Organization of American States (OAS) – Page 3

U.S. Senate Foreign Relations Committee Holds Hearing About Cuba

On May 20^th the U.S. Senate Foreign Relations Committee held a hearing, “U.S.-Cuban Relations—The Way Forward.”[1]

The Committee Chair, Bob Corker (Rep., TN) opened by stating that the hearing would focus “on the strategy behind the President’s significant shift in U.S. policy towards Cuba.” Even though this shift “has been welcomed in Latin America and the Caribbean . . . significant differences of opinion exist in the [U.S.] over the extent to which this change in policy will advance U.S. interests and improve circumstances for the Cuban people.”

Therefore, according to Corker, the strategic issue was “how our nation can best engage strategically with the region and beyond to help Cuba rejoin the mainstream of the Americas and offer its citizens the same rights and freedoms enjoyed by citizens of other countries in the region.”

Ranking Member Cardin’s Opening Statement

The Ranking Member of the Committee, Senator Ben Cardin (Dem., MD), stated, “The President’s action [on December 17^th] brought with it a new opportunity to forge a bilateral relationship that will strengthen our efforts to advance and defend U.S. national interests, and will allow our government and our citizens to expand support for the Cuban people. Today’s hearing provides an important opportunity to review the advances achieved under the Administration’s new Cuba policy and to understand the strategy for moving forward. Without a doubt, this is a complicated process and it will take time to achieve the progress we want to see.”

“[W]e all stand together in our aspirations to see the Cuban people have the opportunity to build a society where human rights and fundamental freedoms are respected, where democratic values and political pluralism are tolerated, and where individuals can work unobstructed to improve their living conditions. We also share concerns about critical issues, such as the Cuban government’s ongoing abuse of human rights and the presence of American fugitives in Cuba, especially those wanted for the murder of U.S. law enforcement officers.”

“But, the central question is: how can we best advance these aspirations while also addressing these concerns? It goes without saying that our previous policy did not achieve the progress that we wanted to see, and so a new approach is needed.”

“President Obama has laid out a new path based on the belief that principled engagement will bring more results. I think that this is the right path for the following reasons:

“First, for far too long, the Cuban government has used U.S. policy as an excuse to justify its shortcomings and the hardships the Cuban people face. The Cuban government also has exploited U.S. policy for diplomatic gains, focusing international debate about what the U.S. should do, rather than about what Cuba needs to do to better provide for its citizens.”

“Second, despite differences we may have with a government, our foreign policy should always endeavor to support that country’s people to the greatest degree possible. Our disagreements with the Cuban government are well known and many. But, over time, we have allowed those disagreements to get in the way of developing a strategy that utilizes all of our resources to empower the people of Cuba.”

“I have no doubt that the dynamism of American society will make a positive contribution to empowering the Cuban people and provide them with the information they need to build the future of their country.”

“Third, the Administration’s new Cuba policy will provide the U.S., and especially our diplomats, with new tools to engage directly with the Cuban government to have principled and frank discussions about the issues we disagree about and how we might work together better on issues of common interest.”

Testimony of Assistant Secretary of State Jacobson

Roberta Jacobson, Assistant Secretary of State for Western Hemisphere Affairs, testified, “[W]e have begun to see the Administration’s new approach to Cuba providing space for other nations in the hemisphere and around the world to focus on promoting respect for human rights and fundamental freedoms in Cuba and elsewhere in the region. This was illustrated at the Summit of the Americas in Panama last April. Engagement by the President and the Secretary at the Summit re-invigorated our momentum on a variety of issues.”

“Our new approach has drawn greater attention to the potential for greater political and economic freedom for the Cuban people and the gap between Cuba and other countries in the Hemisphere. More Americans are travelling to Cuba, getting past the rhetoric, meeting Cubans, and building shared understanding between our people. We have seen practical cooperation in our official dialogues with Cuba on issues in our national interest like maritime and aviation safety, telecommunications, and environmental cooperation.

“Our future discussions on law enforcement cooperation, coupled with the ongoing migration talks, will expand the avenues available to seek the return of American fugitives from justice as well as the return of Cubans residing illegally in the United States. The same is true for future talks on human rights and settling American claims for expropriated properties. Most importantly, the President’s new approach makes clear that the United States can no longer be blamed as an obstacle to progress on things like access to information and connecting Cubans to the world.”

Nevertheless, “significant differences remain between our two governments. We continue to raise our concerns regarding democracy, human rights, and freedom of expression. And we will seek to engage with all Cubans to gain their perspectives on the best way forward for the country.”

“Our policy towards Cuba is based on a clear-eyed strategy that empowers the Cuban people to determine their own future by creating new economic opportunities and increasing their contact with the outside world. That is why we made it easier for Cuban-Americans to travel and send remittances to their families in Cuba, and opened new pathways for academic, religious, and people-to-people exchanges. These changes create powerful new connections between our two countries and help the nascent private sector in Cuba, which is already an agent of positive change on the island. The steps we have implemented build on this foundation by increasing authorized travel, authorized commerce, and the flow of information to, from, and within Cuba.”

“Our new approach emphasizes targeted forms of commerce that offer economic opportunity to independent Cuban entrepreneurs or, like expanded communications, benefit all Cubans. Comprehensive changes in our economic relationship will require Congressional action to lift the embargo. The President has urged Congress to begin that effort. In the meantime, we are using available policy tools to promote a prosperous, democratic, and stable Cuba.”

“In a short period of time, we have already started to see U.S. enterprises seizing the new opportunities. The regulatory changes we announced are intended to increase the financial and material resources available to the Cuban people and the emerging Cuban private sector. They also enable U.S. companies to offer expanded telecommunications and internet services in ways that could help Cuban civil society members advance their aspirations and collectively become more prosperous.”

“Regarding the Administration’s decision to rescind Cuba’s designation as a state sponsor of terrorism, as President Obama said, ‘throughout this process, our emphasis has been on the facts.’ . . . We will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions do not relate to any of the criteria relevant to that designation.”

“While progress has been made in our efforts to reestablish diplomatic relations, there is more to do to ensure a future U.S. Embassy will be able to function more like other diplomatic missions elsewhere in the world and foreign diplomatic missions in Cuba. Even today, under challenging circumstances, our diplomats do their very best to represent the interests and values of the United States, just as we do in hundreds of places around the world. Our engagement with the broadest range of Cubans will expand once we establish diplomatic relations with Cuba.”

Testimony of State Department Counselor Shannon

State Department Counselor Thomas A. Shannon, Jr. testified, “My purpose today is to address the regional context in which . . . [the U.S. Cuba] policy is unfolding, and to lay out some of the strategic dimensions of our diplomacy.”

“The decision to engage with Cuba and seek normalization of our bilateral relationship attempts to create a new terrain on which to pursue a future that meets our interests and corresponds to our values. Our commitment to democracy and human rights, and our desire and hope that the Cuban people will know the benefits of liberty and become the sovereigns of their own destiny, is no less for our action.”

“The President has been clear about the commitment in our Cuba policy to our enduring and fundamental principles of self-government and individual liberty. However, he has also been clear about our inability to effect significant change in Cuba acting alone across so many decades. Instead, he determined that our efforts would be more effective if we could position Cuba squarely within an inter-American system that recognizes democracy as a right that belongs to all the peoples of our Hemisphere, believes that democracy is essential to the political, economic, and social development of our peoples, and has the juridical instruments, treaties, and agreements to give shape, form, and weight to these commitments. It was our determination that this kind of environment would be the most propitious to support the only legitimate agent of peaceful and enduring political change in Cuba: the Cuban people.”

“The Americas, and specifically Latin America, has anticipated many of the events that are shaping our world. It is a region that has moved largely from authoritarian to democratic government, from closed to open economies, from exclusive to inclusive societies, from autarkical development to regional integration, and from isolation to globalization.”

“Latin America is the first developing region of the world to commit itself explicitly to democratic governance through the Inter-American Democratic Charter, the first to build a democratic model of development, and the first to establish regional structures to promote and protect human rights.”

“While creating a broad base of shared political values, Latin America has also constructed shared economic understandings and a commitment by many of the most successful countries in the Hemisphere to market economies and free trade. In the process, it has built sub-regional integration and political dialogue through organizations like the Common Market of the South, the Andean Community, the Union of South American Nations, and the Central American Integration System, all the while preserving larger hemispheric institutions, such as the Organization of American States and the Summit of the Americas process, that connect Latin America to the Caribbean and North America.”

“As Latin America advances into the 21st century, it is undergoing a second generation of change. Politically, it has consolidated democratic government and is strengthening democratic states and societies. This has opened up political institutions to new voices and actors, deepening the representativeness of many Latin American governments and challenging traditional elites and interests. In some countries, weak democratic institutions have not been able to contain the social energy unlocked by democratization, leading to populism and political polarization as groups struggle for control of the state. As troubling as this phenomenon can be, it does not define the democratization of the region but instead presents a challenge for the region to show how it can address such incidents through the organizations and institutional mechanisms it has created.”

“Economically, Latin America is building innovative integration mechanisms such as the Pacific Alliance, and reaching into Asia and North America to find new and important economic partners. We have FTAs with 12 countries in the Hemisphere, and the continued globalization of Latin America is driven not only by the regions abundant commodities, especially food and energy, but also by growing middle classes that have created attractive markets for manufactured goods and services.”

“The profound changes unleashed in Latin America show clearly that democracy and markets can deliver economic development and address longstanding social inequities such as poverty, inequality, and social exclusion. In effect, Latin America has used democracy and markets to launch peaceful social revolutions that are transforming many countries in important and long-lasting ways. Our ability to promote profound and dramatic change in Latin America is an example of what the United States can accomplish through diplomacy and engagement.”

“If we accomplished such a profound transformation in our Hemisphere through engagement, why not try the same approach with Cuba? And better yet, why not try it in partnership with countries and institutions that are now prepared to work with us because of the President’s new policy?”

“Cuba today finds itself part of a dynamic, vibrant region where transformative change has been the watchword for several decades. And it finds itself in a region where the momentum of that change will continue to reshape political, economic, and social landscapes. In such an environment, the Cuban people will find many models and partners from which to learn and choose. We should be one of those models and partners.”

Questioning Assistant Secretary Jacobson and Counselor Shannon

Of the 11 Committee members in attendance, six made comments and asked questions supportive of U.S.-Cuba reconciliation: Ben Cardin (Dem., MD), Barbara Boxer (Dem., CA), Tom Udall (Dem., NM), Tim Kaine (Dem., VA), Edward Markey (Dem., MA) and Jeff Flake (Rep., AZ).

With Chairman Corker being judiciously noncommittal in his comments, the other four in attendance were hostile to the reconciliation: Bob Menendez (Dem., NJ), Marco Rubio (Rep., FL), Ron Johnson (Rep., WI) and David Perdue (Rep., GA).

In response to Senator Corker’s opening question about whether to date the U.S. had obtained any changes in Cuba policies, Jacobson implicitly said none by emphasizing that the U.S. actions to increase the ability of U.S. nationals to travel to Cuba and to send remittances to Cubans were assisting the latters’ ability to form businesses and over time to be agents for change. The same was true, she said, of new U.S. policies to encourage U.S. businesses to export telecommunications equipment to the island. Shannon added that the new U.S. policies helped the U.S. with other countries in Latin America, especially within the Organization of the American States (OAS) and the Summit of the Americas.

Jacobson also mentioned the OAS and the United Nations as well as continued U.S. annual reports about human rights as means the U.S. would use to assess whether Cuba makes improvements in human rights. She also reiterated her point about U.S. travel and investment in Cuba as instruments for aiding such improvements, all in response to a question from Senator Rubio.

Rubio also pressed Jacobson to concede that the U.S. and Cuba had different notions of human rights. She did so with respect to free speech, peaceful assembly and elections, but she did not point out the U.S.-Cuba agreement on many theoretical issues of human rights as discussed in a prior post.

Another major Rubio argument was increased American travel to Cuba merely benefited the Cuban government and military, which owned, in whole or in part, hotels and car rental companies. The amount of such travel to Cuban bed and breakfasts in private homes was insignificant and, in any event, such private establishments had to pay big fees to the government for such businesses. Moreover, Rubio continued, many of these hotels and other properties had been owned by Americans and others and stolen by the Cuban government. Therefore, Rubio said, the U.S. should not be promoting such increased travel.

Senator Boxer responded to this argument by pointing out that the U.S. permits travel to Viet Nam, China and Russia where hotels and other businesses are owned by the state. She also pointed out that direct interactions between U.S. and Cuban citizens should encourage the latter to want more rights. In addition, Boxer said, the rapprochement was improving cooperation regarding Cuba for the U.S. from Europe and others in this Hemisphere. An example was Panama’s reaction to Cuban efforts to suppress free speech at the recent Summit of the Americas in that country.

However, I was surprised that no one responded to Rubio’s argument about hotels that had been stolen by the Cuban government. Indeed, there are substantial damage claims against the Cuban government for its uncompensated expropriation of property, and this is one of the claims the U.S. now is asserting against Cuba, and a prior post argued for submitting these and other damage claims by both countries to an international arbitration.

Senator Johnson focused on provisions of the Libertad Act (a/k/a the Helms-Burton Act) imposing preconditions on U.S. relaxing sanctions against Cuba, presumably as a predicate for an argument that President Obama’s easing of certain sanctions was unauthorized and, therefore, illegal. Jacobson pointed out, however, that other laws had exceptions to sanctions and provided authority to the President to do what he has done. Moreover, she said, the Administration had asked Congress to enact legislation repealing the U.S. embargo of the island, including the Libertad Act.

Senator Menendez, a Cuban-American and a vigorous opponent of the reconciliation, barely concealed his anger over the change in U.S. policies. Since December 17^th, he argued, there has been no improvement in Cuban human rights, and in fact there has been a deterioration on this subject.

Senator Perdue reiterated Menendez’ argument about human rights and asserted that Cuba was still a state supporter of terrorism. It allegedly was helping Islamist terrorists, had shipped arms to North Korea that were intercepted in Panama and had another ship with explosives that on February 28, 2015, was intercepted by Colombia. Counselor Shannon pointed out that this Colombian government action was an example of the increased cooperation the U.S. now is obtaining from others in Latin America as a result of the new U.S. policies about Cuba.

Senator Kaine stated that there are roughly 600 bilateral relations in the Western Hemisphere and that the only one without normal diplomatic relations is U.S.-Cuba. In addition, there are no inter-state wars in the Hemisphere and the only civil war is in Colombia, which is the subject of peace negotiations now being held in, and aided by, Cuba. Counselor Shannon concurred, saying this was a remarkable achievement for the Hemisphere going along with its economic and democratic improvements.

Conclusion

This hearing, in my opinion, did not really provide any new information about the issues or the positions of the participants, which probably why it was not covered in U.S. news media.[2]

The hearing and the lack of news coverage underscored the importance of U.S. citizens who support the reconciliation efforts to convey their opinions to their Senators and Representatives and of the formation and actions of groups like the U.S. Agricultural Coalition for Cuba and Engage Cuba Coalition.

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[1] This post is based upon a video of the hearing and on the embedded citations to the opening statements of Senators Corker and Cardin, the testimony of Assistant Secretary Jacobson and Counselor Shannon and to some of the comments by Senators Rubio, Menendez and Perdue.

[2] This brief article is the only one found in a Google search: Gomez, Senators question wisdom of Obama’s Cuba policy, USA Today (May 20, 2015),

Inter-American Commission on Human Rights Criticizes Cuban Human Rights

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

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

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

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

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

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

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

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

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

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

International Reaction to U.S.-Cuba Reconciliation

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

Latin American Reactions [1]

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

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

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

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

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

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

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

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

European Reactions [3]

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

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

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

Other International Reactions [4]

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

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

Conclusion

I would appreciate comments identifying other international reactions.

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

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

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

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

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

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

Tom Hayden: Will U.S.-Cuba Normalization Fail Again?

[This is a re-posting of an August 15, 2014, article in The Democracy Journal by Tom Hayden, political activist for social justice, author and Director of the Peace and Justice Resource Center. Article licensing information appears on tomhayden.com (http://tomhayden.com/), which granted permission for this re-posting. Many similar posts have been published on http://dwkcommentaries.com/tag/cuba/.%5D

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On May 12, President Obama held a confidential conversation in the White House with Uruguay’s president, Jose Mujica, the former Tupamaro guerrilla leader. The meeting was a fateful one. Did they discuss Uruguay’s becoming the first Marijuana Republic? Perhaps. Did they discuss the US-Cuba diplomatic impasse of 55 years? Most certainly, because three weeks later at an Organization of American States (OAS) meeting in Uruguay the delegates reaffirmed a decision to officially invite Cuba to a summit in Panama next May.

The Obama administration will have to accept Cuba’s recognition by the OAS this spring or sit sheepishly in isolation. Fifty years ago, the OAS voted 15-4 to terminate all diplomatic relations and trade with revolutionary Cuba. Uruguay was one of the four dissenters in those days, when the revolutionary Mujica was underground, and has not changed its position over time. One doesn’t need gray hairs to observe that the US policy towards Cuba is obsolete and counter-productive. Ten years ago, then state Senator Barack Obama called for diplomatic recognition. Hillary Clinton recently revealed her support for recognizing Cuba as secretary of state. Recent polls, even in Florida, show majorities in favor of normalization. Inner circles in both countries are trying to explore a rapprochement, wary of pitfalls and domestic critics.

The most important recent change in US policy is the lifting of the travel ban on Cuban-Americans visiting the island. As many as 500,000 travel back and forth every year, visiting family, sharing dialogue, spending millions in remittances. On the Cuba side, all agree that Raul Castro has opened significant space for private investment and entrepreneurs once condemned as counter-revolutionary. Businesslike bilateral talks are underway about issues of mutual interest, from currency exchanges to potential oil spills.

The biggest obstacle, from the Cuban view, is a persistent US program of covert “democracy promotion” – or, regime change – aimed at subverting the Cuban government by funding dissident networks in Cuba. “Stupid, stupid, stupid!”, is how US Sen. Patrick Leahy recently described the leaked revelations about a secret social media “Cuban twitter” program called ZunZuneo, after a Cuban hummingbird. One among fifty years of subversion projects, ZunZuneo was launched in 2009 after Obama spoke of building a new relationship. Its sponsor was the US Agency for International Development [AID], even after an AID contractor, Alan Gross, was arrested in Cuba for distributing communications equipment in violation of Cuban law.

Gross, now serving a 15 year sentence, is at the center of the heightened tensions now threatening normalization. Gross, 65, is widely reportedly in poor health and threatening to take his own life if he’s not released by next year. Should that occur, according to one top US official, it would end any hope of Cuba winning the return of one of its agents, Gerardo Hernandez, one of the Cuban Five who were captured in DATE while surveilling anti-Castro Cubans flying into Cuban airspace to drop propaganda materials. When two exile pilots were shot down by the Cubans after warnings conveyed directly to the US government, the Five were imprisoned on conspiracy and espionage charges. Two have served their time in federal prisons and returned to Cuba. Two others will finish their terms shortly, leaving Gerardo Hernandez facing a double life sentence.

Prisoner swaps have occurred before, for example in 1978-79 when President Jimmy Carter and Fidel Castro orchestrated the release of Puerto Rican nationalists who were imprisoned for shooting up the US House of Representatives in 1954. Although the releases were described as unrelated, the Puerto Ricans were pardoned and returned to their island while separately the US received a group of its agents held in Cuban prisons.

It would be logical therefore to swap Gross for Gerardo Hernandez, even if arranged separately, but nothing seems logical about the US-Cuban deadlock. According to interviews with participants, such a staged swap finally was being considered a few weeks ago – until the fiasco of the Obama administration’s trade of five Taliban officials for the return of the American POW, Pfc. Bowe Bergdahl. Republicans, some Democrats and the mainstream media complained that the five-for-one deal favored the Taliban, and then the issue became inflamed by hazy reports that Bergdahl had abandoned his Afghan base and was perhaps “anti-war.”

The Obama team was flat-footed in their response, failing to notify even their top Congressional allies. That failure violated a legal requirement that Congress be informed thirty days before any such deal, an obstacle that most likely would have killed the swap. But Democratic leaders were furious at not even being informed of the move.

That’s why Alan Gross remains behind bars in Cuba with no deal for his release remotely possible. With the Gross matter unresolved, the entire process of normalization could go off track.

Many in Washington view the Cubans as too stubborn in the Gross case. But the Cubans have been burned by unfulfilled promises and miscommunications many times over the decades, and leaving Gerardo Hernandez behind is unacceptable to them – just as Obama argued that leaving Pfc. Bergdahl behind was out of the question.

The Cuban dilemma is that if anything should happen to Gross they will never see Gerardo back and a rapprochement could slip away. It may sound shocking to many Americans, but the death of Alan Gross in a Cuban prison would serve the interests of some in the anti-Castro Cuban lobby that is deeply threatened by the prospects of normalization. The death of Gross would serve the narrative that Castro’s Cuba operates a heartless gulag, ignoring the many proven examples of Cuban exile terrorism directed from Miami against Cuban civilians, like the 73 Cubans killed in an airline bombing in 1976. Cuban exiles have been a perfect examples of the “cancer on the presidency”, the metaphor once used by Nixon aide John Dean. They were the lead conspirators in the 1972 Watergate break-in, and the 1976 assassinations of Chilean diplomat Orlando Letelier and his American assistant Ronnie Moffett, on embassy row in Washington DC. Their violent attacks on Cuba from a Miami enclave are too numerous to document.

Cuba will make its own decision for its own reasons in the Gross case, and may have to make it soon. Since the Obama administration fears any appearance of a quid pro quo in the wake of the Bergdahl fiasco, should Cuba expect nothing in exchange for the release of Gross as a humanitarian gesture? That might depend on the initiative of the many in the US Congress who recognize that it’s long past time for a better relationship with Cuba. They could, for example, communicate private guarantees of White House action. They could try deleting the $20 million in federal funds for “democracy programs” in the wake of the ZunZuneo scandal. They could send a letter to Obama requesting Cuba’s removal from the list of four countries designated as “terrorist” states, which hampers Cuba’s access to financial capital. They could urge the president to lift the ban on Americans traveling to Cuba or spending US dollars there, thus undermining the current embargo. If they can’t do anything in response to a release of Gross, they could watch the prospect of normalization drift away.

Another recent crisis may shadow the US-Cuban process, revealing the complications of the impasse.. A long-planned improvement of relations between Russia, Cuba and Latin America is underway just at the moment when clouds of the Cold War are darkening the horizon over the Ukraine. Russia’s Vladimir Putin has just forgiven ninety percent of Cuba’s $30 billion debt owed to Russia for three decades, fueling the anti-communist suspicions of the Cuban Right. The arrangement is helpful to Cuba’s economy, long embargoed by the US, and adds a new counterweight against the US pressures on Cuba. If initial reports that Russia re-establishing a spy base on the island, that might chill the relationship further. Cuba, of course, has a sovereign right to accept a Russian base, especially as US regime change programs continue.

Whatever the spillover from the Bergdahl affair and the growing Russian-American conflict, however, nothing can stop the clock ticking towards 2015 when Obama has to decide whether to join the Organization of American States in restoring Cuba to equal membership. If that’s what the president’s confidential White House meeting with Uruguay’s Mujica in May was all about, the process of normalization may yet survive the remaining obstacles to resolution after five long decades.

Presbyterian Church (U.S.A.) Takes Actions Regarding Cuba

The just-concluded General Assembly of the Presbyterian Church (U.S.A.) approved two resolutions regarding Cuba.

End Designation of Cuba as a “State Sponsor of Terrorism”

By a vote of 481 to 63, the General Assembly adopted resolution 11-03: “Petition the President of the United States and the U.S. Department of State to remove Cuba from the list of state sponsors of terrorism as soon as possible.” [1] The stated rationale for the resolution included the following:

“[T]here is no evidence that Cuba has provided [logistical and financial or political support to groups that carry out terrorist attacks on civilians] in recent decades or is currently providing it.”
“To the contrary, Cuba has made international commitments to combat terrorism, has ratified all twelve international counterterrorism conventions, and has offered to sign a bilateral agreement with the United States on counterterrorism.”
“In an immediate response to the September 11, 2001, attacks on New York City and Washington, D.C., by Islamist militants belonging to Al Qaeda, Cuba expressed solidarity with the U.S, condemning the attacks and offering Cuban airports for the emergency diversion of airplanes from U.S. airports.”
“Cuba is a sponsor of the peace talks between the Revolutionary Armed Forces of Colombia—People’s Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo or FARC) guerrillas and the Columbian government and is playing a constructive mediating in these talks in an effort to bring an end to one of the regions’ longest-standing conflicts and has been lauded by the Columbian government for its assistance.”
“Cuba collaborates with the U.S. in counter-drug traffic efforts, interdicting narcotic shipments in the Caribbean and has been publicly thanked by the United States government for this cooperation.”
“Under these circumstances, keeping Cuba on the list of state sponsors of terrorism weakens the credibility of the entire list. . . . Removing Cuba from the list would send a positive signal to all Latin American governments and would enhance the image of the U.S. in this hemisphere and around the world.”

End Restrictions on U.S. Citizens Traveling to Cuba

By a hand vote the General Assembly approved resolution 11-05: “Petition the President of the United States, the U.S. Department of State, and the U.S. Treasury Department’s Office of Foreign Assets Control to remove all of the restrictions on travel by U.S. citizens to Cuba, which it is legally possible for them to do, and to openly and vigorously advocate to Congress the repeal of all laws restricting the constitutional right of U.S. citizens to travel to Cuba.” The resolution also stated: “Petition the majority and minority leaders of the U.S. Senate and the U.S. House of Representatives to work to repeal all of the laws restricting travel to that nation.”

The rationale for this resolution included the following: “[M]illions of U. S. citizens are unable to visit Cuba because of restrictions still in place that limit travel to that nation. Speaking to the Organization of American States in 2013, U. S. Secretary of State, John Kerry, stated that ‘our people are actually our best ambassadors.’ . . . Increased travel by U. S. citizens will help support thousands of . . . [new] Cuban entrepreneurs and will enable them to purchase food and clothing and provide for their other basic needs.”

Consultation of U.S. and Cuban Presbyterian Churches

The General Assembly also considered Resolution 11-06 calling for developing a process for consultation between the U.S. and Cuban Presbyterian churches. By a hand vote, it was referred back to the appropriate church committee to find the necessary funding for such a process in light of the U.S. church’s “commitment to deepening our relationship [with Cuba] by careful analysis of the ongoing complex situation in Cuba.”

Conclusion

The biennial General Assembly is the national governing body of the Presbyterian church (U.S.A.) that brings together commissioners and advisory delegates from all 172 presbyteries in the U.S., as well as other delegates and observers from around the world.

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[1] This blog repeatedly has called for ending the designation of Cuba as a “State Sponsor of Terrorism.” Here is the latest such post.

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

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

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

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

Background

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

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

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

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

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

2. Ecuador’s Hostility to Freedom of Expression.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

Organization of American States Strengthens the Inter-American System of Human Rights [1]

OAS General Assembly, 3/22/13 (Photo: OEA OAS Photostream [2])

On March 22, 2013, the Extraordinary General Assembly of the Organization of American States (OAS)[3] adopted by acclamation a resolution strengthening the Inter-American System of Human Rights (“the System”).[4] The resolution had the following provisions:

Requested the Inter-American Commission on Human Rights (“Commission”), an autonomous OAS organ that promotes and protects human rights in the American hemisphere, to continue to move forward with application of its responses to suggestions for reform by a special working group and the Commission’s March 18, 2013, reform of its rules.
Instructed OAS’ Permanent Council[5] to continue the dialogue on the “core aspects for strengthening” the System.
Urged the Commission to put into practice pending recommendations for reform.
Encouraged the Commission “to strengthen its efforts in the promotion of human rights, including through its support to national systems.”
Reaffirmed the OAS General Assembly’s commitment to obtain full financing of the
System through OAS’ Regular Fund “without prejudice to the financing of the other mandates” of the OAS.
Requested the OAS Secretary General to submit to the OAS Permanent Council “a detailed, up-to-date analysis of the full operating costs” of the System.
Proposed that the Commission “strengthen all its rapporteurships, including by giving consideration to granting special status to all existing rapporteurships, based on adequate financing, without prejudice to its other responsibilities.”[6]
Urged “OAS member states [i.e., U.S., Canada and seven others] to ratify or accede to . . . all inter-American human rights instruments, especially the American Convention on Human Rights,” and for the U.S., Canada and eight other states “to accept . . . the contentious jurisdiction of the Inter-American Court of Human Rights.”[7]

Understanding the significance of this resolution requires elaboration.

1.1. Recommendations of the Special Working Group. In its December 2011 report the Special Working Group proposed changes to the Commission’s rules regarding individual petitions and cases; precautionary measures; monitoring of human rights in member states; promotion of human rights; a permanent presidency; financing and allocation of resources; and dissemination of criteria and jurisprudence.[8] The most controversial ones that were seen by many as efforts to muzzle the Commission were these:

Restrict the Commission’s discretion in granting “precautionary measures,” by, among other things, setting forth “precise objective criteria” for granting same and determining whether the situation was “serious and urgent.” The addition of such criteria would help states as well as alleged victims who are affected by such measures.
Require its annual report to cover human rights conditions in all OAS members, not just those with the most pressing problems.
Reduce the activities and funding of the Special Rapporteur on Freedom of Expression by eliminating its separate funding and instead requiring balanced funding of all rapporteurs as well as eliminating this one’s special report.
Require the Commission to devote more time and resources to the general promotion of human rights and thereby reduce its time and resources to deciding individual complaints.
Impose restrictions on the Commission’s decisions regarding individual complaints.

1.2. Commission’s Responses to Recommendations of Special Working Group. On October 23, 2012, the Commission issued its second response expressing agreement with most of these recommendations.

However, the Commission did disagree with the recommendation to assign balanced resources to all of its rapporteurships. It pointed out that the first source of funds for the Commission is the OAS Regular Fund, which covers only 54% of the Commission’s financial needs. This necessitates soliciting outside funds, some of which are designated for specific purposes (one of which implicitly is for the Freedom of Expression Rapporteurship). “[P]rohibitting or impeding any of [these] . . . funding sources would lead to the immediate structural weakening of the thematic rapporteurships and units, as well as [their] . . . important promotional and technical assistance activities.”

Moreover, the request for balanced or equal allocation of resources legitimately was seen as a back-door way to reduce the funding for the Rapporteurship for Free Expression and hence its work, an objective of those states that had been criticized for retaliation against journalists and media for criticism of the governments.

1.3. Commission’s Recent Changes in Its Rules and Policies. On March 18, 2013 (only four days before the OAS General Assembly was to consider the whole subject of reforming the System), the Commission adopted a resolution amending its rules and adopting certain institutional policies, effective August 1, 2013.

The rules that were changed were Rule 25 (Precautionary Measures); 28 (Requirements for the Consideration of Petitions); 29 (Initial Processing); 30 (Admissibility Procedure); 36 (Decision on Admissibility); 37 (Procedure on the Merits); 42 (Archiving of Petitions and Cases); 44 (Report on the Merits); 46 (Suspension of Time Limit to Refer the Case to the Court; 59 (Annual Report); 72 (Experts); 76 (Provisional Measures); and 79 (Amendment of the Rules of Procedure).

These changes adopted many of the suggestions made by the Special Working Group.

For example, one of the more signficant changes was to Rule 25 covering precautionary measures, which are actions the Commission requests a state to take to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case before its final resolution on the merits, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case. The amended rules more precisely identifies the situations for same as “serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system” and provides definitions of “serious situation,” “urgent situation” and “irreparable harm.” It also provides that decisions granting, extending, modifying such measures shall contain certain elements.

Similar changes were made to Rule 76 covering provisional measures, which are actions the Commission requests the Inter-American Court to take in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. The amended rule provides for the first time the following criteria for deciding upon a request for such measures: (a) ” when the State concerned has not implemented the precautionary measures granted by the Commission;” (b) “when the precautionary measures have not been effective; ” (c) “when there is a precautionary measure connected to a case submitted to the jurisdiction of the Court;” or (d) “when the Commission considers it pertinent for the efficacy of the requested measures, to which end it shall provide its reasons.”

Foremost among the new institutional policies was the establishment of the following priorities: promotion of universal ratification of the American Convention on Human Rights and other similar instruments; promotion of economic, social and cultural rights; and development of a plan for a permanent presidency. Other adopted policies generally concerned measures to increase public transparency of the Commission’s activities.

2. Permanent Council’s Continuing Dialogue on Core Aspects of Reforming the System. Although most states and their representatives were ready to end the reform process with the adoption of the March 22nd resolution, they accepted this “open door” for further dialogue as a way to keep those states less friendly to the Commission (especially Ecuador, Venezuela, Bolivia and Nicaragua) involved in the Human Rights System and not renounce the American Convention on Human Rights and other treaties.

3. Commission’s Implementing Pending Reform Recommendations. I do not know what is meant by “pending [reform] recommendations,” and I solicit comments explaining this point. Presumably this refers to the Commission’s March 18th adoption of amended rules and of policy priorities.

4. Commission’s Strengthening Promotion of Human Rights. This is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates. In my opinion, such promotion should not come at the expense of reducing efforts on resolving specific complaints about alleged violations of human rights.

5. OAS’ Obtaining Full Financing of the System. This too is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates.

6. Analysis of Full Operating Costs of the System. This sounds like a straight-forward cost analysis of the Commission and the Inter-American Court of Human Rights (“the Court”).

7. Commission’s Strengthening of Rapporteurships. There now are the following Rapporteurships on the Rights of (i) Indigenous Peoples, (ii) Woman; (iii) Migrant Workers and Their Families; (iv) the Child; (v) Human Rights Defenders; (vi) Persons Deprived of Liberty; and (vii) Afro-Descendants and Against Racial Discrimination.

There also is a Special Rapporteurship on Freedom of Expression, which has a “general mandate to carry out activities for the protection and promotion of the right to freedom of thought and expression.”

Subject to the qualification about outside funding designated for specific purposes, there is no quarrel with the objective of strengthening all of the rapporteurships.

8. Obtaining Universality of Ratification/Accession of the American Convention on Human Rights and Acceptance of Contentious Jurisdiction of the Inter-American Court of Human Rights.

Of the 34 members of the OAS, only 9 have not ratified or acceded to the American Convention on Human Rights with the U.S. and Canada being the major exceptions. Nor have the U.S. and Canada and 10 other states accepted the jurisdiction of the Inter-American Court of Human Rights to decide cases of their alleged violations of that Convention.[9]

The desire for universality expressed in this resolution, in my opinion, is appropriate even though I suspect it is motivated in part by the understandable resentment of the U.S. for not accepting the Convention and the Court’s jurisdiction while simultaneously criticizing other states in the Hemisphere for their violations of human rights.

Conclusion

The previously mentioned controversial recommendations by the Special Working Group were promoted by states that had been targets of individual complaints and of criticisms by the Special Rapporteur on Freedom of Expression. Foremost among these states was Ecuador, which has become notorious for its legal claims against the media for criticism of its government and by states that understandably resent the U.S.’ not being a party to the American Convention on Human Rights and not consenting to the contentious jurisdiction of the Court. This background will be discussed in a subsequent post.

[1] The author would like to thank Mexican attorney, Juan Carlos Arjona Estevez, for his assistance in preparing this post. Muchas gracias, amigo!

[2] This photo is subject to license with OAS.

[3] The OAS was established in 1951 to achieve among its member states “an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.” Its supreme organ is the General Assembly, which is composed of delegations of the member states.

[4] The OAS Human Rights System includes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. A chronology of the Human Rights System reform process is available on the Commission’s website. Some of the work of the Commission has been discussed in prior posts.

[5] The OAS Permanent Council under Chapter XII of the OAS Charter is the organ that is in overall charge of its activities pursuant to delegations by the OAS General Assembly or other organs.

[6] Starting in 1990, the Commission began creating thematic rapporteurships under the leadership of an individual who is an expert in the area in order to devote attention to certain groups, communities, and peoples that are particularly at risk of human rights violations due to their state of vulnerability and the discrimination they have faced historically. The aim of creating a thematic rapporteurship is to strengthen, promote, and systematize the Commission’s own work on the issue.

[7] In footnotes to the consensus resolution, Guatemala urged the Commission to (i) move its headquarters from Washington, D.C. to San Jose, Costa Rica (which hosts the Court and the Inter-American Institute for Human Rights); (ii) draft a proposed protocol to the American Convention on Human Rights to establish standards for precautionary measures (akin to preliminary injunctions in U.S. law); (iii) limit the Commission’s commissioners and special/thematic rapporteurs to a single term; (iv) set 2015 as the date for attaining full financing of the System; and (v) placing all rapporteurships under the leadership of the commissioners.

[8] The Special Working Group’s report with 53 recommendations for the Commission was adopted by the OAS Permanent Council on January 25, 2012 and ratified by the OAS General Assembly on June 5, 2012.

[9] The Court’s Statute’s Article 2(1) provides that its “adjudicatory jurisdiction shall be governed by . . . Articles 61, 62 and 63 of the Convention,” and the latter’s Article 62 requires a state’s declaration “unconditionally, or on the condition of reciprocity, for a specified period, or for specific cases” that it “recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.”

Ecuador’s Dispute with the United Kingdom and Sweden Over Julian Assange: Granting Asylum to Assange

On August 16, 2012, the Government of Ecuador made its decision to grant the petition for diplomatic asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom (“the Decision”).[1] The U.K. and Sweden challenge the legitimacy of this action, and this post will explore the issues relating to this dispute.[2]

The Decision sets forth a list of what it describes as 12 “fundamental principles of general international law” regarding asylum that purportedly support its grant of asylum. These principles are said to be derived from, and supported by, Ecuador’s own laws regarding asylum and 16 international treaties and declarations.

The Decision also states what it deems to be the relevant facts for the application along with a summary of Ecuador’s efforts to cooperate with the governments of the U.K., Sweden and the U.S. and the measures Ecuador will seek from the U.K. regarding Assange.

Let us examine these legal and factual assertions.

The Relevant Law

In its extensive legal discussion, the Decision fails even to mention what, in my opinion, is the essential first step in any such analysis: the International Court of Justice’s judgment in 1950 that diplomatic asylum was not part of general international law.

In Colombian-Peruvian Asylum Case, I.C.J. Rep. 1950, p. 266 (Nov. 20, 1950), the court concluded, “A decision to grant diplomatic asylum involves a derogation [or departure] from the sovereignty of [the territorial] . . . State [where the diplomatic premises are located]. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized [as a matter of general international law] unless its legal basis is established in each particular case.” Moreover, if the State granting diplomatic asylum had the “unilateral and definitive” authority to determine whether the offense of the asylum-seeker was a political or common crime, it would “aggravate . . . the derogation” and is “not inherent in the institution of diplomatic asylum.” (In addition, Judge Alvarez from Chile, dissenting in this case, said there also was no customary American international law of diplomatic asylum.)

Seven months later in the same case the ICJ rendered another judgment that stated, “The safety that arises out of [diplomatic] asylum cannot be construed as a protection against the laws and against the jurisdiction of legally constituted tribunals [of the host state].” (Haya de La Torre Case, I.C.J. Rep. 1951, p. 71 (June 13, 1951).)

Nor did Ecuador’s Decision refer in any way to the unsuccessful effort by Latin American countries to overrule the I.C.J. judgments by having diplomatic asylum recognized in the 1961 Vienna Convention on Diplomatic Relations or the unsuccessful U.N. effort to prepare and adopt an international, multilateral treaty on the subject of diplomatic asylum. In 1977 the U.N.’s International Law Commission concluded that there was not sufficient interest to justify any further work on the subject.

Another response to these ICJ rulings was an Inter-American Conference in Caracas, Venezuela on March 28, 1954, that adopted the text of the Inter-American Convention on Diplomatic Asylum. Today it is the only such treaty in the world, and Ecuador is one of the only 14 of the 35 states of the Organization of American States that have ratified that treaty.[3] In other words, 179 of the 193 U.N. member states have not adopted this or any similar treaty. The U.K. and Sweden, which are not in the Inter-American system, obviously are not parties to this treaty; nor is the U.S., which was eligible to sign and ratify. As a result, this treaty cannot and does not impose any legal obligations on the U.K., Sweden or the U.S.

It, therefore, is not too surprising that Ecuador’s Decision does not analyze the terms of this treaty for the current dispute although it is on the list of 16 international treaties and declarations that purportedly support the Decision.

Even more damning, the Decision does not address the clear problem facing all instances of diplomatic asylum, as pointed out in the ICJ judgment. A decision like Ecuador’s to grant asylum to someone in one of its embassies in a foreign country is at least a potential infringement upon the competence of that foreign country. Such an infringement or derogation cannot be ignored. Indeed, as discussed in a prior post, Article 41(1) of the Vienna Convention on Diplomatic Relations states that “it is the duty of all persons enjoying such [diplomatic] privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .” In addition, Article 41(3) of that Convention provides that the “premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Instead of focusing on these clearly relevant legal issues, Ecuador’s Decision merely lists 15 other treaties and declarations that mention asylum while not offering direct legal support for the Decision. They are the following:

All four of the countries involved in the current dispute are parties to the Convention Relating to the Status of Refugees, which is the major general treaty on refugees and asylum and which was discussed in a prior post. But it does not apply for various reasons. Assange cannot claim he has a “well-founded fear of persecution” on certain grounds in his home country of Australia, and the treaty excludes “any person with respect to whom there are serious reasons for considering that . . . [he] has committed a serious non-political crime [here, in Sweden] outside the country of refuge prior to his admission to that country as a refugee . . . .”
Ecuador was a state party to five of the other cited treaties that mentioned asylum, but they are not relevant to the current application or grant of asylum.[4]
Another four treaties mention asylum, but they are from other regions of the world, and Ecuador is not, and could not be, a state party to them.[5]
One treaty does not mention asylum at all. Instead it is a treaty on the interpretation of treaties.[6]
The last four of the 16 cited sources are declarations, not treaties, and thus are not sources of binding international legal obligations on any state.[7]

Nor is the possibility of the U.S.’ seeking or imposing the death penalty on Assange for the crime of making public secret U.S. documents “persecution” under international law. Under Article 6 (2) of the International Covenant on Civil and Political Rights, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant . . . . This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” [8]

The U.K. and Sweden as well as other countries in Europe, however, have a different opinion regarding the propriety of the death penalty after initially permitting such in Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953. This changed in 1985, when Protocol No. 6 to this treaty went into force and provided in Article 1, “The death penalty shall be abolished. No one shall be condemned to such penalty or execution.” [9]

As a result, those 46 European states that have ratified Protocol No.6, including the U.K. and Sweden, routinely deny requests to extradite suspects to the U.S. when there are true risks of the imposition of the death penalty.

Indeed, the U.S.’ extradition treaty with the European Union, to which both the U.K. and Sweden belong, expressly provides that when an offense for which extradition is sought is punishable by death under the law of the requesting state [here theoretically, the U.S.] but not under the law in the requested state [here theoretically, the U.K. or Sweden], the requested state may grant the extradition on condition that the death penalty shall not be imposed or if imposed shall not be carried out. A similar provision is included in the recent extradition treaty between the U.S. and the U.K.

Assange, therefore, cannot have a “well-founded fear” of imposition of the death penalty even if it were regarded as “persecution,” which it is not.

Perhaps Ecuador was implicitly suggesting that the 11 of the 16 listed instruments that occurred after the previously mentioned ICJ decision of 1950 changed the general international law regarding diplomatic asylum. The Decision hints at this when it said, “The lack of international convention or internal legislation of the States cannot be legitimately claimed to limit, impinge or deny the right to asylum.” But a recent treatise on public international law asserts that this type of asylum is not part of general international law as does a recent thesis at the University of Leiden, a contemporary expert and London’s Economist. Ecuador’s veiled contrary suggestion, I submit, is patently ridiculous.

The U.K. certainly disagrees with Ecuador’s legal argument.

On August 17th (the day after the grant of asylum), the U.K.’s Foreign Secretary William Hague stated that the U.K. “was disappointed” in this decision and would not allow Assange safe passage out of the country. “The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the [U.K.] is not a party to any legal instruments which require us to recognize the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established, even for those countries which do recognize diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts.” In addition, the U.K. has “painstakingly explained the extensive human rights safeguards built into our law.”

These points were reiterated at the August 24th OAS meeting by the UK’s Permanent Observer, Philip Barton. He said the U.K. was not party to the Inter-American Convention on Diplomatic Asylum, and “there is no legal basis for the [U.K.] to meet the request of . . . Ecuador to grant safe passage for Mr. Assange out of the [U.K.].” He also said the U.K. has advised Ecuador about “the safeguards in place under the European Convention on Human Rights, international law, European Union law and [U.K.] law [that] fully address the concerns raised by Mr. Assange and by . . . Ecuador.”

Observer Barton further told the OAS meeting representatives that the purported concern about Assange’s human rights upon extradition to Sweden was “completely unfounded,” and an “argument to this effect was comprehensively rejected by the courts in the UK.” The U.K. and Swedish courts “robustly implement and adhere to the highest standards of human rights protection.”

In any event, the Decision’s legal argument, in my opinion, is not persuasive.

The Relevant Facts

The Decision starts its statement of the relevant facts with the noncontroversial: Assange is a communication professional with international awards for his struggle for freedom of expression, freedom of press and human rights, and through WikLeaks he has publicized documents from different sources. The Decision then provides more contentious, and I think unfounded, assertions.

According to Ecuador’s Decision, the U.S. and other countries that produced these documents have threatened retaliation risking Assange’s safety, integrity and even his life and have refused to provide guarantees to protect his life and safety. Extradition of Assange to a third country outside the European Union [the U.S.] is feasible without the proper guarantees for his safety and personal integrity. If extradited to the U.S., Assange would not have a fair trial; he could be judged by a special or military court; and he probably would receive cruel and demeaning treatment and be condemned to a life sentence or the death penalty.

Other than stating the U.S. is not a party to the Inter-American Convention on Diplomatic Asylum and does not recognize the concept of diplomatic asylum, the U.S. has declined to comment on the merits of the dispute and has urged trilateral negotiations by the parties to resolve the dispute. There, however, is no credible evidence for Assange and Ecuador’s impugning the independence of fairness of the U.S. federal judicial system, and any risk of capital punishment in the U.S. would be eliminated by the European practice and law forbidding extradition to other countries where there is a risk of such punishment.

Any accusation against the independence and honesty of the U.K. courts is absurd. Indeed, Assange in 2011-2012 challenged his extradition to Sweden on the merits in the U.K. courts (magistrate’s court, High Court and Supreme Court) without any objection to the procedural rights he was accorded.

Ecuador’s Decision also has harsh allegations against the Swedish prosecutor’s office with respect to its ongoing investigation of Assange on criminal sexual charges. That office allegedly has prevented Assange from the total exercise of his legitimate right to defense to criminal charges. His procedural rights allegedly have been infringed during that investigation. Pretrial detention of Assange in Sweden would facilitate his extradition to a third country, i.e., the U.S.

Sweden has strongly rejected these charges. It did so at meetings with Ecuador’s Ambassador in Stockholm shortly after June 19th (when Assange arrived at the Ecuadorian Embassy in London) and on August 16th. This rebuttal, in part, emphasized that in the last months of 2010 Assange challenged the European Arrest Warrant on the merits in Swedish courts (district court, court of appeal and Supreme Court) without any objection to the procedural protections of Swedish law.

In addition, after Assange was in temporary “residence” at the Ecuadorian Embassy, Sweden rejected his offer to be interrogated at that Embassy with respect to the Swedish investigation. Sweden did so because it wanted to confront Assange in Sweden with the existing evidence and conduct supplementary interviews of others depending upon what Assange had to say. The Swedish prosecutors also wanted him in their country to assure his presence at any criminal trial that might result from the investigation, as required by their law.

At the OAS meeting on August 24th, a Swedish diplomat stressed that Sweden had an independent judiciary that needed to proceed with investigation of Assange’s alleged sexual offenses. There had been no request to Sweden for extradition to a third country, she added, but European and Swedish law prohibits extradition when there is a risk of capital punishment.

The Decision also says the governments of the U.K., Sweden and the U.S. will “not respect the international conventions and treaties and would give priority to internal laws of secondary hierarchy, contravening explicit norms of universal application.” It is difficult to understand exactly what Ecuador means by this allegation. If it means that the U.K., Sweden and the U.S. do not agree with Ecuador’s legal argument, then that is certainly correct.

In summary, there is no credible evidence to support the extreme accusations against the judicial systems of the U.K., Sweden and the U.S.

Conclusion

Ecuador’s granting of asylum to Assange, in my opinion, is wrong on the law and wrong on the facts. Indeed, there is speculation in the press that the real reason for President Correa’s deciding to grant “asylum” in this case was to enhance his own political standing in his own country for next year’s presidential election.

Other than litigating these issues before the International Court of Justice or arbitrating or mediating them before a neutral third party, the only other peaceful way to resolve this dispute is for the parties to do so through diplomatic negotiations, as recommended by the OAS on August 24th.

——————————————————-

[1] According to the Decision, Assange’s written asylum application was submitted on June 19th with a June 25th written supplement, but neither of these documents is publicly available. This secrecy seems more than ironic for the self-proclaimed advocate for public transparency and disclosure. It also is ironic for Ecuadorian President Correa, who is known for his hostility to the press, to be the defender and protector of Assange.

[2] A prior post set forth the background for this dispute, and another post discussed the issue of the inviolability of the Ecuadorian Embassy in London.

[3] The other 13 parties to the Inter-American Convention on Diplomatic Asylum are Argentina, Brazil, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.

[4] U.N. Charter, Art. 1(3) (one of U.N. purposes is achieving “universal cooperation in . . . promoting and encouraging respect for human rights”); American Convention on Human Rights, Art. 22.7 (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”); Inter-American Convention for Extradition (no extradition when “the person sought has been tried or sentenced or is to be tried before an extraordinary or ad hoc tribunal of the requesting State” (Art. 4.3) or when “the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons” (Art. 4.4) or when “persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons” (Art. 4.5): and Convention may not “be interpreted as a limitation on the right of asylum when its exercise is appropriate” (Art. 6)); Inter-American Convention on Territorial Asylum, (“Every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable” (Art. I); this includes persons who “are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offenses” (Art. II); no “obligation to surrender to another State, or to expel from its own territory, persons persecuted for political reasons or offenses” (Art. III); no extradition of persons “sought for political offenses, or for common offenses committed for political ends, or when extradition is solicited for predominantly political motives” (Art. IV)); Geneva Convention [IV] Relative to Protection of Civilian Persons in Time of War, Art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”).

[5] African Charter on Human and Peoples’ Rights, Art. 12.3 (“Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions”); European Union Charter of Fundamental Rights, Art. 46 (“Every citizen of the [European] Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as t he nationals of that Member State”); European Convention on the Suppression of Terrorism, Art. 5 (“no obligation to extradite if the requested State has substantial grounds for believing that the request for extradition . . . has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”); European Extradition Treaty, Art. 3.1 (“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence”).

[6] Vienna Convention on the Law of Treaties, Art. 53 (“treaty is void if . . . it conflicts with a peremptory norm of general international law . . . . [i.e.,] a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”), Art. 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”), Art. 66(b) (A party to a “dispute concerning the application or the interpretation of article 53 or 64 may . . .submit it to the International Court of Justice for a decision”).

[7] Universal Declaration of Human Rights, Art. 14 (“Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the [U.N.]”);U.N. Declaration on Territorial Asylum (recommends territorial asylum practices include asylum for “persons struggling against colonialism” (Art. 1.1) , non-rejection of persons at the frontier and non-explusion to state where person may be subjected to persecution (Art. 3.1)); American Declaration of the Rights and Duties of Man, Art. 27 (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”); Cartegena Declaration (at 1984 meeting to discuss protection of refugees in Central America, Mexico & Panama, reiteration of “importance of non-refoulement (including the prohibition of rejection at the frontier)”).

[8] In addition, Article 1 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that “torture” “does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.”

[9] It should be noted that Protocol No. 6 had an exception that allowed the death penalty in times of war, but in 1988, Protocol No. 13 to the European Human Rights Convention eliminated this exception. Both the U.K. and Sweden have ratified Protocol No. 13.

Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: The Inviolability of Ecuador’s Embassy in London

As noted in a prior post, on August 24, 2012, the Organization of American States (OAS) held a full-day Meeting of Consultation of Foreign Ministers at its headquarters in Washington, D.C.

It was called at the request of the government of Ecuador to discuss certain issues in its dispute with the United Kingdom (and Sweden) regarding Julian Assange.[1] The central issue was the “inviolability” of Ecuador’s Embassy in London or its not being subjected to violation or invasion by U.K. officials.[2]

All of the states represented at the meeting, including observers representing the U.K. and Sweden, agreed that such inviolability has been a long-established practice and principle of international law, as expressed in the Vienna Convention on Diplomatic Relations, to which 187 of the 193 U.N. members are parties. Its Article 22 states:

“1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”

Mention was also made at the meeting to the strong endorsement of this principle of international law by the International Court of Justice [3] and the U.N. Security Council.[4]

OASEC3 — Ecuador’s Foreign Minister, Ricardo Patino

The Foreign Minister of Ecuador, Ricardo Patino, introduced the draft resolution that reiterated this principle and called for a conclusion that the U.K. had threatened to enter the Ecuadorian Embassy in London and thus violated this principle. The draft resolution also would have the meeting endorse Ecuador’s granting of asylum to Assange.

OASUK2 — U.K. Permanent Observer to OAS, Philip Barton

Toward the end of the meeting, the U.K.’s observer, Philip Barton, responded to Ecuador’s charges. He stressed the U.K.’s “absolute commitment to the principles of the Vienna Convention” and to its “always act[ing] in full compliance with [its] provisions.” He also stated that “at no time has the UK government made any threat against the Embassy of Ecuador.”

On the other hand, Barton implied, there obviously could be situations where the host country (or receiving state) will need to enter the diplomatic premises of other countries. This is alluded to in the obligations imposed on the sending State (here, Ecuador) in Article 41 of the Vienna Convention. That Article states, in part:

“1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .

3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Barton added, “The rights of diplomatic missions conferred by the Vienna Convention comes with responsibilities. Article 41 of the Vienna Convention sets out the obligations of diplomatic missions to respect the laws and regulations of the receiving State [here, the U.K.]. And these include the duty not to impede the due legal process of that State.” Ecuador, however, according to the U.K. observer, had improperly failed to respect U.K. laws and regulations and impeded the due process and legal obligations of the U.K. to extradite Assange to Sweden by the Embassy’s providing refuge to Assange, who was a “fugitive from justice” and thereby denying “the women who have made serious allegations against him the right to have their own voices heard.”

These concerns by the U.K. were echoed by the representatives of Canada, Panama and St. Lucia.

This Vienna Convention and its parallel Vienna Convention on Consular Relations were mentioned in the preamble of the U.K.’s 1987 Diplomatic and Consular Premises Act, one of whose stated purposes was to “give certain [of their]provisions . . . the force of law in the [U.K.].”

Presumably the concerns expressed in Article 41 of the Vienna Convention were behind this U.K. statute, which was referenced in its August 15th communication to Ecuador and which in section 1(3) gives the government the power to withdraw recognition from diplomatic premises and thereby permit police to enter and arrest people on the premises. That section states, in part:

“In no case is land to be regarded as a state’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the secretary of state has given that state consent under this section in relation to it; and if —

(a) a state ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or
(b) the secretary of state withdraws his acceptance or consent in relation to land, ii thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.”

However, the U.K. Act of 1987 goes on to state in section 1(4), “The secretary of state shall only give or withdraw consent or withdraw acceptance if he is satisfied that to do so is permissible under international law,” while section 1(5) states that in deciding whether to withdraw consent, the minister “shall have regard to all material considerations, and in particular, but without prejudice to the generality of this subsection —

(a) to the safety of the public;
(b) to national security; and
(c) to town and country planning.”

These U.K. statutory considerations or limitations were highlighted at the OAS meeting by the representative of St. Vincent and the Grenadines, a former British colony and a self-proclaimed “proud” member of the British Commonwealth of Nations. He said these provisions should bar the U.K. from withdrawing its consent to the presence of the Ecuadorian embassy and thereby permitting entry of British police because there could be no threat by Assange to the U.K. public safety in light of his having been free on bail in the country for a long period of time, because there is no basis for alleging he is a threat to U.K. national security and because there was no issue of U.K. town and country planning. A similar opinion on the non-applicability of this statute to the current situation was expressed in the press by an English attorney.

These provisions of the Vienna Convention and the U.K. statute were the legal framework for the discussion at the OAS meeting as to whether the U.K. in its August 15th letter to Ecuador or otherwise had threatened the inviolability of the Ecuadorian Embassy over its providing refuge to Assange. As mentioned above, Ecuador strongly asserted that there had been such a threat while the U.K. strongly disagreed with support from the U.S., Canada and Panama. The purpose of the meeting, however, was not to make findings of fact and conclusions of law on this and other issues.

Instead, at the conclusion of the meeting, the OAS member states unanimously adopted the following resolution:

“1. To reiterate the full validity of the principles and standards that govern diplomatic relations among states, especially those that concern full respect for the inviolability of the premises of diplomatic missions and consular offices, as recognized in the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.
2. To reaffirm that those principles and standards constitute fundamental rules for ensuring the peaceful coexistence of all the countries that comprise the international community.
3. To reiterate the full validity of the principles enshrined in international law, such as respect for sovereignty, faithful compliance with international treaties, peaceful settlement of disputes, peaceful coexistence among states, and rejection of the threat or use of force to settle disputes.
4. To reject any attempt that might put at risk the inviolability of the premises of diplomatic missions, to reiterate the obligation / of all states not to invoke provisions of their domestic law to justify noncompliance with their international obligations, and, in this context, to express its solidarity and support for the Government of the Republic of Ecuador.
5.To urge the Governments of Ecuador and the United Kingdom of Great Britain and Northern Ireland to continue to engage in dialogue in order to settle their current differences in accordance with international law, taking into account the statements made recently by authorities of both governments.
6. To entrust the Permanent Council [of the OAS]with the due follow-up of this matter.”

In so doing, the meeting refused to adopt other parts of Ecuador’s draft resolution that mentioned and quoted the August 15th U.K. communication and that stated that there had been a threat by the U.K. on the inviolability of the Ecuadorian Embassy in London.[5]

On August 25th (the day after the OAS meeting), Ecuador’s government announced it had received “a communication from the British Foreign Office which said that there was no threat to enter the embassy.” In addition, Ecuador’s President Rafael Correa said in his weekly media address on Saturday, “We consider this unfortunate incident over, after a grave diplomatic error by the British in which they said they would enter our embassy.”

In fact, before, and at, the OAS meeting the U.K. had been reiterating that it had not and was not threatening the inviolability of the Ecuadorian Embassy. Ecuador’s sudden reversal on this issue suggests that all along it intentionally had exaggerated the U.K. August 15th communication in order to make a big splash in the international arena. Now I imagine some of the other Latin American foreign ministries will believe they were hoodwinked by Ecuador into agreeing to the extraordinary OAS meeting and will be more skeptical of any future Ecuadorian cries of alarm.

[1] I watched and listened to most of the live streaming video of this meeting, which is now archived on the OAS website. A press release and articles about the meeting are available in the OAS, the New York Times and the Guardian. The photographs of the meeting in this post are from the OAS website. Under Article 61 of the OAS Charter, such meetings of the foreign ministers are “to be held in order to consider problems of an urgent nature and of common interest to the American States,” and this was only the 27th such meeting in the 64-year history of the OAS.

[2] Also discussed at the meeting was Ecuador’s grant of asylum to Assange, a subject which will be addressed in a subsequent post.

[3] U.S.A. v. Iran, ICJ Reports 1980 3 (I.C.J. May 24, 1980), http://www.icj-cij.org/docket/files/64/6291.pdf.

[4] U.N. Sec. Council Res. 457 (Dec. 4, 1979) (with respect to the Iranian takeover of the U.S. Embassy, the Council reaffirms “the solemn obligation of all States parties to the Vienna Convention on Diplomatic Relations . . . to respect the inviolability of diplomatic personnel and the premises of their missions”), http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/370/75/IMG/NR037075.pdf?OpenElement; UN Security Council strongly condemns attacks against British Embassy in Tehran, (Nov. 30, 2011), http://english.peopledaily.com.cn/90777/7661653.html (Council “condemned in the strongest terms the [Iranian] attacks against [U.K.’s] embassy in Tehran, . . . which resulted in intrusions into diplomatic and consular premises causing serious damage;” the Council emphasized “the fundamental principle of the inviolability of diplomatic and consular premises, and the obligations on host governments, including under the [two Vienna Conventions mentioned here], to take all appropriate steps to protect diplomatic and consular premises against any intrusion or damage”).

[5] The meeting also refused to adopt Ecuador’s draft resolution’s endorsement of Ecuador’s grant of asylum to Assange.

Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: Background

Assange@Embassy2 — Assange @ Ecuadorian Embassy

EcuadorianEmbassy — Ecuadorian Embassy, London

On August 16, 2012, the Government of Ecuador granted the petition for asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom.[1]

Assange, of course, is the individual behind WikiLeaks, the international, online, self-described not-for-profit organization publishing submissions of private, secret, and classified media from anonymous news sources, news leaks and whistleblowers. In 2010 it obtained many secret U.S. documents and released them to the world through various media outlets.[2] No U.S. criminal charges have been publicly filed against Assange with respect to the releases of these U.S. government documents, but he fears that such charges secretly have been filed or will be filed and that such charges may seek life imprisonment or the death penalty.[3]

In August 2010 Assange was visiting Sweden, where he allegedly had certain sexual encounters with two Swedish women, who subsequently filed some kind of complaint about these encounters with Swedish authorities. As a result, these authorities have been investigating whether Assange committed rape or some other kind of sexual assault on these women. To pursue that investigation the authorities obtained an European Arrest Warrant to extradite Assange to Sweden for questioning.

In December 2010 Assange, then in Britain, learned about the European Arrest Warrant and voluntarily went to a British police station to advise them of his whereabouts. He immediately was arrested and taken into custody. After a short stay in prison, Assange was freed on bail of £340,000 (nearly $540,000), of which £ 200,000 was deposited with the court, plus his being confined to a specific site in Norfolk, England, fitted with an electronic tag and ordered to report to police daily.

Assange then went to the U.K. courts to challenge his extradition to Sweden. In February 2011, however, a U.K. court upheld the Swedish request, which was affirmed nine months later (November) by the U.K.’s High Court and in May 2012 by the U.K.’s Supreme Court (5 to 2). In addition, that Supreme Court on June 14th denied Assange’s request for a rehearing and ordered that he be extradited to Sweden by July 7th.

Thereafter (on June 19th) Assange somehow violated the terms of his bail and managed secretly to enter the Ecuadorian Embassy in London, where he filed his claim for asylum.

In the roughly two months between June 19th and Ecuador’s August 16th’s granting of asylum, the governments of Ecuador and the U.K. apparently had private diplomatic exchanges and public sparring over this situation. Especially significant in light of later developments were the following incidents:

On August 15th, the U.K. Embassy in Quito apparently delivered a letter to Ecuador’s Ministry of Foreign Affairs that said: “You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the Embassy.” The letter purportedly also stated, “We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention [on Diplomatic Relations] and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.” The latter added, “”We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr. Assange’s presence in your premises, this is an open option for us.”

The Ecuadorian government immediately and publicly disclosed some of the contents of the August 15th letter and characterized the statements just quoted as “threats against the sovereignty of the Ecuadorean embassy” and as “a clear breach of international law and the protocols set out in the Vienna Convention [on Diplomatic Relations].”

In response, the U.K. Foreign Office stated, “The UK has a legal obligation to extradite Mr. Assange to Sweden to face questioning over allegations of sexual offences and we remain determined to fulfill this obligation.” Therefore, “it is only right that we give Ecuador the full picture. Throughout this process we have drawn the Ecuadorians’ attention to relevant provisions of our law, whether, for example, the extensive human rights safeguards in our extradition procedures, or the legal status of diplomatic premises in the UK.” Moreover, the U.K. stated its continued commitment “to reaching a mutually acceptable solution.”

OASbldg — OAS Building, Washington, D.C.

On August 24th, at Ecuador’s request, the Organization of American States (OAS) held an extraordinary Meeting of Consultation of Ministers of Foreign Affairs, to discuss the dispute. This meeting concluded with a unanimous resolution focused on the inviolability of diplomatic missions under international law. A subsequent post will review this OAS meeting and the legal issue of the status of diplomatic missions in host countries.

Another subsequent post will examine the merits of the Assange asylum claim.

In the meantime, Assange continues to be a full-time “guest” at the Ecuadorian Embassy in London.

[1] This post is drawn from caches of articles about all of these events in the New York Times and the Guardian.

[2] By happenstance, as reported in a prior post, some of the U.S. government documents released by WikiLeaks were cables from the then U.S. Ambassador to Ecuador, Heather Hodges, to the U.S. State Department in Washington, D.C. asserting that there were multiple reports of illegal activities by Ecuador’s national police chief and that Ecuador’s President Correa might use these activities to manipulate the police chief. After these cables became public, President Correa called these statements “unacceptable, malicious and imprudent” and expelled Hodges. In retaliation, the U.S. expelled the Ecuadorian Ambassador to the U.S., Luis Gallagos. Both Hodges and Gallagos, in my opinion, are honorable professional diplomats, and neither one did anything wrong.

[3] A U.S. national and member of the U.S. Armed Forces, Bradley Manning, allegedly participated in obtaining these documents for WikiLeaks, and he currently is in U.S. custody facing criminal charges for that alleged conduct. Discussion of the many issues relating to his case is beyond the scope of this post.