Pope John Paul II's January 1998 call for the world to open up to Cuba and Cuba to open up to the world accelerated a process that has been under way since the end of the Cold War. No longer perceiving Cuba as a military threat, Western nations have increasingly distanced themselves from the U.S. policy of unrelenting confrontation with the Castro regime. Since the pontiff's unprecedented January visit to the island, several governments have restored normal relations with Cuba, some for the first time in decades. Eighteen heads of state visited Havana in 1998 as well as ministers from more than 100 countries. In an August 1998 tour of three Caribbean nations, the Cuban leader received a warm welcome, past animosities notwithstanding. In October, Castro was received in Madrid by Spain's King Juan Carlos in anticipation of a visit by the monarch to Cuba planned for 1999, while Spain's foreign minister, Abel Matutes, traveled to Cuba in November 1998. The number of countries opposing U.S. policy on Cuba at the United Nations General Assembly has steadily increased in recent years. In October 1998, the General Assembly approved by a record margin a nonbinding resolution calling for an end to the nearly forty-year-old U.S. embargo against Cuba, with only the U.S. and Israel objecting.
Cuba came in for criticism, however, following the March 16, 1999, sentencing of four dissidents—members of the Internal Dissidents' Working Group—to multi-year prison terms for the peaceful expression of opposition. Spanish Prime Minister José María Aznar said the terms could jeopardize the planned visit to Cuba by King Juan Carlos. In Ottawa, Canadian Prime Minister Jean Chrétien, who had pled for the dissidents' liberty during his April 1998 visit to Havana, called for a review of bilateral relations between the two countries.
Human Rights Watch welcomes the movement away from Washington's Cuba policy, which in nearly forty years has produced no softening of Fidel Castro's hard-line rejection of human rights reforms. A simple relaxation of pressure, however, will not by itself promote change in Cuba. If anything will bring about change in Cuba, it is international pressure. Washington's decades-old confrontational approach must be replaced by a principled and concerted human rights policy on the part of the international community. It is essential that the United States, the European Union, and Latin American and Caribbean nations reach agreement on a unified approach; the current situation in which Washington pushes confrontation while its partners promote conciliation renders them at cross purposes and leaves human rights victims in the lurch.
The cost of this dispute between erstwhile allies was evident at the United Nations Human Rights Commission in 1998, where international resistance to U.S.policy toward Cuba doomed a resolution extending the mandate of Cuba's special human rights rapporteur. Since 1991, U.S.- backed resolutions had been approved each year by memb
ers of the U.N. Human Rights Commission in its annual meeting in Geneva. In addition to condemning human rights violations on the island, the U.N. resolutions had kept alive the mandate of a special rapporteur assigned to monitor and publicly report on the human rights situation in Cuba. On April 21, 1998, members of the commission for the first time defeated Washington's annual resolution on human rights in Cuba. The vote, in which African and Asian nations supported Cuba's longstanding efforts to evade the human rights commission's scrutiny, marked a stinging rebuke to U.S. policy toward Cuba. Cuba had never allowed the special rapporteur, Carl Johan Groth, to visit the island. While this U.S. failure may represent a welcome sign of international resistance to U.S. policy, it also signals an unwarranted letup of human rights scrutiny by the world body.
Nonetheless, Cuba's crackdown in early 1999, sentencing to prison prominent dissidents and enacting new repressive legislation, appears to have galvanized international support for renewed pressure. At the April 1999 commission meeting, a resolution condemning Cuban human rights practices, which did not include a provision for a rapporteur, passed by a narrow margin.
This chapter primarily analyzes the impact on the Cuban human rights situation of policies adopted by the United States, the European Union, and Canada. In addition, Latin American and Caribbean nations have taken on increasing importance as counterweights to U.S. policy toward Cuba. These nations have adopted more active diplomacy with Cuba, albeit with differing degrees of enthusiasm. Several Latin American and Caribbean nations, with the support of Canada, have openly promoted Cuba's readmission to the Organization of American States, even though the OAS member states, as recently as September 1997, amended the organization's charter to allow the hemisphere's governments to ostracize any government coming to power by coup.137 In the 1960s, these countries not only expelled Cuba from the OAS but also adopted a region-wide embargo on trade with Cuba. Now Cuba has been invited to participate in the past three annual Ibero-American summit meetings of heads of state from Spain and Latin America, and the next summit has been scheduled to take place in Havana in 1999. In addition, most regional countries have adopted immigration accords withHavana providing for the immediate return to Cuba of fleeing refugees, a significant shift from past practices.
Unfortunately, much of the increased engagement of Latin American and Caribbean nations with Cuba has come without serious pressure for human rights reforms. Alth
ough Fidel Castro was among the twenty-one heads of state to sign the Declaration of Viña del Mar at the end of the 1996 Ibero-American summit, he did not hesitate to imprison Héctor Palacios Ruíz after the dissident circulated copies of the declaration and questioned Castro's willingness to uphold his commitments to respect democracy and civil and political rights.138 While Palacios Ruíz served more than a year in prison for defending the declaration, Latin signatories remained largely silent regarding Cuba's brazen action. Moreover, the persecution of Palacios Ruíz and other dissidents did not prevent the heads of state of the Ibero-American nations from scheduling their 1999 annual summit meeting in Havana.
During Castro's August 1998 tour of Jamaica, Barbados, and Grenada, the U.S. embargo was roundly criticized while human rights violations in Cuba were given short shrift. A notable exception to the conciliatory trend was the visit in May 1998 to Cuba of Brazilian Foreign Minister Luiz Felipe Lampreia, whose meeting in Havana with human rights defenders and statements emphasizing human rights sent an important signal of support for the human rights community in Cuba.139
United States Policy
The movement toward rapprochement since the Pope's visit to Cuba has brought unprecedented domestic and international opposition to the U.S. trade embargo. In January 1999 the Clinton administration announced several small steps to soften the impact of the embargo on the Cuban population, while rejecting a call from former Republican policy makers to empanel a bipartisan commission to review thoroughly U.S. policy toward Cuba. These measures followed a similar package of narrow measures announced in early 1998. Yet while the Clinton administration has adopted a more measured rhetoric toward the Castrogovernment than previous U.S. administrations,140 U.S. policy remains frozen due to the enactment of legislation in 1996 known as the Helms-Burton Act that for the first time codified the embargo, removing from the president's authority any possibility of modifying it without passing new legislation. Washington's basic approach to Havana remains defined by the all-encompassing trade embargo.
Flaws in the Embargo Policy
Human Rights Watch opposes the embargo against Cuba for the reasons described below.
The embargo is counterproductive to human rights protections. Although it has gone through minor permutations over the decades, the embargo remains a sledgehammer approach aimed at overthrowing the Castro government. As an all-or-nothing policy that has failed to achieve its objective, the embargo has made achievement of any subsidiary objectives—such as improving human rights practices—highly unlikely. The Cuban Liberty and Democratic Solidarity Act of 1996, otherwise known as Helms-Burton after its Republican co-sponsors Sen. Jesse Helms and Rep. Dan Burton, requires the embargo to remain in place until a transition government that "does not include Fidel Castro or Raúl Castro..." takes control in Havana. A more calibrated policy would allow for a relaxation of pressure in response to measurable improvements in Havana, such as releasing political prisoners, reforming legislation that criminalizes free expression of opinions, or allowing the establishment of independent political parties or trade unions. Instead, the embargo will reward nothing short of revolutionary change on the island.141 And since Castro has often predicated reform on an end to theembargo, a perfect stalemate has been achieved, to the detriment of victims of human rights violations and the Cuban population at large.
The embargo is indiscriminate. The Cuban population has suffered a steady deterioration in its standard of living over the course of nearly four decades, most sharply after the collapse of the Soviet Union, which had subsidized the island's economy since the 1960s. The embargo, which prohibits all trade—including food—with Cuba (excepting the sale of medicines under a complex and unwieldy licensing process), also severely limits travel to the island and punishes third countries that do business with Cuba.142 This broad clampdown has harmed the population as a whole, while making little apparent impact on those in power. Indeed, the embargo on trade with Cuba is one of the few sanctions packages in recent years that explicitly includes food and medicine. Responding to a complaint filed by the Center for Human Rights Legal Action, the Inter-American Commission on Human Rights of the OAS in February 1995 called on the Clinton administration to "put in place mechanisms to ensure that the necessary steps are taken for exemptions from the trade embargo in respect of [sic] medicine, medical supplies and basic food items...."143 In a study published in 1997, the American Association for World Health found that "the U.S. embargo has caused a significant rise in suffering—and even deaths—in Cuba."144
The embargo has alienated Washington's potential allies. The U.S. is likely to bring about change in Cuba only by adopting a common front with its allies. But almost every likely partner in such an endeavor—including the Pope, the United Nations General Assembly, and governments of every political stripe around the world—has condemned the embargo in unequivocal terms. Our own efforts to enlist Latin American governments to press for human rights improvements inCuba have met with stiff resistance. The U.S. embargo has engendered international sympathy for and solidarity with the Castro government. Indeed, Washington's rout at the U.N. Human Rights Commission in 1998, in which members of the commission refused to condemn human rights violations in Cuba, despite an abundance of evidence, shows how far other governments will go to distance themselves from U.S. policy. Approval of a resolution without assigning a rapporteur in April 1999 reflected the international community's outrage at the Castro governemnt's crackdown on dissidents in the first months of the year.
The embargo itself violates human rights. A variety of regulations limit U.S. citizens' ability to travel to Cuba, in violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States.145 In protecting freedom of expression, Article 19 includes "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers." To the extent that travel constitutes a means of sharing information, limiting travel violates the free exchange of ideas. Moreover, under the 1975 Helsinki Final Act and successive accords reached by the Conference on Security and Cooperation in Europe (now the Organization for Security and Co-operation in Europe, OSCE), the United States agreed to protect "human contacts" and oppose any bans on travel and telephone communications. The principles set forth in the instruments would clearly favor the removal of any barrier to such contacts raised by an OSCE member state in its relations with other nations.146 The embargo thus violates protected rights. The Clinton administration's January 1999 removal of the ban it had previously established on direct air travel to Cuba from Miami constituted a small step in the right direction.
The embargo is not working. If thirty-nine years of sanctions against Cuba has proven anything, it is that the policy is not working.
History of U.S. Embargo
Imposition of the Embargo in the 1960s
Since shortly after Fidel Castro and his guerrillas overthrew the corrupt and brutal government of Gen. Fulgencio Batista on January 1, 1959, the United States has used a combination of covert and overt measures aimed at ousting him, including numerous assassination attempts. The most enduring of these measures has been the U.S. trade embargo, which has remained in place for thirty-nine years.
In October 1960, as relations between the Castro government and the Eisenhower administration became increasingly hostile, the Commerce Department established an embargo on most U.S. exports to Cuba. The regulations also prohibited the re-export from third countries of U.S. goods or technical data. A general license granted by the Commerce Department still allowed the export of a very limited number of items, such as specific foods, medicines, and medical supplies.147
In September 1961, Congress strengthened the measure undertaken by the executive branch, authorizing the president to establish "a total embargo on all trade between the U.S. and Cuba."148 President Kennedy then proclaimed a comprehensive ban on trade with Cuba on February 3, 1962. The president ordered the Treasury Department to oversee the prohibition on imports from Cuba and to provide licenses for any needed exceptions. The Commerce Department was assigned authority for barring exports.149 Additional legislation and regulations implemented over the years sought to press third countries to isolate Cuba economically. Among these, the 1962 amendment to the Foreign Assistance Act barred U.S. aid to any country assisting Cuba and denied U.S. government business to any foreign ships that had visited Cuban ports.
In January 1962, Washington succeeded in pressing the Organization of American States to expel Cuba and to adopt a region-wide embargo on weapons trade.150 In July 1964, the OAS went so far as to mandate a collective embargo onall trade with Cuba, a measure that stayed in effect for eleven years and reflected the anger of regional governments over Castro's support for revolutionary forces throughout the hemisphere.
The steady tightening of the squeeze on Cuba included regulations implemented by the Treasury Department in 1963, freezing all Cuban-owned assets in the United States, and the revocation by the Commerce Department in May 1964 of the general license for the export of food and medicines to Cuba, thus requiring the granting of specific licenses for any such exports. In general, the government granted licenses only for humanitarian, rather than commercial purposes.151
Cuban Democracy Act of 1992
The adoption in October 1992 of the Cuban Democracy Act expanded the embargo while trying to ease its effects on the population as a whole. The law extended the extraterritorial provisions of the embargo by prohibiting foreign-based subsidiaries of U.S. companies from trading with Cuba. At the same time, the law allowed food to be donated to nongovernmental organizations, including churches, and individuals. Medicines and medical supplies could be exported as long as the Cuban government allowed on-site inspection to ensure that the supplies "benefit...the Cuban people" and are not sold for export. The Cuban Democracy Act also allowed the U.S. government to provide aid "through appropriate nongovernmental organizations, for the support of individuals and organizations to promote nonviolent democratic change in Cuba."152
Cuban Liberty and Democratic Solidarity Act of 1996
The Cuban Liberty and Democratic Solidarity Act, commonly referred to as Helms-Burton, sought to intensify the economic strangulation of Cuba by increasing the embargo's extraterritorial reach. The Cuban downing of two unarmed civilian aircraft in February 1996 created the climate for this hardened stance. Helms-Burton, which became law in March 1996, curtails the president's authority to relax the embargo and allows for lawsuits against those "trafficking" in property expropriated from U.S. citizens in Cuba in the aftermath of the revolution. The law also requires the U.S. government to exclude from the U.S. any foreigners deemed to own property confiscated from U.S. citizens or to have "trafficked" in such property. The law gives the president the authority to suspendfor six months the provisions allowing U.S. citizens to sue foreign investors.153 The law has provoked a roar of protest from U.S. trading partners in Europe and Canada, who have increased their investment in Cuba in recent years. This friction has led President Clinton to waive the right of U.S. citizens to sue foreign investors in U.S. courts continuously since the bill became law. In May 1998, Clinton and leaders of the European Union reached an agreement on investments in Cuba intended to avoid sanctions against European companies. The understanding between the U.S. and the E.U. provided that Brussels would inhibit and deter investment in expropriated properties (in Cuba and elsewhere) and the Clinton administration would seek from Congress a waiver of the provision denying U.S. visas to investors holding properties that were expropriated from U.S. nationals. As of this writing, Congress had yet to pass legislation allowing such a waiver.154
Recent Measures (1999)
The administration lost an important opportunity to explore a new policy for Cuba in January 1999. In late 1998, a group of former high-level State Department and Pentagon officials along with Republican Senator John Warner of Virginia asked President Clinton to establish a bipartisan commission to review U.S. policy toward Cuba in light of the considerable global political changes since the embargo was first imposed. The initiative's supporters included former Secretaries of State Henry Kissinger and Lawrence Eagleburger, former Secretary of Defense Frank Carlucci, former Senate Majority Leader Howard Baker, and several current senators. This surprising initiative from conservative leaders reflected in large part the growing interest on the part of U.S. corporations in investment and trade with Cuba. After a few weeks of study, the administration rejected the proposal.
Instead, the Clinton administration adopted a more cautious approach, announcing a package of measures including broadening the allowance for remittances to Cuba, allowing sales of U.S. food and agricultural products to Cuban farmers and family restaurants, increasing U.S. charter flights to Cuba, and establishing direct mail service between the two countries. In addition, the administration announced its intention to allow the Baltimore Orioles managementto negotiate exhibition baseball games with the Cuban national baseball team.155 The first of these games took place in Havana in March 1999 and the second in Baltimore in May 1999.
Many of these measures were themselves recommended by an "independent task force" organized by the prestigious Council on Foreign Relations in a December 1998 report. Without taking a position on the embargo, the task force—chaired by former Assistant Secretaries of State Bernard W. Aronson and William D. Rogers—called for a new goal for U.S. policy: "working to create the best possible conditions for a peaceful transition in Cuba and the emergence of a democratic, prosperous and free Cuba in the 21st century." In addition to encouraging a broadening of contacts between Cuba and the U.S., the report advocated increased U.S. support for Cuba's incipient civil society. Moreover, both the Council on Foreign Relations recommendations, as well as the Clinton administration's latest measures, grew out of an emerging consensus that the embargo's harsh effect on the Cuban population must be mitigated.156 The administration's measures will not have the far-reaching effects that could have been produced by a bipartisan commission with a mandate to review all aspects of U.S. policy toward Cuba, including the embargo.
Effects of the Embargo on Travel
Limits on U.S. travel to Cuba date from a January 16, 1961, notice issued by the State Department that proclaimed travel to Cuba by U.S. citizens to be "contrary to the foreign policy of the United States and ...otherwise inimical to the national interest." Since that day, travel restrictions have been alternately tightened and eased at different moments, but never lifted. In 1999, travel to and from Cuba remains highly restricted.
Under the 1961 State Department notice, anyone traveling to Cuba was required to receive a specific endorsement in his or her passport from the State Department. U.S. efforts to prosecute citizens who ignored this ruling did not withstand legal challenge, however. After the Kennedy administration filed criminal indictments against American Levi Laub for organizing travel to Cuba of fifty-eight U.S. citizens whose passports were not endorsed by the State Department, the U.S. Supreme Court in 1967 ruled that travel without a specifically endorsed passport did not constitute a crime under the relevant statute.157
Following its defeat at the Supreme Court, the Kennedy State Department issued a new notice, proclaiming travel to or in Cuba "restricted" on the grounds that it "would seriously impair the conduct of U.S. foreign affairs." Similar notices, and a requirement that U.S. passports be specifically endorsed by the State Department for travel to Cuba, remained in effect until 1976, although there were no further efforts to prosecute those who defied the restrictions. However, Treasury Department regulations barring financial transactions related to travel to Cuba, promulgated in 1963 under the Trading With the Enemy Act of 1917, are criminally enforceable. These measures have endured as the principle means of restricting U.S. travel to Cuba. The Treasury Department has granted some licenses to travel, but the categories of these exceptions have been narrowed or broadened at different points over the past four decades. In 1999, the only exemption to the requirement for a specific license is for travel by diplomats, members of intergovernmental organizations such as the U.N., and full-time journalists. Those visiting close relatives in Cuba may also travel once a year without a license.158 All others must apply for a license from the Office of ForeignAssets Control of the Treasury Department. Violators can be imprisoned for up to 10 years and fined up to $250,000; corporations are subject to $1,000,000 fines. Under the Cuban Democracy Act of 1992, the Treasury Department may impose an additional civil penalty of up to $50,000 per violation, a provision that has not been superseded by the Helms-Burton law.159
A presidential proclamation issued in 1985 by President Ronald Reagan restricts Cuban travel to the United States, barring issuance of visas to Cuban government officials. The U.S. government has used this proclamation to deny visas to Cubans of diverse backgrounds, including scientists, poets, dancers, and university students on the grounds that their salaries are paid by the government.160
The U.S. and Cuban Exile Violence
In a July 1998 article, The New York Times quoted the reclusive Cuban exile Luis Posada Carriles saying that for years, the Miami-based Cuban American National Foundation (CANF) and its late president, Jorge Mas Canosa, hadfinanced hotel bombings and other acts of violence in Cuba under the direction of Posada Carriles, an allegation the CANF hotly denied and Posada later disavowed.161 The New York Times detailed the long lived relationship between the U.S. Central Intelligence Agency (CIA) and Posada Carriles's commandos. CIA agents trained Posada Carriles's commandos in sabotage and violence and directed their activities, the account states, only to abandon them as unsavory criminals in the 1970s.162
The New York Times indicated that, even after the U.S. government no longer sponsored his violent activities, Posada Carriles may have benefited from a tolerant attitude on the part of U.S. law enforcement. As bombs ripped through tourist hotels and restaurants in Havana, the New York Times reported, a Cuban-American business-partner of Posada Carriles's tried to inform first Guatemalan, then U.S. law enforcement of Posada's involvement and possible links to Cuban exiles in Union City, New Jersey.163 In March and April 1999 Cuban judges sentenced two Salvadorans, Raúl Ernesto Cruz Leon and Otto René Rodríguez Llerena, to death for their alleged involvement in bombing Cuban hotels.164
The Clinton administration's reaction to the New York Times accounts suggests an effort to distance itself from the hardliners, even while its hands remain tied by the Helms-Burton Act. Weeks after the sensational New York Times series appeared, U.S. prosecutors filed attempted murder charges against seven Cuban exiles who allegedly plotted to kill Castro, charges that could bring a life sentence. The decision to charge the seven with attempted murder under Section 1116 of the Federal Criminal Code, instead of violations of the Neutrality Act, allows for aharsher penalty and the avoidance of a defense based on debate over U.S. policy. Among those indicted by a federal grand jury was businessman José Antonio Llama, a member of the CANF executive committee. The conspiracy was apparently intended to culminate with the assassination of Castro as he joined other Latin heads of state for the annual Ibero-American summit meeting held in November 1997 on Margarita Island, off the coast of Venezuela. With the indictment, the Clinton administration for the first time charged someone with attempting to murder Castro—an activity that had allegedly been a prime objective of previous U.S. administrations.165
European Union Policy
The European Union outlined a distinctive human rights policy toward Cuba in its December 1996 "Common Position," conditioning full economic cooperation with Havana on important human rights reforms. In addition, the E.U. has expressed strong opposition to the U.S. trade embargo against Cuba, especially in its present Helms-Burton incarnation, while promoting dialogue with Cuba in the interests of encouraging a political and economic opening. Yet efforts to use European aid as a carrot to induce Castro to implement human rights reforms have been rebuffed by Havana, leaving European policy, like that of the U.S., at a stalemate. The European Union should redouble its efforts to bring about concrete human rights reforms in Cuba, in cooperation with Canada and Latin American and Caribbean nations. If major reforms are not immediately attainable, more modest goals should be more energetically pursued, such as the release of individual political prisoners and access of the International Committee of the Red Cross to Cuban prisons.
In June 1995 the European Commission recommended the initiation of exploratory talks with Cuba in the interests of reaching a "cooperation agreement" to establish conditions for European assistance to the island, such as the E.U. has with every other Latin American country. This initiative followed a surge of European trade and investment in Cuba. In the early 1990s, Europe moved from being an insignificant player in Cuban trade and investment to becoming Cuba'slargest trading partner and second largest foreign investor.166 According to recent official figures, half of the 350 or so economic ventures in Cuba with foreign capital that have been approved are from E.U. member states.167 During an E.U. summit meeting in Madrid in December 1995, the European Council asked the commission to continue its preliminary talks with the Castro government and to present a draft cooperation agreement to the council in 1996. Commissioner Manuel Marín of Spain traveled to Cuba several times. In his most important journey in February 1996, Marín met with Fidel Castro and members of his government in an unsuccessful effort to win approval for the human rights reforms necessary to reach an agreement.168
The incipient warming trend in European Union relations was put on ice, however, by the February 24, 1996, downing of two civilian aircraft in Cuban airspace, the imprisonment of leaders of the dissident Cuban Council, and the failure of Marin's efforts to win from Castro a commitment to human rights reforms. In addition to a commitment to allow more freedom for private enterprise, Marín's list of needed reforms included the removal from Cuba's criminal code of specific provisions that violate freedom of expression and association. As Marín prepared to leave the island empty-handed, Cuban security agents arrested the entire leadership of the Cuban Council, including those who had met with Marín earlier in his visit.169 Castro's firm rejection of the European initiative made discussion of a cooperation agreement unthinkable.
The E.U.'s subsequent position was defined in December 1996, with the adoption of a "Common Position" on Cuba, which the European Council has renewed every six months since then. The document's preamble lays out aprincipled position on human rights and carefully takes distance from Washington's policy:
The objective of the European Union in its relations with Cuba is to encourage a process of transition to pluralist democracy and respect for human rights and fundamental freedoms, as well as a sustainable recovery and improvement in the living standards of the Cuban people. A transition would most likely be peaceful if the present regime were itself to initiate or permit such a process. It is not the European Union policy to try to bring about change by coercive measures with the effect of increasing the economic hardship of the Cuban people.170
Noting that the E.U. member states will continue on an ad hoc basis to provide economic cooperation and humanitarian aid through nongovernmental organizations, the Common Position affirms the E.U.'s conviction that "full cooperation with Cuba will depend upon improvements in human rights and political freedom...." In particular, the E.U. calls for "the reform of internal legislation concerning political and civil rights, including the Cuban criminal code, and, consequently, the abolition of all political offences, the release of all political prisoners and the ending of the harassment and punishment of dissidents...."171 On December 6, 1998, the E.U. concluded that it had "intensified its dialogue with the Cuban authorities and all sectors of Cuban society, in particular regarding human rights..." and confirmed a strong desire to act "as Cuba's partner with a view to the progressive and irreversible opening of the Cuban economy." The E.U. "nevertheless considered that full cooperation with Cuba will depend on an improvement of the situation regarding human rights and fundamental freedoms."172
In an effort to continue dialogue with Cuba while insisting on human rights reforms, the European Union in June 1998 agreed to allow the Castro government to participate as an observer in the latest round of negotiations of the Lomé Treaty, which gives preferential trade status to seventy-one less developed countries in Africa, the Caribbean, and the Pacific (ACP). However, Cuba's full integrationinto the group will depend on substantial progress in human rights and political freedom. Cuban Foreign Minister Roberto Robaina was quick to reject these conditions.173 During a visit to Cuba in November 1998, Spanish Foreign Minister Abel Matutes commented on Cuba's prospects to become a full-fledged member of the ACP group, stressing his hopes that "the process of reflection in which the Cuban government is immersed comes to a positive conclusion, so that Cuba can benefit from the exceptional instruments that the E.U. is offering to developing countries."174
In the meantime, the fact that Cuban workers in foreign enterprises—like their peers in the state sector—have no possibility to organize or bargain collectively, presents a dilemma for European companies to avoid being complicit in the Cuban government's human rights violations. Workers' rights are limited by the government's control over hiring and firing, regulations against petitioning for improved conditions or wages, and other laws limiting freedom of association.175 The fact that European companies—like all foreign investors in Cuba—benefit financially from these restrictions should not interfere with the need to take steps to promote labor rights. Investors should insist that the criteria employed by the government in individual employment decisions not discriminate on political, religious, or racial grounds. Moreover, European governments should make the establishment of freedom to bargain collectively a primary objective in their bilateral relations with Cuba.
In the last four years, Canada also has undertaken initiatives to strengthen diplomatic ties with Cuba as its investments there grew significantly. The Canadian policy, like that of the European Union, is one of dialogue and major investment tempered by some criticism of human rights violations. To its credit, the Canadian government has kept up a bilateral conversation with Cuba about humanrights since January 1997. The message Canada has delivered, however, remains meek.
Canada's constructive engagement policy with Cuba is based on a January 1997 accord between Ottawa and Havana addressing investment, taxation, banking, and other issues, as well as calling on Canada to hold seminars and train Cuban judges on human rights issues. Since then, several seminars have been held on women's and children's rights.176 The Cuban government, which detained several dissidents during the negotiation of the accord, does not appear to have changed its human rights practices as a result of the program.
Canadian officials, especially Foreign Affairs Minister Lloyd Axworthy, have been outspoken in their criticism of the U.S. embargo, even as they withhold from Havana what they term full cooperation in the absence of human rights reforms. Unfortunately, Canada's policy, like that of the E.U., has little to show for itself in human rights improvements, excepting the release of a handful of prisoners on the condition that they abandon their country. Canadian policy makers believe the U.S. embargo impedes their efforts, Nonetheless a mistaken policy by the United States does not justify an ineffectual one by other governments. Canada's government has failed to give human rights the preeminent place it deserves in its relations with Cuba. Its constructive engagement policy may now come under a much-needed review as a result of the March 1999 sentencing to three- to five-year prison terms of four dissident leaders.
Canadian Prime Minister Jean Chrétien's April 1998 visit to Havana illustrated both Ottawa's low profile approach to human rights and the ineffectiveness of that approach. Although his agenda included human rights as well as trade, the prime minister avoided public comment on civil and political liberties, and eschewed meeting with Cuban dissidents, although other members of the delegation met with rights defenders. During their private meeting, Chrétien handed Castro a list of four prisoners he wanted released, the members of the Internal Dissidents' Working Group detained for urging democratic reforms in July 1997.177 Despite Chrétien's private request, the dissidents remained behind bars and have now been sentenced to several years in prison.
Chrétien's public silence on human rights represented a wasted opportunity to build on the momentum toward political opening begun by the pope during his visit. While Pope John Paul II has—like Canadian officials—repeatedly denounced the U.S. embargo, he did not hesitate while on the island to call publicly for respect for human rights. Chrétien's reticence on human rights suggests a desire to maximize opportunities for trade and investment, even while Cuba thumbs its nose at international human rights principles. Indeed, Canadian companies, like their European counterparts, benefit from major investments on the island in which workers have no possibility to organize. Like the European investors, Canadian companies should insist that employment decisions not be based on political, religious, or racial grounds, while the government presses Havana to establish the right of workers to form independent unions and bargain collectively.
Canadian officials have spent two years trying to build a relationship with Havana distinct from that of the United States. It is time now for Ottawa to produce results from its careful engagement of the Castro government. In addition to the most pressing and difficult issues, like an end to the criminalization of free expression and association, Canada should press for more modest goals, such as allowing the International Committee of the Red Cross access to Cuban prisons. Otherwise Canadian human rights policy will be less detrimental than U.S. policy toward Cuba, but not any more effectual.
140 In dispassionate comments unusual for a U.S. official, President Clinton responded to a reporter's question about Cuba in a May 6, 1998, press conference saying: "I understand the desire of the Cuban government to keep its health care system, to keep its commitment to universal literacy to even its poorest citizens. That's a commendable and laudable thing. But I do not accept, nor can I ever accept, some of the anti-democratic and, frankly, clearly anti-human rights policies of the government...." The White House, Office of the Press Secretary, "Press Conference of the President and Prime Minister Prodi of Italy," May 6, 1998.
141 The Cuban Democracy Act of 1992, which was superseded by Helms-Burton, described itself as a calibrated policy, stating in its preamble that "It should be the policy of the United States ... (6) to maintain sanctions on the Castro regime so long as it continues to refuse to move toward democratization and greater respect for human rights; [and] (7) to be prepared to reduce the sanctions in carefully calibrated ways in response to positive developments in Cuba...." However, the statute's only specific provision for lifting sanctionsallowed such action only after free and fair elections had been held and respect for human rights restored. And while this may have represented a more flexible policy than the statutes it replaced, it was overtaken by Helms-Burton's all-or-nothing approach four years later.
142 The Clinton administration's new measures announced, but not yet implemented in January 1999, would allow for some sales of food to nongovernment entities in Cuba. The embargo does not prohibit food donations, which must be licensed by the Treasury Department.
143 Letter to Wallie Mason, Center for Human Rights Legal Action, from Alvaro Tirado Mejía, Chairman, Inter-American Commission on Human Rights, Organization of American States, Washington, D.C. February 17, 1995.
144 American Association for World Health, "Denial of Food and Medicine: The Impact of the U.S. Embargo on Health & Nutrition in Cuba," March 1997, p. 6.
145 Travel is restricted through licensing requirements and a prohibition on financial transactions with Cuba, as described below.
146 Human Rights Watch, World Report 1993 (New York: Human Rights Watch, 1992), p. 98. During direct talks between the United States and Cuba on migration in 1994, authorities agreed to allow U.S. long distance telephone companies to reestablish and upgrade long distance telephone service between the U.S. and Cuba. This step removed one impediment to communication between the two countries that Human Rights Watch had criticized in the past as a violation of Article 19 of the ICCPR.
147 Michael Krinsky and David Golove, Eds, United States Economic Measures Against Cuba: Proceedings in the United Nations and International Law Issues, (Northampton: Aletheia Press, 1993), p. 110.
148 Foreign Assistance Act of 1961, Pub. L. No. 87-195, 75 Stat. 424. Section 620 (a), 22. U.S.C. § 2370 (a). The president already had the authority to ban trade with Cuba under the Trading with the Enemy Act, 50 U.S.C. App § 5(b).
149 Proclamation No. 3447, Feb. 3, 1962, 27 F.R. 1085, Embargo on Trade with Cuba.
150 Krinsky, p. 112.
151 Ibid., pp. 113-114.
152 Executive Order No. 12854, July 4, 1993, 58 F.R. 36587, Implementation of the Cuban Democracy Act, Section 6004(g).
153 Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, March 1, 1996, 104th Congress 2d Session, House of Representatives Report 104-468.
154 Human Rights Watch interview with Michael E. Ranneberger, director, Office of Cuban Affairs, U.S. Department of State, February 1, 1999.
155 Office of the Press Secretary, "Statement by the President," The White House, January 5, 1999. Tim Weiner, "U.S. Ready to Ease Some Restrictions in Policy on Cuba, New York Times, January 5, 1999; Norman Kempster, "U.S. Has Post-Castro Era in Mind With Latest Steps," Los Angeles Times, January 6, 1999; On-the-record briefing on Cuba, Amb. James Dobbins, Special Assistant to the President and Senior Director for Inter-American Affairs, NSC; Amb. Peter Romero, Acting Assistant Secretary of State for Western Hemisphere Affairs; and Michael Ranneberger, Coordinator for Cuban Affairs, Department of State, as released by the Office of the Spokesman, U.S. Department of State, Washington, DC, January 5, 1999.
156 Bernard W. Aronson and William D. Rogers, "U.S.-Cuban Relations in the 21st Century," Independent Task Force of the Council on Foreign Relations, December 30, 1998.
157 Section 215 (b) of the Immigration and Nationality Act of 1952 gives the president the authority to prohibit U.S. citizens from traveling to and from certain countries without a valid passport. It does not, the court determined, make it a crime to travel to or from a designated country with a passport not specifically validated for that country. State Department area restrictions on the use of otherwise valid passports, the court ruled, are not criminally enforceable. Rather their purpose is to "make clear that the passport was not to be regarded by the traveler in Cuba as a voucher on the protective services normally afforded by the State Department." United States v. Laub et al, No. 176, Supreme Court of the United States, 385 U.S. 475; 87 S. Ct. 574; 1967 U.S. LEXIS 2575; 17 L. Ed. 2d 526; January 10, 1967, Decided.
158 During the Carter Administration, restrictions on travel were considerably eased, only to be tightened again under President Ronald Reagan. Professional research remained exempt from the restrictions on travel-related expenditures, as did news-gathering, official governmental travel, and those visiting close relatives in Cuba, but all others remained barred from spending any money or providing any services while traveling toCuba. (Krinsky, pp. 119-120; Wayne S. Smith, "The Travel Ban to Cuba," International Policy Report, Center for International Policy, May, 1994; and Elisa Muñoz, The Right to Travel: The Effect of Travel Restrictions on Scientific Collaboration Between American and Cuban Scientists [Washington: American Association for the Advancement of Science, 1998], p. 8). While the Cuban Democracy Act slightly loosened restrictions in 1993, the Clinton administration tightened the restrictions again in August 1994, revoking the general license for family visits to Cuba by Cuban-Americans, as well as the general license for professional research in Cuba. The only categories of travelers still allowed to visit Cuba on a general license were full-time journalists, diplomats, and representatives of international organizations of which the U.S. is a member, such as the U.N. or OAS. All others, including family members and researchers, were required to apply to the Treasury Department for a specific license to travel to Cuba. Cuban-Americans were required to claim a compelling family need for travel to Cuba, such as a grave illness. In October 1995, Cuban-Americans were allowed to travel once a year in emergency situations under a general license. (Human Rights Watch interview with Clara David, licensing officer, Office of Foreign Assets Control, U.S. Department of Treasury, September 14, 1998.) In 1996, following the shootdown of civilian aircraft over Cuba, the U.S. cancelled direct charter flights between Miami and Havana, and again tightened restrictions on U.S. travel. Following the Pope's January 1998 visit to Cuba, Clinton again allowed charter flights.
159 U.S. Department of the Treasury Office of Foreign Assets Control, "Cuba: Travel Restrictions, October 23, 1995; and Krinsky, pp. 115-116.
160 American Association for the Advancement of Science, "The Effect of Travel Restrictions on Scientific Collaboration Between American and Cuban Scientists, April 1998; and Wayne S. Smith, "The Travel Ban to Cuba."
161 Ann Louise Bardach and Larry Rohter, "Key Cuba Foe Claims Exiles' Backing," New York Times, July 12, 1998; Bardach and Rohter, "Life in the Shadows, Trying to Bring Down Castro," New York Times, July 13, 1998; "It's All False, Exiles Say," New York Times, July 13, 1998; and "Cuban Exile Says He Lied to Times About Financial Support," New York Times, August 4, 1998.
162 Bardach and Rohter, "Life in the Shadows, Trying to Bring Down Castro," New York Times, July 13, 1998.
163 Bardach and Rohter, "Authorities Knew of Bombing Campaign, Says Cuban Exile," New York Times, July 12, 1998.
164 Anita Snow, "Cuba Sentences Salvadoran to Death," Associated Press, March 23, 1999, "Cuba: Cuba Sentences Second Salvadoran Bomber to Death," Reuters News Service, April 1, 1999, and "Cuba: Cuba Seeks Second Death Sentence in Bombings," Reuters News Service, March 17, 1999.
165 Gerardo Reyes and Juan O. Tamayo, "Seven Indicted in Plot to Kill Castro; CANF Official Named in Grand Jury Probe," Miami Herald, August 26, 1998; and Carol Rosenberg and Juan O. Tamayo, "Feds Take Hard Line in Castro-plot Case," Miami Herald, August 27, 1998.
166 Ibid, p. 5; and Resolution on the Communication from the [European] Commission to the Council and the European Parliament on the Relations between the European Union and Cuba (COM(95)0306 - C4-0298/95).
167 Patricia Grogg, "Politics-Cuba: Cuba Gaining Respect of World Leaders," IPS, November 18, 1998.
168 Institute for European-Latin American Relations, "Cuba and the European Union: The Difficulties of Dialogue," June 17, 1996, pp. 1-2.
169 Richard A. Nuccio, "Cuba: A U.S. Perspective," paper prepared for the Brookings Institution's Conference on "Translatlantic Tensions: The Challenge of Difficult Countries," March 9-10, 1998, Washington, D.C., February 16, 1998, p. 26.
170 Common Position of 2 December 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Cuba. Official Journal No. L 322, 12/12/1996, p.1.
172 E.U. General Affairs Council conclusions of December 6, 1998.
173 "UE: La Unión Europea ayuda a Cuba con su Inclusión en el Grupo de Países Pobres con Ventajas Comerciales," El Pais Internacional, June 30, 1998; "Europa Exige a Cuba Drásticos Cambios Políticos," Contacto, July 1998, pp. 38-39; and "EU: Cuba Rejects Conditions for Improving EU Ties," Reuters News Service, June 30, 1998.
174 Patricia Grogg, "Politics-Cuba: Cuba gaining respects of world leaders," IPS, November 18, 1998.
175 See above, Labor Rights.
176 Joint Declaration of the Ministers of Foreign Affairs of Canada and Cuba, Havana, January 22, 1997; and notes prepared for delivery of speech of Peter M Boehm, Ambassador of Canada and Permanent Representative to the Organization of American States, at the annual meeting of the Cuban Committee for Democracy, Miami, September 12, 1998.
177 Anthony DePalma, "Chrétien Finds Castro Willing to Deal, Just Not on Rights," New York Times, April 28, 1998. See above, Political Prosecutions.
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