Helms-Burton is not a rational piece of legislation.
It clearly violates international law and various treaties
the United States has signed and vowed to uphold.
There are no more Cuban troops in Africa. Cuba is no longer giving support to revolutionary groups in Central America or anywhere else in the world. The Soviet-Cuban military alliance, which used to so concern Washington, disappeared with the Soviet Union. Given all that, one would have expected some improvement in U.S.-Cuba relations, perhaps even a
relaxation if not a total lifting of the 37-year-old
embargo. But this hasn’t happened. With the Helms-
Burton Act, signed into law on March 22, 1996, the
United States has moved in exactly the opposite direc-
tion; it has for the first time openly set the ouster of
Fidel Castro as its principle policy objective, and has
hardened and locked in place the embargo and other
sanctions until that goal has been achieved.
Helms-Burton is not a rational piece of legislation. It
has caused a storm of international protest and retalia-
tory action. It clearly violates international law and var-
ious treaties the United States has signed and vowed to
uphold. It conflicts with U.S. goals of free trade and a
Wayne Smith is Senior Fellow at the Center for International Policy in Washington, D.C and a visiting professor of Latin American Studies at Johns Hopkins University. From 1979 to
1982 he was Chief of the U.S. Interests Section in Havana.
VOL XXXI, No 2 SEPT/OCT 1997
more predictable world order, and, indeed, is even
counterproductive in terms of U.S. interests and objec-
tives with respect to Cuba itself.
There are four parts, or titles, to the law. Title I aims
to prohibit Cuban participation in international finan-
cial organizations and threatens sanctions against coun-
tries that provide anything that could be defined as
“economic assistance”-even attractive terms of
trade-to Cuba. As Senator Helms has put it, it is a
matter of saying to other countries, “you can trade with
us or with Cuba, but you can’t trade with both.”
Title II, which has been called a second Platt
Amendment, lays down the conditions demanded by the
United States for re-engagement with Cuba. The most
central is the ouster of Fidel Castro and his brother Radl.
Title II prohibits Washington from dealing even with a
transitional government that includes either of the two
Castro brothers. It also prohibits the United States from
engaging with any Cuban government, even one with-
out the two Castros, unless all properties nationalized in
the 1960s have been returned or full compensation has
been made to the original owners.
Title III allows U.S. nationals to sue foreign compa-
nies or other entities, including the Cuban government
27REPORT ON U.S. POLICY
itself, over property nationalized in the early days of
the Revolution. This refers not just to the properties of
those who were U.S. citizens at the time the properties
were taken. Under Title III, Cubans whose properties
were nationalized by the Castro government back in
the 1960s, and who subsequently came to the United
States and became citizens, can now bring suit in U.S.
courts against the Cuban government or against enti-
ties of third countries who are supposedly “trafficking”
in those confiscated properties. The United States has
thus abandoned a long-held principle of international
law which maintains that one state cannot advance the
claims of those who were not its citizens at the time
they sustained damages in a second state.
Finally, Title IV bars entry into the United States of
executives of third-country companies said to be “traf-
ficking” in those same properties. For good measure, it
bars the entry of their spouses and children as well!
Not a single other gov-
ernment supports Helms-
Burton. Canada, Mexico
and the European Union
have all come forward
with retaliatory legislation
which makes it illegal for
their citizens to comply
with the law, and allows
them to countersue U.S.
companies or citizens in
order to recoup any losses
to those same entities in
U.S. courts. The General Assembly of the Organization
of American States (OAS), in its Panama meeting of
June, 1996, voted unanimously to reject the Helms-
Burton Act and to call on the Inter-American Juridical
Committee (IAJC) to rule on its legitimacy. The IAJC
did just that on August 23, 1996, handing down a unan-
imous opinion that Helms-Burton violated international
law on at least eight counts. Indeed, if the Cuban
Democracy Act of 1992-which banned U.S. sub-
sidiaries abroad from trading with Cuba-was extrater-
ritorial in character, Helms-Burton is virtually imperial.
As Senator Jesse Helms himself put it: “All we’re say-
ing to these countries is, obey our law!” [Emphasis
added.]
Clearly, this law has caused and will continue to
cause serious problems for the United States in the
international arena. It was perhaps with this in mind
that President Clinton first opposed the Helms-Burton
bill, even suggesting he might veto it. But then came
the Cuban shootdown of two small planes flown by
Brothers to the Rescue in the Straits of Florida on
February 24, 1996. The Cuban decision to shoot the
planes down was a foolish mistake, but the incident
took place in part because the U.S. government had
taken absolutely no measures to halt illegal Brothers to
the Rescue flights which often penetrated Cuban air-
space and even overflew the island. That aside, with the
shootdown, the mood in the Congress turned ugly and
President Clinton changed his own position, signing the
bill into law on March 22.
The President did at least negotiate a waiver author-
ity for Title III and has postponed its implementation.
He will probably continue to do so, since if Title III
were ever implemented, all the retaliatory measures
would be activated against the United States and there
would be chaos in the international marketplace.
Moreover, Helms-Burton does not further U.S. goals
in Cuba. To insist on Fidel Castro’s ouster is to create
the conditions for civil war; no rational policymaker
can expect Castro to resign peacefully and go into exile.
If pushed, he would fight, and many Cubans, perhaps a
Not a single other government
supports Helms-Burton. Canada, Mexico
and the European Union have all come
forward with retaliatory legislation
which makes it illegal for their citizens
to comply with the law.
majority, would fight with him. We would thus see massive bloodshed and tens of thousands of refugees on Florida’s beaches.
Fortunately, Helms-Burton is unlikely to produce
anything so dramatic. In fact, it is unlikely to achieve
any of its stated goals. It has had a slight impact on the
Cuban economy, but insufficient to result in more than
a small reduction in economic growth. It will not by
any stretch of the imagination lead to economic col-
lapse, and much less to civil war. That it will force
Castro from power is simply a dream.
It would be reassuring to believe that Helms-Burton
is simply an anomaly in the making of U.S. foreign pol-
icy under Bill Clinton-the usual emotional U.S. reac-
tion to anything relating to Cuba. But when one looks
at the D’Amato bill with respect to Iran, to the growing
tendency in the U.S. Congress toward unilateral sanc-
tions as a standard policy response, and to U.S. insis-
tence on dictating to the United Nations who the UN
Secretary General should be and how much the United
States should pay in back dues, one cannot but fear that
it represents a trend toward irresponsible unilateralism
in the international arena.
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