Written By Kiran Chokshi
Economic sanctions are a common tactic used by the United States government when dealing with hostile countries. Often, those sanctions are imposed along with a UN resolution or other countries. But in the 1990s under President Bill Clinton, the US undertook an extremely unilateral sanction policy towards the Castro regime in Cuba. The most interesting example was the Cuban Liberty and Democratic Solidarity Act (LIBERTAD) of 1996, also known as the Helms-Burton Act, where strict sanctions were passed into law by Congress. The US received a great deal of international backlash from its allies, and it was accused of having broken international law by attempting to limit the ability of other sovereign nations to trade with Cuba.
The Helms-Burton Act and unilateral US sanctions against Cuba were unwarranted during the 1990s and did not promote US foreign policy interests at the time. President Clinton, succumbing to domestic pressure, signed the legislation but later blocked its most controversial clause. Proponents of the bill articulated it as a crucial step in felling the Castro government and bringing democracy to Cuba. But it is clear that this was not the core reason that the bill was ultimately passed, and the codification of the embargo into law tied future presidents’ hands. This decision would undermine US credibility abroad with its close allies as well as cause unnecessary pain to the Cuban economy and people. Prior US sanctions policy on Cuba such as the Cuban Asset Control Regulations of 1963 and the Cuban Democracy Act of 1992 had primarily focused on putting economic pressure on Cuba. Both had the eventual hope of either toppling the Castro government or providing a road map to normalization of relations, dependent on significant economic or political changes. But importantly, Helms-Burton was an example of unprincipled foreign policy that succumbed to domestic political pressure which could not have been motivated by the hope of bringing down the Cuban government.
Historical Context
The US maintained an embargo with Cuba dating back to the Eisenhower administration in 1960. When the Cubans and Soviets signed an agreement that favored Cuba to trade sugar for heavily subsidized oil in 1960, the US State Department ordered US oil firms in Cuba to stop refining oil. This resulted in the Cuban government nationalizing the refineries and eventually expropriating all US property, which was valued at $1 billion.[i] This included property that had belonged to Cuban exiles but who had moved to the US and became citizens.
Thirty years later, the 1991 collapse of the Soviet Union, Cuba’s largest trading partner, greatly damaged the Cuban economy. Total Soviet assistance had previously averaged at least 15 percent of Cuba’s GDP, and it started disappearing around 1989.[ii] The period from 1989 to 1993 was known as the Período especial, or Special Period. This time of economic crisis caused widespread famine and a breakdown in transportation and agriculture sectors.
It was during this disastrous time in Cuba’s history that the US Congress passed the Cuban Democracy Act (CDA) sponsored by Robert Torricelli (D – NJ), with the stated mission of “wreck[ing] havoc on the island”.[iii] Torricelli’s campaigns were largely funded by the Cuban American National Foundation (CANF) lobbying group, which had spent over $1 million on Senate and House candidates.[iv] It is thus particularly interesting that Torricelli took a conservative position on the embargo due to his Cuban-American constituency despite being a liberal on most other issues.[v] But the bill, passed in 1992, received support from then President George HW Bush and then Arkansas Governor Bill Clinton. It stipulated that no foreign-based subsidiaries of US companies could trade with Cuba. Opponents of bill, like the New York Times, argued the bill was a product of election year politics aimed at currying favor with Florida and New Jersey Cuban exiles.[vi] CANF was so powerful that members of Congress supported the CDA, even though their aides ridiculed it in private. According to at least one Congressional aide, most Democrats supported the bill to put the Bush Administration on the wrong side of the CANF.[vii]
But by 1994 and 1995, Cuban GDP per capita started rising again. Through austerity measures, strategic enterprise support, and partial liberalization of some sectors of the economy, the Castro regime took steps to reform the economy and was able to recover from the previous disaster in a homegrown productivity surge.[viii] But these limited market-oriented reforms were not enacted to meet the demands of the CDA and they did not fundamentally change the communist nature of the Cuban economy.[ix] It is quite clear that the Cuban Democracy Act seemed to do little or nothing on its own in tackling communism in Cuba.
Lack of US National Interest in Cuban Sanctions
By 1995, the US seemed to lack a compelling national interest in a tighter embargo against Cuba. Without Soviet backing, the Cuban military was seriously weakened, and the Castro regime had little interest in military confrontation with the United States. After the fall of USSR, Havana was forced to cut the military’s size and budget by 50 percent.[x] There was no longer a pressing security threat to the US posed by Cuba or the spread of Communism in the Western hemisphere after the fall of the Soviet Union.
Regarding US economic interests, an embargo prevented American businesses from gaining access to the Cuban market. In terms of promoting democracy and human rights, the Castro regime had already survived 40 years of US embargo and the shock of the fall of the Soviet Union. A tightened embargo policy would only serve to further harm the living conditions of the Cuban people, with little chance of toppling the government.
Helms-Burton Act of 1996
Sponsored by Senator Jesse Helms and Dan Burton in early 1995, the Helms-Burton bill aimed to increase US sanctions against Cuba with the stated goal of discouraging foreign investment in Cuba and speeding the fall of the Castro regime.[xi] It consisted of four titles: strengthening international sanctions against Cuba, assistance toward a free and independent Cuba, protection of US citizens’ property rights in Cuba, and exclusion of aliens who engage with confiscated US property in Cuba from the US.
The bill referred to the property owned by US citizens that was confiscated by the Cuban government back in 1959. Title III, which gives the ability to sue nationals of other countries “trafficking” US property in Cuba, was the most controversial because its broad definition meant that foreign companies using old US equipment, plants or land could be sued in American courts.[xii] Title III entailed the exercise of extraterritorial jurisdiction and seemed to go against the act of state doctrine previously asserted by the US in international law.[xiii] The Clinton administration publicly opposed Helms-Burton. In an April 1995 interview, Clinton argued that the bill was unnecessary because of the existing CDA and that it would overly limit the President’s flexibility in dealing with a rapidly developing situation like that in Cuba.[xiv] The Clinton administration also thought Title III was counterproductive and wrongly prioritized property issues above relationships with allies.
Catalyst for Passage, and Subsequent Neutering of Helms-Burton
On February 24, 1996, the Cuban government shot down two US civilian aircraft. These aircraft were piloted by Brothers to the Rescue, a Miami-based nonprofit right wing organization opposed to the Cuban government. Before this incident, it had conducted unauthorized flights into Cuban airspace, even dropping anti-government propaganda leaflets over Havana.[xv] It was disputed whether they were shot down over international waters or Cuban airspace. In Miami, the Cuban exile community reacted quickly to the shoot-downs. Jorge Mas Canosa, head of CANF, condemned the attack. He said, “For two warplanes from the Castro government to shoot down two unarmed civilian planes with American flags on a humanitarian mission should be considered an act of war against the US.”[xvi] But the fundamental situation had not changed regarding US national interest. The shoot-down of the provocative civilian planes did not present a fundamentally new national security threat to the US. The Castro regime did not want war with the US given Cuba’s economic and military condition.
This catalyst of the shoot-down led Helms-Burton to be re-tabled and passed by Congress and Clinton on March 12, 1996. Even though CANF had lost much of its political sway by this time, Cubans in Miami mobilized against the shoot-down.[xvii] So it is no surprise that Clinton, wanting to appeal to Cuban voters in Florida in anticipation of the 1996 election, passed the bill. The passage resulted in prompt threats of retaliation from important US allies like the EU, Canada and Mexico, believing the act to infringe on national sovereignty.[xviii] The Canadian response was to issue “claw-back” measures, which would allow Canadian companies to counter-sue US companies in Canadian courts.[xix] Under this foreign pressure, Clinton chose to suspend the ability to sue under Title III for at least six months in July of 1996. This suspension weakened the power of Helms-Burton substantially, since Title III was the central clause that deterred international investment and trade in Cuba. He continued the suspension for the rest of his presidency, as has every American president that has come after him.
Loss of Credibility
This decision to flip-flop represented a lack of a foreign policy guiding principle or higher interest. Rather, it was a political compromise by Clinton as he was juggling domestic and foreign pressures. He chose to forgo the better foreign policy choice of vetoing Helms-Burton because of a one-off shoot-down of provocative civilian planes and the political power of vocal Cuban-American minority in Miami.
In this process of this appeasement, he generated ill-will from the Castro government and, more importantly, long-standing US allies. As long as the law exists, there is the potential for legal action and infringement of international law if suspensions are not continued. Furthermore, US citizens technically maintain the right to sue foreign companies, even if they cannot actually act upon it. This legacy of Helms-Burton is a smear on our otherwise friendly and respectful relationships with our allies and our ability to be a role model for the world.
Clinton also reduced the future power of the executive branch in its ability to take a flexible approach vis-à-vis sanction policy with Cuba. While a president could in effect nullify Title III because he could suspend suing, he/she could do nothing about Title IV, which prevented foreigners who had “trafficked” US property from getting US visas. Helms-Burton went further in the direction the CDA had already begun by restricting the President’s discretion to oversee or restrict trade with US enemies as established in the Trading with the Enemy Act of 1917.[xx] This precedent has broad implications for legislation that restricts presidents’ ability to conduct sanction policy at their judgment.
Nonetheless, one cannot place too much blame on President Clinton since he inherited the CDA, which had already codified most of the US embargo; Clinton had to deal with the practical reality of being president and the need to satisfy domestic political needs. If one looks at what the Helms-Burton Act with a suspended Title III added on top of the CDA, the Cuban sanctions did not become dramatically harsher. Clinton probably thought passing Helms-Burton was an expedient and convenient way to deal with the plane shoot-downs and Cuban-American domestic pressure.
Conclusion
President Clinton could have broken from his predecessors and worked towards a less adversarial relationship with Cuba. Even though he inherited the CDA, he had the time to observe that dire economic circumstances, sanctions included, would not topple the Castro government. As President, he could have worked to weaken the terms of the CDA and warm relations with Cuba. But the shot-down planes combined with powerful domestic pressures and incentives enabled him to make a poor choice for US national interests and the Office of the President that we have to live with today. An interesting area of future inquiry would be a comparison of Helms-Burton to the examples of US sanctions on Iran and Syria. How do they differ in presidential discretion? How did domestic political environments shape foreign policy and these levels of presidential discretion?
Endnotes
[i] Hufbauer, Gary, et al. Case Studies in Economic Sanctions and Terrorism. Case 60-3 US v. Cuba. Peterson Institute for International Economics. 2011.
[ii] Hernández-Catá, Ernesto. The Fall and Recovery of the Cuban Economy in the 1990s: Mirage or Reality? International Monetary Fund. 2000, 4.
[iii] Franklin, Jane. “The Politics behind Clinton’s Cuba Policy.” Baltimore Sun, 30 Aug. 1994, articles.baltimoresun.com/1994-08-30/news/1994242173_1_jorge-mas-canosa-cuba-president-clinton.
[iv] Bell, Jason S. “Violation of International Law and Doomed U.S. Policy: An Analysis of the Cuban Democracy Act.” The University of Miami Inter-American Law Review, vol. 25, no. 1, 1993, pp. 77–129. JSTOR, JSTOR, www.jstor.org/stable/40176331. pp. 94
[v] Koçak, Canberk. “Interest Groups and U.S. Foreign Policy towards Cuba: the Restoration of Capitalism in Cuba and the Changing Interest Group Politics”. Class, Race and Corporate Power. 4 (2). doi:10.25148/CRCP.4.2.001664, 5.
[vi] NY Times Editorial Board. “Making Poor Cubans Suffer More.” The New York Times. June 15, 1992, page 00018. Print.
[vii] Bell, Jason S. “Violation of International Law and Doomed U.S. Policy: An Analysis of the Cuban Democracy Act.” The University of Miami Inter-American Law Review, vol. 25, no. 1, 1993, pp. 77–129. JSTOR, JSTOR, www.jstor.org/stable/40176331. pp. 95
[viii] Hernández, 9.
[ix] Sullivan, Mark (2018). Cuba: US Policy in the 115th Congress (CRS Report No. R4422). Retrieved from Congressional Research Service website: https://crsreports.congress.gov/product/pdf/R/R44822. pp. 15
[x] Eland, Ivan. Putting “defense” Back Into U.S. Defense Policy: Rethinking U.S. Security in the Post-Cold War World, 2001.
[xi] Greenhouse, Steven. “Bill to Ease Cuba Suits Faces a Veto By Clinton.” The New York Times. August 20, 1995, page 001004. Print.
[xii] Sanger, David E. “Clinton Grants, Then Suspends, Right to Sue Foreigners on Cuba.” The New York Times. July 17, 1996, page A00001. Print.
[xiii] Lowenfeld, Andreas F. “Congress and Cuba: The Helms-Burton Act.” The American Journal of International Law, vol. 90, no. 3, 1996, pp. 419–434. JSTOR, JSTOR, www.jstor.org/stable/2204066, 420.
[xiv] William Jefferson Clinton, “Interview with Wolf Blitzer and Judy Woodruff on CNN,” Weekly Compilation of Presidential Documents 31 (14 April 1995): 624-25.
[xv] Court testimony from the Cuban spy trial, referred in The Miami Herald March 13, 2001 at “Basulto testifies”
[xvi] “U.S. TIGHTENS SANCTIONS AGAINST CUBA AFTER DOWNING OF TWO EXILE PLANES OFF CUBAN COAST”. In NotiSur – Latin American Political Affairs ISSN 1060-4189, Volume 6, Number 9 March 1, 1996
[xvii] LeoGrande William M. 1998. “From Havana to Miami: U.S. Cuba Policy as a Two-Level Game”, Journal of Interamerican Studies and World Affairs, 40 (1): 80-1.
[xviii] Kalowatie Deonandan (2005) The Helms-Burton Bill and Canada’s Cuba Policy: Convergences with the US, Policy and Society, 24:1, 124-149, DOI: 10.1016/ S1449-4035(05)70052-7
[xix] Ibid., pp. 127.
[xx] U.S. Congress. United States Code: Trading with the Enemy Act of , 50a U.S.C. §§ 1-40 1958. 1958. Periodical. https://www.loc.gov/item/uscode1958-010050a002/.