Cuba’s Perspective on This Week’s U.S.-Cuba Diplomatic Meetings in Havana

As mentioned in another post, the U.S. and Cuba will hold diplomatic meetings in Havana on January 21 and 22, 2014.

According to Granma, Cuba’s official and only newspaper, an unnamed source at Cuba’s Ministry of Foreign Affairs said that Cuba “is going to these meetings with the constructive spirit to sustain a respectful dialogue, based on sovereign equality and reciprocity, without undermining national independence and self-determination of the Cuban people.”

“We should not pretend that everything is solved in one meeting,” the source said. “Normalization is a much longer and complex process where you have to address issues of interest to both parties.”

Migration Issues

On January 21^st, the focus will be migration, and the unnamed source said Cuba will report on “the progress of the measures taken in January 2013 to update the Cuban immigration policy and its impact on the flow of people between the two countries,” and the two countries will discuss ways to confront “illegal immigration, smuggling and document fraud.”

In addition, Cuba will express “its deep concern at the continuing [U.S.] policy of ‘wet foot/dry foot’ and the Cuban Adjustment Act, which is the main stimulus to illegal emigration.” Cuba also will complain about the U.S. policy “to grant parole [to] Cuban professionals and health technicians to abandon their mission in third countries.”

Normalization Issues

On January 22^nd the focus will be the many issues surrounding the December 17^th decision of the two countries to re-establish diplomatic relations. As previously mentioned, Assistant Secretary of State Roberta Jacobson will lead the U.S. delegation at this session.[1]

The unnamed Cuban source said there would be discussion about certain levels of existing coordination in dealing with illegal immigration, including border troops and the coastguard; drug interdiction; oil spills; and search and rescue in case of air and maritime accidents. They also “are beginning to talk about monitoring earthquakes.”

Cuba will “reiterate the proposal made last year by U.S. government to hold a respectful dialogue on the basis of reciprocity with regard to the exercise of human rights.” The source promised “a dialogue on a reciprocal basis and on an equal footing” regarding human rights. Cuba has “legitimate concerns about the exercise of human rights in the [U.S.],” including controversies over police shootings and killings of black men in Ferguson Missouri and New York City, which are “situations that do not happen in [Cuba].” The source says his country welcomes the U.S. to meet “with the recognized organizations that make up a vibrant civil society in Cuba: students, women, farmers, professionals, disabled, unions, among others.” [2]

According to this source, Cuba will emphasize “the restoration of diplomatic relations and the opening of embassies in both capitals should be based on the principles of international law enshrined in the United Nations Charter and the Vienna Conventions on Diplomatic Relations and Consular Relations.”

“Compliance with these documents, to which both countries are signatories, means mutual respect for political and economic system of each country and to avoid any interference in the internal affairs of our nations. These principles are essentially sovereign equality, the settlement of disputes by peaceful means, refrain from the threat or use of force against the territorial integrity or political independence of any state, as well as equal rights, self-determination of peoples and non-intervention in matters which are domestic jurisdiction of states.”

In this context, Cuba will raise the following issues:

• Solving the inability of the Cuban Interests Section in Washington, D.C. to obtain banking services;
• Ending the U.S. designation of Cuba as a “State Sponsor or Terrorism;”
• Ending the U.S. blockade [or embargo] of Cuba and providing Cuba with “compensation for damages for a policy that has been in place for over 50 years.” (At the U.N. General Assembly meeting in October 2014, Cuba claimed that the damages were $1.1 trillion.)

These issues, the source admitted, obviously cannot be resolved at the one-day meeting this week.

Reactions

I agree that certain U.S. laws relating to Cubans’ ability to gain legal immigration status in the U.S. need to be changed if there is to be full normalization and reconciliation. This includes the so-called “wet foot/dry foot” policy whereby a Cuban who is on U.S. land is entitled to such legal status, but if a Cuban is apprehended by U.S. authorities on the high seas, he is not so entitled. So too the U.S. program for granting immigration parole to Cuban professional medical personnel needs to be ended, as recommended by a New York Times editorial and by this blogger last November. (Whether these changes may be done by the President’s executive order or whether it takes congressional action has not been investigated by this blogger.)

The U.S. repeatedly has insisted that issues of Cuban human rights and civil society need to be addressed, and the Cuban Foreign Ministry spokesperson said his country was prepared to do that so long as Cuba’s concerns about human rights in the U.S. are addressed. I agree that there should be mutuality in any such discussion.

I also agree that the restoration of normal diplomatic relations needs to be based on what should be the following noncontroversial principles of the U.N. Charter and the Vienna Conventions on Diplomatic and Consular Relations:

• The U.N. Charter provides that it is “based on the principle of sovereign equality of all its members” (Art. 2(1)), that “[a]ll Members shall settle their disputes by peaceful means” (Art. 2(3)) and that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the [U.N.]” (Art. 2(4)).
• The Vienna Convention on Diplomatic Relations provides that “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” (Art. 2) and sets forth many details on the agreed-upon ways of implementing such relations. There are 190 states that are parties to this treaty, including Cuba and the U.S.
• Similarly the Vienna Convention on Consular Relations says “The establishment of consular relations between States takes place by mutual consent” (Art. 2(1)) and provides many details on the agreed-upon ways of implementing such relations. There are 177 parties to this treaty, including Cuba and the U.S.

Other points of agreement with the Cuban spokesperson are enabling the Cuban Interests Section in Washington, D.C. to obtain banking services in the U.S.; ending the U.S. designation of Cuba as a “State Sponsor of Terrorism;”[3] and ending the U.S. embargo of Cuba.[4] As discussed in an earlier post, the U.S. already has started the process under U.S. law for rescinding the unjustified “State Sponsor of Terrorism” designation, and I anticipate that this summer there will be such a rescission. President Obama already has decided that the embargo should end, but that requires congressional action, and the process for doing just that has commenced and will not be politically easy to accomplish

The issue of compensation, if any, for Cuba for its alleged damages of $1.1 trillion from the embargo, however, is another matter.[5] This is but one of several damage claims that need to be resolved. Others include U.S. compensation to Cuba for the U.S. use of Guantanamo Bay for at least the last 56 years; [6] Cuba’s compensating U.S. interests for expropriation of their property after 1959; and Cuba’s paying a December 1997 default judgment by a U.S. district court for $197 million (plus interest) for the deaths of three of the four pilots in the February 1966 Cuban shooting down of a private “Brothers to the Rescue” plane over international waters.

One way to resolve these claims would be an agreement by the two countries to submit all of these disputes to the Permanent Court of Arbitration at the Hague in the Netherlands, which was established by a multilateral treaty, to which both Cuba and the U.S. are parties. Other ways would be the two countries creating a special claims commission to hear and resolve all of these claims or agreeing to settle all or some of the claims.

Resolving these competing claims, however, has to recognize the economic reality, in my judgment, that Cuba does not have the financial resources to pay any large amount of money. Therefore, compensating U.S. interests for expropriation of their property in Cuba, as I see it, would have to come out of any U.S. compensation of Cuba for its claims.

What do all of these points mean for the timing of full restoration of diplomatic relations? Cuba seems to be saying that ending the embargo and the “State Sponsor of Terrorism” designation have to happen first before restoring full diplomatic relations. In the best of all possible worlds from the U.S. perspective that would be sometime this summer. An agreement on how to resolve the damage claims would be another important accomplishment that should, in my judgment, lead to the restoration of diplomatic relations and perhaps that could happen this year, but the actual resolution of the damage claims would take several years to happen absent a settlement of the claims, which seems unlikely.

In the meantime, the parties could and should agree to a process for the restoring of diplomatic relations.

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[1] Today Senator Robert Menendez (Dem., NJ), a Cuban-American and the Ranking Member on the Senate Foreign Relations Committee, sent a letter to Jacobson, saying “it is imperative” that she demand “unconditional freedom of the [previously released] 53 political prisoners and demand an end to politically motivated arrests of peaceful democracy and human rights activists.” (Emphasis added.) Menendez also urged pressing “Cuba on a commitment to permit visits to all prisons and prisoners by the United Nations and the International Committee of the Red Cross and to begin to demand action on fugitives from U.S. justice and American citizen compensation claims for property nationalized by the Cuban government in past decades.” The U.S., according to Menendez, “must prioritize the interests of American citizens and businesses that have suffered at the hands of the Castro regime before providing additional economic and political concessions to a government that remains hostile to U.S. interests.”

[2] The Washington Post reports that on Friday Jacobson will host a breakfast meeting with Cuban civil society representatives, human rights activists and political dissidents before she returns to Washington.

[3] Prior posts have articulated the statutory process for rescission and why the Designation should be rescinded.

[4] Prior posts have stated why the embargo should be ended, a conclusion also endorsed by New York Times editorial in October 2014.

[5] From my experience as a litigator of business disputes, I anticipate that any such damage claim would be subjected to rigorous examination and rebuttal by the U.S., including the undoubted U.S. argument that all or some of the alleged damages were not caused by the embargo, but rather by Cuban economic ineptitude. Of course, the U.S. would probably argue that the major premise of Cuba’s claim—the illegality of the embargo—is invalid despite the U.N. General Assembly’s condemning the embargo by overwhelming margins for 23 consecutive years. (I have not examined the merits of this legal issue.)

[6] Cuba’s original February 23, 1903, and July 2, 1903, lease of Guantanamo Bay to the U.S. for a naval coaling station called for annual rent of $2,000 in gold coin, but this was changed to $4,085 in U.S. Dollars (the gold equivalent at the time) in a treaty of May 29, 1934. After the Cuban Revolution’s assuming power on January 1, 1959, the Cuban Government has refused to cash all of the U.S. annual checks for that amount except for one that was cashed by mistake. Although the fair market value of the lease for the last 56 years has not been determined, there could be no legitimate argument that it is not substantially in excess of $4,085. Other potential issues are (a) whether the original lease of 1903 and the 1934 amendment are subject to a claim that they are invalid because of alleged duress or undue influence by the U.S. when Cuba was a de facto U.S. protectorate; (b) whether the lease should be terminated with Cuba paying for the improvements made by the U.S.; or (c) whether there should be a new lease of this land to the U.S. under totally different conditions.