Cuba's Post-Cold War Strikeout, 18 Fordham Int'l L.J
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University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 1994 Out in Left ieldF : Cuba’s Post-Cold War Strikeout Berta E. Hernández-Truyol University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the International Law Commons Recommended Citation Berta Esperanza Hernández Truyol, Out in Left ieF ld: Cuba's Post-Cold War Strikeout, 18 Fordham Int'l L.J. 15 (1994) This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES OUT IN LEFT FIELD: CUBA'S POST-COLD WAR STRIKEOUT Berta Esperanza Herndndez Truyol* Socialismo o Muerte.1 Sociolismo o Muerte.2 CONTENTS Introduction ........ ............. ............. ........... 16 I. Cuba: A Third World Country' ..................... 21 A. Health, Education, and Welfare ................. 24 1. General Population ..................... 24 2. Women in Cuba ............................. 30 * Professor of Law, St. John's University School of Law; Visiting Professor of aw, Georgetown University Law Center, A.B., 1974, Cornell University; J.D., 1978, Albany Law School of Union University;, LL.M., 1982, New York University School of Law. This Article began as a talk presented during a panel discussion, chaired by Professor Henry Richardson III, on the "Effects of the New World Order on the Third World" at the 1993 Annual Meeting of the American Society of International Law. I would like to give very special thanks and dedicate this Article to my parents, Edelmiro and Eduvigis Truyol Hernfindez, who encouraged this research project and provided invaluable moral support. In addition, my father, an accountant and an econ- omist, and my mother, a Cuban lawyer, provided invaluable substantive and research assistance for this project. To that extent, it is theirs as much as it is mine. The Faculty Research Program of St.John's University School of Law provided support for this Arti- cle. 1. Translated as "Socialism or Death," this is Fidel Castro's revolutionary slogan. SeeJuAN CtARY, Mrro Y REAuDAD, TESTiMONIOS DE UN PUEBLO 539 (2d ed. 1992) [here- inafter Mrro]. 2. Translated as "Cronyism/Buddy-system or Death," this play on Castro's slogan derives from the word "socio," meaning "buddy" or "friend." It is commonly used by the Cuban people to describe the informal system in place in time of shortages to re- solver, or make do. It refers to a "you scratch my back and I'll scratch yours" system. For example, a shopkeeper might "trade" some food that is scarce but in high demand, such as meat, to someone to fix an appliance on his or her own time. In their eyes, both parties win. The technician gets food by doing "private" work which is illegal in Cuba. The shopkeeper gets the appliance fixed without having to wait for several months until the government worker appears. Of course, this gives an advantage to those who work in tradeable commodities. People with nothing to trade, therefore, lose access to the illegal trade in food and services. See Mrro, supra note 1, at 284-85, 288, 293, 295-96, 452, 452 n.25, 478. 16 FORDHAMINTERWATIONAL LAWJOURNAL [Vol. 18:15 B. The Economic Picture in Cuba ................. 32 II. Has the Cold War Ended? The Case of Cuba ....... 35 A. Rhetoric ......................................... 37 B. Regulations ...................................... 39 1. The Torricelli Law........................... 39 2. The Cuba-Russia Trade Pacts ................ 44 C. Radios: Lines of Communication ............... 47 III. Cuba: The Economic Impact of the End of the Cold W ar ........................................... 50 A. General Overview of the Post-Cold War Global Economic Climate ............................... 50 B. Cuba's Economic Crisis ......................... 52 IV. The Crisis of Legitimacy ............................ 70 A. Failure to Follow the Rule of Law ............... 71 B. Denial of Internationally-Recognized Individual. Rights ........................................... 77 1. Political Participation ........................ 77 2. Personal Security; Freedoms of Expression, Association and Assembly; Right of Privacy 80 C. Lack of Equality of Opportunity ................. 94 1. The General Population ..................... 94 2. Women in Cuba: A Myth of Equality ........ 98 Conclusion ................................................ 107 INTRODUCTION The status of Cuba, the sole Soviet-sphere socialist survivor 8 in the so-called post-Cold War era, has generated great interest 3. Throughout this work, the Author refers to the present climate as the "so- called" post-Cold War period for two reasons. First, as the second part of this Article posits, the Cold War is far from over with respect to Cuba. Second, recent events raise questions over whether one may conclusively state that the Cold War has ended and the Cold War-mentality has been shed. For example, North Korea recently withdrew from the Nuclear Nonproliferation Treaty. See, e.g., David E. Sanger, Citing Caution, South Korea Puts Troops on Alert, N.Y. TIMES, Mar. 14, 1993, § 1, at 6. But see Alan Riding, U.S. and North Korea Agree to Build on NucearAccord, N.Y. TIMES, Oct. 18, 1994, at Al (discuss- ing U.S.-North Korea accord, in which North Korea pledged to rejoin Nuclear Non- proliferation Treaty). In Russia, there has been a revival of communist opposition to democratic rule. See, e.g., Serle Schmemann, Yeltsin, AskingAid, Talks of Communist Revi- val, N.Y. TimEs, Mar. 17, 1993, at A6; Serle Schmemann, Crisis in Moscow; Hard-Liners Plan a Court Challenge to Yeltsin's Move, N.Y. TIMES, Mar. 22,1993, at Al; Reed et al., Now, the HardlinersAre Zeroing in on Yeltsin's Foreign Policy, Bus. Wy-, Jan. 18, 1993, at 48 ("hardliners are, [calling for] anti-American policies, including barriers on American investment and a return to Cold War military policies"); Michael R. Gordon, U.S. and 1994] CUBA'S POST-COLD WAR STRIKEOUT Depending on political leanings, the Cuban situation is charac- terized either as a magnificently successful or a completely failed experiment. Economists, human rights activists, and sociologists alike, often using unsubstantiated data, take sides and sing the praises and foibles of the system. Task forces have been formed to create a "Blueprint for Re- construction"4 in anticipation of the imminent fall of Fidel Cas- tro, who came to power in 1959,' and whose fall has been seen as "imminent" for over thirty years. Articles about Cuba and its economic and human rights conditions appear daily in the ma- jor papers. These conditions range from a portrait of a thriving tourist industry to a landscape of epidemics caused by malnutri- don and ox-driven plowing due to lack of fuel; from cutting-edge medical treatment centers to a country where persons are not free to speak, travel, or vote. While all agree that the global recession has hit Cuba force- fully, a major debate now flourishes with respect to the U.S. em- bargo waged against its neighboring Caribbean island.6 Propo- Russian Subs in Collision In Arctic Ocean Near Murmansk, N.Y. TIMES, Mar. 23, 1993, at A13 (U.S. attack submarine collides with Russian missile-carrying submarine in Arctic Ocean as U.S. sub was shadowing Russian sub). Finally, China raised military spending despite a budget deficit. See Nicholas D. Kristof, China Raises Militay Budget Despite Dficit, N.Y. TIMES, Mar. 17, 1993, at A9. 4. See THE CUBAN ECONoMY. BLUEPRINT FOR RECONSTRUCTION (Manuel CereiJo ed., 1992); ANTONIO JORGE, A RECONSTRUCTION STRATEGY FOR POST-CASTRO CUBA (1991). 5. MARIFELi P9REZ-STABLE, THE CUBAN REVOLUTION 3-5 (1993) [hereinafter P9RFZ- STABLE, CUBAN REvOLUTION]. 6. In 1962, President Kennedy pronounced Cuba to be a hostile nation and, dur- ing peacetime, instituted a complete embargo on the island. This was possible under the Trading With the Enemy Act of 1917 ("TWEA"), 50 U.S.C. app. § 5 (1988), which allowed the President to act during peacetime and wartime emergencies. In 1977, the act was narrowed to apply only in wartime. Act of December 28, 1977, Pub. L. No. 95- 223, tit. I, §§ 101(a), 102, 103(b), 91 Stat. 1625, 1626 (codified at 50 U.S.C. app. § 5(b)). However, the amendment acted prospectively, and provided that any emer- gency declared prior to the enactment of the amendment could be extended year by year, thus permitting the grandparenting of the Cuban embargo. Id.; see Tagle v. Re- gan, 643 F.2d 1058, 1059-60 (5th Cir. 1981). Every year since the passing of the amend- ment, Presidents Carter, Reagan, Bush, and Clinton have extended the embargo in the national interest. Presidential Determinations No. 88-22, Sept. 8, 1988, 53 Fed. Reg. 35,289; No. 89-25, Aug. 28, 1989, 54 Fed. Reg. 37,089; No. 90-38, Sept. 5, 1990, 55 Fed. Reg. 37, 309; No. 91-52, Sept. 13, 1991, 56 Fed. Reg. 48,415; No. 92-45, Avg. 28, 1992, 57 Fed. Reg. 43,125; No. 93-38, Sept. 13, 1993, 58 Fed. Reg. 51,209; Memoranda of the President, Sept. 8, 1978, 43 Fed. Reg. 40,449 (1978); Sept. 12, 1979, 44 Fed. Reg. 53,153 (1979); Sept. 8, 1980, 45 Fed. Reg. 59,549 (1980); Sept. 10, 1981, 46 Fed. Reg. 45,321 (1981); Sept. 8, 1982, 47 Fed. Reg. 39,797 (1982); Sept. 7, 1983, 48 Fed. Reg. 40,695 18 FORDHAMINTERNJATIONAL LAWJOURNAL [Vol. 18:15 nents of sustaining the embargo argue that it has nearly achieved its purpose by strangling Cuba's asthmatic economy. Conversely, opponents of the embargo point to the critical eco- nomic condition of the island, which has rendered Cuba unable to feed its hungry or treat its sick. The opponents further argue that the embargo is a Cold War relic that has outlived its useful- ness to the Western world, while providing Castro with an excuse to blame the "yankee imperialists" for the economic ills of Cuba.