On March 12, 1996, President Clinton signed the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, generally known by the names of its principal sponsors as the Helms-Burton Act. The Act is a mixture of codification of existing economic sanctions previously imposed pursuant to executive orders; inducements and promises related to restoration of democracy in Cuba; threats against persons from third countries that do business with Cuba; a new, unprecedented remedy for expropriation; and restrictions on entry into the United States by persons who “traffic in confiscated property” or who are affiliated with such persons by ownership, employment or family. The President had indicated that he would veto the Helms-Burton bill if it reached his desk, and quite possibly it would never have done so, but for the events in the Florida Strait on Saturday, February 24, 1996. On that day, at about 3:15 in the afternoon, two Cessna 337 light planes flown by a Cuban-American organization based in Florida were blown up by missiles launched by MIG–23 and MIG–29 planes of the Cuban Air Force, apparently on standing orders of President Fidel Castro. President Clinton immediately condemned the attack, and by the following Wednesday, he announced that he now would sign the Helms-Burton bill, subject to one compromise to be discussed hereafter.
Type Agora: The Cuban Liberty and Democratic Solidarity (Libertad) Act Information American Journal of International Law , Volume 90 , Issue 3 , July 1996 , pp. 419 - 434 Copyright © American Society of International Law 1996Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
* Of the Board of Editors
1 Pub. L. No. 104–114, 110 Stat. 785 (Mar. 12, 1996) [hereafter Act].
2 The bill was passed by the House on September 21, 1995, by a vote of 294 to 134, substantially in the form in which it was eventually signed into law. The Senate version, including titles HI and IV, was met with a filibuster, and efforts to stop the debate fell four votes short. Thereafter, titles III and IV were dropped from the bill, and as thus pared down, the bill was passed on October 19, 1995, by a vote of 74 to 24. Though the House appointed conferees on November 7, 1995, and the Senate did the same on December 14, 1995, the committee of conference did not meet until February 28, 1996. The conference committee quickly reported out the bill, with titles III and IV restored and with some other changes; it was approved by the Senate on February 29, 1996, by a vote of 74 to 22, and by the House on March 6, 1996, by a vote of 336 to 86.
3 Secretary of State Christopher had sent a letter to Speaker Gingrich in September 1995 stating that he was “deeply concerned” about the Act, and that he would recommend that the President veto the bill if passed by Congress. “We believe,” the Secretary wrote, “that H.R. 927 would actually damage prospects for a peaceful transition, … [and] would jeopardize a number of key U.S. interests around the globe.” Letter from Secretary Warren Christopher to Speaker Newt Gingrich (Sept. 20, 1995) (on file with author).
4 See note 2 supra, and in particular the fact that the committee of conference did not meet until after the Cessna aircraft were shot down. Senator Helms said on February 26, “The legislation will be on the President’s desk before the blood dries on Castro’s hands.” Wash. Post, Feb. 27, 1996, at A1.
5 See Wash. Post, Feb. 25, 1996, at A1.
6 This emerges most clearly from an interview with President Castro published in Time, Mar. 11, 1996, at 38. Referring to prior episodes when aircraft of Brothers to the Rescue (Hermanos al Rescate) had flown near to or over Cuban territory, Castro said:
We discussed it with Raul … and the Joint Chiefs of Staff. We agreed that what happened on Jan. 9 and 13 [leaflets dropped over Havana from the aircraft of the Brothers] cannot happen again. We gave the order to the head of the air force. On Saturday [Brothers’ planes] came twice. The San Antonio air base was on high alert. On the third pass, they scrambled and did their job. They shot the planes down. They are professionals. They did what they believe is the right thing. These are all people we trust, but I take responsibility for what happened. (Bracketed material omitted)
7 See text at note 37 infra.
8 Proclamation 3447 of Feb. 3, 1962, 27 Fed. Reg. 1085 (1962). The proclamation recites the resolutions, just passed at Punta del Este, Uruguay, by a bare two-thirds vote, of the Eighth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States, serving as Organ of Consultation in application of the Inter-American Treaty of Reciprocal Assistance, declaring that “the present Government of Cuba … is incompatible with the principles and objectives of the inter-American system,” and urging member states to “take those steps that they may consider appropriate for their individual or collective self-defense.” These texts were interpreted by the U.S. Government as giving authorization under international law for the imposition of the embargo, and overriding the prohibition against economic sanctions contained in the Charter of the Organization of American States.
For the full text of the resolutions, see 2 Inter-American Treaty of Reciprocal Assistance, Applications, 1960–64, at 71, 75 (1964). For background to the negotiations at Punta del Este, see Arthur M. Schlesinger, Jr., A Thousand Days 780–83 (1965).
9 Cuban Import Regulations, 31 C.F.R. §515.201, 27 Fed. Reg. 1116 (Feb. 7, 1962).
10 50 U.S.C. app. §5(b) (1941–76).
11 31 C.F.R. §500.101, issued pursuant to President Truman’s Proclamation of the Existence of a National Emergency of December 16, 1950, 15 Fed. Reg. 9029 (1950).
12 Pub. L. No. 87-195, §620(a), 22 U.S.C. §2370(a) (presently (a)(1)).
13 See 27 Fed. Reg. 2765 (Mar. 24, 1962).
14 Cuban Assets Control Regulations, 31 C.F.R. §515.101, 28 Fed. Reg. 6974 (1963). When §5(b) of the Trading with the Enemy Act was amended in 1977 to limit the authorities there granted to “[d]uring the time of war,” deleting the immediately following words “or during any other period of national emergency declared by the President,” Congress provided, at the request of the administration, that authorities which were being exercised with respect to a country on July 1, 1977, as a result of a national emergency may continue to be exercised with respect to such country through September 1978, and thereafter upon determination of the President that such extension is in the national interest. Presidents Carter, Reagan, Bush and Clinton have annually made the requisite determination with respect to Cuba. See 50 U.S.C. app. §5 note (1988 & Supp. V 1993), plus 59 Fed. Reg. 47,229 (1994) and 60 Fed. Reg. 47,659 (1995).
15 Cuban Assets Control Regulations, 31 C.F.R. §515.329, tracking the corresponding section of the Foreign Assets Control Regulations, 31 C.F.R. §500.329.
16 31 C.F.R. §515.541 (1963–75). The license contained a number of restrictions, notably that a U.S. citizen or resident could not participate in a transaction that would have been contrary to U.S. law but for the license. No comparable general license was issued with respect to subsidiaries of U.S. companies under the Foreign Assets Control Regulations applicable to North Korea, China and later Vietnam.
17 See, e.g., James I. W. Corcoran, The Trading with the Enemy Act and the Controlled Canadian Corporation, 14 McGill L.J. 174 (1968).
18 40 Fed. Reg. 47,108 (1975), repealing 31 C.F.R. §515.541 and issuing a new provision, §515.559. An amendment issued in January 1977 stressed that in order to obtain the required license, the foreign affiliate of the U.S. firm must be independent of the parent firm in such matters as decision making, risk taking, negotiation, financing and arrangement of financing, as further defined. 42 Fed. Reg. 1472 (1977), adopting a new subparagraph (c) in §515.559.
19 42 Fed. Reg. 16,620 (1977), issuing a new §515.563.
20 53 Fed. Reg. 47,526 (1988), issuing amended subsections 515.559, .560 and .563.
21 Pub. L. No. 102-84, Oct. 23, 1992, 22 U.S.C. §§6001–6010 (1994).
24 For the definition of “transition government,” see note 32 infra.
25 In July 1969, shortly after President Nixon took office, the Foreign Assets Control Regulations were amended to authorize purchase by U.S. persons abroad, and importation as accompanied baggage, of Chinese merchandise up to $100 per month, provided the merchandise was intended for personal use or as a gift, and provided the payment was made in foreign currency. 31 C.F.R. §500.540, as amended July 23, 1969, 34 Fed. Reg. 12,179 (1969). In terms of economic impact, this change was trivial; in terms of a signal that the American version of the Great Wall around China was not impenetrable, it was an important first step.
In December 1969, the regulations were amended again to remove the presumption that certain categories of merchandise (e.g., hog bristles, jade and certain silks) were Chinese and therefore prohibited to persons subject to the jurisdiction of the United States. 31 C.F.R. §500.204, as amended Dec. 24, 1969, 34 Fed. Reg. 20,190 (1969). More important, subsidiaries of United States firms established abroad were licensed to engage in trade and financial transactions with the People’s Republic of China (but not with North Vietnam or North Korea), subject to the same provisos applicable at the time under the Cuban Assets Control Regulations, note 16 supra, 31 C.F.R. §500.541, issued Dec. 24, 1969, 34 Fed. Reg. 20,191 (1969).
In March 1971, the State Department announced that the prohibition on travel by U.S. citizens to China would not be renewed, 64 Dep’t St. Bull. 510 (1971), also summarizing several other small steps taken during 1970. A few weeks later, it was announced that an American ping-pong team would be traveling to China at the invitation of the Chinese Government. N.Y. Times, Apr. 15, 1971, at 1. The rest, one might say, is history, but in fact several more small changes in the controls were promulgated, until a general license authorizing virtually all transactions and trade in nonstrategic goods between the United States and China was issued in June 1971. 31 C.F.R. §500.547, 36 Fed. Reg. 11,441 (1971); see also 64 Dep’t St. Bull. 815 (1971).
26 I do not, in this brief comment, list all of the many restrictions, prohibitions and warnings in the Act, but rather try to give some indication of the tenor of the legislation. Altogether the Act has 35 sections, many with numerous subsections and sub-subsections.