Human rights around the globe the Republic of Cuba.
Autore: Avv. Prof. Marco Mastracci
“Todos somos americanos”. On 17 December 2014, upon the release of the American prisoner Alan Gross, the President of the United States of America, Barack Obama, publicly stated his intention to re-establish diplomatic relations with the Republic of Cuba and to lift the trade embargo imposed on the island more than fifty years ago. Prior to this, on 13 April 2009 and just a few months after the start of his second term in office, President Obama had in fact ordered restrictions on travel and remittances to be lifted[1], albeit only for Cuban-Americans with relatives on the island, relaxing, in parallel, the rules restricting the type of goods that could be sent there, with the declared aim of making the Cuban people “less dependant upon the Castro regime”.
Removal of the bloqueo does of course require the support of Congress, where the reins are currently in the hands of the opposition to Obama’s Democratic leadership, i.e. the Republican Party. Nevertheless, the statements made by the President represent an important preliminary step towards a thaw in the relationship between the United States and Cuba, as well as a statement of policy by the White House in terms of the international arena.
The significance of el bloqueo imposed on the Cuban Republic by American power is not limited to the position in terms of diplomatic relations between the two countries.International observers, be they political institutions or organizations which, in various ways, promote respect for rights the world over, are aware that the embargo has been and remains a key factor where Cuba’s economic and social situation is concerned, to the extent that it raises delicate ‘if and how’ questions about the safeguard of human rights in such a scenario. In addition, the humanitarian crisis facing Cuba following the decline in its diplomatic relations with the United States after the Castro revolution saw an escalation in the wake of the collapse of the countries that formed the Soviet bloc[2].
A detailed examination of the specific context in questioncalls for an outline to be provided of the general theory of human rights, whichhelps to clarify certain preliminary issues:
a) the legal nature of human rights and how they relate to the rights of the person, examining, in particular, the reconstruction of human rights as an open-ended category of rightssubject to possible additions or amendments depending on the cultural and social system in question;
b) classification of the main human rights worldwide;
c) identification oflegal persons;
d) the bodies tasked with safeguarding these rights;
e)the extent to which the safeguards are enforceable and effective, especially when new types of infringements arise.
A distinction must first of all be drawn within the category of subjective rights between rights of the person and human rights in the strict sense[3]. This distinction,which involves a certain degree of hairsplitting and is moulded by the doctrine of natural law[4], is undoubtedly dictated by the type of protection that the law can be called upon to provide, depending on whether the individual position that has suffered falls into one category or the other, with the protection of human rights taking on an international dimension that can overcome the limitations suffered by national legislation.
On general lines, it is fair to say that the doctrine of internationalism, supported by case law, leans in favour of a reconstruction of human rights as a species of inflexible, fundamental and indispensable rights that concern the person and are, plain and simple, inviolable[5] designed to ensure that an individual enjoys a healthy balance, both mentally and physically, and a free and dignified existence[6]. Given the variety of socio-economic and cultural contexts that form the stage for infringements of human rights, it is clear that these rights need to be configured on an ‘open-ended’ basis. An interpretation on these lines would result in a much broader range of possible situations in which protection is afforded, not least as a result of the broader range of tools on offerby the legal system when applying the law.
Undoubtedly the very first port of call when focussing the spotlight on a fundamental core of human rights is the Universal Declaration of Human Rights of 1948[7], which recognises the right to life, liberty and security of person (Article 3); the right to freedom from slavery (Article 4); the right not to be subjected to torture, in the sense of “cruel, inhumane or degrading treatment or punishment” (Article 5); the right to recognition as a person before the law (Article 6); the right not to be discriminated against (Article 7); the right to protection of rights by the tribunals (Article 8): the right to personal liberty, which takes concrete form in the right not to be “subjected to arbitrary arrest, detention or exile” (Article 9) and the right to a fair hearing (Articles 10-11); the right to respect for privacy (Article 12); the right to freedom of movement (Article 13). Specific rights regarding (i) a person’s private life are then recognised (the right of men and women “of full age” to marry, Article 16; the right to freedom of thought, opinion and expression, Articles 18-19; the right to education Article 26);(ii) a person’s economic life (the right to own property, Article 17; the right to social security and the right to work, Articles 22-23; the right to a standard of living adequate for a person’s health and well-being as well as their family’s, Article 25);(iii) a person’s political life (the right to asylum, Article 14; the right to a nationality, Article 15; the right to take part in the government of his country, Article 21); a person’s social life(freedom of assembly and association, Article 20; right to participate in the cultural life of the community, Article 27).
Legal theorists have, over the course of time, identified various subcategories of rights within ‘human rights’, working on the basis of the (individual or social[8], public or private) dimension of the right infringed, the degree of importance (given the possibility of surviving or living with the harm complained of) and the severity of the infringement. Going down this route, some have identified a core of ‘basic’ rights, in such a way that their actual enjoyment rises to the position of a “necessary condition in order to pursue and enjoy all the other rights[9]”; mention is also made of “fundamental rights[10]”, while as a result of net economy processes and the new socio-economic framework brought about by globalization[11], we are witnessing the emergence of new rights such as the right to the environment[12], the right to health, including in terms of the mental and psychological aspects of a person’s health[13], the right to communication[14], freedom of information and privacy, the right to work and the right to development, extending to include rights of a somewhat generic nature such as the right to culture. Finally, given the developments in bioethical science and its union with the law, we also find very particular rights being asserted, such as the “right to die”[15] otherwise known as ‘euthanasia’, particularly with reference to the issue of medical treatment that uselessly prolongs the life of a patient who is terminally ill.
We then have the category of “third-generation rights”[16]. This include the right to procreate; the right to maternity leave; the right of parents to genetic information about the health of their future child; the rights of animals (particularly where clinical trials are concerned); all of these are linked to a phenomenon involving a shift in conscience whereby a given behaviour or attitude that was considered fair in the past or was tolerated because it was seen as socially acceptable, now meets with margins of disapproval amongst the community[17]. And the recent flows of migrants that we see on a daily basis are a reminder of the issues of the right to asylum and statelessness[18], as well as the issue of living alongside one another in a multicultural society[19].
The party vested with human rights is, of course, man, by which is meant not only an individual but a class or group with specific characteristics. A corollary of this is that alongside the human rights that have been identified by general international doctrine, there is a series of rights that are attached to particular parties, at times because they are classified as ‘weak’, such as children, the elderly, women[20] or the disabled[21] and at other times on the basis of the specific features of the groups that they represent, with reference being made here in particular to those who belong to what are, in relation to the area in which the groups have established themselves, ethnic, linguistic or religious minorities[22].
The armed conflict and extreme poverty in various countries across the globe have generated a serious of humanitarian crises and continue to do so. The number of petitions presented and infringements complained of, the demands on the law to afford recognition of rights on a transnational level and the need to identify procedures for action that are in line with one another have led the international community to produce a weighty set of rules and regulations over the years: with enunciations on general lines based on the principles of the universality and indivisibility[23] of human rights as a starting point and in parallel with developments in international criminal law[24], the phenomenon today takes on specific connotations in relation to the socio-economic and cultural contexts that provide the origin of the infringement.
The sheer volume of declarations, treaties, conventions and protocols, which provide the sources of the legislation in this area, is truly remarkable; in addition,there is awealth of internal provisions[25] produced by the individual signatory countries in order to establish principles or modify legislation already in place.
If the declarations which, in each and every corner of the continent, govern human rights to a greater or lesser extent, were to be listed in their hundreds here, the task would be an onerous one[26]. In addition to the Universal Declaration of Human Rights adopted in Paris at the United Nations General Assembly on 10 December 1948 referred to previously, those ranked the highest in terms of significance are undoubtedly the Proclamation of Teheran[27] adopted on 1 May 1968, the Declaration and Plan of Action of Vienna, signed on 25 June 1993 on the day that followed the fall of the Berlin Wall.On a European level[28], also to be mentioned are the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as amended by various protocols, the European Social Charter, signed in Turin on 18 October 1961 and revised in Strasbourg in 3 May 1996 and the Charter of Fundamental Rights of the European Union (Nice, 7 December 2000).
Where the protection of the rights of minors is concerned, mention should be made of the Declaration of the Rights of the Child (New York, 20 November 1959), which was followed the related Convention (New York, 20 November 1989) and the African Charter of Rights and Wellbeing of the Child adopted on 11 June 1990 by the Organization of African Unity.
Various bodies are tasked with safeguarding human rights on the international stage: the European Court of Human Rights or ECtHR, established in 1959 by the European Convention for the Protection of Human Rights and Fundamental Freedoms and based in Strasbourg[29], the Council of Europe[30], created by the 1949 Treaty of London, the International Court of Justice, which is the main court of the United Nations[31], based in The Hague, and the International Criminal Court[32], also based in The Hague but independent of the United Nations, which tries international crimes.
Assistance is also provided by various international bodies whose job is to report and flag up issues, such as Amnesty International (www.amnesty.it), Medici senza frontiere (Doctors Without Borders - www.medicisenzafrontiere.it) and Save The Children (www.savethechildren.it). Examples of their work include the campaign by Amnesty International to abolish the death penalty and against child brides[33] and fundraising by Save the Children in support of the distance adoption programmes[34].
The imposing wealth of international law that has been introduced, the broad range of situations afforded protection, the lack of any suitable criteria on which to establish priory action[35] on the basis of the severity of the infringement, the increase in the number of organs called upon by the institutions to step in where rights are breached, the uncertainty regarding the legal status of the provisions that ratify human rights and the yes/no debate over the extent to which they can take binding effect within the legal frameworks in the signatory countries to the conventions: all of these work together to hamper the task of taking incisive action, and doing so without delay, with the risk that the issue of human rights is reduced to mere rhetoric.
One particular problem that rears its head involves the penalties to be imposed on those[36] whose conduct has infringed the rights protected (be it a sovereign state or an authority); the preference here should be for a penalty system that deters repeat offencesrather than one that simply hurts the bank balance[37]. Moreover, the legality principle (‘no crime without law’)[38], which is an unfailing prerequisite for the state of law, becomes an obstacle where the suppression of infringements of human rights calls for the recognition of a new and as yet unrecognised type of offence (meaning one that the law has not yet typified) at the point in time at which the court hears the complaint. And so the argument that human rights are closed in number can be rejected: the generation of new offences where, on the basis of the law in force, a particular situation does not match up with offences already established as such, is inextricably linked to the possibility of suppressing the infringement of rights, including – and especially – as a preventive measure.
In terms of the ability to secure protection and the extent to which that protection is effective, certain issues arise that are linked to the extremely vague lines on which certain provisions have been drafted and the fact that they are unworkable. Questions might be asked, for example, about the value to be attached, from the point of view of the law, to Article 28 of the Universal Declaration of Human Rights, which states that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”. In essence, whilst this provision is simply a precept, virtually every country in the world could be criticized for infringements of human rights, given, for example, the fact that poverty is an evil that can also be found in countries that are not in the so-called ‘Third World’.
Having established the general landscape in terms of the protection of human rights around the globe, we will now turn to look at infringements of human rights in the Republic of Cuba.
Infringements arise when the position is looked at from two angles. The first is closely linked with the impact of the embargo[39] imposed by the United States, which is still in place, despite recent evidence of an opening up[40] on the part of the Obama presidency; the second concerns the restriction on the fundamental civil, economic and political freedoms that are inbuilt in the form of state of Cuba in relation to the rights ratified by its Constitution.
The first point to note is that the embargo imposed by the United States not only affects trade between the US and Cuba, but also between Cuba and third countries: the USA hasbanned its trading partners from carrying American goods on ships flying under foreign flags that have docked in Cuban ports. So going beyond the various different numbers put forward and the measurement criteria used by the business analysts, the economic damage caused to Cuba as a result of the blockade since it was first put in place is estimated today at several billion dollars.
But the losses that are difficult to quantify, beyond the substantial decline in the general demand for goods and services, relate to the impoverishment of the Cuban people as a result of the economic restrictions. The struggle to find basic necessities on the market, such as foodstuffs (baby food in particular), clothing, medicines and medical equipment and the fact that the door has been firmly shut on US services and technologies, resulting in clear infringements of the right to survival (the right to food, or to freedom from hunger and thirst), the right to health and the right to an education, have resulted in destitution and risks to health. Mention should also be made of the breach of the principle of self-determination of peoples by the Helms-Burton law passed in 1996 during Bill Clinton’s presidency[41], which saw the embargo tightened even further as a result of the threat by the United States to withdraw funding from international organisations that acted in breach of its provisions, thereby contributing to the continuation of poverty on the island.
Other unlawful aspects of the American legislation imposing the embargo have been pinpointed in relation to the prohibition on the use of force, the prohibition on intervention in a country’s internal affairs[42] and the prohibition on recourse to economic coercion in dealings with industrialized countries and developing countries[43].
America’s conduct towards Cuba in the political and economic sphere, which has seen no let-up[44], has been justified on the basis of alleged human rights infringements by Fidel Castro’s regime. The accusation levelled against the Castro regime is that the Cuban dictatorship is incompatible with the principles ratified by the Organization of American States[45], whichCuba has been suspended from as a member since 31 January 1962, as a result, in particular, of the policy of the Government of Cuba being incompatible with the Organization’s aims of promoting democracy and human rights as well as strengthening security and promoting development.
Moreover, in the Cuban Democracy Act of 1992, referred to as the ‘Torricelli Law’[46], the legislation itself and continuation of the embargo are justified in order to “seek a peaceful transition to democracy in Cuba through the application of appropriate sanctions directed at the Cuban government and support for the Cuban people”. The provisions relied upon are, in particular, those in Chapter VII of the United Nations Charter “with respect to threats to the peace, breaches of the peace and acts of aggression”, chiefly Article 39, pursuant to which “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.
The articles referred to provide, respectively, that: “in order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures” and “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.
This shows that a sanction in the form of an embargo is legitimately provided for by international law and is to be applied in preference to the use of armed force.
But it is the reasons adopted by the United States in support of the blockade that fail to convince: they are a source of puzzlement, first of all in terms of logic. What sense can there be in citing, as the reasons for the embargo, alleged infringements of civil and political rights in a particular country when the embargo itself is in fact the cause, ex ante, of breaches of other human rights – which are of greater importance and more fundamental in nature – linked to the very survival of the population of that country? Do we not have a paradox here? And who is it that suffers the consequences of this conduct? The very population allegedly being protected.
Secondly, looking at the geopolitical conflicts in the various continents, and especially at those that have broken out in the Latin American continent in the second half of the 20th century onwards, it would seem difficult to claim that the policy pursued by the United States has been in line with respect for human rights.Setting aside the as yet unsubstantiated argument that democracy can be ‘exported’, the Inter-American Treaty of Reciprocal Assistance has of course been the pretext in law for the support of anti-communist regimes in Latin America which, as we know, are responsible for extremely serious breaches of human rights on an enormous scale
On the basis of this examination, the ostracism of Cuba by the United States does in fact seem to be rooted in ill-concealed concerns about communist influence on the American continent and in the intention on the part of the United States to continue with a policy of neocolonialism that ensures control over the world’s energy resources and a position of political supremacy.
Where the restrictions of civil, economic and political rights connected with the form of state of Cuba are concerned, it must be pointed out that these are severely curtailed given the denial of political pluralism in the Cuban system as a result of the Communist Party being the only party allowed[47]; nor can we ignore the severe restrictions on the private ownership of property[48].
The Constitution of Cuba does, however, establish a complex system of guarantees that are designed to monitor and allow the will of the people to be expressed at all administrative levels in the various institutions. In terms of private property, and albeit with certain limitations, the right to ownership of the land is recognised in order to meet family requirements with a view to establishing a greater degree of independence from the state in order to secure a livelihood (Article 19 of the Cuban Constitution).
In terms of civil rights, the Constitution of Cuba guarantees the right to an adequate education and access to higher study, the right to work (in compliance with the dignity of the person) and a social security system for everyone, unconditional access by citizens to medical treatment[49] and safeguards for maternity rights and disability rights.
Despite the serious accusations currently levelled at Cuba[50] regarding the treatment of political dissidents and liberticidal laws that compromise the rights of the person and are seen as being in conflict with the principles of the socialist state set out in the Cuban Constitution (e.g. freedom of the press, of association and of speech and the right to leave the country etc.), a failure to mention the successes achieved in tackling humanitarian crises and in the fight against poverty[51] would, from an intellectual standpoint at least, mean painting a less than entirely honest picture, especially if we compare the situation in Cuba to that in countries in Latin America, which, according to the Food and Agriculture Organization, is currently the region with the greatest levels of inequality in the world[52].
Donald Trump is the forty-fifth President of the United States of America, with a mandate that runs from 20 January 2017. In his victory speech he said, “We have a great economic plan. We will double our growth and have the strongest economy anywhere in the world. At the same time, we will get along with all other nations willing to get along with us. We will be.We’ll have great relationships. We expect to have great, great relationships. No dream is too big, no challenge is too great”.
If the embargo is to be lifted, plain and simple, we can only hope that Cuba is prepared to get along with the United States.
Avv. Prof. Marco Mastracci, Professore supplente di Diritto Internazionale presso UNICLAM.
[1]. This move was in sharp contrast to the policy followed by his predecessors and by George W. Bush in particular, according to his letter to Congress dated 4 June 1992, in which he stated: “My Administration will continue to stress to other nations that continued direct economic or military assistance to the Cuban dictatorship is not acceptable and will seriously affect their relationship with the United States, including the provisions of assistance”.
[2]. The dissolution of the Soviet bloc was a gradual process: the first steps were taken on 19 January 1990, culminating in Russian finally cutting ties with the Soviet Union in December 1991. 25 December 1991 saw President Michail Gorbachev officially resign, transferring power in full to the President of Russia, Boris Yeltsin.
[3]. In the Italian legal framework, in terms of general theory, doctrine treats the ‘rights of the person’ as the rights that protect someone in their individual, economic and social sphere and which take the form of ‘powers’, which a person, acting as an individual but also in the social groups that they identify with, is free to exercise by taking concrete steps that correspond with those rights. The rights of the person are sometimes defined as ‘fundamental rights’ and are divided into rights of freedom and rights of personal status. See G. Amato, A. Barbera, Manuale di diritto pubblico. I. Diritto pubblico generale, Il Mulino, Bologna, 1997, p. 227. Looking at the Italian Constitution, human rights are dealt with in a specific provision, i.e. Article 2, which states that “The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects the fundamental duties of political, economic and social solidarity to be fulfilled”.
[4]. See A. Catania, L. Lombardi Vallauri (editors) Concezioni del diritto e diritti umani. Confronti Oriente-Occidente,Proceedings of the XXI National Congress of the Italian Society for Legal and Political Philosophy, Salerno-Ravello, 7-10 October 1998, Edizioni Scientifiche Italiane, Naples, 2000, p. 102, where natural law, within which human rights hold a priviliged position, is “consubstantial with the same positive right”, emphasising the role played by the latter in “social integration” and the “belief of legitimacy” on which the “expectation of obedience” is based. Modern-day evolution of natural law should have a rationalistic basis, so as to generate a “culture of rights” in which the individual is apt to lay no lesser claim on behalf of someone else than he does for himself. For this approach see G. Zagrebelsky, Contro l’etica della verità, Glf Editori Laterza, Rome-Bari, 2009, p. 6, who, in describing the fundamental requirements of a democratic state, based on the principle of tolerance, states that “the identity of democracy requires a high degree of responsibility towards the collective dimension of life”. The author expresses doubts, however, about whether natural law does in fact operate to establish the principle of solidarity between individuals (G. Zagrebelsky, op. cit., pp. 105-112).
[5]. This inviolability involves the human rights being absolute (enforceable against anyone), inalienable, incapable of being renounced, disposed of or of expiring over the course of time, to the extent that, in the view of some authors, they represent an insurmountable limit set by the constitutional legislator as a result of the presumed “consubstantial nature of the limits on the constitutional review function”. See P. Barile, E. Cheli, S. Grassi, Istituzioni di diritto pubblico, Cedam, Padua, 2007, p. 381. The preamble to the Universal Declaration of Human Rights also refers to the requirement of equality (“equal and inalienable rights”), on the basis of which the provisions against genocide were brought into force, to quote one example.
[6]. On the issue of dignity of the human being as a supreme value that human rights seek to assert see G. Barbaccia, La dignità umana. Una questione di filosofia pubblica, Ila Palma, Palermo, 2002, and G. Oestreich, Storia dei diritti umani e delle libertà fondamentali, edited by Gustavo Gozzi, Glf Editori Laterza, Rome, 2007, p. 137, according to whom “the idea of the human rights and fundamental rights does not stop with the large-scale freedom movements of the modern age” given that “the essential content of these rights cannot be seen in terms alone of political and intellectual emancipation or in social or economic liberation”. See also various authors in Diritti umani. Cultura dei diritti e dignità della persona nell’epoca della globalizzazione, research directed by Marcello Flores, 6 volumes, Utet, Turin, 2007, in which the spotlight is focussed on the positive and negative aspects of globalisation from the standpoint of the protection of human rights in the various countries around the world. Specific reference is made to the issue of human dignity in the European Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, known as the ‘Convention on Human Rights and Biomedicine’, signed in Oviedo on 4 April 1967, in which the dignity of the human being «alludes to a quality inherent in each individual because they are an individual, a concept that refers to the value that is beyond the law and inherent in the fact of belonging to the human race”, in S. Delle Monache, Convenzione europea per la protezione dei diritti dell’uomo e della dignità di essere umano riguardo alle applicazioni della biologia e della medicina (Convenzione sui diritti dell’uomo e la biomedicina), in Codice dei diritti umani e fondamentali: introduzione generale e note esplicative dei singoli testi raccolti, (many authors) Umberto Vincenti (editor), with the collaboration of the Italian National Bar Council’s Academy for Lawyers, Plus-Pisa University Press, Pisa, 2011.
[7]. Gerhard Oestreich defines this declaration as a “global Magna Carta”, in G. Oestreich, op. cit., p. 141.
[8]. Safeguards in terms of the social dimension are offered on an international level by the ‘International Agreement on Civil and Political Rights’ followed by the ‘International Agreement on Economic, Social and Cultural Rights’, both signed in New York on 16 December 1966.
[9]. See P. Alston, A. Cassese, Ripensare i diritti umani nel XXI secolo, Ega, Turin, 2003, p. 9. In particular, the author sees the basic rights, meaning rights that guarantee survival, as the right to life, in the sense of freedom from hunger and thirst which, more specifically, means “the right to adequate nourishment, drinking water and essential hygiene and sanitation” and the right to a “basic education”, so that the individual can have “the material and mental standard of living required in order to be able to pursue any other value, make any other choice or achieve his own life plan” ibid.
[10]. G. Oestreich, op. cit., p. 138, talks on generic lines about “fundamental rights”, with that category including “property, life, freedom, freedom of religion, equality, status as an individual and social security”, with these prerogatives albeit susceptible to different interpretations depending on the historical and philosophical context that they have their roots in. In particular, the author outlines a sort of ‘genealogy of human rights’ from a historical standpoint, in a time frame that stretches from ancient times to modern day. See also the monographs of A. Cassese, I diritti umani oggi, Glf Editori Laterza, Bari, 2015, and L. Mezzetti (editor), Codice dei diritti umani, in “Le fonti del diritto”, Editoriale Scientifica, Naples, 2015.
[11]. See various authors, Diritti umani. Cultura dei diritti e dignità della persona nell’epoca della globalizzazione, research directed by Marcello Flores, 6 volumes, Utet, Turin, 2007; N. Chomsky, V. Shiva, J. E. Stiglitz et alii, La debolezza del più forte. Globalizzazione e diritti umani, edited by Matthew J. Gibney, Oscar Mondadori, Milan, 2004. In particular, the last of these investigates the consequences of the process of globalization on the right to life, and, more specifically, on the right to food, via the intensive exploitation of land in poorer countries and a system of trading designed to protect business interests alone, to the extent that mention is made of ‘inhuman rights’ and of ‘food fascism’ on pages 121 and 126 respectively. In terms of the relationship between human rights and new technologies, see Frosini, Teoria e tecnica dei diritti umani, Edizioni Scientifiche Italiane, Naples, 1998, page 27 et seq.
[12]. See V. Buonomo, I diritti umani nelle relazioni internazionali. La normativa e la prassi delle Nazioni Unite, in “Studia et documenta. Sectio iuris civilis”, Mursia, Milan, 1997.
[13]. See V. Frosini, op. cit., page 119 et seq.
[14]. The right to communication, coined in order to defend the cultural identity of cultures such as the Indios who are traditionally seen as underdeveloped from a cultural standpoint, would imply “transmission, participation and exchange” rather than conquest by the self-styled “civilizer” - I. Trujillo Pérez, Falsi universalismi, in A. Catania, L. Lombardi Vallauri (editor), Concezioni del diritto e diritti umani. Confronti Oriente-Occidente,Proceedings of the XXI National Congress of the Italian Society for Legal and Political Philosophy, Salerno-Ravello, 7-10 October 1998, Edizioni Scientifiche Italiane, Naples, 2000, p. 406.
[15]. V. Frosini, Il testamento di vita e il diritto di morire, in V. Frosini, op. cit., page 145 et seq.
[16]. Along side the rights that have emerged as a result of today’s socio-economic context, we appear to be witnessing the emergence of a nucleus of rights that are focussed on future generations. The Declaration on the Responsibilities of the Present Generations Towards Future Generations, adopted by the United Nations Educational, Scientific and Cultural Organization on 12 November 1997, in fact confirms that “The present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded” (Article 3), with one reason being the maintenance and perpetuation of humankind.
[17]. J. Safran Foer’s book Se niente importa. Perché mangiamo gli animali? (Eating animals), translation by I. A. Piccinini, Guanda, Parma, 2010, offers an example of this attitude from within the vegetarian movement. In the light of certain investigations carried out into the exploitation of intensive livestock farming in the United States of America, the author claims that a non-vegetarian diet is of negative value.
[18]. See the Handbook on European law relating to asylum, borders and immigrationproduced by the Agency of the European Union for Fundamental Rights, the European Court of Human Rights and the Council of Europe, Publications Office of the European Union, Luxembourg, 2014. In terms of refugee status, see the Convention Relating to the Status of Refugees (Geneva, 25 July 1951) and the related protocol signed in New York on 31 January 1967, as well as the Convention Relating to the Status of Stateless Persons (New York, 28 September 1954). See also UNHCR, United Nations High Commissioner for Refugees, I rifugiati nel mondo 1995. La ricerca delle soluzioni, in “Quaderni di vita italiana”, Prime Minister’s Office, Department of Information and Publishing, Rome, 1995.
[19]. See S. Costa, Diritti umani e convivenza pluriculturale, in Proceedings of the ‘The Mediterranean and Europe’ conference, under the high patronage of the President of the Republic, with the involvement of the President of the Senate of the Republic and the President of the Chamber of Deputies, Rome, Palazzo Valdina, Sala del Cenacolo, 10-11 November 1999 – Association of former parliamentarians of the Republic, Grafica Editrice Romana, Rome, 2001,p. 147-154.
[20]. The protection of women and female prerogatives are dealt with in various declarations. And in this area, as with the rights of minors, there is a notable difference between Western culture and Eastern to the extent that the two systems of values share very little with each other, from the point of view of a number of aspects. In particular, women’s rights are safeguarded by the Declaration (New York, 7 November 1967) and by the related Convention on the Elimination of Any Form of Discrimination against Women, adopted in New York on 18 December 1979, followed by the optional Protocol signed in 1999, by the Convention on the Political Rights of Women (New York, 20 December 1952), and, finally, by the Convention on the Nationality of Married Women adopted on 29 January 1957. Mention should also be made of the Inter-American Convention of Belem Do Para on the prevention, punishment and elimination of violence against women (9 June 1944) and the Protocol to the African Charter of Human and Peoples' Rights relating to women’s rights in Africa (10 June 1998), adopted by the Organization of African Unity. Closely connected to the Conventions referred to are the Convention and Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Minors, adopted on 7 November 1962 and 1 November 1965 respectively. See also the work carried out by the Italian National Commission for Equality and Equal Opportunities between Men and Women, I diritti delle donne sono diritti umani. La Conferenza mondiale sulle donne di Pechino del 1995 e il Pechino più 5, Prime Minister’s Office, Department of Information and Publishing, Rome, 2003.
[21]. The Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, signed by the United Nations General Assembly on 20 December 1971 and 9 December 1975 respectively. See also the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities adopted on 9 June 1999.
[22]. See V. Buonomo, op. cit., which provides a detailed examination of peoples’ rights and the safeguard of identities (the principle of self-determination) and the rights of minorities. The principle of people’s self-determination was stated for the first time by the Declaration on the Granting of Independence to Colonial Countries and Peoples of 4 December 1960. On the matter of discrimination, mention should be made of the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief as well as the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Framework Convention for the Protection of National Minorities and the Declaration against Racism and Xenophobia.
[23]. In the view of A. Catania, L. Lombardi Vallauri (editors), op. cit., p. 382, the principle of universality confirms the tendency towards recognition of human rights “on all latitudes and under any political regime”. See also V. Buonomo, op. cit., p. 109, who talks of the “universality of sharing of rights, their safeguard and implementation achieved by means of formal acceptance by all countries of the legislation […] drawn up on an international level”. The indivisibility instead consists in the fact that the rights cannot be divided into those that are international and those that are not, in the sense that there may well be a different level of recognition and protection within the national systems, without prejudice to the transversal nature of the protection for those rights classified as “fundamental rights of man”.
[24]. Identification of the various types of human rights and the extension to the category of situations and parties capable of being protected is in fact closely linked to the results achieved in international criminal law by legal theorists and case law in the countries in which decisions are called for on alleged infringements. One example here is the recently established crime of genocide. For a more detailed look at the topic of international crimes, see G. Werle, Diritto dei crimini internazionali, Bologna University Press, Bologna, 2009.
[25]. These provisions concern the ratification, implementation and interpretation of the main international treaties and conventions on the protection of human rights around the world and are of huge importance on a political level, as they measure the actual extent of the undertakings and responsibilities provided and taken on by the signatory parties. It should in fact be borne in mind that despite having supported and signed transnational declarations and agreements designed to repress crimes against humanity as well as other types of infringements of fundamental human rights, there are many countries that have not in fact ratified the undertakings provided, with the result that the international provisions have no bite within their own legal systems. The United States, for example, has expressed reservations about the prohibition on torture and withholding the death penalty. This is due to clear issues of political expediency within the various states, in order to keep sovereignty intact where particularly delicate matters are concerned, such as judicial policy or national security (abolishing the death penalty would certainly mean losing the support of voters who still see it as a deterrent and as an effective tool for fighting crime).
[26]. Precedents to the Universal Declaration of Human Rights include the Bill of Rights of the United Kingdom, drawn up by the British Parliament in 1689, the United States Bill of Rights, ratified on 15 December 1791, which sets out the first ten amendments to the Constitution of the United States, and the Declaration of the Rights of Man and of the Citizen, proclaimed on 26 August 1798 following the French Revolution. For a historical analysis of developments in fundamental human rights, see G. Oestreich, op. cit. On the content of the official text of the declarations, conventions, treaties and protocols on human rights, see Codice dei diritti umani e fondamentali: introduzione generale e note esplicative dei singoli testi raccolti, (various authors), edited by Umberto Vincenti, with the collaboration of the Italian National Bar Council’s Academy for Lawyers, Plus-Pisa University Press, Pisa, 2011; Extraordinary Commission for the Safeguard and Promotion of Human Rights of the Italian Senate, Manuale dei diritti umani. Trattati, Convenzioni, Dichiarazioni, Statuti, Protocolli aggiornata al 2004, edited by Stefano Filippone-Thaulero and Shirley Aza Mustafa Duran, Collection of Legislation of the XIV Legislature, Senate of the Republic, Rome, 2006; G. Conso, A. Saccucci, Codice dei diritti umani. Nazioni Unite – Consiglio d’Europa, Cedam, Padua, 2001.
[27]. Solemnly reaffirming the principles expressed by the Declaration of 1948, Article 1 of the proclamation decrees, “It is imperative that the members of the international community fulfill their solemn obligations to promote and encourage respect for human rights and fundamental freedoms for all without distinctions of any kind such as race, colour, sex, language, religion, political or other opinions”.
[28]. All of the declarations referred to can be found in all languages of the EU Member State, on the European Union’s website at www.europa.eu under ‘Official Documents’
[29]. Whilst based within the EU, the court in Strasbourg is not an EU body. As a court, it can hear complaints by individuals or contracting states about breaches of the Convention. It also has an advisory role in relation to the interpretation of the provisions of the Convention as well as the related Protocols. Its website is www.echr.coe.int, whilst judgments handed down in Italian can be found in the online database at www.duitbase.it.
[30]. The Council of Europe is an international organization that promotes democracy, protects human rights and promotes the European cultural identity. Like the ECtHR, it is not part of the European Union. For further information about the bodies of the Council of Europe and how it works, see its official site, www.coe.int/it.
[31]. The structure of the United Nations includes various units which, alongside the judicial functions of the international court, promote the safeguard of human rights in the area that they are responsible for: the United Nations High Commissioner for Human Rights (www.ohchr.org), the United Nations High Commissioner for Refuges (www.unhcr.it); International Labour Organization (www.ilo.org); Unesco (www.unesco.org). All of the treaties signed by the United Nations can be found at www.treaties.un.org.
[32]. Examples here are crimes such as homicide, extermination, slavery, deportation, torture and sexual violence and, in addition, war crimes, whether against persons or property: these are all crimes that are inseparable from infringement of human rights. For a more detailed look see G. Werle, op. cit.
[33]. For further information see, respectively, www.amnesty.it/pena-di-morte and www.amnesty.it/Mai-piu-spose-bambine-campagna-contro-matrimoni-precoci-e-forzati-2016.
[34]. See www.savethechildren.it/supportaci/il-sostegno-distanza?gclid=CPHwj9GdmdACFckaGwodv6gEvw.
[35]. See A. Cassano, Parlando di diritti umani, è possibile fare una graduatoria?, in A. Cassano, Cuba, cooperazione internazionale e diritti umani. Un’analisi delle fonti storiche accompagnata da un’intervista a Noam Chomsky, ‘Eurolatinoamericana’ series, L’Harmattan Italia, Turin, 2009, page 113 et seq.
[36]. Note that the classification in law of the party that committed the infringement is of huge significance for the purposes of immunity. See Il caso Pinochet in A. Di Stasi, Il sistema americano dei diritti umani. Circolazione e mutamento di unainternational legal tradition, Giappichelli Editore, Turin, 2004, page 349 et seq. In its judgment of 17 December 1998 in the ‘Pinochet II’ proceedings, the House of Lords in England stated of course that the international rules on immunity did not apply to the particular case in question on the basis of the principle that a claim for immunity cannot be made where serious infringements of human rights have taken place that cannot be justified on the basis of the exercise of ‘official acts’ or as acts ‘necessitated’ in order to maintain stability in a given form of state, which, in this particular case, was a dictatorship.
[37]. Cassese, in P. Alston P., A. Cassese, op. cit., p. 89, suggests a strategy that involves enforcement, to be implemented by “prosecuting and punishing those who have committed systematic breaches of human rights on a massive scale, in particular torture, crimes against humanity and genocide” and which involves “international responses to atrocities committed on a large scale as well as to other serious breaches of human rights, which can be implemented via means of coercion” ibidem.
[38]. The paradox when this principle is applied to human rights is the fact that international legal theory and case law have had to meticulously identify the individual elements that amount to the offence, even where this should be obvious to human conscience. One example here is the crime of torture: in its Statute, the ICTY – the International Criminal Tribunal for the former Yugoslavia – established by resolution 827 of 25 May 1993 by the United Nations Security Council, has described in minute detail the acts that specifically amount to the offence of torture. See G. Werle, op. cit., p. 340 et seq. But note how, in the history of western civilization, phenomena of juridicalization have legalised acts which, to the perfect knowledge of those committing them, were completely inhumane, making them formally lawful. An example here is the Inquisition: the systematic commission of the crime of torture, as described by I. Mereu, Storia dell’intolleranza in Europa, in the ‘Tascabili’ collection, Bompiani, Milan, 2000, p. 210 et seq.
[39]. The first provisions concerning the embargo date back to 1959 and were introduced by President Eisenhower in response to Fidel Castro’s agricultural reforms and nationalisation of American businesses. A process that involved the drastic reduction in US exports to Cuba on the basis of the Export Control Act of 1949 culminated in 1960 with American investment in the island being withdrawn outright, with Cuba suddenly finding itself without foreign financial resources, which had mainly been provided by the United States. In 1961, with fears that communist influence might penetrate the continent following the trade agreements signed by Cuba with the Soviet Union, President John F. Kennedy put America’s relationship with Cuba under further strain by imposing new sanctions and officially confirming the embargo with Proclamation 3447 in 1962. This extended the blockade to all types of trade, and came hand-in-hand with the ban on US citizens travelling to Cuba on holiday, even forbidding visits to family on the island. In 1963, the Cuban Assets Control Regulations placed a permanent freezing order on assets held in the United States by Cuban citizens and prohibited their removal as well as imports and exports between the two countries, save only for the import of material of an informative nature and art work with a value of under $25,000.
[40]. These recent signs of an opening up mainly concern dialogue between the countries’ respective embassies, as well as the ability to increase remittances and the share of goods that can be imported from Cuba. Note that the extremist approach on the part of the United States towards the embargo is no longer embraced by the international community, with the United Nations General Assembly having voted on a number of occasions against keeping the embargo in place, with the exception of the State of Israel. See M. Krinsky, D. Golove, United States Measures Against Cuba: Proceedings in the United Nations and International Law Issues, Aletheia Press, Northampton, 1995. Finally, see United Nations resolution 191 of 2016. According to the Cuban Democracy Act, the embargo can be lifted when the Cuban Republic: a) holds free and fair elections following constitutional amendments that provide suitable guarantees; b) allows the presence of opposition parties and, therefore, a political alternative to the Cuban socialist party; c) shows respect for the fundamental rights and human rights of the citizens of Cuba; d) promotes theestablishment of a free market economic system.
[41]. According to Jacques Derrida, it was in fact under the Clinton administration that the expression ‘rouge state’ began to be heard more often with reference to the United States, given that it is from this historical point onwards that we witness the “international behaviour and the alleged infringements (implied or express) of an international law that claims to be fundamentally democratic” in J. Derrida, Stati canaglia, ‘Scienze e Idee’ series, Raffaello Cortina Editore, Milan, 2003, p. 141.
[42]. Examples here are Eisenhower’s 1959 plan, designed to support the internal opposition to the Castro regime, the Program of Covert Actions Against the Castro Regime, which set out to train paramilitaries to despatch to the island for the purposes of an offensive against the dictatorship, the sabotage perpetrated during ‘Operation Mongoose’ under the Kennedy presidency, which took the form of genuine acts of terrorism, and the naval blockade imposed during the missile crisis.
[43]. See A. Bernardini, F. Lattanzi, M. Spinedi (editors), Riflessioni sulla conformità o meno al diritto internazionale dell’embargo economico, commerciale e finanziario attuato dagli Stati Uniti nei confronti di Cuba, the Italian Lelio Basso International Foundationfor the Rights and Liberation of Peoples, Nova Cultura Editrice, San Bellino (Ro), 1993.
[44] Bear in mind that save for the outgoing President, Barack Obama, and regardless of whether they are in the Republican Party or the Democratic Party, all the Presidents of the United States of America, from Eisenhower to Bill Clinton, have kept in place and/or tightened the measures established by the legislation imposing the embargo.
[45]. The organization, which currently has 35 member states, was founded in 1948 at the IX International Conference of American States following signature of the Inter-American Treaty of Reciprocal Assistance, also known as the ‘Treaty of Rio’ (Rio de Janeiro, 1947), whereby the signatory states undertook to assist one another when under attack, with aims on similar lines to those of Nato in Europe. The IX Conference provided the stage for the American Declaration of the Rights and Duties of Man, followed over the course of time by the American Convention on Human Rights (1967); the Inter-American Convention on the Prevention and Punishment of Torture (1985); the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Inter-American Convention on the Forced Disappearance of Persons and the Inter-American Convention on the International Trafficking of Minors, all signed in 1994. Despite its exclusion from the OAS, in 1975 the signatory states to the Treaty were granted the opportunity to rethink their relations with Cuba. For a more detailed examination of the protection of human rights in the OAS system, see A. Di Stasi, op. cit., p. 212 et seq.
[46]. Whilst confirming the embargo and the imposition of sanctions on countries that “provide assistance” to Cuba, the Torricelli law expresses the government’s intention to reduce the sanctions “in carefully calibrated ways in response to positive developments in Cuba” (Section 1703, No. 7). So the restrictions exclude, from the definition of ‘assistance’, certain acts of a humanitarian nature, such as “donations of food to non-governmental organizations or individuals in Cuba” (Section 1704, No. 6 (b1) and the “exports of medicines or medical supplies, instruments or equipment”, being authorised by the law itself (Section 1704, No. 2 (b2)). In line with this approach, donations of food, exports of medicines or medical supplies and telecommunications installations and services are allowed. These measures have certainly helped to improve living conditions for the Cuban people, even though the Cuban regime still rations the resources available.
[47]. Pursuant to Article 5 of the Constitution of Cuba, “The Communist Party of Cuba, a follower of Martí ideas and of Marxism-Leninism and the organized vanguard of the Cuban nation, is the highest leading force of society and of the state, organizing and guiding the common effort towards the elevated goals of the construction of socialism and progress toward a communist society”.
[48]. See in particular Articles 14 and 15 of the Constitution of Cuba, which mention “socialist State property of all the people”.
[49]. Cuba’s health system is certainly a source of pride for the Castro regime, not least in relation to the international cooperation programmes and medical staff training programmes that a number of Cuban doctors are involved in, providing aid and assistance in countries in the ‘Third World’ entirely free of charge.
[50]. See various authors in Il Libro nero di Cuba, preface by Robert Ménard, Guerini e Associati, Milan, 2005 and, to ensure equal treatment, F. Castro, La mia fede. Cristianesimo e Rivoluzione in un’intervista con Frei Betto, Edizioni Paoline, Turin, 1986, where in an interview with Frei Betto, Fidel Castro sets out his political vision, investigating the connection between revolution and principles of Christianity.
[51]. Candidates for praise are the international cooperation programmes promoted by Cuba, especially in the medical field, in particular the ‘Art Programme’, which aims to increase exchange on a professional level by way of mutual support and in the fields of science, training, economics and trade in all countries in the ‘Third World’ in A. Cassano, op. cit., p. 79 et seq.
[52]. See Marina Cardozo Prieto, L’America Latina, in Diritti umani. Cultura dei diritti e dignità della persona nell’epoca della globalizzazione, (various authors), research directed by Marcello Flores, 6 volumes, Utet, Turin, 2007, p. 934 et seq.
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webliography
Databases:
Human rights in Italy
www.duitbase.it
United Nations Treaties
www.treaties.un.org
Institutional websites:
European Union
www.europa.eu
Council of Europe
www.coe.int
European Court of Human Rights (ECtHR)
www.echr.coe.int
United Nations
www.un.org
United Nations High Commissioner for Human Rights
www.ohchr.org
United Nations High Commissioner for Refugees
www.unhcr.it
International Labour Organization
www.ilo.org
Unesco
www.unesco.org
The main international organizations committed to the promotion and development of human rights
Amnesty International
www.amnesty.it
Medici senza frontiere (Doctors without Borders)
www.medicisenzafrontiere.it
Save The Children
www.savethechildren.it
