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. Here is at least a partial list of those issues:
U.S. ending embargo (blockade) of Cuba?
U.S. response to Cuba’s claims for alleged damages from embargo & other acts?
U.S. closing its detention facility at Guantanamo Bay?
U.S. paying Cuba for use of Guantanamo Bay, 1960— ?
U.S. returning Guantanamo Bay to Cuba or entering into new lease of territory?
Cuba paying U.S. persons for expropriated property, 1959-60?
U.S. ending unilateral “democracy promotion” activities in Cuba?
Mutual extradition of the other’s criminal suspects & convicts?
Cuba improving human rights?
U.S. & Cuba resolving responsibility for medical problems of U.S. diplomats in Cuba, 2016-??
U.S. ending or modifying U.S. ban on transactions with certain Cuban entities on the State Department’s “Cuba Restricted List”?
U.S. possible restoration of parole for Cuban medical professionals?
U.S. possible allowance of lawsuits for expropriated Cuban property?
U.S. possible re-designation of Cuba as a “state sponsor of terrorism” due to Cuban military aid to Venezuela?
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.
On June 14 in Washington, D.C., the U.S. and Cuba held their seventh meeting of the Bilateral Commission that was started by the Obama Administration and Cuba.
Afterwards the State Department said the two parties “reviewed . . . areas for engagement that advance the interests of the [U.S.] and the Cuban people including combatting trafficking in persons; facilitating safe civil aviation; law enforcement cooperation; agricultural cooperation; maritime safety and search and rescue cooperation; resolution of certified claims; advancing understanding of environmental challenges; and protecting the national security and public health and safety of the [U.S.]”
The State Department also said, “The [U.S.] reiterated the urgent need to identify the source of the attacks on U.S. diplomats and to ensure they cease. We also reiterated that until it is sufficiently safe to fully staff our Embassy, we will not be able to provide regular visa services in Havana. We expressed our continued concerns about the arbitrary detention of independent journalists and human rights defenders. The [U.S.] acknowledged progress in repatriating Cubans with final orders of removal from the [U.S.], but emphasized Cuba needs to accept greater numbers of returnees.” The U.S. also voiced concern about the “arbitrary detention of independent journalists and human rights defenders” in Cuba.
“Carlos Fernandez de Cossio, the top Cuban official at [this meeting], told The Associated Press that his delegation had “challenged the U.S. on the use of the word ‘attack.’ “There is no evidence of a weapon, there is no evidence of a source, nobody can point to motivation and yet they continue to use the word ‘attack.’ We see it as politically motivated.’” He also noted that neither American nor Cuban experts had been able to determine what caused the symptoms. He renewed concerns that the Trump administration is using the incidents as an excuse to roll back U.S.-Cuba rapprochement started under the Obama administration.
This objection to the U.S. verbiage for this problem was reiterated in a statement by the Cuba Foreign Ministry. “The Cuban delegation urged the government of the [U.S.] to desist from the continued political manipulation of the alleged health cases, which became the pretext to adopt new unilateral measures that affect the performance of the respective embassies, in particular, the rendering of consular services depended upon by hundreds of thousands of persons.” Cuba also raised its objection to the U.S. “travel warning” for Cuba, saying it “hinders the scientific, academic, cultural, religious and entrepreneurial exchanges, as well as the visits by Americans to a country that is internationally recognized as safe and healthy.”
The Cuba Foreign Ministry statement added, “The Cuban delegation rebuffed the regress in the bilateral relationship imposed by the government of the [U.S.] and called attention on the negative consequences thereof for both peoples, the Cuban emigration and the international and regional environment. The Cuban delegation reiterated that the economic, commercial and financial blockade continues to be the main obstacle to any perspective of improvement in the bilateral relationship and denounced its intensification with the adoption, in particular, of additional financial measures of aggressive extraterritorial nature.” Another Cuban objection was registered to what it said were U.S. actions, which were “intended interference in the internal affairs of Cuba, with the open manipulation of the human rights issue, which is flagrantly, massively and systematically violated with the implementation of the blockade.”
The Cuban Foreign Ministry, on the other hand, acknowledged “that it has been demonstrated that it is possible to cooperate and live in a civilized manner, by respecting differences and promoting that which benefits both countries and peoples. It expressed Cuba’s willingness to continue the bilateral dialogue and to work on issues of common interest through the active implementation, based on concrete proposals, of the bilateral agreements subscribed as those on environmental protection, law enforcement, health, agriculture, hydrography and geodesy, among others.”
Finally the State Department announced that the parties had “agreed to hold the next rounds of the biannual Migration Talks and the Law Enforcement Dialogue this summer.”
Another source mentioned that since Trump took office, the two countries have met around two dozen times on topics such as migration, public health, combating illicit drugs, environmental protection, law enforcement, agriculture, people smuggling and migration fraud, fugitives from justice, cyber-security, anti-money laundering, human trafficking, maritime safety, civil aviation and human rights.
Overall Evaluation of U.S.-Cuba Relations Under Trump
Mimi Whitefield, who closely follows Cuban developments for the Miami Herald, notes that U.S.-Cuba relations appear to be stalled since President Trump gave his speech in Miami announcing retreats on U.S. engagement with Cuba.
However, she points out, the Havana-based “Cuban Commission for Human Rights and National Reconciliation documented 5,155 such cases last year, compared to 8,616 and 9,940 during the last two years of the Obama administration.” And in May 2018 they fell to 128, the lowest monthly total in three years, which may have been affected by “factors that affected Cubans’ activism: Poor weather conditions kept many people indoors, Cubans were preoccupied and took more time trying to find food and other staples, transportation was difficult, and the deaths of 112 people in a May 18 airline crash left the nation shell-shocked.”
U.S. visitors to the island declined 56.6% in the first quarter of 2018 versus the prior year, with enormous adverse impact on Cuba’s emerging private sector. “Cuban entrepreneurs complain that the confusing U.S. travel policy has hurt them disproportionally because individual travelers tend to stay with them rather than at state-owned hotels. Business, some say, is down 30 to 40 percent because U.S. travel in general is down.”
On the other hand, says John McAuliffe, executive director of the Fund for Reconciliation and Development, which promotes engagement between Cuba and the U.S., “there is one form of travel to Cuba that is booming and that is cruises, and most of the revenue from the cruise industry goes to the state. With cruise terminal fees, buses, tours, and cruise passengers eating at mostly state restaurants, it’s channeling more money to official circles.”
Expansion of Bipartisan State Councils Supporting Engagement with Cuba
On June 12, Engage Cuba, a bipartisan coalition promoting U.S. engagement with Cuba, announced that there are now 18 states with bipartisan state councils supporting these efforts. The latest is Pennsylvania, which like the others will seek to build statewide support for pro-engagement policies and ending U.S. trade and travel restrictions on Cuba.
A prior post reported the April 19 election of Miguel Díaz-Canel as the new President of Cuba. U.S. reactions to that election have been unanimous: at least initially there probably will be no major changes in Cuba’s international and domestic policies, and many also say there was not a democratic transition of power. Here is a sampling of these U.S. reactions.
Soon after Raúl Castro in his April 19 speech referred to U.S. Vice President Mike Pence’s leaving the Summit of the Americas, Pence tweeted the U.S. will not rest until Cuba “has free & fair elections, political prisoners are released & the people of Cuba are finally free! #CubaLibre.”
On April 18 a spokesperson for the White House National Security Council told an independent Cuban news outlet, “The United States has no expectation that the Cuban people will see greater liberties under Castro’s hand-picked successor. We will continue to show solidarity with the Cuban people in their petition for freedom and prosperity, so we are not expected to change our policy of directing funds to the Cuban people and away from Cuba’s military, security and intelligence services.”
The previous day the spokeswoman for the U.S. State Department, Heather Nauert, said, “As we watch what’s taken place at the Cuba national assembly, we certainly see that that’s not a democratic transition. So when we see that something is not a democratic transition, that’s of great concern to us. We would like citizens to be able to have a say in their political outcomes, and this certainly does not seem like regular folks will have a say. . . . They basically don’t have a real or meaningful choice because it’s not a democratic process. We hope that Cuba’s new president will listen to the Cuban people. We’re not sure that that’s going to happen. We would like a more free and democratic Cuba. We will be watching but aren’t overly optimistic, because this isn’t a democratic process.”
A New York Times editorial stated, “Rául Castro, who handpicked this loyal apparatchik as his successor, remains at the helm of the Communist Party and the armed forces; his son runs the intelligence services; his ex-son-in-law runs the military’s vast business interests. In his first speech, Mr. Díaz-Canel vowed there would be no “capitalist restoration” and concluded with a slogan that has not roused the masses for some time now: “Socialism or death! We will triumph!”
The Times’ editorial also stated, “President “Trump should join with Cuba’s other neighbors to encourage the new Cuban leader to expand the private economy, release political prisoners, increase access to the internet, decentralize power and in other critically needed ways finally break his country out of the Castro cocoon.”
After noting his concurrence in not expecting major changes in Cuba, Christopher Sabatini, a lecturer at Columbia University’s School of International and Public Affairs and executive director of Global Americans, urges changes in U.S. policies regarding the island. He says, “While it is not in America’s interest to promote investment to prop up an anachronistic, repressive regime, it is also not in its interest to stand by while a neighbor’s fragile economy crumbles under the weight of its failed policies. In the worst of cases, an economic implosion would produce social unrest and waves of migrants to American shores.” To that end, he suggests, “Multilateral banks like the International Monetary Fund and the World Bank, at Washington’s urging, could be given special allowances to offer economic assistance to the next Cuban government while providing international cover for American-led efforts. Any aid should come with a strong message from Washington and the banks that the Cuban government must refrain from repression in response to protests.” Sabatini also recommends that the U.S. restore the full staffing of the U.S. Embassy in Havana.
Engage Cuba, a U.S. coalition of businesses and others that supports U.S.-Cuba normalization, issued two statements about this change.
The first one said this “is a historic and potentially transformative change. The new Cuban president will face an internal political struggle between continuity and reform. I hope that they choose reform and openness, including greater support for the private sector and access to the internet.” It added, “The [U.S.] must also seize this historic moment. After 60 years of a failed embargo, it is time to recognize that with this Cuban transition comes opportunity. We must show leadership and constructively engage. If President Trump is willing to meet with the hostile leader of North Korea, surely we can talk with Cuba. If the U.S. abandons Cuba and fails to lead, we can be sure our adversaries in China and Russia will fill the void, and the losers will be the Cuban people.”
The second press release from Engage Cuba stated the following:
“U.S. policy . . . [should] encourage the change we’d like to see. For almost 60 years we have pursued an embargo policy that has failed. With new generational leadership in Cuba, we now have an opportunity to reimagine our policy for the 21st century. We know that continuing the embargo will not work, so let us not double down on 60 years of failure. President Trump and Congress should seize this moment, support the Cuban private sector, let American businesses compete, and look to the future with a modern policy of constructive engagement. After all, the American and Cuban people overwhelmingly support engagement and improved relations. Washington politicians should listen to them for a change.”
“Diaz-Canel inherits the challenges of Castro’s Cuba, particularly on the economic front. In the interest of institutional continuity, reforms under Diaz-Canel are expected to be gradual. But market distortions caused by the country’s multiple exchange rates, slow GDP growth, and declining exports will test the new president’s ability to balance badly needed reform with preserving Cuba’s brand of socialism.”
“The transition comes at a time of historically low diplomatic engagement between the U.S. and Cuba. The health incidents affecting U.S. diplomats remain an unsolved mystery,which the State Department has used as a rationale for slashing U.S. embassy staff in Havana. Diplomatic personnel have been reduced to 40 percent capacity (12 officers), with no consular services for Cubans seeking U.S. travel or immigrant visas.”
“In this transitional period, the fragile U.S.-Cuba relationship poses national security risks for the U.S. Both Russia and China have ramped up exports and investment in Cuba and expressed interest in increasing military and intelligence presence in the region. Further U.S. withdrawal from Cuba could jeopardize the dozens of agreements and joint security initiatives between the two nations.”
The leading long-time U.S. opponent of normalization of U.S.-Cuba relations, Senator Marco Rubio (Rep., FL), stated, “The sham ‘elections’ in Cuba were nothing more than a predetermined charade by the Castro regime. With Raul Castro stepping down today, and his appointed crony Miguel Diaz-Canel taking his place, Cuba will continue to be imprisoned under the rule of an oppressive single-party political system. The Cuban dictatorship portrays this election as a step towards change, yet we know that Diaz-Canel and the regime will remain an enemy of democracy, human rights and the impartial rule of law. If Castro really wanted democratic change for Cuba, he would allow the Cuban people to determine their fate through free, fair, and multi-party elections. “
Cuban Reactions Through U.S. Eyes
According to a U.S. journalist in Havana, no Cubans seemed to have been watching and listening to the televised April 19 speeches by Díaz-Canel and Raúl Castro. “Instead, a collective sense of apathy seemed to permeate Havana, a feeling that appeared to have been fostered, at least to some degree, by the government itself.” This was coupled with “a sense of hopelessness.”
As apparent from many previous posts, this blog consistently has called for U.S.-Cuba normalization, rescinding the U.S. embargo (blockade) of Cuba, restoring the full staffing of our Havana Embassy and of Cuba’s embassy in Washington, D.C., rescinding the recent U.S. warning about U.S. citizens traveling to the island, ceasing U.S. efforts that seek to change Cuba’s regime, continuing the bilateral meetings that address issues of common concern and engaging in efforts to resolve other long-pending issues (U.S. claims for Cuban compensation for expropriation of property owned by American interests, Cuban claims for damages from the embargo and other actions and disputes about Cuba’s lease of Guantanamo Bay to the U.S.).
Such changes in U.S. policies would do a lot to encourage changes in Cuba’s policies and improve the lot of the Cuban people.
It must also be said that U.S. does not have standing to criticize Cuba’s not having a national popular election to choose its president. How can anyone forget that the U.S. still uses an antiquated indirect way (the Electoral College) to choose its president and vice president while some state voting laws have been designed to discourage voting by African-Americans.
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.
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.
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.
 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).
On June 1 U.S. Senators Marco Rubio (Rep., FL) and Bill Nelson (Dem., FL) urged Secretary of State Rex Tillerson and Secretary of the Treasury Steven Mnuchin to prioritize seeking compensation for Americans whose property was expropriated by the Cuban government at the start of the Cuban Revolution in 1959.
The Senators correctly point out that the “U.S. Foreign Claims Settlement Commission (FCSC) has certified more than 5,900 claims against the Cuban Government for stolen [expropriated] property. These claims—now valued at approximately $8 billion—remain unresolved.”
Therefore, the Senators requested the two Secretaries to “work with Congress to develop a plan and timeline for resolution of these claims, as well as consider instructing the FCSC to conduct a third Cuban Claims Program to allow for potential new claimants.”
On an unrelated matter, the Senators expressed “concern with a January 2016 decision to allow Cubaexport—a company owned by the Cuban Government—to renew its illegitimate claim on the trademark for Havana Club rum. Cubaexport registered the trademark for Havana Club in the United States only after the Cuban Government stole the trademark from the original owners. The decision was a troubling development, given longstanding U.S. policy and support for the rightful owners of stolen property, and we urge you to reconsider.”
On February 18, 2016, the Cuba Consortium hosted its first annual Washington Conference: “Prospects for United-States Cuba Normalization, Commerce and Investment.” 
The speakers at the Conference included Penny Pritzker, U.S. Secretary of Commerce; Rodrigo Malmierca, Cuban Minister of Foreign Trade and Investment; Tom Vilsack, U.S. Secretary of Agriculture; Benjamin Rhodes, Assistant to the President and Deputy National Security Advisor for Strategic Communications and Speechwriting; and Andrea Gacki, Assistant Director, Compliance and Enforcement, Office of Foreign Asset Control, U.S. Department of Treasury. Here is a summary of their remarks.
In her speech, Pritzker said that she and the U.S. delegation on their visit to Cuba last October learned more about how the Cuban economy works, including the rules and regulations that govern the import, export, and distribution of goods across the island. This information helped to guide the most recent (January 2016) U.S. regulatory changes regarding Cuba.
Those new U.S. regulations created a general policy of approval of exports for purposes such as: disaster preparedness and relief, education, agricultural production, artistic endeavors, food processing, public transportation, Cuban civil society, enhanced communications on the island, and civil aviation safety.
Those new regulations also provided that the Commerce Department’s Bureau of Industry and Security will now review on a case-by-case basis proposed exports from U.S. companies to Cuban state-owned enterprises and government entities to determine if the export will meet the needs of the Cuban people. We had learned in our visit that in Cuba – as in many of our other trading partners around the world – it is necessary to work with state-owned enterprises in order to support the local private sector.
The corresponding new regulations from the U.S. Department of the Treasury permit financing for most authorized exports and travel authorizations.
In sum, whether environmental goods, telecommunications equipment, or products that private sector entrepreneurs need, the U.S. government’s regulatory changes permit a wide variety of trade and commercial activities.
However, if the U.S. is to truly maximize the benefits of our regulatory changes for the Cuban people, the Cuban government needs to make it easier for Cuban citizens to start their own businesses, purchase goods through wholesale markets, engage in external trade, secure credit, and access information online. These steps include making Cuban economic and business regulations publicly available; providing clear public guidance on the relevant government units and officials that are empowered to make decisions on potential transactions; and authorizing Cuban imports of U.S. products that are now allowed by U.S. regulations.
The bilateral civil aviation agreement signed on February 16 is an example of what we have accomplished together.
“The U.S. embargo continues to be a roadblock to increasing engagement between our countries. As President Obama reaffirmed during his State of the Union address, our Administration strongly supports lifting the embargo, and we will continue to call on Congress to repeal it immediately.”
Malmierca asserted that President Obama has the legal authority to adopt additional regulations that would permit Cuba to use the U.S. Dollar in international financial transactions, authorize Cuban exports to the U.S. and allow U.S. companies to invest in other Cuban sectors besides telecommunications.
The U.S. regulatory changes to date are positive, but they are not enough. For example, he said, since the December 2014 joint U.S.-Cuba announcement of normalization, six financial institutions have been fined nearly two billion dollars for trading with Cuba. These fines and the ban on the use of the U.S. Dollar have had serious negative effects on Cuba.
The previous day (February 17), Malmierca led a Cuban delegation at a meeting with Secretary Pritzker and other officials of the U.S. Department of Commerce.  On that occasion he made many of the same points just mentioned. He also pointed out that Cuba does not apply any coercive measures against U.S. companies or businesspeople and, in fact, welcomes them to do business on the island.
At that prior meeting in response to a question by Secretary Pritzker, Malmierca said that the next meeting of the Congress of the Communist Party of Cuba will seek to define the priority economic sectors for long-term development. “The most complex issue is that Cuba wants all these changes to be implemented without affecting the population; we do not want to apply shock measures or measures that may have a negative effect.”
This upcoming Congress will address the role of the market in the Cuban economy and the role of foreign investment in its economic development. This will seek to further consolidate changes adopted by Cuba before December 17, 2014, which are irreversible. “All the measures we are adopting, and which were sovereignly chosen long before December 17, 2014, . . . will also contribute to making the decisions we are making together more feasible,” he concluded.
Secretary Vilsack also criticized the U.S. embargo (blockade), noting that it restricts opportunities for trade between Cuba and the U.S. One area of such negative impact was the U.S. helping Cuba’s organic and urban farming practices.
The U.S. Agriculture Department is looking to identify business opportunities through a fund to which several U.S. agricultural companies voluntarily contribute. This fund, however, cannot use federal resources to explore business opportunities with the island, as is common practice, thus obstructing U.S. companies’ access to the Cuban market.
Although a U.S. law in 2000 authorized sales of agricultural products to Cuba, it required Cuba to pay in cash in advance, which has had a severe negative impact on such U.S. exports.
Associate Director Gacki
Gacki was unable to identify the specific law which prohibits Cuba’s use of the U.S. Dollar in international transactions, but said the Treasury Department currently was investigating whether there were other executive measures President Obama could adopt to reduce the adverse impacts on Cuba of restrictions on its use of the U.S. Dollar.
Assistant to the President Rhodes
Rhodes confirmed that Obama still has broad executive powers to make further and more substantial modifications to the U.S. embargo (blockade) policy.
Rhodes said that while the embargo policy may have had relevance in the past, the island is changing as are opinions of some Cuban-Americans. In addition, the increased numbers of Americans visiting Cuba are seeing why the embargo should be ended.
The Obama Administration, he added, is reviewing other potential regulatory changes that could be made within the existing legal framework.Thus, he believed it is possible to do more before the end of this administration to generate the necessary momentum to definitively end the embargo.
The Cuba Consortium is an assembly of companies, non-profit organizations, investors, academics, and entrepreneurs organized to track and examine the normalization process in both countries and to inform and prepare its members for opportunities to engage Cuba. They are complemented by foreign policy, political, economic, international development, legal, and cultural experts who have specialized knowledge of the diplomacy, politics, and economics of the normalization process.
The Consortium’s Advisory Board is co-chaired by Senators Nancy Kassebaum Baker and Tom Daschle and includes Dr. Michael Adams, Lon Augustenborg, Richard Blum, Sheila Burke, Tomas Diaz de la Rubia, Senator Byron Dorgan, Rodney Ferguson, Senator Bill Frist, Dr. Helene Gayle, Maurice Greenberg, Senator Bob Kerrey, Linda Klein, Fred Malek, Janet Napolitano, Thomas Ross, Senator Olympia Snowe, The Honorable Ellen Tauscher, Bill Weldon, and Rob Wilder.
The Consortium was organized by the Howard Baker Forum, which was founded by former Senator Howard Baker to provide a platform for examining specific, immediate, critical issues affecting the nation’s progress at home and its relations abroad under a philosophy of reasoned consensus, founded upon an agreed set of facts.
On the same day of this conference, the White House announced that President Obama and Michelle Obama will be visiting Cuba on March 21 and 22. The White House Press Secretary said, “In Cuba, the President will work to build on the progress we have made toward normalization of relations with Cuba – advancing commercial and people-to-people ties that can improve the well-being of the Cuban people, and expressing our support for human rights. In addition to holding a bilateral meeting with Cuban President Raul Castro, President Obama will engage with members of civil society, entrepreneurs and Cubans from different walks of life.”
The previously mentioned Benjamin Rhodes also issued a similar statement that also reviewed the various steps towards normalization since December 17, 2014.
Before President Obama’s trip, I anticipate and hope that the U.S. will announce additional steps in the process of normalization, including:
issue new regulations allowing or expanding Cuba’s ability to use the U.S. Dollar in international transactions, authorize Cuban exports to the U.S. and allow U.S. companies to invest in other Cuban sectors besides telecommunications;
announce the ending of special U.S. immigration benefits for Cubans, including the policy of allowing entry without visas into the U.S. of Cubans arriving by land (the dry feet policy); and
announce further steps in the process of resolving U.S. claims against Cuba for expropriation of property owned by U.S. persons without compensation.
In addition, it is hoped that before President Obama’s trip Cuba will make Cuban economic and business regulations publicly available; provide clear public guidance on the relevant government units and officials that are empowered to make decisions on potential transactions; and authorize Cuban imports of U.S. products that are now allowed by U.S. regulations. In addition, some improvement in Cuban human rights would be helpful, an objective apparently to be pursued in Havana next week by Secretary of State John Kerry. ==========================================
 Gomez, Rapprochement moving forward, Granma (Feb. 22, 2016). Amazingly a 2/23/16 Google search of “Cuba Consortium” did not reveal any U.S. media coverage of this Conference. Secretary Pritzker’s speech was on the website of the U.S. Treasury Department.
The United States has damage claims against Cuba and visa versa. This post will review those claims and propose a method for resolving them.
Cuba’s Expropriation of Property of U.S. Nationals. 
According to a U.S. Government report, “in 1959 and 1960 . . . the Government of Cuba after the Castro regime came into power . . . effectively seized and took into state ownership most of the property in that country owned by the [U.S.] and its nationals, with the exception of the United States Naval Base at Guantanamo Bay. No provision was made by the Cuban Government for the payment of compensation for such property as required under the generally accepted rules of international law.” (Cuba, however, has paid similar claims by Canada, France, Spain and Switzerland.) 
In response, a federal statute, the Cuba Claims Act, was enacted in 1964 to amend the International Claims Settlement Act of 1949 to grant the Foreign Claims Settlement Commission of the United States (FCSC), a quasi-judicial, independent agency within the U.S. Department of Justice, jurisdiction to receive and determine in accordance, with applicable substantive law, including international law, the amount and validity of certain claims by U.S. nationals of the against the Government of Cuba.
The covered claims for this purpose were those arising since January 1, 1959, for (a) “losses resulting from the nationalization expropriation, intervention or other taking of, or special measures directed against, property including any rights or interests therein owned wholly or partially, directly or indirectly at the time by nationals of the [U.S.];” (b) debts for merchandise furnished or services rendered by U.S. nationals; and (c) disability or death of U.S. nationals resulting from actions taken by, or under the authority of, the Government of Cuba since January 1, 1959.
The statute, however, did not provide for the payment of claims against the Government of Cuba, but only for the Commission to determine the validity and amounts of such claims. After its determinations, the Commission certified its findings to the Secretary of State for possible use in future negotiations with the Government of Cuba.
In signing the statute on October 16, 1964, President Lyndon Johnson said: “The Castro regime has appropriated over $1 billion worth of property of [U.S.] nationals in total disregard for their rights. These unlawful seizures violated every standard by which the nationals of the free world conduct their affairs. I am confident that the Cuban people will not always be compelled to suffer under Communist rule-that one day they will achieve freedom and democracy. I am also confident that it will be possible to settle claims of American nationals whose property has been wrongfully taken from them.”
The Commission had two programs for such claims against the Cuban government, resulting in the total submission of 8,821 claims and the Commission’s determinations that 5,913 were valid with a total principal value of $1,902,202,285 (or $1.9 billion) plus 6% per annum from the date of the loss. Although 90% of these claims were filed by individuals, the largest ones are by corporations: Cuba Electric (owned by Americans), $ 268 million; IT&T, $131 million; and Exxon, $71 million.
Recent commentaries suggest that with interest the claims now total nearly $7 billion. 
Default Judgment Against Cuba for Deaths of U.S. Pilots Over International Waters
A prior post about “The Cuban Five” mentioned that Cuban military planes in 1996 shot down two U.S. private planes over international waters near Cuba and killed three of their pilots and that a U.S. federal court entered a default judgment of $187 million against the Government of Cuba for their deaths. That judgment plus interest remains unpaid.
Any and all other claims for damages by the U.S. against Cuba should also be included and resolved as part of any dispute-resolution procedure.
Alleged Damages from U.S. Embargo (Blockade) of Cuba 
At the October 2014 session of the U.N. General Assembly, Cuba offered a resolution condemning the U.S. embargo (blockade), which overwhelmingly was approved. Speaking for the resolution, Cuba’s Foreign Minister, Bruno Gonzalez Parrilla, alleged that Cuba was damaged by the embargo and that the damages totaled $1.1 trillion.
The U.S. diplomat at the session obviously disagreed. The diplomat argued that Cuba’s economic difficulties were due to its own policies and that it would not thrive until it committed itself to a free and fair market, allowed unfettered access to information, opened its state-run monopolies and adopted sound economic policies.
Unpaid Rent for Use of Guantanamo Bay.
A prior post mentioned that Cuba for the last 56 years has not cashed the U.S. checks for the annual rent of $4,085 for Guantanamo Bay. This amounts to at least $228,760 for those years plus interest. If Cuba alleges that the annual unpaid rent should be a higher figure, then the total claim obviously would be higher.
If there are any other damage claims by Cuba against the U.S., then it is fair to believe they will be asserted.
These claims, in my opinion, will not be resolved in negotiations between the two countries. I, therefore, suggest that the parties agree to submit all of their damage claims against each other for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands under its Arbitration Rules 2012 before a panel of three or five arbitrators. A prior post made this recommendation for the expropriation claims,
My experience as a lawyer who handled business disputes in U.S. courts and in international arbitrations leads me to believe that arbitration is the appropriate way to resolve these claims by the two governments. The Permanent Court of Arbitration was established in the late 19th century to resolve disputes between governments. It would be a third-party, neutral administrator of the proceedings and the arbitrators who would be selected would also be neutral. Finally it has an existing set of arbitration rules and procedures.
A 2007 study commissioned by the U.S. Agency for International Development (USAID) proposed a treaty or a U.S. presidential executive order to establish a bilateral arbitration tribunal that would be empowered to issue an award compelling Cuba to pay money or to provide tax benefits or other incentives for new investment. This proposal like the one just proposed by this blogger advocates having a neutral third-party decide the outcome of these claims, but it adds the necessity of preparing and agreeing to the composition and rules of a new ad hoc tribunal. 
Everyone recognizes that Cuba does not have the financial resources to pay any large claim like the one for expropriation of U.S. nationals’ property in 1959-1960 so any substantial monetary recovery would have to come from a determination that the U.S. was liable to Cuba for damages for the embargo. Otherwise, there would have to be some settlement of the larger expropriation claims with tax or other incentives for entering into new business ventures on the island.
 This section of the post is based upon the Commission’s website’s description of the agency, an overview of the two Cuba programs, a final report on the first program, copies of what it terms “lead decisions” in the programs, decisions on all the claims and a spreadsheet listing all of those claims and their amounts.