Text
What's Wrong with Helms/Burton?
Administration Talking Points
0
The Helms bill would not promote a peaceful transition in
Cuba.
New sanctions against foreign investors
("traffickers") would provide a rallying point for Castro
inside Cuba, and allow him to keep the focus on "U.S.
aggression" rather than on the need for reforms.
0
The bill's attempts to increase existing pressure on the
Cuban government would likely be counterproductive, and
could be more damaging to U.S. interests than to Castro.
0
The bill would create serious frictions with our allies at
a time when they are becoming more active and helpful in
promoting human rights in Cuba. Because of its
extra-territorial reach, the Helms bill will focus allies'
attention on opposing U.S. policy, rather than on pressing
for democracy in Cuba.
0
While U.S. policy is to discourage foreign investment in
Cuba, particularly when it would involve expropriated U.S.
properties, our efforts to deter it should not prompt us to
sacrifice our broader interests or undermine valuable
principles of international law.
0
Title III of the bill, which would allow U.S. nationals
with expropriation claims against Cuba to sue in U.S.
courts third country nationals who invest ("traffic") in
those properties, is a bad idea.
It could clog up U.S. courts with a flood of lawsuits,
filed mainly by Cuban-Americans.
It would complicate prospects for resolving the claims
of certified U.S. claimants (and hamper future Cuban
privatization efforts) by tying up properties in
court. Certified U.S. claimants oppose this bill.
It would create a dangerous precedent that, if
followed by other countries, could expose U.S.
investors in Eastern Europe, China or elsewhere .t.Q
lawsuits in third countries anywhere in the world
brought by disgruntled property claimants.
It would be extremely difficult to justify under
international law and has already drawn harsh
criticism from our allies.
0
0
0
The U.S. expects to negotiate successful resolution of
certified claims with a future Cuban Government under
existing international law, and assist other U.S. claimants
as well.
The U.S. already has in place against Cuba its toughest and
most comprehensive economic embargo. The embargo has
helped to force the limited but positive economic changes.
Let's keep international pressure on Castro, not focus it
on ourselves.
Questions and Answers on
The Cuban Liberty and Democratic Solidarity Act
(The Helms/Burton Bill)
1.
Isn't Helms/Burton just what we need to get rid of Castro?
Shouldn't we toughen U.S. policy?
2. Haven't recent changes in the Helms bill taken care of all
the Administration's problems?
3. Would Title III lawsuits really violate international law?
4. Shouldn't we try to move international law in the direction
of penalizing "traffickers?" Wouldn't U.S. business be
better off?
5. Will Title III help U.S. claimants get their properties
back, or get compensation for their losses?
6.
Is there any hope U.S. claimants will get compensation from
Cuba without Title III? What about Cuban-Americans who
weren't U.S. citizens when their property was taken?
7. Can the Cuban Government be sued under Title III? Does
international law permit that?
8. How may lawsuits are likely to be filed?
9. How will Helms/Burton affect Cuba's transition process once
a transition government is in power?
10. What do U.S. allies think about the bill?
Question:
Won't the Helms/Burton legislation give Castro the "final push"
necessary to get rid of him? Shouldn~t U.S. policy be
toughened?
Answer:
o
The Helms bill would NOT promote a peaceful transition in
Cuba.
The bill's attempts to increase existing pressure on
the Cuban government would likely be counterproductive.
o
New sanctions against foreign investors ("traffickers")
would provide a rallying point for Castro inside Cuba, and
allow him to keep the focus on "U.S. aggression" rather
than on the need for political and economic reforms.
o
The bill would also create serious frictions with our
allies at a time when they are becoming more active and
helpful in promoting human rights in Cuba.
o
It is difficult to find new, constructive ways to apply
pressure on the Castro regime because the U.S. already has
in place against Cuba its toughest and most comprehensive
economic embargo, The embargo has helped to force the
limited but positive economic changes taking place in Cuba.
o
While the U.S. discourages foreign investment in Cuba,
particularly when it would involve expropriated U.S.
properties, such investment will not ultimately determine
the fate of the Cuban regime. Our efforts to deter it
should not prompt us to sacrifice our broader interests or
undermine valuable principles of international law.
-
2 -
Question:
Haven't the revisions made in the Helms Bill resolved all the
concerns the Administration expressed about the bill earlier?
Answer:
o
No. The Administration still opposes the bill in its
current form.
o
The Helms bill would not promote a peaceful transition in
Cuba.
( see previous question.)
o
In addition, many of its provisions recklessly disregard
broader U.S. interests and relationships and could be
difficult to defend under international law.
o
We are particularly concerned about Title III, which would
create a "right of action" for U.S. nationals with property
claims in Cuba to sue those who invest ("traffic") in those
properties in U.S. courts.
Question:
Would Title III lawsuits really violate international law?
Answer:
o
The right to sue created in Title III would represent an
unprecedented extra-territorial application of U.S. law
that would be very difficult to defend under international
law. The principles behind Title III are not consistent
with the traditions of the international system.
o
U.S. allies have already objected to what they see in Title
III as an improper extra-territorial extension of U.S. law.
o
This right to sue is different from existing provisions of
law which permit U.S. courts to apply principles of
international law in that it involves an extra-territorial
applicaton of U.S. law.
o
The provisions permitting suits against agencies and
instrumentalities of foreign states present still other
legal difficulties.
o
The Department of State has prepared a more detailed
discussion of legal considerations regarding Title III,
which is attached.
-
3 -
Question:
Shouldn't the U.S. try to "move" international law in the
direction of Title III? Wouldn't U.S. business be better off?
Answer:
0
U.S. business interests abroad would be significantly
damaged if the rest of the world were to follow the
precedent that would be established by Title III.
0
It is well-settled international practice that questions of
ownership of property is determined by the state in which
that property is located.
0
It is the expropriating government that is responsible for
confiscations in violation of international law, not
subsequent investors.
0
Businesses and investors worldwide rely on the
determinations of title made by the governments in the
countries in which property is located.
0
U.S. businesses engage in more international investment
than those from any other country, and profit from these
established "rules of the game."
0
If other countries adopted laws like Helms/Burton, however,
U.S. businesses investing in China, the former East Germany
or Israel, for example, could find themselves subject to
unforeseen lawsuits by disgruntled property claimants from
third countries in the courts of those third countries.
Question:
Will Title III help U.S. claimants get their property back, or .
get compensation?
Answer:
o
Just the opposite. Title III will enormously complicate
the U.S. Government's ability to settle property claims
against Cuba. That's why most U.S. claimants are on record
as strongly opposing these provisions.
o
A flood of pending lawsuits during Cuba's inevitable
transition to democracy and market economics will delay
privatizations and other reforms.
o
Pending lawsuits will also make it more difficult for the
U.S. Government to negotiate a government-to-government
claims settlement agreement because we will likely be
required to determine, on a case-by-case basis, which of
the nearly 6,000 U.S. claimants have availed themselves of
the Title III provision.
-
4 -
Question:
Is there any hope for certified U.S. claimants to get
compensation without Title III? What about Cuban American
claimants?
Answer:
o
Yes.
In the last several years, the U.S. Government has
negotiated government-to-government claims settlement
agreements in a number of countries that have resulted in
significant compensation for U.S. claimants We expect to
do the same for -- or otherwise satisfactorily resolve
U.S. citizen claims against Cuba when conditions are
right.
(The current Cuban Government would be unlikely to
agree to appropriate terms.)
o
While a government-to-government claims settlement
agreement would cover only expropriations that violated
international law -- those involving claimants who were
U.S. citizens when their property was taken, the U.S.
Government intends to encourage future Cuban Governments to
establish a mechanism under Cuban law to resolve all
property claims, including those of Cuban Americans.
Question:
How many lawsuits are likely to be filed under Title III?
Answer:
o
The truth is that no one knows how many lawsuits will be
filed under Title III, but the universe of potentially
eligible claimants could number in the hundreds of
thousands. While not all eligible claimants would file
suits, if even a relatively small percentage of them did it
could clog up U.S. courts and greatly complicate the tasks
of resolving claims and assisting Cuba's economic recovery.
o
While it could be difficult for plaintiffs to obtain
damages from defendants without assets in the U.S., that
would not prevent plaintiffs from filing suits to obtain
default judgments for use in later negotiations.
Question:
Could the Cuban Government be sued?
international law?
Would that violate
-
5 -
Answer:
o
Title III permits suits against "any person or entity,
including any agency or instrumentality of a foreign state
in the conduct of commercial activity." The bill thus
appears to permit suits against agencies and
instrumentalities of both the Cuban and other foreign
governments in circumstances that go well beyond existing
law and that would be highly problematic under
internationally-accepted priniciples of foreign sovereign
immunity.
o
Other ambiguities in the bill create at least the
possibility that foreign states themselves -- not only
their agencies and instrumentalities -- could be sued in
U.S. courts. This would present even greater difficulties
under international law and damage to the interests of the
U.S. Government.
Question:
How will the Helms bill affect transition and democratic
governments in Cuba?
Answer:
o
o
While the bill calls for the development of a ''plan" for
U.S. and international assistance to transition and
democratic governments, it contains no authorization of
funds to provide such assistance.
The bill suggests that only limited humanitarian assistance
should be offered to a transition government in Cuba at the
very moment it would most need U.S. help in consolidating
democratic and free market institutions.
o
The U.S. would also be barred from supporting Cuban
membership in the IMF, World Bank and IDB until there is a
democratic government in power, effectively preventing many
of the kinds of support for a transition government these
sources could offer.
o
The requirement in section 104 that the President withhold
U.S. contributions to these institutions if loans to Cuba
are approved over U.S. objections could violate the U.S.
Government's commitments to those organizations and
undermine their effectiveness.
o
If the purpose of Title II of the bill is to offer hope and
incentive to those inside Cuba who seek change, the current
version offers little prospect for significant U.S. help.
-
6 -
o
Worse still, Title III of the bill will make it extremely
difficult for a transition government to resolve property
claims and privatize state enterprises, and so actively
hamper the efforts of such a government to restore
stability and prosperity to the Cuban economy.
o
Perhaps one of the most objectionable aspects of Title III
is that it will hurt U.S. business seeking to enter the
Cuban market once the transition to democracy begins.
Ironically, the most likely targets of Title III lawsuits
would be U.S. companies seeking to participate in the
rebuilding of a free and independent Cuba.
Administration Talking Points
0
The Helms bill would not promote a peaceful transition in
Cuba.
New sanctions against foreign investors
("traffickers") would provide a rallying point for Castro
inside Cuba, and allow him to keep the focus on "U.S.
aggression" rather than on the need for reforms.
0
The bill's attempts to increase existing pressure on the
Cuban government would likely be counterproductive, and
could be more damaging to U.S. interests than to Castro.
0
The bill would create serious frictions with our allies at
a time when they are becoming more active and helpful in
promoting human rights in Cuba. Because of its
extra-territorial reach, the Helms bill will focus allies'
attention on opposing U.S. policy, rather than on pressing
for democracy in Cuba.
0
While U.S. policy is to discourage foreign investment in
Cuba, particularly when it would involve expropriated U.S.
properties, our efforts to deter it should not prompt us to
sacrifice our broader interests or undermine valuable
principles of international law.
0
Title III of the bill, which would allow U.S. nationals
with expropriation claims against Cuba to sue in U.S.
courts third country nationals who invest ("traffic") in
those properties, is a bad idea.
It could clog up U.S. courts with a flood of lawsuits,
filed mainly by Cuban-Americans.
It would complicate prospects for resolving the claims
of certified U.S. claimants (and hamper future Cuban
privatization efforts) by tying up properties in
court. Certified U.S. claimants oppose this bill.
It would create a dangerous precedent that, if
followed by other countries, could expose U.S.
investors in Eastern Europe, China or elsewhere .t.Q
lawsuits in third countries anywhere in the world
brought by disgruntled property claimants.
It would be extremely difficult to justify under
international law and has already drawn harsh
criticism from our allies.
0
0
0
The U.S. expects to negotiate successful resolution of
certified claims with a future Cuban Government under
existing international law, and assist other U.S. claimants
as well.
The U.S. already has in place against Cuba its toughest and
most comprehensive economic embargo. The embargo has
helped to force the limited but positive economic changes.
Let's keep international pressure on Castro, not focus it
on ourselves.
Questions and Answers on
The Cuban Liberty and Democratic Solidarity Act
(The Helms/Burton Bill)
1.
Isn't Helms/Burton just what we need to get rid of Castro?
Shouldn't we toughen U.S. policy?
2. Haven't recent changes in the Helms bill taken care of all
the Administration's problems?
3. Would Title III lawsuits really violate international law?
4. Shouldn't we try to move international law in the direction
of penalizing "traffickers?" Wouldn't U.S. business be
better off?
5. Will Title III help U.S. claimants get their properties
back, or get compensation for their losses?
6.
Is there any hope U.S. claimants will get compensation from
Cuba without Title III? What about Cuban-Americans who
weren't U.S. citizens when their property was taken?
7. Can the Cuban Government be sued under Title III? Does
international law permit that?
8. How may lawsuits are likely to be filed?
9. How will Helms/Burton affect Cuba's transition process once
a transition government is in power?
10. What do U.S. allies think about the bill?
Question:
Won't the Helms/Burton legislation give Castro the "final push"
necessary to get rid of him? Shouldn~t U.S. policy be
toughened?
Answer:
o
The Helms bill would NOT promote a peaceful transition in
Cuba.
The bill's attempts to increase existing pressure on
the Cuban government would likely be counterproductive.
o
New sanctions against foreign investors ("traffickers")
would provide a rallying point for Castro inside Cuba, and
allow him to keep the focus on "U.S. aggression" rather
than on the need for political and economic reforms.
o
The bill would also create serious frictions with our
allies at a time when they are becoming more active and
helpful in promoting human rights in Cuba.
o
It is difficult to find new, constructive ways to apply
pressure on the Castro regime because the U.S. already has
in place against Cuba its toughest and most comprehensive
economic embargo, The embargo has helped to force the
limited but positive economic changes taking place in Cuba.
o
While the U.S. discourages foreign investment in Cuba,
particularly when it would involve expropriated U.S.
properties, such investment will not ultimately determine
the fate of the Cuban regime. Our efforts to deter it
should not prompt us to sacrifice our broader interests or
undermine valuable principles of international law.
-
2 -
Question:
Haven't the revisions made in the Helms Bill resolved all the
concerns the Administration expressed about the bill earlier?
Answer:
o
No. The Administration still opposes the bill in its
current form.
o
The Helms bill would not promote a peaceful transition in
Cuba.
( see previous question.)
o
In addition, many of its provisions recklessly disregard
broader U.S. interests and relationships and could be
difficult to defend under international law.
o
We are particularly concerned about Title III, which would
create a "right of action" for U.S. nationals with property
claims in Cuba to sue those who invest ("traffic") in those
properties in U.S. courts.
Question:
Would Title III lawsuits really violate international law?
Answer:
o
The right to sue created in Title III would represent an
unprecedented extra-territorial application of U.S. law
that would be very difficult to defend under international
law. The principles behind Title III are not consistent
with the traditions of the international system.
o
U.S. allies have already objected to what they see in Title
III as an improper extra-territorial extension of U.S. law.
o
This right to sue is different from existing provisions of
law which permit U.S. courts to apply principles of
international law in that it involves an extra-territorial
applicaton of U.S. law.
o
The provisions permitting suits against agencies and
instrumentalities of foreign states present still other
legal difficulties.
o
The Department of State has prepared a more detailed
discussion of legal considerations regarding Title III,
which is attached.
-
3 -
Question:
Shouldn't the U.S. try to "move" international law in the
direction of Title III? Wouldn't U.S. business be better off?
Answer:
0
U.S. business interests abroad would be significantly
damaged if the rest of the world were to follow the
precedent that would be established by Title III.
0
It is well-settled international practice that questions of
ownership of property is determined by the state in which
that property is located.
0
It is the expropriating government that is responsible for
confiscations in violation of international law, not
subsequent investors.
0
Businesses and investors worldwide rely on the
determinations of title made by the governments in the
countries in which property is located.
0
U.S. businesses engage in more international investment
than those from any other country, and profit from these
established "rules of the game."
0
If other countries adopted laws like Helms/Burton, however,
U.S. businesses investing in China, the former East Germany
or Israel, for example, could find themselves subject to
unforeseen lawsuits by disgruntled property claimants from
third countries in the courts of those third countries.
Question:
Will Title III help U.S. claimants get their property back, or .
get compensation?
Answer:
o
Just the opposite. Title III will enormously complicate
the U.S. Government's ability to settle property claims
against Cuba. That's why most U.S. claimants are on record
as strongly opposing these provisions.
o
A flood of pending lawsuits during Cuba's inevitable
transition to democracy and market economics will delay
privatizations and other reforms.
o
Pending lawsuits will also make it more difficult for the
U.S. Government to negotiate a government-to-government
claims settlement agreement because we will likely be
required to determine, on a case-by-case basis, which of
the nearly 6,000 U.S. claimants have availed themselves of
the Title III provision.
-
4 -
Question:
Is there any hope for certified U.S. claimants to get
compensation without Title III? What about Cuban American
claimants?
Answer:
o
Yes.
In the last several years, the U.S. Government has
negotiated government-to-government claims settlement
agreements in a number of countries that have resulted in
significant compensation for U.S. claimants We expect to
do the same for -- or otherwise satisfactorily resolve
U.S. citizen claims against Cuba when conditions are
right.
(The current Cuban Government would be unlikely to
agree to appropriate terms.)
o
While a government-to-government claims settlement
agreement would cover only expropriations that violated
international law -- those involving claimants who were
U.S. citizens when their property was taken, the U.S.
Government intends to encourage future Cuban Governments to
establish a mechanism under Cuban law to resolve all
property claims, including those of Cuban Americans.
Question:
How many lawsuits are likely to be filed under Title III?
Answer:
o
The truth is that no one knows how many lawsuits will be
filed under Title III, but the universe of potentially
eligible claimants could number in the hundreds of
thousands. While not all eligible claimants would file
suits, if even a relatively small percentage of them did it
could clog up U.S. courts and greatly complicate the tasks
of resolving claims and assisting Cuba's economic recovery.
o
While it could be difficult for plaintiffs to obtain
damages from defendants without assets in the U.S., that
would not prevent plaintiffs from filing suits to obtain
default judgments for use in later negotiations.
Question:
Could the Cuban Government be sued?
international law?
Would that violate
-
5 -
Answer:
o
Title III permits suits against "any person or entity,
including any agency or instrumentality of a foreign state
in the conduct of commercial activity." The bill thus
appears to permit suits against agencies and
instrumentalities of both the Cuban and other foreign
governments in circumstances that go well beyond existing
law and that would be highly problematic under
internationally-accepted priniciples of foreign sovereign
immunity.
o
Other ambiguities in the bill create at least the
possibility that foreign states themselves -- not only
their agencies and instrumentalities -- could be sued in
U.S. courts. This would present even greater difficulties
under international law and damage to the interests of the
U.S. Government.
Question:
How will the Helms bill affect transition and democratic
governments in Cuba?
Answer:
o
o
While the bill calls for the development of a ''plan" for
U.S. and international assistance to transition and
democratic governments, it contains no authorization of
funds to provide such assistance.
The bill suggests that only limited humanitarian assistance
should be offered to a transition government in Cuba at the
very moment it would most need U.S. help in consolidating
democratic and free market institutions.
o
The U.S. would also be barred from supporting Cuban
membership in the IMF, World Bank and IDB until there is a
democratic government in power, effectively preventing many
of the kinds of support for a transition government these
sources could offer.
o
The requirement in section 104 that the President withhold
U.S. contributions to these institutions if loans to Cuba
are approved over U.S. objections could violate the U.S.
Government's commitments to those organizations and
undermine their effectiveness.
o
If the purpose of Title II of the bill is to offer hope and
incentive to those inside Cuba who seek change, the current
version offers little prospect for significant U.S. help.
-
6 -
o
Worse still, Title III of the bill will make it extremely
difficult for a transition government to resolve property
claims and privatize state enterprises, and so actively
hamper the efforts of such a government to restore
stability and prosperity to the Cuban economy.
o
Perhaps one of the most objectionable aspects of Title III
is that it will hurt U.S. business seeking to enter the
Cuban market once the transition to democracy begins.
Ironically, the most likely targets of Title III lawsuits
would be U.S. companies seeking to participate in the
rebuilding of a free and independent Cuba.