Rights in Cuba - Initiating the Dialogue
Wayne S. Smith
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.
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.
are highlights of the two-day forum, organized under several broad,
and legal standing
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.
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.
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.
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.
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.
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.
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.
"right" to development
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.
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
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.
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.
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.
politicization of human rights
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
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
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
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.
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.
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.
rights and public order
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.
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.
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.
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 AlarcĒn, Raul Amaro and Elizardo Sanchez Santa
AlarcĒn, president of the national assembly
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."
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
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
member of the U.S. delegation expressed disappointment that so small
a change had to await progress in U.S.-Cuban relations.
Amaro, president of the supreme court
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."
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.
Sanchez, head of the Cuban Commission for Human Rights and National
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.
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
would also be useful if the regime were to adhere strictly to the
provisions of its own constitution.
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
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.
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."
By Wayne S. Smith . . . highly recommended for classrooms
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
Travel Ban to Cuba: The United States opts for the kind of travel
controls usually imposed by authoritarian governments.
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.