Proposed Resolution of U.S.-Cuba Issues

The 60 years of U.S. hostility towards Cuba (with the two-year respite (2014-2016) under President Obama) have left many important unresolved issues.[1] Here is at least a partial list of those issues:

  1. U.S. ending embargo (blockade) of Cuba?
  2. U.S. response to Cuba’s claims for alleged damages from embargo & other acts?
  3. U.S. closing its detention facility at Guantanamo Bay?
  4. U.S. paying Cuba for use of Guantanamo Bay, 1960— ?
  5. U.S. returning Guantanamo Bay to Cuba or entering into new lease of territory?
  6. Cuba paying U.S. persons for expropriated property, 1959-60?
  7. U.S. ending unilateral “democracy promotion” activities in Cuba?
  8. Mutual extradition of the other’s criminal suspects & convicts?
  9. Cuba improving human rights?
  10. U.S. & Cuba resolving responsibility for medical problems of U.S. diplomats in Cuba, 2016-??
  11. U.S. ending or modifying U.S. ban on transactions with certain Cuban entities on the State Department’s “Cuba Restricted List”?
  12. U.S. possible restoration of parole for Cuban medical professionals?
  13. U.S. possible allowance of lawsuits for expropriated Cuban property?
  14. U.S. possible re-designation of Cuba as a “state sponsor of terrorism” due to Cuban military aid to Venezuela?
  15. U.S. possible adoption of other U.S. hostile acts against Cuba proposed by President Trump, National Security Advisor Bolton, Secretary of State Pompeo, Senator Rubio, et al.?

Many of these issues were discussed in the meetings of the two countries in 2015-17 although the substance of the discussions have not been publicly disclosed.

If I were President with a supportive Congress,  I would work for the following comprehensive bilateral resolution:of these issues:

  • U.S. ends embargo (blockade) of Cuba;
  • U.S. ends unilateral “democracy promotion” efforts in Cuba;
  • U.S. closes detention facility at Guantanamo Bay;
  • U.S. pays Cuba for its use of Guantanamo Bay, 1960 to date;
  • U.S. and Cuba enter into new lease of Guantanamo Bay at fair market value rental;
  • U.S. pays Cuba for alleged damages caused by U.S. embargo (blockade);
  • Cuba agrees to pay fair market value, with interest, to U.S. owners of expropriated property (potentially with funds provided by U.S. paying Cuba for past use of Guantanamo Bay; for future use of Guantanamo Bay under new lease; and for alleged damages caused by U.S. embargo (blockade));
  • U.S. abolishes Title III of Helms-Burton Act allowing U.S. owners of expropriated property to sue persons trafficking in property owned by U.S. persons that were expropriated by Cuba (1959-60);
  • U.S. agrees not to reintroduce parole for Cuban professional medical personnel;
  • U.S. agrees not to re-designate Cuba as “state sponsor of terrorism;”
  • U.S. and Cuba enter into new agreement on mutual extraditions;
  • U.S. and Cuba agree on bilateral ways to improve Cuban human rights and Internet access; and
  • U.S. and Cuba resolve issues regarding medical problems of US diplomats in Cuba (2016-??).

The proposal to have the U.S. use some or all of its payments to Cuba for Guantanamo usage and alleged Cuban damages from the embargo for the U.S. to pay for the U.S. claims for Cuba’s expropriations  is based on the painful realization that Cuba does not have the resources to pay for any significant portion of these U.S. claims.

Cuba repeatedly has asserted that the U.S. use of Guantanamo Bay is an illegal occupation and the property should be returned to Cuba. Because of the  U.S. argument to legally have occupied the territory under the 1903 lease and because of U.S. current national security concerns, however, the U.S. would not and should not agree to this Cuban proposal, especially since Cuba is developing closer relationships with Russia and China, which potentially could occupy Guantanamo to enhance their threats to the U.S.

Failure to reach agreement on any of these issues may well result in narrowing the issues, and any unresolved issues should be submitted to a binding international arbitration at the Permanent Court of Arbitration at the Hague in the Netherlands. Based on this blogger’s experience as a corporate litigator in U.S. courts, I note that many cases like the one proposed for arbitration of the Cuban and U.S. claims frequently are settled before they go to trial.

One example of narrowing the issues is Cuba’s recognition with other countries that it has an international legal obligation to pay for expropriated property, which is the major premise of the U.S. claims for expropriated property. That would leave important, subsidiary issues: are the claimants valid owners of the Cuban properties; what were the fair market values of the properties at the time of expropriation; and what is a fair rate of interest on the claims?

I invite anyone with other ideas for a comprehensive bilateral resolution of outstanding issues or objections to my proposed resolution to share them in reasoned comments to this post.

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[1] These issues are discussed in many posts listed in List of Posts to dwkcommentaries—Topical: CUBA.

Canada Reducing Cuba Embassy Staff 

On January 30, the Canadian foreign ministry (Global Affairs Canada) announced that another of its diplomats in Havana had fallen mysteriously ill. [1]

This is the 14th such case.  “To date, no cause has been identified.” As a result, Canada is removing up to half of its embassy staff.

The Canadian statement added, “Canada has a positive and constructive relationship with Cuba. We have had close cooperation with the Cuban authorities since the health concerns of our employees posted in Havana first surfaced in the spring of 2017.”

Cuba’s Ambassador to Canada, Josefina Vidal, said Cuba “understands the obligations of the government of Canada to protect its diplomatic personnel in any part of the world, and to try to find answers to the health symptoms reported in Cuba, [which] remains committed to preserving the good state of relations and expanding its ties with a country to which strong ties of friendship and cooperation unite us.”[2]

Nevertheless, the Cuban Ambassador found the Canadian decision to reduce its Havana Embassy staffing “incomprehensible.”  It does “not help solve or find answers to the health symptoms that diplomats have reported and will have an inevitable impact on the conduct of relations.” Instead, this decision “favors those in the United States who use this issue to attack and discredit Cuba. It is known that individuals with a high responsibility for foreign policy in the United States are committed to provoking a climate of bilateral tension and being able to point Cuba as a threat.”

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[1]  Global Affairs Canada, Statement on health and security of Canadian diplomatic staff in Havana, Cuba (Jan. 30, 2019); Assoc. Press, Canada Cutting Canadian Staff at Cuba Embassy in Half, N.Y. Times (Jan. 30, 2019). Other posts about Canadian diplomats’ illnesses in Cuba may be found in the ” U.S. Diplomats’ Medical Problems in Cuba, 2016-??” section of List of Posts to dwkcommentaries.com–Topical: CUBA.

[2] Josefina Vidal: Decision by the government of Canada to withdraw part of the diplomatic staff favors those in the United States who attack Cuba, CubaDebate (Jan. 31, 2019)

Update on Trump Administration’s Threat To  Allow U.S. Litigation Over Cuba’s Expropriated Property

A prior post reported that the Trump Administration was considering not continuing the waiver of the right of certain owners of Cuban property that was expropriated in 1959-60 to bring litigation in U.S. federal courts.  Here are two updates.

First, Engage Cuba, an U.S. bipartisan coalition supporting normalization of U.S.-Cuba relations, published a strong objection to such a move.[1] Here are the reasons for its objection:

  • “There are 5,913 certified claims of seized American property in Cuba . . . [and] the State Department estimates that a flood of up to 200,000 claims if the suspension [of the right to sue] were ended.”
  • “Property claimants would be more successful in earning compensation through high-level diplomatic engagement, given that foreign companies are unlikely to cooperate.“
  • “Future attempts to encourage legal business with Cuba would be much more difficult . . . [and the authorization of U.S. litigation] would have a chilling effect on the broader effort to continue normalizing relations and could spill into other areas like travel, academic exchange, and research collaboration.”
  • “As U.S companies are not exempt from Title III suits, they could face a slew of lawsuits and would be extremely unlikely to expand operations in Cuba despite their past success on the island.”
  • “Companies based in Europe and Canada are among the top foreign investors in Cuba [and] Canada, the U.K. [and Mexico] all have laws prohibiting their companies from complying with Title III suits . . .[plus the] European Union . . . has indicated it will do [the same] . . . if the law goes into effect. The result could be a retaliatory measure that allows litigation against U.S. companies. These legal tensions could also spill over into other aspects of bilateral relationships with U.S. allies.”
  • “Thousands of U.S. lawsuits against Chinese companies could upset an already delicate trade relationship and provoke retaliation. Meanwhile, the U.S. has already left a vacuum in Cuba for adversarial influence, particularly from Russia and China. As business with U.S. companies becomes less viable for the Cubans, they will increasingly turn to our adversaries, who offer them favorable credit terms and invest in high-profile projects.”
  • U.S. “isolation rarely allows for improvements in human rights, and Cuba is no exception. Strained relations with our allies will only escalate this problem. Without a multilateral effort to hold the Cuban government accountable, the U.S. will have a harder time pushing Cuba toward greater freedom.”

Second, an anonymous Administration source said that it is very likely to act on this  proposal, but limit it to only the 6,000 existing claims and to exempt U.S. companies currently doing business in Cuba. Although this would reduce the harmful effects of such a change, it still is objectionable for the reasons advanced by Engage Cuba.

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[1]   Engage Cuba, Urgent: Trump Administration May Allow Lawsuits for Confiscated Property in Cuba (Jan.—2019).

 

 

 

 

 

 

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U.S. Urges U.N. Security Council To Reject Venezuela’s Maduro and Embrace Guaido

On January 26 the U.N. Security Council met to debate action on the crisis in Venezuela.[1]

U.S. Secretary of State Mike Pompeo, after giving examples of the despair of ordinary Venezuelans, asserted that the U.S. was there “ to urge all nations to support the democratic aspirations of the Venezuelan people as they try to free themselves from former President Maduro’s illegitimate mafia state. . . .The humanitarian situation demands action now; it demands action today.”

As a result, the U.S. “ stands with the Venezuelan people. So far, many other nations have chosen to do the same and they too have recognized the legitimate government of interim President Guaidó. The United States stands proudly with you as we stand together in support of Venezuela. You knew the Venezuelan people did not have a moment to spare.”

After criticizing China and Russia for supporting Maduro, Pompeo said, “But no regime has done more to sustain the nightmarish condition of the Venezuelan people than the regime in Havana. For years, Cuban security and intelligence thugs, invited into Venezuela by Maduro himself and those around him, have sustained this illegitimate rule. They have trained Maduro’s security and intelligence henchmen in Cuba’s own worst practices. Cuba’s interior ministry even provides a former – provides former President Maduro’s personal security. Members of this body often use their microphones here to condemn foreign interference in internal affairs. Let’s be crystal clear: the foreign power meddling in Venezuela today is Cuba. Cuba has directly made matters worse and the United States and our partners are the true friends of the Venezuelan people.” (Emphasis added.)

Elliott Abrams, the new U.S. Special Envoy for Venezuela, following Secretary Pompeo, noted that every criticism [of the U.S.] came from a country that is not democratic. And he accused Venezuela of being a “satellite” of Cuba and Russia. “This is not about foreign intervention in Venezuela,. It is not an attempt to impose a result on the Venezuelan people. Democracy never needs to be imposed. It is tyranny that has to be imposed.”

The ambassadors of Russia and China, both permanent members of the Security Council with veto power, said they considered the political and humanitarian crisis in Venezuela an internal matter and urged the United States to stop meddling. The Russian ambassador said, “If anything represents a threat to peace and security, it is the shameless and aggressive actions of the United States and their allies to oust a legitimately elected president of Venezuela.” The U.S., he said, was trying “to engineer a coup d’etat in Venezuela.”

Venezuelan Foreign Minister Jorge Arreaza then took a personal swipe at Abrams, noting that he had pleaded guilty to lying to Congress about the Reagan administration’s support for contra rebels fighting the government in Nicaragua,

UN Under Secretary-General of Political and Peacebuilding, Rosemary DiCarlo, made a logical, but unpersuasive suggestion: “We must try to help bring about a political solution that will allow the country’s citizens to enjoy peace, prosperity and all their human rights,”  This essentially reiterated the plea earlier in the week by U.N. Secretary-General, Antonio Guterres  urging all parties to “lower tensions and calling for all relevant actors to commit to inclusive and credible political dialogue. Concerned by reports of casualties in the context of demonstrations and unrest in and around the capital Caracas, the UN chief also called for a transparent and independent investigation of those incidents.

The Security Council, however, took no vote on the situation in Venezuela under the threat of vetoes by permanent members Russia and China. This was presaged by the vote to consider the Venezuela crisis: nine in favor (Belgium, Dominican Republic, France, Germany, Kuwait, Peru, Poland, United Kingdom, United States) to four against (China, Equatorial Guinea, Russian Federation, South Africa) with two abstentions (Côte d’Ivoire, Indonesia).

The next day, January 27, U.S. National Security Advisor, John Bolton, tweeted, “ “Any violence and intimidation against U.S. diplomatic personnel, Venezuela’s democratic leader, Juan Guiado (sic), or the National Assembly itself would represent a grave assault on the rule of law and will be met with a significant response,” Bolton also noted Cuba’s support for Venezuelan leader Nicolas Maduro’s paramilitary forces.

Other Commentary[2]

After the Council’s meeting, Cuba Foreign Secretary, Bruno Rodriguez, tweeted, “”I categorically reject slanderous accusations against #Cuba from the US Secretary of State in the Security Council of @ONU_es. His assault on #Venezuela constitutionality, orchestrated from Washington, will fail despite the lies.” Another of his tweets stated, “Secretary of State slanders Cuba to justify a coup against the constitutional power in #Venezuela. Washington designed, financed and managed the alleged usurpation of the Venezuelan Presidency,” The U.S. was doing so “”on the basis of unfounded accusations, false data and masking role of his Government in orchestrating that assault on regional peace. ”

In addition to the above developments,  the U.K. joined the U.S., Germany, France and Spain in backing  Guaidó. The U.K. Foreign Secretary Jeremy Hunt, said, ““After banning opposition candidates, ballot box stuffing and counting irregularities in a deeply-flawed election it is clear Nicolás Maduro is not the legitimate leader of Venezuela.”  Therefore, the U.K. would recognize Guaidó as the legitimate president unless Maduro within the next eight days called for a new election. [3]

Bret Stephens, a conservative columnist for the New York Times, claims that “every sensible observer agrees that Latin America’s once-richest country, sitting atop the world’s largest proven oil reserves, is an economic basket case, a humanitarian disaster, and a dictatorship whose demise cannot come soon enough.” Moreover, he argues, “Twenty years of socialism . . . led to the ruin of a nation.” In short, according to Stephens, “Why does socialism never work? Because, as Margaret Thatcher explained, ‘eventually you run out of other people’s money.’”[4]

All of these developments pose many questions to ponder as we go forward or backward.

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[1]  Brokaw, Pompeo confronts U.N. Security Council on Venezuela, UPI (Jan. 26, 20190; State Dep’t, [{Pompeo] Remarks at United Nations Security Council Meeting on Venezuela (Jan. 26, 2019); U.N., UN political chief  calls for dialogue to ease tensions in Venezuela; Security Council divided over path to end crisis (Jan. 26, 209); Reuters, White House Promises “Significant Response’ to Any Venezuelan Violence, N.Y. Times (Jan. 27, 2019).

[2]  Cuban Foreign Minister rejects accusation by the United States against Cuba, Granma (Jan. 26, 2019); Semple, With Spies and Other Operatives, A Nation Looms Over Venezuela’s Crisis: Cuba, N.Y. Times (Jan. 26, 2019); Baker & Wong, On Venezuela, Rubio Assumes U.S. Role of Ouster in Chief, N.Y. Times (Jan. 26, 2019); Morelio, Pompeo presses U.N. Security Council to ‘pick a side’ in Venezuela’s crisis, Wash. Post (Jan. 26, 2019).

[3] Doward, UK tells Venezuelan president: call fair election or stand down, Guardian (Jan. 26, 2019).

[4] Stephens, Yes, Venezuela Ia a Socialist Catastrophe, N.Y. Times (Jan. 25, 2019).

U.S. Considering Re-Designating Cuba as “State Sponsor of Terrorism” 

According to the Miami Herald, the U.S. is considering re-designating Cuba as a “State Sponsor of Terrorism” if Cuba’s government and military continue to support Nicolás Maduro in Venezuela. A senior U.S. official said,  ”What Cubans are doing in Venezuela is unacceptable,. And the United States is evaluating options to address that behavior.” [1]

This unnamed official added, ““The Cubans are executing a strategy to keep the military from second-guessing their support to Maduro. The only thing that is preventing the generals from supporting President Juan Guaidó is the surveillance Cubans are doing. What is keeping [Nicolas] Maduro going is Cuba’s logistical support.”

Another potential reason for such a re-designation is Cuba’s refusal so far to extradite Colombian leaders of the guerilla group ELN — in Havana for currently suspended peace negotiations —for suspected involvement in. last week’s fatal car bombing in Bogota. The Cuban government, however, condemned the attack, but said it would follow the protocols agreed at the start of peace negotiations in 2017. These provide security guarantees for guerrilla commanders to return to Colombia or Venezuela within 15 days of an end to talks and bar military offensives for 72 hours. [2]

Reactions

This possible re-designation predictably was endorsed by Senator Marco Rubio. He said, “Maduro had ‘bought’ the loyalty of the largely corrupt generals. They are also loyal, by the way, because the Cubans are spying on them. The Cuban intelligence agencies quickly pick up on any of these military officers that are being disloyal or expressing doubts and those guys are arrested. There has been a massive purge of Venezuelan military officers over the last two years … And it wasn’t because of corruption … It was because the Cubans caught them and reported them.”

According to William LeoGrande, a Cuba expert and American University professor, “Putting Cuba back on the list of state sponsors of international terrorism would not have a major practical impact on Cuba because almost all the financial sanctions that such a designation entails are already in place under the broader Cuban embargo. However, Cuba would take it as a great insult, and it would certainly have an extremely negative effect on state-to-state cooperation on issues of mutual interest.”

LeoGrande added, ““The Cuban government certainly recognizes that Maduro’s situation is dire and the worst outcome for Cuba would be complete regime collapse through civil violence or external military intervention. Regime collapse would probably mean an immediate end to Venezuelan oil shipments to Cuba — a blow to [Cuba’s] already fragile economy. Cuba would be willing to help find a negotiated political solution to the Venezuelan crisis . . . but only if both Maduro and the opposition are willing to seek such a solution. At the moment, neither side seems willing to accept any compromise. As a result, the Cubans are essentially stuck with Maduro, even as the chances for his survival diminish.”

Another U.S. expert on Cuba, Ted Henken, a professor at Baruch College, said, “Returning Cuba to the list could be disastrous for the Cuban economy because it would scare away desperately needed foreign investments, already very small.”

Background

The State Department summarizes the statutory requirements for “state sponsor of terrorism” as a state that has been “determined [by the Secretary of State] to have repeatedly provided support for acts of international terrorism.” [3]

The Cuban government was on the list of countries that sponsor terrorism from 1982 until 2015, when the Obama administration ruled the island was no longer supporting terrorist organizations. More specifically, the State Department in April 2015 stated its recommendation to President Obama for rescission “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba. [4]

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[1] Gamez Torres, U.S. considers putting Cuba on terror list over island’s support of Maduro, Miami Herald (Jan. 25, 2019).

[2[ Reuters, Cuba Urges Colombia, ELN Rebels to Follow Peace Talks Protocol, N.Y. times (Jan. 26, 2019).

[3] State Dep’t, State Sponsor of Terrorism. The three statues are section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act.

[4] President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism,” dwkcommentaries.com (April 15, 2015). See also other posts listed in the “Cuba: State Sponsor of Terrorism?” section of List of Posts to dwkcommentaries—Topical (CUBA).

Wall Street Journal Supports U.S. Hostility Towards Cuba’s Links with Venezuela

On January 24 a Wall Street Journal editorial criticized Nicolas Maduro’s record in Venezuela and opined that the “crucial but underreported question now is whether dictator Nicolás Maduro’s protectors in Cuba and Russia will intervene to stop this democratic uprising.” (Emphasis added.) [1]

Cuba, says the editorial, is a key player in this drama because it “controls Mr. Maduro’s personal security detail and has built a counterintelligence network around the high command.” Thus, nations “that want better for Venezuela should focus as much on Havana as Caracas. If civilized countries want to end the starvation and mass migration of Venezuelans, they have to convince the Cuban regime to back off. That means targeting Havana with diplomatic pressure, as well as sanctions such as travel restrictions and frozen bank accounts.” (Emphases added.)

“The U.S. needs to make clear that if Mr. Maduro or his paramilitaries act against Americans, the Administration will hold Cuba responsible.” (Emphasis added.)

This essentially is the same message that Secretary of State Pompeo delivered to the Organization of American States on January 24 as reported in a prior post.

A New York Times’ editorial criticized the Maduro record and welcomed his leaving power, but recognized that “American intervention also carries risk . . . . [and] “[a]ny military intervention [by the U.S.] could prove catastrophic, especially if Russia, the primary arms supplier to Venezuela, stepped in.” The Times, however, had no harsh rhetoric towards Cuba with respect to Venezuela.[2]

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[1] Editorial, Cuba Out of Venezuela (Jan. 24, 2019). See also Editorial, Revolt in Venezuela (Jan. 23, 2019).

[2] Editorial, Venezuela; Between Maduro and a Hard Place, N.Y. Times (Jan. 24, 2019).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Secretary of State Pompeo Criticizes Cuba for Supporting Venezuela’s Maduro     

On January 24 U.S. Secretary of State Mike Pompeo made a lengthy address at the Permanent Council of the Organization of American States denouncing Nicolas Maduro’s reign in Venezuela and defending the U.S. recognition of National Assembly President Juan Guaido as the interim president of Venezuela.[1]

Toward the end of his remarks, Pompeo said the following:

  • “Our support for Venezuela’s democratic hopes and dreams is in sharp contrast to the authoritarian regimes across the globe who have lined up to prop up former President Maduro. And there is no regime which has aided and abetted Maduro’s tyranny like the one in Havana. Maduro’s illegitimate rule was for years sustained by an influx of Cuban security and intelligence officials. They schooled Venezuela’s secret police in the dark arts of torture, repression, and citizen control. Maduro was a fine student at the Cuban academy of oppression.” (Emphasis added.)

Unfortunately this statement is consistent with the Trump Administration’s increasingly harsh rhetoric against Cuba.

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[1] State Dep’t, [Pompeo] Remarks at the Organization of American States (Jan. 24, 2019); OAS, Regular Meeting of the Permanent Council, January 24th, 2019.