On April 17, 2019 in Miami during the 58th anniversary of the ill-fated Bay of Pigs invasion, National Security Advisor John Bolton announced significant White House policy changes with regards to Cuba. Earlier in the day, Secretary of State Mike Pompeo announced that the waiver for Title III of the Helms-Burton Act would be allowed to lapse, making way for Cuban-born US citizens to sue companies using their former property appropriated by the Cuban government after the Revolution. Bolton followed that up by announcing a few hours later that US citizens would only be allowed to travel to Cuba in order to visit family members. Few details for how this policy will play out have been provided, so below I’m outlining what I know, and what I think the impact might be for future travel to Cuba by US citizens.
Are US citizens allowed to visit Cuba right now?
As of April 17, under rules established by the Department of the Treasury’s Office of Foreign Assets Control (OFAC), US citizens can only visit Cuba under one of 12 approved categories: The 12 categories of authorized travel to Cuba are: family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or informational materials; and certain authorized export transactions. Legally, US citizens cannot visit Cuba as simple tourists.
I recently visited Havana on a cruise with Norwegian Cruise Lines through a group people-to-people visa. CLICK HERE to read my guide for wheelchair users who would like to visit Havana while they are still able.
Why are US citizens restricted from visiting Cuba?
The United States has a difficult history with Cuba, which is a communist country. The US maintains an embargo (basically, strict economic sanctions) against Cuba as a way of punishing the country for things like human rights violations and lack of basic freedoms, as well as a way to motivate Cuba to move towards a free market economy. The US government restricts travel to Cuba as a way of keeping US tourist dollars from going towards the Cuban government.
Why were US citizens allowed to start visiting Cuba in 2015?
Former President Barack Obama felt that decades of American policy towards Cuba had been ineffective, so he sought ways to normalize diplomatic relations between our two countries. In a move that was regarded as highly controversial, Obama reestablished diplomatic ties with the Cuban government and opened up somewhat limited travel to US citizens after decades of severe restrictions.
How is it legal to visit Cuba?
In 1996, Congress passed the Helms-Burton Act, which basically codified the embargo and all of the policies that had been in effect for decades regarding restrictions on trade and travel with Cuba. However, the Act itself was controversial, and many members of Congress didn’t agree with certain sections of it. The most problematic section was Title III, which allows US citizens born in Cuba to sue entities using property in Cuba formerly owned by private citizens, then appropriated by the Cuban government after the Revolution. Subsequent presidents and members of Congress have recognized that Title III is problematic for diplomacy and international trade, so they included a provision that would allow the president to waive Title III every six months. This waiver is what allows US citizens to travel to Cuba, as well as US companies to do business with Cuba in certain circumstances — like cruise lines and airlines.
What is changing now?
The last waiver of Title III was made by President Trump in February 2019, but instead of a six month waiver, he only waived the section for 45 days. During this time, he said he would discuss with the Department of Justice what to do about the Helms-Burton Act, and if they wanted to shift policy. In collaboration with the Department of Justice, President Trump decided he would allow the 45 day waiver to lapse on May 2, which means that for the first time since the Helms-Burton Act went into effect, Title III will be fully enforced.
Why was the policy changed?
For several reasons. First, Trump has been wanting to go harder on Cuba since his election, and has been eager to roll back most, if not all, changes that former President Obama made to loosen restrictions. Trump is also anxious to appease the Cuban exile community, which forms part of his base of supporters. Finally, Venezuela is currently in the midst of a severe political, economic, and humanitarian, crisis. Since Cuba and Venezuela have an extremely close economic and political relationship, Trump feels this is a good way to punish Cuba for assisting Venezuela.
What does the new Cuba policy entail?
The enforcement of Title III is rather specific with the rights it grants to Cuban-born US citizens. A little while ago, the US government started enforcing some aspects of Title III, which allows lawsuits against companies who are using property in Cuba that used to be owned by Cuban citizens. After the Revolution, the Cuban government appropriated and nationalized almost all private property, including land and buildings. In the decades since, several companies have started using those properties and buildings to run their business in Cuba, including major hotel chains owned by companies in Europe and Canada. The new policy would allow these US citizens to sue those Canadian and European — and in some cases American — companies using property and buildings that used to belong to them before the Revolution.
Are these lawsuits expected to be successful?
Absolutely not. Not many acknowledge the substance of these lawsuits, and neither the Cuban government or any of these companies are expected to provide any sort of compensation to the plaintiffs. Somewhat tongue in cheek, the Cuban government says it’s happy to provide compensation once the United States government repays the Cuban government hundreds of billions of dollars in damages as a result of the embargo. However, thousands of lawsuits are still expected to be filed, which could cause quite the clog in the international and US court system. Canadian and European companies are also considerably incensed at the impact this will have on their business and international trade agreements.
What else has changed with regards to Cuba policy?
The White House has also stated that US citizens will only be allowed to travel to Cuba in order to visit family members living on the island. It has also restricted remittances to the island to $1000 per person once a quarter. The U.S. Treasury Department also will suspend Obama-era authorizations that allowed Cuban companies and banks to perform “U-turn” transactions in third countries that passed indirectly through the U.S. banking system.
When will these changes take effect?
The full implementation of all sections of the Helms-Burton Act is due to begin on May 2. It is unclear exactly when and how this will impact US travelers (more below). As for the new travel restrictions, Collin Laverty, president of Cuba Educational Travel, which organizes cultural and university trips to Cuba, told the New York Times, “I have spent the day on the telephone with current and former State and executive branch officials and industry and policy experts, and nobody knows what the actual restrictions are.” Also, no one knows for sure when they will go into effect, or if existing travel reservations by people with no family members in Cuba will be honored or reimbursed.
For the record, legislation is not required for this new travel policy to take effect. Former President Obama lifted travel restrictions with an executive action called a Presidential Policy Directive, and President Trump will impose new restrictions the same way. The Treasury Department and its Office of Foreign Assets Control will be responsible for rewriting its rules and enforcing them. The last action Trump took to strengthen restrictions against Cuba was a National Security Policy Memorandum in June 2017. Although the memorandum indicated that relevant agencies should begin enforcing those changes within 30 days of the memorandum’s publication, the true effective date was in November 2017.
How are US cruise lines and airlines affected by these changes?
And that is the $64,000 question. Leading up to the easing of travel restrictions between the United States and Cuba, US airlines and cruise lines were legally allowed by the Treasury Department to negotiate with the Cuban government. This was a long, complicated, and difficult process, much of which was facilitated by the Title III waiver. Obama approved US cruises to Cuba in 2015. Florida-based Carnival Cruise Line announced during Obama’s historic trip to Cuba in March 2016 that it would begin cruises to Cuba starting May 1. Currently, there are roughly a dozen major cruise lines that visit Cuba (including Carnival, NCL, Royal Caribbean, and Holland America) and several smaller expedition-style tour operators. in 2018, the Department of Transportation awarded Cuba flights to American Airlines, Delta, JetBlue, Southwest, and United.
Cruise lines have the more severe potential to be affected by the policy change for the most unusual reason. Cruise ships stop in several different Cuban ports of call, but the most popular one is Havana. The portion of the Port of Havana where cruise ship dock was owned by a Cuban citizen prior to the Revolution. The legal heir is a US citizen who lives in England, and the United States government knows him as certified foreign claim number CU-2492. According to the US Department of Justice’s Foreign Claims Settlement Commission, Behn is the rightful owner of Havana Harbor, which was taken from Behn’s family when the socialist government nationalized property without compensation. If (or when) Title III is fully enforced, cruise lines using Havana Harbor can be held liable under US law.
This being said, Pedro Freyre, chairman of international practice at Akerman LLP, a major Miami law firm, told the Washington Post that although the State Department said there would be “no exemptions” for lawsuits against Cuba investments, the law contains a cutout for technology and travel-related business that would appear to exempt US airlines and cruise ships traveling to Cuba. However, the more immediate impact would be economic, as only US citizens with relatives still in Cuba could legally fly or cruise there. Demand for flights and cruises from the US to Cuba could significantly drop, resulting in fewer flights and revised sailings to avoid economic losses.
Of course, this is just discussing what the impact would be simply from enforcing Title III of the Helms-Burton Act. This doesn’t take into account any executive orders or separate policies President Trump might enact to punish Cuba. It was former President Obama who allowed US cruise lines to start revisiting the island in 2015. President Trump could just as easily prohibit both US airlines and US cruise lines from visiting Cuba at all if he so chooses.
What are cruise lines saying?
Here’s the latest from Travel Market Report:
“We’re reviewing the recent statements to evaluate their impact on our guests and our company. For now, we are sailing our Cuba itineraries as scheduled and will keep our guests updated if anything changes,” Royal Caribbean Cruises Ltd. Director of corporate reputation Melissa Charbonneau told TMR.
Norwegian Cruise line is “closely monitoring recent development with respect to U.S.-Cuba travel,” a spokesperson told TMR. “At this time no new regulations have been issued and accordingly, the Company’s itineraries which include Cuba as a destination will continue as scheduled.”
A Virgin spokesperson told TMR that while “At this time there are no changes to travel policies for cruises sailing to Cuba” the line will continue to monitor Cuba travel policies and we will update our Sailors if there are any changes.”
I have a flight/cruise booked to visit Cuba. Should I worry?
As of right now, the White House has not provided any details on how it will implement this new policy with regards to travel restrictions to Cuba. As such, it’s unlikely that cruise lines or airlines will have any solid information to provide just yet. If you are using a travel agent, which I always highly recommend, I would get in touch with him or her to make sure they are following this issue — which I’m sure they probably are. If you are not using a travel agent, most likely you will receive an email from your airline or your cruise line with information about how this policy change may or may not affect your future travel plans. Major policy changes like this tend to be slow to implement. Nothing is guaranteed, and technically airlines and cruise lines can be told to stop going to Cuba with a presidential order. However, there is currently no indication this will happen. If you have questions or concerns about potential cancellations or how you might be compensated, check with your airline, cruise line, or travel insurance policy.
How long will this policy be in place?
Given that this is a political decision, that is anyone’s guess. It may be once President Trump is no longer in office if his successor decides to reverse it, or Trump himself might amend the policy due to economic or political pressures placed upon him down the road. We would also be remiss in eliminating the Cuban government from this decision-making process. Even if this policy aims to be reversed down the road, the Cuban government may choose to not allow US airlines to land in Cuba or US cruise ships to dock at Cuban ports. As I mentioned before, US–Cuba relations have historically been difficult and complicated, as well as unpredictable.
This blog post will be updated as more detailed information becomes available from the US government and the travel industry.