Does President Obama Have Legal Authority To Adopt More LImitations on the Scope of U.S. Embargo of Cuba?

Granma, the official newspaper of the Communist Party of Cuba, reviews the measures already adopted by the Obama Administration to reduce the scope of the U.S. embargo of Cuba. The newspaper then asserts that the Administration has existing legal authority to adopt additional limitations of the embargo and isolates what only Congress can do to eliminate the embargo.[1]

Administration’s Limitations of the Embargo (to Date)

According to Granma, the following are “some” of the measures already adopted by the Administration:

  • The 12 categories of U.S. citizens permitted to travel to Cuba can do so now under a general license. Travelers are no longer subject to spending limits on the island and can use their credit and debit cards. Approved travelers may be accompanied by their families.
  • In the area of telecommunications, exports of goods and services to Cuba are authorized. The main limitation is the requirement to pay cash in advance.
  • The list of U.S. products that can be exported to Cuba without having to request authorization from the U.S. Department of Commerce is reduced to telecommunications products and services, construction materials and equipment and tools for the use of the non-state sector, including agriculture.
  • The authorization to import Cuban goods and services produced by the non-state sector – which excludes key items for the Cuban economy such as tobacco.
  • The modifications to the regulations on maritime transport, which allow for cargo ships carrying humanitarian goods to Cuba to enter U.S. ports before the 180 day limit applied to others – irrelevant since in practice the majority are not limited to transporting food, medicines, medical equipment or other authorized exports.
  • Changes in the financial sphere merely facilitate processing of authorized transactions relating to travel, exports and remittances.
  • The sale to Cuba of products by other countries containing up to 25% U.S. made components is permitted – the previous limit was 10%.
  • The establishment of offices in Cuba by companies approved to have relations with the island was authorized.

Other Legally Permissible Administrative Limitations of the Embargo

In addition, Granma contends that the Obama Administration has the legal authority, without any action by the U.S. Congress, to adopt the following additional measures to further reduce the impact of the embargo:

  1. Authorize the use of the U.S. dollar in Cuba’s international transactions.
  2. Permit Cuban entities (banks, companies, etc.) to open corresponding accounts with U.S. banks.
  3. End the policy of financial persecution against Cuba, which has included the imposition of fines and sanctions.
  4. Allow the granting of credits, loans and finance to Cuba, in order to purchase products from the U.S. market (excluding agricultural products, prohibited by law).
  5. Authorize U.S. products to be directly exported to Cuba.
  6. Allow Cuba to import products from third countries which contain over 25% U.S. made components.
  7. Allow the U.S. to import Cuban products and services which constitute exportable goods key to the Cuban economy, such as tobacco, rum and biotechnology products, including products manufactured in third countries which contain Cuban raw materials such as nickel or sugar.
  8. Allow U.S. companies to invest in Cuba.
  9. Eliminate the value limit on Cuban goods that U.S. travelers can import from Cuba, for personal use or as gifts.
  10. Allow U.S. citizens to receive medical treatment in Cuba.
  11. Instruct U.S. representatives in international financial institutions not to impede the granting of credits or other financial services to Cuba.

Other Limitations of the Embargo Requiring Congressional Action

According to Granma, only the following five limitations of the embargo require congressional action:

  1. Permitting travel for the purposes of tourism (Trade Sanctions Reform and Export Enhancement Act of 2000);
  2. Repealing the ban on U.S. subsidiaries in other countries trading with Cuba (Torricelli Act);
  3. Repealing the prohibition on doing business with formerly U.S.-owned companies in Cuba that were nationalized (Helms-Burton Act);
  4. Repealing the obligation to pay cash in advance for purchases of agricultural products from the U.S. (Trade Sanctions Reform and Export Enhancement Act of 2000); and
  5. Eliminating the blockade (Helms-Burton Act) in its entirety.

Conclusion

Cuba, of course, is urging the Obama Administration to adopt the 11 previously mentioned measures that Cuba asserts are legally permissible under U.S. law and the Congress to adopt the above five measures.

Although I am a retired lawyer, I have not attempted to determine whether Cuba is correct in its contention that the Administration has the legal authority to adopt the above 11 limitations. I invite an attorney knowledgeable about such matters to share an analysis of these issues. If there is such legal authority, I would join in a request that these measures be adopted as this blog consistently has called for ending the embargo.

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[1] U.S. blockade remains in effect, Granma (Jan. 14, 2016).

Raúl Castro’s Declaration Regarding the First Anniversary of U.S.-Cuba Rapprochement 

 

On December 18, Raúl Castro, the President of Cuba’s Council of Ministers and Army General, issued on state television a Declaration regarding the first anniversary of U.S.-Cuba rapprochement.[1]

After briefly reviewing the year’s accomplishments that were “achieved through a professional and respectful dialogue based on equality and reciprocity,” Castro berated the failure to make “any progress in the solution of those issues which are essential for Cuba to be able to have normal relations with the United States.” Those issues were the following:

  • First, of course, was the failure of the U.S. to end the embargo. Indeed, he asserted, the embargo or blockade, constitutes “persecution of Cuba’s legitimate financial transactions as well as the extraterritorial impact of the blockade, which causes damages and hardships to our people and is the main obstacle to the development of the Cuban economy, have been tightened.”
  • Second was the U.S.’ continued statement it “has no intention to change the status of” the Guantanamo Bay Naval Base.
  • Third was the U.S. continued implementation of “programs that are harmful to Cuba’s sovereignty, such as the projects aimed at bringing about changes in our political, economic and social order and the illegal radio and television broadcasts, for which they continue to allocate millions of dollars in funds.”
  • Fourth was the U.S. “preferential migration policy . . . [for] Cuban citizens, which is evidenced by the enforcement of the wet foot/dry foot policy, the Medical Professional Parole Program and the Cuban Adjustment Act, which encourage an illegal, unsafe, disorderly and irregular migration, foment human smuggling and other related crimes and create problems to other countries.”

Nevertheless, Castro continued, “The Government of Cuba is fully willing to continue advancing in the construction of a kind of relation with the United States that is different from the one that has existed throughout its prior history, that is based on mutual respect for sovereignty and independence, that is beneficial to both countries and peoples and that is nurtured by the historical, cultural and family links that have existed between Cubans and Americans.”

In addition, he said, “Cuba, in fully exercising its sovereignty and with the majority support of its people, will continue to be engaged in the process of transformations to update its economic and social model, in the interest of moving forward in the development of the country, improving the wellbeing of the people and consolidating the achievements attained by the Socialist Revolution.”

Conclusion

Although Castro has a different tone on the failure of the U.S. to terminate certain policies, his Declaration agrees substantially with the other comments about the first anniversary that were discussed in yesterday’s post. It is good to know that he vows to continue with the slow process of normalization and with transforming the Cuban economy.

Except for Cuba’s desire to terminate its lease of Guantanamo Bay to the U.S., I agree with the Declaration’s calls for the U.S. to end the embargo, the so-called democracy promotion programs of the U.S. Agency for International Development (USAID), the Radio and TV Marti broadcasts to Cuba and the preferential immigration policies for Cubans.

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[1] Raúl Castro Ruz, Statement by the President of the Councils of State and Ministers Army General Raúl Castro, Granma (Dec. 18, 2015); Reuters, Cuba’s Castro Says U.S. Can Do More to Normalize Relations, N.Y. Times (Dec. 18, 2015);Assoc. Press, Raul Castro Urges US to End Broadcasts Aimed at Cuba, N.Y. Times (Dec. 18, 2015)

 

 

U.S. Secretary of Agriculture Visits Cuba

On November 11-13, U.S. Secretary of Agriculture Tom Vilsack, a former Iowa Governor, visited Cuba.[1]

Vilsack in Cuba

In his meeting with Ricardo Cabrisas Ruiz, a Council of Ministers Vice President, they discussed international economic relations, the interest of the U.S. agriculture sector in the island and obstacles to trade between the two countries caused by the U.S. embargo (blockade). Vilsack and the U.S. delegation are on the left in the above photo; the Cuban delegation, on the right.

At a meeting with Cuban Agriculture Minister, Gustavo Rodriguez Rollero, Vilsack said the U.S. was “very anxious to establish a positive working relationship with Cuba and to work together cooperatively in a number of issues.” These included organic farming, agricultural cooperatives, the Cuban experience in biotechnology, confronting common pests and diseases and the impact of climate change. They also talked about Cuban procedures for fruit and vegetable export certification and field inspections.

The U.S. delegation also had a meeting with Cuba’s Foreign Minister, Bruno Rodriguez, and Josefina Vidal Ferreiro, the Director General of U.S. Affairs at the Foreign Ministry.

Vilsack visited an agricultural market in Havana and was impressed by the fact that the vegetables and fruits came from hundreds of farms scattered throughout the city. “Urban agriculture is something that Cuba has long practiced and the United States wants to learn,” he said.

On a visit to two cooperatives, near the city, a member of one of the coop’s board of directors expressed confidence that Cuba’s new relationship with the U.S. will make life on the farm easier. The coop director said, “We believe that this represents something that will bring us improvement in every sense: production, better equipment, new tractors.”Vilsack, in turn, observed that it “was very clear that the farmers are people who have deep love for the land and the work they do for the citizens of their country.” He noted that they expressed their concern over problems with machinery, irrigation systems and tools needed to plant and harvest and the impact of climate change. But, he said, their creativity and innovation to maintain production levels were impressive.

In a press conference at the U.S. Embassy in Havana Vilsack said that lifting trade barriers with Cuba was a matter of “common sense” and promised to look for ways to relax existing measures. “We have work to do to identify those barriers, understanding and seeing what kinds of flexibilities may be to remove them or at least minimize them.” The Secretary also complimented Cuba’s reaction to the recent U.S. problems with avian flu. “Unlike other countries which decreed a general ban on importing U.S. poultry, Cuba “faced the problem regionally, looking state by state, which is the focus of international organizations and which is based on science.”

According to Vilsack, the U.S. stands to gain a significant portion of Cuba’s agricultural import market. That market is about $2 billion annually, with the U.S. holding about 16 percent. Before sanctions were put in place, the U.S. was responsible for nearly half. “There is no reason why if barriers can be reduced and eliminated that we wouldn’t be in a very competitive circumstance,” Vilsack stated that a number of U.S. agricultural products could be attractive in Cuba, including pork, corn, soybeans and poultry.

Important in this regard, said Vilsack, was the need for the U.S. to eliminate the ban on trade credit on U.S. agricultural exports to Cuba. A bill to do just that, Vilsack mentioned, recently had been introduced in the House of Representatives by Congressman Rick Crawford (Rep., AK).[2]

“Trade is a two-way street,” Vilsack said. “Consumers in the U.S. are interested in having a variety of products throughout the year and [U.S. agricultural] imports have reached record levels in recent years. One of the challenges we have when ending the embargo [blockade] is a container that comes with products to Cuba should return to the U.S. with Cuban products. This is common sense.” Such Cuban exports would be assisted by the U.S.’ having an office in Cuba for the Agriculture Department’s Foreign Agricultural Service and Animal and Plant Health Inspection Service personnel to facilitate technical conversations and addressing any problems in Cuba’s meeting U.S. requirements.

Moreover, Vilsack noted that Cubans have embraced organic agriculture, one of the fastest-growing U.S. food segments. Cuba has a strong organic sector because it hasn’t had access to chemicals and pesticides. “They had no other alternative but to be organic.” Vilsack emphasized that this is an opportunity for Cuba because only 1 percent of America’s land mass is committed to organic production. “There is no question the demand is there.”

Vilsack was accompanied by Democratic Senator Jeff Merkley (Oregon) and three Democratic members of the House of Representatives: Kurk Schrader (Oregon), Suzan Delbene (Washington); and Terri Sewell (Alabama) as well as other representatives from the Department of Agriculture and the Chargé d’Affaires of the U.S. Embassy in Havana, Jeffrey DeLau­rentis.

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[1] Cabrisas receives U.S. secretary of agriculture, Granma (Nov. 12, 2015); Gomez, USA wants to expand trade with Cuba, but maintain restrictions, Granma (Nov. 12, 2015); US Agriculture Secretary talks with his counterpart in Havana, CubadDebate (Nov. 12, 2015); Gomez, Lifting the blockade is a matter of common sense, Granma (Nov. 12, 2015); Assoc. Press, US Agriculture Secretary Visits Cuba to Build Trade Momentum, N.Y. Times (Nov. 13, 2015); Minister of Foreign Affairs received the Secretary of Agriculture of the United States, Granma (Nov. 13, 2015); Doering, Vilsack: Cuba a great opportunity for U.S. agriculture, Des Moines Register (Nov. 13, 2015); Vilsack: Permanent USDA presence needed in Cuba, Farm Futures (Nov. 16, 2015).

[2] On October 6, 2015, Representative Rick Crawford introduced H.R. 3687, the Cuba Agricultural Exports Act, on behalf on himself and House Agriculture Committee Chairman Michael Conaway (Rep., TX) and Representative Ted Poe (Rep., TX) with 11 other Republican and 2 Democratic cosponsors. Crawford said this bill “would repeal restrictions on export financing and give producers access to Department of Agriculture marketing programs that help the US compete in foreign markets. Further, this legislation enables limited American investment in Cuban agribusinesses, as long as US regulators certify the entity is privately-owned and not controlled by the Government of Cuba, or its agents.” Crawford concluded, “ I believe that agriculture trading partnerships with Cuba will help build a foundation of goodwill and cooperation that will open the door to long-sought reforms in the same the way that American influence has brought reform to other communist states.” (Crawford, Crawford Introduces Cuba Agricultural Exports Act (Oct. 6, 2015); Poe, Cuba Agricultural Exports Act (Oct. 7, 2015).

 

 

Results of Second Meeting of U.S.-Cuba Bilateral Commission

On November 10 the U.S.-Cuba Bilateral Commission held its second meeting, this time in Washington, D.C.[1]

Before addressing specific topics of possible agreement, the Cuban delegation reiterated its insistence “on the necessity to lift the [U.S. embargo] blockade as a top priority, for it continues to affect the Cuban people as well as Cuba’s operations and relations with third countries, given its extraterritorial scope, and hinders the development of normal economic and commercial relations with the United States. Likewise, the Cuban delegation reiterated that the elimination of this policy is essential for the normalization of relations, in addition to the solution of other pending problems that are harmful to the sovereignty of Cuba, such as the [alleged] illegal occupation of a portion of Cuban territory by the Guantánamo Naval Base, and the continuation of the illegal radio and television broadcasts from the United States to Cuba and the programs intended to destabilize and subvert Cuba’s constitutional order.”

After the meeting, Josefina Vidal, Cuba’s head of North American affairs, told reporters that agreements on flights, environmental protection, direct postal service and the fight against drug trafficking are very likely by the end of the year.

Granma, the Cuban newspaper, also reported that the Commission agreed to continue exchanges on human rights, maritime and port security, application and enforcement of law, climate change, migration, human trafficking and health (including confronting pandemics and infectious diseases).

The U.S. Department of State issued a similar report about this meeting. It said the meeting “provided an opportunity to review progress on shared priorities, including regulatory issues, telecommunications, claims, environmental protection, human trafficking, human rights, migration, and law enforcement,” The statement added that the meeting “took place in a respectful, cooperative, and productive environment.”

A Cuban diplomat said after the meeting that despite these areas of progress, commercial transactions between the two countries were impeded by U.S. restrictions on use of the U.S. Dollar in such transactions. Examples of this problem were the recent cancellations of several U.S. charter flights to Cuba because of the airlines difficulties in getting advance payments to Cuba for landing fees and mandatory health insurance for travelers. An observer thought this was due to U.S. banks’ fear of being subjected to large fines for illegal transfers and of uncertainties about the implementation of new U.S. regulations. [2]

The first Commission meeting was held in Havana this past September as discussed in a prior post. The next meeting will be next February in Havana.

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[1] U.S. State Dep’t, United States and Cuba Hold Second Bilateral Commission Meeting in Washington, D.C. (Nov. 10, 2015); Cuban Foreign Ministry, Press release issued by the Cuban delegation to the second meeting of the Cuba-US Bilateral Commission, Washington, November 10, 2015 (Nov. 10, 2015); Assoc. Press, Cuba: Agreements on flights to US Likely in Coming Months, N.Y. Times (Nov. 10, 2015); Reuters, Pact for U.S.-Cuba Flights Seen by Year-End: Cuban Official, N.Y. Times (Nov. 10, 2015); Gomez, Cuba and the United States come to concrete agreements, Granma (Nov. 10, 2015).

[2] Whitefield, Banking woes ground some charter flights to Cuba, Miami Herald (Nov. 8, 2015).

Another U.N. General Assembly Resolution Condemning the U.S. Embargo of Cuba                                                                                    

U.N. General Assembly, 10/27/15
U.N. General Assembly, 10/27/15

On October 27, 2015, the United Nations General Assembly adopted Resolution 5 (A/RES/70/5), 191 to 2 {the U.S. and Israel against with no abstentions) on the necessity of ending the economic, commercial and financial embargo imposed by the U.S. against Cuba. This was the 24th consecutive year that the Assembly has condemned the embargo, this time with the largest number of members voting for the resolution.[1]

This post will review the resolution itself and the debate leading to its adoption and preliminary documents filed with the General Assembly before concluding with observations about where we go from here.

The Resolution

These are two key provisions of this resolution:

  • First, the General Assembly reiterates “its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, 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.”
  • Second, the General Assembly “again urges States [e., the U.S.] 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.”

The Debate

Here we will look at Cuba’s arguments in favor of the resolution, the comments of other U.N. members supporting the resolution and those of the two countries opposing the measure (the U.S. and Israel).

Cuba[2]

Foreign Minister Bruno Rodriguez
Foreign Minister Bruno Rodriguez

In presenting the resolution, Cuba’s Foreign Minister, Bruno Rodriguez, opened by acknowledging that last December 17 U.S. President Obama “recognized that the economic, commercial and financial blockade imposed against Cuba had failed, is obsolete, has not met the originally envisaged goals and causes damages to the Cuban people and isolation to the US Government.” To that end the U.S. President “has urged the Congress . . . to do so . . . [and has used] his executive prerogatives to modify its implementation.” Nevertheless, “the economic, commercial and financial blockade imposed against Cuba is being fully and completely implemented.”

The U.S. removal removal of Cuba “ from the spurious list of States Sponsors of International Terrorism was the inevitable rectification of a nonsense, but this has hardly had any impact on the implementation of the blockade, which is supported by a far more comprehensive system of previously established sanctions and laws.”

“The blockade is a flagrant, massive and systematic violation of the human rights of all Cubans; it is contrary to International Law; it has been described as  a crime of genocide by the Convention for the Prevention and Punishment of the Crime of Genocide of 1948 and is the main obstacle to the economic and social development of our people.”

“The human damages it has caused are inestimable.  Seventy seven per cent of all Cubans have been suffering the blockade since the day they were born.  The shortages and deprivations that it causes to all Cuban families cannot be accounted for.”

According to rigorous and conservative calculations, the economic damages it has caused after more than half a century amount to [US$ 833.755 billion (based on the price of gold) or US$ 121.192 billion (current prices).

“Historically, the United States has intended to establish its domination and hegemony on our homeland and, since 1959, it has tried to change the political, economic and social system that our people,   fully exercising the right to self-determination, has freely chosen.”

“The lifting of the blockade will be the essential element that will give some meaning to the progress achieved in the last few months in the relations between both countries and shall set the pace towards normalization.”

“Cuba is ready to accept the opportunities and face the challenges of a  new era in the relations between  both countries, but it will never negotiate its socialist system or its internal affairs, nor will it allow any blemish on its independence, which was conquered at the price of the blood of its best sons and daughters and after the huge sacrifices made by many generations since the beginning of  our independence wars in 1868.”

“As has been reiterated by President Raúl Castro Ruz, both governments must find the way to coexist in a civilized manner, despite their profound differences, and advance as much as possible for the benefit of the peoples of the United States and Cuba, through a dialogue and cooperation based on mutual respect and sovereign equality.”

“We appreciate and recognize the progress achieved recently with the re-opening of embassies, the visits paid by the Secretaries of State and Commerce and the exchange of delegations; the functioning of a Steering Committee; the expansion of the areas of dialogue and cooperation, particularly in the filed of air and aviation safety; the combat of drug-trafficking, illegal migration and traffic in persons; law enforcement, environmental protection and health, among others. We are really interested in developing fruitful relations; offering our hospitality to the US citizens who enjoy the freedom of traveling to Cuba; expanding enriching, cultural, sports, scientific and academic exchanges; promoting a multifaceted cooperation in areas of common interest, trade and investments. We have initiated a human rights dialogue with a strict reciprocal character and despite our huge differences.”

“We have presented a new draft resolution that reflects the reality of the rigorous and oppressive implementation of the blockade against Cuba and also welcomes and recognizes, in the new preamble paragraphs, the progress achieved in the course of last year.”

On behalf of the heroic, self-sacrificing and fraternal people of Cuba, I ask you to vote in favor of the resolution.”

Other Countries.

Luxembourg, an U.S. ally, expressing the common position of the European Union members, said that the U.S. trade policy towards Cuba was fundamentally a bilateral issue, but that the effects and side effects of U.S. extraterritorial legislation and unilateral measures were also negatively affecting the EU’s economic interests. The EU’s Common Commercial Policy had firmly and continuously opposed such measures. The EU and the U.S. had agreed in 1998 to alleviate problems with U.S. extraterritorial legislation and the U.S. had to fully respect and implement that agreement.

Speakers from 37 other countries voiced their support for the resolution while many also welcomed the renewal of diplomatic ties between the U.S. and Cuba and the island’s removal from the U.S. list of state sponsors of terrorism. Some of these speakers, however, said the steps taken by the U.S. were still limited and that the embargo remained unchanged or had even been tightened since the historic rapprochement was announced last December.

Colombia’s permanent representative, for example, said her country was optimistic that Obama will obtain Congress to lift the embargo, which “runs counter to international law.” Jamaica’s representative, speaking on behalf of CARICOM, said the embargo wasn’t only punitive against Cuba, “but an impediment to our shared regional development.”

United States of America[3]

Ronald D. Goddard
Ronald D. Goddard

A short explanation for the U.S. vote against the resolution was provided to the General Assembly by Ronald D. Goddard, U.S. Senior Advisor for Western Hemispheric Affairs. He mentioned last December’s historic announcement of a new era in U.S.-Cuba relations and some of the subsequent steps toward normalization. In addition, he said that U.S. President Obama had “called on Congress to lift the embargo as soon as possible and has taken executive action to adjust regulations to facilitate many transactions involving Cuba.”

Therefore, Goddard continued, the U.S. regretted “that the Government of Cuba has chosen to proceed with its annual resolution. The text falls short of reflecting the significant steps that have been taken and the spirit of engagement President Obama has championed.. . . If Cuba thinks this exercise will help move things forward in the direction both governments have indicated they wish, it is mistaken.”

Israel.

Israel, the only other U.N. member to join the U.S. in opposing the resolution, merely said that it had followed the adoption of the resolution with great interest and welcomed the renewal of diplomatic relations between Cuba and the U.S. Given Israel’s special relationship with the latter, it had voted against the resolution.

Preliminary Documents Regarding the Resolution

Cuba’s Report to General Assembly. In June 2015 Cuba submitted a 37-page report to the General Assembly on its last year’s resolution on the embargo (blockade). This report contains a list of the U.S. statutes and regulations imposing the embargo and blockade and asserts that these U.S. actions have violated the Cuban people’s right to health and food; education, sports and culture; and development. In addition, this U.S. policy allegedly has damaged Cuba’s foreign commerce and investments; and finances, especially with its extraterritorial applications. These alleged damages total US$ 121.192 billion (in current prices) or US$ 833.755 billion (adjusted to reflect the depreciation of the US Dollar against the value of gold).[4]

These alleged damages include the alleged blocking of Cuban access to diagnostic equipment for monitoring the treatment of leukemia patients; preventing the sale to Cuban hospitals of devices critical for pediatric heart surgery patients; and hindering efforts by the U.N. Development Program getting medicine and support into Cuba for its over 18,000 patients living with HIV/AIDS.

U.N. Secretary-General’s Report to General Assembly. On July 30, 2015, the U.N. Secretary-General submitted a 178-page report to the General Assembly summarizing the comments on the resolution from 156 governments and 33 U.N. agencies and entities.[5] The U.S. and Israel, the only two countries to vote against the same resolution last year, had not submitted any comments at the time of the publication of this report, and the Holy See merely stated that it had “never drawn up or applied economic, commercial or financial laws or measures against Cuba.”

The other 155 governments basically supported the resolution with the European Union and Japan emphasizing that the U.S. “trade policy towards Cuba is fundamentally a bilateral issue,” but that “the extraterritorial extension of the [U.S.] embargo . . . violate commonly accepted rules of international trade.”

Of the 33 U.N. agencies and entities, the Office of the United Nations High Commissioner for Human Rights says that generally coercive economic sanctions justified on human rights grounds more often than not fail to improve those conditions; instead they punish the poorest people, the intended beneficiaries of the sanctions, at the cost of increased unemployment and poverty and risks to their health.

Conclusion

This blog consistently has called for the U.S. to end its embargo (blockade) of Cuba. It also has recommended that Cuba’s claims against the U.S. for alleged damages from the embargo be submitted for determination to the Permanent Court of Arbitration at The Hague in the Netherlands. In such a proceeding the U.S. could mount any and all arguments it has against (a) the major premise of the claims (the embargo is illegal under international law) and (b) the amount and causation of the alleged damages from the embargo. In the meantime, this blog has pointed out that as a matter of financial prudence the U.S. should end the embargo as soon as possible to reduce the amount of this contingent liability.[6]

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[1] United Nations, Despite Resumption of Relations between United States, Cuba, General Assembly Adopts, Almost Unanimously, Resolution Calling for Blockade to Be Lifted (Oct. 27, 2015); Assoc. Press, UN Overwhelmingly Condemns US Embargo on Cuba, N.Y. Times (Oct. 27, 2015); Reuters, Amid Renewed U.S., Cuba ties, U.N. condemns Embargo for 24th Year, N.Y. Times (Oct. 27, 2015); Whitefield, United Nations Votes 191-2 to condemn U.S. embargo against Cuba, Miami Herald (Oct. 27, 2015). As an example of the very limited U.S. coverage of this important U.N. action, the StarTribune, which is the major newspaper in the State of Minnesota, merely stated the following in an 8th page column of “nation+ world” news in the October 28th print edition: “UNITED NATIONS: Vote condemns embargo on Cuba In the first U.N. vote on a resolution condemning the U.S. embargo against Cuba since the two countries renewed diplomatic ties, the U.N. voted 191-2 in favor of the condemnation. The United States said that it couldn’t support the resolution because it failed to take into account ‘the significant steps in the spirit of engagement’ undertaken by the United States.”

[2] Bruno Rodriguez: “We will continue to present this draft resolution for as long as this blockade persists,” CubaMinRex (Oct. 27, 2015) (official Cuban Foreign Ministry English translation). On the day the resolution was debated in the General Assembly, Cuba’s newspaper, Granma, and its website, Cubadebate, had a minute-by-minute reporting of the proceedings starting at 08:33 a.m. (CDT). The Cuban Foreign Ministry has a separate website, “CubavsBloquero,” regarding the embargo (blockade). Another special Ministry website focuses on Cuba-EEUU {United States} relations.

[3] U.S. Mission to U.N., Explanation of Vote at a UN General Assembly Meeting on the Cuba Embargo (Oct. 27, 2015)  In the weeks before the General Assembly vote, the U.S. reportedly considered abstaining on the resolution this year. Last week, however, the U.S. decided it would not abstain because the text did not fully reflect the new spirit of cooperation between the two countries

 [4] Report by Cuba On Resolution 69/5 of the United Nations General Assembly entitled “Necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba” (June 2015). The Report breakdown for some, but not all, of the components of these alleged damages, but does not explain how the alleged gold standard dollar figures were calculated.

[5] U.N. Gen. Assembly, Report of the Secretary General: Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (July 30, 2015)

[6] E.g., Letter to President Obama Regarding Cuba (Aug. 17, 2012) (recommends ending embargo); Senator Klobuchar Introduces Bill To End Embargo of Cuba (Feb. 13, 2015) (Cuba’s “damage claim must be recognized as a contingent liability of the U.S., and ending the embargo will minimize the amount of that liability”); Resolution of U.S. and Cuba’s Damage Claims (April 6, 2015).

U.S. Governors Call for Ending the U.S. Embargo Against Cuba

On October 9, nine U.S. governors sent a letter to congressional leaders calling for decisive steps to open up trade with Cuba and put an end to the embargo.[1]

They expressed their “support for an end to current trade sanctions levied against Cuba. It is time for Congress to take action and remove the financial, travel, and other restrictions that impede normal commerce and trade between our nation and Cuba.”

Federal legislation in 2000,“ they stated, “allowed for the first commercial sales of food and agricultural products from the U.S. in nearly half a century.” Since then “Cuba has become an important market for many American agricultural commodities. Thus far, our country’s agriculture sector has led the way in reestablishing meaningful commercial ties with Cuba, but a sustainable trade relationship cannot be limited to one sector or involve only one-way transactions.”

Nevertheless, the Governors added,  “financing restrictions imposed by the embargo limit the ability of U.S. companies to competitively serve the Cuban market. Our thriving food and agriculture sectors coupled with Cuba’s need for an affordable and reliable food supply provide opportunities for both our nations that could be seized with an end to the remaining trade restrictions. Foreign competitors such as Canada, Brazil, and the European Union are increasingly taking market share from U.S. industry, as these countries do not face the same restrictions on financing.”

“Ending the embargo will create jobs here at home, especially in rural America, and will create new opportunities for U.S. agriculture. Expanding trade with Cuba will further strengthen our nation’s agriculture sector by opening a market of 11 million people just 90 miles from our shores, and continue to maintain the tremendous momentum of U.S. agricultural exports, which reached a record $152 billion in 2014.”

In addition, “bilateral trade and travel among citizens of both nations will engender a more harmonious relationship between the U.S. and Cuba, while providing new opportunities for U.S. interests to benefit economically from improved relationships. The benefits of fully opening Cuba to free market trading with the U.S. go beyond dollars and cents. This positive change in relations between our nations will usher in a new era of cooperation that transcends business. Expanded diplomatic relations, corporate partnerships, trade and dialogue will put us in a better position to boost democratic ideals in Cuba. This goal has not been achieved with an outdated strategy of isolation and sanctions.”

“While normalized trade would represent a positive step for the U.S. and Cuban economies, we appreciate and support the Administration’s executive actions taken thus far to expand opportunity in Cuba and facilitate dialogue among both nations. We now ask that you and your colleagues in the U.S. House of Representatives and Senate take decisive steps to support U.S. commerce and trade relations and fully end the embargo on Cuba.”

The letter is signed by Governors Robert Bentley (Rep., AL), Jerry Brown (Dem. CA), Butch Otter (Rep., ID), Mark Dayton (Dem.MN), Steve Bullock (Dem., MT), Thomas Wolf (Dem., PA), Peter Shumlin (Dem., VT),Terry McAuliffe (Dem., VA) and Jay Inslee (Dem., WA).

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[1] Letter, Governor Robert Bentley (and eight other Governors) to Senate Majority Leader McConnell, et al. (Oct. 9, 2015); Bullock, Governor Bullock Encourage End to Trade Sanctions with Cuba (Oct. 14, 2015); Shumlin, Governor Shumlin Urges End to U.S. Trade Sanctions with Cuba (Oct. 13, 2015); Governor supports trade with Cuba, Great Falls Tribune (Oct. 14, 2015); Thurston, Could Farmers Cash in with More Open Trade with Cuba? Necn (Oct. 14, 2015); Prentice, Otter, Eight Other Governors, Urging Congress to Lift Cuba Trade Embargo, Boise Weekly (Oct. 14, 2015); Nine U.S. governors call for an end to the blockade, Granma (Oct. 14, 2015).

 

 

Presidents Obama and Castro Speak and Meet at United Nations

Over the last week Cuban President Raúl Castro has made two speeches at the United Nations in New York City as has U.S. President Barack Obama. Afterwards the two of them with advisors held a private meeting at the U.N. with subsequent comments by their spokesmen. Here is a chronological account of these events.

President Castro’s September 26th Speech[1]

 

On September 26, President Raúl Castro 11131154waddressed the U.N. Summit on Sustainable Development, as shown in the photograph to the right. In his remarks he said, ”The reestablishment of diplomatic relations Between Cuba and the United States of America, the opening of embassies and the policy changes announced by President Barack Obama . . . constitute a major progress, which has elicited the broadest support of the international community.”

However, he added, “the economic, commercial and financial blockade [by the U.S.] against Cuba persists bringing damages and hardships on the Cuban people, and standing as the main obstacle to our country’s economic development, while affecting other nations due to its extraterritorial scope and hurting the interests of American citizens and companies. Such policy is rejected by 188 United Nations member states that demand its removal.”

More generally Castro condemned “the pervasive underdevelopment afflicting two-thirds of the world population” and the widening “gap between the North and the South” and “wealth polarization.”

Thus, he argued, “If we wish to make this a habitable world with peace and harmony among nations, with democracy and social justice, dignity and respect for the human rights of every person, we should adopt as soon as possible concrete commitments in terms of development assistance, and resolve the debt issue.” Such a commitment, he said, would require “a new international financial architecture, removal of the monopoly on technology and knowledge and changing the present international economic order.”

Nevertheless, according to President Castro, Cuba will continue to help other developing nations despite its limited capabilities and “shall never renounce its honor, human solidarity and social justice” that “are deeply rooted in our socialist society.”

President Obama’s September 27th Speech[2]

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On September 27, President Obama addressed the same U.N. Summit on Sustainable Development without touching on U.S.-Cuba relations. Instead he concentrated on the purpose of the Summit– sustainable development. (His photograph is to the left.)

He started by rejecting the notion that “our efforts to combat poverty and disease do not and cannot work, that there are some places beyond hope, that certain people and regions are condemned to an endless cycle of suffering.” Instead, he asserted, “the global hunger rate has already been slashed.  Tens of millions of more boys and girls are today in school.  Prevention and treatment of measles and malaria and tuberculosis have saved nearly 60 million lives.  HIV/AIDS infections and deaths have plummeted.  And more than one billion people have lifted themselves up from extreme poverty — one billion.”

Nevertheless, much remains to be done, according to Obama, and the nations at this Summit “commit ourselves to new Sustainable Development Goals, including our goal of ending extreme poverty in our world.  We do so understanding how difficult the task may be.  We suffer no illusions of the challenges ahead.  But we understand this is something that we must commit ourselves to.  Because in doing so, we recognize that our most basic bond — our common humanity — compels us to act.”

In this work, President Obama stated, the U.S. “will continue to be your partner.  Five years ago, I pledged here that America would remain the global leader in development, and the United States government, in fact, remains the single largest donor of development assistance, including in global health.  In times of crisis — from Ebola to Syria — we are the largest provider of humanitarian aid.  In times of disaster and crisis, the world can count on the friendship and generosity of the American people.”

Therefore, Obama said, he was “committing the United States to achieving the Sustainable Development Goals” and to “keep fighting for the education and housing and health care and jobs that reduce inequality and create opportunity here in the United States and around the world.” This effort will include other “governments, more institutions, more businesses, more philanthropies, more NGOs, more faith communities, more citizens.” Moreover, the “next chapter of development must also unleash economic growth — not just for a few at the top, but inclusive, sustainable growth that lifts up the fortunes of the many.”

President Obama concluded by noting these obstacles to achieving these goals: bad governance; corruption; inequality; “old attitudes, especially those that deny rights and opportunity to women;” failure to “recognize the incredible dynamism and opportunity of today’s Africa;” war; and climate change

President Obama’s September 28th Speech[3]

 In a wide-ranging speech on international affairs, President Obama commented on U.S. relations with Cuba. He said, “I also believe that to move forward in this new era, we have to be strong enough to acknowledge when what you’re doing is not working. For 50 years, the United States pursued a Cuba policy that failed to improve the lives of the Cuban people. We changed that. We continue to have differences with the Cuban government. We will continue to stand up for human rights. But we address these issues through diplomatic relations, and increased commerce, and people-to-people ties. As these contacts yield progress, I’m confident that our Congress will inevitably lift an embargo that should not be in place anymore. Change won’t come overnight to Cuba, but I’m confident that openness, not coercion, will support the reforms and better the life the Cuban people deserve, just as I believe that Cuba will find its success if it pursues cooperation with other nations.”

Later in the speech, Obama added these words: “Think of the Americans who lowered the flag over our embassy in Havana in 1961 — the year I was born — and returned this summer to raise that flag back up. (Applause.) One of these men said of the Cuban people, “We could do things for them, and they could do things for us. We loved them.” For 50 years, we ignored that fact.

These comments were in the context of the following more general discussion of international affairs by President Obama: “We, the nations of the world, cannot return to the old ways of conflict and coercion. We cannot look backwards. We live in an integrated world — one in which we all have a stake in each other’s success. We cannot turn those forces of integration. No nation in this Assembly can insulate itself from the threat of terrorism, or the risk of financial contagion; the flow of migrants, or the danger of a warming planet. The disorder we see is not driven solely by competition between nations or any single ideology. And if we cannot work together more effectively, we will all suffer the consequences.”

“No matter how powerful our military, how strong our economy, we understand the United States cannot solve the world’s problems alone.” So too, in words that could be aimed at Cuba and others, “repression cannot forge the social cohesion for nations to succeed. The history of the last two decades proves that in today’s world, dictatorships are unstable. The strongmen of today become the spark of revolution tomorrow. You can jail your opponents, but you can’t imprison ideas. You can try to control access to information, but you cannot turn a lie into truth. It is not a conspiracy of U.S.-backed NGOs that expose corruption and raise the expectations of people around the globe; it’s technology, social media, and the irreducible desire of people everywhere to make their own choices about how they are governed.”

In a similar vein, Obama said, “The strength of nations depends on the success of their people — their knowledge, their innovation, their imagination, their creativity, their drive, their opportunity — and that, in turn, depends upon individual rights and good governance and personal security.”

Finally, according to Obama, we must “defend the democratic principles that allow societies to succeed” with a recognition that “democracy is going to take different forms in different parts of the world. The very idea of a people governing themselves depends upon government giving expression to their unique culture, their unique history, their unique experiences. But some universal truths are self-evident. No person wants to be imprisoned for peaceful worship. No woman should ever be abused with impunity, or a girl barred from going to school. The freedom to peacefully petition those in power without fear of arbitrary laws — these are not ideas of one country or one culture. They are fundamental to human progress.”

“A government that suppresses peaceful dissent is not showing strength; it is showing weakness and it is showing fear. History shows that regimes who fear their own people will eventually crumble, but strong institutions built on the consent of the governed endure long after any one individual is gone.”

“That’s why our strongest leaders — from George Washington to Nelson Mandela — have elevated the importance of building strong, democratic institutions over a thirst for perpetual power. Leaders who amend constitutions to stay in office only acknowledge that they failed to build a successful country for their people — because none of us last forever. It tells us that power is something they cling to for its own sake, rather than for the betterment of those they purport to serve.”

“Democracy — inclusive democracy — makes countries stronger. When opposition parties can seek power peacefully through the ballot, a country draws upon new ideas. When a free media can inform the public, corruption and abuse are exposed and can be rooted out. When civil society thrives, communities can solve problems that governments cannot necessarily solve alone. When immigrants are welcomed, countries are more productive and more vibrant. When girls can go to school, and get a job, and pursue unlimited opportunity, that’s when a country realizes its full potential.”

President Castro’s September 28th Speech[4]

On September 28, Cuban President Raúl Castro in his address to the U.N. General Assembly essentially reiterated his comments of two days earlier about U.S.-Cuba relations with these words: ‘After 56 years, during which the Cuban people put up a heroic and selfless resistance, diplomatic relations have been reestablished between Cuba and the United States of America.”

“Now, a long and complex process begins toward normalization that will only be achieved with the end of the economic, commercial and financial blockade; the return to our country of the territory illegally occupied by the Guantanamo Naval Base; the suspension of radio and TV broadcasts, and subversion and destabilization attempts against the Island; and, when our people are compensated for the human and economic damages they continue to endure.”

“As long as the blockade remains in force, we will continue to introduce the Draft Resolution entitled ‘Necessity of Ending the Economic, Commercial and Financial Embargo imposed by the United States of America on Cuba.’ To the 188 governments and peoples who have backed our just demand, here, and in other international and regional forums, I reaffirm the eternal gratitude of the Cuban people and government for your continued support.” [5]

The rest of this Castro speech argued that the U.N. has failed in its 70 years of existence to fulfill the lofty purposes of its Charter. The speech also noted Cuba’s solidarity with its Caribbean brothers, African countries, the Bolivarian Republic of Venezuela, the Republic of Ecuador, the people of Puerto Rico, the Republic of Argentina, the Brazilian people and President Dilma Rouseff, the Syrian people and the Palestinian people. Castro also supported the nuclear agreement with the Islamic Republic of Iran.

On the other hand, Castro reaffirmed Cuba’s “rejection of the intention to expand the presence of NATO up to the Russian borders, as well as of the unilateral and unfair sanctions imposed on that nation” and Cuba’s condemnation of NATO and European countries’ efforts to destabilize countries of the Middle East and Africa that have led to the recent migrant crisis in Europe.

In conclusion, Castro said, “the international community can always count on Cuba to lift its sincere voice against injustice, inequality, underdevelopment, discrimination and manipulation; and for the establishment of a more equitable and fair international order, truly focused on human beings, their dignity and well-being.”

The Presidents’ Meeting[6]

Obama &Castro

The two presidents with their advisors held a 30-minute private meeting at the U.N. on Tuesday, September 29. The photograph at the left shows them shaking hands.

The U.S. delegation consisted of Secretary of State, John Kerry; National Security Adviser, Susan Rice; National Security Council Senior Director for Western Hemisphere Affairs, Mark Feierstein; and the U.S. Permanent Representative to the U.N., Samantha Power.

Cuba’s delegation was composed of the Foreign Minister, Bruno Rodriguez; Consultant, Alejandro Castro Espin (the son of President Raúl Castro); Vice President of Cuba’s Defense and Security Committee, Juan Francisco Arias Fernández; Cuba’s Director General of U.S. Affairs, Ministry of Foreign Affairs, Josefina Vidal; and Cuba’s Ambassador to the U.S., José Ramón Cabañas.

White House’s Comments on the Meeting[7]

On a September 29 flight from New York City to Washington, D.C., White House Press Secretary Josh Earnest, in response to a journalist’s question, said, “I know that the two leaders had an opportunity to discuss some of the regulatory changes that have been announced in the last couple of weeks on the part of the [U.S.]. The State Department is leading civil aviation coordination talks in Cuba right now.  And these are all additional steps that are moving toward more normal relations between our two countries.”

“The President, as he always does, . . . reaffirmed our commitment to seeing the Cuban government do a better job of not just respecting, but actually proactively protecting, the basic human rights of the Cuban people.”

We “continue to believe that deeper engagement and deeper people-to-people ties, deeper economic engagement between the [U.S.] and Cuba will have the effect of moving the government and the nation in a positive direction.”

Thereafter the White House released the following written statement about the meeting: “President Obama met today with President Raul Castro of Cuba to discuss recent advances in relations between the United States and Cuba, as well as additional steps each government can take to deepen bilateral cooperation. The two Presidents discussed the recent successful visit of Pope Francis to both countries.  President Obama highlighted U.S. regulatory changes that will allow more Americans to travel to and do business with Cuba, while helping to improve the lives of the Cuban people.  The President welcomed the progress made in establishing diplomatic relations, and underscored that continued reforms in Cuba would increase the impact of U.S. regulatory changes.  The President also highlighted steps the United States intends to take to improve ties between the American and Cuban peoples, and reiterated our support for human rights in Cuba.”

Cuban Foreign Minister’s Press Conference[8]

Soon after the presidential meeting, Cuban Foreign Minister Bruno Rodriguez held a press conference at the U.N. In his opening statement, he said that in a “respectful and constructive” atmosphere, the two presidents exchanged their views on the recent visit of Pope Francisco to Cuba and the United States, as well as issues on the bilateral agenda established between the two countries.

“The presidents agreed on the need to continue working on the set bilateral agenda, which includes areas of mutually beneficial bilateral cooperation and in third countries such as Haiti, the development of dialogue on issues of bilateral and multilateral interest and resolving outstanding issues between two states.”

President Castro affirmed Cuba’s desire to build a new relationship with the U.S. based on respect and sovereign equality, but reiterated that to have normal relations the U.S. had to lift the blockade, which is causing damage and hardship to the Cuban people and affects the interests of American citizens.

Castro also confirmed that Cuba on October 27 would introduce in the General Assembly a resolution condemning the embargo (blockade). Said the foreign Minister, the blockade is “a massive, flagrant and systematic violation of human rights of all Cubans and harms all Cuban families, even Cubans living outside Cuba.” Cuba fully expects this year’s resolution to once again have overwhelming support.

The Foreign Minister said the return of the territory illegally occupied by the Guantanamo Naval Base in Cuba is a high priority element in the process of normalization of relations between the U.S. and Cuba, as a vindication of Cuban people.

At another point he added that “we are very proud of the accomplishments of Cuba on human rights and that human rights are universal, not subject to political selectivity or manipulation of any kind. ” Cuba guarantees the full exercise of political rights and civil liberties, and economic, social and cultural rights. We have many concerns with the situation on human rights in the world, particularly in the U.S. and Western Europe, as illustrated by the current immigration refugee crisis. The pattern of racial discrimination and police brutality against African Americans in the [U.S.] is really serious.

Conclusion

Cuba reiterated its insistence on ending the U.S. embargo as an essential condition for normalization of relations, an objective shared by President Obama and this blog. [9] We now await the U.N. General Assembly’s debate and anticipated approval on October 27 of another resolution condemning the embargo and whether the U.S. will, for the first time, abstain on the vote.

Cuba continues to assert that the U.S. lease of Guantanamo Bay is illegal, but its saying so does not make it so. Previous blog posts have discussed this contention and do not find it persuasive and, therefore, suggested the two countries submit the dispute for resolution to the Permanent Court of Arbitration at The Hague in the Netherlands.[10]

The same means has been suggested in this blog for resolving the disputes about whether or not Cuba has been damaged by the embargo (blockade) and the amount of such alleged damages as well as the amount of damages to U.S. interests by Cuba’s expropriation of property in the early years of the Cuban Revolution.

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[1] Cuba Ministry Foreign Affairs, Raul Castro: Unacceptable levels of poverty and social inequality persist and even aggravate across the world (Sept. 26, 2015); Reuters, Cuba’s Castro Slams U.S. Trade Embargo at United Nations, N.Y. Times (Sept. 26, 2015); Reuters, U.S. Embargo ‘Main Obstacle’ to Cuba’s Development: Castro, N.Y. Times (Sept. 26, 2015) (video)

[2] White House, Remarks by President on Sustainable Development Goals (Sept. 27, 2015).

[3] Reuters, Quotes from President Obama’s U.N. Speech, N.Y. Times (Sept. 28, 2015); President Obama’s Speech to the United Nations General Assembly 2015, N.Y. Times (Sept. 28, 2015); White House, Remarks by President Obama to the United Nations General Assembly (Sept. 28, 2015).

[4] Raúl at the United Nations: The International community can always count on Cuba’s voice in the face of injustice, Granma (Sept. 28, 2015); Full text [of Castro’s speech], Granma (Sept. 28, 2015); Reuters, At U.N., Castro Says U.S. Must End Embargo to Have Normal Cuba Ties, N.Y. Times (Sept. 28, 2015); Assoc. Press, Raúl Castro Addresses General Assembly, N.Y. Times (Sept. 28, 2015) (video); Goldman, At the U.N., Raúl Castro of Cuba Calls for End to U.S. Embargo, N.Y. Times (Sept. 28, 2015).

[5] A prior post reviewed last year’s General Assembly’s condemnation of the embargo.

[6] Assoc. Press, U.S., Cuba Leaders Meet for 2nd Time in This Year, N.Y. Times (Sept. 29, 2015); Reuters, Obama, Castro Meet as They Work on Thawing U.S.-Cuba Ties, N.Y. Times (Sept. 29, 2015); Cuba and U.S. Presidents meet, Granma (Sept. 30, 2015)

[7] White House, Press Gaggle by Press Secretary Josh Earnest en route Washington, D.C., 9/29/15; White House, Readout of the President’s Meeting with Cuban President Raul Castro (Sept. 29, 2015).

[8] Reuters, Cuban Minister on Obama-Castro Meeting, N.Y. Times (Sept. 29, 2015) (video); Bruno Rodriguez: The blockade is a massive, flagrant and systematic violation of human rights, Granma (Sept. 30, 2015).

[9] This blog has discussed the initial bills to end the embargo in the House and Senate as well as later bills to do the same in the Senate and House.

[10] Resolution of U.S. and Cuba’s Damage Claims (April 4, 2015); Resolution of Issues Regarding U.S.-Lease of Guantanamo Bay (April 6, 2015); Does Cuba Have a Right to Terminate the U.S. Lease of Guantanamo Bay? (April 26, 2015).