Proposed Resolution of U.S.-Cuba Issues

The 60 years of U.S. hostility towards Cuba (with the two-year respite (2014-2016) under President Obama) have left many important unresolved issues.[1] Here is at least a partial list of those issues:

  1. U.S. ending embargo (blockade) of Cuba?
  2. U.S. response to Cuba’s claims for alleged damages from embargo & other acts?
  3. U.S. closing its detention facility at Guantanamo Bay?
  4. U.S. paying Cuba for use of Guantanamo Bay, 1960— ?
  5. U.S. returning Guantanamo Bay to Cuba or entering into new lease of territory?
  6. Cuba paying U.S. persons for expropriated property, 1959-60?
  7. U.S. ending unilateral “democracy promotion” activities in Cuba?
  8. Mutual extradition of the other’s criminal suspects & convicts?
  9. Cuba improving human rights?
  10. U.S. & Cuba resolving responsibility for medical problems of U.S. diplomats in Cuba, 2016-??
  11. U.S. ending or modifying U.S. ban on transactions with certain Cuban entities on the State Department’s “Cuba Restricted List”?
  12. U.S. possible restoration of parole for Cuban medical professionals?
  13. U.S. possible allowance of lawsuits for expropriated Cuban property?
  14. U.S. possible re-designation of Cuba as a “state sponsor of terrorism” due to Cuban military aid to Venezuela?
  15. U.S. possible adoption of other U.S. hostile acts against Cuba proposed by President Trump, National Security Advisor Bolton, Secretary of State Pompeo, Senator Rubio, et al.?

Many of these issues were discussed in the meetings of the two countries in 2015-17 although the substance of the discussions have not been publicly disclosed.

If I were President with a supportive Congress,  I would work for the following comprehensive bilateral resolution:of these issues:

  • U.S. ends embargo (blockade) of Cuba;
  • U.S. ends unilateral “democracy promotion” efforts in Cuba;
  • U.S. closes detention facility at Guantanamo Bay;
  • U.S. pays Cuba for its use of Guantanamo Bay, 1960 to date;
  • U.S. and Cuba enter into new lease of Guantanamo Bay at fair market value rental;
  • U.S. pays Cuba for alleged damages caused by U.S. embargo (blockade);
  • Cuba agrees to pay fair market value, with interest, to U.S. owners of expropriated property (potentially with funds provided by U.S. paying Cuba for past use of Guantanamo Bay; for future use of Guantanamo Bay under new lease; and for alleged damages caused by U.S. embargo (blockade));
  • U.S. abolishes Title III of Helms-Burton Act allowing U.S. owners of expropriated property to sue persons trafficking in property owned by U.S. persons that were expropriated by Cuba (1959-60);
  • U.S. agrees not to reintroduce parole for Cuban professional medical personnel;
  • U.S. agrees not to re-designate Cuba as “state sponsor of terrorism;”
  • U.S. and Cuba enter into new agreement on mutual extraditions;
  • U.S. and Cuba agree on bilateral ways to improve Cuban human rights and Internet access; and
  • U.S. and Cuba resolve issues regarding medical problems of US diplomats in Cuba (2016-??).

The proposal to have the U.S. use some or all of its payments to Cuba for Guantanamo usage and alleged Cuban damages from the embargo for the U.S. to pay for the U.S. claims for Cuba’s expropriations  is based on the painful realization that Cuba does not have the resources to pay for any significant portion of these U.S. claims.

Cuba repeatedly has asserted that the U.S. use of Guantanamo Bay is an illegal occupation and the property should be returned to Cuba. Because of the  U.S. argument to legally have occupied the territory under the 1903 lease and because of U.S. current national security concerns, however, the U.S. would not and should not agree to this Cuban proposal, especially since Cuba is developing closer relationships with Russia and China, which potentially could occupy Guantanamo to enhance their threats to the U.S.

Failure to reach agreement on any of these issues may well result in narrowing the issues, and any unresolved issues should be submitted to a binding international arbitration at the Permanent Court of Arbitration at the Hague in the Netherlands. Based on this blogger’s experience as a corporate litigator in U.S. courts, I note that many cases like the one proposed for arbitration of the Cuban and U.S. claims frequently are settled before they go to trial.

One example of narrowing the issues is Cuba’s recognition with other countries that it has an international legal obligation to pay for expropriated property, which is the major premise of the U.S. claims for expropriated property. That would leave important, subsidiary issues: are the claimants valid owners of the Cuban properties; what were the fair market values of the properties at the time of expropriation; and what is a fair rate of interest on the claims?

I invite anyone with other ideas for a comprehensive bilateral resolution of outstanding issues or objections to my proposed resolution to share them in reasoned comments to this post.

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[1] These issues are discussed in many posts listed in List of Posts to dwkcommentaries—Topical: CUBA.

President Trump Considering Another Hostile Action Against Cuba 

On January 16, U.S. Secretary of State Mike Pompeo extended for 45 days the right to bring certain lawsuits in U.S. federal courts  by Americans who owned property in Cuba that was confiscated by its government. [1]

The Announcement

The State Department stated that this 45-day extension, instead of the usual six-month extension, “will permit us to conduct a careful review of the right to bring action under Title III [of the Helms-Burton or LIBERTAD Act] in light of the national interests of the United States and efforts to expedite a transition to democracy in Cuba and include factors such as the Cuban regime’s brutal oppression of human rights and fundamental freedoms and its indefensible support for increasingly authoritarian and corrupt regimes in Venezuela and Nicaragua.”

This announcement added, “We call upon the international community to strengthen efforts to hold the Cuban government accountable for 60 years of repression of its people. We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting this dictatorship.”

This right to sue was created by Title III of the Helms-Burton Act of 1996. It would permit lawsuits against persons who profit from property in Cuba that was expropriated from Americans. For example, there could be hundreds of lawsuits against corporations around the world, such as  Spanish companies that run Cuban hotels as well as Chinese and Turkish firms renovating Cuban ports. Exempt from this provision of  the Act  are U.S. companies involved in U.S. legal travel to Cuba such as AirBnB, airlines and cruise companies. But the exact meaning of this exemption could be tested in litigation, for example, over U.S. and foreign airlines landing at Havana’s Jose Marti Airport, which is built on land expropriated from a family now living in Miami.

Every  U.S. president since the enactment of the Helms-Burton Act, starting with Bill Clinton and including Trump in 2017 and 2018, has suspended Title III, for six months each time, because of its potential to alienate U.S. allies and complicate any future American detente with Cuba. Moreover, not suspending title III would create a huge obstacle to new foreign investment in Cuba.[2]

The most recent extension of only 45 days and the stated reason for this extension raise the real possibility that the Trump Administration will grant no additional suspensions or waivers of Title III and thereby permit such lawsuits.

Reactions to This Announcement[3]

This announcement predictably was applauded by Senator Marco Rubio (Rep., FL). He said in a tweet that it “is a strong indication of what comes next. If you are trafficking in stolen property in #Cuba, now would be a good time to get out.” A similar opinion was expressed by Representative Mario Diaz-Balart (Rep., FL).

Three U.S. experts on Cuba, however, criticized this possible change. Professor William LeoGrande of American University said, “It would cause an enormous legal mess, anger U.S. allies in Europe and Latin America, and probably result in a World Trade Organization case against the U.S.” He added that the State Department previously had estimated that allowing Title III to go into effect could result in 200,000 or more lawsuits being filed. Another expert, Phil Peters, said, “If they take this decision they will be moving from a policy of limiting U.S. engagement with Cuba to a policy of very actively trying to disrupt the Cuban economy.” The third, Michael Bustamante, assistant professor of history at Florida International University, stated, “Legitimate property claims need to be resolved, but in the context of a bilateral negotiation. Those backing the enforcement of Title III seem most intent on sowing havoc rather than achieving a positive good.”

Cuban authorities naturally had negative reactions to this proposed change. President Miguel Diaz-Canel said on Twitter that “we vigorously reject this new provocation, meddling, threatening and bullying, in violation of international law.”

Cuban Foreign Minister Bruno Rodriguez described the announcement as “political blackmail and irresponsible hostility aimed at hardening the blockade on Cuba. The government of President Donald Trump threatens to take a new step that would reinforce, in a dangerous way, the blockade against Cuba, would flagrantly violate International Law and directly attack the sovereignty and interests of third countries. It . . . [is] a hostile act of extreme arrogance and irresponsibility [issued in] the disrespectful and slanderous language of the State Department’s public message.”

Conclusion

This U.S. announcement follows shortly after U.S. Senators Robert Menendez and Rubio called for another hostile U.S. action against Cuba—the re-establishment of the U.S. parole policy for Cuban medical professionals, which was criticized in a recent post.[4]

Both of these proposed U.S. actions may well have been promoted or provoked by National Security Advisor John Bolton, who has long-held hostile opinions about Cuba and more recently has called Cuba, Venezuela and Nicaragua “the Troika of Tyranny.” Moreover, on November 1 in Miami, Bolton said the Administration was “seriously” considering new measures against the Cuban government, including allowing Cuban exiles whose properties were confiscated by the Castro government to file lawsuits in U.S. courts against foreign companies currently using those properties.[5]

Both of these proposed hostile actions by the U.S., in this blogger’s opinion, are ill-advised as unnecessarily creating additional conflicts with a close neighbor, with whom the U.S. should be fostering better relations as was done by President Obama after December 17, 2014.

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[1] U.S. State Dep’t, Secretary’s Determination of 45-Day Suspension Under Title III of LIBERTAD Act (Jan. 16, 2019); Reuters, U.S. Considering  Allowing Lawsuits Over Cuba-Confiscated Properties, N.Y. Times (Jan. 16, 2019); Assoc. Press, Trump Weighs Dramatic Tightening of US Embargo on Cuba, N.Y. Times (Jan. 17, 2019).

[2] U.S..State Dep’t, United States Determination of Six Months Suspension under Title III of LIBERTAD Act (July 14, 2017); Lederman, Trump administration again suspends a part of Cuba embargo, Fox News (July 14, 2017); Whitefield, Trump to suspend lawsuit provision of Helms-Burton Act in August, Miami Herald (July 17, 2017); U.S. Continues To Suspend Part of Its Embargo of Cuba, dwkcommentaries.com (July 20, 2017); U.S. State Dep’t, United States Determination of Six Months Suspension under Title III of LIBERTAD Act (Jan. 24, 2018); State Department Creates Cuba Internet Task Force and Suspends Enforcement of Statutory Liability for Trafficking in Certain Cuban Expropriated Property, dwkcommentaries.com (Jan. 25, 2018); U.S. State Dep’t, Secretary’s Determination of Six Months Suspension under Title III of LIBERTAD Act (June 28, 2018); Whitefield, Trump administration extends ban on lawsuits over confiscated property in Cuba, Miami Herald (June 28, 2018).

[3] Fn. 1; Guzzo, U.S. might allow lawsuits over U.S. properties nationalized in Cuba, Tampa Bay Times (Jan. 17, 2019); Cuba Foreign Minister Rodriguez, Cuba strongly rejects the threat of activation of Article III of the Helms Burton Act, Granma (Jan. 17, 2019).

[4] Senators Menendez and Rubio Call for Restoring U.S. Parole Program for Cuban Doctors, dwkcommentaries.com (Jan. 11, 2019).

[5] U.S. National Security Advisor Announces New U.S. Hostility Towards Cuba, dwkcommentaries.com (Nov. 3, 2018).

U.S. and Cuba Hold Biannual Migration Talks 

Despite the significant recent cooling of relations, the U.S. and Cuba held their biannual discussion of migration issues, this time at the State Department in Washington, D.C. on December 11.

Migration Discussions[1]

According to the Department, the two countries “discussed the significant reduction in irregular migration from Cuba to the [U.S.] since the implementation of the January 2017 Joint Statement [during the last days of the Obama Administration [2]]. Apprehensions of Cuban migrants at U.S. ports of entry decreased by 64 percent from fiscal year 2016 to 2017, and maritime interdictions of Cuban migrants decreased by 71 percent. The [U.S.] confirmed it met its annual commitment in fiscal year 2017 to facilitate legal migration by issuing a minimum of 20,000 documents under the Migration Accords to Cubans to immigrate to the [U.S.] The U.S. delegation also raised the need for increased Cuban cooperation in the return of Cubans with final orders of removal from the [U.S.]”

The Department added, “A strong migration policy is vital to the [U.S.] national security. The Migration Talks, which began in 1995, provide a forum for the [U.S.] and Cuba to review and coordinate efforts to ensure safe, legal, and orderly migration between Cuba and the [U.S.]. The talks were last held in April 2017 [in the Trump Administration].”

The Cuban statement provided greater details on the substance of these discussions. It said “Cuba urged the [U.S.] to fulfill its obligation to issue no less than 20,000 travel documents annually to Cuban citizens to emigrate to that country. “Cuba also questioned the “validity of the U.S. Cuban Adjustment Act, which continues to be a stimulus to irregular migration and whose repeal will be essential to achieve normal migratory relations between the two countries.”[3] Another impediment to cooperation on migration, said Cuba, was the U.S. cancellation of “trips of official delegations from the [U.S.] to Cuba, which has led to the postponement of previously scheduled exchanges of mutual interest, which , if maintained,  could deepen the effects on exchanges in this and other areas.”

The Cuban statement also said that Cuba  had “expressed its deepest concern about the negative consequences that [U.S.] unilateral, unfounded and politically motivated decisions [in September and October 2017] have on immigration relations between both countries.”[4]

Furthermore, Cuba “warned . . .about the negative impact of the suspension of the granting of visas in the [U.S.] Consulate in Havana [due to the U.S. reduced staffing], which, by paralyzing the procedures of Cuban citizens to visit or emigrate to that country, seriously hampers family relations and exchanges of all kinds between both peoples.” Cuba reiterated its objection to the U.S.”arbitrary expulsion of a significant group of officials from [Cuba’s] Embassy in Washington, which has significantly affected the functioning of the diplomatic mission, . . . [especially] the services it provides to Cubans residing in the[U.S.]. . . . and] to American citizens who are interested in traveling to our country.”[5]

On a more positive note, Cuba observed that both side recognized “the positive impact of the Joint Declaration signed on January 12, 2017 [during the last days of the Obama Administration] and, specifically, the elimination of the “dry feet-wet feet” policy and the “Parole Program for Cuban Medical Professionals” in the decrease of irregular emigration from Cuba to the [U.S.]”[6]

In addition, both countries” agreed on the usefulness of the exchange between Coast Guard Troops and the Coast Guard Service held in July [2017]and the technical meeting on human trafficking and immigration fraud carried out in September [2017] which will continue on December 12. Cuba reaffirmed its willingness to give continuity to the rounds of conversations on migration issues.”

Conclusion

As an advocate for normalization of U.S.-Cuba relations, it is good to know that the two countries still manage to hold respectful meetings to discuss issues of mutual concern even though they do not agree on all such issues and even though this blog disapproves of the Trump Administration’s recent changes to U.S. regulations on travel to Cuba and trade with Cuba.

This blog was also pleased to read the U.S. implicit positive endorsement of the Obama Administration’s January 12, 2017, Joint Declaration with Cuba about the latter’s migration to the U.S.

On the other hand, this blog disagrees with the U.S. reduction of the staffing of its Embassy in Havana and the expulsion of Cuban diplomats from its Embassy in Washington and supports Cuba’s complaint about the negative consequences of those decisions.

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[1] U.S. State Dep’t, United States and Cuba Hold Biannual Migration Talks in Washington, D.C. (Dec. 11, 2017); Washington’s unilateral actions hamper relations with Cuba, Granma (Dec. 11, 2017)

[2] See these posts to dwkcommentaries.com: U.S. Ends Special Immigration Benefit for Cubans and Meets with Cubans To Discuss Claims (Jan. 13, 2017); Additional Reactions to End of U.S. Immigration Benefits to Cubans (Jan. 14, 2017); Reuters, Cuba Tells U.S. Suspension of Visas Is Hurting Families, N.Y. Times (Dec. 12, 2017).

[3] Cuban Adjustment Act, Wikipedia.

[4]  See these posts to dwkcommentaries.com: A New Travel Warning for Americans Traveling to Cuba (Sept. 19, 2017); Medical “Incidents” Affecting U.S. Diplomats in Cuba Prompt U.S. To Reduce Staff at Havana Embassy and Urge Americans Not to Travel to Cuba (Sept. 30, 2017); U.S. Orders Cuba To Remove 15 Cuban Diplomats (Oct. 4, 2017); U.S. Embassy in Cuba Issues “Hotel Restrictions” Security Message (Oct. 7, 2017).

[5] See n.4.

[6] See these posts to dwkcommentaries.com: U.S. Ends Special Immigration Benefit for Cubans and Meets with Cubans To Discuss Claims (Jan. 13, 2017); Additional Reactions to End of U.S. Immigration Benefits to Cubans (Jan. 14, 2017).