What Obama can do to substantially modify the implementation of the blockade against Cuba

Author: Ariadna Cornelio Hitchman, Gretter Alfonso Guzmán

Though the United States Congress is the authorized body to decree the end of the blockade against Cuba, this can be preceded by the dismantling of most of the restrictions embodied in this policy through executive orders of the President. 

With the signing of the Cuban Liberty and Democratic Solidarity Act (known as the Helms-Burton Act) by President William Clinton on March 12, 1996, the blockade against Cuba and the hank of executive orders that sustain it were codified into law. Thus, the prerogatives of the President to steer US foreign policy on Cuba in terms of lifting the blockade against our country were transferred to the Congress.  This law, however, preserved the authority of the President to allow blockade-related transactions regulated under the US Code of Federal Regulations by means of issuing licenses.  

There are only four aspects on which the President cannot act upon because their modification or elimination requires the approval of Congress as they are regulated by US law.  The first one is the prohibition to US subsidiaries in third countries to trade goods with Cuba, as stated in the Cuban Democracy Act of 1992 (known as the Torricelli Act).  The second is the impossibility of doing transactions with American properties that were nationalized by our country, as prohibited under the Helms-Burton Act.  Another two prohibitions were included in the Trade Sanctions Reform and Export Enhancement Act of 2000, preventing American citizens from traveling to Cuba for tourist purposes and forcing our country to pay in cash in advance for agricultural products bought in the United States.

Apart from these four restrictions under the above mentioned US laws, the President may use his executive prerogatives to modify the implementation of the blockade against Cuba.

Evidence of this presidential authority is what happened on December 17, 2014, when the President of the United States announced several measures to modify the implementation of certain blockade-related regulations.  Later on, on January 15, 2015, the Treasury and the Department of Commerce published the regulatory amendments to implement the measures announced by the President and which came into effect the following day. 

This could be the procedure from now onwards to eliminate most of the economic, financial, and commercial restrictions that the US Government maintains against our country.  As several sectors and experts in the United States acknowledge, Obama’s modifications are far from being “all that the President can do”.  Though they most certainly represent a step forward in issues such as travels to Cuba, telecommunications, and remittances, many other prohibitions could be eliminated with the President’s intervention.  A substantial modification of the blockade structure is possible if President Obama continues to apply his executive powers to eliminate the restrictions currently in force. 

Regarding travels, the President could allow a ferry service between the United States and Cuba, in addition to eliminating the limit on the value of goods for personal use or gifts that American travellers visiting our country can import from Cuba.  He could also authorize the flight of Cuban airlines to the United States transporting travellers between the two countries. 

In terms of trade, Obama could allow Cuba to import goods with more than 10% of American components from third countries.  Likewise, he could authorize the export of American products to Cuba and the import of Cuban services and goods in the United States, including those manufactured in third countries with Cuban raw material like nickel and sugar.   

Health is another sector in which actions with a wide impact on the wellbeing of both peoples can be taken.  The list of actions by the President could include, among others:  authorizing US citizens to receive medical treatments in Cuba; allowing the export of medicines and medical equipment that can be used in the production of Cuban biotechnological products; allowing the sale of raw material required by Cuba to produce medicaments for the Cuban population and for other developing countries, and authorizing the marketing of Cuban biotechnological products in the United States such as Heberprot- P and Nimotuzumab, a monoclonal antibody to treat  advanced head and neck cancer.

In the banking and financial sector, where Obama’s Administration has implemented a relentless financial pursuit, he could also modify certain regulations and authorize, for example, the use of the American Dollar in Cuba’s international transactions, allow such transactions to be done through the US banking system when involving Cuban operations in third countries, and reverse the financial harassment policy against the island, which  increases the fear of Banks in third countries to make operations with Cuba  or execute bank transfers to Cuban companies or organizations.  Other actions could include the possibility for Cuban entities (banks, companies, etc.) to open correspondent accounts in bank of the United States and instruct US representatives in international financial institutions not to block the granting of credits and other financial facilities to Cuba.

Therefore, Obama has boundless possibilities to substantially modify the restrictions currently in force hence draining the fundamental content of the blockade by decisively applying his prerogatives.  

The process to normalize bilateral relations will necessarily have to address the issue of lifting the blockade, the main obstacle for economic, commercial, and financial relations between Cuba, the United States, and the rest of the world, as well as for developing the Cuban economy’s full potentials.

February 10, 2015


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