The Future of U.S.-Cuban Transportation Law

by Christopher Minelli November 7 2006, 16:19

The story has been told in many different ways, but for the most part it goes something like this: during the height of the Cold War, a newspaper reporter is flying on an Air Force jet interviewing a major general about a new missile designed to keep the Soviets on their side of the Iron Curtain.  During the conversation, the general opens a cigar box full of Cubans, takes one out, and lights it up.  “General,” the newspaper reporter asks, taken aback, “what are you doing?  Isn’t that behavior supporting the illegitimate regime of Cuba?”  The general taps his cigar, gives the newspaper man a wink, and replies, “No son, I consider it to be burning the communist’s crops.”  [1]

For half of the twentieth century and the entirety of the twenty-first, Cuba has been ruled by a communist government under the direction of Fidel Castro.  Castro took power during a communist revolution in 1959 and has led the country under tight communist control.  [2]  United States foreign policy since the end of World War II has been tailored to deny benefit to the nation’s direct enemies and enemies of her allies.  One of these policy decisions has been a complete embargo on trade with Cuba since January of 1959, designed to starve the Cuban economy of American currency.  [3]  The big questions are whether or not the embargo is still warranted in the post-Cold War world where there are no ties between Cuba and terrorism and what will happen in U.S.-Cuban relations once Castro is no longer in power due to incapacity or death.

I. The Current Status of the Cuban Trade Restrictions

Prior to Castro’s ascension to the head of the Cuban communist party, Cuba was a tropical resort vacationers from the United States.  [4]  The country was liberated from Spanish colonial rule by U.S. forces at the conclusion of the Spanish-American War in the 1890s, although the independence came with strong American influence.  [5]  The embargo was a direct result of the seizure and nationalization of American industries in Cuba following Castro’s revolution.  [6]  After Castro’s rise to power, nearly all ties were cut by President John F. Kennedy.  In a presidential proclamation issued on February 3, 1962, Kennedy set the tone for American policy towards Cuba for the rest of the century.  [7]  He noted aggression and the need for an embargo to protect American security in the region.  [8]

Soon after Congress passed laws creating and enforcing the embargo, some of which still exist today.  They can be found in 22 U.S.C.A. § 2370(a) along with other restrictions on foreign trade.  [9]  Specifically, the limitations on trade, and other financial transactions from the United States to Cuba are discussed in § 2370(a), and almost total prohibitions on travel to Cuba by U.S. citizens.  [10]  Violations of the embargo statute are serious and enforced with stiff fines and other penalties in the Code of Federal Regulations.  [11]

These violations are rare (although possible – one source indicates that as many as 15,000 U.S. citizens traveled to Cuba illegally in 1996) and reported cases interpreting and applying the embargo statute are even rarer.  The one famous U.S. Supreme Court exception is Zemel v. Rusk, which held that the constitutional guarantee of a freedom of travel was not violated by the government invalidating U.S. passports for travel to Cuba.  [12]

In recent years, Castro has had a number of health problems.  This year was the first since 1959 that Castro had not been direct control of the country, as he stepped down to recover from surgery.  [13]  He placed control of the country in the hands of his brother, Raul Castro.  [14]  The question on everyone’s mind was in the event of Castro’s death, would U.S.-Cuban policy remain static or would it be open to change?  Relations with other communist countries have become more open since the demise of the Soviet Union, like those of Vietnam, China, and the eastern bloc.  Will this change also come to Cuba?

II. Recent Cuban-U.S. Relations and Possibility of Trade with Cuba in a Post-Castro World

The Bush administration has continued with the status quo regarding Cuba throughout his presidency.  Although little appears to be done towards Cuba in regards to the war on terrorism, the country remains on illegal immigration’s radar screen.  [15]  Immigration to the United States has always been a desire of Cubans following the 1959 revolution [16], but the Bush administration has reacted by increasing the number of Coast Guard interceptors in the seas between Cuba and the United States in a plan called “Operation Distant Shores.”  [17]  With a de facto wall constructed between this country and Cuba, it is clear that the status quo will not allow for much to change in embargo law in the near future without significant reforms in this country or in Cuba.

Cuba has much to offer the United States, and at least one legal commentator has hypothesized that opening up unrestricted trade with Cuba would benefit the U.S.’s economy.  [18]  Besides the large amount of classic 1940s and 1950s American automobiles that Cuba is famous for still having [19] – evidence of the effects of the embargo on Cuba since the revolution – Cuba also has a lot of agricultural potential and would be a fantastic trading partner in the western hemisphere.  [20]  Two possible scenarios exist in which the United States might be willing to end the embargo and open up trade with Cuba: (1) the Cuban government changes and becomes something not communist, (2) the Cuban economy collapses forcing the Cubans to change their economic system.

If Castro becomes incapacitated, it is possible that the new government will be more open to reaching agreements with the United States.  The United States has territory on Cuban soil at the Guantanamo Bay naval station, and Havana is a major port in its own right.  [21]  Shipping between Havana and Miami could probably start almost overnight, and the relative proximity of Cuba and the United States (90 miles at the closest point) [22] makes the legs of the journey quick.  The Cuban economy is in serious amounts of debt (it owes approximately $20 billion to Russia alone) [23] and trade with the United States would be a real possibility of recovery.  Positive cash flow into the country (and perhaps even the re-opening of the country to American tourism) would benefit the Cuban people in a post-Castro world. 

Thus, it is likely that in the future we will again be able to legally visit Cuba and American corporations will have another market to buy raw goods from and sell products.  It is probable that the embargo will end once Castro (and his immediate old guard) are no longer in power.  There are many budding entrepreneurs in both this country and Cuba that are waiting to capitalize on the benefits trade between our countries would produce.  Even if Cuba keeps its major industries nationalized, there is no reason the country couldn’t adopt a model of communism similar to China’s that embraces certain elements of private ownership and free enterprise while embracing core principles of communist belief.  Cuba’s economy is ailing from the lack of U.S. dollars flowing into the country, and remedying the problem would be simple. 

Someday the general in the airplane will not have anything to worry about except anti-smoking laws.

Footnotes:

[1]  For an example of one version of the story, consult Peter Kaminsky, Smoker’s Delight, 7 FAST COMPANY153, ¶ 21 (1997), http://www.fastcompany.com/magazine/07/153smoke.html

[2]  Mary Beth Norton, et. al., A PEOPLE AND A NATION 866 (5th ed. 1998).

[3]  See 22 U.S.C. § 2370(a) (2006).  See also Charlotte Mulhern, So Close… Cuba’s Potential Lures Investors (1997), http://findarticles.com/p/articles/mi_m0DTI/is_n12_v25/ai_20226328 (“The basic goal of the sanctions is to isolate Cuba economically and deprive it of U.S. dollars.”)

[4]  Mulhern, id.

[5]  Norton, supra note 2, at 646, 651-52.

[6]  Id. at 866.  See also 22 U.S.C. § 2370(a) (2006).

[7]  John F. Kennedy’s proclamation was #3447.  See 27 F.R. 1085 (1962) as quoted in 22 U.S.C.A. § 2370(a) (West 2006). 

[8]  Id.

[9]  See 22 U.S.C. § 2370(a) (2006), et al.

[10]  The Supreme Court had upheld these travel restrictions based on 22 U.S.C. § 211(a) (2006).  Zemel v. Rusk, 381 U.S. 1 (1965).

[11]  See generally 31 C.F.R. 501, et. al., cited in 22 U.S.C.S. § 2370 (Lexis 2006).

[12]  Charlotte Mulhern, So Close… Cuba’s Potential Lures Investors (1997),http://findarticles.com/p/articles/mi_m0DTI/is_n12_v25/ai_20226328 (on the illegal travelers to Cuba).  Zemel v. Rusk, supra note 10.

[13]  Brother: Castro ‘Getting Better,’ not Dying (2006),http://www.cnn.com/2006/WORLD/americas/10/08/castro.sick.ap/index.html

[14]  Id.

[15]  See American Immigration Law Foundation, Cuban Migration: Averting a Crisis (2003),http://www.ailf.org/ipc/policy_reports_2003_CubanMigration.asp

[16]  See id.

[17]  See id.

[18]  See generally Christi M. DeMelfi, Nothing But the Facts: An In-Depth Analysis of the Effects of Economic Sanctions Against Cuba, 5 J. Int’l Bus. & L. 137 (1992).

[19] See Chris Baker Compositions, LLC, Cuba’s Classic American Automobiles (2006),http://www.danheller.com/cuba-cars.html.  See also Dan Heller, Dan Heller Photography: Cuba Automobiles (2006), http://www.danheller.com/cuba-cars.html (photos of Cuban automobiles).

[20]  See generally Charlotte Mulhern, So Close… Cuba’s Potential Lures Investors (1997),http://findarticles.com/p/articles/mi_m0DTI/is_n12_v25/ai_20226328

[21]  United States Navy, Guantanamo Bay Naval Station (2006), http://www.nsgtmo.navy.mil/(official site from the U.S. Department of Defense).

[22]  See New York Times Editorial, 90 Miles and Light-Years Away (2006),http://travel2.nytimes.com/2006/08/10/opinion/10thu2.html?n=Top%2FReference%2FTimes%20Topics%2FPeople%2FC%2FCastro%2C%20Fidel&adxnnl=1&adxnnlx=1162865688-9tTEsPxl+PyNIFD9vBESGQ

[23]  Carmen G. Gonzalez, Trade Liberalization, Food Security, and the Environment: The Neoliberal Threat to Sustainable Rural Development, 14 Transnat’l L. & Contemp. Pros. 419, 483 (2004).

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