Cuba Pays $60 Million of Indebtedness to Major Creditor Nations     

The week of October 15 Cuba paid $60 million of indebtiness to 14 wealthy creditor nations. Last year Cuba paid $40 million to the same group. The total debt is $2.6 billion after the creditors in 2015 forgave $8.5 billion of $11.1 billion upon which Cuba had defaulted through 1986 plus charges.[1]

These creditor nations known as the Club of Paris are the following: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland and the United Kingdom.

Under the 2015 agreement, Cuba agreed for the first time to grant the creditors equity in development projects, in areas like manufacturing and agriculture, in exchange for a portion of their debt holdings. Many of these restructuring agreements include the establishment of so-called counter-value funds, under which a percentage of debt is discounted in exchange for the potential profits stemming from participation by a creditor country’s firms in Cuba joint-development projects.

The counter-value funds have an estimated combined value of around $750 million of the $2.6 billion owed. Japan, Spain, France and Italy – Cuba’s largest Paris Club creditors – are furthest along in negotiating swaps.

  • For example, a $46 million French project to develop cattle ranching and dairy products in central Camaguey province is ready to sign, according to France’s ambassador to Cuba, Jean-Marie Bruno.
  • Another example is Spain which has a project ready to manufacture cardboard and another aluminium structures for construction capable of resisting earthquakes and hurricanes, both involving Spanish companies.

This access to Cuban development projects gives the European countries and companies an advantage over U.S. companies who are banned by various U.S. laws from such projects.

This payment happened during dire economic times for Cuba due to the political and economic crisis in its ally Venezuela, declines in Cuban exports and tourism due, in part, to the damages caused by Hurricane Irma.

Cuba’s payment in these circumstances showed the importance Cuba attaches to the 2015 agreement with this group of major creditor nations.

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[1] Reuters, Cash-Strapped Cuba Makes Debt Payment to Major Creditors-Diplomats, N.Y. Times (Oct. 18, 2017); Chow, Cuba Reaches Deal to Pay $2.6 Billion in Arrears to Paris Club, W.S.J. (Dec. 12, 2015); Paris Club, Agreement on the Debt Between Cuba and the Group of Creditors of Cuba (Dec. 12, 2015).

Medical ‘Incidents’ Affecting U.S. Diplomats in Cuba Prompt U.S. To Reduce Staff at Havana Embassy and Urge Americans Not To Travel to Cuba

On September 29, following a week of news about the subject, U.S. Secretary of State Rex Tillerson issued a statement, “Actions Taken in Response to Attacks on U.S. Government Personnel in Cuba.”[1]

The Secretary’s Statement[2]

The Statement, after reviewing the “variety of injuries from attacks of an unknown nature” to 21 U.S. Embassy employees, asserted that on September 29, “the Department ordered the departure of non-emergency personnel assigned to the U.S. Embassy in Havana, as well as all family members. Until the Government of Cuba can ensure the safety of our diplomats in Cuba, our Embassy will be reduced to emergency personnel in order to minimize the number of diplomats at risk of exposure to harm.”

The Statement added that the “decision to reduce our diplomatic presence in Havana was made to ensure the safety of our personnel. We maintain diplomatic relations with Cuba, and our work in Cuba continues to be guided by the national security and foreign policy interests of the United States. Cuba has told us it will continue to investigate these attacks and we will continue to cooperate with them in this effort.”

Simultaneously the Department “issued a Travel Warning advising U.S. citizens to avoid travel to Cuba and informing them of our decision to draw down our diplomatic staff. We have no reports that private U.S. citizens have been affected, but the attacks are known to have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens.”

These action s were taken even though the ”Department does not have definitive answers on the cause or source of the attacks and is unable to recommend a means to mitigate exposure.”

This Statement was preceded by news reports that the U.S. would begin withdrawing roughly 60% of its staff from the Embassy and diplomats’ families. This was not seen as punishment for the Cuban government, but a means of protecting diplomats and their families from the strange attacks. On September 28, Heather Nauert said the Secretary was reviewing all options on “how to best protect our American personnel’ in Cuba. As a result, the U.S. will stop processing Cuban requests for visas at the Embassy.” [3]

Just prior to the issuance of this Statement, the Department held a press conference on that subject.[4] The following additional points were made:

  • “Until the Government of Cuba can assure the safety of U.S. Government personnel in Cuba, our embassy will be reduced to emergency personnel so as to minimize the number of U.S. Government personnel at risk of exposure. The remaining personnel will carry out core diplomatic and consular functions, including providing emergency assistance to U.S. citizens in Cuba. Routine visa operations are suspended indefinitely. Short-term travel by U.S. Government officials to Cuba will also be limited to those involved with the ongoing investigation or who have a need to travel related to the U.S. national security or crucial embassy operations. The United States will not send official delegations to Cuba or conduct bilateral meetings in Cuba for the time being. Meetings may continue in the United States.”
  • “The governments of the United States and Cuba have not yet identified the responsible party, but the Government of Cuba is responsible for taking all appropriate steps to prevent attacks on our diplomatic personnel in Cuba.”
  • The Department has “not ruled out the possibility of a third country as a part of the investigation, but that investigation continues.”
  • The “cooperation that the Cuban Government has given to our efforts to understand what is happening in these attacks to [has] been ongoing, and we expect it to continue.”
  • “The ordered departure will result in more than half of the embassy footprint being reduced.”
  • The Department does not “know the means, the methods, or how these attacks are being carried out, and so I could not characterize them as having stopped in August.”
  • “The staff who were affected at hotels were temporary duty staff at the embassy.”
  • The Department is not “aware of any incidents involving [our Cuban staff at the embassy] or attacks involving them.”
  • The U.S. “investigation continues, but at this moment we don’t have definitive answers on the source or cause of the attacks. And so, I really can’t speculate on engagement or not by Cubans or other parties. The investigation’s ongoing and we will see where the facts lead us in terms of cause or source.”

Reactions to the Statement[5]

Before the issuance of the Statement, the president of the American Foreign Service Association, which is the union representing U.S. diplomats, opposed the then threatened withdrawal of staff from the Havana embassy. He said, “We have a mission to do. AFSA’s view is that American diplomats need to remain on the field and in the game. We’re used to operating with serious health risks in many environments, whether it’s parasites that rip up our guts in Africa, exposure to Zika virus and dengue fever, or air pollution in China and India,”

Immediately afterwards, Senator Patrick Leahy (Dem., VT) said, “”Whoever is doing this obviously is trying to disrupt the normalization process between the United States and Cuba. Someone or some government is trying to reverse that process. . . .We must do all we can do solve this mystery so that our embassy personnel can safely return as quickly as possible.” Representative James McGovern (Dem., MA) had a similar reaction:  the drawdown will make it “harder for Cuban and American families to travel and visit loved ones” and “America cannot afford a return to the failed Cold War isolationist policies that divided families for 50 years.”

Senator Marco Rubio (Rep., FL) did not express agreement or disagreement with the Statement, but instead said these actions did not go far enough. He initially tweeted, “”Shameful that @StateDept withdraws most staff from @USEmbCuba but Castro can keep as many as he wants in U.S.” In a subsequent longer statement, he said, “it is weak, unacceptable and outrageous for the U.S. State Department to allow Raul Castro to keep as many of his operatives in the U.S. as he wants. The Cuban government has failed its obligation under international treaties to keep foreign diplomats safe on its soil. The idea that Cuba knows nothing about how these attacks took place and who perpetrated them is absurd.  . . . Until those responsible for these attacks are brought to justice, the U.S. should immediately expel an equal number of Cuban operatives, downgrade the U.S. embassy in Havana to an interests section, and consider relisting Cuba as a state sponsor of terrorism.”

President Trump, ignoring the Department’s continued refusal to blame Cuba, did just that in a brief comment about the Statement when he said, Cuba “did some bad things in Cuba.”

Michael Bustamante, an assistant professor of Latin American history at Florida International University, thought the U.S. decision for the Embassy to cease processing Cuban applications for visas to emigrate to the U.S. might violate its agreement with Cuba from the 1990s to issue 20,000 such visas a year if there is no third-country workaround for those visa applications,

The new U.S. travel warning against Americans traveling to the island did not scare tour companies, airlines, cruise ship operators and others in the travel industry. Many have said they will continue taking Americans to Cuba. Greg Geronemus, CEO of SmarTours, said, “We continue to believe that Cuba is a safe destination for our travelers, and we will be running our tours until our assessment changes. . . . . [The] experience that our travelers have had on the ground with the Cuban people has been nothing short of amazing. We have no reason to expect that these experiences will not continue.” Airbnb spokesman Nick Papas, said that “consistent with U.S. law, our operations in Cuba will continue.”

Canada also has had some of its diplomats in Havana experience similar medical problems, but its Foreign Ministry said, “We continue to monitor the situation closely and we have no plans to travel advice or remove any staff.”

Josefina Vidal, a senior Cuban diplomat who was in charge of U.S. relations until this year, called Washington’s reaction “hasty” and warned that it would “affect the bilateral relations, specifically the cooperation in matters of mutual interest.” But she said Cuba was committed to determining the cause of the symptoms experienced by the American diplomats.”

For ordinary Cubans, the Statement “stirred anxiety and dread.” The ban on Americans traveling to the island “dealt a harsh blow to Cubans who had hoped the nascent normalization of relations with the United States that began in late 2014 would usher in a period of economic growth and greater prosperity in the impoverished Communist nation.” In addition, the “decision to stop issuing visas in Havana indefinitely leaves thousands of Cubans in limbo. Washington typically grants 20,000 immigrant visas a year to reunite Cubans with relatives in the United States, and thousands more to enable students, academics and tourists to travel.” Harold Cárdenas, a popular Cuban blogger who recently started a master’s degree program in international relations at Columbia University, said, “The most immediate is it will perpetuate estrangement, not just political, but physical. There will be a price, and it will be paid by Cuban families.”

Secretary of State’s Prior Meeting with Cuba’s Foreign Minister[6]

Late afternoon on September 26, at Cuba’s request, U.S. Secretary of State Tillerson met with Cuba’s Foreign Minister Bruno Rodriguez at the State Department to discuss issues relating to the medical problems of U.S. diplomats stationed in Cuba.

Afterwards the State Department said the conversation was “firm and frank” and that Tillerson raised “profound concern” about the diplomats’ safety and security. State Department spokeswoman Heather Neuter emphasized that Tillerson conveyed how serious the situation is and emphasized that Cuba is obligated under international law to protect foreign diplomats.

The Cuban Foreign Ministry’s lengthy post-meeting statement was the following:

  • The “Foreign Minister reiterated the seriousness, celerity and professionalism with which the Cuban authorities have taken on this issue. Following instructions from the top level of the Cuban government, a priority investigation was opened . . . [immediately after] these incidents were first reported and additional measures were adopted to protect the US diplomats and their relatives. This has been recognized by the representatives of the US specialized agencies who have travelled to Cuba as from June, whose visits have been considered as positive by the Cuban counterparts.”
  • He “reiterated . . . how important it was for the US authorities to cooperate, in an effective way, with the Cuban authorities in order to clarify these incidents, which are unprecedented in Cuba.”
  • He [also] “reaffirmed . . . that the decision and the argument claimed by the US Government to withdraw two Cuban diplomats from Washington were unwarranted and emphasized that Cuba strictly abides by its obligations under the Vienna Convention on the protection and integrity of diplomats, an area in which it keeps an impeccable record.
  • “He reaffirmed that the Cuban government has never perpetrated nor will it ever perpetrate attacks of any kind against diplomats. The Cuban government has never permitted nor will it ever permit the use of its territory by third parties for this purpose.”
  • He “stated that according to the preliminary results obtained by the Cuban authorities in their investigations, which have borne in mind the information given by the US authorities, there is no evidence so far of the cause or the origin of the health disorders reported by the US diplomats.”
  • “The Foreign Minister reaffirmed that the investigation to resolve this matter is still in progress and that Cuba has a keen interest in bringing it to closure, for which it is essential to count on the effective cooperation of the US authorities. He also stated that it would be regrettable that a matter of this nature is politicized and that hasty decisions not supported by conclusive evidence and investigation results are taken.”
  • Finally, “the Minister reiterated the willingness of Cuba to continue holding the bilateral dialogue on areas of common interest, based on respect and sovereign equality, despite the profound differences that exist between the two countries. “(Emphases added.)

Earlier that same day U.S. Deputy Secretary of State John J. Sullivan told the House Foreign Affairs Committee “that it was a reasonable suspicion that Cuban authorities either were involved in the incidents or at least knew they were occurring . . . [since] Cuba keeps tight surveillance on American diplomats in the country and would be likely to know if something significant were happening to them.” However, he also admitted that with so much unknown, even that assumption is less than certain “and “as a U.S. government official, I don’t know that.”[7]

Suggested U.S. Responses to the “Attacks” on Diplomats in Cuba[8]

Although perhaps superseded by the previously mentioned Secretary’s Statement, an earlier editorial in the Wall Street Journal proposed that until Cuba offers a persuasive explanation of how these incidents occurred without Cuban collaboration, the U.S. should expel 19 Cuban diplomats from its embassy in Washington, D.C., which with the previous U.S. expulsions of two Cubans would equal the 21 Americans attacked in Cuba. If such a persuasive explanation is provided, then the Cuban diplomats could return to their posts. The Journal, however, is skeptical of such an explanation being provided in light of what it says is Cuba’s “long record of harassing U.S. government employees on the island.”

A more aggressive response suggestion has been offered by the Foundation for Human Rights in Cuba (FHRC), a U.S. 501(c)3 nonprofit organization established in 1992 to promote a nonviolent transition to a free and democratic Cuba with zero tolerance for human rights violations. It asserted the following:

  • “The unacceptability of the thesis that the perpetrator was a third party. In the circumstances of comprehensive surveillance (visual, physical, digital, phone, microphones) to which these diplomats are subject 24 by 7, it is impossible for third players to act in independent and undetected fashion for over nine months and in more than two dozen locations such as residences and hotel rooms.”
  • The unacceptability that these facts are diluted, minimized, and silenced by the Department of State and/or any other U.S. agency participating in this investigation.T
  • The unacceptability to allow the perpetrator to escape the scandal as well its political, diplomatic and financial consequences.
  • The unacceptability of diluting the legal responsibility of the perpetrator so that victims could not be compensated nor the truth identified.

Other News[9]

There has been other recent news regarding these issues.

First, a Miami television station reported that at least four additional U.S. diplomats who served in Cuba have been hurt by sonic attacks and that these incidents occurred inside the U.S. Embassy and at several Havana hotels, including the famous Hotel Nacional. This brings the total affected individuals to 25. (Presumably, under the Wall Street Journal’s rationale, if there is confirmation that 25 Americans who have been affected, there would be 23 additional Cubans expelled.)  However, the Miami Herald said that according to an unnamed State Department source, there are only 21 confirmed cases, not 25, and none of the attacks occurred at the U.S. Embassy; the same, more authoritative, message was provided at the previously mentioned September 29 press briefing.

Second, according to CNN, a senior U.S. official said that some of the 21 individuals previously counted as subjects of such attacks were targeted at least 50 times.

Third, an independent Cuban news outlet, Diario de Cuba, reports that among the Canadians similarly affected while serving in Cuba are “several children” from “more than five families of Canadian diplomats.”

 Conclusion

These medical “incidents” are deeply disturbing, and the U.S. and Cuba need to determine the cause(s) and perpetrator(s). The good news is that the U.S. is not rushing to judgment, that in the near term the U.S. is taking reasonable steps to protect its diplomats and families and that the U.S. and Cuba maintain diplomatic relations and are cooperating on these issues and other matters.

The new Travel Warning, however, goes too far when it starts, “The Department of State warns U.S. citizens not to travel to Cuba” and then admits that the “attacks” to date have been on “U.S. Embassy employees” and “have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens.” Moreover, as discussed in prior blog posts, the small number of hotels to date have all been in Havana that have been used by U.S. Embassy employees on a short-term basis and U.S. citizens who are not connected with the Embassy have not been subjects of any of these “attacks.” As a result, the new Travel Warning should have made these facts clear and at most cautioned U.S. citizens about using certain Havana hotels while also telling them that many Cuban citizens are making their Havana homes available to foreign guests and that there have been no problems associated with the many other cities and towns on the island.

For those of us favoring continuation of the process of normalizing relations between the two countries, we must continue to oppose requests for the U.S. to take various actions against Cuba, including closure of the U.S. Embassy in Havana, all before there is a well-documented conclusion to the ongoing U.S. and Cuban investigations of this mystery.

Similarly, for the same reason we must oppose the suggestion from Senator Rubio, the Wall Street Journal and any others to expel Cuban diplomats equal to the number of U.S. diplomats affected by the “sonic attacks” or whatever else has caused medical problems.

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[1]  This blog has published the following posts about these issues: U.S. and Cuba Have Diplomatic Dispute (Aug. 10, 2017); Another State Department Briefing Regarding Cuban Diplomatic Dispute (Aug. 10, 2017); Update on U.S.-Cuba Diplomatic dispute Over Health Conditions of U.S. Diplomats Stationed in Cuba (Aug. 23, 2017); At least 16 U.S. Diplomats Who Had Served in Cuba Have Medical Problems (Aug. 24, 2017) (comment to 8/24/17 post); Washington Post Editorial Blames Cuba for Americans Medical Problems in Cuba (Aug. 25, 2017) (comment to 8/24/17 post);  News About Cuba-Related Medical Problems from Canada and London (Aug. 26, 2017); In August, New Cases of Injured U.S. Diplomats in Cuba (Sept. 2, 2017); Two More U.S. Diplomats Serving in Cuba Have Medical Problems (Sept. 13, 2017); More Mystery Surrounding “Medical Attacks” on U.S. Diplomats in Cuba Sept. 14, 2017); GOP Senators Ask Administration To Take Actions Against Cuba Over U.S. Diplomats (Sept. 16, 2017); U.S. Evaluating Whether To Close U.S. Embassy in Cuba (Sept, 18, 2017); Developments Regarding U.S. Diplomats in Cuba (Sept. 20, 2017).

[2]  Tillerson, Actions Taken in Response to Attacks on U.S. Government Personnel in Cuba (Sept. 29, 2017); U.S. State Dep’t, Cuba Travel Warning (Sept. 29, 2017); Reuters, U.S. Cuts Staff from Cuba Over Mysterious Injuries, Warns Travelers, N.Y. Times (Sept. 29, 2017); Assoc. Press, US Slashes Cuba Embassy Staff, Warns Americans Not to Visit, N.Y. Times (Sept. 29, 2017).

[3]  Ordonez & Kumar, U.S. does not believe Cuba is behind sonic attacks on American diplomats, Miami Herald (Sept 26, 2017)

[4] Dep’t of State, Senior State Department Officials on Cuba (Sept. 29, 2017).

[5]  Hudson, Trump’s Thinking About Pulling US Personnel from Cuba. US Diplomats that That’s A Bad Idea, BuzzFeedNEWS (Sept. 28, 2017); Leahy, Leahy REAX On The U.S. Withdrawal of Most U.S. Embassy Personnel And Their Families From CUBA (Sept. 29, 2017); U.S. Rep. McGovern Statement on U.S. Embassy in Cuba, Travel Warning to Cuba (Sept. 29, 2017); Assoc. Press, The Latest: Democrat derides Cuba decision as overreaction, Wash. Post (Sept. 29, 2017); Harpaz & Gomez, Travel industry sticking with trips to Cuba from US, Wash. Post (Sept.29, 2017); Rubio: State Department’s Response to Cuba Attacks ‘Weak, Unacceptable and Outrageous,’ (Sept. 29, 2017); White House, Remarks by President Trump in Press Gaggle Before Marine One Departure (Sept. 29, 2017); Reuters, Trump Says Cuba ‘Did Some Bad Things’ Aimed at U.S. Diplomats, N.Y. Times (Sept. 29, 2017); Reuters, Canada Says Has No Plans to Remove Embassy Staff from Cuba, N.Y.  Times (Sept. 29, 2017); Cuba Foreign Ministry, Statement to the press by General Director for US Affairs, Josefina Vidal Ferreiro (Sept. 29, 2017); Londońo, Cubans Alarmed at U.S. Embassy Withdrawals and Travel Warning, N.Y. Times (Sept. 29, 2017); Reuters, Cubans Are Heartbroken, Angry Can’t Seek U.S. Visas in Havana, N.Y. Times (Sept. 29, 2017); Reuters, Canada Says Has No Plans to Remove Embassy Staff From Cuba, N.Y. Times (Sept. 29, 2017).

[6] Reuters, Tillerson to Meet Cuba’s Foreign Minister in Washington as Tensions Climb, N.Y. Times (Sept. 26, 2017); Assoc. Press, The Latest: Cuba Says No Clues Yet to Who Attacked Diplomats, N.Y. Times (Sept. 27, 2017); Reuters, Cuba Warns U.S. Against Hasty Decisions in Mysterious Diplomats Case, N.Y. Times (Sept. 27, 2017); Cuban Foreign Ministry, Cuba Foreign Minister meets with US Secretary of State (Sept. 26, 2017).

[7] Id. The Under Secretary’s direct testimony concerned the redesign of the State Department and U.S. Agency for International Development (USAID). (Dep’t of State, John J. Sullivan: Testimony Before the House Committee on Foreign Affairs, Sept. 26, 2017.

[8] Editorial, Cuba’s Sonic Attacks, W.S.J. (Sept. 25, 2017); FHRC, The responsibility for What Happened to U.S. Diplomats in Cuba (Sept 2017).

[9] Vela, Total number of Americans hurt in Cuba sonic attacks now at 25, Miami Television Channel 10 News (Sept. 25, 2017); Operand & Labatt, US diplomats, families in Cuba targeted nearly 50 times by sonic attacks, says US official, CNN (Sept. 24, 2017); There are children among Canadians affected by the so-called ‘acoustic attacks,’ Diario de Cuba (Sept. 28, 2017).

 

 

 

Update on U.S.-Cuba Diplomatic Dispute Over Health Conditions of U.S. Diplomats Stationed in Cuba  

Previous posts have discussed the recent emergence of a U.S.-Cuba diplomatic dispute over hearing problems of U.S. diplomats.[1] Here is an update on that dispute.

The only news about the conditions of those affected was an August 23 report by CBS News, which had reviewed the medical records of certain U.S. diplomats who had been stationed in Cuba. CBS reported that their doctor had diagnosed them with conditions as serious as mild traumatic brain injury and damage to the central nervous system. The U.S. State Department, however, said that it did not yet have “definitive answers” on the source or cause of the incidents and that the investigation into these matters was “ongoing.” The Department also stated, “We remain in regular contact with the Cuban government to emphasize that we take these incidents very seriously and to resolve this matter in a satisfactory manner.”[2]

Earlier, on August 11, Secretary of State Tillerson said that some of the U.S. diplomats stationed in Havana had been victims of “health attacks” that the U.S. has “not been able to determine who’s to blame” and that the U.S. held “the Cuban authorities responsible for finding out who is carrying out these health attacks on not just our diplomats but, as you’ve seen now, there are other cases with other diplomats [Canadians] involved.”[3]

John Caulfield, the head of the U.S. Interests Section in Cuba from 2011 to 2014 said U.S. diplomats in Cuba are under 24-hour surveillance during their assignments. “Nobody does anything in Cuba without them knowing.” However, he added that such aggressive tactics largely stopped by late 2013 and 2014 as U.S. and Cuban officials secretly negotiated the diplomatic reopening announced in December 2014, after his departure from Havana. He believes that the likeliest explanation for the diplomats’ mysterious deafness was “a new surveillance technique gone bad that had consequences. I do not believe they would randomly cause harm to this variety of people.”

At least six of the affected U.S. diplomats were flown to the University of Miami Hospital where they received treatment and this August a Hospital specialist went to Havana to examine others who work at the embassy, because officials expect that more people were affected.[4]

The State Department Press Briefing on August 23 touched on this dispute, but did not add any new information.

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[1] U.S. and Cuba Have Diplomatic Dispute, dwkcommentaires (Aug. 10, 2017); Another State Department Briefing Regarding Cuban Diplomatic Dispute, dwkcommentaries (Aug. 10, 2017).

[2]  Some U.S. diplomats in Cuba diagnosed with serious health conditions, medical records show, CBS News (Aug. 23, 2017); Reuters, Cuba ‘Incidents’ Caused Brain Injury, Nerve Damage to Diplomats: CBS News, N.Y. Times (Aug. 23, 2017).

[3] Assoc. Press, Tillerson Says Diplomats in Havana Suffered ‘Health Attacks,” N.Y. Times (Aug. 12, 2017).

[4] Robles & Semple, ‘Health Attacks’ on U.S. Diplomats in Cuba Baffle Both Countries, N.Y. Times (Aug. 11, 2017); Robles & Semple, Diplomats under ‘health attack in Cuba were treated by Miami doctors, Miami Herald (Aug. 13, 2017).

Another State Department Briefing Regarding Cuban Diplomatic Dispute 

At an August 10 State Department press briefing, the Spokesperson Heather Nauert discussed the ongoing U.S.-Cuba diplomatic dispute about U.S. diplomats in Cuba who have had medical problems.[1]  

Emphasizing that there was an ongoing U.S. investigation of this matter, she said that the U.S. was still trying to determine the cause of the ailments, that it was too soon to blame any government or other person for the problems, that she has no knowledge of a country other than Cuba being the potential cause of the problems and that she was not aware of the U.S. having experienced the same problem in other countries.

She also said that the two Cuban diplomats in the U.S. had been expelled in May because Cuba had breached its obligation under the Vienna Convention on Diplomatic Relations, whose Article 29 states: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State [here, Cuba] shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” (Emphasis  added.)

There have been reports that at least one Canadian diplomat has been treated in hospital in Cuba afar suffering headaches and hearing loss and that the Canadian and Cuban governments are investigating the problem. Global Affairs Canada spokeswoman Brianne Maxwell said Thursday that agency officials “are aware of unusual symptoms affecting Canadian and US diplomatic personnel and their families in Havana. The government is actively working — including with US and Cuban authorities – to ascertain the cause.”[2] U.S. State Department spokesperson Heather Nauert could neither confirm nor deny such reports.

Ms. Nauert also asserted that the U.S. Embassy in Havana is fully staffed and operational.

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[1] A prior post discussed the issue of medical problems of some U.S. diplomats in Cuba.

[2] Canadian diplomat in Cuba treated for hearing loss, CBCnews (Aug. 10, 2017); Assoc. Press, Canadian Diplomat in Cuba Treated for Hearing Loss, N.Y. Times (Aug. 10, 2017).

U.S. Continues To Suspend Part of Its Embargo of Cuba 

On July 14 U.S. Under Secretary of State for Political Affairs Thomas Shannon notified appropriate Congressional committees that the Trump Administration would suspend Title III of the Helms-Burton Act (a/k/a the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act) for a six-month period beyond August 1. The law requires Congressional notification at least 15 days before a suspension is to begin.[1]

Title III allows former owners of commercial property expropriated by Cuba to sue foreign companies and the Cuban government for using or “trafficking” in those confiscated holdings.

But ever since the enactment of the Helms-Burton Act, every president has routinely suspended Title III at six-month intervals. Such suspensions have been prompted by U.S. fear of alienating important U.S. trading partners such as Canada, Mexico, and EU countries from the filing of a potential tidal wave of lawsuits in U.S. federal courts brought by persons whose Cuban properties had been expropriated against companies from those U.S. trading partners that use Cuban tourism properties, mining operations, or seaports.[2]

This suspension by the Trump Administration is the first action on Cuba since President Trump announced his new direction on U.S.-Cuba relations during a June 16 speech in Miami. It is the latest sign that President Trump is not fully reversing President Barack Obama’s opening of relations with Cuba.[3]

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[1] U.S. State Dep’t, U.S. Determination of Six-Month Suspension Under Title III of LIBERTAD (July 14, 2017); Whitefield, Trump to suspend lawsuit provision of Helms-Burton in August, Miami Herald (July 17, 2017); Assoc. Press, Trump Administration Again Suspends a Part of Cuba Embargo, N.Y. Times (July 14, 2017).

[2] After the December 17, 2014, announcement by President Obama and Castro that the two countries were embarking on a path of normalization, they have engaged in discussions or negotiations about obtaining Cuban payment of U.S. persons’ claims for expropriation, now believed, with interest, to total at least $ 8 billion. Although Cuba has recognized that it has an international legal obligation to pay such claims and has paid expropriation claims from other countries and although Cuba has an economic and political interest in paying these U.S. claims, Cuba does not have the cash to do so and instead has asserted claims against the U.S. for alleged damage from the U.S. embargo and other acts. See these posts to this blog: Resolution of U.S. and Cuba’s Damage Claims (April 4, 2015); Resolving U.S. and Cuba’s Damage Claims (Dec. 13, 2015); U.S. and Cuba Discuss Their Claims Against Each Other (July 30, 2016).

 

[3] President Trump Announces Reversal of Some U.S.-Cuba Normalization Policies, dwkcommentaries.com (June 19, 2017).

 

Report for dwkcommentaries –2016 

This blog, which started on April 4, 2011, reports the following activity through December 31, 2016:

YEAR POSTS COMMENTS (by dwkcommentaries) VIEWS
2011 190        26  9,189
2012 179     170 51,164
2013   86     708 49,082
2014 138      47 58,602
2015 191      60 62,990
2016 149      55 56,831
TOTAL 933 1,066 287,858

The busiest day for 2016 and for all time was December 10, 2016, with 1,725 views. For 2016 as a whole the viewers came from 174 countries with most from the U.S.A. followed by the United Kingdom and Canada This blog has 639 followers (Facebook, 406; direct, 233).

The following were the most popular posts in 2016:

As indicated in detail in the Pages section on the left side of the home page, the posts and comments for 2011-2016 fall into the following categories (as stated in the Lists of Posts to dwkcommentaries-Topical):

  • Cuba [history and politics]
  • Education [my post-secondary education]
  • El Salvador [history and politics]
  • Law (Criminal Justice)
  • Law (International Criminal Court)
  • Law (Refugee & Asylum)
  • Law (Treaties)
  • Law (U.S. Alien Tort Statute)
  • Law (U.S. Torture Victims Protection Act)
  • Lawyering [my practice of law]
  • Miscellaneous
  • Personal [my personal background]
  • Religion [predominantly Christianity]
  • United States (History)
  • United States (Politics)

The blogger would appreciate receiving substantive comments on his posts, including corrections and disagreements.

 

 

 

Richard and Mildred Loving’s Legal Entanglement with Anti-Miscegenation Laws

Last Saturday I saw the beautiful new movie “Loving,” which tells the true story about the love between Richard Perry Loving, a white man, and Mildred Delores Jeter, a black woman, who were married in June 1958 in the District of Columbia. Soon thereafter they returned to their home in Caroline County, Virginia, where they established their marital abode and where they were criminally prosecuted and convicted for violating the state’s anti-miscegenation laws. They then were sentenced to one year in prison, but with suspension of the imposition of that sentence for 25 years on condition they live outside the state, which they did by returning to the District of Columbia.

Later the movie depicts  their challenge with the aid of the American Civil Liberties Union (ACLU), to the constitutionality of these Virginia statutes with the U.S. Supreme Court eventually ruling in their favor.[1] Below is an actual photograph of the couple and one of the actors (Ruth Negga and Joel Edgerton) who played the couple in the movie.

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This beautiful movie prompted the following report of the legal details of their entanglement with anti-miscegenation laws.

Legal Proceedings in State Court

Their legal problems started with an October 1958 grand jury indictment charging the couple with violating the following provisions of Virginia’s ban on interracial marriages:

  • “Punishment for marriage. — If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.” (Va. Code § 2-59)
  • “Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.” (Va. Code § 2-58)

On January 6, 1959, the Lovings pleaded guilty to those charges and, as previously mentioned were sentenced to one year in jail, but with suspension of the sentence for a period of 25 years on the condition that the couple leave the State and not return to Virginia together. The trial judge stated in his opinion that:

  • “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”

The Lovings then returned to the District of Columbia, where they established their home for at least the next eight and a half years.

In the meantime, nearly five years after their convictions, on November 6, 1963, with the aid of attorneys from the ACLU, they filed a motion in the Virginia state trial court to vacate the judgment of conviction and set aside the sentence on the ground that the statutes which they had violated were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Nearly 15 months later, on January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the state’s Supreme Court of Appeals.[2]

On March 7, 1966, the seven justices of the Virginia Supreme Court of Appeals unanimously upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions.[3]  The entire opinion was based upon that court’s having upheld the constitutional validity of these statutes in a 1955 case (Naim v. Naim) and concluding that there had not been any change in the law on this issue in the subsequent 11 years. As the Virginia court stated:

  • “Our one and only function in this instance is to determine whether, for sound judicial considerations, the Naim case should be reversed. Today, more than ten years since that decision was handed down by this court, a number of states still have miscegenation statutes and yet there has been no new decision reflecting adversely upon the validity of such statutes. We find no sound judicial reason, therefore, to depart from our holding in the Naim According that decision all of the weight to which it is entitled under the doctrine of stare decisis, we hold it to be binding upon us here and rule that Code, §§ 20-58 and 20-59, under which the defendants were convicted and sentenced, are not violative of the Constitution of Virginia or the Constitution of the United States.”

Proceedings in U.S. Supreme Court

The Lovings appealed this decision to the U.S. Supreme Court, which noted probable jurisdiction on December 12, 1966.[4]

After the attorneys’ briefing and oral arguments, The Supreme Court on June 12, 1967, issued its unanimous decision holding that the Virginia anti-miscegenation statutes were unconstitutional.[5]

In his opinion for the Court, Chief Justice Earl Warren noted that the two Virginia statutes in question were “part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages,”[6] that they were part of Virginia’s Racial Integrity Act, which was adopted in the “period of extreme nativism” of 1924 and that “[p]enalties for miscegenation arose as an incident of slavery, and have been common in Virginia since the colonial period.” Moreover, the opinion recognized that Virginia then was “one of 16 States which prohibit and punish marriages on the basis of racial classifications.”[7]

After rejecting various arguments advanced by the State of Virginia, the Chief Justice said, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

The Court’s opinion also concluded that the Virginia “statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Conclusion

 From a 2016 perspective, it is difficult for this blogger to believe that only 50 years ago 16 states in the U.S. still had anti-miscegenation laws and were trying to defend their constitutionality. As the movie clearly points out, the Lovings did not have the financial means to mount a challenge to these laws, and the legal assistance of organizations like the ACLU is absolutely necessary for such litigation to be conducted. [8]

While the various phases of the litigation were proceeding over nearly nine years, Mr. and Mrs. Loving had to live with this legal cloud hanging over them that prevented them from living in their native Virginia.

Since the Supreme Court’s decision in this case, the number of interracial marriages in the U.S. has increased from 0.4% in 1960 to 0.7% in 1970, 1.9% in 1980, 2.8% in 1990, 7.0% in 2000 and 10.0% in 2010. The date of the Supreme Court decision (June 12) is now remembered in the U.S. as “Loving Day” and the decision itself was cited as precedent in federal court decisions invalidating restrictions on same-sex marriage.

This case also reminded me of the personal story of Lawrence Hill, the noted Canadian author of “The Book of Negroes” about a young African woman who is kidnapped from her native village and taken by a slave ship to the U.S., where she becomes literate and is hired by the British forces at the end of the American Revolutionary War to create the actual Book of Negroes to register those Negroes who helped the British and who thereby were eligible to evacuate Manhattan with their forces. As discussed in a prior post, Hill’s parents— a black father and a white mother —were U.S. citizens who emigrated to Canada the day after they were married in 1953 in the District of Columbia in order to escape racial discrimination and anti-miscegenation laws. Both of them were involved in the human rights movement, an influence Hill readily acknowledges.

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[1] Dargis, Review: In ‘Loving,’ They Loved. A Segregated Virginia Did Not Love Them Back, N.Y. Times (Nov. 2, 2016)  The movie is directed by Jeff Nicols and stars Joel Edgerton and Ruth Negga.

[2] The Virginia trial court presumably was pressed finally to issue its decision on the motion to vacate by the Lovings commencing on October 28, 1964, a class action in the U.S. District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.

[3] Loving v. Commonwealth,206 Va. 924, 147 S.E.2d 78 (Va. Sup. Ct. 1966) ; Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (Va. Sup. Ct. 1955). remanded, 350 U.S. 891 (U.S. Sup. Ct. 1955), aff’d, 197 Va. 734, 90 S.E.2d 849 (Va. Sup. Ct. 1956), appeal dismissed, 350 U.S. 985 (U.S. Sup. Ct. 1956).

[4] Loving v. Virginia, 385 U.S. 986 (1966).

[5] Loving v. Virginia, 386 U.S. 1 (1967). Mr. Justice Stewart submitted a brief concurring opinion to reiterate his  “belief that ‘it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.’”

[6] Other provisions of the Virginia statutes automatically voided all marriages between “a white person and a colored person” without any judicial proceeding (§ 20-57) and defined “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions (§§ 20-54 and 1-14).

[7] The other states with anti-miscegenation laws were Alabama, Arkansas, Delaware, Florida, Kentucky, Louisiana, Mississippi, Missouri, North carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia. (Justices Upset All Bans On Interracial Marriage, N.Y. Times (June 13, 1967).)

[8] As discussed in an earlier post, I was a pro bono volunteer attorney for the Minnesota ACLU chapter in a lawsuit challenging the constitutionality of a Minneapolis Police Department raid and arrests of citizens at a political fundraiser.