By JOHN KIRK and STEPHEN KIMBER*
In June 1996, mere months after the U.S. Congress passed the Helms-Burton Act to tighten the screws on Cuba’s economy, Canada became the first country to publicly say “no” to Washington’s plan.
Back then, Ottawa announced it would introduce new legislation to blunt the bully-boy impact of Title III – an extra-territorial section of that law that prohibits non-U.S. companies from “trafficking” in what the United States claims is American property confiscated after the 1959 Cuban revolution – and threatened to take the United States to international arbitration.
Within the month, prime minister Jean Chrétien had rallied Group of Seven leaders, forcing then-U.S. president Bill Clinton to backtrack. Mr. Clinton imposed a six-month waiver on allowing American companies or Cuban Americans to sue for compensation in U.S. courts.
Every U.S. president since – Democrat and Republican – has extended that moratorium in six-month increments, because the law, which allows American courts to punish non-U.S. companies simply for doing business in Cuba, violates accepted international trade norms. Those presidents knew countries such as Canada would raise hell if they didn’t extend the waiver.
But now, keen on bringing regime change to Venezuela, Nicaragua and Cuba (hawkish national security adviser John Bolton’s “troika of tyranny”), the Trump administration has changed the rules.
Last month, U.S. Secretary of State Mike Pompeo allowed Americans to sue the Cuban government in U.S. courts over properties nationalized nearly 60 years ago. And he now says he will decide by April 17 whether to expand that to allow similar lawsuits against foreign companies, including Canadian ones.
So why is Canada’s response so muted? Where is Canadian backbone today?
It’s not hard to understand what Mr. Trump and his allies are up to. Under the malign ideological influence of Mr. Bolton, Mr. Pompeo and Republican Senator Marco Rubio, a Trump ally and vociferous critic of the Cuban government, the United States is deliberately intensifying tensions between Washington and Havana even as it dismantles improvements in relations initiated by former U.S. president Barack Obama.
While Mr. Trump muses about putting Cuba back onto the list of countries Washington claims promote terrorism, Mr. Rubio wants to bring back legislation from the George W. Bush era, overturned by Mr. Obama, that encouraged Cuban medical staff working abroad to defect. Earlier this month, thanks largely to his lobbying, Mr. Trump scuttled a done-deal between Major League Baseball and its Cuban counterpart to allow Cubans to legally play baseball in the United States.
Perhaps most ominously for Canada, Mr. Rubio pointedly warned foreign investors: “If you are dealing with stolen property in Cuba, now would be a good time to get out.”
Canada – with historically close ties with Cuba – has a significant stake in all of this. Like virtually every other country in the world, Canada long ago negotiated compensation for its citizens and companies whose properties were nationalized after the revolution. Under Mr. Obama, even the United States, which had previously rejected Cuban compensation offers, began to negotiate certified claims.
Now, if Mr. Trump makes good on his threats, even the Havana airport and cruise terminal could become a focus of thousands of U.S. court claims worth U.S.$8 billion.
Canada’s Sherritt International Corp., the single largest foreign investor in Cuba, is at risk. So are many other Canadian companies that trade with or invest in Cuba, including banks with offices there, Quebec and Alberta farmers, Air Canada and possibly even charter flight companies Sunwing Airlines Inc., Air Transat A.T. Inc. and WestJet Airlines Ltd.
No wonder Canadian Chamber of Commerce’s Mark Agnew sounded worried recently: Title III “could affect any company which has any, any relationship with Cuba,” he declared.
While Ottawa insists Foreign Minister Chrystia Freeland is quietly lobbying Washington and reassuring Canadian companies she has their back, that muted response is telling – and dangerous.
Prime Minister Justin Trudeau desperately wants the seat on the UN Security Council that Stephen Harper failed to win in 2010. Much of Canada’s foreign policy for the past four years has been predicated on achieving that end.
That makes taking on the Americans complicated. Mr. Trudeau must deal with the implications of what his father once called “sleeping with an elephant.” Under the mercurial, unpredictable Mr. Trump, that elephant is rampaging madly off in all manner of dangerous directions – from rewritten trade deals to unjustified tariffs to personal insults.
But the reality is we already have laws in place – 1985’s Foreign Extraterritorial Measures Act (FEMA), for example – designed specifically to protect Canadians from being forced to comply with illegitimate American laws. It was amended in 1996 precisely to act as an antidote to Helms-Burton. And we have international laws and norms on our side, too.
It’s time for the Canadian government to dust off our legislation and show some backbone, forcefully rejecting this U.S. aggression toward Cuba – not to mention protecting our own national interests in the bargain.
*John Kirk is a professor of Latin American studies at Dalhousie University, where he has worked since 1978. He is the author or co-editor of 18 books on Latin America.
Stephen Kimber is a professor of journalism at the University of King’s College and the author of nine books, including most recently, the award-winning What Lies Across the Water: The Real Story of the Cuban Five.
(Contributed to The Globe and Mail, published April 15, 2019.)