Blockade on Cuba. Yesterday´s and today´s regulatory framework

New York, January 20th, 2022. The economic, commercial and financial blockade imposed for 60 years by the U.S. government against Cuba is based on laws and regulations that remain in force even in the 21st century.

In addition to the well-known Presidential Proclamation 3447 of February 3rd, 1962, which proclaimed the total "embargo" on trade between the United States and Cuba, in compliance with section 620 (a) of the Foreign Assistance Act, there is another group of legislations and administrative provisions that establish the policy of the blockade, which are detailed below:

  • Trading with the Enemy Act of 1917(TWEA): its section 5 (b) delegated to the chief executive the powers to apply economic sanctions during a time of war or any other period of national emergency and prohibited trade with the enemy or allies of the enemy during wartime. Cuba is the only country against which the TWEA statutes remain in force. In September 2021, President Joseph Biden took up the measures against Cuba pursuant to this law.
  • Foreign Assistance Act (1961): It authorizes the President of the United States to impose and maintain a total "embargo" on trade with Cuba and prohibits the granting of any aid to the Cuban government.
  • The Department of the Treasury's Foreign Assets Control Regulations (1963): Issued under the Trading with the Enemy Act, they stipulate, interalia, the freezing of all Cuban assets within the jurisdiction of the United States; the prohibition of all financial and commercial transactions, unless they were granted a license; the prohibition of exporting Cuban commodities to the United States; the prohibition, to any natural or legal person from the United States or third countries, to conduct transactions in US dollars with Cuba.
  • Export Administration Act (1979): Section 2401 (b) (1) "National Security Controls", "Policy toward Certain States", sets forth the Commerce Control List. Cuba is included in such list.
  • Export Administration Regulations (EAR, 1979): They establish a general policy of denial of licenses for exports and re-exports to Cuba.
  • Cuban Democracy Act or Torricelli Act (1992): It prohibits foreign-based subsidiaries of U.S. companies from trading with Cuba or Cuban nationals. It prevents ships from third countries that enter in a Cuban port from entering U.S. territory within 180 days, except for those licensed by the Secretary of the Treasury.
  • Cuban Liberty and Democratic Solidarity Act or Helms-Burton Act (1996): It codifies the provisions of the blockade and broadens its extraterritorial scope by imposing sanctions on foreign company executives who conduct transactions with nationalized property in Cuba and grants the possibility of filing lawsuits in US courts.
  • Section 211 of the Emergency Security Supplemental Appropriations Act, for the fiscal year 1999: It prohibits U.S. courts from recognizing the rights of Cuban companies over trademarks associated with confiscated properties.
  • Trade Sanctions Reform and Export Enhancement Act (2000): It authorizes the export of agricultural commodities to Cuba, conditioned upon upfront cash payment and without U.S. financing. It prohibits U.S. citizens’ travel to Cuba for tourist purposes by defining "tourist activity" as any activity related to travelling to, from, or within Cuba which is not expressly authorized under section 515.560 of Title 31 of the Code of Federal Regulations. It limits travel to the 12 categories authorized at the time this legislation was enacted.

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