On April 13-14, President Donald Trump will attend the Summit of the Americas in Lima, Peru, and on April 19 Cuba’s national legislature will elect a new President of the Council of State to succeed Raúl Castro. Both of these events will require Trump to comment on U.S. policies regarding Cuba, and already U.S. forces are proposing responses.
Summit of the Americas
Because of U.S. opposition, Cuba was not included in the first six such summits, 1994-2012, but in October 2014, the major countries of Latin America let it be known that Cuba no longer could be excluded from the next summit in April 2015. Therefore, when President Obama on December 17, 2014, announced that the U.S. and Cuba had agreed to commence a process of normalization, the U.S. abandoned its opposition to the inclusion of Cuba in such Summits. As a result, in April 2015 Cuba was included in the seventh such summit in Panama and Presidents Obama and Raúl Castro held a cordial meeting on that occasion.[1]
This year will be the eighth such summit, which are institutionalized gatherings of the heads of state and government of the Western Hemisphere where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced in the Americas. This year’s theme is Democratic Governance Against Corruption.[2]
On March 9, the White House announced that President Trump will attend the eighth Summit, where he likely will be met by hostile reactions to his Cuba policies as well as his anti-immigrant statements, proposal to build a wall on the Mexican border and tariff and other anti-free trade proposals and rhetoric.[3]
According to Ben Raderstorf, a program associate in the Inter-American Dialogue’s Peter D. Bell Rule of Law program, President Trump “comes to the summit meeting with considerable baggage, making the risks far greater. His participation may even end up being counterproductive to the meeting’s primary aims of furthering human rights, democracy and inter-American diplomacy.” Therefore, he and his administration need “to understand that America’s credibility in Latin America is extraordinarily low. [Mr. Trump’s] rhetoric about ‘drugs,’ ‘rapists’ and ‘the wall” ‘has clearly resonated south of the border.” As a result, only “16 percent of Latin Americans approve of Mr. Trump’s job performance — a rate even lower than his approval rating among Latinos in the United States.”[4]
Mr. Raderstorf concludes by recommending that Trump “follow three simple guidelines: Listen first. Talk softly. And do your homework.” Will Trump be able to do that? We may be doubtful, but let us wait and find out.
This analysis is confirmed by other countries in the Western Hemisphere having begun “forging closer commercial ties with one another and paring back some of their own protectionist policies” and creating “a free trade area reaching from Canada to Chile.” At the same time these governments “are increasingly looking to Asia, and China in particular, to expand trade, obtain loans and finance infrastructure projects” while “Mercosur — the trade bloc that includes Brazil, Argentina, Uruguay and Paraguay — have jump-started trade negotiations with the European Union.”[5]
Election of New President of Cuba
On March 11, over 8 million Cubans voted to elect 605 deputies for their national legislature (National Assembly of Peoples Power), and on April 19 those deputies will elected the country’s next President of the Council of State to succeed Raúl Castro. The widely assumed choice for this office is Miguel Diaz-Canel, who is now the First Vice President of Cuba.[6]
On March 9, Senator Marco Rubio (Rep., FL) and five Florida Republican U.S. Representatives (Ron DeSantis, Carlos Curbelo, Mario Diaz-Balart, Ileana Ros-Lehtinen and Ted Yoho) sent a letter to President Trump urging him to “denounce Castro’s successor as illegitimate in the absence of free, fair, and multiparty elections, and call upon the international community to support the right of the Cuban people to decide their future.”[7]
The letter added, this upcoming election is “a predetermined, charade election orchestrated by regime officials will continue the dictatorship” and “yet another example of the regime’s dictatorial repression of fundamental freedoms which must not be recognized by those who value freedom and democracy.”
The U.S. response to this request by Senator Rubio and others may have been signaled by the comments of the U.S. representative last week at the U.N. Human Rights Council in Geneva Switzerland that were quoted in a prior post: “We condemn the undemocratic electoral process in which the Cuban people cannot freely choose their future leaders.”
Conclusion
Any U.S. criticism of the Cuban process for electing its president of the Council of State seems particularly inappropriate. As we well know from the 2016 U.S. presidential election, U.S. citizens do not directly elect the U.S. president; instead they elect individuals to be members of the Electoral College who then elect the president. The 2016 election also is now under investigation for illegal interference by Russia, and the U.S. system is under constant legal challenge for the gerrymandering of congressional districts and for state laws that are designed to suppress voting instead of their purported purpose of preventing fraudulent voting.
On December 13 U.S. Representative Peter King (Rep., NY) and eight cosponsors filed a proposed House resolution calling for the extradition of U.S. citizens in Cuba who are fugitives from the U.S. That proposal will be summarized and analyzed below.
The preamble of the proposed resolution, which was referred to the House Committee on Foreign Affairs, recited that “more than 70 fugitives from the United States, charged with offenses ranging from hijacking to kidnapping to drug offenses to murder, are believed to be receiving safe harbor in Cuba,” including William Morales and Joanne Chesimard. It also mentioned that the U.S. and Cuba have a bilateral extradition treaty from 1905 and 1926 and that “it is imperative that Cuba abide by its extradition treaty with the United States and immediately extradite or render to the United States those legally indicted or convicted of serious criminal offenses in the United States.”
Therefore, the proposed resolution called for the following:
“the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States;”
the U.S. urging “the international community to continue to press for the immediate extradition or rendering of all fugitives from justice that are receiving safe harbor in Cuba;” and
“the Secretary of State and the Attorney General to continue to press for the immediate extradition or rendering of all fugitives from United States justice so that they may be tried and, if convicted, serve out their sentences.”
Analysis of the Proposed Resolution
The resolution may make for good publicity for these representatives, but it is a waste of time because the terms of the U.S.-Cuba extradition treaty bar such extraditions, because the U.S. repeatedly has called for Cuba to make these extraditions and because Cuba repeatedly has denied such requests under the very terms of the extradition treaties recited in this resolution.
First, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.
In the U.S., international extradition is treaty-based, meaning that the U.S. must have an extradition treaty with the requested country in order for the latter to consider the request for extradition. U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties. While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.
For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.
In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:
An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
A similarly widely adopted exception is where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.
Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties, however, this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.
The issues posed by the new proposed House resolution are governed by the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice,” which entered into force on March 2, 1905. Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926 (44 Stat. 2392; TS 737).
The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” However, under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty.”
The long list of crimes covered by Article II, as amended, includes the following: (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”
Under Article VI of the original treaty, however, the requested country is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)
The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” (Emphasis added.)
Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) [3]
To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and (c) previous U.S. and Cuban requests for extradition.
U.S. Fugitives In Cuba
According to U.S. Department of State annual reports purportedly justifying the previous designations of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.
However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments, but a FBI response to this request has not been located.
In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey state prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.” In May 2013 the FBI added her name to its “Most Wanted” list.
Cuba, however, before the December 2014 rapprochement had rejected U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.
After the announcement of rapprochement, the two countries have discussed various extradition issues, including at least some of the U.S. nationals in Cuba who are mentioned in the new proposed resolution in the House of Representatives, including Chesimard/Shakur.[4]
However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”
In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation Afterwards the State Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.”
Conclusion
As a result, the new proposed Resolution does not deserve to be adopted, and if adopted, it will not have any practical effect.
On November 8, the Trump Administration announced new regulations regarding U.S. citizens traveling to Cuba and Americans transactions with certain Cuban entities, all as discussed in yesterday’s blog post. Here are initial reactions to that announcement in the U.S. and in Cuba.
Engage Cuba, a major coalition supporting U,S,-Cuba normalization, released a lengthy statement criticizing the new regulations. It said they “create a more convoluted, confusing and counterproductive approach to Cuba policy. This ‘Keystone Cops’ Cuba policy hurts those it claims to help and helps those it claims to hurt.” In addition, this action has “fumbled our Cuba policy right into the hands of Vladimir Putin. While the Cuban people and U.S. businesses lose out, reverting back to our policy of isolation is a gift to the Kremlin. Russia is quickly expanding its foothold in Cuba, looking to regain its once diminished sphere of influence in our backyard. Abandoning Cuba and allowing Russia to fill a leadership vacuum is undoubtedly a threat to our national security.”
Moreover, according to Engage Cuba, “These new regulations are a kick in the gut to Cuban entrepreneurs who are struggling to support their families. Americans are significantly contributing to the growth of Cuba’s private sector. Today’s announcement will only make it harder for Americans to travel to Cuba and support the growing private sector.”
Senator Patrick Leahy (Dem., VT), a leading advocate for normalization, said the new regulations “are reminiscent of the Cold War and what one would expect of a paranoid totalitarian government, not a democracy like ours. [They are] onerous and petty restrictions on what private American citizens can do in Cuba — an impoverished neighbor that poses not the slightest threat to the United States. Far from promoting human rights in Cuba, these new regulations will hurt fledgling entrepreneurs and the rest of the Cuban people by discouraging Americans from traveling there.”
Senator Diane Feinstein (Dem., CA) tweeted that “isolating the Cuban people did not serve US interests before and certainly will not now.”
Representative Mark Sanford (Rep., SC), who is the author of a pending bill for freedom to travel to Cuba, said the new regulations were “outdated and an unfair limitation of American freedom.”
Senator Marco Rubio (Rep., FL), a major force for harsh U.S. measures about Cuba, had a luke-warm reaction to the new U.S. regulations. He criticized the State Department for failure to include on the Cuba Restricted List “several entities and sub-entities that are controlled by or act on behalf of the Cuban military, intelligence or security services They Gran Caribe Hotel Group and Cubanacan,” which are owned by the tourism ministry, not the military.
Rubio asserted that “individuals within the bureaucracy who support the former administration’s Cuba policy continue to undermine President Trump.” Similar views were expressed by Representatives Mario Diaz-Balart (Rep., FL) and Ileana Ros-Lehtinen (Rep., FL)
Josefina Vidal, Cuba’s top diplomat in the 2015-16 bilateral negotiations, said the new rules were a “serious reversal” in ties between the two countries. She believed the new regulations were unjustified and a great political nuance. They adversely will affect U.S. businessmen, who will lose interesting business opportunities existing on the island today, as opposed to their competition. At the same time, they will harm the Cuban economy, both the state and the private sector.
The U.S. category travel for ‘Support for the Cuban People,’ she said,’ does not “hide its subversive background, such as the one that encourages travelers to carry out activities to justify the U.S. legality of their visits to Cuba. These activities include maintaining contacts with the Cuban people, supporting what the U.S. defines as civil society and promoting their independence from the Cuban State.” She also said the U.S.’ Cuba Restricted List is an “arbitrary list that is made up of “a diversity of Cuban entities supposedly linked, in an unfounded manner, to the defense and national security sector.”
Conclusion
This blogger sides with the critics of the new regulations.
On October 10 President Donald Trump announced his intent to nominate Yleem D. S. Poblete of Virginia and a Cuban-American to be an Assistant Secretary of State, Verification and Compliance.[1] The announcement stated the following:
“Poblete is currently a senior advisor at the Department of State. She has also served more than two decades on the staff of the Committee on Foreign Affairs of the U.S. House of Representatives, including as its chief of staff and staff director – the first Hispanic female to serve in that post. Dr. Poblete is broadly knowledgeable regarding proliferation matters, the International Atomic Energy Agency, nuclear agreements, sanctions and export controls, security assistance and arms sales. During her service on the Foreign Affairs Committee, she was the principal staff member on initiatives to address threats posed by Iran, North Korea, and Syria. She has been a frequent guest lecturer at the National Intelligence University. She has also been the co-owner of Poblete Analysis Group, a fellow at The Catholic University of America, and a foreign policy analyst for United States Government projects at the Hudson Institute. Dr. Poblete earned a B.A. from Saint Thomas University, an M.A. magna cum laude from the University of Miami, and a Ph.D. from The Catholic University of America.”
The announcement, however, failed to say that she was a member of the Trump transition’s National Security Council “landing team,” that as a House committee staffer she helped push for, and enforce, sanctions laws related to Cuba and Iran, and that for nearly 20 years she served as an advisor and House Foreign Affairs Committee staffer for Representative Iliana Ros-Lehtinen, also a Cuban-American and fierce opponent to U.S.-Cuba normalization.[2]
Moreover, as mentioned in a prior post, Dr. Yleen Poblete also co-leads a consulting group, The Poblete Analysis Group, with her husband and fellow Cuban-American, Jason Poblete. She and her husband have written articles critical of President Obama’s pursuit of normalization with Cuba. They argued that Cuba was a ‘state sponsor of terrorism,” a designation rescinded by the State Department in May 2015;that the re-opening of the Cuban Embassy in Washington, D.C. increased the risk of Cuban spying on the U.S.; and that Cuba was a “pariah state [that] has earned every punitive measure imposed by the U.S.;” it “helped create and grow the Western Hemisphere drugs for arms network;” its “[h]ostile acts carried out by Havana’s spy recruits in the U.S. government are linked to American deaths;” it “also continues to collaborate with fellow rogues such as Iran;” it “harbors terrorists, as well as murderers and other dangerous fugitives of U.S. justice.”
After the death of Fidel Castro last November she tweeted, “Lost in talk of #castrodeath is #cuba regime murder of Americans, safe haven 4 terrorists & US fugitives, #Iran ties, arms to #NorthKorea.”[3]
Conclusion
Given President Trump’s negative comments and actions against U.S.-Cuba normalization and his inclusion of Dr. Yleem Poblete on the transition team and as a senior advisor at the State Department, the intent to nominate her to a higher position at the Department should not be surprising.
As Assistant Secretary. Dr. Poblete will be in charge of the Department’s Bureau of Arms Control, Verification and Compliance, whose “core missions . . . concern arms control, verification, and compliance with international arms control, nonproliferation, and disarmament agreements or commitments.” Thus, it would not appear that this involves Cuba.[4]
Nevertheless, those of us Americans who support full normalization of U.S.-Cuba relations, this intended appointment is one to keep our eyes on.
On October 26, the United Nations General Assembly voted, 191 to 0 (with two abstentions), to adopt a resolution proposed by Cuba to condemn the United States embargo of Cuba. For the first time in the 25-year history of the annual vote on such resolutions, the U.S, rather than opposing the text, cast an abstention, prompting Israel to do likewise.[1]
This post will examine the resolution’s text, its presentation by Cuba, its support by other countries and the arguments for abstention offered by the U.S. and Israel. This post will then conclude with a brief discussion of reaction to the abstention in the U.S. Prior posts discussed the similar General Assembly resolutions against the embargo that were adopted in 2011, 2014 and 2015.
It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime (¶ 3).
The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then welcomed “the progress in the relations between the Governments of Cuba and the [U.S.] and, in that context, the visit of the President of the [U.S.], Barack Obama, to Cuba in March 2016” while also recognizing “the reiterated will of the President of the [U.S.] to work for the elimination of the economic, commercial and financial embargo against Cuba” and “the steps taken by the [U.S.] Administration towards modifying some aspects of the implementation of the embargo, which, although positive, are still limited in scope.”
Cuba’s Presentation of the Resolution
Bruno Rodriguez
Speaking last in the debate, Cuba’s Foreign Minister Bruno Rodriguez Parrilla, presented arguments for adopting the resolution. Here are extracts of that speech:
“[T]here has been progress [between Cuba and the U.S. since December 2014] in the dialogue and cooperation on issues of common interest and a dozen agreements were signed [and] reciprocal benefits reported. Now just announced the vote of the US abstention on this draft resolution.”
“The [U.S.] president and other top officials have described [the embargo/blockade] as obsolete, useless to advance American’s interests, meaningless, unworkable, being a burden for [U.S.] citizens, . . . [harming] the Cuban people and [causing]. . . isolation to the [U.S.] and [have] called [for the embargo/blockade] to be lifted.”
“We recognize that executive measures [to reduce the scope of the embargo] adopted by the government of the [U.S.] are positive steps, but [have] very limited effect and scope. However, most of the executive regulations and laws establishing the blockade remain in force and are applied rigorously to this minute by U.S. government agencies.”
“Meanwhile, the U.S. Congress has not approved any of the 20 amendments or legislative initiatives, with bipartisan support, . . . [for] eliminating some restrictions of the blockade or even all of this policy. [Moreover,] there have been more than 50 legislative initiatives that threaten to reinforce key aspects of the blockade, preventing the President [from] approving new executive or implementing measures already adopted.”
“It cannot be underestimated in any way the powerful political and ethical message that [action by this Assembly] . . . sends to the peoples of the world. The truth always [finds] its way. Ends of justice prevail. The abstention vote announced surely is a positive step in the future of improved relations between the[U.S.] and Cuba. I appreciate the words and the efforts of Ambassador Samantha Power.”
“[There] are incalculable human damages caused by the blockade. [There is no] Cuban family or industry in the country that does not suffer its effects on health, education, food, services, prices of goods, wages and pensions.” For example, the “imposition of discriminatory and onerous conditions attached to the deterrent effects of the blockade restrict food purchases and the acquisition in the U.S. market for drugs, reagents, spare parts for medical equipment and instruments and others.”
“The [embargo/] blockade also [adversely] affects the interests of American citizens themselves, who could benefit from various services in Cuba, including health [services].”
“The [embargo/] blockade remains a massive, flagrant and systematic violation of human rights of all Cubans and qualifies as an act of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. It is an obstacle to cooperation [in] international humanitarian areas.”
“The blockade is the main obstacle to economic and social development of our people. It constitutes a flagrant violation to international law, the United Nations Charter and the Proclamation of Latin America and the Caribbean as a Zone of Peace. Its extraterritorial application adds further to its violation of international law nature of magnitude.”
“Other causes, in addition to [the blockade/embargo] . . . , determine our economic difficulties: the unjust international economic order; the global crisis; the historical distortions and structural weaknesses caused by underdevelopment; high dependence on energy and food imports; the effects of climate change and natural disasters; and also . . . our own mistakes.”
“Between April 2015 and March 2016, the direct economic damage to Cuba by the blockade amounted to $4.68 billion at current prices, calculated rigorously and prudently and conservatively. The damages accumulated over nearly six decades reach the figure of $753 billion, taking into account depreciation of gold. At current prices, [that is] equivalent to just over $125 billion.”
“On 16 April 2016 President Raul Castro Ruz said, ‘We are willing to develop a respectful dialogue and build a new relationship with the [U.S.], as that has never existed between the two countries, because we are convinced that this alone . . . [will provide] mutual benefits.’ And last September 17, he said ‘I reaffirm the will to sustain relations of civilized coexistence with the [U.S.], but Cuba will not give up one of its principles, or make concessions inherent in its sovereignty and independence.’”
“The government of the [U.S.] first proposed the annexation of Cuba and, failing that, to exercise their domination over it. The triumph of the Cuban Revolution . . . [prompted the U.S. adoption of the embargo whose purpose] was ‘to cause disappointment and discouragement through economic dissatisfaction and hardship … to deny Cuba money and supplies, in order to reduce nominal and real wages, with the aim of causing hunger, desperation and overthrow of government. ‘”
“The [new U.S.] Presidential Policy Directive [states] that the Government of the [U.S.] recognizes ‘the sovereignty and self-determination of Cuba’ and [the right of] the Cuban people to make their own decisions about their future.’” It also states “the U.S. will not seek a ‘change of regime in Cuba.’”[2]
But the Directive also says “’the [U.S.] will support the emerging civil society in Cuba and encourage partners and non-governmental actors to join us in advocating in favor of reforms. While the United States remain committed to supporting democratic activists, [we] also [will] participate with community leaders, bloggers, activists and other leaders on social issues that can contribute to the internal dialogue in Cuba on civic participation.’ The Directive goes on to say: “The [U.S.] will maintain our democracy programs and broadcasting, while we will protect our interests and values, such as Guantanamo Naval Base … The government of the United States has no intention of modifying the existing lease agreement and other related provisions.’”
The Directive also asserts that Cuba “remains indebted to the [U.S.] regarding bilateral debts before the Cuban Revolution.”
The U.S. needs to “recognize that change is a sovereign matter for Cubans alone and that Cuba is a truly independent country. It gained its independence by itself and has known and will know how to defend [its] greatest sacrifices and risks. We are proud of our history and our culture that are the most precious treasure. We never forget the past because it is the way never to return to it. And we decided our path to the future and we know that is long and difficult, but we will not deviate from it by ingenuity, by siren songs, or by mistake. No force in the world can force us to it. We will strive to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation. We will not return to capitalism.”
During the debate the following 40 countries expressed their support of the resolution:
Latin America: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic (for Commonwealth of Latin American and Caribbean States (CELAC)), Ecuador, El Salvador, Jamaica (for Caribbean Community (CARICOM)), Mexico, Nicaragua, Saint Vincent and Grenadines, Uruguay and Venezuela (for Non-Aligned Movement (NAM)).
Africa: Algeria, Angola, Libya, Mozambique, Namibia, Niger (for African States), South Africa, Sudan and Tonga.
Middle East: Egypt, Kuwait (for Organization of Islamic Conference (OIC)) and Syria.
Asia: Belarus, China, Democratic People’s Republic of Korea [North Korea], India, Indonesia, Iran, Lao People’s Democratic Republic, Malaysia, Myanmar, Russian Federation, Singapore (for Association of Southeast Asian Nations (ASEAN)), Thailand (for Group of 77 and China) and Viet Nam.
The U.S. Ambassador and Permanent Representative to the United Nations, Samantha Power, announced the U.S. abstention before the debate and voting on the resolution. Here are extracts of her speech about that vote.
“For more than 50 years, the [U.S.] had a policy aimed at isolating the government of Cuba. For roughly half of those years, U.N. Member States have voted overwhelmingly for a General Assembly resolution that condemns the U.S. embargo and calls for it to be ended. The [U.S.] has always voted against this resolution. Today the [U.S.] will abstain.”
“In December 2014, President Obama made clear his opposition to the embargo and called on our Congress to take action to lift it. Yet while the Obama Administration agrees that the U.S. embargo on Cuba should be lifted, . . . we don’t support the shift for the reason stated in this resolution. All actions of the [U.S.] with regard to Cuba have been and are fully in conformity with the U.N. Charter and international law, including applicable trade law and the customary law of the sea. We categorically reject the statements in the resolution that suggest otherwise.”
“But [today’s] resolution . . . is a perfect example of why the U.S. policy of isolation toward Cuba was not working – or worse, how it was actually undermining the very goals it set out to achieve. Instead of isolating Cuba, . . . our policy isolated the [U.S.], including right here at the [U.N.].”
“Under President Obama, we have adopted a new approach: rather than try to close off Cuba from the rest of the world, we want the world of opportunities and ideas open to the people of Cuba. After 50-plus years of pursuing the path of isolation, we have chosen to take the path of engagement. Because, as President Obama said in Havana, we recognize that the future of the island lies in the hands of the Cuban people.”[5]
“Abstaining on this resolution does not mean that the [U.S.] agrees with all of the policies and practices of the Cuban government. We do not. We are profoundly concerned by the serious human rights violations that the Cuban government continues to commit with impunity against its own people – including arbitrarily detaining those who criticize the government; threatening, intimidating, and, at times, physically assaulting citizens who take part in peaceful marches and meetings; and severely restricting the access that people on the island have to outside information.”
“We [,however,] recognize the areas in which the Cuban government has made significant progress in advancing the welfare of its people, from significantly reducing its child mortality rate, to ensuring that girls have the same access to primary and secondary school as boys.”
“But none of this should mean that we stay silent when the rights of Cuban people are violated, as Member States here at the [U.N.] have too often done. That is why the [U.S.] raised these concerns directly with the Cuban government during our [recent] historic dialogue on human rights . . ., which shows that, while our governments continue to disagree on fundamental questions of human rights, we have found a way to discuss these issues in a respectful and reciprocal manner.[6] We urge other Member States to speak up about these issues as well.”
“As President Obama made clear when he traveled to Havana, we believe that the Cuban people – like all people – are entitled to basic human rights, such as the right to speak their minds without fear, and the right to assemble, organize, and protest peacefully. Not because these reflect a U.S.-centric conception of rights, but rather because they are universal human rights – enshrined in the U.N. Charter and in the Universal Declaration of Human Rights – which all of our 193 Member States are supposed to respect and defend. Rights that are essential for the dignity of men, women, and children regardless of where they live or what kind of government they have.”
The U.S. concedes that it “has work to do in fulfilling these rights for our own citizens. And we know that at times in our history, U.S. leaders and citizens used the pretext of promoting democracy and human rights in the region to justify actions that have left a deep legacy of mistrust. We recognize that our history, in which there is so much that makes us proud, also gives us ample reason to be humble.”
“The [U.S.] believes that there is a great deal we can do together with Cuba to tackle global challenges. That includes here at the [U.N.], where the decades-long enmity between our nations has at best been a distraction – and at worst, an obstacle – to carrying out some of the most important work of this institution and helping the world’s most vulnerable people.”
Engage Cuba, a U.S. national coalition of private companies, organizations and state and local leaders working to lift the embargo, said, “Year after year, the international community has condemned our failed unilateral sanctions that have caused great economic hardship for the people of Cuba and continue to put American businesses at a competitive disadvantage. The fact that the Administration and Israel abstained from voting for the first time ever demonstrates the growing recognition that the U.S. embargo on Cuba is a failed, obsolete policy that has no place in today’s international affairs.”
Senator Marco Rubio (Rep., FL), on the other hand, blasted the abstention, saying the Obama administration had failed to honor and defend U.S. laws in an international forum. Similar negative reactions were registered by Senators Ted Cruz (Rep., FL) and Robert Menendez (Dem., NJ), Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart, and the U.S.-Cuba Democracy PAC.
As an U.S. citizen-advocate for ending the embargo as soon as possible, I am pleased with the U.S. abstention and agree with Ambassador Power that this vote does not mean the U.S. agrees with the resolution’s stated reasons.
Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it. A prior post, therefore, suggested that the two countries agree to submit this and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at the Hague in the Netherlands.
The first anniversary of U.S.-Cuba rapprochement, on December 17, 2015, was not marked by any ceremony in either country. Instead, public statements were issued by the White House, the U.S. State Department, the de facto U.S. Ambassador to Cuba, Jeffrey De Laurnetis. U.S. Senators and Representatives, Cuban officials and others. Nothing new or surprising was said in any of them.
On the anniversary date, President Obama released a statement on the subject. He said that during this year “we have taken important steps forward to normalize relations between our countries” that were detailed in the previously released FACT SHEET discussed below. The President continued, “We are advancing our shared interests and working together on complex issues that for too long defined—and divided—us. Meanwhile, the United States is in a stronger position to engage the people and governments of our hemisphere. Congress can support a better life for the Cuban people by lifting an embargo that is a legacy of a failed policy.” Nevertheless, “Change does not happen overnight, and normalization will be a long journey.”
The earlier White House FACT SHEET. listed the following eleven significant steps of normalization this past 12 months:
U.S. “removal of Cuba from the State Sponsors of Terrorism List;”
“re-establishment of diplomatic relations and opening of embassies; “
Secretary of State Kerry’s visit to Cuba;
the establishment of the U.S.-Cuba Bilateral Steering Commission, which has produced a working relationship to protect the environment and manage marine protected areas in Cuba, Florida and the Gulf of Mexico; an expansion of counternarcotics cooperation, increased cooperation to prevent smuggling; an understanding to re-establish direct postal services between the two countries; and commencement of discussions on property claims;
the commencement of talks to improve Cuban human rights;
cooperation on medical relief to Haiti;
easing of restrictions on U.S. citizens travel to Cuba, resulting in a 54% increase of such travel;
easing of U.S. restrictions on commerce with Cuba;
easing of U.S. restrictions on telecommunications and internet commerce with Cuba, resulting in several private business transactions to do just that;
discussions to increase cooperation regarding security of trade and travel flows;
U.S. support of Colombia-FARC peace talks monitored by Cuba; and
The Administration’s continued advocacy for congressional ending the U.S. embargo of Cuba.
Benjamin J. Rhodes, Mr. Obama’s deputy national security adviser for strategic communications, who participated in the secret talks that led to the rapprochement, said, “We went into this with no illusions that the Cubans were going to radically change their political system overnight, but our belief has been that greater engagement, greater people-to-people ties, greater commercial activity does open up space for the Cuban people. Part of what we are doing is raising people’s expectations, and that’s appropriate.”
Rhodes added, We reject this notion that our opening is a form of concession, because the opening is the whole point — we think it’s in our interest to have people traveling down to Cuba and doing business there. There’s a natural momentum to these things.”
President Obama himself last week stated that he hopes to visit Cuba during his last year in office, but only if enough progress has been made in bilateral relations, he is able to meet with political dissidents, and if he can possibly “nudge the Cuban government in a new direction.” In response, Josefina Vidal, an official in Cuba’s Foreign Ministry, said Obama would be welcome, but “Cuba has always said … it is not going to negotiate matters that are inherent to its internal system in exchange for an improvement in or the normalization of relations with the United States.” [2]
The U.S. would like change to happen “more quickly” and to see “increased access information online.” In addition, the U.S. hopes that Cuba “will give their citizens more space so they can exercise freely their civil and political rights.”
The U.S. and Cuba “very soon” will start a pilot program for renewed direct mail service.
U.S.-Cuba negotiations on direct commercial flights between the two countries are near a successful conclusion “ very, very soon.” The discussions on damage claims have just started, but their resolution remains a “top [U.S.] priority for normalization.”
For progress on Cuban economic issues, the U.S. believes the April 2016 congress of the Communist Party of Cuba will be important.
“Safe, legal, and orderly [Cuban] migration remains a priority of the U.S.,” which has “done our best to comply” with accords with Cuba on that subject. But “the Administration at this point has no plans to alter our current migration policy toward Cuba and Cubans,” including the Cuban Adjustment Act.
The U.S. continues to encourage Cubans to go to the U.S. Embassy in Havana “for the several available avenues for legal migration to the U.S.” In addition, the U.S. is “encouraging governments in the region to find . . . coordinated and comprehensive solutions that focus on preventing the loss of life and ensuring that human rights of all migrants are respected and promoting orderly and humane migration policies.”
Mr. DeLaurentis, via teleconference from Havana, said, “A year ago President Obama “made it clear that our aspiration for the Cuban people remains that they enjoy a peaceful, prosperous, and democratic society.”
“Over the course of the past year, we have made good progress and come a long way. Our two countries have engaged in historic dialogue on a wide range of issues. We have discussed concrete objectives on civil aviation, direct transportation of mail, the environment, regulatory changes, and counter-narcotics and have either reached understandings on those topics or continue to narrow our differences in ways that suggest we could soon conclude such understandings.”
“One of the President’s goals in announcing the new approach to Cuba was to promote increased authorized travel, commerce, and the flow of information to the Cuban people. In that regard, we have seen an increase in authorized travel by U.S. citizens by over 50 percent. Our regulatory changes help promote a Cuban private sector that now accounts for at least one in four Cuban workers. And Cuba recently signed roaming agreements with two U.S. companies that promote the flow of information. But more could be done on the Cuban side to take advantage of new openings.”
“A year ago, we had very limited engagement with the Cuban Government. Now we are in open conversation on issues that matter to the United States.” This includes working “together to combat transnational crime, protect our shared ecosystem, and create opportunities for the people in both nations to thrive.”
“However, we still have areas of disagreement. . . . such as property claims, fugitives, and human rights.. . . Still, the re-establishment of diplomatic relations and the opening of our embassy have given us a more effective platform through which to promote U.S. interests and values on those and all bilateral issues. It is worth recalling [that] Secretary Kerry noted during the flag-raising ceremony in August – normalization will not happen overnight.”
“The President last year called on the Cuban Government to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities. The Administration has taken a number of steps within the President’s authority to support a growing private sector in Cuba and strengthen people-to-people ties. The President has called on Congress to end the embargo.”
U.S. Senators and Representatives
Senators Patrick Leahy (Dem., VT) and Jeff Flake (Rep., AZ), both of whom have been to Cuba several times this past year, sent a letter to President Obama urging further loosening of U.S. travel, export and financial restrictions with Cuba. [5]
On the other hand, Cuban-American Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart of Florida, both of whom have been persistent critics of normalization, offered objections to what they saw as failed policies.”[6]
On December 17 Cuba’s Foreign Ministry released a statement that concluded, “To achieve normal relations between the two countries, the [U.S.] must remove, without any conditions, the economic, commercial and financial blockade which for decades the U.S. has maintained against Cuba. Nor can one speak of normalization, while the illegally occupied Guantanamo Naval Base and other policies of the past that are harmful to the sovereignty of Cuba are not removed.“
Earlier, Josefina Vidal Ferreiro, the Cuban Ministry of Foreign Relations’ Director General for the United States, said, “We can say that Cuba and the United States have made progress in their relations, with a marked difference from the preceding stage,” She noted progress in the political and diplomatic fields with the reestablishment of diplomatic relations, the reopening of embassies and the removal of the island from the U.S. list of countries sponsoring terrorism. She also highlighted the personal meetings between the leaders of Cuba and the U.S.
More specifically she said the two countries were close to concluding an agreement for civil aviation and had expanded or created cooperation in search and rescue; the fight against drug trafficking; migration; port maritime security, application and enforcement of the law; and health.
On the other hand, she commented, there is more to do. The U.S. needs to end the embargo, return Guantanamo Bay to Cuba, stop “subversive programs and illegal broadcasting” as well as abolish its special immigration policies regarding Cubans.
Vidal concluded that “even with the differences that exist between our countries, better links will only bring benefits to both countries and their peoples. We really believe that a model of civilized coexistence is the best contribution that we can leave the present and future generations of Cuba, the U.S. and the entire region.
Others
Everyone, supporters and critics of normalization, agrees that change has been slow and that much more needs to be done to facilitate a complete normalization. Nevertheless, as two experts on this relationship recognize, there has been progress.
Julia E. Sweig, a Cuba specialist and senior research fellow at the Lyndon Baines Johnson School of Public Affairs at the University of Texas at Austin, observed, “It was just pure fantasy to think, as it has been for the last 60 years, that the United States could directly shape the nature of the Cuban political system. It feels like we’re getting excited about tiny steps, but those tiny steps, against the backdrop of the thicket of laws and regulations that have produced a ‘no’ as the answer to any question, and now we’re figuring out how to get to ‘yes’ — that’s progress.”[8]
Scott D. Gilbert, a Washington-based lawyer who helped negotiate Cuba’s release last year of Alan Gross, said, “When you stand back and look at this against the backdrop of almost 60 years of complete adversity, complete lack of dialogue, absolute distrust, it’s been a remarkable year. But there is frustration and disappointment on both sides that more deals haven’t gotten done. It’s a process that still needs a lot of work.”[9]
Alan Gross himself stated, “Our relations will not be normalized for some years to come, will not be totally normalized. But I believe that both governments are working towards that, We need to be patient to see this relationship evolve.” He specifically wants to see the U.S. end its embargo of Cuba, which is “stupid” and a “complete and utter failure.”
Jeanne Lemkau, a clinical psychologist and professor emerita of family medicine, commented on her 12th trip to Cuba, this October, to the central and eastern part of the island. She saw a creative example of the Cuban entrepreneurial initiative: a young man peddling shoes from a carefully arranged display on the top of a jeep chassis, snuggly parked next to his house. In addition, she saw many people using laptops and mobile phones; homes freshly painted in lovely Caribbean colors, a luxury that was once far beyond the resources of most Cubans; beautifully renovated hotels; and recently cleaned streets.[10]
Conclusion
As a strong advocate for U.S.-Cuba reconciliation, I too have mixed feelings on this first anniversary. I am glad that one year ago both countries decided to pursue normalization, that the previously mentioned steps towards normalization have been taken and that the normalization process is continuing. On the other hand, I am especially disappointed that the U.S. has not yet ended its embargo of the island and its special immigration benefits for Cubans.
In early June the U.S. House of Representatives approved two appropriations bills that contain impediments to U.S.-Cuba reconciliation. Both of these sets of impediments are the handiwork of Cuban-American Congressman Mario Diaz-Balart (Rep., FL), a fierce opponent of such reconciliation and a member of the House Committee on Appropriations.
Commerce Department Appropriations Act, FY 2016[1]
On June 3, the House, by a vote of 242-183, approved the Commerce, Justice, Science Appropriations bill for FY 2016 (H.R. 2578) to fund the Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the National Science Foundation and other related agencies. The bill contains $51.4 billon in total discretionary funding.
The Committee’s press release about this action said nothing about a provision that prohibits U.S. exports to the Cuban military. That is Section 540 (pp. 97-98 of the 98-page bill), which states as follows:
“(a) No funds made available in this Act may be used to facilitate, permit, license, or promote exports to the Cuban military or intelligence service or to any officer of the Cuban military or intelligence service, or an immediate family member thereof.
(b) This section does not apply to exports of goods permitted under the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7201 et seq.).
(c) In this section—(1) the term ‘‘Cuban military or intelligence service’’ includes, but is not limited to, the Ministry of the Revolutionary Armed Forces, and the Ministry of the Interior, of Cuba, and any subsidiary of either such Ministry; and (2) the term ‘‘immediate family member’’ means a spouse, sibling, son, daughter, parent, grandparent, grandchild, aunt, uncle, niece, or nephew.”
Representative Sam Farr (Dem, CA) on June 3 made a motion to delete this provision, but it was defeated, 153-273. He argued that section 540 would apply so broadly with its definitions that it would constrain trade with Cuba. He said, “It hurts American businesses, and it hurts Cubans. Let’s stop living in the past.”
Section 540 and the defeated amendment were prominent in Congressman Diaz-Balart’s press release about the House’s passage of this bill. He said, “I strongly support . . . the provision that prohibits exports to the Cuban military. I firmly opposed the [defeated] amendment which would have stripped that common sense provision.”
The provision (Section 540), Diaz-Balart asserted, “ensures that exports to Cuba accomplish precisely that goal [of U.S. goods reaching the Cuban people]. Certainly the supporting of the Cuban people must not include channeling goods to the Cuban military and intelligence service that oppress them through arbitrary arrests, violence, intimidation, and unjust imprisonments.”
Moreover, according to Diaz-Balart, the Cuban military “engages in illegal weapons smuggling, subverts democratic institutions in Venezuela, and assists foreign terrorist organizations and other rogue regimes such as North Korea. Furthermore, The Florida Congressman asserts, “several Members of the Cuban military remain under indictment for the murder of innocent U.S. citizens. Exports delivered to the Cuban military will do nothing to benefit the Cuban people, but can only directly fund the oppressive arm of the Castro dictatorship that remains a malevolent actor on the world stage.”
Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen, another strong opponent of U.S.-Cuba reconciliation, issued a similar statement.
Another provision of the bill (Section 528) prohibits construction or modifying U.S. facilities to accommodate transferred Guantanamo detainees. A motion to delete this provision by Representative Jerry Nadler (Dem., NY) was defeated by a voice vote.
Transportation Department Appropriations Act, FY2016[2]
The House on June 9, by a 216-210 vote, passed the FY 2016 appropriations bill for the Departments of Transportation, Housing and Urban Development and related agencies (H.R.2577). According to the House Appropriations Committee, it allocates $55.3 billion targeted at transportation, infrastructure and housing programs of national need and significance.
An earlier post quoted sections 193 and 414 of the bill that barred air or maritime travel to Cuba if they used property that had been expropriated without compensation by the Cuban government.[3]
During a June 4 debate on this bill the House defeated, 176-247, an amendment offered by Representative Barbara Lee (Dem., CA), to delete these two sections that adversely would affect the impact of the new regulations issued by the Department of Commerce this January to expand travel. Lee argued theses provisions were “wrong for diplomacy . . .[and] patently anti-business.”
Another supporter of this amendment was Representative Mark Sanford (Rep., SC), the author of a bill to expand U.S. travel to Cuba (H.R.664), who argued that travel to Cuba should not be equated with supporting the Castro regime.
This Cuba provision is also the work of Representative Diaz-Balart, who said on June 4 that the Obama administration was wrong to lift the travel restrictions, saying that the flights would land at an airport that was partly owned by American interests when it was seized by the Castro government.“What you are saying is, ‘It’s O.K. to do business on property that was stolen from Americans.’ ” However, he added, “supporting the Cuban people does not include . . . facilitating the unlawful use of stolen properties that were illegally confiscated from Americans.”[4]
Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen issued a similar statement.
The White House has threatened to veto the bill, in part because of this Cuba-related provision.
Conclusion
The congressional Republicans apparently have decided to ignore the desires of a majority of the American people and of Cuban-Americans, as demonstrated by numerous public opinion polls, to have improved relations with Cuba and as discussed in posts on February 12 and 17. Instead, the congressional Republicans apparently have hitched their wagon to the hysterical voices of their Cuban-American members. I deplore this defiance of public opinion.
The congressional Republicans also apparently have forgotten the 1964 decision of the U.S. Supreme Court regarding Cuba’s expropriation of property, Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964). There the court decided that the judicially-created act of state doctrine prevented U.S. courts from adjudicating a claim that the Cuban expropriation violated international law. According to the Court, ”the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.”[5]
Important to that conclusion in Sabbatino was the Court’s opinion that at least in 1964, “There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state’s power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation.”
However, according to the Court in Sabbatino, “Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, and it is argued that the traditionally articulated standards governing expropriation of property reflect ‘imperialist’ interests, and are inappropriate to the circumstances of emergent states. The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations.”
I also deplore the congressional Republican tactic of attaching their out-of-touch Cuba prescriptions to appropriations bills and thereby risking partial government shutdowns if the President vetoes such measures.
The U.S. should be doing all it can to advance the cause of U.S.-Cuba reconciliation. Unfortunately the Republicans’ shrill rhetoric about the Cuban expropriation of U.S. property without compensation and its insertion of provisions on the subject into appropriations bills do nothing whatsoever to advance the Administration’s existing efforts to engage Cuba in negotiations about compensation for such expropriation and, if necessary, to litigate such U.S. claims before the Permanent Court of Arbitration.
In the meantime, supporters of U.S.-Cuba reconciliation should urge their Senators to seek to delete the previously mentioned Cuba provisions in these appropriations bills. Senators’ contact information is available on the Internet.
[3] There also are two pending stand-alone bills (S.1388 and H.R.2466) that would limit U.S.-Cuba reconciliation because of the unresolved U.S. claims for compensation for expropriated property, as discussed in a prior post.
[4] The June 9 Diaz-Balart press release on the House adoption of “the Diaz-Balart bill” was focused on the bill’s prioritization of “the nation’s infrastructure and housing needs.” It also reiterated his trumpeting of the bill’s provisions about Cuba: “The common sense provisions in the bill, which prohibit new flights to Cuba and deny licenses to marine vessels that use property confiscated from Americans, further core American values and safeguard the property rights of Americans. We must not permit the exploitation of properties stolen by the Castro regime, which is expressly prohibited in U.S. law.”
[5] The opinion of the Court in Sabbatino was written by Mr. Justice John Marshall Harlan, II and was joined by Chief Justice Earl Warren and Justices Black, Douglas, Clark, Brennan, Stewart and Goldberg. Mr. Justice White dissented on the ground that the act of state doctrine should not apply and that the U.S. courts should resolve the case on the merits. The Supreme Court’s decision was criticized in Congress, which passed the so-called Second Hickenlooper Amendment (or Sabbatino Amendment) that provided that U.S. courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign unless the Executive requests that the courts consider the Act of State Doctrine because foreign policy interests may be damaged by judicial interference. The Amendment was retroactive and subsequently was found constitutional by the district court and the complaint in Sabbatino was dismissed.
In its third editorial within the last two weeks, the New York Times on October 26th again called for normalization of U.S.-Cuba relations. This time the focus was what it perceived as shifting U.S. opinions on the subject. [1]
The starting point for the latest Times’ call for normalization was its assertion that “younger members of the [Cuban] diaspora have staked out views that are increasingly in favor of deepening engagement with the island.” In addition, “Several prominent Cuban-American businessmen who were once strong supporters of the embargo have changed their stance and become proponents of engagement. The pro-embargo lobby raises a fraction of the money it once did.”
“That evolution [in public opinion of Cuban-Americans] has allowed a growing number of seasoned politicians to call the embargo a failure and argue that ending America’s enmity with Cuba represents the best chance of encouraging positive change on the island.”
“Charlie Crist, the former governor of Florida who is in a tight race for his old job, recently said he was interested in traveling to Cuba, an idea he later scrapped, blaming a busy schedule. Mr. Crist, however, has emphatically said he has come to see the embargo as a relic that must be shelved. Hillary Rodham Clinton wrote in her memoirs, and repeated in a recent interview, that she now favors repealing the embargo, which she called a failure, because it has ‘propped up the Castros.’”
“In Florida, members of Congress have staked out positions on Cuba that once would have been considered political suicide. Representative Kathy Castor, a Democrat from Tampa, traveled to the island last year and made a strong appeal for an end to the sanctions, saying the United States was failing to capitalize on economic reforms underway on the island. She feels that far from hurting her politically, the stance has made her more popular among constituents, including Cuban-Americans, who want to play a role in the island’s future.”
“Even in Miami, where old-guard positions remain popular among older exiles, who are largely Republicans, there have been notable changes. In 2012, Joe Garcia became the first Cuban-American Democrat from Miami to be elected to the House. While he publicly supports the embargo, Mr. Garcia holds views significantly different from other South Florida members of Congress. For instance, he has called for clinical trials in the United States of a Cuban diabetes treatment that shows great promise. He also favors easing travel restrictions to the island.”
Another measure of this changing public opinion is “President Obama now [receiving] . . .more correspondence from lawmakers who favor expanded ties than from those who want to keep robust sanctions.”
As a result, “White House officials are deliberating over how much progress they might be able to make on President Obama’s longstanding interest in expanding ties with Cuba,” including his support for “repealing the embargo when he was running for the . . .[U.S.] Senate in 2004.”
The major political barrier to progress on the issues that require congressional action, like ending the embargo, is “a small but passionate group of Cuban-American lawmakers [who are] adamant about maintaining the status quo. The most vocal defenders of the embargo are Senator Robert Menendez, a Democrat from New Jersey; Senator Marco Rubio, a Republican from Florida; and Representative Ileana Ros-Lehtinen and Representative Mario Diaz-Balart, both Miami Republicans.
The most important of these opponents to changing U.S. policies regarding Cuba is Senator Menendez, the Chairman of the Senate Foreign Relations Committee, who could use that position to block Administration measures on other issues, including “confirmation of federal nominees in retaliation for further moves to ease the embargo.”
Menendez’ rhetoric about what he says are the evil ways of Cuba is intense. This April he “delivered a long, impassioned speech on the Senate floor, arguing that despite the myriad foreign policy crises in the world, Washington needed to focus on the abuses of ‘a Stalinist police state’ 90 miles away. He displayed photos of dissidents and warned that expanded travel by Americans to Cuba was enabling a despotic state.” Mr. Menendez’s loathing of the Cuban government has only increased because he believes the island’s intelligence service sought to destroy his career by planting a fabricated story in the media suggesting that he had patronized underage prostitutes in the Dominican Republic.”
The understandable personal reasons why some Cuban-Americans oppose normalization of U.S. relations with Cuba “should not continue to anchor American policy on a failed course that has strained Washington’s relationship with allies in the hemisphere, prevented robust trade with the island and offered the Cuban government a justification for its failures.”
[1] On October 13th the Times urged ending the U.S. designation of Cuba as a “State Sponsor of Terrorism,” stopping the U.S. embargo of Cuba and restoring normal diplomatic relations with the island. On October 19th the Times recommended U.S. collaboration with Cuba in combatting Ebola in West Africa as an important step towards normalization.
