CHAPTER EIGHT HUMANITARIAN DONATIONS & INTERNATIONAL COOPERATION
H UMANITARIAN D ONATIONS
Donations from within the United States, from parties in third countries, and from international organixations are each affected by the U.S. embargo as they make their way to recipients in Cuba, whether the beneficiaries are the Cuban government, non-governmental or religious organizations, orindividuals.
Donations to Cuba from U.S. Nationals: The Law
Current U.S. law applies to and regulates various categories of humanitarian donations made directly from U.S. nationals to Cuba. These include the following
Food: The Cuban Democracy Act (CDA) of 1992 authorixes the donation of food to nongovernmental organizations in Cuba but not to the Cuban government. A license must beobtained to ship the foodstuffs to Cuba, whether by sea or air.% (Under no circumstances does the law permit sale of food to Cuba.) Medicines: The CDA establishes the right to donate medicines” to non-governmental organizations. However, that right is conditioned upon showing that there is a reasonable likelihood that the medicine will not be used for torture or other human rights abuses; that thereis not a reasonable likelihood that the item to be exported will he re-exported by Cuba (interpreted to include treatment of third-country patients in Cuba); and that the item will not be used in the production of any biotechnology product. An export license is required from the U.S. Commerce Department for medicines, even under new regulations issued in March, l.996 (see below),’ as well as aseparate shipping license. Most recently, Commerce has insisted that the non-governmental organizations (NGO) rather than individual Cuban hospitals or clinics be designated as the “ultimate consignee,” apparently to avoid any implication that the United States has recognized the %on-governmental” status of such health care facilities. Medical auppliq instruments and equipment: For donation to eitheran NGC or the Cuban government, the CDA affirms licensing and other requirements for medicines, lx.&. also conditions the right to donate on the President’s ability to determine that “the United States Government is able to verify, by on-site inspections and other means, that the exported item is to he used for the purposes for which it was intended and only for the use and benefit of the Cubanpeople.” In practice, however, applications for licenses authorizing donations of these items have been treated the same as medicines, when donated to non-governmental organizations. We have no knowledge of any attempts to donate medical equipment or supplies directly to the Cuban government. Shipping, as well as Commerce Department export licenses, are required for medical supplies, instruments andequipment. Thlman itarian” Goods Whether to license such donations was a matter of U.S. Commerce Department discretion, until revised Commerce Department Export Administration Regulations were issued on March 25, 1996, doing away with the licensing requirement for qualifying donor organizations and a specific list of commodities. The revised regulations provide that, without any governmentauthorixation, organizations with “experience in maintaining a verifiable system of distribution that ensures delivery to the intended beneficiaries” may export donations to meet “basic human needs.” Eligible organizations are defined as those with an ‘established record of involvement in donative programs and experience in maintaining and verifying a system of distribution lo ensure delivery ofcommodities and software to the intended beneficiaries.” The new regulations require these organixations to maintain a permanent staff in the recipient country to monitor receipt and distribution; conduct periodic spot-checks by members of the exporter’s staff; or utilixe the services of a charitable organixation that has a monitoring system in place.
H UMANITARIAN D ONATIONS...
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