Cuba’s Universal Periodic Review Hearing by the U.N. Human Rights Council

On May 16, the U.N. Human Rights Council in Geneva, Switzerland held a 210-minute public hearing on its third Universal Periodic Review (UPR) of Cuba’s human rights record. The hearing consisted of Cuba’s report by its Foreign Minister, Bruno Rodriguez, and other Cuban officials; comments and recommendations by 140 countries (50 seconds each for a total of approximately 117 minutes); and responses by the Cuban officials.

Before the hearing,, the Council received Cuba’s human rights report, a summary of U.N. information about Cuba, reports from stakeholders (human rights organizations and others); and advance questions from some U.N. Members. The  224 submissions from stakeholders, for example, included around 17 that said Cuba’s constitutional and legislative framework “guaranteed the enjoyment of all human rights and fundamental freedoms.” The Cuban Human Rights Observatory, and others, on the other hand, said that Cuba had not undertaken any reforms to promote the exercise of political freedoms.[1]

Cuban Government’s Report[2]

From the times of the US military occupation, which severed our independence, under the governments it imposed, 45 per cent of children did not attend schools; 85 per cent of persons lacked running water; farmers lived in abject poverty without ever owning the land they tilled and immigrants were brutally exploited. In Cuba [during those years], workers and farmers had no rights.  Extrajudicial execution, enforced disappearances and torture were recurrent.  Discrimination based on the color of the skin was brutal; poverty was rampant and women and girls were even more excluded.  The dignity of Cubans was tarnished and Cuba’s national culture was trampled upon.” (Emphasis added.)

“The Cuban Revolution led by Commander in Chief Fidel Castro Ruiz transformed that reality and continues to strive to improve the quality of life, wellbeing and social justice for all of our people, thus implementing all human rights. That willingness to protect human dignity, provide equal opportunities and ‘conquer all the justice,’ has remained unchanged and unswerving until today.”

“Our country has continued to take steps to further improve its economic and social development model with the purpose of building a sovereign, independent, socialist, democratic, prosperous and sustainable nation by strengthening the institutional structure of our political system, which is genuinely participatory and enjoys full popular support.”

In accordance with the Constitution, we have continued to strengthen the legal and institutional framework for the protection and promotion of those rights, and we have introduced modifications and proposals adapted to the needs and realities of the Cuban society and international standards. The attention to citizens has been equally improved by means of the expansion of the mechanisms, ways and recourses in the hands of the population to denounce any  infringement of the legal system or their rights; file claims or petitions to the competent authorities; channel up their opinions and concerns and actively participate in the adoption of government decisions.”

The Foreign Minister then provided more details about Cuba’s “protection of the right to life. . .; law enforcement authorities . . . [being] subject to rigorous control processes and popular scrutiny.; . . .There has been no impunity in the very few cases of abuses involving law enforcement agents and officials;” no traffic in firearms; continued strengthening of “people’s participation in government decision-making and the exercise of the freedoms recognized under the Constitution and the law;” increased “effectiveness of the control exercised by all citizens over the activity of state organs, elected representatives and public officials;” advancing “the promotion of the right to full equality; in the struggle against elements of discrimination based on the color of the skin and against women;” and  increasing “support to prevent and cope with manifestations of discrimination based on sexual orientation and gender identity.” He also mentioned increases in numbers of civil society organizations, and said defenders of human rights enjoy government recognition and support.

However, in Cuba, “the legal system cannot be infringed upon or subverted to satisfy a foreign agenda that calls for a change of regime, the constitutional order and the political system that Cubans have freely chosen.  Those who act this way are not worthy of being described as human rights defenders; they rather qualify as agents to the service of a foreign power, according to many western legislations. (Emphasis added.)

Cuba has continued to strengthen its cooperation with the UN mechanisms that take care of these issues. . . We have strictly complied with all  . . . 44 of the 61 international human rights instruments [into which we have entered.]”

“Cuba has continued to promote initiatives at the [U.N.] Human Rights Council and the Third Committee of the UN General Assembly, for the defense of human rights, including the rights to development and peace.  We have consistently opposed every attempt to politically manipulate said bodies; selectivity as well as double standards.”

Likewise, “huge efforts are being made, amid adverse financial conditions, to preserve the purchasing power of salaries and pensions, improve access to food, adequate housing and public transportation, while preserving and even enhancing the quality of universal and free education and public health. No one will ever be left to his or her own fate in Cuba.”

“We cannot but mention our condition as a small island developing country, faced with an unfavorable international economic situation, characterized by the prevalence of irrational and unsustainable patterns of production and consumption; market regulations and non-transparent and less than democratic international financial institutions. Added to this are the adverse effects of climate change and the impact of natural disasters of high intensity on our economy.  Substantial resources should be invested to cope with them. (Emphasis added.)

“The strengthening of the economic, commercial and financial blockade imposed by the United States against Cuba and its extraterritorial implementation causes deprivations and continue to be the main obstacle to the economic and social development of the country.  This unjust policy, which has been rejected by the international community, violates the purposes and principles of the UN Charter and International Law and represents a flagrant, massive and systematic violation of the human rights of our people, thus qualifying as an act of genocide under the Convention for the Prevention and Punishment of the Crime of Genocide of 1948.” (Emphasis added.)

“We demand the return of the territory usurped by the US Naval Base in Guantánamo, where the United States maintains a detention camp in which serious human rights violations and acts of torture are committed.”(Emphasis added.)

“The political and media campaigns against Cuba, which distort our reality, intend to discredit our country and conceal Cuba’s undeniable human rights achievements.“ Emphasis added.)

We are opened to dialogue and will offer all the necessary information based on the respect and objectivity that should characterize this exercise, in which there should be no double standards or politically motivated manipulations, which we will not accept, because, as was expressed by the President of the Council of State and Ministers, Comrade Miguel Díaz-Canel Bermúdez on April 19, “there is no room for a transition that ignores or destroys the legacy of so many years of struggle.  In Cuba, by the decision of the people, there is only room for the continuity of that legacy with the Revolution and the founding generation, without giving up to pressures, without fear and setbacks, always defending our truths and reasons, without ever renouncing sovereignty and independence, development programs and our own dreams.” (Emphasis added.)

Other Countries Comments and Recommendations[3]

During the hearing a total of 339 recommendations, many of which are repetitious, were made. Many countries, especially those friendly with Cuba like Russia and China and developing countries, made no recommendations at all. Others were more critical: members of the European Union (EU), United States, Japan, Canada, but also Mexico, Peru, Costa Rica, Brazil, Chile and Uruguay. Gabriel Salvia, the General Director of the Center for the Opening and Development of Latin America, said, “It is a great step forward for more Latin American countries to point out the human rights situation in Cuba,”

Near the end of this section of the hearing, the U.S.’ 50-seconds were the sharpest against Cuba.[4] Michele Roulbet, the U.S. delegate, said:

  • “The April presidential transition again robbed the Cuban people of any real choice in shaping their country’s future; the same actors are in charge, many just with different titles, selected in a process that was neither free nor fair. The government stacked the system against independent candidates, none of whom were able to run for seats in the National Assembly, which selected the president.”
  • “The Cuban government continues to criminalize independent civil society and severely restricts the freedoms of expression, association, religion or belief and the right of peaceful assembly.  It routinely applies laws to silence journalists and critics, and punishes those working to expand access to information and freedom of expression for those in Cuba.”
  • In an “attempt to silence opposition voices, the government reportedly continues to use arbitrary and politically motivated detentions, torture, harassment, and travel prohibitions.  Recent examples of this include those who attempted to monitor the undemocratic presidential transition; those who have advocated for political change; and those who were prevented from participating in the 2018 Summit of the Americas in Lima and this UPR process.”

The U.S. then made the following three recommendations to Cuba: (1) “Reform its one-party system to allow for genuinely free and fair multi-party elections that provide citizens with real choices [regarding their government. “(2) “Cease the practice of arbitrarily detaining journalists, opposition members, and human rights defenders, including preemptively, and adopt a legal framework that ensures judicial independence.” (3) “Release arbitrarily detained or imprisoned individuals who were detained and imprisoned for peaceful assembly, investigate and report on government activity, or express political dissent, and allow them to travel freely both domestically and internationally.”

About midway through this section, Cuba responded to some of the criticisms. It denied the existence of political prisoners in Cuba, restrictions on the right to strike, or even the obstacles to travel freely, while insisting on the independence of the justice system. Cuban. Foreign Minister Bruno Rodríguez described the alleged dissidents and human rights activists as “agents of a foreign power,” a regular practice of the regime to attempt to discredit opponents.

Cuba’s Closing Comments[5]

Foreign Minister Rodriguez in his final statement at the hearing said, “It is regrettable that certain countries are continuing to manipulate the human rights question for political ends, to justify the embargo on Cuba and ‘regime change.’ hey have no moral authority and on the contrary are the perpetrators of extensive, well documented and unpunished violations of human rights; they ride roughshod over the aims of the Universal Periodic Examination and persist in selectivity, double standards and the politicization of human rights.” (Emphasis added.)

These practices, which in recent years have started to reemerge, discredited the [former U.N.] Commission on Human Rights and prompted its replacement by this Council. We will be on a retrograde path if we allow such deviant practices to be consolidated in the Council’s work. Respectful dialogue reflecting the principles of objectivity, impartiality and non-selectivity; and the respect for each people’s self-determination, its right to decide its own political, economic, social and cultural system, and its development model, are the cornerstone of international cooperation in this area.” (emphasis added.)

A small number of the recommendations have an interventionist character, contrary to the spirit of cooperation and respect on which this exercise is based. One of the recommendations is strange: it is the United States which is prohibiting its citizens from travelling to Cuba and restricts their freedom to travel; it is Washington which is denying Cubans, Cuban families, consular services and visa issue at its embassy in Havana.” [These recommendations will be rejected.] (Emphasis added.)

We are keeping to our “socialist and democratic revolution, with the humble and for the humble” proclaimed by Commander-In-Chief Fidel Castro and inspired by José Martí’s brotherly formula: “With everyone and for the benefit of everyone”.

U.S.-Cuba Subsequent Conflict Over Cuba’s UPR[6]

Immediately after the Geneva hearing, from the U.S. Mission to the U.N. in New York City,  U.S. Ambassador to the U.N., Nikki Haley, issued a statement. It said that the UPR process expects countries “to allow independent civil society organizations to fully and freely participate in their UPR process. However, the Cuban government blocked independent Cuban civil society members from traveling to Geneva to participate in their review process, just as they did last month when they blocked Cuban civil society members from traveling to Peru to participate in the Summit of the Americas.” (Emphasis added.)

Ambassador Haley added, “A country with a human rights record as abysmal as Cuba’s is no stranger to silencing its critics. But the Cuban government can’t silence the United States. We will continue to stand up for the Cuban people and get loud when the Cuban government deprives its people of their human rights and fundamental freedoms and robs them of free, fair, and competitive elections, denying them the opportunity to shape their country’s future.” (Emphasis added.)

Meanwhile the live webcast of the hearing was watched in Miami by some Cuban-Americans, who were gathered at the headquarters of the Cuban Democratic Directorate, whose website says, “Since its inception in 1990, the Cuban Democratic Directorate  has been characterized by a consistent and cohesive strategy for liberty and democracy in Cuba.” The Miami-based Foundation for Human Rights in Cuba, which was established in 1992 “to promote a nonviolent transition to a free and democratic Cuba with zero tolerance for human rights violations,” complained that Cuba had flooded the Office of the U.N. High Commissioner for Human Rights with letters sent by Communist Party organizations, the Cuban Women’s Federation and other organizations affiliated with the government that contained “absurd praise about the Cuban system.”

Remaining Steps in Cuba’s UPR[7]

Following the UPR hearing,  Cuba this September will submit a formal response to the recommendations, and the Working Group then will prepare a draft of the Outcomes Report. This report will provide a summary of the actual discussion, including the questions, comments and recommendations made by States to Cuba, as well as the responses by the Cuban Government.

Such outcome reports are not all that illuminating. For example, the one for Cuba’s prior review in 2013, which probably will be a lot like the one forthcoming for this latest review,[8] contains a summary of the hearing–presentation by Cuba (para. 5-26), interactive dialogue and responses by Cuba (paras. 27-169)—and a mere sequential listing of the repetitive recommendations made by the states at the hearing (paras. 170.1-170.291) although there also is an integrated more useful 45-page “thematic matrix of the recommendations.”

Another document from 2013 set forth Cuba’s views on these conclusions and recommendations and its voluntary commitments. It  listed many recommendations that “enjoy the support of the Government of Cuba;” others that have been noted by the Government; and the following 20 that  did “not enjoy the support of the Government:”

No. Country Recommendation
170.136 Belgium Adopt legislation to improve immigration & relations with Cuban diaspora
170.139 Belgium, Czech Repub., Slovenia Implement legal safeguards to protect human rights defenders, journalists, against abuse of provisions for criminal prosecution & release all political prisoners
179.162 Belgium Amend the Law of Criminal Procedure in order to avoid the cases of indefinite extension of the preliminary investigation
170.171 Romania, Estonia & Hungary Remove restrictions on freedom of expression notably concerning the connection to the Internet; Reconsider all laws that criminalize or restrict the right to freedom of expression & right of internet freedom; Lift restrictions on rights to freedom of expression that are not in accordance with the Universal Declaration of Human Rights; ensure affordable & unhindered access to the internet for all.
179.172 Spain Allow freedoms of expression, association &assembly; allow human rights associations to obtain legal status through inclusive and official registration
170.173 Switzerland Lift restrictions hindering free expression & ensure that human rights defenders & independent journalists are not victims of intimidations or arbitrary prosecutions & detentions
170.174 U.K. & Northern Ireland End measures to restrict freedom of expression & assembly including short-term detentions and use of criminal charges such as “precriminal social dangerousness”, “contempt” and “resistance”
170.175 Ireland Repeal legislation relating to so-called “pre-criminal social dangerousness”
170.176 U.S.A. Eliminate or cease enforcing laws impeding freedom of expression
170.177 France Guarantee freedom of expression & peaceful assembly plus free activity of human rights defenders, independent journalists & political opponents
170.179 Canada Take further measures to improve freedom of expression by allowing for independent media &  improving access to information through public access to internet by taking advantage of the recent investment in the fiber optic network
170.182 Austria Guarantee free, free & independent environment for journalists and ensure that all cases of attacks against them are investigated by independent & impartial bodies
170.183 Netherlands End repression, investigate acts of repudiation & protect all persons who are targets of intimidation or violence
170.184 Poland Liberate immediately & unconditionally all prisoners held in temporary detention or sentenced in connection with exercising their freedom of opinion & expression as well as freedom of assembly & association
170.187 U.S.A. Release Alan Gross and imprisoned journalists such as Jose Antonio Torres immediately. [Gross was released on 12/17/14]
170.188 Australia Stop limitations on civil society activities, including short-term detention of political activists
170,189 Germany Stop harassment, intimidation & arbitrary detention of human rights activities
179.190 Hungary Stop short-term detentions, harassments & other repressive measures against human rights defenders & journalists. Implement legal safeguards to ensure their protection against abuse of provisions for criminal prosecution
170.192 Australia Reduce government influence & control over internet as part of a broader commitment to freedom of expression
170.193 Germany End online censorship

 

The report finally has to be adopted at a plenary session of the Human Rights Council. During the plenary session, the State under review can reply to questions and issues that were not sufficiently addressed during the Working Group and respond to recommendations that were raised by States during the review. Time is also allotted to member and observer States who may wish to express their opinion on the outcome of the review and for stakeholders to make general comments.

Conclusion

After the final adoption of the Outcomes Report, the Council has no authority or power to compel Cuba to do anything. Instead, Cuba “has the primary responsibility to implement the recommendations contained in the final outcome.”

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[1] See these posts to dwkcommentaries.com: Cuba’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council (April 30, 2018); Advance Questions for Cuba’s Universal Periodic Review by the U.N. Human Rights Council (May 11, 2018).

[2] Cuba Foreign Ministry, Cuba will continue to build an ever freer, more democratic, just and fraternal society (May 16, 2018).

[3] ‘It is a great step forward for more Latin American countries to point out the human rights situation in Cuba,’ Diario de Cuba (May 16, 2018); Cuba Foreign Ministry, Cuba reiterates its commitment to cooperate with the UN human rights system (May 16, 2018); Havana warns that it will reject the recommendations of the UN with criticism of its ‘constitutional order,’ Diario de Cuba (May 18, 2018).

[4] U.S. Mission to U.N. (Geneva), U.S. Statement at the Universal Periodic Review of Cuba (May 16, 2018).

[5]  Cuba Foreign Ministry, Cuba reiterates its commitment to cooperate with the UN human rights system (May 18, 2018); Havana warns that it will reject the recommendations of the UN with criticism of its ‘constitutional order,’ Diario de Cuba (May 18, 2018).

[6] U.S. Mission to U.N., Press Release: Ambassador Haley on Cuba’s Human Rights Record (May 16, 2018).

[7] U.N. Hum. Rts. Council, Basic facts about the UPR.

[8] U.N. Hum. Rts.  Council, Report of the Working Group on the Universal Periodic Review: Cuba (July 8, 2013); U.N. Hum. Rts. Council, Report of the Working Group on the Universal Periodic Review: Cuba: Addendum: Views on conclusions and recommendations, voluntary commitments and replies presented by the State under review (Sept. 2013); U.N. Human Rts. Council, Matrix of recommendations.

 

More Details on Cuba’s Foreign Tourism

During the first quarter of 2018, 95,520 U.S. citizens visited Cuba, which was 40 percent fewer than came in the same quarter of 2017. This “is hurting this island’s access to hard cash and setting back the effort to reestablish ties between U.S. citizens and Cubans.“.[1]

The Cubans most adversely affect by this decline are ”the very Cubans the Trump administration has vowed to defend here — small-business owners looking to inject a dose of the free market into the economy.” They are “Airbnb hosts, the owners of small restaurants and art galleries, and tour operators.” Indeed, “unlike many European visitors to Cuba, the American newcomers largely eschewed the package tours that corralled tourists at big, beachfront hotels and assembly-line restaurants. Instead, the Americans spent more time exploring the colonial streets of Old Havana on their own” and patronizing the newer privately-owned businesses

Yes, there has been an increase in foreigners arriving on the island on cruise ships, 177,000 this quarter versus 38,000 in 2017’s first quarter, but they “spent relatively little money onshore.”[2]

Another positive development for Cuban tourism generally, but not the Cuban entrepreneurs, according to the Reuters article, are recent announcements of new hotels by foreign “hospitality companies including Spain’s Melia Hotels International and Iberostar Hotels & Resorts; Singapore’s Banyan Tree Holdings Ltd., Apollo Global Management LLC’s Diamond Resorts International Inc.;” and “Louvre Hotels SAS, a French subsidiary of China’s state-owned Jinn Jiang International Hotels Development Co, one of the world’s largest.”

The construction of such new hotels, however, is “generally carried out jointly with the Cuban Government and especially with the military , which controls a good part of the island’s tourism sector.” For example, “there are currently five new five-star hotels under construction in Havana, owned by the Gaviota Corporation -a military company-, and will be administered by foreign firms.”[3]

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[1] Faiola, In Cuba, the Great American tourism boom goes bust, Wash. Post (May 11, 2018); Drop in Foreign Tourists for Cuba, dwkcommentaries.com April 25, 2018).

[2] Reuters, Despite Hurricanes and Trump, Cuba Retains Charm for Foreign Tourism Firms, N.Y. Times (May 11, 2018).

[3] The Government and the military will continue to make cash with tourism, Diario de Cuba (May 11, 2018).

Emerging Development of Cuba’s Mariel Port 

Only 28 miles west of Havana, Cuba has been developing the Mariel Special Economic Development Zone around a deep-water port. Now this project is reaching fruition.[1]

With a goal of becoming a bustling commercial city built on high-tech, advanced manufacturing and sustainable development, the Zone of 115,000 acres now has large tracts of land leveled and ready for construction of the following two major manufacturing operations:

  • The BrasCuba factory — a joint venturebetween Brazil’s Souza Cruz and Cuba’s Tabacuba–will turn out Popular, Cohiba and H. Upmann cigarettes for export and the domestic market.
  • Womy Equipment Rental, a Dutch company that rents cranes and other heavy equipment, has just finished its building as shown in this photograph.

In addition, a site has been prepared for a Cuban biotech factory, and two foreign companies–BDC-Log and BDC-Tec– have begun operating in the zone’s logistics sector.

Although only nine companies are currently operating there, another 18, including firms from Spain, the Netherlands, Panama, Brazil, Mexico, South Korea, Vietnam, France, Belgium, and Cuba itself have been approved and are getting ready to start.

The port has more than 2,300 feet of wharf space, four super Post-Panamax cranes and the capacity to handle 820,000 cargo containers annually.

In light of President Trump’s June 2017 announcement of still forthcoming regulatory restrictions on U.S. business’ doing business in Cuba, U.S. firms have been reluctant to make commitments for Mariel projects.

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[1] Whitefield, Mariel is Cuba’s big industrial gamble. Could U.S. companies be among investors?, Miami Herald (Oct. 23, 2017). An earlier blog post discussed potential U.S. interest in Mariel.

Cuba Pays $60 Million of Indebtedness to Major Creditor Nations     

The week of October 15 Cuba paid $60 million of indebtiness to 14 wealthy creditor nations. Last year Cuba paid $40 million to the same group. The total debt is $2.6 billion after the creditors in 2015 forgave $8.5 billion of $11.1 billion upon which Cuba had defaulted through 1986 plus charges.[1]

These creditor nations known as the Club of Paris are the following: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland and the United Kingdom.

Under the 2015 agreement, Cuba agreed for the first time to grant the creditors equity in development projects, in areas like manufacturing and agriculture, in exchange for a portion of their debt holdings. Many of these restructuring agreements include the establishment of so-called counter-value funds, under which a percentage of debt is discounted in exchange for the potential profits stemming from participation by a creditor country’s firms in Cuba joint-development projects.

The counter-value funds have an estimated combined value of around $750 million of the $2.6 billion owed. Japan, Spain, France and Italy – Cuba’s largest Paris Club creditors – are furthest along in negotiating swaps.

  • For example, a $46 million French project to develop cattle ranching and dairy products in central Camaguey province is ready to sign, according to France’s ambassador to Cuba, Jean-Marie Bruno.
  • Another example is Spain which has a project ready to manufacture cardboard and another aluminium structures for construction capable of resisting earthquakes and hurricanes, both involving Spanish companies.

This access to Cuban development projects gives the European countries and companies an advantage over U.S. companies who are banned by various U.S. laws from such projects.

This payment happened during dire economic times for Cuba due to the political and economic crisis in its ally Venezuela, declines in Cuban exports and tourism due, in part, to the damages caused by Hurricane Irma.

Cuba’s payment in these circumstances showed the importance Cuba attaches to the 2015 agreement with this group of major creditor nations.

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[1] Reuters, Cash-Strapped Cuba Makes Debt Payment to Major Creditors-Diplomats, N.Y. Times (Oct. 18, 2017); Chow, Cuba Reaches Deal to Pay $2.6 Billion in Arrears to Paris Club, W.S.J. (Dec. 12, 2015); Paris Club, Agreement on the Debt Between Cuba and the Group of Creditors of Cuba (Dec. 12, 2015).

U.N. Security Council Orders More Negotiations About the Western Sahara Conflict

Disputes over the Western Sahara, a former Spanish colony, have followed its 1975 annexation by Morocco in opposition to competing claims by the Polisario Front. In 1991 the U.N. brokered a cease-fire and established a peacekeeping monitoring mission and to help prepare a referendum on the territory’s future that has never taken place. So far the parties have been unable to agree upon how to decide on self-determination. Morocco wants an autonomy plan under Moroccan sovereignty while Polisario wants a U.N.-backed referendum including on the question of independence. Below is a map of the Western Sahara.

Western_sahara_map_showing_morocco_and_polisaro.gif

On April 28, 2017, the U.N. Security Council unanimously adopted Resolution 2351 extending the mandate of the U.N. Mission for the Referendum in Western Sahara (MINURSO) until 30 April 2018 and calling on the parties to that conflict to resume negotiations under the auspices of the Secretary-General without preconditions and in good faith, in order to facilitate a just, lasting and mutually acceptable political solution.[1]

Other provisions of the resolution called on the parties to cooperate fully with the operations of MINURSO, to take the necessary steps to ensure unhindered movement for U.N. and associated personnel in carrying out their mandate, to demonstrate the political will to work in an atmosphere propitious for dialogue in order to resume negotiations, to implement the relevant Security Council resolutions, to resume cooperation with the Office of the U.N. High Commissioner for Refugees, to ensure that the humanitarian needs of refugees were adequately addressed.  It also supported an increase in the ratio of medical personnel within the current uniformed authorization, as requested in the Secretary-General’s most recent report to address MINURSO’s severely overstretched medical capacity. Yet another part of the resolution noted that both sides had withdrawn troops from the Guerguerat area of the territory, a vast swath of desert bordering the Atlantic Ocean that has been contested since 1975.

In support of the resolution, U.S. Deputy Permanent Representative to the United Nations, Ambassador Michele Sisson, emphasized hat peacekeeping missions should support political solutions, said that postponing the [referendum] had been the key to allowing MINURSO to close out the 2016 chapter in the territory.  The U.S. was pleased with the mandate renewal, which helped in returning the Council’s attention where it belonged — supporting a political process to resolve the situation on the ground.  Emphasizing that the situation must change, she said the Council must look at the “big picture” in Western Sahara, including the absence of any political process for many years, she said.  The resolution demonstrated the importance of the parties working with the U.N. to return to the table.  The Mission must be able to hire the right staff in order to be as effective as possible, and to adjust components that were not working, as well as they should.  The U.S. would watch closely to see what happened on the ground, she said.

Also speaking in support of the resolution were the other Security Council members: Uruguay, Sweden, Senegal, Ethiopia, China, France, United Kingdom, Italy, Bolivia, Japan, Ukraine and the Russian Federation.

Although the resolution was passed unanimously, France, a permanent Council member, backs Morocco, its former colony, while Polisario has been supported by some non-permanent council members and by South Africa.

Afterwards Morocco’s foreign ministry said the kingdom was satisfied with the resolution and hoped for a “real process” toward a solution, which it said should be on its autonomy initiative. Morocco also called for neighboring Mauritania and Algeria, the latter of which backs Polisario and maintains tense relations with Morocco, to be involved in negotiations. Algeria, on the other hand, called the resolution a victory for the Sahrawi cause that put the process “back on track.”

Morocco recently has made at least two diplomatic moves that may be related to enhancing its position in such negotiations.

First, on January 31, 2017, the African Union (AU) at its Summit, 39 to 9, approved Morocco’s request for readmission after having left the AU in 1984 in response to a majority of its members recognizing the disputed territory in the Western Sahara.

Morocco’s King Mohammed VI in his speech at this year’s AU Summit emphasized “how indispensable Africa is to Morocco and how indispensable Morocco is to Africa.” As evidence he mentioned that “since 2000, Morocco has [signed] nearly a thousand agreements with African countries, in various fields of cooperation,” including providing scholarships for Africans to attend Moroccan universities, launching the African Atlantic Gas Pipeline, creating a regional electricity market, constructing fertilizer production plants, creating the Adaptation of African Agriculture program to respond to climate change. These actions, he asserted, demonstrated Morocco’s “commitment to the development and prosperity of African citizens, [who] have the means and the genius; [so that] together, we can fulfill the aspirations of our peoples.”

This readmission, say analysts, also enhances Morocco’s status in upcoming negotiations over the Western Sahara although the King did not mention this in his speech. Instead, he made a modest allusion to this conflict when he said, “We know that we do not have unanimous backing from this prestigious assembly. Far be it from us to spark off a sterile debate! We have absolutely no intention of causing division, as some would like to insinuate!”[2]

The other diplomatic move that can be seen as an attempt to soften resistance towards Morocco’s position in negotiations over the Western Sahara was its re-establishment of diplomatic relations with Cuba, as discussed in a prior post.

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[1] U.N. Security Council, Press Release: Security Council Extends Mandate of United Nations Mission (April 28, 2017); U.S. Mission to the U.N., Ambassador Sisson Remarks at the Adoption of UN Security Council Resolution 2351 on the [U.N.] Mission for the Referendum in Western Sahara (MINURSO) (April 28, 2017); U.N. Security Council, Press Release: Secretary-General Welcomes Withdrawal of Moroccan, Frente Polisario Elements from Western Sahara’s Guerguerat Area, Urging Adherence to Cease Fire (Apr. 28, 2017); Reuters, U.N. Security Council Backs New Western Sahara Talks Push, N.Y. Times (Apr. 29, 2017); Assoc. Press, UN Council Backs New Effort to End Western Sahara Conflict, N.Y. Times (Apr. 28, 2017).

[2] Quinn, Morocco rejoins African Union after more than 30 years, Guardian (Jan. 31, 2017); Morocco Ministry of Foreign Affairs, His Majesty the King delivers a speech at the 28th Summit of the African Union (AU) in Addis Ababa (Jan. 31, 2017); Abubeker, Why Has Morocco Rejoined the African Union After 33 Years, Newsweek Feb. 2, 2017).

Possible Amendments to the New Justice Against Sponsors of Terrorism Act (JASTA) 

As reported in a prior post, on September 28, the U.S. Congress overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA) even though the Chair (Senator Bob Corker (Rep., TN)) and Ranking Member (Senator Benjamin Cardin (Dem., MD)) of the Senate Foreign Relations Committee and Senator Diane Feinstein expressed deep reservations about the wisdom of this law.

Immediately after the adoption of this law, Senator Corker and others expressed desires to change the new law.[1] Let us look at these concerns and efforts to amend JASTA.

Certain Senators’ Concerns

Senator Corker said he thought the issues could be addressed in the “lame-duck” /Senator session of Congress after the November election and that possible fixes included limiting the bill’s scope just to the Sept. 11 attacks, changing some of the technical definitions or thresholds in the bill and establishing a tribunal of experts who ‘could first determine if there was culpability there.’”

Without specifics Senate Majority Leader Mitch McConnell said there could be “potential consequences” of JASTA that are “worth further discussing.” House Speaker Paul Ryan said Congress might have to “fix” the legislation to protect U.S. troops in particular. Trent Lott, a former Republican Senate Majority Leader and now a lobbyist for the Saudis, said, “I do feel passionately this is a mistake for a variety of reasons, in terms of threats to troops, diplomats, sovereignty, there’s serious problems here. Hopefully we can find a way to change the tenor of this.”

 Saudi Arabia’s Reactions

On October 3 Saudi Arabia’s Cabinet released a statement criticizing the adoption of JASTA.[2] It said the new law was “a source of concern to the international community in which relations are based on the principle of equality and sovereign immunity, as this law came to weaken the immunity of the world guaranteed by the United Nations, its agencies and councils which were formed to preserve the legal sovereignty of all its member countries across the universe. Weakening this sovereign immunity will affect all countries, including the United States. [The cabinet] expressed hope that wisdom will prevail and that the U.S. Congress would take the necessary steps to avoid the bad and dangerous consequences that may result from the JASTA legislation.”

On October 20 U.S. Secretary of State John Kerry met with Saudi Arabia’s Foreign Minister Adel al-Jubeir. Afterwards the two of them held a joint announcement at the State Department.[3] With respect to JASTA, Kerry said:

  • We “did discuss [JASTA’s] very negative impact on the concept of sovereign immunity. And the interests of . . . [the U.S.] are at risk as a result of the law that was passed in Congress in the final days. And we discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities. Sovereign immunity is a longstanding, well-upheld standard of law, and unfortunately this legislation – unintentionally, I think – puts it at great risk and thereby puts our country at great risk. So we’re talking about ways to try to address that.”

Foreign Minister Adel al-Jubeir’s comments about JASTA were the following:

  • “I . . . want to add my voice to what the Secretary said about the importance of sovereign immunities. Sovereign immunities have been a cardinal principle of the international legal order that was established after the Treaty of Westphalia in the 1600s. The objective is to bring order to the international system. And where sovereign immunities are diluted, the international system becomes chaotic, and no country, and no government, is able to conduct its official business without having to worry about lawsuits. The United States, as the country with the biggest footprint in the world, of course has the most to lose by this, because you have operations all the way from Japan to South America to the Pacific, and I think that is why the vast majority of countries have come out vehemently and very strongly against . . . JASTA . . . for its dilution of sovereign immunities. And there have been a number of countries that are looking at reciprocal measures, and if this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants.”

However, neither gentleman provided details about so-called “fixes for JASTA.

Moreover, there already are “9/11 lawsuits” brought by 9,000 plaintiffs against Saudi Arabia consolidated in federal court in the Southern District of New York in Manhattan that had been dismissed, but will be resurrected under JASTA. Already there is talk about potential discovery and other pre-trial activity in the cases. This includes plaintiffs’ efforts to reinstate Saudi Arabia as a defendant. And on September 30 a new Sept. 11 lawsuit against Saudi Arabia was filed in U.S. District Court in Washington, D.C., on behalf of the widow and daughter of a Navy officer killed in the attack on the Pentagon.

However, Raj Bhala, a professor of international and comparative law at the University of Kansas Law School, opines that the “deck remains stacked against the plaintiffs” with their biggest challenge: persuading a court there is solid evidence of a direct Saudi government role in the 9/11 attacks.[4]

Other Reactions

On October 10 China’s Foreign Ministry said China opposes all forms of terrorism and supports the international community on anti-terrorism cooperation, but that such efforts should “respect international law and principles of international relations, including fundamental principles of nations’ sovereign equality.” Therefore, every country “should not put . . . [its] domestic laws above international law and should not link terrorism with any specific country, religion or ethnicity.” The Foreign Ministry also noted that China’s people and assets at home and around the world face a growing risk from terrorism, but it has a foreign policy of non-interference in other countries’ affairs.[5]

Many other countries oppose JASTA. France considers that laws such as JASTA would lead to a “legal chaos” at the international level. Russia has slammed the legislation as undermining international law. Turkey views JASTA as a law against the principle of individual criminal responsibility for crimes and expects it would be reversed shortly. Egypt’s Foreign Ministry warned that JASTA could have a dire effect on US international relations.[6]

Daniel Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, said JASTA was an example of “legislative fecklessness.” Immediately after the bill’s passage, Republican congressional leaders talked about the need to “fix” the bill and tried to blame President Obama for the problems by falsely claiming he had not made a strong case against the bill. But the president had vetoed the bill, publicly articulated the reasons for the veto and personally and through Administration officials had warned congressional leaders about the adverse implications of the bill. Thus, a “’stupid bill’ that adversely affects American national interests is now law.”[7]

A New York Times editorial, agreeing with Professor Drezner, said that the adoption of the bill over a presidential veto, was a new example of congressional “craven incompetence” and that JASTA should be repealed. A Wall Street Journal editorial also called for repeal.[8]

Conclusion

The only specific suggestions of ways to “fix” JASTA that I have seen are Senator Corker’s. The idea of creating a new tribunal presumably to assess whether a specific state has sponsored or aided and abetted acts of terrorism in the U.S. sounds too complicated, but there are not enough details about such an idea to have a detailed response. The same is the case for his other suggestion about changing some of the technical definitions or thresholds in the bill. The idea of limiting the law to 9/11, however, might be a way to see how such a law works out in practice before it is expanded to include any other situation as the law now stands.

Instead, I offer the following initial suggestions for amending JASTA on the assumption that repeal is not currently feasible:

  1. Assign exclusive jurisdiction over all civil actions under JASTA to the U.S. District Court for the District of Columbia and require or suggest that all such cases be assigned to a designated District Judge. That will assist the U.S. Departments of State and Justice, the White House and foreign governments in monitoring any such actions and eliminate the risk of inconsistent decisions at the District Court level and at the level of the federal courts of appeal. There is no reason to have any other federal courts involved in such cases and absolutely no reason to have any state courts so involved.
  2. Make the U.S. Government a necessary party to any such civil action.
  3. There should be limitations on permissible pre-trial discovery in such cases. Here is one way to do so. After answers to any complaint in any such civil action have been served and filed and before any other proceedings in the case, require the U.S. Government to provide its opinion as to whether the foreign state in any such case has sponsored or aided and abetted any acts of terrorism in the U.S. If the U.S. Government states that the foreign state has not sponsored or aided and abetted any act of terrorism in the U.S., then the civil action should be dismissed. If the U.S. Government states that the foreign state has so sponsored or aided and abetted, then the case should proceed to assess damages with appropriate discovery. If the U.S. Government states that it does not know whether the foreign state has so sponsored or aided and abetted, then the U.S. Government should propose a plan for discovery in the case to attempt to resolve that question as quickly and as inexpensively as possible with a prohibition of any discovery that is not included in such a plan.

Now we wait to see what bills will be introduced in Congress to amend JASTA.

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[1] Reuters, U.S. Lawmakers May change Sept. 11 Law After Rejecting Veto, N.Y. times (Sept. 30, 2016); Peterson & Lee, Congress Looks to Narrow Bill Allowing Terror Victims to Sue Foreign Governments, W.S.J. (Sept. 30, 2016).

[2] Reuters, U.S. Sept. 11 Law Weakens International Relations, Saudi Cabinet Says, N.Y. Times (Oct. 3, 2016); Saudi Press Agency, Press Release regarding JASTA (Oct. 4, 2016); Hubbard, Angered by 9/11 Victims Law, Saudis Rethink U.S. Alliance, N.Y. Times (Sept. 29, 2016).

[3] U.S. State Dep’t, Remarks with Saudi Arabian Foreign Minister Adel al-Jubeir After Their Meeting (Oct. 20, 2016) Reuters, U.S. Urges Houthis to Keep Ceasefire, Discusses JASTA With Saudi, N.Y. Times (Oct. 20, 2016). No additional details about any proposed “fixes” to JASTA were provided in response to questions at the State Department’s October 21 Daily Press Briefing.

[4] Mazzetti, Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court, N.Y. Times (Sept. 29, 2016); Bravin, Lawyers Move Quickly After Congress Enacts Bill Allowing Suits Against Saudi Arabia, W.S.J. (Sept. 30, 2016).

[5] Reuters, China Backs Sovereign Immunity After U.S. Sept. 11 Bill Becomes Law, N.Y. Times (Oct. 10, 2016).

[6] Fotouh, JASTA: Real threats and hidden opportunities, Egypt Daily News (Oct. 24, 2016).

[7] Drezner, The unbearable idiocy of Congress, Wash. Post (Sept. 30, 2016).

[8] Editorial, Congress Has Itself to Blame for 9/11 Bill, N.Y. Times (Sept. 30, 2016); Editorial, Instant Senate Remorse, W.S.J. (Sept. 30, 2016).

Pre-Veto Controversies Regarding the Justice Against Sponsors of Terrorism Act (JASTA)         

A prior post reviewed the Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) that was passed by Congress on September 28, 2016, with sufficient votes to override President Obama’s veto of the bill. Now we look at the pre-veto legislative history of JASTA and controversies over the bill.

Legislative History

S.2040 was introduced in the U.S. Senate on September 16, 2015, by Senator John Cornyn (Rep., TX) with 12 Republican and 12 Democrat cosponsors. Without any hearings on the bill, the Senate Judiciary Committee on January 28, 2016, passed an amendment as a substitute for the original bill, and on February 3, 2016, the Committee Chair, Senator Charles Grassley (Rep., IA), reported the bill to the Senate without a written report.[1]

On May 17, 2016, the Senate unanimously passed the JASTA bill with limited debate.[2] On the Senate floor Senator Cornyn offered a substitute amendment and stated that the U.S. Code already had an exception to sovereign immunity for certain acts of terrorism [28 U.S.C. § 1605A], but “it does not extend to terrorist attacks on our homeland by countries and organizations that have not already been designated as state sponsors of terrorism. This [bill] makes some small changes in that legislation that first passed in 1976 to expand the scope of that [provision] to allow the families of the 9/11 tragedy to seek justice in our courts of law.” The bill has been limited to “injury in the United States.” The bill requires injuries caused by “acts of terrorism,” and excludes “acts of war.” Cornyn also discussed the secondary liability provision of the bill.[3]

Immediately following Cornyn that day, Senator Chuck Schumer (Dem., NY), a cosponsor of the bill, emphasized the bill’s provision allowing the Department of Justice to seek a stay of any lawsuit under this exception. Following the Senate’s passage of the bill, Senator Schumer issued a statement praising this action as correcting erroneous court decisions granting immunity to “foreign actors who finance and enable terrorism on a massive scale” and allowing “terrorism victims, like victims of the September 11th attacks [and of any other acts of terrorism on U.S. soil after 9/11] the opportunity to pursue [financial damage claims against] foreign states who sponsor terrorism in federal court.”[4]

On October 23, 2015, an identical companion bill (H.R.3815) was introduced in the U.S. House of Representatives by Representative Peter King (Rep., NY) with 31 Republican and 30 Democrat cosponsors. It was referred to the House Judiciary Committee, which did not hold any hearings on the bill. On September 9, 2016, the Senate companion bill (S.2040) was agreed to and passed by a voice vote in the House.[5]

 Pre-Veto Controversies Over JASTA

The Senate passage of JASTA, on May 17, 2016, was despite lobbying against the bill by Administration officials and warnings by the Saudi government that if the legislation passed, that country might begin selling off up to $750 billion in U.S. Treasury securities and other assets in the U.S. before they faced the danger of being frozen by American courts.[6]

In the midst of this congressional consideration of JASTA, on July 15, 2016, the Senate/House Select Intelligence Committee published the previously classified 28 pages regarding possible connections between Saudi Arabia and 9/11 from the Committee’s “Report on Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.”

A journalist said that these 28 pages set forth “a wide-ranging catalog of meetings and suspicious coincidences. It details contacts between Saudi officials and some of the Sept. 11 hijackers, checks from Saudi royals to operatives in contact with the hijackers and the discovery of a telephone number in a Qaeda militant’s phone book that was traced to a corporation managing an Aspen, Colo., home of Prince Bandar bin Sultan, then the Saudi ambassador to Washington.” The 28-pages also said, ”It was not the task of this Joint Inquiry to conduct the kind of extensive investigation that would be required to determine the true significance of any such alleged connections to the Saudi Government. . . [But the Committee found no evidence that the] “Saudi government as an institution, or senior Saudi officials individually funded” Al Qaeda.[7]

Some former September 11 Commission staff members, however, pointed out that the wording in the group’s final report did not rule out the possibility that lower ranking Saudi officials had assisted the hijackers.

On the same day (July 15, 2016) of the release of the 28-pages of the Senate report, White House Press Secretary Josh Earnest said, “This information, even as it’s now publicly available, does not change the assessment of the U.S. government [as stated in these 28 pages] that there’s no evidence that the Saudi government as an institution, or senior Saudi officials individually funded al Qaeda. . . . And the 9/11 Commission was able to draw on the information that’s been declassified today as they wrote their report.  They were able to do follow-up interviews and to further investigate those leads.  Those leads didn’t really turn up anything as it relates to specific evidence about the Saudi government as an institution or senior Saudi officials individually funding al Qaeda.”[8]

Press Secretary Earnest also stated, “based on the analysis that’s been conducted by our lawyers here in the U.S. government, the way that this [proposed] law [JASTA] is written could open up U.S. companies and even potentially U.S. personnel to vulnerabilities when they’re engaged in actions or doing business or conducting official government work overseas. There is an important principle related to sovereign immunity.  And when you’re the most powerful country in the world, you’re invested in the idea of sovereign immunity, given how deeply the United States is involved in so many other countries.”

On September 9 (the same date as the House passage of JASTA) the New York Times reported that the Obama Administration had been lobbying against the bill for months and that according to Jack Goldsmith, a professor of law at Harvard and a former official in the Department of Justice under President George W. Bush, “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

The Times also quoted Pierre Lellouche, a member of the French Parliament, who said he would pursue legislation that would permit French citizens to sue the United States with cause. “I have sympathy with the notion of hitting those countries which actively support terrorism.” But the American bill “will cause a legal revolution in international law with major political consequences.” Even the Republican Chair of the Senate Foreign Relations Committee, Senator Bob Corker of Tennessee expressed some hesitancy over the bill. He said, “We were able to get some changes to make it less damaging to potential dangers over time. We as a nation have got more to lose on sovereignty issues than any other nation in the world. If the White House actually vetoes this, I think there will be whole levels of discussion.”[9]

Senator John Cornyn, the author of the bill, however, started a barrage of comments urging President Obama to sign the bill by saying on September 9, “the families of those lost in attacks like that on September 11th should have every means at their disposal to seek justice. . . . I hope the President will sign it into law.”  On the Senate floor on September 12 Cornyn said: “It’s important for us to send a message that that evil shall not prevail. . . . [The] victims [of 9/11] and their families still don’t have the ability to get justice from the people, including the governments, who helped fund those terrorist attacks. And that’s where the bill . . . [JASTA] comes into play because if this legislation is signed by the President, it will become the law of the land . . . to make sure that these families who are still grieving and still don’t have closure will be able to seek justice in a court of law against the people who killed their loved one on September 11th.” Cornyn on September 13 threatened an override of a presidential veto of the bill.[10]

President Obama, however, did not sign the bill into law. Instead, On September 23, he vetoed the bill as will be discussed in a subsequent post.

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[1] Library of Congress, THOMAS: S.2040 Justice Against Sponsors of Terrorism Act . Going back to 2009, earlier versions of this law were introduced, but I have not examined the history of those versions. If a reader of this post has done so, please elaborate in a comment to this post.

[2] Cong. Record S2845-48 (May 17, 2016); Mazzetti, Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims, N.Y. Times (May 17, 2016).

[3] U.S. Cong. Rec. S2845-2848 (May 17, 2016).

[4] Schumer, Schumer Announces Passage of Justice Against Sponsors of Terrorism Bill—Urges House to Quickly Pass Legislation Allowing American Families To Seek Justice After 9/11 Attacks (May 17, 2016); Schumer, Schumer Urges House To Swiftly Pass JASTA Bill; Law Would Allow Victims To Seek Justice for Terrorist Acts on U.S. Soil, Senator Says American Families Deserve Their Day in Court (Sept. 7, 2016).

[5] Cong. Record H5239-44 (Sept. 9, 2016); Library of Congress, THOMAS: H.R.3815 Justice Against Sponsors of Terrorism Act.

[6] See n.2 supra.

[7] Mazzetti, In 9/11 Document, View of a Saudi Effort to Thwart U.S. Action on Al Queda, N.Y. Times (July 15, 2016);    House/Senate Select Comm., 28 Pages of the 2002 Congressional Inquiry into the Sept. 2011 Attacks, N.Y. Times (July 15, 2016).

[8] White House, Press Briefing by Press Secretary Josh Earnest (July 15, 2016).

[9] Steinhauer, House Passes Bill Allowing 9/11 Lawsuits Against Saudi Arabia; White House Hints at Veto, N.Y. Times (Sept. 9, 2016).

[10] Cornyn, Cornyn Calls on President to sign 9/11 Victims Bill (Sept. 9, 2016);Cornyn, Cornyn: American People Support 9/11 Victims Bill (Sept. 12, 2016); Cornyn, Cornyn to White House: Don’t Keep 9/11 Families Waiting (Sept. 13, 2016); Cornyn, Cornyn Presses White House to Act on 9/11 Victims Bill (Sept. 19, 2016); Cornyn, Cornyn to White House: Stop Stalling on 9/11 Bill (Sept. 20, 2016).