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.

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[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).

 

 

 

 

 

 

 

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.

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[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).

 

 

 

 

 

 

 

International Reaction to U.S.-Cuba Reconciliation

The overwhelming international response to the December 17th announcement of U.S.-Cuba reconciliation has been very positive, especially in Latin America. Future posts will examine the responses in Cuba and the U.S.

Latin American Reactions [1]

Virtually all Latin American countries had been increasingly frustrated with the 50 years of estrangement and hostility between the U.S. and Cuba. According to a historian of the region, Enrique Krauze, “Cuba has been the epicenter of anti-Americanism in modern Latin America” and the Cuban Revolution of 1959 “opened a new cycle of anti-Americanism.” 

Now, Krauze continues, the U.S. has renounced its “imperial destiny and recovers much of the moral legitimacy needed to uphold the democratic ideals that led to its foundation (and also of the countries of Latin America).”

The President of Brazil congratulated Raul Castro, Obama and Pope Francis. Similar comments were made by the leaders of Mexico, Peru, Colombia and Nicaragua.

Jose Miguel Insulza, Secretary General of the Organization of American States, the regional forum where Cuba’s seat has been empty since 1962, said Obama’s decision removed a major irritant in Washington’s relations with Latin America. “This ends the attempt to isolate Cuba for so long. Cuba is undertaking a process of economic reforms that will, I hope, lead to political reforms.”.

These reactions were emphasized by U.S. Assistant Secretary of State, Roberta Jacobson, who said, ““Our previous Cuba policy was clearly an irritant and a drag on our policy in the region,”  adding that it had caused friction even with countries friendly to Washington. She said that countries “with whom we have significant differences are going to be, let’s say, thrown off their stride by a move like this.”“It removes an excuse for blaming the United States for things,” she added.

The Wall Street Journal reported the day after the announcement of the detente that government officials, diplomats and scholars believe this change has “the potential to redraw political and economic alliances across the hemisphere,” especially with countries like Argentina, Ecuador and others. It will be most difficult for Venezuela, which has held “a long-held animosity toward El Imperio–the empire.”

But the President of Venezuela immediately called the detente a “victory for Fidel and the Cuban people” while also acknowledging President Obama’s “courage” in “perhaps the most important step of his presidency.”

On January 26th the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) [2] applauded the agreement’s making possible Cuba’s attending the Summit of the Americas in Panama this coming April.

European Reactions [3]

On the day after the historic announcement, the European Union released a statement hailing it as a “historic turning point.” It continued, “Today another Wall has started to fall. These moves represent a victory of dialogue over confrontation.”

The leading newspaper of Spain, El Pais, editorialized, “Today, when freedom seems to be calling for an end to the doors of Cuba, Spain must accompany Cubans in their new journey: supporting their political, economic and social modernization, with clarity, consistency and realism; aware of the limits of his diplomatic skills-but place value on the european-dimension and also aware that resetting relations with Cuba, the United States restored its relations with Latin America.”

Positive comments of the change came from leaders of Germany, Italy, France and Spain.

Other International Reactions [4]

Canada, we recall, hosted some of the secret U.S.-Cuba negotiations that resulted in the December 17th announcement of the start of the process of their reconciliation. Afterwards Canada’s Foreign Minister, John Baird, said, “”I agree with this policy. I don’t think previous U.S. policy has been effective. If you flood Cuba with American values, American people, and American investment, it will help transform the country.”

U.N. Secretary General, Ban Ki-moon, said at a press conference on December 17th, “I have been informed in advance by the US Government.  This news is very positive.  I’d like to thank President Barack Obama of the United States and President Raul Castro for taking this very important step towards normalizing relations.  As much of the membership of the United Nations has repeatedly emphasized through General Assembly resolutions during the last many, many years, it is time that Cuba and the United States normalize their bilateral relations.  In that regard, I heartily welcome today’s development.  I sincerely hope these measures, this announcement will help to expand further the exchanges between the two peoples who have been separated quite a long time.  The United Nations stands ready to help both countries to cultivate their good neighbourly relations.”

Conclusion

I would appreciate comments identifying other international reactions.

As was anticipated in the December 17th announcements by presidents Obama and Castro and as we already have seen, the path to lasting reconciliation is not easy for either country. There are many unresolved issues for the two countries over the last 50-plus years.

These words of congratulations from around the world will have to justified by the further negotiations of the two countries. If they fail to resolve these issues, the international reaction will be severe, and if other countries and international organizations believe the U.S. was primarily responsible for such failure, then there could be even worse anti-Americanism unleashed.

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[1] Rebussio, Maduro: It is a victory for Fidel and the Cuban people, El Pais (Dec. 17, 2014); Mezzi, Venezuela is left alone, El Pais (Dec. 17, 2014); Anderson, Mynaya & Vyas, Detente Scrambles Political Calculus in Latin America, W.S.J. (Dec. 18, 2014); Assoc. Press, AP Analysis: U.S. Was at Odds With World Over Cuba Policy, N.Y. Times (Dec. 18,2014); Romero & Neuman, Cuba Thaw Lets Rest of Latin America Warm to Washington, N.Y. Times (Dec. 18, 2014); Assoc. Press, Latin America Cheers U.S.-Cuba Rapprochement, N.Y. Times (Dec. 18,2014);  Krauze, End of Anti-Americanism?, N.Y. Times (Jan. 7, 2015); ECLAC applauds presence of Cuba in Summit of the Americas, Granma (Jan. 26, 2015)

[2] ECLAC was established by the U.N. in 1948 to contribute to the economic development of the region and to promote its social development. Its 44 members include 11 from Asia (Japan and Republic of Korea), Europe (France, Germany, Italy, Netherlands, Portugal, Spain and United Kingdom) and North America (Canada and U.S.) with historical, economic and cultural ties to the region. In addition, 13 non-independent Caribbean territories are associate members. 

[3] Rebussio, Maduro: It is a victory for Fidel and the Cuban people, El Pais (Dec. 17, 2014); Reuters, “Another Wall Falls:’ Europe Hails U.S.-Cuba Breakthrough, N.Y. Times (Dec. 18, 2014); Editorial, With Cuba, El Pais (Dec. 21, 2014).

[4] Goldberg, Canada’s Foreign Minister:U.S. Influence Will Make Cuba Better, Atlantic (Dec. 21, 2014), Reuters, U.N.‘s Ban Hails Obama for ‘Courageous’ Cuba Move, N.Y. Times (Dec. 20, 2014); U.N., Press Conference by Secretary-General Ban Ki-moon at United Nations Headquarters (Dec. 17, 2014).

Report for dwkcommentaries–-2014

This blog, which started on April 4, 2011, reports the following activity through December 31, 2014:

YEAR POSTS COMMENTS

(by dwkcommentaries)

VIEWS
2011 190   26  9,189
2012 179 170 51,164
2013   86 708 49,082
2014 138   47 58,602
TOTAL 593 951 168,037

The busiest day for 2014 was December 11 with 321 views; for all time, 361 on December 13, 2012. For 2014 as a whole the viewers came from 183 countries with most from the U.S.A. followed by the Canada and the United Kingdom. This blog has 516 followers (Facebook, 324; direct, 154; Tumblr, 14; and commentators, 24).

The following were the most popular posts in 2014:

As indicated in detail in the Pages section on the right side of the home page, the posts and comments for 2011-2014 fall into the categories as stated in the following alphabetical Lists of Posts to dwkcommentaries-Topical:

  • Cuba [history and politics]
  • Education [my post-secondary education]
  • El Salvador [history and politics]
  • Law (Criminal Justice)
  • Law (International Criminal Court)
  • Law (Refugee & Asylum)
  • Law (Treaties)
  • Law (U.S. Alien Tort Statute)
  • Law (U.S. Torture Victims Protection Act)
  • Lawyering [my practice of law]
  • Miscellaneous
  • Personal [my personal background]
  • Religion [predominantly Christianity]
  • United States (History)
  • United States (Politics)

The blogger would appreciate receiving substantive comments on his posts, including corrections and disagreements.

Additional Commemoration of the Martyred Jesuits

Andreu Oliva
Andreu Oliva

Andreu Oliva, the current Rector of the University of Central America (Universidad de Centro America or UCA), in an article titled, Celebrating with gratitude, hope and commitment, said, “[W]e celebrate [the martyred Jesuits] because their wrongful death, so violent and cruel, has become a source of life, urging delivery, the commitment to the causes of the poor and marginalized, to move forward in building the Kingdom of God among us.”

“The martyrs continue to inspire us today and not only in El Salvador: they are inspiration for many people around the world. The large number of visitors, mainly from the U.S., Spain and Canada, who came these days to El Salvador to participate in the anniversary, and to be happy and full of spirit, strengthened in their commitment to the struggle for faith and justice that faith requires of us is without doubt a clear example of the power of the resurrection, that love is stronger than hate. In short, the promise of Jesus is made: ‘Blessed are those who hunger and thirst for righteousness for they shall be filled.’”

“It’s been 25 years since the slaughter happened in the UCA, but the martyrs continue giving life, continue to inspire commitment to justice and the poor, continue evangelizing and attracting women and men to join the project of the Kingdom of God. They are an example of a life offered from following Jesus, and lived to the fullest, in the service of the Salvadoran people, serving the defense of the poor and the persecuted by demanding that the equal dignity of every human being be recognized. They belong to us and to the world as examples to follow, an invitation to continue on the same path and with the same feeling.”

 

 

Latest U.S. Report on Global Human Trafficking

TIP2014cover_200_1

 

On June 20, 2014, the U.S. Department of State released  its Trafficking in Persons Report 2014 (TIP).

The Department asserts that along with the other annual  reports, this TIP is “the world’s most comprehensive  resource of governmental anti-human trafficking efforts  and reflects the U.S. Government’s commitment to global leadership on this key human rights and law enforcement issue. It represents an updated, global look at the nature and scope of trafficking in persons and the broad range of government actions to confront and eliminate it. . . . The U.S. . . . uses the TIP Report to engage foreign governments in dialogues to advance anti-trafficking reforms and to combat trafficking and to target resources on prevention, protection and prosecution programs.”

Secretary of State            John Kerry
Secretary of State John Kerry

On the release of this TIP, Secretary of State John Kerry said, “For years, we have known that this crime affects every country in the world, including ours. We’re not exempt. More than 20 million people, a conservative estimate, are victims of human trafficking. And the [U.S.] is the first to acknowledge that no government anywhere yet is doing enough. We’re trying. Some aren’t trying enough. Others are trying hard. And we all need to try harder and do more.”

Kerry also rejected criticism that the U.S.’ preparing and publishing such a report was an unjustified action. He said, “This is not an act of arrogance. We hold ourselves to the same standard. This is an act of conscience. It is a requirement as a matter of advocacy and as a matter of doing what is right.”

Ambassador Luis CdeBaca
Ambassador              Luis CdeBaca

The last point was echoed by Luis CdeBaca, the U.S. Ambassador-at-Large, State Department’s Office to Monitor and Combat Trafficking in Persons. He said the U.S. itself has been included in this report since 2010 as “a matter of fairness to all of the other countries; if we’re going to hold them to these minimum standards, [then] . . . we needed to hold ourselves to them as well.” He added, “no country is doing a perfect job on the fight against human trafficking, and that includes the [U.S.]. We are all in this together.”

 

Criteria for U.S. Evaluation of Countries’ Trafficking Records

Under its authorizing legislation,[1] the State Department is required to assess the extent to which countries comply with the “minimum standards for the elimination of trafficking” set forth in the legislation. Those standards are the following:

(1)“The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.”

(2)“For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.”

(3)“For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.”

(4)“The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.”[2]

The statute also requires the State Department, based upon reliable information, to place countries into the following classes or tiers:

  • “Tier 1. Countries whose governments fully comply with the TVPA’s minimum standards for the elimination of trafficking.”[3]
  • “Tier 2. Countries whose governments do not fully comply with the TVPA’s minimum standards but are making significant efforts to bring themselves into compliance with those standards.”
  • “Tier 2 Watch list. Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards, and for which: a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecution, and convictions of trafficking crimes, increased assistance to victims, and decreasing evidence of complicity in severe forms of trafficking by government officials; or c) the determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional steps over the next year.”
  • “Tier 3. Countries whose governments do not fully comply with the TVPA’s minimum standards and are not making significant efforts to do so.”[4] (Emphases in original.)

The U.S. Assessments of Countries Trafficking Records for 2013

The following table summarizes the number of countries in different areas of the world in the different tiers (Report at 58):

 

Area Tier 1 Tier 2 Tier 2Watch List Tier 3 Special Case Total
Africa 00 26 17 10 01 54
Asia 03 20 09 06 00 38
Europe 21 16 02 00 00 39
Middle East 01 05 04 04 00 14
Pacific 02 03 02 01 00 08
Western Hemisphere 04[Canada, Chili, Nicaragua & U.S.] 19 10 02 [Cuba & Venezuela] 00 35
Total 31 89 44 23 01 188

The Report’s rankings are based upon “information from U.S. embassies, government officials, non-governmental and international organizations, published reports, news articles, academic studies, research trips to every region of the world, and information submitted to [a dedicated Department email address]. . . . The U.S. diplomatic posts and domestic agencies . . . [in turn conduct] thorough research that included meetings with a wide variety of government officials, local and international NGO representatives, officials of international organizations, journalists, academics, and survivors.” (Report at 37.)

Penalties for Tier 3 Countries

Under the authorizing statute, “governments of countries on Tier 3 may be subject to certain restrictions on bilateral assistance, whereby the U.S. government may withhold or withdraw non-humanitarian, non- trade-related foreign assistance. In addition, certain countries on Tier 3 may not receive funding for government employees’ participation in educational and cultural exchange programs . . . . [G]overnments subject to restrictions would also face U.S. opposition to assistance (except for humanitarian, trade-related, and certain development- related assistance) from international financial institutions, such as the International Monetary Fund and the World Bank.”(Report at 44.)

Conclusion

Because of this blogger’s special interest in Cuba, a subsequent post will analyze this Report’s assigning Cuba to Tier 3.

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[1] Since 2000 the U.S. has had a series of federal statutes addressing efforts to combat human trafficking. The first such statute was the Victims of Trafficking and Violence Protection Act of 2000 that required, in part, certain annual reports on trafficking. Subsequent federal statutes were the Trafficking Victims Protection Reauthorization Act of 2003; the Trafficking Victims Protection Reauthorization Act of 2005; the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; and the Trafficking Victims Protection Reauthorization Act of 2013 [Title XII of the Violence Against Women Reauthorization Act of 2013]. See 22 U.S.C., ch. 78.

[2] The statute defines “severe forms of trafficking in persons” and “serious and sustained efforts to eliminate severe forms of trafficking in persons.” (Report at 9.)

[3] According to the Report, “While Tier 1 is the highest ranking, it does not mean that a country has no human trafficking problem or that it is doing enough to address the problem. Rather, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, has made efforts to address the problem, and meets the [statute’s] . . . minimum standards. Each year, governments need to demonstrate appreciable progress in combating trafficking to maintain a Tier 1 ranking.” (Report at 40.)

[4] The statute “lists additional factors to determine whether a country should be on Tier 2 (or Tier 2 Watch List) versus Tier 3.” (Report at 43.)

Failed Efforts To Weaken the Inter-American Human Rights System Under the Guise of Reform

A prior post discussed the March 22, 2013, resolution by the General Assembly of the Organization of American States (OAS) that strengthened the Inter-American Human Rights System, especially the Inter-American Commission on Human Rights (“Commission”).

In so doing, the OAS rejected efforts to weaken the Commission under the guise of reform proposals that had been offered by Ecuador and other states that the Commission has criticized (Venezuela, Bolivia and Nicaragua).

We now examine the background to that surreptitious effort to weaken that System and the debate at the March 22nd General Assembly meeting

Background

1. Multilateral Treaties and Other Instruments Regarding the Right of Free Expression.

The right of free expression by the media and others is well established in international law.

The United Nation’s General Assembly’s Universal Declaration of Human Rights of 1948 in Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In 1966 this was put into legally enforceable form in Article 19 of the International Covenant on Civil and Political Rights, which entered into force in 1976.

To like effect is the American Convention on Human Rights, which was adopted by the OAS in 1969 and which entered into force in 1978. Its Article 13(1) says, “Everyone has  the right to freedom of thought and expression . . . [including the] freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Article 13(3) goes on to say, “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”

Elaborating on this right is the Inter-American Declaration of Principles of Freedom of Expression of 2000.

2. Ecuador’s Hostility to Freedom of Expression.

Ecuadorian President Rafael Correa
Ecuadorian President Rafael Correa

Ecuador under the presidency of Rafael Correa since January 2007 has through policies and actions retaliated against journalists and media that have criticized him and his government. Correa has insulted and filed lawsuits against reporters and news outlets and promoted a series of legal measures to roll back press freedoms. His government has expropriated television channels, radio stations, newspapers and magazines.

Journalists in the country also have been subjected to physical threats and assaults with lackluster efforts by the government to investigate and prosecute those responsible.

3. The Commission and Civil Society’s Criticism of Ecuador’s Hostility to Freedom of Expression.

The Commission in 1997 created the Special Rapporteur for Freedom of Expression “to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system and in protecting, guaranteeing, and promoting other human rights.”

This Rapporteur has been in the forefront of criticizing Ecuador for these actions against journalists and the media. Since January 1, 2009 it has issued nine press releases expressing its concern over specific criminal prosecutions and imprisonments of journalists for libel for publication of articles about corruption of public officials and for specific physical threats and assaults on journalists.

In addition, since 2006 the annual reports of the Rapporteur have had sections specifically addressing Ecuador’s conduct in this area.

For example, the latest such report (for 2011) devotes 31 pages (78-108) for a detailed, footnoted review of Ecuador’s assaults and attacks on media and journalists; legal proceedings and arrests (the “Rapporteur is concerned about the consistent tendency of high-ranking public officials to rebuke, arrest, and prosecute citizens who criticize them at public events”); presidential broadcasts and government interruptions of news programs; disparaging statements by senior state authorities against media outlets and reporters critical of the government; constitutional amendment and legislative proposals to regulate the content of all media, establish the grounds for liability and the applicable sanctions and serve as an authority on enforcement; and cloture and regulation of communications media.

Such actions also have subjected the country to similar criticism by the U.N. Human Rights Council in its Universal Periodic Review of Ecuador in the summer of 2012. One of the Council’s closing recommendations in that Review was for Ecuador to reform its legislation regarding freedom of expression with a view to bringing it in conformity with international standards and those of the Inter-American Commission on Human Rights. In response Ecuador said that it could not agree to reform its legal framework in accordance with standards from the Commission, when it is the Inter-American Court of Human Rights, not the Commission, which has judicial competency over this matter. Nor could Ecuador, it said, eliminate laws that criminalize opinion since it had no such laws.

In addition, Ecuador has been severely chastised by the Committee to Protect Journalists, which put the country on its Risk List of the 10 countries in the world where press freedom suffered the most in 2012. Similar rebukes have come from Human Rights Watch, Freedom House and the Washington Post Editorial Board.

4. Ecuador’s Campaign for Its Proposed “Reforms” of the Commission.

In response to the Special Rapporteur’s persistent and documented criticism of Ecuador, the country developed a set of proposals to “reform” the Commission. Prominent in this package were reduction in funding (and hence the work) of the Special Rapporteur and elimination of his separate annual report.

Ricardo Patino
Ricardo Patino

In early 2013 Ecuador conducted a lobbying campaign in support of these proposals. Its Foreign Minister, Ricardo Patino, went on a tour of Mexico, Chile, Argentina, Brazil, Colombia, Dominican Republic, Haiti and Venezuela to promote them.  He also advocated them at a meeting of the Political Council of the Bolivarian Alliance for the Peoples of Our Americas (ALBA) [1] and at a March 11th meeting in Guayaquil, Ecuador of the 24 states that were parties to the American Convention on Human Rights.[2]

The latter event was opened by a long speech by Ecuadorian President Correa, who emphasized that the Commission should have its headquarters in a state that has ratified said Convention (not Washington, D.C.); that the Commission should have its own budget provided only by state parties to the Convention (without voluntary contributions by outsiders like the U.S., Canadian and European governments and NGO’s);  that the Commission should not be “autonomous” and instead be controlled by said states parties; the abolition of the Commission’s rules authorizing its issuance of precautionary measures; having the Commission focus on general promotion of human rights, not investigating and deciding on alleged violations of human rights; and elimination of the separate annual report of the Special Rapporteur for Free Expression and instead including such a report in a comprehensive report for all of the rapporteurships.

The Ecuador meeting resulted in the Declaration of Guayaquil whereby the 24 states parties agreed that at the March 22nd meeting of the OAS General Assembly they would support the following: a group of their foreign ministers would press the U.S., Canada and other non-parties to the Convention to ratify or accede to same; the Commission would be refocused on promotion of human rights through national systems; financing of the Commission would be increased by states parties and by “neutral” others; all rapporteurships would be treated equally; an analysis of the costs of the OAS Human Rights System would be obtained; the Commission’s headquarters would be moved to a state party; and annual conferences about reforming the System would be held.

Opposition to such proposals came forward from the U.N. High Commissioner for Human Rights, Navi Pillay, who urged the OAS members “to strengthen its exemplary human rights system, by promoting universal access for citizens . . ., respecting the Commission’s autonomy to progressively improve its policy and practices in response to the needs of victims and concerns of member states, and providing the necessary resources [to the System].” Similar concerns were voiced by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Freedom House, a group of 98 prominent Latin Americans and a coalition of 700 hemispheric human rights organizations.

Another opponent of Ecuador’s campaign was Cesar Gaviria Trujillo, a former president of Colombia and past secretary general of the OAS. He said that the so called “reforms” of the Commission put forward by Ecuador would “severely weaken the [C]omission and make it easier for governments to ignore basic rights and limit free speech.” They would “drastically curtail [the Commission’s] autonomy” and put a “financial stranglehold” on its operations, including a “devastating impact” on the Special Rapporteur for Freedom of Expression. [3]

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General
Jose Miguel Insulza, OAS Secretary General

In opening remarks that day, the OAS Secretary General, Jose Miguel Insulza from Chile, stressed that the autonomy of the System needed to be maintained. He also said that strengthening some of the Commission’s rapporteurships “cannot mean that others are weakened” and that the Special Rapporteurship on Freedom of Expression should be strengthened “with a program of ample defense of [such] freedom . . . . ” This would include “issues relating to the curtailment of that freedom by public authorities . . .  as well as the threats and crimes to which journalists and the social media are increasingly subjected in our region and the obligation of states to protect them.”

William J. Burns, U.S. Deputy Secretary of State
William J. Burns, U.S. Deputy Secretary of State

Similar remarks were made by U.S. Deputy Secretary of State, William J. Burns. He noted that even though the U.S. was not a party to the American Convention on Human Rights, the U.S. still collaborates with the Commission when it challenges the U.S. on such issues as the death penalty, the human rights of migrants and children and the status of detainees at Guantanamo Bay, Cuba. He added, “We must be vigilant against efforts to weaken the Commission under the guise of reform. [Such efforts] . . . seek to undermine the Commission’s ability to hold governments accountable when they erode democratic checks and balances and concentrate power through illiberal manipulation of democratic processes.”

Ecuadorian Foreign Minister Patino in his remarks accused the opposition and the media of distorting his government’s proposals. He also accused the Commission of improperly assuming the power to issue precautionary measures. Its decisions were independent, he said, but the Commission was not autonomous. He rhetorically asked, the Commission is autonomous and independent of whom? Sotto voce, a Spanish journalist answered, “You,” causing laughter by those around the journalist.

The resolution adopted by acclamation at the midnight conclusion of the March 22nd meeting already has been discussed. It clearly did not adopt all of the items in Ecuador’s package.

This resolution emerged after a long day in which the U.S., Canada, Mexico, Colombia, Costa Rica, Panama and Chile lead the opposition to the proposals from Ecuador, Bolivia, Venezuela and Nicaragua. A Human Rights Watch observer said, “It was a resounding victory for the Commission, and a major defeat for the Venezuela-Ecuador bloc. It became evident that [the latter] . . . were totally isolated, without the support they were expecting from other countries.”

Towards the end of the meeting Ecuador and Bolivia threatened to withdraw from the Commission and leave the meeting. To avoid such a rupture, Argentina offered a face-saving amendment to the resolution about the OAS’ Permanent Council continuing the dialogue on the “core aspects for strengthening” the System, which Ecuador and the other ALBA countries ultimately accepted.

Conclusion

Afterwards Ecuador’s Foreign Minister tried to whitewash his country’s defeat by saying that the resolution accepted its proposal to continue the debate in the future. Before the next meeting of the OAS General Assembly in June 2014, the Foreign Minister said that there would be another meeting of the states parties to the American Convention like the one on March 11th in Guayaquil to discuss these issues. He also hinted at Ecuador’s possible withdrawal from the OAS Commission by saying there was an agreement being negotiated to create a Human Rights Commission of the Union of South American Nations (UNASUR).

Unless there are unexpected changes in regimes or policies in this Hemisphere over the next 14 months, I do not expect Ecuador and its allies will be successful at the June 2014 OAS meeting in gaining acceptance of its proposals to weaken the Inter-American Commission.[4] We will then see if this small group will leave that Commission and form its own, more limited, human rights system.


[1] ALBA is an alternative to the U.S.-sponsored Free Trade Area of the Americas. differing from the latter in that it advocates a socially-oriented trade block rather than one strictly based on the logic of deregulated profit maximization. The only members of ALBA are Ecuador, Bolivia, Venezuela, Nicaragua and three small Caribbean states (Antigua and Barbuda, Dominica and Saint Vincent and the Grenadines.

[2]  This campaign is discussed in press releases from Ecuador’s Foreign Minister.

[3] Such a limitation on financing undoubtedly would result in a reduction of such funding and thus on the work of the Commission.

[4]  I assume that Ecuador has another burden to overcome in attempting to win support for its “reform” proposals. Its credibility within the OAS, I suspect, has been adversely affected by its recent exaggerated, alarmist call for an OAS Consultative Meeting of Foreign Ministers over the alleged United Kingdom threat to invade Ecuador’s London Embassy because of its providing diplomatic asylum in that Embassy to Julian Assange.