R. Consequences of implementation. What now seems far more probable after Secretary Pompeo’s recent pronouncement, an eventual Presidential certification to actually not suspend Title III (either after this first 45-day suspension or shortly thereafter), thereby allowing its full implementation typically for at least a six-month period (as defined in Section D of this article above), would result in the following likely consequences. First, amidst the inevitable flurry of news coverage and editorials, an unmistakable message would be sent that U.S. policy has effectively been changed, in order to stand solidly on the side of protecting the victims of property takings in Cuba from the ongoing exploitation of foreign traffickers doing business with the usurper Cuban regime. Second, due to the limitations set forth in Section K of this article above, there would potentially likely be only dozens, rather than thousands, of these suits filed, a relative volume easily accommodated administratively by our judicial system. Third, in their predictably furious reaction, after possibly even establishing a procedure against the United States at the World Trade Organization (WTO), our European and Canadian allies may attempt to dust off their previously promulgated, but never implemented, “blocking” or “claw-back” laws. These statutes may be used by these governments to saber-rattle, threaten and posture politically, but in the end their effectiveness is limited to: (i) their authority to sanction their own nationals for “complying” with Helms-Burton’s “extra-territorial provisions”; (ii) seek to “shield” their nationals from U.S. judgments; and (iii) even provide countervailing causes of action in their own domestic courts. Fourth, while the individual litigation results of the filed actions may vary, the most likely outcome is that these actions may well act as leverage resulting in an elevated number of settlements, through which traffickers would pay a negotiated amount to the claimants for their consent to use these properties, while the Castro regime is still in power and the ultimate resolution of these expropriations has yet to be finally adjudicated.
II. Conclusion This time around, foreign traffickers and their host governments have been abruptly denied the “safe harbor” comfort that previous lengthier and unjustified suspensions had routinely afforded them. Regardless of how the Trump administration specifically proceeds after this first highly truncated suspension period of Title III, the stars are clearly aligning for it to be in the best position yet over the past two and a half decades to send a powerful message to the world that finally America will stand up for its citizens who had their properties stolen in Cuba, even if that means that European and other nationals will be held accountable by the U.S. judiciary for trafficking with knowledge in such properties. If this historic opportunity is squandered, however, which many unfortunately still expect and will push hard for, the same muddled theme will prevail that, as far as the most powerful government in the world is concerned, it will remain “business as usual,” with regard to an open season for trafficking in the stolen properties of American citizens in Cuba.
Nicolas J. Gutierrez is a Senior Research Fellow at the Cuban Studies Institute https://cubanstudiesinstitute.us/ , and currently serves as President of the National Association of Sugar Mill Owners of Cuba. In this latter representative capacity, he was and continues to be actively involved in the initial passage and subsequent enforcement of the Cuban Liberty & Democratic Solidarity (LIBERTAD) Act of 1996, more commonly known as the Helms-Burton law. This article is publishd courtesy of the Cuban Studies Institute.
