Can they happen?
By Peter Quinter
Since I first moved to Florida in 1981, worked as an attorney at U.S. Customs in 1989, and been a private attorney for one of the largest law firms in Florida since 1994, I have been intrigued by the international relations between the United States and Cuba. Finally, in May 2015, I visited the island for the first time as the Chair of the Florida Bar’s International Law Section to see for myself. I have a much better understanding of the dynamics than before, and plan to return to Havana in the coming weeks.
Before exploring if and when there will be regularly scheduled commercial flights between the United States and Cuba, a brief history is necessary.
An embargo was first imposed by the United States on Cuba on October 19, 1960 when the U.S. placed an embargo on exports to Cuba except for food and medicine after Cuba nationalized American-owned Cuban oil refineries without compensation.
Currently, the Cuban embargo is enforced mainly through six statutes: the Trading with the Enemy Act of 1917, the Foreign Assistance Act of 1961, the Cuban Assets Control Regulations of 1963, the Cuban Democracy Act of 1992, the Helms–Burton Act of 1996, and the Trade Sanctions Reform and Export Enhancement Act of 2000.
The stated purpose of the Cuban Democracy Act of 1992 is to maintain sanctions on Cuba so long as the Cuban government refuses to move toward “democratization and greater respect for human rights. International relations between the United States and Cuba basically remained static from the implementation of the Cuban Assets Control Regulations on July 8, 1963 until the change in policy toward Cuba announced by President Obama on December 17, 2014.
Under the Trading with the Enemy Act of 1917, the Cuban Assets Control Regulations, codifed at 31 C.F.R. Part 515, are regulations enforced by the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC). The Obama Administration implemented significant changes to the Regulations effective December 17, 2014.
Until that date, virtually all trade, travel, and financial transactions between U.S. persons and U.S. companies and Cuba required the submission to and approval of a specific license by OFAC.
Few licenses were approved.
The new OFAC and United States Department of Commerce’s Bureau of Industry and Security (BIS) regulations which were again amended on January 16, 2015 “to further engage and empower the Cuban people” allowed, for the first time in over 50 years, Americans to travel to Cuba without any prior U.S. Government review and approval.
There are now twelve (12) approved categories of travelers to visit the island. The list of exceptions is great, and basically allows Americans to travel to Cuba for any reason other than tourism.
The result has been a huge increase in the number of Americans traveling directly to Cuba (as opposed to the previously illegal means of transiting another country to get to Cuba).
Hundreds of thousands of people previously traveled from the United States to Cuba until the late 1950s, and already in 2015 without commercial service, hundreds of thousands of Americans are traveling to Cuba to join the rest of the world which long ago had terminated any trade or travel restrictions with Cuba.
As part of the January 15, 2015 amended OFAC regulations is 31 CFR 515.572. That new section gives the legal authority to airlines to fly to Cuba without the need for a specific license from OFAC.
Having regularly scheduled, commercial service to Cuba directly from the United States does not require approval by the United States Congress. Moreover, it merely formalizes what is already practically in effect.
Under the current law, U.S. airlines are still not allowed to sell tickets for Cuba flights, but they can operate the aircraft.
U.S. owned and operated airlines such as JetBlue and American have teamed up with charter companies to sell seats.
Everything but the name on the ticket is normal.
If you fly from Miami to Havana, you may fly on a plane that has emblazoned on it “American Airlines”, your ticket is issued at the ticket counter of American Airlines, the pilots and crew are in American Airlines uniform, etc.
Having regularly scheduled, commercial service from the United States to Cuba is the next logical step in the Obama Administration’s objective “to further engage and empower the Cuban people” and “to promote democracy and humnan rights in Cuba by easing travel restrictions”.
With the removal of Cuba as a sponsor of worldwide terrorisim, with the mutual opening of Embassies in Washington, D.C. and Havana, with the increasing nubmer of Americans traveling to Cuba, with more charter flights from different U.S. cities flying non-stop to Cuba, it is my opinion that it is only a matter of time before we see regularly scheduled, commercial service between the United States and Cuba.
Attorney Peter Quinter is Chair of the Customs and International Trade Law Group at Florida-based law firm GrayRobinson.
Note: the opinions expressed in Cuba Journal Op-Eds are those of the author and do not necessarily reflect the views of the Cuba Journal.