Cuba in 2021 A Central European Point of View By Martin Palouš

VÁCLAV HAVEL PROGRAM FOR HUMAN RIGHTS & DIPLOMACY

CUBA IN 2021 A Central European Point of View Martin Palouš

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

ABOUT THE AUTHOR Martin Palouš is a Senior Fellow at Florida International University’s School of International and Public Affairs (SIPA) and Director of the Václav Havel Program for Human Rights and Diplomacy.

Born in Prague on October 14, 1950, Professor Palouš studied Natural Science, Philosophy and International Law. In 1974, he received a Doctorate in Natural Sciences and went on to earn a Higher Doctorate in Political Science/Philosophy at Charles University (Prague), where he became an Associate Professor. He also completed his PhD in International Law in 2007 at Masaryk University in Brno, Czech Republic, with a dissertation entitled “Freedom of Expression in the European Court of Human Rights”.

One of the first signatories of Charter 77, Professor Palouš served as spokesman for this dissident human rights group. A founding member of the Civic Forum (November 1989), he was elected to the Czechoslovakian Federal Assembly in 1990 and became a member of its Foreign Affairs Committee. He joined the Ministry of Foreign Affairs of Czechoslovakia as adviser to Minister Dienstbier and was Deputy Minister of Foreign Affairs from October 1990 to October 1992. From October 1998 through September 2001, he served as Deputy Minister of Foreign Affairs of the newly formed Czech Republic, and was then asked

by President Václav Havel to travel to Washington, D.C. as Ambassador Extraordinary and Plenipotentiary of the Czech Republic to the United States from September 2002 to November 2005. Dr. Palouš was then designated as Ambassador of the Czech Republic to the United Nations, where he served in New York from 2006 through 2010. As of 2011, he became Director of the Václav Havel Program for Human Rights and Diplomacy at FIU. He also serves as President of the Václav Havel Library Foundation and President of the International Platform for Human Rights in Cuba.

Professor Palouš has engaged in rich academic praxis for more than 25 years. He has lectured at many universities both in the Czech Republic and in the world (particularly in the United States), and has authored numerous publications in the areas of political philosophy, contemporary history, international relations and international law.

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Cuba in 2021 - A Central European Point of View

I. Introduction This paper follows my past APSA presentations and several other previously published texts.1 In its three sections, I will highlight what is, in my view, the greatest challenge on the delayed (because it is still unfinished) way of Cuba from the 20th to the 21st century: the reunification of the Cuban political nation. Second, I will focus on the international context of the possible scenarios of Cuban transition. Finally, in the third and conclusive section, I will present the interim results of the project IDEAS for Cuba, dedicated to the research, exploration and dissemination of alternatives for a, hopefully, more democratic future for Cuba. IDEAS (the Initiative for Democratic and Economic Alternatives) is a collaboration between the Václav Havel Program for Human Rights & Diplomacy, a part of the Steven J. Green School of International & Public Affairs at Florida International University2 and Inspire America Foundation, a Miami-based NGO dedicated to promoting democracy in Cuba and the Americas.3 As a non-Cuban, I am well aware that the principle of nonintervention into the “domestic affairs” of other nations — to put it metaphorically in the language of international law — must be strictly observed. At the same time, however, as I have done repeatedly in the past, I am intentionally not assuming the position of an unbiased outside observer. I am not studying the Cuban case from my specific professional perspective. My aim is to bring my modest contribution — as an “engaged observer” and Central European by birth and life experience — to the on-going Cuban national dialogue.

The fundamental aim of this, I believe, is to follow our Central European example and restart — after more than six decades of dictatorship and economic misery — the Cuban democracy, a system of “government of the people, by the people and for the people” in the famous words of Abraham Lincoln in his Gettysburg Address. This includes reforming accordingly the Cuban constitutional system; preparing multiparty elections in which people can choose the representatives they really want; outlining the path toward rational reconstruction of the Cuban economy and its future development in the atmosphere of an open and unconstrained public debate; and, as a result, start making first steps to achieve freedom, social justice, and the material prosperity of the Cuban people.

II. The Fundamental Challenge: The Reunification of the Cuban Nation There is one vital condition in order to get rid of totalitarianism and restore democracy in Cuba. It is the rebirth of the body politics for all Cubans (both at home and in exile), a revival of genuine Cuban spiritual power and imagination forcefully still suppressed by “Castro-communism.” What is required is nothing less than the reunification of the Cuban political nation, divided for more than six decades now by the ideology that emerged with the rise of Fidel Castro to absolute power, and still having a decisive impact on the policies of the current Cuban government.

This is, I dare to say, the main challenge for today’s citizens of Cuban “parallel polis”4 — for all those who have decided, motivated by their personal experience and reasons stemming from it, to step up from their privacy and enter the public space, joining others in the on-going struggle for future Cuban democracy. However, the liberation of Cuba from the totalitarian yoke requires more than just resisting and protesting against the repressive actions of the Cuban ancien régime. It requires turning the Cuban “parallel polis” into a dynamic political power capable of setting Cubans on the journey from their bleak presence to a better future.

This necessitates the proposition of a realistic scenario for extracation from the current historical stalemate and the first steps toward implementation.

There is no doubt that it is the members of democratic opposition on the island carrying the burden of repression on their shoulders. A mix of traditional human rights defenders, church activists, members of independent political parties of all colors from the left to the right, public intellectuals, journalists, bloggers, artists or just open-minded and freedom-loving people without any specific skills or qualifications should be given the floor first and listened to carefully in this critically important debate.

However, what is also evident is that an indispensable voice belongs to the Cuban diaspora spread around the world,

1 To Invite or Not to Invite? Václav Havel’s Hamletesque Question. In: Václav Havel, Martin Palouš: Invite or Not Invite? Human Rights 25 Years After. Václav Havel Library, 2014; Where are we? The State of Negotiation of a New Treaty Between The European Union and Cuba, Annual Proceedings of The Association for the Study of the Cuban Economy (ASCE) , vol. 24, 2014; Cuba in 2015: A Perspective from Central Europe, Identidades, Year 3, Number 8, June 2016, p. 71-81; Václav Havel’s Legacy and the Future of Cuba, Annual Proceedings of ASCE, vol. 27, 2017; Chinese Question in the Times of Coronavirus in: Modelo, CESCOS, Year I, document 6, 2020 2 www.havel.fiu.edu 3 https://www.inspiredemocracy.org/ 4 The term “parallel polis” emerged for the first time in the dicourse of the Czechoslovak dissidents in the late 1970s (crf. Václav Benda, Parallel polis, in: H. Gordon Skilling and Paul Wilson (eds.): Civic Freedom in Central Europe. MacMillan, 1991), aiming to open the discussion about the community of people connected, in one way or another, with the publication of manifesto Charter 77, and to formulate its basic goals, its tactics how to achieve them, and its long-term strategic ambitions.

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Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

especially here in the United States. This includes all the people and their descendants who have arrived on U.S. soil during the dictatorship and have managed to create a compact, politically influential and economically strong community with more than two million members who are preserving a strong sense of national identity. It is my conviction that it is Southern Florida and its unofficial capital of Miami, where an important, I would even dare to say key nucleus of the future Cuban democracy, is being born. As citizens of the United States, the Cuban Americans have — besides their economic power and thus capacity to financially support their relatives on the island — a special responsibility and a significant role to play in the on-going struggle for Cuban liberation. They have the capability of serving as sensitive and informed guides in the Cuban national dialogue, looking for balanced, realistic answers to the old questions raised by José Martí at the very beginning of a still unfinished journey for Cuban freedom and independence: the questions stemming from the endemically asymmetrical U.S.-Cuba relations and concerning all the implications of this asymmetry for the health and vitality of Cuban democracy.

There is, however, one great challenge in the communication between Cubans dentro y afuera de la isla. It is the presence of the Cuban past, the personal stories of individual Cubans and the competing narratives articulating the Cuban historical experience in the 20th century and in first two decades of the 21st century. As I can attest from my Central European point of view, to bridge the gap between those who have been living for decades exposed, in the words of Václav Havel, to the “totalitarian nihilization,”5 and those who have been

5 Here is how Václav Havel describes this experience in the context of Czechoslovak normalization after the Prague Spring of 1968, a bizarre transformation of totalitarian form of government from its original revolutionary Stalinistic version of the 1950s to its version

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Cuba in 2021 - A Central European Point of View

living in freedom, is not an easy task. What is being opened here in the moment of “revival” of the Cuban political nation is a Pandora’s box, containing many unsettling questions, especially those touching upon the role of the Cuban exile community in the “crises” during the six decades of strained relationships between the United States and the Cuban totalitarian regime, and being systematically, and very creatively used by its propagandistic machinery.

Courage is required to start the process of genuine national reconciliation; to launch an all-inclusive national dialogue involving Cubans of all generations living on both sides of the Florida Straits, including those who some politicians would like to leave behind, such as the freedom fighters of the past and the former political prisoners of the communist regime. There should be no doubt that a true, undistorted record of their encounters in recent Cuban history — the stories testifying to their patriotism and personal courage, full of suffering, but also of acts of their solidarity with all others who shared their fate — have an important place in the current process of Cuban liberation. This will bring the questions into the national debate about Cuba’s future that should not just be forgotten, glossed over or treated as if they belong in history’s garbage dump. The opposite is true.

A new “social contract” among Cubans should focus primarily on the Cuban future. But as it has been already convincingly demonstrated in many cases of countries in transition, it cannot be reached without recognition of, and justice being served, to what has happened in the past.

III. The Role of International Society and Law in the Current Cuban Debate As previously stated, the role of international society in the Cuban liberation efforts can only be auxilliary. But that doesn’t mean that it is not important or that it cannot play a decisive role on the path of Cuba toward the future. As our Central and Eastern European historical lessons have proven clearly, for their succesful transition from totalitarianism to democracy the nations of Cuba‘s size need an enabling external environment. An effective policy of Cuban democratic opposition vis-à-vis international society, which is primarily a society of sovereign states and as such includes the State of Cuba governed now by the representatives of its totalitarian regime, is an indispensable condition for its success!

Hungarian democrats had no chance in 1956 to reverse the fate of their nation during the Budapest uprisal, which was crushed within a couple of weeks by Soviet tanks.

The Czechs and Slovaks dreamt in vain about their liberation from communism and the return to democracy during the short, eight-month period of freedom in 1968, which ended abruptly with the “fraternal help” of the Warsaw Pact Armies led by the Soviet Union on August 21 of that revolutionary year.

The attempt of the Polish independent trade union Solidarnosc to lay down the foundations for a new social contract between the Polish working people and the communist government in 1981 was stopped by the declaration of marshall law and the detention of all its leaders.

Supposedly, according to General Jaruzelski, this was the only way to preserve the social order and prevent direct Soviet military intervention.

Only the changed international constellation that emerged in 1989 — the result of the Helsinki process between the East and West that started in 1975 with the declared intention

that was manifesting itself in the 1970s and the 1980s — quite close in my view to today’s perception of Cubans on the island of their current political reality: It is not true that Czechoslovakia is free of warfare and murder. The war and killing assume a different form: they have been shifted from the daylight of observable public events, to the twilight of unobservable inner destruction. It would seem that the absolute, “classical” death of which one reads in stories (and which for all the terrors it holds is still mysteriously able to impart meaning to human life) has been replaced here by another kind of death: the slow, secretive, bloodless, never-quite-absolute, yet horrifyingly ever-present death of non-action, non-story, non-life and non-time; the collectively deadening, or more precisely, anaesthetizing, process of social and historical nihilization. This nihilization annuls death as such, and thus annuls life as such: the life of an individual becomes the dull and uniform functioning of a component in a large machine, and his death is merely something that puts him out of commission.

(Hável, V.: Stories and totalitarianism. In: Open Letters, Selected Writings 1965-1990, p.329,330) 6

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

to achieve peaceful coexistence between the states “with different social and political systems in Europe,” combined with the Gorbachev effect in Moscow and the more assertive policies of American President Ronald Reagan toward the Soviet “evil empire” — opened an opportunity that was, but didn’t need to be, seized and effectively used by the Central European nations for their liberation.

Looking back at the revolutionary annus mirabilis of 1989, we can ask who was responsible? Was it Havel and Walesa and other key leaders of East Central European revolutions? Or was it Gorbachev with Reagan, as the main global players in the final stage of the Cold War that for four decades had been dividing Europe to the East and the West? Or was it both, the dissidents and the leaders of the Soviet Union and the United States, two nuclear superpowers, who had their specific, and also indispensable roles in bringing down the “iron curtain” and its most visible symbol — the Berlin Wall? I have always argued for the third option and being aware of this connection between politics from above and from below tried not only to assist the Cuban democrats and human rights activists in their domestic struggles, but also to focus on the international perception of the Cuban situation. Based on the Central European experience with the fall of communism two points can be made.

III. 1. The Geneva Lessons To illustrate the importance of the international human rights perspective in the context of the current Cuban situation, one must look again at the decision of the Czech Government to present a resolution criticizing the Cuban human rights situation at the 55th Session of the Commission for Human Rights in Geneva in 1999. In the previous years a similar resolution had been sponsored by the United States, but in 1998 Cuba had scored an important victory in the field of multilateral diplomacy. The U.S. motion was rejected. The Cuban government supposed at that moment that the Geneva problem was put to rest once and for all.

A year later, however, the Cuban government realized that the problem was back: the Czech Republic stepped in and reopened the subject. The Ministry of Foreign Affairs after the consultations with President Havel decided to react positively to the call of Cuban democratic opposition that the international community should not have remained silent to the human rights violations on the island. The reasons for the submission of the draft resolution on “Human Rights in Cuba” were symptomatically characterized in the statement that I had the honor to present in my capacity as the head of the Czech Delegation at the 55th session of the Commission for Human Rights in March of 1999 “with the French philosopher Pascal as the ‚reasons of the heart‘ (les raison du coeur): “Ten years ago, the Czech dissidents (and one can easily add the Slovak, Polish, Hungarian and many other dissidents from East-Central Europe) were in a similar situation as many individuals in Cuba

today and they highly appreciated any expression of international solidarity. It is not only difficult to forget that, but what else but a true spirit of solidarity and cooperation can be recommended as the basic principle of action of international community?”

When these words were being pronounced in the Palace of Nations in Geneva, it was indeed hard to predict what would be the result of this motion. In the ensuing roll-call vote, however, the Czech diplomacy managed to prevail where the United States had lost a year ago. And the same result was achieved twice in the following two years. The lessons to be learned from this surprisingly successful initiative are still valid and should be remembered as a guide for any future efforts to assist Cubans in finally eliminating Fidel Castro‘s totalitarian legacy.

First, what the Czech diplomats found out was that Cuba was an extremely difficult opponent in such diplomatic „duels.“ Measured by its economic performance, the political system installed in Cuba by Fidel Castro and his barbudos in the beginning of 1959 was always a plain disaster and could never sustain itself without heavy subsidies from its international supporters. On the contrary, measured by its capability to operate effectively within the international system created as a result of World War II, Cuba under Fidel’s leadership and thanks to his personal charisma, managed to gain the impressive status of a small, but quite influential world power.

Thanks to the Cuban military campaigns in Africa in the 1980s that supported the “progressive” parties in their liberation wars, Cuba still had many devoted admirers among the countries that gained their independence in the decolonization decades after WWII. Cuba was not only supporting radical revolutionary movements around the globe, but was capable of exerting its influence in the Americas, in the Western hemisphere — even in its democracies — to exploit successfuly the traditional negative feelings of “Latinos” vis-à-vis the presence of “Gringos” in their region. Thus, practically all Latin American countries were finding it very difficult to respond positively to the Czech initiative.

In spite of her dire economic situation, Cuba was sending tens of thousand of physicians and other medical personnel to a number of developing countries. This unprecedented example of South-South cooperation was obviously gaining their gratitude: Cuba had recognition throughout the Global South as one of the leaders of anti-imperialist, anti-Western global movement and as a brave, outspoken voice on the global scene for the poor and oppressed peoples of the world.

To satisfy Fidel Castro’s worldly ambitions, Cuba has built a dense network of embassies around the world, staffed with well trained diplomats, capable of using the public international law “creatively” for the benefit of Cuban causes. They are able of effectively disseminating their revolutionary propaganda and winning information battles over their “enemies.”

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The second lesson learned from the Czech diplomatic operation in Geneva concerned the potential allies whose support had to be won. First, it was the indispensable role of the United States. Without the often heavy-handed U.S. approach in the bilateral communications with their partners around the world, the task of the Czech team would have been simply a “mission impossible.” Obviously, there were no diplomatic Tom Cruises at their disposal to turn it, thanks to their miraculous performances in the Palace of Nations, into mission “accomplished.”

At the same time, however, too much U.S. input into the Czech initiative could derail it. After all, it was the U.S. proposal that was rejected in Geneva the year before. The cornerstone, and possibly stumbling block of the Czech contruction, were the critical parts of the draft-resolution “Human Rights in Cuba” that the United States adamantly opposed, but all “significant others” wanted as conditio sine qua non, if we wished to get them on board.

To be concrete, for the United States, any reference to the state of the Cuban economy was unacceptable (both Democratic and Republican administrations had the same position here), because it could create the causal chain between the U.S. embargo laws imposed on the U.S.-Cuba economic relations as a reaction to Fidel Castro’s hostile policies and the state of human rights on the island under his leadership. The firm stance of the U.S. was that it must not be made responsible under any circumstances for the Cuban economic problems, not only with regards to the troubled history of the U.S.-Cuba bilateral relationship, but for reasons of principle. Any country, Cuba included, must not use its dire economic situation as an excuse for its nonfulfillment of its human rights obligations under international law. There can be no compromise in this matter!

On the contrary, for both Latin American and European countries that were asked to support the proposed motion, a reference to economic development was perceived as an indispensable part of any human rights discourse in general, and in the Cuban case in particular. A minimal requirement for their consent was at least some “economic language.”

The Czech diplomats in Geneva quickly realized that their “small boat” was finding itself in a kind of perfect storm in the middle of a “Bermuda Triangle” formed by the United States, Europe and Latin America. The only way to secure victory for their operation was to maneuver inside of it; to do anything possible not to lose any of the three major players looking for a magic formula that would calm the stormy sea and finally bring all essential parties together in spite of all their seemingly unsurmountable disagreements.

And here is the Czech third lesson learned in Geneva: it concerns the Havelian approach to human rights, stemming from the Czech experience with totalitarianism in the 20th century based on Havel’s deep conviction that that those who are fortunate to live in free societies now have the moral duty to support those who resist tyrranies anywhere in the world.

International solidarity with them points to the central spiritual

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problem of our times — that the free-minded Cuban dissidents resisting the Fidel Castro dictatorial regime not only deserve our assistence, but that it is also their voice that can help us.

Havel put in his speech in Geneva, on the occassion of the 50th anniversary of the Universal Declaration of Human Rights, (i.e. a year before the struggle for the resolution “Human Rights and Cuba” took place): to “build a better world, and also to be more true to ourselves, in other words to put into practice the values that we proclaim in general terms.”

And against all odds, this lesson was generally a positive one.

Practically all Czech partners in the Geneva deliberations in 1999-2001 were listening and weighing carefully the arguments presented to them by the Czech diplomats. They may have disagreed for all sorts of reasons, but they tried, at least for a moment, to understand the heart of the matter in the Cuban case and look at it through the lens of its Havelian interpretation. The governments they represented might have already sent them their instructions not to support the Czech initiative under any circumstances, but at the same time, remarkable conversations about the future of our world and the role of human rights were taking place. Unsurprisingly, Fidel Castro’s loyalists didn’t move an inch, but the world scene we all were operating on was somehow affected by the very fact of these on-going human rights debates. It was the Havelian message and not just a “realpolitik” practiced routinely by the world powers that was the greatest winner in these diplomatic battles in the end.

III.2. Cuban International Responsibility Erga Omnes On February 28, 2008, Cuba signed the International Covenant on Civil and Political Rights (ICCPR). As of today, in June 2021, however, its ratification is still pending. In connection with the signature of the ICCPR, Cuba made the following interpretative declaration: “The Republic of Cuba hereby declares that it was the Revolution that enabled its people to enjoy the rights set out in the International Covenant on Civil and Political Rights. The economic, commercial and financial embargo imposed by the United States and its policy of hostility and aggression against Cuba constitute the most serious obstacle to the Cuban people’s enjoyment of the rights set out in the Covenant. The rights protected under this Covenant are enshrined in the Constitution of the Republic and in national legislation.

The State’s policies and programs guarantee the effective exercise and protection of these rights for all Cubans. With respect to the scope and implementation of some of this international instrument, Cuba will make such reservations or interpretative declarations as it may deem appropriate.”

My point is that Cuban democratic opposition should communicate persistently with all its international partners the following legal arguments:

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

First, under Article 18 (a) of the Vienna Convention on the Law of Treaties, a State is obliged to refrain from acts which could: “defeat the object and the purpose of a treaty” — “when it has signed the treaty and has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty.”

The Vienna Convention does not contain a precise definition of the object and the purpose of a treaty, but it refers to its essential goals.6 The specific object and purpose of human rights treaties generally is the effective protection of the individual human person. It means that the object and purpose of such a treaty must be interpreted and applied in a way which makes the protection of human rights practical and effective.

The meaning of concepts used in international human rights treaties is autonomous, i.e. not necessarily identical with their meaning in the context of domestic law. The State Parties have a general obligation to respect the rights guaranteed by the Convention and to ensure them to all individuals on their territory subject to their jurisdiction (Article 2, paragraph 1).

The nature of this legal obligation is negative and positive.

The State Parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, the State Parties must demonstrate their necessity: only such restrictive measures can be taken that are proportionate to the pursuance of legitimate aims, and whatever they may be they must never impair the essence of rights enshrined in the Covenant and their effective and continuous protection.7 Second, international law is based on the principle of legitimate expectations (pacta sunt servanda). The treaty obligations shall be fulfilled in good faith, in accordance with the ordinary meaning of the terms of the treaty in their context and in the light of its object and purpose. From it follows that the State Parties to the ICCPR can legitimately expect that: 1. Cuba will fulfill its obligation not to defeat the ICCPR’s object and purpose.

2. Cuba will, at a reasonable time, begin the process of ratification (with the effect of either entry into force of the treaty or making clear its intention not to become a party to the treaty).

The similar legitimate expectation with regard to the object and purpose of this treaty exists not only on the side of the State Parties, but also on the side of individuals who are finding themselves under Cuban jurisdiction. They also may legitimately expect that the signature of the Cuban government under the treaty means that its object and purpose will not be defeated; that such treaty — so important from their individual point of view and affecting their individual lives, because it endows them with rights and confers on them duties — will be submitted without any unnecessary delay to the thorough scrutiny of the people; that this public examination of the state of human rights in their country will happen in an open and inclusive democratic process concluded by the act of its ratification.

And third, Cuba has obligations not only based on the signature of its representative on the ICCPR, but also stemming from customary international law. The ICCPR is nothing but the codification — in the form of the treaty — of universal human rights enshrined in the Universal Declaration of Human Rights.8 The Universal Declaration, however, is considered today as the articulation of customary law and the rules concerning fundamental human rights are considered accordingly as the obligations erga omnes. Every state is obliged to observe them from the perspective of general international law. The fact that Cuba blatantly and continuously violates the rights protected under general international law opens the question of its responsibility erga omnes. From it follows that every state and every international organization has the right to take countermeasures against Cuba and remind the Cuban government of its international obligation to stop committing internationally wrongful acts and to offer appropriate assurances and guarantees that such acts will not be repeated in the future (Article 30 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts).

The Cuban declaration made in connection with the signature of the ICCPR doesn’t have any validity in the framework of international law. An “interpretative declaration” means a unilateral statement, no matter how phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of the treaty or its provisions.9 In general terms, the aim of such a declaration is to influence the interpretation to be given to the provisions of a treaty at the moment of their application.10 The Cuban declaration thus can be characterized as a general statement of policy expressing

6 Isabelle Buffard & Karl Zemanek, The “Object and Purpose” of a Treaty: An Enigma? 3 AUSTRIA REV. INT’L & EUR. L. 311, 343 (1998) (suggesting that a treaty’s object and purpose are the sum of the treaty’s essential elements separated from the unessential ones).

7 General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on State Parties to the Covenant, CCPR/C/21/Rev.1/ Add.13, 26/05/2004.

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General Comment No. 26: Continuity of obligations: 08.12.1997. CCPR/C/21/Rev.1/Add.8/Rev.1, General comment 26.

9 Guide to Practice on Reservations to Treaties, Adopted by the International Law Commission at its sixty-third session, in 2011.

10 Treaty Interpretation, Richard K Gardiner, Oxford University Press, 2008, pp. 86 - 87.

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Cuba’s view on a treaty or its subject matter without having any legal effect on the treaty; concerning the manner in which the treaty will be implemented and applied domestically, and as such cannot have any effect whatsoever as far as the content or scope of rights enshrined or as far as obligations vis-à-vis other State Parties are concerned.

The statement that the rights protected under this Covenant are enshrined in the Constitution of the Republic of Cuba is utterly irrelevant from the perspective of international law.

When it comes to possible violations of international law because of domestic law obligation, the state cannot use its own domestic law to justify its unlawful acts (Article 27 of the Vienna Convention). Actually, this element of Cuban declaration can be used and turned against the existing “application” of the convention in Cuba today. By stating in the declaration that “the rights protected under this Covenant are enshrined in the Constitution of the Republic and in national legislation,” Cuba has recognized that from the perspective of the Cuban legal order, the rights protected under the Covenant are of customary nature. But from it follows that the elements of international law present in the domestic law must be interpreted in the overall context and in light of standards and principles of general international law. Their interpretation based on the alleged principles of the Cuban Constitution (as the legal expression of the Cuban Revolution) is without merit.

The connection between the U.S. economic, commercial, and financial embargo and the civil and political rights of Cuban citizens mentioned in this declaration is also untenable from the point of international law. This argument is based not only on the principle of legitimate expectations, but also on the principle of effectiveness of human rights protection.

Any restrictions on human rights must be permissible under international law (some human rights are absolute, and any restriction or derogation is not possible), and must follow international law. As indicated above, where such restrictions are made, States must demonstrate their necessity and only such measures are permissible which are proportionate to the pursuance of legitimate aims. It is obvious that what must not be negatively affected in the first place is the very object and purpose of the treaty: the continuous and effective protection of human rights.

The reason such a declaration has no legal effect is clear.

The rights we are dealing with are first and foremost negative rights (based on the principle non facere). The state is not obliged to give something positive, but on the contrary, not to do something that interferes with the domain of individual rights and freedoms, recognized and declared as unalienable.

Furthermore, on the question of possible state responsibility for violations of treaty obligations, the U.S. embargo cannot be used as an argument for the invocation of a circumstance precluding Cuban wrongdoing. The Cuban policies vis-à-vis the U.S. embargo — the package of measures of the U.S. 11 FIU Green School Year in Review 2019-2020 by FIU - Issue, p. 10

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government’s reaction to the Cuban alleged unlawful conduct — cannot be qualified as self-defense (there is no armed attack by U.S. on the territory of Cuba in the sense of Article 51 of the UN Charter) or countermeasures or force majeure or distress or necessity which are only legitimate circumstances precluding wrongfulness under international law. The arguments based on political circumstances (the hostility of the United States) have no validity. It is not supported by the standard interpretation of international law regarding human rights and contradicts the currently recognized and applied principles of general international law.

IV. Project IDEAS for Cuba IV.1. What it is?

As the Green School Magazine 2019-2020 reports, IDEAS for Cuba was launched on September 27, 2019, at FIU under the occasion of a visit to Miami by Minister for Foreign Affairs of the Czech Republic Tomáš Petříček.11 At the event, he proclaimed (what was received as an important message by the other side — by all those, mostly Cuban Americans, who were present in the FIU auditorium at that moment): I would like to assure you that the Ministry of Foreign Affairs of the Czech Republic is also ready to cooperate with this very valuable initiative. Václav Havel’s legacy is today — and undoubtedly will remain in the years to come — an important inspiration for all our activities in the area of international relations…

The emphasis on the active policies in the area of human rights; the conviction that it is the strong transAtlantic bond what represents a vital element of Czech foreign policy; the unequivocal support of the process of European integration; the clear awareness that the task to make the world “safe for democracy,” is as essential today for our freedom as it was in the times of Woodrow Wilson — all these points are now and will be in the future on the top of list of our national priorities…

Once more, I wish the project IDEAS for Cuba, being launched today, a great success and I am proud that the Václav Havel Program for Human Rights and Diplomacy — bringing the Czech element into the creative milieu of Florida International University and serving as an essential link between academia and the practical world of politics — has been trusted and chosen as its principal implementer. On behalf of the Czech Foreign Ministry, I am looking forward to a productive exchange of ideas and fruitful, mutually beneficial cooperation…

While we come from a different cultural and economic

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

background, our own historical experience enables us to understand the current political challenges in Cuba…

We will never cease in our efforts to prevent human rights abuses and improve the prosperity and the lives of the people of Cuba.

Two major partners are working together in the implementation of this project — FIU’s Václav Havel Program for Human Rights and Diplomacy and Inspire America Foundation, a Miami-based non-for-profit educational and charitable institution operating in the environment of the Cuban American community in Florida.

First, where is the place of IDEAS for Cuba within the FIU institutional framework? As a part of Green School for International and Public Affairs, it is primarily conceived not as a political, but as an academic exercise.12 Its mission always has been, and remains, to serve as a unique platform for scholarly research, exploration, and dissemination of alternatives for Cuba’s future and to provide its primary audience, FIU students, an opportunity to engage and learn from researchers and practitioners associated with this project.

A substantive part of its activities, however, also revolve around diplomacy, both public and discrete, with the objective to help facilitate dialogue and create effective channels of communication between policy makers operating not only locally in Florida or on the national level in Washington, D.C., but also in the realm of international relations (especially within the triangle of the United States, Latin America and the European Union). But I repeat that this act of diplomacy must first keep in mind the limitations stemming from its basic objective, which is to assist Cubans. This requires no interference into their internal matters, but, when possible, takes on a mediating role of spectateur engagé so as to finally overcome the totalitarian legacy of the past six decades and to bring their country back on the path of democracy.

In order to understand the modus operandi of the Václav Havel Program for Human Rights and Diplomacy — and thus also its approach to and its role in the project IDEAS for Cuba — it

is important to take in consideration that when the program was inaugurated, it was not starting from “zero.” Instead, its foundation came from the Central European experience in resisting communism in the 1970s and 1980s; from the lessons in transition from totalitarianism to democracy enabled by the Velvet Revolution of 1989; from Václav Havel’s “legacy” which is built into its foundations; from its rich history of engagement in Cuban matters, and also from past Czech diplomatic experience in this area (going back to the moment when I was dealing with the “Cuban question” in my capacity as the head of the Czech delegation at the annual meetings in Geneva of the UN Commission for Human Rights between 1999 and 2001). When planning its activities in the context of this brandnew cooperation, the Václav Havel Program for Human Rights and Diplomacy was adding an important element to what was already stored under its “roof” — cooperating for years with a number of entities and initiatives, domestic and international, engaged in one way or another in the “Cuban question.”13 And what about the role of Inspire America Foundation in this initiative? It has given itself the clear task of working with FIU on recommendations for a profound transformation of the Cuban political, legal and economic system. These plans would be consistent with the Agreement for Democracy in Cuba, a manifesto bringing together the whole Cuban “parallel polis,” dentro y afuera de la isla; clearly demonstrating the desire of all its “citizens” for their unity.14 What IDEAS for Cuba should be fully focused on, according to Marcell Felipe, the founder and executive director of Inspire America Foundation, is not just the support of the current activities of Cuban dissidents and freedom fighters, an objective the importance of which is not at all to be disparaged. There are plenty of other NGOs engaged in those efforts. They have the full support of Inspire America Foundation, Felipe said at a ZOOM seminar organized in the last year. And as a matter of fact, he added that Inspire America Foundation itself runs other similar programs that support Cuban dissidents on the island in their heroic struggle against the current adversities. The intention of this special project, however, is different. It is to consider and

12 This elementary point of departure of IDEAS for Cuba was actually unambiguously recognized by the director of the Inspire America Foundation Marcell Felipe who articulated at the inaugural event what this new joint project of FIU and his organization is all about: The experience of the Czech Republic is an inspiration and an “example”. The IDEAS for Cuba project, however, is not to create a prescription for democracy in Cuba. …We are not here to provide a blueprint for what should happen in Cuba — that is for Cubans to decide…We are here to provide some answers and some recommendations. This is not about politics. It is primarily an academic exercise.

13 In the United States: International Platform for Human Rights in Cuba; Václav Havel Library Foundation (https://www.vhlf.org/); Cuba Archive (http://cubaarchive.org/); CubaDecide (https://cubadecide.org/); CubaDemanda (Santiago A. Alpizar (alpizarlaw@gmail.com)); Victims of Communism Memorial Foundation (https://www.victimsofcommunism.org/memorial) In the Czech Republic: Václav Havel Library (https://www.vaclavhavel.cz/en); Post Bellum Foundation (https://www.postbellum.cz/english/); People in Need Foundation (http://clovekvtisini.cz/en), Forum 2000 (https://forum2000.cz), Cevro Institute (https://cevroinstitut.cz/en/) 14 The Agreement for Democracy in Cuba was signed originally on February 1998 by the representatives of 57 independent Cuban groups and civic initiatives both from the island and from the exile, and reconfirmed this year, i.e. 21 years later, at a meeting in the Freedom Tower in Miami, with 16 organizations that have formed the Organizing Committee of the Cuban Opposition, the Resistance and the Exile for the Path Toward Change. (https://www.cubacenter.org/archives/2019/10/28/cubabrief-take-the-path-toward-change-andsign-the-agreement-for-democracy) 11

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recommend actions for the moment when freedom is already there, after the decision is made to transition to democracy: “We are not here to figure out what are the strategies to bring the regime change, but if and when there is a regime change and there is a consensus for transition to democracy, what are the steps to be taken in that particular moment.”

To sum up what is at stake here is a basic fact that must be stated clearly and emphasized in order to avoid any confusion or misunderstanding. The Václav Havel Program for Human Rights and Diplomacy, primarily an academic operation at FIU, is taking its stand in the “ivory tower” of science, i.e. in the middle of events and progressing from time to time to a sortie, if you will, primarily into the space of the current international human rights debates or the area of inter-state diplomacy operations. In addition, Inspire America Foundation, an action-oriented non-governmental organization operating in the hot Miami environment, is now successfully and effectively cooperating in the project IDEAS for Cuba.

It does not mean, however, that they must always speak in one voice and cannot differ in the interpretation of questions under their joint scrutiny or in presenting their findings, analyses and recommendations. Each has its own modus operandi, its own argumentative strategies, its own audiences, its own channels of communication and messaging. I am even convinced that it is this potential conflict of interpretations15 between “theory” and “praxis” — between acteurs et spectateurs engagés, between the very nature of academic and political exercises — that makes the cooperation between the Václav Havel Program for Human Rights and Diplomacy and Inspire America Foundation especially valuable and interesting.

Furthermore, it is the very thing that promises relevant contributions in the overall efforts to finally overcome the legacies of Cuban totalitarianism.

IV.2. The Interim Results as of June 2021 There are four areas that have been identified for the IDEAS for Cuba activities: 1. The Presence of the Past; 2. Law; 3.

Economics; 4. Diplomacy.

The Presence of the Past16 To follow the argument already made, I will quote at length from the conclusion of the edited book, The Presence of the Past: Essays on Memory, Conflict and Reconciliation17, put together by the Václav Havel Program for Human Rights and Diplomacy with the Czech non-for-profit organization Post Bellum. In the past four years, as part of project funded by the Czech Ministry for Foreign Affairs, Post Bellum has conducted some 200 interviews with Cubans affected in one way or another by totalitarianism and added them to the Memory of Nations Archive, most likely the largest collection of this type of stories in the world.

There is one thing I have kept reminding my Czech colleagues during their stays here in Miami when interviewing the Cuban witnesses. Whereas in the Czech Republic and other countries where their work is actually, thank God, taking place post bellum, after the war — and as such is primarily in the hands of contemporary historians — Cuba is a different case.

Cubans are still finding themselves in bello, in the situation of on-going struggle with the variety of totalitarianism built over more than six decades by the Castro regime and has managed to survive the transition from the 20th to the 21st century and is still in power today. Here is the question to be raised and thought through carefully, maybe even more carefully than in the countries after the war, by Cubans, still struggling with the totalitarian disease: “What then are the virtues that should accompany the personal practice of memory, virtues necessary to the realization of political justice and peace?”

And here is the answer we offered in conclusion of our book — that, I believe, should be reflected upon in the process of reunification of the Cuban nation: A core virtue related to remembrance, recollection, and memorybased narrative, is humility — a virtue which in turn is closely associated with moderation: There are at least three aspects to humility relevant to the political use of memory: Firstly, concrete memories can be faulty. They are in need of correction and reparation. The willingness to partake in dialogue about memories, and to admit the possibility that others’ accounts may complement one’s own, is an ethical first principle of memory narration. This is not the same as pure relativism or incessant self-doubt. Admitting that memories can be faulty, and indeed are often the result of more or less conscious acts of construction, is not the same as

15 For those who are interested and have access to contemporary European philosophy, refer to the famous book by French philosopher Paul Ricoeur (1913-2005) Le conflict des interpretations. Essais d’herméneutique (in English: Ricoeur P. The Conflict of Interpretations: Essays in Hermeneutics, Northwestern University Press, 1974).

16 In the framework of the project IDEAS for Cuba, this topic was discussed at the ZOOM webinar Memory of Cuban Nation. Its Uses and Abuses on May 28, 2020 (https:www.youtube.com/watch?time_continue=24&v=oqHleCFCgJM&feaure=emb_logo) 17 Palous, M. and Hughes, G. (eds.): The Presence of the Past: Essays on Memory, Conflict and Reconciliation, Academica Press, Washington, London, 2019.

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dissolving history into pure subjectivity. The victims of the totalitarian regimes of the twentieth century were actually victims of concrete, physical acts of destruction.

The quest to dissolve such acts into nothingness, to say that evil was actually good or that all the suffering was necessary — or maybe in reality did not happen — is the ultimate goal of any totalitarian regime’s writing of history: it is up to the regime to decide what is true.

Against that we must lift forth the personal stories of pain and loss as truthful guides to understanding the past. Opening them up to dialogue and critique is never the same as denying them, but it does mean that no story ever constitutes the absolute and final word. Ipso facto, discourses that deny or attempt to annihilate the truth and presence of the past also never constitute the final word. The search for truth is ongoing, even about the past, always with the aim of uncovering as much as possible of the reality, experiences, and events that people actually lived through.

as the vantage points from which all other memories must be judged and understood is a sort of hubris that stands in danger of detaching us from humankind.

This also means, secondly — and in the name of humility — that we must preserve the physical and narrational traces of what happened and pass them on to future generations. In what way does this inspire humility? It does so by telling us that we must listen attentively, not least to the voices of the weak, the downtrodden, and those who were victimized and did not manage to escape. We must bend down and put our ears to the ground, so to speak, listen carefully to almost inaudible voices, and admit that someone else’s story may be more important, more seminal, than our own — or than the story of the loudest storyteller.

....Human memory is formed by, and responds to, what has irrevocably happened, events whose independent reality and impact we have no control over. Pedro Fuentes-Cid’s time in prison; the death of Rosa Payá’s father, Oswaldo Payá; the facts of the disappeared in Chile described by Liliana Trevizán — nothing can unmake their reality. But as we build our identities, our characters, on the basis of memory’s apprehensions of true events, we also shape it by our choices of how to respond to events, by the intensity of our curiosity and our willingness to listen and learn, by the openness and honesty of our interpretive efforts, by our recognition and embrace of what is truly significant and what is not and thus what is to be narrated, what is to be preserved as “history.” We engage what has happened, to ourselves and to others, and fashion in memory both what it means and what it might come to mean.

Memory is where circumstance and decision blend into personal character and destiny, which thus formed feeds into the communal and the political.

And thirdly, the work of memory demands of us that we see ourselves as part of a larger movement in being. Consciousness is never just a solipsistic fact existing in an isolated individual human being. To be fully conscious is also to be conscious of one’s participation in a whole of which one is neither the cause nor the ultimate end. Through recollection and our use of memory, we can place our own life and that of others into a larger horizon of human consciousness, where what happened to someone else, at another time, in another place, can become part of my own story, because we partake in the same reality. This also means that we must be open to the possibility that my memory, or the memory of my community or my nation, finds parallels in the memories of others; indeed, that the uniqueness that we sometimes attribute to our own suffering or jubilation can actually be paralleled by the suffering or jubilation of other members of humankind — maybe even of my or our enemy, or of people far away in time or place. Hence, this also means that privileging myself as well as privileging the present

And thus, we are back to the partners in the dialogue: the one telling, the one listening, the one asking questions, and the one who is no longer there, but whom we can search for, listen to, and attempt to understand.

The greater the distances in time and space, in language and culture, the more complex this dialogue becomes.

But it is still always a dialogue among human beings on the same earth, living within what Hannah Arendt called the human condition.

Finally, the virtue of humility is also a virtue of balancing, and thus closely linked to the virtue of moderation implies giving room to the other — not uncritically, not even always sympathetically, but always with the aim of creating a balanced, dialogic partnership of human beings who seek truth through narrative and memory....

We cannot make the consequences of evil — of oversight, of cruelty, of oppression, and of the sad efficacies of the manipulation of truth — not be real.

And we can’t approve of them. But we can choose to have a loving, honest, dialogic relationship with the world, and with the truth about the world. Thus, just as memory can revolve around nursed hatreds and resentments, it can also move us in love and hope toward reconciliation18.

18 Martin Palous, Henrik Syse, Glenn Hughes: Postcript: Memory and Narrative within the Community of Human Beings, in: Palous, M. and Hughes, G. (eds.): The Presence of the Past: Essays on Memory, Conflict and Reconciliation, Academica Press, Washington, London, 2019, p.

269-281.

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Law19 There are three questions that have come out so far in this context: 1. the question of value-anchoring of the future Cuban Constitution and how to get there from the status quo; 2. the question of human rights obligations and the Cuban international responsibility erga omnes; 3. the question of separation of powers: how to make the Cuban judiciary independent from the two other branches of government?

Here are my two remarks concerning the Czech experience to inspire the Cuban participants in this debate.20 First, concerning the sequence in which the transition of power took place in Czechoslovakia during the Velvet Revolution — a solution of the social and political crisis negotiated between the representatives of Civic Forum and the Government in the weeks after November 17, when the demonstration of students in Prague was brutally attacked by the police forces — is well known, so I will repeat here only its principal milestones: On November, 24, 1989, the whole collective leadership of the Communist Party stepped down.

On December 3, 1989, based on the proposal sent to the Federal Assembly by the Government, Article 4, about the leading role of the Communist Party in Czechoslovakia, was removed from the socialist constitution.

On December 10, 1989, the Government of National Understanding was formed. President Husák announced his abdication the same day.

On December 28,1989, the Law on the Co-optation of New Deputies was passed by the Federal Assembly. Based on this legislative act, the first group of new deputies was co-opted as a replacement for those deputies who had resigned their seats in the previous weeks. One of them, Alexander Dubček, the leader of the reform wing of the Communist Party during the Prague Spring, was elected President of the Federal Assembly.

On December 29, 1989, Václav Havel was elected President of Czechoslovakia.

In January and Februrary of 1990, the process of further cooptations continued and changed profoundly the composition of all principal legislative organs of Czechoslovakia (the

Federal Assembly, the Czech and Slovak National Councils), in order to reflect the new power constellation and enable the beginning of the process of political transformation.

And on June 8 and 9, 1990 (I am adding now one more step in this story), the first free election, based on the law enacted by the partly reconstructed Federal Assembly, took place in Czechoslovakia after more than 40 years of communism. International observers Madeleine Albright and John McCain, the presidents of the National Democratic Institute and International Republican Institute, represented the United States.

My second remark concerns the role of Charter 7721 in the process started by the Velvet Revolution, or rather the impact of its legacy on the birth of the new Constitutional Order of Czechoslovakia, and later of the Czech Republic. I will again use a part of a text I have previously written on this topic. 22 What happened from the legal point of view in November 1989? Power was handed over by means of negotiations at a roundtable, but the continuity of law was upheld.

At the same time, isn’t it undeniably correct to say that there is a clear dividing line between the “law” of the Communist era and the legality which came into existence after the Communist power had been dismantled? But how actually did it happen? How and when exactly was the new legal order, now valid in the Czech Republic, created?

What must be clarified here first is the concept that still plays an important role in the Czech legal thought — a “legal revolution.” According to normativist tradition, created after the First World War and still strongly present in legal thought, the legal order is equal to a set of legal norms derived from one focal point or one supreme norm which is considered as the genuine source of law. One can clearly distinguish between the continuity of law, which persists as long as a certain focal norm (usually the constitution of a state) remains valid, and the discontinuity of law, which occurs when, due to the “legal revolution,” the old normative order is replaced by the new one.

From the legal point of view, the revolution is a strictly negative concept. It means the denial of continutity between two sets of state norms, between pre-

19 Here is what have we done so far and what we are departing from at that moment: Webinar: Models for Implementing Cuba’s Future Transition to Democracy: Reforming the Cuban Legal System (5/7, 2020), https://youtu. be/le3Wh77llWs); publications: Jeffrey Scott Shapiro, Eloy Vera Cañive, Marcell Felipe: Constitutional Considerations for a Free Cuba: Judicial Independence in Civil and Common Law Systems 20 From my text On Political Ideas in the Period of Transition (In: Palouš M. Once Upon a Time of Transition: Fourteen Exercises in Political Thought, Academica Press, Washington-London 2021, quoted from p. 69-70) 21 The Charter 77 Manifesto, signed by 242 Czechoslovak citizens was published on January 6, 1977, announcing the creation of a civic independent movement, ready to lead a dialogue with the government about the state of human rights, both at home and in the world. The first three spokespersons of this movement were former foreign Minister Jiří Hájek, playwright Václav Havel and philosopher Jan Patočka (http://www. cnn.com/SPECIALS/cold. war/episodes/19/documents/charter. 77/) 22 Palouš M.: Charter 77 – A Retrospective dedicated to the memory of Liu Xiaobo (In: op.cit, p. 297-303) 14

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

revolutionary and post-revolutionary legal orders, which as far as their content is concerned, are valid on the same state territory, for identical legal persons and in the same time. Because the old and the new legal orders are two mutually isolated sets of legal norms, what is not valid between them is the principle lex posterior derogat priori. The pre-revolutionary laš is non-existent from the point of view of the postrevolutionary legal order and it is not necessary to abrogate it explicitely. On the contrary, what is necessary if the pre-revolutionary law is to be kept valid after the legal revolution, is its explicit reception by the post-revolutionary legal order. 23 The articles establishing the leading role of the Communist Party in Czechoslovak society were thrown out of the socialist constitution at the start of the post-November development.

A fundamental normative change, a “legal revolution,” did not take place until January 1991, when the Federal Assembly passed Constitutional Law 23/1991 Sb., by which the Charter of Fundamental Rights and Freedoms and international human rights conventions and fundamental freedoms were made an integral part of the Czechoslovak Constitutional Order. This norm gave the Charter of Fundamental Rights and Freedoms a super-constitutional power and established among other:

to realize that no Czechoslovak/Czech law ceased to exist immediately after November 1989! A clear dividing line between the ancien régime and the new democratic one still had to be established. It happened at the moment of the acceptance of the Charter of Fundamental Rights and Freedoms, and by the recognition of the obligatory character of international human rights agreements. By this legislative act, with the Czechoslovak Federal Assembly acting as a constituent assembly, a new legal order came into being. A new focal norm established the elementary principles of its construction.

The first two belong to the traditional legal equipment of the European liberal state: the principle of the supremacy of the law and the principle of inviolability of natural human rights.

What follows from the acceptance of the first? The positive concept of justice created by the state and by its normative activity must be presented in harmony with the rights and freedoms which have their origin in human nature. These work independently within the state and its current law and only have to be respected and protected by it. This is based in the language of the Preamble to the Charter

Constitutional acts, other statutes, and additional legal enactments must be in conformity with the Charter of Fundamental Rights and Freedoms, as must the interpretation and application thereof.

The fundamental rights and freedoms included in the Charter of Fundamental Rights and Freedoms shall be under the protection of the Constitutional Court.

International conventions on human rights and fundamental freedoms, ratified and promulgated by the Czech and Slovak Federal Republic, shall be generally binding on its territory and take precedence over statutes.

Statutes and other legal enactments must be brought into conformity with the Charter of Fundamental Rights and Freedoms by 31 December 1991 at the latest. On that date any provision which is not in conformity with the Charter of Fundamental Rights and Freedoms shall lose force and effect.

Laws and other legal norms shall be put in harmony with the Charter at the latest by December 31, 1991, and on this day those not in compliance with the Charter become invalid.24 From the normative point of view, it is of key importance

23 (Zdeněk Neubauer: Kontinuita našeho ústavního práva [Continuity of Our Constitutional Law]. In: Právník 1945, Vol. 9) 24 https://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/23_1991_EN.pdf

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of Fundamental Rights and Freedoms — “of the bitter experience of periods when human rights and fundamental freedoms were suppressed in our homeland.”25 The givers of the constitution decided to build the Czech legal order on the basis of natural right, distinguishing the fact that it was the state and its institutions who were the main perpetrators of wrongs and oppressions.

The principle of inviolability of natural human rights in the Constitution of the Czech Republic implies that these rights neither can nor may be touched by future constitutional development and must remain a permanent part of the legal order. It is not possible to set them aside by means of referendum or by legal regulation of an arbitrary power.

The Charter of Fundamental Rights and Freedoms protects them when the legal means for their effective application are paralyzed by the means of power: Citizens have the right to resist anybody who would do away with the democratic order of human rights and fundamental freedoms, established by this Charter, if the actions of constitutional bodies or the effective use of legal means have been frustrated.26 Human rights cannot be voluntarily surrendered nor yielded to someone else (they are vested and inalienable). Even if they have not have been applied for some time, or have been suppressed, this does not change anything in their continuance (they are unlimited).

The sovereignty of the law, established both in the Charter and in the Constitution, is the second basic principle and is complementary to the first. Human rights and freedoms as a superpositive source of Czech law, cannot just be declared.

In order to be fully effective, they must be translated into the concrete forms of laws and other legal regulations. They must be protected by the activity of courts of justice, and as required by other institutions established for the purpose of their protection. Even here the intention of the givers of the Constitution of the Czech Republic should be understood as a basic rejection of the legal practice of the past. This was a time when it was not the law that ruled, but the Communist Party; when the Party’s ideology and political directives stood above the current positive law.

But today’s Czech Constitution introduced one more principle that clearly distinguishes it not only from the socialist law of the Communist regime, but also from the democratic legal order of the pre-war Czechoslovak Republic — the recognition of the obligations of international agreements concerning human rights and their superiority in law.

Whereas during the founding of Czechoslovakia in 1918

constitutional law unquestionably stood above international law, at the time of the renewal of Czech statehood at the end of the 20th century we began witnessing an essential change.

International law is granted the opportunity to function within internal law, to penetrate the space not long ago regarded as the domain of state sovereignty.

What is relevant here is not only the “bitter experience of the past” under totalitarianism, but the need to give the Czech legal order a clear orientation for the future. A state that intends to be based on the democratic values of Western civilization and that wishes to survive the dramatic changes that Europe and the entire international system experience after the fall of communism, must internationalize its law and must strenghten its position by integrating itself into international structures. Its national or state interest must be perceived as a part of an open global community of free nations, recognizing the inviolability of natural human rights and the sovereignty of the law.

But even that is not enough. As it is generally recognized by today‘s law professors at Charles University and other institutions of higher learning — and more importantly as it has been repeatedly adjudicated by the Czech Constitutional Court — the combination of all three constitutional principles characterized above has one additional significant implication.

Their declaration is one thing; their introduction into life and their concrete implemetation is quite another. Legal order is not a static system. It is, above all, a process in which the law “lives,“ and in which it constantly changes through legislative activity and through practices of the court. In addition, it shapes and directs the life of the whole of society.

It has, however, the following consequence. The legal order that builds on the inviolability of natural human rights, the sovereignty of the law, and the recognition of direct validity of international agreements concerning human rights cannot come into existence solely with changes enacted in the system of the current written law. In order to suit the requirements of a new “focal” norm, a process must be initiated and kept in operation. Its framework must become routine so that the rule of the law is brought into harmony with its principles. This is a process that is not only — or even primarily — about the letter of the law. It is about the relationship between the state or public power, and the individual citizen.

The legal instruments for the protection of human rights in the Czech Republic’s Constitutional Order do not belong to private law, but to public law. Their primary aim is to empower the individual who is not only entitled to use his/ her rights in accordance with his/her free will, but also may demand a certain standard of behavior from the state. These instruments should penetrate all various legal corpuses of the Czech Constitutional Order, creating an obligation on the part

25 the Charter of Fundamental Rights and Freedoms https://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/ AJ/Listina_English_version.pdf 26 Op.cit. Article 23 16

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of the state and binding also on the legislator.

The state is not and cannot be the first and the only actor in the matter of human rights, although it would certainly be erroneous to undervalue its role and be unaware of the importance of its activity. It is the individual citizen, with his own common sense and natural feeling for what is right and just, who has the fundamental right “to seek” and “to promote the general public interest.”

In concluding this brief tour d’horizon through the world of the current Czech Legal Order, let me raise a direct question: Weren’t the duties imposed 40 years ago on those who are actively involved in the process of law in the Czech Republic today, exactly what the Charter 77 Manifesto demanded when a small group of foolish, naive “idealists” were doomed, according to political “realists,” to wreck their rickety boat on the high and treacherous seas of politics, both internal and international?

Can we surmise that the spirit of Charter 77 is still somehow present — despite its termination — in the Czech Republic?

When it comes to the Czech Constitutional Order, in spite of the weaknesses and failures that deserve to be named and criticized openly in regard to confrontation with the current challenges, isn’t it being shaped and permanently transformed by the activities of all institutions entrusted to its legislation, execution and adjudication, and by the virtue of the daily existence of all citizens? Aren’t they called now to keep this spirit of Charter 77 alive, and care not only about themselves, but also about the “general public interest,” regardless of the changed circumstances?

Economy27 Not being an economist myself, I must rely on the expertise of those we have invited to participate in this debate and who submitted their written contributions on the possible inspiration of the Czech economic transition. We must also place our trust in credible external resources to be found in libraries or on the internet.28 The capability to describe the initial condition for transition

with the highest possible precision because trustworthy data is at one’s disposal, creates a real problem in a country like Cuba where the reality is being systematically distorted to be in conformity with its ideological projection and the regime propaganda. Despite this obstacle, I believe both texts we have commissioned for this project have done their best and offer a good point of departure for our planned endeavors.

The first steps that had to be taken in the Czech economic transformation are the same decisions that will face those who will be in charge in Cuba in the search for an effective Cuban path of transition from the state-controlled (planned economy) to a free-market economic model. These revolve around effectively using market forces and private ownership, attracting direct foreign investments and enabling Cuba to become prosperous again, benefiting from its material and human resources, making use of its geostrategic position, and revitalizing fully its creative potential that has been suppressed by communist mismanagement: 1. Liberalization and, at the same time, stabilization of prices, as well as opening the economy to markets in a socially sensitive manner and preventing uncontrolled inflation.

2. Property restitutions and privatization of state enterprises.

3. Reform of banks.

4. Reform of tax system.

It is important to note that there were two economic reform approaches competing in Czechoslovakia (and in the Czech Republic and Slovakia after the Czechs and Slovaks decided to separate and acceded with the “Velvet Divorce,” after the Velvet Revolution that united them.) It was the debate on economic reform that played a decisive role in the formation of the Czech political scene after the leading role of the Communist Party ended and the door to political pluralism re-opened. In contention were a fast-track strategy and a gradual, evolutionary path. The first won because its main proponent, Václav Klaus (first Minister of Finance, then Prime Minister and President of the Republic), managed to gain support for it in the political process that burst out in the new

27 Here is what have we done so far and what we are departing from at that moment: Seminar at Colombia University: Cuban Economy: The Current Situation and Way Forward (2/10, 2020) https://cgeg.sipa.columbia.edu/events-calendar/cuban-economy-current-situation-and-way-forward); publications: Carmelo Mesa-Lago, Jan Svejnar: The Cuban Economic Crisis. Its Causes and Possible Policies for a Transition; Jose Antonio Villamil: Cuba’s Future Economic Policies under a Representative Democracy (both texts available at www.havel.fiu.edu) 28 Jan Švejnar (ed.): The Czech Republic and Economic Transition in Eastern Europe, Academic Press 1999 Martin Myant: Economic Transformation in the Czech Republic: A Qualified Success, Europe-Asia Studies Vol. 59, No. 3 (May, 2007), pp. 431-450, Published By: Taylor & Francis, Ltd. Viktor Hanzlík: Ekonomické reformy, In:Zkušenosti české transformace, Člověk v tísni, výzkumný projekt č. RM 02/02/04, odp. řešitel Luboš Veselý Václav Klaus: The Economic Transformation of the Czech Republic: Challenges Faced and Lessons Learned The Economic Transformation of the Czech Republic: Challenges Faced and Lessons Learned | Cato Institute

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Cuba in 2021 - A Central European Point of View

Czech democracy. Here is how I described the Klaus’s strategy in an article I published with a colleague of mine in 1999:29 It is an example of the practical application of the ‘turnpike theorem,’ which in micro-economics defines the fastest way of achieving an optimal situation. It implies that one simply cannot know all that lies ahead in the transition process.

Therefore, instead of making speculative plans for the future, ‘instead of using a winding road of half-measures, of illmotivated concessions, delays and ideological errors and prejudices,’ one should prepare ‘all necessary preconditions for a successful take-off into the “normal” world’ of the Western, which means free-market, economy. The liberalization of domestic markets — a significant degree of price liberalization accompanied by a restrictive macro-economic policy — together with the opening the Czechoslovak economy to world markets and rapid privatization were the main pillars of the economic transformation and, consequently, stood at the top of the political agenda. If economic reforms are to be successful, however, more is required than the readiness of their proponents to drive along a straight ideological and economic turnpike: a viable political strategy is also necessary for their implementation. Such a strategy required the acceleration of political polarization. The original postrevolutionary political consensus, which had been built round civic values and public virtues and which unified the people round the concept of revitalized civil society, was deemed not compatible with the basic precondition of successful economic transformation, a strong centralized state. As speed is crucial for the success of this strategy, everything that can slow down the initial operation of the ‘turnpike,’ such as the spontaneous activities and institutions of civil society, must be set aside, at least for a while. No doubt the rule or law is the key principle of an open society, but this strategy subordinates it to other priorities. The political bodies which emerged victorious from the revolution must be transformed into political parties which would be able to start standard Western political processes centered not only on principles but also on defined and balanced interests. The substance of these processes is the struggle for political power, and therefore a strong reform party must be created capable of winning elections and of forming a strong government.

And here is my evaluation if its success in the same article: 30 The market-based economy (two-thirds of gross domestic product (GDP) is produced by the private sector) grew strongly in 1995 and 1996, though growth declined in 1997. Macroeconomic indicators such as inflation and unemployment are favorable. Though there are also some indicators of problems ahead, particularly regarding the increasing balance of payments deficit and the relative decline of exports. The relative lack of structural reform is also a source of potential weakness.

Social tensions, which were expected to accompany economic

transformation, have thus far turned out to be much less of a problem than had been predicted, and the so-called tripartite negotiations between the government, employers and trade unions have worked well as a means or constructive and efficient communication. Despite some currently hotly disputed issues, such as the reform of the health service and other sensitive social issues, the cohesion of Czech society does not seem to be immediately threatened.

However, some potential threats to democracy arising out of the economic transformation are already visible. The enormous and opaque power of the banks, odd transformations of some investment funds and huge financial frauds create the risk of public disillusionment with the new system. Some of the recent fraudulent economic and financial activities have raised some doubts concerning the way in which coupon privatization, the central and lauded plank of the Czech economic transformation, was carried out. It is now acknowledged that the emphasis on speeding the process resulted in its not having a clear legal regulatory underpinning, and thus provided the scope and the opportunity for the subsequent misuse of funds and other forms of unfair enrichment. A remark by the father of the privatization scheme, V. Ježek, explaining the lack of legal framework — ‘We had to save privatization from the lawyers’ — is quite revealing of the tendency to perceive law, and by extension the rule or law, as an obstacle to desired ends.

The conflict between economists and lawyers that broke out in the process of transition can be perceived by all those, who would like to seek inspiration in the Czech example, like Cubans, as an ominous sign, but I am strongly convinced that it should not be the case. It must be recognized as a dilemma that cannot be escaped; as a challenge and a strong motivation for those who have a courage and capability to take responsibility, to make decisions and accept the reality that they will be scrutinized and judged by the people, in the multiparty election. The success or failure of any strategy of economic transformation is not measured just by economic numbers but is subjected to the test of democracy.

Here is my assessment of the Czech model that I can offer to Cubans for their own reflections and deliberations: The central question concerning the dominant Czech model of transformation is whether it is sustainable in the long run, its short-term successes notwithstanding.

The crucial weaknesses of Czech democracy are the weakness of ‘politics from below;’ an underdeveloped legal and political culture; the vacuum that has been created between individuals motivated by self-interest and institutions of public power; the lack of interest in a proper dialogue; and the difficulties of public communication and understanding.

The principle of respect for human rights should be revitalized as a remedy to these problems. The question is what kinds

29 Zdeněk Kavan and Martin Palouš: Democracy in the Czech Republic, in: Democratization in Central and Eastern Europe, edited by Mary Kaldor and Ivan Vejvoda, Pinter London, 1999, p. 81-82 30 Ibid. p. 83-84 18

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

of strategies are available under the prevailing conditions for raising public awareness of the importance of human rights and how to empower the structures of civil society, which have been seriously weakened by the Klausian reforms.

The enforcement and fulfilment of human rights require more than a high-quality legal system and state institutions. Other necessary conditions are public awareness of the law and a high political culture involving citizens’ respect for these rights and their willingness to defend them effectively. The principle of human rights requires foremost that there be permanent two-way communication between citizens and public authorities. The legal system and state apparatus of an open society must be, above all, trustworthy and transparent.

Information from below, voicing the experience of individuals and expressing their demands for rights, should not get lost in the bureaucratic machinery, but should play a crucial role in the development of the legal system, provide effective feedback and serve as an important corrective. At the same time, it is clear that the protection of human rights in the Czech Republic does not depend solely on the state of Czech society, on the willingness of citizens and public authorities to engage in a permanent dialogue. It also depends on communication with the outside world. The issue is not only how international mechanisms for the protection of human rights are integrated into the Czech legal system and how the state fulfils and enforces its international obligations, but also whether and how the discussions in Europe and elsewhere affect debates and decision-making in the Republic. The issue is to what extent the Czechs can make use of the experiences of others; to join in the dialogue taking place beyond the country’s borders; to understand their own situation in a broader context; and to resist the illusions of transformational ideology, which currently seem so convincing and popular.

There seems to be little doubt that formal democracy has been reconstructed relatively successfully in the Czech Republic. Substantive problems remain, however, which, given the multifaceted and complex nature of the transformation process, are to be expected. Further, despite the long-term problem of developing a democratic political culture, significant progress has been made, and that process appears irreversible provided that no catastrophic economic decline occurs.

It is perfectly natural that there are some misunderstandings between individual citizens and those who represent and govern the state. These ensue from the different perspectives from which different groups contemplate social and economic realities. For these different perspectives to coexist peaceably in a democratic society, continuous horizontal and vertical communication is required. In this permanent dialogue, political power cannot be primary, and parameters for arbitrating among contending interests must be continually renewed and reconstructed.31

Diplomacy As previously stated, the Václav Havel Program for Human Rights and Diplomacy is primarily an academic operation at FIU. At the same time, however, it is ready to step occasionally into the space of current international human rights debates or the area of inter-state diplomacy operations, attempting to assume the role of mediator and to assist the inhabitants of Cuban “parallel polis” in their efforts to get rid of the totalitarian legacy and put their country back on the path of democracy.

Again, this diplomacy must first keep in mind its specific nature and the limitations stemming from its basic objective.

Observing the ongoing international actions and diplomatic communications concerning Cuba from our stand in the “ivory tower” of science at FIU, it is obvious that the fundamental conditions for effectiveness include: the capability of Cuban democratic opposition to step into the space where they are taking place; to speak in one voice, to articulate its positions and messages directed at the international community of states in a coherent and effective manner; and the capability to translate their concerns and arguments into the language that is spoken there. It is essential to become not just a humanitarian problem within a larger framework of relations between Cuba and their international partners. It is not just human rights issues, but these relations in their entirety, that are at stake. To become an indispensable partner for any solution to problems the diplomats are confronted with requires diplomatic communications.

From the effort from 2015 to create the Cuban National Assembly (Encuentro Cubano Nacional) in San Juan, Puerto Rico, based on The Agreement for Democracy in Cuba originally signed in 1998, through the formation of the Organizing Committee of the Cuban Opposition, the Resistance and the Exile for the Path Toward Change, created in February 2018, to the most recent proclamation announcing the creation of the Council for Democratic Transition in Cuba (Consejo para la Transición Democratica en Cuba)32, one can follow the efforts of Cuban “parallel polis” in its attempts to achieve such a vitally important unification. The fact that it must start again and again, however, speaks for itself, and sends a clear signal. The Achilles’ heel of the Cuban community of freedom fighters is the effective use of tricks and arguments to weaken the cause.

What are the topics of diplomatic communications that the Václav Havel Program for Human Rights and Diplomacy can be, and already is, involved in? First, it is the question of human rights and the ensuing responsibility of the Cuban state for its permanent and consistent violations erga omnes vis-à-vis all other members of the international community.

But as the IDEAS for Cuba project clearly demonstrates, there are other points on the diplomatic agenda as well.

Other aspects, such as changes in the law and the economy,

31 Ibid. p. 91-92 32 Consejo para la Transición Democrática en Cuba: ‘Habrá justicia. Ni impunidad, ni olvido’ | DIARIO DE CUBA 19

Cuba in 2021 - A Central European Point of View

can be turned into effective arguments in the diplomatic communications with the supporters of a Cuban status quo. This is necessary to change the dynamic from useless rhetorical exercises to the result-oriented negotiations with measurable outcomes and defined red lines. The goal is to use international assistance to help Cuba take the first steps from its present state to a better, more hopeful and more prosperous future.

My final point is that we must change the strategy of communication with essential partners so that the Cuban democratic opposition is finally recognized as a key player in the debate about Cuba’s future, and to actively help create an enabling international environment for the change that the Cuban population has been wanting desperately for so long. Would it be a first necessary step in that direction, if those who are in power in Cuba now, start finally accepting the existence of those who disagree with their policies, and open at least some informal channels of communication with them or, even better, with their umbrella organizations?

Would it be another important step forward if the European Union, an essential partner in this conversation, finally started to support financially through its programs of humanitarian and development assistance not only “GONGOs” (government-operated-non-governmental organizations), but also the entities within independent Cuban civil society?

In this context, the Czech “Geneva Lessons” discussed previously in this text should be the starting point for any result-oriented diplomatic initiative in Cuba. The “Bermuda Triangle” that was the basic context of our operation at the sessions of the Commission for Human Rights in 1999-2001, is still present and must be tackled with an open mind and creativity. The debate about Cuba policies between the United States and the European Union can still too easily generate American anti-Europeanism and European anti-Americanism and must be overcome. This can be accomplished with an honest discussion between them; by the power of foundational ideas the parties on the both sides of the Atlantic Ocean have in common; and in the name of principle of international solidarity with free-minded Cubans who share these ideas with them. The Latin American democracies, having their own imprinting and point of departure, including often troubling historical experience, should be invited to get “on board.” Too many suffer from their own domestic problems caused by the totalitarian “radiation” still emitted from Havana and materialized in unhealthy radicalization of their political life. In several cases (Venezuela is the first to come to mind), the presence of Cuban political ideas and their domestic heralds, along with the physical presence of influential power players (not just doctors and other medical personnel), operating on their sovereign territories, the awareness of how this has affected their countries needs to be improved.

As I have said repeatedly, the solution of the “Cuban question” as it stands in the beginning of the third decade of the 21st century is clear and simple: the future of

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Cuba should finally get into the hands of Cubans. Their right to have a government they really want must be recognized unconditionally by the international community of democracies, and achieved by the means of peaceful, constructive dialogue between all the players and stakeholders.

Their friends from all over the world, acting in the spirit of international solidarity, however, also have an indispensable role in the effort to open a path for Cuba to the 21st century.

Here I see a vital part for the Václav Havel Program for Human Rights and Diplomacy.

We are inspired by Václav Havel’s legacy. It is a legacy to keep alive and, as an active diplomatic player in the Cuban cause, bring the parties of this debate together. A solution to the “Cuban question” is long overdue, but by acting as an attentive mediator and enhancing the necessary dialogue, we can meet the ambitious goal we have set for ourselves in our project IDEAS of Cuba, working in cooperation with Inspire America Foundation.

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

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Cuba in 2021 - A Central European Point of View

About Florida International University Florida International University, a public university located in Miami, has a passion for student success and community solutions. The university is classified by Carnegie as “R1.” FIU is among the top 100 public universities in U.S. News and World Report’s 2019 Best Colleges and 18 academic programs are individually ranked. FIU was recently ranked as the second best performing university in Florida and graduates are among the highest-paid in the state. FIU has multiple stateof-the-art research facilities including the Wall of Wind Research and Testing Facility and FIU’s Medina Aquarius Program.

FIU has awarded more than 330,000 degrees since 1972 and enrolls more than 57,000 students in two campuses and centers including FIU Downtown on Brickell, FIU@I-75, the Miami Beach Urban Studios, and sites in Qingdao and Tianjin, China. FIU also supports artistic and cultural engagement through its three museums: Patricia & Phillip Frost Art Museum, the Wolfsonian-FIU, and the Jewish Museum of Florida-FIU. FIU is a member of Conference USA with more than 400 student-athletes participating in 18 sports. For more information about FIU, visit www.fiu.edu

About the Steven J. Green School of International and Public Affairs Launched in 2008, the Steven J. Green School of International and Public Affairs at FIU educates the leaders and changemakers of tomorrow through innovative teaching and research that advances global understanding, contributes to policy solutions and promotes international dialogue. One of the largest schools of its kind in the world, the Green School enrolls more than 5,700 students and employs 360 fulltime faculty. It offers 38 interdisciplinary degree programs at the bachelor’s, master’s and doctoral levels, as well as 54 undergraduate and graduate certificate programs. The Green School encompasses eight signature departments: Criminology and Criminal Justice, Economics, Global and Sociocultural Studies, History, Modern Languages, Politics and International Relations, Public Policy and Administration and Religious Studies.

Home to 16 of the university’s most prominent international centers, institutes and programs, the Green School is an affiliate member of the Association of Professional Schools of International Affairs (APSIA).

About the Václav Havel Program for Human Rights and Diplomacy The mission of the Václav Havel Program for Human Rights and Diplomacy is to study and explore the politics of human rights, the processes of democratization in societies that were once under autocratic or totalitarian governments, and the experiences of societies currently in transition around the world. Our ambition is to foster partnerships, international dialogue, and greater global exchange in the areas of human rights, democratization and diplomacy. Our experiential basis and point of departure is Eastern and Central Europe, the home of Václav Havel. As the struggle that concluded in 1989 with the rebirth of democracy from totalitarianism in said region recedes from the attention of younger generations, the values upheld and the freedoms won more than 30 years ago must be preserved in research, publication, and implementation in all areas of public affairs and in service to the concept of an open society.

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