ESTA, from the verb “estar”, one of the most common verbs in the Spanish language that usually translates to the English verb “to be”.
In recent weeks, the U.S. State Department under President Biden formalized steps to penalize Europeans and some other citizen of the 40 member states of the (U.S.) Visa Waiver Program (“VWP”) by disallowing persons that have travelled to Cuba to apply for a visa through the U.S. Electronic System for Travel Authorization (“ESTA”). Since September 2022, the official ESTA website states that people that are “found to have travelled to Cuba in the past” can no longer enter the U.S. using the ESTA visa application.
The explanation given by the U.S. State Department’s to justify this measure is that Cuba has been designated a State Sponsor of Terrorism (“SST”), a designation that was made by President Trump’s Secretary of State Mike Pompeo in January 2021, nine days before the inauguration of President Biden, and after four years during which the Trump administration did not consider Cuba a SST.
Whatever one may think of Cuba’s government and its actions, its designation as a SST is and was never based on clear laws, clear criteria and clear requirements but rather on local (Florida State) politics and views of U.S. Cuban politicians like Marco Rubio.
The Issue
Europeans that have travelled to Cuba and that subsequently travel to the U.S. can be refused entry to the U.S. if they travel using ESTA instead of applying for an interview and obtaining a visa from the U.S. embassy, a procedure that not only costs a fair bit of money but also – as a result of backlog in processing applications – can easily take months.
On the other hand, U.S. travelers can currently travel to Cuba and enter back into the U.S. without having to apply for an (U.S.) OFAC permit under general licenses for 12 categories of travel. Numerous weekly flights between the U.S and Cuba and no fear for terrorism there.
Although incomprehensible, it would appear that not a single ESTA member country has formally, officially or outspokenly objected to what has happened. My only guess or perhaps hope is that ESTA member countries have been told by the Biden administration that there is a fair chance that Cuba will be taken off the SST list following the midterm elections and that everybody should sit still for now.
Visa Waiver Programs
Visa reciprocity is a fundamental principle of the European Union’s common visa policy and as an EU national, you enjoy the right of free movement. This means you’re entitled to travel, work and live in another EU country.
In the U.S. the freedom of movement has been judicially recognized as a fundamental Constitutional right in 1823 and it is considered to be a basic right in its scheme of values.
The U.S. Electronic System for Travel Authorization (“ESTA”), officially known as the Visa Waiver Program, was introduced after the 9/11 (2001) terrorist attacks in the U.S. The goal was to tighten domestic security by screening applicants’ pre-departures. That is also the reason why the rules are so strict and the reason why citizen of the 40 countries that presently form part of the VWP that have travelled to countries like Syria, Iraq, Sudan, North Korea, Yemen, Libya or Iraq in or after 2011 must apply for a U.S. entrance visa at a U.S. embassy. Of the European Union’s 27 member states, 3 are not VWP countries (Bulgaria, Cyprus, and Romania).
A visa is required for citizens from non-VWP EU countries wishing to travel to the United States, whereas, under EU law, no EU country requires visas for U.S. citizens for stays up to 90 days. The EU has long urged the United States to admit all EU member states to the VWP.
The lack of short-term, visa-free privileges for all EU member states has been a point of contention between the United States and the EU for many years. In January 2014, a revised EU visa reciprocity mechanism entered into force, aimed at injecting greater momentum into EU efforts to achieve full visa reciprocity with countries, such as the United States, whose citizens can travel to the EU for short-term business or tourism without a visa. The EU considered suspending its visa waiver for U.S. nationals in 2017 but decided not to do so. The United States remains the only country on the EU’s visa-free list that does not fully reciprocate. With this new measure, not only does it not reciprocate but it discriminates.
Cuba’s inclusion on the list of State Sponsors of Terrorism
In January 2020, just days before the inauguration of President Biden, Trump’s Secretary of State, Mike Pompeo, put Cuba back on the U.S. State Department’s list of State Sponsors of Terrorism (“SST”). This decision was roundly criticized internationally and by the Biden administration which was not a surprise since the Obama White House in which Biden served as vice president – had removed Cuba from the department’s blacklist in 2015, writing that “(i) the Government of Cuba has not provided any support for international terrorism during the preceding six-month period; and (ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.”
In a statement attempting to justify his last-minute decision to re-designate Cuba a “state sponsor of terrorism,” Pompeo accused Cuba of “repeatedly providing support for acts of international terrorism in granting safe harbor to terrorists” and engaging “in a range of malign behavior across the region.” These were references to Cuba’s refusal to extradite members of Colombia’s National Liberation Army (ELN) over alleged involvement in a 2019 bomb attack in Bogotá and to the nation’s ongoing support for Venezuelan President Nicolás Maduro.
Any person who reads the Country Reports on Terrorism that the Bureau of Counterterrorism of the U.S. State Department publishes every year (to comply with Title 22 of the United States Code, Section 2656f), understands that the inclusion of Cuba on the list of State Sponsors of Terrorism is entirely driven by (internal) politics and not by what the present Secretary of State, Anthony Blinken, recently (3 October 2022) described as “clear laws, clear criteria, clear requirements to merit the designation.” (of SST). The fact that the Biden administration recently refused to designate Russia on the SST list (citing unintended consequences) may also serve to proof this point. The 2020 Country Reports on Terrorism that were published by the Biden administration in December 2021 is – with respect to Cuba – a near copy of the text of the 2019 Country Reports on Terrorism that were previously published by the Trump administration in June 2020 and that cites as principal “terrorism sponsoring activities” that Cuba continues to host (Colombian) ELN leaders associated with now-defunct peace talks to reside in Cuba, despite Colombia’s repeated requests for their extradition and that Cuba is a key supporter of (what the Report refers to as) Maduro’s narco-regime and is an active participant in maintaining Maduro’s authority.
Cuba is a member of GAFILAT, a regional Financial Action Task Force (FATF) style body which is the money laundering and terrorist financing watchdog for Latin American countries. In addition, Cuba has a Financial Intelligence Unit (“FIU”) that is a member of the Egmont Group which facilitates cooperation and intelligence sharing between the various FIUs to investigate and prevent money laundering and terrorist financing. Cuba has adopted national legislation aimed specifically at implementing the FATF 40 recommendations to fight money laundering, the financing of terrorism and the proliferation of weapons of mass destruction.
The Cuba policy of the Biden Administration
Mid-May 2022, the Biden administration finally took the first steps to make good on President Biden’s campaign promise to “immediately reverse the failed Trump Cuba policies”. These steps consisted in easing measures that restricted travel from the U.S. to Cuba and remittances. However, these steps didn’t include removing Cuba from the list of “State Sponsors of Terrorism”, suspending Title III of the Helms Burton Act or eliminating any of the over 240 new embargo measures that were implemented under President Trump.
At the start of his presidency, Biden said that Cuba’s status as a so-called state sponsor of terrorism was “under review”. Given that removal from the list requires an inquiry into any terrorism-sponsored activity before providing a rescission request to Congress, several requests have been made that the Biden administration completes such review and initiate proceedings to remove Cuba from the list. The reason that some people, including myself, have come up with is that in light of the U.S. midterm elections and the interest of the Democratic Party to get Democratic candidates of the State of Florida elected as Senator and members of Congress such review has not been concluded.
Peace talks between the Colombian government and the ELN
Before former Colombian President Iván Duque Márquez requested Cuba to extradite certain ELN members to Colombia, these were in Cuba as representatives of the ELN that formed part of an internationally recognized process of peace negotiations, similar to the one Cuba hosted with the FARC (the Revolutionary Armed Forces of Colombia), which was supported by the United States, Norway, Colombia and other nations.
Almost immediately after Colombian President Gustavo Petro took office on 7 August 2022, he announced that it will restart negotiations in Havana (with the assistance of the governments of Norway, Venezuela and Cuba) with the ELN (guerrilla) group. At the same time Petro suspended the extradiction orders against ELN guerrilleros and asked the Biden administration to end the inclusion of Cuba on the list of State Sponsors of Terrorism (which was partially motivated by Cuba harbouring ELN guerrilla fighters). By doing so, any lingering concern or justification that the United States may have of Cuba’s role as anything else but a guarantor country for peaceful dialogue.
American citizens travelling to Europe
American citizens are currently granted entry into Europe without a visa. For this reason, they do not need to check visa requirements for short-term trips. In November 2023, when the European Union will introduce its electronic travel authorisation (visa waiver) system ETIAS (the European Travel Information and Authorisation System), eligible non-EU visitors travelling to the Schengen Area without a visa will be able to obtain an ETIAS travel authorisation. ETIAS will not change the visa-free rights of Americans, meaning that travellers with a US passport will still be able to enter Europe without applying for a visa beforehand. Even once ETIAS comes out in November 2023, it will not mean that Americans will need a visa for Europe.
The EU has decided to implement ETIAS to improve the safety of all those within its borders. The EU began the legal procedures for introducing ETIAS in 2016, though it is expected not to come into effect until November 2023. ETIAS has similar objectives as ESTA.
U.S. State Department Advisory Levels
The advisory level that the U.S. State Department currently provides in respect of ESTA member countries such as the U.K., The Netherlands, Germany, France, Italy and Spain is Travel Advisory Level 2 – Exercise increased caution (…).
U.S. State Department Travel Advisory for American citizen traveling to SST countries and others mentioned on the ESTA website (other than Cuba)
Iran – Travel Advisory Level 4: Do not travel to Iran due to the risk of kidnapping and the arbitrary arrest and detention of U.S. citizens. Exercise increased caution due to wrongful detentions.
Iraq – Travel Advisory Level 4: Do not travel to Iraq due to terrorism, kidnapping, armed conflict, civil unrest, and Mission Iraq’s limited capacity to provide support to U.S. citizens. Country Summary: U.S. citizens in Iraq are at high risk for violence and kidnapping.
North Korea– Travel Advisory Level 4: Do not travel to North Korea. U.S. citizens are banned from visiting North Korea for the sixth consecutive year, the State Department announced on 22 August 2022, extending travel restrictions due to the “serious risk” of arrest and long-term detention”. The ban prohibits U.S. passport holders from traveling “to, in and through” North Korea until Aug. 21, 2023, according to a notice posted by the federal government. But the restrictions also allow for exemptions for journalists, humanitarian workers and others who travel “in the national interest.”
Libya – Travel Advisory Level 4: Do not travel to Libya due to crime, terrorism, civil unrest, kidnapping, and armed conflict.
Libya – Travel Advisory Level 4: Do not travel to Somalia due to crime, terrorism, civil unrest, health issues, kidnapping, and piracy.
Sudan – Travel Advisory Level 4: Do not travel to Sudan due to civil unrest. Reconsider travel due to crime, terrorism, kidnapping, and armed conflict.
Syria – Travel Advisory Level 4: Do Not Travel to Syria due to terrorism, civil unrest, kidnapping, armed conflict, and risk of unjust detention.
Yemen – Travel Advisory Level 4: Do Not Travel to Yemen due to terrorism, civil unrest, health risks, kidnapping, armed conflict, and landmines.
American citizens traveling to Cuba
Cuba – Travel Advisory Level 2: Exercise Increased Caution – Exercise increased caution in Cuba due to demonstrable and sometimes debilitating injuries to members of our diplomatic community (SB: Havana syndrome) resulting in the drawdown of embassy staff. (SB: No mention of terrorism, threats, or anything that makes Cuba – from a terrorist angle – a dangerous place to visit.)
As stated before, the advisory level 2 is the same level as the one provided for the U.K., The Netherlands, Germany, France, Italy and Spain (…).
Although American citizen cannot travel to Cuba for tourist activities, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) has issued general licenses for 12 categories of travel. 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.
Individuals who meet the regulatory conditions of the general license they seek to travel under do not need to apply for an additional license from OFAC to travel to Cuba. And when returning back to the U.S. they are certainly not treated in the same manner as persons that have been visiting Iran, Syria, or North Korea.
Puzzled
On 3 November 2022, with 185 votes in favour – including votes from the U.K. and all members of the European Union – the General Assembly of the United Nations adopted for the 30th time a resolution to condemn the U.S. embargo against Cuba.
It puzzles me that during deliberations I did not hear or read anything to the effect that the U.K. and the European Union have expressed to the U.S. administration that they strongly object to the recent unilateral change of the reciprocity principle of free movement of people and throwing the Visa Waiver Program out of the window in the case of European citizen that during a period for over 10 years (…) have visited Cuba. It is certainly hard to grasp that U.S. citizen can presently “freely” travel to Cuba whilst Europeans will have to potentially deal with serious administrative consequences.
The only explanation I can come up with is that I don’t know something what others do, which is that following the U.S. midterm elections the Biden administration will decide to take Cuba of the SST list. And they should.
Meanwhile, Cuba will not stamp your passport so it will be next to impossible for U.S. customs to find out that you did travel to Cuba (…).
Note: This article expresses the personal views of the author and not of his employer. It first appeared on LinkedIn and is republished here with the permission of the author.
Sebastiaan Berger is the Portfolio Manager at CEIBA Investments and became Chief Executive Officer of the Company in May 2013.
In 2019, after having led the £30 million capital raise and listing of CEIBA Investments on the Specialist Fund Segment of the London Stock Exchange, Sebastiaan was hired by Aberdeen Standard Investments to act as the portfolio manager for CEIBA Investments Limited.
Sebastiaan is also a non-executive director of Adelante Exotic Ltd.
He is the co-author with Cameron Young of “Cuba – The Regulation of Foreign Investment,” and the co-author with Andreas Winkler and Julio Maldonado of “Cuba – Contemporary Art.”
He is author of numerous articles on Cuba.
He graduated from the University of Leiden, The Netherlands, in 1990, in civil law and has worked in New York, Washington, Rotterdam, Brussels and Havana.
