Vital Interests: Can you give us your insights on what the situation in Cuba is at the moment?

Pedro J. Martinez-Fraga: It's a dreadful situation because of the continuation of a sixty-year failed policy based on the USA’s embargo. History teaches us that embargoes rarely work and the Cuban experience is a very dramatic example of an embargo that has not worked for sixty years. The embargo was first put in place by President Kennedy with the aspiration that, somehow, this economic hardship would lead to regime change in Cuba.  It did not. Instead, the Soviet Union physically, politically, and ideologically occupied this hemisphere. The Castro dictatorship became the darling of the liberal intellectuals who characterized the Cuba-U.S. confrontation as a David and Goliath romantic duel. Nothing was farther from the truth, and the embargo failed.

This policy was coupled with the Bay of Pigs fiasco - a failed effort to bring about regime change by military force through CIA interdiction rather than an open, democratic opposition type of challenge to an illegitimate, non-constitutional regime. The Bay of Pigs disaster further bolstered the Castro dictatorship and fueled the David and Goliath myth.  Dictator Castro went on to become the leader of the “Non-Aligned Nations” while the Soviet Union invaded Cuba’s non-aligned brethren Czechoslovakia.  

This embargo continues to inflict economic hardship but only on the people of Cuba and not on the regime.  It weakens Cuba’s institutions, and it further enshrines a non-democratic, tyrannical government that systematically disrespects human rights. The regime assaults democracy, violates every single principle that we in the United States purport to hold dear. 

The Trump administration has reversed what I thought was a very progressive, insightful, and historically sound policy that the Obama administration sought to implement.  It was an opening of Cuba. The idea was to empower the Cuban population by moving the island closer to a market economy. Change would then be just an inevitable matter of time.

There was a time when the United States did not recognize the People's Republic of China, a country with a significant percentage of the entire global population. We engaged in the fiction that Taiwan was China.  It was an inconceivable proposition, just consider basics such as economic scope, population, landmass, history, and physical geography. We finally came to our senses. 

There was a time when we also refused to recognize Vietnam, when we refused to recognize the Soviet Union, and on and on until in each case reality set in. 

In the interim our democratic values were compromised. We have to understand that we now live, more than ever, in a model of interdependence and not independence, where social issues and global problems are such that they only can be meaningfully addressed by the entire community of nations.

We have little Cuba 90 miles away from the mainland of the United States’ southernmost point, and we are still engaging in the type of backwards thinking that it does not exist and we should just have this harsh embargo that only hurts the Cuban people and not the regime. We cannot have open trade with Cuba and we will punish those who do even if it leads nowhere.  All that does is shorten the life expectancy of the Cuban people and perpetuate the regime.  It reminds me of a phrase that the former President of Mexico, President López Portillo, uttered but, of course, referring to Mexico; “Poor Mexico, so far from God and so close to the United States.” The same is true here: poor Cuba, so far away from God, and just 90 miles from the United States.

Something that does not work for a reasonable period of time, let alone 60 years, has to be understood as a failed policy. Sixty years is an extraordinary period of time for the perpetuation of a failed experiment. Raúl Castro is still very much in power.  There still remain other octogenarians ruling the island. The people of Cuba have no dreams to follow, no realistic aspirations to pursue, other than another generation of poverty and restrictions, coupled with a want of all fundamental freedoms. 

The reality is that the best environment for regime change is when you have created within the State a ruling economic class that can make demands on government. But without trade, without economic liberties, without an economic footing equal to that of other nations, that social strata cannot develop. There will thus remain the deficit of an entrepreneurial class that can make demands on the State for legislation, for policies that are better, that create opportunities – that kind of accountability will never come into being. It has not happened in Cuba and it will not take place so long as we continue to take this narrow-minded, and repressive approach.  Gunboat economics simply does not prosper.

This approach, intentionally starving a country in this way, creating a situation pursuant to which the U.S. is systematically impoverishing the citizens of an entire nation, and really having the de facto effect of perpetuating a totalitarian, nondemocratic regime, constitutes a very significant human rights violation.  

It is critical in its effects.  The responsibility for implementing and prosecuting a policy that causes the life expectancy of an entire national population to decline and that has the most detrimental effects on those who are weakest in society (children and the elderly), should be proportional to its effects.  

President Trump needs to be held accountable for those human rights violations. Our country is engaging in egregious human rights violations within Cuba by continuing to have these sanctions imposed, systematically and deliberately continuing to impoverish the Cuban people, and continuing to support an oppressive, totalitarian regime.

VI: The embargo generally prohibits any kind of foreign investment into Cuba, what in fact are the full range of American sanctions?

Pedro J. Martinez-Fraga: The embargo really covers the entire alphabet. The Cuban government itself distributes all commodities and resources within the State for political reasons.  It does so, even with respect to items such as medicine, based on political expediency. There is no accountability for any exceptions to the embargo. Not that there are many and not that they are great, and not that they are meaningful in any significant way.  But the Cuban government controls everything without accountability. Really, where we are is a very sad place that offers no tomorrow.

VI: The motivation behind the embargo sixty years ago, during the Kennedy administration, was regime change. Is the reason the Trump and previous administrations maintain sanctions on Cuba primarily to please certain political factions such as the anti-Castro groups in Florida?

Pedro J. Martinez-Fraga: I try to shy away from oversimplifications, but there are a couple of propositions in your question that really are unassailable. First, is this a politically motivated embargo? The answer has to be unequivocally “yes.” How can it not be? It is certainly not “a cause and effect” embargo that seeks to bring about change. There has not been any change in sixty years with this policy. There is absolutely no factual basis from which any reasonable person may infer that change now somehow will ensue.  It is not going to happen. But we do not know what will happen. Life expectancy will continue to decline and infant mortality shall increase.

The Trump administration is manipulating a very important constituency in Florida, which is a critical swing state. A state that more than once now in recent elections has decided who sits in the White House. The administration is playing with nostalgia. They are playing with ignorance, in an effort to garner votes. 

The Trump administration is making things worse. What are the Cuban people thinking? The United States has turned its back on us. The United States does not care about us. The United States continues a policy that allows this totalitarian regime to act with impunity.  The United States, they say, is starving us.

The United States could have economic influence over Cuba if it allowed American businesses to invest in that country.  Foreign direct investment is the most effective methodology for purposes of developing and having influence in any country.  If you invest you have something with which to negotiate. When you are pursuing, however, an isolationist embargo policy, you divest yourself of any leverage. You have nothing to take away. You already have taken everything away by preventing investments in the jurisdiction. What is your leverage under an embargo driven policy? You have nothing.

VI: Under the Obama administration there was for the first time since 1961, reestablishment of diplomatic relations, reopening of the US embassy, and an easing of some sanctions. What impact did this have?

Pedro J. Martinez-Fraga: The idea was to have a scaled approach where the easing of the embargo would be simultaneously met with internal reforms on allowing private businesses, private property, internal reforms that would lead to democratic rule. This was the vision, and, of course, without really any thought, without securing input from knowledgeable people, the Trump  administration just shut all that down and went back to “more of the same.”

VI: How was this rollback received? 

Pedro J. Martinez-Fraga: It was seen as undermining the legitimacy of democratic action because when you are witness to these inconsistent policies, you experience this type of flip-flop in such material, immediate, consequential ways, people confuse democracy for mobocracy or arbitrariness.  The implementation of contradictory policies is not a good apologist for institutional democracy.

VI: Are the Cuban people, at the moment, suffering even more due to the embargoes that have been put on Venezuela thus impacting Cuban access to fuel supplies and other essential goods?

Pedro J. Martinez-Fraga: Now essentials actually are being compromised. The oil from Venezuela is not flowing. This situation is extremely problematic for the country. This resource is a lifeline for the Cuban people but not for the regime. Again, what is horrible about this failed policy is that there is no causal effect between impoverishing the Cuban people, destroying completely the Cuban economy, and regime change. When you have dictators ruling the country, there will always be sufficient resources in Cuba to sustain a government and a basic military police that really is not trained to defend the country but rather to act as an instrument of internal repression and oppression.  In fact, my father, a human rights advocate, was incarcerated for 20 years in a Cuban concentration camp by this political military police. His crime was calling for democratic reform.

VI: Are these policies making Cuba even more dependent on Russian assistance. The Soviet Union subsidized Cuba for many years so Putin can certainly keep acting as if Cuba is in the Russian sphere. 

Pedro J. Martinez-Fraga: What it does now is to transfer the Soviet-backed era into a period of “true nostalgia.” They (the Soviet Union) subsidized basics and provided for some essentials and a better standard of living than what the Cubans would have had without these subsidies. It turned Cuba towards Russia and towards China. Quite frankly, what it really does is create a divide between liberal democratic states and countries that do not have a strong democratic tradition but that are willing to invest in strategic developing states. Cuba is a paradigmatic developing country after 60 years of centralized communist totalitarian rule.  Prior to the revolution, it had one of the highest standards of living in the world. Modern-day Russia is one of the investors.

VI: What should candidates be focusing on with regards to Cuba?  When Raúl Castro passes on, what can we expect?

Pedro J. Martinez-Fraga: Here is the irony of the embargo: the embargo provides party members, this new generation in Cuba that lives off the government party apparatus, with sustenance while impoverishing and disenfranchising the majority of the Cuban people. Communist party operatives have privileges, their livelihood is not threatened.  The last thing that the Communist Party in Cuba wants is for the embargo to be lifted. Herein lies the irony of the embargo. It is as stark as it is lacerating. 

What I foresee happening is something that we already have experienced with Russia and the former Soviet Union. I think there will be an internal privatization of the different ministries, which is already slowly and gradually taking place.

Cuban resources, economic and otherwise, are going to be divided, "privatized" by having the equivalent of Russian oligarchs, but now in the form of Cuban oligarchs, former ministers, vice-ministers and party apparatus players acting as CEOs of the national resources. That is going to be the next phase of the Cuban tragedy:  its final act.

VI: The embargo is creating this entrenched group of corrupt oligarchs, is that what you are saying? 

Pedro J. Martinez-Fraga: Yes, what the embargo is doing now is very skillfully laying the foundations for an equally entrenched group of oligarchs and non-democratic players who will have to hold fast to a totalitarian roadmap for governing the country upon penalty of losing what they have. Of course, that will be accompanied by the type of corruption and organized crime that we see in Russia today.  The embargo is a disastrous policy.

VI: What if there was a new administration in Washington that took a radically different and adventurous policy toward Cuba and just said, "Okay, this sixty year embargo is ridiculous. We need to allow Cuba to open up completely, let investment come in." Would that change the reality in Cuba or would these forces be so entrenched that they would be difficult to replace?

Pedro J. Martinez-Fraga: It would start causing a change for the better, of course. An open or qualified policy would start a dynamic that will lead to an open capitalist market. By having an expansive international commercial policy with Cuba the Cuban people would be empowered.  The central government would be weakened and ultimately forced to reconfigure. Cuban citizens would have greater resources, enhanced standing; people would be able to start demanding change. History teaches us this much. We have seen this process with the collapse of the Soviet Union. We have witnessed this phenomenon in Central America and in the Balkans. History has something to offer.

VI: There are possibilities for change and a brighter future for Cuba, but it's going to take major policy changes within the American administration to bring this about?

Pedro J. Martinez-Fraga: Exactly.

VI: The United States is the cause and effect of everything that's going on in Cuba?

Pedro J. Martinez-Fraga: I hate to put it in such stark terms because that sounds like you are looking at it only from one unidimensional perspective, and I do not think that is right. Is the US, with its current policy, the long-standing policy of sixty years of forcing an embargo on a country with a population of 12 million people and a land mass of 110 thousand square kilometers, is this policy responsible for the entrenchment of a totalitarian regime in that country? Yes. That is the reality.

Not one human being on earth can credibly argue to the contrary. Has the Cuban economy as a result of this sixty-year failed policy been destroyed? Yes. It has. It is a destroyed economy, it is a devastated, eviscerated economy that has consequences that extend to the life expectancy of the Cuban population. Has it broken the Cuban spirit? Has it robbed the nation of dreams, of something so basic as dreams? Yes, of course, it has. How can anyone with a straight face, with even the least bit of intellectual rigor, argue to the contrary?

VI: Given all the history and the interference of the United States, is it also still a fact that the Cuban people are basically pro-American, that there are strong ties to America, they have relatives in America, and that there is a cultural tie that is still there?

Pedro J. Martinez-Fraga: Yes, I think so, because of the Cuban diaspora. Cuban exiles have been very successful in the United States.  The Cuban migration has generated more millionaires per capita than any other immigrant group in the history of the U.S.  Cuban-Americans have thrived on a cross-disciplinary and industry sector basis like no other ethnic minority in the last 150 years of our country’s history.  They are, generally speaking and as a whole, fiscal conservatives who vote Republican, present company excluded. When you have links with the United States that are blood links, where these people try to send food, clothing, and essentials back to the relatives, that is a very powerful bond.  Moreover, the cultural and historic ties are deep and predate the revolution by 200 years. The regime has not been able completely to demonize the United States, or as successfully as it once did. Yes. Of course there are ties. Of course they see a policy change as a saving grace.

At the same time I think that their feelings towards the United States are deeply mixed.  It cannot be otherwise. “How can the United States care about us? What are they doing? Don't they realize after sixty years that the more they turn their back on us the stronger the government gets?” The embargo’s effect cannot go unnoticed.  Cuban citizens hold the U.S. accountable.

VI: This has been an interesting conversation, Pedro. Let's hope that a future administration in Washington can bring dramatic change to Cuba.

Pedro J. Martinez-Fraga: In many ways this conversation that we are having extends far beyond Cuba. This conversation has more to do with the United States’ moral, political, social, and economic obligation as a leader in the world than with its Cuba policy. 

If the United States consumes two-thirds of the global resources we then have an obligation to try to make the world better - to be advocates and champions for democracy. You cannot pretend to be a beacon for democracy and principles of freedom while engaging in hostile actions and human rights abuses. That is what this embargo amounts to. It is a clear human rights violation. It causes generations of a country's citizenry to lose their dreams.  Even life expectancy is adversely compromised.  

Our conversation really has concerned the extent to which U.S. foreign policy should be premised on human rights violations, on starving an entire national population.  It, in effect, has addressed whether it is possible to be a champion of freedom and democracy while systematically impoverishing an entire country for the sake of political expediency but under the ostensible banner of “regime change.”

Pedro J. Martinez-Fraga is a leading practitioner in the field of investor-State international arbitration, international commercial arbitration, and transnational litigation, including complex jurisdictional disputes concerning common law and civil law issues. Mr. Martinez-Fraga is a World Bank (International Bank for Reconstruction and Development) arbitrator. On December 16, 2015, President Barack Obama appointed Mr. Martinez-Fraga as one of four U.S. delegate members to the Panel of Conciliators of the International Centre for Settlement of Investment Disputes (World Bank), effective February 23, 2016. He is the first Hispanic to have been so appointed in the history of the Washington Convention of 1965. Mr. Martinez-Fraga is the co-leader of the firm’s International Arbitration Team. His arbitration experience includes arbitral disputes under the following institutions and rules: ICSID (World Bank), ICC, LCIA, ICDR, DIS and the Hong Kong International Arbitration Center.” He is also a professor of law at the New York University School of Law.