In January 2015, Raúl Castro called for the end of the “anti-Castro” broadcasting services known as Radio and TV Martí (“the Martís”) as a precondition to normalizing relations between the United States and Cuba. Finding their genesis in the U.S. “Voice of America” program during the Cold War, these broadcasting programs have continued to cause tension both between the U.S. and Cuba and in the domestic U.S. political sphere throughout their existence. According to their Congressional purview, the objective of the Martís is to “provide news, commentary, and other information about events in Cuba and elsewhere to promote the cause of freedom in Cuba.” However, some argue that the Martís’ efforts contribute to “the perception, pervasive in Cuba, that the United States and the Cuban diaspora are plotting regime change,” which “further strengthens the hard-liners who argue that only a closed political model with minimal market openings can insulate the island from domination by a foreign power allied with old-money elites.”
The Cuban government has persistently claimed that the operation of the Martís constitutes an illegal violation of the nation’s sovereignty, and has sought to block the signals and prevent the distribution of programmatic content to its citizens. Cuba’s position on this issue is substantially grounded in international law. The Martís have also met with significant domestic opposition in the U.S. on the grounds that they are a product of ill-conceived policy, particularly since Cuba’s jamming of radio and TV signals may prevent the content from reaching a significant audience among the Cuban people. This post lays out the foundation and development of the Martís and evaluates competing perspectives on their legitimacy under national and international law, analyzing how the relevant legal issues could play into the cessation of the programs during the impending rapprochement between the U.S. and Cuba.
History of the Martís
Citing Castro’s pervasive control and censorship of the press, Ronald Reagan signed Executive Order 12323 in May 1982, establishing the Presidential Commission on Broadcasting to Cuba. Congress followed by passing the Broadcasting to Cuba Act in October 1983, formally creating Radio Martí. The first actual broadcast occurred in May of 1985, and, in 1990, TV Martí was founded and the Office of Cuba Broadcasting (“OCB”) was established. While they began in Washington, D.C., operated by the United States Information Agency (“U.S.I.A”), the Martís now operate out of Miami under the auspices of the Broadcasting Board of Governors (“BBG,” an independent federal agency of the United States government) and have an annual budget of $26.3 million. In addition to radio and TV broadcasts, the Martís operate an online platform and import content into Cuba in various formats including DVDs, flash drives, emails, and SMS.
Controversy surrounding the existence of the Martís has led to numerous proposals aimed at bringing the programs within a revised framework. A well-known 1993 study suggested converting the relationship between the U.S. and Cuba from one of conflict to one of engagement. As a part of this approach, it argued that TV Martí is an “unnecessary irritant” operating in violation of binding international law, and should be closed. In the alternative, it advocated that Radio Martí be placed under non-political leadership and used only to cover events that were under-reported or distorted by other news sources. Another report authored by the D.C.-based group Inter-American Dialogue similarly called for Radio Martí to be made more objective, and for TV Martí to be taken off the air entirely.
Notwithstanding this history of criticism, the Martís have continued operating in furtherance of their legislative objective without significant interruption since their inception. They have also survived repeated legislative proposals for elimination. More recently, however, the Martís have been increasingly subject to reform proposals, such as the Senate Foreign Relations Committee’s suggestion that the OCB be integrated into the broader “Voice of America” program and moved back to Washington, D.C. In addition to policy-based arguments and attempts at reform, legal challenges based on national law, international treaties, conventions, and customary international law have also called into question the status of the Martís.
Cuban National Law
Rather than seeing their content as a salutary attempt to provide Cubans with multiple perspectives, the Castro regime claims the Martís amount to an illegal encroachment on Cuba’s national sovereignty. From the revolutionary perspective, any U.S. journalist paid by the U.S. government is assumed to offer propaganda promoting resistance to and the overthrow of the Castro regime. In response to this perceived existential threat, Cuba has adopted severe domestic laws affording the government great power to control political dissent. For example, the Cuban Constitution of 1992 protects the state’s ability to “regulate the use and benefits of telecommunications.” The Constitution nominally protects free speech, but only when it is “in keeping with the objectives of a socialist society,” allowing broad grounds for censorship and other government control of the media.
Cuba’s criminal code provides draconian sentences for the crime of propaganda enemiga, which includes inciting opposition to the social order by any form of communication and is punishable by one to eight years in prison. Moreover, “anyone who spreads false news or makes malicious predictions likely to cause alarm or discontent among the population, or public disorder” is subject to imprisonment for one to four years and up to fifteen if he uses the mass media in doing so. Perhaps more importantly, the Cuban government not only controls the media, in most cases it is the media; the regime puts out several national and regional TV channels, an international TV channel, dozens of radio stations, and hundreds of periodicals all owned and operated by the state. In a classic Catch-22, the Martís seek to circumvent restrictions on the press that predominate in Cuba, claiming that these restrictions are indicative of a repressive dictatorship. At the same time, Cuba uses the Martís’ presence as a justification for its authoritarian control, arguing that such control is needed in order to thwart subversive attempts to topple the socialist government and bring about capitalist domination by the United States.
An important consideration underlying the Martís controversy is the question of what constitutes “propaganda.” No country claims to oppose the elimination of propaganda that directly incites violence or war. But while it has historically been considered established as customary international law, even this obligation has routinely been ignored in times of strife such as World War II. Even more confusingly, propaganda does not admit of a specific definition, but has been variously explained as:
(1) ‘a systematic attempt through mass communications to influence thinking and behavior,’ (2) ‘the manipulation of collective attitudes by the use of significant symbols (words, images, sounds) rather than by violence, corruption, or boycott,’ and (3) ‘a hostile act, broadcasts of which may provoke war, incite subversive activities, slander receiver countries, interfere with receivers’ internal affairs, and violate human rights.’
Ideas regarding what constitutes propaganda are inherently value-laden and therefore subject to intense disagreement between countries with different cultures. Even countries with very similar cultures and common histories may find themselves in disagreement. For instance, the British Broadcasting Corporation once refused to air “Sesame Street” on the grounds that it reflected solely American social values and “tend[ed], even if unintentionally, to inculcate those values in its viewers.” Cultural identity and national values are inescapably problematic aspects of regulating international broadcasting, and any solution must take this into account.
National Sovereignty, the Universal Declaration of Human Rights, and Customary International Law
Cuban leadership touts strict control of domestic media as necessary to preserve the gains of the revolution and maintain national sovereignty, an interest that has traditionally been afforded nearly adamantine protection in international law. By contrast, the U.S. defends its international broadcasts on the basis of Article 19 of the Universal Declaration of Human Rights (“UDHR”), which includes the right “to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The U.S.’s position is vulnerable because this provision of the UDHR is not binding unless it becomes accepted under customary international law. It would be difficult to argue that this has taken place, since hardly any country allows completely free flow of information through its boarders without stepping in to vet or control it at some level.
The U.S. strengthens its argument, however, by showing that national sovereignty interests have become less absolute over the past several decades, and that the UN Charter allows for interference with sovereignty in cases of human rights violations or threats to international peace and security. Defenders of the Martís have repeatedly cited the protection of human rights as justification for the programs. Proponents of the broadcasting also claim that transnational broadcasts have become normal and acceptable under customary international law (though this has mostly been the result of inadvertent broadcasts between Mexico and Texas, between France, Germany, and Belgium, etc., in which there were no complaints made by the receiving government). In a clever twist, the United States has also employed the national sovereignty argument to its own benefit by claiming that sending international telecommunication is its sovereign right as a state. If this position is accepted, then a possible result is that the U.S. would have the right to make broadcasts while Cuba would have an equal right to prevent them from being received. This is an obviously problematic solution, as it legitimates telecommunications interference, making the practical question of whether the information will be broadcast essentially a technological consideration rather than a legal one.
There are tenable policy bases for both the traditional “national sovereignty” approach to territorial control and the UDHR Article 19 “free flow” position, which favors free international transmission of ideas. Defenders of the former might claim that sovereign states are responsible for the national culture and character of their citizens. From this perspective, efforts by foreign governments to inculcate their own values and political ideas in other countries via radio and TV broadcasts might be considered a form of cultural imperialism tantamount to fomenting rebellion or supporting a coup d’état. Alternatively, proponents of international broadcasting might reasonably claim that heavy-handed government restriction of the information available to its citizens only deludes them and prevents them from making fully informed political decisions. Strict adherence to state-approved doctrine could perpetuate entrenched, hostile nationalism and prevent the formulation of religious, economic, and social ties across borders, which might serve to foster cooperation and a global sense of community.
National sovereignty is inherently an imprecise concept, particularly with respect to the nebulous notion of customary international law. As a result, disputes over the Martís are unlikely to be resolved at this high level of generalization. It may, however, be helpful to consider the broadcasts under a more concrete mechanism of international law.
This post is the first in a two-part series on the Martís. Part II is available here.
 Munzenrieder, Raul Castro Demands Return of Guantanamo, End of Radio and TV Marti, and Payments, Miami New Times, January 28, 2015.
 See, e.g. Helle C. Delle, Ray Waiser, Ph.D. & Morgan L. Roach, Friend of Liberty: Cuba Broadcasting Targets the Castro Tyranny, The Backgrounder, Published by the Heritage Foundation, (Dec. 17, 2010) available at http://www.heritage.org/research/reports/2010/12/friend-of-liberty-cuba-broadcasting-targets-the-castro-tyranny; see also Stephen D. Bayer, The Legal Aspects of TV Marti in Relation to the Law of Direct Broadcasting Satellites, 41 Emory L.J. 541 (1992).
 22 U.S.C. § 1465(a) (2014)
 Julia A. Sweig, Fidel’s Final Victory, 86 Foreign Aff. 39, 50 (2007); but see Delle, Waiser & Roach, Supra, Note 2, at 6 (Claiming that common criticisms of the Martís are overstated and characterizing Sweig as “a long-standing advocate of closer ties with the Castro regime, frequent visitor to the island, and occasional interlocutor with Fidel Castro”).
 Delle, Waiser & Roach, Supra, Note 2 at 5.
 Later amended by Executive Order 12366, permitting the President to appoint 12 members to the Commission. The National Archives, “Executive Orders Disposition Tables, Ronald Reagan: Executive Order 12366,” May 25, 1982, at http://www.archives.gov/federal-register/executive-orders/1982.html.
 See Delle, Waiser & Roach, Supra Note 2 at 4–6.
 Donald E. Schulz, The United States and Cuba: From a Strategy of Conflict to Constructive Engagement, Strategic Studies Institute, U.S. Army War College (1993) available at http://www.dtic.mil/dtic/tr/fulltext/u2/a265785.pdf.
 Id. at 26.
 Inter-American Dialogue, Cuba in the Americas: Reciprocal Challenges (1992) available at http://www.thedialogue.org/PublicationFiles/Cuba%20in%20the%20Americas%20Reciprocal%20Challenges.pdf.
 See e.g. Lizette Alvarez, Radio and TV Martí, U.S. Broadcasters to Cuba, Emerge from Cold War Past Facing Uneasy Future, New York Times, March 24, 2015 (Mentioning repeated legislation introduced by Representative Betty McCollum, Democrat of Minnesota).
 Cuba: Immediate Action is Needed to Ensure the Survivability of Radio and TV Martí, A Report to the Committee on Foreign Relations, United States Senate, 11th Congress, 2d Session, S.Prt. 111-46 (April 29, 2010) available at http://www.foreign.senate.gov/imo/media/doc/56157.pdf.
 Constitution of the Republic of Cuba, 1992, Art. 12(g), available at http://www.cubanet.org/htdocs/ref/dis/const_92_e.htm.
 Id. at Art. 53.
 Cuba Verdad, “Crime of Enemy Propaganda,” available at http://www.cubaverdad.net/crime_of_enemy_propaganda.htm (citing Article 103 of the Cuban Penal Code).
 See Delle, Waiser & Roach, Supra Note 2 at 4.
 See, e.g. Elizabeth A. Downey, A Historical Survey of the International Regulation of Propaganda, in MICHIGAN YEARBOOK OF INTERNATIONAL LEGAL STUDIES: REGULATION OF TRANSNATIONAL COMMUNICATIONS 341 (1984).
 See Bayer, Supra Note 2 at 550 (reviewing definitions offered by two influential academics and the UN Committee on the Peaceful U.S.es of Outer Space, respectively)(internal citations omitted).
 Abram Chayes & Paul Laskin, A Report on the Panel on International Telecommunications Policy, in DIRECT BROADCASTING FROM SATELLITES: POLICIES AND PROBLEMS 1, 8 (1975).
 See Bayer, Supra Note 2 at 547–48 (citing experts claiming that the basic idea of national sovereignty is “the most fundamental principle of international law”).
 See, e.g., Joel R. Paul, Images From Abroad: Making Direct Broadcasting by Satellites Safe for Sovereignty, 9 HASTINGS INT’L & COMP. L. REV. 329, 346 (1986).
 Jost Delbrueck, International Protection of Human Rights and State Sovereignty, in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAW 265 (Frederick E. Snyder & Surakiart Sathirathai eds., 1987). See U.N. CHARTER ch. VII & arts. 1, 13, 55.
 See Bayer, supra Note 2 at 557.
 Id. at 556.