These labor rights abuses contradict the Cuban government's claims of protecting the rights to association, assembly, and expression, and the right to work. The government's assertions that it guarantees these rights are further undermined by the constitutional provision that government-backed "mass and social organizations have all the facilities for carrying out [these rights], in which their members enjoy the most extensive freedom of speech and opinion."239 Thus, Cuba only permits one confederation of state-controlled unions, the Workers' Central of Cuba (Central de Trabajadores de Cuba, CTC), which is mandated to embrace "the struggle for the defense of Socialism and its principles."240 CTC leaders also serve among Cuba's highest political authorities. Current CTC Secretary General Pedro Ross, for example, serves on the Communist Party Political Bureau (Buró Político del Partido, politburó). Meanwhile, Cuba has not legalized any independent union, either in the broader national economy or in the foreign investment sector, and the restrictive measures of the Associations Law allbut preclude such a step.241 Independent labor activists regularly risk detentions, harassment, threats of prosecution, and pressures to go into exile.
Cuba's laws and practices fail in numerous respects to comply with international labor standards that it is bound to uphold. The Cuban government has ratified multiple international treaties protecting labor rights.242 Cuba's obligations under the Universal Declaration of Human Rights also require that it guarantee the right to form and join trade unions.243
Human Rights Watch interviews with former Cuban prisoners provide disturbing evidence that Cuba abuses labor rights in its prisons. The Cuban government has an extensive system of prison labor camps, and runs clothing assembly, construction, furniture, and other factories as well as agricultural camps at its maximum and minimum security prisons.244 The Standard Minimum Rules for the Treatment of Prisoners require prisons to have physically fit convicts take part in vocational training and engage in meaningful, rehabilitative work for equitable remuneration.245 However, Cuba's insistence that political prisoners participate in work programs and its inappropriate pressuring of inmates to work without pay in inhuman conditions violate international labor and prison rights standards.
The ILO's Abolition of Forced Labor Convention of 1957, which Cuba ratified in 1958, requires states to "secure the immediate and complete abolition" of forced or compulsory labor "as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system."246 Thus Cuban prison authorities' requirement that individuals work while serving prison terms for holding anti-government views violates the Abolition of Forced Labor Convention.
Authorities at the Boniato prison in Santiago pressured Luis Alberto Ferrándiz Alfaro to employ the skills that led to his twelve-year sentence for enemy propaganda—he had designed anti-Castro stamps and flyers—for the benefit of the prison factory. Prison officials working for the Interior Ministry's Desa Company (Empresa Desa) reminded Ferrándiz Alfaro that since both he and his wife were imprisoned in 1993, their two young children lacked financial support.247 Under duress, Ferrándiz Alfaro accepted a post with Desa as a designer for numerous items, including jewelry and furniture.248 In return, the prison director sent eighty pesos per month (approximately U.S. $3.81) to the couple's children. Few prisoners receive even meager compensation. Ferrándiz Alfaro recalled the prison director commenting that other prisoners received their payment in "air and sun." Ferrándiz's work for the Desa Company ended when the Cuban government forced him into exile in Canada in February 1998.249
Ferrándiz Alfaro's wife, Xiomara Aliat Collado, who received a seven-year sentence for enemy propaganda, also was obligated to work. Prison guards told her that if she did not work in the prison's assembly factory she would lose her right tovisits with her children, her right to parole, or be sent to work in the nearby agricultural camp. From her arrest in March 1993 until March 1994, she worked at the Aguadores Prison in Santiago. After she was put under a year of house arrest to care for her ill son, she was imprisoned again and worked in the Ciudamar Prison factory in Santiago from March 1995 until her release in April 1996. Prison guards forced Aliat Collado to work in clothing assembly plants, where she made undergarments, women's clothing, and costumes for carnival celebrations. The inmate-workers did not attach any brand name labels to the clothing. Aliat Collado believed that the clothes were sold in state craft stores. The prisoners also made prison uniforms, envelopes, and paper holders for ice cream, which she said were used at the Helado Coppelia ice cream store in Santiago. She said that she often felt dizzy and weak while she worked, due to malnourishment, but that prison guards accused her of pretending to be ill, failed to provide sufficient food, and required extremely long hours. The workdays often extended from 7:00 a.m. until 10:00 p.m., with a short mid-day break. The armed prison guards who patrolled the factories often required workers to labor seven days a week.250
At this writing, Juan Carlos Recio Martínez, a journalist with the Cuba Press agency, is serving a one-year sentence in a labor camp, without internment. In February 1998, a Villa Clara court found him guilty of having failed to denounce an acquaintance who had drafted a document urging abstention from local elections.251 In June 1998, he began serving his sentence at the Abel Santamaría Cooperative, near Camajuaní in Villa Clara province, where he was forced to do agricultural work from approximately 7:00 a.m. to 5:00 p.m. each day.252
In October 1997, Cuban authorities arrested five members of the Pro Human Rights Party of Cuba in Cienfuegos. In March 1998, the court found the human rights activists guilty of "other acts committed against state security" (otros actos contra la seguridad del estado).253 The tribunal sentenced two of the defendants,sixty-nine-year-old Angel Nicolás Gonzalo and sixty-six-year-old Reynaldo Sardiñas Delgado, to one year in a labor camp without internment. Given Gonzalo's and Sardiñas Delgado's advanced age, Cuba may be violating the Standard Minimum Rules, which recommend that only physically fit prisoners work. Forcing the human rights activists to work also violates the ILO ban on compulsory labor for political prisoners.254
Cuba's work programs for common prisoners failed to comply with the Standard Minimum Rules' provisions regarding prison labor in several respects. The Cuban prison labor system's reliance on malnourished prisoners, its non-existent or extremely low wages, and its insistence that prisoners work without rest periods, all violate provisions of the Standard Minimum Rules. Viewing these practices alongside the sales of prisoner-made products outside the prison walls, it appears that many Cuban prisons favor profit over prisoners' welfare, which is explicitly prohibited under the Standard Minimum Rules.255
Cuban prison officals provide inmates with inadequate amounts of food.0 The malnourished prisoners, who also face poor hygiene and cramped living conditions, often are weakened and disease-prone. These prisoners most likely are not physically fit for their assigned tasks, particularly the demands of farmwork. The Standard Minimum Rules require prison medical officers to establish all inmates' physical and mental fitness to work.1 While some prisons apparently provide inmate-workers with minor improvements in their food rations, others make no adjustments in the prisoners' diets. Some hungry prisoners reportedly seek out field work for an opportunity to eat, even though guards prohibit them from doing so. Although prisoners plant and tend vegetables and raise livestock, including dairy cows, chickens, and pigs, typically neither working prisoners nor other inmates benefit from this production.2 Prison and military officials sellthese products at local markets or take them for their own use. The practice of allowing military or prison officials to profit personally from prison labor creates incentives for abusing the custodial relationship with prisoners.
While failing to provide prisoners with proper nutrition, Cuban prison officials also demand that they work long hours, sometimes without any rest days all week. The Standard Minimum Rules require prison officials to grant prisoners at least one rest day per week and to comply with domestic legislation on the maximum hours worked each week.3 The Cuban constitution mandates a maximum eight-hour work day.4 As of early 1998, in the Boniato Prison in Santiago, the Valle Grande Prison in Havana, and the Las Tunas Provincial Prison, guards reportedly required inmates to work seven-day weeks of ten or more hours per day.5 The prisoners in these facilities were producing cement blocks, reportedly for private homes for Interior Ministry and military officials, as well as building a cellblock on the prison grounds.
The Standard Minimum Rules require prison work programs to provide inmates with "equitable remuneration," which prisoners can spend on approved articles or send to their families, or which prisons should provide to inmates upon their release.6 Cuba reportedly violates this provision by paying nothing to the vast majority of working inmates. Yet, the Cuban government reported to the United Nations that, "prisoners were... paid on the same basis as the rest of the population."7 Prison authorities also arbitrarily deny promised wages, "discount" wages with deductions for food and clothing costs, and refuse to pay prisoners theiraccumulated wages upon release.8 As of early 1998 in the Agüica Prison in Matanzas, for example, officials reportedly promised prisoners a wage of twenty cents of a Cuban peso, (or U.S. 1 cent) per day to make mattresses. In contrast to Cuba's statements before the U.N., this amount is far below Cuba's minimum wage.9 The officials discounted this wage for food and clothing costs and often refused to pay prisoners at all. On average, each prisoner reportedly could produce one mattress a day, which the prison authorities sold in local stores for approximately 1,000 pesos (or U.S.$47.62).10
The Cuban prison labor program's sales of prisoner-made products, such as mattresses, in conjunction with the refusal to pay inmates for their work, highlighted Cuba's apparent interest in profiting from prison labor, rather than rehabilitating prisoners. Beyond selling to domestic markets, some former prisoners told Human Rights Watch that they produced items for sale in Cuban government dollar stores or made materials for use in the Cuban tourism industry. Rosalina González Lafita worked in the Manto Negro Prison in Havana for over ten years, until February 1998. She believed that the government sold the bluejeans she sewed, which reportedly bore Jordache and Lois labels among others, in dollar stores, along with some lingerie and other clothing sewn in the prison.11 At the Boniato Prison in Santiago, some prisoners reportedly were sent off the prison grounds to work on restaurant and cafeteria construction projects.
Prison authorities apparently coerce some prisoners into working by threatening to deny prison benefits, including family visits.12 This practice violates the Standard Minimum Rules' provision encouraging prison officials to help inmates maintain family and community ties.
Government Repression of Labor Activists
The Cuban Labor Code, Law No. 49 of December 1984, asserts workers' rights to freely associate, to form unions, and to discuss and express opinions about any matter they wish.13 The labor code also endorses the principle that no worker should be denied a job due to his or her political opinion.14 But the government's restrictive legal requirements on free association and expression and union formation, together with its repressive activities, form significant impediments to independent labor activism and to free expression. In practice, the government effectively bans independent labor unions. Cuba's Associations Law requires that the state play a prominent role within any legalized association.15 If independent labor activists or union organizers wish to operate legally, they have no alternative but to subject themselves to restrictive government intervention. The members of the country's only legalized union, the state-controlled CTC, are required under the union's statutes to recognize "the superior leadership of the [Communist] Party [of Cuba] as the... maximum organization of the working class, to make it their own, and to follow its policies."16
CTC members also should embrace "the struggle for the defense of Socialism and its principles."17 CTC leaders double as high level government officials. The labor code recognizes the right of the CTC secretary general to participate in meetings with the government's powerful Council of Ministers and its executive committee.18 At the union's May 1998 plenary meeting, which other politburo members attended, the CTC urged workers to "undertake a permanent, united battle against any antisocial activity that, if it were to spread, could endanger the existence of the Revolution."19
The government actively represses the handful of independent labor rights groups that have formed in recent years and has failed even to respond to their requests for legalization. The barriers to the formation of viable independent unions are daunting, and the number of workers willing to attempt to organize their colleagues remains relatively small.
Government Control over Employment
The Cuban government's virtual monopoly on jobs allows it to exercise tight control over the nation's workforce. Cuban authorities maintain labor files (expedientes laborales), which record any individual's politically suspect behavior.20 Often, the government's first move against potential dissenters is to fire them from their job. Most of Cuba's prominent dissidents lost their jobs as they became more involved in independent organizations or rejoined society after prison terms imposed for criticizing the government. Since jobs in the non-state-controlled sector are few, and rarely include housing, job loss often spells financial disaster for workers and their families. Dissidents who cannot count on remittancesfrom abroad have a particularly difficult time and risk further problems with the government if economic necessity pushes them to violate regulations on individual employment. Cuba only allows limited opportunities for self-employment, such as selling produce, driving taxis, and running small restaurants, which are heavily regulated.21
In February 1998 the government responded aggressively to Dr. Oscar Elías Biscet González when he spoke out at his workplace, the October 10 Maternal and Children's Hospital (Hospital Maternal e Infantil 10 de Octubre) about his opposition to abortion and the death penalty, both legal in Cuba. Dr. Biscet González, who is a leader of the Lawton Human Rights Foundation, made public a written document he had authored stating his views. In early March, the Provincial Directorate of the Public Health Ministry notified Dr. Biscet González that he had been fired, and that since his apartment was a job benefit, he also would be evicted from his home. Shortly thereafter, his wife, nurse Elsa Morejón Hernández, was also fired. Local authorities also urged her to terminate her marriage because of his outspoken dissent. At this writing, some former patients had allowed the couple to live with them. In an interview with Human Rights Watch, the doctor noted ironically that, having formerly treated indigent patients, he and his wife had become dependent on their generosity.22
On February 19, 1997, Dr. Pedro Emilio Pacheco Pérez, a professor at the Stomach Clinic (Clínica Estomatología) in Santiago, was officially notified that he would be removed from his position due to his participation as an organizer of the Movement of Followers of Chibás (Movimiento Seguidores de Chibás).23
A journalist with the independent Cuba Press news agency, Efrén Martínez Pulgarón, said that his removal from the workforce, like that of most of his colleagues, occurred over a long period. He said that in 1992, he had been working as a professor of plastic arts, training primary school teachers and, at the same time, he was beginning to take part in dissident activities. Gradually, persistentgovernment reports of his dissident activities resulted in a decision to terminate his contact with future teachers. He then found a job as a guard in a public park, but, after several months, was told that his counterrevolutionary views and access to children in the park were incompatible, and he was fired. Since 1993, he has been unable to find work and has faced multiple arrests.24
The family members of political prisoners and former political prisoners also face workplace discrimination. Most former prisoners are barred from any state-controlled job. Their close relatives also are frustrated by fruitless job hunts. Edelmira Matamoros Espejo, the wife of former political prisoner Edelberto Del Toro Argota, sought steady work for years while her husband was in prison. Cuban authorities convicted Del Toro Argota of enemy propaganda in March 1994. At that time, Matamoros Espejo had worked for twenty-six years as an operator for the national telephone company, where she had an excellent work record. In 1995, her supervisor advised her that she had been fired. She could not find a new position until 1996, when she reported for a job at the post office. She had taken a postal exam and passed with a 98 percent score. Nonetheless, her supervisor at the post office fired her after only four hours. She later learned that her supervisors had been notified that she "was not trustworthy enough to work in communications."25
Government Refusal to Legalize Independent Workers' Organizations
Independent labor rights groups face numerous stumbling blocks in their efforts to gain legal status in Cuba, chiefly those posed by the limitations inherent in the Associations Law. The United Council of Cuban Workers (Consejo Unitario de Trabajadores Cubanos, CUTC), for example, solicited legalization shortly after it was formed in July 1995. In October 1996, the Cuban Institute for Independent Labor Studies (Instituto Cubano de Estudios Sindicales Independientes, ICESI), which was formed in July 1996, also filed for recognition. At this writing, the government has not responded to either request. The director of the government-controlled workers' newspaper Trabajadores did not respond to the CUTC's request for space in the publication to reflect workers' concerns. The Confederation of Democratic Workers of Cuba (Confederación de Trabajadores Democráticos deCuba, CTDC) has solicited government legalization on an annual basis for six years without receiving any response.
Detentions and Harassment of Labor Rights Activists
In contrast to the lack of official response to organizations' requests for legalization, the Cuban government has swiftly answered labor activism with repressive measures. Several activists have suffered brief police detentions, often accompanied by threats of future prosecution.
Havana police reportedly detained José Orlando González Bridón, of the CTDC, for brief periods in November and December 1998 and January 1999. On each occasion, González Bridón was participating in protests of dissidents' trials. Cuban officials arrested his colleague Ofelia Nardo Cruz, an attorney with the same organization, on January 6, 1999, holding her for a few hours.
Cuban officials also detained González Bridón for twenty-four hours in July and for several hours on September 8 and 23, 1998. In July, a Rapid Response Brigade composed of members of the neighborhood CDR, local workers, and others threatened González Bridón and his fifteen-year-old son. Police refused to receive his complaint about the brigade's actions.26
In September 1998 several state security agents reportedly told Rafael Peraza Fonte, the Havana representative for the CUTC, to appear at their office for a meeting. When he arrived, the agents apparently threatened him with prosecution, saying that they already had sufficient evidence to try him and would not warn him again. In early August, four members of a Rapid Response Brigade visited Peraza Fonte's home, criticizing his independent organizing work and threatening violence if he continued it.27 In July, Havana police reportedly searched the home of another CUTC member, Rafael Iturralde Bello, confiscating several documents.28
On July 2, 1998, Havana police detained Evaristo Pérez Rodríguez, the vice-president of the Cuban Union of Independent Workers (Unión Sindical de Trabajadores Independientes de Cuba, USTIC) and the president of the PatrioticUnion of Independent Christians (Unión Patriótica de Cristianos Independientes). He remained in police custody for seventy-two hours.29
On November 11, 1997, Cuban police searched the homes of CUTC Secretary General Pedro Pablo Alvarez Ramos and ICESI leader Vicente Escobal Rabeiro, seizing several items that were never returned.30 Cuban police detained several CTDC leaders for brief periods throughout 1997. In early October, police detained CTDC secretariat members Jorge Martínez and Florentino Ledesma, holding them overnight and urging them to abandon their union activities.31 On September 24, 1997, security agents arrested union member Ramón González Fonseca and CTDC Secretary General Gustavo Toirac González, holding them for about twelve hours.32
In recent years, a handful of farmers have been trying to form independent agricultural cooperatives, as an alternative to the state-controlled group, the National Association of Small Farmers (Asociación Nacional de Agricultores Pequeños). On several occasions, these groups, in their efforts to raise farmers' concerns, have suffered from harassment and short-term detentions.33
In mid-October 1998 Cuban police in Santiago reportedly required three members of the Transition Cooperative and the National Alliance of Independent Farmers of Cuba (Alianza Nacional de Agricultores Independientes de Cuba, ANAIC), Camilo Berenguer Alonso, Juan San Emeterio Berenguer, and Raúl Ruíz Bonne, to report to local offices of the Interior Ministry. The police apparentlyinterrogated the men about their activities and encouraged them to abandon their nongovernmental organizations.34
Cuban authorities prevented the First Meeting of Independent Cooperatives (Primer Encuentro Inter-Cooperativas Independientes), scheduled for May 5, 1998, from taking place in Loma del Gato, Santiago province. Several regional cooperatives had invited the official press, the police, the Communist Party, and others to discuss the problems of Cuban farmers in an "environment of national reconciliation." On May 3 police arrested Reynaldo Hernández, the president of both the ANAIC and the Progreso I agricultural and fishing cooperative in Guantánamo. Cuban authorities released Hernández on the evening of May 5.35 A state security official had detained Hernández in March, holding him for several hours and threatening him with criminal prosecution if he did not abandon his organizing activities and specifically, his plans for the May meeting. On May 5, over one dozen police and members of a Rapid Response Brigade thwarted the meeting's occurrence by blocking access to the site. They also surrounded the home of Jorge Béjar, the president of the Transition Cooperative and host of the conference, detaining him and his wife for several hours.36
On May 13, 1998, a local official, Rosa Concepción Sarmiento, reportedly threatened Antonio Alonzo Pérez, the vice-president of the Transition Cooperative, saying that he would be found dead in the street. She also fined him 500 pesos (approximately US$23.81) for allegedly "having deficiently made use of or having negligently abandoned" land that was in his use.37 Alonso Pérez challenged the accusation that he had neglected to work his land. The fine and threat appear designed to discourage him from his work with the cooperative.
Cuban authorities held Jesús Escandel, the former international relations secretary of the government-controlled CTC, in detention without trial from July1997 until April 1998. Police reportedly beat him shortly after his arrest, while questioning him in Villa Marista. The government reportedly threatened him with prosecution for treason, but the reasons for his lengthy detention remained unclear. Escandel may have raised official ire by meeting with independent labor groups during his travels outside of Cuba.
Manuel Antonio Brito López, the secretary general for the Union of Independent Workers (Union de Trabajadores Independiente) and the human rights coordinator for the CUTC, was called to a Havana police station on July 12, 1997, and interrogated for several hours by state security agents. The agents told him to remain in his neighborhood until August 6th, the day that the International World Festival of Youth and Students was scheduled to conclude elsewhere in Havana.38
Labor Rights in the International Investment Sector
In recent years, Cuba has devoted tremendous energy at the highest levels of government to attracting foreign investment in recent years. In February 1998 Carlos Lage, the secretary of the executive committee of the Council of Ministers, which oversees all foreign investment in Cuba, described the Cuban economy's principal problem as a shortfall in foreign financing. Under the Cuban constitution, the executive committee comprises the president, the vice presidents, and "other members of the Council of Ministers determined by the President."39 The Council of Ministers is "the top-ranking executive and administrative organ, and constitutes the Government of the Republic."40 Lage urged the Ministry for Foreign Investment and Economic Collaboration (Ministerio para la Inversión Extranjera y la Colaboración Económica, MINVEC) to seek long-term investors and acquire new technologies and markets.41
MINVEC reported that by September 1998, 340 economic associations with foreign capital were operating in Cuba. Canada, Spain, and Italy were the top investors, followed by France, Holland, the United Kingdom, and Mexico. Mostforeign capital was concentrated in petroleum extraction, mining (particularly of nickel), telecommunications, and tourism. Lesser amounts of capital were invested in construction materials, electronics, food products, energy, and other sectors. Minister for Foreign Investment and Economic Collaboration Ibrahim Ferradaz stated that in the 1990s, tourism grew 20 percent each year, with some one million tourist visits in 1996 and two million projected for 2000.42 As the most important foreign investment growth area, Cuba planned to increase its tourist capacity from some 27,000 hotel rooms in late 1997 to 50,000 rooms by the year 2000.43 At the November 1998 National Meeting of Tourist Entities, where Carlos Lage presided, Minister of Work and Social Security Salvador Valdés reported that Cuba has 75,940 workers in the tourist sector and plans to add some 30,000 more by 2001.44
To entice international investors, Cuba has adopted several laws that tightly control labor rights in businesses backed by foreign investment. Under these laws, detailed below, the government plays a prominent role in the selection, payment, and firing of workers, thus effectively barring most employees from forming unions or even from entering into independent, direct discussions of labor rights with their employers. These restrictions on labor rights—Cuba's virtual guarantee that no investor will face any independent union organizing in the workplace—were created to attract foreign investors. Cubans nonetheless find jobsin the foreign investment sector attractive. Although Cuban workers receive peso salaries from state-controlled employment agencies, the jobs often offer access to dollar tips or bonuses and scarce consumer goods, such as shampoo and soap. The Cuban government profits from this arrangement as well, not only from the long-term value of international investment, but also because the state-controlled employment agencies receive convertible foreign currency payments for all workers' wages.45 The government has not revealed what percentage of workers' wages ultimately reach their hands—in Cuban pesos—and what portion remains in government coffers. Unfortunately, the foreign investment laws replicate the failings of labor rights practices throughout Cuba, leaving control over employees in the hands of a government that has created legal bars to free association and expression. While foreign companies reportedly insist on safety regulations beyond those typically employed in Cuban workplaces, foreign investors hoping to improve basic labor rights face daunting obstacles. Given the current regulations governing labor rights in the foreign investment sector, foreign investment carries with it a high risk that foreign companies will be complicit in the Cuban government's labor rights abuses.
Foreign governments interested in investing in Cuba face the notable challenge of reconciling investment interests with concurrent concern for human rights. The fact that Cuba's highest authorities control Cuba's human rights policies and labor rights practices, while also holding the keys to any major foreign investment project in Cuba, might dissuade foreign governments from making clear statements on human rights that would impede future investments. Thus, British Trade Minister Brian Wilson, visiting Havana in November 1998, acknowledged the European Union's common position linking future economic coooperation on on human rights improvements in Cuba, but emphasized that "I am here purely to talk about trade."46 Distancing himself even further from human rights concerns, he added that "...Britain has no hang-ups at all about promoting trade in Cuba."47
Labor Rights Under the Foreign Investment Act
In recent years, the Cuban government adopted new laws to encourage foreign investment.48 The Foreign Investment Act permits foreign investment in three distinct manners, each of which leaves control over employee hiring and firing in the hands of state-controlled actors. Joint ventures bring together national (Cuban) investors and international investors, resulting in the creation of a separate legal entity that must be registered with Cuba's Chamber of Commerce.49 Totally foreign capital companies do not include any Cuban national investors, but others must present a request to MINVEC "jointly with the corresponding Cuban entity."50 Both joint ventures and totally foreign capital companies must rely on government "employing entit[ies]" to hire employees and negotiate employee contracts for them.51 The foreign investment law defines "international economic association contracts" as pacts among one or more national investors and one or more international investors for joint activities, without the formation of a separate legal entity.52 The Cuban investors, who are state-controlled since Cuba does notpermit private investment, are responsible for hiring workers.53 While international companies are granted the right to select and hire "certain top administrative positions or some posts of a technical nature" with persons who are not permanent residents of Cuba, government-controlled or approved institutions are charged with all other employment contracting.54
The regulations governing worker selection, hiring, payment, and firing appear in Resolution No. 3/96, which directs foreign companies to agree to "Labor Force Supply Contract[s]" with the employing entity and with the "relevant trade union."55 The required reliance on state-controlled employment agencies effectively leaves workers without any capacity to directly negotiate wages, benefits, the basis of promotions, and the length of the worker's trial period at the job with the employer. The state-controlled employment agencies assume each of these roles, rather than allowing the employees to contract independently with the foreign investors.56 Since Cuba only allows one official umbrella union, the "relevant union" likely would be government-controlled.
The reliance on state employment agencies in the foreign investment sector increases the likelihood that, as in other employment sectors, dissidents would be barred from job openings. Analyzing the performance of the state's employment agencies, Salvador Valdés, Cuba's minister of work and social security, stressed the need to reassure the population that the "most revolutionary" individuals were chosen for the tens of thousands of jobs in the tourist sector.57 The government has acknowledged through the public disciplining of several state employment agency employees that some positions were acquired with bribes. In March 1998 the government apparently uncovered fraudulent hiring practices at the state-controlled Isla Azul employment agency in the resort community of Varadero. Thegovernment sentenced three agency employees to prison terms ranging from ten to twelve years for demanding bribes of up to US $700 for jobs in tourism.58 The job selection process apparently also is skewed by nepotism and cronyism.
In Cuba's booming tourist industry, on-the-job racism has emerged as a persistent problem. While Cuban labor laws prohibit job discrimination based on race, the vast majority of Cuban employees in tourist operations are light-skinned. As with other foreign investment sectors, government-controlled employment agencies conduct hiring for the tourist industry. One manager in a tourist corporation explained, "There is no explicit policy stating that one has to be white to work in tourism, but it is regulated that people must have a pleasant appearance (aspecto agradable), and blacks do not have it...." Alejandro de la Fuente, a university professor who researched this phenomenon, noted that increased foreign investment in tourism was worsening the job situation for Cubans with darker skin. He hypothesized that Cuban officials were conceding to the wishes of tourist operation managers who preferred lighter-skinned employees.59
Cuba's new laws also establish conditions for firing workers, some of which restrict free expression and association. Workers risk firing if they "incur improper conduct, criminal or not, affecting his/her prestige as a company employee and contrary to the standards of conduct... annexed" to the resolution.60 The standards, which cover a wide range of non-job-related expression and behavior, leave workers at risk of removal for expression of political views. Among other things, the standards require workers "to maintain social conduct worthy of his/her fellow citizens' respect and trust, by not allowing any conspicuous signs or privileges, and by keeping a life-style in line with our society."61 In addition to sharply limitingfreedom of expression, a requirement that workers not speak to their employers or supervisors about payments, gifts, or preferential treatment effectively prohibits bargaining over wages, a fundamental labor right.
Workers risk harsh disciplinary measures if they fail to comply with the resolution's provisions. If a worker commits an "infringement," then she or he could face a penalty such as public censure or the loss of 25 percent of the monthly wage. Other possible sanctions include transfer to a lower-paying post or dismissal. The employing entity is charged with applying the penalty after considering factors including "the personal qualities of the wrongdoer," which potentially grant it authority to penalize workers for expression or activities completely unrelated to their jobs.62 Under the personnel law, any Cuban who independently contracts with foreign representatives risks government fines ranging from 1,000 to 10,000 Cuban or convertible pesos.63 If the individual cannot pay the fine in cash or property he or she could face criminal charges.64
Foreigners violating these regulations, such as using workers not legally hired, changing the legally authorized forms of payment, or giving non-authorized material incentives, face the same consequences (with all fines due in convertible pesos).65
In keeping with the Council of Minister's constitutional authority over foreign commerce, the Foreign Investment Act assigns its executive committee a close supervisory role over all foreign investment.66 The law directs the executive committee to approve all foreign capital investments or designate a government commission with authority to do so and grants it the right to disregard the law's provisions and "establish special labor regulations" in "exceptional cases."67 In this capacity, the highest levels of the Cuban government can directly and arbitrarily control labor rights in the foreign investment sector. The law on hiringalso affords the executive committee of the Council of Ministers broad powers to include or exclude violations and to vary the amount of fines.68
Labor Rights in the Free Trade Zones and Industrial Parks
On November 5, 1997, Cuba opened its first duty-free zones (zonas francas) in Berroa, Wajay, and Mariel. Some of the first contracts in the Mariel zone included a Canadian company manufacturing wood paneling for homebuilding and a Russian catamaran assembly factory.69 Cuba has undertaken extensive promotion efforts to draw foreign investors to these zones. As with other foreign investments, Cuba maintains tight restrictions on labor rights and public order for the explicit purpose of attracting investors to the free trade zones.
In June 1996 the government adopted Law 165 on Free Zones and Industrial Parks.70 The law creates an executive committee of state institutions—including the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior—charged with granting free zone concessions and recommending measures to develop the zones and industrial parks.71 The law provides for a special system to operate in the duty-free zones "as an incentive for investment" that included labor and public order regulations that were "more attractive and less rigid and onerous than the common or usual ones."72 The law requires investors with completely foreign capital to hire their employees through employment agencies approved by the ministries of foreign investment and labor, thus engendering the same impediments to free association and expression discussed above. The law also allows the executive committee to disregard other labor normsand establish special labor regulations in "exceptional cases," an unchecked authority providing the potential for further abuse.73
Best Business Principles for Foreign Investors in Cuba
The Cuban government's broad authority
over labor rights in the foreign investment sector effectively frustrates
those companies that endorse "best business principles," such as respect
for workers' right to organize, anti-discriminatory hiring practices, and
workplace safety.74 In 1997, in order to encourage
socially-responsible investing in Cuba, the North American Committee of
the National Policy Association, a coalition of business leaders in Canada,
Mexico, and the United States, devised "Principles for Private Sector Involvement
in Cuba," urging companies, among other steps, to: "work to gain the right
to recruit, contract, pay and promote workers directly, not through government
intermediaries;" "respect employees' right to organize freely in the workplace;"
and, "maintain a corporate culture that... does not condone political coercion
in the workplace."75 The Committee also recommends
the strengthening of "legal procedure in Cuba," but this suggestion does
not sufficiently take into account the impediments to labor rights that
must be lifted before workers' rights will be protected under law. In 1994
the Cuban Committee for Human Rights, the International Society for Human
Rights, and Solidarity of Cuban Workers prepared the Arcos Principles,
honoring one of Cuba's leading human rights activists, Gustavo Arcos. The
Arcos Principles also urge companies to seek to hire workers directly,
to bar the review of workers' government-prepared labor files (expedientes
laborales), and to allow workers to belong to governmental or independent
238 The Cuban constitution mandates state control of the economy (Article 16) and state control and direction of foreign commerce, which is explicitly delegated to the Council of Ministers (Article 18 and Article 98 [d]). Constitution of the Republic of Cuba, 1992. 239 Ibid., Article 54. Translation by Human Rights Watch.240 Silvia Martínez and Emilio del Barrio, "VIII Pleno del Comité Nacional de la CTC: Encara el Movimiento Obrero la Lucha contra el Delito y Otras Deformaciones," Granma Diario, May 27, 1998. Translation by Human Rights Watch.241 The Associations Law is discussed above, at Impediments to Human Rights in Cuban Law: Associations Law.242 These ratifications include the International Labor Organization's (ILO) Convention 87, guaranteeing Freedom of Association and Protection of the Right to Organize (ratified June 1952); Convention 98, which protects the Right to Organise and Collective Bargaining (April 1952); Convention 105, on the Abolition of Forced Labor (June 1958); and Convention 141, regarding Rural Workers' Organizations (April 1977).243 Article 23(4), Universal Declaration of Human Rights.
244 "Lista Parcial de Prisiones y Centros Correccionales," Comisión Cubana de Derechos Humanos y Reconciliación Nacional (Cuban Commission of Human Rights and National Reconciliation, hereinfacter, the commission), December 31, 1996. The commission estimated that there were 200 labor camps.
245 Articles 71, 72, and 76(1), U.N. Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc E/5988 (1977), adopted August 30, 1955.
246 Article 1(a) and Article 2, Convention 105: Abolition of Forced Labor, ILO (1957).
247 Their children, who were five and fourteen at the time of their parents' arrest, had great difficulty feeding themselves. Their situation is detailed above, at Hardships for Political Prisoners' Family Members.
248 Ferrándiz Alfaro said that Desa Company produces furniture, crafts (objetos de artesanía), carpentry, shoes, clothes (confecciones), cookware (fundición), charcoal grills (anafes), and home decorations, including plaster figurines (figuras de yeso). He believed that Desa sells its products to the public and in military stores. Boniato Prison authorities also run an agricultural labor camp, selling its production to the public in the Santiago region. Human Rights Watch interview with Luis Alberto Ferrándiz Alfaro, Toronto, April 13, 1998.
250 Human Rights Watch interview with Xiomara Aliat Collado, Toronto, April 13, 1998.
251 The case of Recio Martínez and Cecilio Monteagudo Sánchez, the document's author, is discussed above, at Political Prosecutions.
252 Human Rights Watch telephone interview with Héctor Trujillo Pis, Cuba Press, Havana, July 3, 1998.
253 The trial of Israel García Hidalgo, Benito Fojaco Iser, Angel Nicolas Gonzalo, José Ramón López Filgueira, and Reynaldo Sardiñas Delgado is discussed above, at Political Prosecutions.
254 Article 71(2), Standard Minimum Rules for the Treatment of Prisoners.
255 The rules require that "the interests of prisoners and of their vocational training... must not be subordinated to the purpose of making a financial profit from an industry in the institution." Standard Minimum Rules, Article 72(2).
0 Malnutrition in Cuban prisons is detailed above, at General Prison Conditions: Food.
1 Standard Minimum Rules, Article 71(2).
2 Human Rights Watch telephone interviews with Guillermo Ismael Sambra Ferrándiz, Toronto, May 8, 1988; and René Portelles, Toronto, April 21, 1998; and interviews with Adriano González Marichal, Toronto, April 14, 1998; and Marcos AntonioHernández García, Toronto, April 13, 1998.
3 Standard Minimum Rules, Article 75(1) and (2).
4 Article 46, Constitution of the Republic of Cuba (1992).
5 Human Rights Watch telephone interview with Guillermo Ismael Sambra Ferrándiz, May 8, 1998; and interviews with Adriano González Marichal, April 14, 1998, and Marcos Antonio Hernández García, April 13, 1998.
6 Standard Minimum Rules, Article 76.
7 Summary Record of the Second Part of the 310th Meeting, CAT/C/SR.310/Add.1 (March 25, 1998), para. 18.
8 Human Rights Watch telephone interviews with José Miranda Acosta, Toronto, May 7, 1998; Guillermo Ismael Sambra Ferrándiz, May 8, 1988; René Portelles, April 21, 1998; Víctor Reynaldo Infante Estrada, Toronto, April 14, 1998; Rosalina González Lafita, Toronto, April 13, 1998; Luis Alberto Ferrándiz Alfaro, April 13, 1998; Adriano González Marichal, April 14, 1998; and Marcos Antonio Hernández García, April 13, 1998.
9 Cuba sets minimum wages according to profession, with some of the lowest paid work paying approximately 160 pesos per month. The monthly wage of a prisoner earning twenty cents per day, and working every day of a thirty-day month, would be 6 pesos (or U.S. 29 cents).
10 Human Rights Watch interview with Víctor Reynaldo Infante Estrada, Toronto, April 14, 1998.
11 Human Rights Watch interview with Rosalina González Lafita, Toronto, April 13, 1998.
12 Human Rights Watch interview with Xiomara Aliat Collado, April 13, 1998, and telephone interview with Guillermo Ismael Sambra Ferrándiz, May 8, 1988.
13 Articles 13 and 14, Law No. 49 (December 1984).
14 Article 3(b), Law No. 49 (1984).
15 Under Cuban law, agricultural cooperatives are considered labor entities and treated distinctly from associations. Article 19 and 20, Constitution of the Republic of Cuba and Article 7(ch), Law No. 49. The prominent state role in "independent" associations is detailed above, at Impediments to Human Rights in Cuban Law: Associations Law.
16 Preamble, Statutes of the Workers' Central of Cuba (1992). See also International Confederation of Free Trade Unions (ICFTU), Cuba C87/C98, ICFTU Annual Survey of Violations of Trade Union Rights - 1998 (July 1998). Translation by Human Rights Watch.
17 The government-controlled Granma Diario reported that the CTC had adopted this goal at its eighth plenary session. Silvia Martínez and Emilio del Barrio, "VIII Pleno del Comité Nacional de la CTC: Encara el Movimiento Obrero la Lucha contra el Delito y Otras Deformaciones," Granma Diario, May 27, 1998. Translation by Human Rights Watch.
18 Article 16, Law No. 49 (1984).
19 Silvia Martínez and Emilio del Barrio, "VII Pleno del Comité Nacional de la CTC," Granma Diario, May 27, 1998. Translation by Human Rights Watch.
20 The labor code defined the labor files as records of the employee's job performance that are maintained by supervisors at his or her job. However, Cuban State Security agents and others reportedly used the files to track workers' political or anti-government views, or those of their family members. Article 61, Law No. 49 (1984).
21 While Cuba's private sector reportedly had grown to include some 208,000 people in 1996, by September 1998, it had shrunk to some 143,406 people. The decrease stemmed from heavy regulations and taxes. "Cuba: Cuba's Small Private Sector Shrinks," Reuters News Service, September 11, 1998.
22 Human Rights Watch telephone interview with Dr. Biscet González, Havana, July 28, 1998. Further state actions against Dr. Biscet González are detailed above, at Routine Repression.
23 "Expulsan a prestigioso profesor por actividades oposicionistas," Oriente Press and Buró de Prensa Independiente de Cuba, February 21, 1997.
24 Human Rights Watch telephone interview with Efrén Martínez Pulgarón, Cuba Press, Havana, January 13, 1999.
25 Human Rights Watch interviews with Edilberto Del Toro Argota and Edelmira Matamoros Espejo, Toronto, April 12, 1998.
26 Human Rights Watch telephone interview with Odilia Collazo, Pro Human Rights Party, Havana, January 11, 1999.
27 Rafael Peraza Fonte, "Represión en Artemisa," Villa Roja, October 23, 1998.
29 Florentino Ledesma Pérez, "Detenido Sindicalista No Oficial," El Nuevo Herald, July 7, 1998.
30 Human Rights Watch telephone interview with Vicente Escobar Rabeiro, ICESI director, Havana, June 26, 1998.
31 "Persecución a Dirigentes Sindiciales Independientes," Agencia de Prensa Independiente de Cuba, November 8, 1997.
32 Cuba C87/C98, ICFTU Annual Survey of Violations of Trade Union Rights -1998, July 1998.
33 André Linard, "Down on the Farm: Trade Unions in Cuba," ICFTU OnLine, ICFTU, June 25, 1998.
34 "Amenaza Policía Política a Cooperativistas Independientes," CubaNet, October 22, 1998.
35 Santiago Santana, "Detienen a Dirigente Campesino," Agencia de Prensa Libre Oriental en El Nuevo Herald, May 5, 1998.
36 Santiago Santana, "Régimen Frustra Encuentro de Cooperativas Independientes," Agencia de Prensa Libre Oriental en El Nuevo Herald, May 7, 1998.
37 Alonso Pérez reportedly was fined under Decree-Law 203, Article 1, section E. Translation by Human Rights Watch. Letter from Antonio Alonso Pérez to Alfredo Jordán Morales, Minister, Ministry of Agriculture, May 25, 1998, distributed by CubaNet, June 4, 1998.
38 Manuel David Orrio, "Hostigado Sindicalista Independiente Cubano," Agencia Nueva Prensa, July 21, 1998.
39 Article 97, Constitution of the Republic of Cuba (1992). Translation by Human Rights Watch.
40 Ibid., Article 95. Translation by Human Rights Watch.
41 Susana Lee, "Hay que Atraer las Inversiones Extranjeras que Garanticen los Objetivos Básicos del País," Granma Diario, February 19, 1998.
42 Susana Lee, "En el País Más de 340 Asociaciones Económicas con Capital Extranjero," Granma Diario, September 10, 1998.
43 Rodolfo Casals, "Escápate al Caribe, Escápate a Cuba," Granma Internacional, September 16, 1997. Tourism is a lightning rod for public frustration due to a practice popularly known as "tourist apartheid," whereby security guards frequently bar Cuban nationals from entering hotels, beaches, restaurants, and other tourist facilities. The constitutional provisions that should deter such practices are detailed above, at Impediments to Human Rights in Cuban Law: Cuban Constitution.
44 Iraida Calzadilla Rodríguez, "Reunión Nacional de Entidades Turísticas: El Sistema Muestra una Dinámica Mayor hasta Septiembre," Granma Diario, November 4, 1998.
As Cuba has sought greater opportunities for foreign investment, the Armed Forces have taken on increased responsibility for economic growth. Luis Pérez Róspide, a brigade general (general de brigada) and the director of the military's business operations, the Union of Military Industries (Unión de las Industrias Militares, UIM), also runs Gaviota, one of Cuba's top state-run tourist companies. Octavio La Vastida, "Industrias Militares en la Senda de la Eficiencia," Granma Internacional, September 3, 1997; and "Cuba: Jamaican Hotel Chain to Boost Presence in Cuba," Reuters News Service, September 18, 1998.
45 Article 33 (4) and Article 34(1), Foreign Investment Law, Decree Law No. 77 (September 1995).
46 The European Union's common position is detailed below, at International Policy.
47 Andrew Cawthorne, "Cuba: British Minister Glows over 'Superb' Castro Meeting," Reuters News Service, November 3, 1998.
48 Decree Law No. 77, the Foreign Investment Act of 1995, sets out the fundamental principles guiding foreign investment. The preamble states that it was "convenient to adopt new legislation to provide greater security and guarantees to the foreign investor." The preamble also notes that Cuba could benefit from foreign investment following the demise of the socialist block and in light of "the fierce blockade" imposed by the United States. Preamble, Decree Law No. 77 (September 1995). Translation by the Cuban government.
The law's labor provisions are detailed further in Resolution No. 3/96, Regulations on the Labor System in Foreign Investment (March 1996) and Decree Law No. 166, On Violation of the Personal [sic] Hiring System and Other Labor Regulations (July 1996). Decree Law No. 166. Translation by the Cuban government.
Law 165 on Free Zones and Industrial Parks (June 1996) sets rules for investment in Cuban duty-free zones and industrial parks. Decree Law No. 165. Translation by the Cuban government.
49 Decree Law No. 77, Article 13.
50 Ibid., Article 22.
51 Ibid., Article 33 (1) and (3). These entities are to be proposed by MINVEC and authorized by the Ministry of Labor and Social Security.
52 Ibid., Article 2 (g).
53 Ibid., Article 2(a) and (g) and Article 33 (2). If the Cuban investors wish to offer workers foreign exchange wages, they must first get approval from the Ministry of Labor. Article 18, Resolution No. 3/96 (March 1996).
54 Articles 31 and 33, Decree Law No. 77. Translation by the Cuban government.
55 Article 7, Resolution No. 3/96. Translation by the Cuban government.
56 Ibid., Articles 9, 12, and 14.
57 Valdés's comments were paraphrased by the state-supported newspaper Granma Diario. Iraida Calzadilla Rodríguez, "Reunión Nacional de Entidades Turísticas," Granma Diario, November 4, 1998.
58 "Cuba: Cuban Court Jails Three for Selling Tourism Jobs," Reuters News Service, March 12, 1998.
59 Alejandro de la Fuente cited this interview in "Recreating Racism: Racism and Discrimination in Cuba's 'Special Period,'" Cuba Briefing Paper Series, The Caribbean Project, Georgetown University (July 1998), pp. 6-7.
60 Article 29, Resolution No. 3/96. Translation by the Cuban government.
61 The law also requires workers "to act according to the best interests of our society"; "...to subordinate his/her acts and decisions to the best interests of our people"; and "to neither accept from, nor ask the persons above or around him/her for any payments, gifts or preferential treatment contrary to the adequate labor and personal behavior expected from our cadre and workers...." Ibid., Exhibit: Standards of Conduct Applicable to Cuban Staff in International Economic Associations. Translation by the Cuban government.
62 Ibid., Articles 47 and 48. Translation by the Cuban government.
63 Articles 10, 11, and 12, Decree Law No. 166 (July 1996). Translation by the Cuban government.
64 Ibid., Article 34. Translation by the Cuban government.
65 Ibid., Articles 6, 10, 11, 12, and 34.
66 Decree Law No. 77 and Article 97, Constitution of the Republic of Cuba (1992).
67 Article 2(b) and (e), Article 35, Decree Law No. 77. Translation by the Cuban government.
68 Special Provision 1, Decree Law No. 165.
69 "Tercera Zona Franca Inaugurada en Mariel," Business Tips on Cuba, Havana, January 1998, p. 8.
70 The duty-free zones and industrial parks allow diverse types of foreign investment. Duty-free zones allow foreign investment "for the purposes of financial operations, importing, exporting, storage, productive activities or reexporting." Industrial parks allow "the development of productive activities with the participation of foreign capital." Law No. 77, Article 51(1) and (2).
71 Article 6(2) and (4), Decree Law No. 165.
72 Ibid., Article 31.1. Translation by the Cuban government.
73 Ibid., Article 46. Translation by the Cuban government.
74 Gillian McGillivray, "Trading with the 'Enemy': Canadian-Cuban Relations in the 1990s," Cuba Briefing Paper Series, The Caribbean Project, Georgetown University (December 1997), p. 7.
75 "Trilateral Group Urges Private Sector to Play a Role in Promoting Human Rights in Cuba," National Policy Association Press Release, July 7, 1997.
H. Castañeda and George Plinio Montalván, "The Arcos Principles," Cuban
Committee for Human Rights, the International Society for Human Rights
and Solidarity of Cuban Workers, 1994.
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