For six decades now, the United States has unsuccessfully sought to achieve regime change in Cuba.
To that end, the US has come up with various ways of punishing Cuba and its inhabitants, including a decades-long economic embargo.
The US has also enacted legislation to punish third parties — other countries, corporations and persons — trading with or otherwise dealing with Cuba.
Leaving aside the various pieces of US legislation that underpin the embargo, the US Congress has enacted laws that are especially punitive and unjust, namely, the Cuban Democracy Act of 1992 (also known as the Torricelli Act) and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (the Helms-Burton Act).
The Torricelli Act gives power to the US president to apply economic sanctions against countries having trade relations with Cuba.
By any reasonable standards this legislation is objectively unethical. Whether a nation chooses to trade or have other relations with Cuba is and ought to be a matter for that nation.
However, the Torricelli Act goes further and demands that all countries trading with Cuba should discontinue doing so and cancel any economic activity with Cuba.
Not only that, but the legislation also provides that any country trading with Cuba may not be eligible for aid or assistance from the US.
The Helms-Burton Act has three main objectives:
First, the legislation seeks to compensate US citizens for property allegedly taken from them by the Cuban government.
Secondly, the legislation seeks to apply maximum pressure on foreign companies to stop trading or otherwise doing business with, and investing in, Cuba.
Thirdly, the legislation seeks to further strengthen the US economic, financial and commercial embargo against Cuba.
Title III of the legislation, revived by former president Donald Trump in April, 2019, also authorises US nationals — including Cubans who have since become such and who previously owned commercial property expropriated by the Cuban government after the 1959 revolution — to take legal action against persons, including non-US companies, that may be “trafficking” in that property.
For the purposes of Title III, March 12, 1996 is the date by which plaintiffs must acquire ownership of a claim to any property confiscated by that point.
The definition of trafficking in Title III of the Helms-Burton Act creates a seemingly endless causal chain of transactions and benefits involving property, including securities, in Cuba. Worse, the legislation provides no defences to a legal suit.
A person “trafficks” in confiscated property, if that person knowingly and intentionally, and without the authorisation of any US national who holds a claim to the property:
• sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property; or
• engages in a commercial activity using or otherwise benefiting from confiscated property; or
• causes, directs, participates in, profits from, or otherwise engages in, trafficking by or through another person.
The US State Department reported in 2019 that there are at least 200,000 potential claims under Title III.
When this legislation was enacted, it was vigorously opposed by major US trading partners, including the European Union and Canada. They, along with Mexico, continue to denounce the legislation as a gross violation of customary international law, and have enacted “blocking statutes” to protect their nationals’ interests.
Once again, the Helms-Burton Act punishes foreign companies investing simultaneously in the US and Cuba. Put simply, this legislation is a full-frontal attack on the sovereignty of other nations. Its extra-territorial effect is especially nasty and has been criticised by major trading partners and is of dubious constitutional validity.
Numerous lawsuits under Title III of the Helms-Burton Act have been brought in US courts of law. The majority of those suits have been either entirely unsuccessful or only partly successful. For the most part, the suits being brought under Title III are aimed at more reachable US companies, as opposed to foreign companies.
Nevertheless, the mere existence of the legislation evokes fear of reprisals and recriminations and often achieves the sought-after objectives of tightening the screws on Cuba.
Title IV of the Helms-Burton Law requires the denial of visas to, and the exclusion from the US, of any person who, after March 12, 1996, confiscates or “trafficks” in confiscated property in Cuba claimed by any US national.
German companies Sartorious and Merck and US corporation Cytiva — all providers of laboratory and medical supplies — stopped selling laboratory material, reagents and other supplies to Cuba last year, because they feared reprisals from the US government.
The actions of the German companies prevented Cuba from obtaining purification equipment, filtration tanks, thiomersal (an anti-fungal antiseptic agent) and other supplies, as it developed its COVID-19 vaccines.
Cuba somehow managed without the supplies from Germany, but it hasn’t been easy. Cuba, which has a population of about 11.33 million, has developed several COVID-19 vaccines and has so far managed to immunise about 2 million of its inhabitants.
However, syringes are in short supply, with a deficit of some 25 million.
Trump imposed additional sanctions on Cuba, about 55 of which were implemented during the pandemic emergency. For example, more than 2 million masks, 40,000 rapid diagnostic kits and 104 ventilators donated by the Alibaba Foundation were blocked.
Fortunately, humanitarian aid organisations in Europe, South America, Central America, and even in the US, have come to the aid of Cuba, launching fundraising campaigns to buy syringes and have them shipped to Cuba.
Even Cubans living abroad have rallied to the assistance of their homeland. A caravan against the US embargo collected donations in May in Miami — a city renowned for the presence of many ultra-right-wing Cuban Americans who are in favour of regime change.
The response to the severe shortage of syringes has been extremely positive, giving hope that, despite the uncharitable and unethical actions of the US Congress and government, the humanitarian spirit of charity, goodwill and assistance can win out in the end.