Cuba and the GCF

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 04/12/2011

1)  To what extent may US law prohibit payment to Cuba, assuming that the US contributes to the fund, and that Cuba will be a recipient of funds?

2)  To what extent are there precedents for Cuba receiving funding analogous to that which it would receive from the GCF. Cuba is not a member of the World Bank or International Development Bank, and there is US legislation embargoing Cuban receipt of funding from IFIs. However it may be that there is precedent for Cuba receiving international/UN funding (to which the US has contributed) for environmental, capacity building or humanitarian/poverty relief purposes such as from UNEP/UNESCO or similar.

Summary

1) There are a number of existing US laws and regulations governing and restricting US and other States’ trade and investment with Cuba that may be relevant to Cuba’s eligibility for receipt of financing from the Green Climate Fund (GCF). Among the most important for this query are the (1) Cuban Liberty and Democratic Solidarity (Libertad) Act of 1966 (the “Helms-Burton Act”) (22 USC §§ 6021-6091) and the (2) Foreign Assistance Act of 1961 (22 USC 2151 et seq.).

2) As discussed further below, there appear to be numerous examples of precedents in which Cuba receives funding similar to that which it would receive from the GCF. Depending on the final details of the structure, management and operations of the GCF it appears likely that financing from the GCF would be directly or indirectly available for projects and programs located in Cuba, and that such financing would probably not be materially restricted by the US legislation referred to in the Query above.

 Advice

Question 1

The Helms-Burton Act

The Helms-Burton Act is the main law codifying the US’s embargo against Cuba. Among its provisions, section 104 of the Act states:

(a)    If any international financial institution approves a loan or other assistance to the Cuban Government over the opposition of the United States, then the Secretary of the Treasury shall withhold from payment to such institution an amount equal to the amount of the loan or other assistance, with respect to either of the following types of payment:

(1)    The paid-in portion of the increase in capital stock of the institution.

(2)    The callable portion of the increase in capital stock of the institution. (Sec. 104(b)).

The Helms-Burton Act defines an “international financial institution” as “the International Monetary Fund, the International Bank for Reconstruction and Development, the International Development Association, the International Finance Corporation, the Multilateral Investment Guaranty Agency, and the Inter-American Development Bank.” The list is exclusive, and therefore does not apply to <st2:policysmarttags.cwspolicytagaction_6 tagtype=”5″>private, State, or intergovernmental financial institutions not on this list.

The relevance of these provisions for the GCF and Cuba’s eligibility for financing under it depends on the structure of the GCF and, in particular, whether one of the identified institutions – the International Monetary Fund, the International Bank for Reconstruction and Development, the International Development Association, the International Finance Corporation, the Multilateral Investment Guaranty Agency, or the Inter-American Development Bank – are given authority to approve or reject applications. The Cancun Agreements establishing the Green Climate Fund do not give any of those entities identified in the Helms-Burton Act decision-making authority over the use of GCF assets. They do, however, invite the World Bank to serve as interim trustee of the GCF.[1] As interim trustee, it would “have the administrative competence to manage the financial assets of the Green Climate Fund, maintain appropriate financial records and prepare financial statements and other reports required by the Board, in accordance with internationally accepted fiduciary standards.”[2] The trustee would only have the authority to administer GC assets “for the purpose of, and in accordance with, relevant decisions of the Green Climate Fund Board.”[3] Based on this limited role of the World Bank, and the consequent fact that none of the “international financial institutions” as defined by the Helms-Burton Act have any decision-making power over use of GCF finances, section 104 of that law would not seem to be triggered.

One caveat to that conclusion that the current outline of the GCF would not trigger section 104 of the Helms-Burton Act is the provision allowing the trustee of the GCF to “comingle” the assets of the GCF “for administrative and investment purposes with other assets maintained by the trustee.”[4] It is possible that if GCF assets were comingled with other World Bank assets, logistical and legal difficulties could arise regarding release and use of the funds for projects in Cuba. This is an issue that may warrant further examination.

Even if section 104 of the Helms-Burton Act did apply due to the World Bank’s role in the GCF (or the role of other Helms-Burton “financial institutions”), it is important to note that the law does not require the US to oppose the approval of finance for Cuba.[5] Moreover, if the US were to oppose a loan to Cuba, it lacks the power under the governing rules of the World Bank to unilaterally block approval of the funds. If the US does object to approval of a loan for Cuba, and the loan is nevertheless approved, then the US Treasury must withhold payment to relevant institution. The funding for Cuba, however, may nevertheless proceed. The Helms-Burton Act therefore would not preclude financing approvals for Cuba under the GCF even assuming the World Bank had a larger role.

The Foreign Assistance Act of 1961

The Foreign Assistance Act of 1961, as amended, is the keystone of the United States’ foreign assistance policies and programs. It has several provisions relevant to financing for Cuba through multilateral channels such as the GCF.

The important restrictions on financing are in sections 620 and 307. Section 620(a)(1) of the Act dictates that “[n]o assistance shall be furnished under this Act to the present government of Cuba.” Section 620(a)(2) then adds that unless the President grants a waiver, or certain conditions are met by the Government of Cuba, no government of Cuba (present or future) shall be entitled “to receive any other benefit under any law of the United States.”[6] Section 307 states:

(a)    Notwithstanding any other provision of law, none of the funds authorized to be appropriated by this chapter [International Organizations and Programs] shall be available for the United States proportionate share for programs for … Cuba …;

(b)   The Secretary of State (1) shall review, at least annually, the budgets and accounts of all international organizations receiving payments of any funds authorized to be appropriated by this chapter; and (2) shall report to the appropriate committees of the Congress the amounts of funds expended by each such organization for the purposes described in subsection (a) and the amount contributed by the United States to each such organization.

These provisions are similar to those in section 104 of the Helms-Burton Act in that they do not purport to preclude international organizations and initiatives the US participates in from providing funds to or for Cuba, but effectively require that US funds will not be used for such efforts. They also seem to indicate that US funds and funds approved for Cuba can be co-mingled, but that the US Congress will want to track that issue and ensure that US funds are not in fact being provided for Cuba.

There are several exceptions and limitations to these restrictions that may also be relevant for the GCF. One provision that may be important for adaptation-related projects is in section 491 of the Foreign Assistance Act. It provides:

[N]otwithstanding any other provision of this or any other Act, the President is authorized to furnish assistance to any foreign country, international organization, or <st2:policysmarttags.cwspolicytagaction_6 tagtype=”5″>private voluntary organization on such terms and conditions as he may determine, for international disaster relief and rehabilitation, including assistance relating to disaster preparedness, and to the prediction of, and contingency planning for, natural disasters abroad.

Other provisions narrowing the restrictions on finance for Cuba have been included in appropriations bills. The appropriations bill for FY2008, for instance, states that “notwithstanding any other provision of law” such as the Foreign Assistance Act, US funds may be used “for the purpose of supporting tropical forestry and biodiversity conservation activities and energy programs aimed at reducing greenhouse gas emissions.”[7] This appropriations provision restricts funding for countries such as Cuba that are on the US’s list of governments supporting international terrorism.[8] Nevertheless, and in contrast to the non-waivable restriction on assistance to Cuba in section 602(a)(1) of the Foreign Assistance Act, the US President may waive that restriction against funding for governments supporting international terrorism.[9] With that waiver, Cuba would be eligible for these conservation and mitigation funds.

Conclusion

Current US law would likely restrict the use of US funds in payments under the GCF to Cuba, but do not preclude international funds – even international funds to which the US has contributed – from making payments to Cuba. Further, there may be provisions in US law such as section 491 of the Foreign Assistance Act which ease the US’s restrictions on its own financial assistance for Cuba through multilateral channels such as the GCF. Nevertheless, due to the Helms-Burton Act and the US Congress’s aims to verify that US funds do not go to Cuba through multilateral initiatives, it may be important to ensure that certain “international financial institutions” identified by the Helms-Burton Act do not have authority over financing decisions, and to be mindful of provisions enabling the “comingling” of GCF and World Bank funds.

Question 2

As of the date of this document, international negotiations regarding the GCF are still ongoing and accordingly the final terms regarding the methods in which the GCF would ultimately allocate and disburse funds are uncertain. In preparation for the COP-17 meetings in Durban, the Transitional Committee submitted a report for the design of the GCF to the COP (the “TC COP-17 Report“).[10] Because negotiations regarding the GCF are currently still ongoing, the TC COP-17 Report is viewed in this analysis as the most current and accurate indicator available for determining what the final terms on the structure, management and operations of the GCF would be.

Based on a review of the TC COP-17 Report and information regarding the operational practices of the Global Environmental Facility (“GEF“), it appears the GCF, if it operated in a manner consistent with the TC COP-17 Report, would likely be able to provide funds to Cuba through methods similar to those used by the GEF and other intergovernmental and non-governmental organizations. Research undertaken for this analysis has identified the following organizations (collectively, “Funding Organizations“) which have provided similar funds for projects and programs in Cuba:

GEF

UNEP

UNDP

UN Population Fund 

UNICEF

European Community (EC)

GlobalAlliance for Vaccines & Immunization

OPEC Fund for International Development

Global Fund to Fight Aids, Tuberculosis and Malaria

MDG Achievement Fund

Such research indicates that for many years these Funding Organizations have provided relatively sizeable amounts of financing for projects and programs in Cuba which have been used for various purposes, including, without limitation, for environmental, capacity building and humanitarian/poverty relief purposes. This research indicates that since 1980 alone, these Funding Organizations have collectively provided hundreds of millions of dollars for programs located in or otherwise involving Cuba. Please refer to the attached Annex for further information on such programs.

The Global Environmental Facility is a useful analogy.

The GEF is a prominent source of funding for such Cuban programs and projects and is a useful analogy for evaluating the Query above. Based on a tentative review of the GEF “Instrument for Establishment”, various characteristics regarding the structure and operations of the GEF appear to be quite similar to those contemplated for the GCF in the TC COP-17 Report. A further review and comparative analysis of the constitutive and operational documents of the GEF as compared to the GCF may be useful, however such an analysis is outside the scope of this paper.

Since 1992, when the GEF was established, the US has been a major contributor of funds to the GEF.There are multiple examples in which, during a given GEF operational period, the US has made sizeable contributions to one of the special facilities, programs, funds or trusts that comprise the GEF, and in which, during the same period the GEF has made grants for climate change and other programs and projects located in Cuba. Discussed below is one such example, involving the GEF Trust Fund.

With the exception of the GEF pilot phase (1991-1994) the US has made sizeable commitments and contributions to the GEF Trust Fund during every period of its operations, including contributions of approximately $317 million during the third operational or funding period, GEF-3.[11] During GEF-3 (2002-2006), at least eight projects in Cuba were approved involving approximately $21.6 million in GEF grant-funding from amounts in the GEF Trust Fund.[12]

Information available on the GEF website also reveals sizeable funding commitments for Cuba and numerous other examples of project and programs in Cuba that were funded by the GEF from specific special facilities, programs, funds or trusts which comprise the GEF financial resources. Such examples also reveal that the US is often a major contributor to such facilities, programs, funds or trusts.

According to the GEF website for example, during the fifth funding period of the GEF (GEF-5), approximately $17 million has been allocated to Cuba for projects and programs in the areas of biodiversity, climate change and land degradation.[13] According to the same website, during the fourth funding period (GEF-4) approximately $19.4 million was allocated for the benefit of projects and programs in Cuba in the areas of biodiversity and climate change. These amounts appear to be funds committed but which may not have been actually utilized yet. Of the approximately $19.4 allocated to Cuba during GEF-4, approximately $3.8 million remains to be allocated to a specific program or project.

A Note on Methodology.

The research and analysis undertaken in connection with this Query has been non-exhaustive in nature and has not looked into development or other types of financing provided directly from other nations to Cuba on a bilateral basis. Nor does this review seek to comprehensively identify or evaluate every source of development, climate change and other types of financing for projects and programs in Cuba that may have been committed or disbursed by international organizations like the Funding Organizations since the enactment of relevant US prohibitions on aid/transactions with Cuba (e.g. the Cuban Assets Control Regulations enacted in 1963).

The research and analysis here has sought to identify prominent counter-examples to the presumption that if a Funding Organization receives contributions from the US, then such Funding Organization will be unable to provide financing for projects or programs in Cuba. As discussed above, such a presumption does not appear to be accurate based on the information provided as part of this Query.

Annex

Cuba does receive funding and other assistance from the UN and the international organizations under the UN umbrella. Such organizations include the United Nations Environment Program (UNEP), the United Nations Education, Scientific, and Cultural Organization (UNESCO), the United Nations Development Program (UNDP), and the World Food Programme (WFP). The missions of these organizations range from environmental preservation, to capacity building, to humanitarian and poverty relief — the same issues raised in the query. The following analysis will address each organization in turn and discuss any linkage between the US providing funding to the organization and Cuba receiving funding from the organization.

UNEP

From 2008-2010 the US was one of the top donor countries to UNEP — the US contributed close to $6 million per year, and contributed exactly $6 million in 2010. UNEP Annual Report 2010: Organizational Structure and Finance 119 (2010). Although UNEP does not have an easily accessible summary of what countries receive how much money, it is clear that Cuba does participate in UNEP, including involvement in conferences and hosting conferences; furthermore, UNEP has conducted projects with Cuba. For instance, from July 2008 through April 2009, UNEP conducted a project to “[m]onitor water quality in HavanaBay (Cuba),” among other places in the Caribbean. UNEP, Chart of UNEP Activities in CARIBBEAN 2 (2010). The water monitoring project required $30 thousand of UNEP funds.  Id.  It is unclear whether the US contributed any of the funding. Also in March 2009, UNEP conducted a workshop in Havana, Cuba to “resent and discuss the outcomes of water quality monitoring.”  Id.  Another workshop was held in Cuba in October 2009, organized by UNEP, UNDP, and the Cuban government to “develop plans for reducing pollution of the Caribbean Sea by Sewage.” UNEP, Wastewater Experts Meet in Cuba to Develop Plans for Reducing Pollution of the Caribbean Sea by Sewage, Nov. 26, 2009. Although this is not an exhaustive list of UNEP work in Cuba, it is clear that Cuba receives some of the benefit of UNEP projects.

UNDP

In 2010, the US contributed almost $100 million to the UNDP. UNDP, UNDP in Action – Annual Report 2010/2011, 39 (2011). Cuba has received assistance from the UNDP. As of 2002, the UNDP had helped Cuba in the following ways:

[S]upported the updating of national economic management in public institutions involved in economic affairs…strongly supporting environmental protection activities…reinforced Cuba’s mission on science and technology in support of the social sector…provided support for the introduction and development of information technology…strengthening of the local economies as a way to eradicate pockets of less developed areas of the country. Lastly, the periodic droughts, tropical storms and hurricanes that have passed through the country during the past decade have made disaster reduction and mitigation a recurrent theme of UNDP and  of the UN system as a whole.

Executive Board of the United Nations Development Program and the United Nations Population Fund, Country Programme Outline for Cuba (2003-2007) 2-3 (2002). It is unclear to what extent, if any, US funding is used to support the projects mentioned above.

UNESCO

UNESCO funding statistics are not easily found, but it is clear that until just recently the United States has contributed substantially to UNESCO. See U.S. Cuts UNESCO Funding After Palestinian Vote, CBSNews.com, Nov. 1, 2011. Prior to the US cutting off funding, the US contributions to UNESCO amounted to 22 percent of UNESCO’s budget, or $80 million.  Id.  Although the extent of UNESCO work with Cuba is not known, at least one UNESCO project has involved Cuba. See UNESCO, Slave Trade Archives Project Completed, Feb. 2, 2005. It is not clear how much UNESCO funding went to the slave trade archive project, nor is it clear whether any US money was transferred to Cuba for the project.

WFP

According to the WFP website, the US donated $1.1 billion to the World Food Programme in 2011. The extent of WFP operations in Cuba is unknown, but according to the WFP website the organization is active in Cuba. For instance, the WFP assists with a development project supporting Cuba’s national plan to combat anaemia and iron deficiency. It is unclear how much money the WFP contributes to this project or whether any funding comes from US contributions.

General UN Aid

Worth noting is that the United Nations does contribute a significant amount of aid to Cuba. According to one news article from 2007, UN aid to Cuba would amount to $100 million over several years. Patricia Grogg, Government, UN Seek to Boost Impact of Aid, IPSnews.net, Sept. 12, 2007. According to the UN website, the US is the largest single contributor to the UN, but it is unclear how much, if any, of the money contributed by the US goes to projects in Cuba.


[1] FCCC/CP/2010/7/Add. 1 (Mar. 15, 2011), para. 107.

[2]Id., para. 104.

[3]Id., para. 105.

[4]Id., para. 105.

[5] This may be due to the law’s apparent inconsistency with the institutions’ governing rules, which prohibit funding decisions based on political considerations.

[6] The conditions that have to be met for Cuba to receive assistance under this provision relate to compensation for, or restitution of, property taken from US citizens by the Government of Cuba on or after January 1, 1959.

[7] P.L. 110-161, Division J, § 634(b).

[8]Id.

[9]Id.; Foreign Assistance Act, section 620A(d).

[10] UN Document FCCC/CP/2011/6, Advance Version, dated 18 November 2011.

[11] See Trustee Report – Global Environmental Facility Trust Fund (UN Document GEF/C.35/Inf.5), dated May 27, 2009, at p. 23 (showing a table in which contributions by participating nations are recorded by operational period).

[12] See GEF project database, at: http://www.gefonline.org (showing figures for GEF Trust Fund Projects in Cuba during the GEF-3 period, using the following search criteria: Country ‘Cuba’,  Funding Source ‘GEF Trust Fund’, Period From: 2002 To: 2006).

[13] See country profile for Cuba, available at: http://www.gefonline.org/Country/CountryDetails.cfm