Vienna Convention on Consular Relations

Joint Press Conference of U.S. Secretary of State John Kerry and Cuba Foreign Minister Bruno Rodriguez

On the morning of July 20, 2015, Cuba officially opened its Embassy in Washington, D.C., and the United States did likewise in Havana although the ceremonial opening of the latter will be on August 14 when Secretary of State John Kerry goes to Havana to preside that event. A prior post discussed the ceremonial opening of the Cuban Embassy. This post covers that afternoon’s joint press conference at the U.S. Department of State by U.S. Secretary of State John Kerry and Cuba’s Foreign Minister Bruno Rodriguez.[1] Subsequent posts will review comments about U.S.-Cuba relations offered by the White House Press Secretary at a July 20 press conference and the reactions to these events.

Bruno Rodriguez & John Kerry @ U.S. State Department

Secretary Kerry’s Opening Statement

The conference was opened by Kerry, saying it was “an historic day; a day for removing barriers.” This day was welcomed by the U.S. as a “new beginning in its relationship with the people and the Government of Cuba. We are determined to live as good neighbors on the basis of mutual respect, and we want all of our citizens – in the U.S. and in Cuba – to look into the future with hope. Therefore we celebrate this day . . . because today we begin to repair what was damaged and to open what has been closed for many years.”

His prior discussion with Minister Rodriguez, Kerry said, “touched on a wide range of issues of mutual concern including cooperation on law enforcement, counter-narcotics, telecommunications, the internet, environmental issues, human rights, including trafficking in persons. And of course, we also discussed the opening of our embassies.”

This milestone, however, Kerry added, “does not signify an end to differences that still separate our governments, but it does reflect the reality that the Cold War ended long ago, and that the interests of both countries are better served by engagement than by estrangement, and that we have begun a process of full normalization that is sure to take time but will also benefit people in both Cuba and the United States.” Indeed, “the process of fully normalizing relations between the United States and Cuba will go on. It may be long and complex. But along the way, we are sure to encounter a bump here and there and moments even of frustration. Patience will be required. But that is all the more reason to get started now on this journey, this long overdue journey.”

Foreign Minister Rodriguez’s Opening Statement

Rodriguez opened in English by saying he had “a constructive and respectful meeting with [the] Secretary . . . [and] an exchange on the issues discussed by Presidents Raul Castro and Barack Obama during their historical encounter at the Summit of the Americas in Panama, the current status of the bilateral relations, and the progress achieved since the announcements of December 17th, 2014, including Cuba’s removal from the list of state sponsors of terrorism and the expansion of official exchanges on issues of common interest, and the re-establishment of diplomatic relations and the reopening of embassies.”

The Cuban people and government recognize “President Obama for his determination to work for the lifting of the blockade, for urging Congress to eliminate it, and for his willingness to adopt executive measures that modify the implementation of some aspects of this policy. Their scope is still limited, but these are steps taken in the right direction.”

Cuba also “emphasized that, in the meantime, the President of the [U.S.] can continue using his executive powers to make a significant contribution to the dismantling of the blockade, not to pursue changes in Cuba, something that falls under our exclusive sovereignty, but to attend to the interests of U.S. citizens.”

Rodriguez also “emphasized that the total lifting of the blockade, the return of the illegally occupied territory of Guantanamo, as well as the full respect for the Cuban sovereignty and the compensation to our people for human and economic damages are crucial to be able to move towards the normalization of relations.”

“We both ratified our interest in normalizing bilateral relations, knowing that this will be a long and complex process, which will require the willingness of both countries. There are profound differences between Cuba and the [U.S.] with regard to our views about the exercise of human rights by all persons all over the world, and also issues related to international law, which will inevitably persist. But we strongly believe that we can both cooperate and coexist in a civilized way, based on the respect for these differences and the development of a constructive dialogue oriented to the wellbeing of our countries and peoples, and this continent, and the entire world.”

He also “expressed to the Secretary of State that he will be welcome in Cuba on the occasion of the ceremony to reopen the U.S. embassy in Havana [on August 14].”

Rodriguez then essentially repeated these comments in his native Spanish language. He also “reiterated our invitation to all U.S. citizens to exercise their right to travel to Cuba, as they do to the rest of the world, and to the companies of that country to take advantage on an equal footing of the opportunities offered by Cuba.”

Question and Answer Session

The press then asked the following questions, and the two officials provided these answers.

QUESTION: The first question had the following three parts: (a) What was the U.S. position with respect to Rodriguez’ statement that only the lifting of the trade embargo and the return of Guantanamo Bay would lend meaning to today’s historic events and that Cuba did not want any U.S. interference in its domestic policies? (b) What changes in Cuban human rights would the U.S. be pursing? (c) What changes would Cuba be willing to make at the request of the U.S. before the lifting of the embargo and return of Guantanamo?

SECRETARY KERRY: “[T[here are things that Cuba would like to see happen; there are things the United States would like to see happen.” But that does not mean that these things will happen.

“With respect to the embargo, President Obama . . . has called on Congress to lift the embargo.” The Administration hopes “that the embargo at the appropriate time will in fact be lifted and that a great deal more foundation can be built for this relationship.”

At this time, there is no discussion and no intention on our part at this moment to alter the existing [Guantanamo Bay] lease treaty or other arrangements with respect to the naval station, but we understand that Cuba has strong feelings about it. I can’t tell you what the future will bring but for the moment that is not part of the discussion on our side.”

The U.S., on the other hand, has “expressed and we will always express – because it’s part of the United States foreign policy; it’s part of our DNA as a country – and that is our view of human rights and our thoughts about it. We have shared good thoughts on that. We’ve had good exchanges. And as you know, part of this arrangement that took place involved an exchange of people as well as the release of some people. And our hope is that as time goes on, we’ll continue to develop that.”

What we did talk about today was how to further the relationship most effectively, and perhaps through the creation of a bilateral committee that might work together to continue to put focus on these issues.”

FOREIGN MINISTER RODRIGUEZ: “In recent times, the U.S. Government has recognized that the blockade against Cuba is a wrong policy, causing isolation and bringing about humanitarian damages and privations or deprivations to our people, and has committed to engage Congress in a debate with the purpose of lifting the blockade. . . . [T]he President of the U.S. [also] has adopted some executive measures which are still limited in scope but which are oriented in the right direction.”

In exchanges with Secretary Kerry we “have not spoken about conditions but rather about the need to move on through the dialogue on the basis of sovereign equality and mutual respect and create a civilized behavior, despite the profound differences that exist between both governments, to better attend to the interests of our respective peoples.”

“[I]t is very important that today a [Cuban] embassy was reopened in Washington and that diplomatic instruments could be created ensuring full mutual recognition, which is a practical contribution to the development of bilateral dialogue. . . . [For] Cuba, the normalization of relations presupposes the solution of a series of pending problems, [including] “the ceasing of the blockade against Cuba, the return of the territory of Guantanamo, and the full respect for the sovereignty of our country.” We also confirmed “that there are conditions . . . [for expanding] the dialogue . . . with the purpose of expanding mutually beneficial cooperation between our . . . countries and, of course, taking into account the fact that the situation between the U.S. and Cuba is asymmetric because our . . . country has not implemented any discriminatory policy against American citizens or enterprises. Cuba does not implement any unilateral coercive economic measure against the U.S. Cuba does not occupy any piece of U.S. territory. Precisely through the dialogue, we are supposed to create the proper conditions to move on towards the normalization of relations.”

QUESTION: This was a three-part question: (a) What are the advantages [for Cuba’s having an embassy in the U.S,] taking into consideration that the blockade is still in place? (b) What are the advantages for the U.S.’ having an embassy in Havana? (c) Will the U.S. in the future respect the Vienna Conventions on Diplomatic Relations?

FOREIGN MINISTER RODRIGUEZ: “The fact that diplomatic relations have been re-established and that embassies have been reopened in both capitals shows first and foremost the mutual willingness to move on towards the improvement of the relations between our both countries. Second, new instruments are [being] created to further deepen this dialogue. . . . Third, . . . the basis for the normal functioning of these diplomatic missions would be the purposes and principles enshrined in the U.N. Charter: the principles of international law and the regulations containing the Vienna Conventions on diplomatic and consular relations. Therefore, we have reached agreements in these areas, and I can say that Cuba would absolutely respect those provisions. Cuban diplomats will strictly abide by those rules, and we will create in Cuba every necessary condition for the normal functioning of the new U.S. Embassy in our country.”

SECRETARY KERRY: Part “of the negotiations leading up to the opening of the embassies was . . . coming to agreement with respect to all of the diplomatic functions. . . . [That led to an] “agreement which is in accord with the Vienna Conventions and meets both of our countries’ understandings of what is needed and what is appropriate at this moment in time. It could be subject to change later in the future, obviously, but for the moment we are satisfied and we are living within the structure of the Vienna Convention.”

QUESTION: A three-part question: (a) In “your discussions today, did you establish any sort of road map for talks going forward? (b) If so, what are your priorities? (c) As a result, do you envision a political opening in Cuba on issues such as greater freedom of speech and assembly, and also the legalization of opposition parties?”

FOREIGN MINISER RODRIGUEZ: We will “welcome Secretary Kerry in the next few weeks in Havana to continue our talks, to establish the appropriate mechanisms to expand the dialogue in areas related to bilateral cooperation oriented to the common benefit, and to retake our talks about the substantial aspects of the bilateral relations I have mentioned before, which will determine this process towards the normalization of relations.”

The “political opening in Cuba happened in the year 1959. . . . We Cubans feel very happy with way in which we manage our internal affairs. We feel optimistic when it comes to the solution of our difficulties and we are very zealous of our sovereignty, so we will maintain in permanent consultations with our people to change everything that needs to be changed based on the sovereign and exclusive willingness of Cubans.”

QUESTION: A four-part question: (a) Is “this new era of relations with Cuba [based on a] recognition that the U.S. policies of isolating countries in Latin America that differ from . . . [U.S.] political views don’t work?” (b) “Do the recent trips to Caracas of Mr. Thomas Shannon [of the U.S. State Department] . . . [constitute a] beginning of trying to rebuild the relationship with Venezuela?” (c) Is it possible [for Cuba] to have relations with the U.S. when the U.S. is giving every signal that it is not willing to lift the blockade or the embargo as it is called here and cannot withdraw from Guantanamo?” (d) Has the U.S. after failing to change Cuba from the outside “now implemented a creative way to try to change Cuba from the inside?”

FOREIGN MINISTER RODRIGUEZ: The “fact that diplomatic relations are being established and that we are reopening both embassies is a show of the mutual willingness to move on towards the normalization of bilateral relations.” [Last] December President Obama recognized that the U.S. policy against Cuba had been wrong, causing damages and hardships to the Cuban people, and causing isolation to the U.S.”

The “re-establishment of diplomatic relations and the opening of embassies are appreciated by my country as a signal of progress towards a civilized relationship, despite the differences, and it would lend some meaning only if the blockade is lifted, if we are able to solve the pending problems for more than one century, and if we are able create a new type of relationship between the U.S. and Cuba different from what has existed all along the history.”

Cuba feels “that [President Obama’s] recognition of the need to lift the blockade against Cuba, that during the talks that we have had, including this morning’s talks, we have perceived respect for Cuba’s independence to the full determination of our people, [that the two countries] have talked, on the basis of absolute equal sovereignty despite differences shows that the dialogue is fruitful and that the U.S. and Cuba, by a mandate of the American people and the Cuban people, are in the condition to move on towards a future of relations different from the one accumulated throughout our history, responding precisely to the best interests of our citizens.”

“There is an international order. International law is recognized as the civilized behavior to be adopted by states. There are universally accepted principles, and these have been the ones who have allowed us to reach this date and the ones that . . . will reorient our behavior in our relations in the future.”

SECRETARY KERRY: With respect to Cuba, “passions ran deep . . . to this day in the [U.S.]. There are many Cuban-Americans who have contributed in so many ways to life in our country, some of whom are still opposed to a change, some of whom believe it is time to change.”

“When I served in the [U.S.] Senate, there were many of us who believed over a period of time that our policy of isolating [Cuba] was simply not working; we were isolating ourselves in many ways. And we felt that after all those years it was time to try something else. President Obama is doing that now. And it is clear that we have chosen a new path, a different path. Already, people tell me who have visited Cuba that they feel a sense of excitement, a sense of possibility. And I am convinced that as we work through these issues we are going to find a better path forward that speaks to the needs of both peoples, both countries.”

With respect to Venezuela, Counselor of the State Department, Ambassador Tom Shannon has had several conversations with the Venezuelans. We had a very productive conversation prior to the Summit of the Americas in Panama. The [U.S.] has said many times we would like to have a normal relationship with Venezuela and have reached out in an effort to try to change the dialogue, change the dynamics. There are differences that we have with President Maduro and his government, and we raise those differences and we talk about them.”

“Just today, Foreign Minister Rodriguez and I talked specifically about Venezuela and our hopes that we can find a better way forward, because all of the region will benefit if no country is being made a scapegoat for problems within a country, and in fact, all countries are working on solving those problems.”

“We hope that our diplomatic relations with Cuba can encourage not only greater dialogue with Venezuela but perhaps even efforts to try to help Colombia to end its more than 50-years war and perhaps even other initiatives.”

“It’s clear that Cuba has significant progress to make in all of those areas. What’s also clear is that the previous [U.S.] . . . [did not] really make much progress [on these issues]. The President believed that a change was necessary. And we’re hopeful that in the coming years we’ll start to see the kind of respect for basic human rights on the island of Cuba that the U.S.] has long advocated.”

[Moreover, an] overwhelming percentage of the Cuban people are supportive and optimistic about this change in policy because of a chance that is has to improve their prospects on the island nation of Cuba.”

“So the President is looking forward to these kinds of changes taking effect [so] that the Cuban people and the Cuban government start to enjoy the benefits and see the results from greater engagement with the [U.S.]”

“In the days after this agreement was announced back in December, a substantial number of individuals who had previously been held by the Cuban government for their political views were released. And that’s an indication that the Cuban government is trying to at least change their reputation when it comes to these issues.“

“But we have got a long list of concerns.” In addition, “for a long time the U.S. policy of trying to isolate Cuba became a source of irritation in the relationship between the [U.S.] and other countries in the Western Hemisphere. And by removing that source of irritation, the [U.S.] can now focus attention of . . . other countries in the Western Hemisphere on the Cuban government’s rather sordid human rights record.”

“And again, that is part of the strategy for seeking to engage the Cuban people more effectively, and bring about the kind of change that we would like to see inside of Cuba.”

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[1] U.S. Dep’t of State, Press Availability with Cuban Foreign Minister Bruno Rodriguez (July 20, 2015). A video and audio recording of the press conference is available on C-Span.

Cuba’s Explanation of Path to the Restoration of Cuba-U.S. Diplomatic Relations

Granma, the official newspaper of the Communist Party of Cuba, has published an article about its interpretation of the path to Cuba’s July 1, 2015, agreement with the United States to restore diplomatic relations. The author is one of its journalists, Sergio Alejandro Gómez.[1]

Gomez’ Interpretation

Despite the difficulties of finding a way to build a new relationship after 50-plus years of estrangement, the two countries found “an indispensable set of references regarding the way forward: the Charter of the United Nations and International Law, in particular the Vienna Convention on Diplomatic Relations and [the Vienna Convention] on Consular Relations.”

The Charter was “the result of four years of intense work with the view to avoid new wars that would put humanity on the brink of annihilation.” Among its “principles and purposes are the defense of sovereign equality, the settlement of disputes by peaceful means, refraining from the threat or use of force against the territorial integrity or political independence of any State and non-intervention in matters of domestic jurisdiction.”

“Similarly, the Charter promotes friendly relations among nations based on respect for the principle of equal rights and the self-determination of peoples, cooperation in solving international problems and encouraging respect for human rights and fundamental freedoms of all.”

The two Vienna Conventions “establish that the customary norms of international law continue to govern any questions not expressly addressed. . . . Customary international law is the set of “practices of international subjects that are generally accepted by them as Law,” As a result, says Gomez, “no practice outside the framework of the functions of diplomatic missions as established by the Vienna Convention[s] may be lawful unless it is covered by customary international Law, and this does not cover any illicit act, contrary to the norms of the receiving State.”

Cuba and the U.S.’ “compliance with the basic principles established for all nations, can help lay the foundation for progress in this long and complex road to the full normalization of relations [between the two countries].”

Conclusion

I agree. This is a concise statement of the international legal framework for peaceful and proper relations between countries. Amen!

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[1] Gómez, A guide to the complex road to normalization between Cuba and the United States, Granma (July 3, 2015).

Cuba Announces Agreement To Restore Diplomatic Relations with the United States

On July 1, 2015, the U.S. and Cuba announced an agreement to restore diplomatic relations. This post will discuss Cuba’s announcement and reactions.[1] A prior post did the same for the U.S. announcement and reactions.

The Cuban government’s announcement of the resumption of diplomatic relations stated the following:

“The President of the Councils of State and Ministers of the Republic of Cuba, Army General Raúl Castro Ruz, and the President of the United States of America, Barack Obama, exchanged letters through which they confirmed the decision to reestablish diplomatic relations between the two countries and open permanent diplomatic missions in their respective capitals, from July 20, 2015.”
“By formalizing this step, Cuba and the United States ratified the intention to develop respectful and cooperative relations between both peoples and governments, based on the purposes and principles enshrined in the Charter of the United Nations and International Law, in particular the Vienna Conventions on Diplomatic and Consular Relations.”
“The Government of Cuba has decided to reestablish diplomatic relations with the United States in full exercise of its sovereignty, invariably committed to the ideals of independence and social justice, and in solidarity with the just causes of the world, and reaffirming each of the principles for which our people have shed their blood and ran all risks, led by the historic leader of the Revolution Fidel Castro Ruz.”
“With the reestablishment of diplomatic relations and the opening of embassies, the first phase concludes of what will be a long and complex process towards the normalization of bilateral ties, as part of which a set of issues will have to be resolved arising from past policies, still in force, which affect the Cuban people and nation.”
“There can be no normal relations between Cuba and the United States as long as the economic, commercial and financial blockade that continues to be rigorously applied, causing damages and scarcities for the Cuban people, is maintained. It is the main obstacle to the development of our economy, constitutes a violation of International Law and affects the interests of all countries, including those of the United States.”
“To achieve normalization it will also be indispensable that the territory illegally occupied by the Guantanamo Naval Base is returned, that radio and television transmissions to Cuba that are in violation of international norms and harmful to our sovereignty cease, that programs aimed at promoting subversion and internal destabilization are eliminated, and that the Cuban people are compensated for the human and economic damages caused by the policies of the United States.”
“In recalling the outstanding issues to be resolved between the two countries, the Cuban Government recognizes the decisions adopted thus far by President Obama, to exclude Cuba from the list of state sponsors of international terrorism, to urge the U.S. Congress to lift the blockade and to begin to take steps to modify the application of aspects of this policy in exercise of his executive powers.”
“As part of the process towards the normalization of relations, in turn, the foundations of ties that have not existed between our countries in all their history will need to be constructed, in particular, since the military intervention of the United States 117 years ago, in the independence war that Cuba fought for nearly three decades against Spanish colonialism.”
“These relations must be founded on absolute respect for our independence and sovereignty; the inalienable right of every State to choose its political, economic, social and cultural system, without interference in any form; and sovereign equality and reciprocity, which constitute inalienable principles of International Law.”
“The Government of Cuba reiterates its willingness to maintain a respectful dialogue with the Government of the United States and develop relations of civilized coexistence, based on respect for the differences between the two governments and cooperation on issues of mutual benefit.”
“Cuba will continue immersed in the process of updating its economic and social model, to build a prosperous and sustainable socialism, advance the development of the country and consolidate the achievements of the Revolution.”

That same day (July 1) Ramón Cabañas Rodríguez, the Head of the Cuban Interests Section in Washington, delivered to Interim Secretary of State Anthony Blinken at the U.S. State Department a letter from Raúl Castro to President Obama, confirming that “the Republic of Cuba has decided to reestablish diplomatic relations with the United States of America and open permanent diplomatic missions in our respective countries, on July 20, 2015.” That letter went on to say the following:

“Cuba makes this decision, motivated by the mutual intention to develop relations of respect and cooperation between both peoples and governments.”
“Cuba likewise draws inspiration from the principles and objectives established in the United Nations Charter and international law, namely, sovereign equality; the settlement of disputes by peaceful means; abstention from acts or threat of aggression or the use of force against the territorial integrity or political independence of any States, non-intervention in matters within the domestic jurisdiction of any State, the promotion of friendly relations among nations based on respect for the principles of equal rights and that of the people’s right to self-determination, and cooperation in solving international problems and in promoting and encouraging respect for human rights and fundamental freedoms for all.”
“The above stated principles are in accordance with the spirit and norms established in the Vienna Convention on Diplomatic Relations of April 18, 1961 and the Vienna Convention on Consular Relations of April 24, 1963, to which both the Republic of Cuba and the United States of America are parties, and will govern diplomatic and consular relations between the Republic of Cuba and the United States of America.”

Cuba also confirmed that on July 1 Jeffrey DeLaurentis, the Head of the U.S. Interests Section in Havana, had delivered to the Cuban Foreign Ministry a July 1 letter from President Obama to President Castro that was quoted in the prior post about the U.S. announcement of restoration of diplomatic relations.

Cuban Reaction

According to a U.S. reporter for the New York Times, Cubans in the streets of Havana welcomed the news about the resumption of diplomatic relations.

Roberto, a parking attendant who minds cars near the U.S. Interests Section on the Malecon, said, ““This will benefit the country. Maybe, I don’t know, it will eventually benefit me.”

Regina Coyula, a blogger who for several years worked for Cuban state security, commented, “People realize that the Americans aren’t going to solve their problems, and nor is the government” of Cuba. The reaction to the December 17^th announcement of rapprochement was “like a firework display. Everyone watched them. Everyone thought they were beautiful. And then they went back to their lives.”

Coyula added that with American money being spent in private restaurants and homes and on car services, those Cubans who are doing well will do even better. “The difference between those Cubas is only going to grow.”

“We’ve been waiting all our lives for this, and it’s very welcome,” said Carmen Álvarez, 76, who was walking with friends near the Interests Section. “We’re waiting with our arms and our minds wide open.”

Yosvany Coca Montes de Oca, 38, who began listing his one-bedroom apartment in Havana with Airbnb, the online house-sharing service, in April, said, “Things are going really well.” He used to get four or five Americans staying at his house every month. For the past two months, he has had more than 15 and has been showered with reservations. But Mr. Coca acknowledged that he was part of a privileged economic circle that was feeling the immediate benefit of new American interest in Cuba. Many Cubans, he said, felt little change. “For ordinary people, it doesn’t have a direct impact. People are mainly concerned with getting by day to day.”

More generally, the U.S. reporter concluded,“The euphoria that prompted Cubans to toot their horns and wave flags [on December 17^th] . . . has given way to a tempered hope that an influx of Americans, and the eventual end of the trade embargo, will help pry open the economy and the political system.”

Similar positive comments from people on the street in Havana were captured by Granma, the official newspaper of Cuba’s Communist Party.

Other Reactions

Cuba’s Granma newspaper reported positive reactions to the restoration of diplomatic relations from China, Brazil, the European Union and the United Nations.

Conclusion

The Cuban announcement reiterated some of the issues that Cuba has raised before and after the December 17^th announcement of rapprochement and that have been addressed in prior posts to this blog.

Foremost for Cuba is ending the U.S. embargo or blockade of Cuba. President Obama agrees that this should happen and again yesterday called on Congress to adopt legislation doing just that. Senators Amy Klobuchar, Jerry Moran and Angus King have introduced bills to that end, and in the House Charles Rangel, Bobby Rush and Jose Serano have authored similar bills. Now the relevant congressional committees need to hold hearings and report the bills to the floors of the respective chambers for voting them up or down.[2]

Related to ending the embargo or blockage is Cuba’s repeated allegation that it is illegal under international law and has damaged Cuba, allegedly $1.1 trillion as of last October. It is exceedingly unlikely that the U.S. will agree with these assertions and pay Cuba that sum of money. Therefore, this blogger has suggested that this Cuban claim, along with others by Cuba and the U.S., be submitted for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands.[3]

The other significant issue for Cuba is ending the alleged U.S. illegal occupation of Guantanamo Bay and returning that territory to Cuba. Again it is exceedingly unlikely that the U.S. will agree with that allegation and demand. Remember that the Cuban government in 1906 leased that territory to the U.S. for use as a “coaling station” or “naval station” and that there are many problems with Cuba’s assertion that it has the right to terminate the lease. Therefore, this blogger has suggested that this Cuban claim and others relating to Guantanamo, including unpaid rent for the last 50-plus years, also be submitted for resolution to the Permanent Court of Arbitration.[4]

Cuba’s complaint about U.S. radio and television transmissions to Cuba (Radio and TV Marti), in this blogger’s opinion, is secondary. Again I see no U.S. acceptance of this complaint, and thus it too should be submitted to the Permanent Court of Arbitration.[5]

The other secondary Cuban complaint concerns the U.S. “programs aimed at promoting subversion and internal destabilization.” This refers to the covert, secret or “discreet” programs of the U.S. Agency for International Development (USAID), such as its social media program, the HIV workshop program and the hip-hop artist campaign. These programs, in this blogger’s opinion, are a stupid waste of U.S. taxpayers’ funds and should be terminated by the U.S. Any U.S. programs to promote democracy in Cuba should be joint ventures with the Cuban government.[6]

Now the more difficult work comes for the two countries’ diplomats to meet, discuss and negotiate to attempt to resolve or at least narrow these and many other issues. We wish them courage, persistence and humility in their work.

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[1] Statement by the Revolutionary Government, Granma (July 1, 2015); Letter from Cuban President Raúl Castro to Barack Obama (July 1, 2015); Interim Minister of Foreign Relations receives letter from U.S. President to Army General Raúl Castro Ruz, Granma (July 1, 2015); Cuba and the U.S. confirm reestablishment of diplomatic relations, Granma (July 1, 2015); Burnett, Cubans Greet Latest Step in U.S. Thaw With Hope Tempered by Reality,N.Y. Times (July 1, 2015).

[2] Prior posts have discussed bills to end the embargo in the U.S. House of Representatives and similar bills by Senators Klobuchar and Moran and King.

[3] A prior post concerned the October 2014 U.N. General Assembly’s overwhelming approval of a resolution condemning the embargo and Cuba’s allegation of $1.1 trillion of damages. Arbitration of Cuba’s alleged damages claim was suggested in another post.

[4] A post examined the 1906 lease of Guantanamo Bay; another, whether Cuba had a right to terminate the lease and another. arbitration of unresolved issues about the lease.

[5] One post looked at the status of Radio and TV Marti.

[6] Prior posts have covered USAID’s social media program; the U.S. Senate’s comments on that program; USAID’s HIV workshop program and reactions thereto by the U.S. government and by others; the New York Times’ criticism of the programs; criticism of the programs by the Latin American Working Group; and this bloggers’ open letter to President Obama complaining about the programs.

U.S. and Cuba Hold Productive Second Round of Negotiations

On February 27^th the United States and Cuba held a productive second round of negotiations at the U.S. Department of State in Washington, D.C. [1] (Below is a photograph of the U.S. delegation on the left; the Cuban, on the right.)

At the conclusion of the session, “diplomats of both countries spoke positively about fulfilling the promise made by Presidents Barack Obama and Raul Castro in December to restore embassies in each other’s capitals.

Roberta Jacobson, the State Department’s senior envoy to Latin America, said, “We made meaningful progress“ and the negotiations were “open, honest and sometimes challenging, but always respectful.” She also said she thought the embassies could be opened before the Summit of the Americas.
Her Cuban counterpart, Josefina Vidal, indicated she received assurances that the U.S. would move on two of the biggest hurdles remaining: Cuba’s inclusion on the U.S. state sponsor of terrorism blacklist and its inability to conduct normal banking operations in the U.S. She expressed confidence of progress on both priorities “within the following weeks.” Vidal also said that “the Cuban delegation is presenting a proposal for the establishment of a bilateral dialogue on human rights.”

The diplomats also said there would be subsequent discussions about various issues, including (i) civil aviation; (ii) trafficking; (iii) telecommunications; (iv) increasing Cuba’s Internet connectivity; (v) immigration fraud prevention; (vi) regulatory changes that modify the implementation of the blockade; (vii) protection of marine protected areas; and (viii) human rights.

The post-session press release by the Cuban delegation stated they “reiterated the importance of . . . the exclusion of Cuba from the list of ‘state sponsors of international terrorism,’ the provision of financial services to the Cuba Interests Section in Washington services and the need to ensure compliance with the principles of international law and the Vienna Conventions on Diplomatic and Consular Relations, [especially] compliance with the rules relating to the functions of diplomatic missions, the behavior of their staff, to respect national laws and nonintervention in the internal affairs of States.”

Later Vidal made it clear that “Cuba is willing to restore diplomatic relations with the U.S. as soon as the Obama administration declares its intent to take the country off a list of state sponsors of terrorism.” Vidal said that if Cuba got word the Obama administration was recommending the removal from the terrorism list, diplomatic ties could go forward without a prior resolution of the banking issue.” [2]

Vidal further commented that the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past, 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.” [3]

Before the session, there was optimism, but considerable uncertainty, about the likelihood of a positive outcome as indicted by the press reports before the session.

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[1] The first round of negotiations was held in Havana on January 22-23 as discussed in a prior post. This post on the second round is based upon the following: U.S. Dep’t of State, Background Briefing on Talks to Re-establish Diplomatic Relations with Cuba (Feb. 25, 2015); Reuters, Cuba Says Fast Track to Restoring Ties, ‘Depends on U.S.,’ N.Y. Times (Feb. 25, 2015); Miroff & DeYoung, Cuba says terrorism list, banking issues are blocking better ties with U.S., Wash. Post (Feb. 25, 2015); Sosa, Cuba going to second round of talks with US constructively, Granma (Feb. 25, 2015); Derevit, Cuba comes with proposals and expects answers at the meeting in Washington, CUBADEBATE (Feb. 25, 2015); Assoc. Press, U.S., Cuba Cite Progress on restoring diplomatic ties, Wash. Post (Feb. 27, 2015); Reuters, U.S., Cuba Say Progress Made in Talks, No Date for Diplomatic Ties, N.Y. Times (Feb. 27, 2015); Gómez, Cuba and the U.S. hold talks in respectful climate, Granma (Feb. 27, 2015); Schwartz, U.S., Cuba Meet for Second Round of Diplomatic Talks, W.S.J. (Feb. 27, 2015); Press Release of the Cuba Delegation on restoration of diplomatic relations with the US, Granma (Feb. 27, 2015); Adams & Mohammed, U.S., Cuba say progress made in talks, no date for diplomatic ties, Reuters (Feb. 27, 2015); Archibold, Cuba’s Spot on US Terrorism List Gums Up Restoration of Relations, N.Y. Times (Feb. 28, 2015); Reuters, Cuba Signals Readiness to Fast-Track U.S. Diplomatic Ties, N.Y. Times (Mar. 2, 2015); Gómez, Closer to restoring relations, Granma (Mar. 4, 2015).

[2] A prior post discussed the U.S. legal and political issues regarding its rescission of the terrorism designation making it impossible for the U.S. to make the rescission before the April 10-11 Summit of the Americas in Panama, and Cuba’s acceptance of a U.S. intent to rescind before establishment of diplomatic relations recognizes that U.S. reality.

[3] The U.S.-Cuba extradition treaty of 1906 and its modification in 1926 were discussed in a prior post.

U.S. and Cuba Hold Inconclusive Talks on Restoring Diplomatic Relations

On January 22 and 23, 2015, U.S. and Cuban diplomats met in Havana to discuss a multitude of issues relating to the restoration of normal diplomatic relations. No agreements were reached other than an understanding that additional talks were necessary and would be held albeit without dates or location being set.[1]

The first topic focused on technical issues related to reestablishing diplomatic ties. Gustavo Machin, the Cuban foreign ministry’s deputy director for U.S. affairs, said, “We have spoken about the principles upon which our diplomatic relations should be re-established.” The participants were “very respectful and flexible,” and not all the outstanding issues would be resolved in the first meeting.

At the conclusion of the first day’s meetings, U.S. Assistant Secretary of State Roberta Jacobson agreed that the participants had a “very productive and positive dialogue.” She added, “We discussed the real and concrete steps required to restore diplomatic relations and the terms for opening of embassies in our respective countries, as well as expectations about how the US Embassy in Havana would work.” She also agreed with Cuba’s assertion that the restoration of diplomatic relations would be in accordance with the Vienna Conventions on Diplomatic and Consular Relations. (In the photo to the right note the Cuban and U.S. flags at the podium at the site of the talks.)

Officials for both countries, however, outlined issues standing in the way of a normal U.S.-Cuba relationship.

Ms. Jacobson spoke of the U.S.’s persistent concerns about Cuban human rights while Cuba’s representatives talked about their concern for U.S. human rights, especially recent police killings of unarmed black men in Ferguson, Missouri and New York City and the treatment of detainees at the U.S. base in Guantanamo Bay Cuba.

An unnecessary note of discord was introduced by a problem over the U.S. translation into Spanish of the Jacobson’s English-language post-session written statement. The statement (with the English word in question put in bold) said, “As a central element of our policy, we pressed the Cuban government for improved human rights conditions, including freedom of expression and assembly.” The U.S. translation of this statement used the Spanish verb “presionar,” which means to pressure. Josefina Vidal, the head of the Cuban delegation, however, said, “I can confirm that the word ‘pressure’ was not used. I must say it’s not a word that is used in these types of conversations.” Later the U.S. apologized for its erroneous translation.

Ms. Vidal cited as problems for restoration of diplomatic relations Cuba’s inclusion in the U.S. list of state sponsors of terrorism and the various financial restrictions imposed on the country as a result of the U.S. trade embargo. (Again note the two flags at the same podium in the photo to the right.)

Both of the countries’ leaders talked about the need for further discussions and negotiations to resolve these many issues. I expect the two sides to develop an agenda and plan for addressing these many issues, including dates and location for the next set of talks. In a subsequent post I will set forth my views, as an outsider, as to how these differences can be resolved.

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[1] This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015); Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015); Reuters, U.S. Presses Cuba on Human Rights in Talks on Restoring Ties, N. Y. Times (Jan. 22, 2015); Sosa, U.S. aims to go beyond the restoration of relations with Cuba, Granma (Jan. 22, 2015); DeYoung, U.S., Cuba find ‘profound differences in first round of talks, Wash. Post. (Jan. 22, 2015); Klapper & Weissenstine, U.S., Cuba End Historic talks with More Questions than Answers, Assoc. Press (Jan. 23, 2015); Respectful and constructive climate brand rapprochement between Cuba and the United States, Granma (Jan. 23, 2015); U.S. is willing to discuss their differences with Cuba, Granma (Jan. 23, 2015); Ayuso, US and Cuba confirm a channel for dialogue despite their differences, El Pais (Jan. 23, 2015); Ayuso, The dialogue between Cuban and the US stumbles on human rights, El Pais (Jan. 23, 2015); An exchange that made world headlines, Granma (Jan. 23, 2015); Jacobson, Video of Statement on U.S.-Cuba Meetings (Jan. 23, 2015); Assoc. Press, U.S., Cuba End Historic Talks With More Questions than Answers, N. Y. Times (Jan. 23, 2015); Assoc. Press, U.S. admits: we’re not sure if new Cuba approach will work, Guardian (Jan. 23, 2015).

[1] This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015), http://www.reuters.com/article/2015/01/22/us-cuba-usa-idUSKBN0KV0E720150122;

Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015), http://www.nytimes.com/2015/01/23/world/conflict-and-smiles-as-us-and-cuba-discuss-ties.html?ref=world;

Cuba’s Perspective on This Week’s U.S.-Cuba Diplomatic Meetings in Havana

As mentioned in another post, the U.S. and Cuba will hold diplomatic meetings in Havana on January 21 and 22, 2014.

According to Granma, Cuba’s official and only newspaper, an unnamed source at Cuba’s Ministry of Foreign Affairs said that Cuba “is going to these meetings with the constructive spirit to sustain a respectful dialogue, based on sovereign equality and reciprocity, without undermining national independence and self-determination of the Cuban people.”

“We should not pretend that everything is solved in one meeting,” the source said. “Normalization is a much longer and complex process where you have to address issues of interest to both parties.”

Migration Issues

On January 21^st, the focus will be migration, and the unnamed source said Cuba will report on “the progress of the measures taken in January 2013 to update the Cuban immigration policy and its impact on the flow of people between the two countries,” and the two countries will discuss ways to confront “illegal immigration, smuggling and document fraud.”

In addition, Cuba will express “its deep concern at the continuing [U.S.] policy of ‘wet foot/dry foot’ and the Cuban Adjustment Act, which is the main stimulus to illegal emigration.” Cuba also will complain about the U.S. policy “to grant parole [to] Cuban professionals and health technicians to abandon their mission in third countries.”

Normalization Issues

On January 22^nd the focus will be the many issues surrounding the December 17^th decision of the two countries to re-establish diplomatic relations. As previously mentioned, Assistant Secretary of State Roberta Jacobson will lead the U.S. delegation at this session.[1]

The unnamed Cuban source said there would be discussion about certain levels of existing coordination in dealing with illegal immigration, including border troops and the coastguard; drug interdiction; oil spills; and search and rescue in case of air and maritime accidents. They also “are beginning to talk about monitoring earthquakes.”

Cuba will “reiterate the proposal made last year by U.S. government to hold a respectful dialogue on the basis of reciprocity with regard to the exercise of human rights.” The source promised “a dialogue on a reciprocal basis and on an equal footing” regarding human rights. Cuba has “legitimate concerns about the exercise of human rights in the [U.S.],” including controversies over police shootings and killings of black men in Ferguson Missouri and New York City, which are “situations that do not happen in [Cuba].” The source says his country welcomes the U.S. to meet “with the recognized organizations that make up a vibrant civil society in Cuba: students, women, farmers, professionals, disabled, unions, among others.” [2]

According to this source, Cuba will emphasize “the restoration of diplomatic relations and the opening of embassies in both capitals should be based on the principles of international law enshrined in the United Nations Charter and the Vienna Conventions on Diplomatic Relations and Consular Relations.”

“Compliance with these documents, to which both countries are signatories, means mutual respect for political and economic system of each country and to avoid any interference in the internal affairs of our nations. These principles are essentially sovereign equality, the settlement of disputes by peaceful means, refrain from the threat or use of force against the territorial integrity or political independence of any state, as well as equal rights, self-determination of peoples and non-intervention in matters which are domestic jurisdiction of states.”

In this context, Cuba will raise the following issues:

Solving the inability of the Cuban Interests Section in Washington, D.C. to obtain banking services;
Ending the U.S. designation of Cuba as a “State Sponsor or Terrorism;”
Ending the U.S. blockade [or embargo] of Cuba and providing Cuba with “compensation for damages for a policy that has been in place for over 50 years.” (At the U.N. General Assembly meeting in October 2014, Cuba claimed that the damages were $1.1 trillion.)

These issues, the source admitted, obviously cannot be resolved at the one-day meeting this week.

Reactions

I agree that certain U.S. laws relating to Cubans’ ability to gain legal immigration status in the U.S. need to be changed if there is to be full normalization and reconciliation. This includes the so-called “wet foot/dry foot” policy whereby a Cuban who is on U.S. land is entitled to such legal status, but if a Cuban is apprehended by U.S. authorities on the high seas, he is not so entitled. So too the U.S. program for granting immigration parole to Cuban professional medical personnel needs to be ended, as recommended by a New York Times editorial and by this blogger last November. (Whether these changes may be done by the President’s executive order or whether it takes congressional action has not been investigated by this blogger.)

The U.S. repeatedly has insisted that issues of Cuban human rights and civil society need to be addressed, and the Cuban Foreign Ministry spokesperson said his country was prepared to do that so long as Cuba’s concerns about human rights in the U.S. are addressed. I agree that there should be mutuality in any such discussion.

I also agree that the restoration of normal diplomatic relations needs to be based on what should be the following noncontroversial principles of the U.N. Charter and the Vienna Conventions on Diplomatic and Consular Relations:

The U.N. Charter provides that it is “based on the principle of sovereign equality of all its members” (Art. 2(1)), that “[a]ll Members shall settle their disputes by peaceful means” (Art. 2(3)) and that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the [U.N.]” (Art. 2(4)).
The Vienna Convention on Diplomatic Relations provides that “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” (Art. 2) and sets forth many details on the agreed-upon ways of implementing such relations. There are 190 states that are parties to this treaty, including Cuba and the U.S.
Similarly the Vienna Convention on Consular Relations says “The establishment of consular relations between States takes place by mutual consent” (Art. 2(1)) and provides many details on the agreed-upon ways of implementing such relations. There are 177 parties to this treaty, including Cuba and the U.S.

Other points of agreement with the Cuban spokesperson are enabling the Cuban Interests Section in Washington, D.C. to obtain banking services in the U.S.; ending the U.S. designation of Cuba as a “State Sponsor of Terrorism;”[3] and ending the U.S. embargo of Cuba.[4] As discussed in an earlier post, the U.S. already has started the process under U.S. law for rescinding the unjustified “State Sponsor of Terrorism” designation, and I anticipate that this summer there will be such a rescission. President Obama already has decided that the embargo should end, but that requires congressional action, and the process for doing just that has commenced and will not be politically easy to accomplish

The issue of compensation, if any, for Cuba for its alleged damages of $1.1 trillion from the embargo, however, is another matter.[5] This is but one of several damage claims that need to be resolved. Others include U.S. compensation to Cuba for the U.S. use of Guantanamo Bay for at least the last 56 years; [6] Cuba’s compensating U.S. interests for expropriation of their property after 1959; and Cuba’s paying a December 1997 default judgment by a U.S. district court for $197 million (plus interest) for the deaths of three of the four pilots in the February 1966 Cuban shooting down of a private “Brothers to the Rescue” plane over international waters.

One way to resolve these claims would be an agreement by the two countries to submit all of these disputes to the Permanent Court of Arbitration at the Hague in the Netherlands, which was established by a multilateral treaty, to which both Cuba and the U.S. are parties. Other ways would be the two countries creating a special claims commission to hear and resolve all of these claims or agreeing to settle all or some of the claims.

Resolving these competing claims, however, has to recognize the economic reality, in my judgment, that Cuba does not have the financial resources to pay any large amount of money. Therefore, compensating U.S. interests for expropriation of their property in Cuba, as I see it, would have to come out of any U.S. compensation of Cuba for its claims.

What do all of these points mean for the timing of full restoration of diplomatic relations? Cuba seems to be saying that ending the embargo and the “State Sponsor of Terrorism” designation have to happen first before restoring full diplomatic relations. In the best of all possible worlds from the U.S. perspective that would be sometime this summer. An agreement on how to resolve the damage claims would be another important accomplishment that should, in my judgment, lead to the restoration of diplomatic relations and perhaps that could happen this year, but the actual resolution of the damage claims would take several years to happen absent a settlement of the claims, which seems unlikely.

In the meantime, the parties could and should agree to a process for the restoring of diplomatic relations.

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[1] Today Senator Robert Menendez (Dem., NJ), a Cuban-American and the Ranking Member on the Senate Foreign Relations Committee, sent a letter to Jacobson, saying “it is imperative” that she demand “unconditional freedom of the [previously released] 53 political prisoners and demand an end to politically motivated arrests of peaceful democracy and human rights activists.” (Emphasis added.) Menendez also urged pressing “Cuba on a commitment to permit visits to all prisons and prisoners by the United Nations and the International Committee of the Red Cross and to begin to demand action on fugitives from U.S. justice and American citizen compensation claims for property nationalized by the Cuban government in past decades.” The U.S., according to Menendez, “must prioritize the interests of American citizens and businesses that have suffered at the hands of the Castro regime before providing additional economic and political concessions to a government that remains hostile to U.S. interests.”

[2] The Washington Post reports that on Friday Jacobson will host a breakfast meeting with Cuban civil society representatives, human rights activists and political dissidents before she returns to Washington.

[3] Prior posts have articulated the statutory process for rescission and why the Designation should be rescinded.

[4] Prior posts have stated why the embargo should be ended, a conclusion also endorsed by New York Times editorial in October 2014.

[5] From my experience as a litigator of business disputes, I anticipate that any such damage claim would be subjected to rigorous examination and rebuttal by the U.S., including the undoubted U.S. argument that all or some of the alleged damages were not caused by the embargo, but rather by Cuban economic ineptitude. Of course, the U.S. would probably argue that the major premise of Cuba’s claim—the illegality of the embargo—is invalid despite the U.N. General Assembly’s condemning the embargo by overwhelming margins for 23 consecutive years. (I have not examined the merits of this legal issue.)

[6] Cuba’s original February 23, 1903, and July 2, 1903, lease of Guantanamo Bay to the U.S. for a naval coaling station called for annual rent of $2,000 in gold coin, but this was changed to $4,085 in U.S. Dollars (the gold equivalent at the time) in a treaty of May 29, 1934. After the Cuban Revolution’s assuming power on January 1, 1959, the Cuban Government has refused to cash all of the U.S. annual checks for that amount except for one that was cashed by mistake. Although the fair market value of the lease for the last 56 years has not been determined, there could be no legitimate argument that it is not substantially in excess of $4,085. Other potential issues are (a) whether the original lease of 1903 and the 1934 amendment are subject to a claim that they are invalid because of alleged duress or undue influence by the U.S. when Cuba was a de facto U.S. protectorate; (b) whether the lease should be terminated with Cuba paying for the improvements made by the U.S.; or (c) whether there should be a new lease of this land to the U.S. under totally different conditions.