*Monique Reyes

As many Cuban-Americans know, attempts by ten United States Presidents and various Congresses to legislate against Cuba’s communist regime have proven to be futile. These hopeless attempts began as a result of the Cuban government’s expropriation of Cuban private property. On January 1, 1959, the revolution began with thousands of homes, lands, and businesses improperly seized and stripped away from helpless property owners.[1] Amongst these expropriated properties were those belonging to US nationals, prompting the US to proclaim an embargo on all trade between the US and Cuba in 1962.[2]

To no surprise, tensions between the US and Cuba worsened, and in response to the political pressures which ensued, President Clinton enacted the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act, also known as the Helms-Burton Act.[3] The primary purpose of the Helms-Burton Act was to strengthen the effects of the embargo by encouraging and pressuring Cuba to abandon its dictatorship by:

(1) increasing international sanctions against the present Cuban government; (2) assisting Cuba in the transition to a democratically-elected government; (3) protecting the property rights of United States nationals who had Cuban property expropriated by the Castro government after the 1959 revolution; and (4) excluding from U.S. territory aliens who control the confiscated property of U.S. nationals in Cuba or who traffic in such confiscated property.[4]

Title III, arguably the most influential yet controversial provision of the Helms-Burton Act, establishes a private right of action for any US national to file a claim in US federal court against any “person” who “traffics,” (both terms being broadly defined in the statute) in expropriated property for treble damages plus interest accrued from the date of confiscation, thereby obtaining subject matter jurisdiction against various parties.[5] However, due to concerns of international relations and an overflow of federal litigation, on July 16, 1996, President Clinton suspended the right to file claims under Title III pursuant to section 306(b) of the Act.[6]

Thereafter, Cuban-Americans and US nationals whose properties were expropriated essentially had no form of redress and Title III laid dormant until May 2, 2019, when President Trump activated Title III’s private right of action. The State Department estimated 75,000 to 200,000 potential private right of action claims would arise, whether certified claims or not, pursuant to the statutory regulations laid out in the Act. [7]

However, Title III claims are rare and will likely remain rare due to Title III’s impractical implications in federal court and the jurisdictional barriers litigants must overcome to pursue their claims, coupled with international pressures regarding the Act’s legitimacy. For example, plaintiffs asserting claims under Title III must find a way to establish personal jurisdiction over foreign corporations trafficking the wrongfully confiscated property. However, these corporations have insignificant connections with the US, making it difficult for damaged parties to hail them into court. Additionally, concerns of international comity and parity create an obstacle as many foreign sovereigns have authorized these foreign companies to establish legal business relationships in Cuba using wrongfully confiscated property. Finally, even if claimants can prevail on the merits, their ability to recover monetary damages from foreign corporations remains uncertain considering these companies own little assets subject to US control.

Notwithstanding the difficulties claimants currently face in bringing their claims, there are additional concerns regarding whether future US Presidents will utilize their power to suspend Title III’s private right of action, whether the Act is the appropriate mechanism for redress on property claims when the Foreign Claims Settlement Commission exists, and whether the Helms-Burton Act violates international norms. Some scholars predict that Title III will only worsen tensions and is projected to weaken national relations between the US and Cuba, Canada, Mexico, and the EU due to purported violations of “international coexistence and hindering cooperation plans, particularly free trade agreements.”[8] On the other hand, some Cuban-American attorneys who represent claimants in Title III actions endorse Title III, while others criticize its potential adverse effects.[9]

Considering the uncertainty of the Act’s future, any Cuban-American or US national with meritorious property claims should file those claims sooner rather than later, before Title III proves to be as futile as various other US policies towards Cuba have been in the past.

* J.D. Candidate, Class of 2020, Florida International University College of Law

[1] Ignacio E. Sanchez, Cuban Property Rights and the 1940 Constitution, 3 J. Transnat’l L. & Pol’y 135 (1994).

[2] Embargo on Trade with Cuba, Proclamation No. 3447, 27 Fed Reg. 1085 (1962).

[3] Cuban Liberty and Democratic Solidarity (Libertad) Act Of 1996, Pub. L. No. 104–114, 110 Stat. 785 (1996) (hereinafter the “Helms-Burton Act”).

[4] S. Kern Alexander, Trafficking in Confiscated Cuban Property: Lender Liability Under the Helms-Burton Act and Customary International Law, 16 Dick. J. Int’l L. 523 (1998).

[5] Helms-Burton Act, § 302(a)(1)(A).

[6] James Bennett, To Clear Air with Europe, U.S. Waives Some Sanctions, N.Y. Times, May 19, 1998, A6.

[7] Press Release, U.S. Dep’t of State, Senior State Department Official on Title III of the LIBERTAD Act, https://www.state.gov/senior-state-department-official-on-title-iii-of-the-libertad-act/.

[8] See Natalie Maniaci, The Helms-Burton Act: Is The U.S. Shooting Itself in the Foot?, 35 San Diego L. Rev. 897 (1998).

[9] Dylan Jackson, Attorneys Prepare to File Lawsuits on Behalf of Cuban-Americans Whose Property Was Confiscated by Castro, Daily Bus. Rev. (Mar. 6, 2019, 03:53 PM), https://www.law.com/dailybusinessreview/2019/03/06/attorneys-prepare-to-file-lawsuits-on-behalf-of-cuban-americans-whose-property-was-confiscated-by-castro/?slreturn=20191013205105.