Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1995
Long title
An Act to seek international sanctions against the Castro government in Cuba, to plan for support of a transition government leading to a democratically elected government in Cuba, and for other purposes.
Passed the House on September 21, 1995 (294–130, Roll call vote 683, via Clerk.House.gov)
Passed the Senate on October 19, 1995 (74-24, Roll call vote 494, via Senate.gov)
Reported by the joint conference committee on March 1, 1996; agreed to by the Senate on March 5, 1996 (74-22, Roll call vote 22, via Senate.gov) and by the House on March 6, 1996 (336–86, Roll call vote 047, via Clerk.House.gov)
Signed into law by President Bill Clinton on March 12, 1996
The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (Helms–Burton Act), Pub. L.Tooltip Public Law (United States)104–114 (text)(PDF), 110 Stat.785, 22 U.S.C.§§ 6021–6091) is a United States federal law which strengthens and continues the United States embargo against Cuba. It extended the territorial application of the initial embargo to apply to foreign companies trading with Cuba, and penalized foreign companies allegedly "trafficking" in property formerly owned by U.S. citizens but confiscated by Cuba after the Cuban revolution. It also covers property formerly owned by Cubans who have since become U.S. citizens.[1]
It was passed by the 104th United States Congress on March 6, 1996, and enacted into law by the 42nd President of the United States, Bill Clinton, on March 12, 1996.[2][3] The bill, which had been tabled in late 1995 after Senator Helms was unable to overcome several Democratic filibusters, was reintroduced prompted by an episode a month earlier. On February 24, 1996, Cuban fighter jets shot down two private planes. Whether they were shot down over Cuban territory or international airspace is a matter of debate.[4][5]
This law includes a wide variety of provisions intended to bring about "a peaceful transition to a representative democracy and market economy in Cuba":
International Sanctions against the Cuban Government. Economic embargo, any non-U.S. company that deals economically with Cuba can be subjected to legal action and that company's leadership can be barred from entry into the United States. Sanctions may be applied to non-U.S. companies trading with Cuba. This means that internationally operating companies have to choose between Cuba and the U.S., which is a much larger market.
United States opposition against Cuban membership in International Financial Institutions.
Television broadcasting from the United States to Cuba.
Authorization of United States support for "democratic and human rights groups" and international observers.
Declares United States policy towards a "transition government" and a "democratically elected government" in Cuba.
Protection of property rights of certain United States nationals.
Exclusion of certain aliens from the United States, primarily senior officials or major stock holders, and their families, of companies that do business in Cuba on property expropriated from American citizens. To date, executives from Italy, Mexico, Canada, Israel, and the United Kingdom have been barred.
Provides power to the Legislative Branch to override an Executive Branch cancellation of the embargo, although such a legislative veto had been ruled unconstitutional by the Supreme Court 13 years earlier. Unlike in that case though, which concerned a review only by the House of Representatives, the Helms–Burton Act (sec. 204(e)) subjects the President's decision to a review by joint resolution of both chambers of Congress.
Prompts for the retirement of former Soviet Union personnel out of Cuban military and intelligence facilities, including the military and intelligence facilities at Lourdes and Cienfuegos.[a][c][6]
Prohibits recognition of a transitional government in Cuba that includes Fidel or Raúl Castro.[a]
Prohibits recognition of a Cuban government that has not provided compensation for U.S. certified claims against confiscated property, defined as non-residential property with an excess of $50,000 value in 1959.
Prompts for extradition or otherwise rendition to the United States of all persons sought by the United States Department of Justice for crimes committed in the United States.
^ abcThese requirements under the Helms–Burton Act have been fulfilled.
^In December 2000 Fidel Castro announced that Cuba was terminating plans for the construction of the Juragua nuclear plant in his meeting with Russian President Vladimir Putin.
Title I strengthened sanctions against the current Cuban Government. Among many other provisions, it codified the U.S. embargo on trade and financial transactions which had been in effect pursuant to a Presidential proclamation since the Kennedy Administration.
Title II describes U.S. policy toward and assistance to a free and independent Cuba. It required the President to produce a plan for providing economic assistance to a transition or democratic government in Cuba. (The President delivered the plan to Congress in January 1997.)
Title III creates a private cause of action and authorizes U.S. nationals with claims to confiscated property in Cuba to file suit in U.S. courts against persons that may be "trafficking" in that property. The filing fee for the Title III action is set by US Courts at $6,458 (from December 2016),[7] a level that would discourage all but serious claims. The Act grants the President the authority to suspend the lawsuit provisions for periods of up to 6 months if it is necessary to the national interest of the United States and will expedite a transition to democracy in Cuba. Successive presidents have exercised this authority, most recently in June 2018,[8] pursuant to a non-binding declaration of intention in April 1997 that came out of a trade dispute with the European Union.[9] In 2019 President Trump allowed the suspension to expire, and Carnival Cruise was promptly sued under the act.[10]
Title IV requires the denial of visas to and exclusion from the U.S. of persons who, after March 12, 1996, confiscate or "traffic" in confiscated property in Cuba claimed by U.S. nationals. The objective of this provision is to protect the status of confiscated U.S. property and to support existing sanctions against the current regime. The State Department reviews a broad range of economic activity in Cuba to determine the applicability of Title IV. The results of this effort appear not only in the actual determinations of "trafficking," but also in the deterrent to investment in confiscated U.S. property and in the exacerbation of the uncertainty of investing in Cuba.[11]
The Helms–Burton Act was condemned by the Council of Europe, the European Union, Britain, Canada, Mexico, Brazil, Argentina and other U.S. allies that enjoy normal trade relations with Cuba. The governments argued that the law ran counter to the spirit of international law and sovereignty.
After a complaint by the European Union with the World Trade Organization, a dispute settlement panel was established. Later, the work of the panel was suspended to find a solution through negotiations. After a year, the panel lost its jurisdiction over the matter, and the EU did not pursue the matter any further before the WTO.
The law has also been condemned by humanitarian groups because these groups argue that sanctions against an entire country will affect only the innocent population.
The law provides for compensation of only the largest of claims for confiscated property, primarily only the claims of large multinational companies (valued at roughly $6 billion). It fails to provide for the claims of individuals of the exiled Cuban-American community whose personal residences were confiscated.
The European Union introduced a Council Regulation (No 2271/96)[15] (law binding all member states) declaring the extraterritorial provisions of the Helms–Burton Act to be unenforceable within the EU, and permitting recovery of any damages imposed under it. The EU law also applied sanctions against US companies and their executives for making Title III complaints.
The United Kingdom had previously introduced provisions by statutory instrument[16] extending its Protection of Trading Interests Act 1980 (originally passed in the wake of extraterritorial claims by the U.S. in the 1970s) to United States rules on trade with Cuba. United Kingdom law was later extended to counter-act the Helms–Burton Act as well. This included criminal sanctions for complying with extraterritorial provisions of the Helms–Burton Act whilst in the UK.[17]
Similarly, Canada passed the "An Act to amend the Foreign Extraterritorial Measures Act" (C-54),[18] a law to counteract the effect of Helms–Burton.[19] In addition, its legislature proposed (but did not pass) the tongue-in-cheek Godfrey–Milliken Bill, so named in the American style, that mirrored Helms–Burton, replacing the Cuban revolution with the American revolution. Sponsored by Loyalist descendants, it demanded recompense for United Empire Loyalists and proposed travel restrictions on those trafficking in property confiscated during the American Revolution. One of its sponsors, MP Peter Milliken, went on to serve as Speaker of the Canadian House of Commons.
Effective May 10, 1999, with CFR Title 31 Part 515, the act was amended.[20] In 2000, the law was further amended with the passage of the Trade Sanction Reform and Export Enhancement Act, which allowed the export of US agriculture and medical goods to Cuba so long as certain conditions were met.[20]
^Hillyard, Mick; Miller, Vaughne (14 December 1998). "Cuba and the Helms–Burton Act"(PDF). House of Commons Library Research Papers. 98 (114). Great Britain. Parliament. House of Commons.: 3. Archived from the original(PDF) on August 19, 2000. Retrieved 26 June 2014.
^"Report on the shooting down of two U.S.-registered private civil aircraft by Cuban military aircraft on 24 February 1996", C-WP/10441, June 20, 1996, United Nations Security Council document, S/1996/509, July 1, 1996.
Scharfen, Jonathan R. "The Helms-Burton Act: A Strategic Critique." (US Army War College Strategic Research Project, 1998) Online.
White, Nigel D. "Ending the US embargo of Cuba: international law in dispute." Journal of Latin American Studies 51.1 (2019): 163–186. OnlineArchived 2019-04-28 at the Wayback Machine
