WASHINGTON- The Washington Office on Latin America and the Center for Democracy in the Americas
December 17, 2020
Today the Washington Office on Latin America (WOLA) and the Center for Democracy in the Americas (CDA) are releasing “The United States and Cuba: A New Policy of Engagement,” a roadmap for how the Biden-Harris administration can implement a policy of engagement toward Cuba. Six years after President Barack Obama’s December 17, 2014 announcement that he would begin normalizing relations with Cuba, we continue to emphasize the importance of engagement to advance the interests of the U.S. and of the Cuban people. Engagement accomplished more in two years than the policy of hostility achieved in sixty, and is a more effective strategy to advance the cause of human rights, political liberty, and economic reform. Engagement will facilitate family ties, cultural exchange, and commercial relations, expanding the market for U.S. businesses, raising the standard of living for the Cuban people, and encouraging economic reform on the island. A new policy of engagement entails relatively little political risk and has the potential to mobilize a wide variety of constituencies in support. Our report expands on why Cuba should be a priority, why a variety of bipartisan stakeholders including the business community, Congress, and Cuban Americans support policies of engagement. The roadmap lays out a series of sequenced recommendations in three sections “Repairing the Damage: The First Nine Months,” “Taking the Initiative: The Second Year,” and “Finishing the Job: A Legislative Agenda” detailing how the Biden-Harris administration can move quickly to implement much-needed change in U.S.-Cuba policy.
The Full Report: “The United States and Cuba: A New Policy of Engagement,”
Finishing the Job: A Legislative Agenda
One lesson from the Obama years is that a policy based exclusively on executive action is notenduring. As we have witnessed, a new administration can quickly dismantle it. If we hope to persuade the Cuban government that a constructive relationship with the United States is possible and will flourish to the extent that Cuba moves toward a more open political and economic system, Cuban authorities must be convinced that U.S. policy is durable. That will require legislative action to remove some of the constraints on engagement that Congress has enacted over the years, first and foremost the embargo. Ending the embargo is Cuba’s highest priority in its relationship with the United States; so long as the embargo remains in place, progress toward a more normal relationship will be limited.
Regardless of which party ultimately holds the majority in the U.S. Senate, the administration should publicly express support for legislation to end the embargo, and work with the bipartisan Cuba Working Group in the House and champions for engagement in the Senate to cultivate congressional leadership on engagement.
Two actions that could gain some Republican support are repeal of the Cuba-related sections in the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) that limit travel and agricultural sales.
• Repeal the prohibition on travel to Cuba that is not expressly licensed in the CACR.
• Repeal the limits on the use of credits for financing U.S. agricultural sales to Cuba.
Several additional measures would facilitate commercial ties:
• Repeal Section 211, a special interest provision of U.S. law that invalidates certain Cuban trademarks in the United States and threatens reciprocal protection for U.S. brands.
• Approve an amendment that, notwithstanding any other provision of law, authorizes the United States to provide Cuba with foreign assistance for the purpose of developing sustainable energy sources and implementing its 100 year plan to mitigate and adapt to climate change.
Ending the Embargo
The embargo is a central obstacle to the normalization of relations with Cuba, as President Obama recognized when he called on Congress to repeal it. For Congress to repeal the embargo it would have to amend a number of different statutes in addition to the TSRA.33 The most important:
• Repeal the Cuban Democracy Act of 1992, or at least the sections that limit the freedom of U.S. subsidiaries in third countries to do business with Cuba, and that prevent vessels engaged in commerce with Cuba from entering U.S. ports for 180 days.
• Repeal the Cuban Liberty and Democratic Solidarity Act of 1996, or at least the sections that inscribe the embargo into law, prohibit U.S. support for Cuban participation in IFIs, and impose extraterritorial sanctions on other countries (Titles III and IV).
• Repeal the section of the Foreign Assistance Act of 1961 that authorizes the president to unilaterally impose a trade embargo on Cuba.
Once the embargo is no longer mandated by law, the President can lift it simply by not renewing the emergency authorities under the Trading with The Enemy Act. If economic sanctions against Cuba are called for in the future, they can be imposed under the International Emergency Economic Powers Act (IEEPA).
Some legal scholars argue that the President has the authority to end the embargo by executive order. Because the embargo regulations codified by the LIBERTAD Act include the President’s licensing authority without any limitation, there is a legal argument that the licensing power extends to ending the embargo entirely.34 The principal rationale for such a step would be President Clinton’s contention, in his signing statement, that certain passages of the law, including codification, constitute unconstitutional infringements on the President’s authority to conduct foreign policy.35
33 For an effort to compile a complete list of the amendments required, H.R. 403 (Mr. Rangel) 114th Congress 1st Session, January 16, 2015.
34 Robert L. Muse, “The President Has the Constitutional Power to Unilaterally Terminate the Embargo on Cuba,” Global Americans, October 8, 2020, ttps://theglobalamericans.org/2020/10/the-president-has-the-constitutional-power-to-unilaterally-terminate-the-embargo-on-cuba/. For concurring opinions, see Kevin J. Fandl, “Adios Embargo: The Case for Executive Termination of the U.S. Embargo on Cuba,” 54 Am. Bus. L.J. 293; and Pete Jeydel, “How Much of the Cuba Embargo Could the President Unilaterally Lift?” Steptoe International Compliance Blog, October 21, 2016, https://www.steptoeinternationalcomplianceblog.com/2016/10/how-much-of-the-cuba-embargo-could-the-president-unilaterally-lift/.35 William J. Clinton, “Statement on Signing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996,” March 12, 1996. The American Presidency Project, ttps://www.presidency.ucsb.edu/node/222515. For the constitutionality of the LIBRTAD Act, see Joaquin Roy, “Lawyers Meet the Law: Critical U.S Voices of Helms-Burton,” Yearbook of International Law, 6, 39 (1997/1998)
It’s highly probably that Joe Biden will again suspend Title III of the Helms Burton Act because Helms-Burton was initially opposed by Bill Clinton, who later signed it into law for domestic electoral reasons in the 1996 election after the 1996 Brothers to the Rescue shootdown, and also b/c Trump’s activation of the provision did not produce the tsunami of lawsuits that many early generation Cuban exiles expected.
Cuban leader Miguel Diaz-Canel won’t be attending the 2021 Summit of the Americas because he is an unelected leader, like the Castros before him.