Human Rights in Cuba - Initiating the Dialogue

By Wayne S. Smith

Perhaps the most significant and exciting thing about this seminar was that it was held at all Americans and Cubans gathered together in Havana to discuss human rights. Granted, the purpose was not to dwell on specific cases or on either country's human rights record. Rather, the focus was more philosophical and juridical in nature, an attempt to clarify ideas and concepts. We wished, for example, to see if there was agreement on what consti tutes human rights and the extent to which human rights are protected by international law. It was, in short, an icebreaking encounter at which we hoped to lay the ground work for more policy-oriented discussions in the future.

The exchange was frank, broad-ranging and soon revealed important differences in perceptions of and approaches to human rights. Nonetheless, there was far more common ground and consensus than had been expected. Indeed, on some issues there seemed to be more disagreement among the American participants than between the two delegations. Nor were opinions unanimous on the Cuban side. On the contrary, there wasoften open disagreement. Clearly, there is debate taking place in Cuba on this highly sensitive issue. Our Cuban colleagues acknowledged that much still needs to be done; but, they pointed out, a meeting such as this would have been inconceivable as little as two years ago.

Here are highlights of the two-day forum, organized under several broad, thematic headings.

Definitions and legal standing

The most important point of consensus from the outset was the agreement that human rights however we might differ in defining them do in fact have legal standing under international law. Genocide, torture and arbitrary arrest, for example, are universally condemned under international treaty. No government can claim the right to carry on such practices. Many regimes at one time or another resort to them, but they cannot maintain that they are acting legally when they do so. While there was dispute at the edges about which rights are actually codified or what, precisely, would constitute a violation of human rights in specific cultural settings, there was unanimity at the core.

A second point of consensus, surprisingly, was that human rights do not fall within each country's exclusive, domestic jurisdiction. The Cubans were willing to accept the fact that under international law it is legitimate for nations to take an interest in the human rights record of other nations. The problem arises, they argued, when such scrutiny is selective and politicized, aimed not at protecting human rights per se, but at advancing a political agenda. The American delegation concurred with that thesis.

Both sides also agreed that while there are some generally accepted standards governing human rights, they are only partially codified under international law and not always clear. Much remains to be done in this area. The Cubans complained that there is a tendency in the international community to impose not only those precepts accepted by all, but also those that are not. They argued that there is a difference between human rights law, codified in international treaties, and humanitarian law, which is basically an international wish list of how things ought to be. When the distinction is blurred, as at the meetings of the U.N. Human Rights Commission in Geneva, the result can be taken as a violation of national sovereignty. Countries must perforce comply with international law; they are not obliged to conform to loose statements of principle. At issue is the difference between "hard" and "soft" law. Further, the Cubans maintained that there is an unfortunate willingness on the part of some U.N. members to use the organs of that international body improperly. Article 60, for example, specifically prohibits the Security Council from acting on human rights matters; that jurisdiction belongs to the General Assembly, a fact that is often forgotten. Finally, the Cubans noted, the U.N. charter makes clear that the resolution of human rights issues must be brought about through cooperation, not coercion.

There was broad consensus among the Cubans that human rights must be approached as a totality that includes social, economic and cultural as well as political and civil rights. There should be no priority of some rights over others. Certainly, there should be no priorities for certain groups of people or countries. There is not a single country where improvements are not needed. A useful slogan would be all human rights, for all, in all countries.

Several American participants agreed strongly that human rights must be conceived as a totality, that they are indeed interdependent and one should not be given priority over another. Freedom from hunger is as important as freedom from arbitrary arrest. Other U.S. participants were less certain. They noted that the fact that a government provides housing and education in no way lessens its obligation to respect the civil rights of its citizens. They also felt that some priorities were inevitable and, in fact, simply a matter of common sense. Without the right to life, no other right has any meaning. They also suggested that the right to due process, freedom from torture and from invidious discrimination are priorities. Without them, individuals cannot exercise other rights. Economic and social rights, on the other hand, are more difficult to specify and implement. It is rather easy to protect the right to vote. Guaranteeing decent housing and medical care is far more difficult, especially if resources are scarce.

Cuban delegates tended to disagree with the latter thought, noting that the problem usually is not that resources are scarce, but that they are inequitably distributed. As one Cuban succinctly stated: The world isn't poor. It's unjust. The problem resides in the way a society is organized. Given a general recognition that there would be little common ground between the two delegations on the question of societal organization, the discussion shifted to another topic.

Before moving on, however, one U.S. participant noted his surprise that the Cubans had not taken the position that economic and social needs must take priority over civil and political rights until such time as an equitable, egalitarian society has been achieved. He had, apparently incorrectly, thought that was the Cuban view.Cuban participants reiterated their position that human rights must be seen as a totality, with no special set of rights claiming priority over others. Civil and political rights are as important and merit the same respect as social and economic rights.

The "right" to development

There was strong consensus among Cuban participants that underdeveloped countries have a "right" to development, a right expressed in various international covenants and, in particular, in the U.N. General Assembly Declaration on the Right to Development, approved on December 4, 1986. While the so-called Third World cannot emulate the wealth of the existing industrial giants of the North, it does seek a just and decent standard of living for its peoples. As one Cuban stated, if we cannot bridge the North-South abyss, civilization will have failed. It is time, they argued, for the industrialized countries to face up to their responsibilities. For the most part, they want only to focus on political and civil rights in the Third World. But the distorted world in which we live, with a few extremely wealthy countries and a great majority of poor ones, results largely from the way they have configured it. The industrialized North has an obligation, morally and under law, to help redress the balance. If it does not do so, there may be no world in which to live.

While expressing sympathy for the aspirations of the Third World and agreeing that the gross disparity between rich and poor nations is unhealthy for international peace, a number of U.S. participants expressed doubt as to whether the "right to development" was in any real sense now sanctioned under international law or, indeed, whether it could be enforceable. They also noted that development does not depend altogether on external factors; rather, much has to do with the decisions that a country takes itself and with its internal arrangements and efforts.

At least one U.S. participant, however, felt strongly that development is a right. While the United Nations is not a government, he noted, it is an association of states with specific rules and regulations. Such regulations may not have the full force of law, but they are guidelines we have agreed to live by. If we fail to comply, we lose faith with ourselves.

There has been growing recognition that without tolerable economic conditions, democratic order is difficult to sustain. Freedom is meaningless without minimally adequate socioeconomic conditions. The U.N. covenant on economic, social and cultural rights which entered into force in 1976 explicitly asserts that member states must try to create such conditions, and that, if resources are insufficient at the national level, then the international community has an obligation to assist and cooperate in the realization of the rights recognized by the covenant. And in fact the international community has developed a certain momentum in the transfer of resources from industrialized states to less-developed countries; we have created multiple mechanisms, such as the U.N. Food and Agriculture Organization, the World Health Organization, and others to accomplish that end.

Another American participant raised a more troubling question, namely, the dichotomy that is sometimes perceived between development and human rights the argument, in short, that the requirements of economic development can serve as an excuse to abridge other rights (citing, for example, the case of Singapore). Historically, legally and ethically, he asserted, such a dichotomy is unwarranted. There was no disagreement on that score from either delegation.

The politicization of human rights

The Cuban participants were unanimous in their conviction that their country has been specially targeted as a human rights violator for political, rather than humanitarian, reasons. There are countries in Asia and elsewhere with far worse records than Cuba's; yet, rather than mounting campaigns against them in the U.N. Human Rights Commission in Geneva, the United States maintains full diplomatic and trade relations with such gross offenders. Even in Latin America, there are nations for example, Guatemala that are far more vicious in the treatment of their citizens than Cuba. Nonetheless, due to pressure from
the United States, only Cuba has been assigned a special U.N. Rapporteur. When such an obvious double standard is applied, and when human rights are used as a political weapon, then the cause of human rights must ultimately suffer. Cuba does not pretend to be perfect. What country is? Some Cubans conceded that there have been abuses and they should be corrected. But all the Cubans stated that Cuba will not be coerced, nor will it cooperate with a campaign against it that is politically motivated.

American participants agreed that the crusade mounted by the United States against Cuba's human rights record seems to be politically motivated. They further acknowledged that Cuba has indeed been subject to a double standard that does disservice to the overall cause of human rights. On the other hand, two wrongs do not make a right. Echoing their Cuban colleagues, they suggested that if there are human rights abuses on the island, the Cubans owe it to themselves to addressand correct them.

One U.S. participant noted, moreover, that one of the reasons a special Rappor teur was appointed was that after a U.N. human rights delegation visited Cuba in 1988, some fifty-five persons who had talked with the group were ar rested. Cuba had alien ated many in the world human rights community who had been working to give it a fair hearing. Cuban participants insisted the fifty-five had been detained for reasons unrelated to their talks with the U.N. delegation. The Americans replied that while this assertion might be true, a very different interpretation was inevitable, as the Cubans should have known from the
beginning.

Another American participant pointed out that while Cuba's human rights abuses are doubtless exaggerated for political purposes by the United States, there are nonetheless areas of genuine concern. Indeed, the U.N. High Commissioner for Human Rights who recently visited Cuba said as much in his report. Those who are sincerely interested in human rights cannot fail to be concerned about freedom of expression in Cuba, about the absence of a truly independent judiciary, and about the constitutional provision for the perpetuation of a one-party state. Another American suggested that such vague laws as that of "social dangerousness" (la ley de peligrosidad) somewhat equivalent to catch-all vagrancy laws in the United States could be used to detain citizens arbitrarily and were thus a matter of concern. The Cuban response was that they, too, were worried about the random application of the law of dangerousness, but noted that it was not an invention of the revolutionary government. Rather, it dated back to 1936 and to the traditions of Spanish law.

On the matter of an independent judiciary, the Cuban response was ambivalent. Some, mostly younger participants, thought it essential. Their elders were not necessarily convinced. The argument was put aside when one Cuban participant suggested that CEA organize a debate on the issue.

Virtually all Cuban participants agreed with the idea that, despite U.S. efforts to politicize the human rights issue, Cuba has to move ahead on its own to correct abuses and create a better society. However, the Cubans maintained that it would be much easier to do so if they were not continually confronted by U.S. pressure and hostility.

Human rights and public order

The alleged dichotomy between the need for public order and the protection of human rights was perhaps the most contentious issue raised at the conference. One Cuban speaker suggested that public order should take precedence over individual rights. It is the only way to achieve economic development, guarantee social advances and, in the Cuban context, assure that the successes of the Revolution are sustained.

Not all Cuban participants agreed, although they did concede that the issue is thorny. In response to an Ameri can's suggestion that outright rebellion against an in stalled government might be unacceptable, they cited their legitimate right to rebel against the Batista dictatorship. One Cuban also defended the right of the incumbent regime to arrest troublemakers (i.e., dissidents) since the very survival of the nation was now at stake in the face of U.S. hostility and daily radio broadcasts from the mainland urging internal rebellion in Cuba. His polemical outburst, unusual given the tone and focus of the seminar, clearly made many of his colleagues uncomfortable.

An American participant noted that although some differences may exist between the cultures of various states, the sum of rules which insures the proper functioning of any society must include respect for all human rights, economic, social, cultural, civil and political. The debate on this issue came to a close somewhat dramatically. One of the more preeminent Cuban partici pants arose and categorically stated: "If public order does not include human rights, then there is no public order." That statement alone was enough to suggest that the seminar had been worthwhile.

Post-conference interviews

At the conclusion of the formal seminar, members of the U.S. delegation had the opportunity to talk with three diverse figures on the Cuban landscape: Ricardo Alarc¢n, Raul Amaro and Elizardo Sanchez Santa Cruz.

 

Ricardo Alarc¢n, president of the national assembly

Alarc¢n echoed a sentiment expressed by many of the Cuban participants at the seminar, namely, that it is not easy to institute reforms and to liberalize internally while tensions between the United States and Cuba remain so high. "In the face of U.S. threats and hostility, we must maintain a high degree of internal discipline. Were it not for that hostility, we could be more relaxed."

He also indicated that it would be easier for Cuba to move ahead with further reforms in its electoral system were it not for constant attempts by the U.S. to pressure Cuba and impose its own ground rules. Members of the U.S. delegation noted that the present system, under which there is only one candidate for each seat in the national assembly, would never be considered a legitimate election by the international community.

Alarc¢n replied that Cuba had nothing in principle against instituting a system in which there would be two or possibly more candidates for each seat. It had already been discussed and could conceivably be implemented in the future. It would be more likely to happen, however, if U.S. policy were to change. "We have seen how the CIA and the National Endowment for Democracy come into other countries with money and try to distort the electoral process. We don't intend to let that happen here. "

A member of the U.S. delegation expressed disappointment that so small a change had to await progress in U.S.-Cuban relations.

 

Raul Amaro, president of the supreme court

Amaro informed the U.S. delegation that the constitution now stipulates that the courts are to function independently of other state organs and, to that end, supreme-court justices are appointed for life. He acknowledged that the Cuban supreme court does not have the authority to declare a law unconstitutional; but he said it does review all laws before they are enacted and, until now, none of its opinions has been rejected. "It is not your system, but we are moving toward three more distinct branches of government."

It was obvious to the U.S. delegates that Cuba is still far from having an independent judiciary. Moreover, in the hierarchy of state organs, the supreme court has neither the prestige nor the power of the executive, or even the national assembly.

 

Elizardo Sanchez, head of the Cuban Commission for Human Rights and National Reconciliation

In response to a direct query from his U.S. visitors, Sanchez responded that the economic reforms undertaken to date have been positive, but limited, tantamount to tinkering with the existing system.The government was not moving far enough, nor fast enough and, indeed, economic problems seemed to be worsening, although not in such dire terms as the exiles in Miami had suggested.

On the political front, reforms were negligible. There were two important steps the government could take:

-- rescind the law of social dangerousness
-- permit legitimate human rights groups to register and operate legally

It would also be useful if the regime were to adhere strictly to the provisions of its own constitution.

The Cuban people, he said, seem to be caught between two irresistible forces: on the one hand, the persistence of repression and the reluctance by government authorities to institute more far-reaching reforms; on the other hand, the rigid Cold War policy of the United States, immobilized by the "anti-Castro fundamentalists" in Miami's exile community.

U.S. initiatives aimed at bringing Cuba to its knees were counterproductive, he said, providing a pretext for Fidel Castro to remain in power and resist reform. Increasing the pressure now, e.g., with the Helms-Burton bill, could be extremely dangerous because it would exacerbate internal conditions and worsen the situation of human rights activists and of the people at large.

What the United States should do, if it is sincerely interested in a peaceful transition to democracy in Cuba, would be to begin to lift the embargo and allow normal commerce and communication between the two countries. "How can travel controls that prevent Americans from coming here possibly help bring about a more open society? The best thing for us would be to see thousands of Americans in our streets every day."

 

Also By Wayne S. Smith . . . highly recommended for classrooms

Our Cuba Diplomacy: A Critical Reexamination The former top U.S. diplomat to Havana evaluates U.S. Cuba policy during 1992-94. Rather than seeking a peaceful transitional process in Cuba, it seemed more intent on provoking some kind of internal explosion. Critically reviews eight assumptions behind the policy:
-- It will help Clinton carry Florida in 1996
-- It will bring Castro to his knees
-- Cuba is a violator of human rights
-- The policy has international support
-- It lets food and medicines through unimpeded
-- The Cuban government refuses to compensate for expropriated properties
-- It would be inconsistent to have embargoed Haiti and not Cuba
-- There have been no political or economic reforms

The Travel Ban to Cuba: The United States opts for the kind of travel controls usually imposed by authoritarian governments.

The Cuban-American Moderates By Hedelberto Lopez Blanch and Ignacio Hernandez Rotger. Two journalists visiting from Havana sample opinions among Cuban-Americans in Miami and Washington and find that old stereotypes no longer apply.

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ISSN 0738-6508

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