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.

The Importance of a Growing U.S. Population

A Wall Street Journal columnist, Bret Stephens, has demonstrated the importance of a growing U.S. population and the need for immigration to sustain such growth.[1]

“A decade ago, America’s fertility rate, at 2.12 children for every woman, was just above the replacement rate. That meant there could be modest population growth without immigration. But the fertility rate has since fallen: It’s now below replacement and at an all-time low.”

“Without immigration, our demographic destiny . . . [would leave] us with the worst of both worlds: economic stagnation without social stability. Multiethnic America would tear itself to pieces fighting over redistribution rights to the shrinking national pie.”

However, this “doesn’t have to be our fate. [I]immigrants aren’t a threat to American civilization. They are our civilization—bearers of a forward-looking notion of identity based on what people wish to become, not who they once were. Among those immigrants are 30% of all American Nobel Prize winners and the founders of 90 of our Fortune 500 companies—a figure that more than doubles when you include companies founded by the children of immigrants. If immigration means change, it forces dynamism. America is literally unimaginable without it.”[2]

The importance of immigrants for U.S. vitality was an important conclusion of a recent study of 46 Midwestern metropolitan areas conducted by the Chicago Council on Global Affairs, a nonpartisan organization. In these metropolitan areas immigrants are helping offset population loss and economic strains caused by people moving away and by the retirements and deaths of native-born residents. In at least one of these metropolitan areas (Akron Ohio) immigrants and refugees were filling entry-level jobs for local manufacturing and food-processing companies that have had trouble hiring for those slots. This will become even more important in the future when many of the native-born workers will be retiring.[3]

Another recent study concluded that international immigration is giving a boost to population growth in big urban areas in the U.S. even as local residents flee for places with lower housing costs. The top beneficiaries of international immigration were primarily major coastal cities, led by the Miami metropolitan area.[4]

A more nuanced view of U.S. immigration is taken by Mark Krikorian, the Executive Director of Washington, D.C.’s Center for Immigration Studies, who would “limit immigration to the husbands, wives and young children of U.S. citizens; to skilled workers who rank among the top talents in the world; and to the small number of genuine refugees whose situation is so extraordinary that they cannot be helped where they are.” [5]

He claims that almost all of the arguments for limiting immigration share a common theme: protection. Even those advocating much more liberal immigration policies acknowledge the need to protect Americans from terrorists, foreign criminals and people who pose a threat to public health. Supporters of stricter limits, such as me, seek wider protections: protection for less-skilled workers, protection for the social safety net, and protection for the civic and cultural foundations of American society.”

Krikorian cites a study by the National Academies of Sciences, Engineering and Medicine finding that immigration boosts economic growth in the long term and modestly improves the country’s demographic profile as the native population ages while creating a small net economic benefit. But this net economic benefit involves a redistribution from labor to capital.

In contrast to the U.S., Bret Stephens points out, is Japan. Its birth rate is very low. Its life expectancy is very high. Its immigration is very low. As a result, Japan has an aging, declining population. “Japan’s population shrank by nearly a million between 2010 and 2015, the first absolute decline since census-taking began in the 1920s. On current trend the [current] population [of 127 million] will fall to 97 million by the middle of the century. Barely 10% of Japanese will be children. The rest of the population will divide almost evenly between working-age adults and the elderly.”

Moreover, as “Morgan Stanley’s Ruchir Sharma has noted, lousy demographics mean a lousy economy.. . . In 2016, Japan’s growth rate was 1%—and that was a relatively good year by recent standard. . . . The average rate of GDP growth in countries with shrinking working-age populations is only 1.5%.”

In short, Stephens concludes, “Americans may need reminding that the culture of openness about which conservatives so often complain is our abiding strength. Openness to different ideas, foreign goods and new people. And their babies . . . are also made in God’s image.”[6]

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[1] Stephens, ‘Other People’s Babies,’ W.S.J. (Mar. 20, 2017).

[2] Another example is New York Times columnist, Nicholas Kristof, whose father, Wladyslaw Krzysztofowicz, was born in Romania (now Ukraine) and who came to the U.S. in 1952 with the sponsorship of a Presbyterian church in Portland, Oregon after he had been arrested by the Gestapo in World War II and imprisoned in a Yugoslav concentration camp after the war. (Kristof, Mr. Trump, Meet My Family, N.Y. Times (Jan. 2, 2017).

[3] Paral, Immigration a Demographic Lifeline in Midwestern Metros, Chicago Council on Global Affairs (Mar. 23, 2017); Connors, In the Midwest, Immigrants Are Stemming Population Decline, W.S.J. (Mar. 23, 2017).

[4] Kosisto, International Immigration Gives Boost to Big U.S. Cities, Study Says, W.S.J. (Mar. 23, 2017)

[5] Krikorian, The Real Immigration Debate: Who to Let In and Why, W.S.J. (Mar. 24, 2017) The Center for Immigration Studies asserts that it is “an independent, non-partisan, non-profit, research organization. Since our founding in 1985, we have pursued a single mission – providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States.”

[6] Therefore, Bret Stephens asserts that Iowa’s Congressman Stephen King was misguided and mistaken in his tweet about Dutch anti-Muslim politician Geert Wilders who called his country’s Moroccan population as “scum.” King said: “Wilders understands that culture and demographics are our destiny, We can’t restore our civilization with somebody else’s babies.”

 

Ta-Nehisi Coates’ Unsatisfactory “Case for Reparations”

840The June 2014 issue of The Atlantic devotes 20 black-bordered pages to “The Case for Reparations” as the lead and cover article by Ta-Nehisi Coates, its national correspondent.

This is a serious subject by an author who has been obtaining some prominence or notoriety this year occasioned by his best-selling book, “Between the World and Me,” which was discussed in a previous post.

Moreover, on September 28, 2015, the MacArthur Foundation awarded one of its prestigious Fellows or “genius” grants to Coates and asserted that he “brings personal reflection and historical scholarship to bear on America’s most contested issues . . . without shallow polemic and in a measured style.” In “The Case for Reparations,” according to the Foundation, “Coates grapples with the rationalizations for slavery and their persistence in twentieth-century policies like Jim Crow and redlining . . . [and] compellingly argues for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations. [The article is] deeply felt and intensely researched.”

I, therefore, was expecting a serious discussion of this important issue.

Instead, I was profoundly disappointed in the analysis as well as the quality of the research and writing of this article and strongly disagree with MacArthur’s glowing commentary on the article.

Coates’ Discussion of Reparations

Coates mentions that certain scholars have discussed how reparations might be implemented. One, he says, suggested multiplying the number of African Americans in the population by the difference between white and black per capita income and then presumably paying that difference to each African American each year for a decade or two. Another, Coates reports, proposed a program of job training and public works for all poor people. (P. 69) But Coates does not endorse either one.

Instead Coates hides in generalizations. He says reparations means “the full acceptance of our collective biography and its consequences” and “a revolution of American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history” (p.70).

On the last page of the article (p. 71) Coates becomes more specific by advocating congressional adoption of a bill for a federal study of the issue of reparations that has been offered by Representative John Conyers (Dem., MI) for the last 25 years. Without examining the details of the bill or the arguments advanced for the bill by Conyers, Coates states, “No one can know what would come out of such a [study and] debate. Perhaps no number can fully capture the multi-century plunder of back people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane.”

This is not, as MacArthur suggests, a compelling argument “for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations.”

The Conyers’ Bill

An examination of the Conyers bill itself does not buttress the claimed genius of the Coates article. In the current session of Congress this bill is H.R.40: The Commission to Study Reparation Proposals for African Americans Act. A quick examination of the Library of Congress THOMAS website reveals that the bill (in sections 4, 5 and 7) would establish a commission of seven members (three to be appointed by the U.S. President, three by the Speaker of the House of Representatives and one by the president pro tempore of the U.S. Senate) to hold hearings and issue a report of its findings and recommendations.

The key to the bill is section 2(a), which would make the following factual findings that Coates takes most of 20 pages to elucidate:

“(1) approximately 4,000,000 Africans and their descendants were enslaved in the United States and colonies that became the United States from 1619 to 1865;

(2) the institution of slavery was constitutionally and statutorily sanctioned by the Government of the United States from 1789 through 1865;

(3) the slavery that flourished in the United States constituted an immoral and inhumane deprivation of Africans’ life, liberty, African citizenship rights, and cultural heritage, and denied them the fruits of their own labor; and

(4) sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States.”

Section 2(b) of the bill  then states the commission would examine and report on these factual predicates plus the “de facto discrimination against freed slaves and their descendants from the end of the Civil War to the present, including economic, political, and social discrimination.” With such factual determinations the commission would be charged to “recommend appropriate ways to educate the American public of the Commission’s findings” and “appropriate remedies.”

Representative Conyers’ website  contains a discussion of the bill that at least alludes to the following challenging sub-issues that would face such a commission and that are not examined by Coates: “whether an apology is owed, whether compensation is warranted and, if so, in what form and who should be eligible.”

Resolution for Rectification of Misdeeds Against African-Americans

More importantly, Coates’ article does not mention a resolution (H.Res.194) adopted in 2008 by the U.S. House of Representatives that has lengthy factual preambles about the evils of slavery and Jim Crow. [1] The House in H.Res.194 more importantly also:

  1. “acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal;”
  2. “acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow;”
  3. “apologizes to African Americans on behalf of the people of the United States, for the wrongs committed against them and  their ancestors who suffered under slavery and  Jim Crow; and”
  4. “expresses its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.”

Yes, this is only a resolution by only one chamber of the Congress, but it is closer to the result apparently being advocated by Coates than the Conyers’ bill.

U.S. Presidential Statements About Slavery

H.Res.194 in a preamble asserts that “on July 8, 2003, during a trip to Goree Island, Senegal, a former slave port, President George W. Bush acknowledged slavery’s continuing legacy in American life and the need to confront that legacy when he stated that slavery `was . . . one of the greatest crimes of history . . . The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destiny is set: liberty and justice for all.”[2]

In another preamble H.Res.194 asserts, “President Bill Clinton also acknowledged the deep-seated problems caused by the continuing legacy of racism against African-Americans that began with slavery when he initiated a national dialogue about race.”

Neither of these presidential statements is mentioned by Coates, both of which support his opinion favoring reparations.

Caribbean States’ Reparations Claims

Apparently at least 14 states in the Caribbean are preparing claims for reparations for slavery against their former colonial rulers: Great Britain, France, Spain, Portugal and the Netherlands. Britain’s Prime Minister Cameron recently rejected that reparations idea.[3]

Again there is no mention of these claims by Coates even though they lend credence to his advocacy of similar reparations in the U.S.[4]

Litigation Over Contracts for Deed

Coates leads the article with a lengthy discussion of problems faced by blacks on the west side of Chicago in the 1960’s in financing purchases of homes and as a result being forced to do so on contracts for deed with unscrupulous sellers (pp. 56-59). Coates then enthusiastically endorses these black purchasers’ bringing a federal lawsuit against the sellers for reparations (or money damages). On the next page (p.60), however, Coates tells the reader, without any citation of source, that in 1976 the black plaintiffs lost a jury trial supposedly due to anti-black prejudice of the jury and even later in the article (p.67) he says that as a result of the lawsuit some of the plaintiffs were allowed to own their homes outright while others obtained regular mortgages.

Coates, however, fails to mention that according to a secondary source from the University of Illinois-Chicago, the west-side case went to trial in the Spring of 1976, and in November 1979, the jury decided that the sellers had taken advantage of the buyers for higher profits, but that the sellers were so ruthless they would have cheated anyone, not only blacks, and, therefore, the jury rejected the racial discrimination claim, and the plaintiffs’ lawyers decided not to appeal this decision.

That same secondary source reports that a related case from the south side of Chicago went to trial in 1972 before a federal district judge with a jury. At the close of the evidence, the court directed a verdict against the plaintiffs saying that they had not proved a prima facie case of discrimination. On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. That new trial occurred in 1979, without a jury, before a district judge who decided in favor of the defendants, and the Seventh Circuit affirmed.

Clyde Ross was prominently mentioned at the start of the Coates’ article about the housing discrimination that led to the above litigation, and after the publishing of the Coates article, Ross said in an interview, “I don’t know why we would even discuss [reparations] . . .when that would never happen. It involves taking money, property, from other people, from the people with power and wealth. How could that ever come to be? In theory, yes it is a good idea, but it’s better to be practical. I support equality under the law. I just want to be able to pay off a mortgage knowing that I am getting the same deal as the white guy. That’s all I ask.”

Coates also did not uncover in his research the successful Minnesota lawsuit in the 1920’s by a black couple against white landlords who after accepting contract-for-deed payments for 25 years denied the couple possession of the Minneapolis house on the false assertion that their payments were only rent. The couple’s attorney, by the way, was Lena Olive Smith, the state’s first black female lawyer who became the leader of the city’s NAACP branch in the 1930s.

Conclusion

I am not a scholar of race relations in the U.S. or of reparations generally or in the U.S. specifically. The above discussion of facts that apparently were not discovered by Coates was based upon this blogger’s perfunctory Internet searching.

The Coates article also is difficult to read because of the lack of an introduction and conclusion and of any headings or subdivisions amidst the parade of often densely packed paragraphs that do not follow in a logical order.[5]

This blogger as a retired lawyer might be seen as engaging in an inappropriate  lawyerly criticism of the Coates’ article. But Coates presumably is advocating for others to embrace the conclusion that reparations are a necessary response to a major societal problem. As an advocate, he should write to be more persuasive.

This blogger as a white American is supportive of civil and human rights generally and is willing to consider a well-written and documented case for U.S. reparations for slavery and Jim Crow. Unfortunately the Coates article does not do that. It needs additional research and a major rewrite. (As always, I invite others’ comments of agreement or disagreement.)

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[1] U.S. House of Reps., 110th Cong., 2nd Sess.,  H.Res.194 (July 29, 2008)..As February 23, 2007, was the bicentennial of the British Parliament’s abolition of slave trading, the 110th U.S. Congress (2007-2009) had 150 bills and resolutions that mentioned the word “slavery,” but this blog has not “drilled down” to determine their details.

[2] President Bush Speaks at Goree Island in Sengal (July 8, 2003)

[3] E.g., Search for “slavery,” Guardian; Bilefsky, David Cameron Grapples with Issue of Slavery Reparations in Jamaica, N.Y. Times (Sept. 30, 2015); Assoc. Press, Cameron Provides Caribbean Aid, Rejects Slavery Reparations, N.Y. Times (Sept. 30, 2015); Room for Debate: Are Trans-Atlantic Slave Trade Reparations Due?, N.Y. Times (Oct. 8, 2015).

[4] Coates does mention Massachusetts’ granting a 1783 petition for reparations by a black freewoman; 17th and 18th century Quakers’ granting reparations; the 1987 formation of a National Coalition of Blacks for Reparations in America; the 1993 NAACP’s endorsement of reparations; a lawsuit for reparations brought by Harvard Law School Professor Charles Ogletree, Jr. (without mentioning its details or outcome); and Germany’s reparations to Israel for the Holocaust (pp. 61, 70-71).

[5] The online version of the article added headings I through X, but most of them are quotations from sources in the sections, requiring the reader to dive into the sections to discover their significance. Another post discusses Coates’ “The Black Family in the Age of Mass Incarceration,” The Atlantic (Oct. 2015), which also has chapter headings, most of which do not help the reader.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

More about Coates:

 

Brooks: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

Ltrs re column: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

http://www.salon.com/2015/07/17/david_brooks_scolds_ta_nehisi_coates_i_think_you_distort_history/

 

http://crooksandliars.com/2015/07/dont-be-fooled-all-forelock-tugging-david

 

http://talkingpointsmemo.com/livewire/david-brooks-nyt-ta-nehisi-coates

 

http://talkingpointsmemo.com/cafe/ta-nehisi-coates-david-brooks-american-dream

 

http://jezebel.com/listening-to-ta-nehisi-coates-whilst-snuggled-deep-with-1718506352

 

http://www.alternet.org/media/david-brooks-relies-ignorant-white-privilege-attack-ta-nehisi-coates-new-book

 

http://townhall.com/columnists/marknuckols/2015/07/17/tanehisi-coates-cheers-deaths-of-911-rescuers-david-brooks-apologizes-for-being-white-n2026881

 

http://aaihs.org/ta-nehisi-coates-david-brooks-and-the-master-narrative-of-american-history/

 

http://www.citypaper.com/arts/books/bcp-072915-books-coates-gunnery-20150724-story.html

 

https://www.thewrap.com/new-york-times-columnist-david-brooks-blasted-for-white-privilege-letter-to-ta-nehisi-coates/

 

http://flavorwire.com/528823/the-american-dream-david-brooks-loves-so-much-is-rich-white-americas-greatest-tool-of-social-control

 

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

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

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

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

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

The Nature of the UPR Process [1]

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

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

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

Most Recent UPR of Cuba [2]

The most recent UPR of Cuba occurred in 2013.

1. The Report of  the Working Group.

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

I. Summary of the proceedings of the review process

A. Presentation by the State under review

B. Interactive dialogue and response by the State under review

II. Conclusions and Recommendations

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

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

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

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

2. Cuba’s Responses to the Recommendations.

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

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

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

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

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

Criticism of the Recent UPR of Cuba

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

Andrew Carnegie’s Quest for Peace

Andrew Carnegie
Andrew Carnegie

 

Andrew Carnegie (November 25, 1835 – August 11, 1919) was a Scottish-American industrialist who led the enormous expansion of the American steel industry in the late 19th century.[1] He also was one of the highest profile philanthropist of his era who had given away almost 90 percent of his large fortune to charities and foundations by the time of his death.[2]

 

Carnegie also was a pacifist at heart, and starting in 1903 devoted significant time and money to promoting peaceful resolution of international disputes, especially by arbitration pursuant to treaties.

Hague Peace Palace
Hague             Peace Palace

He helped to create the Palace of Peace at the Hague in the Netherlands with his 1903 formation of a Dutch foundation and his funding of the Palace’s construction that was completed in 1913. It initially was the site for the Permanent Court of Arbitration, which was established in 1899 and which now is an intergovernmental organization with 115 member states that provides dispute-resolution services for various combinations of states, state entities, intergovernmental organizations, and private parties.[3] From 1922 to 1946 it also was the site for the Permanent Court of International Justice of the League of Nations and since 1946 the International Court of Justice, the principal judicial organ of the United Nations.

Carnegie also funded the construction of the headquarters building for the Pan-American Union (later the main building for the Organization of American States) in Washington, D.C. and the building for the Central American Court of Justice in Costa Rica.

In 1910 he funded the establishment of the Carnegie Endowment for International Peace, whose trustees were charged to use the fund to “hasten the abolition of international war, the foulest blot upon our civilization.” The Endowment is still operating today with its headquarters in Washington, D.C. Now it describes itself as “a unique global network of policy research centers in Russia, China, Europe, the Middle East, and the [U.S.]. Our mission . . . is to advance the cause of peace through analysis and development of fresh policy ideas and direct engagement and collaboration with decision makers in government, business, and civil society. Working together, our centers bring the inestimable benefit of multiple national viewpoints to bilateral, regional, and global issues.”

Carnegie Hall
Carnegie Hall

Another activity Carnegie organized to promote peace was the April 1907 National Arbitration and Peace Congress at Carnegie Hall in New York City. The Hall, as its name suggests, was another Carnegie-financed project that opened in 1891 in Midtown Manhattan.[4]

The Congress with over 1,200 registered delegates was described as the “greatest gathering ever held in advocacy for the abolition of war as a means of settling national disputes.”

Carnegie himself, of course, gave a major speech at the Congress that in retrospect can be seen as an outline of the United Nations created after World War II. Carnegie said, “[W]e are met to urge the speedy removal of the foulest stain that remains to disgrace humanity, since slavery was abolished—the killing of man by man in battle as a mode of settling international disputes.” He also expressed his support for “the League of Peace idea—the formation of an International Police, never for aggression, always for protection to the peace of the civilized world. . . . “ States should agree “that no nation shall be permitted to disturb the peace.” Before use of the international police, there should be a proclamation of “non-intercourse [“sanctions” in our parlance] with the offending nation.”

President Theodore Roosevelt did not attend the Congress, but sent a letter that embraced its purpose. It said, “[I]t is our bounden duty to work for peace, yet it is even more our duty to work for righteousness and justice.” Moreover, the President stated,“[T]here can be at this time a very large increase in the classes of cases which [could ] . . .be arbitrated, and . . .provision can be made for greater facility and certainty of arbitration. I hope to see adopted a general arbitration treaty.” Roosevelt added that  the Hague court [of Arbitration] should be greatly increased in power and permanency.”

On the other hand, Roosevelt cautioned the delegates to not insist “upon the impossible [and thereby] put off the day when the possible can be accomplished.” “[G]eneral disarmament would do harm and not good if it left the civilized and peace-loving peoples . . . unable to check the other peoples who have no such standards.” Indeed, according to the President, “[T]here are few more mischievous things than the custom of uttering or applauding sentiments which represent mere oratory, and which are not, and cannot be, and have not been, translated from words into deeds.”

The Congress adopted resolutions endorsing international peace and international law; calling for permanency for the Hague Court of Arbitration open to all nations; the adoption of a general international arbitration treaty; the creation of a committee to investigate international disputes and attempt to mediate them before the parties resort to war; the establishment of the neutrality of personal property at sea; and limitations on armaments. [5]

Baron de Constant de Rebecque & Andrew Carnegie
Baron de Constant de Rebecque &     Andrew Carnegie

At the end of the Congress Carnegie was presented with the French Cross of the Legion of Honor by France’s Baron de Constant de Rebecque (nee Paul Henri Benjamin Balluet), a member of the Permanent Court of Arbitration and the 1909 winner of the Nobel Peace Prize. The Baron praised Carnegie for “his interest and energy in behalf of the peace movement” and for being “a good citizen of the whole world.”

According to the New York Times, Europeans were not interested in, or impressed by, this Congress. First, they did not have “a large number of peace propagandists.” Instead their prevailing view was that “universal, permanent peace is a long way off” and that the major issue was the practical one of adopting an agreement on the manner in which wars should be conducted. Second, many Europeans believe that U.S. policies regarding the Western Hemisphere threaten world peace, especially with respect to Germany’s interests in that part of the world. Indeed, The Times of London called Carnegie “an ardent but ill-informed amateur” and had “rushed in where sagacious statesmen fear to tread.” Another European critic said Carnegie should “endow a chair of contemporary history for his own instruction.”

Carnegie Mansion
Carnegie Mansion

Preceding the Congress, Carnegie hosted a large dinner at his beautiful mansion at Fifth Avenue and 91st Street in New York City to celebrate industrial peace in the U.S. and the upcoming Congress. In attendance were 100 “sons of toil” or workers’ representatives; prominent merchants; manufacturers’ executives; bankers; leaders of universities and other educational institutions; church leaders; publishers and editors; lawyers; and railroad executives, including William C. Brown, then Senior Vice President of the New York Central Railroad (and my maternal great-great uncle).[6]

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[1] This post is based in substantial part on Chapter XXIII (“The Quest for Peace, 1901-1910”) in Joseph F. Wall’s Andrew Carnegie (Oxford Univ. Press 1970), which won the 1971 Bancroft Prize for best book about history of the Americas (or diplomacy). Professor Wall was a revered History Professor at my alma mater, Grinnell College, and I was fortunate to have known him and learned from him.

[2] One of Carnegie’s philanthropic endeavors was funding the establishment of public libraries throughout the U.S. and other countries. My mother was the Librarian at the Carnegie Library in Perry, Iowa, and I studied at Grinnell College’s Carnegie Library during my first two student years.

[3] I have had two “contacts” with the Permanent Court of Arbitration. First, a Minnesota company had suggested arbitration of its claim against my client, an Asian manufacturer, under the UNCITRAL Arbitration Rules. Because my client and I did not believe that there was a valid arbitration clause and the claimant had not appointed the first arbitrator, we did not appoint a second arbitrator and then were surprised to receive a letter from the Permanent Court designating an appointing authority to appoint a second arbitrator. There eventually was a three-person arbitration panel that issued an award in favor of my client. Second, I have researched the life and career of Edward Burnham Burling, a fellow Grinnell alumnus (Class of 1890), whose gift funded the College’s library (the Burling Library) that replaced its Carnegie Library. Burling was the co-founder of the eminent Washington, D.C. law firm of Covington & Burling and represented the Kingdom of Norway against the U.S. over expropriation of shipping contracts during World War I with the Permanent Court of Arbitration in 1922 issuing an award in favor of Norway. Writing blog posts about Burling and the Norway case are on my list of future posts.

[4] This account of the Congress is based upon Andrew Carnegie’s Plea for Peace, N. Y. Times (April 7, 1907); Stead Recommends a Peace Pilgrimage, N. Y. Times (April 8, 1907); Frenchmen Arrive for Peace Congress, N. Y. Times (April 9, 1907); Prelude to Peace Congress To-Night, N. Y. Times (April 14, 1907); Women’s Part in Peace, N. Y. Times (April 14, 1907); War Talk Opens Peace Congress, N. Y. Times (April 15, 1907); The Afternoon Session, N. Y. times (April 16, 1907); Editorial, Peace on Earth, N. Y. Times (April 16, 1907); Peace Conference Not All Harmony, N. Y. Times (April 17, 1907); Honor Carnegie Friend of Peace, N. Y. Times (April 17, 1907); Editorial, Peace Congress Resolutions, N. Y. Times (April 18, 1907); Editorial, Peace Congress Sequels, N. Y. Times (April 21, 1907); Europe Is Amused at Peace Congress, N. Y. Times (April 21, 1907); Proceedings of the National Arbitration and Peace Congress, New York, April 14th to 17th, 1907 (1907).

[5] Roosevelt became a hero for Carnegie, but Roosevelt never liked Carnegie.

[6] Unique Party Carnegie Host, N. Y. Times (April 6, 1907). About one week before this special dinner, Carnegie, after a luncheon meeting with President Roosevelt at the White House, made a statement supporting the President’s policies regarding the railroads. The Carnegie Mansion now is the home for the Cooper Hewitt, Smithsonian Design Museum.

Netherlands Court Awards Monetary Damages to Palestinian for Libyan Torture

Dr. Ashraf Al Hajuj

This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.

The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad.  A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.

This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.

In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.

International Criminal Court: Protection of Witnesses

The International Criminal Court’s Trial Chamber recently confronted two interesting issues regarding protection of witnesses in its proceedings:

What should the Court do with a witness’ request not to be returned to his home country because of alleged fear of persecution due to his testimony?

What should the Court do with that witness’ claim for asylum due to an alleged well founded fear of persecution in his home country due to his                                                          political opinions as expressed in his testimony?[1]

Thomas Lubanga Dyilo

These issues arose in the ICC prosecution of Thomas Lubanga Dyilo of the Democratic Republic of the Congo (DRC), who is charged with two war crimes. One is his allegedly enlisting and conscripting of children under the age of 15 years into a Congolese rebel group (Union des Patriotes Congolais (UPC)) and using them to participate actively in hostilities in the context of an international armed conflict. The other is doing the same thing in the context of an armed conflict not of an international character.[2]

The unnamed witness (Defense Witness 19) had been in detention in the DRC pending determination of criminal charges against him. Upon the application of defense counsel, the Court requested the DRC to transfer him to the Court to testify voluntarily at the trial. The DRC agreed to this request, pursuant to Article 93(7) of the Rome Statute that requires the individual to be returned to [the DRC] after testifying.

The witness was called to testify by defense counsel, who said the witness wished to testify in public without protective measures. At the start of his testimony, however, the witness expressed concerns about his safety and that of his family in the DRC, but he did not formally request protection from the Court at that time or during the course of his testimony.

The witness testified on a broad range of subjects, including his role in the rebel group, Lubanga’s position in the group, and the group’s conduct during the conflicts. The witness seriously challenged three named individuals in the DRC government.

After his testimony was finished and after the Court’s Registry had advised the Trial Chamber that the witness needed to be returned to the DRC as soon as possible, the witness filed a formal request for protection, i.e., a stay, and eventual cancellation, of his removal to the DRC and facilitation of his asylum application to the Kingdom of the Netherlands. The Trial Chamber ordered the stay of his removal while his application for protection was considered.

Witness’ Request for Cancellation of Removal to DRC

Under Article 68(1) of the Rome Statute, the “Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” To assist the Court in ruling on an application for such measures, it may request its Victims and Witness Unit (VWU), pursuant to Article 68(4), to provide advice.

That was done, and the VWU told the Trial Chamber that if returned to the DRC the witness “would not be exposed to any additional risk to his security or psychological or physical well-being as a result of his testimony;” that his testimony did not provide any new information to the DRC; that the DRC had provided assurances that the witness would receive adequate protection upon return; and the VWU would monitor his treatment after return.

The Chamber concluded that the VWU was the body within the ICC with the necessary qualified staff and expertise to evaluate the risks posed to a witness, that the Court had complied with its obligations under Article 68 of the Statute to consider the application for protection, that the request for cancellation of his removal to the DRC should be denied and that the witness should be returned to the DRC. However, the Court’s Registry was instructed to contact the DRC authorities to determine what, if any, additional security measures should be implemented upon return, and the VWU was instructed to monitor the witness’ well-being.

Witness’ Application for Asylum

The ICC is not a state and is not a party to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.[3] Therefore, the Trial Chamber concluded it had no jurisdiction to address the merits of the witness’ asylum application.

Instead, it was exclusively for the Kingdom of the Netherlands to consider and make a determination on that application. However, the Trial Chamber instructed the ICC’s Registry to afford the witness reasonable access to his lawyers on the asylum application and to work out procedures for the witness’ asylum application to be determined by the Netherlands before his return to the DRC.


[1] Redacted Decision on the request of [Defense Witness 19] for special protective measurs relating to his asylum application, Prosecutor v. Lubanga Dyilo(ICC Trial Chamber Aug. 5, 2011), http://www2.icc-cpi.int/iccdocs/doc/doc1189724.pdf; Ramji-Nogales, International criminal law meets non-refoulement (July 8, 2011), http://intlawgrrls.blogspot.com/2011/07/international-criminal-law-meets-non.html.

[2]  ICC, Prosecutor v. Thomas Lubanga Dyilo, http://www2.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations.

[3] See Post: Refugee and Asylum Law: Modern Era (July 9, 2011).