: What might be the reaction of the recognized American claimants who would be affected?

MIA: No doubt that among those who lost property in Cuba, there are some who support the implementation of a law as misplaced as this, which not only violates the conventions of international law, but weighty historical and practical factors. However, one could only hope that the majority within this minority group would realize that this law would only impede compensation agreements through diplomatic channels, which will always be much more realistic and effective in the long run.