Closing the 90 Mile Gap: How Changing U.S.-Cuba Relations Lead to Changing Law

By Marissa Florio

On March 20, 2016, President Obama became the first sitting United States President to visit Cuba in 88 years. Over the last few years of his presidency, he has promoted a thaw in relations with Cuba, beginning with an announcement on December 17, 2014 that diplomatic relations would be restored. These developing relations have directly led to changes in international laws and regulations between the two nations.

Since the early 1960s, the United States and Cuba have had severed economic and diplomatic relations. The U.S. imposed a trade embargo on Cuba, the U.S. embassy in Havana closed, and Cuba was designated as a “state sponsor of terrorism” by the U.S. State Department. With the presidency of Barack Obama, tensions have cooled and relationships are being rebuilt. In 2015, the embassy reopened, and the “state sponsor of terrorism” designation was removed after a finding that there was “no evidence that the country provided training or weapons to terrorist groups.” In 2016, President Obama has called for Congress to lift the embargo.

I recently traveled to Cuba on a people-to-people educational program, one of the twelve categories of travel activities that allow Americans to enter Cuba while the embargo is in place. My trip was organized through Cuba Candela and comprised of nearly 140 Harvard students. While I was in Cuba, changes were happening in real time in U.S.-Cuba relations. On March 15, it was announced that individual people-to-people educational trips would be permitted; no longer do travelers need to organize their trip through a “sponsoring organization subject to U.S. jurisdiction.” On March 16, direct mail service resumed between the two countries. On March 17, the Cuban government eliminated the 10% penalty on conversions of the U.S. dollar. On March 21, President Obama and President Castro held a joint press conference where they elaborated upon the progress being made in relations.

As Cuba and the United States come together for discussions and open their doors to each other once again, there are major implications in international affairs, international law, and domestic law.

First, a number of bilateral agreements are being signed between President Obama and President Castro on numerous topics: counternarcotics, commerce, travel, and health. While the conversations on these topics are sure to be fruitful in getting both nations on the same page, any formal agreement must be taken with a gain of salt after President Castro’s statement on international instruments during his joint press conference with President Obama:

“There are 61 international instruments recognized. How many countries in the world comply with all the human rights and civil rights that have been included in these 61 instruments? What country complies with them all? Do you know how many? I do. None. None, whatsoever. Some countries comply some rights; others comply others. And we are among these countries. Out of these 61 instruments, Cuba has complied with 47 of these human rights instruments. There are countries that may comply with more, there’s those that comply with less.”

From this statement, President Castro does not appear to feel lawfully bound to abide by international instruments. Therefore, coming to agreements and making active efforts is likely to be more effective than, for example, signing theoretical documents on environmentalism. For more important agreements, the U.S. might want to ensure there is some sort of enforcement authority to ensure both parties abide by their promises.

Second, as economic barriers imposed by the U.S. are lessened, more money will flow freely into Cuba. Cubans can now open American bank accounts, and U.S. dollars can be converted into Cuban Convertible Pesos (CUCs; Cuba’s primary currency for tourism) without a 10% penalty. Obama traveled to Cuba along with “some of America’s top business leaders and entrepreneurs,” who have an interest in expanding to Cuba. As American business enters the Cuban economic system, Cuban domestic law will need to change in accordance. Only recently did Cuba begin allowing its people to buy and sell houses, and the opening of private businesses such as restaurants is also a new and relatively rare concept in the socialist state. More privatization and capitalistic components will likely become the norm in Cuba’s economy as the country is opened up to the world.

Third, Internet use will be opened up in Cuba. Internet access in Cuba is limited, and even where there is access there is content restrictions. While I was there, I attempted to log onto “Canvas,” the online platform where Harvard Law School course materials are posted. Upon logging in, I received an error message: “You are not authorized to access this site because you are located in a country subject to U.S. trade restrictions.” I learned that local Cubans access modern music, news, and movies by sharing USB drives that have information downloaded on them, called “paquetes.” While the local people are very entrepreneurial and are able to access information in roundabout ways, stronger ties with the U.S. will likely allow Internet access to become more widespread and more open. President Obama is encouraging this: “[W]e have said that it is no longer a restriction on U.S. companies to invest in helping to build Internet and broadband infrastructure inside of Cuba. It is not against U.S. law, as it’s been interpreted by the administration.” The phrasing here by President Obama is interesting: it seems as though it had previously been taken as against the law but a new interpretation has removed that restriction. Additional review of the interpretation of domestic laws might assist the growth in international affairs.

The relationship between Cuba and the United States is growing after a 50-year hiatus, and legal scholars will have much to write on how this relationship comes to affect international law, Cuban domestic law, and American domestic law in the months and years to come.

 


Marissa Florio is a 2016 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.