U.N. Human Rights Council Members Call for Venezuela To Engage with Political Opposition   

At the September 29 meeting of the United Nations Human Rights Council, Paraguay led 29 countries, including the U.S. and the U.K., in presenting a statement that reiterated their “commitment to assist, within the framework of international law, to ensuring that Venezuelans fully enjoyed their civil, political, economic, social, and cultural rights.  The disposition of the Holy See to contribute to facilitating dialogue was welcomed.  Concern was expressed at reports of repression of the voices of the opposition and excessive force used against peaceful protesters and journalists.” The statement also urged all parties in Venezuela to hold a “timely and effective dialogue,” either directly or via facilitators, “to preserve peace and safety, to ensure the full respect of human rights, due process, the separation of powers and the consolidation of a representative democracy” and to release political prisoners.[1]

Not surprisingly Venezuela opposed this statement. It alleged that “the statement [was] authored by the United States . . . [and] constituted a brazen interference into the internal affairs of Venezuela, which had been chosen as a new imperial target.”

Cuba, an ally of Venezuela and on behalf of another group of countries, opposed the statement and instead “called for respect for the sovereignty of Venezuela, in recognition of the right to choose one’s own political system, and expressed support for the Government of Venezuela in ensuring the democratic institutions of the country’s functioning.  An appeal was made to all responsible members of the international community to refrain from manifestations of interference in the internal affairs of Venezuela.” In addition, Cuba alleged that “many countries were meddling into the internal affairs of Venezuela, and Cuba would continue to oppose such attempts and to support the Constitutional President Nicolas Maduro.”

Another opponent, Nicaragua, speaking on behalf of the Bolivarian Alliance for the Peoples of Our America, asserted, “Venezuela had been a victim of an unprecedented media campaign, which aimed to disregard and hide the achievements of the Bolivarian revolution.  Those who promoted that campaign used human rights in a selective and political manner as an excuse to create conditions to destabilize the participative democracy in Venezuela.  The Group demanded full respect for Venezuela’s sovereignty.”

Two other countries spoke on the Venezuela issue. Bolivia said Venezuela “had shown the world its ability to solve differences in compliance with the principle of sovereignty” and “warned against economic sabotage of Venezuela and guarded against violence and destabilization of that country.” Ecuador encouraged the “dialogue [already] underway in Venezuela,” which “should sovereignly and freely arrive at a solution.”

At the opening of this session of the Council on September 13, U.N. High Commissioner for Human Rights Zeid Ra’ad al Hussein delivered his global update on human rights that included the following lengthy comments about Venezuela:

  • “For the past two and a half years, Venezuela has refused even to issue a visa to my Regional Representative. Its comprehensive denial of access to my staff is particularly shocking in the light of our acute concerns regarding allegations of repression of opposition voices and civil society groups; arbitrary arrests; excessive use of force against peaceful protests; the erosion of independence of rule of law institutions; and a dramatic decline in enjoyment of economic and social rights, with increasingly widespread hunger and sharply deteriorating health-care. My Office will continue to follow the situation in the country very closely, and we will state our concerns for the human rights of Venezuela’s people at every opportunity. Respect for international human rights norms can create a narrow path upon which the Government and the opposition can both tread, to address and resolve peacefully the country’s current challenges – particularly through meaningful dialogue, respecting the rule of the law and the Constitution. My Office stands ready to assist in addressing the current human rights challenges, and I thank the Secretary-General of the Organization of American States for recommending that Venezuela work with my Office on a Truth Commission, which could indeed offer the people an important voice.”[2]

Any casual observer from the U.S. and elsewhere should know that Venezuela has been experiencing exceedingly difficult economic and political problems and that most of its people are desperate for food and other essentials. Its government’s attempt to gain international support by calling and hosting a sparsely attended Summit of the Non-Aligned Movement, as discussed in a prior post, was an embarrassing failure.

=========================================

[1] U.N. Hum. Rts. Council, Human Rights Council holds general debate on technical assistance and capacity building in the field of human rights (Sept. 29, 2016); Reuters, Venezuela Urged at U.N. to Seek National Dialogue, Free Inmates, N.Y. Times (Sept. 29, 2016).

[2] Zeid’s global human rights update, U.N. Hum. Rts. Council (Sept. 13, 2016).

New York Times Reiterates Call for Ending U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On December 15th a New York Times editorial, “Cuba’s Economy at a Crossroads,” called for the U.S. to end its designation of Cuba as a “State Sponsor of Terrorism.” This recommendation first was made on October 11th in the Times’ initial editorial in its series “Cuba: A New Start.”

Summary of the Editorial

Now, however, ending the designation is seen as a way the U.S. could assist a struggling Cuban economy. Surprisingly this editorial does not mention ending the U.S. embargo of the island as another, and more important, way the Cuban economy could be aided by the U.S. Instead the Times makes a vague suggestion of the U.S.’ “relaxing sanctions through executive authority and working with the growing number of lawmakers who want to expand business with Cuba.”

Most of the editorial is devoted to discussing the many problems of the Cuban economy.

The 1959 Cuban Revolution’s “[c]ommunism brought an ever more anemic and backward economy, one propped up largely by Moscow. But after the Soviet Union collapsed in 1991, so did Cuba’s economy.” After that collapse, Cuba found Venezuela as a “new benefactor” that provided “heavily subsidized oil” to the island, but now that country’s “worsening economic and political crisis” threatens that subsidy.

Low wages and poor prospects have forced many Cubans to leave the island “in recent years in search of a better life.” This could be accelerated by the elimination of the country’s two-currency system, which the government plans to do.

“The country’s birthrate is declining, while its elderly are living longer.” Couple these facts with the exodus of working-age citizens presents Cuba with an enormous demographic challenge.

“The agricultural sector remains stymied by outdated technology and byzantine policies. A foreign investment law Cuba’s National Assembly approved in March has yet to deliver a single deal.”

Cuba’s leaders have adopted various measures to reform the economy, but the “pace [of economic reform] has been halting, with plenty of backtracking from the government’s old guard.”

Yet these reforms have created a “small but growing entrepreneurial class.” All of them “struggle with the [Cuban] bureaucracy, since they are unable to import legally items as basic as mattresses and pillows. Bringing items from the United States is onerous and complicated by American sanctions.” Changes in U.S. policies could make “it easier for Americans to provide start up-capital for independent small businesses. Doing that would empower Cuban-Americans to play a more robust role in the island’s economic transformation. More significantly, it would gradually erode the Cuban government’s ability to blame Washington for the shortcomings of an economy that is failing its citizens largely as a result of its own policies.”

Continuing U.S. antagonism, on the other hand, “is only helping the old guard.”

Reactions

I concur in the Times’ call for ending the U.S. designation of Cuba as a “State Sponsor of Terrorism.” It is an unfounded, stupid, absurd action that is only counter-productive as has been argued in posts in 2010, 2011, 2012 (with supplement), 2013 and 2014.

But I do not see ending this policy as the linchpin for the U.S.’ helping the Cuban economy. Instead it is ending the embargo, which the Times on October 11th recommended, but which is not mentioned in the latest editorial.

Moreover, I think the latest editorial understates the troubled state of the Cuban economy even though a prior post expressed optimism about Cuba’s attracting $8.0 billion of foreign investment for the Mariel port’s industrial park now under construction. Further reflection raises the following points that question that optimism:

  • First, the Cuban economy by itself is obviously unable to afford to purchase the many commodities that presumably will be unloaded from the new super-container ships that will be able to cross the expanded Panama Canal.
  • Second, for the commodities to go elsewhere will require the unloading of the super-container ships at Mariel and then reloading those commodities in smaller container vessels to go to the major countries on the northern and eastern sides of the South American continent: Venezuela, Brazil, Argentina, Uruguay and Paraguay. How big are those markets?
  • Third, presumably the major Latin American countries with coasts on the Pacific Ocean like Mexico, El Salvador, Costa Rica, Colombia, Ecuador, Peru and Chile will not be markets for commodities transshipped from Mariel.
  • Fourth, unless there is U.S.-Cuba reconciliation, the largest potential market for such transshipment, the U.S., presumably would not be importing commodities from the Mariel port.

Similar skepticism about Cuba’s ability to attract foreign investment for other reasons have been voiced by foreign investment experts. The Inter-American Dialogue, which is the leading U.S. center for policy analysis, exchange, and communication on Western Hemisphere affairs, has provided the following four such skeptics.

Matthew Aho, consultant in the corporate practice group of Akerman Senterfitt in New York, said, “While the [Cuban] rhetorical message was positive: ‘Cuba is open for business,’ little has changed to improve Cuba’s general investment climate, and foreign companies there report few changes to their dealings with Cuban counterparts. In fact, many businesses say the same bottlenecks, delays and idiosyncrasies that have long frustrated investors have been exacerbated recently by growing wariness among major banks to handle legitimate Cuba-related transactions.” He added, “While Cuba clearly has potential, most mainstream investors will steer clear until the Cubans define clearer rules of the road and improve their track record with new and existing partners.”

According to José R. Cárdenas, director of Visión Américas in Washington, “Eight billion dollars is a wildly exaggerated figure that Cuba has no chance of ever realizing. [Foreign investors] demand such things as transparency, legal guarantees and predictability, which the Cuban government is incapable of providing. Witness the widely publicized ordeals of Canadian businessman Cy Tokmakjian and Englishman Stephen Purvis, among others, who wound up in incarcerated in Cuba’s Kafkaesque legal system for unclear reasons. There may as well be a ring of flashing red lights surrounding the island warning foreign investors of the exorbitant risks to doing business in Cuba. . . . Any progressing economy needs the freedom to innovate, take risks and guarantee that one will reap the benefits of their efforts. Cuba, like China, cannot ultimately offer such conditions. As long as the primacy of the Communist Party remains the Cuban lodestar, the country will continue to head into an uncertain future.”

Scott J. Morgenstern, associate professor and director of the Center for Latin American Studies at the University of Pittsburgh also was skeptical. He said, “Cuba must create new opportunities for private employment. Thus, while the reforms are making some investment possible, investors will not find wide-open markets and streamlined bureaucratic procedures. In many areas, there are severe limits concerning where people can invest and the types of businesses they can open. Currency convertibility will also be a critical issue for any business; currently there are two currencies, only one of which is convertible. Foreigners, formally, are only allowed to use the convertible currency, and the official exchange rates distort the currency values. Reforms are promised, but the uncertainty will likely discourage some investors. One other important concern for investors is the size of the Cuban domestic market. The country is attracting several million tourists per year, and many Cubans do receive financial support from abroad, but purchasing power is still limited.”

Carlos A. Saladrigas, chairman of the Cuba Study Group and Regis HR Group offered these comments. “Cuba’s economic reforms so far have been too little, too late and too timid to result in significant economic performance . . . . [Cuba’s] continuing economic mismanagement, the numerous distortions in Cuba’s economic and political systems, a stubborn ideology, an obtuse and weighty bureaucracy and the fears of change harbored by Cuba’s leaders all play even more heavily in keeping Cuba’s economy from reaching its full potential. Cuban leaders continue to expect ‘silver bullet solutions’ to their economic woes. The port of Mariel is a perfect example. Pinning hopes of an economic recovery on mega-projects or a few foreign investments take attention away from the core distortions and inefficiencies plaguing the entire domestic economy. Fear of change and ideological rigidity can be clearly seen in Cuba’s eight-month-old foreign investment law. Since the law was passed, Cuban authorities still don’t have any significant major investment projects to report. The foreign investment law was a great missed opportunity to really send a message to the world, and specifically to the United States, that Cuba is ready for business. Such a message would have added great momentum to the anti-embargo movement, which is building momentum in the United States and in Miami. Yet, they chose more of the same, leaving arbitrariness, lack of clarity and burdensome regulations.”

Similar skeptical opinions about the Cuban efforts to develop the Mariel port were expressed by Richard Feinberg, the Brookings Institution’s Nonresident Senior Fellow, Foreign Policy, Latin American Initiative. He said, “the industrial sites are not yet fully leveled nor are they hooked up to basic infrastructure! But the problems run much deeper: previous Cuban efforts to launch free trade zones floundered on the requirement of hiring expensive labor through government employment agencies, and the continuing closure of the most logical export market, the nearby [U.S.]. Cuba’s newly revised foreign investment laws appear to allow investors greater flexibility in setting wage scales, but this potentially promising reform, and its impact on labor costs, remains to be fully tested in practice.”

Finally, Miguel Coyula, a retired Cuban government official on a trip to Washington before returning home to the island, stated ““Mariel is the most promoted place in Cuba, with special development zones for investors. But soon it’ll be a year after the opening of Mariel, and there is absolutely nothing. Even the container terminal in Havana was moved to Mariel to give it a sense of activity, but no one will invest there. For one thing, potential foreign investors in Mariel don’t like the fact that they can’t hire employees on their own, but instead must pay a government employment agency in dollars for that labor. The agency, in turn, pays workers in Cuban pesos. That’s because the Castro government wants to avoid creating a class of highly paid Cubans who work for foreign companies, ‘but inequalities are there whether you like it or not.’”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuban Medical Personnel

On November 17th the New York Times published another editorial in its series urging changes in U.S. policies regarding Cuba.[1] Under the title “A Cuban Brain Drain, Courtesy of the U.S.,” the editorial targets the U.S.’s Cuban Medical Professional Parole Program (CMPPP).

In order to understand the editorial, we first must look at the Cuban government’s policy and program of sending Cuban medical personnel to other countries and then at the CMPPP’s response to that Cuban program. Thereafter we will examine the Times’ rationale for its recommendation along with the arguments for the Wall Street Journal’s support of the CMPPP before we voice our conclusions.

 Cuban Policy and Program of Sending Medical Personnel Abroad

According to a 2011 article in the Wall Street Journal, since 1973 Cuba has been sending medical ‘brigades’ to foreign countries, “helping it to win friends abroad, to back ‘revolutionary’ regimes in places like Ethiopia, Angola and Nicaragua, and perhaps most importantly, to earn hard currency. [The] Communist Party newspaper Granma reported in June [2010] that Cuba had 37,041 doctors and other health workers in 77 countries. Estimates of what Cuba earns from its medical teams—revenue that Cuba’s central bank counts as ‘exports of services’—vary widely, running to as much as $8 billion a year.”

Again, according to the same Wall Street Journal article, Cuban doctors often desire such overseas assignments because they provide opportunities to earn significantly more money than at home. “When serving overseas, they get their Cuban salaries [of $25 per month], plus a $50-per-month stipend—both paid to their dependents while they’re abroad. . . . In addition, they themselves receive overseas salaries—from $150 to $1,000 a month, depending on the mission.” Many on-the-side also engage in private fee-for-service medical practice, including abortions. As a result, many of the Cubans are able to save substantial portions of their overseas income, which they often use to purchase items they could not have bought in Cuba like television sets and computers. Other desirable purchases are less expensive U.S. products that they can sell at a profit when they return to Cuba.

The Wall Street Journal article adds, “Since Hugo Chávez came to power in Venezuela in 1998, Cuba has been bartering its [medical personnel] . . . for Venezuelan oil. The U.S. Energy Department estimates that in [2010] Venezuela ships Cuba 90,000 barrels of oil a day—worth more than $2 billion a year at [then] current prices. In addition, Venezuela pays Cuba for medical teams sent to countries that Mr. Chávez considered part of Venezuela’s “Bolivarian” sphere: Bolivia, Honduras, Ecuador and Paraguay.”

As a result of this quid pro quo, Cuba has over 10,000 medical personnel serving in Venezuela. According to the Los Angeles Times just this past September, the working conditions in that country for the Cubans are horrible. Many of the clinics lack air-conditioning and functioning essential medical equipment. The Cubans’ workload is often “crushing.” Common crime is rampant, and the Cubans are often caught in the middle of Venezuela’s civil unrest between followers of the late Hugo Chavez who want the Cubans to be there and more conservative forces that oppose the Cuban presence. As a result, as we will see below in the discussion of CMPPP, many Cuban medical personnel serving in Venezuela have chosen to defect to the U.S. under CMPP.

The Times editorial says, “This year, according to the state-run newspaper Granma, the government expects to make $8.2 billion from its medical workers overseas. The vast majority, just under 46,000, are posted in Latin America and the Caribbean. A few thousand are in 32 African countries.”[2]

Facts Regarding CMPPP

A U.S. Department of State website says this program was announced on August 11, 2006, “by the Department of Homeland Security in conjunction with the Department of State, [as a program] that . . . would allow Cuban medical personnel conscripted to study or work in a third country under the direction of the Cuban government to enter the United States.”[3]

Under the program “Cuban Medical Professionals” (i.e., health-care providers such as doctors, nurses, paramedics, physical therapists, lab technicians and sports trainers) are eligible if they meet the following criteria: (1) Cuban nationality or citizenship, (2) medical professional currently conscripted to study or work in a third country under the direction of the Government of Cuba, and (3) not otherwise ineligible for entry into the U.S. Spouses and/or minor children are also eligible for such parole.

According to the Times’ editorial and the Wall Street Journal, the program “was the brainchild of Cuban-born Emilio González,” a former U.S. Army colonel, the director of the U.S. Citizen & Immigration Services from 2006 to 2008 and a “staunchly anti-Castro exile.” “He has characterized Cuba’s policy of sending doctors and other health workers abroad as ‘state-sponsored human trafficking.’” The Cuban doctors, he says, work directly for health authorities in other countries and have no say in their assignments.

The Times’ editorial includes the following table showing the official numbers of CMPPP visas that have been issued:

Fiscal Year Number
2006      11
2007    781
2008    293
2009    519
2010    548
2011    384
2012    681
2013    995
2014 1,278
TOTAL 5,490

Given the large numbers of Cuban medical personnel that are sent to Venezuela to help pay for Cuba’s importation of Venezuelan oil, it is not surprising that the largest number of defections of Cubans has been from that country. As of the end of FY 2010, according to the previously mentioned Wall Street Journal article, the total defections by country were the following: Venezuela, 824; Colombia, 291; Bolivia, 60; Dominican Republic, 30; Ecuador, 28; Guatemala, 25; Brazil, 21; Namibia, 21; Peru, 19; and Guyana, 14.

Apparently the largest number of defections from Venezuela continues in light of the previously mentioned difficult working conditions. For FY 2011-2014 there were an additional 1,181 Cuban defections from Venezuela to the U.S. under CMPPP for a grand total of 2,005.[4] In addition, many of the Cubans in that country fear being seen going to the U.S. embassy in Caracas and instead fly to neighboring Colombia and apply there for CMPPP.

Another obvious reason for such defections under CMPP is the desire of the Cubans to earn more income in the U.S. I have met a Cuban neurologist whose wife was a skilled nurse, but who worked as a waitress in a nearby resort in order to earn more income and obtain tips in hard currencies. Like almost all Cubans, they did not earn enough to afford to have their own automobile and told me about Cuban television announcements that people who had an automobile or other vehicle had a special obligation to give rides to anyone in a white coat. Later while on a mission in Central America they defected to the U.S. under CMPPP. At least as I heard their story, they were merely looking for a way to improve their lives financially.

The Times’ Reasons for Ending CMPPP

The editorial starts by noting, “Secretary of State John Kerry and the American ambassador to the United Nations, Samantha Power, have praised the work of Cuban doctors dispatched to treat Ebola patients in West Africa. The Centers for Disease Control and Prevention recently sent an official to a regional meeting the Cuban government convened in Havana to coordinate efforts to fight the disease. In Africa, Cuban doctors are working in American-built facilities.The epidemic has had the unexpected effect of injecting common sense into an unnecessarily poisonous relationship.”

Therefore, says the Times, “it is incongruous for the [U.S.] to value the contributions of Cuban doctors who are sent by their government to assist in international crises like the 2010 Haiti earthquake [and the current Ebola crisis in West Africa] while working to subvert that government by making defection so easy [under CMPPP].”

Moreover, says the Times, “Cuba has been using its medical corps as the nation’s main source of revenue and soft power for many years. The country has one of the highest numbers of doctors per capita in the world and offers medical scholarships to hundreds of disadvantaged international students each year, and some have been from the United States. According to Cuban government figures, more than 440,000 of the island’s 11 million citizens are employed in the health sector.”

The creation of CMPP was really motivated by a desire by anti-Castro Americans “to strike at the core of the island’s primary diplomatic tool, while embarrassing the Castro regime.” This is hardly a worthy motivation for the U.S.

For a poor country like Cuba, it makes sense to use one of its few economic strengths to bolster its foreign exchange earnings. Is this not an example of the concept of comparative advantage first formulated by classical economists Adam Smith and David Ricardo? The program also helps Cuba garner good will around the world for helping to improve the health of others. There is no legitimate reason for the U.S. to be opposed to such a program.

Adds the Times editorial, “American immigration policy should give priority to the world’s neediest refugees and persecuted people. It should not be used to exacerbate the brain drain of an adversarial nation at a time when improved relations between the two countries are a worthwhile, realistic goal.”

In 2006 when CMPPP was commenced, Cuban medical personnel could not obtain their government’s permission to leave the island for any reason, and this was asserted as one of the reasons for the U.S.’ creation of CMPPP. Last year, however, the Times says, “the Cuban government liberalized its travel policies, allowing most citizens, including dissidents, to leave the country freely. Doctors, who in the past faced stricter travel restrictions than ordinary Cubans, no longer do.”

Moreover, the Times asserts, “The Cuban government has long regarded the medical defection program as a symbol of American duplicity. It undermines Cuba’s ability to respond to humanitarian crises and does nothing to make the government in Havana more open or democratic. As long as this incoherent policy is in place, establishing a healthier relationship between the two nations will be harder.”

Finally, according to the Times, “Many medical professionals, like a growing number of Cubans, will continue to want to move to the United States in search of new opportunities, and they have every right to do so. But inviting them to defect while on overseas tours is going too far.”

The Wall Street Journal’s Reasons for Supporting CMPPP

The Wall Street Journal’s opinions on this subject are frequently uttered by its columnist on Latin American issues, Mary Anastasia O’Grady. The headline for her November 9, 2014, column makes clear her ultimate conclusion: “Cuba’s Slave Trade in Doctors.” She asserts that Cuba’s policy and practice of sending some of its medical personnel to other countries is an “extensive human-trafficking racket now being run out of Havana.”

Her argument centers on the Cuban government’s being paid for these services by other countries like Venezuela or by international organizations like WHO and the government’s paying its medical personnel only some of the Cuban government’s revenues for their services. But this ignores the fact that any corporation or other business entity that sells services, pays the people who actually provide the service less than what is collected by the corporation because there are other cost factors that have to be covered plus a profit.

While she admits that “Cuban doctors are not forced at gunpoint to become expat slaves,” she argues they “are given offers they cannot refuse.”

Conclusion

When the CMPPP was created in 1966, Cuba’s government prohibited its medical personnel from leaving the island, and one of CMPP’s original rationales was providing a legitimate way to provide them with a way to leave Cuba and go elsewhere. Now, however, the Cuban government permits such citizens to leave. This change, in this blogger’s opinion, eliminates the only arguably legitimate basis for CMPPP.

The allegation by some supporters of CMPP that Cuba’s practice of sending medical teams to other countries is a form of human trafficking is absurd, in this blogger’s opinion. The Cuban government has paid for all of the education of its medical personnel, and sending some of them to serve in foreign countries is a way for them to compensate the state for their free education. This Cuban practice is like the U.S. practice during some wars of having a selective service system and drafting some people to serve in our armed forces. Similarly we in the U.S. from time to time have debated having some kind of required national non-military service program for younger citizens without anyone arguing that it would be illegal human trafficking.

The U.S. State Department issues annual reports on the status of other countries’ human trafficking, which the reports define as “umbrella terms for the act of recruiting, harboring, transporting, providing, or obtaining a person for compelled labor or commercial sex acts through the use of force, fraud, or coercion.” This compelled service requirement uses “a number of different terms, including involuntary servitude, slavery or practices similar to slavery, debt bondage, and forced labor.”

Although the latest U.S. report on this subject unjustly casts Cuba into the report’s Tier 3 status,[5] as argued in a prior post, that report rejects the argument that Cuba is engaged in human trafficking when it sends its medical personnel to other countries. Here is what that report says on this issue:

  • “Some Cubans participating in the work missions have stated that the postings are voluntary, and positions are well paid compared to jobs within Cuba. Others have claimed that Cuban authorities have coerced them, including by withholding their passports and restricting their movement. Some medical professionals participating in the missions have been able to take advantage of U.S. visas or immigration benefits [under the CMPPP], applying for those benefits and arriving in the United States in possession of their passports—an indication that at least some medical professionals retain possession of their passports. Reports of coercion by Cuban authorities in this program do not appear to reflect a uniform government policy of coercion; however, information is lacking.”

This blogger, therefore, supports the Times’ calling for an end to CMPPP.

===================================================================

[1] Under the overall title of “Cuba: A New Start,” the prior editorials (all of which are simultaneously published in Spanish) have urged overall reconciliation between the two countries, including ending the ending of the U.S. embargo of the island, the U.S. designation of Cuba as a “State Sponsor of Terrorism” and re-establishing normal diplomatic relations; U.S.-Cuba collaboration in combatting Ebola in West Africa; recognizing changing U.S. public opinion on relations with Cuba; U.S.-Cuba exchange of prisoners; and ending USAID covert programs to promote regime change in Cuba.

[2] Another issue unrelated to CMPPP is whether or not the services provided by the Cuban medical personnel meet the professional standards of the country where they serve. A South American ophthalmologist has told this blogger that she frequently has been called to fix problems created by Cuban doctors on such missions, but this blogger has no information about any comprehensive study of this issue.

[3] The program’s stated statutory authorization is INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (permits parole of an alien into the United States for urgent humanitarian reasons or significant public benefit); 8 CFR 212.5(c) & (d) (discretionary authority for granting parole), whereby the U.S. Citizenship and Immigration Services (USCIS) may exercise its discretionary parole authority to permit eligible Cuban nationals to come to the United States.

[4] This calculation is based upon a November 9, 2014, article in Venezuela’s El Universal newspaper.

[5] Tier 3 is a U.S.-created category of countries that the U.S. asserts “do not fully comply with [a U.S. statute’s] minimum standards and are not making significant efforts to do so”.

U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable

The U.S. Alien Tort Statute (ATS) was originally enacted in 1789 and was virtually unused through 1979.[1] This changed in 1980 when the U.S. Court of Appeals for the Second Circuit in New York City decided a case, Filartiga v. Pena-Irala.[2]

Dr. Joel & Dolly Filartiga

The facts giving rise to the case arose in Paraguay in 1976. Dr. Joel Filartiga was well-known in his country as a physician, painter and opponent of his country’s dictator, General Alfredo Stroessner. In March of that year, Filartiga’s 17-year-old son Joelito was kidnapped, tortured and killed. In the middle of the night of the abduction, Joelito’s sister, Dolly, was forced out of the house to go view the mutilated body of her brother. All of these horrendous acts allegedly were committed by Americo Norberto Pena-Irala, who was a police official in the city where the Filartiga family lived.[3]

In 1978 Dolly Filartiga, who was living in New York City, learned that Pena-Irala also was in the City. With the assistance of the Center for Constitutional Rights[4] she commenced a civil lawsuit for money damages under the ATS in U.S. federal court on behalf of herself and her father against Pena-Irala. The complaint alleged that as a police inspector general in Paraguay he had kidnapped and tortured to death Joelito Filartiga in violation of international law.[5] The district court, however,  dismissed the complaint for lack of subject-matter jurisdiction.

On appeal and at the request of the Second Circuit Court of Appeals, the Carter Administration’s Department of Justice advised the court that the universal and fundamental prohibition against torture protected individuals from their own governments, that enforcement of this norm in cases under the ATS would not undermine U.S. foreign policy interests and that failure to entertain such cases could undermine U.S. credibility regarding international human rights and our ability to influence states with poor human rights records.[6]

Later the Second Circuit reversed and remanded the case for further proceedings. The Second Circuit held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” As a result, the complaint had a proper basis for federal jurisdiction under the ATS.[7]

On remand, the defendant (Pena-Irala) took no further part in the case and thus defaulted. The district court then entered judgment against him and in favor of the father for $5,210,364 and in favor of the sister for $5,175,000.[8]

This case established many firsts. The ATS supports assertions of extraterritorial jurisdiction over events happening in other countries. International human rights norms are justiciable, i.e., they can be adjudicated by U.S. federal courts. The individual as victim and perpetrator is a proper subject of international law. A robust system of accountability for foreign human rights violations under the ATS is consistent with the national interest of the U.S.[9]

Thereafter for the next 25 years Filartiga was followed by other lower federal courts without any guidance from the U.S. Supreme Court, which will be the subject of another post.


[1]  See Post: The Alien Tort Statute, 1789-1979 (Oct. 21, 2011).

[2]  Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[3] Id.; Center for Constitutional Rights, Filartiga v. Pena-Irala,http:ccrjustice.org/ourcases/pastcases; Wikipedia, Filartiga v. Pena-Irala, http://en.eikipedia.org; William Aceves, The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala (Brill; 2007); Richard Alan White, Breaking Silence: the Case That Changed the Face of Human Rights (Georgetown Univ. Press; Washington, D.C. 2004); HBO Docudrama, One Man’s War (1991).

[4] The Center for Constitutional Rights (CCR), which was founded in 1966 and based in New York city, is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.” (CCR, Mission and History, http://www.ccrjustice.org.)

[5]  See n.3 supra.

[6] Schaack, Read On! The Definitive Filartiga, IntLawGrrls (June 27, 2008); Center for Constitutional Rights, Filartiga v. Pena-Irala,http:ccrjustice.org/ourcases/pastcases

[7] Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[8]  Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y.1984). Twenty years later, the Filartigas had not collected anything on the judgment, but were still trying to do so. (Boustany, For a Sister, Court Fight Stirs Memories of Paraguay, Wash. Post (Apr. 2, 2004).

[9] Schaack, Read On! The Definitive Filartiga, IntLawGrrls (June 27, 2008).