From Smirking Chimp
The Trump administration is threatening to unleash a flood of lawsuits involving Cuba, which no U.S. president has ever done. It has set a deadline of March 2 to announce whether it will create, in the words of the National Lawyers Guild, "a second embargo" of Cuba "one that would be very difficult to dismantle in the future."
Trump may give current U.S. citizens standing to sue in U.S. courts even if they were Cuban citizens when the Cuban government nationalized their property after the 1959 Revolution. They would be able to bring lawsuits against U.S. and foreign companies that allegedly profit from the nationalized properties.
In accordance with international law, the Cuban government had offered compensation to U.S. nationals for the taking of their property, as I explain below. If Trump permits myriad new lawsuits to proceed, it would unleash a tsunami of litigation that would harm U.S. companies and punish the Cuban people even more.
For 59 years, the United States has maintained a cruel embargo against Cuba. "The embargo on Cuba is the most comprehensive set of U.S. sanctions on any country, including the other countries designated by the U.S. government to be state sponsors of terrorism Iran, North Korea, Sudan, and Syria," according to the U.S. government.
In 1960, the Eisenhower administration declared a partial embargo on trade with Cuba in an attempt to pressure Cuba to change its form of government. The embargo was prompted by a secret State Department memorandum that proposed "a line of action which, while as adroit and inconspicuous as possible, makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and overthrow of government."
This type of action is illegal under international law, according to Idriss Jazairy, the U.N. special rapporteur concerned with the negative impact of sanctions.
"Coercion, whether military or economic, must never be used to seek a change in government in a sovereign state," said Jazairy. "The use of sanctions by outside powers to overthrow an elected government is in violation of all norms of international law." That includes the Charter of the Organization of American States and the Charter of Economic Rights and Duties of States.
Nonetheless, John F. Kennedy expanded the embargo in 1962 and every U.S. president since has continued it, hurting the Cuban people, but not succeeding in overthrowing Cuba's government.
In 1996, Bill Clinton signed the Helms-Burton Act, which codified the embargo into law so that no president could unilaterally lift the sanctions against Cuba. Although Barack Obama took some limited steps toward normalization of relations between the United States and Cuba, Helms-Burton would have prevented him from lifting the embargo.
Will Trump Open the Floodgates of Litigation?
After the Cuban Revolution, the new government led by Fidel Castro nationalized the property of Cuban nationals, many of whom then fled Cuba and emigrated to the United States. Helms-Burton contains a notorious provision in Title III that allows private lawsuits against U.S. and foreign entities for allegedly "trafficking" in property confiscated in Cuba since 1959. "Trafficking" as defined includes knowingly engaging in a commercial activity or otherwise "benefitting from confiscated property."
Every U.S. president beginning with Clinton has delayed the implementation of Title III by waiving its provisions in six-month increments. Clinton put Title III "on hold because it triggered immense opposition from U.S. allies, whose companies operating in Cuba would become targets of litigation in U.S. courts," American University professor and Cuba scholar William M. LeoGrande wrote in The Conversation.
Clinton's waiver was also motivated by the European Union's filing of a complaint against the United States in the World Trade Organization and adoption of a statute that forbids EU members and their firms from complying with Title III.
Thus far, the Trump administration has followed suit with three six-month waivers. But on January 16, the president waived Title III for only 45 days, from February 1 to March 17, while his administration conducts "a careful review" of whether to allow the provision to go into effect. He will announce his decision by March 2.
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