The U.S. Helms-Burton Act was conceived to codify and tighten the economic, commercial and financial blockade imposed on Cuba in 1962 for the purpose of subverting and overthrowing the Cuban government and imposing a regime to the liking of the U.S. government.
TML Weekly interviewed Isaac Saney, Co-Chair and Spokesperson of the Canadian Network on Cuba (CNC), to explain for our readers what is the Helms-Burton Act and its Title III and what is at stake.
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TML Weekly: What is the Helms-Burton Act? What is its intent and aim?
Isaac Saney: The Helms-Burton Act was passed in 1996. It was meant to tighten and further U.S. economic sanctions against Cuba and also to codify them as law in the sense that this was an act of Congress rather than actions under the purview of the U.S. President. The President had been using the Trading with the Enemy Act to issue political directives that sanctioned Cuba economically. The Helms-Burton Act specifically targeted Cuba and established a series of conditions with regard to the Cuban economy, aimed at the destruction of the socialist nature of the Cuban economy so as to be acceptable to the U.S. empire.
Title III of the Act allows U.S. companies and citizens to sue not only Cuban companies but also international companies engaging in what the U.S. calls "trafficking in stolen property," i.e. that very grotesque way of referring to the fact that Cuba, when the Revolution triumphed, was within its right under international law to nationalize property owned by foreign companies in Cuba and that since then some of that property has been occupied or otherwise used by those Title III targets. Cuba offered compensation according to international law for the properties that were nationalized at the beginning of the Revolution. In the early years of the Revolution, every single country which faced the nationalization of its properties -- France, Canada, Britain, you name it -- came to an agreement with Cuba on compensation. Cuba offered compensation to U.S. companies too, but the United States blocked the attempts of any of these companies to accept and engage in negotiations with Cuba.
What is interesting is that under the Obama administration when there was a formalization of diplomatic relations and an attempt to move to what was said to be a different relationship, one that was still aimed at undermining the Revolution, but in new and less aggressive ways, U.S. companies actually began to look at some of these approaches to compensation as well. They began to look at what are referred to as certified cases, to actually begin to resolve some of the cases. Of course, it is important to understand that the Cubans themselves say that aside from compensation for U.S. companies, there is the question of the enormous damage caused by U.S. economic sanctions against Cuba which totals over a trillion U.S. dollars. As well, there is the cost of Cuban lives from all manner of terrorist acts that have been carried out against Cuba from U.S. territory.
The United States has waged an unabated, unceasing economic war against Cuba since the early '60s. The Helms-Burton Act is an escalation of this war against Cuba and an overt attempt to economically asphyxiate Cuba through the violation of international law, by attempting to cut off Cuba's economic links with other parts of the world and sources of foreign investment. It is used to take punitive action against companies that are doing business in Cuba, with those that also carry on business with or have assets in the U.S. being especially vulnerable.
The Helms-Burton Act's full title is grotesque; it is the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996. It has nothing to do with the liberty of Cuba. In fact it is all about returning Cuba to U.S. domination, hegemony and tutelage. It has nothing to do with democracy because it is a fundamental violation of the right of the Cuban people to self-determination. It also violates the sovereignty of third countries that engage in trade with Cuba.
When it comes to Canada, for example, the largest single foreign investor in Cuba is Sherritt International which has interests in mining, in petroleum, and in other sectors of the Cuban economy.
TMLW: Tell us about the international community's opposition to the Helms-Burton Act.
IS: It is opposed by the international community because it is a flagrant violation of established norms of international trade and international law. Its aim is to make U.S. law the law that trumps (no pun intended) and supersedes domestic law. For example, in Canada, U.S. law would trump Canadian law and Canadians would have to follow U.S. law to avoid putting operations and assets they might have in the U.S. in jeopardy. Canadian companies themselves would not be allowed to trade with Cuba without facing some very significant economic sanctions from the United States.
When the Helms-Burton Act was passed in 1996, there was opposition from Canada. There was opposition from European countries. Every U.S. President, first Clinton and then the others, has suspended Title III of the Helms-Burton Act every six months in order that lawsuits cannot be launched against companies by U.S. citizens whose properties were nationalized or by Cuban-Americans who left Cuba and became U.S. citizens and claim that there is property that belonged to them in Cuba for which they have a right to claim compensation through U.S. courts. What happened under the Trump administration was they lessened the six-month waiver of Title III to 45 days, then to an even shorter period, creating an increased sense of insecurity, until announcing on April 17 that they would begin fully implementing it as of May 2.
So because of the pressure from the international community, the Presidents before Trump decided that they had to waive Title III. Why? Because at the end of the day its extraterritorial nature represents a fundamental violation of the sovereignty of each individual country in the world, attempting to make U.S. law the dominant law in their countries, trumping and overriding domestic law when it comes to companies doing business with Cuba. For example, European countries and Canada, the largest investors in Cuba, have legislation on the books to limit the effect of extraterritorial measures initiated by other countries against entities in their countries. In 1985 Canada adopted the Foreign Extraterritorial Measures Act (FEMA), which in 1997 was further strengthened specifically to deal with the Helms-Burton Act, by blocking its enforcement in Canada.
TMLW: Tell us something about Title III's violation of Canadian sovereignty and how FEMA is applied.
IS: I will give you an example. In 2017, we had the case of Honda Canada being fined tens of thousands of dollars for having leased cars to the Cuban Embassy. This was seen as a violation of U.S. sanctions against Cuba given that a U.S. company, American Honda Finance Corporation was a majority shareholder of Honda Canada Finance. The company was fined even though both the lessor and the lessee were in Canada. There are other cases. Another example is that the executives of the Canadian company Sherritt International are barred from travelling to the United States. Their children are barred from attending U.S. schools because they can't get visas under Title IV of Helms-Burton.
As an example of what could happen now with the activation of Title III, consider the situation of Air Canada, Sunwing, and Air Transat that are engaged in flying tourists to Cuba, involved in setting up a whole variety of tourist packages with hotels in Cuba as well as having airport landing rights. Ships with docking rights in Cuban ports could also be targeted. It is a fact that Canada provides the largest single source of tourists for Cuba. Last year I think more than five million people visited the island, and there are close to a million-and-a-half Canadians visiting Cuba annually. Air Canada, Air Transat and Sunwing could be accused of engaging in business in Cuba that involves what the United States considers to be nationalized property, what they call stolen property. Those companies could be subject to a series of lawsuits and judgments in U.S. courts.
As for FEMA, it was enacted in 1985 to block the extra-territorial application of foreign laws to Canadian businesses. It enables the Attorney General to issue orders blocking extraterritorial measures from being taken against Canadians and Canadian entities. An individual or corporation that breaches FEMA or an order made under FEMA, can be subject to fines and/or imprisonment. A Blocking Order issued in 1992 requires that a Canadian corporation notify the Attorney General of any directive or other communication it receives relating to a U.S. extraterritorial measure being initiated against it in respect of any trade or commerce between that corporation and Cuba. It also prohibits Canadian corporations from complying with any such measures considered likely to prevent, impede or reduce trade or commerce between Canada and Cuba.
FEMA was amended in 1997 to specifically deal with Title III of the Helms-Burton Act so that it now can be used to block U.S. judgments from being enforced in Canada, restrict the production of records to U.S. courts in Title III actions, and give Canadians the right to counter-sue in a Canadian court to recover damages awarded against them in the U.S. plus court costs. FEMA cannot however be used to recover monetary damages awarded against any assets Canadian individuals or businesses might have in the U.S. or possibly other foreign jurisdictions.
As far as I know, FEMA has ever been enforced in court so there is no case law to consult regarding its application.
TMLW: Can you elaborate how the enforcement of Title III will affect Canada-Cuba economic relations?
IS: Canada has significant economic relations with Cuba. Are these companies going to succumb to this economic pressure? If they persist and continue their relations with Cuba will they be sued in U.S. courts? What will happen then? What will be the economic impact not only on them but on the Canadian economy? Or, importantly, will other companies now be extremely wary of investing in Cuba, of engaging in this kind of commercial economic practice and intercourse with Cuba for fear of facing claims for damages under Title III? That is considered by many to be the main aim of activating Title III.
So there are all of these factors that we have to take into consideration. For example, if a suit is brought against Air Canada, WestJet, Air Transat and Sunwing will they be able to economically bear that burden? What will happen to tourism? Will Canadians now find Cuba cut off for them as a tourist destination? All of these are things for us to bear in mind. And we also have to bear in mind that Canadians have been travelling to Cuba in their hundreds upon hundreds of thousands and have developed a very strong respect for what Cuba has been able to do in the face of incredible U.S. aggression. They respect the Cubans for having overcome the obstacles that the U.S. empire continues to put in their path.
It is going to have a huge impact. Mark Agnew, who is from the Canadian Chamber of Commerce, said that this "could affect any company which has any relationship with Cuba." Sherritt International Corporation has, I think, over $2 billion invested in Cuba. We have other Canadian companies that trade with or are investing in Cuba. We have banks like the National Bank of Canada which has offices there. We have Quebec and Alberta farmers who have significant interactions with Cuba. We have the airlines. They could be facing very significant lawsuits that could burden them with economic problems they might not be able to overcome.
TMLW: Please elaborate on how the activation of Title III attacks the Cuban nation and people.
IS: This is a continuation of the war against Cuba. It is a fundamental violation of the right of Cuba to trade with anyone in the world, engage in partnerships with foreign entities and benefit from foreign investment. It is a violation of the right of the Cuban people to self-determination, to determine their political, economic, social and cultural system without any political interference, a right enshrined in the Charter of the United Nations and in the various covenants on international, economic, political and civil rights. It is a fundamental violation of Cuba's right to choose its own path and an attempt to return Cuba to being a neo-colony of the United States. It is an attempt to extinguish its national aspirations to establish what José Martí, the hero of Cuba's historic struggles to achieve genuine independence and a just society, described as "a nation with all and for all," i.e. a sovereign nation which is fully in the hands of the Cuban people, a nation in which the resources are used for the benefit of every citizen, for the benefit of the nation as a whole.
This is an attempt by the United States to destroy Cuba's nation-building project. It is also in a sense an attack on Latin America and the Caribbean as a whole. The U.S. has clearly said that the Monroe Doctrine applies and is showing by its actions that it believes Manifest Destiny also applies, that it has the right to determine the economic and political arrangements in Latin America and the Caribbean. Not only does the U.S. say it has the right but it will use its might to try and enforce it. So we have what is going on in Venezuela, the attempt to overthrow the Maduro government and replace it with one that will do U.S. bidding. We have the declaration that Nicaragua, Venezuela and Cuba constitute a troika of evil. We have the militarization of Latin America, the rejection of the call to make Latin America and the Caribbean a Zone of Peace.
But it is also important to understand what will happen when Helms-Burton's Title III is unleashed. I think there will be very significant challenges from the European Union -- before the World Trade Organization and using their own blocking statute. What we may also see with Helms-Burton Title III is the shattering of established international arrangements. Does it mean that might makes right? Will it gain acceptance for the use of force in its various connotations as the dominant factor in international relations? Will it gain acceptance for the shredding of international law?
By opposing Helms-Burton, not only do we uphold the sovereignty of nations, and in our particular case, Canadian sovereignty, but we uphold the right to and the necessity for the rule of law.
TMLW: How should the Canadian government respond to this?
IS: In my opinion the Canadian government should very vociferously, in all national and international fora, reject the extraterritorial nature of Helms-Burton. It should uphold Canadian sovereignty and act in keeping with its vote at the United Nations condemning the illegal U.S. economic, financial and commercial blockade of Cuba. It is important to bear in mind that since 1992 members of the UN General Assembly have repeatedly and overwhelmingly opposed the U.S. blockade of Cuba, and particularly its extraterritorial features, representing one resounding victory after another for Cuba. I think that the Canadian government and Canadian parliamentarians should not allow Canada's policies towards Cuba or its relations with Cuba to be targeted and undermined with this latest aggressive move by the U.S. In fact they should stand up for Canadian sovereignty as well as Cuba's and the sovereignty and right to self-determination of all those potentially affected.
TMLW: Do you have any concluding thoughts?
IS: In conclusion, I would say that this is a very dangerous turn in relations. The Trump administration is obviously engaging in a policy of vindictiveness. They want to eliminate the Cuban Revolution which has always been a concrete example of self-determination in Latin America. The situation is at a very critical point and we must ensure that we do not allow this to stand.
I would also like to say that despite all of this, there is significant confidence in the Canada-Cuba solidarity movement that the Cuban people can and will overcome any challenges that they face including this latest provocation by the United States, this latest act of aggression, this latest escalation of the U.S. economic war against Cuba. I think also that the Cuban people can be confident, that they can count on the ongoing undiminished support and friendship of Canadians. That support and friendship is rooted in the overwhelming respect of Canadians for Cuba's rights, independence and self-determination and a profound admiration for what the Cuban people have accomplished despite facing the unceasing aggression of the United States. This respect and admiration have forged unbreakable ties of friendship between the people of Canada and Cuba.
The Canadian government should recognize this by taking a resolute, unequivocal political stand against this latest vindictive act of the U.S. and by using all available legal means at home and internationally to combat its effects. It is an act of aggression not just against the Cuban people but against the Canadian people, against the Canadian nation and the fundamental principle of sovereignty.
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