Ley Helms Burton: ¿Un nuevo frente en la guerra comercial?

The Helms-Burton Title III, part of the Helms-Burton Act, has been reactivated by US Secretary of State Mike Pompeo starting from May 2nd, causing tensions between the US and the European Union (EU). This law enables US citizens, including Cuban-Americans, to file claims against properties seized by the Cuban government after the 1959 revolution in federal courts, affecting both large corporations and individuals. The Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act, was enacted in 1996 under President Bill Clinton's administration but was suspended due to negative reactions, particularly in the EU and Canada.

President Donald Trump decided to activate this chapter as a means to pressure the Cuban government. This action intensifies the economic embargo imposed on Cuba, potentially disrupting its economic recovery efforts through foreign capital investments. It follows other sanctions aimed at reducing remittances from the US and limiting American tourism to Cuba, which had seen significant growth during Barack Obama and Raúl Castro's thaw in relations in 2014.

Moreover, transactions with Cuban companies run by the military and security services are now banned, and penalties will be imposed on companies and ships transporting oil to Cuba. The Trump administration's tightening of the economic blockade comes amidst critical circumstances where it aims to pressure Cuba to cease supporting Nicolás Maduro's Venezuelan government and to secure support for his re-election in 2020.

The EU responded immediately, with Federica Mogherini, the High Representative for Foreign Affairs, and Cecilia Malmström, the Commissioner for Trade, opposing the "extraterritorial application of unilateral restrictive measures contrary to international law." They stated that they would consider all options to protect their interests, including those related to the World Trade Organization (WTO) and the use of the 'blockade' status of the EU. The Spanish government also rejected these measures, stating that the application of Title III does not contribute to their shared goal of promoting democracy, political openness, and human rights in Cuba.

The EU representatives also noted that the measure violates the commitments made in 1997 and 1998, when the EU withdrew its WTO complaint in exchange for the US renouncing the application of a rule it now intends to restore. The EU is prepared to use all available tools to protect its businesses and citizens' interests.

The impact of Title III on investors is uncertain, given the ambiguous nature of the regulation. While property ownership remains predominantly state-owned in Cuba, the law could affect businesses operating under joint ventures or concessions between the state and private initiative, which constitute the majority of operations. The EU is the largest investor in Cuba, and this measure particularly affects the tourism sector, where Spain holds a leading position.

Regarding actions the EU might take, it plans to reactivate demands before the WTO that were withdrawn and study new demands. However, WTO processes can take years. In 1996, the EU passed Regulation (EC) No 2271/96, allowing retaliation measures against companies initiating claims, considering that extraterritorial laws violate international law. This text was recently updated by the Commission's Implementing Regulation (EU) 2018/1101, which prohibits any individual residing in the European Union or any entity established within the EU from complying with the Helms-Burton laws directly or indirectly.

Similar protective measures exist in Canada through the Counter-Extraterritorial Measures Act and in Mexico with the Law for the Protection of Commerce and Foreign Investments that Contravene International Law since October 23, 1996. These laws prohibit actions affecting trade or investment as a result of the effects of foreign laws. The implications for the US and EU courts remain unclear, and there is concern over a potential chain of lawsuits that could harm investors on both sides of the Atlantic.

Additionally, the Helms-Burton Law may impact sectors of the US business community, such as tourism and air transportation, which had invested in Cuba. This situation highlights the weakening of the transatlantic alliance without a clear rationale for the confrontation that harms both parties. President Trump's unilateral approach exposes the US's strategy of placing allies in untenable situations and generating conflict, despite the risk of disrupting international balances and eroding traditional ally trust.