Inter-American Commission on Human Rights Criticizes Cuban Human Rights

IACHROn May 7th the Inter-American Commission on Human Rights issued its 2014 annual report containing “accessible, comprehensive, and relevant information concerning the Commission’s work and resources” in order “to promote compliance with the Commission’s decisions, ensure accessibility to victims, give an accounting of the petition and case system, and report on the human rights situation in the region.”[1]

Chapter IV.B of the report has special reports the Commission considers necessary regarding the human rights situation in those Member States with the most troubling human rights records, i.e., the so called “black list” of the Commission. There are only two countries on that list for 2014: Cuba and Venezuela.

The report’s 45 pages about Cuba (Report at 388-431) was summarized as follows in the Commission’s press release about the report:

  • “[R]estrictions on political rights, freedom of association, freedom of expression and dissemination of ideas, the lack of elections, the lack of an independent judiciary, and restrictions on freedom of movement over decades have come to shape a permanent and systematic situation of violation of the human rights of the inhabitants of Cuba. Over the course of 2014, the information available suggests that the general human rights situation has not changed. The above-mentioned human rights situations persist, along with severe repression and restrictions on human rights defenders. The [Commission] also received information concerning discrimination and violence against LGBTI persons and persons with disabilities in Cuba.”

The Press Release also noted that the Commission welcomed “the restoration of diplomatic relations between the governments of Cuba and the United States, while reiterating its concern about the negative impact that the economic and trade embargo imposed by the [U.S.] on Cuba has on the human rights of the Cuban population” and noting “that the embargo does not release [Cuba] of its international obligations established in the American Declaration [of the Rights and Duties of Man].”

Other parts of the report set forth a general overview of the Commission’s activities during the year (Ch. I); an accounting of how cases, petitions, and precautionary measures have been handled, (Ch. II); the activities of the seven Rapporteurships (Ch. III);[2] an overview of the human rights situation in the hemisphere with emphasis on citizen insecurity, discrimination on the basis of nationality, discrimination on the basis of ethnic and racial origin, and the situation of migrants (Ch. IVA); the status of recommendations issued by the Commission on Jamaica and Colombia (Ch. V); and the challenges the Commission faces in terms of human and financial resources (Ch. VI).

The discussion in Chapter IVA (pp. 366-72) regarding racial discrimination commented on the U.S. problems of police brutality with alleged racial bias, especially the notorious case of the shooting of black teenager Michael Brown in Ferguson Missouri. Although the U.S. was seeking solutions to this problem, “there is still much to do” and the state and others in the region need “to continue and extend the studies and the police measures to eliminate racial profiling. ” Moreover, the report notes that the Commission has begun a Report on Criminal Justice and Race in the U.S. to analyze recent cases of alleged police racially motivated abuses and ways to prevent a situation that the Commission considers “very worrying.”

OASThe Commission is a principal and autonomous organ of the Organization of American States (“OAS”) whose mission is to promote and protect human rights in the American hemisphere. It is composed of seven independent members who serve in a personal capacity. Created by the OAS in 1959, the Commission has its headquarters in Washington, D.C.

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[1] This post is based upon the following: Ayuso, Venezuela and Cuba remain on black list of human rights, El Pais, (May 7, 2015); IACHR, Press Release: IACHR Presents Its Annual Report (May 7, 2015); IACHR, IACHR Annual Report, 2014 (May 7, 2015). This blog contains many posts about various cases decided by the Commission.

[2] The Commission has appointed its seven members as Rapporteurs to focus on the following human rights in the hemisphere: indigenous peoples; women; migrants; the child; human rights defenders; persons deprived of their liberty; persons of African descent and against racial discrimination.

U.S. and Cuba Hold Inconclusive Talks on Restoring Diplomatic Relations

On January 22 and 23, 2015, U.S. and Cuban diplomats met in Havana to discuss a multitude of issues relating to the restoration of normal diplomatic relations. No agreements were reached other than an understanding that additional talks were necessary and would be held albeit without dates or location being set.[1]

The first topic focused on technical issues related to reestablishing diplomatic ties. Gustavo Machin, the Cuban foreign ministry’s deputy director for U.S. affairs, said, “We have spoken about the principles upon which our diplomatic relations should be re-established.” The participants were “very respectful and flexible,” and not all the outstanding issues would be resolved in the first meeting.

Roberta Jacobson
Roberta Jacobson

At the conclusion of the first day’s meetings, U.S. Assistant Secretary of State Roberta Jacobson agreed that the participants had a “very productive and positive dialogue.” She added, “We discussed the real and concrete steps required to restore diplomatic relations and the terms for opening of embassies in our respective countries, as well as expectations about how the US Embassy in Havana would work.” She also agreed with Cuba’s assertion that the restoration of diplomatic relations would be in accordance with the Vienna Conventions on Diplomatic and Consular Relations. (In the photo to the right note the Cuban and U.S. flags at the podium at the site of the talks.)

Officials for both countries, however, outlined issues standing in the way of a normal U.S.-Cuba relationship.

Ms. Jacobson spoke of the U.S.’s persistent concerns about Cuban human rights while Cuba’s representatives talked about their concern for U.S. human rights, especially recent police killings of unarmed black men in Ferguson, Missouri and New York City and the treatment of detainees at the U.S. base in Guantanamo Bay Cuba.

An unnecessary note of discord was introduced by a  problem over the U.S. translation into Spanish of the Jacobson’s English-language post-session written statement. The statement (with the English word in question put in bold) said, “As a central element of our policy, we pressed the Cuban government for improved human rights conditions, including freedom of expression and assembly.” The U.S. translation of this statement used the Spanish verb “presionar,” which means to pressure. Josefina Vidal, the head of the Cuban delegation, however, said, “I can confirm that the word ‘pressure’ was not used. I must say it’s not a word that is used in these types of conversations.” Later the U.S. apologized for its erroneous translation.

Josafina Vidal
Josefina Vidal

Ms. Vidal cited as problems for restoration of diplomatic relations Cuba’s inclusion in the U.S. list of state sponsors of terrorism and the various financial restrictions imposed on the country as a result of the U.S. trade embargo. (Again note the two flags at the same podium in the photo to the right.)

Both of the countries’ leaders talked about the need for further discussions and negotiations to resolve these many issues. I expect the two sides to develop an agenda and plan for addressing these many issues, including dates and location for the next set of talks. In a subsequent post I will set forth my views, as an outsider, as to how these differences can be resolved.

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[1]  This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015); Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015); Reuters, U.S. Presses Cuba on Human Rights in Talks on Restoring Ties, N. Y. Times (Jan. 22, 2015); Sosa, U.S. aims to go beyond the restoration of relations with Cuba, Granma (Jan. 22, 2015); DeYoung, U.S., Cuba find ‘profound differences in first round of talks, Wash. Post. (Jan. 22, 2015); Klapper & Weissenstine, U.S., Cuba End Historic talks with More Questions than Answers, Assoc. Press (Jan. 23, 2015); Respectful and constructive climate brand rapprochement between Cuba and the United States, Granma (Jan. 23, 2015); U.S. is willing to discuss their differences with Cuba, Granma (Jan. 23, 2015); Ayuso, US and Cuba confirm a channel for dialogue despite their differences, El Pais (Jan. 23, 2015); Ayuso, The dialogue between Cuban and the US stumbles on human rights, El Pais (Jan. 23, 2015); An exchange that made world headlines, Granma (Jan. 23, 2015); Jacobson, Video of Statement on U.S.-Cuba Meetings (Jan. 23, 2015); Assoc. Press, U.S., Cuba End Historic Talks With More Questions than Answers, N. Y. Times (Jan. 23, 2015); Assoc. Press, U.S. admits: we’re not sure if new Cuba approach will work, Guardian (Jan. 23, 2015).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015), http://www.reuters.com/article/2015/01/22/us-cuba-usa-idUSKBN0KV0E720150122;

Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015), http://www.nytimes.com/2015/01/23/world/conflict-and-smiles-as-us-and-cuba-discuss-ties.html?ref=world;

Reuters, U.S. Presses Cuba on Human Rights in Talks on Restoring Ties, N. Y. Times (Jan. 22, 2015), http://www.nytimes.com/reuters/2015/01/22/us/politics/22reuters-cuba-usa.html?_r=0; Sosa, U.S. aims to go beyond the restoration of relations with Cuba, Granma (Jan. 22, 2015), http://www.granma.cu/mundo/2015-01-22/eeuu-aspira-a-ir-mas-alla-del-restablecimiento-de-relaciones-con-cuba; DeYoung, U.S., Cuba find ‘profound differences in first round of talks, Wash. Post. (Jan. 22, 2015), http://www.washingtonpost.com/world/the_americas/us-cuba-begin-talks-aimed-at-ending-decades-long-estrangement/2015/01/22/cda610b6-a1ba-11e4-91fc-7dff95a14458_story.html?hpid=z1; Klapper & Weissenstine, U.S., Cuba End Historic talks with More Questions than Answers, Assoc. Press (Jan. 23, 2015), http://hosted.ap.org/dynamic/stories/L/LT_UNITED_STATES_CUBA?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT; Respectful and constructive climate brand rapprochement between Cuba and the United States, Granma (Jan. 23, 2015), http://www.granma.cu/mundo/2015-01-23/clima-respetuoso-y-constructivo-marca-acercamiento-entre-cuba-y-estados-unidos; U.S. is willing to discuss their differences with Cuba, Granma (Jan. 23, 2015), http://www.granma.cu/mundo/2015-01-23/eeuu-esta-dispuesto-a-discutir-sus-discrepancias-con-cuba; Ayuso, US and Cuba confirm a channel for dialogue despite their differences, El Pais (Jan. 23, 2015), http://internacional.elpais.com/internacional/2015/01/23/actualidad/1422029081_706421.html; Ayuso, The dialogue between Cuban and the US stumbles on Human rights, El Pais (Jan. 23, 2015), http://internacional.elpais.com/internacional/2015/01/23/actualidad/1421979307_164657.htmlhttp://internacional.elpais.com/internacional/2015/01/23/actualidad/1421979307_164657.html; An exchange that made world headlines, Granma (Jan. 23, 2015), http://www.granma.cu/cuba/2015-01-23/un-intercambio-que-ocupo-los-titulares-del-mundo; Jacobson, Video of Statement on U.S.-Cuba Meetings (Jan. 23, 2015), http://www.nytimes.com/video/multimedia/100000003468209/explosions-in-yemeni-capital-after-hadi-resignation.html?playlistId=1194811622186; Assoc. Press, U.S., Cuba End Historic Talks With More Questions than Answers, N. Y. times (Jan. 23, 2015), http://www.nytimes.com/aponline/2015/01/23/world/americas/ap-lt-united-states-cuba.html.

 

 

 

 

 

 

 

 

 

Cuba’s Perspective on This Week’s U.S.-Cuba Diplomatic Meetings in Havana

As mentioned in another post, the U.S. and Cuba will hold diplomatic meetings in Havana on January 21 and 22, 2014.

According to Granma, Cuba’s official and only newspaper, an unnamed source at Cuba’s Ministry of Foreign Affairs said that Cuba “is going to these meetings with the constructive spirit to sustain a respectful dialogue, based on sovereign equality and reciprocity, without undermining national independence and self-determination of the Cuban people.”

“We should not pretend that everything is solved in one meeting,” the source said. “Normalization is a much longer and complex process where you have to address issues of interest to both parties.”

Migration Issues

On January 21st, the focus will be migration, and the unnamed source said Cuba will report on “the progress of the measures taken in January 2013 to update the Cuban immigration policy and its impact on the flow of people between the two countries,” and the two countries will discuss ways to confront “illegal immigration, smuggling and document fraud.”

In addition, Cuba will express “its deep concern at the continuing [U.S.] policy of ‘wet foot/dry foot’ and the Cuban Adjustment Act, which is the main stimulus to illegal emigration.” Cuba also will complain about the U.S. policy “to grant parole [to] Cuban professionals and health technicians to abandon their mission in third countries.”

Normalization Issues

On January 22nd the focus will be the many issues surrounding the December 17th decision of the two countries to re-establish diplomatic relations. As previously mentioned, Assistant Secretary of State Roberta Jacobson will lead the U.S. delegation at this session.[1]

The unnamed Cuban source said there would be discussion about certain levels of existing coordination in dealing with illegal immigration, including border troops and the coastguard; drug interdiction; oil spills; and search and rescue in case of air and maritime accidents. They also “are beginning to talk about monitoring earthquakes.”

Cuba will “reiterate the proposal made last year by U.S. government to hold a respectful dialogue on the basis of reciprocity with regard to the exercise of human rights.” The source promised “a dialogue on a reciprocal basis and on an equal footing” regarding human rights. Cuba has “legitimate concerns about the exercise of human rights in the [U.S.],” including controversies over police shootings and killings of black men in Ferguson Missouri and New York City, which are “situations that do not happen in [Cuba].” The source says his country welcomes the U.S. to meet “with the recognized organizations that make up a vibrant civil society in Cuba: students, women, farmers, professionals, disabled, unions, among others.” [2]

According to this source, Cuba will emphasize “the restoration of diplomatic relations and the opening of embassies in both capitals should be based on the principles of international law enshrined in the United Nations Charter and the Vienna Conventions on Diplomatic Relations and Consular Relations.”

“Compliance with these documents, to which both countries are signatories, means mutual respect for political and economic system of each country and to avoid any interference in the internal affairs of our nations. These principles are essentially sovereign equality, the settlement of disputes by peaceful means, refrain from the threat or use of force against the territorial integrity or political independence of any state, as well as equal rights, self-determination of peoples and non-intervention in matters which are domestic jurisdiction of states.”

In this context, Cuba will raise the following issues:

  • Solving the inability of the Cuban Interests Section in Washington, D.C. to obtain banking services;
  • Ending the U.S. designation of Cuba as a “State Sponsor or Terrorism;”
  • Ending the U.S. blockade [or embargo] of Cuba and providing Cuba with “compensation for damages for a policy that has been in place for over 50 years.” (At the U.N. General Assembly meeting in October 2014, Cuba claimed that the damages were $1.1 trillion.)

These issues, the source admitted, obviously cannot be resolved at the one-day meeting this week.

Reactions

I agree that certain U.S. laws relating to Cubans’ ability to gain legal immigration status in the U.S. need to be changed if there is to be full normalization and reconciliation. This includes the so-called “wet foot/dry foot” policy whereby a Cuban who is on U.S. land is entitled to such legal status, but if a Cuban is apprehended by U.S. authorities on the high seas, he is not so entitled. So too the U.S. program for granting immigration parole to Cuban professional medical personnel needs to be ended, as recommended by a New York Times editorial and by this blogger last November. (Whether these changes may be done by the President’s executive order or whether it takes congressional action has not been investigated by this blogger.)

The U.S. repeatedly has insisted that issues of Cuban human rights and civil society need to be addressed, and the Cuban Foreign Ministry spokesperson said his country was prepared to do that so long as Cuba’s concerns about human rights in the U.S. are addressed. I agree that there should be mutuality in any such discussion.

I also agree that the restoration of normal diplomatic relations needs to be based on what should be the following noncontroversial principles of the U.N. Charter and the Vienna Conventions on Diplomatic and Consular Relations:

  • The U.N. Charter provides that it is “based on the principle of sovereign equality of all its members” (Art. 2(1)), that “[a]ll Members shall settle their disputes by peaceful means” (Art. 2(3)) and that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the [U.N.]” (Art. 2(4)).
  • The Vienna Convention on Diplomatic Relations provides that “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” (Art. 2) and sets forth many details on the agreed-upon ways of implementing such relations. There are 190 states that are parties to this treaty, including Cuba and the U.S.
  • Similarly the Vienna Convention on Consular Relations says “The establishment of consular relations between States takes place by mutual consent” (Art. 2(1)) and provides many details on the agreed-upon ways of implementing such relations. There are 177 parties to this treaty, including Cuba and the U.S.

Other points of agreement with the Cuban spokesperson are enabling the Cuban Interests Section in Washington, D.C. to obtain banking services in the U.S.; ending the U.S. designation of Cuba as a “State Sponsor of Terrorism;”[3] and ending the U.S. embargo of Cuba.[4] As discussed in an earlier post, the U.S. already has started the process under U.S. law for rescinding the unjustified “State Sponsor of Terrorism” designation, and I anticipate that this summer there will be such a rescission. President Obama already has decided that the embargo should end, but that requires congressional action, and the process for doing just that has commenced and will not be politically easy to accomplish

The issue of compensation, if any, for Cuba for its alleged damages of $1.1 trillion from the embargo, however, is another matter.[5] This is but one of several damage claims that need to be resolved. Others include U.S. compensation to Cuba for the U.S. use of Guantanamo Bay for at least the last 56 years; [6] Cuba’s compensating U.S. interests for expropriation of their property after 1959; and Cuba’s paying a December 1997 default judgment by a U.S. district court for $197 million (plus interest) for the deaths of three of the four pilots in the February 1966 Cuban shooting down of a private “Brothers to the Rescue” plane over international waters.

One way to resolve these claims would be an agreement by the two countries to submit all of these disputes to the Permanent Court of Arbitration at the Hague in the Netherlands, which was established by a multilateral treaty, to which both Cuba and the U.S. are parties. Other ways would be the two countries creating a special claims commission to hear and resolve all of these claims or agreeing to settle all or some of the claims.

Resolving these competing claims, however, has to recognize the economic reality, in my judgment, that Cuba does not have the financial resources to pay any large amount of money. Therefore, compensating U.S. interests for expropriation of their property in Cuba, as I see it, would have to come out of any U.S. compensation of Cuba for its claims.

What do all of these points mean for the timing of full restoration of diplomatic relations? Cuba seems to be saying that ending the embargo and the “State Sponsor of Terrorism” designation have to happen first before restoring full diplomatic relations. In the best of all possible worlds from the U.S. perspective that would be sometime this summer. An agreement on how to resolve the damage claims would be another important accomplishment that should, in my judgment, lead to the restoration of diplomatic relations and perhaps that could happen this year, but the actual resolution of the damage claims would take several years to happen absent a settlement of the claims, which seems unlikely.

In the meantime, the parties could and should agree to a process for the restoring of diplomatic relations.

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[1] Today Senator Robert Menendez (Dem., NJ), a Cuban-American and the Ranking Member on the Senate Foreign Relations Committee, sent a letter to Jacobson, saying “it is imperative” that she demand “unconditional freedom of the [previously released] 53 political prisoners and demand an end to politically motivated arrests of peaceful democracy and human rights activists.” (Emphasis added.) Menendez also urged pressing “Cuba on a commitment to permit visits to all prisons and prisoners by the United Nations and the International Committee of the Red Cross and to begin to demand action on fugitives from U.S. justice and American citizen compensation claims for property nationalized by the Cuban government in past decades.” The U.S., according to Menendez, “must prioritize the interests of American citizens and businesses that have suffered at the hands of the Castro regime before providing additional economic and political concessions to a government that remains hostile to U.S. interests.”

[2] The Washington Post reports that on Friday Jacobson will host a breakfast meeting with Cuban civil society representatives, human rights activists and political dissidents before she returns to Washington.

[3] Prior posts have articulated the statutory process for rescission and why the Designation should be rescinded.

[4] Prior posts have stated why the embargo should be ended, a conclusion also endorsed by New York Times editorial in October 2014.

[5] From my experience as a litigator of business disputes, I anticipate that any such damage claim would be subjected to rigorous examination and rebuttal by the U.S., including the undoubted U.S. argument that all or some of the alleged damages were not caused by the embargo, but rather by Cuban economic ineptitude. Of course, the U.S. would probably argue that the major premise of Cuba’s claim—the illegality of the embargo—is invalid despite the U.N. General Assembly’s condemning the embargo by overwhelming margins for 23 consecutive years. (I have not examined the merits of this legal issue.)

[6] Cuba’s original February 23, 1903, and July 2, 1903, lease of Guantanamo Bay to the U.S. for a naval coaling station called for annual rent of $2,000 in gold coin, but this was changed to $4,085 in U.S. Dollars (the gold equivalent at the time) in a treaty of May 29, 1934. After the Cuban Revolution’s assuming power on January 1, 1959, the Cuban Government has refused to cash all of the U.S. annual checks for that amount except for one that was cashed by mistake. Although the fair market value of the lease for the last 56 years has not been determined, there could be no legitimate argument that it is not substantially in excess of $4,085. Other potential issues are (a) whether the original lease of 1903 and the 1934 amendment are subject to a claim that they are invalid because of alleged duress or undue influence by the U.S. when Cuba was a de facto U.S. protectorate; (b) whether the lease should be terminated with Cuba paying for the improvements made by the U.S.; or (c) whether there should be a new lease of this land to the U.S. under totally different conditions.