State Department’s Announcement of New Sanctions Against Cuba

On April 17, the U.S. announced new sanctions against Cuba. The major change was eliminating the waiver of Title III of the Helms-Burton (LIBERTAD) Act allowing U.S. litigation by U.S. owners of Cuban property that was expropriated by the Cuban government in the early years of the Cuban Revolution. This Act also allows the U.S. to deny or revoke U.S. visas to any person or corporate officer “involved in the confiscation of property or trafficking in confiscated property,” as well as their family members.[1]

State Department’s Announcement of Sanctions[2]

The State Department made the official announcement of this change in remarks to the Press by Secretary of State Mike Pompeo, who said the following:

  • “In 1996, Congress passed the Cuban Liberty and Democratic Solidarity Act, also known as Libertad. Until Title III of that act, United States citizens who had their property confiscated by the Castro regime were given the right to file suit against those who traffic in such properties.”
  • “But those citizens’ opportunities for justice have been put out of reach for more than two decades. For now more than 22 years, every president, every secretary of state has suspended Title III in the hope that doing so would put more pressure on the Cuban regime to transition to democracy.”
  • The “Trump administration recognizes reality. We see clearly that the regime’s repression of its own people and its unrepentant exportation of tyranny in the region has only gotten worse because dictators perceive appeasement as weakness, not strength.”
  • “President Obama’s administration’s game of footsy with the Castros’ junta did not deter the regime from continuing to harass and oppress the heroic Ladies in White, a group of women dedicated to peacefully protesting the regime’s human rights abuses.”
  • “More broadly, the regime continues to deprive its own people of the fundamental freedoms of speech, press, assembly, and association. Indeed, according to NGO reports, Cuban thugs made more than 2,800 arbitrary arrests in 2018 alone. In the run-up to the country’s recent sham constitutional referendum, one that enshrined the Communist Party as the only legal political party in Cuba, the regime harassed, beat, and detained leaders and – opposition leaders and activists. Three hundred and ten people were arbitrarily detained according to the Cuban Commission on Human Rights and National Reconciliation.”
  • “Cuba’s behavior in the Western Hemisphere undermines the security and stability of countries throughout the region, which directly threatens United States national security interests. The Cuban regime has for years exported its tactics of intimidation, repression, and violence. They’ve exported this to Venezuela in direct support of the former Maduro regime. Cuban military intelligence and state security services today keep Maduro in power.”
  • “Sadly, Cuba’s most prominent export these days is not cigars or rum; it’s oppression. Detente with the regime has failed. Cozying up to Cuban dictators will always be a black mark on this great nation’s long record of defending human rights.”
  • “For these reasons, I’m announcing that the Trump administration will no longer suspend Title III. Effective May 2nd, . . . the right to bring an action under Title III of the Libertad Act will be implemented in full. I have already informed Congress of my decision.”
  • “Implementing Title III in full means a chance at justice for Cuban Americans who have long sought relief for Fidel Castro and his lackeys seizing property without compensation. For the first time, claimants will be able to bring lawsuits against persons trafficking in property that was confiscated by the Cuban regime. Any person or company doing business in Cuba should heed this announcement.”
  • “In addition to being newly vulnerable to lawsuits, they could be abetting the Cuban regime’s abuses of its own people. Those doing business in Cuba should fully investigate whether they are connected to property stolen in service of a failed communist experiment. I encourage our friends and allies alike to likewise follow our lead and stand with the Cuban people.”
  • “As I said throughout my trip to South America this last week, the Trump administration is committed to helping grow the wave of democracy, good governments, and openness, which is steadily building throughout the entire Western Hemisphere. On my trip last week, I saw these positive changes firsthand, and told our friends and allies that we’re with them. We’re on the side of what’s right and what is just.”
  • “Today we are holding the Cuban Government accountable for seizing American assets. We are helping those whom the regime has robbed get compensation for their rightful property. And we’re advancing human rights and democracy on behalf of the Cuban people.”

Immediately after the Secretary’s remarks, Kimberly  Breier, Assistant Secretary of State for Western Hemisphere Affairs, responded to journalists’ questions. Here are her significant responses:

  • “[O]bviously we’ve been in very deep and close contact with our allies in Europe and Canada and around the world as we consulted on this decision over the past several months as the Secretary had been shortening the period of suspension with his previous decisions. I think it’s clear if you look in the macro sense we have broad agreement with our allies in Europe and Canada and around the world on the policy objective, which is to promote democracy in Cuba and to free the Cuban people from the tyranny that they live under.”
  • “We are in broad agreement on this. Where we sometimes disagree is on the best way to achieve that. And I think at the end of the day, you’ll need to speak to the European Union and to our allies as to what response they will have, but I would like to emphasize that European companies that are operating in Cuba will have nothing to worry about if they are not operating on property that was stolen from Americans post-revolution. So I think the vast number of European companies will not have any concerns operating in Cuba.”
  • We “took a decision today based on our laws and our sovereign concerns for the property of American citizens and Europeans will respond as they see fit, and we will continue to work closely with them on this policy and on the policy in Venezuela.”
  • The “decision today is part of the trajectory that started with the Trump Administration’s NSPM-5, which was announced in June of 2017.[3]The objective of that was . . . to support the Cuban people and to deny resources to the regime, and in particular to the security services in Cuba. So this is part of a trajectory. We have since published a Cuba restricted list. We have since amended the restricted list several times, and this is part of the trajectory of the administration trying to ensure that we support the people of Cuba and not the regime of Cuba.”
  • The “Secretary’s decision was about the actions of the Cuban regime; certainly, the actions of the Cuban regime in Venezuela are part of the context of the moment in which we are living. And we are very clear, and . . . the Lima Group, which is a group of 12 countries in the Western Hemisphere, for the very first time this week announced its concern over Cuba’s role in Caracas and made public its concern, and called on the Cuban regime to support the transition in Caracas. So I think it’s a very important moment in our relations in the hemisphere as well.”
  • Over “the past two years building off of NSPM-5 and looking at the various tools that we have to implement the President’s vision for how we would conduct this policy. I think you’re going to be seeing quite a bit more from us, and that this is the beginning of a new process on this that recognizes the reality on the ground in Cuba, which is in the past 20-plus years the underlying reality in Cuba has not changed for the average Cuban..[There was no direct response to the question about whether the U.S. was considering t returning Cuba to the State Sponsors of Terrorism list.[4]]
  • “There will not be any exemptions [from this new sanction for any U.S. company doing business in Cuba].” (Emphasis added.)
  • The “Foreign Claims Settlement Commission . . . has certified nearly 6,000 claims for property confiscated in Cuba with a total value of approximately 2 billion. With interest, we believe that value is somewhere in the $8 billion range. The most recent estimate we have from 1996, at the time that the law was enacted, that there could be up to 200,000 uncertified claims that were not certified by the Foreign Claims Settlement Commission, and that value could very easily be in the tens of billions of dollars. But it will depend on, of course, whether claimants decide to pursue legal cases or not.”[5]

The day before the official announcement in an embargoed briefing for journalists, an unidentified senior State Department official said that foreigners who have been trafficking in such properties  have “had over 20 years of profiting from property stolen from American citizens.”

Hints of This and Other Anti-Cuba Measures[6]

For the last several weeks the Administration has been hinting that more anti-Cuba measures were coming.

One such  hint came from Vice President Mike Pence at a U.N. Security council meeting on April 10, when he said, “For decades, Cuba has tried to create client states across our region.  While normal countries export goods, Cuba exports tyranny and strong-arm tactics.  Even now, Cuban military and intelligence services train and support and equip Venezuela’s secret police as they silence opponents, jail and torture members of the opposition.” Pence added, “Last week, the United States took action to sanction ships transporting Venezuelan oil to Cuba.  And soon, at President Trump’s direction, the United States will announce additional action to hold Cuba accountable for its malign influence in Venezuela.” (Emphasis added.)

 Two days later, President Trump issued his Proclamation on Pan American Day and Pan American Week, which said, in part, “Sadly, the people of Cuba, Venezuela, and Nicaragua continue to live under tyranny and authoritarianism.  The brutality and corruption of the illegitimate former regime in Venezuela has crippled the country and brought it to ruin.  We must not forget that the struggle is one between dictatorship and democracy, between oppression and freedom, and between continued suffering for millions of Venezuelans and an opportunity for a renewed future of freedom and prosperity.  The community of democracies in our Western Hemisphere must continue to support the people of Venezuela, Cuba, and Nicaragua as they fight for the restoration of democracy and liberty. (Emphases added.)

Another tip came from the State Department when it announced that  that the U.S. was adding four companies and nine vessels  to the list of Venezuelan companies  that were sanctioned for transporting oil to Cuba.[7] The Department also said the U.S.“will continue to do all we can to stand up against Cuba’s support for the former Maduro regime and its hostility to the Venezuelan people’s aspiration to a peaceful, prosperous, democratic future. Cuba’s intervention only seeks to delay the inevitable—the peaceful transition back to freedom and democracy that is underway in Venezuela, led by the Venezuelan people, Interim President Juan Guaido, and the National Assembly.”  (Emphasis added.)

Another hint came directly from Secretary Pompeo on April 14 in a speech in Cucata, Colombia, when he said, “ “Cubans must understand too that there will be cost associated with continued support of Nicolas Maduro.”  (Emphasis added.)

Conclusion

Later the same day (April 17), U.S. National Security Advisor John Bolton in a speech in Miami addressed these new sanctions and other santi-Cuba measures that will be discussed in a subsequent post. Another post will review the responses to these new measures from the U.S., Cuba, Europe and Canada.

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[1]  Baker, Trump to Increase Pressure on Cuba by Lifting Lawsuit Limits, N.Y. Times (April 16, 2019); Reuters, In Major Shift, Trump to Allow Lawsuits Against Foreign Firms, N.Y. Times (April 16, 2019); Assoc. Press, Trump to Allow Lawsuits Over US Properties Seized in Cuba, N.Y. Times (April 16, 2019); DeYoung, Trump administration will allow U.S. citizens to sue over property seized after 1959,  Wash. Post (April 16, 2019).

[2] State Dep’t, [Secretary Pompeo’s] Remarks to the Press (April 17, 2019); State Dep’t, Briefing With Assistant Secretary for Western Hemisphere Affairs, Kimberly Breier (April 17, 2019).

[3] NSPM refers to National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (June 16, 2017). See President Trump Announces Reversal of Some Cuba Normalization Policies, dwkcommentaries.com (June 19, 2017).

[4] See posts listed in the “Cuba: State Sponsor of Terrorism?” section of List of Posts to dwkcommentaries—Topical: CUBA.

[5]  See Resolution of U.S. and Cuba Damage Claims, dwkcommentaries.com (April 6, 2015).

[6] White House, Remarks by Vice President Pence at a Special Session of the United Nations Security Council  on the Crisis in Venezuela/New York, NY (April 10, 2019); White House,  Proclamation on Pan American Day and Pan American Week (April 15, 2019); State Dep’t, The United States Takes Action To End Cuba’s Malign Influence on Venezuela (April 12, 2019).

 

Cuba’s Legislature Approves Revised Draft of New Constitution

On December 22, Cuba’s National Assembly unanimously approved a proposed new constitution for submission to a national referendum on February 24, 2019. It incorporates into an original one published in July hundreds of mainly small changes proposed by citizens during a three-month public consultation at community meetings nationwide. [1]

Summary of Latest Draft of Constitution

This draft maintains Cuba as a centrally planned economy ruled by a single Communist Party, but recognizes private property for the first time and paves the way for a separate referendum on legalizing gay marriage. It  also creates the role of prime minister alongside the current president, as well as provincial governors.

The new draft also recognizes worker-owned cooperatives for the first time as a legal form of production in every sector of the economy, while maintaining Cuba’s largely inefficient and stagnant state-run industries as the central means of production.

The draft contains the following 11 titles:

  • Title I: Political foundations
  • Title II: Economic fundamentals
  • Title III: Fundamentals of educational, scientific and cultural policy (Old Title V)
  • Title IV: Citizenship
  • Title V: Rights, Duties and Guarantees.
  • Title VI: Structure of the State.
  • Title VII: Territorial Organization of the Stat
  • Title VIII: Local Organs of Popular Power
  • Title IX: Electoral System
  • Title X: Defense and National Security
  • Title XI: Reform of the Constitution.

Cuba Official Reaction to New Draft.[2]

In closing this session of the National Assembly, President Miguel Diaz-Canel said the island’s economic challenges — including a week 1.2 percent 2018 growth rate in 2018 and similar growth expected next year — required the acceptance of private business, joint public-private ventures and coops working together. He promised to fight widespread public-sector embezzlement and corruption that makes it virtually impossible to get anything done in Cuba without a series of small bribes.[3]

The modest changes to the draft constitution along with the recent changes to regulations governing private enterprise are seen by William LeoGrande, a U.S. expert on Cuba, as unprecedented responsiveness to organized public pressure. It “indicates both the government’s flexibility and also its recognition that the Cuba of 2018 is not one in which people will simply accept whatever the authorities dictate.” These changes also recognize the economic and financial difficulties facing the island.

Indeed, cash-strapped Cuba plans fresh austerity measures and will pressure the sluggish bureaucracy to tighten its belt and cut red tape to address weak growth, falling export earnings and rising debt.

Cuban Opposition to the Draft Constitution[4]

 According to Diario de Cuba, several Cuban organizations have launched a campaign to defeat this draft in the national referendum. Here are some of their principal objections:

  • The draft maintains the role of the Communist Party as the ” highest leading political force in society” and reaffirms state control of the economy.
  • While recognizing the role of the market and other forms of property, it affirms that Cuba “will never return” to capitalism because “only in socialism and in communism the human being reaches his full dignity.”
  • It does not allow for the existence of other political parties and independent media,
  • It denies the possibility of directly electing the president of the country,

The organizations supporting the “No” vote  are: Artists against Decree 349, Damas de Blanco Association, Asociación Pro Libertad de Prensa (APLP), Independent Trade Union Association of Cuba (ASIC), Citizens Committee for Racial Integration (CIR) ), Cuba Independiente y Democrática (CID), Cuba Piensa, Foro Antitotalitario Unido (FANTU), Cuban Foundation for LGBTI Rights, Cuban Youth Dialogue Table (MDJC), Citizen Movement Reflection and Reconciliation, Cuban Reflection Movement, Maceista Movement for Dignity, Cuban Observatory of Human Rights (OCDH), Observatory of Electoral Rights (ODE), Party for Democracy Pedro Luis Boitel, Project Di.Verso, OCDH Support Network and Patriotic Union of Cuba (UNPACU).

 Amnesty International’s  Criticism of the Draft Constitution[5]

 Amnesty International had the following comments on the revised draft:

  1. At first glance, it appears to strengthen a host of human rights protections. But at a closer look, it quickly limits them to what is already found in national law. . . many of which are contrary to international law and standards.”
  2. On paper, it provides better protections to people accused of crime—like the right to a defence lawyer. In practice, all lawyers work for the state and rarely are prepared or able to mount an adequate defense without losing their job.”
  3. It maintains undue restrictions on freedom of expression. While article 59 ‘recognizes, respects and guarantees the freedom of thought, conscience and expression, Article 60 retains control over the organization and functioning of all media. This is inconsistent with international human rights law and standards, that require states not to have monopoly control over the media and,instead promote a plurality of sources and views.”
  4. It also stands to continue online censorship. On the one hand, the text proposes the “democratization of cyberspace. but on the other it condemns the use of the Internet for ‘subversion’ (Article 16.l). This could allow for criminal laws to be applied arbitrarily against independent journalists and bloggers, who already work in a legal limbo that exposes them to arbitrary detention, and whose work is already being blocked and filtered.”
  5. It continues to place undue restrictions on freedom of assembly, demonstration and association. Article 61 states that these rights, ‘For lawful and peaceful purposes,’ are recognized by the State whenever they are exercised with respect to public order and compliance with the mandatory provisions of the law.’ However, international law and standards are clear that the only legitimate reasons to restrict these rights is for  the protection of national security, public order, public health or morals, or the rights of others. In practice, protest by political opposition groups and human rights defenders are not tolerated by the authorities. For example, representatives of the Ladies in White, a group of female relatives of prisoners detained on politically motivated grounds, continue to be arbitrarily detained, usually for several hours each weekend, solely for exercising their right to freedom of association and peaceful assembly,”
  6. “It undermines artistic expression. Article 95.h protects artistic expression, but only when it conforms with ‘socialist values.’ Not only is this provision an undue restriction of freedom of expression, but in practice, anyone who dares to speak out against the government is quickly labeled ‘counter-revolutionary.’ One of the first laws signed by President Díaz Canal was Decree 349, a dystopian new law which stands to censor artists.”[6]
  7. “The reforms are unlikely to strengthen the independence of the judiciary or protect the right to fair trial. Article 48 protects the right to be tried before a ‘competent, independent, and impartial tribunal established by law.’ These are all key elements to ensuring the right to a fair trial. At the same time, Article 8 subordinates all organs of the state – presumably including the judiciary – to ‘socialist values’ which in practice may allow for undue interference by the presidency in judicial decisions. Serious and ongoing limitations on the independence of lawyers and the judiciary have been documented by Amnesty International and the UN for decades.”
  8. “If approved, it will pave the way for Cuba to become the first independent nation in the Caribbean to legalize same sex marriage. The revised Constitution defines marriage as between two people (Article 68) and prohibits discrimination on the grounds of sexual orientation or gender identity (Article 40). While these provisions are a huge step forward in the path for equality and dignity for all, LGBTI activists say authorities still tightly control LGBTI activism outside of state-sanctioned spaces.”
  9. “It guarantees several economic, social and cultural rights. The proposed Constitution recognizes that human rights cannot be divided and depend on each other to make them happen in a progressive way and without discrimination (Article 39). The state recognizes its responsibility for the protection of older people (Article 73), and people living with disabilities (Article 74). It recognizes the right of people to “dignified housing” (Article 82), and the responsibility of the Cuban state to guarantee the rights to “public health” (Article 83), education (Articles 84), water (Article 87) and food (Article 88). Nevertheless, in a context where the judiciary is not independent, enforcing these rights through the courts will be unrealistic in practice.”
  10. “It commits Cuba to promoting the protection and conservation of the environment and to confronting climate change, which it recognizes as a ‘threat to the survival of the human species’ (Article 16). Cuba could strengthen this commitment further by joining fellow Caribbean countries in signing the Escazú Agreement, a major step forward for the right of people to access information and participate in policies, projects and decisions that affect the environment.”

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[1] Assoc. Press, Cuban Assembly Approves Draft of New Constitution, N.Y. Times (Dec. 22, 2018); Reuters, Cuban Lawmakers Approve New Constitution Which Heads to Referendum, N.Y. Times (Dec. 22, 2018); Intervention of Romero Acosta in the National Assembly, on the main changes of the Constitution from the Popular consultation, Granma (Dec. 22, 2018).See also prior posts about the new constitution in the ”Cuba’s New Constitution, 2018” section of List of Posts to dwkcommentaries—Topical: CUBA.

[2] Gamez Torres, After 60 years of revolution in Cuba, cracks in leadership emerge, Miami Herald (Dec. 27, 2018); Reuters, “Reality” Bites: Cuba Plans More Austerity as Finances Worsen, N.Y. Times (Dec. 28, 2018).

[3] See Cuba Relaxes Some New Rules Regarding Private Enterprise, dwkcommentaries.com (Dec.7, 2018).

[4]  Start a campaign for the ‘No’ to the new constitution, Diario de Cuba (Dec. 23, 2018); 20 reasons to vote NO on the constitutional referendum, Diario de Cuba (Dec. 26, 2018); The new Constitution will not reflect the society to which Cubans aspire, Diario de Cuba (Dec. 18, 2018).

[5]  Amnesty Int’l, 10 ways reforms to Cuba’s constitution would impact human rights (Nov. 21, 2018); Tillotson, Ten repercussions for the human rights of the reform of the Constitution of Cuba, El confidencial (Nov. 21, 2018).

[6] See Cuba Tightens Censorship of the Arts, dwkcommentaires.com (Dec. 26, 2018).