President Obama’s Major Speech at the Summit of the Americas

On April 10 and 11, Cuba for the first time was welcomed to the Summit of the Americas. Presidents Raul Castro and Barack Obama exchanged handshakes and friendly greetings, and their speeches promised commitment to the process of reconciliation. Other leaders of the Americas celebrated this demonstration of reconciliation.

President Obama made several speeches and remarks at the Summit. This post will discuss his April 11th speech to the Summit’s plenary meeting; subsequent posts will cover his other remarks and those of President Castro.

 President Obama’s Speech

Obama

“When I came to my first Summit of the Americas six years ago, I promised to begin a new chapter of engagement in this region.  I believed that our nations had to break free from the old arguments, the old grievances that had too often trapped us in the past; that we had a shared responsibility to look to the future and to think and act in fresh ways.  I pledged to build a new era of cooperation between our countries, as equal partners, based on mutual interest and mutual respect.  And I said that this new approach would be sustained throughout my presidency; it has, including during this past year.  I’ve met that commitment.”

“We come together at a historic time.  As has already been noted, the changes that I announced to U.S. policy toward Cuba mark the beginning of a new relationship between the people of the United States and the people of Cuba.  It will mean, as we’re already seeing, more Americans traveling to Cuba, more cultural exchanges, more commerce, more potential investment.  But most of all, it will mean more opportunity and resources for the Cuban people.  And we hope to be able to help on humanitarian projects, and provide more access to telecommunications and the Internet, and the free flow of information.”

“We continue to make progress towards fulfilling our shared commitments to formally reestablish diplomatic relations, and I have called on Congress to begin working to lift the embargo that’s been in place for decades.  The point is, the [U.S.] will not be imprisoned by the past.  We’re looking to the future and to policies that improve the lives of the Cuban people and advance the interests of cooperation in the hemisphere.”

“This shift in U.S. policy represents a turning point for our entire region.  The fact that President Castro and I are both sitting here today marks a historic occasion.  This is the first time in more than half a century that all the nations of the Americas are meeting to address our future together.  I think it’s no secret — and President Castro, I’m sure, would agree — that there will continue to be significant differences between our two countries.  We will continue to speak out on behalf of universal values that we think are important.  I’m sure President Castro will continue to speak out on the issues he thinks are important.”

“But I firmly believe that if we can continue to move forward and seize this momentum in pursuit of mutual interests, then better relations between the [U.S.] and Cuba will create new opportunities for cooperation across our region — for the security and prosperity and health and dignity of all our people.”

“Now, alongside our shift toward Cuba, the [U.S.] has deepened our engagement in the Americas across the board.  Since I took office, we’ve boosted U.S. exports and also U.S. imports from the rest of the hemisphere by over 50 percent.  And that supports millions of jobs in all of our countries.  I’ve proposed $1 billion to help the people of Central America strengthen governance, and improve security and help to spark more economic growth and, most importantly, provide new pathways for young people who too often see their only prospects an underground economy that too often leads to violence.”

“We’re partnering with countries across the region to develop clean, more affordable and reliable energy that helps nations to combat the urgent threat of climate change, as [Brazil’s] President Rousseff already noted.  Our 100,000 Strong in the Americas initiative is working to bring 100,000 students from Latin America to the [U.S.] and 100,000 students from the [U.S.] to Latin America.  The new initiatives that I announced in Jamaica will help empower a new generation of young people across the Americas with the skills and job training that they need to compete in the global economy.”

“During the course of my meetings with CARICOM [Caribbean Community], as well as my meetings with SICA [System for Integration of Central America] as well as the discussions that I’ve had with many of you bilaterally, there have been additional ideas that we’re very interested in — finding ways in which we can expand access to the Internet and broadband; how we can structure private-public partnerships to rebuild infrastructure across the region; and to expand our commercial ties in a broad-based and inclusive way.  Because I am firmly of the belief that we will only succeed if everybody benefits from the economic growth, not just a few at the top.”

“At home, I’ve taken executive actions to fix as much of our broken immigration system as I can, which includes trying to help people come out of the shadows so that they can live and work in a country that they call home.  And that includes hundreds of thousands of young people we call DREAMers, who have already received temporary relief.  And I’m remaining committed to working with our Congress on comprehensive immigration reform.”

“So the bottom line is this:  The [U.S.] is focused on the future.  We’re not caught up in ideology — at least I’m not.  I’m interested in progress and I’m interested in results.  I’m not interested in theoretic arguments; I’m interested in actually delivering for people.  We are more deeply engaged across the region than we have been in decades.  And those of you have interacted with me know that if you bring an issue to my attention, I will do my best to try to address it.  I will not always be able to fix it right away, but I will do my best.”

“I believe the relationship between the [U.S.] and the Americas is as good as it has ever been.  I’m here today to work with you to build on this progress.  Let me just mention a few areas in which I think we can make more progress.”

“First, we will continue to uphold the Inter-American Democratic Charter, which states that “the peoples of the Americas have a right to democracy.”  I believe our governments, together, have an obligation to uphold the universal freedoms and rights of all our citizens.  I want to again commend [Panama’s] President Varela and Panama for making civil society groups from across the region formal partners in this summit for the first time.  I believe the voices of our citizens must be heard.  And I believe going forward, civil society should be a permanent part of these summits.”

“Second, we have to focus on reigniting economic growth that can fuel progress further in those communities that have not been reached.  And that means making the Americas more competitive.  We still have work to do to harmonize regulations; encourage good governance and transparency that attracts investment; invest in infrastructure; address some of the challenges that we have with respect to energy.  The cost of energy in many communities — in many countries, particularly in Central American and the Caribbean, are so high that it presents a great challenge to economic development, and we think that we can help particularly around clean energy issues.”

“We have to confront the injustice of economic inequality and poverty.  I think that collectively we are starting to identify what programs work and which programs do not work.  And we should put more money in those things that do work, and stop doing those things that don’t.  We don’t have money to waste because of too many young people out there with enormous needs.  I think President Varela is right to focus particularly on education and skills building.  And this is an agenda which we should all tackle collectively.”

“Third, we have to keep investing in the clean energy that creates jobs and combats climate change.  The [U.S.] is today leading this global effort, along with many of you.  And I should point out that America’s carbon pollution is near its lowest level in almost two decades.  Across the Americas, I think we have the opportunity to expand our clean energy partnerships and increase our investments in renewables.”

“And finally, we have to stand firm for the security of our citizens.  We must continue to join with our partners across the region, especially in Central America, but also in the Caribbean, to promote an approach, a holistic approach that applies rule of law, respects human rights, but also tackles the narco-traffickers that devastate so many communities.  This is a shared responsibility.  And I’ve said before that the [U.S.] has a responsibility to reduce the demand for drugs and to reduce the flow of weapons south, even as we partner with you to go after the networks that can cause so much violence.”

“So, a new relationship with Cuba.  More trade and economic partnerships that reduce poverty and create opportunity, particularly focusing on education.  Increased people-to-people exchanges.  More investment in our young people.  Clean energy that combats climate change.  Security cooperation to protect our citizens and our communities.  That’s the new chapter of engagement that the [U.S.] is pursuing across the Americas.”

“I want to make one last comment addressing some of the points that [Ecuador’s] President Correa raised and I’m sure will be raised by a few others during this discussion.  I always enjoy the history lessons that I receive when I’m here.  I’m a student of history, so I tend to actually be familiar with many of these episodes that have been mentioned.  I am the first one to acknowledge that America’s application of concern around human rights has not always been consistent.  And I’m certainly mindful that there are dark chapters in our own history in which we have not observed the principles and ideals upon which the country was founded.”

“Just a few weeks ago, I was in Selma, Alabama celebrating the 50th anniversary of a march across a bridge that resulted in horrific violence.  And the reason I was there, and the reason it was a celebration, is because it was a triumph of human spirit in which ordinary people without resort to violence were able to overcome systematic segregation.  Their voices were heard, and our country changed.”

“America never makes a claim about being perfect.  We do make a claim about being open to change.  So I would just say that we can, I suppose, spend a lot of time talking about past grievances, and I suppose that it’s possible to use the [U.S.] as a handy excuse every so often for political problems that may be occurring domestically.  But that’s not going to bring progress.  That’s not going to solve the problems of children who can’t read, who don’t have enough to eat.  It’s not going to make our countries more productive or more competitive in a global economy.”

“So I just want to make very clear that when we speak out on something like human rights, it’s not because we think we are perfect, but it is because we think the ideal of not jailing people if they disagree with you is the right ideal.”

“Perhaps President Correa has more confidence than I do in distinguishing between bad press and good press.  There are a whole bunch of press that I think is bad, mainly because it criticizes me, but they continue to speak out in the [U.S.] because I don’t have confidence in a system in which one person is making that determination.  I think that if we believe in democracy it means that everybody has the chance to speak out and offer their opinions, and stand up for what they believe is right, and express their conscience, and pray as they would, and organize and assemble as they believe is appropriate — as long as they’re not operating violently.”

“So we will continue to speak out on those issues not because we’re interested in meddling, but because we know from our own history.  It’s precisely because we’re imperfect that we believe it’s appropriate for us to stand up.  When Dr. King was in jail, people outside the United States spoke up on his behalf.  And I would be betraying our history if I did not do the same.”

“The Cold War has been over for a long time.  And I’m not interested in having battles that, frankly, started before I was born.  What I am interested in is solving problems, working with you.  That’s what the [U.S.] is interested in doing.  That’s why we’ve invested so much in our bilateral relationships, and that’s why I will continue to invest in creating the kind of spirit of equal partnership and mutual interest and mutual respect upon which I believe progress can advance.”

 

 

 

President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On April 14th President Barack Obama rescinded the U.S. designation of Cuba as a “State Sponsor of Terrorism” and so notified the Congress. This post will review that decision and its background. [1]

As discussed in a prior post, on December 17, 2014, President Obama asked Secretary of State John Kerry to undertake a review of whether the U.S. should rescind this designation while another post reviewed the statutory framework for this process: review and recommendation by the Department of State followed by a decision by the president and notification of such a decision to the Congress with such a decision to become effective 45 days after that notification. Yet another post set forth the reasons why this blogger believes that such past designations of Cuba have been unjustified, absurd, ridiculous.

 State Department’s Recommendation

Secretary of State’s Press Statement.

On April 14, 2015, Secretary Kerry publicly announced that the State Department had recommended that the President rescind the designation of Cuba as a “State Sponsor of Terrorism.” His press release stated that last week the “Department submitted a report to the White House recommending, based on the facts and the statutory standard, that President Obama rescind Cuba’s designation as a State Sponsor of Terrorism.”

“This recommendation,” the Statement continued, “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba.”

Nevertheless, according to the Secretary’s statement, “the United States has had, and continues to have, significant concerns and disagreements with a wide range of Cuba’s policies and actions, [but] these concerns and disagreements fall outside of the criteria for designation as a State Sponsor of Terrorism.”

Department’s Background Briefing.

At a special briefing on April 14th, a senior State Department official noted, “the Cubans have for a long time shown us many, many, many speeches by their leaders, both Fidel and Raul, in which they have rejected terrorism; many instances, in fact, of terrorist acts that they have decried publicly, I think the latest probably being the Charlie Hebdo incident in France. But certainly, there are lots of incidents that they can point to. And in terms of commitments for the future, they point to both statements by their leadership and ratifications of international treaties, and the assurances that they gave us.”

Another senior official stated, ”the assurances they provide were fairly wide-ranging and fairly high-level. . . . [T]hey addressed the key elements that we know in the past have been a factor. [T]hey also addressed the pledge or the assurances that they will no longer support acts of terrorism in the future.”

One of the officials in response to a journalist question said, “The statutes . . . provide that no rescission can be made if within 45 days after the receipt of the report from the President the Congress enacts a joint resolution on the issue prohibiting the rescission. The President, of course, can veto any such joint resolution and Congress then, of course, can further act to override the veto. . . . Congress has the right to act.”

 President Obama’s Decision

That same day (April 14) a White House press release stated the President had “submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation.”

This presidential decision was based upon the previously mentioned State Department recommendation that was based on its “careful review of Cuba’s record, which was informed by the Intelligence Community, as well as assurances provided by the Cuban government.”

This press release also stated, “As the President has said, we will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions fall outside the criteria that is relevant to whether to rescind Cuba’s designation as a State Sponsor of Terrorism.  That determination is based on the statutory standard – and the facts – and those facts have led the President to declare his intention to rescind Cuba’s State Sponsor of Terrorism designation.  More broadly, the [U.S.] will continue to support our interests and values through engagement with the Cuban government and people.”

  • The actual presidential message to Congress was even shorter. It stated, “Pursuant to the Constitution and the laws of the United States, and consistent with section 6(j)(4)(B) of the Export Administration Act of 1979, Public Law 96-72, as amended (50 U.S.C. App. 2405(j)), and as continued in effect by Executive Order 13222 of August 17, 2001, I hereby certify, with respect to the rescission of the determination of March 1,
    1982, regarding Cuba that:(i) the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and

    (ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.

This certification shall also satisfy the provisions of section 620A(c)(2) of the Foreign Assistance Act of 1961, Public Law 87-195, as amended (22 U.S.C. 2371(c)), and section 40(f)(1)(B) of the Arms Export Control Act, PublicLaw 90-629, as amended (22 U.S.C. 2780(f)).”

Reactions to the Decision

Senators Patrick Leahy (Dem., VT), Dick Durbin (Dem., IL) and Benjamin Cardin (Dem., MD) were among those officials who offered immediate support of the decision. Geoff Thale of the Washington Office on Latin America, a private group that promotes democracy in the hemisphere, said: “Taking Cuba off the list of terrorist states is a sensible, and long-overdue step. Whatever U.S. and Cuban differences, the Cuban government has not been a supporter of terrorism.  Taking Cuba off the list will remove an unnecessary irritant in the relationship, and perhaps allow us to discuss the real differences we do have in a more serious way. It should help pave the way for normal diplomatic relations.” The same sentiment came from another U.S. NGO focusing on Latin America, the Latin American Working Group.

Josefina Vidal, Cuba’s top diplomat for U.S. Affairs, endorsed the decision. She said, “The Cuban government recognizes the just decision taken by the President of the [U.S.] to eliminate Cuba from a list on which it never should have been included, especially considering that our country has been the victim of hundreds of acts of terrorism that have cost 3,478 lives and disabled 2,099 Cuban citizens. As the Cuban government has reiterated on multiple occasions, Cuba rejects and condemns all acts of terrorism in all their forms and manifestations, as well as any action that is intended to instigate, support, finance or conceal terrorist acts.”

Not surprisingly long time Cuban-American opponents of the U.S.-Cuba rapprochement criticized this decision: U.S. Senators Marco Rubio (Rep., FL) and Robert Menendez (Dem., NJ) and Representatives Ileana Ros-Lehtine (Rep., FL) and Mario Diaz-Balart (Rep., FL).

Rubio’s opposition undercuts his just-announced presidential campaign assertion that the “time has come for our generation to lead the way toward a new American Century.” In contrast, he said, “too many of our leaders and their ideas are stuck in the twentieth century. They are busy looking backward. . . . They look for solutions in yesterday.” Sorry, Senator Rubio, your ideas and solutions for U.S.-Cuba relations “are stuck in the twentieth century . . . in yesterday.” Stop looking backward!

===================================================

[1] This post is based upon the sources which are hyperlinked in this post along with the following: Archibold & Davis, Obama Endorses Removing Cuba From Terrorism List, N.Y. Times (April 14, 2015); Reuters, Obama Tells Congress He Plans to Remove Cuba From Terrorism List, N.Y. Times (April 14, 2015), Reuters, Cuba Gave U.S. Assurances It Will Not Support Terrorism in Future: U.S. Officials, N.Y. Times (April 14, 2015); Assoc. Press, Obama to Remove Cuba From State Sponsor of Terror List, N.Y. Times (April 14, 2015); DeJong, Obama removes Cuba from the list of state sponsors of terrorism, Wash. Post (April 14, 2015); Tharoor, After 33 years, the U.S. dropped its claim that Cuba sponsors terrorism. Here’s what it means, Wash. Post (Apr. 14, 2015); Barack Obama announces intent to remove Cuba from list of state sponsors of terrorism, Granma (April 14, 2015); Wash. Office on Latin America, Press Release: White House Announces Cuba’s Removal from ‘State Sponsors of Terror List (April 14, 2015); Latin American Working Group, Statement about Cuba’s removal from list (April 14, 2015); Assoc. Press, Cubans Hail Removal From US List of State Terrorism Sponsors, N.Y. Times (April 15, 2015). The actual State Department recommendation could not be found on the Internet, but when it is so available, another blog post will review that document

 

 

 

 

 

 

 

 

Seventh Summit of the Americas Is Underway in Panama

Summit logoThe Seventh Summit of the Americas will take place in Panama City, Panama on April 10 and 11. Such Summits are institutionalized gatherings of heads of state and government of the member states of the Western Hemisphere where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced by countries in the Americas. [1]

In the meantime, preliminary Summit events are underway while planning for the meetings of heads of state and government are nearly complete.

This post will review the plans for this Summit by the organizers and then discuss Summit developments involving the U.S., Cuba and Venezuela. [2]

 The Summit Organizers’ Plan

The Summit’s central theme is “Prosperity with Equity: The Challenge of Cooperation in the Americas” with several sub-themes, including education, health, energy, environment, migration, security, citizen participation and democratic governance. These issues will be discussed by 35 heads of state and government. In addition to these officials, the Vatican Secretary of State, Cardinal Pietro Parolin, will attend.

The priority of the organizers in Panama is to work on a comprehensive document titled “Mandates for Action”, which will contain agreements from all countries involved on topics related to health, education, security, migration, environment, energy, democratic governance and citizen participation.

The Summit’s main events will take place in the ATLAPA Convention Center in central Panama City as shown in the photograph below.

PanamaCtr

The Summit also will host the four following forums:

  • Civil Society Forum will seek to promote governments’ consultation and coordination, dialogue and exchange with civil society. It also will offer input and recommendations for the consideration of the participating States.
  • The Youth Forum will provide young entrepreneurs an opportunity to offer their recommendations to the participating States.
  • The Business Forum will explore the trade and investment opportunities and public-private sector cooperation.
  • The University Presidents’ Forum will focus on academic mobility, the role of innovation and technology in enhancing research skills and college education for the region; and the importance of scholarly research on entrepreneurship and sustainable economic development.

 U.S. Plans for the Summit

 A prior post reviewed some of the U.S preparations for the Summit. In addition, the U.S. Department of State asserts that this Summit “is an historic opportunity to deepen partnerships, collaborate on shared challenges, and make tangible commitments to securing a brighter future for all of the people of the Americas. . . . The [U.S.] is working closely with partners throughout the Americas to ensure the 2015 Summit upholds our common commitment to inclusive economic development, democracy, and human rights, while providing robust engagement among government leaders, civil society groups, and regional business communities.”

The U.S. especially has been calling for the participation of Cuban civil society in the Summit. Indeed, in his December 17th announcement of the rapprochement with Cuba, President Obama said, “we are prepared to have Cuba join the other nations of the hemisphere at the Summit. . . . But we will insist that civil society join us so that citizens, not just leaders, are shaping our future.”

Interestingly I have not seen any news or information about the U.S. inviting U.S. civil society, youth, business or university presidents to participate in the Summit.

The U.S. was hoping that by the time of the Summit, the U.S. and Cuba would have re-established normal diplomatic relations and that this would be an occasion for the two countries to enjoy receiving congratulations from the other countries in the Americas.

The resumption of normal relations, however, has not yet happened, and now there are many countries demonstrably upset over President Obama’s executive order of March 9th imposing sanctions on seven Venezuelans. This week at Venezuela’s invitation, a senior Department of State official went to Venezuela to meet with the country’s foreign minister.

The Washington Post this week published an editorial criticizing the U.S. opening to Cuba. It said there have been no benefits to the U.S. to date while Cuba has gained. President Castro will attend the Summit. Soon the U.S. probably will rescind its designation of Cuba as a “State Sponsor of Terrorism” in disregard of Cuba’s alleged “continued support for Colombia’s terrorist groups, its illegal arms trading with North Korea and the sanctuary it provides American criminal JoAnne Chesimard.” In addition, says the editorial, Cuba is joining Venezuela in unjustifiably attacking the U.S. over President Obama’s executive order imposing sanctions on seven Venezuelans.

Cuba’s Plans for the Summit

According to the Cuban press, the country has been preparing for full participation in the Summit. The Cuban Minister of Foreign Trade and Foreign Investment, Rodrigo Malmierca, emphasized that over 100 representatives of Cuban civil society, including youth, academics, intellectuals, entrepreneurs and coop leaders would be going to the Summit. They will show the possibilities that Cuba provides for the development of international economic relations from the adoption of Law 118 Foreign Investment and Development Special Zone Mariel (ZEDM).

On Tuesday pro-government representatives of Cuban civil society in Panama issued a statement denouncing the presence at the Summit of other Cubans who allegedly were “mercenaries paid by the historic enemies of our nation,” i.e., the U.S. Such Cubans, the pro-government representatives said, “make up a tiny ‘opposition’ manufactured from abroad, lacking any legitimacy or decorum. Several of its members are publicly linked to recognized terrorists who have caused infinite pain to the Cuban people.”

The statement asserted, “It is offensive that such people, who have made betraying the homeland a well-paid profession and shamefully usurp the name of the country that they slander and offend day after day, are participating in these forums. For the dignified and sovereign Cuba that has withstood more than five decades of blockade and harassment, for the overwhelming majority of Cubans, for us, we who have come to Panama with modesty and a spirit of cooperation to share experiences of our social development, it is unacceptable that there are people of such low moral character here.”

The next day, Wednesday, during one of the forums, about 100 supporters of Cuba’s government heckled Cuban dissidents by calling them “imperialist” and “mercenaries” Organizers appealed for calm during the hour-long frenzied scene. The pro-government groups joined by pro-government groups from Venezuela angrily marched out, saying they wouldn’t attend the proceedings in the presence of individuals they accuse of trying to destabilize Cuba’s government.

From Havana, Cuban Vice-President (and reputed future president) Miguel Diaz-Canel, stated, “Nobody could think that in a process of re-establishing relations, which we’re trying to move forward on with the [U.S.], Cuban support for Venezuela could be made conditional. If they attack Venezuela, they’re attacking Cuba. And Cuba will always be on Venezuela’s side above all things.”

A Cuban online newspaper, CubaDebate, has a journalist in Panama to provide minute-by-minute tweets about the Summit.

Venezuela’s Plans for the Summit

Venezuela plans to make a major effort to obtain the Summit’s condemnation of President Obama’s executive order imposing sanctions on seven Venezuelans. For example, President Maduro will bring a petition against the executive order that has been signed by over nine million of his people. A Caracas pollster said, “Maduro is taking advantage of Obama’s order. It’s an extreme campaign that distracts from the internal problems of the country. You just want your people in the street, proselytizing and campaigning.”

In addition, Maduro’s political allies are sending 825 activists to the Summit to protest Obama and support Maduro.”There will be marches, caravans and anti-imperialist stands,” said Rafael Uzcategui, secretary general of the ruling Fatherland for All, who said that Nicaragua, a close ally of Chavez, will send a delegation with a similar purpose.

Others plan to focus on Venezuela’s alleged human rights violations. In recent weeks many countries and human rights organizations have criticized Venezuela’s imprisonment of political dissidents. This includes the U.N., the European Parliament, the governments of the U.S., Spain, Canada and Colombia and the Socialist International, Amnesty International and Human Rights Watch, among others.

Now 21 Latin American presidents have issued a statement to denounce the “democratic alteration” of Venezuela and to advocate for the release of prisoners and the restoration of political autonomy. Their proposed Declaration of Panama asks the Summit of the Americas to seek a solution to the Venezuelan crisis “that respects the constitutional principles and international standards.” The signers of this statement include Colombians Andres Pastrana, Alvaro Uribe and Belisario Betancur; Costa Ricans Laura Chinchilla, Rafael Calderon, Miguel Angel Rodriguez and Luis Alberto Monge; Chilean Sebastián Piñera ; and Spain’s José María Aznar.

In addition, this week 28 human rights organizations across the continent (including: Human Rights Watch, Amnesty International, Transparency International and the International Commission of Jurists) issued a statement requiring cessation of “harassment against human rights defenders of human rights ” and called on the governments participating in the Summit of the Americas” to demand the government of Nicolas Maduro to ensure that the defenders and human rights defenders can carry out their work without fear of reprisal.”

A group of Venezuelan human rights organizations will be going to Panama to present their complaints about human rights in their country. President Maduro’s response is to call them “CIA stooges.”

Conclusion

New York Times editorial has urged U.S. and Cuban government officials at the Summit to “not ignore” the Cuban civil society representatives, “but rather work to amplify their voices. They have struggled for years to be heard in their own country, where those critical of the Communist system have faced repression.” The Times also notes that some Cubans “who cannot afford a trip to Panama or are restricted from traveling have pledged to hold a parallel meeting in Cuba. . . . Increasingly, the [Cuban] government will have to reckon with the fact that many of the dissidents’ aspirations are shared by most Cubans.”

Now we will have to see what actually happens at the rest of the Summit.

===========================================

[1] Prior Summits were held in Miami, Florida, USA (I, 1994); Santiago, Chile (II, 1998); Quebec City, Canada (III, 2001); Mar del Plata, Argentina (IV, 2005); Port of Spain, Trinidad and Tobago (V, 2009); and Cartagena, Colombia (VI 2012). This process also held a Summit on Sustainable Development in Santa Cruz, Bolivia in 1996 and a Special Summit in Monterey, Mexico in 2004.

[2] In addition to information from the Summit’s website, this post is based upon the following: Vyas, Venezuela’s Maduro Takes Petition Against U.S. Sanctions to Summit of the Americas, W.S.J. (April 8, 2015); Sanchez, Senior U.S. official in Venezuela for meetings with Maduro, Wash. Post (April 8, 2015); Goodman & Rodriguez, Cuban dissidents heckled at Americas Summit, Wash. Post (April 8, 2015); Statement by the Cuban delegation to the parallel forums of the Summit of the Americas, Granma (April 7, 2015); Gómez, Given the presence of mercenaries, Cuban delegation abandons Civil Society Forum, Granma (April 8, 2015); Editorial, Mr. Obama’s opportunity in Panama, Wash. Post (April 7, 2015); Neuman, In a Surprise, a Top Kerry Adviser Visits Venezuela, N.Y. Times (April 8, 2015); Reuters, Defying U.S., Cuba Stands by Venezuela on Eve of Regional Summit, N.Y. Times (April 8, 2015); Meza, US seeks to open a channel for dialogue with the government of Maduro, El Pais (April 9, 2015).

 

 

 

 

U.S. Clarifies Positions on Cuba and Venezuela in Preparation for Summit of the Americas

This coming Friday, April 10, President Obama, Secretary of State Kerry and other U.S. officials will be in Panama for the Seventh Summit of the Americas. In preparation for this major meeting, President Obama and other officials have been clarifying U.S. positions about Cuba and Venezuela. The New York Times also chimed in with an editorial about U.S. and Cuba.[1]

Cuba

During a April 4th interview with New York Times columnist, Thomas Friedman, President Obama said, “engagement,” combined with meeting core strategic needs, could serve American interests vis-à-vis [Cuba as well as Iran and Burma] . . . far better than endless sanctions and isolation. He added that America, with its overwhelming power, needs to have the self-confidence to take some calculated risks to open important new possibilities. “

“You take a country like Cuba. For us to test the possibility that engagement leads to a better outcome for the Cuban people, there aren’t that many risks for us. It’s a tiny little country. It’s not one that threatens our core security interests, and so [there’s no reason not] to test the proposition. And if it turns out that it doesn’t lead to better outcomes, we can adjust our policies.”

The President made other comments about Cuba this week in an interview by National Public Radio. He said, “As soon as I get a recommendation [from the State Department on rescinding the designation of Cuba as a “State Sponsor of Terrorism”], I’ll be in a position to act on it.” The President added, “The criteria is [sic] very straightforward. Is this particular country considered a state sponsor of terrorism — not, do we agree with them on everything, not whether they engage in repressive or authoritarian activities in their own country. I think there’s a real opportunity here, and we are going to continue to make – move forward on it. Our hope is to be in a position where we can open an embassy there, that we can start having more regular contacts and consultations around a whole host of issues, some of which we have interests in common.”

Benjamin J. Rhodes, a deputy national security adviser in the White House and a principal U.S. negotiator of the agreement with Cuba to engage in reconciliation, said this week that the terrorism review is likely in the final stages. “It made no sense that the [U.S.] consistently essentially made the decision to isolate ourselves from the rest of the Americas because we were clinging to a policy that wasn’t working. We would anticipate that this [rescission of the terrorism designation] does help begin to remove a significant impediment to having a more constructive engagement in the hemisphere, because we demonstrated an openness to engage all the countries in the Americas, to include Cuba.”

These remarks have prompted a lot of speculation that just before or at the Summit, the State Department will announce that it has finished its review of its designation of Cuba as a “State Sponsor of Terrorism” and concluded that it should be rescinded and that the President has decided to do just that.

Venezuela

Mr. Rhodes also tried to dampen Latin American outcries against the President’s March 9th executive order imposing sanctions against seven Venezuelans and stating that “[T]he situation in Venezuela . . . constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and [the President] hereby declare a national emergency to deal with that threat.”[2]

According to Mr. Rhodes this week, the wording of the executive order “is completely pro forma.  This is a language that we use in executive orders around the world.  So the [U.S.] does not believe that Venezuela poses some threat to our national security. We . . . just have a framework for how we formalize these executive orders.” Moreover, the executive order was not “aimed at targeting the Venezuelan government broadly or bringing about some type of dramatic change in terms of the government of Venezuela.  It was focused on a number of individuals who had been determined to be associated with human rights violations.  And we have executive orders like this around the world, and they’re a tool that allows us to have consequences associated with our support for universal values.” [3]

New York Times Editorial

An April 7th editorial in the New York Times recognizes the obvious: the change is unfolding slowly. “Untangling the web of sanctions the [U.S.] imposes on Cuba will take years because many are codified into law. The Cuban government, while publicly welcoming a rapprochement, seems intent on moving cautiously at a pivotal moment when its historically tight grip on Cuban society will inevitably be tested.”

Nevertheless, the Times argues, “it has already reset Cubans’ expectations about their future and their nation’s role in a global economy.” And “it has made it increasingly hard for [Cuba’s] leaders to blame their economic problems and isolation on the [U.S.].”

Moreover, the Times points out, “some early concrete steps are promising. Obama administration officials and business executives have met in recent weeks with Cuban officials to explore how American companies can help upgrade the nation’s telecommunications infrastructure and provide cheaper and more available Internet service. Executives from Google, whose platforms and services are widely desired in Cuba, visited the island in mid-March to make headway in the company’s goal of establishing its presence there.

In addition, “Airbnb, the company based in San Francisco that allows people to list their homes online for short-term rentals, announced last week that it had broken into the Cuban market, unveiling 1,000 listings there. That debut in Cuba could boost the small, but growing private sector in a nation where people have only recently been allowed to earn a living outside state employment.”

The new U.S. policy of engagement is gaining the increased support of Cuban-Americans. A “poll conducted last month by Bendixen & Amandi International found that 51 percent of Cuban-Americans agreed with the decision to start normalizing relations with Cuba, an increase from 44 percent in a survey in December.”

===========================================

[1] This post is based upon the following sources: Friedman, Iran and the Obama Doctrine, N.Y. Times (April 5, 2015); Nat’l Pub. Radio, Transcript: President Obama’s Full NPR Interview On Iran Nuclear Deal (April 7, 2015); White House, On-the-Record Conference Call on the P{resident’s Trip to Jamaica and Panama (April 7, 2015); Reuters, Obama Says Would Move Fast to Take Cuba Off Terrorism Sponsor List, N.Y. Times (April 7, 2015); Reuters, U.S. Closing In on Recommendation to Remove Cuba From State Terrorism List, N.Y. Times (April 7, 2015); Davis, Latin American Trip Will Test Obama’s Push for Ties with Cuba, N.Y. Times (April 8, 2015); Neuman, White House Seeks to Soothe Relations with Venezuela, N.Y. Times (April 7, 2015); Editorial, Cuban Expectations in a New Era, N.Y. Times (April 7, 2015).

[2] The President’s executive order and the reactions in Latin America were subjects of posts on March 16, 18, 19 and 20.

[3] Mr. Rhodes’ dismissal of the preamble to the executive order, in my opinion, is undoubtedly correct as a matter of U.S. national security and is helpful in trying to calm Latin American nerves, But Rhodes’ comment raises a troubling question. I assume the preamble is based upon a federal statute allowing certain sanctions to be imposed in certain circumstances threatening national security. If that is the law and if, in fact, Venezuela does not impose a threat to national security, then is the executive order illegal under U.S. law?

 

Resolution of U.S. and Cuba’s Damage Claims   

The United States has damage claims against Cuba and visa versa. This post will review those claims and propose a method for resolving them.

U.S. Claims

Cuba’s Expropriation of Property of U.S. Nationals. [1]

According to a U.S. Government report, “in 1959 and 1960 . . . the Government of Cuba after the Castro regime came into power . . . effectively seized and took into state ownership most of the property in that country owned by the [U.S.] and its nationals, with the exception of the United States Naval Base at Guantanamo Bay. No provision was made by the Cuban Government for the payment of compensation for such property as required under the generally accepted rules of international law.” (Cuba, however, has paid similar claims by Canada, France, Spain and Switzerland.) [2]

In response, a federal statute, the Cuba Claims Act, was enacted in 1964 to amend the International Claims Settlement Act of 1949 to grant the Foreign Claims Settlement Commission of the United States (FCSC), a quasi-judicial, independent agency within the U.S. Department of Justice, jurisdiction to receive and determine in accordance, with applicable substantive law, including international law, the amount and validity of certain claims by U.S. nationals of the against the Government of Cuba.

The covered claims for this purpose were those arising since January 1, 1959, for (a) “losses resulting from the nationalization expropriation, intervention or other taking of, or special measures directed against, property including any rights or interests therein owned wholly or partially, directly or indirectly at the time by nationals of the [U.S.];” (b) debts for merchandise furnished or services rendered by U.S. nationals; and (c) disability or death of U.S. nationals resulting from actions taken by, or under the authority of, the Government of Cuba since January 1, 1959.

The statute, however, did not provide for the payment of claims against the Government of Cuba, but only for the Commission to determine the validity and amounts of such claims. After its determinations, the Commission certified its findings to the Secretary of State for possible use in future negotiations with the Government of Cuba.

In signing the statute on October 16, 1964, President Lyndon Johnson said: “The Castro regime has appropriated over $1 billion worth of property of [U.S.] nationals in total disregard for their rights. These unlawful seizures violated every standard by which the nationals of the free world conduct their affairs. I am confident that the Cuban people will not always be compelled to suffer under Communist rule-that one day they will achieve freedom and democracy. I am also confident that it will be possible to settle claims of American nationals whose property has been wrongfully taken from them.”[3]

The Commission had two programs for such claims against the Cuban government, resulting in the total submission of 8,821 claims and the Commission’s determinations that 5,913 were valid with a total principal value of $1,902,202,285 (or $1.9 billion) plus 6% per annum from the date of the loss. Although 90% of these claims were filed by individuals, the largest ones are by corporations: Cuba Electric (owned by Americans),  $ 268 million; IT&T, $131 million; and Exxon, $71 million.

Recent commentaries suggest that with interest the claims now total nearly $7 billion. [4]

Default Judgment Against Cuba for Deaths of U.S. Pilots Over International Waters

A prior post about “The Cuban Five” mentioned that Cuban military planes in 1996 shot down two U.S. private planes over international waters near Cuba and killed three of their pilots and that a U.S. federal court entered a default judgment of $187 million against the Government of Cuba for their deaths. That judgment plus interest remains unpaid.

Other Claims.

Any and all other claims for damages by the U.S. against Cuba should also be included and resolved as part of any dispute-resolution procedure.

 Cuba Claims

Alleged Damages from U.S. Embargo (Blockade) of Cuba [5]

At the October 2014 session of the U.N. General Assembly, Cuba offered a resolution condemning the U.S. embargo (blockade), which overwhelmingly was approved. Speaking for the resolution, Cuba’s Foreign Minister, Bruno Gonzalez Parrilla, alleged that Cuba was damaged by the embargo and that the damages totaled $1.1 trillion.

The U.S. diplomat at the session obviously disagreed. The diplomat argued that Cuba’s economic difficulties were due to its own policies and that it would not thrive until it committed itself to a free and fair market, allowed unfettered access to information, opened its state-run monopolies and adopted sound economic policies.

Unpaid Rent for Use of Guantanamo Bay.

A prior post mentioned that Cuba for the last 56 years has not cashed the U.S. checks for the annual rent of $4,085 for Guantanamo Bay. This amounts to at least $228,760 for those years plus interest. If Cuba alleges that the annual unpaid rent should be a higher figure, then the total claim obviously would be higher.

Other Claims.

If there are any other damage claims by Cuba against the U.S., then it is fair to believe they will be asserted.

Conclusion

These claims, in my opinion, will not be resolved in negotiations between the two countries. I, therefore, suggest that the parties agree to submit all of their damage claims against each other for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands under its Arbitration Rules 2012 before a panel of three or five arbitrators. A prior post made this recommendation for the expropriation claims,

My experience as a lawyer who handled business disputes in U.S. courts and in international arbitrations leads me to believe that arbitration is the appropriate way to resolve these claims by the two governments. The Permanent Court of Arbitration was established in the late 19th century to resolve disputes between governments. It would be a third-party, neutral administrator of the proceedings and the arbitrators who would be selected would also be neutral. Finally it has an existing set of arbitration rules and procedures.

A 2007 study commissioned by the U.S. Agency for International Development (USAID) proposed a treaty or a U.S. presidential executive order to establish a bilateral arbitration tribunal that would be empowered to issue an award compelling Cuba to pay money or to provide tax benefits or other incentives for new investment. This proposal like the one just proposed by this blogger advocates having a neutral third-party decide the outcome of these claims, but it adds the necessity of preparing and agreeing to the composition and rules of a new ad hoc tribunal. [6]

Everyone recognizes that Cuba does not have the financial resources to pay any large claim like the one for expropriation of U.S. nationals’ property in 1959-1960 so any substantial monetary recovery would have to come from a determination that the U.S. was liable to Cuba for damages for the embargo. Otherwise, there would have to be some settlement of the larger expropriation claims with tax or other incentives for entering into new business ventures on the island.

============================================

[1] This section of the post is based upon the Commission’s website’s description of the agency, an overview of the two Cuba programs, a final report on the first program, copies of what it terms “lead decisions” in the programs, decisions on all the claims and a spreadsheet listing all of those claims and their amounts.

[2] Creighton Univ. School of Law & Dep’t of Political Science, Report on the Resolution of Outstanding Property Claims Between Cuba and the United States (2007).

[3] Johnson Signs Bill To Aid Americans In Claims on Cuba, N.Y. Times (Mar. 18, 1964); Gordon, The Cuba Claims Act: Progress In the Development of a Viable Valuation Process in the FCSC, 13 Santa Clara Lawyer 624 (1973).

[4] Assoc. Press, Run From Cuba, Americans Cling to Claims for Seized Property, N.Y. Times (Mar. 30, 2015); Assoc. Press, Who Claims What Property Seized in Cuba? Facts and Figures, N.Y. Times (Mar. 28, 2015); Glovin & Olocunnipa, Cuba Property Claims, Yielding Pennies, May Spur Talks, BloombergBusiness (Dec. 22, 2014). There is a Cuba Claim Owners Association.

[5] U.N. Press Release, As General Assembly Demands End to Cuba Blockage for Twenty-Third Consecutive Year, Country’s Foreign Minister Cites Losses Exceeding $1 Trillion (Oct. 28, 2014).

[6] Ayuso, Expropriations, the other outstanding debt in Cuba, El Pais (Jan. 4, 2015); Creighton Univ. School of Law & Dep’t of Political Science, Report on the Resolution of Outstanding Property Claims Between Cuba and the United States (2007).

 

 

 

 

 

 

 

Resolution of Issues Regarding Cuba-U.S. Lease of Guantanamo Bay

Since the December 17, 2014, announcement of rapprochement, Cuba has voiced at least three demands or issues regarding its lease of Guantanamo Bay to the U.S. The most serious one is ending the lease and returning this territory to complete Cuban control. The second is the U.S.’ paying for use of the territory since the Cuban Revolution’s takeover of the island in 1959. The third is Cuba’s objection to the U.S.’ establishing and maintaining a prison for detainees after 9/11 and to the U.S.’ alleged mistreatment and torture of those detainees.

Understanding these issues requires an examination of (a) the Cuban war for independence, 1895-1898, and the Spanish-American War of 1898; (b) the terms of seven documents relating to the lease, all of which predate the Cuban Revolution; and (c) the position of the Revolutionary government toward these documents and the lease. [1] In conclusion, this post will discuss methods for resolving these issues.

Before all of that, here are maps and photographs of Guantanamo Bay.

Guant map1

guantanamo.bay

 

 

 

 

Gitmo look west

_245513_us_base_guantanamo300

 

 

 

The Cuban War for Independence and the Spanish-American War [2]

In 1895 Cubans started a revolt or war of independence from Spain, which responded with ferocity, launching its “reconcentrado” campaign that herded 300,000 Cubans into re-concentration camps. Spain’s tactics infuriated many Americans, who began to raise money and even fight on the side of the Cuban nationalists while American businesses with economic interests on the island were worried about the safety of their investments. U.S. President William McKinley wanted an end to the Cuban-Spanish conflict, but demanded that Spain act responsibly and humanely and that any settlement be acceptable to Cuban nationals.

In November 1897, an amicable resolution appeared possible when the Spanish granted the Cubans limited autonomy and closed the re-concentration camps. But after pro-Spanish demonstrators rioted in Havana in January 1898 to protest Spain’s more conciliatory policies, McKinley ordered the U.S. battleship Maine to Havana to protect American citizens and property and to demonstrate that the U.S. still valued Spain’s friendship.

With the Maine safely moored in Spanish waters, the Spanish-American relationship was jolted by the publication in a New York newspaper of a letter by the Spanish minister to the U.S. describing McKinley as “weak and a bidder for the admirations of the crowd” and revealing that the Spanish were not negotiating in good faith with the U.S. Americans saw the letter as an attack on both McKinley’s and the nation’s honor. The American public’s anger only intensified following an explosion on the Maine and its sinking on February 15, 1898, in Havana Harbor, killing 266 crew members. The Navy, on March 21, reported that an external explosion, presumably from a Spanish mine, had destroyed the ship.

With diplomatic initiatives exhausted and the American public wanting an end to the Cuban crisis, McKinley, in mid-April 1898, asked Congress for authority to intervene in Cuba, which it granted. Spain soon broke relations with the U.S., and the U.S. blockaded Cuba’s ports. On April 23, Spain declared war on the U.S. Two days later the U.S. did likewise with the Teller amendment committing the U.S. to the independence of Cuba once the war had ended, disclaiming “any disposition or intention to exercise sovereignty, jurisdiction or control over said island, except for the pacification thereof.”

What became known as the Spanish-American War lasted only a little over three months with U.S. victories in Cuba, Puerto Rico and the Philippines ending in a cease fire on August 12, 1898. Under the Paris Peace Treaty of December 10, 1898, the U.S. obtained Puerto Rico, Guam, and the Philippine Islands while Spain renounced its claim to Cuba, which remained under U.S. military occupation until 1902.

Thereafter, Cuba would be a de facto U.S. protectorate until 1934.

The Lease of Guantanamo Bay

The first five of the seven documents relating to the Guantanamo lease were created during the period that Cuba was a de facto protectorate of the U.S.

  1. Act of Congress (March 2, 1901). On this date, President McKinley signed an Act of Congress that included what was called “the Platt Amendment,” which authorized the U.S. President “to leave the government and control of the island of Cuba to its people so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, [and shall include the following: provisions]:
  • “I. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island.”
  • “III. That the government of Cuba consents that the [U.S.] may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the [U.S.], now to be assumed and undertaken by the government of Cuba.”
  • “”VII. That to enable the [U.S.] to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the [U.S.] lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”
  1. Constitution of Cuba (May 20, 1902). On this date, the Constitution of the Republic of Cuba was promulgated, and Article VII of its Appendix provided: “To enable the [U.S.] to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the [U.S.] the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”
  1. U.S.-Cuba Agreement (February 23, 1903). Pursuant to the just mentioned Cuban constitutional provision, on February 23, 1903, the U.S. and Cuba entered into the “Agreement . . . for the Lease of Lands for Coaling and Naval stations.” Its Article I stated that Cuba “hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water [Guantanamo Bay and Bahia Honda] [3] situated in the Island of Cuba”

This Agreement’s Article II stated, “The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” (Emphasis added.)

This Agreement concluded in Article III, whereby the U.S. “recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the [U.S.] of said areas under the terms of this agreement the [U.S.] shall exercise complete jurisdiction and control over and within said areas.”

Unlike most leases, this agreement did not set forth a set period of time for the lease or the compensation or rent to be paid.

  1. Treaty between the United States of America and Cuba (May 22, 1903). This treaty in Article I states, “The Government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes, or otherwise, lodgment in or control over any portion of said island.”

Article III provides, “The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the Government of Cuba.”

Article VII adds, “To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”

  1. Lease of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (July 2, 1903). This instrument details additional terms of the lease in seven articles. Its Article I specified the compensation that the U.S. would pay to Cuba for the leased territories: “the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement.” Under Article II, the U.S. agreed “that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

There still was no set period of time for the lease of the territory.

On November 12, 1903, Guantánamo Bay Outer Harbor passed into U.S. hands “without any formality” and was “effected in a quiet manner.”

  1. Treaty between United States of America and Cuba (May 29, 1934). By 1934 there had been changes in the overall relationship between the two countries. The U.S., pursuing President Franklin D. Roosevelt’s “good neighbor” policy, proposed to nullify the previously mentioned May 22, 1903, U.S.-Cuba Treaty. Cuba had become increasingly upset with the earlier treaty’s Platt Amendment granting the U.S. the right to intervene in Cuba, and Cuba welcomed the idea of nullifying the 1903 treaty. Negotiations to that end proceeded quickly; and a new Cuban-American Treaty of Relations was signed on May 29, 1934, and after rapid ratifications by both states it entered into force on June 9, 1934. This effectively ended the U.S. de facto protectorate of Cuba.

The 1934 treaty in Article II also stated: “All the acts effected in Cuba by the [U.S.] during its military occupation of the island, up to May 20,1902, the date on which the Republic of Cuba was established, have been ratified and held as valid; and all the rights legally acquired by virtue of those acts shall be maintained and protected.”

Article III added the following language with respect to the naval station at Guantánamo Bay: “The supplementary agreement in regard to naval or coaling station signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantánamo. So long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territory it now has, with the limits that it has on the date of the signature of the present Treaty.”

The implication of Article III is that the U.S. at any time can walk away from the lease at Guantánamo (abandon the base), but the Cubans can never revoke the lease.

  1. Change in Amount of Rent (1938). Although the source document has not been located, secondary sources say the annual rent for Guantanamo was changed in 1938 to $4,085 (U.S. Dollars), which was the 1938 equivalent of $2,000 in U.S. gold coins. That term has never been changed. Indeed, the U.S. documents transmitting the annual rent checks in that amount for 2011, 2012 and 2013 merely refer to the July 2, 1903, Lease while stating the amount of $4,085 was “computed in the manner of which the government of Cuba has been advised in connection with previous rental payments.” [4]

Cuba’s Revolutionary Government’s Positions Regarding the Lease

Soon after the Cuban Revolution took over the government in January 1959, it started calling for the U.S. to get out of Guantanamo. Over time Cuba set out four different, and sometimes contradictory, legal arguments for invalidating the lease. Even though some international law experts thought Cuba had a good argument for such invalidation: rebus sic stantibus (fundamental change of circumstances), [5] Cuba never instituted legal proceedings to that end. In addition, while the U.S.S.R. still existed and was a major Cuban ally, the Soviets argued that the lease was an “unequal treaty,” but that legal theory was not embraced by the U.S. and most Western nations.

In addition, Cuba has refused to cash the annual U.S. checks for $4,085 made out to the “Treasurer General of the Republic” (a position that ceased to exist after the Revolution). One such check, however, was cashed in the early days of the Revolution, Cuba says, due to confusion. (Many years ago during a televised interview, Fidel Castro opened a desk drawer in his office to show the collection of uncashed checks.)

At least by 2004, Cuba accepted the lease as valid while asserting that control over Guantanamo “will eventually revert to Cuba because of the nature of the arrangement, ad defined by its domestic law, which prohibits perpetual leases. For example, in 2004, Cuba’s Foreign Ministry stated the arrangement “does not grant a perpetual right but a temporary one over that part of our territory, by which, in due course, as a just right of our people, the illegally occupied territory of Guantanamo should be returned by peaceful means to Cuba.” In short, said Cuba, the lease is valid, but U.S. occupation of the territory is illegal. This argument is ridiculous, in the opinion of this blogger, a retired U.S. lawyer.

There have been at least two U.S. responses to these Cuban arguments of invalidity of the lease. First, under the international legal principle of pacta sunt servanda (the contract is the law between the parties), the lease remained a valid agreement between the two states and Cuba has a legal obligation to adhere to agreements previously entered into despite a change in governments. [6] Second, the revolutionary government’s acceptance of at least one of the annual rent checks was an admission of the lease’s validity or a waiver of Cuba’s objections thereto.

Conclusion

As a retired U.S. lawyer, without doing any legal research, I see potential issues of lease invalidity due to (a) possible undue influence or coercion by the U.S. in establishing the terms of the original lease in 1903 and the modifications in 1934 and 1938; [7] and (b) the U.S. use of Guantanamo possibly exceeding the uses permitted by the lease. Any such claim, however, would be potentially subject, at least in a domestic legal dispute, to the affirmative defenses of waiver, estoppel, ratification, laches and statute of limitations. [8]

The argument for invalidity based on the U.S. use of Guantanamo has been rejected by Professor Strauss. He notes that the lease permits the use of Guantanamo as a “naval station,” which is a term created by the U.S. to allow its Navy to determine the range of activities that could occur at such a “station” and which has been used for fewer functions than a full naval base and more recently as a full naval base. As a result, says Strauss, the limitation on use is “largely meaningless in a practical sense.”

In any event, if Cuba now were to assert a right to terminate the lease, over U.S. objection, then I suggest that such a claim should be submitted to a panel of three arbitrators at the Permanent Court of Arbitration at the Hague under its existing Arbitration Rules. Presumably the U.S. in addition to resisting the claim would have a contingent counterclaim (in the event of an arbitration award of termination) for reimbursement for the value of U.S. improvements to the territory.

Such an arbitration proceeding should also include any Cuban claim for compensation for the U.S. use of Guantanamo for 66 years (1960-2015). If, however, such a claims is only for the $4,085 annual rent established in 1938 for a total of $269,610 (without interest), then the claim should be resolved quickly by the U.S. paying the amount of the claim. If, however, the claim is for a higher amount based upon some theory to void the $4,085 figure and instead use a larger amount of alleged fair market value, then presumably such a claim would be contested by the U.S. and a proper claim for arbitration.

Of course, at any time the two parties could negotiate a new lease of Guantanamo, presumably for a specific term of years, with a right of renewal, at a higher and annually adjustable rent. Such a new lease could also impose limits on U.S. use of the territory such as prohibition of the operation of a prison or detention facility.

====================================================

[1] An excellent overall discussion of the U.S. lease of Guantanamo is contained in Strauss, Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013).  See also Notes on Guantanamo Bay; Wikipedia, Guantanamo Bay Navy Base.

[2] This brief summary of the two wars is based on American President: William McKinley: Foreign Affairs, Miller Center, Univ. Virginia.

[3] Bahia Honda was never used by the U.S. and reverted to Cuban control.

[4] Boadle, Castro: Cuba not cashing US Guantanamo rent checks, Reuters (Aug. 17, 2007); Shiffer, Annual rent for Girmo Naval Base: $4,085, payable to Cuba, StarTribune (Oct. 10, 2014) (contains U.S. transmittal advices for rental checks for 2011, 2012 and 2013).

[5] The Vienna Convention on the Law of Treaties that entered into force on January 20, 1980, sets forth “the codification and progressive development of the law of treaties,” which are “international agreement[s] concluded between States in written form and governed by international law.” (Preamble & Art. 2(1)(a).) Its Article 62 recognizes a “fundamental change of circumstances” as a ground for “terminating or withdrawing from” a treaty and defines the conditions for such a ground. Cuba is a party to the treaty, and although the U.S. is not, the State Department has said that this Convention “is already generally recognized as the authoritative guide to current treaty law and practice.” (David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 127-28 (4th ed. LexisNexis 2009).)

[6] The Vienna Convention on the Law of Treaties notes that “the principles of free consent and of good faith and pacta sunt servanda are universally recognized” and its Article 26 under the heading “Pacta sunt servanda” states, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

[7] The Vienna Convention on the Law of Treaties in Article 52 provides, “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”

[8] The Vienna Convention on the Law of Treaties provides in Article 45 that a “State may no longer invoke [breach by the other party or fundamental change of circumstances] if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation . . .; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or its maintenance in force or in operation . . . .”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Results of U.S. and Cuba’s First Talks About Human Rights

On March 31st the U.S. and Cuba held their first talks about human rights. [1]

Afterwards the head of the Cuban delegation, Foreign Ministry official Pedro Luis Pedroso, said a decision on holding future talks would be reached during traditional diplomatic channels. Another Cuban delegate said the two sides held “a respectful, professional, civilized conversation.” Nevertheless, Anaysansi Rodriguez Camejo, Cuba’s ambassador to the U.N. in Geneva, told Cuban state television that the session underlined “that there are differences” on issues of human rights.

More specifically, Senor Pedroso said Cuba had expressed concern about the U.S. guarantees and protection of human rights and drew attention to alleged persistent patterns of discrimination, racism and police brutality in the U.S. Cuba also raised the issues of alleged U.S. limitations on the exercise of labor rights and trade union freedoms and the alleged U.S. violations of human rights in the so-called fight against terrorism, including torture, extrajudicial executions and the use of drones, spying and offshore surveillance as well as the legal limbo of prisoners at the “illegal” Guantanamo Naval Base.

Pedroso also asserted that human rights are universal and indivisible and no one has more value than another. The realization of social and cultural rights is a fundamental basis for the effective exercise of civil and political rights.

According to the U.S. State Department, the discussion concerned “the methodology, topics, and structure of a future human rights dialogue. The atmosphere of the meeting was professional, and there was broad agreement on the way forward for a future substantive dialogue, the timing and location of which will be determined through diplomatic channels. Each side raised concerns about human rights issues, and both sides expressed willingness to discuss a wide range of topics in future substantive talks.”

“This preliminary meeting reflects our continued focus on human rights and democratic principles in Cuba,” a State Department official said, speaking on condition of anonymity. “Human rights are a priority.”

=================================

[1] This post is based upon the following sources: Assoc. Press, Cuba Delegate Reports ‘Civilized’ Talks on Rights with US, N.Y. Times (Mar. 31, 2015); Reuters, U.S., Cuba Hold First Formal Talks on Human Rights, N.Y. Times (Mar. 31, 2015); U.S. Dep’t of State, Cuba: Planning Meeting for Human Rights Dialogue (Mar. 31, 2015); Gomez, Cuba expressed concerns about the exercise of human rights in the US, Granma (Mar. 31, 2105); Gomez, Cuba and USA argued civilized conversation on human rights, despite differences, Granma (Mar. 31, 2015); Cuban Foreign Ministry, Press release about the first meeting between Cuba and the US human rights, Granma (Mar. 31, 2015).

 

 

 

 

Issues of Cuban Human Rights To Be Discussed by Cuba and United States (Part III)    

On March 26 Cuba announced that the U.S. and Cuba will commence negotiations regarding human rights on March 31 in Washington, D.C.; this was covered in a prior post.

Other earlier posts covered the recent speech on this subject by Cuban Foreign Minister Bruno Rodriguez Parrilla and the U.N. Human Rights Council’s most recent Universal Periodic Review (UPR) of Cuba. Now we look at the latest U.S. State Department report on Cuban human rights (the one issued in 2014 for 2013).

Preliminarily it must be noted that this U.S. report is rather stale and it is surprising that a similar report for 2014 has not yet been released. The report for 2013 was released on February 27, 2014, and the overall report was discussed in a March 4, 2014 post and its chapter on Cuba in another March 2014 post.

In addition, a post on March 10, 2014, reviewed the implications of that report for U.S. policy regarding Cuba. This blogger saw the report’s indicating Cuba’s glass of human rights was at least half full. Or as Rev. Raúl Suárez, a Baptist pastor and head of the Martin Luther King, Jr. Center in Havana, more eloquently put it in his February 2014 briefing for the U.S. Congress: “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.” As a result, this blogger urged reconciliation of the two countries and mentioned many of the actions to that end that started on December 17, 2014.

In any event, here is another summary of the U.S. report on Cuba for 2013. It contains many criticisms of Cuban human rights, but it also has positive comments.

Negative comments.

“Cuba is an authoritarian state led by Raul Castro, who is president of the council of state and council of ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and “the superior leading force of society and of the state.” A CP candidacy commission preapproved all candidates for the February uncontested National Assembly elections, which were neither free nor fair. The national leadership that included members of the military maintained effective control over the security forces, which committed human rights abuses against civil rights activists and other citizens alike.”

“The principal human rights abuses were abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.”

“The following additional abuses continued: harsh prison conditions, arbitrary arrest, selective prosecution, and denial of fair trial. Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government did not respect freedom of speech and press, severely restricted internet access and maintained a monopoly on media outlets, circumscribed academic freedom, and maintained significant restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition, the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.”

“Most human rights abuses were official acts committed at the direction of the government. Impunity for the perpetrators remained widespread.”

“There were credible reports that members of the security forces intimidated and sometimes physically assaulted human rights and prodemocracy advocates, dissidents, and other detainees and prisoners both during detention and while imprisoned, and they did so with impunity. Some detainees and prisoners endured physical abuse, sometimes by other inmates with the acquiescence of guards, or long periods in isolation cells.”

“Arbitrary arrest and short-term detention continued to be a common method for the government to control independent public expression and political activity. Under the criminal procedure code, police have wide discretion to stop and question citizens, request their identification, and carry out arrests and searches. The law provides that police officials provide suspects with a signed ‘act of detention,’ noting the basis, date, and location of any detention in a police facility, and a registry of personal items seized during a police search. Police officials routinely conducted extrajudicial detentions, however, often accompanied by beatings. Arbitrary stops and searches were most common in urban areas and at government-controlled checkpoints located at the entrances to provinces and municipalities. Searches and seizures of property by police officials without providing any record or legal justification were also common practice.”

“Police and security officials continued to use short-term and sometimes violent detentions to prevent independent political activity or free assembly. Such detentions generally lasted from several hours to several days. An independent domestic monitoring group, the Cuban Commission on Human Rights and Reconciliation (CCDHRN), counted 4,540 short-term detentions through October, compared with 6,602 in 2012. Long-term imprisonment of peaceful opponents, while rare, did not cease entirely. During the year authorities charged, tried, and sentenced several members of the Santiago-based opposition group Union Patriotica de Cuba (UNPACU) to prison for months or years as punishment for their political activity.”

“In addition, the law allows up to a four-year detention of individuals before they commit an actual crime, with a subjective determination of ‘potential dangerousness,’ defined as the ‘special proclivity of a person to commit crimes, demonstrated by conduct in manifest contradiction of socialist norms.’ Mostly used as a tool to control “antisocial” behaviors such as substance abuse or prostitution, authorities also used it to silence peaceful political opponents. Authorities convicted Ivan Fernandez Depestre of dangerousness and sentenced him to three years’ imprisonment for participating in a peaceful public demonstration. While there was no definitive estimate of the number of persons serving sentences for ‘potential dangerousness,’ the CCDHRN estimated that more than 3,000 citizens were held on the charge.”

“The Ministry of Interior exercises control over police, internal security forces, and the prison system. The ministry’s National Revolutionary Police is the country’s primary law enforcement organization and was moderately effective in investigating common crimes. Specialized units of the ministry’s state security branch are responsible for monitoring, infiltrating, and suppressing independent political activity. The police support state security agents by carrying out house searches, arresting persons of interest to the ministry, and providing interrogation facilities.”

“Members of the security forces acted with impunity in committing numerous, serious civil rights and human rights abuses.”

“Many state-orchestrated ‘acts of repudiation’ directed against the domestic opposition group Damas de Blanco (‘Ladies in White‘) were organized to prevent them from meeting or marching peacefully. On July 14, state security agents and affiliated groups assaulted members of the group when they left a church in Matanzas after celebrating Catholic mass, fracturing the wrist of Sonia Alvarez Campillo and breaking the ribs of her husband, Felix Navarro Rodriguez.”

Positive Comments.

The U.S. conceded that the Cuban constitution “prohibits discrimination based on race, gender, disability or social status” and that Cuban law prohibits “ abusive treatment of detainees and prisoners,” “rape, including spousal rape” (and enforces that law); and “threats and violence, including those associated with domestic violence.” Cuban law, says the U.S., also “provides penalties for sexual harassment;” accords “men and women equal rights and responsibilities regarding marriage, divorce, raising children, maintaining the home and pursuing a career;” provides “equal pay for equal work;” grants “persons with disabilities the right to equal employment opportunities and equal pay for equal work;” and prohibits “unlawful imprisonment, coercion, and extortion” although it “does not appear explicitly to prohibit forced labor.”

The U.S. report further states in 2013 that the government had centers “providing family counseling service” and “treatment for child sexual abuse victims;” that the government “actively promoted racial integration and inclusiveness;” that the government or its agents had not committed any reported arbitrary or unlawful killings or politically motivated disappearances; that there were no reported anti-Semitic acts; that there was “no societal pattern of child abuse,” no known “patterns of abuse of [children with disabilities] in educational or mental health facilities” and no discrimination officially reported or permitted based on sexual orientation in employment, housing, statelessness, or access to education or health care.”

Conclusion

It is fair to conclude that many of what the U.S. saw as negative aspects of Cuban human rights in 2013 will be raised in its forthcoming talks on the subject with Cuba.

The U.S. should approach this subject with humility and remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:

  • the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
  • the U.S.’ making Cuba a de facto protectorate in the early 20th Century;
  • the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
  • the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
  • the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
  • the U.S. conduct of an embargo of Cuba over the last 50-plus years;
  • the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba; and
  • the more recent U.S. Agency for International Development (USAID) covert or “discreet” programs to promote dissent, if not regime change, on the island.

This history and the vastly superior U.S. economic and military power provide Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover. And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

 

 

Issues of Cuban Human Rights To Be Discussed by Cuba and United States (Part II)

On March 26 Cuba announced that the U.S. and Cuba will commence their negotiations regarding human rights on March 31 in Washington, D.C.; this was covered in a prior post.

Issues of Cuban human rights that probably will be put on the agenda for further discussions were first examined in a prior post about the recent speech on this subject by Cuban Foreign Minister, Bruno Rodriguez Parrilla.

In Cuba’s March 26th announcement of the upcoming talks, Pedro Luis Pedroso, Cuba’s Deputy Director General of Multilateral Affairs and International Law, referred to “the recognition Cuba received at the last Universal Periodic Review [UPR] by the U.N. Human Rights Council, where the international community praised and commended Cuban achievements in areas such as education, health and access to cultural rights, and the contribution the island has made in those same areas in other countries.”

Therefore, this post will look at that UPR of Cuba while another post will discuss the latest U.S. State Department report on Cuban human rights (the one issued in 2014 for 2013).

The Nature of the UPR Process [1]

In order to assess the recent UPR of Cuba, we first must understand the UPR process, which provides the opportunity for each of the 193 U.N. members, on a periodic basis, to declare what actions it has taken to improve its human rights and to fulfill its human rights obligations.

The UPR process includes a report on all human rights issues from the subject country, compilations of information about the country from various U.N. organizations and from “stakeholders” (non-governmental organizations), a public interactive session of the Human Rights Council about the country, a report by a working group about the proceedings that includes conclusions and recommendations, the subject country’s responses to those conclusions and recommendations and a subsequent evaluation of the UPR by the Council.

It is exceedingly important, however, to know that these conclusions and recommendations are merely a systematic compilation or listing of all those that had been offered by all of the countries participating in the UPR. Hence, there is a lot of duplication and overlapping in this part of the report, which is not similar to an independent judicial body’s reaching certain findings and conclusions based upon an evaluation of often conflicting evidence. Indeed, the Working Group’s report expressly states that the conclusions and recommendations “should not be construed as endorsed by the Working Group as a whole.” In short, there is no overall “grade” of a country’s human rights performance by the Working Group or by the Council as a whole.

Most Recent UPR of Cuba [2]

The most recent UPR of Cuba occurred in 2013.

1. The Report of  the Working Group.

The key document in figuring out what happened in this UPR is the “Report of the Working Group on the Universal Periodic Review—Cuba” that was issued on July 8, 2013. It has the following standard structure, after a brief Introduction:

I. Summary of the proceedings of the review process

A. Presentation by the State under review

B. Interactive dialogue and response by the State under review

II. Conclusions and Recommendations

The “interactive dialogue.” This section of this report states that there was such a dialogue about Cuba involving 132 delegations at the session on May 1, 2013, and sets forth a brief summary of that dialogue in 144 numbered paragraphs. One example is paragraph 31, which states, “ Nicaragua highlighted the commitment of Cuba to human rights despite the blockade, and condemned the [U.S.] convictions against five Cubans.”

The only reference to U.S. comments in this dialogue is in paragraph 77, which states the U.S. “raised concerns for impediments to multiparty elections and freedom of expression and referred to Alan Gross and Oswaldo Paya.” Cuba, according to paragraph 111, responded to this U.S. comment by saying that “freedom of the press was guaranteed in Cuba“ and by “reiterated[ing its] . . . willingness . . . to continue talks with the [U.S.] . . . on the situation of Mr. Gross and of other individuals who were held in detention in Cuba and in the [U.S.].” [3]

Conclusions and Recommendations. This section starts with the following statement: “The recommendations formulated [by all the countries participating] during the interactive dialogue and listed below will be examined by Cuba, which will provide responses in due time, but no later than the twenty-fourth session of the Human Rights Council in September 2013” (para. 170). This section of the Report is concluded by this statement: “All conclusions and/or recommendations contained in the present report reflect the position of the submitting State(s) and/or the State under review. They should not be construed as endorsed by the Working Group as a whole” (para. 171).

The actual conclusions and recommendations are summarized in 292 numbered subparagraphs of the Report. Those offered by the U.S. are for Cuba to “allow for independent investigations into the circumstances surrounding the deaths of Oswaldo Paya and Harold Cepero” (para. 170.138) [4], to “release Alan Gross and imprisoned journalists such as Jose Antonio Torres immediately” (para. 170.187) [5] and to “eliminate or cease enforcing laws impeding freedom of expression” (para. 170.176).

2. Cuba’s Responses to the Recommendations.

In response to the U.S. recommendations and 20 others from other countries, Cuba said they “do not enjoy [its] support . . . on the grounds that they are politically biased and based on false premises; they derive from attempts to discredit Cuba by those who, with their hegemonic ambitions, refuse to accept the Cuban people’s diversity and right to self-determination. These proposals are inconsistent with the spirit of cooperation and respect demanded by the UPR process.” Moreover, said Cuba, they “are incompatible with constitutional principles and national legislation, and whose content is contrary to the spirit of cooperation and respect that should predominate at the UPR.” [6]

The other 20 numbered recommendations that were so summarily rejected by Cuba related to protecting human rights defenders, including journalists, against abusive criminal prosecutions, harassment and intimidation (Czech Republic, Austria, Australia, Germany, Hungary); release of all political prisoners (Czech Republic, Belgium, Slovenia, Poland), end indefinite extensions of preliminary criminal investigations (Belgium); improve freedom of expression (Romania, Estonia, Hungary, Spain, Switzerland, United Kingdom, France, Canada); repeal laws relating to “pre-criminal social dangerousness” (Ireland); end repression, investigate acts of repudiation and protect targets of intimidation and violence (Netherlands); and end Internet censorship (Australia, Germany).

Cuba, however, did accept 230 of the recommendations while noting, “Many of these . . . have already been complied with, or are in the process of implementation , or are included among future national priorities.” Therefore, these items “will be implemented in accordance with our capabilities and in step with the evolution of the circumstances within which Cuba is pursuing its aim of complete social justice.”

The remaining 42 recommendations were “noted” by Cuba as matters to be examined with the understanding that its “process of ratifying an international instrument is very rigorous;” that is stands ready “to continue cooperating with . . . the UN System’s human rights machinery;” that it is “philosophically opposed to the death penalty: and wants to eliminate it when suitable conditions exist;” that it has an “extensive and effective” system for resolving human rights complaints; that its “system of criminal justice . . . ensures fair and impartial hearings and full guarantees to the accused;” Cuba is working at expanding internet access; and “the right to freedom of expression and assembly . . . [is] enshrined in the Constitution and . . . national legislation.”

3. Human Rights Council’s Evaluation of this UPR. As paragraph 170 of the Report of the Working Group provided, the Council was to review the UPR of Cuba at its session in September 2013 after Cuba had submitted its response to the conclusions and recommendations. That Cuban response was just summarized, and the Council on September 20, 2013, reviewed this UPR and approved, without a vote, a resolution “to adopt the outcome of the universal periodic review of Cuba, comprising the report thereon of the Working Group on the Universal Periodic Review . . ., the views of Cuba concerning the recommendations and/or conclusions made, and its voluntary commitments and replies presented before the adoption of the outcome by the plenary to questions or issues not sufficiently addressed during the interactive dialogue held in the Working Group.” [7]

Criticism of the Recent UPR of Cuba

It must also be noted that an observer has alleged that Cuba “corrupted and abused” this UPR process by prompting the submission of many “fraudulent” stakeholder NGOs; there was a total of 454 submissions regarding Cuba compared with the next highest, 48 on Canada. As a result, says this observer (UN Watch), “numerous statements of praise taint the UN’s official summary” of stakeholders’ submissions. UN Watch also alleges that the compilation of information from U.N. agencies was unfairly slanted in favor of Cuba. [8]

Another observer (International Service for Human Rights) reported that during the UPR of Cuba, 132 countries, at 51 seconds each, took the floor to ask questions and make recommendations. As a result, Cuba received 293 recommendations, the highest number that a State under review has ever received at the UPR, but 121 of them started with the verb ‘continue,’ thus requiring minimal action to be taken by Cuba. [9]

Conclusion

I do not know whether any of NGO stakeholders at this UPR were “fraudulent,” as alleged, but it does appear that Cuba “stacked” the process to minimize the time available to authentic critics of its human rights record and to maximize the time available to its supporters. It also appears as if Cuba rejected recommendations for improving many foundational human rights.

In any event, because the UPR process does not involve a truly independent fact-finder to assess the human rights record of Cuba or any other country in such a process, I reject the assertion by Cuba’s Deputy Director General of Multilateral Affairs and International Law, Pedro Luis Pedroso, that Cuba obtained a laudatory evaluation of its human rights record by the U.N. Human Rights Council. In short, I think this UPR is irrelevant to Cuba’s human rights issues.

===============================

[1] Details about the UPR process are provided on the Council’s website. The process involves a “working group,” which is composed of all 47 members of the Council.

[2] All of the documents about the UPR of Cuba are available on the Council’s website, including the Report of the Working Group on the Universal Periodic Review—Cuba, dated July 8, 2013.

[3] As discussed in a prior post, Alan Gross was released from a Cuban prison on December 17, 2014, and returned to the U.S. as part of the U.S.-Cuba agreement to re-establish normal diplomatic relations.

[4] Paya was a Cuban political activist, a leader of the political opposition to the to the Cuban government. He was the founder and organizer of the Varela Project, which collected enough signatures to present to the government a request for changes in legislation. He was awarded the Andrei Sakharov Prize for Human Rights of the European Parliament in 2002. On July 12, 2012, Paya was killed in an automobile crash in Cuba under suspicious circumstances; Harold Cepero, a youth leader, was also killed in the crash. Many people believe they were murdered by government agents.

[5] Torres, a correspondent for the Cuban government newspaper, Granma, wrote an article about alleged mismanagement of a Santiago Cuba aqueduct project and of the installation of the Cuba-Venezuela fibre-optic cable. Afterwards he was charged and convicted of spying and sentenced to 14 years in prison and cancellation of his university degree in journalism.

[6] Report of the Working Group on the Universal Periodic Review—Cuba: Addendum: Views on conclusions and/or recommendation, voluntary commitments and replies presented by the State under review [Cuba] (Sept. 2013).

[7] Report of the Human Rights Council at its 24th session (Para. 24/114) (Jan. 27, 2014).

[8] UNWatch, Massive Fraud: The Corruption of the 2013 UPR of Cuba.

[9] Int’l Service for Human Rights, Unprecedented challeng to the Universal Periodic Review (May 31, 2013)  See also Center for Human Rights & Humanitarian Law, Alleged Fraud During Cuba’s Universal Periodic Review, Human Rights Brief (Oct. 24, 2013).