Brooklyn Law Review


After the Cuban Revolution, the Castro government nationalized the property of many American nationals, which served as a justification for the Kennedy administration’s decision to institute a general economic embargo on Cuba. This embargo was officially codified in the late 1990s in the Cuban Liberty and Democratic Solidarity (Libertad) Act, enacted by President Bill Clinton. Title III of this Act was suspended since its enactment. By creating a private cause of action for American nationals to sue “traffickers” of their improperly nationalized Cuban property, Title III aims to deter foreign investment into Cuba and compensate American citizens whose Cuban property interests were improperly nationalized during the Cuban Revolution. Recently, the Trump Administration decided to lift the suspension of Title III of the Helms-Burton Act, allowing American nationals to sue these “traffickers.” Title III of the Helms-Burton Act compromises the separation of powers articulated by the U.S. Constitution, violates international and domestic standards of legislative extraterritoriality, and will violate the due process rights of many defendants in these suits. While federal courts should find Title III unconstitutional on these grounds, or at least construe the statute narrowly to reduce the potential of frivolous suits, the most effective means for settling these outstanding property claims is to negotiate with the Cuban government in an arbitral tribunal modeled after the Iranian-United States Claims Tribunal.