A Critical Inquiry into a Government Taking: Presidential Suspension of Title III of the Libertad Act

Authors

Antonio L. Roca

First Page

545

Document Type

Comment

Abstract

In 1959, as most of the world watched, Castro's revolutionary army took control of the island of Cuba. Shortly thereafter, in accord with his communist ideology, Castro illegally confiscated all privately owned property and appropriated it to the state. Among the properties illegally confiscated were properties owned by thousands of Americans that had invested in Cuba before the revolutionary insurgence. Even further, Fidel Castro failed to provide compensation to the property owners of the appropriated property in violation of customary international law, prompting a draconian response from the United States. Amid pressure from American business owners and the heightening tensions of the Cold War, President Kennedy and Congress' response to the illegal communist government was swift and decisive, instituting an embargo against Cuba under the Foreign Assistance Act of 1961, which would broaden in scope in the succeeding thirty-five years. Today, in the aftermath of the Cold War, Castro's communist regime and major U.S. trading partners continue to deny recognition of American property rights in Cuba, and to this end, recent U.S. legislation, such as LIBERTAD, has tried to remedy past injustices. This article will address the escalating efforts by the U.S. government to contain Castro's Communist regime and protect American property rights in Cuba. More specifically, this article will address the enactment of the Cuban Liberty and Democratic Solidarity Act (LIBERTAD), commonly known as the Helms-Burton Act. This article begins with a brief history of U.S./Cuba relations, as well as an overview of the LIBERTAD Act. Then, it will address President Clinton's unjustified suspension of Title III,' the provision which gives Americans standing to sue, in U.S. courts, foreign corporations "trafficking" in illegally confiscated property. Thereafter, this article will elucidate a theory of compensation from the U.S. government for the President's unilateral decision to suspend Title III, and thereby effectuate a "taking" under the Fifth Amendment of the United States Constitution. Finally, this article will analogize the illegal expropriation of American property interests in Cuba, to the illegal appropriation of Holocaust survivors' property by Swiss banks and German corporations, and how the recent settlement of the latter can be applied to the former.

Recommended Citation

Antonio L. Roca, A Critical Inquiry into a Government Taking: Presidential Suspension of Title III of the Libertad Act, 11 St. Thomas L. Rev. 545 (1999).
Available at: https://scholarship.stu.edu/stlr/vol11/iss2/10