Home » Commentaries on Current Issues

Category Archives: Commentaries on Current Issues

Professor Flora Sapio

Popular Comments on the Cuban Constitution – Marxist-Leninist Constitutonalism with Caribbean Characteristics?

On August 22, the Reuters news agency announced that the Trump administration is going to reduce diplomatic staff in Havana to a maximum of 18 persons, “due to a mysterious illness”. The Reuters dispatch observed that:

Outreach to civil society and human rights activists has also been reduced at a time when Cuba is transitioning to a new generation of political leaders, internet access is spreading and a revamped constitution is headed for a referendum vote.

The reduction in diplomatic staff has come while China, Russia, Venezuela and the European Union are all trying to advance their interest in the island. At the same time, the Cuban political-administrative apparatus is undergoing deep changes. Each one of these changes is of relevance to China experts interested in comparing reforming Marxist-Leninist systems.

The governance reforms outlined by the Conceptualización del modelo económico y social cubano de desarrollo socialista and the Lineamientos de la Política Económica y Social del Partido y la Revolución para el periodo 2016-2021 have begun to see the light:

  • on July 22, the National Assembly of People’s Power (Asamblea Nacional del Poder Popular) concluded a two-days debate on the project of constitutional reform;

  • on July 30, the draft Constitution of the state was published by the website Cubadebate;

  • a total of 135,000 popular consultation meetings on the Constitution started on August 13, and will continue until November 15;

  • a constitutional referendum will take place on February 24, 2019

Those interested in learning more about the 2018/29 constitutional revision in Cuba will find various reference materials on the website of the Coalition for Peace and Ethics – a big thank you goes to their folks.

In light of the changes in the policy of the United States towards Cuba [1], the decision to downsize the U.S. diplomatic mission in Havana does not come as a surprise. The style of negotiation and foreign policy approach of the present U.S. administration are creating uncertainties among domestic and international observers. The decision to reduce the diplomatic staff in Havana however will produce effects coherent with the choice to channel investments away from entities on the Cuba Restricted List.

In the meantime, the popular debate on the Cuban constitution continues. The Coalition for Peace and Ethics has made available some aggregated data on unofficial comments to the project of constitutional revision. The data is useful to get a sense of what the most important themes in the new constitution are, to a sector of the Cuban public opinion.

The public debate on the constitutional revision seems to be involving a tiny fraction of the public. The difficulties in accessing Facebook and other social media services may have played a role in limiting the availability of online comments to the project of constitutional reform. On the other hand, the public debate has just begun, and it is likely that unofficial comments will intensify as we get closer to the February 24 referendum.

This far, the theme to attract most comments and discussion has been the new definition of marriage as the consensual union of two persons, regardless of their gender. This definition allows the possibility of same-sex marriage, and has provoked a relative majority of comments (37,20%), at least compared to general discussions of the constitutional revision (26.44%).

What it is striking is:

  • the percentage of comments not directly relevant to the constitutonal revision (28.45%)

  • the limited attention paid to the theme of labor compensation (7.16%)

  • the very low number of actual comments on certain specific articles of the new constitution, as opposed to comments on themes such as marriage, labor compensation, and others.

While it is still early to detect a stable trend in unofficial discussions on the constitutional revision, these initial comments provide a useful window on the interests and concerns of those who are using alternative fora to express their views on the constitutional revision project.

[1] In July 2017 the memorandum “Strengthening the Policy of the United States Toward Cuba” outlined the Trump’s administration policy towards Cuba as including an: “end to economic practices that disproportionately benefit the Cuban government or its military, intelligence, or security agencies or personnel at the expense of the Cuban people.” In November 2017, changes to authorizations for travel to Cuba were introduced. A list of restricted entities associated with Cuba, with which direct financial transactions would be prohibited was published, financial transactions were restricted, and the licensing policy was amended. A task force composed of government and non-government representatives was created, to examine the challenges and opportunities for expanding internet access in Cuba.

Part 2 – Form and Function in International Human Rights Instruments. An Attempt to Work Constructively on John Knox’s Vision on Human Rights and the Environment

This is the second part of a commentary I published on February 7, as a follow-up to a commentary on the Draft Guidelines on Human Rights and the Environment co-authored with Larry Catà Backer.

The goal of the first part of the commentary was to engage constructively with the work of Professor John Knox (UN Special Rapporteur on Human Rights and the Environment). This goal called for going beyond the merits of what have now become the Framework Principles on Human Rights and the Environment (Draft here). One not too far day, the Framework Principles may become a binding treaty.

The process whereby a set of non-binding principles (which already exist at the time of writing, and can be adopted by all those with a stake in protecting the environment) becomes a treaty  is a process involving the relationship between what, in the first part of my post, I called “form” and “function”. This is a much broader relationship that highlights a fault-line running beneath the edifice of public international law, and which may (or may not) undermine it.

In an attempt to better understand this latter point, in the first part of this post I reframed the question of “what the state is now” as the question of “what government is”. Such a reframing was in my opinion necessary to better identify one of the “contradictions” in international law. I further divided the question of “what government is” into the two-fold question of:

(a) when a government is effectively recognized as a government;

(b) what is the minimum common denominator of governments at this point in history

In this second part, I am providing a tentative answer to both questions. Considered within their respective yet inter-dependent domains (international law, transnational governance) these questions prove how:

(a) the structures generating and sustaining international law are inherently customary – hence much closer in nature to non-binding instruments than to binding ones;

(b) the entirely voluntary, non-binding, flexible nature of transnational instruments is the key elements allowing transnational regulation (UN system and human rights law included) to exist and develop;

(c) an emerging trend towards the transformation of non-binding principles into binding treaties would perhaps not be fully coherent with the very logic of transnational regulation.

Under this logic, all governance processes rely on non-binding tools and instruments. In a sense, the willingness of all stakeholders, not just government to maintain behaviors coherent with their stated committments has become more important than the outward forms of regulation.

Part 1 – When is a government a government?

The entire edifice of transnational regulation is premised on a hierarchical arrangement. Within the UN system, states exist at the top of a pyramid of highly heterogeneous actors – enterprises, individuals, and NGOs, and act through their governments. But, when is a government a government? To this question, which is a fundamental question, no international legally binding instrument provides an answer. In practice, a government is recognized as a government through a relational act performed by one or more of its peers. Outwardly, this relational act can be classified through well-known taxonomies. In any case, such an act is a voluntary act perfomed outside of any treaty-based obligation. The recognition of a state is the

manifestation of the recognizing government’s subjective opinion on the legal status of the government in question

A similar line of reasoning applies to enterprises and NGOs. NGOs and enterprises are some of the entities contributing to the making of international law through their participation to a variety of fora, but

when an NGO is effectively recognized as an NGO?

No binding instrument provides an answer to this question. The existence of NGOs is accepted a matter of fact (see art. 71 here). Accreditation is a mechanism that regulates the participation of an NGO to international fora (see II.18 here), and as such has no bearings on the existence of an NGO.

Despite the increasingly important role NGOs have come to play in international law, the matter is not regulated. At the very basis of the existence of an NGO, however, one finds an entirely voluntary act whereby a group of persons decide to pursue a common aim.

It seems that acts performed on an entirely voluntary basis, outside of the codified structures of international law, are sufficient to bring into existence two of its most important actors at least. It may be objected that these voluntary acts must be supported by a conduct coherent with the stated goals and intentions of both entities. In fact, several means exist to assess whether UN organs, governments, and NGOs, behave coherent with their stated goals. But, I will discuss those in a moment.

By this point of my comment, my position in the “treaties versus non-binding principles” debate should be sufficiently clear. The dychotomy between treaties and non-binding principles is only a seeming dychotomy

The actors and structures that sustain the edifice of international law, as well as the making of treaties, are all born out of unilateral, voluntary manifestations of will taking place outside of the entire gamut of written, codified norms. If those manifestations of will were regulated by binding documents, perhaps the UN system as it exists now would be eroded, and slowly collapse. Given the absence of a single transnational entity endowed with a measures of power superior of those of national states, such a document would lack legitimacy in the eyes of most if not all governments.

If this is true, then:

(a)  the very foundation of the UN system relies on custom, and custom is what keeps the UN system alive;

over time, several customary practices have been codified into binding treaties, while several others have been summarized into non-binding documents, principles, etc. This is particularly true of human rights.

The foundational document that summarizes the pre-existing rights of man, has given life to several binding treaties, but it can maintain its moral and generative force thanks to its non-binding form. An emerging trend, in matters of human rights and environmental protection, that saw the reversal of this established practice would lead to an erosion of the established practices that sustain not just human rights law, but the UN system as well.

(b) more effective than the form of binding treaties, is an autonomous decision to commit oneself to a course of conduct, and to consistently follow it over time;

Since the time when Mare Liberum was authored, these autonomous decisions have driven the development of transnational law. They have given life to each one of the poles of transnational regulations that exist beyond the UN system.

(c) the transition from ‘principles’ to binding treaties is not an obliged path;

In light of the above, arguments in favor of institutionalizing a transition from non-binding principles to a binding treaty could at least try to prove that an autonomous decision to bind oneself to a certain conduct is always less reliable and less effective in practice:

– when taken by a group of individuals acting on behalf of  citizens, than when taken by a group of individuals acting on behalf of shareholders;

– when taken by those who directly keep the very conducts a binding treaty attempts to govern, than when taken by those who enjoy a possibility to indirectly influence decisions made by actors other than themselves

An evaluation of the respective merits of non-binding principles and binding treaties should be based on pragmatic considerations.The word ‘pragmatic’ does not carry a negative connotation. Being ‘pragmatic’ does not mean rejecting shared values, or subordinating shared values to materialistic goals and objectives. Being pragmatic means relying on problem-solving and lesson-learning mechanisms, strategies, tool-kits etc. coherent with reality.

Part 2 – Hybrid governance as the minimum common denominator of governments

The dynamic whereby governance exists beyond the more limited domestic dimension, and relies on hybrid transnational networks of public, private, for-profit and not-for profit entities is well-known and needs not be repeated here. This is the minimum common denominator of all governments across the globe at this point in history.

What is worth asking  is the role a binding treaty, or any other instrument addressing domestic governments, but not all the other actors in transnational governance would play within hybrid governance networks.

A question closely related to this one is whether mechanisms solidly rooted within domestic governance systems, but roughly similar across jurisdictions, may provide more effective solutions in environmental governance than binding treaties. As I have observed elsewhere, the emergence of hybrid domestic and transnational governance regimes has highlighted the structural limitations of binding instruments as such. It has also resulted in the creation new means to monitor actors’ behavior, and assess compliance with their stated committments.

The means used to monitor and assess compliance with international human rights instruments share several similiarities with other regimes of monitoring and assessment, but with at least two key differences:

(a) they have, in a sense, been borrowed from the domain of hybrid governance, rather than the other way around. 

This point is significant, because normally the making of international instruments – whether they are binding or not – follows the opposite process: existing practices are researched, surveyed, and documented. Then, they are brought to a higher level of abstraction, and summarized into documents that do not create any new obligations on states.

(b) for the most part, they employ concepts, methodologies and approaches that are not codified

The most striking example is, perhaps, the entire discourse on ‘good practices‘. In his February newsletter, the Special Rapporteur makes several references to ‘good practices‘. In this, he merely follows the established approach whereby consistency with the existing ways of doing things relies not on the brute force of the state and its legislation, but on methods which are generally accepted as superior to all existing alternatives because they produce better results in practice.

This far, the Special Rapporteur has documented more than 100 good practices in environmental protection. These are presented on the Environmental Rights Database: Good Practices in the Use of Human Rights to Protect the Environment.

The analysis of each one of these good practices and their implementing actors goes well beyond the scope of this post. It is to be noticed how:

(a) the generally shared concept of good practices, or best practices, as being superior to all existing alternatives ironically points out the subordinate role of binding instruments. If binding instruments were the only possible way to achieve certain goals, then practices superior to existing alternatives (treaties included) would perhaps not exist;

(b) good practices involve and are created by multinational enterprises and, generally speaking, all the other actors binding documents don’t speak to;

(c) good practices can become the object of compilations, but not of binding instruments per se, because they are created by actors falling outside of the purview of such binding instruments

The fact good practices operate through roughly horizontal networks, rather than top-down (as binding treaties do) perhaps points out not so much to the fragmentation of international law, but to the inability of the binding treaty as a legal form to keep up with emerging trends.

Are we witnessing the slow demise of public international law as the privileged tool of transnational regulation?

Professor Sapio is the holder of a research position at the University “Orientale” in Naples, Italy. The views and opinions expressed on this website are her personal views only.

error: Content is protected !!