For more than fifty years, the United States and Cuba have maintained a relationship based on political isolation and economic sanctions. Central to this relationship is the Cuban embargo – codified by the Helms-Burton Act. Passed in 1996, the act seeks to “assist the Cuban people in regaining their freedom and prosperity” and to support the island as it transitions to “a democratically elected government.”1 It also attempts to protect the United States “in the face of continuing threats from the Castro government of terrorism.”2 Without any indication of the Helms-Burton Act being overturned, or at least modified, the executive branch announced on December 17, 2014 that it would begin taking steps to reestablish diplomatic ties with Cuba. As part of this effort, the executive branch decided to reopen its embassy in Havana, ease traveling restrictions to Cuba, 3 “quadruple the quarterly limit on remittances to Cuban nationals (from $500/quarter to $2000/quarter),” and authorize the exportation of certain goods for use by the private sector, as well as the importation of specific goods produced by independent, Cuban entrepreneurs.4 The drastically different approaches to Cuba adopted by the legislative and executive branches have resulted in a Cuban conundrum. This situation is not likely to be resolved any time soon because many of the goals set forth by the Helms-Burton Act, including those pertaining to human rights and democracy as well as the eradication of terrorism, have not been achieved.
In its “Findings” section, the Helms-Burton Act notes that: “[t]he Castro regime has made it abundantly clear that it will not engage in any substantive political reforms that would lead to democracy, a market economy, or an economic recovery,” and that “[t]he repression of the Cuban people, including a ban on free and fair democratic elections, and continuing violations of fundamental human rights, have isolated the Cuban regime as the only completely nondemocratic government in the Western Hemisphere.”5 Nineteen (19) years later, the status of human rights and democracy in Cuba remains dismal – Cuba has not made any explicit attempt to rectify this situation. As recently as 2014, the Human Rights Watch (HRW) condemned Cuba for its continued suspension of basic human rights and freedom of expression. 6 Specifically, the HRW reported that “[t]he Cuban government refuses to recognize human rights monitoring as a legitimate activity,” that “government authorities harass, assault, and imprison human rights defenders who attempt to document abuses,” and that due to high costs and restricted access, “[o]nly a tiny fraction of Cubans are able to read independent websites and blogs.” 7 Moreover, the fact that Raul Castro remains in power establishes that the island has yet to entertain the idea of democratic elections.
Equally concerning is the speed with which Cuba has transitioned from a designated State Sponsor of Terrorism to an undesignated country. Within the Helms-Burton Act, Congress made the following two findings – one, that “[t]he Castro government threatens international peace and security by engaging in acts of armed subversion and terrorism…” and two, that “[t]he Castro government has utilized from its inception and continues to utilize…forms of terror and repression, as a means of retaining power.” 8 For 33 years, Cuba remained on the United States’ State Sponsor of Terrorism list. However, the executive branch, after only a four-month period of review, moved to rescind Cuba’s designation based on “the certification that Cuba has not provided any support for international terrorism during the previous six months” and Cuba’s “assurances that it will not support acts of international terrorism in the future.” 9 Interestingly, Congress allowed the 45-day pre-notification period to expire without attempting to block the move. 10 Nevertheless, one would surmise that a certain degree of discomfort is warranted given that decades of terrorist acts have taken a secondary consideration to a purported six months without terrorism and “assurances” from Cuba that it will not support future acts of international terrorism. Such “assurances” are from a government of Cuba that has a history of reneging on its promises.
The conflicting policies of the legislative and executive branches have created a Cuban conundrum that is difficult to reconcile. Underlying this situation is the following uncomfortable question: What is the consequence of reestablishing a relationship and doing business with Cuba? A primary concern is the implicit recognition of a government that represses its citizens and shows no real effort to rectify its wrongs.
1 22 U.S.C. § 6022(1),(5) (2015).
2 22 U.S.C. § 6022(3) (2015).
3 Statement by the President on Cuba Policy Changes, The White House (Dec. 17, 2014, 12:01 PM), available at https://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes.
4 Cuba Sanctions Changes Announced by President Obama on December 17, 2014 and Implemented on January 16, 2015, U.S. Department of State, available at http://www.state.gov/e/eb/tfs/spi/cuba/ (last visited June 09. 2015).
5 22 U.S.C. § 6021(3)-(4) (2015).
6 World Report 2014: Cuba. Human Rights Watch, available at http://www.hrw.org/world-report/2014/country-chapters/cuba?page=1.
8 22 U.S.C. § 6021(14)-(15) (2015).
9 Jeff Rathke, Rescission of Cuba as a State Sponsor of Terrorism, U.S. Department of State (May 29, 2015), available at http://www.state.gov/r/pa/prs/ps/2015/05/242986.htm.
Gabriela Rosell is an associate at Zumpano Patricios & Winker, P.A. in Coral Gables. She concentrates her practice in international and health law. (305) 444-8588 www.zpwlaw.com
South Florida Legal Guide Midyear 2015 Edition