As noted in a prior post, the U.S. State Department on June 27, 2017, issued its annual report on human trafficking, and Its discussion of Cuba (pp. 143-45) included the allegation that Cuba had engaged in illegal forced labor with its foreign medical mission program.
This allegation has been present in previous annual reports, some of which have been discussed in other posts.
Report Regarding Cuba’s Alleged Forced Labor in Its Foreign Medical Missions
The latest report observes, presumably correctly, that the Cuban penal code does not criminalize forced labor. Therefore, the report, also presumably correctly, states that Cuba “did not make efforts to identify or protect victims of forced labor” and “did not report having procedures to identify victims of forced labor.”
In addition, the report says, presumably correctly, “The government is the primary employer in the Cuban economy, including in foreign medical missions that employ more than 84,000 workers in more than 67 countries, including Bolivia, Brazil, Colombia, and Venezuela. These medical missions constitute a signficant source of Cuban government income.”
Implicitly conceding that there was conflicting evidence, this report said, “Some participants in foreign medical missions as well as other [unnamed] sources allege that Cuban officials force or coerce participation in the program; the [Cuban] government has stated the postings are voluntary, and some participants also have stated the postings are voluntary and well paid compared to jobs within Cuba.” (Emphases added.)
This report continued, “The Cuban government acknowledges that it withholds passports of overseas medical personnel in Venezuela due to security concerns; the government provided ID cards to such personnel in place of passports. There are also claims about substandard working and living conditions in some countries. In the past, there have been claims that Cuban authorities coerced participants to remain in the program, including by allegedly withholding their passports, restricting their movement, using “minders” to monitor participants outside of work, or threatening to revoke their medical licenses or retaliate against their family members in Cuba if participants leave the program.“ (Emphasis added.)
“In 2015, Cuba reinstituted restrictions on travel for specialized doctors and some medical personnel, requiring them to obtain an exit permit from their superiors before leaving the country. On September 9, 2015, the government agreed to reinstate medical personnel who had left their positions while abroad. As of April 1, 2016, the Cuban authorities claimed that 274 medical professionals who returned to Cuba and were rehired at the same salary and level of responsibility they had before leaving. More recent data was not available.”
This report, consistent with prior reports, alleges or assumes that Cuba is engaged in illegal forced labor of Cuban medical personnel in foreign medical missions and that Cuba does not recognize forced labor as a possible issue affecting its nationals in medical missions abroad.
Analysis of the Allegation
This U.S. allegation is flawed for at least the following seven reasons.
First, while previous reports admitted that “information on the scope of . . . forced labor in Cuba is limited,” the latest report admits there is conflicting evidence about whether medical personnel’s participation in the foreign mission program is coerced and that the Cuban government denies such illegal coercion.
Second, most of this report’s recitation of alleged facts about the foreign mission program do not relate to, or substantiate, the forced labor allegation.
Third, “Internationalist medical aid has been a longstanding part of the Cuban people’s tradition of solidarity, since the beginning of the Revolution. As early as 1960 a brigade was sent to Chile following an earthquake there, and to Algeria in 1963, to support the new country recently liberated from colonialism.” At least four Cuban doctors who have participated in such missions have recorded how they treasure the positive impact of those experiences on their professional and personal lives.
Fourth, the accusation of forced labor for such participants has been rejected in a detailed study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman. He says, although there may be “some cases where . . . [Cuban medical professionals] are pressured into accepting overseas assignments, . . . most evidence indicates that the overwhelming majority are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude.
Fifth, relevant to this issue, but not mentioned in the Report, is the fact that medical education in Cuba (at the Latin American School of Medicine) is free. As a result requiring medical graduates to pay the country back by such participation seems entirely appropriate and may indeed be a contractual or quasi-contractual obligation. The recent $67 monthly salary for Cuban physicians in Cuba compared with the $24 or $27 monthly income of other Cubans is a result of Cuba’s adoption of a “pyramid” compensation system whereby highly trained workers like physicians earn more than lower-skilled workers like busboys. This system, however, is being undermined by lower-skilled workers like gas-station attendants and waiters earning additional income from stealing and illegally selling gasoline and from earning tips in hard currency at restaurants and hotels serving foreign tourists. Indeed, Raúl Castro in his speech at the April 2016 Congress of the Communist Party of Cuba called this the “inverted pyramid” problem that had to be solved.
Sixth, this Report and its predecessors do not cite to the relevant international legal definition of “forced labor” to assess this claim or set forth any legal analysis purportedly supporting the allegation. This is not surprising as international law does not support this allegation.
This treaty’s Article 2(1) preliminarily defines “forced or compulsory labour”as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily,” But there are five exceptions to this definition set forth in the treaty’s Article 2(2). One such exception, in subsection (b), states ”the term forced or compulsory labour shall not include . . . any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Emphases added.)
Cuba clearly is a “fully self-governing country” and the participants in the foreign medical missions are Cuban “citizens,” and as previously stated, such participation is regarded as “part of the normal civic obligations” of such citizens with the appropriate medical qualifications. Thus, under the most relevant statement of international law, Cuba has not engaged in illegal forced labor with respect to the foreign medical missions.
Seventh, there has not been any fair adjudicative process that has determined that such illegal coercion exists.
A prior post reported that Cubans want greater economic growth and opportunity while also expressing pessimism about that happening. The grounds for that pessimism are highlighted in a Miami-Herald article about the many economic challenges facing President Raúl Castro In the last year of his presidency.
This is the article’s big picture. “Many state enterprises are barely limping along, there are jitters as the economy of Cuba’s Venezuelan benefactor spirals downward, the rules of the road are murky for private businesses, salaries are low, a messy dual currency system still needs to be unified and Cuba is in dire need of much more foreign investment.”
These problems will not be easy to solve. “Many of Cuba’s economic problems are interrelated and the timing may not be good for any drastic moves — especially with Cuba’s relationship with the United States still up in the air.”
Yes, it is true that “Cuban officials are estimating economic growth of around 2 percent this year, but that figure is based on the assumption that oil prices will go up and tourism will keep growing.” According to Cuban economist Omar Everleny Pérez Villanueva, the 2 percent growth objective is “very ambitious.” He could have said “unrealistic” as His model puts the Cuban economy in negative territory with a decline of between .3 percent and 1.4 percent in 2017.”
Here are specifics on some of the economic challenges facing the island:
Maintaining Exports of professional services. Medical services by Cuban health care professionals on foreign medical missions in recent years have provided the Cuban government with a major source of foreign currency. In recent years, however, this source of foreign currency has declined with the implosion of the Venezuelan economy being a major factor.
Coping with Venezuela’s Economic Implosion. Venezuela’s problems for Cuba go beyond the decline in foreign medical mission income for Cuba. Since last July, oil deliveries from Venezuela have dropped as much as 60 percent. Venezuela used to send crude oil to Cuba for blending at the latter’s Cienfuegos refinery, but production at the Cuban refinery has fallen by half with the reduction in shipments from Venezuela.
Eliminating Cuba’s dual currency system. Cuba has two currencies: the Cuban peso (CP), which is generally used by the Cuban population and the Cuban convertible peso (CUC), which used by tourists and foreign companies, and the Cuban government for years has had a goal of eliminating this system. According to Carmelo Mesa-Largo, a Cuban economist and professor emeritus at the University of Pittsburgh, “In 2016, the budget deficit was 7.3 percent of GDP, and because of the already difficult economic situation, they have had to print money. The budget deficit may be even higher this year — perhaps 12 percent — generating even more inflation.”
Increasing public salaries. “There are constant complaints about low public salaries. A private cab driver, for example, can earn more than a physician or other professionals. According to Mesa-Lago, even though salaries went up in 2015, buying power was just 62 percent of what it was in 1989. Nominal salaries could be increased by printing more CP, ”but with inflation, they would have to raise salaries even more to have real wage growth.” And that could set off a further inflationary spiral.
Attracting foreign investment. The Cuban government has made it clear that foreign investment is a cornerstone of Cuban economic development going forward, but so far investment is lagging. “Diplomats, business executives and members of the U.S. Congress who favor lifting the embargo all concur that Cuba needs to reform its legal system to offer foreign investors better legal guarantees, make it easier to sign contracts and allow them to directly hire their Cuban employees.” The Cuban government, however, does not want to do anything that potentially could be destabilizing and cause a weakening of political control.
Cuban medical professionals who have served in Cuba’s medical mission to Venezuela (Barrio Adentro) have reported fraudulent overstatement of the mission’s statistics.
Venezuela pays Cuba on the basis of the number of patients the medical professionals treat or the educational workshops they teach. As a result, the Cuban authorities do not want low numbers of such patients to affect their income and, therefore, set daily quotas for the number of patients that are seen and treated.
According to some Cuban dentists and ophthalmologists in particular, they were unable to meet their quotas and, therefore, regularly submitted reports that falsely overstated the number of patients they had seen.
Alma Gillermoprieto, a prominent journalist who has written extensively about Cuba and Latin America, in an article dated April 15, 2016, had interesting observations about Cuba, which subsequently have been confirmed by the Seventh Congress of the Communist Party of Cuba and other events. (Her photograph is to the right.)
She was in Cuba during President Obama’s visit and did not disagree with the U.S. media’s declaring “Obama the winner in the encounter” with Raúl Castro, an unsurprising conclusion since “Obama is as skilled at public relations as any U.S. politician, and the leader of a monolithic state hardly needs charm.” Obama and his speech to the Cuban people on live television, as discussed in an earlier post, made a significant impact on the Cuban people with the speech’s content as well as his persona—young, vigorous, handsome and African-American.
The Broken Cuban Economic System
Guillermoprieto noted that everyone in Cuba obviously was aware of the state of disrepair of nearly everything on the island. It prompted the “joke on everyone’s lips,” she reports, “that Obama should stay in Havana for a month, because in preparation for his three-day visit [in March] more had been done to fix up the place than in the previous half-century.” This was but one indication of the broken Cuban economic system.
For Raúl Castro and the other leaders of the Government and the Communist Party of Cuba, Guillermoprieto speculates, the question has been “How many mistakes can safely be corrected? When the house you live in is falling apart, how much can you tinker with the plumbing, the windows, the doorjambs, and the supporting walls before the whole edifice collapses around you?”
Raúl in his April 21 speech to the Party Congress admitted some of the major ways in which the Cuban economic house was falling apart. Economic growth [over the past five years], he said, was “not enough to ensure the creation of the productive and infrastructure conditions required to advance development and improve the population’s consumption.” Indeed, “wages and pensions are still unable to satisfy the basic needs of Cuban families.” (Emphasis added.)
A major problem, Castro admitted at the Congress, was insufficient agricultural production and hence rising prices for basic foodstuffs and the need to maintain consumer subsidies in the form of lower prices with ration books. Such price controls to lower prices on basic foods were instituted on April 22, and on May 3 additional price controls on foodstuffs were implemented.
Moreover, said Castro, “The state enterprise system, which constitutes the main management mode in the national economy, finds itself in at a disadvantage when compared to the growing non-state sector which benefits from working in monetary system with an exchange rate of one CUC to 25 CUP, while the state system operates on a basis of one CUC to one CUP. This serious distortion must be resolved as soon as possible and a single currency reestablished.” (Emphasis added.)
According to Castro, efforts to implement the economic reforms approved five years ago have been delayed due to “slow implementation of legal regulations and their assimilation.” The “main obstacle,” however, has been “out-dated mentalities, which give rise to an attitude of inertia or lack of confidence in the future. There also remain, as was to be expected, feelings of nostalgia for the less difficult times in the revolutionary process, when the Soviet Union and socialist camp existed.”(Emphasis added.)
Incorporating Private Enterprise in the Cuban System
Guillermoprieto further speculates that Raúl “may be trying to modernize Cuban socialism to the point where it is capitalist and open enough to accommodate the restless generations who are now under forty-five years of age . . . . Perhaps he has the sense that the revolution is finished, that there is no future in the old dogmas and failures, that sixty years of poverty and repression are enough, and that he has no real power to control the inevitable future. Perhaps he is simply trying to ensure, finger in the dike, that a newly capitalist Cuba does not slide into a morass of corruption and cynicism.”
At the subsequent Party Congress, Raúl clearly embraced private enterprise as necessary and welcome to Cuba. He said, “Cooperatives, self-employment and medium, small and micro private enterprise are not in their essence anti-socialist or counter-revolutionary.” With non-state employment increasing from 18.8% in 2010 to 29.2% of the economy in 2015, “just over half a million Cubans [now] are registered as self-employed; they provide services and generate much-needed production. An atmosphere that does not discriminate against or stigmatize duly authorized self-employment is being defined. . . . [We] favor the success of non-state forms of management.” (Emphasis added.)
Moreover, according to Raúl, “Recognizing the market in the functioning of the our socialist economy does not mean that the Party, government and mass organizations are no longer fulfilling their role in society. . . .The introduction of the rules of supply and demand is not at odds with the principle of planning. Both concepts can coexist and complement each other for the benefit of the country.” (Emphasis added.)
At the same time, Raúl made it clear that these welcome changes did not constitute an abandonment of the ideals of the Revolution, that state ownership of the means of production would still be the mainstay of the economy, that the changes did not constitute a restoration of capitalism, that the state would not permit concentrations of wealth and property and that Cuba needed to be wary of powerful external forces (i.e., the U.S.) seeking to take advantage of these changes.
Other signs of Cuba’s economic distress are the recent firing of an economist at the university of Havana and the upsurge of Cubans, especially younger people, leaving the island, as mentioned in a prior post.
Internal Cuban Opposition to Economic Reforms
Guillermoprieto notes that Raúl has internal opposition to rapid and significant changes to the economy and government, including brother Fidel in his rambling article in Granma after Obama’s visit that was discussed in a prior post. That article has opened the gates for other opposition, cleverly directed at Obama instead of Raúl.
Indeed, at the subsequent Party Congress, Foreign Secretary Bruno Rodriguez and one of the Cuban Five delivered speeches with harsh criticism of President Obama as the “pied piper’ attempting to lure Cubans down the path of capitalism. This too was discussed in an earlier post.
Guillermoprieto also quotes respected Cuban historian Rafael Rojas, now based in Mexico, about other opposition to Raúl coming from government ministries who believe “change must come more quickly.” A key problem for such rapid change that was recognized in Raúl’s recent report to the Party Congress was the need to eliminate as soon as possible the dual currency system (the CUC and the CUP), but the state’s subsidization of many prices in CUC makes that exceedingly difficult financially.
Inequality in Cuba
Guillermoprieto notes that there already is income and wealth inequality in Cuba growing out of its allowance of self-employment, i.e., private enterprise, in certain occupations over the last five years and the allowance of higher salaries or wages for medical doctors (now $67 per month) versus those employed in state-enterprises ($25 per month). The prospect is that there will be more inequality contrary to the ideals of the Revolution.
The recent allowance of higher salaries for Cuban physicians apparently was justified on the theory of a pyramid of workers with those with higher skills like doctors at the top of the pyramid earning higher salaries. Indeed, in Raúl’s speech to the Party Congress he complained about the inversion of the pyramid where lower-skilled workers like hotel bus boys and gas pump operators earn more through tips In hard currencies and illegal sales of gasoline than highly-skilled workers like physicians. This lamentable situation, said Castro, “does not allow work to be compensated in a fair manner, in accordance with its quantity, quality and complexity, or living standards to reflect citizens’ legal income.” This situation also generates “an unmotivated workforce and cadres, which also discourages employees from seeking out positions of greater responsibility.”
Guillermoprieto also reports that physicians who go on Cuba’s famous foreign medical missions are paid $500 per month ($300 while in the foreign country plus $200 deposited in a Cuban bank to encourage their return to the island). Because this is less than the Cuban government is paid for their services, she apparently regards this as unfair. I, however, draw the opposite conclusion while assuming her numbers are correct. The $500 per month is over seven times higher than the physician’s salary in Cuba and clearly is economically attractive to the physician. It totally negates the U.S. State Department contention that the Cuban doctors on foreign missions are engaged in illegal forced labor as discussed in a prior post.
I am grateful for Guillermoprieto’s sharing her observations about Cuba. She provides additional evidence of the brokenness of the Cuban economic system and the difficulties of reforming or restructuring that system to include the advantages of free enterprise while simultaneously controlling its disadvantages.
Alma Guillermoprieto, Wikipedia. In her memoir, Dancing with Cuba: A Memoir of the Revolution, she recounts moving in 1970 from New York City to Havana to teach at Cuba’s National School of Dance. For six months, she worked in mirrorless studios (it was considered more revolutionary); her poorly trained but ardent students worked without them but dreamt of greatness. Yet in the midst of chronic shortages and revolutionary upheaval, Guillermoprieto found in Cuba a people whose sense of purpose touched her forever.
 That earlier post pointed to a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman, who said, “most evidence indicates that the overwhelming majority [of Cuban doctors on foreign missions] are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude. Also relevant is the fact that Cuban medical education is free and in a quid-pro-quo the student agrees to serve in such missions upon becoming a doctor.
On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which is “the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking” and “ the world’s most comprehensive resource of governmental anti-human trafficking efforts.”
In this Report, the Department placed 187 countries into one of the following four tiers based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the Trafficking Victims Protection Act:
“TIER 1 [Thirty-one] countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.
TIER 2 [Eighty-nine] 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 [Forty-four] 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: 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; 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 future steps over the next year.
TIER 3 [Twenty-three] countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.”
At the Department’s release of this Report, Secretary of State John Kerry made comments. In part, he said, “the purpose of this document is not to scold and it’s not to name and shame. It is to enlighten and to energize, and most importantly, to empower people. . . . [We] want to bring to the public’s attention the full nature and scope of a $150 billion illicit trafficking industry. . . . We want to provide evidence and facts that will help people who are already striving to achieve reforms to alleviate suffering and to hold people accountable. We want to provide a strong incentive for governments at every level to do all that they can to prosecute trafficking and to shield at-risk populations.”
Additional comments and responses to journalists’ questions were provided at the launch of this Report by Sarah Sewell, Under Secretary of State for Civilian Security, Democracy and Human Rights. She pointed out that “in this year’s report, some 18 countries moved up in the tier rankings, some 18 countries moved down in the tier rankings” and quoted the above statutory definitions of the different rankings.
The Report’s Assessment of Cuba’s Record on Human Trafficking
In the 2015 Report Cuba was placed in the Tier 2 Watch List, which was an upgrade from the prior year’s report that had Cuba in Tier 3. The new Report states that although “information on the scope of sex trafficking and forced labor in Cuba is limited, [c]hild sex trafficking and child sex tourism occur within Cuba. Cuban authorities report people from ages 13 to 20 are most vulnerable to human trafficking in Cuba. Traffickers also subject Cuban citizens to forced prostitution in South America and the Caribbean. . . . “
As a result, the Report concludes, “The Government of Cuba does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. For the second consecutive year, the government reported efforts to address sex trafficking, including the prosecution and conviction of 13 sex traffickers in 2013 and the provision of services to victims in those cases. The Cuban government reported at the beginning of 2015 that the Ministry of Labor and Social Security assumed the lead role in a committee responsible for combating gender and sexual violence, including sex trafficking. The penal code does not criminalize all forms of human trafficking, though the government reported continuing efforts to amend its criminal code, including bringing it into conformity with the requirements of the 2000 UN TIP Protocol, to which it acceded in July 2013. . . .”
In addition, the Report states the Cuban “government did not report any trafficking-specific shelters, but offered services to trafficking victims through centers for women and families harmed by violence. The Federation of Cuban Women, a government affiliated non-governmental organization, provided some outreach and education about human trafficking within the context of violence against women, but did not specifically address it as a crime involving sex trafficking and forced labor or affecting men and boys.”
The Report’s forced labor allegation is focused on Cuba’s “foreign medical missions, which employ more than 51,000 workers in over 67 countries and constitute a significant source of Cuban government income. Some participants in foreign medical missions as well as other sources allege that Cuban officials force or coerce participation in the program; [but] the Cuban government denies these allegations. Some Cubans participating in these work missions have stated the postings are voluntary and well paid compared to jobs within Cuba. There have also been claims that Cuban authorities coerced participants to remain in the program, including by allegedly withholding their passports, restricting their movement, or threatening to revoke their medical licenses or retaliate against their family members in Cuba if participants leave the program. There are also claims about substandard working and living conditions and the existence of ‘minders’ to monitor victims outside of work. Some medical professionals participating in the missions are in possession of their passports when they apply for and obtain special United States visa and immigration benefits, indicating passport retention is not a consistent practice across all work missions.”
Consistent with its denial that its foreign medical missions involve forced labor, the Cuban government “did not recognize forced labor as a problem within Cuba and did not report efforts to prevent forced labor.”
The Report goes on to make the following recommendations for Cuba: (1) “draft and pass a comprehensive anti-trafficking law that prohibits all forms of human trafficking, including an offense of forced labor;” (2) “vigorously investigate and prosecute sex trafficking and forced labor offenses;” (3) “schedule a visit and engage in robust discussions with the UN special rapporteur on trafficking in persons on all forms of human trafficking;” (4) “provide specialized training for managers in state owned or controlled enterprises in identifying and protecting victims of forced labor and implement policies to verify the absence of coercion in such enterprises;” (5) “train those responsible for enforcing the labor code to screen for trafficking indicators and educate workers about trafficking indicators and where to report trafficking-related violations;” (6) “strengthen efforts, in partnership with international organizations, to provide specialized victim identification and referral training for first responders; (7) establish formal policies and procedures to guide officials in the identification of all trafficking victims and their referral to appropriate services;” (8) “expand upon the Ministry of Labor and Social Security’s anti-trafficking responsibilities to include all forms of trafficking and male as well as female victims, and develop an action plan to address sex trafficking and forced labor for males and females;” and (9) “adopt policies that provide trafficking-specific, specialized assistance for male and female trafficking victims, including measures to ensure identified sex and labor trafficking victims are not punished for unlawful acts committed as a direct result of being subjected to sex trafficking or forced labor.”
Under Secretary Sewell, elaborating on this assessment of Cuba in response to a journalist’s question, said, “Cuba was upgraded to the Tier 2 Watch List because of the progress that the government’s made in addressing and prosecuting sex trafficking, as well as the commitments that the Cuban Government has made to become compliant with the minimum standards. As noted in other cases, a Tier 2 Watch List ranking does not mean that a country is free from problems or free from human trafficking.”
According to Sewell, the Cuban “government reported significant efforts to address sex trafficking, including the conviction of sex traffickers, the provision of services to sex trafficking victims, and continued efforts of the ministry of tourism to address sex tourism and the demand for commercial sex. We also recognize the commitments the government has made to reform its laws to become compliant with the UN Palermo Protocol, which is a significant step, as well as the Cuban Government’s willingness to welcome the UN special rapporteur to the island.”
Nevertheless, Sewell continued, the U.S. has “a number of concerns such as the failure to recognize forced labor as a problem or to act to combat it. And so this will be very much a topic in our dialogue with Cuban officials as we work over the next year to try to help Cuba make more concrete progress in the realm of human trafficking.”
Reactions to the Report’s Assessment of Cuba
News media immediately highlighted the Report’s upgrades of Malaysia and Cuba, and a New York Times editorial was most critical of the assessment of Malaysia. Some U.S. Senators and Representatives launched criticism of those assessments in particular. Prominent with respect to Cuba, as expected, was Senator Robert Menendez (Dem., NJ), who said that by upgrading Malaysia and Cuba the administration had “elevated politics over the most basic principles of human rights” and vowed to do all he could “from hearings to legislation to investigations” to challenge the moves.” Representative Chris Smith (Rep., NJ) was upset by the same upgrades as well as relatively lenient ratings for Vietnam and China and stated the report had “careened off into a new direction where the facts regarding each government’s actions in the fight against human trafficking are given almost no weight when put up against the president’s political agenda.” Similar criticism came from Senator Marco Rubio (Rep., FL). 
A Reuters investigation concluded that the State Department’s office responsible for the TIP reports was overruled by senior Department officials on 14 of the 18 upgrades, including Malaysia, Cuba, China, India, Uzbekistan and Mexico. The final decision on disputed rankings this year, said Reuters, was made in meetings attended by some of the State Department’s most senior diplomats, including Deputy Secretary of State Tony Blinken, Under Secretary of State for Political Affairs Wendy Sherman and Kerry’s Chief of Staff, Jonathan Finer.
On July 29 the Chairman (Bob Corker (Rep., TN)) and the Ranking Member (Ben Cardin (Dem., MD)) of the Senate Foreign Relations Committee in a joint letter asked Secretary of State John Kerry for a briefing on the Report in order “to better understand” the basis for its upgrade of several countries, including Malaysia and Cuba. They added, “We recognize that U.S. policy and engagement on trafficking does not exist in a vacuum, and we appreciate the many varied and nuanced trade-offs that are necessary between competing policy issues. We also believe that it is critical that the impartial reliability of the TIP Report be safeguarded and maintained if it is to have utility on this critical issue in the future.” 
Senate Foreign Relations Committee Hearing
On August 6 that Committee held a hearing on this subject with Under Secretary Sewell as its sole witness.
She testified that in “most cases, this assessment process [of different countries’ record on human trafficking] clearly places governments into one of the tiers; in other cases, further discussion among senior Department officials is required to clarify information and assess the totality of government efforts. This ultimately leads to the Secretary of State’s designation of Tier rankings for each country and approval of the TIP Report. Tier rankings do not assess the severity of human trafficking in a given country, but rather that government’s efforts in addressing human trafficking problems over the current reporting period compared to its own efforts in the prior year. Determinations about the direction and quality of that progress in a given country are guided by complex criteria outlined in the TVPA and described on pages 45 through 50 of the TIP Report.”
More specifically for the six countries, including Cuba, that moved up to Tier 2 Watch List this year, Sewell testified, “the Department closely evaluated the efforts those governments had made during the reporting period as well as the commitments they made for next year. Our posts are working with host governments to encourage them to implement the recommendations outlined in this year’s Report, and the TIP Office is finalizing assistance programming strategy to help make those recommendations a reality. I am receiving reports from the field on the frank and focused dialogues Embassy personnel are having with host government officials on how to overcome the challenges they face to better combat this crime and protect their citizens.”
With only Chairman Corker, Ranking Member Cardin and Senator Menendez in attendance, most of the questions focused on the upgrade of Malaysia. Corker, for example, said, “The administration’s policies toward those countries trumped any real regard for humans being trafficked.” The Department, he continued, “threw the trafficking phase under the bus to ensure that . . . [the Administration was] successful with [the Trans-Pacific Partnership (TPP) that included Malaysia].”  Menendez added a few comments and questions about the Cuba upgrade.
Sewell declined to answer questions about internal Department discussions about these upgrades and instead repeatedly emphasized that the statutory framework for tier rankings created a complex set of factors to be analyzed and that a Tier 2 Watch List ranking did not indicate a country had a great record on trafficking.
At the conclusion of the hearing, Chair Corker said it had been the “most heartless, lacking of substance” presentation and that he and the two other Senators in attendance had the strong impression that inappropriate political considerations had influenced some or all of the tier upgrades. As a result, the Committee would be asking for the Department to produce records about its internal consideration of the tier rankings. Senator Cardin also said he was interested in exploring whether Congress should amend the relevant statutes in light of what a further hearing might disclose.
After the hearing, a State Department spokesman said that the Department was waiting for the committee to submit a formal request, “but speaking generally, of course we try to be responsive to Congress.”
I agree that the annual T.I.P. reports are important tools in combatting trafficking in persons and that these reports should be free of political influence. On the other hand, I believe that the relevant statutes appropriately create a complex set of factors that require analysis in reaching conclusions about placing countries in the different tiers and that it is appropriate for senior Department officials to be involved in that process.
With respect to Cuba, for at least the following reasons I disagree with the Report’s assertion that Cuban medical personnel’s participation in foreign medical missions is illegal forced labor:
First, the Report admits that “information on the scope of . . . forced labor in Cuba is limited.”
Second, the Report admits that there is conflicting information and allegations on the foreign medical mission work. Coercion is alleged by “some participants” and “other sources.” On the other hand, the Cuban government denies these allegations, and other participants “have stated the postings are voluntary and well paid compared to jobs within Cuba.” The Report also concedes there is conflicting information on whether other means, including withholding Cuban passports, are used to coerce or force participants to remain in the program.
Third, there apparently has not been any fair adjudicative process to determine which of these conflicting sets of information is valid.
Fourth, the accusation of forced labor for such participants has been rejected in a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman. He says, although there may be “some cases where . . . [Cuban medical professionals] are pressured into accepting overseas assignments, . . . most evidence indicates that the overwhelming majority are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude.
Fifth, the Report does not cite to the relevant legal definition of “forced labor” to assess this claim. Most pertinent is Article 2(2) of the Forced Labour Convention, 1930, which states, in part, ”the term forced or compulsory labour shall notinclude . . . any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Emphasis added.)  Cuba is a “fully self-governing country” and the participants in the foreign medical missions are Cuban “citizens,” and as Professor Erisman states, such participation is regarded as “part of the normal civic obligations” of such citizens with the appropriate medical qualifications.
Sixth, relevant to this issue, but not mentioned in the Report, is the fact that medical education in Cuba (at the Latin American School of Medicine) is free. As a result requiring medical graduates to pay the country back by such participation seems entirely appropriate and may indeed be a contractual or quasi-contractual obligation. Indeed, as Professor Erisman reports, Cuban medical professionals, especially doctors, may apply to leave Cuba after they have obtained their free medical education and thereafter provided three to five years of service in the country.
We now await the Committee’s formal request for Department documents, the production of such documents and additional hearings on the subject. In the meantime, as always, I welcome comments of correction or amplification.
 Secretary of State Kerry, who was in Malaysia on the day of the hearing, categorically denied that politics had played any role in the ranking of Malaysia. “I personally signed off on it. And I had zero conversation with anybody in the administration about the Trans-Pacific Partnership relative to this decision — zero. The reason I made this decision was based on the recommendation of my team, because Malaysia has passed additional legislation in 2014, they’ve consulted with civil society, they drafted amendments to Malaysia’s anti-trafficking law in order to allow the country’s flawed victim protection regime to change.” (Assoc. Press, Kerry: Malaysia Trafficking Upgrade Not Due to Trade Talks, N.Y. Times (Aug. 6, 2015); Reuters, Kerry Says ‘Zero Communication’ on Trade Pact and Malaysian Trafficking Record, N.Y. Times (Aug. 6, 2015).
 The text of the U.S. statutes regarding trafficking in persons is set forth on a State Department web page and the Report contains a summary of “forced labor” without any mention of the exceptions to the definition discussed below.