Tag: re-establishment of diplomatic relations

Why Did Senator Patrick Leahy and Two Other Senators Make A Trip to Cuba Last Week?

On June 25 three U.S. Senators arrived in Cuba: Senators Patrick Leahy (Dem., VT) and Ben Cardin (Dem., MD), who have been there before, and Senator Dean Heller (Rep., NV). There has been no recent development that seems to have prompted this trip, which prompts the question: why this trip at this time?[1]

The U.S. Interests Section in Havana said they were there to focus “on continued progress towards normalization of relations between the United States and Cuba.”

Upon arrival in Havana, Senator Leahy said, “I’m glad to see things are changing between our countries, and the more they change, the faster they change, the better for both countries.”

They met with (i) Miguel Diaz-Canel, Cuba’s First Vice President and heir-apparent to Raul Castro, (ii) Josefina Vidal Ferreiro, Director General of the U.S. Ministry of Foreign Affairs, and (iii) other Foreign Ministry officials. They discussed relations between Cuba and the United States and the debate currently taking place in the U.S. Congress on the elimination of restrictions on travel and trade with Cuba and the lifting of the U.S. embargo (blockade).They also met with religious leaders, ambassadors and others in Havana and the eastern city of Santiago.

Senators Heller, Leahy & Cardin in Havana

At a press conference in Havana on June 27, Senator Leahy asserted, “The embargo has been an error of American policy.” He also said, “I’ve been here three times since the announcements of December 17, and “I see a new, very positive change in Cuba.”

 

Leahy added, “Obviously we still have differences, but I look forward to the United States being able to have a real embassy here. We hope that [the opening of embassies] can be very soon. Some in Congress oppose the opening, but I like to think that they are minority. We must open a full embassy. ​​We have a magnificent ambassador here and the staff and appropriate facilities. I like to think that the U.S. is a great country, and our embassies should reflect that.”

Senator Cardin said the delegation made clear to Cuban officials that the path to normalization must include dealing with thorny issues where the U.S. and Cuba have serious disagreements, such as human rights. “For normal relations to move down a productive path, it’s critically important for Cuba to recognize that it is out of step today with international human rights issues.”

The only Republican in the group, Senator Heller on his first visit to Cuba, said, “When the president is right, I support Obama, and he is right in the case of Cuba. Heller acknowledged that there is still much resistance to change in Congress. One way to overcome this resistance, he said, was for Americans to travel to Cuba to talk to people and see the reality with their own eyes. “That will change minds and hearts as has happened to me.” Heller, by the way, is a member of the Senate Committee on Finance; its Banking, Housing, and Urban Affairs Committee; its Committee on Veterans’ Affairs; its Commerce, Science, and Transportation Committee; and the Senate Special Committee on Aging.

A number of Cuba initiatives are pending in the Senate, including a bill to remove the travel ban on Americans and a more ambitions bill to rescind the decades-old U.S. economic embargo, but these proposals are opposed by the Republican leadership in control of the Senate and the House of Representatives. The three senators in Havana thought there were better prospects for progress on Cuba legislation in their chamber. Senator Heller observed, “I think the Senate can move the House, but the Senate’s going to have to act first.”

The reasons for this Republican resistance to reconciliation were captured by Héctor E. Schamis, Adjunct Associate Professor at Washington, D.C.’s Georgetown University, who said:

  • The Republican Party, “the former pragmatic party of big business, is increasingly a party of ideology and short-term electioneering.Their incentives are to protect their districts–socially homogeneous, culturally and ideologically dogmatic and uniform– attributes that rise to the surface in such varied topics as immigration, gay marriage … or the Cuban transition. Its social base is the pure and simple anti-communism, which is also old. It is a reading of the world backward, not forward. Ignore the demographic change in the Cuban-American community, where the younger they are, the more they support the strategy of Obama. The Republican Party does not know that for these young people, Castro and Napoleon belong to the same place: the history books.”

Conclusion

At the start of this post, I said there has been no recent development that seems to have prompted this trip. That is true and reveals, in my opinion, the reason for this trip at this time. By now many in the U.S. at least were expecting that the two countries would have announced that they were re-establishing diplomatic relations and thus converting their interests sections into embassies. Keys for that anticipated announcement in June were the May 29, 2015, U.S. rescission of its designation of Cuba as a “state sponsor of terrorism;” the Cuban Interests Section establishing a banking relationship with a bank in Florida; and a reported agreement regarding conditions for U.S. diplomats’ travel in Cuba.

Thus, in my opinion, the reason for this trip at this time was for Senator Leahy to attempt to determine whether there was some unknown reason from the Cubans for the lack of such an announcement and to press them to conclude the agreement for re-establishing diplomatic relations. Leahy also in the private discussions with the Cuban Foreign Ministry officials may have talked about political reasons from the U.S. perspective to have an announced re-establishment of diplomatic relations as soon as possible. After all, in his public comments in Havana, Leahy stressed the desire for a prompt opening of embassies and the need for the U.S. to open a full embassy.

Let us hope that in the next few days or weeks there will be an announcement of the resumption of diplomatic relations.

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[1] This post is based upon the following: Assoc. Press, Leahy Heads US Senate Delegation to Cuba Ahead of Embassies, N.Y. Times (June 26, 2015); Diaz-Canel received US Senators, Granma (June 26, 2015); Miguel Diaz-Canel meets with US Senator Patrick Leahy, Marti (June 26, 2015); Senator Leahy in Havana: The blockade has been an error of US policy, CubaDebate (June 27, 2015); Gomez, Normalization is the right way, say US senators in Havana, Granma (June 27, 2015); Assoc. Press, US Sen. Leahy Sees ‘Positive Change,’ Work to Do in Cuba, N.Y. Times (June 27, 2015); Reuters, U.S. Senators Visit Cuba, Hope Congress Will Ease Restrictions, N.Y. Times (June 27, 2015); Schamis, Obama’s Cuba and its discontents, El Pais (June 28, 2015).

 

 

 

Assessment of the Status of U.S.-Cuba Reconciliation

Three recent articles in Cuba’s state-controlled media offer the Cuban government’s assessment of the current status of U.S. reconciliation. The lead article was Cuban journalists’ interview of Josefina Vidal, Cuba’s lead diplomat for the negotiations with the U.S. This post will summarize these three articles [1] and then offer an evaluation of Cuba’s assessment.

Current Status of Negotiations

Several days after the failure of the countries to reach an agreement about re-establishing diplomatic relations, Vidal remained optimistic. In the five months since the December 17th announcement of rapprochement and the mutual release of certain prisoners, she thought there had been progress in the process of normalization of relations. The removal of Cuba from the U.S. list of state sponsors of terrorism was to happen by the end of May, as it in fact did on May 29th, and Cuba’s Interests Section in Washington, D.C. has obtained a U.S. banking relation that was necessary for the effective operation of the Section and of a future Cuban embassy. [2]

In addition, for about the last two years, she added, the countries have been discussing and progressing on “technical” matters, including collaboration on infectious diseases, narcotics trafficking, immigration (including the U.S. “wet foot/dry foot” policy under its Cuban Adjustment Act) and their respective enforcement of their own domestic laws with visitors from the other country.

Moreover, said Vidal, the Cuba-U.S. interactions “are respectful, they are professional. We are treating each other as equals, on a foundation of respect and total reciprocity.”

Also supportive of reconciliation of the two countries have been visits to Cuba by U.S. federal and state government officials and U.S. business groups. [3]

 Re-establishment of Diplomatic Relations

Although the parties had not reached agreement on the details of re-establishing diplomatic relations at their negotiations in Washington, D.C. on May 21-22, Vidal suggested that progress had been made on these details, which conceivably could be resolved through direct communications without another negotiating session.

The remaining issues, she said, focused on the future “conduct of diplomats” and “the functioning of a diplomatic mission,” all under the U.N. Charter and the Vienna Convention on Diplomatic Relations, which both parties recognize as establishing or confirming the international law on the subjects. More specifically, Vidal said, “We must talk about the number of people, what kind of staff” the embassies will have or “what type of rank these officials [are] going to have” and “what privileges and immunities.” [4]

These comments by Vidal (and by Jacobson in the footnote) suggest that the provisions of the Vienna Convention provide flexibility and thus room for negotiation on the details of the functioning of the two countries’ embassies and diplomats. Indeed, that assumption is confirmed by the following relevant provisions of the Convention:

  1. Under Article 7, “the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.” However, Article 11 provides “the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission” and also “may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.”
  1. With respect to diplomatic personnel’s travel and conduct, Article 26 states, “Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” However, Article 41 provides, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.” In addition, Article 41 states, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Vidal’s concern about the “conduct of diplomats” and “the functioning of a diplomatic mission” was an allusion to Cuba’s objection to certain recent covert or secret or “discreet” programs by the U.S. Agency for International Development (USAID) allegedly to promote democracy and human rights in Cuba and to public seminars for Cuban journalists at the U.S. Interests Section in Havana that will be discussed below.

 Future Issues for Discussion and Resolution

According to the Vidal interview, Cuba has presented to the U.S. the following “preliminary list” of other issues that need to be discussed and resolved for full normalization of relations: (a) the U.S. “lifting of the blockade [embargo];” (b) “the return of the territory illegally occupied by the Guantanamo Naval Base;” (c) “an end to illegal broadcasts by Radio and Televisión Marti;” (d) an “end to [U.S.] programs which were originally conceived to promote regime change” in Cuba and which for fiscal year 2016 have requests for funding of $20 million, especially in light of President Obama’s statement at the recent Summit of the Americas that the purpose of U.S. policy regarding Cuba was not regime change; [5] (e) “compensation for our country and our people for the damages caused by U.S. policy [primarily the embargo or blockade] over 50 years; ” and (f) restitution of Cuba’s frozen funds in the U.S.

The U.S., on the other hand, say the Cubans, has identified at least one issue for discussion in the second phase of negotiations: “compensation for the properties [of U.S. nationals] which were nationalized in Cuba at the beginning of the Revolution.” [6]

Moreover, Vidal said, the parties have not yet discussed how these issues would be discussed or resolved: “if a mechanism [such as commissions or groups] will be created;” or whether the issues would be discussed as a whole or separately.

According to the Gomez article in Granma, “the greatest challenge facing Cuba and the United States is establishing a relationship of civilized co-existence based on respect for their profound differences.”

 Conclusion

The Obama Administration and this blogger concur in the need for the U.S. to end the embargo (or “blockade” in Cuba’s view), which requires action by the U.S. Congress. Prior posts have discussed pending bills in the Senate and House of Representatives to do just that and urged U.S. citizens to press both chambers to pass such bills. Another post recommended submitting Cuba’s claim for money damages ($1.2 trillion as of last October) from the embargo/blockade to the Permanent Court of Arbitration where the U.S. can mount counter-evidence and arguments.

With respect to Guantanamo Bay, as discussed in a prior post, Cuba’s continually saying that the U.S. is “illegally” occupying the territory does not make it so and I do not think the U.S. would ever agree to such a legal conclusion. If Cuba continues to assert that contention, as I expect that it will, then the parties should submit the dispute for resolution by the Permanent Court of Arbitration.

The New York Times editorial board and this blogger agree with Cuba’s contention that the U.S. improperly has mounted covert, secret or “discreet” and ill conceived USAID programs to promote regime change in Cuba and that the U.S. should cease any and all such programs. Instead, it should propose joint-programs to the Cuban government for enhancement of Cuban human rights and democracy, and if and only if the Cubans agree, then the programs could proceed. (These issues were discussed in posts of 4/4/14, 4/9, 4/9, 8/12, 8/13 and 8/14).

The U.S. claims for money damages for compensation for Cuba’s expropriation of property owned by U.S. nationals and interests will obviously be discussed, as stated above, and in the likely event that the parties will not agree to the amount of such compensation, that too should be submitted to the Permanent Court of Arbitration.

In this process of working on the many issues that have accumulated over the last 50-plus years, both sides must recognize, as I think they do, the need to build mutual trust during the initial stages of diplomatic relations and, if all goes well, to the possible future relaxation of any restrictions. It does not help the process for bystanders, like Senators Marco Rubio and Bob Menendez, to loft scathing and premature criticisms of the process and to attempt to create new legislative roadblocks and impediments to that process.

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[1] This post is based upon the following: Josefina Vidal discusses recent talks in Washington, Granma (May 26, 2015); Gómez, Seven key points, Granma (May 25, 2015); Cańedo, Cuba-United States after 17D [December 17], Cubadebate (May 25, 2015).

[2] Immediately after the May 21-22 negotiations in Washington, D.C., Assistant Secretary of State Roberta S. Jacobson, the U.S.’ lead diplomat, shared Vidal’s optimism. Jacobson said, “This round of talks was highly productive. . . . We have made significant progress in the last five months and are much closer to reestablishing relations and reopening embassies. . . . [W]e have gotten much closer than we were each time we talk. . . . I remain optimistic that we will conclude, but we still have a few things that need to be ironed out and we’re going to do that as quickly as possible.” On the other hand, according to Jacobson, “I’m also a realist about 54 years that we have to overcome.”

[3] These visits have included congressional trips in January, February (Senate and House), and May, and a visit by a major business delegation in March.

[4] Assistant Secretary Jacobson in her comments after the latest round of negotiations concurred that the Vienna Convention established the parameters for the functioning of the countries’ embassies and conceded that “there [is] a range of ways in which our embassies operate around the world in different countries. We expect that in Cuba, our embassy will operate within that range and so it won’t be unique. It won’t be anything that doesn’t exist elsewhere in the world. There are various circumstances in which embassies operate in somewhat restrictive environments. . . .[W]e have confidence that . . . our embassy will be able to function so that our officers can do their jobs as we expect them to do worldwide, but in highly varying locations around the world. So I have every expectation that it will fall within the range of other places where we operate.”

[5] Cuba correctly points out that USAID, on the one hand, proclaims on its public website that its Cuba programs “Provide humanitarian assistance (basic foodstuff, vitamins and personal hygiene supplies) to political prisoners and their families; Promote human rights and fundamental freedoms, as well as support for independent civil society by strengthening leadership skills and providing opportunities for community organizing; and Facilitate information flow to, from and within the island” and that through four named private “partners” it has spent and will spend a total of $14.2 million for these programs for the three fiscal years ending 9/30/15 and an additional $20 million in Fiscal Year 2016.  USAID, on the other hand, has carried out these programs unilaterally, without the prior knowledge or consent, of the Cuban government. In addition, the U.S. Department of State at its Interests Section in Havana has hosted seminars for journalists and a Public Information Center with a lending library and Internet-enabled computers available to Cubans and others. Assistant Secretary Jacobson said at the May 22nd press conference, “[W]e have continued to request funds from Congress for various activities in support of the Cuban people [and] that those programs have changed over time since they began in 1996” and they might be changed in the future.

[6] A prior post discussed the issue of Cuba’s compensating U.S. owners of property expropriated in the Cuban Revolution. Moreover, the U.S. already has identified at least the following additional issues for further discussion and negotiation: extradition of persons for crimes in their home country (2/24/15 post) and Cuban human rights and democracy (posts of 3/27, 3/28, 3/29, 3/30 and 4/1), and such discussions already have been commenced.