{"id":12685,"date":"2019-12-01T12:00:48","date_gmt":"2019-12-01T17:00:48","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=12685"},"modified":"2019-12-01T11:24:16","modified_gmt":"2019-12-01T16:24:16","slug":"a-neurosurgeon-a-cruise-liner-and-a-stolen-port-the-helms-burton-act-offers-redemption-while-raising-questions-of-extraterritoriality","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2019\/12\/01\/a-neurosurgeon-a-cruise-liner-and-a-stolen-port-the-helms-burton-act-offers-redemption-while-raising-questions-of-extraterritoriality\/","title":{"rendered":"A Neurosurgeon, a Cruise Liner, and a Stolen Port: The Helms-Burton Act Offers Redemption While Raising Questions of Extraterritoriality"},"content":{"rendered":"
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Photo provided courtesy of Pixabay.<\/em><\/center><\/figcaption><\/figure>\n

By Samantha Cook, Editor-in-Chief<\/strong><\/p>\n

Javier Garcia-Bengochea is a Cuban-American neurosurgeon who was 15 months old when his family fled Cuba.[1]<\/sup><\/a> He claims his family was an owner of a valuable piece of property confiscated by Castro\u2019s regime.[2]<\/sup><\/a> Garcia-Bengochea, like many other certified claimants, considers himself and his family to have been robbed by the Cuban government and still seeks reparations. The Trump Administration recently decided not to renew the waiver of the provision of the Helms-Burton Act that permits former owners of property confiscated by the Castro regime to sue any entity trafficking in that property. This decision is lauded by hard-liners promoting a firm American stance against Cuban Communism, but it also finds itself at odds with standards of international law, which discourages extraterritoriality, that is, laws that govern \u201cconduct outside [a country\u2019s] territory that has or is intended to have substantial effect within its territory.\u201d[3]<\/sup><\/a> Generally, international law respects that jurisdictions will overlap in issues involving such areas as multinational businesses, international transportation, and the environment. However, a U.S. law allowing lawsuits against any company \u2013 from any country \u2013 using confiscated property in Cuba muddles the line between domestic and international jurisdiction and resurfaces the concerns voiced by Congress and President Clinton at the time the bill was passed.<\/p>\n

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  1. The Helms-Burton Act<\/li>\n<\/ol>\n

    The late 20th<\/sup> century brought an era of conflict between the United States and Cuba, beginning in 1959 when Fidel Castro\u2019s revolution placed a Communist government in power and aligned with the Soviet Union.[4]<\/sup><\/a> Since this time, U.S. policy toward Cuba has been one of isolationism and economic disenfranchisement, primarily through embargoes.[5]<\/sup><\/a> In 1996, the Cuban government shot down two American civilian planes, which were running a humanitarian mission to rescue Cuban rafters crossing the ocean to Florida.[6]<\/sup><\/a> This incident sparked outrage in the United States and moved President Clinton to sign into law a piece of legislation to punish the Cuban government, entitled the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (the \u201cHelms-Burton Act\u201d or the \u201cAct\u201d).[7]<\/sup><\/a> The purpose of the Act was to bolster the economic sanctions against Cuba, like its predecessors,[8]<\/sup><\/a> but what made this Act unique was that it introduced a new mechanism by which to penalize the Cuban government. It created extraterritorial jurisdiction for Americans to sue the any companies trafficking in expropriated property that was taken without compensation by the Cuban government.[9]<\/sup><\/a><\/p>\n

    The legislation laid out Congress\u2019s findings related to property rights that were infringed in the course of Fidel Castro\u2019s revolution.[10]<\/sup><\/a> It alleges that Castro confiscated property from millions of Cubans and thousands of Americans, plus thousands of Cubans who sought asylum in the United States and have since become citizens.[11]<\/sup><\/a> The law was intended to be a channel for victims to seek damages where there is no sufficient remedy in international law.[12]<\/sup><\/a><\/p>\n

    The law is, probably intentionally, left very broad. Its primary provision, amongst many others, provides that anyone who \u201ctraffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages\u2026\u201d[13]<\/sup><\/a><\/p>\n

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    1. Revival of a 25-year-old Statute<\/li>\n<\/ol>\n

      The reader may be questioning the timeliness of reviewing a 1996 law. When President Clinton signed the Helms-Burton Act into law, it was met with international disapproval.[14]<\/sup><\/a> Mexico and Canada claimed that it violated NAFTA, while the European Union approved a regulation to protect against the extraterritorial application provision.[15]<\/sup><\/a> This short article will not dive into the hairy framework of international civil liability, but rather the point of this article is merely to illustrate that aspects of the Helms-Burton Act, as written, likely violated international law, and as such President Clinton, seemingly conceding to this point, waived the Title III private right of action provision through the end of his presidency.[16]<\/sup><\/a> Though the Act was never repealed, it has been consistently waived by every president since its enactment. President Obama pursued direct diplomacy with the Cuban government and even took steps to loosen economic sanctions.[17]<\/sup><\/a><\/p>\n

      President Trump, on the other hand, was critical of the Cuban government, and his opposition reached a new height when he chose in April 2019 not to renew the waiver of Title III, thereby authorizing an influx of claims on Cuban land.[18]<\/sup><\/a> This action was allegedly a response to Cuba providing aid to Maduro\u2019s regime in Venezuela.[19]<\/sup><\/a> The pool of potential litigants is fairly significant. The BBC reports that there are 200,000 claims by Cuban-Americans who allege that their property was seized by Castro, plus about 6,000 certified claims by American citizens or companies who had land seized since 1959.[20]<\/sup><\/a><\/p>\n