wet foot/dry foot policy – dwkcommentaries

Cuba’s Low Birth Rate, Increasing Emigration and Declining Population

Cuba is facing three demographic challenges: low birth rate, increasing emigration and declining and aging population. Underlying all of these are poor economic conditions on the island.

Low Birth Rate[1]

Cuba “has experienced a progressive decline in its birth figures since the beginning of this century {in 2000]. . . [In] 2000 the number of people born on the island stood at 143,528, and in 2018 the figure had dropped to 116,333…. This data ranks Cuba as one of the countries in the world with the lowest gross birth rates: 10.4 per thousand (compared to the 33.4 per thousand registered in 1965).”

Moreover, in 2019, “ infant mortality increased to 5.0 deaths per 1,000 live births.” For preschoolers (between one and four years), the mortality rate . . . also increased from 3.0 to 3.5 per 10,000. The main causes were accidents, acute respiratory infections and malignant tumors.” In addition, Cuba has one of the highest abortion rates: 72.8 for every 100 births.

“it is clear to all that these birth trends are owing to a wide range of very heterogeneous factors and causes, but the really important thing is that it has very specific consequences, especially financial and economic. In the specific case of Cuba the low birth rate is compounded by an increase in life expectancy, at 78.4 years, which represents a demographic time bomb for any country while representing a massive challenge to the financial sustainability of an economy based on a model like Castroist Cuba’s, in which everything depends on the State.”

This data can be explained, in part, by “the current economic situation (the average monthly salary barely reaches $30)” and the inability to accumulate wealth.” In addition, “the challenges that people face, especially women, regarding work, finances, and the raising of children. . . . In short, the social and economic conditions racking Cuban society are the main damper on birth rates.”

“The Communist authorities have refused to realize that in order to solve the birth-rate problem in Cuba, existing compensatory and allocative policies do not work.” Instead, “policies should be aimed at effectively promoting economic growth, prosperity, higher standards of living for all Cubans, the accumulation of capital and wealth, savings and investment.” In short, “the Communist authorities have refused to realize that in order to solve the birth rate problem in Cuba, existing compensatory and allocative policies do not work. In Cuba, to date, adequate policies have not been implemented to counteract the trends observed.”

“Policies should be aimed at effectively promoting economic growth, prosperity, higher standards of living for all Cubans, the accumulation of capital and wealth, savings and investment.”

Increasing Emigration[2]

Lisette Poole, who has Cuban heritage, but was born and raised in the U.S., decided to live in Cuba after the December 2014 announcement of the two countries’ move towards normalization of relations. However, in May 2016, she decided to return to the U.S. after she had observed that “most [Cubans] were struggling to get by and felt frustrated” and that “neither education nor employment can guarantee a living wage.” This situation became even worse with the Trump Administration’s sanctions and reduced support from reeling Venezuela.

She left with a Cuban woman who hoped to arrive at the U.S. while the U.S. “wet foot/dry foot” policy that would allow them to enter the U.S. on foot was still in effect. They first flew from Cuba to Georgetown, Guyana; then they went by canoe to Brazil, then through Peru to Colombia. The next stage was on a fishing boat to the Darien Gap in Colombia and afterwards by hiking to Panama, by bus to Costa Rica (with a coyote), by walking through Nicaragua and Mexico to the border crossing at Laredo, Texas, where she with “dry feet” was admitted to the U.S. (The U.S. policy that allowed that entry was terminated on January 12, 2017)[3]

The Cuban woman that year (2016) was one of 56,406 Cubans who entered the U.S. via ports of entry. Previously in Fiscal 2014 and 2015 there were 24,278 and 43,159 such entrants.

An author in Diario de Cuba, Roberto Alverez Quinones, asserts that “from the Crisis de los Balseros (Rafter Crisis) in 1994 until 2015 some 660,000 Cubans emigrated, but experts consider believe that the figure actually ascends to one million people.” Now the total “Cuban diaspora currently totals over two million emigrants, meaning that 18% of Cuba’s total population has left it.” “Today, those who emigrate are young people who make up the economically active population (EAP), the driving force that makes the world go around.”

“No one knows [how many will emigrate in 2020.] What is known is that the exodus of Cubans will continue until more pressure is placed on the military gerontocracy that rules the country, it is driven from power, and the constrained power of the Cuban people is finally unleashed.”

On December 11, 2019, the Cuban Government announced that in April 2020 it would hold a conference in Havana about emigration. The stated purpose is to strengthen relations with the emigrants although the Government’s statement emphasized improving relations with Cubans born abroad and those “who do not have a position that is openly against the island’s government.”

Cuba’s Aging, Declining Population[4]

While the number of younger Cubans declines due to low birth rate and increasing emigration, the number of older Cubans increases due to increased life expectancy. The result, Cuba is experiencing an aging, declining population.

Poor Economic Conditions in Cuba [5]

Underlying all of the above circumstances is the poor economic conditions on the island.

Comparisons with other Latin American countries show the island’s poor economic conditions. “The minimum wage in Cuba today is a quarter of that in Haiti” while the Cuban average salary is only one-half of that in Haiti. Similar comparisons exist for Chili, Ecuador, Peru, Colombia and even poor countries of Nicaragua and El Salvador.

Poverty in Cuba is aggravated by unemployment, despite the government’s erroneous statistics. According to statistics published by different official media, in June of 2018 there were 6.2 million Cubans of working age in Cuba, and 1.7 million of them were not working or studying. This means a technical unemployment rate of 27%. Today, with the worsening economic crisis, it might exceed 30%, and may even be at 33%.

Another contributing factor to Cuba’s poor economic conditions is the ramped-up sanctions by the Trump Administration.[6]

Sociologist’s Comments on the Situation

Elaine Acosta, a sociologist and specialist in population aging, international migration and welfare policies, recently commented on the Cuban government’s new National Survey on Population Aging.[7]

She said it “reaffirms the speed and magnitude with which the process of population aging . . . [is occurring] in Cuban society . . .[putting] the Island at the forefront of aging processes throughout Latin America and the Caribbean. The only population group that . . . [is growing] is 60 years and older, especially 75 years and older.”

The projected continuation of this trend will make “the care crisis” deeper and more complex. On the one hand, the demand for Geriatrics, Gerontology services will inevitably continue to increase [along with] Security, Social Assistance and Care. In turn, [this will have] a great impact on the economy . . ., taking into account the decrease in the population potential with capacity for employment and the demand for education at all levels.”

These consequences will have a greater effect on older women due to “the feminization of aging on the Island. Women are not only the majority among the elderly (46.6% of men and 53.4% of women), but also have a greater life expectancy than men.” More generally these consequences will disadvantage “historically disadvantaged groups: women, elderly people, blacks, people with disabilities or street situations, as well as communities in larger territories.”

All of these consequences will “require important political, economic and cultural changes at different levels (normative, political and programmatic) of social policy. It is a process that, given its complexity and size, will require competition and integration of new social actors (NGOs, churches, the market, etc.), as well as the elderly themselves and their families. ”

In summary, she said, “the problems presented raise the need for a reform of the Cuban social welfare regime in such a way that it can meet the economic, social and health needs of the advanced aging of the population, the population bleeding caused by migration as well as the new demands and social problems that result from these processes and their inadequate management and intervention. ”

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[1] Amor, New Policies Are Needed to Resolve Cuba’s Birth Rate Crisis, Diario de Cuba (Dec. 16, 2019); The numbers are no longer coming to the Government: child mortality rises, births plummet, Diario de Cuba (Jan. 3, 2020); Cuba’s Aging, Declining Population Continues, dwkcommentaries.com (Dec. 13, 2019) .

[2] Id; Krogstad, Surge in Cuban immigration to U.S. continued through 2016, Pew Research Center (Jan. 13, 2017); Poole, Two Women, 11 Countries; A Long Strange Trip From Havana to the U.S., N.Y. Times (Dec. 18, 2019); Alvarez Quińones, How Many Cubans Will Emigrate in 2020? Diario de Cuba (Jan. 14, 2020); Why do young Cuban professionals emigrate to Mexico? (video), Diario de Cuba (Jan. 28, 2020).

[3] U.S. Ends Special Immigration Benefits for Cubans, dwkcommentaries.com (Jan. 13, 2017).

4] Cuba’s Success and Problems with an Aging, Declining Population, dwkcommentaries.com (Mar. 10, 2019); 70% of Cuban elders live deprivation and deprivation, recognizes and official survey, Diario de Cuba (Dec. 11, 2020); Cuba’s Aging, Declining Population, dwkcommentaries. com ( Jan. 13, 2020).

[5] Alvarez Quińones, Poverty Decreasing Around the World, But Rising in Cuba Diario de Cuba (Nov. 29, 2019).

[6] See, e.g., these posts to dwkcommentaries.com: Young Cuban Discusses the Many Problems of His Country (July 5, 2019); Cuba’s Suffering from Continued U.S. Hostility (Aug. 17, 2019); Decline of U.S. Visitors to Cuba (Aug. 22, 2019); Dwindling Hope in Cuba (Dec. 18, 2019); President Trump Proclaims His “Success” on Cuba (Jan. 13, 2020).

[7] The current panorama in Cuba ‘is discouraging to project a dignified old age,’ Diario de Cuba (Jan. 27, 2020).

U.S. Continues Its Absurd Special Immigration Benefits for Cubans

This blog has frequently criticized the U.S. special immigration benefits for Cubans under the Cuban Adjustment Act and the wet foot/dry foot policy.[1]

On August 29 nine Latin American countries joined together to call for the U.S. to end these policies. Their joint letter was signed by the foreign ministers of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama and Peru, all of which recently have been affected by large numbers of Cubans transiting through their countries to reach the U.S.-Mexico border and gain admittance to the U.S. under these policies.[2]

The letter expressed their “deep concern” that U.S. policy toward Cuban migrants is creating a humanitarian crisis and encouraging “a disorderly, irregular and unsafe flow of Cubans. Cuban citizens risk their lives, on a daily basis, seeking to reach the United States. These people, often facing situations of extreme vulnerability, fall victim to mafias dedicated to people trafficking, sexual exploitation and collective assaults. This situation has generated a migratory crisis that is affecting our countries.”

The letter also requested a meeting on these issues with Secretary of State John Kerry.

The letter was announced on August 29 by Ecuador’s Foreign Minister Guillaume Long, saying, “The fact that nine foreign ministers have signed this letter shows the strength of the sentiment in Latin America that United States policy is creating a migration crisis in our region. It’s time for the U.S. to change its outdated immigration policies toward Cubans, because they are undermining regular and safe migration in our continent.” Long added that the decades-old policy also is a form of “terrible discrimination,” given that scores of migrants from other Latin American countries are forced to “hide and often live decades with the threat of deportation” if they are undocumented, while Cubans are given residence if they step foot on U.S. territory. This injustice must stop for the wellbeing of all.”

The prior week the Costa Rican Foreign Minister Manuel González told the McClatchy news organization that the issue has cost his country millions of dollars it doesn’t have and has raised complaints from Costa Ricans about spending resources on stranded foreigners when they were needed by the nation’s own citizens. “The difficulties between the U.S. and Cuba has a direct consequence on other countries in our region that serve as transit. And we are, in a way, paying the consequences of that bilateral relationship.”

Cuban migration indeed is a serious problem for these Latin American countries and for Cuba. More than 46,500 Cubans were admitted to the U.S. without visas during the first 10 months of the 2016 fiscal year compared with more than 43,000 in 2015 and just over 24,000 in 2014.

The continuation of this combined policy has been criticized by the New York Times editorial board. This “anachronistic policy is irrational, strains relations with America’s neighbors and endangers lives. It also has the effect of easing pressure on Cuba’s authoritarian government to make economic and political reforms by offering an incentive to those who are most dissatisfied with the status quo to take a dangerous way out.”[3]

A similar criticism was offered by a prominent writer on Latin American affairs, Andrés Oppenheimer. He said, “It’s time to revise the U.S. government’s special status for Cuban refugees. But it should be done as part of a new commitment by all countries in the region to grant asylum to Cuba’s political refugees, and to press Cuba to abide by international human rights laws. . . . It’s time for all sides to end Cuba policies that are relics of the Cold War. Washington should change its much-abused laws giving special status to all Cuban refugees, and Latin American countries should end their shameful silence on Cuba’s repressive dictatorship, which is at the root of Cuba’s main problems. These are new times that require new policies by all countries.”[4]

Nevertheless, on August 30, a U.S. State Department spokesman acknowledged receipt of the letter from nine Latin American countries and merely said, “the Cuban Adjustment Act remains in place and wet foot/dry foot remains U.S. policy regarding Cuban migration.” He also added these comments: “we are concerned for the safety of all migrants throughout the region, including migrants seeking to journey northward through South and Central America and Mexico. Irregular migration often involves dangerous journeys that illustrate the inherent risks and uncertainties of involvement with organized crime, including human smugglers and traffickers in attempts to reach the United States. We continue to encourage all countries to respect the human rights of migrants and asylum seekers, and to ensure that they are treated humanely. And we’re going to continue to, obviously, engage governments in the region on this issue going forward.”[5]

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[1] See posts listed in “Cuban Migration to U.S., 2015-2016” in List of Posts to dwkcommentaries—Topical: Cuba.

[2] Ordońez, Nine Latin nations band together to plead with U.S. over Cuba, InCubaToday (Aug. 29. 2016); Telesur, Nine Latin American Countries Slam US for creating migrant crisis, Global Research (Aug. 29, 2016); Assoc. Press, LatAm Diplomats Urge US to Change Policy on Cuban Migrants, N.Y. Times (Aug. 29, 2016).

[3] Editorial, Neighbors Question Cuba Migration Policy, N.Y. Times (Aug. 31, 2016).

[4] Oppenheimer, It’s time to change Cubans’ special immigration status, InCubaToday (Aug. 31, 2016).

[5] U.S. State Dep’t, Daily Press Briefing (Aug. 30, 2016).

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

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

Current Status of Negotiations

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

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

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

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

Re-establishment of Diplomatic Relations

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

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

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

Under Article 7, “the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.” However, Article 11 provides “the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission” and also “may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.”

With respect to diplomatic personnel’s travel and conduct, Article 26 states, “Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” However, Article 41 provides, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.” In addition, Article 41 states, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

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

Future Issues for Discussion and Resolution

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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.