Cuban Legal Reforms and Business Practices in a New Era of U.S.-Cuba Relations

Home , Almendares River, Cuban law, History of Havana, Responsible Autonomy, Tribuna de La Habana

March 30 – April 3, 2019

Cuba Cultural Travel in collaboration with the CT Bar Association

CT Bar Institute, Inc.

CT: 7.5 CLE Credits (7.5 General) NY: 9.0 CLE Credits (7.5 AOP / 1.5 D&I)

No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments.

Page 1 of 182 Lawyers’ Principles of Professionalism

As a lawyer I must strive to make our system of justice work fairly and Where consistent with my client's interests, I will communicate with efficiently. In order to carry out that responsibility, not only will I comply opposing counsel in an effort to avoid litigation and to resolve litigation with the letter and spirit of the disciplinary standards applicable to all that has actually commenced; lawyers, but I will also conduct myself in accordance with the following Principles of Professionalism when dealing with my client, opposing I will withdraw voluntarily claims or defense when it becomes apparent parties, their counsel, the courts and the general public. that they do not have merit or are superfluous;

Civility and courtesy are the hallmarks of professionalism and should not I will not file frivolous motions; be equated with weakness;

I will endeavor to be courteous and civil, both in oral and in written I will make every effort to agree with other counsel, as early as possible, on communications; a voluntary exchange of information and on a plan for discovery;

I will not knowingly make statements of fact or of law that are untrue; I will attempt to resolve, by agreement, my objections to matters contained in my opponent's pleadings and discovery requests; I will agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of my client will not be In civil matters, I will stipulate to facts as to which there is no genuine adversely affected; dispute;

I will refrain from causing unreasonable delays; I will endeavor to be punctual in attending court hearings, conferences, meetings and depositions; I will endeavor to consult with opposing counsel before scheduling depositions and meetings and before rescheduling hearings, and I will I will at all times be candid with the court and its personnel; cooperate with opposing counsel when scheduling changes are requested; I will remember that, in addition to commitment to my client's cause, my When scheduled hearings or depositions have to be canceled, I will notify responsibilities as a lawyer include a devotion to the public good; opposing counsel, and if appropriate, the court (or other tribunal) as early as possible; I will endeavor to keep myself current in the areas in which I practice and when necessary, will associate with, or refer my client to, counsel Before dates for hearings or trials are set, or if that is not feasible, knowledgeable in another field of practice; immediately after such dates have been set, I will attempt to verify the availability of key participants and witnesses so that I can promptly notify I will be mindful of the fact that, as a member of a self-regulating the court (or other tribunal) and opposing counsel of any likely problem in profession, it is incumbent on me to report violations by fellow lawyers as that regard; required by the Rules of Professional Conduct;

I will refrain from utilizing litigation or any other course of conduct to I will be mindful of the need to protect the image of the legal profession in harass the opposing party; the eyes of the public and will be so guided when considering methods and content of advertising; I will refrain from engaging in excessive and abusive discovery, and I will comply with all reasonable discovery requests; I will be mindful that the law is a learned profession and that among its desirable goals are devotion to public service, improvement of In depositions and other proceedings, and in negotiations, I will conduct administration of justice, and the contribution of uncompensated time and myself with dignity, avoid making groundless objections and refrain from civic influence on behalf of those persons who cannot afford adequate legal engaging I acts of rudeness or disrespect; assistance;

I will not serve motions and pleadings on the other party or counsel at such I will endeavor to ensure that all persons, regardless of race, age, gender, time or in such manner as will unfairly limit the other party’s opportunity disability, national origin, religion, sexual orientation, color, or creed to respond; receive fair and equal treatment under the law, and will always conduct myself in such a way as to promote equality and justice for all. In business transactions I will not quarrel over matters of form or style, but will concentrate on matters of substance and content; It is understood that nothing in these Principles shall be deemed to supersede, supplement or in any way amend the Rules of Professional Conduct, alter existing standards of conduct against which lawyer conduct I will be a vigorous and zealous advocate on behalf of my client, while might be judged or become a basis for the imposition of civil liability of recognizing, as an officer of the court, that excessive zeal may be any kind. detrimental to my client’s interests as well as to the proper functioning of our system of justice; --Adopted by the Connecticut Bar Association House of Delegates on June 6, 1994 While I must consider my client’s decision concerning the objectives of the representation, I nevertheless will counsel my client that a willingness to initiate or engage in settlement discussions is consistent with zealous and effective representation;

Page 2 of 182 Table of Contents Course Description ...... 4 Agenda ...... 5 Topical Outlines ...... 6 Cuba in Transition: The Rule of Law as Part of Cuban Reforms ...... 6 Introduction to Cuban Legal Systems and Principles ...... 7 Gender & Sex Equality in Cuba: Legal Perspectives ...... 8 Foreign Legal Practice, Investment Opportunities and Challenges ...... 9 Rules and Regulations in Cuba’s Emerging Private Sector ...... 10 Faculty Biographies ...... 11 Cuba in Transition: The Rule of Law as Part of Cuban Reforms Materials ...... 27 Introduction to Cuban Legal Systems and Principles Materials ...... 49 Gender & Sex Equality in Cuba: Legal Perspectives Materials ...... 71 Foreign Legal Practice, Investment Opportunities and Challenges Materials ...... 125 Rules and Regulations in Cuba’s Emerging Private Sector Materials ...... 141

Page 3 of 182 Cross Cultural, Law-Oriented Educational Exchange Cuban Legal Reforms and Business Practices in a New Era of U.S.-Cuba Relations Organized by Cuba Cultural Travel in collaboration with the Connecticut Bar Association March 30 – April 3, 2019

I. Course Description

A survey of Cuban legal, political and economic frameworks, particularly in the international context, will as well more advanced topics to include human rights, intellectual property, Cuba’s new law on foreign investment, private sector regulation and special tax regimes. The goal of this program is to provide participants with a deeper understanding of contemporary Cuban law and civil society, business practices, international and economic relations, and to enhance the practitioner’s ability to effectively deal with Cuban‐American clientele and emerging legal issues between the United States and Cuba.

Page 4 of 182 II. Timed CLE Agenda

March 31, 2019 – Cuba in Transition: The Rule of Law as part of Cuban Reforms

 Rafael Hernandez, Editor, Temas  Moderated by Jonathan M. Shapiro, President, Connecticut Bar Association  Conference room  9:00am – 10:30am (90 minutes)

March 31, 2019 – Introduction to Cuban Legal Systems and Principles

 Ileana Saria, Cuban attorney and tour guide, Havanatur  Conference room  4:00pm – 5:30pm (90 minutes)

April 1, 2019 – Gender & Sex Equality in Cuba

 Rita Pereira, Adjunct Professor of Law, University of Havana  Conference Room, Lecture 9:00am – 10:30am  Combined total 90 minutes

April 1, 2019 ‐ Foreign Legal Practice, Investment Opportunities and Challenges

 Gregory Biniowsky, Canadian attorney resident in Havana, WLG Gowling  Lecture over Lunch, Nazdarovie  1:30‐3:00pm (90 minutes)

April 2, 2019 – Rules and Regulations Governing Cuba’s Emerging Private Sector

 Joanna Soler, Cuban attorney, Bufetes Collectivos  Conference room  8:30am – 10:00am (90 minutes)

Page 5 of 182 I. Topical Outlines

Cuba in Transition: The Rule of Law as Part of Cuban Reforms By Rafael Hernandez

I. Social and Political Overview o Socialism o Normalization o Treatment of Dissidents and Human Rights o The Role of the Catholic Church in Reconciliation o The Cuban Communist Party o Salary vs. Income o The Cuban Exile Community o The U.S. Embargo of Cuba

II. Cuban Reforms and Challenges o Rising Social Inequality o Hyper-centralized rule-making o Overextended State Bureaucracy o Demographic Imbalances o Media and Communication Policies o Unstable Economic growth o U.S. Intervention

III. Updating the Cuban Socialist Model & Constitutional Reform o Structural Changes, Decentralization o Strengthening the Rule of Law . New Legislation . Municipal Division and Powers Law . Electoral Law o Expansion of the Private Sector and Cooperatives o De-Bureaucratization and Legal frameworks for decision-making o Cuba’s New Constitution of 2019

Page 6 of 182 Introduction to Cuban Legal Systems and Principles Ileana Saria

I. Historical Background, Colonial Heritage II. The Cuban Constitution a. Constitution of 1940 and 1976 b. Constitutional Reforms of 1992 and 2002 c. The New Constitution of 2019 (under debate) III. The Cuban Judiciary a. Organization of the Courts b. Ministry of Justice IV. Local Governance V. Commercial Code VI. Civil Codes a. Family Code b. Labor Code c. Penal Code VII. Legal Curiosities VIII. Migration Law IX. Foreign Investment Law

Page 7 of 182 Gender & Sex Equality in Cuba: Legal Perspectives Rita Pereira (See CV attached)

Topics Covered

I. Sexuality, Gender & Cuban Culture a. Gender norms b. Sexual education in Cuba c. Institutions, e.g., CENESEX

II. Legal Issues a. Cuba’s Family law (code) i. Divorce ii. Abortion iii. Child support iv. Maternity/paternity leave b. Sexual rights and sexual orientations c. Civil rights and discrimination d. Cuba’s New Constitution

III. Political and Social Issues a. Privacy and housing b. Employment, Labor and social security c. Cuban government structures and reform

Page 8 of 182 Foreign Legal Practice, Investment Opportunities and Challenges

Gregory Biniowsky

I. Legal Education for the Foreign Attorney a. Socio-cultural context for the Cuban legal system b. The practice of law in Cuba

II. Perspectives on the Cuban Legal System

III. Foreign and Domestic Relations a. The Fall of the Soviet Union b. Canada-Cuba relations c. US-Cuba relations and the Embargo i. Normalization process initiated by Obama Administration ii. Curtailing of Normalization under Trump administration

IV. Foreign Investment in Cuba a. Historical Perspective and Challenges b. Recent Reforms i. New Foreign Investment Law ii. New Incentives c. Current Practice and Challenges i. Impact of US Embargo/Sanctions Law 1. US Department of Treasury/OFAC Regulations 2. US State Dept List of Restricted Entities

V. Private Sector Opportunities VI. Philanthropic/Humanitarian Opportunities

Page 9 of 182

Rules and Regulations in Cuba’s Emerging Private Sector Joanna Soler

I. Description of the Private (Non-State) Sector a. Legacy Sectors (Agricultural cooperatives) b. Emerging Areas i. Self-employment ii. Non-Agricultural Cooperatives II. Non-Agricultural Cooperatives, Decree 305 a. Experimental Law (2012) b. Legal personality c. Compliance with legal and other requirements d. Formation and Partnership e. Tax III. Self-Employment (Cuentapropistas), Resolution 353 a. Types of authorized self-employment b. Procedures for obtaining licenses c. Ministry of Employment and Social Security d. Tax regime: Law 113 (2012) and Resolution 41 and 42 (2013) e. Social security contributions f. Exemptions IV. New Regulation in the Non-State Sector (2018-2019) a. Impact of New Cuban Constitution (2019) on Private Property Rights

Page 10 of 182

Faculty Biographies

Page 11 of 182 Curriculum Vitae of Gregory Biniowsky  Oficios #104, apt. 5B, e/ Lamparilla y Amargura Habana Vieja, Havana, Cuba. Cell phone: 05-838-6900. Email: [email protected]

WORK EXPERIENCE

Consultant lawyer, Gowling Consulting Inc. (Gowling WLG) March, 2015 - Present Working for the consulting division of the international law firm Gowling WLG, offering strategic advice, business intelligence, and venture options to prospective investors and companies, from around the world, who looking at the emerging Cuban market. Gowlings is the first Canadian law firm to officially announce it is creating a Cuba practice, and the only international law firm with a representative on the ground in Cuba, to provide strategic advice and facilitate emerging investment and business opportunities.

President, South Horizon Consulting. September, 2014 – March 2015. South Horizon Consulting is a recently created consulting firm focussing on offering strategic advice, business intelligence, and venture options to prospective investors and companies looking at the Cuban market.

President, Savannah Sol Remittances Inc. May, 2013 – Present. Savannah Sol Remittances is a Canadian company that is facilitating family financial remittances to Cuba from Canada and other countries. It is working in alliance with one of the world’s largest and most prestigious money remittance networks.

Founder and Partner, Havanada Consulting Inc. January, 2012 – Present. Havanada Consulting is philanthropic consulting firm which focuses on non-profit sustainable development projects and social enterprise initiatives in Cuba and the Caribbean Basin. Made up of two partners, each with extensive experience in project design, management and evaluation, Havanada assists international NGOs, international development agencies, social and ecological impact funds, philanthropists, individual social investors or independent social entrepreneurs who are interested in undertaking social or environmental projects in Cuba or funding/supporting such projects.

Consultant lawyer, Heenan Blaikie LLP. May 2009 – February 2014 Worked for Heenan Blaikie as an international consultant in Havana, to assist Canadian and international clients interested in diverse projects related to Cuba, giving strategic advice and analysis on Cuba’s legal, political, and economic context, and emerging investment and business opportunities.

Coordinator for “Canada - Cuba Fund for Local Initiatives” – Canadian Embassy in Havana. June 2009 – May 2013 (previously July 2003 – September 2006). Page 12 of 182 P a g e | 2

Coordinator of the CFLI, an Embassy administered international development fund supporting local communities and grassroots NGOs to undertake projects which focus on sustainable development. Accountable directly to the CFLI Manager at the Canadian Embassy, I am responsible for day to day administration of the CFLI, coordinating project selection, drafting of project documentation, overseeing and monitoring active CFLI projects throughout the island, problem solving when required, and reporting progress and results of projects to the CFLI Manager.

Coordinator for the “Modernization of the State Fund” – Canadian International Development Agency. November 2009 – March 2013. Coordinating a CIDA international development fund to assist the Cuban government in a program to modernize the operations and capacities of various state ministries and institutions to achieve the objectives of sustainable development.

Coordinator for the “Community Development Fund” – Canadian International Development Agency. May 2011 – March 2013. Coordinating a CIDA international development fund supporting local communities and NGOs in Cuba that are developing models of sustainable economic and social development in a decentralized, grassroots context.

Joint Coordinator, Conference on Corporate Social Responsibility and the Solidarity Economy, Havana, Cuba. September 2010 – June 2011 Working with Eric Leenson (founder of Progressive Asset Management, one of the first ethical funds in the United States) and Pamela Rios, of the Avina Foundation, I worked on the development and coordination of an important international conference in Havana, Cuba. This conference brought together international experts in corporate social responsibility and solidarity economics with Cuban professionals and policy makers. The goal of the conference was to expose the Cubans to innovative and sustainable economic and business models, to ensure that Cuba’s process of economic reform is imbued with elements of sustainability and social responsibility.

Nominator of 2010 Goldman Environmental Award Winner Humberto Rios Labrada. April 2009 – April 2010 Successfully nominated Cuban scientist and environmental activist Humberto Rios for the 2010 Goldman Environmental Award (the ‘Green Nobel’), the world’s largest environmental award given to grassroots activists, given to only six people worldwide per year. I was responsible for identifying the candidate, developing the initial nomination argument, and assisting the Goldman Foundation in the subsequent selection process. I also accompanied Dr. Rios to the United States for the Award ceremonies in San Francisco and Washington D.C. (during which Dr. Rios met with US President Barack Obama).

Consultant, United Nations - Office of the Resident Coordinator (Havana). October 2008 – May 2009. Worked as an independent consultant for the United Nations, overseeing the coordination of the United Nations’ humanitarian aid program and recovery program in response to the two hurricanes that devastated Cuba in the summer of 2008. I coordinated the oversight of a $30

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million Plan of Action for post-hurricane recovery and reported directly to the head United Nations representative posted in Cuba.

Arvay Finlay Barristers (Vancouver) September 2007 – September 2008 Completed legal articles with the nationally renowned public interest and Charter litigation law firm Arvay Finlay Barristers. Worked on a variety of important litigation cases under the direct mentorship of Joe Arvay, one of Canada’s preeminent Constitutional lawyers. Arvay has been listed as one of Canada’s 25 most influential lawyers.

Consultant, Public Information Initiative of the Canadian Development Program in Cuba (Canadian International Development Agency) June 2006 / August 2006 Responsible for designing and implementing a strategy to promote and divulge the Canadian development program in Cuba, including informational brochures and elaboration of power- point presentations.

Coordinator, Researcher and Translator for the CBC Nature of Things with David Suzuki Documentary, Filmed in Cuba July 2005 / March 2006 Worked directly with David Suzuki and the CBC to produce the documentary “Cuba: The Accidental Revolution”, which focused on the advances in agricultural, social, and environmental sustainability achieved by Cuba following the collapse of the Soviet Union. My responsibilities included research, content development, logistics/coordination and Spanish-English translation for the documentary.

Coordinator for the Unidad de Monitoreo y Seguimiento, Program for Local Human Development / United Nations Development Program in Cuba. January 2005 – June 2006 Undertook a part-time consulting contract to coordinate the process of project reporting from the various provincial offices of the PDHL in Cuba. Responsibilities included managing the PDHL’s report schedule and ensuring the quality of the reports sent to foreign donors.

Coordinator and Organizer of the visit to Cuba by Dr. David Suzuki of the Suzuki Foundation January 2005 As a private, pro bono initiative, I coordinated all aspects of Dr. Suzuki’s visit, including round table discussions with selected Cuban environmentalists, nationally televised presentation in the Aula Magna of the University of Havana, and all other logistics for Dr. Suzuki and his eight member delegation.

Consultant for Ecotek – Parque Metropolitano Almendares River Project “CubEco”. January 2000 – May 2003 Consultant involved in a urban ecology project funded by the Canadian International Development Agency and the Cuban government to build a water treatment plant which utilizes biological technology, sustainable development techniques, and community participation to clean the highly polluted Almendares River.

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Consultant for Canadian Embassy in Havana - Canadian International Development Agency (ACDI-CIDA) November 2001 – February 2002 Consultant for the Canadian International Development Agency's (CIDA) Bilateral Aid Program to Cuba. Consultant for CIDA’s emergency relief efforts related to the damage caused by Hurricane Michelle.

February 1996 – August 1996 Worked as a local logistics coordinator for CIDA's sponsored project between Revenue Canada and the Cuban Ministries of Economic Planning and of Finance and Prices. This also involved close work with MINVEC (Ministry of Foreign Investment and Economic Cooperation.)

Workshop Coordination Team member, Rio Almendares Workshop (Havana) January 2001 Helped organize a workshop in Havana Cuba to design a strategy for implementation of urban ecology and alternative technologies to clean the Almendares River which runs through Havana, Cuba.

Leading actor role in the Cuban television movie “La Tierra Mas Hermosa – Romance de Angerona”, ICRT (Havana) August 1999 Played lead acting role for a movie on Cuban television, aired in August 2000 and produced by the Instituto Cubano de Radio y Television. Movie based on the life of wealthy German entrepreneur who lived in Cuba and fell in love with a Cuban woman of African descent during the times of slavery and was a protagonist of progressive social reform.

Adjunct Professor, Department of History and Philosophy / Center for Canadian Studies, University of Havana, Cuba September 1995 - June 1999 Taught courses on Canadian History and Politics, International Relations, and Globalization to Cuban undergraduate students and Cuban officials working in government ministries or state enterprises that are involved in negotiations with Canada or Canadian firms.

Conference Rapporteur for Conference on Economic Prosperity in the Greater Caribbean: Setting a Research Agenda (Havana) December 1995 Conference organized by FOCAL (Canadian Foundation for the Americas) and the University of Havana.

Center for Research on Latin America and the Caribbean / York University (Toronto) September 1994 - August 1995 Graduate Assistantship coordinating the Documentation Center and acting as the liaison between the Center and CAPA (Central America Policy Alternatives)

Common Frontiers Human Rights Project (Ottawa) May 1994 - August 1994 Coordinator for the Trinational Roundtable on Human Rights and Economic Integration. This project brought together Canadians, Mexicans, and Americans from the public, private,

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academic sectors to look at the issue of human rights and environmental rights in the context of NAFTA and broader regionalization.

Coordinator, NGO Liaison Committee “Beyond Vienna” (Ottawa) January 1994 – May 1994 Coordinator of NGO Liaison Committee "Beyond Vienna" (a global human rights NGO network established by NGOs present at the UN World Human Rights Conference in Vienna (1992). Assisted in lobbying for a United Nations High Commissioner for Human Rights and greater NGO access within the UN system. Part of the job included coordinating and attending the Liaison Committee meeting in February 1994 in Geneva, Switzerland, to coincide with the UN Human Rights Commission.

Researcher, Human Rights Internet (Ottawa) May 1993 - May 1994 Researcher on International Human Rights; Assistant Editor for the Reporter on Ethnic Conflict; Researcher for the International Refugee Board Report on "Violence Against Women in El Salvador"

EDUCATION

Law Society of British Columbia (Summer 2008). Successfully completed the PLTC and Bar Exam of the Law Society of British Columbia and was called to the Bar of British Columbia in September 2008.

University of British Columbia - Faculty of Law, Vancouver (1999-2007). Juris Doctor degree. Undertook extensive research in environmental law and international tort litigation. Graduated in the top 10th percentile of the graduating class.

Universidad de La Habana – Facultad de Derecho (Faculty of Law), Havana (2001-2002). Spent one year studying the Cuban civil law legal system.

York University – Masters Studies, Political Science, Toronto (1994-1995). Pursued Masters Studies in Political Science. Completed all coursework with ‘A+’ grade point average but did not complete thesis. Area of specialization dealt with issues of globalization and labor, environmental, and human rights in the context of international trade, with a specific focus on Latin America.

Universidad de La Habana - Facultad de Filosofia e Historia, Havana (1992 - 1993). Spent one year studying at the Department of History and Philosophy as the first student ever sent on the Carleton University's academic cooperation program with the University of Havana.

L'Université de Paris - La Sorbonne, Paris (1991). Spent one semester studying French language, literature, and philosophy.

Carleton University – Undergraduate Studies, Political Science, Ottawa (1987 - 1994). B.A. (Honors) degree in political science with high grade standing. Focus areas: NAFTA, Canadian foreign policy, and Latin American Politics and economic development.

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ACADEMIC AND PROFESSIONAL AWARDS

Cordes Fellowship (2012). Cordes Fellowships are given to exceptional social entrepreneurs and nonprofit leaders engaged in poverty alleviation and economic justice enterprises, attending the annual Opportunity Collaboration event .The purpose of the Cordes Fellowship program is to (a) open doors, minds and networks for emerging social entrepreneurs and nonprofit executives, (b) enrich the Opportunity Collaboration event with new, emerging leaders and (c) infuse the collaborative discussions with a diversity of perspectives.)

Graduate Fellowship for Academic Distinction (1994 - 1995). York University's most prestigious scholarship given to five Masters/Ph.D. students who have shown "leadership potential in international relations".

Carleton University Dept. of Political Science "D.M. MacKay" Scholarship (1990). Scholarship given for outstanding academic achievement.

Terry Fox Humanitarian Scholarship (1987 - 1992). Award given to 27 young Canadians chosen from across Canada for "outstanding achievement in humanitarian service, academic endeavors, athletic activity, and overcoming personal challenges".

Carleton University Dean's Honor Role (1987 - 1991). Grade point average in top 10th percentile of all undergraduate students.

British Columbia Government Scholarship for Academic Excellence (1987). Scholarship given to students with top academic standing in British Columbia.

MISCELANEOUS AND COMMUNITY INVOLVEMENT

Co-Coordinator, “Socially Responsible Enterprise, Local Development in Cuba” Initiative (2010 – Present).

Member of the Board of Directors, OneSky Institute for Sustainable Living (2006 - 2009).

Member of the Environmental Committee, St. Johns College / University of British Columbia (2006/07).

Hosted various Witness for Peace solidarity delegations in Havana, Cuba (2003-2006).

Volunteer worker with Latin American refugees, Ottawa Immigration Services. Involved giving literacy courses and general orientation and support to newly arrived refugees (1988).

President (1988-89) and Director of Speakers Series (1987-88) of the Carleton University Political Science Association.

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Member of the Ottawa Central America Solidarity Committee's Human Rights Fact Finding Mission to El Salvador (1992).

Organizer for the Pugwash "Conference on Greening the Canadian Constitution: The Charter and Environmental Rights", Ottawa (1992).

LANGUAGES: English (mother tongue); Spanish (completely fluent, able to do simultaneous translation); French (functional).

PERSONAL INTERESTS: Chess, Tennis, Alpine hiking.

PERSONAL REFERENCES: (contact info given on request).

Navin Chandaria, Conros Corporation, Toronto, Canada.

Matthew Levin, Former Canadian Ambassador to Cuba, Ottawa, Canada.

Roy L. Heenan, founder of Heenan Blaikie LLP, Montreal, Canada.

Karen Foss, First Political Officer, Canadian Embassy in Havana, Cuba.

Luc Allary, Canadian Commercial Corporation, Ottawa, Canada.

Matthew Pickles, Managing Partner, Ernst & Young, Cuba.

Guy Chartier, Head of international business development, 360Vox, Montreal, Canada.

Ricardo Nuñez, United Nations Development Program, Havana, Cuba.

Kathryn Dunlop, Former Representative of Canadian International Development Agency in Cuba, Ottawa, Canada.

Joseph Arvay Q.C., Arvay Finlay Barristers, Vancouver, Canada.

David Suzuki, Canadian scientist, environmental advocate, and journalist, Vancouver, Canada.

Pat Moss, Northwest Institute for Bioregional Research, Smithers, Canada.

Page 18 of 182 Rafael Hernández is the Chief Editor of Temas, Cuba’s leading magazine in the social sciences. He has been professor and researcher at the University of Havana and the Higher Institute of International Relations (ISRI); Director of U.S. studies at the Centro de Estudios sobre América (a think tank of the Cuban Communist Party Central Committee) for 18 years; and a Senior Research Fellow at the Instituto Cubano de Investigación Cultural “Juan Marinello” in Havana (1996–2008). He has taught as a visiting professor at Harvard, Columbia, the University of Texas, the University of Puerto Rico; CIDE and ITAM in Mexico, and served as visiting scholar at the Wilson Center (Washington DC) and other US and Latin American academic institutions. He has published widely on Cuban and U.S. policies, inter‐American relations, international security, migration, and Cuban culture, civil society, and politics. He has been coordinator of the Cuba Exchange Program with the Latin American Studies Association (LASA). He coedited U.S.–Cuban Relations in the 1990s (1989) and Culturas Encontradas: Cuba y los Estados Unidos (2001). He authored Looking at Cuba. Essays on Culture and Civil Society (2001) and The Other War. Studies on Strategy and International Security (2001), coauthored The History of Havana (2006), and coedited Shall We Play Ball? Debating US‐Cuban Relations (2012). He received the LASA Academic Excellency Award (2008) and the Illiteracy Campaign Medal.

Page 19 of 182 Resume ‐ Rita M. Pereira1 LLB in Legal Sciences, Faculty of Law, University of Havana, Cuba (1987)

Post‐graduate studies: - Assistant Professor (2011), Ministry of Higher Education, Cuba. - Course 2009 Woman´s Human Right Education Institute2 – Ontario Institute for Studies in Education, University of Toronto, Canada - Masters in Sexuality (2007) (CENESEX3), Faculty of Medical Sciences of Havana. - Legal Rights of Gays, Lesbians, Bisexuals, Travesties and Transsexuals (2005) Prof. Dr. R. Winmute, King´s College, University of London (CENESEX, Havana) - Diploma Women, Men and Development (1987) Institute of Development Studies (IDS), Sussex University, England. - Diploma Course in Mediation (2017), UNJC (National Association of Jurists of Cuba), Habana, Cuba

Internships – Invitations: (2017) Feminist Legal Theory Conference. Faculty of Law, Baltimore University. USA (2013)Guest Scholar.Thompson´s River University, British, Colombia, Canada. (2008) Visiting Scholar, Institute of Criminology and Sociology of Law. Faculty of Law, Oslo University, Norway. (1991)Women, Environment and Sustainable Development Program, INSTRAW (U.N. International Research & Training Institute for the Advancement of Women, Santo Domingo, Dominican Republic.

Fields of Experience: I. Professor, Faculty of Law, Havana University. - Subjects: Family Law / Criminology) (2008 ‐ 2013)4 - Professor: Optional Subject5 Gender & the Law (Since Course 2011–2012. II semester ‐ until present) - Optional Subject6 Rights of Children & Adolescents (Since Course 2014 ‐ 2015. I Semester ‐ until present). II. Filmmaking: Documentary film: What´s truly perverse.7(2007)

1 Expertise in gender, development, sexual and reproductive rights issues; whilst participation in multiple related UN Conferences & Summits, inter alias: Vienna Human Rights Conference (1993), III UN World Conferences on Women (Nairobi, 1985) & IV UN World Conferences on Women (Beijing, 1995) 1 Conferences of the presiding officers of the regional conference on the Integration of Women in the Economic and Social Development of Latin America & the Caribbean; II UN Human Rights Conference, Vienna (1993) Social Development Summit, Copenhagen 1996, Habitat II, Istanbul, World Summit for Sustainable Development, Johannesburg, 2002, IV Session Human Rights Committee (2007) Since 2003 after due training & Certification at the Higher Institute of Tourism, employed as an eventual contract worker, as a tour guide for AMISTUR travel Agency. After retirement in 2008 focused on teaching at the Faculty of Law of the University of Havana & research, writing/publishing, capacity building of professionals of the legal system and other disciplines, via pro bono work of the UNJC ( National Association of Jurists of Cuba) Lecturer on Gender, Sexual Diversity and the Law, Features of Gender Equity & Sexuality in the Cuban social Project, serving as a human resource trainer for different institutions, groups and venues throughout Cuba, and abroad. 2 Directed by Alda Facio, LLM, MCJ, “Fundación Justicia y Género” of Costa Rica. 3 National Centre for Sex Education. 4 As full professor until 2013 and as Adjunct professor in teaching Optional Subjects until present. 5 3rd year undergraduate students of the Faculty of Law of Havana University. 6 3rd year undergraduate students of the Faculty of Law of Havana University.

Page 20 of 182 III. Pro bono capacity building via the UNJC Gender & the Law UNJC Project8. “Justice on a Gender Key Note.” Equality between Women & Men Warranty”9 (2010 – until present)

IV. National and international women´s human rights ‐ gender mainstreaming work (1979‐ 2003) at the Federation of Cuban Women and as a member of its National Committee (1990 ‐ 2009)10; Exposure to worldwide multicultural and cross‐cultural settings and exchange on women´s rights issues with national and international NGOs, national machineries, research centers and women´s/gender study units; In the capacity of consultant of the Cuban Expert to the CEDAW Committee, acquired on site expertise of the monitoring work of the UN Committee of Experts to State parties to the UN Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW); FMC representative to country visits & multiple UN sponsored conferences, or NGO scenarios, inter alia11: Comprised the Cuban negotiation team of the “Beijing Platform of Action,” at the UN from its initial stage at the UN headquarters in New York to its continuation and adoption at the IV UN World Conference on Women.

V. Consultancies: - Gender and/or Sexual Rights consultant for diploma thesis of undergraduate and post graduate studies of Cuban jurists and professionals of other countries. (2010 – until present) - National Gender Consultant for Cowater International Inc12. Topic: Elements of An Approach to Integrating Gender Equality .Project Inception Mission for the C.G.R. (General Comptroller of the Republic of Cuba) June, 2013 - Gender Review Consultant of the UNICEF – Cuba Cooperation Program 2008‐2013 & it´s three programmatic components. Havana (April‐May 2013) - Member of the Gender Review Task Force summoned by the YWCA (Geneva, 1994) in preparation for World YWCA Summit Council to be held in Seoul in 1995). - Gender Expert Workshop on Women as a Factor of Development sponsored by the International Centre for Public Enterprises in Developing Countries, at the Ljubljana Institute for Research on Women. (1988) VI. Comprised working groups of Draft – Laws: . Working Group of the Family Code Reform (2007‐2011);

7Documentary film depicting research outcomes of the Master in Sexuality thesis, shown in national scientific events and for capacity building and sensitizing of human resources on homophobia as a health hazard and a sexual rights issue. 8 Of the Scientific Society of Civil and Family Law of the UNJC. 9 The post‐graduate courses for Cuban jurists are part of the actions of the Gender & the LAW project of the UNJC, supported by the Faculty of Law of the University of Havana and the Women´s Study Centre of the Federation of Cuban Women. 10 Organization acknowledged as an NGO with Consultative Status with the U. N. Economic & Social Council (ECOSOC) whilst recognized as its National Mechanism for the Advancement of Women. 11 Sessions of the UN Commission on the Status of Women & of the UN Human Rights Council in Geneva; - UN World Summit for Sustainable Development, Johannesburg (2002) - Habitat II – Human Settlements, Istanbul (2000) - UN Social Development Summit, Copenhagen (1996) - II UN World Conferences on Women (Nairobi, 1985) & IV UN World Conferences on Women (Beijing, 1995) 11 - Conferences of the presiding officers of the regional conference on the Integration of Women in the Economic and Social Development of Latin America & the Caribbean. - II UN Human Rights Conference, Vienna (1993) 12 Team work with Jane Fuller (Gender Consultant of Canada) & Fida Geagea, Project Director for Cowater International Inc.).

Page 21 of 182 . Working Group of the 1st Draft Proposal of a Gender Identity Law (2008); . Working Group of Decree‐Law, National Plan of Action in Follow‐up to the Beijing Conference.13

13 Enacted in April, 1997

Page 22 of 182 Ileana Saria

EMPLOYMENT  Notario, La Republica of Cuba  Profesor, Instituto Superior de Relaciones Internationales  Fraud Detection, U.S. Interests Section  Asesora Juridical, Universidad de Habana  Guia, HavanaTur EDUCATION

 Graduada de Facultad de Derecho Universidad de Habana 1993.  Cursos de Derecho Notarial y Registral, impartidos, Universidad de Valencia, en Universidad de Habana, 1995.  Curso de Derecho Notarial, Ministerio de la Justicia, 1996.  Curso de Derecho Mercantil, Ministerio de la Justicia, 1997.  Curso Derecho Civil y notarial, Universidad de Valencia, en Universidad de Habana, 1998.  Curso de Negociacion Internacional, Instituto Superior de Relaciones Internationales (ISRI), 2000  Curso de Protocolo y Negocuaciin Internacional, ISRI, 2001.  Curso de Metodologia de la Investigacion Social, ISRI, 2002.  Curso de derecho consular, ISRI, 2003.  Curso Derecho Internacional Publico y Privado , ISRI, 2003.  Course on U.S. Immigration Law, 2008. United States Interests Section (USINT).  Course on Consular Processing, USINT, 2009.

Page 23 of 182 Jonathan M. Shapiro Jonathan M. Shapiro joined Shapiro Law Offices as a partner in 2010. His practice concentrates on corporate transactions, employment matters, and complex commercial and general litigation, as well as in arbitrations and mediations. He represents individuals and businesses in a wide variety of matters including breach of contract actions, non-compete claims, unfair trade practice claims, trade secret misappropriation claims, commercial lease disputes, employment and insurance coverage disputes, breach of fiduciary duty claims and product liability claims. Jonathan also regularly serves as "local counsel" for non-Connecticut-based firms that are admitted to practice pro hac vice. Jonathan also counsels clients in a number of other areas including employment law, contract negotiations, commercial transactions, and business formation. Jonathan is admitted to practice in Connecticut and New York, as well as before the United States District Courts for the Southern and Eastern Districts of New York and the District of Connecticut. He was recognized as a Connecticut Super Lawyer “Rising Star” in 2010, 2011, 2012 and 2013, and was honored by the Fairfield County Business Journal at the 2011 40-Under-40 Awards Dinner. In November 2012, Jonathan was named as a “New Leader in the Law” by the Connecticut Law Tribune. In 2014, 2015 and 2016, Jonathan was recognized as a Connecticut Super Lawyer. Jonathan speaks regularly at seminars on a broad range of topics and has authored several articles, including  Moderator, The Battle Behind the Scenes: Handling Difficult Clients, Hostile Judges and Unethical Attorneys During Litigation, American Bar Association, Litigation Section Annual Conference (New Orleans 2015);  Co-Author, “Hold It! Avoiding Electronic Discovery Disasters with Effective Litigation Holds” (Elizabeth S. Fenton & Diana Rabeh,Reed Smith) and moderator on corresponding program at American Bar Association, Litigation Section Annual Conference.  Author, “Extra-Territorial Application of Unfair Trade Practice Claims,” American Bar Association business Torts Journal;  Moderator, Going Commando: Lessons from the Field on Starting Your Own Practice, Connecticut Bar Association Young Lawyers Section;  Panelist, Career Transitions, University of Connecticut School of Law Alumni Association;  Panelist, CAPABA Lunar New Year/Networking, Connecticut Asian Pacific Bar Association;  Panelist, Contract Negotiations, Meeting Planners International-Connecticut River Valley Chapter; Jonathan is active in the following organizations:  Connecticut Bar Association, President (Past Vice-President, Past Chair Membership Committee, and Past Chair Young Lawyers Section; Assistant Treasurer-Secretary 2013-2014)  March of Dimes Connecticut Chapter State Board (Volunteer Development Committee Chair; Past Chair State Board, 2013-2014)  Membership Chair, American Bar Association Business Torts Committee  Member, Middlesex County Bar Association  Corporator and Philanthropy Counsel Member, Middlesex Hospital  Vice President, Congregation Adath Israel Prior to joining the firm, Jonathan was a senior associate at Day Pitney, LLP in its Stamford, Connecticut office. He earned his B.A. in History from Boston College in 1998 and his J.D. degree from the University of Connecticut School of Law in 2001. Jonathan lives in Middletown with his wife and children. In his spare time he enjoys running, biking, reading, and spending time with his family. Page 24 of 182 Curriculum Vitae Joanna Soler Betancourt

EDUCATION

Graduate from the Faculty of Law, University of Havana

 First academic record, Gold Title  Scientific Merit Award  Award for Best Graduate in Research

Center for Public Administration Studies

 Comprehensive course on Mediation

PROFESSIONAL ‐ Current

Adjunct Professor of Law, University of Havana

Collective Law Firm of Santo Suarez, performing in civil, family and commercial matters

Legal Advisor, Gastronomic Services Cooperative: El Tropical DE 12 Y 21.

PROFESSIONAL ‐ Past

University of Havana

 Department of Legal Advice, Public International Law  Department of Counseling  Teaching experience: General Civil, State Theory and Political Culture

Award Exams: State Theory, Inheritance Law, Commercial Law I, Commercial Law II and Public International Law

Municipal Attorney's Office of El Cerro, in the Cerro Municipal Court, in the International Law Firm and in the Specialized Services Firm (BES)

Speaking Engagements:  X International Meeting on Contemporary Criminal Issues and the Fifth Ibero‐American Forum on Economic Criminal Law  VIII Inter‐American Meeting on Labor Law and Social Security and the VIII International Meeting of Labor Lawyers and the Trade Union Movement  IV National Family and Heritage Workshop in Cuba: current problems

Participating Events as a Delegate:

 Cuba‐France Seminar: "Public administration and the citizen: contemporary legal challenges"  XII International Conference on Contracts Law  V International Meeting on Society and its Challenges to Corruption

Page 25 of 182  International Seminar on the Ibero‐American Cultural Charter. Measures to strengthen its application and effectiveness  V International Conference Gender Woman and Law  International Seminar on Intellectual Property  VII International Conference on Arbitration and Mediation  Conference on the Diffusion of Principles and International Humanitarian Law  Foreign Investment Event, 2015 (delegate)

Postgraduate Studies

‐"The Commercial Law and its challenges as a result of the modification in the Cuban economic model" ‐ Workshop: "Mediation as an alternative for the solution of conflicts" ‐ "The rights of women from the perspective of human rights" ‐ Projections of the CCI arbitration in Cuba. ‐ Postgraduate course taught in the National Association of Economists and Accountants (ANEC): "Commercial negotiation techniques" ‐ Postgraduate course taught at the ANEC: "Management and management of small businesses"

Page 26 of 182

Cuba in Transition: The Rule of Law as Part of Cuban Reforms

Page 27 of 182 2/4/2017 InterAmerican Dialogue | Political Developments in Cuba: A conversation with Rafael Hernández

Political Developments in Cuba: A conversation with Rafael Hernández Nov 21 2016

  

AUTHOR(S) Tim Mahony

Page 28 of 182 http://www.thedialogue.org/resources/political-developments-in-cuba-a-conversation-with-rafael-hernandez/th 1/5 2/4/2017 InterAmerican Dialogue | Political Developments in Cuba: A conversation with Rafael Hernández On November 4th , the Dialogue co-hosted an event with the Washington Ofce on Latin America (WOLA) to discuss the latest political developments in Cuba with guest Rafael Hernández, editor of the Cuban periodical Temas. Hernández discussed a variety of economic and political developments occurring in Cuba. Hernández noted that the normalization process is not just about formulating a new bilateral strategic framework with the United States, but it is also a factor in how Cuba sees itself politically, economically, ideologically, and culturally.

Cuban society is in transition, noted Hernández, with the following new economic and political trends taking shape: a new emerging political economy, the historic leadership of the Cuban Revolution beginning to cede its role to a new generation of political leaders, the transformation of a new citizen political culture, a changing relationship between the state and Cuban civil society, a fresh regional and international alignment, normalized relations with the United States, and a redenition of the Cuban socialist system itself. Within this transition, however, Hernández warned that Cuban society is still distrustful of perceived US interference in Cuba’s internal affairs. There is suspicion in Cuba of US backed NGO’s, foundations, universities, and churches. In addition, rhetoric around “human rights,” “democracy,” and “transition,” are seen in Cuba as code words for US meddling in Cuba’s domestic affairs.

Hernández also noted that there have been changes to Cuba’s migration laws to allow more Cubans to leave the island for longer periods of time and not lose their property rights. This allows them to live abroad and earn more income to send back to family and friends in the form of remittances. It is also easier to become a dual resident, which is becoming a growing trend.

The international image of Cuba has also changed since the announcement of new diplomatic relations with the US on December 17, 2014. There has been an increased emphasis on promoting tourism as well as “people to people” exchanges. There is some trepidation about a “Tsunami Americano” invading the island and the recognition that increased US tourism and travel is putting a strain on Cuban resources.

Page 29 of 182 http://www.thedialogue.org/resources/political-developments-in-cuba-a-conversation-with-rafael-hernandez/ 2/5 2/4/2017 InterAmerican Dialogue | Political Developments in Cuba: A conversation with Rafael Hernández There was an acknowledgement of the increased use of information technology and the internet on the island, especially the Wi-Fi hotspots in outdoor public facilities. Hernández highlighted that the increased availability of the internet is expanding the ability of Cubans to gain access to outside information around the world.

Current political issues surrounding the transition were also analyzed. It was noted that poverty and inequality have increased in recent years. In addition, there are demographic changes occurring in Cuba that will impact the future of the economy. Cuba is experiencing an aging population as well as an immigration outow of its young people. The government is also experiencing challenges. There is hyper- centralization in the government sector and a large, inefcient bureaucracy, as well as an overextended state sector. This inefcient bureaucracy has caused the implementation of legislation surrounding approved political changes to be delayed. Increased corruption has also become a problem. Finally, normalization between the United States has caused a retrenchment from some senior Cuban ofcials who distrust US motives.

The Cuban government is looking at developing policies that address the following: taking advantage of the normalization and the multiple actors on both the US and Cuban sides to help alleviate some of the problems mentioned above; identifying new interlocutors inside the United States for enhanced cooperation; developing initiatives for cooperation regarding objectives on the Cuban side and not solely on the US side; and moving beyond the defensive mentality of some in the Cuban decision-making body regarding normalization to look at it from a strategic stand point.

Hernández highlighted the new policies approved at the Sixth Congress of the Communist Party of Cuba in April 2011 that sought to “update socialism” and address some of the challenges facing the Cuban government (the overextended state, government concentration and centralization, and weak rule of law). Decentralization is one of the proposed updates, which will allow regional and local level governments to evaluate problems facing their municipalities, improve their ability to implement their own solutions, and develop their own resources. Another development is the expansion of agricultural land to allow up to 85 percent of productive land to be

Page 30 of 182 http://www.thedialogue.org/resources/political-developments-in-cuba-a-conversation-with-rafael-hernandez/ 3/5 2/4/2017 InterAmerican Dialogue | Political Developments in Cuba: A conversation with Rafael Hernández leased to co-ops. It was noted that due to changes in laws regarding labor, the percentage of private labor is now at 27 percent in 2016, up from just ve percent in 1993.

Hernández discussed the proposed reforms of the government approved at the Sixth Party Congress. One such reform is to shrink the size of the state. Another is to separate the division of government into the following areas: state administration, state economy, and overall government representation. A nal goal is to limit the micromanagement of the government to allow more effective implementation of the modernization initiatives. Hernández also noted ways in which the government has undertaken several initiatives to strengthen the rule of law. One is to improve decision- making by the National Assembly and give them an increased role in the legislative process. Another is to continue to attract younger Cubans to be part of the National Assembly and inject fresh new blood into the Cuban political system. A third initiative is to increase the co-op model into the non-agricultural sector. A fourth initiative is the development of more private small, medium, and micro-enterprises through the new private sector law. A nal initiative is a constitutional reform that restricts top state and party positions to two ve year terms.

Cuba is experiencing profound changes both economically and politically. These changes represent both opportunities and challenges, especially with regard to the normalization of relations with the United States. Only time will tell regarding the full effects of this rapid change in Cuba and the end result that normalization will have on the island.

Page 31 of 182 http://www.thedialogue.org/resources/political-developments-in-cuba-a-conversation-with-rafael-hernandez/ 4/5 2/4/2017 InterAmerican Dialogue | Political Developments in Cuba: A conversation with Rafael Hernández

The Inter-American Dialogue engages our network of global leaders to foster democratic governance, prosperity, and social equity in Latin America and the Caribbean. Together, we work to shape policy debate, devise solutions, and enhance cooperation within the Western Hemisphere.

Inter-American Dialogue 1155 15th Street NW Suite 800 Washington, DC 20005 P: +1-202-822-9002 F: +1-202-822-9553

Page 32 of 182 http://www.thedialogue.org/resources/political-developments-in-cuba-a-conversation-with-rafael-hernandez/ 5/5 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post A History of the Future? Obama’s Lessons to Cuban Civil Society 04/08/2016 01:58 pm ET

Rafael Hernandez Political analyst, professor, researcher and editor of Temas, a Havana based quarterly in the field of social sciences and the humanities.

President Obama’s address to a group of specially selected and invited representatives of Cuban civil society, which we saw on television, is a gem of political craftsmanship which ought to be studied in our university communication courses and Communist Party political schools. His sentences appear not to have been woven by experts and skillfully read from a teleprompter, but seeming instead to be coming from his heart. This piece of oratory, with its stagemanagement and its perfect delivery make it seem like a real conversation, not a thesisladen document from start to finish.

In these comments, I outline some of those theses and the brilliant way in which the discourse was managed, in line with the logic with which the President has built the vision of our reality and that of the United States, as well as its directness. My modest comments are not intended to be the mirror of Cuban civil society but a scant critical reflection on common sense, both of Obama and of Cuban society, acknowledging its vibrant and politicized heterogeneity, not satisfied with monologues, however well argued and charismatic they may be, but wanting real dialogue among a diverse range of citizens, as there are many more than two. I do so in a spirit of discussion, not only at the invitation of President Obama to a debate that is “good” and “healthy,” but because this debate has been practiced amongst ourselves for some time, as part of a freedom of expression that civil society has earned itself away from the fanfare, and without waiting for talents from on high or powerful benefactors from outside.

1. We must “leave the past behind”.

Since his first speech at the 2009 Summit of the Americas in Port of Spain, President Obama has insisted he is not responsible for the war that the United States has waged against Cuba, because everything started when he was “three months old”. By applying this personal detail, he has managed to sidestep having to deal with the legacy of the use of force from the United States towards Cuba in the last 150 years. Today he tells us that his message is “an offering of peace” and that it is better to put a close to that past. He urges us to look to the future. However, he immediately follows up this white rose leadin by passing the cost for the pain and suffering of the Cuban people

Page 33 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 1/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post to the revolution, writing off this period as “an aberration” in the history of bilateral relations.

If, instead of leaving the past behind, we wish to reexamine it in an even handed way, and see it in all its complexity, without ideological filters or diplomatic rhetoric, it does not help to discuss it as if it were The Perez Family, that movie starring Alfred Molina and Marisa Tomei. Normalization begins on the side of the United States, not on account of their limitless benevolence, but because the power of decision to change things has been in their hands. On closer examination, Obama’s new approach and his disagreement with US policy throughout this same “aberrant” period is based on the view that it “was not working” because it did not achieve its goal: to overthrow Cuban socialism by force and through isolation. His merit is in having stated this in Port of Spain and now proclaiming “the courage to recognize it,” even if it is a view that the world has shared for more than twenty years.

In his speech characterized by openness, however, he does not once say that besides being mistaken, the policy was counterproductive, not only because it crushed the welfare of the Cuban people and Cuban sovereignty, but it also imposed the need for them to arm themselves to the hilt, and it led to the damned condition of a fortress under siege, and to a national security situation, the economic and political consequences of which we are still paying. You cannot ignore that that eloquent US citizen who claims to tell us frankly and without mincing his words, what he thinks, is also the President of the United States. With the same frankness, he could have rolled up his sleeves and really gone for it, acknowledging the role of North America not only in the cost to the people, but also in our current problems, and by giving us an example of goodwill to say everything, without restrictions, if we really want to get to the bottom of things, now and in the future.

2. “Thanks to the virtues of a democratic system and respect for the freedom of individuals, the USA is the land of opportunity, where the son of an African immigrant and a single white mother could become president.”

This notable discourse often leads us along classical paths such as the American dream, with the narrative mastery of Steven Spielberg, or that of the most celebrated author of our radio days, Felix B. Caignet. Although he refuses, rightly, to be trapped by history, Obama ends up giving his own account of the things that have happened, not only here, but over there. In one of his central themes he states that the social justice they achieved is precisely due to the democratic system adopted by the founding fathers.

Last year marked 150 years since the end of the Civil War, which divided the North and South of that great nation, in the most terrible conflict ever suffered by the United States in human and material terms, including all the wars in which they have ever participated. If democracy had been enough to solve the problem of slavery, that atrocious war —provoked by the uprising of a third of Page 34 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 2/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post the country against the democratically elected legitimate power, with a human cost of 750,000 lives; half a million maimed; 40% of the South destroyed; property lost forever by many defeated Southerners; a president, Lincoln, vilified and eventually assassinated— would not have been necessary in order to abolish it.

A century after that terrible Civil War, a devastation that makes our revolution look like just a breeze, despite all its human and family cost, yet Mama Obama had to go with her family as far away as Hawaii, where her mixedrace son could grow up without the rampant discrimination of the continental United States, as he himself reminds us in his speech. Even today, as proven by North American historians and sociologists, the wounds of that conflagration have not completely healed, and they have not managed to leave behind the structural causes of racial inequality and the associated violence. Even though Martin Luther King Jr. and many Americans of all colors, like us in Cuba, celebrated the success of a black candidate in the 2008 elections, we know that that is not enough to make a political system more democratic. Not there. Nor anywhere.

In terms of the pluralistic nature of the system, it sounds like wishful thinking that a social democratic candidate should campaign and reach the end of the campaign with some visibility, like a third way under the rigid framework of US biparty politics, rather than being forced into a Democratic Party that he dislikes, in order to have any chance of participating in the 200year old American political system, to which José Martí dedicated hundreds of pages, which we read little and know less about than we should.

3. “Socialism has its good things, such as health and education (although it lacks citizens’ rights and the freedoms enjoyed in the US)”.

Thank you. But everyone says that about our health and education. Strictly speaking, the question of comparing the attributes of our two systems requires placing them in a larger context. Before comparing it to Cuba, we should put the American system alongside other market economies and liberal democracies in the world. Does anyone else have one like it? What needs to be explained is why that democracy based on universal values, where everything is achieved, has not been able to provide a national health system, even one as incomplete as the original Obamacare project. How is it that public education, which is not a communist invention, has worked in many European countries, while the United States has such poor ratings?

As for measuring Cuban socialism, I wonder if this is contained in two free public services such as health and education, which Canadians and Finns also have. I know that many Cubans think so. From my point of view, however, the greatest achievement of Cuban socialism (including not only the government but all Cubans who make it possible) has been to claim their sense of human dignity and the practice of social justice, regardless of their class origin, color or gender. That explains, incidentally, why we Cubans today Page 35 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 3/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post are alarmed at the growth of inequality and poverty, and we do not accept it as a natural fact, but as a fundamental erosion of citizenship status. Or it is that the cost to the losers is balanced out by the prosperity of the winners, and increased social polarization is the fixed cost of greater freedom? Is it solved with taxes and an alleged trickledown effect? Where in the world does that happen? When I say equality not uniformity or egalitarianism I am referring to the actual law in practice, not simply the words written in a constitution.

We Cubans need to remember that our guest, Dr. Barack Obama, is a graduate of the Harvard Law School, and taught Law, constitutional law, at the University of Chicago, before becoming a community organizer in that city, and then a local politician, so he is fully aware of what we’re talking about. One thing is the law and the institutions of the system, and another is social justice. To say that the practice of justice in Cuba is in “the role and rights of the State”, as opposed to the individual, reveals, at best, ignorance, and at worst, bad faith. In his case, it must surely be the former.

Of course, on the road to full citizens democracy, we have a long way to go in terms of effective civil rights, law enforcement, empowerment and representation of all social groups, and not only for our private entrepreneurs. Undertaking this, grounded in our own political culture, and taking into account experiences of decentralization and local participation in Latin America, rather than those of our Asian friends, is a task that should not be put off till later. With sincere admiration for civil rights fighters in the United States, dozens of whom have been killed by the extreme right and harassed by the FBI, our horizon of citizen’s rights is far beyond that.

4. “Change in Cuba is a matter for Cubans”.

Naturally, we all applauded. But in the same sentence, the President takes a stand on the matter, defending the rights of “his Cubans”, i.e. Miami exiles and dissidents in Cuba, who are precisely the ones recognized as allies of the United States. That said, we know that most of the emigrants of the 80s, 90s and today have not gone for the same political reasons that migrants in the 60s and 70s did, but rather for economic and family motivations. We also know that those who have left since 19941995 are not considered by US law as political refugees, but simply immigrants; that 300,000 of them visit Cuba each year peacefully; that these more recent immigrants account for half of all Cubans living in the US, and are the ones who send $1.7 billion to relatives on the island, with whom they maintain close ties because they did not leave in conflict. Furthermore, we know that half of the rest were born in the US, and therefore are not political refugees, and even visit the island with an American passport. As President Obama speaks of two million Cuban “exiles”, with whom he promotes something called “reconciliation”, is it possible that he does not know of the increasing number of returnees since the introduction of Cuba’s new immigration law in January 2013? Or why Cuban Americans do Page 36 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 4/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post not do business with Cuba because the embargo law prevents them? And if he doesn’t know, then for whom is he advocating this “reconciliation”? Is it for the politicians of the archly Conservative CubanAmerican lobby, which is opposed to normalization? Their allies in Cuba? The survivors from the Batista government?

Indeed, when he speaks of our relationship, that of all Cubans in Cuba with North Americans, he says that we are “two brothers... who share the same blood”, that we have been “estranged for many years” as an inevitable consequence of this “aberration” we have here. Let it be said in all honesty, that for more than a century, Cubans have been seen (and for many we still are seen) as an inferior race, because we are people of color, nothing of shared blood. As for our genetic code shared with African Americans and Latinos, his advisers would do well to tell the President that those Cuban exiles in Miami, where there are very few blacks, and where there is rampant racism from the Cuban upper class, do not like to be called Latinos because they feel superior, as other Latinos and African Americans well know. Those “pedigree” exiles even rejected Nelson Mandela himself when he visited the United States and wanted to go to Miami. What’s more, since his election, they have often referred to President Obama as “el negrito de la Caridad” (“the darkie of Charity”, a nickname which is hardly a term of endearment). Now that he has done all this with Cuba, they just call him “the traitor”. He must surely understand why it is not easy for us to reconcile with them.

5. “The normalization with the US is opening the doors to changes in Cuba”.

According to this diagnosis, nothing has been happening here in recent years. In other words, thanks to 17 December 2014, the Cuban government “has begun to open up to the world” and has yet to discover that the greatest wealth of this country is its human capital. With all due respect to the private sector that we have, to imagine that our development potential and inventiveness can be measured in terms of renting rooms, opening up restaurants, and keeping the old American cars on the road, ignores our greatest asset, our human capital: doctors, university professors, artists, farmers, scientists, and other professionals. It forgets that journalists, officers of the armed forces, diplomats, primary and secondary teachers, company directors, many of them young and well prepared, are a key part of the wealth of the nation, although they are never going to become a “private sector”. We must not confuse civil society with business. Or does someone think that these barbers and small business owners, so rightly celebrated these days, have sprouted up on the streets spontaneously instead of being created by Cuban law, and being linked to local institutions with which they collaborate?

This mutually exclusive view of private and public sectors seems to accompany the image of a country that is presented as paralyzed, where nothing changes, and will not change until the Cubans become familiar with Page 37 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 5/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post alternatives to the prevailing viewpoints, thanks to communication with the outside world, which they currently lack. When they have an ADSL connection at home, and discover the internet, they will awaken, just like when the sleeping beauty was kissed by the prince. Meanwhile, they will remain in another world, without any form of internet access, or email or cellphones. It is not even the halfempty glass, but the idea that there is no glass at all.

Finally, in the mirror of the President’s speech, nothing like an ongoing reform program was reflected, nor a Cuban society able to discuss their problems publicly. Clearly, normalization may be positive for this change; but it may be also negative. From their side, it depends on the ability of US policy to treat Cuba as they do other countries with which they cooperate, despite internal differences and problems. The examples of China and Vietnam, evoked in the President’s discourse on the day of Saint Lazarus, could be a constructive model to follow. From the Cuban side, it depends on the ability of our policy to avoid ideological attachments, such as those that occur whenever the US decides to favor a sector, whether Internet, nonstate sector workers or young people. As our famous chef Nitza Villapol put it, now that US policy is the task of many, we will have to learn to cook it up in a nonstick pot where things do not get stuck, or needlessly spoiled.

The careful stage management of Obama’s whole visit, whose climax in theatrical terms was the address to civil society on March 22, was outlined in the State Department blog post entitled “Engaging the Cuban People”, published four days before, and written by Ben Rhodes, the Assistant to the President and Deputy National Security Advisor for Strategic Communications and Speechwriting.

In his address, President Obama acknowledged Cuban cultural affinities with the United States in baseball, the chachacha, and “family values”. He also drew attention to the abilities of Cubans, especially young people, to work in the context of the US market culture. Throughout his speech, he demonstrated familiarity with things Cuban, and with popular culture.

I’m not sure Obama’s advisers understand that the Cuban familiarity with things North American is not only a reason to appreciate their products and showmanship, but also an ability to understand their uses and wranglings. Indeed, without previously ever having set foot on the island nor having grown up surrounded by Cubans, in his speech on the feast of Saint Lazarus in 2014, he said in Spanish “No es facil“ (It is not easy), which is a very Cuban saying. In his telephone conversation with Cuban comic Pánfilo, he said: “Qué bolá“, a colloquial Cuban greeting, which did not fit in the context in which he used it. Nor did it when he said it as Air Force One touched down on Cuban soil. He was able to quote José Martí time and again (omitting any quotes about the US). The cultural packaging of the message didn’t miss a trick, even including reference to the Shrine of Our Lady of Charity in Miami.

Page 38 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 6/7 2/4/2017 A History of the Future? Obama's Lessons to Cuban Civil Society | The Huffington Post According to the script, the meeting sought to show support for “universal values and human rights, including respect for the right to freedom of expression and assembly.” It anticipated the US President profound differences with the Cuban government on these issues, and his belief that the meeting puts the United States in a better position to raise these differences directly with the Cuban government, and continue listening to civil society. Finally, the speech briefing made it clear that his approach would emphasize “the continued spirit of friendship, and project his vision of the future relationship between the two countries.” In short, the speech plan was aimed to blowing hot and cold at the same time.

I liked seeing Raul, from his balcony, smiling after hearing Obama’s tirade, waving and gesturing at the audience, rather than assuming a dour expression or being upset. A few hours later, dressed in an elegant blue sports jacket, he accompanied a President Obama in his shirtsleeves, for the first innings of a baseball game, which we lost hopelessly. Sportsmanship is an old word, which may sum up very simply the new style of political relations required between Cuba and the United States.

In my view, we Cubans have a long road ahead in strengthening our practices of citizen participation and democracy, not merely multiparty politics. And it’s best we take the bull by the horns instead of reciting that the only thing our socialism is missing is economic efficiency and the recovery of social wellbeing we had in the 80s, so as not to touch the workings of the political system, the media, the role of trade unions and social organizations, the Communist Party itself and the absolute power of the bureaucracy what Raúl calls “the old mentality”. It is not enough to quote him. We need to follow that script, which is not about theater, but a new stage set which is appropriate for the time and the people.

As for the significance of the visit for Cubans, it served its purpose, beyond the dramatics, as it allowed both presidents to converse directly about our common interests over the next ten months, the decisive stage in building this bridge so that the next administration finds its construction so advanced that it would be too costly destroy it.

Ironically, when Barack Hussein Obama vacates his office as 44th President of the United States, where he arrived eight years previously wrapped in the greatest hopes of recent decades, normalization with Cuba will be among his handful of achievements. Maybe in a few years the words crafted by his talented team of communications specialists, and what they say about us and them, will be forgotten. But many Cubans and Americans will not forget his message of peace, and especially, his determination as the first president, after so many years of war, to walk this path, so near and yet so far, and make a visit to us in Havana.

Translation by Jackie Cannon

Page 39 of 182 http://www.huffingtonpost.com/rafael-hernandez/a-history-of-the-future-obama_b_9621544.html 7/7 Cuba, Updating the Model Balance and Perspectives of Socialist Transitions

Coordinators Rafael Hernández and Jorge I. Domínguez

Rapporteur Rainer Schultz

Page 40 of 182 I.The Political Dynamics of the «Updating»

The nature of the changes

Interpretations of the “update” ought not to be limited purely to the economic sphere. “Updating” is a process meant to trans- form the model of political and social organization initiated in the 1960s, which took on an institutional character in 1976. This process of change includes a number of fundamental axes. The first is decentralized economic decision-making, which affects the management of production and services, distribution and the market, especially through an attempt to grant greater autonomy to state enterprises. This policy seeks to redistribute power from central economic authorities to local and regional management and to increase municipal autonomy. The second axis expands the non-state sector, creating thereby new social groups with new powers calibrated to their economic capacity and greater social and managerial autonomy. The third axis seeks to reduce red tape and the overwhelming power of bureaucracy. This bureaucracy has consistently resisted change, resulting in the slower-than-planned pace of implementation of such measures, a concern that President Raúl Castro has expressed publicly. The last axis focuses on the place and weight of the law on policies directed at making the reforms permanent. New legislation would create a delimited framework for discretionary powers within the bureaucracy and seek to empower citizens in their dealings with the structures of the central administrative

8 Page 41 of 182 Cuba, Updating the Model organs (OACE, after its Spanish acronym). The law seeks to strengthen the rights of citizens and provides a legal framework for the economic changes, including constitutional reform. The changes also affect the composition and articulation of the leadership of the OACE and the Cuban Communist Par- ty (CCP) regarding gender, generations and professions. While the median age in the Politburo is rather high (66, with only four members under the age of 55), at the Council of Ministers, it is 58. Although a high proportion of the members belong to the military, the dominant profession is that of engineering. The median age for CCP provincial leaders is 47 – a level of governance where teachers and economists predominate, more than a third of the members are women and there are no military.

The Political Process

The political process of updating has registered several trends. Updating seeks to do away with illegal activities as an extensive practice through policies aimed at eliminating excessive regulations and unjustified prohibitions. In this context, two measures stand out: the increase in self-employment opportunities, beginning in 2008; and the delivery of idle land for long-term use by agricultural workers. The land legislation sought to place into production the more than 2.5 million hectares of land that had become fallow, largely because of a shrinking sugar industry—an exorbitant figure for a country that imports much of its food. However, over three years later, at the end of 2011, more than 1.25 million hectares still remained idle. One hypothesis to explain such a shortcoming in implementing such a vital policy is that the middle levels of the

9 Page 42 of 182 Cuba, Updating the Model bureaucracy resist the law’s implementation and therefore delay its systematic application. In addition to such possible resistance, other factors may have intervened. The newly updated policies undergo a process of discussion, design and execution, whereby they are modified. One example is the announced dismissal of 500,000 state workers at the end of 2010, with the intention that they would fill new jobs in the new non-state sector, which is the Cuban government’s name for the private sector. Over the next half year, only 130,000 were laid off, and then the initial lay-off decision was publicly cancelled. This winding-road approach to policy has been apparent since the discussion surrounding the draft guidelines for the new economic policies, which the CCP Congress itself modified in April 2011. For example, in all of the following instances the CCP Congress changed the draft guidelines to make the market opening or the creation of new decision-making autonomy more constrained in the final version of the guidelines: Guideline 23 regarding price-setting by businesses, Guideline 27 regarding direct sales to the population, and Guideline 66 regarding greater autonomy and decentralization for exports. Practical political dimensions mattered: How much weight should be given to the simple difficulty of learning to do things in differently? How much is explained as a function of resistance to change? To what extent can and should a policy be revised while the change is underway?

The Debate: context, signs, pace, resistance, consensus, information, contradictions

10 Page 43 of 182 Cuba, Updating the Model

In terms of the speed and internal resistance to implementation, various conclusions can be drawn.

•• With regard to the social and political context of the changes, a change has been underway for more than 20 years. This situation resembles that in the United States when consensus began to break down regarding the state/economy model, which had lasted from the 1940s until the oil crisis of the 1970s. Both cases show how the functioning of a government can be impeded for political reasons, provoking the search for a reformulation of the model. •• With respect to the interpretation regarding resistance to change, can this be attributed to ideological resistance? Alternatively, is it common to bureaucratic groups who see their interests affected and do not wish to share access or control over resources? Or is it an expression of a conflict between emerging social groups and established ones? •• In the international context, when the changes in Cuba began at the outset of the 1990s, the Washington consensus was in vogue, advocating a reduced role for the state. Conversely, today in Latin America the role of the state to regulate banks, foreign investment and natural resources has been strengthened. In Cuba, in contrast, the agenda for updating seeks to reduce the economic role of the state in both quantity and quality: as changes are made in the role of the state, vertical integration is replaced, power is transferred and, above all, new actors and rules are recognized. In Cuba, until the ‘90s only state and foreign investment firms existed alongside a

11 Page 44 of 182 Cuba, Updating the Model

small private sector. This non-state sector has now been broadened and diversified and it has been accorded legi- timacy under a framework of new values that acknowle- dges its importance and grants it an active role. •• The limits of the permissible have been modified. The government advances in policy formation but its capacity for implementation is limited both because of insufficient change in the mentality of state workers and the lack of a legal system and new norms. Prohibitions are lifted but an inherited overregulated space impedes the development of new policies. •• A transition is in progress, away from charismatic leadership and toward collective management. Several factors still stand in the way of implementing new policies; these are not simply attributable to bureaucratic resistance. For example, employees in several state enterprises wait for signs from above before taking action. The lack of a rural population in certain areas, due to emigration to the ci- ties, affects the delivery of land to productive users. The proposed massive layoff of half a million workers was im- practical in the short term, given the policies of job protection, the weak economy and the small absorption capacity of the self-employment sector. •• If updating policies were generally well directed in their objectives, to what degree are the delays due to technical problems or to deficiencies in their formulation? •• The pace of the updating is affected by other political factors. Although most claim to be in favor of more rapid change, the government and the CCP seek to preserve internal consensus. Change is a process of trial and error.

12 Page 45 of 182 Cuba, Updating the Model

It is not just economic, political and social, with a different vision of governance. Toward this end, popular approval is not enough; participation is essential. The shift from a broad state-centered economy to a socialized economy brings about a cultural change. •• Some deficiencies in the existing model include the discretionary decision-making of managers, the primacy of ideology over the economy, and the imposition of will over reason. These elements inhibit mobility at the lower and intermediate administrative levels. •• Delayed change is not necessarily a deficiency. Regarding the disasters in Eastern Europe, the Nobel prize-winning economist Joseph Stiglitz has pointed to the importance of experimentation and the learning process. Liberaliza- tion is a very complex process that cannot be simply reduced to a formula of blanket privatization. Nevertheless, a process of changing mentality is underway. Yet until there are prices and currencies that reflect the relative scarcity of resources and the true costs of production, efficient markets cannot exist. •• It is not surprising in Cuba or the United States that a particular measure announced by a government takes longer than expected. A current example is the call by Pre- sident Barack Obama to reduce government debt, which until now has not produced much in the way of results. The changes imply ideological differences relating to the role of the state and the private sector. Implementing guidelines is not the same as governing. Measurements and evaluations are needed along the way to avoid diver- sions or backtracking.

13 Page 46 of 182 Cuba, Updating the Model

•• Cultural change may lead to a different political culture. One of the problems identified so far is that cadres and politicians remain shielded from public scrutiny. Transpa- rency regarding differing viewpoints, along with dialogue, would allow for a new political dynamic that would combine economic reform with public input. •• The guidelines seek to respond to current problems and represent a platform reached by CCP consensus. But many identify the whats, without defining the hows, or the whens. •• One new element in the formation of new policies is the role of certain academic groups, now connected in various ways with decision makers. Previously fragmented and with little interconnection, these academics now take advantage of the institutional opportunities foste- red by the government and work with the committees responsible for implementation and evaluation. •• Implementation of a new legislative framework that would affect 180 already- existing laws, as well as changes in governmental-societal practices, needs to consider societal impact as well as economic indicators. Despite the move toward more pragmatic and flexible policies, shortcomings remain that affect their implementation. •• The initial version of the guidelines lacked an integrated vision. Contributions from economists and legal experts enriched that initial version and allowed for its correction, while also influencing the pace and priority of decisions. •• The political changes reflect a new way of incorporating available information. One example is the increased retirement age. Although statistics and excellent demographic

14 Page 47 of 182 Cuba, Updating the Model

analysis over many years show that the aging of the Cu- ban population is not a new development, the political response to the question of retirement is something new. •• A key historical experiment in making changes took place in Matanzas in the 1970s, the precursor to what would later become the Poder Popular (People’s Power). Two new provinces (Mayabeque and Artemisa) are currently testing new forms of government and management. •• For more than two decades, Cuba’s leadership has issued different signals. Cuba opened up to foreign investment and self-employment at the beginning of the ‘90s but the move was portrayed as a necessary evil, brought about by dire economic circumstances. In the second half of the 2000-2010 decade, the leadership spoke positively of foreign investment and self-employment, reaffirming these concepts as part of the new model. In the past, state employees in charge of implementing the changes received confusing indications. Today, the national leadership su- pports the concepts of foreign investment and self-employment. •• Public comments on such problems (e.g. the letters to the editor published in Granma) indicate the situation is in transition but also reveals the challenge involved in offering effective policy responses.

15 Page 48 of 182

Introduction to Cuban Legal Systems and Principles

Page 49 of 182 Print Subscribe Share/Save FALQs: Cuban Legal System January 27, 2015 by Kelly Buchanan

The following is a guest post by Gustavo Guerra (//blogs.loc.gov/law/2014/04/legislation-on-use-of-water-in-agriculture/? loclr=bloglaw) , a foreign law specialist covering a number of Spanish-speaking jurisdictions at the Law Library of Congress. It is the second post in our “Frequently Asked Legal Questions” series, following on from our post yesterday on French terrorism laws (//blogs.loc.gov/law/2015/01/falqs-terrorism-in-france/?loclr=bloglaw) . As always, we welcome your feedback and suggestions for this series!

In light of initiatives to improve relations between the United States and Cuba, and the recent visit of a U.S. government delegation to Havana, I decided to provide answers to a few questions about the Cuban legal system and where one could locate Cuban laws and information about them. Most of the links used in this post lead to websites maintained by the Cuban government, and we cannot be sure that all information is recent or up to date. Please use this post for information purposes only.

1. What are some of the major principles of the Cuban legal system?

Cuba is governed by a legal system based on principles derived from European Continental law, also known as civil law (https://www.flickr.com/photos/swryv/3887380691/in/photolist- (http://www1.law.lsu.edu/clo/civil-law-online/what-is- 6VvQR2-7g9pVd-7g5pBV-7cKS34-9bjAU1-xDAyk-9mhNz9-pYkVnx- the-civil-law/) , which has been adapted to the 5ULrWu-4cp2MR-9WRaHV-64d3q7-649x9g-64dMWY-64dFbA- socialist system. According to the Cuban 64dLRS-a1SEtn-649xmT-64dByd-64dBZU-64dNjS-7mif1Q- Constitution 3K8qPR-dNNpgS-49meK7-z3FrK-hsbwgT-eeQjry-pC2FTD-qiSsvG- (http://www.cuba.cu/gobierno/cuba.htm) , major pDn3QW-qBTWY3-c2JHDy-HgNwX-qADd47-qArHLV-dZ2sWv- principles include strict regulation of personal 4icbFj-79fAEE-8m5YpD-fP9C4G-a9bupQ-dNAT5n-dXSpTr-rbtbr- property, an economic system based on the 61V4KV-d6pZus-sEPEe-5HsFJ-qAc5Rg) Photo by Flickr user Stewart Cutler, Sept. 1, 2009. Used under “socialist property of the people over the Creative Commons License, fundamental means of production” (arts. 14, 21), https://creativecommons.org/licenses/by-nc-sa/2.0/. government control of the economy (art. 16), and certain rights for citizens, including the right to education and health (Chapter VII, arts. 50, 51). The Constitution states that the Communist party is the leading and guiding force in the Cuban society (art. 5). The Constitution of Cuba was passed in 1976, and then substantially amended in 1992 and 2002. Among other major principles, the Cuban government states that (http://www.cubagob.cu/des_soc/derecho.htm) the legal system includes:

Independence of judges; Administration of justice by professional judges with support from citizens; and Page 50 of 182 Availability of an appeal process for all disputed judicial decisions.

2. How are legal disputes resolved in Cuba?

Disputes are adjudicated by Cuba’s judiciary, which is comprised of courts at the municipal and regional levels with authority to hear cases on criminal and civil matters, and by the Supreme Court, the highest judicial body in the country. The Supreme Court has the authority to hear appeals derived from cases originated in the lower courts as well as having original jurisdiction for certain cases that fall under its authority. Information on the Cuban judicial system is available on EcuRed (http://www.ecured.cu/index.php/Sistema_Judicial_en_Cuba) , a website maintained by the Cuban government.

We are often asked for help locating information on cases adjudicated by the Cuban Supreme Court. The Supreme Court publishes select recent decisions (http://www.tsp.cu/todas_las_sentencias_indices_global) on its website. Additionally, the Court publishes a biannual review of its rulings (http://www.tsp.cu/revista-justicia-derecho) and practices in applying and interpreting the law. It is mandatory for all lower courts to follow guidance issued by the Supreme Court.

3. How are Cuban laws codified?

Cuba has enacted a number of codes that compile rules on specific topics and serve as major legal acts regulating a particular area of law. For example, personal and real property, intestate successions, wills, and contracts are governed by the Civil Code (http://www.tsp.cu/sites/default/files/Codigo_Civil_Cubano.pdf) .

The Family Code (http://www.tsp.cu/codigo_de_familia) regulates domestic relations, including marriage and parentage, and is available in Spanish on the website of Cuba’s Supreme Court.

The Criminal Code (http://www.tsp.cu/ley_62_codigo_penal_cuba) defines acts that constitute criminal offenses and provides for applicable penalties.

Cuba’s Labor Code (http://www.cubadebate.cu/wp-content/uploads/2014/06/codigo-del-trabajo-de-la-republica-de- cuba.pdf) is the main body of law on labor matters in Cuba. It regulates unions, labor contracts, salaries, overtime pay, workers’ compensation, dispute resolution procedures, master labor agreements. This code is available on Cubadebate (http://www.cubadebate.cu/) , an online news service maintained by Cuban journalists.

In addition to codes, the body of Cuban legislation consists of laws passed by the National Assembly of the People’s Power (http://www.ipu.org/parline-e/reports/2079_B.htm) (legislature), regulations, executive resolutions, and circulars issued by the government.

4. What laws are relevant to doing business in Cuba?

Those who are interested in doing business in Cuba have to comply with a number of statutes, including Law No. 118 on Foreign Investments (http://www.cepec.cu/sites/default/files/Ley%20No%20118%20de%20la%20Inversion%20Extranjera.pdf) , which includes guarantees for investors, a special tax regime applicable to foreign investments, and dispute resolution procedures. Additional information can be found on the website of the Cuban Center for Promoting Foreign Investment (http://www.cepec.cu/) .

Technical requirements applicable to food products, agricultural machinery, environmental protection, etc., are included in a catalog of Cuban technical standards (http://www.nconline.cubaindustria.cu/) .

Authority over intellectual property issues is exercised by the Cuban Office on Industrial Property (http://www.ocpi.cu/) (OCPI). A comprehensive list of statutes and regulations on industrial property, including patents, trademarks and relevant treaties, is available on OCPI’s website (click on “Legislación”).

The Cuban Customs authority has published a list of customs regulations (http://www.aduana.co.cu/index.php? option=com_content&view=article&id=201&Itemid=33&lang=es) in force. Page 51 of 182 5. Can Cubans receive money transfers from abroad?

Cuba’s financial rules can be found in the Banking Regulation Manual (http://www.bc.gob.cu/Espanol/manual_regulaciones.asp) , which is a comprehensive compilation of financial regulations issued by Cuba’s Central Bank. The Manual governs several aspects of Cuba’s financial system, including monetary policy, banking oversight, and bank accounts.

The website of Cuba’s Savings Bank (Banco Popular de Ahorro, a Cuban commercial bank) provides information (http://www.bpa.cu/modulos/promocionales/transferencias.pdf) on the steps that must be followed by Cuban nationals in order to receive monetary transfers from abroad.

Money transfers sent to Cuba from the United States or from individuals subject to U.S. jurisdiction are governed by applicable U.S. regulations. More information on this topic is available on the website of the U.S. Department of the Treasury (http://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_faqs_new.pdf) (Frequently Asked Questions Related to Cuba, January 15, 2015. IV. Remittances, page 8) and on the website of the U.S. Department of Commerce (http://www.commerce.gov/news/fact-sheets/2015/01/15/fact-sheet-us-department-commerce-and-us- department-treasury-announcemen) .

6. Are statistics on Cuba available online?

Yes. Cuba’s National Office on Statistics (http://www.one.cu/) publishes statistical information on a wide variety of topics, such as population, jobs and salaries, education, etc., on its website. This includes information related to the 2012 Census of Population and Housing (http://www.one.cu/censo2012.htm) .

7. Where can I find more information on Cuban law?

A good starting point for a research on Cuban laws is the Law Library of Congress’s Guide to Law Online (//www.loc.gov/law/help/guide/nations/cuba.php?loclr=bloglaw) , an annotated collection of government and legal sources of information. A collection of short articles on legal developments in Cuba can be found in the Law Library’s Global Legal Monitor (//www.loc.gov/lawweb/servlet/lloc_news?browse_country_Cuba) . Another blog post that will highlight the Law Library’s collection of Cuban legal materials will be published soon. Also, our readers can always submit reference requests through our Ask A Librarian Service (//www.loc.gov/rr/askalib/ask-law.html?loclr=bloglaw) , and we will respond.

Posted in: Global Law, In the News, Guest Post 3 Comments | Add a Comment »

3 Comments 1. Jason Poblete May 26, 2015 at 7:55 am It is worth noting to your readers that in Cuba lawyers are organized in collectives, they cannot practice, as we do in the United States, as independent lawyers.

2. Jack January 17, 2017 at 7:42 pm How does Cuba pass a law?

3. Keaton December 10, 2017 at 9:50 pm when was this updated last

Page 52 of 182 Disclaimer WORLD NEWS FEBRUARY 21, 2019 / 10:12 AM / 20 DAYS AGO

Explainer: What is old and new in Cuba's proposed constitution

Marc Frank

HAVANA (Reuters) - Cubans go to the polls Sunday to ratify a Communist Party-proposed overhaul of the island’s 1976 Magna Carta.

The proposed constitution maintains the one party political system, socialist economy, universal and free healthcare and education, but would also codify changes in Cuban society that have occurred since the 1991 collapse of the Soviet Union while restructuring the government.

Here are details of how the charter might change Cuba, how open the process of adopting it has been, and what it means for investors.

COMMUNISM

The new version keeps the Communist Party as the only legal party and maintains its role as the guide of the nation, stating that this is irrevocable. At the same time, it eliminates a ban on the use of private property to exploit the labor of others.

SOCIALISM Page 53 of 182 The new version reinforces the state’s dominance over the means of production and land, as well as the role of centralized planning. This too is deemed irrevocable. However, for the ﬁrst time it recognizes the market as a fact of economic life, though it can be countermanded at will by the government.

PRIVATE BUSINESS AND FOREIGN INVESTMENT

Private businesses and non-farm cooperatives are included for the ﬁrst time in the new version as legitimate economic actors. The role of joint ventures and other forms of foreign investment is upgraded from secondary to “important” or “fundamental.”

GOVERNMENT

The president of the nation, who is elected every five years by the national assembly, may serve only two consecutive terms and must be under 60 years of age when first taking office.

The president of the national assembly will now head up the Council of State, previously led by the president of the nation. Page 54 of 182 A prime minister has been added at the national level to supervise the day-to-day operations of the government, in particular the state-owned economy. The prime minister will be appointed by the president.

REGIONS

Provincial assemblies modeled on the national assembly are eliminated in the new version and replaced by a presidentially appointed governors and deputy governors, whose nominations must be ratiﬁed by municipal governments. The governor will preside over a provincial council made up of municipal leaders.

MUNICIPALITIES

Municipal authority is strengthened. Terms of ward delegates to municipal assemblies are doubled to ﬁve years. The position of mayor has been added to that of president of the municipal assembly.

LGTB RIGHTS

The prohibition of discrimination in the new version adds sexual orientation to an existing ban on diﬀerentiating on the basis of race and gender.

Page 55 of 182 Frustration rises as Venezuela's blackout continues

LEGAL RIGHTS

The new version adds the presumption of innocence in criminal cases and the right to a lawyer immediately upon arrest and habeas corpus. For the ﬁrst time a person can sue the state for damages and negligence. However, the judicial system remains unchanged and all lawyers are government employees.

OPPOSITION DOUBTS

Government opponents have blasted the top-down process as a “fraud” and the referendum as “illegitimate”.

They say that since the ﬁnal version was approved the government has used its monopoly over the media and most public space to campaign for ratiﬁcation while censoring other points of view and harassing dissidents.

Page 56 of 182 PAID FOR AND POSTED BY DELOITTE Smart machines everywhere The growing availability and variety of AI-enabled devices could fuel organizational effectiveness.

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BOTTOM LINE

Cubans are expected to ratify the new constitution, but by a lesser margin than the 97.6 percent ratiﬁcation of the current one. [L1N20A0US]

The proposals do not by themselves reduce risk or change the rules of doing business in Cuba, but they do further legitimize foreign investment and are another step toward a mixed economy and modern society, according to foreign businessmen and diplomats.

Cuban oﬃcials say changes in government structure aim to improve accountability and administration of the state-run economy.

Reporting by Marc Frank; Editing by Daniel Flynn and Steve Orlofsky Our Standards: The Thomson Reuters Trust Principles.

MORE FROM REUTERS

Page 57 of 182 

Stand against hateful rhetoric and policies that threaten human rights 



 ENGLISH ESPAÑOL (SPANISH)

(AP Photo/Ramon Espinosa)

 26 FEB 2019 | COMMENTARY

Cuba’s New Constitution, Explained

by Geoff Thale and Teresa García Castro

On February 24, Cubans went to the polls to vote on the ratification of a new constitution, one that makes significant changes to the country’s political, social, and economic order. This was the first time in 43 years that the Cuban people had the opportunity to express either support or opposition to a proposal that fundamentally restructures aspects of the Cuban economy and political system.

According to the Cuban electoral commission, voter turnout reached 84 percent (slightly higher than in Cuba’s last election cycle in April 2018), with 87 percent of the votes in favor. The size of the vote suggests that, whatever misgivings or frustrations Cubans had with the new Constitutional proposal, they saw it as a step in the right direction.

The new Cuban Constitution retains language that proclaims the Communist Party’s guiding role in Cuban society and socialism as being irreversible. At the same time, the document includes several major changes to Cuba’s traditional economic and political model. Additionally, the drafting process that yielded the ﬁnal text that was approved in the February 24 referendum involved a citizen consultation process that was relatively inclusive and even resulted in changes to the ﬁnal document, an important indication that the Cuban government’s gradual process of reform is continuing.

Overall, there was real and relatively open debate leading up to the referendum on the Cuban Constitution.

Cuba’s current constitution was drafted and approved by referendum in 1976. Since then, the government’s vision for the country’s economy has changed signiﬁcantly, especially in the past decade. Reform guidelines announced in 2011, alongside a Communist Party document approved in 2016, make clear that Cuba is moving toward a mixed economy that includes both a private sector and state-run sector, a more signiﬁcant role for foreign investment, and where the central planning role, though not eliminated, is diminished. A small private sector has already emerged in Cuba, and grown substantially in the last few years.

Page 58 of 182 Overall, the past decade has seen Cuba’s Communist Party shift (at least in principle) toward a less heavy-handed approach to exercising inﬂuence over both Cuban society and the economy. In addition, expanded internet access has helped spread access to information and enabled greater and more open political debate.

In the face of these ongoing changes, the government launched a process to revise and update the 1976 Cuban Constitution. Some people had hoped that the ﬁnal text would incorporate more radical changes in the Cuban model, and were disappointed. Indeed, some rumored changes did not appear in the ﬁnal version that was voted on, while other proposed reforms appear to have been postponed to later debates about implementing legislation in the National Assembly.

Still, Cuba’s new constitution includes some noteworthy overhauls. The document does the following:

Recognizes private property and promotes foreign investment as fundamental to the development of the economy. Limits the term of the president—who is selected by the National Assembly, as in parliamentary systems—to two consecutive ﬁve-year terms, and requires that the president be under sixty when s/he is elected. (This is a dramatic change from the era in which aging revolutionaries monopolized key government positions, and were repeatedly approved in their positions.) Restores the pre-1976 position of Prime Minister, an oﬃcial selected by the president who leads government ministries on a day-to-day basis. Forbids discrimination based on sexual orientation. Guarantees women’s sexual and reproductive rights and protects women from gender violence. Establishes the presumption of innocence in criminal proceedings and the right to habeas corpus. Strengthens the authority of local governments. Allows holding dual citizenship.

These changes, and others, will have to be implemented through legislation and regulation. That process is likely to be both gradual and complicated. However, the changes in the new Cuban Constitution are undeniably signiﬁcant, both reﬂecting and advancing the process of economic reform, strengthening citizen protections, and making the political process more transparent. While not as transformative as some had hoped, they should not be dismissed as meaningless or cosmetic.

The constitutional process

The process by which the new constitution and referendum came about is also noteworthy, given the degree of citizen participation involved and the government’s response to some of the feedback it received.

Constitutional reform had been under discussion since 2013, but it wasn’t until June 2018 that a drafting commission (made up of senior government and Communist Party oﬃcials, the heads of several Cuban National Assembly committees, and academic and technical advisors) began to work on this issue seriously. The government, the National Assembly, and the Communist Party all engaged in ongoing internal debates about the draft constitution, reﬂecting a larger national conversation among political elites about the pace and depth of political and economic reform in Cuba

Despite Cuba’s image as a state that has suppressed religious freedom, prevented organized political campaigns, and been unwilling to listen to citizens’ views, the government responded.

The first draft of the constitution was approved by the National Assembly in July 2018. For a subsequent three-month period, Cubans were invited to suggest changes to the proposed draft. According to official numbers, more than 8 million people participated in nearly 112,000 debates in workplaces, schools, and community centers, and suggested a large number of proposed modifications to the constitution draft.

This participatory process was also signiﬁcant in that, for the ﬁrst time, Cuban expats were allowed to submit proposed changes to the constitution draft. However, other than diplomats, Cubans abroad were not allowed to vote in the referendum unless they returned to the island to cast their ballots.

Overall, the consultation process constituted a signiﬁcant exercise in citizen participation. While oﬃcials were not required to make changes based on citizen feedback, there were some cases in which they did.

Page 59 of 182 The most well-known example of this was the same-sex marriage provision: a draft of the constitution originally included language that deﬁned marriage as a consensual union between two people, without specifying genders. This attracted signiﬁcant pushback from evangelical churches and some sectors of the Cuban Catholic Church, who organized a campaign to get the provision withdrawn. Many Cubans supported this campaign and made their objections known by disseminating posters, stickers, and t-shirts, threatening to vote “no” in a constitutional referendum. Around 179,000 people signed a petition, backed by evangelical churches, calling on the government to withdraw the provision.

The new constitution and the constitutional drafting process mark important steps forward in the economy, the political system, and the decision-making process in Cuba...

Despite Cuba’s image as a state that has suppressed religious freedom, prevented organized political campaigns, and been unwilling to listen to citizens’ views, the government responded. The commission in charge of processing citizen feedback eventually withdrew the proposed language. The just-approved constitution now contains no language on marriage; the issue will likely be revisited in a debate over the Cuban Family Code sometimes in the next two years.

Meanwhile, the government launched a campaign to encourage “yes” votes with posters, advertising, and the use of social media. On the other hand, opposition forces also painted “no” signs, printed up T-shirts, and staged Twitter protests. While there were reports that some proponents of the “no” vote were harassed, overall, there was real and relatively open debate leading up to the referendum on the Cuban Constitution.

What happens next

Overall, the new constitution and the constitutional drafting process mark important steps forward in the economy, the political system, and the decision-making process in Cuba, and should be understood as signs of change in the thinking of the political leadership and in the population as a whole.

Indeed, the referendum comes at a complicated moment for Cuba. Economic growth has stalled in the past year, and is projected to be no more than1.5 percent in 2019. Austerity measures initiated in 2016 will continue this year, including cuts in energy and fuel to state companies and reduced imports of consumer goods. The government will struggle to maintain its investment in the social safety net, including free healthcare, education and other services

Meanwhile, the Trump administration is threatening additional economic sanctions on the island, which could make foreign investment riskier. These sanctions will damage Cuba’s already fragile economy, and hurt everyday Cubans. In addition, they are likely to discourage the process of economic reforms and will have a negative impact on the growing private sector. A more constructive approach, and one that would encourage rather than discourage internal reform, would be to return to normalizing U.S.-Cuban relations. Ultimately, recognizing that important if gradual changes are underway in Cuba—as the new constitution illustrates— is in the interests of both the Cuban people and the United States.

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CUBA’S CONSTITUTIONAL REFERENDUM A REFLECTION OF GRADUAL CHANGE

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Page 60 of 182

Custom Search Search A Guide to Legal Research in Cuba

By Yasmin Morais

Yasmin Morais is the Cataloging and Reference Librarian at the Mason Law Library, University of the District of Columbia. She was previously Resident Librarian at the Georgetown Law Library. Yasmin obtained her MSc in International Relations from the University of the West Indies (Mona) and her MLIS from the University of Toronto. She is pursuing her LLB degree at the University of London.

Published June 2015 Read the Update!

Table of Contents 1. Introduction 2. Country Data 3. A Brief History 4. The Cuban Constitution 5. Government 5.1. Executive Branch 5.2. Legislative Branch 5.3. Judicial Branch 6. Primary Legal Resources 7. Secondary Legal Resources 7.1. Government Websites 7.2. Law Schools and Law-Related Associations 7.3. Libraries 7.4. Books 7.5. Journals 7.6. Newspapers 7.7. Blogs 8. General Sources

1. Introduction This research guide was created to assist with researching Cuban Law. This is an interesting period for Cuban law and politics. In December 2014, the United States moved to restore diplomatic relations with Cuba. By January 2015, the Obama Administration announced new rules to ease trade and travel restrictions. The April 2015 Summit of the Americas in Panama marked the first meeting in over 50 years between leaders of the United States and Cuba. Visit the White House website to access documents relating to US-Cuba developing relations. Cuba is currently a member of the United Nations, the Non-Aligned Movement, and the Association of Caribbean States. Cuba has also over the years maintained strong ties to member states of the Caribbean Community (CARICOM). As of May/June 2015, the key diplomatic developments are the removal of Cuba from the list of state sponsors of terrorism; plans to re-establish an embassy in Cuba in the next few months; expansion of travel to Cuba (ferry service was approved); expanded commercial sales/exports from the United States; increasing access to communication for Cubans.

2. Country Data The Republic of Cuba is an island state located in the northwestern Caribbean. In addition to the mainland, there is territorial claim to the Isla de Juventud (Isle of Youth), and several other smaller islets. Havana, located in the northwestern section of the island, is the capital, and Cuba’s largest city. The United States, The Bahamas and Turks and Caicos Islands are north of Cuba, while Haiti and the Dominican Republic are east, and Jamaica and the Cayman Islands are south of the island. Cuba’s total land mass is 109,886 kilometers. Cuba is divided into 14 provinces and 169

Page 61 of 182 municipalities. At the end of the 2013 census, Cuba’s population was approximately 11.2 million. The official currency is the peso.

Library of Congress, Country Profile: Cuba (Sept. 2006) CIA, The World Factbook: Cuba The World Bank, Cuba (last updated 2015).

3. A Brief History Spanish settlement and colonization of Cuba began after the arrival of Christopher Columbus in 1492. San Cristobal de Habana (present day Havana), was founded in 1515. France briefly seized control of Cuba from the Spanish in 1555. Cuba’s desire for independence from Spain resulted in three phases of struggle: the Ten Year’s War, (1868-1878); a smaller conflict (1879-1880), and the Cuban War of Independence (1895-1898). The intervention of the United States in the conflict in 1898 resulted in a three-month war with Spain, known as the Spanish American War which was ended by the Treaty of Paris.

As a result of the Platt Amendment, the United States occupied Cuba in 1906-1909, 1917, and 1921. The 1930s and 1940s saw the rise of dictatorships under Presidents Gerardo Machado and Carlos Manual Cespedes, and a brief revolution which brought Fulgencio Batista to power. After brief periods of democracy under Presidents Grau San Martin and Carlos Prio Socarras, Fulgencio Batista again led a coup d’état in 1952, and assumed power.

On January 1, 1959, Fidel Castro Ruz, leading the 26 th of July Movement, ( Movimiento 26 de Julio ), seized power in the Cuban Revolution, ushering in a one-party communist system of government. In October 1960, the United States imposed an embargo on Cuba and ended diplomatic relations in 1961. After failed attempts to oust Castro, such as the Bay of Pigs Invasion, heightened US-Cuba tensions resulted in The Cuban Missile Crisis of October 1962 as Cuba moved closer to the former Soviet Union. In 1996, the United States Congress passed the Helms-Burton Act, which introduced tougher sanctions against Cuba, including sanctions against third-party states, companies or individuals engaged in commerce with Cuba. In July 2006, an ailing Fidel Castro transferred power to his brother, Raul Castro Ruz.

4. The Cuban Constitution Since attaining independence from Spain, Cuba has been governed by four constitutions: the 1901, 1934, 1940 and 1976. The present Cuban Constitution of 1976 was amended in 2002. For more details on the Cuban Constitution, see the Law Library of Congress Cuba Profile .

5. Government

5.1. Executive Branch Cuba’s sole political party is the Cuban Communist Party, the PCC ( Partido Comunista de Cuba ). Raul Castro Ruz was elected President of the Council of State and President of the Council of Ministers at the most recent elections held in February 2013. Miguel Diaz-Canel Burmudez is First Vice President of the Council of State and First Vice President of the Council of Ministers. The Cabinet consists of Council of Members who are proposed by the President of the Council of State and appointed by the National Assembly of People’s Power ( Asamblea Nacional del Poder Popular). For more details on the structure of government and current ministers, see the Government of Cuba website.

5.2. Legislative Branch Under the Cuban Constitution, legislative power rests with the unicameral National Assembly of People’s Power , which has approximately 614 seats. The National Assembly meets twice each year and is responsible for appointing the members of the Council of State. For more information on the National Assembly, see the Government of Cuba Official Website .

5.3. Judicial Branch The People’s Supreme Court, ( Tribunal Supremo Popular ) is headquartered in Havana, and exercises jurisdiction for the entire Republic. It consists of a Court President, Vice-President, 41 professional justices, and lay judges. Justices are elected by the National Assembly for 2 ½ year terms, and lay judges are appointed to serve 5-year terms. There are also provincial courts, municipal courts and military courts.

6. Primary Legal Resources Page 62 of 182

· Codigo Civil (Civil Code) · Codigo De Familia (Family Law) · Codigo Penal (Penal Code) · Compendio de la Legislación Cubana at the Tribunal Supremo Popular (Compendium of the Cuban Legislation) · CubaWeb · International Treaties (See Cuba’s Ministry of Foreign Affairs Website) · Gaceta Oficial de la Republic de Cuba (Official Gazette of the Republic of Cuba)

7. Secondary Legal Resources

7.1. Government Websites

· CubaMinRex: Ministry of Foreign Affairs · CubaWeb · Government of Cuba Official Website · National Statistics Office · Tribunal Supremo Popular (Supreme Court) · Justicia y Derecho. Revista Cubana del Tribunal Supremo Popular

7.2. Law Schools and Law-Related Associations

· Universidad de Camaguey · Universidad Central de Las Villas · Universidad de LaHabana · Universidad de Oriente · Organizacion Nacional de Bufetes Colectivos (National Organization of Collective Firms)

7.3. Libraries

· Biblioteca Nacional De Jose Marti · Friends of Cuban Libraries (Maintains a list of Cuban libraries and reports on intellectual freedom in Cuba)

7.4. Books

Chomsky, Aviva. A History of the Cuban Revolution. 2 nd ed.: Wiley-Blackwell, 2015. Chomsky, Aviva. The Cuba Reader: History, Culture, Politics. Duke University Press Books, 2004. Evenson, Debra. Law and Society in Contemporary Cuba. 2nd ed. Kluwer Law, 2003. Farber, Samuel. Cuba since the Revolution of 1959: A Critical Assessment. Haymarket Books, 2011. Farber, Samuel. The Origins of the Cuban Revolution Reconsidered. University of North Carolina Press, 2006. Garibaldi, Oscar M. Expropriated Properties in a Post-Castro Cuba: Two Views. Miami Institute for Cuban and Cuban American Studies, University of Miami, 2003. Gott, Richard. Cuba: A New History. Yale University Press, 2005 Guerra, Lillian. Visions of Power in Cuba: Revolution, Redemption and Resistance, 1959-1971 . University of North Carolina Press, 2014. LeoGrande, William M. & Kornbluh, Peter. Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana. University of North Carolina Press, 2014. Page 63 of 182 Perez-Stable, Marifeli (editor). Looking Forward: Comparative Perspectives on Cuba’s Transition. University of Notre Dame Press, 2007. Joaquin Roy. Cuba, the United States and the Helms-Burton Doctrine: International Reactions. Gainesville: University Press of Florida, 2000. Staten, Clifford L. The History of Cuba. Palgrave Macmillan, 2005. Sweig, Julia E. Cuba: What Everyone Needs to Know . Oxford University Press, 2012 Nigel D. White. The Cuban Embargo under International Law: El Bloqueo . Routledge, 2015. Marjorie Zatz. Producing Legality: Law and Socialism in Cuba (After the Law). Routledge, 1994.

7.5. Journals Below are links to both subscription-based and open source journals which regularly publish articles on Cuba.

· Cuban Studies (Project Muse) · Foreign Affairs · Inter-American Dialogue Latin America Advisor · International Journal of Cuban Studies · World Affairs

7.6. Newspapers

· Agencia Cubana de Noticias · Cubadebate · El Economista De Cuba · Granma · Miami Herald · Trabajadores · Tribuna De La Habana

7.7. Blogs

· Cuba Study Group · Generacion Y · Jurisconsultocuba · The Cuban Economy · Translating Cuba (This blog provides English translations of writings from Cuba)

8. General Sources

· Amnesty International · Association of Caribbean States (ACS) · Caribbean Community (CARICOM) · Council on Foreign Relations · CubaLex · CubaNet · International Institute for the Study of Cuba · Library of Congress Cuba Law Page · Organization of American States (OAS) Page 64 of 182 CHAPTER 18 Improvements in the Cuban Legal System James H. Manahan Cuba inherited its legal system from the Spanish conquerors, as did most countries in Central and South America. However, Communist theory from Russia, East Germany, and China has had a great influence on Cuban practices since 1959. Cuban lawmakers perceive law and the lawmaking process as educational. All proposed laws are discussed at neighborhood meetings, in an attempt to inform citizens and obtain consensus, and it usually takes several years before new statutes are adopted. For example, a new criminal code was drafted between 1969 and 1973, but it was not enacted until 1979. This meant that the Code reflected the conditions in Cuba in the ‘60s, when there was still fighting with the United States (the Bay of Pigs is only one example) and the CIA was trying to kill Fidel Castro. A new Code went into effect in 1989, a more modern approach which uses incarceration as a last resort and encourages alternative sanctions. The repressive criminal justice system was transformed into a system that relies more heavily on education and re-socialization than on incarceration. The court system was restructured in 1973 and 1977. At that time the private practice of law was eliminated, and all lawyers were integrated into law collectives (bufetes colectivos). Further procedural reforms were made in 1990. All courts have a mixture of lawyer judges and lay judges. Municipal and provincial courts now have two lay judges and one professionally trained judge, and the Supreme Court has two lay judges and three professional judges. The purpose of lay judges, like our juries, is to bring a non-legalistic, popular sense of justice into the proceedings, and to educate citizens about legal proceedings. Most lay judges belong to the Cuban Communist Party (82

277 Page 65 of 182 278 James Manahan percent in the Supreme Court, 57 percent in provincial courts, 77 percent in municipal courts). As in the rest of Spanish-speaking America, there is a movement toward a more fully oral and adversarial system such as we have in common-law countries. I saw an oral criminal trial last year in which two men were accused of breaking and entering a home. The only witnesses called to testify at the trial were the victim, the defendants, and the wife of one defendant; no police officer testified, and the trial took less than two hours. The lawyers and judges wore black robes. Witnesses stood before the judges, and a typist (using a loud typewriter) summarized the testimony. The presiding judge frequently interrupted the lawyers and witnesses. I did not see any lawyer cross-examine a witness, but the lawyers did give long and powerful closing arguments. However, I believe Cuban lawyers would benefit from training in direct and cross-examination skills and the techniques of persuasion in oral trials. Trials (such as the one I saw) which carry penalties of less than eight years in prison have one professional judge and two lay judges; more serious crimes have three professional judges and two lay judges. Lay judges are nominated by fellow workers and elected by the municipal or provincial assemblies. They serve one month per year for five years, and work at their regular jobs the rest of the time. Last July I spent 10 days in Cuba interviewing a number of people about the functioning of their legal system. In general, law professors and older lawyers seem satisfied with the present procedures, whereas younger lawyers are more interested in reform. Cuba was actually the first country in Latin America to start using oral, adversarial trials in criminal cases. This reform occurred in 1889 when Cuba was still a Spanish colony. Prior to that they used the Inquisition system of written, secret trials, and only in the past 10 years have the other countries of Latin America begun changing their system to an adversarial model. On July 21 I spoke at an International Criminal Law Seminar which was held at the Summer School of the University of Havana Law School, and was given an award for being a “Founding Professor” of the Summer School. My topic was “The Role of Advocacy in the Procedural Reforms of Latin Amer- ica,” and I criticized the fact that vestiges of the Inquisition system still persist in the Cuban courts (as in the courts of many other Latin American countries that have reformed their procedures). In the Inquisition system, the judge’s role is to investigate the case and determine the “truth” about what happened, while the lawyers simply file written arguments and motions. In an oral, adversarial system, the judge should have a very different role, that of referee, and the job of the lawyers is to produce evidence and prove their contentions through accreditation and Page 66 of 182 Improvements in the Cuban Legal System 279 contradiction of witnesses. The judge should be passive, limiting his or her role to guarantying the rights of the parties and deciding the issues. The judge is simply an arbiter. There are three vestiges of the old system that still persist in Cuba and elsewhere: (1) When witnesses are called to testify, they first give a spontaneous state- ment telling what they know about the matter, rather than answering questions of the lawyer who called them. This may seem like a quick and easy way to get their stories told, but more often than not there is a lot of irrelevant and incomplete testimony. Even worse, this practice does not allow the lawyer to develop the testimony in a coherent manner which is consistent with the lawyer’s theory of the case. The adversary system is supposed to be contradictory and dialectic, and the lawyers should be in charge of the presentation of the evidence. (2) After the lawyers have questioned the witnesses, the judges can (and do) question them further. This also may seem to be a good way to make sure that the witnesses tell everything they may know, but the judge’s role should be passive, simply listening to the evidence and not trying to “produce” it. How- ever impartial the judge’s questions may be, it might have the effect of destroying what one of the parties has accomplished during direct or cross examination. The judge thus loses his neutrality and appears to be just another cross-examiner. If the judges have doubts after hearing the testimony, they are supposed to resolve those doubts in favor of the accused. (3) Finally, the court rules prohibit the use of leading questions, even during cross-examination. The theory is that leading questions may put words in the witness’ mouth, thereby preventing the witness from giving his or her own testimony. Since the witness is normally affiliated with the lawyer who called the witness to testify, this rule makes sense on direct examination. However, the witness will be hostile to the other lawyer, whose job is to show that the witness is mistaken or is lying. In common-law countries, lawyers try to show that by using leading questions on cross-examination. John Henry Wigmore, the great legal scholar in the United States, said that “without doubt, cross-examination is the best machine invented by man for the discovery of the truth.” Another expert, Charles McCormick, said “For two centuries, common law judges and lawyers have considered the opportunity to cross-examine as an essential safe- guard of truth…and have insisted that the opportunity be more than a privilege, that it be a right.” The Supreme Court of Canada ruled that cross- examination “is essential in determining if a witness is credible.” An Italian scholar, Francesco Carnelutti, said that “Everyone knows that testimonial proof is the most false of all proofs.” For that very reason, court

Page 67 of 182 280 James Manahan rules ought to permit the most effective methods to demonstrate that the witness may be mistaken or even lying. In El Salvador, the law on oral adversarial trials was changed in 1998 to permit leading questions on cross-examination, and to prohibit judges from questioning witnesses except to clarify their testimony. The same is now true in Chile, which adopted the oral, adversarial system in criminal cases for the entire country just this past summer. Despite this fact, several members of my audience spoke out rather strongly against my views. They asked how I could come to Cuba for a few weeks and think that I understood their system. They pointed out that in the United States only about 10 percent of criminal cases actually go to trial and the rest are resolved by plea bargains, whereas in Cuba every single case goes to trial. Defendants cannot plead guilty even if they want to do so! Because of this, they said, the courts do not have time for long cross examinations and lengthy procedures, usually having to hold several trials every day. My response to this was that a lawyer’s job is to advocate strenuously for the client, and to use every technique legally available to persuade the judges that the client’s version is true; if this takes time, then time must be taken to do the job right. That’s what we mean by the adversarial system, and Cuba cannot expect to achieve justice in its criminal cases by continuing to keep vestiges of the old Inquisition system. Dissent Many people to whom I spoke felt completely free to tell me how dissatisfied they are with the Cuban legal system. A young lawyer, Fidel Rivero Villasol, told me at length that the court system does not deliver justice in Cuba. The police control the prosecution, suspects don’t (in practice) have a right to a lawyer (though they do have that right on paper), officials are corrupt and accept money under the table, and political cases are decided even before trial. Comments of this type, whether true or not, reveal a perception among many Cubans that the legal system needs to be reformed. In my opinion, a stronger commitment to the adversarial system and more training in trial skills and effective oral trial techniques would go a long way to improve the Cuban system of justice. The University of Havana The University of Havana has 15 schools with 29 separate career paths, as well as several Centers of Study. It has some 20,000 undergraduate students, 19,000 post-graduate students, and 4,000 master’s candidates. Some 600 workers take night courses, and there are 20,000 “distant learners” who study at home and take tests at the University. Thirty-two percent of the professors Page 68 of 182 Improvements in the Cuban Legal System 281 have their Ph.D. The University has 19 branches in Havana. Higher education is free. The law school is a five-year course, starting at age 18, and 80 percent of the students are women. Forty-three percent of the graduates pass the national bar exam on their first try. Students must do three years of public service to repay their free education. Graduates work for three years as assistant prosecutors, in a law collective, in tourism, or prepare to become law professors. Under the descalifón system, a job is offered to every student who passes the bar exam, with the top student getting first choice, down to the last student. The students and young lawyers with whom I spoke are very interested in learning more about the common law system used in the United States, Eng- land, Australia, and Canada, and specifically about our system of oral, adversarial trials. Once the United States embargo is repealed, law professors, lawyers, and judges should make a concerted effort to go to Cuba to talk and teach about our trial system and to assist in the effort to improve the Cuban legal system. We can also learn a lot from studying the Cuban system, including the use of lay judges, which we might be able to incorporate into our court system in the United States.

Page 69 of 182 Page 70 of 182

Gender & Sex Equality in Cuba: Legal Perspectives

Page 71 of 182 Cuba's new constitution paves way for samesex marriage National assembly signs off on document deﬁning marriage as ‘consensual union of two people, regardless of gender’

Ed Augustin in Havana Sun 22 Jul 2018 21.52 EDT

Cuba is set to become the latest country in Latin America to approve gay marriage, after the National Assembly on Sunday signed oﬀ on a new constitution that deﬁnes marriage as “the consensual union of two people, regardless of gender”.

The new constitution, known as the Magna Carta – which also recognises private property for the ﬁrst time since the Cold War – will be put to a referendum later this year.

The news was met with elation by the LGBTQ community, many of whom were hopeful but not certain the measure would pass.

“This is marvellous,” said Pablo Navarro, 70, who spent two years cutting sugar cane in a correctional labour camp in the 1960s because of his sexuality. “I feel proud that the new generation can enjoy this achievement even though we couldn’t.” Page 72 of 182 “It’s a really important step forward,” said Yeandro Tamayo, 40, a gay theatre director from Havana, who watched the National Assembly debate the issue live on television. “I’ve never been interested in marriage, now they they have approved it, I might get married myself!”

Legislators voted unanimously for the new constitution, replacing the current constitution’s deﬁnition of marriage as the “voluntary union between a man and woman”. The new constitution does not explicitly address the question of whether gay couples can adopt children, although experts say this will now likely be possible.

Prior to the vote, popular campaigns both in favour of and against same-sex marriage led to rare, open political debate on the Communist-ruled island.

Five of Cuba’s evangelical denominations published an open letter in June declaring that “marriage is exclusively the union of man and woman” and that “the ideology of gender has no relation with our culture, our struggles, or with the historic leaders of the Revolution”.

Posters appeared in Havana featuring a husband and wife with two children that read: “I am in favour of original design – the family as God created it.”

A poster opposing gay marriage is wrapped around a pole in Havana. Photograph: STRINGER/Reuters

The pro-gay marriage campaign was led by Mariela Castro, the director of the National Centre for for Sex Education (CENESEX), a lawmaker, and daughter of former President Raúl Castro. CENESEX organised the “Conga against Homophobia and Transphobia” in March, in which thousands of revellers danced among gay pride ﬂags and Fidel Castro banners.

This “oﬃcialista” campaign was accompanied by a small group of around 100 LGBT activists who lobbied on social media, ran queer cinema screenings, and staged public performance art.

“CENESEX has been educating and lobbying on this issue since 2007 and has been the main force here, but all of our actions have played a role,” said feminist militant Marta María Ramirez, 42, through joyous tears. “The National Assembly is now responding to speciﬁc demands of the people and not only to their own experiences as bureaucrats.”

Cuba’s about-face on gay rights has been in train for decades.Employment discrimination because of sexual orientation is illegal in both the state and private sector. Legislation enacted earlier this year allows for steep ﬁnes and even the suspension of licenses for private employers who discriminate because of gender, race or sexuality.

Page 73 of 182 Sex-change operations were legalised in 2008 and are carried out at no cost to the patient. Cuban surgeons performed dozens last year.

Elsewhere in Latin America and the Caribbean, same-sex marriage is legal in Argentina, Uruguay, Brazil, and Colombia. But homosexuality remains a criminal offence in seven Caribbean island nations. Since you’re here… … we have a small favour to ask. The Guardian is editorially independent, meaning we set our own agenda. Our journalism is free from commercial bias and not influenced by billionaire owners, politicians or shareholders. No one edits our Editor. No one steers our opinion. This is important because it enables us to give a voice to the voiceless, challenge the powerful and hold them to account. It’s what makes us different to so many others in the media, at a time when factual, honest reporting is critical.

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Page 74 of 182

Gender Equality and the Role of Women in Cuban Society

As part of the American Association of University Women’s International Series on Culture and Gender Roles, a delegation of 48 AAUW members and staff traveled to Cuba in fall 2010 for six days of research, dialogue, cultural events, and educational experiences. From October 30 to November 4, the group visited sites around Havana and met with women leaders in education, the arts, politics, and law, including Mariela Castro Espin, the daughter of President Raul Castro.

The purpose of this unprecedented and historic trip was to examine gender equality in Cuba and to meet with Cuban citizens to gain a firsthand understanding of the roles of women in Cuban society. Research issues addressed on the trip included the following questions: What are the roles of women in Cuba? What is the relative status of women and men in Cuba? How has Cuban women’s education affected their opportunities and lifestyles?

AAUW worked with Academic Travel Abroad, a 60-year-old organization licensed by the U.S. Treasury Department’s Office of Foreign Assets Control to facilitate travel to Cuba by teams of professionals for the purpose of conducting research. All members of the AAUW delegation were carefully screened to ensure that they met specific requirements as professionals in gender equity-related fields.

This paper summarizes the findings of the delegation. Unless otherwise indicated, statistics and statements cited in this paper are based on delegation members’ notes from the discussions and cannot be verified by public data.

I. The status of women in Cuba

During the trip, the AAUW delegates met with women leaders in a number of different fields, including  Leaders and representatives from the Federation of Cuban Women (FMC) and the National Assembly (Parliament): o Elsa Rojas, president of the National Assembly’s Commission on Children, Youth, and Women’s Rights and Equality o Miriam Yanet Martin Gonzalez, vice president of the commission o Magalys Llort, mother of one of the five Cubans imprisoned in the United States o Mayda Alvarez, director of the FMC Women’s Studies Center o Mayra Diaz, coordinator of the FMC National Committee on Violence and Domestic Violence o Yamila Gonzalez, president of the Cuban Family Law Association, secretary of the National Union of Cuban Jurists, and member of the FMC National Committee o Carolina Amador, FMC International Relations

Gender Equality and the Role of Women in Cuban Society 1 February 2011 Page 75 of 182 o Teresa Hernandez, member of the FMC National Secretariat o Magalys Arocha, member of the FMC National Secretariat  Mariela Castro Espin, director of the National Center for Sex Education and Research (CENESEX) Leaders at the University of Havana: o Cristina Lopez, vice rector o Milagros Martinez, Department of International Relations o Norma Vasallo, director of the Women’s Studies Department o Anicia Garcia, director of the Institute for the Study of the Cuban Economy o Reynaldo Jimenez, director of FLACSO (Latin American Social Sciences Department)  Elected leaders and members of the National Association of Writers and Artists of Cuba (UNEAC): o Denia Alvarez, director of the Nicolas Guillen Foundation o Marilyn Bobes, internationally renowned poet o Mirta Yanez, internationally renowned author  Specialists at the Cuban Institute for Friendship with the People (ICAP): o Esperanza Luzbert, director of the North America Division o Rita Olga Martinez, U.S. Department  Leaders at the ISPEJV (Pedagogical Institute/University): o Olga Lidia Reyes Piña, director of the Foreign Affairs Department o Alicia Gonzalez Hernandez, director of the Department for Gender, Health, and Sex Education o Professor Luisa Campa, director of the Literacy Museum o Dr. Santiago Antonio Borges Rodriguez, from Latin American Reference Center for Special Education (CELAEE) o Dr. Carmen Lidia Cobas, CELAEE o Rosa María Masson, vice director of the Universidad Pedagógica de Postgrado (IPLAC)  Josefina Vidal, director of the North America Department of the Cuban Ministry of Foreign Relations (MINREX)

Women in Cuba have enjoyed equality—at least on paper—since the days of the Republic (1976). However, the women leaders who met with the AAUW delegates explained that, in reality, Cuban women and girls have a long way to go before they achieve full equity. This was specifically confirmed by one speaker who observed that, “We have made progress, but we have more to achieve in the area of justice for women and children.”

For example, several of the leaders described the challenges of achieving gender equity in day- to-day Cuban life, particularly in the home. Cuban law grants women and men equal rights and responsibilities in raising children, maintaining the home, and pursuing a career.1 The leaders noted, however, that traditional sexist behavior and gender stereotypes persist, and laws requiring the equal division of household chores are not enforced. Consequently, women still

Gender Equality and the Role of Women in Cuban Society 2 February 2011 Page 76 of 182 bear the burden for performing the majority of household and caregiving responsibilities in addition to working outside the home.2

Working women who met with the AAUW delegation repeatedly mentioned their “double day.” At the University of Havana, some speakers admitted that they turned down opportunities to take leadership positions at the university because they do not have a wife at home to make dinner and take care of the house. Additional comments, such as “Women work, but men have not learned to wash and cook” and “Men still don’t understand what equity means,” are further evidence of men’s and women’s unequal status in Cuban homes.

The delegates found that these women know they must work to break through this lingering machismo to attain true equity. As one speaker noted, “We do nothing in changing women if we do not also change men.”

The struggle to balance work and home life is not unlike that faced by many women in the United States. In contrast to U.S. women, however, Cuban women lack access to basic, everyday items. Delegates found that Cuban supermarkets are rarely stocked with household essentials or convenience items such as frozen meals. Most families do not have access to modern conveniences, such as washing machines, dryers, microwaves, and dishwashers. Transportation can be challenging, as few women have their own cars. Summing up the situation, several women from the FMC said that it was difficult even to discuss gender equity when Cuban women face so many basic problems at home.

II. Employment

The AAUW delegates learned that Cuban women benefit from universal access to work in all fields and that laws requiring equal pay for equal work have long been codified.3 Despite the law and significant progress in some professions, women in Cuba still face formidable obstacles to achieving equality in employment.

Women remain the minority in traditionally male fields, although progress is being made.

Today, Cuban women figure prominently in the ranks of professional and skilled workers. Women make up 66 percent of the labor force in Cuba, and more than 70 percent of professionals in the country are women. Despite these impressive numbers, delegates repeatedly heard that Cuban women lead in the “helping” and teaching professions, while men dominate the “hard” sciences, information technology, and mathematical fields.

Speakers elaborated that while men continue to dominate the science, technology, engineering, and mathematics fields, medicine is considered to be more of a helping profession in Cuba, and women are well represented in this field. In 2009, 69 percent of health care workers, including doctors, were women. Women also make up 80 percent of the education workforce, and two-thirds of the lawyers and judges in Cuba are women. The legal profession,

Gender Equality and the Role of Women in Cuban Society 3 February 2011 Page 77 of 182 however, does not enjoy nearly the same status or require the same educational prerequisites as in the United States.

Nevertheless, the delegates also heard promising accounts of Cuban women breaking through barriers and entering traditionally male fields. For example, 30 years ago only 5 percent of engineers in Cuba were women; today that number is 24 percent. In contrast, only about 11 percent of engineers in the United States are women.4

Although women enjoy equal access to work, a glass ceiling exists.

Cuban law grants women equal access to public leadership positions but, as delegates learned, women are underrepresented in the highest ranks of government and education.

Thus, although Cuba ranks higher than the United States in the proportion of women in the national legislature,5 Cuban women still remain a minority in the country’s National Assembly, making up 43.6 percent of the 614 member unicameral legislature. Nevertheless, this is substantially greater than women’s representation in the U.S. Congress, where women make up about 17 percent of members in the House and Senate.

Women are well represented in education, too, but the number of women educators decreases as rank increases. Delegates learned that in Cuba, as in the United States, teaching is not seen as a high-status profession, particularly at the elementary school level. Consequently, there are more female than male teachers at the primary level, but there are more male than female teachers at the pre-university level.

Women are well represented among professors at the university level. Although women at the University of Havana were unfamiliar with the phrase “glass ceiling,” they were well aware that women faculty members have not advanced to top university ranks at the same rate as men. They noted that even though women hold a number of senior university positions, deans have historically been men. Some notable exceptions at their university include the deans of the physics and biology departments and the outgoing dean of the chemistry department. Speakers also told delegates that the university has four women vice rectors or vice presidents. Again, delegates observed the similarity with traditional patterns in U.S. higher education.

Still, there has been progress in the area. For example, at the Center for Pedagogical Science, four out of five vice presidents and the center’s deans are women.

III. Education

During their visits to the University of Havana and the Enrique José Varona Higher Pedagogical Institute, AAUW delegates learned that women in Cuba enjoy the same access to education as men and play a prominent role in the education field. Women can go as far as they wish educationally, limited only by their performance on tests. In fact, women make up more than 80 percent of all university students and nearly 68 percent of university graduates. In the

Gender Equality and the Role of Women in Cuban Society 4 February 2011 Page 78 of 182 United States, 57 percent of undergraduates at four-year institutions are women, and women earned 57 percent of bachelor’s degrees in 2008.6

Women in Cuba remain underrepresented in traditionally male fields of study.

Despite these promising numbers, the delegates found the situation in Cuba to be similar to that in many countries around the globe—women make up the majority of students in social studies, medicine, and pedagogy but are a minority in the natural sciences, math, and technical studies. In Cuba, women make up 81 percent of medical students (women’s grades in medical school are typically higher than men’s), 72 percent of social studies students, and 70 percent of education students. By contrast, women make up only 46 percent of students studying the natural sciences and math, 37 percent of students in the technical sciences, and 30–40 percent of the engineering students.

Women were instrumental in Cuba’s 1961 campaign to eradicate illiteracy.

Today, Cuba boasts a literacy rate (defined as those ages 15 and over who can read and write) of more than 99 percent, which is similar to the rate in the United States.7 The delegates learned, though, that this was not always the case. In January 1961, 20.6 percent of Cubans could not read or write. To eradicate illiteracy, Fidel Castro launched a yearlong literacy campaign in which women played a critical role.

As part of the campaign, Castro dispatched 100,000 brigadistas to the countryside and later to the urban areas. More than half of the brigadistas (52 percent) were women. Three women, literacy pedagogy strategists, created the readers and training manuals used in the campaign, and the director of the literacy campaign was a woman. By the end of the year, the percentage of illiterate Cubans had decreased to approximately 3.1 percent, and all pupils were reading at at least a third-grade level. UNESCO was invited to observe the literacy campaign, and many countries have since modeled their own literacy campaigns on that of Cuba.

Several delegates asked speakers how Cuba ascertained “literacy” but found that the answers did not necessarily translate into what is considered established literacy. As a result, it may be somewhat difficult to make comparisons with U.S. literacy rates.

IV. Violence against women

Cuba does not have a separate law addressing domestic violence, and it remains a pressing social issue.

Currently, Cuban law does not recognize domestic violence as a distinct category of violence, but it does prohibit threats and inflicting injuries, including those associated with domestic violence. Penalties for domestic violence are covered by the laws against assault and range

Gender Equality and the Role of Women in Cuban Society 5 February 2011 Page 79 of 182 from fines to prison sentences of varying lengths, depending on the severity of the offense.8 The FMC told the AAUW delegates that it plans to submit draft legislation on family violence.

According the U.S. Department of State, human rights advocates report that violence against women is a problem in Cuba, and police often do not act on cases of domestic violence. The press rarely reports on violent crime, and the government has not released data on the extent of domestic violence. Nevertheless, the Comision Cubana de Derechos Humanos y Reconciliacion Nacional (CCDHRN) and the Cuban Chapter of the Latin American Federation of Rural Women report that domestic violence remains a serious problem.9

In 1997, the FMC created the Grupo Nacional para la Prevención y Atención de la Violencia Familiar, a national organization to study and coordinate measures to combat domestic violence and provide support to victims.10 In addition, delegates learned that professional outreach and counseling currently span all municipalities in Cuba. Victims can file claims against abusers at the Office of Victim Rights and can denounce their abusers to the police. Victims also have access to state-provided mental health and sexual abuse therapies.

Speakers from the FMC explained how the Cuban Center for Forensic Medicine, the University of Havana, the media, and the police are working to raise awareness of the full spectrum of family violence, including physical, sexual, psychological, and verbal abuse. Women are also being trained to identify abuse such as marital rape, which was once seen as a husband’s natural right but is now deemed an act of violence by law. Speakers added that there is a great need to train judges, prosecutors, and other specialists abroad so that they can return with models for reform.

Although prohibited by law, sexual harassment continues to be a problem in the workplace.

Speakers from the FMC explained to delegates how the organization worked to modify the “public scandal” clause in the Cuban Criminal Code to include all sexual harassment. Cuban law currently provides penalties for sexual harassment, with potential sentences ranging from three months to five years of imprisonment.11

In 2008, the law was applied most frequently to male supervisors abusing their power over female subordinates, according to the CCDHRN. The Cuban government did not release any statistics during the year on arrests, prosecutions, or convictions for sexual harassment offenses. Groups citing anecdotal evidence, however, claim that sexual harassment is widespread.12

The FMC is working to prevent prostitution.

Prostitution is legal for people over the age of 16, but pandering and economic activities facilitating prostitution, including room rentals, are illegal.13

Gender Equality and the Role of Women in Cuban Society 6 February 2011 Page 80 of 182 Representatives from the FMC discussed the group’s prostitution prevention work. Through grassroots efforts, the FMC seeks out women with training and a passion for health brigade or social work to provide anti-prostitution education and outreach. In 1997, the FMC also worked to reintroduce the ban on pimping and introduced a human trafficking ban.

V. Sexuality and reproductive rights

Delegates learned that Cuban law currently contains many women-beneficial policies and that women are active in forging new policies. For example, reproductive choice is nested within the penal code, and all reproductive/sexual rights are geared toward ensuring the legal autonomy of women. For example, contraception and abortion have been provided to Cubans under the free national health care system since 1965.

Cuba also has a very generous maternity and parental leave policy that has developed over time as a result of the work of women’s organizations. In 2003, an FMC-proposed law revised the maternal leave law to allow both fathers and mothers the opportunity to take leave from work. Women are entitled to maternity leave with full pay beginning six weeks before the birth of a child and 12 weeks after giving birth. After that, either the mother or father is eligible for 40 weeks of parental leave at 60 percent pay.14 However, few fathers take advantage of this benefit.

Abortions performed outside the national health care system are illegal.

According to Mariela Castro Espin, the director of CENESEX, abortion was legal in Cuba before the revolution; however, it was extremely expensive. Many women sought illegal abortions at a cheaper cost, and botched abortions were a leading cause of mortality for Cuban women. In 1958, illegal abortion was the number one cause of death for women in Cuba.

After the revolution, the Cuban government put abortion under the Ministry of Public Health and criminalized all abortions performed outside the public health system to prevent deaths from postsurgical infection and malpractice. Abortion in Cuba is illegal if it is (1) done against a woman’s will, (2) performed for a fee, (3) done by untrained personnel, or (4) performed outside the Cuban public health system. With this reform in place, the Cuban mortality rate from abortion complications has dropped significantly.

Access, however, appears to be an issue, and delegates reported that when they questioned one session speaker further about abortion in Cuba, she replied, “It is legal but expensive.”

Sex education is taught in all Cuban schools.

Cuba first began teaching sex education in schools in the 1990s. Today, sex education content has been mainstreamed into all levels of Cuban education, from pre-K to the doctoral level. For example, condom use is discussed in primary school onward. Educators teach the concept that

Gender Equality and the Role of Women in Cuban Society 7 February 2011 Page 81 of 182 “no means no” and that one must say no to any nonconsensual sexual experience. The curriculum also teaches contraception versus abortion as the first line of pregnancy prevention. Educational outreach has been credited with helping to lower the country’s teen pregnancy rate. CENESEX creates the sex education curriculum promulgated throughout all levels of the Cuban education system.

Delegates learned, however, that the system has its weaknesses. As a result of varying pedagogical levels among teachers, personal prejudices against homosexuality (see the section below), for instance, can transmit to students as state-mandated sex education.

Groups are working to overcome homophobia in Cuban society.

During their meeting with Castro Espin delegates also learned that, despite some progress, significant work remains to be done in overcoming lingering machismo and homophobia in Cuban society. State agencies, including CENESEX, are performing scientific research on the roots of Cuban homophobia to see what messages will most successfully undercut discrimination and promote sexual diversity in Cuban society.

For example, to break through lingering machismo and redefine Cuban masculinity, CENESEX is producing cartoons for adolescents to help them deal constructively with new courtship norms (that is, that males should try to court—not conquer—girls). CENESEX also shows films to generate public debate on changing gender roles and sexual diversity.

A commemoration of International Day Against Homophobia continues to be held annually in Cuba. In addition, proposed changes to the 1975 Family Code seek to protect the rights of lesbian, gay, bisexual, and transgender family members and grant the right of same-sex unions.

VI. Conclusion

This paper summarizes the major findings from the AAUW delegation’s six days in Cuba. A key finding from this historic trip is that despite differences in backgrounds, politics, governments, and access to services, women in Cuba are dealing with many of the same issues as women in the United States—including work-life balance, gender stereotypes in employment and education, domestic violence, and discrimination based on sexual orientation. Additionally, as in the United States, women in Cuba have made significant progress over time but barriers remain.

In Cuba, despite laws to support gender equality in education and the workplace, women are underrepresented among the highest ranks of the government and educational leadership. Laws to promote gender equality in the home have also been ineffective in overcoming gender stereotypes and lingering machismo. Like AAUW in the United States, groups in Cuba are working passionately to break through remaining barriers so that all women and girls have a fair chance. This discussion does not end with the delegates’ return to the United States.

Gender Equality and the Role of Women in Cuban Society 8 February 2011 Page 82 of 182 A main goal of the delegation was to bring these research findings home to help seed further dialogue about the barriers facing women and girls in Cuba. The trip reinforced the importance of personal communication, as written policies do not always correspond with practices on the ground. Meeting with women Cuban leaders gave our delegates a better understanding of the issues facing Cuban women today. AAUW looks forward to continued dialogue with women leaders in Cuba and worldwide as we seek ways to promote gender equity across the globe.

1 U.S. Department of State (February 2009). 2008 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2008/wha/119155.htm. 2 Cuba Solidarity Campaign (n.d.). Women in Cuba Report. Retrieved December 15, 2010, from www.cuba- solidarity.org.uk/resources/WomenInCubareport.pdf. 3 Cuba Solidarity Campaign (n.d.). Women in Cuba Report. Retrieved December 15, 2010, from www.cuba- solidarity.org.uk/resources/WomenInCubareport.pdf; U.S. Department of State (February 2009). 2008 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2008/wha/119155.htm. 4 U.S. Census Bureau (2000). Census of the Population. Washington, DC: Author. 5 The White House Project (2009). The White House Project Report: Benchmarking Women’s Leadership. Retrieved December 15, 2010, from www.thewhitehouseproject.org/documents/Report.pdf. 6 Snyder, T. D., and Dillow, S. A. (2010). Digest of Education Statistics 2009 (NCES 2010-013). National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education. Washington, DC. 7 U.S. Government. Central Intelligence Agency (December 2010). World Factbook. Retrieved January 7, 2011 from www.cia.gov/library/publications/the-world-factbook/geos/cu.html. 8 U.S. Department of State (March 2010). 2009 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2009/wha/136108.htm. 9 U.S. Department of State (March 2010). 2009 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2009/wha/136108.htm. 10 Cuba Solidarity Campaign (n.d.). Women in Cuba Report. Retrieved December 15, 2010, from www.cuba- solidarity.org.uk/resources/WomenInCubareport.pdf. 11 U.S. Department of State (March 2010). 2009 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2009/wha/136108.htm. 12 U.S. Department of State (February 2009). 2008 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2008/wha/119155.htm. 13 U.S. Department of State (March 2010). 2009 Human Rights Report: Cuba. Retrieved December 15, 2010, from www.state.gov/g/drl/rls/hrrpt/2009/wha/136108.htm; notes provided by Cuba delegate Susan Sarfati. 14 Evenson, D. (2005). “Cuba’s Maternity Leave Extended to Fathers, but Few Dads Take It,” MEDICC Review 7(6). Retrieved December 16, 2010, from www.medicc.org/publications/medicc_review/0605/mr-features.html.

Gender Equality and the Role of Women in Cuban Society 9 February 2011 Page 83 of 182  “Citizens: Women waited, patiently  and with resignation in the quiet,  dark corners of their homes, for the  arrival of this beautiful moment,  when a young revolution breaks  their yoke and unties their wings”. 

Page 84 of 182  ´¨Citizens: Here, human bondage was  omnipresent: in the cradle, in the  colour of the skin, in sex.  You want to eradicate bondage because of  birth, by fighting to the death.  You have destroyed bondage because of  skin colour by freeing the slaves.

“Now, the time has come to free women!”

Page 85 of 182 Features of gender equity & sexuality in the Cuban transition to socialism

MSc. Rita M. Pereira .

Page 86 of 182 Women : 12% of the labour force

 70% employed as domestic servants

 3.0 % of University graduates

 59,5% of the illiterate population (1953 census)

 Life expectancy: 57,89 years of age.

Page 87 of 182  50,1 % - Women 49,9 % - Men

 Over 60 years of age – 20 %

 Acces to potable water – 98.0 %

 Electrification - 97,2 %

 Global fertility rate: 1,69 (per women)

 Women headed households – 44,9 %

 Literacy rate – 99,6% population (15 to 24 years old) Page 88 of 182 National mechanism for the advancement of women  created August 23rd, 1960 with grassroots affiliation stemming from 14 years of age.

NGO with Consultative Status with the Economic & Social Council of the United Nations.

It has legislative initiative, to propose legal structural or functional amendments, on women’s rights issues, jointly with political, social, religious, academic forces geared to channel concerns, dissatisfactions and /or complaints. Page 89 of 182  Cuba was the first country in the world to sign CEDAW on the 7th of March 1980.  The second to ratify it, on the 17th of July 1980

 Political positioning of government to comprehensively address women’s empowerment and participation, in the public and private sphere.

Page 90 of 182 Decision of the State Council of the Republic of Cuba, approved on April 7th 1997 includes the critical areas of concern contained in the Beijing Platform for Action and addresses others related to the Convention on the Elimination of All Forms of Discrimination against Women adding a chapter referring to the legislation & need for continuous improvement.

(National Evaluation Seminars to asses its fulfilment)

Page 91 of 182 Enacted in 2013 reformulated in 2017 making it extensive to grandparents.

 It comprises the ongoing assertive national policy geared to warranty sexual & reproductive rights, including free and responsible autonomy of women concerning her fertility.

 Women & Men have acces to requiered family planning services . Page 92 of 182 Year - Fathers sharing Maternity_Paternity Leave • 2006 - 8 • 2007 - 11 • 2008 - 18 • 2009 - 18 • 2010 - 23 • 2011 - 15 • 2012 - 16 • 2013 - 10 • 2014 - 12 • 2015 - 10 • 2016 - 8 ( up until September2017) • Total - 149

Source : Ministry of Labour and Social Security Page 93 of 182  National Policy of Equal Pay for Equal Work

 State civil sector: 49% (2016)

 Leadership positions from 27,18% in (1995)

 to 48,6% in (2016)

 Unemployment rate (1995) 13% decreased to 2,6% by (2016)

 33.0 % self-employed workers (2016)

Page 94 of 182  State guaranteed access to free & universal education

 Free and universal health care;

 Creation of employment opportunities;

 Enforcement of legal framework to guarantee women´s rights geared to “full exertion of equality.

Page 95 of 182  Recognised in 1974 at the 2nd FMC Congress;

 Established as a State policy in 1975 guidelines of 1st Congress of the PCC in two resolutions:

 “The education of children and youth.”  “ The full exertion of women´s equality.”

Page 96 of 182 Tabled the requirement for definite removal of discrimination against women; focussed on substantive equality

Identified importance of sexual education within comprehensive education, both in school & family context, adjusted to every stage of life.” (Mariela Castro)

Page 97 of 182 National implementation of free & universal access to educational services anchored on equal opportunities for girls, boys, women and men.

Elimination of prohibitions & legal restrictions limiting women´s access to employment.  Assurance of conditions for reproductive health, family planning & reproductive rights.  - Enactment of legal framework & constitutional rights of women to occupy any job or leadership position in labour force. ( Mayda Alvarez, 1998)

Page 98 of 182  Assertive Policy” has expressed itself in following trends in women’s placement within social-economic structure.

Page 99 of 182 Women are 67.2% of professionals & technicians in labour force (2013):-

 81,9 % Education sector  78,5 % Health sector  60,2 % Comprehensive Family Doctors  64,2 % Doctors in internationalist missions.  53,0 % Researchers within field of Science & Technology . 24% Scientific research centers are led by women 33.0 % self-employed workers (2016) Page 100 of 182  78,0 % of the prosecutors

 71.4% of Presidents of Provincial Courts

 73,7 % of the attorneys

 77.5 % of professional Judges

 66% Supreme Court Judges

Page 101 of 182  Into non qualified occupations or low skill requirement jobs as agricultural workers in state enterprises or industries.

 Into high qualified jobs such as engineering, medicine and scientific research.

Page 102 of 182  Agriculture(17.4%),  Construction (15.7%),  Mining (19.1%).

 17.22% of workers in farmers cooperatives.  Larger presence (41.5%) in service jobs (businesses, restaurants, hotels)

Page 103 of 182 65.2% of all university graduates (2017)

 41.8 % graduates technical sciences(2016)

 69,7 % graduates of Economic Sciences

 66,9 % Graduates of Medical Sciences

 53,7% Graduates Natural Science & Mathematics

 66.0 % of professors of higher education. Page 104 of 182 Parliament: 53,22% - (2nd worldwide in quantity of women. Members of the State Council – 14 or 46,6% 2 Vice- Presidents of State Council of Cuba  Women Ministers- 8 or 33%  Women Vice Ministers - 42 or 35,6%  Presidents of Provincial Government- 8 (53%)  Presidents of Municipal Government - 35.40%

 Occupational category “Leadership Position”: 46,0% Page 105 of 182 Page 106 of 182 Finance and Prices  Education  Office of the General Comptroller of the Republic of Cuba  Internal Trade  Labour & Social Security  Food Production Industry  Science ,Technology & the Environment  National Bank of Cuba

Page 107 of 182 General life expectancy : 78,45 years (2016)  Women: 80.45 / Men:76,50

 Infant mortality rate: 4.0 x 1000 born alive (2017) (1st place in the Americas)

 Coverage of family doctor /nurse program: 99.1%

 Pregnancy & Health Care service : 99.9 births take place in medical institutions.

 Coverage Vaccination program : 99.5% children protected against 13 diseases. Page 108 of 182 Maternal death rate per 100 000 births 21,4

HIV /Aids Prevalence in total population: 0.2%

Cuba is 1st country in the world to eradicate mother –child transmission of HIV & Syphilis

Page 109 of 182 The overall fertility rate is 1.70 children per woman, and the gross rate of reproduction is 0.82 daughters per woman.

“By 1965, abortion had been institutionalized as a service provided by the national healthcare system free of charge and performed by specialized medical personnel in hospitals and with the woman’s consent. The infringement of these requirements was penalized as from 1979.” (Espín, 2003 and Sosa, 2008).

Page 110 of 182  (1) healthcare is a universal right*;

 (2) all services are free;  (3) provision of care is organized by territory;  (4) community and preventative health is emphasized;  (5) tasks are divided into programs & monitored with quality indicators;  (6) the system is public.

Page 111 of 182 “Expression in Cuba of direct and indirect discrimination against women. Measures adopted to prevent, deal with and punish cases arising. Existing special temporary measures and expediency of applying others”

 (Conducted by interdisciplinary group led by  the Ministry of Justice including the Federation of Cuban Women, the Ministry of Labour and Social Security, UNJC, Office of the General Prosecutor and the People’s Supreme Court).

Page 112 of 182  the team did not find sufficient evidence to corroborate scientifically people’s perceptions of and/or statements about discrimination in the public or private spheres.

 “Omissions and gaps were observed in the statistical data that might indicate discrimination, although progress has been made in the judicial sector with the breakdown of some statistics by gender”. Further ongoing measures thereof taken to ensure registration of statistical data.

Page 113 of 182  “The legislation does not as yet incorporate a proper gender  focus, containing inclusive language and addressing behaviours identified as discriminatory and typical examples thereof.

 The draft Family Code, updated to take account of the above,  is being placed on the current legislative timetable. The Criminal Code has been amended on substantive issues and can be brought further into line with the current reality.

 The next period of the research will look at labour issues in more depth.  Its results have essentially shown that in the judicial sector it is still a challenge to obtain statistical, qualitative and scientific information that enables the phenomenon of indisputable direct or indirect discrimination to be brought to light.” Page 114 of 182  ...” to attain a fully realised, healthy, responsible and happy sexuality, in the complex and contradictory scenario of a Revolution based on cooperation, social justice and solidarity among human beings, is going through a stage of maturity that finds an expression in its new strategies and policies fostering popular participation as an exercise of democratic and sovereign power”.

 (Mariela Castro) Director of (CENESEX) National Center of Sexual Education

Page 115 of 182  Creation of the National Working Group of Sexual Education (GNTES, 1972) which in 1976 is adjunct to parliament as an advisory body.

 In 1989, this unit evolved into the National Centre for Sexual Education( CENESEX), as a State-financed institution under the ministry of Public Health.

Page 116 of 182  1979 - Professional institutionalized care of transpeople began as FMC initiative for its diagnose and treatment. (biomedical approach) with sponsorship of Ministry of Public Health.

1988- Fist sex reassignment surgery in Cuba.

 2004 CENESEX commences modification of strategy adding a human rights based approach, the promotion of a social policy, within the comprehensive care of transpeople. Page 117 of 182  In 2008, under advisory of the CENESEX, a resolution was passed legitimising specialized and free healthcare services for transgenders including the genital adequacy surgery.

 (M.Castro, 2007, 2008, 20011 and Alfonso, 2009)

Page 118 of 182  “Adoption of the Decreet-Law on Transgenders.  Consolidate the de-pathologization process of trans-identities.  Extension of the specialized care to transpeople, at all levels of the National Health System.  Establishment of this Strategy as a social policy”.  (Mariela.Castro)  Confront all types of prejudice, unhealthy cultural barriers.

Page 119 of 182 

 The judicial sector is addressing the “challenge to obtain statistical, qualitative and scientific information that enables the phenomenon of indisputable direct or indirect discrimination against women to be brought to light.

Page 120 of 182  A multisector research group of state & non state bodies, headed by the Ministry of Justice concludes [ ] “… it was possible to demonstrate that discrimination against women is inadequately understood and perceived.

 The lack of sufficient complaints against discrimination often leads to claims that it does not exist, which may be due to a lack of awareness.  Hence further measures have been taken to warranty registry of statistics thereof.

Page 121 of 182  Work guideline of the PCC National conference (2012)

 57. Confront prejudice & discriminatory conducts due to colour of skin, gender, religious beliefs, sexual orientation, territory of origin, and others that are contrary to the Constitution and laws, attempt against national unity and limit the exercise of the rights of persons.

Page 122 of 182  Family Code  Criminal Code  Constitution of the Republic of Cuba.   New Constitution resulting from national referendum  will be voted upon by population on February 24th 2019

Page 123 of 182 Drafted resulting from a National Participatory consultation process to warranty comprehensive involvement of population.

Proposals of Cubans living abroad: 2,125 60% of initial draft was modified.

Page 124 of 182

Foreign Legal Practice, Investment Opportunities and Challenges

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First published in 2016 by Except where otherwise noted, This report documents Amnesty Amnesty International Ltd content in this document is International’s work and Peter Benenson House, 1 Easton licensed under a Creative concerns through 2015. Street, London WC1X 0DW Commons (attribution, non- The absence of an entry in this United Kingdom commercial, no derivatives, report on a particular country or international 4.0) licence. © Amnesty International 2016 territory does not imply that no https://creativecommons.org/lice human rights violations of Index: POL 10/2552/2016 nses/by-nc-nd/4.0/legalcode concern to Amnesty International ISBN: 978-0-86210-492-4 For more information please visit have taken place there during the year. Nor is the length of a A catalogue record for this book the permissions page on our country entry any basis for a is available from the British website: www.amnesty.org comparison of the extent and Library. amnesty.org depth of Amnesty International’s Original language: English concerns in a country.

nor did it adopt a law on missing persons. In diplomatic relations. countries agreed to repatriate them, of conscience Iván Fernández Depestre and the absence of these legal instruments, Despite this, in September President according to Granma, the official newspaper Emilio Planas Robert were apparently relatives of the 1,600 missing persons in Obama renewed the Trading with the Enemy of the Communist Party. released unconditionally. The two men had Croatia were denied access to justice and Act, which imposes financial and economic However, before and during the Pope’s been sentenced to three and three-and-a-half reparations. sanctions on Cuba. In October the UN visit, human rights activists and journalists years’ imprisonment respectively, on the General Assembly adopted, for the 24th reported significant increases in arrests and charge of “dangerousness”.1 REFUGEES’ AND MIGRANTS’ RIGHTS consecutive year, a resolution calling on the short periods of detention. In September Prisoner of conscience Ciro Alexis By the end of the year, more than 550,000 USA to lift the unilateral embargo. alone, the CCDHRN registered 882 arbitrary Casanova Pérez was released upon refugees and migrants had transited through By the end of the year, Cuba had failed to arrests. They included three activists who completion of his sentence in June 2015.2 He Croatia towards other EU countries, with the ratify either the ICCPR or ICESCR, both of reportedly approached the Pope to discuss had been found guilty in December 2014 of assistance of state authorities providing free which it had signed in February 2008, or the human rights. The three went on hunger “public disorder” following his one-man transportation.1 Only a few hundred people Rome Statute of the International Criminal strike in detention. demonstration against the government in the made an asylum application and, by October, Court. Members and supporters of the Ladies in streets of his hometown Placetas. 37 had been granted international protection. White, a group of women calling for the Graffiti artist Danilo Maldonado Machado, The authorities failed to identify vulnerable FREEDOMS OF EXPRESSION AND release of political prisoners and greater known as El Sexto, was arrested by agents of individuals, including unaccompanied minors ASSOCIATION freedoms, and members of the Patriotic the political police in Havana while travelling and victims of human trafficking entering the Government critics continued to experience Union of Cuba, a dissident group, were in a taxi on 25 December 2014. He was country through its land borders. harassment, “acts of repudiation” regularly arrested and detained for periods of carrying two pigs with “Raúl” and “Fidel” (demonstrations led by government up to 30 hours, according to CCDHRN. The painted on their backs, which he intended to supporters with participation of state security detentions were carried out to prevent the release at an art show on Christmas Day. He 1. Hundreds of refugees stranded in dire conditions on Croatia/Slovenia officials), and politically motivated criminal activists from attending their regular Sunday was accused of “disrespecting the leaders of border (News story, 19 October) prosecutions. The judicial system remained marches and to stop them protesting. the Revolution” but was never brought to under political control. On 10 December, International Human court. He was released from detention on The government continued to control Rights Day, the political police detained 20 October. CUBA access to the internet and blocked and activists, including many in their homes, to filtered websites, limiting access to prevent their peaceful protest. They also INTERNATIONAL SCRUTINY Republic of Cuba information and criticism of the state. Activists stopped journalists from leaving their offices Cuba has not granted Amnesty International Head of state and government: Raúl Castro Ruz reported that mobile phones were without to report the story. access to the country since 1990. service during the Pope’s visit in September. Despite increasingly open diplomatic PRISONERS OF CONSCIENCE relations, severe restrictions on freedoms of ARBITRARY ARRESTS AND DETENTIONS Laws covering “public disorder”, “contempt”, 1. Cuba: Prisoner releases must lead to new environment for freedoms expression, association and movement Reports continued of government critics, “disrespect”, “dangerousness” and (Press release, 8 January) continued. Thousands of cases of including journalists and human rights “aggression” were used in politically 2. Urgent Action: Political dissident must be released (AMR harassment of government critics and activists, being routinely subjected to arbitrary motivated prosecutions, or threats of 25/1379/2015) arbitrary arrests and detentions were arrests and short-term detention for prosecution, against government opponents. reported. exercising their rights to freedom of In January, the authorities released five expression, association, assembly and prisoners of conscience along with a group of CYPRUS BACKGROUND movement. more than 50 people believed to have been The year saw significant changes in Cuba´s The Cuban Commission for Human Rights imprisoned for political reasons. The USA had Republic of Cyprus diplomatic relations. In April, President Castro and National Reconciliation (CCDHRN) requested they be freed as part of an Head of state and government: Nicos Anastasiades met US President Barack Obama during documented more than 8,600 politically agreement between the two governments to Cuba’s first attendance of the Summit of the motivated detentions of government “normalize” relations. Irregular migrants were detained for Americas, the first meeting between leaders opponents and activists during the year. On 7 and 8 January, brothers Vianco, prolonged periods in inadequate conditions. of the two countries in nearly 60 years. In Prior to Pope Francis’ visit in September, Django and Alexeis Vargas Martín, were In November, Parliament recognized the May, Cuba was removed from the USA’s list the authorities announced they would release released from prison. The three men had right to same-sex civil unions. Allegations of of countries designated as state sponsors of 3,522 prisoners, including people over 60 been detained since December 2012 and ill-treatment by law enforcement officials international terrorism. Cuba and the USA years of age, prisoners under 20 years of age were sentenced in June 2014 to between continued. reopened their respective embassies and with no previous criminal record, chronically two-and-a-half and four years’ imprisonment announced their intent to re-establish ill prisoners, and foreign nationals whose for “public disorder”. On 8 January, prisoners

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 (http://fcpacompliancereport.com/wp-content/uploads/2016/04/Cuba-4.jpg)I continue my exploration of the issues raised under the Foreign Corrupt Practices Act (FCPA) when doing or attempting to do business in Cuba. On Monday, I referred to the one person I am aware of you might consult for advice in Cuba, who is not a Cuban government ofՠcial. That person is Gregory Biniowsky, who is a Canadian by birth but has lived in Cuba for nearly 20 years. He is a Consultant with Gowlings Consulting Inc.

On the ՠrm’s website (https://gowlingwlg.com/en/canada/people/gregory-biniowsky), Biniowsky is listed as a “Havana-based business consultant for Gowling WLG. He has experience in providing strategic advice to companies assessing potential ventures in Cuba, assisting clients in navigating the complexities of the Cuban legal, political and economic systems, and has assisted in the negotiation of investment projects in Cuba on behalf of foreign investors. Gregory’s professional work in Cuba has also included working as a consultant for Canadian and European business ventures, a consultant for the United Nations development program in Cuba, a consultant overseeing development funds of the Canadian International Development Agency, and as a locally based consultant for the Canadian Embassy in Havana.”

Biniowsky is also the founding partner of Havanada Consulting Inc. which is a consulting ՠrm specializing in giving advice to philanthropists, charitable foundations and developmental NGOs who desire to undertake or fund non-proՠt projects in Cuba. I should also note that he is also the founder of the restaurant Nazdarovie, which is a Cuban-Soviet inspired eatery with a homage to all things Soviet and those Soviets who settled in Cuba during the country’s close relationship with the former Soviet Union.

As Biniowsky is a private Canadian citizen, business interactions with him directly do not implicate the FPCA. This does not mean that if you hire him as your business consultant to advise you on the steps to do business in Cuba, the FCPA will not apply to his interactions with Cuban government ofՠcials. He will be like any other agent you might retain in any other country who will interact with the government on your behalf.

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Biniowsky spoke to our state bar group. One of the things he emphasized was that corruption is not a problem in Cuba. He believed that Cuba scored well in the Transparency International – Corruption Perceptions Index (https://www.transparency.org/country/#CUB) (TI-CPI). However when I reviewed the TI-CPI I found that Cuba ranks 56 out of 168 countries on the scale, coming with a score of 47 out of 100. It is ranked just below Kuwait and just above Greece. Not exactly a singing recommendation.

Although it is not clear precisely what led to such a low score, the country was given low marks for freedom of the press, the rule of law, human development and voice and accountability. That sounds like they were penalized for being a closed, communist country without much consideration about actual bribery and corruption. However, as Biniowsky correctly noted, it has the third best score in Central and South America, which says something on its own about the perception of corruption in the entire region.

He also had some interesting insights in what the Cuban government may be looking for from an investment partner or other foreign company coming to Cuba. First and foremost, it is not simply the economic priority driving the government. The government is seeking to grant licenses to companies which will further its political and social priorities. For instance, the country is not able to feed itself and must import foodstuffs. With a national population of 11.2 million, a current annual tourist number at 3.5 million and the government looking to increase this amount to bring in hard currency, you can quickly see that increasing food production is a top priority.

Understanding these underlying issues, usually guided by a local expert, such as Biniowsky, is critical to beginning to grasp the issues you will face in doing business in Cuba. Your counter-party in all negotiations, some department or ministry of the Cuban government may not respond to what you believe are clear economic arguments.

Another key aspect is trust. This is something different from the Chinese concept of Guanxi or the system of social networks and inՠuential relationships that facilitate business dealings in China. It comes from what might be termed as a society that has been under one party rule for most of the collective memory of island residents. It is even more than your word is your bond. It is your word and your actions are your bond. It is not your contract rights but what you said you would do and then actually did going forward.

Finally, you will need to understand the Cubans are a ՠercely nationalistic people. Insulting them as little brothers and sisters or anything similar is about the quickest way to be shown the door. Lording some US laws, technology or cultural aphorism over them will simply not work. This does not mean you go hat in hand but with a large modicum of respect.

It does take patience and time to do business in Cuba. The Cuban government will be the most active business partner for the foreseeable future in almost all endeavors so there will be full FCPA scrutiny at all times. Nonetheless simply because the government will be so intimately involved in all business activity does not mean there will always be bureaucratic dogmatism at every turn.

Biniowsky emphasized there may be many things possible that you might not have considered. He provided on example that he was involved in for a US client. Recognizing there is still a commercial embargo, the client proposed meeting with the appropriate government representative to negotiate on a ‘what if’ the embargo is lifted basis. This permitted more than simply sitting across the table sizing up your potential business partner, as it allowed the parties to discuss into the weeds on many aspects of a proposed business relationship going forward.

Biniowsky ended his remarks by laying out three strategies that US companies might employ at this point. The ՠrst is to simply wait out the lifting of the embargo, however many years down the road this might be. The second is to invoke something called the 49-49 rule, which generally speaking says that a 49% investment in a company that is 49% foreign owned in Cuba could possibly meet the current embargo standard. Finally, there is something called the Herzfeld Caribbean Basin Fund, Inc (http://www.herzfeld.com/#!cuba/cs3d). which invests primarily in equity securities of public and private companies, including US-based companies, which it believes will “beneՠt from economic, political, structural & technological developments in countries within the Caribbean Basin, including Cuba.”

Doing business in Cuba can be very challenging. You will certainly need competent US counsel to advise you on trade sanctions as well as good FCPA counsel and Cuban advisors as both counselors and business advisors. And you will need all of this before you start talking to the Cuban government.

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It does take patience and time to do business in Cuba.

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Insights & Resources > Cuba, postCastro: What happens now?

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CUBA, POSTCASTRO: WHAT HAPPENS NOW?

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November 28, 2016

It’s no surprise that the death of Fidel Castro has been heralded as an enormously political event with deep historic symbolism. However, it’s not reasonable to expect this event to be a watershed moment that will throw Cuba off its course of liberalization of trade and investment that has been the hallmark of the government’s plan over the past 10 years.

Some in the international press have described the passing of Castro as “plunging the country into a time of great uncertainty.” However, from my perspective, as a Canadian lawyer with Gowling WLG who’s been living and working in Havana for over two decades, I don’t believe this to be the case.

While Castro’s death is indeed of historical signiﬁcance, and a cathartic moment for both those Cubans who support the revolution and those who are opposed to it, it won’t lead to radical change or a weakening of the Cuban government. In fact, what will continue to characterize Cuba is political stability, and a continued process of economic reform and opening the country up to foreign investment. A political transition 10 years in the making The Cuban government has been preparing for the death of Fidel Castro for the past 10 years, ever since he almost died in 2006. And in reality, a political transition has long since taken place.

Raul Castro and an inner circle of leaders have been running the country for over a decade now. Although Fidel Castro had an indirect inﬂuence on decisionmaking in Cuba during that time, he had long since allowed his brother and the rest of the Cuban leadership to make the country’s Page 136 of 182 https://gowlingwlg.com/en/canada/insights-resources/cuba-post-castro-what-happens-now- 1/3 2/4/2017 Cuba, postCastro: What happens now? | Gowling WLG decisions autonomously. Reforms not in doubt — just the pace The Cuban leadership comprises differing points of view when it comes to reform, from those who want to speed up and deepen economic reform, to those who would be more comfortable with a slower pace of reform.

However, the collective leadership (and it is indeed a collective leadership, as Raul Castro’s style of governing is based on broad consultation and institutionalization) has shown remarkable cohesion and resiliency. A focus on consensusbuilding and internal negotiation has ensured unity within the ranks. The result has been a balanced economic opening that has been accepted by all. The future of CubaU.S. relations under Trump It’s important to recognize that — notwithstanding the uncertainty created by the election in the United States of Donald Trump and other international events over the past year — the Cuban leadership will continue to set its own priorities, strategies and tactics with a signiﬁcant degree of planning and selfdetermination.

While the Cuban government is not immune to external pressures and developments (such as the crises in Venezuela and Brazil), it’s typically not overly reactive to international events, let alone exhortations by foreign powers.

The Cuban government takes the position that they survived two terms of George W. Bush, along with previous Republican presidents, and they will do the same with Trump, even if he steps back from the Obama rapprochement.

Even during the Bush years, foreign investors were doing business in Cuba, some very successfully. A Republican presidency may make business a bit more difﬁcult, but not impossible, and certainly not unproﬁtable.

There are a number of constants that will not change in Cuba:

First, the Cuban government will continue its reform process, and most likely accelerate it. Second, the country will maintain political stability and control. And third, there will be a growing number of voices in the U.S. Congress, from both Democrats and Republicans, along with the U.S. business community, decrying the U.S. embargo as anachronistic and not in line with U.S. commercial interests. It’s likely only a matter of time — counted in terms of two to ﬁve years — that the embargo will be lifted, and the Cuban economy will begin to prosper by opening up attractive investment and trade opportunities to foreign companies.

In summary, stable, slow and steady economic change in Cuba is what’s most likely to occur. Incidentally, that’s also what’s best for the Cuban people and for foreign investors who are focusing on the future by acting early to enter the Cuban market.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to speciﬁc legal concerns you may have.

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OFFICIAL VOICE OF THE COMMUNIST PARTY OF CUBA CENTRAL COMMITTEE

Cuba’s Canadian friend The Cuban people are really very sui generis. I traveled through Latin America and Europe and found here a social fabric of solidarity, which doesn’t exist in many places. The human warmth, heroism, spontaneity, the ability to laugh through difficulties, are unique features of Cubans

Author: Katheryn Felipe González (/archivo?a=1393) | [email protected] (mailto:[email protected]) august 22, 2016 17:08:46

Gregory Biniowsky’s love for Cuba is not your typical love affair. Tall, with piercing eyes, the grandson of Ukrainians, from a picturesque mountainous area of Canada, where there are more grizzly bears than people, he has spent more than half his life on the island.

It all started when the island was going through the Special Period and the world expected the Revolution would succumb to economic instability. Back then, in 1992, the young Political Science student came to Cuba to learn about the country’s reality.

Surrounded by huge controversy and distortion regarding the island, he wanted to form his “own opinion of the country” based on his observations and experiences. In order to fully appreciate Cuban reality, he asked his family not to send him any extra money while living on the island.

Biniowsky was housed in student accommodation in the east of the capital and enrolled at the University of Havana’s School of Philosophy and History.

According to what the lawyer can recall, “I came to find out just how much was true of what was said about the revolutionary process and the best way to do that was to live as close to how a Cuban did. After a year here, I could refute the idea that Cuba faced misery under a brutal dictatorship.”

As Biniowsky notes, those from his pretty little hometown are very unlikely to leave, as he did. “It’s very close to Alaska, which is like being on another planet, but I had a lot of political curiosity. I didn’t know what a sunset was like as you don’t see the horizon between the mountains,” he half smilingly adds.

Having moved from the pole to the tropics, from the cold and snow to the sticky heat, from river glaciers to beaches, Biniowsky worked as a university professor of Canadian Politics and History for a salary of 250 Cuban pesos, during which time he would travel everywhere by bicycle.

In his own words, those classes were necessary, as during the nineties, “My country became Cuba’s main trading partner and was becoming important not only for being the leading source of tourists to the island, but for the amount of investment.”

Today, Biniowsky is the Havanabased consultant for the Canadian law firm Gowling. The Havanabased consultant lawyer for worldrenowned Canadian law firm Gowling, says he feels like a Cuban, On returning to Canada, you took a PhD in Law and worked briefly at a law firm. Why did you return to Cuba? as he admires revolutionary leader Fidel Castro and is concerned about the future of the island. Photo: Michel I felt the need to show the best of the nation that welcomed me as one of its own. I spent over 14 years working as an Contreras international cooperation consultant, both for the United Nations (UN) and Canada. I had to travel around Cuba and took the opportunity to go out into the countryside and visit almost all the country’s municipalities.

I love what's inside and outside Havana. When I went to the east I was amazed how much people work. The campesinos do not believe in superficialities and I like that. Whether they are from Pinar del Río or Guantánamo, they are unassuming, authentic, courteous and share everything they have. Some people tell me that this part of Cuba is the underlying reflection of what the island was like before the Special Period.”

What does your current collaboration with the major Canadian law firm entail?

I now work on behalf of a globally renowned firm, although it has no presence in the United States, which operates in London, Moscow, Dubai, Beijing.

I would say it is the first international law firm that has recognized that Cuba is a nation with great potential, in which it is worth investing and doing business. With the aim of encouraging this, when a client arrives I advise and help him/her to understand the Cuban idiosyncrasy, whether arriving with exploratory or specific interests. I look for the best state law firms so he/she can work with ease.

Investors must learn the rules here. Cuba has its priorities very well defined and a foreign businessperson must be aware of them.

What do foreign investors most appreciate about Cuba?

The most valuable thing Cuba has is its people. The statistics speak for themselves, not only those of the government, but of the UN.

Page 138 of 182 http://en.granma.cu/cuba/2016-08-22/cubas-canadian-friend 1/3 2/4/2017 Cuba’s Canadian friend › Cuba › Granma Official voice of the PCC

For example, the average educational level is the highest in Latin America. It has more doctors, engineers and professionals than the rest of the countries in the region, thanks to many years of support to the different levels of education.

Nobody would think to establish maquiladoras (sweat shops) like those in Mexico here, but rather to create valueadded products that take advantage of the human resources. Potential in agriculture, green development and tourism also draw attention.

Moreover, it is a peaceful, safe country, with low levels of corruption, where there is no violence, drugs or organized crime, which could open up to the U.S. market if it were not for the economic, commercial and financial blockade.

For me, this unilateral policy against Cuba has two impacts. One is direct, relating to the imposition of sanctions against those who do business with the island, and the other relates to the creation of a different mentality. If the blockade didn’t exist, the country could further concentrate on resolving its internal problems, looking inward critically and optimistically.

What fuels your love for Cuba?

The Cuban people are really very sui generis. I traveled through Latin America and Europe and found here a social fabric of solidarity, which doesn’t exist in many places. The human warmth, heroism, spontaneity, the ability to laugh through difficulties, are unique features of Cubans.

I think Cuba is sometimes simplified abroad. For me, it is neither heaven nor hell. I have discovered a nation with nuances: with many admirable things, but also with errors.

Cubans have a special sense of history, identity and pride in themselves. I have sadly seen the damage that the Special Period caused to Cuban society, which has suffered from shortages due to the existence of a currency that needs greater value and wages that are insufficient. No one can deny that.

It was hard to leave that stage behind, but this was achieved and the Revolution did not collapse, as many predicted, due to the resistance and the ability of the people to collectively focus on solving problems. This has made me admire the Cubans, even more so if I compare them to societies, including my own, in which people worry about the smallest things. It is a complex country, but I love it as if it were my own.

How much do you miss Canada?

I miss many things about Canada, but I feel good in Cuba. In my hometown, everyone played ice hockey, but my sport was football and the javelin.

I miss those sports, but I have learned to love baseball, to dance salsa and to drink a little rum.

My minimal accent when speaking Spanish protects me, as from a young age I assimilated the language well. I do not feel like a foreigner, because people do not treat me as such and that has helped me not feel like an outsider. Most of my friends are Cuban and I have a beautiful daughter who is Cuban and is called Savana, because it rhymes with Havana.

I decided that she would be born and live here. When people ask me: “Gregory, where are you from?” I think that one never loses the identity of their formative years of childhood, but I’m Cuban.

Why do you feel Cuban?

Because I am proud of this country and concerned about its future. Because it makes me happy when the Cuban baseball team wins, I love talking about where we are headed or where we come from and I like Los Van Van and Carlos Varela.

Because I was greatly excited when I saw Ana Fidelia Quirot win at the World Athletics Championships in Gothenburg after her accident.

Because I admire Fidel Castro. I believe he is one of the greats of our time and I admire him for all the noble causes he has undertaken, for his efforts to bring good to the Cuban society, to combat apartheid in Africa. I am sure that history will absolve him.

Having spent over 20 years on the island, have you not thought about leaving?

I'll stay in Cuba as long as Cuba continues to be what it is: a unique country, hoping to lead the way and always defend its autonomy, which inspires people around the world, that evolves, that is safe and visionary. If this were like other countries in Latin America, full of social scourges, I would go back to my mountain in Canada.

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Page 140 of 182 http://en.granma.cu/cuba/2016-08-22/cubas-canadian-friend 3/3

Rules and Regulations Governing Cuba’s Emerging Private Sector

Page 141 of 182 Table 1

Type of % Activity

Room/Other 5 Rentals

Telecom 5 Agents JANUARY 2017 EntrepreneurialFood- 12 Activity in Cuba’s Private Sector Related

Transportati 10 on

SELF-EMPLOYMENTContractors 22 NON-STATE SECTOR ESTIMATED (Majority in LICENSESFood/ ISSUED TO BE 1/3 OF THE LABOR FORCE Lodging Sectors)

Other 56 600K Services Total Cuban Labor Force: 5.1 Million 535 496 535,000 Licensed Entrepreneurs 500,000+ * Unlicensed/Part-Time Entrepreneurs 575,000 * Private Farmers & Cooperatives 50,000 Joint Venture Employees 1,660,000 32%+ Estimated % of Cuban labor force in private sector

*Brookings Estimate 2015 2016

LICENSES ISSUED NUMBER OF LEGAL FORMS BY TYPE OF ACTIVITY OF SELF-EMPLOYMENT: 201

Room/Other Rentals Only 27% of Licenses are for Skilled Workers Telecom Agents & Professional Services Food-Related Professional Services 5%5% 11% 6% Unskilled 51% 9% Transportation 21%

20% 52% Other Services Contractors 21% (Majority in Semi-Skilled Food/Lodging Skilled Sectors)

MOST IMPORTANT SECTORS BY CO-OPERATIVE SECTOR REVENUES AND EMPLOYMENT • Co-operatives are legal entities (unlike self-employment), Restaurants ("Paladares"): which are self-governing. • 4,000+ and growing • Traditionally in agriculture, non-agricultural co-ops • Up to 50 seats each allowed since 2012, but approval process slow • State largely exiting this sector • Restricted to the 201 self-employment categories Bed & Breakfasts (“Casas Particulares”): • By statute, have access to wholesale markets and can • 28,000+ rooms (vs 62,000 hotel rooms) import/export, but not yet in practice and growing • Agricultural cooperatives (5,500) still dominate, but • Tourism growth is strong and State/Joint Venture non-agricultural cooperatives growing faster hotels are near capacity (498 approved, 329 operational): farmers’ markets, Transportation: Taxi and Private Drivers construction, transportation and light manufacturing.

TED A. HENKEN, PhD Co-author, Entrepreneurial Cuba: The Changing Policy Landscape (2015)

Page 142 of 182 Opportunities and Challenges Facing Cuba’s Entrepreneurs

CUBA HAS THE MOST EDUCATED, BUT PROFESSIONAL SERVICE LOW COST LABOR FORCE OPPORTUNITIES FOR THIS IN THE WORLD... WORKFORCE ARE VERY LIMITED

Cuba U.S. Licensed Professional Services: Computer programmers, 99.8% 99.8% Literacy accountants, translators, real estate and insurance brokers, 14 yrs 16 yrs School Life Expectancy language/music/art tutors 6.72 2.45 Doctors Per 1,000 People • Medical and educational sectors are state monopolies; 1.17% 0.90% Public Spend of IT R&D (%GDP) not only is no self-employment allowed, no foreign investment is permitted. $20-30 per month Cuban State Wages • Other professional services (engineers, lawyers, architects) $50-500 per month Cuban Non-State Wages (estimated) cannot be self employed, although "creative" use of licenses is common; many professional service cooperatives pending approval DRIVERS OF PRIVATE SECTOR BUT THERE ARE SEVERE GROWTH ARE ACCELERATING... RESTRICTIONS

• Rapidly expanding tourism; visitors reached 4 million for • No wholesale markets; all supplies and equipment must 2016, 13% over 2015 be purchased retail, brought in by travelers/”mules” or • Private restaurants, room rentals, and guides/drivers taking sourced from the black market significant market share from State entities • State monopoly on exports/imports • U.S. citizen and Cuban American visits combined exceeded • Remittance transfer costs are high (12-18%); when dollars 500,000 in 2016, second only to Canadians. are brought in and exchanged, there is a 13% charge. • Large remittance flows of cash and merchandise • U.S. banking compliance systems lagging new regulation, (estimates vary from $3-6 billion) still blocking/delaying newly allowed transfers • Remittances account for an estimated 70-80% of the • Onerous taxation of self-employed: sliding scale up to 50% capital invested in businesses. personal tax rates, only 10-40% of costs deductible; tax on • The liberalized real estate market is creating capital as every worker after 5. Cooperatives can deduct all costs and Cubans buy/sell properties; although buyers must legally pay a 15% tax on profits, so much more attractive be residents, foreign capital is flowing in. • State banks beginning to lend but still small (est. $15 million in 2016) CUBA HAS A LARGE SURPLUS POOL BUT INTERNET ACCESS OF COMPUTER SCIENCE TALENT... IS VERY LIMITED

• Graduating 4,000+ IT engineers annually, far in excess • Internet penetration is only 5% for global internet; of available positions in the State sector higher, but still small for domestic internet • As a result, many active in start-ups or as contractors • Now over 200 public wifi hot-spots, cost of $1.50/hour • They excel at "lean" software programming and (expensive for residents); residential access very restricted “off-line” mobile apps. • Most e-commerce sites blocked • Private wages for IT workers increasing, but median • There are approximately 3.5 million mobile phones for a monthly pay estimated to still be less than $500 population of 11 million, 2G network; smart phones • U.S. regulations now allow contracting of private sector increasingly common; SMS widely used IT and other professionals. • Most digital data distributed off-line by flash drive enabled “paquete” system

TED A. HENKEN, PhD Co-author, Entrepreneurial Cuba: The Changing Policy Landscape (2015)

Page 143 of 182 “CAPITALIST”CUBA:THE PRIVATIZATION OF THE CUBAN ECONOMYAND ITS UNINTENDED CONSEQUENCES

Christopher Palomo

Page 144 of 182 196 U. MIAMI INT'L &COMP. L. REV. V. 24

I. INTRODUCTION ...... 197

II. MOTIVATIONFOR CHANGE:PRIVATIZATION AS A SOLUTION...... 199

III. WHATCHANGES HAVETHE CUBAN REFORMS MADE TO THE CUBAN ECONOMY?...... 202 A. SMALL BUSINESS...... 202 C. FOREIGN INVESTMENT...... 207

IV. SUCCESSFUL PRIVATIZATION:LEGAL AND MARKET REFORMS...... 208

V. REFORMOFTHE LEGAL ENVIRONMENT ...... 209 A. CONTRACTUAL FREEDOMS ...... 210 B. ENTREPRENEURIAL DIVERSITY...... 211 C. POLITICAL STABILITY ...... 212

VI. REFORMOFMARKET INFRASTRUCTURE ...... 213 A. PROPERTY...... 213 B. SUPPLIES AND INVENTORY...... 214 C. CAPITAL MARKETS AND FINANCIAL INTERMEDIARIES……………………………………………..215

VII. THE PACE OF PRIVATIZATION...... 215

VIII. THE CUBAN PRIVATE SECTOR ...... 218 A. INEFFICIENCIES OF CUBA’S LEGAL ENVIRONMENT ...... 218

IX. INSUFFICIENCIES OF CUBA’S MARKET INFRASTRUCTURE ...... 222

A. CAPITAL...... 223 B. STOREFRONT ...... 224

Page 145 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 197

C. SUPPLIES AND INVENTORY ...... 226

X. THE SPEED OF THE REFORMS ANDITS IMMEDIATE IMPACTS ...... 227 A. POSITIVE IMPACT OF THE REFORMS TODAY ...... 231

XI. CONCLUSION ...... 233

I. INTRODUCTION

In 2008, the Cuban government announced its intention to update its socialist economic model, and develop for the

Page 146 of 182 198 U. MIAMI INT'L &COMP. L. REV. V. 24 first time asignificant private sector.1 These reforms were intended to alleviate a growing national debt and state-labor surplus by shifting significant overemployment in the state sector into the newly expanding private sector. 2 To accomplish this, the Cuban government expanded the list of private-sector business licenses (trabajo por cuenta propia) to 201 lines of work, while simultaneously laying off surplus state labor—allowing it to be absorbed into the private workforce.3 As of today, approximately 10% of the Cuban labor force has already been laid off from state employment, and another 21% is expected to follow. 4 Although, the government hoped that these recently released state workers would be able to take advantage of the newly expanded

1 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America 2(Dec. 2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf.

2 Philip Peters, Cuba’s Entrepreneurs: Foundation of a New Private Sector, American(Jul. 2012), http://www.american.edu/clals/upload/LexingtonCubaEntrepreneurs -1.pdf.

3 Carmelo Mesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 2 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf.

4 Id. at 8.

Page 147 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 199 entrepreneurial licenses and support themselves through self-employment, this has not yet been the case.

Although Cuba’s recent reforms have expanded some entrepreneurial freedoms, entrepreneurship in Cuba still remains heavily circumscribed. Currently, both practical and legal restrictions on market access are prevalent. The legal restrictions are the result of the still heavy circumscription of entrepreneurial freedoms, and the practical restrictions are the result of the unavailability of business prerequisites such as storefront, capital, supplies, and inventory. Together these inefficiencies have caused access to the Cuban private sector to be far too restricted to support the rapid influx of state labor. This paper proposes that for the privatization of a socialist economy to occur efficiently, economic reforms must first create a legal system with sufficient entrepreneurial freedoms, secondly provide its citizens with sufficient access to business prerequisites, and finally the transition of state labor and assets into the private sector must occur gradually enough to allow these freedoms to develop. By not addressing these limitations before relocating 10-31% of the labor force into the private sector, the Cuban Government has disenfranchised these workers. Today, the Cuban private sector is far too restricted to allow Cuban entrepreneurs to be successful, and this is resulting in increases of both labor exploitation and inequality.

II. MOTIVATIONFOR CHANGE:PRIVATIZATION AS A SOLUTION

Page 148 of 182 200 U. MIAMI INT'L &COMP. L. REV. V. 24

The Cuban economy operates as asocialist regime. 5 Under this system, the means of production are centrally owned and operated by the state. As a result, nearly every public service is provided by the government as opposed to private businesses. Unlike in the United States, in Cuba barbers, electricians, repairmen, vendors, etc., are all state employees. Accordingly, the Cuban government has historically been the single largest employer on the island, and is responsible for 95% of the island’s gross domestic product. 6 While some limited entrepreneurship has historically been permitted, the private sector has always been heavily circumscribed. Historically, government restrictions have limited Cuban entrepreneurs (cuentapropistas) to only 158 lines of work and forbid them from hiringemployees.7 As aresult, Cuba’s private sector has essentially been negligible in terms of employment (4- 7% of the labor force) and production (contributing only 5% to GDP).8 The problem which Cuba now faces is that many of its state-owned enterprises (SOE) are operating at a loss, and are relying on additional state subsidies to remain in

5 Id. at 2. 6 Philip Peters, Cuba’s Entrepreneurs: Foundation of a New Private Sector, American9(Jul. 2012), http://www.american.edu/clals/upload/LexingtonCubaEntrepreneurs -1.pdf. 7 Id. at 5. 8 Id. at 9.

Page 149 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 201 operation.9 Because there is no private sector to replace these inefficient SOEs, necessary public services would become unavailable without a government subsidy. As a result, the Cuban government has become trapped in a cycle of inefficient spending, which has threatened to bankrupt the nation. To resolve these inefficiencies and excessive spending, the Cuban government has turned to increased privatization as a way to reform its economic model. In 2012, the Cuban government made a series of changes to the labor code increasing the role of private business in the economy. These changes to the labor code are meant to address this over-nationalization of the economy by shifting unprofitable state businesses into the newly expanding private sector—thereby reducing government spending. Over time, Cuba hopes to grow its private sector production from 5% to 45-50% of the island’s GDP, and is prepared to lay off as many 1.8 million state workers (approximately at least 31% of the laborforce) to accomplish this.10 Altogether, over 300 articles of the labor code have been proposed for

9 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America 2(Dec. 2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf.

10 Philip Peters, A Viewers Guide to Cuba’s Economic Reforms, American 9 (May 2012), http://www.american.edu/clals/upload/LexingtonViewersGuide- 1.pdf.

Page 150 of 182 202 U. MIAMI INT'L &COMP. L. REV. V. 24 modification.11 These changes and their general goals have been outlined in a publication by the government entitled Lineamientos de la Política Económica y Social del Partido y la Revolución, and are discussed in detail below.12

III. WHATCHANGES HAVE THE CUBAN REFORMS MADE TO THE CUBAN ECONOMY?

A. SMALL BUSINESS

The private sector has long been a negligible part of the Cuban economy, and this was no accident. Since the start of the Castro era, the Cuban government instituted numerous legislation intentionally designed to limit entrepreneurship. Such restrictions were a symptom of the socialist ideology propagated by Fidel Castro, who viewed the private sector as—atbest—a necessary evil.13 However, the recent reforms the Cuban labor code deviate from this line of thinking.

11 CarmeloMesa-Lago, InstitutionalChangesofCuba’sEconomic-Social Reforms, Brookings 2 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf. 12 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America 2(Dec. 2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf. 13 Philip Peters, A Viewers Guide to Cuba’s Economic Reforms, American 4 (May 2012), http://www.american.edu/clals/upload/LexingtonViewersGuide- 1.pdf.

Page 151 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 203

Recently, the Cuban government has begun to recognize the need for privatization, in order to deal with the island nation’s abysmal economic production. 14 As a result, the government has expanded the number of available forms of private sector employment and begun to legalize what many would consider normal business practices. Some of the key legislative changes are as follows: · The self-employed may now hire employees15 · Health and safety standards extend to the private sector16 · Non-discrimination in hiring17 · Expanded seating in restaurants from 12 to 50 persons18 · Expanded private employment to 201 lines of work 19 · Government goal to increase private sector production from 5% to 45-50% of GDP Cuba’s early reforms have attempted to create a middle ground, allowing some private businesses to operate independently, while requiring others to operate as private

14 Id. 15 Id. at 12. 16 Steve Ludham, Economic Changes in Cuba-WhatAbout theWorkers?, MorningStar(Jul. 2014),http://www.morningstaronline.co.uk/a-3736- Economic-changes-in-Cuba-What-about-the-workers. 17 Id. 18 Philip Peters, Cuba’s Entrepreneurs: Foundation of a New Private Sector, American11(Jul. 2012), http://www.american.edu/clals/upload/LexingtonCubaEntrepreneurs -1.pdf. 19 Id. at 9.

Page 152 of 182 204 U. MIAMI INT'L &COMP. L. REV. V. 24 sector cooperatives. 20 These cooperatives maintain ownership of the enterprises with the state, but cede day-today operations and a portion of the profits to private workers. In total, cooperatives and otherwise, Cuban citizens are now allowed to privately operate one of 201 tightly licensedbusinesses. 21 Additionally, owners of these businesses are now permitted to hire employees.22 This is a distinction from past years, when the hiring of employees in the private sector was limited to only family members. However, despite this expansion in private sector business licenses, meaningful entrepreneurship in Cuba remains heavily circumscribed. This is because the vast majority of Cuban business licenses are for menial labor such as selling fruit, repairing umbrellas, refilling lighters, and other tasks too small for government attention. 23

20 Raúl J. Valdés-Fauli, Cuba’s PrivateSector and the NewLegal Framework, Fox Rothschild LLP (Jul. 2015), http://www.foxrothschild.com/publications/cuban-private-sector-and- the-new-cuba-legal-framework/.

21 Jose Azel, TheNew Cuba Policy: Fallacies andImplications, World Affairs Journal,http://www.worldaffairsjournal.org/article/new-cuba-policy- fallacies-and-implications. 22 Philip Peters, A Viewers Guide to Cuba’s Economic Reforms, American (May 2012), http://www.american.edu/clals/upload/LexingtonViewersGuide- 1.pdf.

23 Jose Azel, TheNew Cuba Policy: Fallacies andImplications, WorldAffairs Journal,http://www.worldaffairsjournal.org/article/new-cuba-policy- fallacies-and-implications.

Page 153 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 205

Regardless, despite these seemingly limited freedoms, the recent reforms are the strongest endorsement of private business in the Castro era.24 By gradually relieving these restrictions, the hope is that private individuals will be able to play a larger role in the nation’s economy. However, for entrepreneurship in Cuba to find long-term success, it is likely that more meaningful changes will be needed.

B. INCREASES IN PROPERTY RIGHTS

For the first time since 1959, Cubans are now allowed to legally execute transfers of title to both their homes and automobiles.25 Prior to this reform, transfersoftitle occurred under the “Permuta” system. 26 This system operated as essentially a barter between two homeowners, in which the two properties were simply traded for one another. 27 Moreover, the system was heavily regulated by the government.28 First, the two properties in question had to be of equal value.29 Second, no money could be included in the

24 Philip Peters, A Viewers Guide to Cuba’s Economic Reforms, American (May 2012), http://www.american.edu/clals/upload/LexingtonViewersGuide- 1.pdf.

25 Lina Forero,Book Note, TheCubanGovernment Approves Guidelines to Reform Cuba’s Economic Modeland Develops an ImplementationStrategy, 17 LAW AND BUSINESS REVIEWOF THE AMERICAS, 761, 764 (2012). 26 Id. 27 Id. 28 Id. 29 Id.

Page 154 of 182 206 U. MIAMI INT'L &COMP. L. REV. V. 24 transfer. 30 Finally, the government had to approve the transaction. 31 Not only was this system a source of corruption on the island, but had also effectively strangled the transfer of real property.32 This restriction on property transfers has contributed to the stagnation of privatebusiness. 33 Currently, the majority of private businesses are operated from the home, with85% of businesses having no employees.34 However, as significant growth in the private sector occurs, businesses will need the freedom to acquire property in which to grow. The new system addresses this by liberalizing the access to property and loosening government regulations on transfers. 35 All that is now required is notary approval, funding of the transaction through a state bank, and payment of a still undetermined tax.36 Most crucially, the new system allows for transfers of property for money,37 thereby removing the most crippling restriction of the

30 Id. 31 Id. 32 Id. at 764-65. 33 Id. 34 GeoffThale,Cuba’sNew Labor Code and Foreign InvestmentLaw: Implicationsfor Workers, Washington OfficeonLatin America (Jul. 2014), http://www.wola.org/commentary/cuba_s_new_labor_code_and_forei gn_investment_law_implications_for_workers. 35 Lina Forero,Book Note, TheCuban GovernmentApproves Guidelines to Reform Cuba’s Economic Modeland DevelopsanImplementationStrategy, 17 LAW AND BUSINESS REVIEWOF THE AMERICAS, 761, 765 (2012). 36 Id. at 764. 37 Id.

Page 155 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 207

“Permuta” system: the need to own property in order to acquire property. While property law in Cuba remains restrictive, the new legislation is an indication of its evolution.

C. FOREIGN INVESTMENT

One of the most significant developments in Cuban legislation is the new policy toward foreign investment. This area has the potential to rapidly update the island’s economic condition.38 However, to be successful, it must be managed correctly. Since Raul Castro took office in 2008, Cuba has gradually broadened the criteria used for accepting foreigninvestmentprojects.39 Initially, the criteria used for accepting foreign investment were principally limited to projects that would bring new capital, markets, or technology to the island. Today, Cuba has expanded these criteria to include all sectors except health care, education and the armed forces.40 Crucially, these new policies have expanded the use of foreign investment to allow for job creation and increases to national production.41 The hope is that this expansion of foreign investment will help supplement Cuba’s struggling domestic banking industry,

38 CarmeloMesa-Lago, CanCuba’sReformsSucceed?, Americas Quarterly, http://www.americasquarterly.org/content/can-cubas-economic- reforms-succeed. 39 Id. 40 Id. 41 Id.

Page 156 of 182 208 U. MIAMI INT'L &COMP. L. REV. V. 24 by introducing new avenuesofcapital and investment.42 As a result, the new policies represent a significant step in making investment in Cuba more attractive. Nevertheless, despite these changes, foreign investment has yet to make a significant impact on the island’s economy. Many factors still make Cuba unattractive to foreign investment, such as the low purchasing power of the Cuban public, a highly selective approval process, and numerous policies restricting management by foreign investors.43

IV. SUCCESSFUL PRIVATIZATION:LEGAL AND MARKET REFORMS

By studying the privatizations of the socialist economies of China and Eastern Europe, economists have developed theories as to the reasons for their success. The conclusion of this research is that for the privatization of a socialist economy to be successful, a nation must reform both its laws and market infrastructure. This theory is based on the reasoning that both the legislation and market environment developed under a socialist system are insufficient to address the circumstances that will arise in a

42 CarmeloMesa-Lago, InstitutionalChangesofCuba’sEconomic-Social Reforms, Brookings 8 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf.

43 CarmeloMesa-Lago, CanCuba’sReformsSucceed?, Americas Quarterly, http://www.americasquarterly.org/content/can-cubas-economic- reforms-succeed.

Page 157 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 209 private market.44 This is because both of these environments work together to support the private sector. While the legal environment provides the scope of freedoms to market access, the market infrastructure provides the tools necessary for participating in private enterprise. As a result, an efficient private sector cannot develop without both of these operating efficiently.

V. REFORMOFTHE LEGAL ENVIRONMENT

As shown above, a private sector cannot succeed in isolation, and requires both legal and market reforms to allow it to be successful. Legal reform is perhaps the most obvious of these changes, and is undoubtedly necessary to commence the process of privatization. However, for privatization to be successful, legal reform must do more than legalize private entrepreneurship. At a minimum, a successful private sector must promote competition and provide market actors the legal freedoms necessary to efficiently enter the market. 45 As a result, without legal reform, excessive market restriction will inevitably lead to unemployment, exploitation, and inefficient pricing.46 While numerous changes are needed, the aspects of the legal environment most in need of reform are: contract law,

44 MicheleBalfour, A PrivatizationTest:The CzechRepublic,Slovakia and Poland, 17 Fordham International L. J. 85, 85-6 (1993). 45 Id. 46 Id.

Page 158 of 182 210 U. MIAMI INT'L &COMP. L. REV. V. 24 entrepreneurial diversity, and political stability.47 This paper defines these elements as the country’s “legal environment.”

A. CONTRACTUAL FREEDOMS

Extensive contractual freedoms are essential for the private sector to function efficiently. The greater the freedoms of contract, the greater opportunity the market has to maximize the value of its assets. 48 This is because restrictive contract laws have the effect of reducing the available number of buyers and sellers. Such restrictions prevent parties from receiving the highest price available for their goods and services. Efficient prices should be determined by the market, rising and falling with supply and demand. However, for such a market to function efficiently, expansive contractual freedoms are necessary.49 As private individuals are unlikely to finance and operate entire businesses on their own, there must be legal freedom to develop the employment and investment relationships necessary to fund privatization. Contract rights need special attention during the privatization of socialist nations, due to the fact that central planning economies are operated by the state as opposed to private actors. As a result, the legal framework in this area is at risk of being overly restrictive. In fact, in some situations certain essential contractual freedoms and relationships may be entirely

47 Id. 48 Id.

49 Id. at 86.

Page 159 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 211 nonexistent or prohibited. Restricting the freedom of contract is symptomatic of socialist systems, and such restrictions reduce efficiencyinthe private sector.50 In order to attract investment and promote efficiency, such freedoms should be liberalized.51

B. ENTREPRENEURIAL DIVERSITY

Transitioning economies lacking investment and infrastructure have attempted to mitigate these deficiencies by restricting the rate at which employment is privatized. The hope is that by restricting the number of permissible forms of self-employment, the economy will be able to avoid the inefficiencies created by its lack of capital and infrastructure. While such restrictions may be well intentioned, over restriction of the permissible forms of self- employment will also create a risk of inefficient production. For an economy to be competitive, it must allow actors to efficiently enter the market.52 Limitations on the linesof work permitted to operate in the private sector are the most direct restriction on market access. 53 Without sufficient entrepreneurial diversity, there is a significant risk of unemployment.54 This is because if there are insufficient jobs available to accommodate the size of the private

50 Id.

51 Id. at 85.

52 Id. at 89. 53 Id. at 89-90. 54 Id.

Page 160 of 182 212 U. MIAMI INT'L &COMP. L. REV. V. 24 workforce, production in these segments will suffer from surplus labor. Essentially, as the supply of workers rises past the demand for their services, prices for such services will drop until excess workers can no longer afford to operate and leave the market. Accordingly, a sufficient amount of entrepreneurial diversity is necessary to allow these workers the opportunity to find new employment. While it is not necessary for a nation to privatize its entire economic production, it must privatize a sufficient portion of its economy to accommodate the private workforce.

C. POLITICAL STABILITY

Asuccessful economic transition will not occur overnight. Therefore, for privatization to be successful, it must be consistently supported by the government. Political stability is essential to ensure that the long-term goals of the transition are met and supported by the followingregimes.55 An economic reform is no small feat, and requires the full and consistent support of the government. 56 A stable government lends credibility to the hope that the reforms are not merely temporary efforts that will be overturned by the next regime. 57 Suchcredibility is necessary to attract sufficient long-term investment.

55 Id. at 91

56 Id.

57 Id.

Page 161 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 213

VI. REFORMOFMARKET INFRASTRUCTURE

In addition to these legal reforms, for a privatization to be successful it is necessary to reform a nation’s market infrastructure. 58 This is a practical reform and largely concerns the logistics necessary for privatization. For a market to function efficiently, workers must have access to the market prerequisites necessary for enjoying the newly- created entrepreneurial freedoms. 59 Without an efficient market infrastructure, market actors will not have the resources necessary for entering the private market, despite the legal freedom to do so. These resources include access to capital/financing, access to supplies and inventory, and access to property/storefront. 60 This paper defines these elements as the country’s “market infrastructure.”

A. PROPERTY

Efficient access to property is essential to encourage investment.61 As a legislature grants a private market the legal freedom to develop, it must provide it with the room to do so. Real property, particularly storefront, is essentially the garden in which a private sector is destined to grow. As a result, the unavailability of real property can indirectly place a ceiling on private sector development. Ultimately, restrictions on access to real property inhibit the ability of

58 Id. at 90. 59 Id.

60 Id. 61 Id. at 87.

Page 162 of 182 214 U. MIAMI INT'L &COMP. L. REV. V. 24 individuals to enter the market. These restrictions may result from of overly strict regulations on the transfer of real property, dilapidated infrastructure, or real property shortages. Regardless of the form, either will indirectly inhibit the ability of individuals to enter the market. 62 Accordingly, it is essential for the privatizing nation to not only make efforts to liberalize the transfer of property, but also to rebuild and revitalize dilapidated infrastructure in order to ensure that there is sufficient access to property for individuals to enter the market.

B. SUPPLIES AND INVENTORY

As an economy transitions to incorporate private enterprise, a nation must also ensure that its supply chain adapts as well. An infrastructure developed under a socialist system must be adapted to provide private workers access to a stream of supplies and inventory. Not only is a newly developing private business sensitive to shortages of business necessities, but unlike state-owned enterprises, a private business cannot rely on government subsidies and taxes to remain in operation. As a result, to promote the growth of private business, a transitioning economy must monitor the condition of its market infrastructure in order to prevent such shortages from occurring. In the early years of privatization, private wholesale markets, delivery companies, and suppliers are not likely to develop. As a result, state infrastructure should be adapted to supplement

62 MicheleBalfour, A PrivatizationTest:The Czech Republic,Slovakia and Poland, 17 FORDHAM INTERNATIONAL L. J. 85, 88 (1993).

Page 163 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 215 private sector growth. 63 Accordingly, as with access to property, without sufficient access to supplies and inventory, private enterprise will fail to develop, despite the legislative freedom to do so.

C. CAPITAL MARKETS AND FINANCIAL INTERMEDIARIES

Finally, the government must ensure that there is a banking system adequate to support privatization.64 Banking and capital are the lifeblood of economic reform, and without them, a private sector cannot develop. Access to financing is necessary not only to supplement personal savings and investment, but also to prevent inequality. Without equal access to financing, entrance to the market will be unequally skewed by access to personal wealth. Such circumstances not only restricts access to the market, but also reduces competition and production by preventing successful business models from entering the market. As a result, access to banking, financial intermediaries, and foreign investment is essential to allow all market actors an opportunity to enter the market, as opposed to only the wealthy.65

VII. THE PACE OF PRIVATIZATION

While the necessary reforms to the legal and market environment are discussed above, left undiscussed is the manner and pace at which such reforms should be

63 Id. at 89. 64 Id. at 92-93. 65 Id. at 93.

Page 164 of 182 216 U. MIAMI INT'L &COMP. L. REV. V. 24 implemented. An effective pace of privatization is not only dependent on the speed at which state labor and assets are transitioned into the private sector, but it is also dependent on the legal and market reforms that proceed and prepare for privatization. 66 The legal and market infrastructure developedin a socialist economy are not adequate to address the controversies that arise in private markets.67 As a result, it is essential to reform these environments prior to commencing privatization. 68 If state-labor and assetsare transitioned into the private sector before these reforms have been implemented, inefficiencies in the private market will develop.69 China presents an excellent example of a successful transition, as nearly 20 years of various piecemeal reforms preceded large-scale privatization of state labor and assets.70 These reforms began by utilizing private cooperatives to increase the autonomy and independence of state-owned

66 Jie Gan, PrivatizationinChina: Experiences and Lessons, Hong Kong University of Science and Technology, 2-4, (2008), http://english.ckgsb.edu.cn/sites/default/files/privatization_in_china. pdf. 67 Id. 68 SurijitS.Sidhu, Privatizationand Deregulation:Needed Policy Reforms for Agribusiness Development, 72 (1999). 69 Uner Kirdar, A WorldFit forPeople, 90 (1994). 70 Jie Gan, PrivatizationinChina: Experiences and Lessons, Hong Kong University of Science and Technology, 2-4, (2008), http://english.ckgsb.edu.cn/sites/default/files/privatization_in_china. pdf.

Page 165 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 217 enterprises. 71 Such cooperatives maintained ownership of the enterprise with the state, while distributing control and a portion of the profits to private individuals. It was not until after the proliferation of these cooperatives that subsequent reforms allowed private individuals to enter the market for themselves. 72 This gradual pace allowed China the opportunity to experiment and determine which legislation worked best to develop an effective private sector. As a result, by the time large-scale privatization of state labor and assets began in the 1990s, both the Chinese legal environment and market infrastructure were adequately prepared to deal with the needs of the market.73 That being said, deficiencies in the economic production and profitability of state-owned enterprises may present temptation to rush privatization. For example, after large-scale privatization began in the 1990s, nearly half of Chinese state-owned enterprises reported zero or negative equity, and the others were significantly less productive than similar privately-owned businesses. 74 This result is consistent with the economic theory that private individuals are more efficient owners of assets than the state.75 This is due in part to the fact that state-owned enterprises suffer from reduced incentives to improve their operating

71 Id. at 2-3. 72 Id. 73 Id. at 12-13. 74 Id. 75 MarkoSimoneti, Efficiencyofmass privatizationvs. gradual privatization: Owner and seller effects on performance of companies in Slovenia, cerge-ei, https://www.cerge-ei.cz/pdf/gdn/rrc/RRCII_15_paper_01.pdf.

Page 166 of 182 218 U. MIAMI INT'L &COMP. L. REV. V. 24 efficiencies,social responsibilities,and pricing models.76 As a result of these reduced incentives, there is temptation to transfer state labor and assets to the private sector as quickly as possible. However, such temptation must be controlled. As stated above, an effective privatization is not only dependent on the speed at which state labor and assets are transitioned into the private sector, but it is also dependent on the legal and market reforms that proceed and prepare for privatization.77 As a result, while economic production may benefit from private ownership, the privatization of state labor and assets should be restricted until both the legal and market infrastructure have been sufficiently adapted to support the transition. Without these reforms, private business will not have the legal and infrastructural prerequisites necessary to function efficiently, effectively making the economic advantages of private ownership unobtainable.

VIII. THE CUBAN PRIVATE SECTOR A. INEFFICIENCIES OF CUBA’S LEGAL ENVIRONMENT

As of now, the legal environment in Cuba is too restrictive to support a successful private sector. Cuban legislation not only limits the number of permissible forms of self-employment, but also directly restricts the growth of private business by limiting both investment and the

76 Id. 77 Jie Gan, PrivatizationinChina: Experiences and Lessons, Hong Kong University of Science and Technology, 2-4, (2008), http://english.ckgsb.edu.cn/sites/default/files/privatization_in_china. pdf.

Page 167 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 219 acquisition of real property. As discussed above, for a private sector to be successful, a socialist nation must reform its legal environment prior to expanding the private workforce. However, the Cuban government has failed to do this. Despite identifying over 300 articles of the legislative code in need of reform to support privatization, as of 2013 the Cuban government has implemented only 46 of them. 78 Despite these minimal legislative reforms, Cuba has proceeded to rapidly transition both state labor and assets into the private sector. As of today, approximately 10% of Cuban state labor has already been transitioned into the private market, and another 21% is expected to follow.79 Ultimately, both Cuba’s legal and market environment are not prepared to support this large influx of labor. Currently, Cuban workers are limited to 201 types of entrepreneurial licenses, the majority of which are for menial activities such as wrapping buttons, shining shoes, cleaning spark plugs, peeling fruit, selling fruit, and repairing umbrellas. 80 As privatization and state layoffsinCuba continue, more and more workers will be forced to enter the

78 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 2 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf. 79 Id. at 8. 80 Jose Azel, TheIllusions of theCuban Reforms: Castro Strikes Out, World Affairs Journal(Aug. 2013), http://www.worldaffairsjournal.org/article/illusion-cuban-reform- castro-strikes-out.

Page 168 of 182 220 U. MIAMI INT'L &COMP. L. REV. V. 24 private sector.81 However, as aresultofCuba’s restrictive legal environment, these workers are left with no other alternative than to support themselves through menial labor. Cuba has one of the best education systems in Latin America. Limiting workers to this short list of menial tasks unfairly limits workers’ earning potential by failing to make use of this investment in education. Cuba has planned to grow the private sector to sustain as many as 1.8 million Cuban workers (approximately at least 31% of the labor force).82 Is it truly efficient for such a large percentage of workers to work as shoe shiners and fruit vendors? These restrictive policies not only create a ceiling on private sector production, but are also likely to lead to an increase in unemployment. This is because Cuba’s lack of entrepreneurial diversity confines an ever increasing segment of the workforce into a narrow range of employment options. If not addressed, this is likely to lead to a surplus of labor in these lines of work. As stated above, labor surpluses are responsible for market inefficiencies, and will artificially lower the price of goods and services, leading

81 GeoffThale,Cuba’sNew Labor Code and Foreign InvestmentLaw: Implicationsfor Workers, Washington OfficeonLatin America (Jul. 2014), http://www.wola.org/commentary/cuba_s_new_labor_code_and_forei gn_investment_law_implications_for_workers.

82 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 8 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf.

Page 169 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 221 to unemployment. As a result, a sufficient amount of entrepreneurial diversity is necessary not only to allow these workers the opportunity to find a job, but instead to find employment that will allow Cuba to maximize its production. Unfortunately, this lack of entrepreneurial diversity is indicative of Cuba’s desire to limit private sector production. This reasoning is supported by the fact that there is Cuban legislation limiting the ability of private business owners to contract with employees and foreign investors. As of today, private businesses in Cuba are taxed so as to make hiring of any employeesprohibitive. 83 In fact, as a result of such restrictions, as many as 85% of workers in the Cuban private sector are self-employed.84 Additionally, the government has restricted private sector production by limiting access to foreign investment, forcing Cuban entrepreneurs to rely on an already struggling domestic financing industry. Despite the expansion of allowable foreign investment to include criteria such as job creation and increases in national production, foreign investment in Cuba has failed to make a

83 Philip Peters, Cuba’s Entrepreneurs: Foundation of a New Private Sector, American11(Jul. 2012), http://www.american.edu/clals/upload/LexingtonCubaEntrepreneurs -1.pdf.

84 GeoffThale,Cuba’sNew Labor Code and ForeignInvestmentLaw: Implications forWorkers, Washington OfficeonLatin America (Jul. 2014), http://www.wola.org/commentary/cuba_s_new_labor_code_and_forei gn_investment_law_implications_for_workers.

Page 170 of 182 222 U. MIAMI INT'L &COMP. L. REV. V. 24 significant contributiontothe island’s economy. 85 This failure is due in part to restrictive government selection criteria and numerous policies disfavoring foreign ownership. 86 While restrictions such as these are likely inspired by Cuba’s history of socialism, by reforming its legal environment in this manner, the Cuban government has effectively limited the private sector’s development.

IX. INSUFFICIENCIES OF CUBA’S MARKET INFRASTRUCTURE

In addition to its legal restrictions, Cuba’s market infrastructure also indirectly restricts worker access to the market by obstructing access to business necessities such as storefront (real property), capital, supplies, and inventory. Finding funding and capital are often any entrepreneur’s first obstacle to entering the private market, and entrepreneurs in Cuba are no different. Despite the largely menial nature of private employment currently permitted, the need for storefront, capital, supplies, and inventory is still a prerequisite for business. Accordingly, the current scarcity of these business inputs acts as a major obstacle to entering the Cuban market.

85 CarmeloMesa-Lago, CanCuba’sReforms Succeed?, Americas Quarterly, http://www.americasquarterly.org/content/can-cubas-economic- reforms-succeed. 86 Id.

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A. CAPITAL

Currently, access to financing in Cuba is grossly insufficient to support widespread private enterprise. From 2011 to 2013, as little as 218,400 loans were granted by the Central Bank of Cuba, eachaveraging amere $141. 87 Additionally, only 0.2% (4368 loans) of these loans went to self-employed workers. 88 Capital is the lifeblood of the market, and without sufficient access to credit, businesses will fail to enter or remain in the market. As a result, many Cuban workers have been forced to rely on personal savings to supplement this lack of capital. Unfortunately, Cuban workers suffer from chronically low wages, with the average Cubancitizen earningroughly $20 per month. 89 Yet, depending on the enterprise, starting a small business in Cuba could require an initial investment of $220 to $6,000 (excluding property rental expenses).90 Accordingly, it could

87 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 8 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf. 88 Id. 89 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America 2(Dec. 2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf.

90 RicardoAmack, Suppling Growth: Purchasing Challenges and Opportunities forCuban Entrepreneurs, The Cuban Study Group (Jul. 2015),

Page 172 of 182 224 U. MIAMI INT'L &COMP. L. REV. V. 24 take some workers as much as 25 years worth of salary ($6000) to begin a private business, based on savings alone. Some workers have been able to partially circumvent this problem by receiving funding from abroad. This funding is in the form of remittances from family members in other countries—commonly from the United States. As a result, workers fortunate enough to receive remittances have access to a limited form of financing that is unavailable to other citizens. Accordingly, they can utilize these subsidies to fund their businesses. This access to foreign capital provides these workers with a tremendous competitive advantage, and is partly responsible for increases in income inequality. However, regulations limiting the amount and size of remittances prohibit these subsidies from becoming a genuine solution to significant capital needs, leaving even some of these foreign-subsidized entrepreneurs in need of additional financing.

B. STOREFRONT

For those workers who are able to obtain access to capital, the expense and unavailability of storefront may still prevent them from entering the market. In Cuba, access to storefront is restricted by overbearing regulations on the transfer of real property. For years in Cuba it was not possible to sell real property at all, transfers of real property could only occur by essentially trading two properties of

http://www.cubastudygroup.org/index.cfm/files/serve?File_id=37d8e 2c5-96bc-4b33-8312-963189f8a4df.

Page 173 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 225 equal value (the Permuta system). 91 While reforms have alleviated this restriction—allowing regulated sales of real property for the first time—Cuban property law remains restrictive. For example, Cuban real property law limits the amount of property a citizen may own, prohibits real estate lawyers from operating on the island, prohibits foreigners from purchasing real property, and requires notary approval prior to any sale.92 Additionally, even when these hurdles can be overcome and a transaction is feasible, the majority of Cuba’s property is in disrepair. A2013 survey studying the condition of structures in Havana estimated that 58% of the city’s structures were in poor or critical condition. 93 The additional expense of repairs, as well as government taxes, fees, and restrictions on construction, make useable storefront harder to acquire. As a result, despite the apparent efforts of the Cuban legislature to expand the private sector, meaningful entrepreneurship is forced to try to flourish from homes and street carts.

91 Lina Forero,Book Note, TheCubanGovernment Approves Guidelines to Reform Cuba’s Economic Modeland Develops an ImplementationStrategy, 17 LAW AND BUSINESS REVIEWOF THE AMERICAS, 761, 764 (2012). 92 John Arlidge, Cuba,Homeofthe World’sOddest PropertyMarket, FinancialTimes (2013),http://www.ft.com/cms/s/2/95d3017e-d364- 11e2-b3ff-00144feab7de.html#slide0.

93 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 14 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf.

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C. SUPPLIES AND INVENTORY

Finally, even if an aspiring private worker is able to obtain access to capital and acquire a storefront, their access to the private market is still restricted by the unavailability of supplies and inventory. According to Cuban entrepreneurs, “the most significant problem facing small business on the island is the cost and availability of supplies.”94 The lack of access to wholesale markets, dismal domestic production, and high import duties make acquiring necessary business inputs costly and difficult. In fact, one study found that the most affordable way to acquire necessary business prerequisites, is for workers to purchase their supplies at state-run dollar stores.95 However, the lack of product variety and quality at these stores often causes Cuban workers to struggle to acquire the supplies they need—forcing them to look outside the island for necessities. As a result, despite the expansion of entrepreneurial freedoms, the unavailability of necessary business inputs restricts worker access to the market.

94 RicardoAmack, Suppling Growth: Purchasing Challenges and Opportunities forCubanEntrepreneurs, The Cuban Study Group 2 (Jul. 2015), http://www.cubastudygroup.org/index.cfm/files/serve?File_id=37d8e 2c5-96bc-4b33-8312-963189f8a4df.

95 Id. at 3.

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X. THE SPEED OF THE REFORMS ANDITS IMMEDIATE IMPACTS

Regardless of what the recent legislation means for the future of Cuba’s economic ideology, the reality is that these reforms have created various challenges for Cubans living on the island today. These challenges have been caused by Cuba’s inability to synchronize the growth of the private labor force with the pace of legislation. Despite extensive restrictions to market access, the number of workers entering the private workforce has been increasing. As stated above, since 2013, over half a million state workers have been laid off (10% of the labor force) and over a million more are scheduled to follow (21% of the labor force).96 This inability to liberalize the legal and market environment prior to transitioning state labor into the private sector has placed large numbers of Cuban workers in a private sector lacking sufficient legal development. Essentially, this has created a blind spot of Cuban workers with needs left unaddressed by the gradual pace of reform. Due to the lack of a developed private sector in Cuba, there are insufficient private businesses waiting to hire discharged workers. As a result, these workers are left with no other recourse to find work than to apply for one of the 201 entrepreneurial licenses—and start their own

96 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings 8 (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf.

Page 176 of 182 228 U. MIAMI INT'L &COMP. L. REV. V. 24 businesses.97 This rapid growth in entrepreneurship ignores the realities of Cuba’s poor infrastructure, lack of investment capital, and lack of entrepreneurial diversity, all of which are necessary for private enterprise. As a result, critics argue that Cuban legislation has left workers in danger of exploitation and increased income inequality.98 Income inequality in Cuba has been rising since the implementation of the reforms in 2010.99 This rise in income inequality has been connected to unequal access to business prerequisites such as capital, supplies, and storefront. Citizens fortunate enough to receive remittances and supplies from family abroad have potentially insurmountable advantages over their competitors. 100 Not only do these remittances and care packages serve as a form of financing that is unavailable to other citizens, but each US dollar they receive is worth nearly 25 times more than the Cuban peso. 101 As a result, inequalities in access to financing have ledtoinequality in access to business inputs, and ultimately, to inequality in access to the private market. Despite the fact that Cuba has attempted to initiate reforms

97 Jose Azel, TheNew Cuba Policy: Fallacies andImplications, World Affairs Journal (2015),http://www.worldaffairsjournal.org/article/new-cuba- policy-fallacies-and-implications. 98 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America (Dec.2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf. 99 Id. 100 Id. 101 Id.

Page 177 of 182 2016 PRIVATIZATION OF THE CUBAN ECONOMY 229 in micro credit, bank accounts, and wholesale markets to alleviate these issues, these reforms have been grossly insufficient. 102 As more workers are forced to trade state employment for private entrepreneurship, the price and competition for these already dwindling business resources will continue to increase. Potentially, this can create a circumstance where private sector success would be more dependent on whether or not a business can receive support from abroad, than on the merits of its own goods and services. In fact, there is already concern that the gradual pace of reform has been insufficient to prevent labor injustice.103 The restrictions on market access and the increases in the private workforce have dangerously increased competition for employment. As desperation for work emerges, private workers are placed at risk of exploitation. Cuba has long been accused of numerous international labor rights violations, even before the institution of these economic reforms.104 Such violations are likely to worsen as increased competition creates greater incentives for employers to

102 CarmeloMesa-Lago, InstitutionalChanges of Cuba’sEconomic-Social Reforms, Brookings (Aug. 2014), http://www.brookings.edu/~/media/research/files/papers/2014/08/ cubas-economic-social-reform- mesalago/cubaseconomicsocialreformsmesalago.pdf. 103 GeoffThale, Labor Rightsand Cuba’sEconomic Reforms, Washington office on Latin America 2-4 (Dec.2013), http://www.wola.org/sites/default/files/Labor_Rights_and_Cubas_Ec onomic_Reforms.pdf. 104 Id. at 9.

Page 178 of 182 230 U. MIAMI INT'L &COMP. L. REV. V. 24 exploit their workers.105 While Cuba does have a national labor union to help regulate these concerns, most commentators feel it is insufficient. The Central de Trabajadores de Cuba (CTC),106 Cuba’s national labor union, primarily operates as a political instrument.107 The CTC does not engage in collective bargaining over wages, hours, or terms of employment. Instead, the CTC merely reports worker grievances to the government.108 As a result, critics argue that the CTC “will need to evolve in recognition of the ways in which [private] workers’ interests diverge from the interests of the state.” 109 Although the long-term goals of the Cuban reforms are yet to come, there is a need to address the immediate concerns of workers currently entering the private sector. The inability to liberalize the legal and market environment prior to transitioning state labor into the private sector has exposed Cuban workers to increased inequality and exploitation. The challenges of private enterprise, especially on an island with poor infrastructure and supplies, create substantial uncertainty about the success these new entrepreneurs will have. As more workers are forced to trade state employment for private entrepreneurship, they put at risk the modest wages sustaining them. As a result, there must be sufficient legal and market reforms to allow these workers to be successful.

105 Id. at 4. 106 Id. at 6-7. 107 Id. at 7. 108 Id. at 7-8. 109 Id. at 9.

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A. POSITIVE IMPACT OF THE REFORMS TODAY

Despite these deficiencies, the recent reforms have also had both direct and indirect benefits for the Cuban economy. Most notably, the policies have reduced the government’s inflated payroll. Prior to these reforms, the Cuban government—like most other socialist states—was responsible for nearly every economic activity. As a result, prior to these reforms, the government had been forced to subsidize inefficient SOEs in order to ensure that necessary services remained available to the public. The gradual emergence of a private sector has reduced the need for government subsidies by continuing to provide public services after unprofitable SOEs are terminated. 110 As a result, these reforms have not only saved the Cuban government money, but have also promoted efficiency by replacing, as opposed to subsidizing, inefficient SOEs. Under the central planning of Cuba’s previous model, market forces, such as competition, were severely restricted.111 By expanding the private sector, the new model allows for the promotion of efficiency through increased competition. This rationale is based on the “invisible hand” economic theory, which states that competition will cause bad businesses to close and successful ones to succeed. Ending government subsidies, which until now had been

110 Philip Peters, A Viewers Guide to Cuba’sEconomicReforms, American 16 (May 2012), http://www.american.edu/clals/upload/LexingtonViewersGuide- 1.pdf. 111 Id. at 5.

Page 180 of 182 232 U. MIAMI INT'L &COMP. L. REV. V. 24 keeping several inefficient SOEs afloat, will force inefficient firms to find ways to reduce costs and promote efficiency. Accordingly, the Cuban government has forced SOEs to either turn a profit or close their doors. 112 While such a measure seems harsh, it is essential for Cuba to trim the fat. By subsidizing poor business models, it is preventing progress and efficiency. Over time, Cuba should expect to benefit from the effects of increased competition in the market.113 Finally, the privatization reforms have provided the Cuban government with a new stream of taxable income— the newly licensed businesses. 114 In 2011, the Cuban government instituted a revised tax policy that would target the cuentapropistas (the Cuban entrepreneurs) directly.115 The policy taxes entrepreneurs at roughly 35%.116 This number is composed of a 10% income tax and a 25% “contribution” to the social security system.117 Accordingly, this expansion of the private workforce has provided the Cuban government with yet another tool to reduce its deficit.

112 Id. at 2. 113 Id. at 2-5. 114 Lina Forero,Book Note, TheCuban GovernmentApproves Guidelines to Reform Cuba’s Economic Modeland Develops an ImplementationStrategy, 17 L. AND BUSINESS REVIEW OF THE AMERICAS, 761, 763-64 (2012). 115 Id. 116 Id. 117 Id.

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XI. CONCLUSION

Ultimately, creating a successful institutional environment in Cuba will take time. Up to now, Cuba’s reforms have been insufficient to support the growth of a private sector. The Cuban reforms have failed to address the legal and practical concerns preventing market access. The most notable of these is the lack of entrepreneurial diversity and the unavailability of business prerequisites such as storefront (real property), capital, supplies, and inventory. Ultimately, although Cuba claims to intend to promote private sector growth, its failure to synchronize the growth of the private sector with the pace of legislation has in fact stifled its development. By shedding its excess state labor and relocating those workers to the private sector, before relieving the practical barriers to market entry, Cuba has exposed its workers to exploitation and income inequality. Ultimately, while the reforms in Cuba are a step in the right direction, for the Cuban private sector to experience long- term success, more reforms are needed. Asuccessful private sector requires a fertile environment in which to grow and develop. Without a sufficiently liberalized legal and market infrastructure, the private market will not be able to succeed. As a result, Cuba should not only limit the continued growth of the private workforce—until greater legislative reforms have been enacted—but should also initiate legislation to address the current needs of its private workers.

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