Mark P. Sullivan
Foreign Affairs, Defense, and Trade Division
Updated April 12, 2000
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Economic and Political Situation in CubaEconomic Conditions
Political Conditions
Human Rights OutlookU.S. Policy Toward Cuba
Cuba's 1996 Downing of Two U.S. Civilian Aircraft
March 1998 Policy Changes
Pentagon Report
January 1999 Policy Changes
Drug Trafficking Cooperation
Expulsion of Cuban DiplomatHelms/Burton Legislation
Major Provisions
Implementation of Title III and IV
Foreign Reaction and the EU's WTO ChallengeFood and Medical Exports
Legislative InitiativesMigration
Elian Gonzalez CaseLegislative Initiatives in the 106th Congress
LEGISLATIONFor more information, please see the following CRS Reports:
CRS Report RS20450. The Case of Elian Gonzalez: Legal Basics.
CRS Report RL3 03 86. Cuba-U. S. Relations: Chronology of Key Events Since 1959.
CRS Report 94-75 9. Cuba-U. S. Relations: Should the United States Reexamine Its Policy?
CRS Report RS20409. Cuba: U. S. Restrictions on Travel and Legislative Initiatives in the
106thCongress.
CRS Report RS20468. Cuban Migration Policy and Issues.
CRS Report RL3 0108. Economic Sanctions and U.S. Agricultural Exports.
CRS Report RL30384. Economic Sanctions: Legislation in the 106th Congress.
CRS Report 97-949. Economic Sanctions to Achieve U.S. Foreign Policy Goals: Discussion
and Guide to Current Law.
CRS Report RS20446, Elian Gonzalez: Chronology and Issues.
CRS Report RS20449, Private Bills for Citizenship or Permanent Residency: A Brief Overview.
MOST RECENT DEVELOPMENTS
On April 6, 2000, Elian Gonzalez's father, Juan Miguel Gonzalez, traveled to Washington with his wife and six-month old son, with the intention of reuniting with his son Elian and taking him back to Cuba. Elian is the six-year old Cuba boy found clinging to an inner tube off the coast of Florida on November 25 after his mother and nine others drowned when their boat capsized. On March 21, a U.S. federal district court judge in Florida dismissed a request to grant Elian a political asylum hearing. The INS originally ruled on January 4 that the boy was to be returned to his father in Cuba. (See "Elian Gonzalez Case below)
On March 23, 2000, the Senate Foreign Relations Committee approved its version of the FY2001 foreign aid authorization measure (unnumbered), which includes a provision that would lift U.S. restrictions on food and medicine exports, including on Cuba, albeit with some conditions. The language in the measure is similar to an Ashcroft provision that had been included in the Senate versions of the FY2000 agriculture appropriations bill, H.R. 1906, but which was ultimately deleted in conference with the House. (See "Food and Medical Exports, " below)
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BACKGROUND AND ANALYSIS
Economic and Political Situation in Cuba
Economic Conditions
With the cutoff of assistance from the former Soviet Union, Cuba experienced severe economic deterioration from 1989-1993, although there has been some improvement since 1994. Estimates of economic decline in the 1989-93 period range from 35-50%. The economy reportedly grew 0.7% in 1994, 2.5% in 1995, and 7.8% in 1996. While the Cuban government originally was predicting a growth rate of 4-5% for 1997, growth for the year was just 2.5%, largely because of disappointing sugar production. For 1998, the government's goal was for a growth rate of 2.5-3.5%, but another poor sugar harvest, a severe drought in eastern Cuba, and the effects of Hurricane Georges resulted in an estimated growth rate of just 1.2%. In 1999, the economy grew 6.2%, and a growth rate of 5% is projected for 2000.
Socialist Cuba has prided itself on the nation's accomplishments in health and education. For example, according to the World Bank, the literacy rate is 94% and life expectancy is 76 years, compared to 79% and 68 years average for other middle-income developing countries. The United Nations Children's Fund (UNICEF) reports that Cuba's infant mortality rate (per 1,000 live births) was just 7.9 in 1996, the best rate in Latin America and among the world's top 20 countries for this indicator. Nevertheless, the country's economic decline has reduced living standards considerably and resulted in shortages in medicines and medical supplies.
When Cuba's economic slide first began in 1989, the government showed little willingness to adopt any significant market-oriented economic reforms, but in 1993, faced with unprecedented economic decline, Cuba began to change policy direction. Since 1993, Cubans have been allowed to own and use U.S. dollars and to shop at dollar-only shops previously limited to tourists and diplomats. Self-employment was authorized in more than 100 occupations in 1993, most in the service sector, and by 1996 that figure had grown to over 150 occupations. Other Cuban economic reforms include breaking up large state farms into smaller, more autonomous, agricultural cooperatives (Basic Units of Cooperative Production, UBPCs) in 1993; opening agricultural markets in September 1994 where farmers could sell part of their produce on the open market; opening artisan markets in October 1994 for the sale of handicrafts; allowing private food catering, including home restaurants (paladares) in June 1995 (in effect legalizing activities that were already taking place); approving a new foreign investment law in September 1995 that allows fully owned investments by foreigners in all sectors of the economy with the exception of defense, health, and education; and in June 1996 authorizing the establishment of free trade zones with tariff reductions typical of such zones. In May 1997, the government enacted legislation to reform the banking system and established a new Central Bank (BCC) to operate as an autonomous and independent entity.
Despite these measures, the quality of life for many Cubans remains difficult, characterized by low wages, high prices for many basic goods, shortages of medicines, and power outages. Moreover, some analysts fear that the government has begun to backtrack on its reform efforts. Regulations and new taxes have made it extremely difficult for many of the nation's self-employed (at one point estimated over 200,000 but now estimated at 160,000 or lower). Some home restaurants have been forced to close because of the regulations. Some foreign investors in Cuba have also begun to complain that the government has backed out of deals or forced them out of business (see "Crackdowns, Restrictions, Sour Investors in Cuba," Miami Herald, June 10, 1999, p. 1A).
Political Conditions
Although Cuba has undertaken some limited economic reforms, politically the country remains a hard-line Communist state. Fidel Castro, who turned 73 on August 13, 1999, has ruled since the 1959 Cuban Revolution, which ousted the corrupt government of Fulgencio Batista from power. Castro soon laid the foundations for an authoritarian regime by consolidating power and forcing moderates out of the government. In April 1961, Castro admitted that the Cuban Revolution was socialist, and in December 1961, he proclaimed himself to be a Marxist-Leninist. From 1959 until 1976, Castro ruled by decree. A constitution was enacted in 1976 setting forth the Communist Party as the leading force in the state and in society (with power centered in a Politburo headed by Fidel Castro). The constitution also outlined national, provincial, and local governmental structures. Executive power is vested in a Council of Ministers, headed by Fidel Castro as President. Legislative authority is vested in a National Assembly of People's Power, currently with 601 members, that meets twice annually for brief periods. While Assembly members were directly elected for the first time in February 1993, only a single slate of candidates was offered. Elections for the National Assembly were held for a second time in January 1998. Voters again were not offered a choice of candidates. From Oct. 8-10, 1997, the Cuban Communist Party held its 5th Congress (the last one was held in 1991) in which the party reaffirmed its commitment to a single party state and reelected Fidel and Raul Castro as the party's first and second secretaries.
Human Rights. Cuba has a poor record on human rights, with the government sharply restricting basic rights, including freedom of expression, association, assembly, movement, and other basic rights. Its vast network of neighborhood block committees (Committees for the Defense of the Revolution) sharply limit opportunities to express differing opinions. It has cracked down on dissent, arrested human rights activists and independent journalists, and staged demonstrations against critics. Although some anticipated a relaxation of the government's oppressive tactics in the aftermath of the Pope's January 1998 visit, government attacks against human rights activists and other dissidents continued in 1998.
Estimates of the number of political prisoners in Cuba vary considerably since the Cuban government does not allow human rights organizations to monitor prisons. According to the State Department's 1999 human rights report, human rights groups inside Cuba estimate the number of political prisoners at between 350 and 400. The overall number of political prisoners probably increased slightly in 1999, compared to 1998, when Cuba released almost 100 prisoners, many of whom were on a list given to Castro by Vatican officials during the Pope's visit.
On March 15, 1999, a Cuban court convicted the four leaders of the "Dissident Working Group" - Vladimiro Roca, Martha Beatriz Roque, Felix Bonne, and Rene Gomez Manzano - on charges of "sedition" under the Cuban penal code after a one-day trial on March 1. Sentences ranged from 3 1/2years for Roque, to 4 years for Bonne and Gomez Manzano, to 5 years for Roca. The four have been imprisoned since July 1997 and therefore are eligible for parole (those serving one-third of their sentence are eligible). The four dissidents had released a document in June 1997 entitled, "The Homeland Belongs to Us All" [http://www.cubanet.org/CNews/y97/Jul97/homdoc.htm], that strongly criticized a draft report of the 5tb Congress of the Cuban Communist Party that was going to be held that October. The dissidents also urged Cubans not to vote in upcoming legislative elections, and encouraged foreign investors not to invest in Cuba. Just before the dissidents' one-day trial on March 1, scores of human rights, independent journalists and other activists were detained so that they could not cover or protest the trial. Diplomats from the United States and European countries were also prevented from observing the trial.
On July 23, 1999, Human Rights Watch issued a highly critical report on the human rights situation in Cuba, Cuba's Repressive Machinery: Human Rights Forty Years After the Revolution. The report describes how Cuba "has developed a highly effective machinery of repression," and has used this "to restrict severely the exercise of ffindamental human rights of expression, association, and assembly." According to the report: "In recent years, Cuba has added new repressive laws and continued prosecuting nonviolent dissidents while shrugging off international appeals for reform and placating visiting dignitaries with occasional releases of political prisoners." (See the full report at the Human Rights Watch website [http://www.hrw.org/hrw/reports/1999/cuba/].)
The State Department maintains that the human rights situation deteriorated further in 1999. According to its human rights report for 1999: "The authorities routinely continued to harass, threaten, arbitrarily arrest, detain, imprison, and defame human rights advocates and members of independent professional associations, including journalists, economists, doctors, and lawyers, often with the goal of coercing them into leaving the country."
UNCHR Resolutions. From 1991 until 1997, the U.N. Commission on Human Rights (UNCHR) called on the Cuban government to cooperate with a Special Representative (later upgraded to Special Rapporteur) designated by the Secretary General to investigate the human fights situation in Cuba. But Cuba refused to cooperate with the Special Rapporteur, and the UNCHR annually approved resolutions condemning Cuba's human rights record. On April 21, 1998, however, the UNCHR rejected -- by a vote of 16 to 19, with 18 abstentions -- the annual resolution sponsored by the United States that would have condemned Cuba's rights record and would have extended the work of the Special Rapporteur for another year. U.S. officials and human rights activists expressed deep disappointment with the vote. Observers maintained that the vote did not signify any improvement in human rights in Cuba, but rather was an expression of disagreement with the United States over its policy toward Cuba.On April 23, 1999, the UNCHR once again approved a resolution criticizing Cuba for its human rights record, although it did not appoint a Special Rapporteur. The resolution was approved by a vote of 21-20, with 12 abstentions. In anticipation of the 1999 UNCHR annual meeting, resolutions were approved in both houses -- S.Res. 57 (Graham) on March 25, 1999, and H.Res. 99 (Ros-Lehtinen) on March 23, 1999 -- calling on the United States to support passage of a UNCHR resolution criticizing Cuba for its human rights abuses and securing the appointment of a Special Rapporteur for Cuba.
Outlook. Observers are divided over whether the Castro government will endure. While some believe that its demise is imminent, there is considerable disagreement over how it may occur or when. Varying scenarios range from a coup or popular uprising, possibly with support from or acceptance by the Cuban military, to the voluntary resignation and self-exile of Castro. Some point to Castro's age and predict that the regime will collapse without Fidel at the helm. Other observers maintain that reports of the impending collapse of the Cuban government have been exaggerated and that Castro may remain in power for years. They point to Cuba's strong security apparatus and the extraordinary system of controls that prevents dissidents from gaining popular support. Moreover, observers maintain that Cuba's elite has no interest in Castro's overthrow, and that Castro still enjoys some support, in part because of the social benefits of the Cuban revolution, but also because Cubans see no alternative to Castro. Even if Castro is overthrown or resigns, the important question remaining is the possibility or viability of a stable democratic Cuba after Castro. Analysts point out that the Castro government has successfully impeded the development of independent civil society, with no private sector, no independent labor movement, and no unified political opposition. For this reason, they contend that building a democratic Cuba will be a formidable task, one that could meet stiff resistance from many Cubans.
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Since the early 1960s, U.S. policy toward Cuba has consisted largely of isolating the island nation through comprehensive economic sanctions. The Clinton Administration has essentially continued this policy of isolating Cuba. The principal too] of U.S. policy remains comprehensive sanctions, which were made stronger with the 1992 congressional approval of the Cuban Democracy Act (CDA) and in March 1996 with the approval of the Cuban Liberty and Democratic Solidarity Act (P.L. 104-114), often referred to as the Helms/Burton legislation. The CDA prohibits U.S. subsidiaries from engaging in trade with Cuba and prohibits entry into the United States for any vessel to load or unload freight if it has engaged in trade with Cuba within the last 180 days. The Helms/Burton legislation -- enacted in the aftermath of Cuba's shooting down of two U.S. civilian planes -- combines a variety of measures to increase pressure on Cuba and provides for a plan to assist Cuba once it begins the transition to democracy. Among the law's sanctions is a provision in Title III that holds any person or government that traffics in U.S. property confiscated by the Cuban government liable for monetary damages in U. S. federal court. To date, President Clinton has suspended the implementation of Title III.
Another component of U.S. policy consists of support measures for the Cuban people, a so-called second track of U.S. policy. This includes U.S. private humanitarian donations, U. S. government support for democracy-building efforts for Cuba, and U.S.-sponsored radio and television broadcasting to Cuba, Radio and TV Marti. According to the Administration, the two-track policy of isolating Cuba, but reaching out to the Cuban people, meets both U. S. strategic and humanitarian interests.
Over the years, although U. S. policymakers have agreed on the overall objective ofU. S. policy toward Cuba -- to help bring democracy and respect for human rights to the island -- there have been several schools of thought about how to achieve that objective. Some advocate a policy of keeping maximum pressure on the Cuban government until reforms are enacted, while continuing current U.S. efforts to support the Cuban people. Others argue for an approach, sometimes referred to as constructive engagement, that would lift some U.S. sanctions that they believe are hurting the Cuban people, and move toward engaging Cuba with dialogue. Still others call for a swift normalization of U.S.-Cuban relations by lifting the U.S. embargo.
Numerous measures have been introduced in the 106th Congress that reflect the range of views on U.S. policy toward Cuba (see "LEGISLATION" below). Two recent Senate votes illustrate the range of views on Cuba. During June 30, 1999, consideration of the FY2000 Foreign Operations Appropriations bill, S.1234, the Senate tabled, by a vote of 5543, a Dodd amendment that would end prohibitions and restrictions on travel to Cuba. (For further information see CRS Report RS20409, Cuba: U.S. Restrictions on Travel and Legislative Initiatives in the 106th Congress.) During August 4, 1999, consideration of the FY2000 Agriculture Appropriations bill, S. 1233, the Senate approved a modified Ashcroft amendment that would allow agricultural and medical exports to state sponsors of international terrorism, including Cuba, pursuant to one-year licenses issued by the U.S. government, although without any federal financing or export assistance. The amendment, however, was ultimately deleted in conference.
Cuba's 1996 Downing of Two U.S. Civilian Aircraft. On Feb. 24, 1996, Cuban Mig-29 fighter jets shot down two Cessna 337s in the Florida Straits, which resulted in the death of four members of the Cuban American group Brothers to the Rescue. The group was known primarily for its humanitarian missions of spotting Cubans fleeing their island nation on rafts, but had become active in flying over Cuba and dropping leaflets.
Cuba's downing of the two U.S. airplanes had an immediate and perhaps long-lasting impact on U.S. policy toward Cuba. President Clinton condemned the downing and the Administration worked to secure a February 27, 1996 U.N. Security Council statement strongly deploring Cuba's action. Additionally, the President suspended all charter flights to Cuba indefinitely (this was overturned in March 1998, see above) -- imposed additional travel restrictions on Cuban diplomats in the United States; and limited visits by Cuban officials to the United States. Most significantly, Cuba's downing of the airplanes resulted in the President pledging to work with Congress to secure passage of the Cuban Liberty and Democratic Solidarity Act, the so-called Helms/]Burton legislation.
Compensatiom. With regard to compensation to be paid to the families of the shootdown victims, in 1996, President Clinton authorized $300,000 to each of the families of the four victims, which was drawn from a pot of $148.3 million in Cuban assets frozen in the United States. However, on Dec. 17, 1997, a U.S. federal judge awarded $187.6 million to the families of three of the shootdown victims. Cuba refused to recognize the court's jurisdiction. A provision in the FYI 999 omnibus appropriations measure (P.L. 105-277, H.R. 4328) could have affected the payment of the December 1997 judgement from Cuba's frozen assets in the United States. That provision stipulates that foreign states are not immune from U.S. judgements for violations of international law. However, the provision also includes a presidential waiver for national security interests, which the President exercised October 21, 1998. The Clinton Administration opposed the provision, maintaining that it would undermine the authority of the President to use assets of countries under economic sanctions as leverage when sanctions are used to modify the behavior of a foreign state. Supporters maintain that it would let those nations who sponsor terrorism know that if they are found guilty in U. S. court, their assets will be liquidated in order to serve justice. A provision in the Senate-approved version of H.R. 2490 (Section 118), the FY2000 Treasury Appropriations bill, would have limited the ability of the President to prevent frozen assets from being seized, but the provision was not included in the September 14, 1999 conference report. Subsequently, the provision was introduced as a freestanding bill, S. 1796, on October 26, 1999, and reported by the Committee on the Judiciary March 9, 2000.
In a federal lawsuit, relatives of three of the shootdown victims who were U.S. citizens are attempting to collect the judgement against the Cuban government through proceeds to Cuba from U.S. telephone companies. On March 18, 1999, a federal judge awarded $6.2 million of the telephone payments to the families' victims. Of this amount, $4.15 million would come from AT&T, $1.05 million would come from MCI, and the remainder would come from LDDS Communications, 11313 Telecommunications Services, and WilTel LLC. On August 11, 1999, however, a federal appeals court overturned the lower court's decision and ruled that the families could not collect the $6.2 million, because the Cuban telephone company, ETECSA, is an entity separate from the Cuban government.
March 1998 Policy Changes. On March 20, 1998, in the aftermath of Pope John Paul's trip to Cuba in January, President Clinton announced four changes in U.S. policy. He announced 1) the resumption of licensing for direct humanitarian charter flights to Cuba (which had been curtailed after the February 1996 shootdown of two U.S. civilian planes); 2) the resumption of cash remittances up to $3 00 per quarter for the support of close relatives in Cuba (which had been curtailed in August 1994 in response to the migration crisis with Cuba); 3) the development of licensing procedures to streamline and expedite licenses for the commercial sale of medicines and medical supplies and equipment to Cuba, and 4) a decision to work on a bipartisan basis with Congress on the transfer of food to the Cuban people. The President stated that his actions would "build further on the impact of the Pope's visit to Cuba," "support the role of the Church and other elements of civil society in Cuba," and "help prepare the Cuban people for a democratic transition."
Pentagon Report. On May 6, 1998, the U.S. Defense Intelligence Agency issued a required congressional report (pursuant to P.L. 105-85, Section 1228) on Cuba's military threat to the United States. The report concluded that "Cuba does not pose a significant military threat to the U.S. or to other countries in the region" and "has little motivation to engage in military activity beyond defense of its territory and political system." The report also concluded, however, that "Cuba has a limited capability to engage in some military and intelligence activities which would be detrimental to U.S. interests and which could pose a danger to U.S. citizens under some circumstances."
January 1999 Policy Changes. On January 5, 1999, President Clinton announced five measures to support the Cuban people that are intended to augment the March 1998 U. S. policy changes implemented in the aftermath of Pope John Paul's visit. The five measures are as follows: 1) broadening cash remittances to Cuba, so that all U.S. residents (not just those with close relatives in Cuba) will be allowed to send $300 per quarter to any Cuban family and licensing larger remittances by U.S. citizens and non-governmental organizations to entities independent of the Cuban government; 2) expanding direct passenger charter flights to Cuba from additional U.S. cities other than the current flights from Miami, and to cities other than Havana (in August 1999, the State Department announced that direct flights would be allowed to Cuba from New York and Los Angeles; direct flights from New York are expected to begin December 3, 1999); 3) re-establishing direct mail service to Cuba, which was suspended in 1962; 4) authorizing the sale of food to independent entities in Cuba such as religious groups and private restaurants and the sale of agricultural inputs to independent entities such as private farmers and farmer cooperatives producing food for sale in private markets (see "Food and Medical Exports" section below); and 5) expanding people-to-people contact through two-way exchanges among academics, athletes, and scientists.
Drug Trafficking Cooperation. On June 21, 1999, U.S. and Cuban officials met in Havana to discuss ways of improving anti-drug cooperation. According to the State Department, Cuba indicated that it would accept an upgrading of the current telex link between the Cuban Border Guard and the U.S. Coast Guard as well as the stationing of a U.S. Coast Guard officer at the U.S. Interests Section in Havana, but there has been no formal agreement. Barry McCaffrey, Director of the Office of National Drug Control Policy, has stated that Cuba had demonstrated a willingness to help the United States in anti-narcotics efforts but has been ineffective because of a lack of resources. Some Members have called for closer U.S.-Cuban cooperation on anti-drug measures (see H.R. 2365), while some, strongly opposing such efforts, have called on Cuba to be added to the State Department's list of major-drug producing or transit countries (see H.R. 2422). They believe that the Cuban government is involved in the drug trade, although the State Department asserts that the United States has no credible evidence of recent high-level official drug-related corruption in Cuba. H.R. 3427, the Foreign Relations Authorization Act for FY2000 and FY2001, enacted into law by reference in P.L. 106-113, requires a report within 120 days on the extent of international drug trafficking through Cuba since 1990.
On November 10, 1999, the Clinton Administration decided not to add Cuba to the annual list of major drug transit countries. According to the Department of State, "Cuba was not placed on the list of major drug transit countries because there is no clear evidence that cocaine or heroin are transiting Cuba on the way to the United States in quantities that significantly affect the United States." (Daily Press Briefing, November 10, 1999) Some Members of Congress strongly objected to Cuba not being included on the list. A hearing on the issue was held November 17, 1999, before the House Government Reform Committee's Subcommittee on Criminal Justice, Drug Policy, and Human Resources.
Expulsion of Cuban Diplomat. On February 19, 2000, the State Department declared a Cuban diplomat working in Washington, Jose Imperatori, persona non grata and ordered his expulsion within a week. The Cuban government had been asked to withdraw the diplomat voluntarily but refused, leading to the expulsion order. Imperatori was asked to leave because of his links to an INS official employed in Miami, Mariano Faget, who had been arrested by the FBI on February 17 for allegedly spying for the Cuban government. Faget, who had access to sensitive information regarding Cuban defectors and law enforcement sources, allegedly made unauthorized contacts with Cuban officials based in Washington. The Cuban government maintains that the Cuban Interests Section in Washington has never performed intelligence activities since its establishment in 1977 and refused to withdraw their diplomat. The head of the Interests Section, Fernando Ramirez, said the official would stay in the United States to demonstrate the falseness of the accusation. On February 26, however, Imperatori was escorted by FBI officials to Washington National Airport, where he departed on a flight to Canada. While Imperatori was supposed to only transit Canada on his way to Cuba, he did not leave for Havana until March 2, after the Canadian Foreign Minister warned that Cuba was violating international law by allowing Imperatori to stay in the Cuban embassy in Ottawa beyond the expiration of his transit visa. The Cuban government has alleged that the allegations against Faget and Imperatori were drummed up to affect the outcome of the Elian Gonzalez case, but the State Department has stated that there is no connection. Imperatori has been portrayed as a hero by the Cuban government and state media in Havana.
Helms/Burton Legislation
Major Provisions. As enacted into law March 12, 1996, the Cuban Liberty and Democratic Solidarity Act, P.L. 104-114, contains three significant provisions. First, Title I, Section 102(h), codifies all existing Cuban embargo Executive Orders and regulations. No presidential waiver is provided for any of these codified embargo provisions. This provision is significant because of the long-lasting effect on U. S. policy options toward Cuba. In effect, the Clinton Administration and subsequent administrations will be circumscribed in any changes in U.S. policy toward Cuba. Second, Title III allows U.S. nationals to sue for money damages in U.S. federal court those persons that traffic in property confiscated in Cuba. It extends the right to sue to Cuban Americans who became U.S. citizens after their properties were confiscated. The President has authority to delay implementation for a period of six months at a time if he determines that such a delay would be in the national interest and would expedite a transition to democracy in Cuba. Third, Title IV of the law denies admission to the United States to aliens involved in the confiscation of U.S, property in Cuba or in the trafficking of confiscated U.S. property in Cuba. This includes corporate officers, principals, or shareholders with a controlling interest of an entity involved in the confiscation of U.S. property or trafficking of U.S. property. It also includes the spouse, minor child, or agent of aliens who would be excludable under the provision. This provision is mandatory, and only waiveable on a case-by-case basis for travel to the United States for humanitarian medical reasons or for individuals to defend themselves in legal actions regarding confiscated property.
Implementation of Title III and IV. With regard to Title III, since July 1996 President Clinton has suspended -- for six month periods, as provided for under the act -- the right of individuals to file suit against those persons benefitting from confiscated U.S. property in Cuba. At the time of the first suspension on July 16, 1996, the President announced that he would allow Title III to go into effect August 1, 1996; a result, liability for trafficking took effect on November 1, 1996. According to the Clinton Administration, this put foreign companies in Cuba on notice that they face prospects of future lawsuits and significant liability in the United States. At the second suspension on January 3, 1997, President Clinton stated that he would continue to suspend the right to file law suits "as long as America's friends and allies continued their stepped-up efforts to promote a transition to democracy in Cuba." The President has continued, at six-month intervals, to suspend the fights to file Title III lawsuits, with the most recent suspension on January 15, 2000.
With regard to Title IV of the legislation, to date the State Department has banned from the United States a number of executives and their families from three companies because of their investment in confiscated U.S. property in Cuba: Grupos Domos, a Mexican telecommunications company; Sherritt International, a Canadian mining company; and BM Group, an Israeli-owned citrus company. In 1997, Grupos Domos disinvested from U.S.-claimed property in Cuba, and as a result its executives are again eligible to enter the United States. Action against executives of STET, an Italian telecommunications company was averted by a July 1997 agreement in which the company agreed to pay the U.S. -based ITT Corporation for $25 million for the use of ITT-claimed property in Cuba for ten years. In the 105th Congress, the FY1999 omnibus appropriations measure (P.L. 105-277, H.R. 4328) included a provision that requires the Administration to report on the implementation of Title IV of the Helms/Burton legislation. The State Department is investigating a Spanish hotel company, Sol Melia, for allegedly investing in property that was confiscated from U.S. citizens in Cuba's Holguin province in 1961.
Foreign Reaction and the EU's WTO Challenge. Many U.S. allies -- including Canada, Japan, Mexico, and European Union (EU) nations -- have strongly criticized the enactment of the Cuban Liberty and Democratic Solidarity Act. They maintain that the law's provisions allowing foreign persons to be sued in U.S. court constitute an extraterritorial application of U.S. law that is contrary to international principles. U.S. officials maintain that the United States, which reserves to protect its security interests, is well within its obligations under NAFTA and the World Trade Organization (WTO).
Until mid-April 1997, the EU had been pursuing its case at the WTO, in which it was challenging the Helms/Burton legislation as an extraterritorial application of U.S. law. The beginning of a settlement on the issue occurred on April 11, 1997, when a EU-U.S. understanding was reached. In the understanding, both sides agreed to continue efforts to promote democracy in Cuba and to work together to develop an agreement on agreed disciplines and principles for the strengthening of investment protection relating to the confiscation of property by Cuba and other governments. As part of the understanding, the EU agreed that it would suspend its WTO dispute settlement case. Subsequently in mid-April 1998, the EU agreed to let its WTO challenge expire.
Talks between the U.S. and the EU on investment disciplines proved difficult, with the EU wanting to cover only future investments and the U.S. wanting to cover past expropriations, especially in Cuba. Nevertheless, after months of negotiations, the EU and the United States reached a second understanding on May 18, 1998. The understanding sets forth EU disciplines regarding investment in expropriated properties worldwide, in exchange for the Clinton Administration's success at obtaining a waiver from Congress for the legislation's Title IV visa restrictions. Future investment in expropriated property would be barred. For past illegal expropriations, government support or assistance for transactions related to those expropriated properties would be denied. A Registry of Claims would also be established to warn investors and government agencies providing investment support that a property has a record of claims. These investment disciplines would be applied at the same time that President Clinton's Title IV waiver new authority was exercised.
Reaction was mixed among Members of Congress to the EU-U.S. accord, but opposition to the agreement by several senior Members made amendment of Title IV unlikely, and no action was taken in the 105th Congress. EU Implementation of the investment disciplines hinges on whether Congress approves a waiver of Title IV. In a letter to Secretary of State Albright, Senator Helms and Representative Gilman criticized the understanding for not covering companies already invested in expropriated property. Among other criticisms, they argue that the understanding only proposes a weak sanction (denying government support) that may not deter companies that are willing to invest in Cuba. On the other side, some Members argue that the understanding is important because it increases protection for the property of Americans worldwide and discourages investment in illegally confiscated property in Cuba. They argue that failing to approve a Title IV waiver could result in the EU restarting its WTO challenge.
Another potential EU challenge of U.S. law regarding Cuba in the WTO involves a dispute between the French spirits company, Pernod Ricard, and the Bermuda-based Bacardi Ltd. Pernod Ricard entered into a joint venture with the Cuban government to produce and export Havana Club rum, but Bacardi maintains that it holds the right to the Havana Club name. A provision in the FYI 999 omnibus appropriations measure, P.L. 105-277, prevents the United States from accepting payment for trademark licenses that were used in connection with a business or assets in Cuba that were confiscated unless the original owner of the trademark has consented. Although Pernod Ricard cannot market Havana Club in the United States because of the trade embargo, it wants to protect its future distribution rights when the embargo is lifted. Formal U.S.-EU consultations on the issue were held in September and December 1999 without resolution and the EU is reportedly considering a WTO dispute settlement on the issue, maintaining that it violates the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
Food and Medical Exports
Under U.S. sanctions, commercial medical exports are allowed, but there are several restrictions on such exports that are set forth in the Cuban Democracy Act of 1992. On March 20, 1998, President Clinton announced that the Administration would develop licensing procedures to streamline and expedite licenses for the commercial sale of medicines and medical supplies and equipment to Cuba. The simplified procedures were put in place by the Commerce and Treasury Departments in May 1998.
With regard to commercial food sales, President Clinton announced in January 1999 the authorization of the sale of food and agriculture inputs to independent entities in Cuba, such as religious groups, private farmers, and private restaurants. Treasury and Commerce Department regulations for these sales were issued May 13, 1999 (with an effective date of May 10.) The Administration hopes the policy change will support Cuba's small private sector. To date, however, it appears that actual food sales have been negligible. Some in the business community argue that the change in policy does not amount to much because it is too restrictive (only independent groups) and does not allow financing for the sales. Nevertheless, U. S. agribusiness companies continue to explore the Cuban market for potential future sales and support the removal of U. S. trade restrictions on agricultural exports to Cuba.
Opponents of easing restrictions maintain that U.S. policy does not deny medical sales to Cuba, and at this point, does not deny food sales to independent groups in Cuba. According to the State Department, since the Cuban Democracy Act was enacted in 1992, the Commerce and Treasury Departments have issued 50 licenses for exports of medicines and medical equipment, including 12 for travel to Cuba by representatives of U. S. pharmaceutical companies to explore sales. Moreover, opponents argue that substantial amounts of private humanitarian donations to Cuba have been licensed since 1992, some $2.5 billion through 1998. Opponents of easing U. S. sanctions further also argue that easing pressure on the Cuban government would in effect be lending support and extending the duration of the Castro regime.
In general, supporters of easing restrictions on food and medical exports to Cuba argue that they harm the health and nutrition of the Cuban population. They argue that licensing procedures set up for the commercial sale of medical exports to Cuba are so complex that they essentially constitute a ban on such exports because of long delays and increased costs. They argue that although the U.S. government may have licensed $2.5 billion in humanitarian donations to Cuba from 1992 through 1998, in fact much smaller amounts have actually been sent to Cuba. Some supporters of easing sanctions believe the embargo plays into Castro's hands by allowing him to use U. S. policy as a scapegoat for his failed economic policies and as a rationale for political repression. Other supporters of eased restrictions argue that U.S. policy has complicated relations with our allies who have adopted a "constructive engagement" approach toward Cuba.
Legislative Initiatives. The most significant action to date in the 106th Congress occurred during August 4, 1999 Senate consideration of the FY2000 Agriculture Appropriations bill, S. 1233. A modified Ashcroft amendment was approved requiring congressional approval before the imposition of any unilateral agricultural or medical sanction against a foreign country. However, under the modified amendment, agricultural and medical exports to state sponsors of international terrorism -- which includes Cuba -- would be allowed pursuant to one year licenses issued by the U.S. government, and without any federal financing or export assistance. An attempt to table the Ashcroft amendment, before it was modified to restrict exports to sponsors of international terrorism, was defeated by a vote of 28 to 70 on August 3, 1999. The Senate subsequently approved S. 1233 and incorporated the language into H.R. 1906, with the Ashcroft amendment included as subsection 748 (k). The House version of the bill had no such provision, and ultimately the Ashcroft provision was not included in the conference report. Several Senators expressed strong disapproval with the manner in which the issue was decided. When the conference committee came to a stalemate over the Ashcroft provision on sanctions and another provision on dairy prices, the House and Senate Majority Leadership brokered an agreement that dropped the Ashcroft provision. This year, however, the Senate Foreign Relations Committee included a similar provision in its FY2001 foreign aid authorization bill, unnumbered, which was approved by the Committee by voice vote on March 23, 2000.
In addition to the above described bills, three initiatives introduced earlier in the session would change overall U. S. sanctions policy with regard to trade in agricultural and/or medical products, including trade with Cuba. S. 327 (Hagel) would exempt agricultural products, medicines, and medical products from U.S. sanctions. The bill does not include a presidential waiver for national security. H.R. 212 (Nethercutt), would require GAO to prepare a report assessing the impact and effectiveness of U. S. sanctions and would prohibit unilateral sanctions on exports of food, other agricultural products, medicines, or medical supplies or equipment. The bill provides a presidential waiver for national security. S. 566 (Lugar) would exempt from unilateral economic sanctions commercial sales of agricultural commodities, livestock, and value-added products. The bill includes a presidential exemption for when war is declared or for when national interest reasons are cited and Congress fails to enact a resolution of disapproval. Additionally, three bills have been introduced to ease restrictions on commercial food and medical exports to Cuba specifically: H.R. 230 (Rangel), and two identical bills, H.R. 1644 (Serrano) and S. 926 (Dodd).
Radio and TV Marti
U.S.-government sponsored radio and television broadcasting to Cuba (Radio and TV Marti), begun in 1985 and 1990 respectively, have at times been the focus of controversies, including adherence to broadcast standards. Over the years there have been various attempts to cut funding for the programs, especially for TV Marti which has not had an audience because of Cuban jamming efforts. TV Marti offers its daily broadcasts between the hours of 3:30 am - 8:00 am.
For FY2000, the Administration requested $22.743 million for broadcasting to Cuba, with $13.12 million for Radio Marti operations and $9.623 million for TV Marti operations. The FY2000 omnibus appropriations measure, P.L, 106-113, which enacts H.R. 3421 by reference, appropriates $22.095 million for Cuba broadcasting. The omnibus bill also enacted by reference H.R. 3427, the Foreign Relations Authorization Act for FY2000 and FY2001, which authorizes $22.743 million for Cuba broadcasting for each of FY2000 and FY2001.
For FY2001, the Administration requested $23.456 million for broadcasting to Cuba for both Radio and TV Marti. Of that amount, $650,000 is for the purchase of a 100 kilowatt solid state transmitter to improve the operation, reliability, and efficiency of Radio Marti broadcasts to Cuba.
Migration
In 1994 and 1995, Cuba and the United States reached two migration accords designed to stem the mass exodus of Cubans attempting to reach the United States by boat. On the minds of U. S. policymakers was the 1980 Mariel boatlift in which 125,000 Cubans fled to the United States. In response to Castro's threat to unleash another Mariel, U.S. officials reiterated U.S. resolve not to allow another exodus. Amidst escalating numbers of fleeing Cubans, on August 19, 1994, President Clinton abruptly changed U. S. migration policy, under which Cubans attempting to flee their homeland were allowed into the United States, and announced that the U. S. Coast Guard and Navy would take Cubans rescued at sea to the U. S. naval base at Guantanamo Bay, Cuba. Despite the change in policy, Cubans continued fleeing in large numbers.
As a result, in early September 1994, Cuba and the United States began talks that culminated in a September 9, 1994 bilateral agreement to stem the flow of Cubans fleeing to the United States by boat. In the agreement, the United States and Cuba agreed to facilitate safe, legal, and orderly Cuban migration to the United States, consistent with a 1984 migration agreement. The United States agreed to ensure that total legal Cuban migration to the United States would be a minimum of 20,000 each year, not including immediate relatives of U. S. citizens. In a change of policy, the United States agreed to discontinue the practice of granting parole to all Cuban migrants who reach the United States, while Cuba agreed to take measures to prevent unsafe departures from Cuba.
In May 1995, the United States reached another accord with Cuba under which the United States would parole the more than 30,000 Cubans housed at Guantanamo into the United States, but would intercept future Cuban migrants attempting to enter the United States by sea and would return them to Cuba. The two countries would cooperate jointly in the effort. Both countries also pledged to ensure that no action would be taken against those migrants returned to Cuba as a consequence of their attempt to immigrate illegally. On January 31, 1996, the Department of Defense announced that the last of some 32,000 Cubans intercepted at sea and housed at Guantanamo had left the U. S. Naval Base, most having been paroled into the United States. Periodic U.S.-Cuban talks have been held on the implementation of the migration accords.
Since the 1995 migration accord, the U.S. Coast Guard has interdicted over 3,500 Cubans at sea and returned them to their country, while those deemed at risk for persecution have been transferred to Guantanamo and then found asylum in a third country. Those Cubans who reach shore are allowed to apply for permanent resident status in one year.
Tensions in South Florida heightened after a June 29, 1999 incident -- televised live by local news helicopters -- in which the U.S. Coast Guard used a water cannon and pepper spray to prevent six Cubans from reaching Surfside beach in Florida. The incident prompted outrage from the Cuban American community in Florida and several Members of Congress. President Clinton characterized the incident as "outrageous," and stated that the treatment was not authorized (Associated Press, July 1, 1999). Another incident occurred on July 9, 1999, when a boat being interdicted by the Coast Guard capsized and resulted in the drowning of a Cuban woman. The State Department expressed regret over the incident, and noted that the Department of Justice and the Immigration and Naturalization Service would investigate whether this was a case of alien smuggling.
The Cuban government has taken forceful action against individuals engaging in alien smuggling. Prison sentences of up to three years may be imposed against those engaging in alien smuggling, and for incidents involving death or violence, a life sentence may be imposed. As of late July 1999, 30 U.S. residents were being held by the Cuban government on charges of alien smuggling, and Cuba has offered to return them to the United States to stand trial. In late September 1999, a Cuban court convicted two U.S. residents to jail terms of life and 30 years, respectively, for the smuggling of migrants.
Elian Gonzalez Case. On November 25, 1999, a boat with 13 Cubans attempting to reach the United States capsized off the coast of Florida. Among the 3 survivors was a 5-year old boy, Elian Gonzalez, who was found clinging to an inner tube off the coast of Fort Lauderdale. The boy's mother drowned in the incident. The Immigration and Naturalization Service released the boy into the care of relatives in Florida (where he now resides with a great-uncle), who said that they would request political asylum for the child. The boy's father, who resides in Cuba, has called for his return.
The case has increased tension in U.S. -Cuban relations. Fidel Castro has demanded the return of the boy, and mass demonstrations calling for the boy's return have been organized since early December 1999. While the Cuban government has organized the mass demonstrations and used the media to influence the Cuban population, the issue in itself has generated an outpouring of emotion among the Cuban population as well as in south Florida.
After interviewing the boy's father in Cuba and the boy's great-uncle and lawyers in Miami, the INS ruled on January 4, 2000, that the boy's father "has the sole legal authority to speak on behalf of his son, Elian, regarding Elian's immigration status in the United States." According to the INS ruling: "Both U.S. and international law recognize the unique relationship between parent and child, and family reunification has long been a cornerstone of both immigration law and INS practice." The INS decision coed for Elian to be returned to his father by January 14, 2000.
Subsequently, efforts by the boy's Miami relatives to challenge the ruling resulted in the Attorney General extending the January 14, 2000 deadline in order to accommodate any federal court proceedings. On January 7, Representative Dan Burton, chairman of the House Committee on Government Reform, issued a subpoena to Elian with the intention of ensuring that he was not returned to Cuba until a Florida court could address the issue. On January 10, a Florida circuit court judge ruled that the boy's return to Cuba could cause the child "imminent harm" and scheduled a hearing on the case for March 6. Meanwhile, the Florida judge issued a temporary protective order for the child to keep him with his Miami relatives until the March hearing. However, on January 12, 2000. Attorney General Janet Reno reaffirmed the INS January 4 ruling, and asserted that the Florida state court had no right to intervene in the case. She maintained that Florida's court order has no force or effect with regard to the INS's administration of immigration laws and that any challenge must take place in federal court.
On January 19, 2000, attorneys for the boy's Miami relatives filed a federal lawsuit in Miami in an effort to block Elian's return to Cuba. The lawsuit contended that the boy's constitutional rights were violated when petitions for political asylum filed on his behalf were not considered. On March 21, 2000, Federal district court judge Michael Moore dismissed the request to force the INS to grant Elian an asylum hearing.
On April 6, 2000, Elian's father, Juan Miguel Gonzalez, traveled to Washington with his wife and six-month old son, with the intention of reuniting with his son Elian and taking him back to Cuba.
In late January 2000, it appeared that Congress would consider legislative action on the issue, but at this juncture such action appears uncertain. Some Members support legislation granting U. S. citizenship or legal residency to the boy (S. 1999, HR, 3531, and H.R. 3532). Those supporting citizenship argue that the case should be considered in family court and that the legislation would ensure this. In contrast, other Members do not believe that Congress should intervene in the matter and maintain that the INS should proceed with its decision to return the boy to his father (H.Con.Res. 240 and S.ConRes. 79). Administration officials maintain that the issue should be resolved in federal court, not in Congress. The Senate Judiciary Committee held a hearing on the issue on March 1, 2000.
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Legislative Initiatives in the 106th Congress
In addition to the bills cited in the "LEGISLATION' section below, the following bills on Cuba have been introduced so far in the 100th Congress.
H.R. 181 (McCollum), introduced January 6, 1999, to repeal the authority of the President to suspend the effective date of Title III of the Cuban Liberty and Democratic Solidarity Act.
H.R. 229 (Rangel), introduced January 6, 1999, to lift the trade embargo on Cuba and for other purposes.
H.R. 230 (Rangel), introduced January 6, 1999, to make an exception to the embargo on trade with Cuba for the export of food, medicines, medical supplies, medical instruments or medical equipment.
H.R. 256 (Serrano), introduced January 6, 1999, to repeal the Cuban Democracy Act of 1992 and the Cuban Liberty and Democratic Solidarity Act of 1996.
H.R. 257 (Serrano), introduced January 6, 1999, to reinstate the authorization of cash remittances to family members in Cuba under the Cuban Assets Control Regulations.
H.R. 258 (Serrano), introduced January 6, 1999, to allow for news bureau exchanges between the United States and Cuba.
H.R. 259 (Serrano), introduced January 6, 1999, to allow travel and cultural exchanges between the United States and Cuba.
H.R. 262 (Serrano), introduced January 6, 1999, to waive certain prohibitions with respect to nationals of Cuba coming to the United States to play organized professional baseball.
S. 73 (Moynihan), introduced January 19, 1999, to make available funds under the Mutual Educational and Cultural Exchange Act of 1961 to provide Fulbright scholarships for Cuban nationals to undertake graduate study in the social sciences.
S. 566 (Lugar), introduced March 8, 1999, to exempt commercial sales of agricultural commodities, livestock, and value-added products from unilateral economic sanctions.
H.R. 1181 (Paul), introduced March 18, 1999, to lift the trade embargo on Cuba and for other purposes.
H.R. 1644 (Serrano)/S. 926 (Dodd), Cuban Food and Medicine Security Act of 1999, introduced April 29, 1999, would ease restrictions on the sale of food and medicines to Cuba.
H.R. 2365 (Rangel), introduced June 25, 1999, to authorize the Director of the Office of National Drug Control Policy to enter into negotiations with representatives of Cuba to provide for increased cooperation between Cuba and the United States on drug interdiction efforts.
H.R. 2422 (Burton), introduced July 1, 1999, to provide for the determination that Cuba is a major drug-transit country for purposes of Section 490(h) of the Foreign Assistance Act of 1961.
S. 1771 (Ashcroft)/H.R. 3140 (Nethercutt), introduced October 22 and 25, 1999, respectively, to require congressional approval before the imposition of any unilateral agricultural or medical sanction against a foreign country or foreign entity.
S. 1796 (Lautenberg)/H.R. 3485 (McCollum), introduced October 26 and November 18, 1999, respectively, to modify the enforcement of certain anti-terrorism judgements.
S. 1829 (Helms), introduced October 29, 1999, to prohibit the payment of debts incurred by the communist government of Cuba.
S. 1919 (Dodd), introduced November 10, 1999, to permit travel to or from Cuba.
H.R. 3329 (Rothman), introduced November 10, 1999, to amend the Cuban Liberty and Democratic Solidarity Act to require, in order to determine that a democratically elected government in Cuba exists, the government extradite to the United States convicted felon Joanne Chesimard and all other U.S. fugitives from justice.
S. 1999 (Mack)/H.R. 3531 (McCollum) both introduced January 24, 2000, provide that Elian Gonzalez shall be considered a naturalized U. S. citizen.
H.R. 3532 (Menendez), introduced January 24, 2000, provides for legal residency for Elian Gonzalez.
H.Con. Res. 240 (Rangel)/ S.Con.Res. 79 (Dodd), introduced January 24 and 26, 2000, respectively, express the sense of Congress that Elian Gonzalez should be reunited with his father in Cuba.
H.R. 4118 (Ros-Lehtinen), introduced March 29, 2000, to prohibit the rescheduling or forgiveness of any outstanding bilateral debt owed to the United States by Russia until the President certifies to Congress that Russia has closed the intelligence facility at Lourdes.
LEGISLATION
P.L. 106-113 (H.R. 3194)
Consolidated Appropriations Act for FY2000. Enacts by reference H.R. 3421, the Commerce, Justice and State appropriations bill for FY2000, and H.R. 3427, the Foreign Relations Authorization Act for FY2000 and FY2001, as introduced November 17, 1999. H.R. 3194 signed into law November 29, 1999. H.R. 3421 appropriates $22.095 million for Cuba broadcasting for FY2000. H.R. 3427 includes the following Cuba provisions: Section 108 (b) (3) authorizes $6,000 for each of FY2000 and FY2001 for the investigation and dissemination of information on violations of freedom of expression by Cuba; Section 121 authorizes $22.743 million for broadcasting to Cuba for each of FY2000 and FY2001; Section 206 requires a report from the Secretary of State not later than 120 days after enactment of the Act on the extent of international drug trafficking through Cuba since 1990.
H.Res. 99 (Ros-Lehtinen)
Expresses the sense ofthe House regarding the human rights situation in Cuba, including a condemnation of Cuba's repressive crackdown against the internal opposition and independent press; a call for the Administration to secure support for a UNCHR resolution condemning Cuba for its human rights abuses and for the reinstatement of a UNCHR Special Rapporteur on Cuba; and a call for the Administration to nominate a special envoy to advocate internationally for the establishment of the rule of law for the Cuban people. Introduced March 9, 1999. House approved Mar. 23, 1999, by voice vote.
S.Res. 57 (Graham)
Expresses the sense of the Senate that the United States should make all efforts to pass a UNCHR resolution criticizing Cuba's human rights abuses and securing the appointment of a Special Rapporteur. Introduced March 4, 1999. Senate approved (98-0) Mar. 25, 1999.
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