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.