U.S. and Cuba Continue To Implement Normalization of Relations

President Obama in the final days of his presidency continues to press forward with additional implementation of the policy of normalization of relations with Cuba. The January 12 U.S.-Cuba agreement regarding migration associated with the U.S. ending two immigration benefits for Cubans was discussed in an earlier post.

Here we will discuss (a) the recent joint meeting regarding trafficking in persons; (b) another joint meeting regarding the two countries’ claims against each other; and (c) a new U.S.-Cuba Law Enforcement Memorandum of Understanding (MOU). Recent comments by Cuban leaders about President-elect Trump also will be discussed.

Meeting Regarding Trafficking in Persons

 On January 12 and 13 the two countries met in Washington, D.C. The Cuban delegation “outlined the measures that are being implemented in [Cuba] to prevent and address this scourge, as well as the support and assistance provided to the victims, as part of the “zero tolerance” policy implemented by Cuba in any form of trafficking in persons and other crimes related to sexual exploitation, labor, among others.”[1]

Meeting Regarding Claims

On January 12 the U.S. State Department announced that the two countries were meeting in Havana that day for the third government-to-government meeting on claims. The meeting was to build upon their previous discussions for an exchange of views on technical details and methodologies regarding outstanding claims.[2]

Outstanding U.S. claims include claims of U.S. nationals for expropriated property on the island in the early years of the Cuban Revolution that were certified by the Foreign Claims Settlement Commission, now with interest totaling $8 billion; claims related to unsatisfied U.S. court default judgments against Cuba; and claims held by the U.S. Government. The U.S. continues to view the resolution of these claims as a top priority.

Outstanding Cuban claims include those of the Cuban people for human and economic damages, as reflected in the default judgments issued by the Provincial People’s Court of Havana in 1999 and 2000 against the U.S. As stated in a prior post, these judgments were for $64 billion on behalf of eight Cuban social and mass organizations plus $54 billion on behalf of the Cuban Government for alleged U.S. efforts to subvert that government. (These were default judgments in that the U.S. did not appear or contest these lawsuits in Cuban courts.)

In addition, Cuba repeatedly has asserted at the U.N. General Assembly its damage claims against the U.S. for the latter’s embargo. Last November these alleged damages totaled $ 125 billion.

The representatives of both governments reiterated the importance and usefulness of continuing these exchanges.

As usual, the governments’ public announcements about these closed-door sessions are not illuminating. Prior posts have discussed some of these claims and proposed ways to resolve them, primarily by an international arbitration proceeding at the Permanent Court for Arbitration at The Hague in the Netherlands.[3]

Agreement Regarding Law Enforcement

On January 16, in Havana the MOU was signed by Jeffrey DeLaurentis, chief of mission at the U.S. Embassy in Havana, and Vice Adm. Julio Cesar Gandarilla, the newly appointed Cuban interior minister. It provides for the two countries “to cooperate in the fight against terrorism, drug trafficking, money laundering and other international criminal activities.”[4]

“The arrangement will establish a framework for strengthening our partnership on counternarcotics, counterterrorism, legal cooperation, and money laundering, including technical exchanges that contribute to a strong U.S.-Cuba law enforcement relationship,” the White House statement said. “The arrangement will establish a framework for strengthening our partnership on counternarcotics, counterterrorism, legal cooperation, and money laundering, including technical exchanges that contribute to a strong U.S.-Cuba law enforcement relationship,” the White House statement said.

The U.S. National Security Council stated, “The goals of the President’s Cuba policy have been simple: to help the Cuban people achieve a better future for themselves and to advance the interests of the United States. While significant differences between our governments continue, the progress of the last two years reminds the world of what is possible when we are defined not by the past but by the future we can build together.”

Granma from Havana reported that the agreement covered “the prevention and combating of terrorist acts; drug trafficking; crimes committed through the use of information and communication technologies, and cyber security issues of mutual interest; trafficking in persons; migrant smuggling; flora and fauna trafficking; money laundering; the falsification of identity and travel documents; contraband, including firearms, their parts, components, ammunition, explosives, cash and monetary instruments.”

Cuban Officials’ Recent Comments About President-elect Trump[5]

The Guardian from London reports that in a recent interview Josefina Vidal, Cuba’s top diplomat with respect to the U.S., said it is “‘too early” to predict which path the new administration will follow. “There are . . . [some] functionaries, businessmen [other than anti-normalization Cuban-Americans whom] Trump has named, including in government roles, who are in favor of business with Cuba, people who think that the US will benefit from cooperation with Cuba, on issues linked to the national security of the US.” Cuban officials say that they plan to wait for action rather than words because Trump has repeatedly flip-flopped on the issue of rapprochement – and also put his business interests above his country’s laws.

Nevertheless Vidal warned, “Aggression, pressure, conditions, impositions do not work with Cuba. This is not the way to attempt to have even a minimally civilized relationship with Cuba.”

Her analysis was echoed by Ricardo Alarcón, who spent 30 years representing Cuba at the United Nations and another 20 years as president of the country’s National Assembly, before retiring in 2013. He said, “For two years we have been talking to a sophisticated president with an intelligent, skillful discourse. Now we have a gentleman who is capable of saying anything and nobody is sure what he is going to do.”

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[1] Cuban and U.S. delegations discuss combating trafficking in persons, Granma (Jan. 16, 2017).

[2] U.S. State Dep’t, United States and Cuba to Hold Claims Discussion (Jan. 12, 2017); Cuba Foreign Ministry, Third Meeting on Mutual Compensation between Cuba and United States (Jan. 12, 2017).

[3] See generally posts listed in the “U.S. & Cuba Damage Claims” section of List of Posts to dwkcommentaries.com—Topical: CUBA.

[4] White House, Statement by NSC Spokesperson Ned Price on Deputy National Security Advisor Ben Rhodes’ Travel to Cuba (Jan. 16, 2017); U.S. Dep’t of State, United States and Cuba To Sign Law Enforcement Memorandum of Understanding (Jan. 16, 2017); Reuters, Cuba, United States to Fight Terrorism, Drug Trafficking and Other Crimes, N.Y. Times (Jan. 16, 2017); Assoc. Press, US, Cuban Interior Ministry Sign Law-Enforcement Deal, N.Y. Times (Jan. 16, 2017); Cuba and the U.S. sign Memorandum of Understanding to increase cooperation associated with their national security, Granma (Jan. 17, 2017).

[5] Yaffe & Watts, Top diplomatic negotiator in Cuba warns Trump: ‘aggression doesn’t work,’ Guardian (Jan. 17, 2017).

U.S. State Department’s 2015 Human Trafficking Report’s Objectivity About Cuba Is Still Unresolved

On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which upgraded Cuba from Tier 3 (a country that did “not fully comply with the [Trafficking in Persons Protection Act] minimum standards and [was] not making significant efforts to do so”) to Tier 2.Watch List (a country that did not fully comply with [that statute’s] minimum standards, but [was] making significant efforts to bring [itself] into compliance with those standards).[1] A prior post reviewed that report’s discussion of Cuba and expressed disagreement with its assertion that Cuban medical personnel’s participation in foreign medical missions was illegal forced labor.

Since then there has been congressional criticism and concern about that report’s upgrading of several countries, including Cuba, as seen in recent congressional hearings.

The most recent hearing was on November 4, before a House of Representatives subcommittee. Most of the hearing was devoted to the report’s upgrading of Malaysia, Uzbekistan and China.[2]

Alex Lee
Alex Lee

Cuba’s upgrade was the focus of the testimony at this hearing by Alex Lee, Deputy Assistant Secretary of State in the Bureau of Western Hemisphere Affairs. He testified that the shift in U.S.-Cuban relations did not influence the decision on Cuba. “It was completely separate,” he told the subcommittee.

Mark Lagon
Mark Lagon

This assessment of Cuba was challenged by the testimony at this hearing of Mark Lagon, the President of Freedom House. He stated that “Freedom House ranks Cuba as ‘Not Free’” and that the Department’s “grounds for an upgrade are deeply questionable.” Indeed, Lagon said, the Department’s report itself undercuts any rationale for an upgrade when it states: (a) “The penal code does not criminalize all forms of human trafficking on paper, not to speak of enforcement.” (b) “The Cuba regime did not even dissemble and claim any ‘efforts to prevent forced labor’ nor ‘any trafficking-specific shelters.” Moreover, according to Lagon, “It is far-fetched to suppose that there is no forced labor in state enterprises or for political prisoners in one of the world’s few remaining Marxist-Leninist states. Also, a burgeoning sex industry – welcoming sex tourism – fuels exploitation, despite steps the Report notes taken by Cuba to address sex trafficking.”

Rep. Chris Smith
Rep. Chris Smith

The attitude towards Cuba of this subcommittee’s chair, Christopher Smith (Rep., NJ), was revealed in his press release on July 27 (the date of the release of the 2015 TIP report), when he said, “For political reasons alone, President Obama has done a grave disservice to victims of human trafficking in Cuba . . . by upgrading the human trafficking tier rankings in those countries in the annual Trafficking in Persons report.” He added,  “It seems quite clear that . . . Cuba’s unchecked march to normalized relations have captured the Obama Administration’s ability to properly access the worst of the worst when it comes to fighting to protect trafficking victims and punish the thugs who mastermind this modern day slavery.  It is no coincidence that earlier this year the Obama Administration also removed Cuba from the national list of state sponsors of terrorism. One-by-one this Administration is overriding human rights and national security policies for another agenda.”

The same issue of the objectivity of the TIP Report was considered on September 17 by the U.S. Senate Committee on Foreign Relations at a closed briefing by Anthony Blinken, Deputy Secretary of State, entitled “State Department Processes in Establishing Tier Rankings for the 2015 Trafficking in Persons Report.”   As the briefing was closed, we do not know what happened although at another hearing on September 22 Chairman Bob Corker (Rep., TN) mentioned that after this briefing he had made a request to the State Department for three unspecified items of information about the 2015 report.

Susan Coppedge
Susan Coppedge

Related to the issue of the objectivity of the 2015 TIP Report was the September 22 hearing by the Senate Committee on Foreign Relations on the nomination of Susan Coppedge to be the Ambassador-at-Large and Director of the State Department’s Office to Monitor and Combat Trafficking in Persons.

Although her written and oral testimony did not touch on Cuba, she made certain commitments if she were confirmed by the Senate, that bear on the overall issue of the objectivity of such future reports. Those commitments included the following: (a) “to use this position passionately to advocate for the rights of individuals to be free from forced labor or sex trafficking, for victims of human trafficking to have access to comprehensive services, for survivors to be empowered to have a voice in policy, and for an end to the trafficking of human beings;” (b) “to uphold the integrity of the annual Trafficking in Persons (TIP) Report and its tier rankings, including by ensuring the facts from the field are accurately presented in the report;” and (c) “to maintain a close working relationship with Congress and with those federal agencies engaged in the fight against human trafficking.”

Senator Bob Corker
Senator Bob Corker

At the hearing all the members in attendance expressed support for the nomination, and afterwards Chairman Corker released a statement reiterating his strong support.[3]

Conclusion

The issue of the objectivity of the 2015 TIP Report regarding Cuba and certain other countries still has not been resolved, and I am confident that we will hear more about this issue from Congress.

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[1] The Tier 2 Watch List also requires that “a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.”

[2] U.S. House Committee on Foreign Affairs, Subcommittee Hearing: Demanding Accountability: Evaluating the 2015 “Trafficking in Persons Report” (Nov. 4, 2015); Lagon, Statement for Subcommittee Hearing (Nov. 4, 2015); Sagnip,, Author of U.S. Human Trafficking Laws Demands End to Politicized Tier Rankings in Trafficking Report (Nov. 4, 2015); Reuters, U.S. Says Human Trafficking Report Not Softened for Political Reasons, N.Y. Times (Nov. 4, 2015); Sagnip. Cuba and Malaysia Taken Off ‘Bad Actors’ Trafficking List for Political Reasons (July 27, 2015).

[3] Senate Comm. on Foreign Relations, Hearing on Nominations [Susan Coppedge] (Sept. 22, 2105); Senate Comm. Foreign Relations, Coppedge: Testimony (Sept. 22, 2015) Senate Comm. Foreign Relations, Corker Seeks TIP Report Integrity from Nominee to Combat Human Trafficking (Sept. 22, 2015).

 

 

 

 

U.S. Upgrades Cuba in State Department’s Annual Report on Human Trafficking

2015_TIP_REPORT_Cover_200_1On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which is “the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking” and “ the world’s most comprehensive resource of governmental anti-human trafficking efforts.”

In this Report, the Department placed 187 countries into one of the following four tiers based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the Trafficking Victims Protection Act:

  • TIER 1 [Thirty-one] countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.
  • TIER 2 [Eighty-nine] countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.
  • TIER 2 WATCH LIST [Forty-four] countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND: a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
  • TIER 3 [Twenty-three] countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.”

At the Department’s release of this Report, Secretary of State John Kerry made comments. In part, he said, “the purpose of this document is not to scold and it’s not to name and shame. It is to enlighten and to energize, and most importantly, to empower people. . . . [We] want to bring to the public’s attention the full nature and scope of a $150 billion illicit trafficking industry. . . . We want to provide evidence and facts that will help people who are already striving to achieve reforms to alleviate suffering and to hold people accountable. We want to provide a strong incentive for governments at every level to do all that they can to prosecute trafficking and to shield at-risk populations.”

Additional comments and responses to journalists’ questions were provided at the launch of this Report by Sarah Sewell, Under Secretary of State for Civilian Security, Democracy and Human Rights. She pointed out that “in this year’s report, some 18 countries moved up in the tier rankings, some 18 countries moved down in the tier rankings” and quoted the above statutory definitions of the different rankings.

The Report’s Assessment of Cuba’s Record on Human Trafficking

In the 2015 Report Cuba was placed in the Tier 2 Watch List, which was an upgrade from the prior year’s report that had Cuba in Tier 3.[1] The new Report states that although “information on the scope of sex trafficking and forced labor in Cuba is limited, [c]hild sex trafficking and child sex tourism occur within Cuba. Cuban authorities report people from ages 13 to 20 are most vulnerable to human trafficking in Cuba. Traffickers also subject Cuban citizens to forced prostitution in South America and the Caribbean. . . . “

As a result, the Report concludes, “The Government of Cuba does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. For the second consecutive year, the government reported efforts to address sex trafficking, including the prosecution and conviction of 13 sex traffickers in 2013 and the provision of services to victims in those cases. The Cuban government reported at the beginning of 2015 that the Ministry of Labor and Social Security assumed the lead role in a committee responsible for combating gender and sexual violence, including sex trafficking. The penal code does not criminalize all forms of human trafficking, though the government reported continuing efforts to amend its criminal code, including bringing it into conformity with the requirements of the 2000 UN TIP Protocol, to which it acceded in July 2013. . . .”

In addition, the Report states the Cuban “government did not report any trafficking-specific shelters, but offered services to trafficking victims through centers for women and families harmed by violence. The Federation of Cuban Women, a government affiliated non-governmental organization, provided some outreach and education about human trafficking within the context of violence against women, but did not specifically address it as a crime involving sex trafficking and forced labor or affecting men and boys.”

The Report’s forced labor allegation is focused on Cuba’s “foreign medical missions, which employ more than 51,000 workers in over 67 countries and constitute a significant source of Cuban government income. Some participants in foreign medical missions as well as other sources allege that Cuban officials force or coerce participation in the program; [but] the Cuban government denies these allegations. Some Cubans participating in these work missions have stated the postings are voluntary and well paid compared to jobs within Cuba. There have also been claims that Cuban authorities coerced participants to remain in the program, including by allegedly withholding their passports, restricting their movement, or threatening to revoke their medical licenses or retaliate against their family members in Cuba if participants leave the program. There are also claims about substandard working and living conditions and the existence of ‘minders’ to monitor victims outside of work. Some medical professionals participating in the missions are in possession of their passports when they apply for and obtain special United States visa and immigration benefits, indicating passport retention is not a consistent practice across all work missions.”

Consistent with its denial that its foreign medical missions involve forced labor, the Cuban government “did not recognize forced labor as a problem within Cuba and did not report efforts to prevent forced labor.”

The Report goes on to make the following recommendations for Cuba:  (1) “draft and pass a comprehensive anti-trafficking law that prohibits all forms of human trafficking, including an offense of forced labor;” (2) “vigorously investigate and prosecute sex trafficking and forced labor offenses;” (3) “schedule a visit and engage in robust discussions with the UN special rapporteur on trafficking in persons on all forms of human trafficking;” (4) “provide specialized training for managers in state owned or controlled enterprises in identifying and protecting victims of forced labor and implement policies to verify the absence of coercion in such enterprises;” (5) “train those responsible for enforcing the labor code to screen for trafficking indicators and educate workers about trafficking indicators and where to report trafficking-related violations;” (6) “strengthen efforts, in partnership with international organizations, to provide specialized victim identification and referral training for first responders; (7) establish formal policies and procedures to guide officials in the identification of all trafficking victims and their referral to appropriate services;” (8) “expand upon the Ministry of Labor and Social Security’s anti-trafficking responsibilities to include all forms of trafficking and male as well as female victims, and develop an action plan to address sex trafficking and forced labor for males and females;” and (9) “adopt policies that provide trafficking-specific, specialized assistance for male and female trafficking victims, including measures to ensure identified sex and labor trafficking victims are not punished for unlawful acts committed as a direct result of being subjected to sex trafficking or forced labor.”

Under Secretary Sewell, elaborating on this assessment of Cuba in response to a journalist’s question, said, “Cuba was upgraded to the Tier 2 Watch List because of the progress that the government’s made in addressing and prosecuting sex trafficking, as well as the commitments that the Cuban Government has made to become compliant with the minimum standards. As noted in other cases, a Tier 2 Watch List ranking does not mean that a country is free from problems or free from human trafficking.”

According to Sewell, the Cuban “government reported significant efforts to address sex trafficking, including the conviction of sex traffickers, the provision of services to sex trafficking victims, and continued efforts of the ministry of tourism to address sex tourism and the demand for commercial sex. We also recognize the commitments the government has made to reform its laws to become compliant with the UN Palermo Protocol, which is a significant step, as well as the Cuban Government’s willingness to welcome the UN special rapporteur to the island.”

Nevertheless, Sewell continued, the U.S. has “a number of concerns such as the failure to recognize forced labor as a problem or to act to combat it. And so this will be very much a topic in our dialogue with Cuban officials as we work over the next year to try to help Cuba make more concrete progress in the realm of human trafficking.”

Reactions to the Report’s Assessment of Cuba

News media immediately highlighted the Report’s upgrades of Malaysia and Cuba, and a New York Times editorial was most critical of the assessment of Malaysia. Some U.S. Senators and Representatives launched criticism of those assessments in particular. Prominent with respect to Cuba, as expected, was Senator Robert Menendez (Dem., NJ), who said that by upgrading Malaysia and Cuba the administration had “elevated politics over the most basic principles of human rights” and vowed to do all he could “from hearings to legislation to investigations” to challenge the moves.” Representative Chris Smith (Rep., NJ) was upset by the same upgrades as well as relatively lenient ratings for Vietnam and China and stated the report had “careened off into a new direction where the facts regarding each government’s actions in the fight against human trafficking are given almost no weight when put up against the president’s political agenda.” Similar criticism came from Senator Marco Rubio (Rep., FL). [2]

A Reuters investigation concluded that the State Department’s office responsible for the TIP reports was overruled by senior Department officials on 14 of the 18 upgrades, including Malaysia, Cuba, China, India, Uzbekistan and Mexico. The final decision on disputed rankings this year, said Reuters, was made in meetings attended by some of the State Department’s most senior diplomats, including Deputy Secretary of State Tony Blinken, Under Secretary of State for Political Affairs Wendy Sherman and Kerry’s Chief of Staff, Jonathan Finer.[3]

On July 29 the Chairman (Bob Corker (Rep., TN)) and the Ranking Member (Ben Cardin (Dem., MD)) of the Senate Foreign Relations Committee in a joint letter asked Secretary of State John Kerry for a briefing on the Report in order “to better understand” the basis for its upgrade of several countries, including Malaysia and Cuba. They added, “We recognize that U.S. policy and engagement on trafficking does not exist in a vacuum, and we appreciate the many varied and nuanced trade-offs that are necessary between competing policy issues. We also believe that it is critical that the impartial reliability of the TIP Report be safeguarded and maintained if it is to have utility on this critical issue in the future.” [4]

Senate Foreign Relations Committee Hearing

Under Secretary Sarah Sewell
Under Secretary           Sarah Sewell

On August 6 that Committee held a hearing on this subject with Under Secretary Sewell as its sole witness.[5]

She testified that in “most cases, this assessment process [of different countries’ record on human trafficking] clearly places governments into one of the tiers; in other cases, further discussion among senior Department officials is required to clarify information and assess the totality of government efforts. This ultimately leads to the Secretary of State’s designation of Tier rankings for each country and approval of the TIP Report. Tier rankings do not assess the severity of human trafficking in a given country, but rather that government’s efforts in addressing human trafficking problems over the current reporting period compared to its own efforts in the prior year. Determinations about the direction and quality of that progress in a given country are guided by complex criteria outlined in the TVPA and described on pages 45 through 50 of the TIP Report.”[6]

More specifically for the six countries, including Cuba, that moved up to Tier 2 Watch List this year, Sewell testified, “the Department closely evaluated the efforts those governments had made during the reporting period as well as the commitments they made for next year. Our posts are working with host governments to encourage them to implement the recommendations outlined in this year’s Report, and the TIP Office is finalizing assistance programming strategy to help make those recommendations a reality. I am receiving reports from the field on the frank and focused dialogues Embassy personnel are having with host government officials on how to overcome the challenges they face to better combat this crime and protect their citizens.”

With only Chairman Corker, Ranking Member Cardin and Senator Menendez in attendance, most of the questions focused on the upgrade of Malaysia. Corker, for example, said, “The administration’s policies toward those countries trumped any real regard for humans being trafficked.” The Department, he continued, “threw the trafficking phase under the bus to ensure that . . . [the Administration was] successful with [the Trans-Pacific Partnership (TPP) that included Malaysia].” [7] Menendez added a few comments and questions about the Cuba upgrade.

Sewell declined to answer questions about internal Department discussions about these upgrades and instead repeatedly emphasized that the statutory framework for tier rankings created a complex set of factors to be analyzed and that a Tier 2 Watch List ranking did not indicate a country had a great record on trafficking.[8]

At the conclusion of the hearing, Chair Corker said it had been the “most heartless, lacking of substance” presentation and that he and the two other Senators in attendance had the strong impression that inappropriate political considerations had influenced some or all of the tier upgrades. As a result, the Committee would be asking for the Department to produce records about its internal consideration of the tier rankings. Senator Cardin also said he was interested in exploring whether Congress should amend the relevant statutes in light of what a further hearing might disclose.

After the hearing, a State Department spokesman said that the Department was waiting for the committee to submit a formal request, “but speaking generally, of course we try to be responsive to Congress.”

Conclusion

I agree that the annual T.I.P. reports are important tools in combatting trafficking in persons and that these reports should be free of political influence. On the other hand, I believe that the relevant statutes appropriately create a complex set of factors that require analysis in reaching conclusions about placing countries in the different tiers and that it is appropriate for senior Department officials to be involved in that process.

With respect to Cuba, for at least the following reasons I disagree with the Report’s assertion that Cuban medical personnel’s participation in foreign medical missions is illegal forced labor:

  • First, the Report admits that “information on the scope of . . . forced labor in Cuba is limited.”
  • Second, the Report admits that there is conflicting information and allegations on the foreign medical mission work. Coercion is alleged by “some participants” and “other sources.” On the other hand, the Cuban government denies these allegations, and other participants “have stated the postings are voluntary and well paid compared to jobs within Cuba.” The Report also concedes there is conflicting information on whether other means, including withholding Cuban passports, are used to coerce or force participants to remain in the program.
  • Third, there apparently has not been any fair adjudicative process to determine which of these conflicting sets of information is valid.
  • Fourth, the accusation of forced labor for such participants has been rejected in a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman. He says, although there may be “some cases where . . . [Cuban medical professionals] are pressured into accepting overseas assignments, . . . most evidence indicates that the overwhelming majority are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude.[9]
  • Fifth, the Report does not cite to the relevant legal definition of “forced labor” to assess this claim. Most pertinent is Article 2(2) of the Forced Labour Convention, 1930, which states, in part, ”the term forced or compulsory labour shall not include . . .  any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Emphasis added.) [10] Cuba is a “fully self-governing country” and the participants in the foreign medical missions are Cuban “citizens,” and as Professor Erisman states, such participation is regarded as “part of the normal civic obligations” of such citizens with the appropriate medical qualifications.
  • Sixth, relevant to this issue, but not mentioned in the Report, is the fact that medical education in Cuba (at the Latin American School of Medicine) is free. As a result requiring medical graduates to pay the country back by such participation seems entirely appropriate and may indeed be a contractual or quasi-contractual obligation. Indeed, as Professor Erisman reports, Cuban medical professionals, especially doctors, may apply to leave Cuba after they have obtained their free medical education and thereafter provided three to five years of service in the country.

We now await the Committee’s formal request for Department documents, the production of such documents and additional hearings on the subject. In the meantime, as always, I welcome comments of correction or amplification.

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[1] A prior post examined in detail the prior human trafficking report about Cuba.

[2] Reuters, U.S. Softens View of Malaysia, Cuba in Human Trafficking Report, N.Y. Times (July 27, 2015); Reuters, Obama Administration Faces Criticism Over Human Trafficking Report, N.Y. Times (Aug. 3, 2015); Editorial: Obama Administration Ignores Malaysia’s Trafficking Record, N. Y. Times (July 31, 2015); Menendez, Press Release: Sen. Menendez on Human Trafficking Report Politicization (July 27, 2015); Rubio, Press Release: Rubio: State Department’s Human Trafficking Report Should Be Based on Reality Not Politics (July 27, 2015).

[3] Reuters, Special Report-U.S. State Department Watered Down Human Trafficking Report, N.Y. Times (Aug. 3, 2015).

[4] Reuters, Lawmakers Want State Briefing on Trafficking Report, N.Y. Times (July 29, 2015); U.S. Sen. Foreign Relations Comm., Press Release: Senators Cardin and Corker Request Briefing on State Department’s Trafficking in Person Report in Letter to Secretary Kerry (July 29, 2015); Reuters, Lawmakers to Demand Full Accounting on Human Trafficking Report, N.Y. Times (Aug. 4, 2015).

[5] Senate Foreign Relations Comm., Review of the 2015 Trafficking in Persons Report (Aug. 6, 2015); Hattem, Senators accuse State Dept. of picking politics over human trafficking, The Hill (Aug. 6, 2015); Reuters, Top Senator Demands State Department Documents on Human Trafficking Report, N.Y. Times (Aug. 6, 2015); Assoc. Press, Senators Demand Documents Over Malaysia Trafficking Upgrade, N.Y. Times (Aug. 6, 2015); Corker, Corker Fears Politicization of State Department’s 2015 Human Trafficking Report Over Questionable Upgrades (Aug. 2015); Cardin, Senator Cardin Statement Regarding 2015 Human Trafficking Report (Aug. 6, 2015).

[6] Sarah Sewell, Testimony to Senate Foreign Relations Committee (Aug. 6, 2015).

[7] Secretary of State Kerry, who was in Malaysia on the day of the hearing, categorically denied that politics had played any role in the ranking of Malaysia. “I personally signed off on it. And I had zero conversation with anybody in the administration about the Trans-Pacific Partnership relative to this decision — zero. The reason I made this decision was based on the recommendation of my team, because Malaysia has passed additional legislation in 2014, they’ve consulted with civil society, they drafted amendments to Malaysia’s anti-trafficking law in order to allow the country’s flawed victim protection regime to change.” (Assoc. Press, Kerry: Malaysia Trafficking Upgrade Not Due to Trade Talks, N.Y. Times (Aug. 6, 2015); Reuters, Kerry Says ‘Zero Communication’ on Trade Pact and Malaysian Trafficking Record,  N.Y. Times (Aug. 6, 2015).

[8] The text of the U.S. statutes regarding trafficking in persons is set forth on a State Department web page and the Report contains a summary of “forced labor” without any mention of the exceptions to the definition discussed below.

[9] Erisman, Brain Drain Politics: the Cuban Medical Professional Parole Programme, Int’l J. Cuban Studies 269, 286-87 (2012).

[10] This and other parts of the definition of “forced or compulsory labour” were reaffirmed in Article 1(3) of the Protocol of 2014 to the Forced Labour Convention, 1930.

 

 

Joint Press Conference of U.S. Secretary of State John Kerry and Cuba Foreign Minister Bruno Rodriguez  

On the morning of July 20, 2015, Cuba officially opened its Embassy in Washington, D.C., and the United States did likewise in Havana although the ceremonial opening of the latter will be on August 14 when Secretary of State John Kerry goes to Havana to preside that event. A prior post discussed the ceremonial opening of the Cuban Embassy. This post covers that afternoon’s joint press conference at the U.S. Department of State by U.S. Secretary of State John Kerry and Cuba’s Foreign Minister Bruno Rodriguez.[1] Subsequent posts will review comments about U.S.-Cuba relations offered by the White House Press Secretary at a July 20 press conference and the reactions to these events.

Bruno Rodriguez & John Kerry @ U.S. State Department
Bruno Rodriguez & John Kerry @ U.S. State Department

Secretary Kerry’s Opening Statement

The conference was opened by Kerry, saying it was “an historic day; a day for removing barriers.” This day was welcomed by the U.S. as a “new beginning in its relationship with the people and the Government of Cuba. We are determined to live as good neighbors on the basis of mutual respect, and we want all of our citizens – in the U.S. and in Cuba – to look into the future with hope. Therefore we celebrate this day . . . because today we begin to repair what was damaged and to open what has been closed for many years.”

His prior discussion with Minister Rodriguez, Kerry said, “touched on a wide range of issues of mutual concern including cooperation on law enforcement, counter-narcotics, telecommunications, the internet, environmental issues, human rights, including trafficking in persons. And of course, we also discussed the opening of our embassies.”

This milestone, however, Kerry added, “does not signify an end to differences that still separate our governments, but it does reflect the reality that the Cold War ended long ago, and that the interests of both countries are better served by engagement than by estrangement, and that we have begun a process of full normalization that is sure to take time but will also benefit people in both Cuba and the United States.” Indeed, “the process of fully normalizing relations between the United States and Cuba will go on. It may be long and complex. But along the way, we are sure to encounter a bump here and there and moments even of frustration. Patience will be required. But that is all the more reason to get started now on this journey, this long overdue journey.”

Foreign Minister Rodriguez’s Opening Statement

Rodriguez opened in English by saying he had “a constructive and respectful meeting with [the] Secretary . . . [and] an exchange on the issues discussed by Presidents Raul Castro and Barack Obama during their historical encounter at the Summit of the Americas in Panama, the current status of the bilateral relations, and the progress achieved since the announcements of December 17th, 2014, including Cuba’s removal from the list of state sponsors of terrorism and the expansion of official exchanges on issues of common interest, and the re-establishment of diplomatic relations and the reopening of embassies.”

The Cuban people and government recognize “President Obama for his determination to work for the lifting of the blockade, for urging Congress to eliminate it, and for his willingness to adopt executive measures that modify the implementation of some aspects of this policy. Their scope is still limited, but these are steps taken in the right direction.”

Cuba also “emphasized that, in the meantime, the President of the [U.S.] can continue using his executive powers to make a significant contribution to the dismantling of the blockade, not to pursue changes in Cuba, something that falls under our exclusive sovereignty, but to attend to the interests of U.S. citizens.”

Rodriguez also “emphasized that the total lifting of the blockade, the return of the illegally occupied territory of Guantanamo, as well as the full respect for the Cuban sovereignty and the compensation to our people for human and economic damages are crucial to be able to move towards the normalization of relations.”

“We both ratified our interest in normalizing bilateral relations, knowing that this will be a long and complex process, which will require the willingness of both countries. There are profound differences between Cuba and the [U.S.] with regard to our views about the exercise of human rights by all persons all over the world, and also issues related to international law, which will inevitably persist. But we strongly believe that we can both cooperate and coexist in a civilized way, based on the respect for these differences and the development of a constructive dialogue oriented to the wellbeing of our countries and peoples, and this continent, and the entire world.”

He also “expressed to the Secretary of State that he will be welcome in Cuba on the occasion of the ceremony to reopen the U.S. embassy in Havana [on August 14].”

Rodriguez then essentially repeated these comments in his native Spanish language. He also “reiterated our invitation to all U.S. citizens to exercise their right to travel to Cuba, as they do to the rest of the world, and to the companies of that country to take advantage on an equal footing of the opportunities offered by Cuba.”

Question and Answer Session

The press then asked the following questions, and the two officials provided these answers.

  1. QUESTION: The first question had the following three parts: (a) What was the U.S. position with respect to Rodriguez’ statement that only the lifting of the trade embargo and the return of Guantanamo Bay would lend meaning to today’s historic events and that Cuba did not want any U.S. interference in its domestic policies? (b) What changes in Cuban human rights would the U.S. be pursing? (c) What changes would Cuba be willing to make at the request of the U.S. before the lifting of the embargo and return of Guantanamo?

SECRETARY KERRY: “[T[here are things that Cuba would like to see happen; there are things the United States would like to see happen.” But that does not mean that these things will happen.

“With respect to the embargo, President Obama . . . has called on Congress to lift the embargo.” The Administration hopes “that the embargo at the appropriate time will in fact be lifted and that a great deal more foundation can be built for this relationship.”

At this time, there is no discussion and no intention on our part at this moment to alter the existing [Guantanamo Bay] lease treaty or other arrangements with respect to the naval station, but we understand that Cuba has strong feelings about it. I can’t tell you what the future will bring but for the moment that is not part of the discussion on our side.”

The U.S., on the other hand, has “expressed and we will always express – because it’s part of the United States foreign policy; it’s part of our DNA as a country – and that is our view of human rights and our thoughts about it. We have shared good thoughts on that. We’ve had good exchanges. And as you know, part of this arrangement that took place involved an exchange of people as well as the release of some people. And our hope is that as time goes on, we’ll continue to develop that.”

What we did talk about today was how to further the relationship most effectively, and perhaps through the creation of a bilateral committee that might work together to continue to put focus on these issues.”

FOREIGN MINISTER RODRIGUEZ: “In recent times, the U.S. Government has recognized that the blockade against Cuba is a wrong policy, causing isolation and bringing about humanitarian damages and privations or deprivations to our people, and has committed to engage Congress in a debate with the purpose of lifting the blockade. . . . [T]he President of the U.S. [also] has adopted some executive measures which are still limited in scope but which are oriented in the right direction.”

In exchanges with Secretary Kerry we “have not spoken about conditions but rather about the need to move on through the dialogue on the basis of sovereign equality and mutual respect and create a civilized behavior, despite the profound differences that exist between both governments, to better attend to the interests of our respective peoples.”

“[I]t is very important that today a [Cuban] embassy was reopened in Washington and that diplomatic instruments could be created ensuring full mutual recognition, which is a practical contribution to the development of bilateral dialogue. . . . [For] Cuba, the normalization of relations presupposes the solution of a series of pending problems, [including] “the ceasing of the blockade against Cuba, the return of the territory of Guantanamo, and the full respect for the sovereignty of our country.” We also confirmed “that there are conditions . . . [for expanding] the dialogue . . . with the purpose of expanding mutually beneficial cooperation between our . . . countries and, of course, taking into account the fact that the situation between the U.S. and Cuba is asymmetric because our . . . country has not implemented any discriminatory policy against American citizens or enterprises. Cuba does not implement any unilateral coercive economic measure against the U.S. Cuba does not occupy any piece of U.S. territory. Precisely through the dialogue, we are supposed to create the proper conditions to move on towards the normalization of relations.”

  1. QUESTION: This was a three-part question: (a) What are the advantages [for Cuba’s having an embassy in the U.S,] taking into consideration that the blockade is still in place? (b) What are the advantages for the U.S.’ having an embassy in Havana? (c) Will the U.S. in the future respect the Vienna Conventions on Diplomatic Relations?

FOREIGN MINISTER RODRIGUEZ: “The fact that diplomatic relations have been re-established and that embassies have been reopened in both capitals shows first and foremost the mutual willingness to move on towards the improvement of the relations between our both countries. Second, new instruments are [being] created to further deepen this dialogue. . . . Third, . . . the basis for the normal functioning of these diplomatic missions would be the purposes and principles enshrined in the U.N. Charter: the principles of international law and the regulations containing the Vienna Conventions on diplomatic and consular relations. Therefore, we have reached agreements in these areas, and I can say that Cuba would absolutely respect those provisions. Cuban diplomats will strictly abide by those rules, and we will create in Cuba every necessary condition for the normal functioning of the new U.S. Embassy in our country.”

SECRETARY KERRY: Part “of the negotiations leading up to the opening of the embassies was . . . coming to agreement with respect to all of the diplomatic functions. . . . [That led to an] “agreement which is in accord with the Vienna Conventions and meets both of our countries’ understandings of what is needed and what is appropriate at this moment in time. It could be subject to change later in the future, obviously, but for the moment we are satisfied and we are living within the structure of the Vienna Convention.”

  1. QUESTION: A three-part question: (a) In “your discussions today, did you establish any sort of road map for talks going forward? (b) If so, what are your priorities? (c) As a result, do you envision a political opening in Cuba on issues such as greater freedom of speech and assembly, and also the legalization of opposition parties?”

FOREIGN MINISER RODRIGUEZ: We will “welcome Secretary Kerry in the next few weeks in Havana to continue our talks, to establish the appropriate mechanisms to expand the dialogue in areas related to bilateral cooperation oriented to the common benefit, and to retake our talks about the substantial aspects of the bilateral relations I have mentioned before, which will determine this process towards the normalization of relations.”

The “political opening in Cuba happened in the year 1959. . . . We Cubans feel very happy with way in which we manage our internal affairs. We feel optimistic when it comes to the solution of our difficulties and we are very zealous of our sovereignty, so we will maintain in permanent consultations with our people to change everything that needs to be changed based on the sovereign and exclusive willingness of Cubans.”

  1. QUESTION: A four-part question: (a) Is “this new era of relations with Cuba [based on a] recognition that the U.S. policies of isolating countries in Latin America that differ from . . . [U.S.] political views don’t work?” (b) “Do the recent trips to Caracas of Mr. Thomas Shannon [of the U.S. State Department] . . . [constitute a] beginning of trying to rebuild the relationship with Venezuela?” (c) Is it possible [for Cuba] to have relations with the U.S. when the U.S. is giving every signal that it is not willing to lift the blockade or the embargo as it is called here and cannot withdraw from Guantanamo?” (d) Has the U.S. after failing to change Cuba from the outside “now implemented a creative way to try to change Cuba from the inside?”

FOREIGN MINISTER RODRIGUEZ: The “fact that diplomatic relations are being established and that we are reopening both embassies is a show of the mutual willingness to move on towards the normalization of bilateral relations.” [Last] December President Obama recognized that the U.S. policy against Cuba had been wrong, causing damages and hardships to the Cuban people, and causing isolation to the U.S.”

The “re-establishment of diplomatic relations and the opening of embassies are appreciated by my country as a signal of progress towards a civilized relationship, despite the differences, and it would lend some meaning only if the blockade is lifted, if we are able to solve the pending problems for more than one century, and if we are able create a new type of relationship between the U.S. and Cuba different from what has existed all along the history.”

Cuba feels “that [President Obama’s] recognition of the need to lift the blockade against Cuba, that during the talks that we have had, including this morning’s talks, we have perceived respect for Cuba’s independence to the full determination of our people, [that the two countries] have talked, on the basis of absolute equal sovereignty despite differences shows that the dialogue is fruitful and that the U.S. and Cuba, by a mandate of the American people and the Cuban people, are in the condition to move on towards a future of relations different from the one accumulated throughout our history, responding precisely to the best interests of our citizens.”

“There is an international order. International law is recognized as the civilized behavior to be adopted by states. There are universally accepted principles, and these have been the ones who have allowed us to reach this date and the ones that . . . will reorient our behavior in our relations in the future.”

SECRETARY KERRY: With respect to Cuba, “passions ran deep . . . to this day in the [U.S.]. There are many Cuban-Americans who have contributed in so many ways to life in our country, some of whom are still opposed to a change, some of whom believe it is time to change.”

“When I served in the [U.S.] Senate, there were many of us who believed over a period of time that our policy of isolating [Cuba] was simply not working; we were isolating ourselves in many ways. And we felt that after all those years it was time to try something else. President Obama is doing that now. And it is clear that we have chosen a new path, a different path. Already, people tell me who have visited Cuba that they feel a sense of excitement, a sense of possibility. And I am convinced that as we work through these issues we are going to find a better path forward that speaks to the needs of both peoples, both countries.”

With respect to Venezuela, Counselor of the State Department, Ambassador Tom Shannon has had several conversations with the Venezuelans. We had a very productive conversation prior to the Summit of the Americas in Panama. The [U.S.] has said many times we would like to have a normal relationship with Venezuela and have reached out in an effort to try to change the dialogue, change the dynamics. There are differences that we have with President Maduro and his government, and we raise those differences and we talk about them.”

“Just today, Foreign Minister Rodriguez and I talked specifically about Venezuela and our hopes that we can find a better way forward, because all of the region will benefit if no country is being made a scapegoat for problems within a country, and in fact, all countries are working on solving those problems.”

“We hope that our diplomatic relations with Cuba can encourage not only greater dialogue with Venezuela but perhaps even efforts to try to help Colombia to end its more than 50-years war and perhaps even other initiatives.”

“It’s clear that Cuba has significant progress to make in all of those areas.  What’s also clear is that the previous [U.S.] . . . [did not] really make much progress [on these issues].  The President believed that a change was necessary.  And we’re hopeful that in the coming years we’ll start to see the kind of respect for basic human rights on the island of Cuba that the U.S.] has long advocated.”

[Moreover, an] overwhelming percentage of the Cuban people are supportive and optimistic about this change in policy because of a chance that is has to improve their prospects on the island nation of Cuba.”

“So the President is looking forward to these kinds of changes taking effect [so] that the Cuban people and the Cuban government start to enjoy the benefits and see the results from greater engagement with the [U.S.]”

“In the days after this agreement was announced back in December, a substantial number of individuals who had previously been held by the Cuban government for their political views were released.  And that’s an indication that the Cuban government is trying to at least change their reputation when it comes to these issues.“

“But we have got a long list of concerns.” In addition, “for a long time the U.S. policy of trying to isolate Cuba became a source of irritation in the relationship between the [U.S.] and other countries in the Western Hemisphere.  And by removing that source of irritation, the [U.S.] can now focus attention of . . . other countries in the Western Hemisphere on the Cuban government’s rather sordid human rights record.”

“And again, that is part of the strategy for seeking to engage the Cuban people more effectively, and bring about the kind of change that we would like to see inside of Cuba.”

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[1] U.S. Dep’t of State, Press Availability with Cuban Foreign Minister Bruno Rodriguez (July 20, 2015). A video and audio recording of the press conference is available on C-Span.