Three partners in Washington, D.C. offices of major law firms expect little change in U.S. policies regarding Cuba.[1]
Harry Clark, a partner at Orrick Herrington & Sutcliffe LLP and chair of the firm’s international trade and compliance group, sees “the new administration leaving things where they are, by and large. It could roll back some liberalization, and I wouldn’t be surprised if it does so in incremental ways. But the political factors of keeping a harder-line sanctions policy on Cuba is often over-estimated. There won’t be a lot of political cost for sort of keeping things where they are. The fact that Fidel Castro has died made it less likely that there will be a dramatic re-imposition of sanctions.”
“The fact is, we still have an embargo on Cuba. The liberalization hasn’t been that far-reaching. There isn’t a lot of business you can do in Cuba; you can see the changes more in licensing policy. The current administration has adopted a relatively forgiving licensing policy, where it has been willing to license some activity forbidden by the embargo. I can see the administration not changing the rule very much, but they won’t be nearly as willing to give out licenses.”
Adam M. Smith, an attorney at Gibson Dunn & Crutcher LLP who previously served as a senior adviser at the U.S. Treasury Department’s Office of Foreign Assets Control, said, “Before the death of Fidel, there was already a low likelihood [Trump would] . . . change the reality. The downside is too great and the upside is unclear. Companies have invested significant money there. Rollback is now a no-go, because of the clear downside to the companies that have already invested. Now that Fidel has died, Raul is trying to establish his authority in the absence of his brother. There could be an argument to reduce some [U.S.] relief if the [Cuban] human rights situation gets worse. But there are few concerns about the geopolitics here [in Washington].”
Richard L. Matheny, III, a partner at the law firm Goodwin and the head of its National Security & Foreign Trade Regulation Practice, referred to Trump’s stated approach of seeking to make a “better deal” with Cuba. “Ultimately, it may matter little what this means substantively, because I don’t think Trump cares much for substance, so long as Trump is able to sell it as evidence of his alleged deal-making ability.” Moreover, there is
Substantial “momentum within the U.S. business community to build economic ties with Cuba . . . and will ultimately win out; we might not take steps forward on Cuba, but I don’t think we’ll go backwards either.”
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[1] Rubenfeld, Trump Will Continue Using Behavioral Sanctions, Unlikely to Change Cuba Very Much, W.S.J. (Jan. 6, 2017).
Another Expert Believes Trump Administration Will Find Good U.S. Deals with Cuba
Jorge Dominguez, Harvard University’s Antonio Madero Professor for the Study of Mexico, has argued that the U.S. and Cuba already have reached many agreements “under Mr. Trump’s three predecessors, [that] serve both the interests of the [U.S.] and Cuba as well as the presumed Trump presidential agenda. Reversing or scaling back such agreements, as Mr. Trump has threatened to do, will make it more difficult for him to fulfill that agenda.”
These existing “agreements between the two countries make it easier for them to cooperate on hurricane tracking and biodiversity protection, share information on pollution and undertake joint maritime geological exploration, . . . protect migratory birds and fish, . . .work together on cancer research . . . and on the prevention and cure of infectious diseases, including combating the Zika epidemic.”
The two countries also have long cooperated on security matters, on drug traffic interdiction and on preventing undocumented migration. Indeed, “Cuba long ago adopted the Trump-preferred migration policy: seek to stop the departure and accept the return of undocumented migrants.”
Moreover, the Obama Administration’s “liberalized rules on sending money transfers to Cuba,” thereby increasing the amounts of such transfers and informally financing “the re-emergence of a Cuban private business sector. The number of small- business licenses now exceeds a half-million in a country of 11.2 million people. [In short, these money] transfers from the [U.S.] fund a Cuban civil society independent of the state for the first time in a half-century.” This development obviously is in the interests of the U.S.
Should there be a need for additional agreements, a “deal-making Trump presidency will find a deal-honoring Raúl Castro presidency.”
Dominguez, Can Donald Trump and Raúl Castro Make a Good Deal?, N.Y. Times (Jan. 10, 2017) https://www.nytimes.com/2017/01/10/opinion/can-donald-trump-and-raul-castro-make-a-good-deal.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0