Travel
to Cuba:
An
Investigation into the US Policy of
Restricting
the Travel of US Citizens to Cuba
Written by Nicole Hertvik
under the auspices
of the
Fund for Reconciliation & Development
355 West 39th St
New York, NY 10018
www.ffrd.org info@ffrd.org
212-760-9903 fax:212-760-9906
Introduction
For forty-two years, the United States has maintained a policy towards Cuba with the central aim of isolating and ultimately eliminating Cuban leader Fidel Castro. Although the policy has shown variations throughout its four-decade tenure, its main tenets have consistently rested on a policy of isolation. Central to the aim of isolating Castro has been restrictions on travel by US citizens to Cuba. This policy has hurt only the Cuban and American people and frustrated rather than fostered mutual understanding and a reconciliation of differences between two countries. The following paper is a summary of our recent investigation into US travel restrictions to Cuba and an explanation of our conclusion that a lifting of the restrictions would be mutually beneficial to both American and Cuban societies. The argument rests on the assumption that the travel restrictions are objectionable on legal, policy and economic grounds.
ARGUMENT ONE: LEGAL DIMENSIONS
Constitutional
Law
Restricting
the right to travel conflicts with several areas of the US constitution.
Limiting the freedom of movement encroaches on the “liberty” which the Fifth
Amendment states citizens cannot be deprived of without the due process of law.
In addition, the restrictions limit rights guaranteed under the First Amendment
to express our views, hear the speech of others, gather information and
associate with others – rights essential to a democratic society. With freedom
of movement restricted, First Amendment rights undoubtedly suffer.
A central principle
underlying the concept of democracy is that of a citizenry believed capable of
making its own rational decisions. According to Timothy Edger, Legislative
Counsel for the American Civil Liberties Union, the founders of the United
States had this in mind when writing the Constitution. The fact that the right
to travel is not explicitly listed in the Amendments demonstrates that freedom
of travel was an unquestioned notion at the time of the Constitution’s
execution. “That is the reason for the Ninth Amendment, which states that other
rights, not necessarily spelled out here are to be respected as well,” Edger
stated. [1]
Indeed, travel restrictions
were unheard of in the United States before the Cold War when they were first
implemented as a tool to restrict funds due to security concerns. Challenges to
the legality of such restrictions came shortly thereafter. In 1967, the Supreme
Court ruled that restricting freedom of movement was an infringement of
constitutional rights. Former Supreme Court Justice William Douglas observed
that “Freedom of movement is the very essence of our free society, setting us
apart . . . it often makes other rights meaningful.”[2]
It was this ruling that led to a temporary lifting of travel restriction to
Cuba in 1977.
On two separate occasions,
1962 and 1984, the Supreme Court ruled in favor of travel restrictions by
narrow margins. These restrictions were ruled permissible only in light of “the
weightiest conditions of national security” necessitated by the Cold War. Ten
years after the collapse of the Soviet Union, the possibility of a security
threat from a small communist country has become marginal while travel
restrictions remain and have even been strengthened.
Other aspects of the policy rest on similarly outdated authorization. After the 1967 ruling determined that the US government could not prohibit US citizens from traveling where they desired, the US government instead moved to prohibit Americans from spending money in Cuba. In establishing a legal basis for the new restrictions, the government turned to the 1917 Trading with the Enemy Act, a World War I era document which permitted the government to control flows of money during that war. The act stipulates however, that it can only be applied in times of war or national emergency. The emergency cited was the Korean War of 1953. Twenty-nine years after this war ended, the US government redefined the state of emergency to include the perpetual state of uneasiness generated by the Cold War. No attempt has been made to justify the continued existence of this prohibition in light of a post Cold War framework.[3]
International
Treaties, Agreements and Principles
International
treaties are more explicit in their condemnation of travel restrictions. The
disadvantage of such treaties is that they are non-binding and can not be used
in a US court. However, as a member of the international community and the
United Nations, the United States is expected to abide by the laws of this
community. As a nation that hopes to serve as an example to others, it is in
its best interest to do so. Article 12 of United Nations’ International
Covenant on Civil and Political Rights, described as one of the “most
comprehensive body of laws governing human rights in existence” as well as
Article 13 of the Universal Declaration of Human Rights state that “everyone
has the right to leave any country, including his own, and to return to his
country.”[4]
In
1975, the US and Soviet Union signed the Helsinki Agreement, a document
committing both nations to protecting the right of its citizens to move freely
across borders. At the time of its signing, the document was hailed as a
breakthrough that contributed to the end of the Cold War. Moreover, US policy in dealing with nations
with which is has ideological conflict, has traditionally been to advocate
people to people interaction as a way of introducing their citizens to
America’s values and society. Travel restrictions to Cuba stand not only in
direct violation of the Helsinki Agreement, they also reflect a blatant
contradiction of the US policy of engagement and people-to-people interaction
which has been credited for supporting significant reforms in China and Vietnam
as well as the Soviet Union.[5]
Restricting the movement of citizens is an idea inherently antithetical to the
US conception of personal freedom and undermines our civil liberties. Indeed,
many Americans are shocked to hear of such practices by their own government.
As
has been seen in the recent reaction of the US to terrorist attacks, nations
that feel under threat tend to be more controlling of their population. It is
hardly surprising that Cuba, a country of eleven million people whose system
has been declared anathema by its larger neighbor, the worlds sold super power
the United States, presents a similar dynamic.
Implementation
of Policy
The office of the Treasury Department responsible for enforcing the travel ban is the Office of Foreign Assets Control (OFAC). OFAC’s main responsibility, as defined by the US Treasury Department, is to enforce economic and trade sanctions against “targeted foreign countries and terrorism sponsoring organizations.”[6] As Senator Byron Dorgan (D-ND) noted on February 11, 2002 in a Senate Appropriations Subcommittee Hearing on the US Travel Ban to Cuba, this responsibility has increased heavily since September 11. Funds that are needed to track and freeze terrorist assets are being diverted to chase “criminals” like those who testified before the committee: An elderly woman from Wisconsin who booked a biking trip in Cuba through a Canadian company, a man participating in an international game competition, and a man returning his deceased parent’s ashes to Cuba.[7]
OFAC director Richard
Newcomb has admitted that the office works under a very constrained budget with
limited personnel. Nevertheless, seven out of OFAC’s 124 employees and one
million dollars of its restricted budget are devoted exclusively to prosecuting
Americans who travel to Cuba without governmental permission. OFAC maintains an
office in Miami devoted exclusively to investigating travel violators. In
another recent Senate inquiry into the travel restrictions, Treasury Secretary
Paul O’Neill said he agreed with the opinion of the sub-committee Chairman,
Senator Byron Dorgan that US funds would be better spent looking for terrorists
than chasing Americans who visit Cuba. “If I had the discretion for applying
the resources, I would agree with you completely,” Mr. O’Neill said.[8]
Rather than subside in light
of increased security threats from the Middle East, figures indicate that fines
imposed for travel to Cuba increased from 188 in 2000 during the Clinton
administration, to 766 in 2001, the first year of the Bush administration.
While no specific 2002 figures were available during the researching of this
paper, every legal group contacted stated that requests for legal assistance
have increased substantially in the initial months of 2002. The American Civil
Liberties Union reports that it has “received disturbing reports of increased harassment
by the Treasury Department of American citizens and residents.” The Center for
Constitutional Rights, a leading legal group advocating an end to travel
restrictions, has received so many requests in recent months that it is
currently unable to take on new clients.[9]
During the Senate hearing on travel restrictions, Newcomb used the department’s limited budget to excuse an implementation process that violates many norms of American justice. According to several lawyers, requests for proof of violation are repeatedly denied to the accused and their lawyers. During the 1992 tightening of the embargo codified in the Cuba Democracy Act, Congress granted the right to an administrative hearing to anyone accused of violating the travel ban. Since that time, at least 357 people have requested such a hearing. No hearings have been held however, because OFAC has failed to hire judges to provide this service. Some people have been waiting for a hearing since 1995.
Again,
Director Newcomb blamed the office’s lack of accountability on its limited
budget: “This workload is an extremely heavy drain on finite enforcement and
legal resources.” Although OFAC claims they cannot afford to hire judges, the
Environmental Protection Agency offered to lend judges for the hearings in
1998, 1999 and 2000. The offer was ignored and the EPA stopped offering its
judges in 2001.[10]
The sum of so many
inconsistencies and violations of legal precedents can only lead one to believe
that the travel policy is being implemented with little regard for the rights
and expectations of the American people. Instead, the policy seems to be set by
the desires of a small group of ideologically convinced people who use their
authority to maintain a status quo that works to their advantage with little
consideration for the rights of others.
ARGUMENT TWO: POLICY DIMENSIONS
Support of American Majority
In refusing to alter its stance on travel to Cuba, the current administration is allowing the will of the majority to be subsumed by the political clout of a small, empowered minority. “There is no demographic section of American people in favor of keeping the travel ban,” said Ambassador Sally Cowal, founder of the Cuban Policy Foundation.[11] A survey conducted by the Cuba Policy Foundation determined that two-thirds (66.8%) of Americans believe that citizens of this country should be allowed to travel to Cuba and 38.9% said they would consider going if the ban was lifted.[12]
Even Florida based Cuban-Americans are far from unanimous in their support for different policies on Cuba. A Florida International University survey of Cuban Americans in Miami reveals a community with increasingly diverse opinions on the issue. Over 52% of those polled believe unrestricted travel from the US to Cuba should be allowed while 51% signal that they “would support a dialogue with the Cuban government.” 45% feel that politicians are not listening to the views of Cuban-Americans supporting more open relations with Cuba.[13]
Dr. Delvis Fernandez, president of the Cuban American Alliance Education Fund, is one of many Cuban Americans working to correct the notion that Cuban Americans are the cohesive pro-embargo group often portrayed. Dr. Fernandez and others are pressing for inclusion of new voices from the Cuban American community. Their work centers on convincing Cuban Americans to speak up for their rights. “Changes in attitudes among Cuban Americans towards the travel ban have been happening for a long time,” Fernandez says, “it’s only now that an effort is being made to publicize them.”
Cuban Americans are often cited as being the largest group to violate the travel ban. Dr. Fernandez estimates that between fifty to one-hundred thousand Cuban Americans – as much as ten percent of the one million Cuban Americans currently living in the US - travel to Cuba illegally each year. After forty years of living with restricted travel, Fernandez says many Cuban Americans have become blasé about defying the law. “The law is just an obstacle between you and your family,” he says. “Everyone has a connection, a way to get around it.”[14]
Human rights activists within Cuban favor an increased American presence on the island as well. Former Congressman John Brademas discovered as much on a recent visit to the island. “All Cuban religious leaders and most human rights activists such as Elizardo Sanchez, Hector Palacios, Pedro Pablo Alvarez and Manuel Cuesta Morua, to name but a few, urge a lifting of travel controls. As they put it: the more American citizens on the streets of Cuba’s cities, the better for the cause of a more open society.”[15]
Support Among Politicians
Congressman Brademas and Ambassador Cowal are but a few of the increasing numbers of the American political community whose experiences with the island have convinced them to work for change. Former President Jimmy Carter’s May 2002 trip to Cuba, during which he called on Congress to lift travel restrictions, was preceded by numerous Democratic and Republican politicians of all ranks, most of whom came away convinced that current US policy is outdated.
In recent years, majorities in both the House and Senate have voted to ease the embargo on Cuba. On July 25, 2001, the House voted by a margin of 240-186 to end enforcement of travel restrictions to Cuba on an amendment to the Treasury-Postal Appropriations bill. Republicans and Democrats in the House of Representatives have pledged to work towards lifting the travel restrictions. Many members of Congress, such as Representative Jeff Flake (R-AZ) and Senator Byron Dorgan (D-ND) are actively working to change travel regulations. The mood in the US Congress is increasingly in favor of lifting the ban, reflecting an awareness of most members of Congress of their obligation to carry out the will of the majority of their constituents.
Self-Isolationist Effect of Policy
In its attempts to isolate
Cuba from the international community, the United States has clearly emerged as
the isolated nation. The international community has repeatedly voiced
opposition to US policy towards Cuba. The United Nations General Assembly has
voted to condemn the US embargo to Cuba, of which the travel restrictions are a
central aspect, for the past ten consecutive years. In the most recent vote in
November 2001, 167 states voted against the embargo while four voted in favor
of it and four abstained.
Outdated Rationale
The geopolitical landscape has changed drastically since the end of the Cold War, while the travel ban, rationalized by Cold War security needs, has become only stronger. The collapse of the Soviet Union in the early 1990s marked the end of Soviet subsidies to Cuba. In the decade since then, Department of Defense, the Central Intelligence Agency, Department of State and the National Security Agency have each issued reports finding that Cuba does not pose a security threat to the US or the Western Hemisphere.
Counter-Argument
Those supporting continued travel restrictions argue that allowing US citizens to travel to Cuba would generate income for the Cuban government. It should be clear after forty years however, that the Cuban regime is capable of survival without American assistance and even in the face of great adversity. Ambassador Cowal described those members of Congress still supporting travel restrictions as “believing somehow that what hasn’t worked for forty years will magically work now.”[16]
Opponents also speak of a “tourist apartheid” on the island under which locals aren’t able to visit hotels or resorts that are built specifically for tourists. While this is not a laudable policy, it is hardly different from what happens across the Caribbean and in most developing countries that rely on tourism for income. These restrictions were originally imposed in Cuba to limit the growth of prostitution, which plagued the early growth of tourism. There are certainly no limits on the contacts ordinary tourists have with Cubans outside their hotels. In addition, the ability to work in the tourist sector provides Cubans with a source of hard currency and the possibility to interact with Americans and other foreigners. According to a recently published newspaper article, “The appearance of hundreds of thousands of Western tourists, and the magazines and satellite television that arrived with them, have increased local residents’ awareness of what they cannot enjoy in a still relatively closed society.”[17]
Supporters of the restrictions cite the Cuban system of collecting hard currency payments as evidence that workers do not receive direct payment for their labor. But changes are occurring rapidly in the Cuban tourist industry. As recently as 1994, tips were not recognized or accepted and employees were rewarded with non-monetary incentives. Today however, tipping is encouraged. According to David I. McMillan, President of the Canadian Venezia Hospitality International, Cubans like to work in the tourist sector because of exposure to US dollars. “Slowly,” McMillan writes, “the more typical Western approach to motivation and reward is becoming part of Cuba’s incentive systems.”[18]
Furthermore, although the state does control employee wage and compensation, employees of foreign-managed hotels earn more than their counterparts in Cuban managed hotels. Foreign investors also play a role in the negotiating stage of contract setting during which they have power to increase wage and compensation paid to Cuban workers. Employees such as bell-hops and maids are regularly tipped in dollars, which is resulting in a skewed economy in which educated persons prefer to be waiters to surgeons.
In addition, increased exchange between Cubans and Americans would have the added benefit of increasing cultural awareness between the two nations. Indeed, the idea of engagement, and people-to-people contact has been a staple of US policy towards Communist nations from Russia to China to Vietnam. The American and Cuban peoples would gain innumerable benefits from the opportunity to observe how the other approaches education, medicine, politics and art.
ARGUMENT THREE:
ECONOMIC INCENTIVES
Impact on US Economy
As more and more American business and political leaders are realizing, business in the US stands to make significant financial profit from decreased restrictions with Cuba. Allowing Americans to travel to Cuba would provide an immediate boon to the American travel industry. In economic terms, lifting travel restrictions could serve as a useful starting point for increased commercial relations between the two countries. Americans currently make up the largest group of Caribbean vacationers, and Americans visiting Cuba will demand amenities similar to those offered throughout the region.
American tourism to Cuba has strong historical roots. Before 1959, Americans made up 85% of all travelers to the island. With restrictions, an estimated 150,000 to 200,000 Americans visited Cuba in the year 2001, 60,000 of those without a license.[19] According to a 1999 interview with Cuban Tourism Minister Ibrahim Ferradaz, America was the island’s third largest source of tourism after Canada and Germany despite travel restrictions.[20] Recent government studies project that if the embargo were lifted, an additional 100,000 to 350,000 would travel to Cuba annually. Another study, conducted by the American Society of Travel Agents (ASTA) gives much higher estimates of one million visitors in the first year after restrictions and five million visitors within five years of lifted restrictions.[21] While statistics vary, it is clear that there is immense interest from the American populace in exploring what is becoming one of the world’s fastest growing tourist destinations.
Still a relatively underdeveloped industry, ample opportunity exists for foreign investment in Cuban tourism. US companies such as travel agencies, airlines, hotels, construction companies, cruise companies and agricultural exporters stand to benefit from open access to this area. In addition, a sharp increase in Americans traveling to Cuba will increase demand on the island for basic products and foodstuffs of American origin. This could boost raw and processed food sales to the island, a fact well-known among US farmers who estimate that US farmers lose up to 1.24 billion dollars annually from lost sales to Cuba.[22]
Cuba’s growth in this sector through the 1990s illustrates its potential as a leading tourist destination. As the table below illustrates, the number of international visitors to the island quintupled from 1990 to 2000, reaching a total of 1.7 million visitors.[23] This was achieved without legal participation from the principle country of origin for tourists to the Caribbean – the United States. In that time, revenue from the tourist sector increased from 1.3% of GDP in 1990 to 14.2% in 1999, helping Cuba move from capturing a mere 2% of international visitors to the Caribbean in 1990 to 9.3% in 1999.[24]
|
Year |
Tourist Arrivals (Reported By Cuba) |
Tourist Arrivals (WTO) |
|
2001 |
1.85 million to 1.9 million to 2.0 million |
|
|
2000 |
1,774,000 |
1,772,488 |
|
1999 |
1,602,781 |
1,561,000 |
|
1998 |
1,415,832 |
1,390,000 |
|
1997 |
1,170,083 |
1,153,000 |
|
1996 |
1,004,336 |
999,000 |
|
1995 |
745,495 |
742,000 |
|
1994 |
619,218 |
617,000 |
|
1993 |
546,023 |
544,000 |
|
1992 |
460,610 |
455,000 |
|
1991 |
424,041 |
418,000 |
|
1990 |
340,329 |
327,000 |
|
1985 |
250,000 |
240,500 |
Source: US Trade and Economic
Council (Tourist arrivals reported by the Madrid, Spain-based World Tourism
Organization (WTO), of which the government of the Republic of Cuba is a
member, and by the Ministry of Tourism of the Republic of Cuba)
Part of this growth is due to a change in the Cuban Constitution in 1995 that granted 100% ownership to foreign companies in joint-ventures on the island (Up from the 49% cap established in 1982.) The past five years have seen a dramatic increase in the number of joint-ventures between the Cuban government and foreign companies. Joint-ventures operating in Cuba jumped from 20 to 398 between 1991 and 2001, with a substantial portion of these investments in the tourist sector. Cuba’s top three foreign investors are currently Spain (23%), Canada (19%) and Italy (15%). These countries have made significant inroads into the Cuban market by building hotels, resorts and airports.[25]
As the Cuban tourist industry grows, US companies are losing out to these foreign investors. Business groups in the US are growing impatient with lost economic opportunities stemming from the unilateral sanctions of the US embargo and the US embargo on Cuba. US Chamber of Commerce president Thomas Donahue was recently quoted after a three-day visit to Cuba: “We’re saying on behalf of the American business community that it’s time to look at this another way. Who does well there? It’s the Canadians, the Germans the French, the Italians. All of our friends. . . .We need a new approach.”[26]
Caterpillar America Co., the leading US exporter of constructions equipment, has recently conducted an investigation into unilateral embargos and has come out against such practices. Several US companies, that asked not to be identified, affirmed that they would like to start training people or developing plans for future investment in Cuba once the embargo is lifted. At a recent conference on US-Cuban policy in Miami, Florida, it was suggested that Burger King already has two entire buildings in a warehouse in Miami ready to be shipped to Havana and assembled.[27] Puerto Rico, with one-third the population of Cuba has over one-hundred Burger King restaurants.[28]
Such enthusiasm is not unfounded. Tourism grew at an estimated 19% annual rate through the 1990s (Reuters, Frank) and foreign companies filled the need for growing infrastructure to accommodate visitors. International quality hotel rooms, numbering just 12,900 in 1990 nearly tripled to 35,000 in 2000. Cruise ship dockings are increasing and nearly $12 million has been committed for dock renovations throughout the country. Master Card, Visa and American Express credit cards are permitted to be used in Cuba by persons not subject to US law. In 1996, Visa charges exceeded $180 million dollars and Mastercard $85 million.[29]
Specific industries stand to gain from travel related development in Cuba. Sixty-one international air carriers currently offer regular or charter service to and from Cuba while thirty-one international carriers have offices in the country. While the US government allows limited charter airline service from Miami, New York and Los Angeles, opening the market could bring substantial gains to the US airline industry. According to the US Trade and Economic Council, SH&E, the largest aviation consultants in the world, estimate that travel from the US to Cuba could reach 5.2 million passengers a year; bringing the economic impact on airlines to nearly US$1 billion. The same group sees a potential for up to US$2 billion in aircraft sales to Cuba.[30]
Losses to the US economy as a result of losing out on possible investment opportunities range from the conservative estimate of the International Trade Commission of $1 billion yearly to the Florida International University report which concludes the state of Florida alone is losing $1 billion.[31] According to a specialist in the tourism program at New York University, now is the perfect time to begin investing in Cuba. Current investment in Cuba is occurring at a huge loss to the United States, but it’s not too late to join in. Because of Cuba’s size, pristine location and friendly populace it has amazing growth potential.[32]
Economic necessity seems to be pushing the Castro administration towards further openings of the sector as well. Government operated tourism programs in Cuba are currently undergoing a drastic marketing transition program which will allow well-known foreign companies to use their brand name on the island. Hoping to attract a more affluent demographic of tourists, the move will soon allow companies already operating in Cuba, such as France’s Club Med or Jamaica’s Sandals to operate under their world-class brand name.[33]
The rumblings of business activity and preparation by American businesses for a time when they can tap in to Cuba’s growing market will be ignored by politicians only to their own detriment.
Impact on Cuban Economy
With estimates of as many as one million US travelers within the first year of legal travel, it is doubtful that Cuba would have the necessary infrastructure to handle such an influx. For this reason many tourists would have to stay in private homes, fueling the country’s limited private establishments and providing a more widely distributed source of dollars to the average Cuban. This could have the positive effect of lessening the growing divide between Cubans that receive remittances from relatives in the US and those who do not.
A system is already at work in Cuba through which tourists may stay in the homes of Cubans who have received a government license to house such guests. This licensing system provides much needed tax revenue to the government. Whereas profits from joint-ventures must be shared with the foreign operator, one-hundred percent of these funds remain in the Cuban economy While not appealing to all travelers, it is an appropriate option for low budget travel and visitors interested in learning about daily life in Cuba.
The broadening and development of such a system might be a positive way of dealing with increased tourism while distributing the benefits of tourism and providing a source of hard currency to Cubans not directly connected to the tourism industry. A similar system exists in Ireland where the Irish tourism boards support the bed and breakfast sector of the economy.
Impact on Caribbean Economy/Tourist
Industry
Cuba is the largest island in the Caribbean. It is largely underdeveloped and remains in pristine condition, offering ample opportunities for development. Open access to Cuba will undoubtedly divert travelers from destinations that currently benefit from the exclusion of Cuba as an American destination. Initial investigations suggest that this will have no large overall effect on the economies of other destinations. Within the US, it would have a limited effect on tourist agencies that specialize in travel to other Caribbean islands. This problem could easily be overcome through product diversification.
CONCLUSION
The above argument should serve to
illustrate that current US policy on travel to Cuba lacks a logical or
defensible framework in legal, political and economic terms. A majority of US
citizens from all backgrounds clearly support a lifting of restrictions as do
powerful elements of the business community. Increasingly, members of the
political community are leaving behind the four decades of ideological baggage
the issue has attained though the years. It is now up to the US Congress to
decide if and when the travel restrictions will end.
NOTES