U.S. and Cuba Discuss Their Claims Against Each Other

On July 28 and 29, the United States and Cuba met in Washington, D.C. to discuss their claims against each other.[1]

The U.S. State Department’s terse announcement after the first session merely said that the parties exchanged “further details on outstanding claims . . . [that] build upon the previous claims discussion in Havana, Cuba. It also allowed for an exchange of views on historical claims settlement practices and processes going forward.” The “U.S. claims include claims of U.S. nationals that were certified by the Foreign Claims Settlement Commission, claims related to unsatisfied U.S. court judgments against Cuba, and claims of the United States Government. The United States continues to view the resolution of these claims as a top priority for normalization.” The U.S. delegation was led by Brian Egan, the Legal Adviser for the U.S. Department of State. Nothing was said in this announcement regarding Cuba’s claims against the U.S.

The next morning, July 29, an unnamed senior State Department official gave this background briefing on these discussions:

  • The U.S. “began our bilateral claims dialogue with Cuba last December in Havana. . . . Yesterday, we concluded a second meeting with the Cuban Government on claims. . . . in Washington. While at the first meeting the two sides exchanged information on the various claims [of] each side . . ., the second meeting was more substantive in nature, both in exploring more of the details about the claims . . . but also in reviewing the practices of both countries in resolving claims with other countries and how those practices could provide options for resolving these claims. . . .”
  • These claims “include claims of U.S. nationals that were certified by the Foreign Claims Settlement Commission many years ago, claims related to unsatisfied U.S. court judgments against Cuba, and claims of the U.S. Government. The Government of Cuba also provided further details about claims that it has against the United States. . . [relating] to the embargo and to human damages that have been adjudicated by its courts.”
  • The two countries “do not currently have a scheduled meeting [in Havana] for the next round. The U.S. delegation expressed its desire to resolve the claims as quickly as possible, and we indicated that we were willing to dedicate a substantial amount of time and energy towards trying to get to resolution. I think both sides agreed that we would have more regular meetings and that we would continue to pursue this matter in the established diplomatic channels.”
  • “Cuba has resolved outstanding expropriation claims with several countries in the last two decades . . . [although] they were much, much smaller in scope . . . . [The U.S. has] lots of practice in claims settlement involving expropriation claims, involving outstanding court judgments and government-to-government claims. . . . [We] all recognize that the complexity and the scope of [these] . . . claims . . . [and we] will have to . . . draw on all those examples, but that we’ll probably have to figure out something that is unique to this particular claims matter”.
  • For the U.S. claims, there are “claims of U.S. nationals relating to expropriations that date back to the late 1950s and 1960s. Those were adjudicated by the Foreign Claims Settlement Commission in two separate programs, and the total principal of what they negotiated was $1.9 billion. And the Commission then also awarded 6 percent interest on that. So we have indicated that obviously that’s part of it. We also know that in terms of U.S. court [default] judgments, there are approximately $2.2 billion of judgments outstanding against Cuba. That include – that’s compensatory damages and punitive damages . . . . [The] U.S. Government claims are in the hundred to couple hundred millions of dollars and relate to interests that the U.S. Government had in mining interests in Cuba back in the ’50s.”
  • Cuba has “embargo claims and their human damages claims relate to two . . . outstanding judgments . . . against the United States rendered by Cuban courts. The human damages claim – the judgment was for $181 billion. We understand that that number could be higher. And for the economic damages judgment, we understand that that judgment was for $121 billion, but again, that number might be higher. . . . Cuba also has a claim for blocked assets, but there hasn’t really been a solid number . . . , because the amount of blocked assets has fluctuated over time.”
  • The “most traditional type of claim settlement . . . for claims of this nature would be a bilateral agreement that sets out the scope of the claims that are to be resolved with releases for those claims from the other government. Sometimes a lump sum of money is then provided in settlement of the claims.”
  • Some of Cuba’s past “claim settlements have related to “the liquidation of various products that are provided or bonds that are provided. But we’re looking at everything at this point and trying to figure out what might be the most appropriate way forward. . . .”
  • The parties have not yet addressed the impact of the continuing U.S. embargo on Cuba’s claim for alleged economic damages from the embargo.
  • “Traditionally, claims come up in normalization. And obviously, as part of normalization, there are frictions or claims that accrue on both sides. Where there has been a blocking of assets, there have traditionally been claims for actions by the United States to block assets and take those kinds of measures and those kinds of issues have been dealt with in prior claims settlements.”
  • Cuba explained how these [Cuban court default] judgments [against the U.S.] came into place: the Cuban laws that gave rise to the jurisdiction for the courts to hear these kinds of claims. There was a general description of the types of elements that went into the economic damages or the human damages types of claims. But we didn’t hear any specific breakouts of numbers on those categories.”
  • “It’s very, very difficult to say [how long these discussions will take].”
  • There is “nothing about this negotiation that is any different from our experiences in dealing with claims with other countries. . . . We are having very substantive discussions. [B]oth sides seem to agree that we need to have more regular meetings. . . . [and] are committed to try to resolve this in a mutually satisfactory manner, drawing on the experiences of claims resolution by both governments.”
  • We have not heard . . . [any] unwillingness to settle claims. [The discussions have been positive.]”

Other sources provide some additional details. Cuba claims the U.S. owes billions in damages resulting from events such as the Bay of Pigs invasion (176 deaths and more than 300 Cubans wounded), the 1976 bombing of Cubana de Aviacion flight 455 that killed all 73 passengers and other deadly U.S.-sponsored incursions on the island. Cuba also mentioned Cuban court default judgments in which the U.S. was found liable for $181 billion of human damages and economic damages.

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[1] U.S. State Dep’t, United States and Cuba Hold Claims Discussion (July 28, 2016); U.S. State Dep’t, Senior State Department Official on Cuba Claims Discussions (July 29, 2016); Whitefield, U.S. and Cuba agree to meet more to expedite claims process, InCubaToday (July 29, 2016); Reuters, U.S., Cuba Hold ‘Substantive’ Second Round Talk on Claims, N.Y. Times (July 29, 2016); Held second meeting on Cuba-US trade-offs, CubaDebate (July 28, 2016). This blog has discussed these claims and how they might be resolved. See “U.S. & Cuba Damages Claims” in List of Posts to dwkcommentaries—Topical: Cuba.

 

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

3 thoughts on “U.S. and Cuba Discuss Their Claims Against Each Other”

  1. Cuba Says Claims Discussions with U.S. Will Not Proceed Quickly

    On August 1 Cuba said it was not willing to rush talks with the United States over multibillion-dollar claims and counter-claims and would agree only to an accord that addressed the grievances of both sides.
    This statement undoubtedly was a reaction to a U.S. State Department comment that the U.S. wanted to resolve the issue as quickly as possible and the two sides had agreed to hold more regular meetings. [1]

    Cuban Deputy Foreign Minister Abelardo Moreno told reporters in Havana this likely was an “aspiration” of the State Department, given that there had been no actual agreement on future meetings.
    Moreno said that for now the talks with the U.S. are “informative,” and the parties are seeking to find a methodology to address the problem and have not yet discussed details of any agreement or its scope.

    Moreno distinguished Cuba’s successful negotiation of claims by Canada and five European countries over Cuba’s expropriation of property from the more complex issues to be resolved with the U.S. because of Cuba’s large claims for damages allegedly caused by the U.S. embargo.

    The amounts of Cuba’s damage claims, he said, were not negotiable because they were established by Cuban courts. This, in my opinion, is an unreasonable position because the U.S. did not appear in Cuban courts to defend those cases, and, therefore, the Cuban court judgments were entered by default without any rebuttal. Similarly one of the unresolved U.S. claims is a collection of default judgments entered by U.S. courts against Cuba. They too do not establish non-negotiable amounts, in my opinion, for the same reason.
    =====================================================================

    [1] Elizalde & Francisco, Abelardo Moreno on compensation Cuba-US: Only’re talking (+ audio and Photos, CubaDebate (Aug. 1, 2016), http://www.cubadebate.cu/noticias/2016/08/01/abelardo-moreno-solo-estamos-conversando-sobre-las-compensaciones-mutuas-cuba-eeuu/#.V6CcH5MrLj0;

    Paseiro, Trade-offs, complex issue between Cuba and the United States, Granma (Aug. 1, 2016), http://www.granma.cu/relaciones-diplomaticas-cuba-eeuu/2016-08-01/compensaciones-mutuas-complejo-tema-entre-cuba-y-estados-unidos-01-08-2016-22-08-15;

    Reuters, Cuba Says Talks With U.S. Over Claims Cannot Be Rushed, N.Y. Times (Aug. 1, 2016), http://www.nytimes.com/reuters/2016/08/01/business/01reuters-cuba-usa.html;

    Assoc. Press (Rodriguez), Tradeoffs between Cuba and the United States are hampered by sanctions, Wash. Post (Aug. 1, 2016), https://www.washingtonpost.com/eltiempolatino/compensaciones-entre-cuba-y-eeuu-se-dificultan-por-sanciones/2016/08/01/0e786170-5826-11e6-8b48-0cb344221131_story.html.

  2. Reactions to Cuban Statement that Claims Discussions with U.S. Will Not Go Quickly

    Jason Poblete, a lawyer who specializes in Cuba claims in Washington D.C., said that the U.S.-Cuba discussions about their respective claims “are negotiations, because they’re sitting at a table and talking about the issue,” but that the recent statements by Cuba’s Deputy Foreign Minister “point to a decision by Cuba to delay the process.” According to Poblete, the Cuban government may be waiting to see if the U.S. president elected in November “will offer them something better.” The delays also would maintain the status quo until 2018, when Cuban ruler Raúl Castro has said he will surrender the presidency.

    Poblete also thought the Cuban official’s comments could be “an indirect message that they are not interested in solving this issue. . . . [P]erhaps they want to win the elimination of all sanctions before they pay” compensation” to the U.S. If, however, “the Cubans [really] are interested in having the U.S. sanctions removed [as soon as possible], they would pay the claims, which would help the groups in Washington that are pushing for the elimination of sanctions.”

    John Kavulich, director of the US-Cuba Trade and Economic Council believes any Cuban delaying strategy would be unwise for Cuba. “Cuba will never have a more compliant negotiating partner than it does in the Obama Administration.” Kavulich also believes the Cuban government needs to recognize that there will be no specific monetary reparations from the U.S. side.

    Kavulich also wondered whether the Obama Administration views the compensation issue as a priority. The U.S. “claimants have not seen the effort they deserve.”
    ===================================================================
    Torres, Cuba denies it’s negotiating with U.S. on compensation claims, InCubatoday (Aug. 5, 2016), http://www.incubatoday.com/news/article93921267.html

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