What Is The Process For Removing Cuba From The List Of State Sponsors Of Terrorism?
/In 1987, the Export Administration Act (EAA) included the requirement for an annual list of state sponsors of terrorism by the United States Department of State (U.S. Code, Title 22, Sec. 2656f).
From Congressional Research Service (CRS): “In December 2014, the President announced he would proceed over the coming months to reestablish diplomatic relations with Cuba and ease those diplomatic and economic restrictions he could, while anticipating Congress could engage in a review of sanctions codified in permanent law. At the same time, the President announced that the State Department had begun a review of Cuba’s designation on the state sponsors of terrorism list. On April 14, 2015, the President sent a message to Congress to certify that “the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future.” This met the requirements of the statutes that form the terrorist lists; Cuba’s designation was removed on the 45th calendar day following the announcement (May 29, 2015), as the laws provide.”
“Removal from the Lists: Statutory Requirements. Each of the three statutes has some unique aspects to its construction, but all three have in common two possible paths for removing a foreign government from designation. The first possible option is that the President certifies and reports to Congress that(i) there has been a fundamental change in the leadership and policies of the government of the country concerned;(ii) that government is not supporting acts of international terrorism; and iii) that government has provided assurances that it will not support acts of international terrorism in the future. In the case of the ECA, the President notifies the Speaker of the House, Chairpersons of the House Committees on Foreign Affairs, and on Banking, Housing, and Urban Affairs, and Chairpersons of the Senate Committees on Banking, Housing, and Urban Affairs, and on Foreign Relations that such changes have occurred. The FAA’61 and AECA require the President to notify only the Speaker and the Foreign Relations Committee Chairperson. The second possible option the statutes offer is that the President, 45 days before a rescission takes effect, certifies to congressional leadership (as identified in the first option) that(i) the government concerned has not provided any support for acts of international terrorism during the preceding 6-month period; and(ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future. There is no reporting requirement to notify Congress that the clock has started ticking on the six-month period of changed behavior of the designated government. In past instances of delisting a foreign government, the Secretary of State has published a notice that the designation is under review, but the law does not require this advance notice beyond the 45-day requirement prior to issuing a rescission.”
Congressional Research Service (CRS)
Can Creditors Enforce Terrorism Judgements Against Cuba"? (29 September 2015)
Suits Against Terrorist States by Victims of Terrorism (8 August 2008)
Cuba and the State Sponsors of Terrorism List (22 August 2006)
Baker & McKenzie
Chicago, Illinois
12 January 2020
“On January 11, 2021, the US State Department published a press release announcing Cuba’s designation as a State Sponsor of Terrorism (“SST”) for allegedly providing support for acts of international terrorism in granting safe harbor to terrorists. Cuba was originally designated as an SST in 1982 but was delisted in 2015 by President Barack Obama.
Legal Implications of the SST Designation
Cuba’s SST designation triggers the following sanctions and restrictions:
A licensing requirement for exports or reexports of goods or technology that could significantly enhance Cuba’s military capability or ability to support terrorism;
A prohibition on exports and reexports to Cuba of defense articles and defense services and related technology under the International Traffic in Arms Regulations;
A requirement for the United States to oppose loans to Cuba by the World Bank and other international financial institutions;
A prohibition on any assistance to Cuba under the Food for Peace, Peace Corps, and Export-Import Bank programs;
A prohibition on US Persons (i.e., entities organized under US laws and their non-US branches; individuals and entities physically located in the United States; and US citizens and permanent resident aliens, wherever located or employed) from engaging in financial transactions with the Cuban government without a license from the Treasury Department’s Office of Foreign Assets Control, under the Terrorism List Governments Sanctions Regulations; and
An exception to sovereign immunity that would allow individual US Persons to bring claims against the Cuban government in US courts for personal injury and death resulting from terrorism or material support for terrorism.
The legal implications of Cuba’s SST designation are likely to be limited. Many of the above activities have remained prohibited by US sanctions or export controls even after Cuba was delisted as an SST in 2015. For example, an SST designation normally triggers a change under the Export Administration Regulations to claim US jurisdiction over non-US items that incorporate more than 10% controlled US content rather than the 25% de minimis threshold used for most other countries. However, the Trump Administration imposed the 10% de minimis threshold on Cuba in October 2019 (see here) even though Cuba was not then an SST.
Cuba’s SST designation may lead to increased scrutiny for US-listed companies if they engage in dealings with Cuba. Specifically, the Office of Global Security Risk (“OGSR”) within the US Securities and Exchange Commission may periodically request information from US-listed companies regarding material dealings with SST countries if such dealings have not been previously disclosed in a company’s regular annual and quarterly filings. Accordingly, US-listed companies that receive OGSR inquiries can now expect them to ask about Cuba transactions.”
50 U.S.C.
United States Code, 2009 Edition
Title 50 - WAR AND NATIONAL DEFENSE
TITLE 50 - APPENDIX-WAR AND NATIONAL DEFENSE
EXPORT REGULATION
Sec. 2405 - Foreign policy controls From the U.S. Government Publishing Office
§2405. Foreign policy controls (a) Authority
(1) In order to carry out the policy set forth in paragraph (2)(B), (7), (8), or (13) of section 3 of this Act [section 2402(2)(B), (7), (8), or (13) of this Appendix], the President may prohibit or curtail the exportation of any goods, technology, or other information subject to the jurisdiction of the United States or exported by any person subject to the jurisdiction of the United States, to the extent necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations. The authority granted by this subsection shall be exercised by the Secretary, in consultation with the Secretary of State, the Secretary of Defense, the Secretary of Agriculture, the Secretary of the Treasury, the United States Trade Representative, and such other departments and agencies as the Secretary considers appropriate, and shall be implemented by means of export licenses issued by the Secretary.
(2) Any export control imposed under this section shall apply to any transaction or activity undertaken with the intent to evade that export control, even if that export control would not otherwise apply to that transaction or activity.
(3) Export controls maintained for foreign policy purposes shall expire on December 31, 1979, or one year after imposition, whichever is later, unless extended by the President in accordance with subsections (b) and (f). Any such extension and any subsequent extension shall not be for a period of more than one year.
(4) Whenever the Secretary denies any export license under this subsection, the Secretary shall specify in the notice to the applicant of the denial of such license that the license was denied under the authority contained in this subsection, and the reasons for such denial, with reference to the criteria set forth in subsection (b) of this section. The Secretary shall also include in such notice what, if any, modifications in or restrictions on the goods or technology for which the license was sought would allow such export to be compatible with controls implemented under this section, or the Secretary shall indicate in such notice which officers and employees of the Department of Commerce who are familiar with the application will be made reasonably available to the applicant for consultation with regard to such modifications or restrictions, if appropriate.
(5) In accordance with the provisions of section 10 of this Act [section 2409 of this Appendix], the Secretary of State shall have the right to review any export license application under this section which the Secretary of State requests to review.
(6) Before imposing, expanding, or extending export controls under this section on exports to a country which can use goods, technology, or information available from foreign sources and so incur little or no economic costs as a result of the controls, the President should, through diplomatic means, employ alternatives to export controls which offer opportunities of distinguishing the United States from, and expressing the displeasure of the United States with, the specific actions of that country in response to which the controls are proposed. Such alternatives include private discussions with foreign leaders, public statements in situations where private diplomacy is unavailable or not effective, withdrawal of ambassadors, and reduction of the size of the diplomatic staff that the country involved is permitted to have in the United States.
