Diplomatic Travel Blocks US-Cuban Ties

04/14/2015 11:31 pm ET | Updated Jun 14, 2015

Now that President Obama has decided to take Cuba off the list of state sponsors of international terrorism, the main hurdle to restoring full diplomatic relations centers on how much freedom U.S. diplomats will have to travel around Cuba and what the U.S. embassy will be allowed to bring into the country in the diplomatic pouch.

While these may seem like mundane issues of every-day operations that should be easy to settle, they are not. In the past, Cuba has objected to U.S. diplomats touring the island to meet with and offer support to dissidents, and using the diplomatic pouch to bring in material assistance for opposition groups.

It was Washington that imposed the current limitations on diplomatic travel in 2003 by confining members of the Cuban Interests Section to Washington, D.C. unless they receive State Department permission in advance to venture farther afield. Cuba reciprocated by confining U.S. diplomats to Havana.

Today, however, Washington wants to restore unlimited travel for diplomats and Cuba wants assurances that such trips will not be used to stir up opposition. "The total freedom of movement, which the U.S. side is posing, is tied to a change in the behavior of its diplomatic mission and its officials," said Josefina Vidal, Cuba's lead negotiator in the bilateral talks about restoring diplomatic ties. U.S. diplomats should stop "stimulating, organizing, training, supplying and financing elements within our country that act against the interests of ... the government of the Cuban people. That is action that is not acceptable for Cuba."

When Senator Marco Rubio pressed Assistant Secretary of State for Western Hemisphere Affairs Roberta S. Jacobson on whether the administration would agree not to meet with dissidents as the price for restoring relations, Jacobson insisted it would not accept such a condition. "We want to have the greatest possible ability to interact with everybody, including democracy activists, all over the island. That's the point of our getting the geographic restrictions lifted," Jacobson replied. "I can't imagine that we would go to the next stage of our diplomatic relationship with an agreement not to see democracy activists."

When Cuba and the United States first established Interests Sections in 1977, the agreement creating the missions stipulated that diplomats be allowed to travel freely: "Members of the Interests Sections shall have freedom to travel throughout the territory of the host country in accordance with the established international practice commonly accepted for Embassy personnel." For years, that was the policy that prevailed on both sides.

During George W. Bush's presidency, however, the U.S. Interests Section in Havana was transformed from a channel for diplomatic communication to an outpost of support for regime opponents. The mission became a vehicle for delivering material assistance to dissidents, a haven for their collective planning, and a megaphone amplifying their message. As much as 70 percent of the material brought into Cuba in the U.S. diplomatic pouch was material for the democracy promotion program, according to the U.S. GAO. The escalating confrontation between the two governments led to the imposition of the diplomatic travel restrictions, and to Cuba limiting what could be brought into the country in the diplomatic pouch.

During a thaw in relations in Obama's first year in office, the two governments discussed lifting the travel restrictions. Cuba was willing, but wanted assurances that U.S. diplomats would not again try to foster opposition. "I would note that when those trips took place, they were only used for just one type of activity," Vice Foreign Minister Dagoberto Rodríguez said to Deputy Assistant Secretary of State Bisa Williams in 2009, referring to U.S. diplomatic travel. "Sometimes it seemed that the only purpose of the trip" was to meet with dissidents.

In the bilateral negotiations currently underway to restore diplomatic relations, Assistant Secretary Jacobson has said that the foundation of an agreement will be the two international accords governing diplomatic missions: The Vienna Convention on Diplomatic Relations and the Convention on Consular Relations, to which both Cuba and the United States are signatories. Article 26 of the Convention on Diplomatic Relations provides that "the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory" -- a provision that bolsters Washington's demand for unrestricted travel.

But Cuba has some points in its favor as well. Article 41 declares that diplomats accredited to a state "have a duty not to interfere in the internal affairs of that State." Article 27 says that a diplomatic pouch "may contain only diplomatic documents or articles intended for official use." And Article 3, which defines the functions of a diplomatic mission, says nothing about supporting opposition elements.

There is not much doubt that the actions of U.S. diplomats in Cuba during the Bush years constituted interference in Cuba's internal affairs. The UN General Assembly's 1981 resolution, "Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States," includes a long list of prohibited activities, the most relevant of which is:

The duty of a State to refrain from the promotion,
encouragement or support, direct or indirect, of rebellious or
secessionist activities within other States, under any pretext
whatsoever, or any action which seeks to disrupt the unity or
to undermine or subvert the political order of other States.

There is room for compromise in the current standoff between Washington's desire to have its diplomats travel freely and Cuba's desire to prevent them from furthering "democracy promotion" programs. Both government simply have to abide by the terms of the Vienna Convention. Havana should agree to allow U.S. diplomats unfettered travel for the legitimate purpose stated in Article 3: "ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State."

Washington should agree that diplomatic travel and its use of the diplomatic pouch will conform to the strictures of the Convention not to interfere in Cuba's internal affairs. That is, U.S. diplomats should be able to meet and talk with whomever they please, but they should not be organizing or providing material assistance to regime opponents.