CubaBrief: Private property rights are human rights and must be defended, including in Cuba

The decision by the Trump Administration to enforce Title III of the LIBERTAD Act, that became effective on May 2, 2019, is good news. This has meant a chance for justice in the courts for property owners who had everything stolen from them by the Castro dictatorship. This is a triumph for human rights, and a challenge to the erosion of private property rights.

Human rights have a conservative pedigree that stretches back to the Middle Ages and to the Catholic Church. The first time in human history that a universal concept of human rights were applied to all living beings on the planet emerged out of a debate concerning the Spanish conquest of the Americas that took place in 1550-51 and is known as the Valladolid debate.

It is important to remember that property rights are human rights. Article 17 of the Universal Declaration of Human Rights states: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.”

Universal human rights, and the rule of law, exist in order to protect those without power from the abuse of the powerful. This can be seen in the December 29, 2019 piece by Mary O’Grady that provides a historical context that also looks to the present day in Cuba.

The Wall Street Journal, December 29, 2019

A Day in Court for Cuban Property Owners

Those who traffic in assets confiscated after the revolution can be held liable.
By Mary Anastasia O’Grady


Thanks to the Trump administration, Americans whose property in Cuba was expropriated by the military dictatorship of Fidel Castro may finally have their day in court.

New Year’s Day marks the 61st anniversary of the fall of Cuban dictator Fulgencio Batista. A week later, on Jan. 8, 1959, Castro triumphantly entered Havana.

Many Cubans had risked all to unseat Batista with the goal of restoring constitutional government. But Castro sought absolute power. He refused to hold elections and instead launched a purge. There were firing squads, dungeons and exile. Whole communities of peasants in central Cuba—where resistance to the tyranny was strongest—were displaced and sent to concentration camps on the western end of the island.

To lock down power, Castro stripped citizens and foreigners alike of their property. State terrorism explains how the regime has survived. More remarkable is the tenacity of the Cuban diaspora. Most made meaningful new lives wherever they ended up. But many families have never abandoned the hope of getting justice for the crimes of the regime.

In March 1996 President Clinton signed the Cuban Liberty and Democratic Solidarity Act, also known as Helms-Burton, to strengthen the U.S. embargo on Cuba. He had resisted the legislation for months. But Mr. Clinton acquiesced after the Cuban air force shot down two Cessna aircraft carrying members of a Cuban liberation group Brothers to the Rescue in international airspace.

Mr. Clinton won a concession from Helms-Burton backers in Congress: The president would have the power to waive Title III of the act, which makes liable those who traffic in the property of U.S. nationals confiscated by the regime. Mr. Clinton used his waiver power, as did his successors—until President Trump declined to do so this April.

Title III allows Americans—including Cuban-Americans who naturalized after Castro came to power—to seek compensation in U.S. courts from those trafficking in property seized from them by the Cuban regime.

Some 20 claims have been filed since April, including one against Miami-based Carnival Cruise Lines by the owner of Havana Docks for its use of that expropriated facility. A separate action against Carnival is by a different owner, for its use of the Santiago de Cuba port, also taken at gunpoint by the regime. There’s a lawsuit against American Airlines, brought by the son of the owner of the José Martí Airport in Havana at the time it was confiscated.

One challenge for plaintiffs will be establishing whether their targets are within reach of U.S. law. A class-action suit originally filed in May on behalf of American owners of Cuban properties named the Cuban regime and its officials as defendants. But Cuba may claim that sovereign immunity precludes its being sued. The suit was amended on Dec. 6 to allege that “Expedia, and (and their affiliates)—have used, trafficked in, and benefited from these confiscated properties without permission from, or compensation to, the properties’ rightful owners.”

Exxon Mobil has a claim that is certified by the U.S. government, which means ownership is already recognized. In May it brought a complaint against the Cuban state-owned holding company, Cimex, and Unión Cuba-Petróleo for “unlawful trafficking” in Exxon’s “confiscated property in violation of Title III.” The defendants filed a motion to dismiss in October, claiming sovereign immunity. In November Exxon filed an amended complaint to demonstrate jurisdiction.

Expedia said Friday that it “does not comment on pending litigation.” could not be reached for comment. On Thursday Judge Cecilia Altonaga denied the companies’ motion to dismiss the class action and permitted jurisdictional discovery to go forward. If the plaintiffs can show that the defendants are subject to U.S. courts and that a judgment can be secured, the case is likely to be heard.

NPR reported in May that Carnival “said it has a U.S. Treasury license to do business in Cuba.” In a Saturday email a company spokesman wrote, “We believe in the merits of our case and remain optimistic that we will prevail.”

American Airlines told me Friday that its “service to José Martí International Airport in Havana, Cuba, is expressly authorized by the U.S. government including the Department of Transportation and the U.S. Office of Foreign Assets Control. In addition, the Helms-Burton Act specifically exempts lawful travel, which is what American provides.”

It is true that the Obama administration, eager to play ball with the regime, gave licenses to American Airlines and Carnival to operate in Cuba. But there is a difference between being cleared by Treasury to conduct business in Cuba and using expropriated assets to sustain those businesses. In a U.S. court of law that may turn out to be no small distinction.

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