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Thursday, April 28, 2011

Layla Anwar-Raw...



Raw...

Layla Anwar

An Arab Woman Blues, April 28, 2011

I am Layla Anwar and I am raw...I am Layla Anwar and I am naked...I have been naked for the past 8 years...

I lost my skin, my dermis, my protection...what you see is nothing but flesh, raw.

Raw as in no place to hide, no bunker, no shelter, no nothing...naked as is no clothes, no protection, no cover...

Raw as in under open skies, raw as in unknown destinations, raw as in no country...

My country was my protection...a place, as imperfect as it was, I could run back to, a place...and now I lost my anchor...am sailing, not knowing where...carried by waves and winds I can't control. No one taught me how to navigate...I was just thrown into deep waters...naked and raw...

I carry my rawness with me, it is my baggage, my suitcase, my luggage...How can one let go of one's flesh ?

I, We, queue in waiting...unsure...we just queue hoping...hoping for what ? We don't know...

Here we are standing in line like good obedient subjects, objects, holding that rawness - that bag, in a hand - a passport, a document, an identity card...coaxing it to speak for us, coaxing to say - we were, we are...we once existed, we are trying to exist...

We queue and say Insha'Allah...

And in the rawness of our flesh - tempests scream, tornadoes blow, wild fires consume us...and we say Insha'Allah...

We swallow the caustic No, the indifferent Look, the slammed Door in our faces...

We swallow the Silence,

The bitter pill, your bitter pill, hoping to forget like you did.

But Raw stands in line - in front, behind, next to me...and refuses to forget.

Tuesday, April 26, 2011

IMPORTANT-CHINESE LABOUR STRUGGLES

New Left Review 34, July-August 2005

A railway worker caught up in the events of Tiananmen Square, now using his radio show to broadcast the problems of Chinese factory hands live on air. Han Dongfang describes life in the Red Army, student-worker unity in 1989, surviving TB and torture in prison and the China Labour Bulletin’s legal strategy. Can the PRC’s official trade unions be captured from below?

HAN DONGFANG

CHINESE LABOUR STRUGGLES

How would you describe your family background?
I was born in Beijing, but my family is from the province of Shanxi. We came from an extremely poor area in the Taihang mountain range, where my parents were peasants. In the early 1950s, however, my mother came to Beijing when the husband of her elder sister moved there as an official, to work in their home and help look after their children. So I was born there in 1963. Soon afterwards my parents divorced. When I was three, the Cultural Revolution broke out and we were sent back to the village, where we spent the next five years. Everyone went hungry. People assume it was the peasants who had the hardest time, but we had come to the country from the city, and therefore did not receive even the small food allowance given to those officially registered in the village. Relatives helped us survive, and I started primary school there. In 1971 we went back to Beijing, where my mother got a job as a construction worker. We were dirt poor, and the work was extremely hard. The building sites were all over Beijing, but to save money, she wouldn’t take a bus. Virtually every morning she used to leave home around six o’clock, and wouldn’t get back till nine or ten in the evening. That was the life of a construction worker in the 1970s.
Coming from the countryside, I had to repeat a year of primary school and found life at school very tough, as a village boy who didn’t speak proper Mandarin and stubbornly refused to learn it. But I continued through elementary, middle and high school in Beijing. On graduating in 1980, when I was seventeen, I joined the army. Everyone is supposed to do military service, but this isn’t how it works out in reality. In practice, I volunteered. Why? I clung to a dream. I hadn’t been able to square my experience of school with the idea of people living in harmony under communism. Like many other young people of my generation, I very much admired Lei Feng, the soldier officially celebrated since the 1960s for his concern for others, and joined the pla hoping to follow his example.
How long were you in the army?
I served three years in the Beijing area, in a detachment of military police assigned to guard the prisons of the region. Within six months, I had become known as a model soldier; in fact, when I was eventually arrested, one of the prison officers immediately remembered me, as we had served in the same unit. I was put in charge of a squad and could have made a career in the pla simply by following orders. But I became disillusioned with the corruption of the officers, and began increasingly to question the orders I received. So I was passed over for promotion, and repeated applications to join the Party were turned down. After I left the army, I briefly worked in the library of Beijing Normal University before being offered a job on the railways in 1984. There I was trained as an electrician, controlling the temperature on refrigerated trains used for transporting meat, fruit and vegetables from one region to another. I got to travel around the country a great deal, which had always been a childhood dream.
How did you get involved in the movement of 1989?
On New Year’s Day in 1987, a friend who worked at the Beijing Daily told me there was a student protest in Tiananmen Square. I was living in an alley opposite the paper, a few blocks east of the Square, so we went off to take a look. It was a really cold evening, and there were two or three hundred students holding banners with slogans such as ‘We support the Communist Party’, ‘Fight Corruption’, and ‘Support Reform Policies’. Foreign reporters were filming the scene—there were also police cars and cameras. The students were just entering the largely empty square from the north-west to cross it towards its north-east end, when I saw the police pushing the tv cameras around, and then between fifty and a hundred policemen charged the students and began to beat and kick them, dragging several away and throwing them into police cars. This was probably the last straw for me: all my illusions collapsed.
My involvement in 1989 was really an accident. My work on the railway took me out of Beijing a lot—we would spend a month or more away, and then have three weeks’ leave. It was during one of these periods that my wife and I went past Tiananmen Square on a bus. Someone mentioned that people were gathering on the square and my wife, who is a very curious person, insisted we go and have a look. This was on 16th April, the very first day of the movement, and there was very little happening—two or three hundred students were discussing why Hu Yaobang died, how there was no internal democracy, what democracy is, and so on. I began to talk to people there, and it was the first time I had heard serious discussion of democracy as something with an independent meaning: it had always been incorporated into other concepts, such as ‘democracy under the proletarian dictatorship’. Of course, I knew what the word meant—the Chinese min zhu translates as ‘the people are the master’. I joined in the discussion there and then. I tried to interpret it in my way, to make this general idea of democracy, which I did not understand at all, apply to my life. I said that we should think about workplace democracy, about control over management and profits. Because I lived close to Tiananmen Square, I had a lot of discussions with people there and became part of the demonstrations. It was a place where I was being educated as well as communicating with people—collectively. It had something of the feel of a festival.
How did the idea of setting up an independent trade union come about?
The union was created on the evening of 19th May, right after Li Peng declared martial law. A group of teachers and workers from state enterprises were trying to get together to appoint stewards in the Square. Early on the morning of the 20th, I think, I arrived at the north-west corner of the square and saw their banner. I just walked in.
I talked to various people, especially Li Jinjin, who was doing a PhD on the Constitution at the law school in Beijing University. I asked him several questions, because I was not a well-educated person, but really wanted to make sure this independent union would have a solid legal basis. He told me that according to the Constitution, we did have the right to demonstrate and to freedom of association. So I said I wanted to join, but was told there was as yet no organizational structure—people had just been getting together to protect the students. We discussed how to form a structure for this workers’ organization, under the already existing banner of the Beijing Workers’ Autonomous Union. We set up a preparatory committee and held elections—those running for election gave a speech to the 50 to 100 people who were there, and voting was done by a show of hands. I was one of five people elected as committee members, and was then appointed as a spokesperson for the committee.
Were you in touch with workers in big factories in the city?
There were huge popular demonstrations in the second half of May—on the 17th, 23rd and 28th, in which very many workers rolled into the Square from different factories with their trucks and banners. But when we approached them asking if they wanted to join our organization, they would step back, saying they were just there to support the students—they didn’t want complications. This was to some extent a hangover of fears dating from the Cultural Revolution—being part of a counter-revolutionary organization was far worse than being declared a counter-revolutionary individual, so people would rather join demonstrations as individuals and not take responsibility. On 1st or 2nd June Wang Chaohua and several other students came over to our tent for discussions. They said the student mobilization was losing momentum, and wanted to see how workers could be organized. This was the first time students had talked with us about this, and I was very encouraged. But our fledgling organization lacked strength. So I suggested that instead of talking to workers in the street, the students, who were already organized, should send teams to several different factories to talk to the workers and discuss how they could organize themselves. We would accompany them, but didn’t have the capacity to do this by ourselves. Later that evening we all went to Beijing University to set up a meeting with some students, and I stayed there overnight. The next morning we went back to the square, and heard that an army car had run people over the previous night, and soon the disaster occurred.
You mentioned the fear stemming from the Cultural Revolution. But did the workers not also have a sense that, as the Constitution of the prc then declared, they were the masters of the country?
Yes, I absolutely agree. The reason the workers came out onto the streets was to provide moral support for the students, like a big brother, but there was nothing in particular they wanted for themselves. When we asked factory workers, they said they wanted the government to treat the students better—and nothing more. Even when we got organized and drafted our charter, we wrote in a very general way; there was nothing as concrete as benefits, salaries, working hours or collective bargaining, though we did mention factory democracy, if I remember correctly. Politically and socially, we had never had the chance to be ourselves, as individuals or even as working-class people; we had not been able to base our thinking on what we needed. We were trying to make a leap, but it was our first leap, and we didn’t know how.
Were you in contact with your workmates at all during this period?
At that time, no. The only contact I had with my colleagues was when some of them came to Tiananmen Square to warn me that representatives from the railway would come and ask me to return; they said I should refuse, that it was a trap. Sure enough, I was visited by people from the railway company and its security section, who offered to protect me by putting me on a train for six months, away from Beijing. I thought they were treating me like a child, but politely thanked them, and said I had a duty to fulfil. I was elected as a committee member, I was a spokesperson—I had to keep speaking. I would probably end up in prison, but this was something I had to accept. When they told me I might be executed rather than imprisoned, I actually felt a kind of elation: it would be alright to die like this, I thought—and doubtless many students thought the same thing. Dreams of heroism were in the air.
Where were you when the repression came on June 4th?
I arrived back in Tiananmen Square in the afternoon of June 3rd on foot, because there was no public transport. For the previous few days there had been rumours about the army moving in, and I was trying to calm people down—I kept saying that I had done time in the army, and didn’t believe well-trained soldiers whose moral understanding was they should serve the people would fire on their fellow citizens. On one level I really believed this, but in another part of my mind I thought they might attack, but if they did so it would be with rubber bullets, tear gas or water-cannon. I didn’t know for sure that they had such equipment—the Chinese official supposedly responsible for human rights, Zhu Muzhi, later claimed that the troops did not have rubber bullets, so ‘had no choice’ but to use live ammunition on the demonstrators. I simply thought, as a matter of principle, that soldiers such as I had been would not carry out orders to fire live rounds at civilians.
By evening I was incredibly tired—I hadn’t slept properly for days—and went to sleep in my tent. I was woken up by Robin Munro from Amnesty International, who was there to observe the occupation of the Square. He was very nervous, and warned me to be careful. We talked for two hours or so, before I said I was too tired to continue, and he left. I had just fallen asleep when someone woke me up saying they had started shooting—with real bullets. I couldn’t believe it. I walked out of my tent and saw these pink lines in the sky—rubber bullets would not make that colour. For a moment I thought it could be a sign that they were shooting into the air, rather than at people, but then I told myself to stop being so naïve. Others were asking me what to do, the police were breaking into the square. I didn’t know what to say, my mind had gone completely blank. I just walked back to my tent, physically exhausted, unable to think, watching people running out and in, trying to burn documents. I was completely lost.
At around 11.30 pm on June 3rd, a group of fifteen or twenty young people arrived looking for me. My comrades tried to push them out, but they just broke in, saying I had to go with them, that there was going to be a bloody massacre here. Without saying who they were, they insisted I should not stay, and mentioned Solidarność, comparing me to Lech Wałęsa. Of course, I was flattered to be accorded such importance, but I didn’t think my life was more valuable than anyone else’s. Besides, it would be shameful for me to run away. I told them I was staying. Eventually the young people left, but returned five minutes later and one of them said: ‘Excuse me, but I’m afraid you have to go with us. That’s our mission, your destiny’. A very strong fellow gestured to the others, and several of them just picked me up and physically carried me out of the tent. Then they walked me to the east side of the square—the army came from the west—surrounding me to protect me from bullets. It was an extremely touching moment. In the north-west corner we saw a burning tank. We went past the Public Security headquarters, and then the Beijing Hotel, where I saw a man riding a bicycle eastwards with one arm, the other bleeding copiously. By this time it was around one in the morning. When we reached the Dongdan intersection on Chang’an Avenue, near where I lived, they said: ‘Alright, now leave the city. We have to go back to the square to protect some other people’—and then they disappeared. I never found out what happened to them, whether they survived in the square, were injured or went to prison.
What did you do next?
I got my bicycle and rode out of Beijing, into Hebei province. My plan—like everything else I did, it was naïve, considering I was 25 years old by then—was to disappear for a year or two, travelling south by bicycle, talking to peasants and workers wherever I went. I didn’t have any money, but thought I could track down student leaders in cities I passed through—since I thought there must be student organizations everywhere—and ask them for help. I would study what was happening in society, get to know the lives of people in factories and villages, and so be better equipped to help present a real challenge to the Communist Party. For I felt embarrassed to be the spokesman for a workers’ organization that the workers themselves didn’t recognize. It was a nightmare for me when reporters would ask me in the Square, ‘How many affiliates do you have? How many members?’. I knew that when we approached workers on mass demonstrations, they denied we were any kind of organization representing them. Nobody had followed us, nobody had supported us.
For a few days I wandered through the countryside, sleeping out in the fields. I remember a conversation with a farmer looking after his water-melons, asking him about his life, his income, what he really wanted, and trying to talk to him about democracy, the need for a genuinely elected government—things I had learnt just in the last month—and I realized that he did not have that many complaints about the Communist Party. Then, in a town one day I found myself watching a tv monitor, and suddenly, one after another, pictures of the twenty-one most wanted student leaders appeared on it, many of whom I recognized. Then my picture appeared too. It suddenly felt as if my universe had fallen apart. Of course I knew my situation was serious, but hadn’t imagined it could come to this. Having thought I could go around the country talking to people, discussing with students in Zhengzhou or Nanjing, I now realized this was impossible. I felt as if everyone was watching me. Pulling my straw hat down over my face, I took off on my bicycle, heading nowhere. It was very hot, and feeling sleepy, when I came to a river bank with some shade I lay down beside it. There I started thinking about what to do. Should I just keep running? Then I remembered the speech I had made when standing for election in Tiananmen Square. I had given my name and personal details, so that everyone would know who I was, and that they could trust me; after that, I had said we had legal grounds for what we were doing, and that if one day we were put on trial, we would have a good defence. But if we had to go to jail, I would be the first to go—and I would not let anyone arrest me, I would walk voluntarily into the prison myself. I had been loudly cheered. Now, I thought, I faced a choice: I could try to escape, swallowing the words I had said in front of these people, and be branded a liar—and that would be the end of my political life. Or I could keep my promise.
So I decided to go back to Beijing. Hurrying along, asking people for directions—I didn’t know exactly where I was—I rode towards the city. My great fear was that I might be arrested before I could get to Beijing. I remember crossing a bridge over a river, with guardhouses at either end, and uniformed police sitting outside them. I went past them very slowly, whistling casually, and had gone about 30 metres when they called out for me to stop. They asked where I was from, and got very animated when I said Beijing. I told them I was unable to go to work because of the chaos there, and had decided to return to my village for a few weeks. I pretended I was lost, and asked them the way to Shanxi. Suspicious of my travelling by bicycle, rather than by train or bus, they accused me of being a student who had fled Beijing, and asked to see my id card. For some reason I had hidden it in my shoes, but said I didn’t have it with me, and made up a name when they asked me. They took me to a yard, asked me to empty my bag and searched me. Then they made me undress and stand in the corner, and kicked me. At this point I decided to preserve my dignity, and told them they should treat me with respect. I was a normal citizen, I had done nothing wrong. And did they want to search my shoes—or even just shoot me?
They had calmed down by this point, and told me to put my shoes and clothes back on, and sit down. But one of them was looking at a little handbook, his eyes moving from me to one page, and then to another. ‘This looks like him’, he said, reading out the description. The other one said ‘Stand up’, and they compared my height with the particulars in the book. Luckily they didn’t quite match, and I had cut my hair very short. So the other said, ‘That’s not him’, and they eventually told me to pack my things and leave. I had ridden 10 metres away, when I turned around, going back to ask them for a chit to prove that I had been okayed, in case I was stopped at other checkpoints. The policeman who had said I definitely didn’t match the descriptions replied, ‘You know what, just run and save your ass’. I’m pretty sure he knew who I was, and had helped me through.
You got back to Beijing safely?
Yes, I arrived on my bicycle without further difficulty. In Tiananmen Square I saw soldiers with guns, and thought with pride of what I was about to do. In front of the Public Security headquarters, I walked up to a soldier and said, ‘I am Han Dongfang, I gather the Public Security Bureau are looking for me.’ He just took two steps back—he was a very young boy—and said, ‘Which department are you looking for?’ I said, ‘No, it’s not which department I’m looking for, it’s Public Security that’s looking for me’. He merely replied: ‘Go to reception, and get registered’. For a second I began to regret my decision. I thought I had become famous, but no one had recognized me, even when I gave my name; I could easily still run away. But then I was approached by someone coming down the stairs who clearly did know my face, and I remembered that this was not just about myself, but about the whole movement. It turned out this was one of the security officials who had been present on May 28th or 29th when I and others from our organization had negotiated the release of three workers who had been arrested in the Square. He said: ‘So you came in to give yourself up. What a wise decision—it’ll save your life’. I replied, ‘What do you mean—“give myself up?” I’m here to be responsible for what I did, because I believe what we did was absolutely right. Please get the soldiers to record that I have not given myself up.’
I had raised my voice, and by now there were a few onlookers in the reception area. He asked me not to create a scene, but to go quietly with him into the building, where he took me to a room and gave me tea. Half an hour later, another three or four plain-clothesmen came in and took me away through a back door into a car. We drove out past Dongdan, by my home, and I asked if I could speak to my family or pick up some clothes. They just said ‘Where do you think you are?’—and took me to the Paoju detention centre. There I was stripped and searched by two young armed policemen, who poured vicious abuse on me. When I said, ‘Why don’t you just beat or shoot me then?’, the plain-clothesmen told them to leave me alone. To me they said, ‘Now you know where you are, you’d better behave. You’re not in charge. We can do what we want next time.’ Then they took me to a cell.
How soon were you tried after that?
There was no trial. There was continuous interrogation. For the first ten days or so they focused relentlessly on one aim: getting me to say that I had given myself up—which of course I denied. They showed me newspaper reports of executions in Zhengzhou, Shanghai and Beijing, comparing me, for instance, with a man who was condemned to death for burning a truck. They said I could be shot a thousand times over for the damage I had caused, but that I had a golden opportunity to save my life—I just had to say I had given myself up. They kept me awake day and night—I slept no more than an hour each day. The worst was when they would get me up at midnight and bring me into a small, very brightly lit room. I would be put in a corner and cross-examined by people who were behind the light—I couldn’t see their faces, but could hear their voices. I could see a little red dot in the corner of the room which I was sure was a camera.
They just wanted me to say that I knew I had been wrong, and therefore had given myself up. Each time all I wanted was an hour of sleep, until the longing became truly desperate: counting the minutes, telling myself I must hang on for just one more before giving in, was really tough. In the end, one morning they said they had tried their best to save me, but that I didn’t know the value of life. ‘One day soon you will face a bullet, and we hope you remember us then’. I thanked them, and asked if I could go back to sleep. ‘Yes, now you can go to sleep forever’. So on the one hand, I had achieved a certain dignity. But on the other, life was about to vanish. It was a kind of emptiness that terrified me. I went back to sleep, and woke up haunted by guilt at not having been better to my own family, and because I no longer had any chance to express regrets to them before dying. For a month, I expected every day that the door would open and I would be called out to be killed. From a journalist friend I knew how executions were done in China. The final humiliation is to make you kneel down and face the earth, in front of a hole that has been dug in the ground. Then you are shot in the back and pushed into the hole. This moment before you die, when you have to kneel on the ground, about to be killed, was the most painful of all thoughts to me. I began to imagine how I would escape from this position. Eventually I decided I would bolt as soon as I got out of the police car in which I was being taken to be executed, so they would have to shoot me while I was running. Or else I imagined that, if they caught me, they would have to hold me down and shoot me while I struggled and shouted against them. After forming this plan I was calmer: I felt ready to die, and bore myself more firmly in the detention centre. My attitude of standing up to this whole killing machine earned me respect from the prison guards. Nobody ever touched me or beat me physically while I was in prison, although in due course I was tortured in other ways.
After a while I was put in a cell with twenty prisoners, all of whom had tb; some also had liver problems or skin conditions. These people really looked terrible—they were all coughing blood. The deputy chief of the prison, before putting me in this cell, told me he respected me a great deal, but that I was going too far; didn’t I know what co-operation meant? By then my only fear was of getting sick, and not living long enough to see the Communist Party fall. In the cell I contracted tb, and received no proper treatment. I was there for about nine months, till the spring of 1990. Then I was moved to Beijing First Prison in Banbuqiao, until the Public Security Bureau decided to build an apartment compound for its employees there, when all the prisoners there were transferred to Qincheng, in the northern suburbs. Several times I went on hunger strike, and came really close to dying. I couldn’t do anything on my own, and eventually had to be fed. One day some people from the prosecutor’s office in Beijing came into my cell—I had by this time been moved to Qincheng—and said they wanted to question me. I was too weak even to speak, so the other prisoners asked them to bring a pen and paper. I wrote that if they wanted to complete my case before I died, they should send me to hospital. They were so shocked, they just went away. But an hour later the prison authorities came and cut my hair, moved me out of the cell and put me on a drip for a day to make me stronger. They then sent me to a major hospital, where I stayed for two weeks and recovered a little.
My family was asked to sign papers for my release in the spring of 1991, but was not told about my illness. They thought I would be able to go for walks in the park, but I couldn’t stand up, or string a full sentence together. I weighed 90 pounds. Even the military hospital couldn’t diagnose my condition. My right lung was so badly damaged that it was like a piece of rock—nothing went in or out, so no bacteria showed up in any of the X-rays. A doctor from the Boston-based ngo Physicians for Human Rights, who had flown over to Beijing, looked at one of my X-rays and said he had never seen a case of tb infect a whole lung in this way. I was on medication for a year and a half, and then I was told the lung would have to be removed—otherwise, my heart would be affected. The afl-cio organized the operation for me at Columbia University Medical Center, and I got a visa to go to New York in the autumn of 1992. My friends told me that I should have the operation in Beijing, since if I left China I would never be allowed to return. I told them I knew what I was doing—I didn’t want any medical accidents—and said I would be back within a year.
One year later, I did come back. I didn’t tell anyone, not even my wife. I flew from Boston to Helsinki to give a speech at a conference of international public-sector trade unions, and bought a one-way ticket from there to Hong Kong. Nobody knew I was coming, I just arrived. On landing I called Robin Munro, who was very surprised to hear me, but picked me up and hid me on Lantau Island. After a week my Hong Kong tourist visa expired, so a Hong Kong friend and I took a boat to a little town on the border. We chose a place with just a police checkpoint but no computer, since I figured—correctly, as it turned out—that a computer would remember my name, but a policeman wouldn’t. Everything went as planned. Once across the frontier, we went by bus and taxi straight to Guangzhou airport. But all the flights to Beijing for that day were sold out, so my friend suggested we check into an expensive hotel, which would undoubtedly have a way of getting tickets for their guests. So we went to the Orient Hotel, which I learnt afterwards is controlled by the Public Security Bureau. At around 4.30 the next morning, there was a knock on the door, and a group of policemen burst in and arrested me. That afternoon they sent me back to Hong Kong via the Luohu bridge in Shenzhen.
After you were returned to Hong Kong, did you begin organizational work fairly quickly?
During the first two months, I tried several times to get back into China—after all, it is my country, I was born and grew up there and have a Chinese passport. Each time I was turned back, on one occasion being physically grabbed halfway across the bridge, and thrown back to the other side. But then I realized it wasn’t my job simply to make the Chinese government look bad by trying to cross the border every two weeks surrounded by reporters. I had to go back to my original purpose, which was to help create a workers’ movement. So in March 1994 I started the China Labour Bulletin. The aim was to produce a weekly paper that would talk about what was happening in China, describing the lives of workers, and explaining the idea of trade-union organizing to them. The concept was essentially an educational one. Based in Hong Kong, the Bulletin would face two ways, with one edition published in Chinese and another in English. Because of the amount of work involved, especially in the translations, it gradually turned into a monthly. We would send the English version out to trade union organizations abroad, and the Chinese version to factories in the prc. You can buy a directory of mainland factories, updated annually, in Hong Kong bookstores, which contains around 100,000 addresses. We would send the Bulletin out in an exploratory sort of way, to different plants selected from it. We would address the Bulletin to the trade union office in the factory, though I knew this meant it would often, if not always, end up in the local police station. But I didn’t mind that—police officers need educating most. After 1999 or 2000, we stopped printing the Bulletin and switched to a purely online version, an e-newsletter. We find it’s more attractive, and reaches more people. There’s also the fact that we can put transcripts of conversations with workers from my radio programme straight online and send them out, together with my commentary on the cases in question. You can check it out: www.china-labour.org.hk.
What about your radio programme, Labour Express?
I started doing a programme on Radio Free Asia in March 1997, shortly before the handover of Hong Kong by the British to the prc. They gave me airtime twice a week to comment on Chinese labour matters; but after a few months of this—at the end of 1997—I told them I couldn’t continue to talk about Chinese workers without talking to them. I was losing touch, my ideas were drying up. I suggested I give out a telephone number so that my audience could call toll-free. Sure enough, people began to call in. I would ask those ringing from home to call again from a public phone, and then I would return the call. Those ringing after office hours would leave messages—when we arrived in the mornings we would find the tape full. My writings really benefited as a result of this dialogue with my radio listeners—my articles became much more down-to-earth and concrete. I then realized that all these conversations should really be brought into the open, and decided we should put them on the air, provided the callers agreed. I began to get more and more phone calls, and people were very willing to talk. To begin with we used software to alter callers’ voices so they couldn’t be recognized, because I didn’t want to get them into trouble. But they increasingly said, ‘No, I don’t want my voice changed! I want to speak the truth.’
Then we began to cover demonstrations and strikes, not after the fact, but as current news stories. I would produce a report including interviews with workers, government officials, trade unions, management and so on. For example, in 1998 there were a number of disputes over back pay, and the treatment of retired and off-post workers. There were protests in the street, and I would receive a call from a public phone in front of a government building, telling me there were five hundred people there. So I would phone back, and interview people at the other end of the line, asking them about their problems and their lives. It was extraordinary—like having a reporter on the scene, recording the news live. Then I would call local government officials, and ask what they were going to do, and why the situation was getting worse and worse. And I would ask the trade union officials what they were doing for the workers—and they would reply that they were trying to calm them down and send them home, because workers didn’t understand the difficulties that management and government faced, and so on.
Were the calls you were getting coming from any regions in particular—for example, were they mainly concentrated along the coast?
No, they came from everywhere—even Tibet and Xinjiang. The distribution of the calls has depended more on the period than on the region, in particular on the timing of the reforms of state enterprises in any given part of the country. Around 1998–99 there were a lot of off-post protests in Heilongjiang, Gansu and Guizhou, for example, and stoppages of trains in the coalmine areas of Sichuan.
Are people able to listen to the programme all over China?
It depends on the area—sometimes the signal is jammed, and people call and complain. They can’t believe the Americans, with all their technology, can’t get around the jamming, which is done by local radio stations where the army is involved. Basically, they just broadcast alternative programmes over the same frequency, operas and the like.
Has the element of fear diminished since you started this kind of reporting?
Yes, people’s fear is disappearing. The reason, in my view, is that anger is growing, and eclipsing fear.
How would you say your ideas have developed as a result of the radio programme and the Bulletin?
I’ve learnt a great deal. By talking to so many different people I have been forced to become more realistic, and think in increasingly concrete terms about how to resolve problems. It was very difficult in the beginning, but I developed an ability to get a general picture of a factory by talking to different workers, managers and government officials. Then I realized that though I could comment on these things, I could not provide solutions—firstly because I was unable to, and secondly because no one had voted for me. I did not represent anyone.
To start with, when I put together reports on demonstrations and talked to various officials, I would try to force them to respond to my questions, to which they would give stupid answers that highlighted the sickness of the system. I would get quite excited about our success in doing this. But after a while I realized that activity of this kind doesn’t actually help resolve any of the problems in the factory. The question of back pay, for example, is dependent on the budget of the enterprise; if the money isn’t there, I could be sitting in the official’s chair without any better solution myself. I felt then that workers should try to resolve disputes in a peaceful and rational way, by negotiation. If nine months of back pay are owed, and the government can only pay for three, there’s no point standing in the street until the full sum is paid; you negotiate and get them to pay three months, say, and the rest in nine months’ time. But then I realized that, without a legal basis for the negotiations, there is nothing to hold the government to its promises.
So we developed a form of struggle which involved encouraging workers to file lawsuits. The law is very clear on the government’s responsibility to pay workers’ salaries; not only is the Ministry of Labour obliged to disburse back pay, it must also pay a fine for letting arrears build up. Since about two and a half years ago, the Bulletin has been actively intervening in such cases. We no longer observe from the sidelines, we explain the legal procedures to workers, and find lawyers willing to take their cases. Two years ago, some ten workers from a huge textile factory in Suizhou, in the province of Hubei, were arrested after a demonstration. We got them a lawyer from Beijing, whereupon the charges were dropped and the authorities sent them directly to a re-education centre without trial. So we went to the local Public Security Bureau with the lawyer, insisting that this was an illegal administrative decision, and they released the workers. It was a very effective intervention. After this, we developed a ‘law case intervention programme’, which has been very productive so far. More and more lawyers are willing to work with us directly, they don’t feel the need to hide themselves at all—they are making money from it, in professional fashion.
So far you’ve spoken about state enterprises. What about disputes in the private sector?
The private sector can be divided into two parts: domestic and foreign enterprises. It’s much easier to deal with foreign firms than with Chinese. Local companies mostly consist of privatized former state-owned enterprises, whose current owners are former managers or officials, cutting local officials in on their profits. So in cases like these, one is still up against local government functionaries, who are very protected. With foreign factories—including those owned by Taiwanese, Hong Kong and Korean investors—the owners of course pay off local officials, but you can push these officials into a corner by pointing to the labour law and telling them they are protecting foreign investors at the expense of Chinese workers. It’s much easier to apply pressure by making this kind of argument.
I’ve also realized it’s easier for workers in foreign factories to launch actions. They often come from the countryside, and have never been taken care of by anybody. In former state-owned enterprises, many workers stayed on after privatization, even at dramatically reduced wages. Yet many of them still feel as if the state should somehow take care of them. The belief is residual, but it’s enough to stifle their independence—they don’t want to burn their bridges by doing anything drastic on their own. Years ago, for example, the government was going to close down a factory. We encouraged the workers to take legal action and organize, but they didn’t want to. Many of them were scared, and willing to accept less favourable terms. Most lost everything, and even those who kept their jobs are working in far worse conditions. Now they’re eager to fight, but it’s too late. The platform for building solidarity has been lost—where you had, say, five thousand workers before, now you have only three hundred. All this makes organizing in former state-owned enterprises a disheartening experience. We believe that workers in foreign factories should be the main target of organizing for the labour movement in China. Once you get these people organized, they will influence the privatized state-owned enterprises.
You mentioned back pay. What are the other main issues that arise? Working conditions? Wages? What about unemployment?
Alas, we cannot hope to organize the unemployed. Often workers contact me complaining in advance about an unfair dismissal. I encourage them time and again to file a lawsuit, but they refuse, preferring to petition the authorities—again and again, until they formally lose their job. By that time it is too late, because there is no legal record to show that they did not consent to their dismissal. This sort of thing is especially upsetting, because these people are the poorest of all, those who need help most. Against our will, we are forced to choose particular points of entry, if we hope to build a movement. We don’t see China Bulletin as a service centre—though we will of course help with individual cases where we can. We see ourselves as creators of a labour movement, and believe that workers’ protection in future depends on whether we can successfully create a strong one. So we have to make painful choices—to drop one case and continue with another, if the second looks as if it could develop into a collective issue, in which workers might select representatives who could eventually develop into trade union leaders. For it is through these legal struggles that they can be encouraged to form a union in their factory. Once there are elected union representatives, we are one step further towards reforming the official trade union, which we do not want to get rid of, since we see it as a useful shell. It has to be changed internally, with increased worker participation. At factory level, once you have members pushing for elections, impeaching irresponsible officials, bringing lawsuits, so many things become possible. We offer legal education to workers, telling them how to organize a union, helping them with election procedure, producing membership cards, keeping contact with people.
At the same time, because we do everything on a solid legal basis, the local Public Security Police can’t do much to these workers. We explain to the workers that we are helping them because of their labour disputes, and that we wish to solve them for the good of everyone. So if the police ask them if we have a hidden agenda, there’s nothing anyone can say against us. Recently, there was a 49-day strike in a textile factory in Xianyang in Shaanxi. Most of the workers were women. I drafted election procedures for them, highlights of the trade union and labour laws, and offered to find a lawyer for them in Beijing. Then the leaders were arrested. On the one hand, I was reasonably sure they would not be treated like the workers in Liaoyang. On the other hand I thought, my God, I have effectively sent these people to prison. Three months later, they were released. After this, we learnt to stay focused on the most down-to-earth labour disputes and concrete issues. The Xianyang factory was bought by a Hong Kong-listed company, with a state background, called China Resource. They promised the workers nothing would change, and that everyone would get long-term contracts. But as soon as the deal was done, the workers were told that the longest contract available would be for three years, and that everyone was on six months’ probation. Extremely skilled workers who had been in the same job for 20 years were now on probation, and receiving only 60 per cent of their previous salary. That’s why they began to protest—they locked the factory gates and completely stopped production. Today, they are still working. They have not been laid off.
Just recently I received an email from a primary school teacher employed at a coal mine in Jilin, writing on behalf of thousands of miners. He said he had read one of my articles on the internet, and absolutely agreed about the need to organize the workers, so he had downloaded the article, printed it out and circulated it among the miners. They were very excited about the idea of getting organized legally, but wanted my help because they didn’t know the correct procedure. These are the sorts of cases I want to focus on, which need to be dealt with extremely carefully. People in China experienced the Cultural Revolution, June 4th, and then after June 4th came darkness; they are very afraid, but cannot explain why they are afraid. I believe the worst fear is felt when you can’t understand it or find a reason for it. Once you know the reason, you can deal with it. By giving legal assistance to the workers, we’re making it very clear that there is no reason to be scared, that for everything they are asking for there is hope.
Would it be accurate to say that all branches, wherever one looks, of the official trade union are acting on behalf of the management, rather than for the workers?
Yes, this is absolutely true, and it applies everywhere. In most cases, the trade-union functionaries themselves are also part of the management.
Is your strategy to get workers to be sufficiently self-confident to vote these people out of office, and insist on having real representatives?
I used to think that, but I view it as impossible so long as people are afraid. Also, I don’t know the technical procedure. Furthermore, even when I’ve talked to workers about labour law, trade union law and so on, they would still rather concentrate on specific cases than on trade union elections. I have to convince them that a union election is closely connected to their case, to make it more legitimate. But we do believe that if there are more workers in the factory organizing elections, there will be real pressure on this trade union system—if you don’t represent these workers, they will kick you out of office. Even the best people in the present machinery, who have genuine sympathy for the fate of their workers, have never been trained to organize anything. They have no idea how to represent the workers. So far as lawsuits go, on the other hand, the most important thing is that they build self-confidence. If you have collective self-confidence, it’s fine to make mistakes with procedure, you can correct them, learn and move on. But if you don’t have self-confidence, you won’t even begin. This is why providing legal guidance and lawyers is so helpful to these workers—they’ve finally found solid ground to walk on.
The implication of what you’re saying is that the workers can have confidence in the courts.
If you have enough workers together, you make it more difficult for the courts to make decisions that go against the country’s own laws—which of course they are fully capable of doing.
Are there cases in which workers try to strike for higher wages? This would be a normal thing elsewhere.
It is happening more and more now. There are virtually daily strikes in the Shenzhen area. These are strikes for shorter working hours, higher wages, better working conditions. But this is the nature of the working class—they will wake up by themselves, whether or not the China Bulletin is there. All we can do is to make the journey to collective self-confidence shorter, and one for which workers will pay less of a price, avoiding desperate struggles that they can only lose.
Are the people who get in touch with you mostly elderly or younger workers?
A mixture. It depends on where they work. In former state-owned enterprises, it’s mostly older people, who are not yet retired—around 40 or 50 years old. They still need their jobs, and now want to fight, but don’t know how. At the moment we are focusing on foreign factories, especially in the Shenzhen and Guangdong areas, on cases of work-related disease. In struggles over wages, it can sound like you’re asking for more than the basic; but here, where people have contracted diseases because of bad working conditions, you’re asking for well below the basic. For this reason, when we hold the local labour bureau to account, we get a lot of sympathy from reporters, lawyers, judges, even government officials responsible for other areas. It’s through cases like these that we can explain everything—freedom of association, collective bargaining, labour and trade union law, respect for basic human rights—analysing everything in concrete terms. It’s because we go through the legal system that no one can be against these workers. If we can persist, we could make ourselves indestructible.
Your strategy wagers everything on legal actions, of a defensive character, to build collective self-confidence. But don’t ordinary people in China, both workers and peasants, employed and unemployed, feel passionately about issues of social justice, just as strongly as about legal justice, if not more so? There is massively growing economic inequality, seizures of peasant land, huge enrichment of corrupt officials, businessmen and yuppies. How can one realistically expect the anger this causes not to lead to popular explosions outside, and against, the highly repressive laws of the land? Would you tell people they must keep quiet and suffer the status quo, when their indignation boils over?
It is correct that ordinary people in China now feel no less strongly about social justice than about legal justice. However, our approach does not mean that our understanding of the one precludes the other. In China’s modern history, efforts to solve social problems by social means have occurred again and again, in a cyclical pattern. This is not just something that has happened in the past—it is very much present at the moment. In other words, it does not require anyone to push or to mobilize for it to take place. It happens all the time without special mobilization. The contribution that we can make at the China Labour Bulletin is to offer another line of thinking, that differs from the tradition of uprisings, armed struggles, revolutions.
Our approach is to offer more options to ordinary Chinese people when there is an explosive social problem. Will you put your trust in gathering tens of thousands of people onto the streets, or in seeking legal help from a lawyer? Most Chinese people believe in the former rather than the latter. It’s not just part of our modern history. It’s very much in the blood of our reality today or even tomorrow. So there is no need for us to work on it. What China has historically lacked is a fair legal system and the rule of law. Efforts to create these have never yet succeeded. This is what we are trying to do—to solve existing social problems through existing legal systems. In a sense, you could call it a cultural project: encouraging people to trust in peaceful negotiations. That kind of confidence is needed for a healthier development of the country in the future. When people speak of ‘sustainable development’, it must also mean a society where the government is restricted by laws, and cannot abuse its power with impunity. Meanwhile, citizens have to learn the skills to negotiate for their own benefit, as well as to use legal leverage to fight for their civil rights.
These are all means that lie outside the ‘old’ modern Chinese conception of social revolution. Unfortunately, they have not yet taken root in contemporary China. But we have to try to develop them. To speak pessimistically, this is to work when you know it is almost unworkable. It’s to make an effort. To be sure, I will never criticize or try to stop ordinary people in China when they take to the streets to protest against social injustice. I have no objection to mass protests and no obligation to defend the ccp’s version of ‘social stability’. However, I will not encourage people to take to the streets, either. Whenever there is an opportunity, I try to point out the other options.

Venezuela under Chávez: The Path toward Dictatorship


Venezuela under Chávez: The Path toward Dictatorship By Roger F. Noriega
Latin American Outlook AEI Online  

Perhaps the most generous interpretation of Venezuelan president Hugo Chávez is that he is a man who wants to help his nation’s long-neglected poor majority. He certainly appears to enjoy their support. According to most recent polls, his approval ratings hover around 55 percent. From his earliest days in power, Chávez tapped into discontent among the poor majority of the nation who regard previous governments as corrupt and unaccountable. He has used this political clout and a caudillo style to centralize power under a highly ideological executive.

In short, although Chávez has thus far managed to appease outsiders by maintaining the façade of democracy (allowing but harassing the opposition parties and the independent media; and conducting increasingly uncompetitive elections), he and his political allies in the legislative branch and the courts have almost taken complete control over the state.

Many leaders in Latin America and the Caribbean tolerate him because he is generous in spreading Venezuela’s oil wealth around to buy influence for his revolutionary, anti-American project. But what happens when Chávez no longer maintains popular support? Will the strong, centralized system allow dissent? As the country prepares for presidential elections in December, it is time for both Venezuelans and the international community to evaluate the state of democracy under Chávez. Historians will likely look back at this period and write of “Chávez the dictator” or of “Chávez the would-be dictator”--depending on whether his people and his neighbors are able to contain his undemocratic project.
 
Venezuelan president Hugo Chávez has forged an intensely ideological, combative, and intolerant regime, brandishing polarizing rhetoric to divide and incite social classes and mobilizing the tools of the state to suppress and persecute his opponents. Since taking office, he has systematically concentrated power under his so-called Fifth Republic Movement (Movimiento Quinta República or MVR). One of his first orders of business after taking office was formulating a new constitution that established the Fifth Republic Movement and cast out checks and balances in order to consolidate power in the executive branch. His 1999 constitution eliminated the Senate and did away with congressional oversight of the armed forces.

Chávez’s allies in the National Assembly have used their power to place the courts and other public ministries in the hands of hard-core Chavistas and to adopt measures to harass the media and other potential opponents. Chávez sealed control of the National Assembly in the December 2005 elections; opposition parties boycotted the process (and 85 percent of Venezuelans did not vote) after Chavista electoral authorities refused to take steps to guarantee a free and fair process. And, the military and some police organizations have allowed themselves to be converted from legitimate instruments of the state to partisan weapons to be wielded against fellow citizens. Rather than seek to ameliorate political unrest and social tension, Chávez and his loyalists use polarizing rhetoric and measures to “smoke out” those who do not share their political beliefs and to stifle dissent.

Harassed Opposition and Controlled Elections
 
Several regional leaders--including Organization of American States (OAS) secretary general José Miguel Insulza--have declared that it is not enough for a leader to be elected democratically if he does not govern democratically. The case against Chávez is fairly damning. International observers have found that the voter lists and electoral apparatus are seriously flawed. And, it is difficult to conceive that any future election conducted under the current conditions by the partisan electoral apparatus would “pass muster” with international observers. While opposition candidates certainly face a popular Chávez, they are further impeded by an electoral system largely controlled by regime loyalists. A recent poll by Consultores 21 found that less than half of Venezuelans thought the National Electoral Council was impartial (46 versus 49 percent).[1] Said presidential candidate Teodoro Petkoff, Chávez “has the entire state apparatus at his service, and he uses it unscrupulously.”[2]

It is indisputable that Chávez came to power--and has held onto it--through elections with considerable popular support: he was elected twice to the presidency and survived an August 2004 referendum that would have truncated his term in office. The opposition has been unable to prove its claims of fraud in the referendum balloting. However, in legislative elections held in December 2005, despite Chávez’s urgent appeals to the revolutionary fervor to consolidate his hold on power, only around 10 to 15 percent of Venezuela’s registered voters participated.

Opinion polls show that most of Venezuela’s voters support Chávez and consider him a committed democrat. However, Chávez has surely learned from his tutor Fidel Castro that, although a dictator might care about public opinion, the simple fact is that he does not have to--particularly once he brings his opposition under control. And, while he might concern himself with the outcome of a given election, whether to even hold an election is up to him.

Chávez appears not to fear elections--in part because of his string of victories (of decreasing transparency). He appears to have made a cynical calculation that, as long as he conducts open contests, he can blunt any criticism from abroad. He has spared little effort to bring the electoral authorities of the nation under his control, relying on his absolute control of the National Assembly to change the composition of the National Electoral Council. Today, not a single person identified with the opposition serves on the council that oversees national elections.

Most recently, Chávez responded to allegations of flawed democracy in Venezuela by accusing the opposition of plotting to boycott the December presidential elections so that they would not have to recognize his inevitable victory. Should they do so, he threatens to call a referendum to ask the public if they want him to serve until 2031. Chávez has proven himself to be a shrewd politician: he simultaneously allows a fairly vocal opposition while spinning their cries for democracy into reasons to further legitimize his control over the electorate. So, in essence, Chávez has assured his movement of electoral victory--whether the opposition chooses to compete or not.

Chávez’s regime does not rely only on legal means to abuse its opponents. Before and since the political crisis that led to his temporary removal from power in April 2002, Chávez’s security forces used indiscriminate and excessive force to put down political demonstrators. His opponents have been subjected to extended and unlawful detention and torture. Internationally respected human rights organizations have documented in dramatic detail cases in which Venezuelan security forces used excessive force or caused the death of innocent bystanders.

A nationwide network of so-called Bolivarian Circles (Círculos Bolivarianos) and violent groups like the Tupamaros consisting of armed thugs routinely attack Chávez’s political opponents. Also, the OAS Inter-American Commission on Human Rights has criticized the state for failing to prosecute hundreds of cases of extrajudicial killings and for not investigating “death squads” operating in the country.[3]

The Judiciary in Chávez’s Hip Pocket

“Justice” is meted out swiftly against opponents of the regime, while a pattern of alleged abuses by government security forces goes unpunished. In a 2004 report, Amnesty International issued an extraordinarily damning declaration against what is supposed to be a democratic government, saying, in part:

Over recent years, these [Venezuelan] institutions have failed to fulfill their constitutional role to act with equal impartiality against government sup-porters and opponents accused of committing crimes related to the ongoing political crisis. This lack of impartiality, combined with long standing structural weaknesses of these key institutions, threatens to strengthen the culture of impunity that has accompanied human rights abuses over many years in Venezuela.[4]

The OAS’s commission has also accused the Venezuelan state of repeatedly violating its international commitments by failing to comply with decisions issued by the commission, thereby placing “in peril the lives and personal integrity” of Venezuelan citizens.[5]
Chávez and his allies have worked assiduously to reconstitute the Supreme Court and lower courts in order to ensure the political reliability of the magistrates. The new rules established for the appointment, renewal, and suspension of judges--by a simple majority of the National Assembly--have had the effect of packing the courts with judges known for their ideological loyalty to Chávez’s political movement. The scrupulously impartial OAS Human Rights Commission has asserted that these laws “appear to have helped the executive manipulate the election of judges during 2004.”[6]

In December 2004, Chávez loyalist Pedro Carreño, head of the legislative commission nominating new judges, said that not one of the nearly fifty appointees on that occasion could be considered opposition figures. “We’re not going to score a goal against ourselves,” he said.[7] Omar Mora Díaz, the current head of the Supreme Court of Justice, boasts of his commitment to armed struggle as a teenager. Although he denies being associated with any political movement, he declares himself a “revolutionary.”
The OAS Human Rights Commission has complained bitterly that the Chávez regime has failed to investigate and prosecute accusations of politically related violence and murder. In fact, the regime uses the investigatory powers of the state to harass and persecute its opponents. One infamous example is that of the political witch hunt conducted by Chavista prosecutor Danilo Anderson, whose mandate was to ferret out those involved in anti-Chávez activities. On November 18, 2004, Anderson himself was murdered by a car bomb. While the regime has declared him a hero of the revolution and used his murder to widen its assault on its opponents, several have accused Anderson and his team of extorting bribes from would-be targets.

As a new presidential election season nears, the regime continues to use its now well-practiced judicial team to target popular opponents. Henrique Capriles Radonski, the thirty-three-year-old popular mayor of Baruta, a middle-class neighborhood in Caracas, was a target of Chávez’s judicial harassment under the assassinated prosecutor Danilo Anderson. Just as the 2004 referendum process was under way, Capriles was charged for crimes he allegedly committed two years earlier. On April 12, 2002, during the period of Chávez’s brief ouster, anti-Chávez protestors amassed outside of the Cuban embassy located in Baruta. Fearful of violence, a European ambassador asked Capriles to come to the site to quiet the crowd; he was admitted to the embassy by the Cuban ambassador Germán Sánchez Otero. Capriles urged the crowd to disperse, effectively ending a siege of the diplomatic compound. Capriles was later charged with trespassing, abusing his post, and violating international principles for his actions at the Cuban embassy. He was jailed for three months and then released in October 2004 after the case was thrown out by appeals courts.8 Now that Chávez has a stronger hold on the judiciary and is setting the stage for the upcoming presidential elections, Capriles’s case is back in court. He is set to go to trial on June 9.[9]

Also coming before the courts again is the case of María Corina Machado, one of the founders and leaders of Súmate, a Venezuelan nongovernmental organization (NGO) dedicated to promoting democracy. Súmate has been meticulous in documenting electoral tampering and has been vocal about its findings, making it an obvious target. In February 2004, Chávez announced the investigation into the financing of the group for accepting funds from the U.S.-funded National Endowment for Democracy--which Chávez asserts were used to destabilize his government. Machado was charged with “conspiracy,” under the penal code that stipulates that soliciting foreign intervention in Venezuela’s domestic policy is subject to eight to sixteen years in prison. The prosecution also has declared Súmate to be a political party (which would make it explicitly illegal for it to receive financial support from foreigners), even though the National Electoral Council (Consejo Nacional Electoral or CNE) does not recognize the group as a political party.[10]
Machado also has been charged with treason on equally questionable grounds for allegedly signing an anti-Chávez manifesto during his April 2002 ouster. Machado explains that she never signed such a document and that her signature was taken from the guest registry of the presidential palace. In February 2006, the case was dismissed and sent to another court after the European Union ambassadors advised the government that they planned to attend and monitor the court session.[11]

Media under Assault

It is true that opposition voices are heard regularly through the media. However, since Chávez’s rise to power--in which some media moguls actually supported him against the traditional power structure--he has gradually eroded freedom of expression. Using both legal measures and mob violence, his regime has harassed media organizations and individual reporters to reduce the coverage of dissident views and to produce self-censorship. Popular channels have virtually eliminated their opinion and news programming, and national reporters considered unfriendly to the regime have been harassed, detained, and accused of baseless offenses.

Patricia Poleo, a Venezuelan reporter who has earned international acclaim for her investigative reporting, has been the subject of judicial harassment since she embarrassed the Chávez regime by revealing that Venezuelan security forces were harboring international Peruvian fugitive Vladimiro Montesinos. She has been prosecuted at least once and has been summoned to reveal the sources in her investigation of the November 2004 assassination of Chavista prosecutor Danilo Anderson. While Poleo asserts that the state is trying to hide the truth behind the Anderson killing, the regime has responded by accusing the reporter of masterminding the car bombing.

In December 2004, the National Assembly approved a media law that international observers--including Human Rights Watch, Reporters Without Borders, and the Inter-American Press Association--have criticized as a tool to stifle freedom of expression. The OAS Inter-American Commission on Human Rights stated, “The use of vague terminology together with the existence of potentially excessive penalties, could have the effect of intimidating the media and journalists and, consequently, of curtailing the flow of information about matters of public interest.”[12]

Undermining Independent Labor Unions

Chávez has even led an assault on the independent labor movement. In December 2000, his government orchestrated elections of labor leaders in which non-union members were allowed to cast ballots. This transparent attempt to replace independent leaders with Chavista loyalists was strongly rejected by the International Labor Organization (ILO). Nevertheless, when elections were finally held in October 2001, the non-Chavista slate was reelected, although the regime has failed to accept these results.

Several union leaders are now being pursued by the regime for their role in the April 2002 events in which Chávez was removed from power for forty-eight hours. National labor leader Carlos Ortega was originally charged with “rebellion, sabotage, and treason,” and he fled the country. After returning from exile, Ortega was tried for “civil rebellion” and “incitement to commit a crime” for his role in an opposition-led national strike in 2002-2003. Ignoring a ruling by the ILO in June 2004 that declared the strike a legitimate exercise of workers’ rights, Ortega was convicted and sentenced to nearly sixteen years in prison. He is in prison today.

The “Enemies List”

After succeeding Richard Nixon as president, Gerald Ford is said to have remarked, “A man who has to make a list of his enemies has too many enemies.” In 2005, Chavista legislator Luis Tascón revealed the existence of a list of over 3 million Venezuelans who signed petitions in 2003 and 2004 calling for a referendum on Chávez’s tenure. Tascón published the list on his website prior to the August 2004 referendum.
Venezuelans have complained of having been persecuted for daring to associate with the opposition by signing a petition. Many on the infamous list say they have lost government jobs or contracts. Others have been refused basic public services, including passports. Close to 150 people who signed the petitions have reported being fired from their government jobs, and another 600 have complained of harassment on the job.[13] Venezuelan minister of health Roger Capela stated publicly that “a traitor cannot have been in a position of responsibility, and this state has a policy and a responsibility to the government in which there is not space for a traitor . . .  those that have signed are fired.”[14] Because this naked political aggression attracted so much attention, the Chávez regime disavows using the list and claims to be investigating its origins.
The list has resurfaced in a new iteration, as an electronic file called Batalla de Santa Inés Maisanta that contains the information of more than 12 million registered Venezuelan voters. The file contains not only the address and whether or not the individual signed the referendum petition, but also codes his political affinities and electoral participation rates.[15] The electronic list is available for purchase both on the streets of Caracas or at MercadoLibre (Venezuela’s version of eBay) for less than five dollars.[16]

Although losing a job or a government contract are by no means on the same level as gross human rights violations committed under previous authoritarian regimes in South America, the importance of these practices, particularly for expressing a political opinion or exercising an essential political right, should not be underestimated. Given the overwhelming role of PDVSA (Venezuela’s state-owned oil enterprise), which accounts for roughly one-third of the GDP and almost half of Venezuela’s fiscal income, and the role of the government in the economy more generally--public spending is equal to almost one-fourth of the nation’s GDP--government jobs and contracts are in many cases vital for an individual’s economic well-being. The threat of losing a government post sends a powerful message that not only threatens a citizen’s right to cast a secret ballot but to exercise other constitutional rights in opposition to the government.

  
Blurring the Military-Civilian Line

Chávez has militarized politics and politicized the military. During the past several decades, Venezuela has never had a strong separation between politics, military, and civilian life--although the military institutions in particular were respected as professional. Under Chávez, these barriers have been eliminated. Chávez has interfered in military personnel matters and has given civilian posts to trusted military comrades.
Chávez and the Fifth Republic Movement both got their start in the revolutionary faction of the Venezuelan armed forces, the Movimiento Boliviano Revolucionario 200 (MBR-200). Chávez first made his name as a lieutenant colonel in the Venezuelan army and as one of the junior officers and founding members of MBR-200. The populist movement was based ideologically on the teachings of Simon Bolivar. As early as 1982, the group began plotting a revolutionary coup against the democratically elected civilian government. A decade later, Chávez made his first television appearance after admitting defeat during a failed coup attempt in April 1992, immediately after which he was imprisoned. Although the coup failed, Chávez was successful in imprinting his name and image in the hearts of those sectors of the public that opposed the existing political order. The ideals of the MBR-200 later were accorded political legitimacy when reconstituted as the Fifth Republic Movement.

The 1999 constitution was the first step in many of reversing some of the de jure checks and balances put in place by previous governments. It further politicized the armed forces by removing the previous constitutional stipulation that the military maintain a “non-deliberative” role, giving standing officers the right to vote, and granting Chávez the power to ultimately arbitrate military promotions. Chávez’s polemics then encouraged opposition voices within the armed forces to retire, while he used his new authority to reward his supporters within the ranks of the armed services. The promotions were not just within the armed forces; he rewarded some supporters with high-level governmental positions (although individuals did have to retire from the armed forces before serving).

Tension between Chávez and apolitical military professionals came to a head in April 2002 when senior military personnel refused Chávez’s order to use military force to quell civilian demonstrations. Chávez took advantage of the ouster attempt to further purge opposition from the ranks of the armed forces.

In an effort to further link the military to the government and then to economic development under his Fifth Republic Movement, Chávez has expanded the role of the military into civilian projects such as his first social assistance program (or misión), the Plan Bolivar 2000, in which the armed forces replaced state and municipal governments in regional development projects such as building infrastructure and performing mass vaccinations.

Chávez has recently called for restructuring the armed forces, including increased reserves (from 30,000 in 2004 to 150,000 in 2006) and the mobilization of the Guardia Territorial (Territorial Guard) to protect Venezuela against invasions. The latter would be a completely civilian reserve paid $7.44 per session to train in physical conditioning, the use of assault weapons, and obstacle courses that include using tear gas.[17] Already, 1.5 million civilians have begun the four-month training session; the majority of these come from the poorer regions of Venezuela where Chávez enjoys great popular support. Critics charge that the Guardia Territorial responds directly to Chávez, and therefore could be used as an instrument of repression.[18]

What Is to Be Done

The United States should not seek confrontation with Chávez--but it will not have to because Chávez will persist in provoking his arch enemy. However, the United States must walk a fine line between responding to Chávez’s every provocation and being straightforward in expressing U.S. concerns regarding the deterioration of democratic institutions in Venezuela and Chávez’s destructive, divisive agenda in the hemisphere. Particularly because so many others nations are reluctant to speak out in defense of common democratic values, the United States should not be silent on these issues. But, explains current assistant secretary of state for Western Hemisphere affairs Thomas Shannon Jr., “The purpose is not to allow him to define the terms of the confrontation and to make sure that as we engage with him, we are not doing so in a way that harms our larger interests. . . . It would be a mistake for U.S. policy in the region to overly concentrate on the guy. If we allow ourselves to be trapped in the kind of confrontation that he wants to have with us, it lessens our influence with others in the region.”[19]
Chávez’s weekly attacks on the United States and President George W. Bush are far from undisciplined outbursts. By squaring off against the “empire” and accusing the United States of planning to invade Venezuela, Chávez achieves two key objectives: he denigrates any opponent inside or outside of the country as a pawn of the United States, and he can portray his domestic opposition as traitorous agents of an enemy power. Indeed, in multilateral fora, most Latin and Caribbean leaders are unwilling to confront Chávez’s excesses at home, in large part because they do not want to be drawn into Venezuela’s internal affairs or a bilateral confrontation between the United States and Chávez.

Latin Americans must recall the history of militaristic regimes that have undermined democracy. They must also remember their commitment under the Inter-American Democratic Charter that “[t]he peoples of the Americas have the right to democracy, and their governments have an obligation to promote and defend it.”[20] Certainly no one expects a single Latin American or Caribbean leader to confront Chávez. But working as a team--particularly within fora and at meetings at which the United States is not present--they should ponder their unique responsibility to their Venezuelan brothers and sisters. For example, as the Mercosur countries welcome Chávez with open arms, they should consider the implications for their own “democracy clause”--one of the first of its kind in the world. Of course, this requires our friends in the region to educate themselves about what is happening in Venezuela and what Chávez is doing to subvert democracy in their own countries. All of the region’s leaders should think about what they want history to record of their actions, as 30 million Venezuelans find themselves at the mercy of an emerging dictatorship at the dawn of the 21st century.

Chávez’s direct intervention in the electoral campaigns in other countries demonstrates that he respects no limits when it comes to advancing his agenda beyond Venezuela. He has made reckless statements for and against political candidates in Bolivia, Peru, and Nicaragua, and he has signed an oil pact to provide support through the Frente Sandinista de Liberación Nacional (FSLN) to influence the ongoing presidential campaign in Nicaragua. His intervention has finally convinced some Latin Americans that they must speak up to defend their sovereignty from his imperial designs.

OAS secretary general Insulza has a mandate from the 2005 General Assembly to devise proposals for the OAS to respond to “situations that might affect the workings of the political process of democratic institutions or the legitimate exercise of power.”[21] He also has the authority under both the Inter-American Democratic Charter and the OAS Charter to bring undemocratic practices to the attention of the OAS Permanent Council. The OAS’s human rights institutions have been the most categorical in documenting the abuses of the Chávez regime, although they have failed, thus far, to impose any effective penalties. The OAS’s very relevance and credibility are at stake as Venezuela continues down a path toward dictatorship and the organization fails to respond effectively.

The OAS, the European Union, and others should refuse to observe Venezuela’s 2006 presidential elections until significant changes are made in the rules of the game. International observers threatened to withdraw their imprimatur from elections in Nicaragua in 1990 and Peru in 2000, and in both cases the regime in question relented. If Chávez refuses to overhaul the electoral machinery of his regime, no international observer should risk its credibility by being associated with another electoral whitewash in Venezuela.

International NGOs--groups of democratic politicians, labor unions, journalists, lawyers, and human rights advocates--must also make a conscious effort to close ranks with their colleagues in Venezuela and take up their cause in international fora. They should also hold their international conventions in Venezuela to try to generate global attention to their plight and create the political space that Venezuelans require to begin to reclaim their future.

The ultimate responsibility for salvaging Venezuelan democracy rests with Venezuelans themselves--not merely those who oppose Chávez, but those who value their own freedom. Whether or not political parties decide to boycott the upcoming presidential elections is a decision they must make for themselves. However, it is an essential obligation of the political opposition in a democracy to present an alternative vision. Although they have every right to make substantial election reform a key issue in the public debate (and perhaps a precondition for their participation), they must also be able to present a constructive agenda for the political restoration and social development of a great nation. To be sure, the inter-national community will be much more willing and able to support democracy if the country’s democratic opposition is united, coherent, and engaged responsibly in the political struggle. Given the record amassed by Chávez, one would hope that a majority of Venezuelans would take a stand to secure their essential liberties, to begin to reconcile a divided country, and to back a political alternative that appeals to their hopes and not their fears.

AEI research assistant Megan Davy contributed to this article. AEI editor Scott R. Palmer worked with the author to edit and produce this Latin American Outlook.

Notes
1. “Encuesta versus Estrategia” [Survey versus strategy], El Nacional (Venezuela), March 19, 2006.
2. Fabiola Sánchez, “Venezuela Ex-Guerrilla Fighter Pledges to Take on Chávez in Presidential Elections,” Associated Press, April 21, 2006.
3. Inter-American Commission on Human Rights, “Follow-up Report on Compliance by the State of Venezuela with the Recommendations Made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003),” Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122 Doc. 5 rev. 1, (Washington, D.C.: Organization of American States, 2005), paragraph 165, available at www.cidh.org/annualrep/2004eng/chap.5b.htm.
4. Amnesty International, Venezuela: Human Rights under Threat (London: Amnesty International, May 2004), available at http://web.amnesty.org/library/index/engamr530052004
5. Inter-American Commission on Human Rights, “Follow-up Report on Compliance by the State of Venezuela.”
6. Ibid., paragraph 180.
7. See “Chavez Camp Today Designates 49 New Magistrates,” El Nacional, December 13, 2004.
8. Jackson Diehl, “In Venezuela, Locking up the Vote,” Washington Post, April 10, 2006.
9. Henrique Capriles Radonski: Comprometido Contigo, “Juicio a Capriles Radonski Tiene Fecha” [Trial for Capriles Radonski has a date], April 10, 2006, available at www.caprilesradonski.org.ve/detalle.asp?id=245&plantilla=3.
10. Elizabeth Núñez, “Imputan a Organización Civil Súmate por Solicitar Intervención Extranjera” [The civil organization Súmate is charged with soliciting foreign intervention], El Nacional, December 27, 2004.
11. Jackson Diehl, “Locking up the Vote.”
12. Inter-American Commission on Human Rights, “The IACHR Expresses Its Concern over the Bolivarian Republic of Venezuela’s Passage of the Social Responsibility in Radio and Television Bill,” news release no. 25/04, November 30, 2004, available at www.cidh.org/Comunicados/English/2004/25.04.htm.
13. Fabiola Sánchez, “List of Venezuelan Government Opponents on Web Site Draws Discrimination Complaints,” Associated Press Worldstream, May 13, 2005.
14. Recording of Roger Capela on “Hablemos con Washington,” Voice of America News, April 26, 2006.
15. Francisco Olivares, “El Código Chávez” [The Chávez code], El Universal (Venezuela), May 21, 2005.
16. “Lista Tascón--Lista Maisanta--Lista Santa Inés--Firmaste?” [Tascón List--Maisanta List--Santa Inés List--Did you sign?] MercadoLibre, available at http://articulo.mercadolibre.com.ve/MLV-4956320-lista-tascon-lista-maisanta-lista-santa-ines-firmaste-_JM (accessed May 8, 2006).
17. Fabiola Sánchez, “Chávez Prepara un Ejército de Civiles” [Chávez prepares a civilian army], Associated Press, April 22, 2006.
18. Greg Morsbach, “Caracas Prepara Guerra de Guerrillas,” [Caracas prepares a war of guerrillas], BBCMundo.com, March 6, 2006.
19. Nicholas Kralev, “Chavez Accused of Ties to Terrorists,” Washington Times, May 17, 2006.
20. OAS, Inter-American Democratic Charter, September 11, 2001, sec. 1, art. 1.
21. OAS, Declaration of Florida, Delivering the Benefits of Democracy, AG/DEC.41 (XXXV-O/05), adopted, June 7, 2005.

REALITY OF LABOR IN CUBA AND THE SOCIAL RESPONSIBILITY OF FOREIGN INVESTORS

REALITY OF LABOR IN CUBA AND THE SOCIAL
RESPONSIBILITY OF FOREIGN INVESTORS


Jesús R. Mercader Uguina 1

I. Foreign investments in Cuba: Background
Economic data show that starting in 1994 Latin
America became the main destination for direct
investments from Spain’s most important service
companies in its internationalization strategies. In a
few years, Spain attained leadership positions in
some of the main Latin American markets. As a
result, investments in Latin America between 1991
and 1999 accounted for nearly 50 billion dollars. It
is evident that Spanish companies have gone from
being marginal investors in the international realm
to having a growing importance in the services
sector. Thus, while some of the most important
transnational companies in the world attempted to
increase their efficiency through investors in Spain,
Spanish companies were seeking to access Latin
American markets in an attempt to grow in size and
to be able to compete, under the best possible conditions,
with leading companies in increasingly
globalized international markets.2

Within this framework, Spanish investments in
Cuba have, throughout these years, played a noticeable
part, totaling 150 million dollars in 1998. Of
the 600 foreign companies doing business there that
year, around 150 were Spanish companies, including
Argentaria, BBV, Tabacalera, and Sol Meliá. At that
same time, Spain was ranked the number one desti


nation for exports from Cuba’s Free Trade Zones.
The Cuban Ministry for Foreign Investment stated
that by the end of 2002 there were 412 international
joint ventures in Cuba. Fifty percent of the
capital involved came from the European Union.
Of those joint ventures, 336 operate on the Island
and 76 operate abroad. Spain, Canada, Italy, and
France were the first four countries to have companies
of this kind in Cuba.3 The current regulatory
framework of foreign investments in Cuba deserves
to be evaluated in light of its recent history.

Following the expropriations of the 1960s, foreign
investments disappeared in Cuba for over 30 years.4
In 1972, Cuba automatically became a member of
the Council for Mutual Economic Assistance under
the category of “developing country special member”
(COMECON: USSR-Eastern Europe common
market),5 and, therefore, in the so-called international
socialist division of labor and in the system
of economic dependence existing in that complex
structure.

Years later, Legislative Decree No. 50 of February
15, 1982, on Joint Ventures between Cuban and
Foreign Entities, revived investments in Cuba since
the government considered that in certain sectors,
such as tourism, “socialist countries did not possess

1 Professor of Labor Law and Social Security, Universidad Carlos III of Madrid.

2 Data are from E. GIRALDEZ PIDAL, La internacionalización de las empresas españolas en América Latina [Internationalization of Spanish companies in Latin
America], Madrid, CES, 2002, p. 14.

3 As summarized by L. VENACIO in La inversión extranjera directa y la crisis económica cubana [Direct foreign investment and the Cuban economic crisis]. The full
digital version of the text is accessible at www.eumed.net/libros/2005/lv/.

4 For an analysis of this period L. VENACIO, La inversión extranjera directa y la crisis económica cubana [Direct foreign investment and the Cuban economic crisis],
cit.

5 C. MESA-LAGO, Breve historia económica de la Cuba socialista. Políticas, resultados y perspectivas [Brief economic history of socialist Cuba. Policies, results and perspectives],
Madrid, Alianza América, 1994, p. 99.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

the state-of-the-art technologies required for development,
which led to the conviction that, in order
to enjoy a comparative edge, in other words to diversify
and increase the volume of exports and income
in currency, it was necessary to associate with
Western companies.”6 The actual application of the
Law posed numerous problems, so that the first
project developed with foreign funds did not materialize
until 1990,7 the year of the first joint venture
between a state entity and a foreign firm (the Spanish
hotel chain Sol Meliá, owner of 50%) which
resulted in the opening of a hotel in Varadero in
1990.

As a result of the fall of the socialist block in the
first years of the 1990s, Cuba suffered various
shocks. The Cuban economy as a whole “was reduced
between 35 and 50%. Before 1991, the USSR
used 63% of Cuban sugar, 73% of its nickel, 95%
of its citrus and 100% of its electricity exports. In
turn, Cuba received from the USSR 90% of its
machinery and other equipment and 98% of its
fuel. In less than 4 years, Cuba lost 80% of its exchange
capacity.”8 These circumstances led the
Cuban State to seek out larger investments for the
long term, although still in limited sectors of the
economy. In order to facilitate this new strategy, the
State included in the new Constitution, promulgated
in August 1992, certain important changes in
the system of property in Cuba; in particular, Article
23 of the Constitution establishes that: “The
State recognizes the ownership of mixed companies,
corporations and joint ventures incorporated
pursuant to the law.” The use, enjoyment, and disposal
of assets belonging to the patrimony of the

above entities are governed by the law and the treaties,
as well as by their own bylaws and regulations
that govern them.

From 1992 to 1995, the system of foreign investments
had been characterized by the following
features:9 the possibility for the investors to be
owners of up to 49% of the shares of the company,
except in the case of tourism, the mining industry,
or investments in Latin American companies
in which they are permitted to own up to 51% or
more of the shares of the company; exemption of
taxes on gross income and individual income, and
of the tax on the transfer of the company or its
assets; elimination of customs duties on imports of
equipment necessary for the company; repatriation,
without restrictions and in hard currency, of the
dividends and profits and the salaries of the foreign
employees of the company, establishing in labor
matters the freedom to contract foreign personnel
for executive and technical positions, although only
through the state companies that supply personnel;
and, finally, governmental support in technical areas
such as legal, economic, accounting, and computer
services.

Once the path had been selected, which was to attract
this investment,10 the Cuban government
adopted several measures. Specifically, the Ministry
for Foreign Investment and Economic Collaboration

(MINVEC) was created on April 21, 1994, by
means of Legislative Decree No. 147 of the Council
of State. Its functions include promoting Foreign
Investment in Cuba and establishing the legislation
governing the negotiation process for the constitu


6 M. FIGUERAS, Las Inversiones Extranjeras en Cuba [Foreign Investments in Cuba], Cuba, MINVEC, 1997.

7 For an analysis of the shortcomings of this Law, see J. F. PEREZ LOPEZ, Odd Couples: Joint Venturing Between Foreign Capitalists and Cuba Socialists,
North-South Agenda Papers, 1995, n. 16.

8 S. BASDEO and H. N. NICOL, Canada, the United States, and Cuba. An Evolving Relationship. The North-South Center Press at the University of Miami,
2002, p.15.

9 M. F. TRAVIESO-DIAZ, J. F. PEREZ-LOPEZ, La inversión extranjera en Cuba: Pasado, presente y futuro [Foreign investment in Cuba: Past, present and future],
in M. MARTIN, M. GARCIA, F.J. SAEZ (Eds)., La actual economía cubana a debate. Homenaje a Julián Alienes Urosa [Current Cuban economy under debate.
Homage to Julián Alienes Urosa], Granada, Universidad, 2001, p. 129.

10 M. DE MIRANDA PARRONDO, Estado, Mercado y Reforma de la Economía Cubana. Alternativas de Política Económica [State, Market and Reform of the
Cuban Economy. Economic Policy Alternatives], in AA.VV., Ponencia en el Simposio Internacional del Proyecto de Investigación “Reforma económica y cambio social en
América Latina y el Caribe (cuatro casos de estudio; Colombia, Costa Rica, Cuba y México)” [Speech at the International Symposium of Investigation Project “Economic
reform and social change in Latin America and the Caribbean (Four case studies: Colombia, Costa Rica, Cuba and Mexico)], Cali, Colombia, 1999, pp. 22-23.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

tion of Joint Ventures or other forms of Foreign
Investment participation. At the end of 1994, it was
officially declared that the Cuban economy would
be totally open to foreign investment, with the exception
of health, education, and the armed forces.
As of this date, a new wave of mixed companies
arose, principally in the provision of services,
housing construction, real estate projects, and telecommunications.


II. The current regulatory framework of
foreign
investments in Cuba: General principles
of Law No. 77 of 1995.
1.
Budgets for foreign investment in Cuba
On September 5, 1995, the Cuban National Assembly
approved the Law of Foreign Investment, Law No.
77/1995 (Gaceta Oficial, September 6, 1995), which
came to replace Legislative Decree No. 50 of February
15, 1982, concerning the Joint Venture between
Cuban and Foreign Entities and establishes the fundamental
principles governing foreign investments. Its
preamble states that “it is convenient to adopt a
new legislation which provides better security and
guarantees to the foreign investor,” and further
points out that Cuba can benefit from foreign investment
after the fall of the socialist block and in
view of the “fierce embargo” imposed by the
United Status.11 Law No. 77 was completed with the
enactment of various decrees and resolutions after
its introduction.

Investment regulations establish a complex administrative
system of management headed by the Ministry
for Foreign Investment and Economic Collaboration

(MINVEC) as the agency responsible for coordinating
investment activity, receiving applications
from foreign investors, processing these applications
and distributing them to other agencies for
review, and finally presenting them to the Executive
Committee of the Council of Ministers that was
created by Legislative Decree No. 147 of April 21,
1994, of the Council of State. An essential requirement
for being able to operate in Cuba is for
companies to register in advance in the Register held

by the Cuban Chamber of Commerce. As indicated in
Article 25.5 of Law No. 77, each proposed investment
must be approved by the Executive Committee of
the Council of Ministers or the Government Commission.
Furthermore, Cuban regulations establish a
series of requirements for controlling and monitoring
investments.

The Foreign Investment Law authorizes three different
types of investments:

1. First, there are mixed companies, which include
domestic and international investors. They are
commercial companies that adopt “the form of a
corporation with registered shares, with the participation
as shareholders of one or more domestic
investors and one or more foreign investors” (Article
2 (i) of Law No. 77). The mixed company involves
the creation of a separate legal entity (“artificial
person different from the parties”), which must
register with the Cuban Chamber of Commerce
(Article 13 of Law No. 77).
2. Second, Law No. 77 permits the creation of companies
with exclusively foreign capital, that is, “without
the concurrence of any domestic investor” (Article
2(h) of Law No. 77). This type of company can be
created according to Article 15, either by registration
of the entity with the Cuban Chamber of
Commerce, or by the creation of a Cuban subsidiary
of the foreign entity owned by it in the form of
a corporation with registered shares, recording it
with the Registry of the Chamber of Commerce.
3. Lastly, the Foreign Investments Law defines the
“international joint venture contracts” as pacts between
one or more domestic investors with one or more
international investors in order to carry out activities
together, without forming a separate legal entity
(Article 2 (g) of Law No. 77).
2.
The labor system of the Foreign Investment
Law
2.1. General
principles and applicable
regulations
11 The ILO Committee of Experts took note of the Government’s report for the period ending June 1996. The Government recalls that the circumstances
prevailing in the country since the beginning of the decade have had a negative effect on employment. Among the measures adopted to face
the labor market difficulties, it refers in particular to the reintegration of the economy into world markets by means of establishing mixed companies
or joint ventures, developing activities to generate short-term income (tourism, biotechnologies, pharmaceutical industry, food products), and authorizing
basic units of cooperative agricultural production and self-employment, in CEACR, Individual Observation concerning Convention No. 122, 1998.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

Law No. 77 maintains the system implemented
under Law No. 50, which indicates that the labor
force of each company with foreign participation
must be provided by the State through an employment
agency designated by MINVEC.12 However,
in certain cases, the Law allows a company to hire
all or some of its employees directly, if permitted
by the authorization issued by the Government for
the incorporation of the company or the development
of the corporate project. Law No. 77 defines
a special legal labor system in which the common
labor legislation acts as a secondary regulation: “in
the activity of foreign investments, the valid Cuban
labor and social security legislation is implemented
with the adaptations set forth in this law” (Article
30). The labor system is completed with Resolution
No. 3/96 of the Ministry of Labor and Social Security,
issued on March 27, 1996 (Gaceta Oficial May
24, 1996),13 pursuant to Article 37 of the Law.14

The subjective scope of this special labor system
extends to all “workers who render services in the
activities of foreign investments […] Cubans or
foreigners who are permanent residents in Cuba”
(Article 31.1). However, an exception is made to the
former rule for “the management and administration
entities of mixed companies or of totally foreign capital companies,
or the parties to international joint venture contracts.”
In this case, they themselves would be able
to decide that certain top management positions or
certain technical positions would be filled by persons
who are not permanent residents in the country
and, in these cases, would determine the labor
system to be applied and the rights and obligations
of such workers. Nonetheless, the regulation makes
it clear that persons who are not permanent residents
in the country and are hired will be subject to
the valid immigration and foreigner status provisions.


In turn, Article 32.1 of Law No. 77 establishes that

“mixed companies, the parties to international joint
venture contracts and totally foreign capital companies
may be authorized to create an economic incentive
fund for Cuban workers and foreign permanent
residents in Cuba who work in the activities of the
foreign investments.” In any event, “the contributions
to the economic incentive fund are made from
the profits obtained. The amount of these contributions
is decided upon by the mixed companies,
the foreign investors and the domestic investors
who are parties to international joint venture contracts,
and by totally foreign capital companies, with
the ministry for foreign investment and economic
collaboration.” In turn, MINVEC Resolution No.
127/95 issued on December 15, 1995 (Gaceta Oficial
of January 2, 1996), establishes, concerning the
companies with foreign participation, the rules on
the establishment of a workers’ economic incentive
fund.

2.2. The monopoly of
the Cuban State
in the selection of the workers who
render services to companies with
foreign investment
The Foreign Investment Law authorizes three different
types of investments. In each of them, full
control of the hiring and firing process of the
workers is reserved for entities controlled by the
State. The State reserves for itself the screening and
control of the human resources which, in other
countries, are handled by the management of the
companies, including: employee recruitment, employment
decisions, application of disciplinary
measures, dismissal, and the compensation of the
worker for his achievements. One author has indicated
that “the employment agency transforms the
typical bilateral relationship into an interesting triangle,
in which the worker, apparently in a condition
of double subordination, actually receives better
protection in his individual legal-labor

12 The ILO Committee of Experts noted that the total number of workers employed in foreign enterprises, or in mixed companies, at the end of
1997, represented less than 0.5 per cent of the total number of workers employed. CEACR, Individual Observation concerning Convention No. 122, 2000.

13 Resolution No. 3/96 repeals Resolution No. 18/93 of the former CETSS [State Committee for Work and Social Security] and all provisions with
the same or lower rank opposed to the provisions of this regulation.

14 Under Article 37: “the Ministry of Labor and Social Security is authorized to issue all additional provisions necessary for the best application of
this chapter, especially in matters of labor contracting and labor discipline, and gives certain specifications on the use of workers in the foreign capital
companies that operate in Cuba.”


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

relationship.”15 Certainly, the triangular relationship
is clearly assessed, but the fact that it is more beneficial
for the interests of the workers is more debatable,
as will be indicated further on.

Cuban legislation does not contain rules regulating
labor under subcontracting, nor does it define the
concept of brokerage in employment, since Cuba
does not have placement agencies. The employment
function, as explained earlier, is filled by each entity
in its human resources area, through territorial Employment
Offices, or through the information given
by the Offices of the Municipal Labor Departments
of the People’s Power. In the case of foreign
investments, the law indicates with limitations that
the employer must be a state entity and cannot be
an individual. In turn, each investment may have an
employer or may establish that there be one in a
sector or branch that serves several entities with
foreign investment. Concerning personnel, the
public entity is the employer because each of its
workers signs an employment contract with it.16

Both mixed companies and totally foreign capital
companies must use a government employment
entity to hire employees and negotiate their contracts
(Articles 33.1 and 3.33). Indeed, in accordance
with Article 33.1, “The workers in mixed companies
who are Cuban or foreign permanent residents in Cuba,
with the exception of the members of the management or

administration, shall be contracted by an employing entity
proposed by the Ministry for Foreign Investment and Economic
Collaboration and authorized by the Ministry of
Labor and Social Security.” Equally, Article 33.3 establishes
that, “In totally foreign capital companies, the services
of Cuban workers and foreign workers residing permanently
in Cuba, with the exception of the members of the
management and administrative body, shall be hired through
a contract between the company and an employing entity
proposed by the Ministry for Foreign Investment and Economic
Collaboration, and authorized by the Ministry of
Labor and Social Security.” The entities will be proposed
by MINVEC and approved by the Ministry
of Labor and Social Security. The agency designated
in most cases is ACOREC, S.A. (Agencia de
Contratación a Representaciones Comerciales, S.A.),
even though CUBALSE, S.A.17 (Empresa de Servicios
al Cuerpo Diplomático, S.A.), sometimes appears
as the contracting agency designated by the
government.18

Cuban subsidiaries of multinational companies
follow a slightly different process. They must obtain
personnel from a certain agency:19 The Agency for
Contracting Commercial Representations
(ACOREC), which hires about 2,000 workers in
more than 600 companies and which charges a little
more from these multinationals, but pays exactly the
same to the workers. In this case, the foreign company
may establish a trial period of up to two

15 L. GUEVARA RAMIREZ, Tendencias del derecho laboral cubano en los umbrales del siglo XXI [Trends in Cuban labor law on the threshold of the 21st century],
Unión Nacional de Juristas, at www.uniondejuristasdecuba.cu/paginas/index_cubalex.htm.

16 L. GUEVARA RAMÍREZ Agencias transnacionales y la mundialización del empleo [Transnational agencies and employment globalization], Cubalex, 2001, No. 14,
at www.uniondejuristasdecuba.cu/paginas/index_cubalex.htm.

17 Cubalse, whose name comes from Cuba al servicio del extranjero [Cuba in the service of foreign countries], is a Cuban state corporation made up of a
group of companies with various corporate functions. It offers certain products and services to its domestic and foreign clients who have dollars. The
corporation employs 6,200 workers in Cuba, controlling a network of over 170 stores and service units – business centers, supermarkets, boutiques,
restaurants, a golf club, photo and video stores, laundry and dry cleaning stores, cafes, and veterinary clinics – which mainly serve the members of the
diplomatic corps, businessmen, foreigners who live in Cuba, tourists, and Cubans with access to dollars. It also operates in real estate, automobiles, the
financial sector, the legal sector, and land and maritime transportation, and offers special services of photography, design, and advertising. Data are
from A. CARMONA BAEZ, State resistance to globalisation in Cuba, London, Pluto Press, 2004, pp. 168-171.

18 M. F. TRAVIESO, C.P. TRUMBULL IV, Foreign investment in Cuba: Prospects and Perils, George Washington International Law Review, 2003.

19 M. F. TRAVIESO, C.P. TRUMBULL IV, Foreign investment in Cuba: Prospects and Perils, cit. Law No. 77 and its regulations in the labor field are currently
applied according to the following procedure: While the feasibility study is being prepared, the foreign investor and its Cuban partner determine
the number of workers needed. Afterward, they contact an employment agency designated by MINVEC. This agency is usually a subsidiary of a State
company in the activity sector in which the business will be conducted, possibly the same company as the investor’s partner. The employment agency is
fully responsible for all the aspects of hiring, employment conditions, and termination of the Cuban worker’s contract. Each employment agency has a
“labor exchange” with the available workers. When a foreign capital company needs Cuban workers, the agency schedules interviews with the management
of the joint venture and the prospective employees, and the companies have the last word on selecting the workers. It is not clear how broad
the list is from which they can choose or how people are co-opted into the list. The investor can also hire people who are not in the labor exchange. In
this case, the businessman contacts the agency and explains that he has decided to hire a worker who is not on the list. After that, the agency prepares
a dossier on the worker to establish that he does not have a serious criminal record and has “sound principles.” In this case, the employment agency
will contact the worker to hire him on the above terms. The company can never hire him directly.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

months with the worker. If the foreign company is
satisfied with him, it may hire him for more than
five years. The foreign company may decide the
position, responsibility, etc.

In the case of “international joint venture contracts,” the
workers would be hired by the “Cuban party” according
to the terms analyzed above. Since the
Government does not allow private investment, it is
the Cuban investors controlled by the State (Article
2 (a) and (g) of Law No. 77) that are finally responsible
for hiring employees. All this takes place in the
precise terms of Article 33.2, which establishes that
“the persons who render their services to the parties in international
joint venture contracts are contracted by the Cuban
party, in accordance with the current legal provisions in matters
of labor contracting.”

The rules governing selecting and hiring workers
are discussed in Resolution No. 3/96. They establish
that foreign companies must sign “Labor Supply
Contract(s)” with the employer and with the
competent labor union (Article 7 of Resolution No.
3/96). A feature of the Cuban system or legal system
with employment entities is that “there is no
double payroll in the user entity,”20 because it submits
its needs to the employment entity and the
supply contract establishes the details of the supply
of each of the workers. This contract contains all
the clauses for the performance of its object and is
executed with the participation of the union, which
also participates in the signing of a tripartite collective
bargaining agreement, in which the employment
entity and the user company also participate.
Article 8 of Resolution No. 3/96 indicates that the
employer entity is to find and screen personnel for
the company from workers who have the qualification,
ability, skill, professionalism, and experience
required, for the efficient work in the profession in
question, in accordance with current legislation in
the matter.

Consequently, it is important to remember that
there is no labor relationship per se between the
workers and foreign capital companies. Thus, the
State operates as a “Temporary Employment
Agency” that transfers to the foreign user company
the workers in its service. The mandatory use of
Government-controlled employment agencies
leaves workers without the ability to directly negotiate with the business entity their salaries, benefits,
reasons for promotion, and the duration of the trial
period. The official employment entities take on
each of these functions, without allowing the employees
to be freely contracted by foreign investors
(Articles 9, 12 and 14 of Resolution No. 3/96).

From the various reports of international organizations,
it would appear clear that the fact that the
State entity can choose the workers of the foreign
capital companies means that, through it, there is an
ideological screening of the candidates selected.
This is categorically stated by the written statement
submitted to the United Nations Economic and
Social Council by Pax Christi (International Catholic
Peace Movement, a non-governmental organization
in special consultative status) dated January 31,
2001, which indicates that “and like all Cuban
workers, they must be members of the state-
controlled Cuban labor union CTC (Confederation
of Cuban Workers). Those workers who belong to
or even associate with the independent and thus
illegal unions are expelled from their jobs.” Certainly,
the government could, in this way, “reward”
the employees it considers politically more loyal,
placing them in projects with foreign capital. It is
necessary to remember, notwithstanding a more
detailed study afterwards, that the powers given to
the government entity under Law No. 77 and
Resolution No. 3/96 concerning the screening of
the workers by their political affiliation is similar to
the norms established in 1990 for the employment
of workers in joint ventures in the tourist sector;
these norms stressed the personal qualities and the
conduct of the individual instead of his work performance.


Another international human rights organization,
Human Rights Watch, indicates in its report on Cuba
that “under these laws [...] the Government plays a
prominent role in the selection, payment, and firing
of workers, thus effectively barring most employees
from forming unions or even from entering into
independent, direct discussions of labor rights with
their employers. These restrictions on labor
rights—Cuba’s virtual guarantee that no investor
will face any independent union organizing in the
workplace—were created to attract foreign
investors.”21

20 L. GUEVARA RAMÍREZ, Agencias transnacionales y la mundialización del empleo [Transnational agencies and employment globalization], cit.
21 HUMAN RIGHTS WATCH, Cuba’s Repressive Machinery: Human Rights Forty Years after the Revolution, 1999, at www.hrw.org.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

In this context, we should remember Convention
No. 111 that was already analyzed at length. Article
1 establishes that the term “discrimination” includes:
“any distinction, exclusion or preference made on the
basis of race, color, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying
or impairing equality of opportunity or treatment in employment
or occupation.” For these purposes, the ILO
Committee of Experts on the Application of Conventions
and Recommendations pointed out that
under Article 1.2 of the Convention, only distinctions,
exclusions, or preferences based on the requirements
of a particular job are not deemed to be
discrimination. Moreover, in the above-mentioned
General Survey, the Committee recalls in paragraph
126 that, “although it may be admissible, in the case
of certain higher posts which are directly concerned
with implementing government policy, for the responsible
authorities generally to bear in mind the
political opinions of those concerned, the same is
not true when conditions of a political nature are
laid down for all kinds of public employment in
general or for certain other professions.”

2.3. The control exercised by the Cuban
State on the labor conditions of the
workers in the service of foreign
investment companies
As we have been saying, it is clear from Article 34
of Law No. 77 that the employment relationship is
established between the worker and the State entity,
and not with the foreign participation company.
The legal rule makes several specifications as to the
following areas: the return of the workers because
they do not meet work requirements; the forms of
compensation; discipline and resolution of labor
conflicts; vacations, social security and labor protection;
and drafting of internal regulations.

The trial period for workers contracted to serve a
mixed or totally foreign capital company is 30 to
180 days, corresponding to the initial stage of the
labor relationship. It allows workers to demonstrate
their ability to do the job under company condi


tions and characteristics. The employment entity, in
agreement with the union organization and the
company, determines, within the limits indicated,
the duration of the trial period for each profession
or job, depending on its complexity and characteristics.
During that period, the company may return
the worker to the employment entity. In turn, Article
13 of Resolution No. 3/96 indicates that the
employer and the company are obligated to instruct
the worker during the trial period in aspects such as
objectives and duration of the trial period, importance,
duties, and obligations of the job or profession
he will fulfill. The worker must also be told
about the amount and payment period of the salary;
work status; and protection and hygiene rules
and the means to be used. The worker also needs to
know the internal regulations and other necessary
aspects. Article 10 of Resolution No. 3/96 indicates
that the company may give, when needed, training
or retraining to its personnel, or agree upon it with
the employment entity.

The state entity is responsible for firing and replacing
workers whose performance is deficient and,
finally, possible claims must be presented to the
state entity, even though the company has the financial
responsibility concerning the cost of resolving
the labor relationship: “When mixed or totally
foreign capital companies consider that a certain worker does
not meet their requirements at work, they may request the
employment entity to replace him by another. Any labor
claim is resolved by the employment entity, which pays at its
own expense to the worker the indemnities to which he is
entitled, as established by the competent authorities; when
applicable, the mixed or totally foreign capital company compensates
the employment entity for the payments, according to
the procedure established, all in agreement with current
legislation.”

Workers may be fired if they engage “in improper
conduct, criminal or otherwise, affecting his/her
prestige as a company employee and contrary to the
standards of conduct” annexed to the resolution
(Article 29 of Resolution No. 3/96). The standards
require workers to maintain social conduct worthy


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

of his/her fellow citizens’ respect and trust, by not
allowing any conspicuous signs or privileges, and by
keeping a lifestyle in line with society. (The law also
requires workers to act “according to the best interests
of our society”; “to subordinate his/her acts
and decisions to the best interests of our people”;
and “to neither accept from, nor ask the persons
above or around him/her for any payments, gifts,
handouts or preferential treatment contrary to the
adequate labor and personal behavior expected
from our cadre and workers).”22

2.4. Form of compensation for workers
and its flagrant contradiction with
ILO Convention 95
The protection of the freedom of workers to dispose
of their wages constitutes one of the central
aspects of International Labour Organization Convention
No. 95 of June 8, 1949, which was ratified
by Cuba on September 24, 1959. Article 5 of the
Convention requires that wages be paid directly to
the worker concerned except as may be otherwise
provided by national laws or regulations, collective
bargaining agreement or arbitration award, or that
with the agreement of the worker involved, differ


ent procedures be adopted. Article 6 categorically
prohibits employers from limiting in any manner
the freedom of the worker to dispose of his wages
and, on the other hand, Article 9 reads textually:
“Any deduction from wages with a view to ensuring a direct
or indirect payment for the purpose of retaining employment,
made by a worker to an employer or his representative or to
any intermediary (such as a labor contractor or recruiter),
shall be prohibited.” Article 6 of the Convention reinforces
the concept when it reads: “Employers shall be
prohibited from limiting in any manner the freedom of the
worker to dispose of his wages.” In short, there is no
merit to guaranteeing that the workers receive all
their salaries in legal tender and at regular intervals
if they cannot dispose of these gains as they wish.

This is the context in which we must place Article

33.4 of Law No. 77 which establishes: “Payments to
Cuban workers and foreign workers residing permanently in
Cuba shall be made in national currency, which must be
obtained beforehand from convertible foreign currency.” This
limitation is practically unrestricted if we take into
account that, if Cuban investors wish to pay their
workers in hard currency, they must first obtain
approval from the Ministry of Labor, as established
in Article 18 of Resolution No. 3/96.23
22 Standards of Conduct Applicable to Cuban Staff in International Joint Ventures, cited by Human Rights Watch, 1999, at www.hrw.org. Workers can be
disciplinarily sanctioned if they fail to comply with the resolution’s provisions. If a worker commits an infringement, then he or she could face a penalty
such as public censure or the loss of 25 percent of the monthly wage. Other possible sanctions include transfer to a lower-paying post or dismissal.
The employing entity is charged with applying the penalty after considering factors including the personal qualities of the worker, which potentially
grant it authority to penalize workers for expression or activities completely unrelated to their jobs (Articles 47 and 48, Resolution No. 3/96).
Under the personnel law, any Cuban who independently contracts with foreign representatives risks government fines ranging from 1,000 to 10,000
Cuban or convertible pesos (Articles 10, 11 and 12, Decree Law No. 166). If the individual cannot pay the fine in cash or property, he or she could
face criminal charges (Article 34, Resolution No. 3/96). Foreigners violating these regulations, such as using workers not legally hired, changing the
legally authorized forms of payment, or giving non-authorized material incentives, face the same consequences (with all fines due in convertible pesos)
(Articles 6, 10, 11, 12 and 34, Resolution No. 3/96).

23 In July 1999, the Cuban Committee for Human Class Representation Rights, Inc., and the Federación Sindical de Plantas Eléctricas, Gas y Agua,
two Miami-based organizations, filed a petition with the Court of the Eleventh Judicial Circuit in Miami-Dade County, State of Florida, against 20
foreign companies with investments in Cuba, accusing the companies of colluding with the Cuban government in violation of the human rights of
Cuban citizens, including the system of indirect contracting of workers. The case was set aside because the court did not have jurisdiction over all the
defendants. The text of the petition is reproduced at http://www.cubanet.org/ref/dis/demanda. Although a possible lawsuit in Spanish labor courts
against these companies should not be able to be rejected in limine litis for lack of jurisdiction because Article 19 of Regulation 44/2001 allows the
plaintiff worker to choose whether to sue businessmen domiciled in Spain in Spanish labor courts, or to do so in another Member State if circumstances
that are not found in this case exist, there are serious difficulties for such a lawsuit to prosper in Spain. In this regard, the case of Sol Meliá Group,
which was ruled on by the Baleares Superior Court of Justice on November 26, 2002 (R 376/2002), is paradigmatic: the lawsuit brought by a Spanish
worker hired in Florida to provide services there for the company domiciled in Miami, “The Sol Group Corporation” (subsidiary fully owned by
Spanish parent company “Sol Meliá, SA”) was dismissed in connection with the North American company due to lack of jurisdiction of Spain’s courts
of law and in connection with the Spanish company because it was not a “subject in the work relationship or liable for its outcome” (see also the
Ruling of the Baleares Superior Court of Justice of October 24, 2002, Rec. No. 377/2002, in a virtually identical case, and the Ruling of the Baleares
Superior Court of Justice of December 5, 2003 (R 733/2003), also involving the Sol Meliá Group, although this time involving its Moroccan subsidiary,
“Sol Meliá Marroco SARL”).


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

The employment agency designated by MINVEC
and the joint venture establish a monthly salary in

U.S. dollars for each category of workers, which will
be paid to the agency. In the example cited by M. F.
TRAVIESO and C.P. TRUMBULL IV in their rigorous
investigation entitled Foreign investment in Cuba:
Prospects and Perils, they mention the case of a company
that agreed to pay to the employment agency
US $460 monthly for each mechanic, US $500 for
each sales agent, and US $550 for the general manager.
This salary is increased by 25% in employment
taxes, which are paid directly by the company to the
agency, also in U.S. dollars.24 The employment entity
pays the salary of the Cuban workers in Cuban
pesos, at a ratio similar to the equivalent salary in
Cuba for each category. Thus, each mechanic receives
about 200 pesos monthly, the commercial
agent about 300 pesos, and the general manager
about 400 pesos. In any case, regardless of the form
of contracting, the Cuban worker receives in pesos
less than 4 cents on the dollar paid by the investor.
The practice of the Cuban government is “harmful,”
it has been said, “not only because it confiscates
the salary of the workers, but also because it
negatively affects the economic performance of the
companies with foreign capital.” The salary “is one
of the crucial factors affecting the productivity of
the workers. A worker who is not paid enough is
unhappy and must spend his time trying to improve
his economic condition. Inadequate salaries tend to
cause, among other evils, unjustified absenteeism,
lack of punctuality, theft of products or supplies

and unauthorized use of equipment or other goods
of the company.” Equally, it has been indicated that
“the use of salary supplements in convertible currency
– be it in cash or in kind – helps increase
productivity.” However, “the capacity of the companies
to grant this additional compensation is limited,
because the Cuban government requires the
payment of relatively high salaries for the labor
force, in addition to social benefits, which raises the
cost of the operation, reduces profits and makes
the products of the companies less competitive in
the market.”25

The use of this form of payment has been criticized
by certain International Organizations. As
indicated in the already cited report of Pax Christi:
“The Cuban State also dictates the wages of the
local personnel employed by foreigners and retains
90% of their salaries, leaving the Cuban worker
with a minimum salary in Cuban currency. This is a
clear violation of the right of workers to dispose
freely of their salaries.” In turn, Human Rights Watch
has indicated that “although Cuban workers receive
peso salaries from state-controlled employment
agencies, the jobs often offer access to dollar tips or
bonuses and scarce consumer goods, such as shampoo
and soap. The Cuban government profits from
this arrangement as well, not only from the long-
term value of international investment, but also
because the state-controlled employment agencies
receive convertible foreign currency payments for
all workers’ wages. The government has not revealed
what percentage of a worker’s wages ulti


24 The work cited in the text indicates that a Canadian investor said that his investment project was rejected because he insisted on paying a mechanic
250 pesos/month, instead of the established 129 pesos/month. It also states that one of the criticisms against this system is that sometimes the Cuban
employment agencies exaggerate the position of Cuban workers in order to raise the salary to be collected from the investor. Thus, a warehouse employee
becomes “warehouse director.”

25 Quotes added are from M. F. TRAVIESO-DIAZ, J. F. PEREZ-LOPEZ, La inversión extranjera en Cuba: Pasado, presente y futuro [Foreign investment in
Cuba: Past, present and future], cit., p. 148.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

mately reach him—in Cuban pesos—and what
portion remains in government coffers.”26

These and the previous circumstances involved in
this particular legal system have made a certain
author affirm the nullity of the investment contract
executed under these conditions. Thus, it has been
said, with arguments that were rather weak legally,
that “the investment contract is null. The investor,
the Cuban State and/or the company designed by
the Cuban State to create a simulation, do not have
standing to sue each other. The party that has
standing to sue is the worker, since he is the innocent
party. Even though the employment contract
with the Cuban worker (intended to be covered
through the brokerage company) is also null, the
innocent party has the right to claim what he delivered,
in other words his work, at a fair price.”27 The
situation, as explained, may be more than questionable
from the viewpoint of international legality,
but in our opinion this contradiction does not impact
in any way the legality of the contract executed
by the foreign investor.

3.
Labor peculi arities of the labor system
in Free Trade Zones
3.1. Free Trade Zones in Cuba: General
Ideas
Law No. 77 created a framework for the Executive
Committee of the Council of Ministers to designate
locations in the national territory where it was possible
to establish Free Trade Zones or industrial
parks and stipulated that tax benefits would be
given to the companies established in them. By
Legislative Decree No. 165 of June 3, 1996, the
Council of State approved the establishment of
these zones in Cuba. On October 24, 1996, MIN


VEC regulated the process for applying to establish
companies with foreign capital in the Free Trade
Zones and for creating a register of Free Trade
Zones and companies located in them. In turn,
MTSS Resolution No. 10/1997 establishes the
Regulations of labor relations in Free Trade Zones
and industrial parks.

Free Trade Zones are considered “those in which,
by decision of the Executive Committee of the
Council of Ministers, it is possible to apply a special
system in customs matters, exchange, tax, labor,
immigration, public policy, capital investment, and
foreign trade, and where foreign investors may participate
for the purposes of financial operations,
importing, exporting, storage, productive activities
or re-exporting.” Free Trade Zones allow foreign
investment “for the purposes of financial operations,
importing, exporting, storage, productive
activities or re-exporting.” Industrial parks allow
“the development of productive activities with the
participation of foreign capital.” (Articles 51.1 and
2 of Law No. 77). The law creates an executive
committee of State institutions --including the
Ministry of the Revolutionary Armed Forces and
the Ministry of the Interior --charged with granting
free zone concessions and recommending measures
to develop the zones and industrial parks (Articles

6.2 and 4 of Decree Law No. 165).
3.2. Special features of
the legal labor
status in Free Trade Zones
In terms similar to those set forth in Law No. 77,
Article 43 of Legislative Decree No. 165 of June 3,
1996, establishes the principle of territoriality as the
main principle of contracting workers in these
zones. “Workers who render services to the concessionaires
and operators in free zones would be, in

26 An example of the benefit that the Cuban State may obtain is found in M. F. TRAVIESO-DIAZ, J. F. PEREZ-LOPEZ, La inversión extranjera en
Cuba: Pasado, presente y futuro [Foreign investment in Cuba: Past, present and future], cit., p. 149: “Assuming, for example, that the average salary collected from
a business is that of the sales assistant identified in the table, i.e., $382.01 per month, the Cuban government receives income of more than $21 million
net per month, or approximately $256 million per year, which is more than the average annual flows of new foreign investment on the island during
the 1993-1998 period (approximately $225 million). In other words, the Cuban State profits more from the salaries paid by the foreign investors to the
Cuban workers than from the value of the new investments that enter the country.” Another example of this plan can be found in J. BRITO, La inversión
extranjera en Cuba características de una forma de discriminación [Foreign investment in Cuba, characteristics of a form of discrimination], at
www.cubasindical.org./grscc. “The maximum salary paid by foreign companies is 700 Cuban pesos, and the investor must pay an average of 2.3% of
the payroll scale salary for the personnel it will use. 2.3% of the salary is itemized as follows, according to the Salary Department of the Ministry of
Labor and Social Security: 100% scale salary; 30% additional payments, industry coefficient, travel and nighttime work allowance; 30% for the intensity
of the work; 60% social benefits received by the labor force; and 10% for the service rendered by the Cuban employment entity = 230%. To understand
in essence the method of calculation of the salary to be paid by the foreign partner in dollars, suffice it to apply 2.3% to any scale salary on a
payroll approved for the company which will work with foreign capital.”

27 A. LUZARRAGA, La nulidad de los contratos de inversión extranjera por causa ilícita: defraudar al trabajador cubano [The nullity of the foreign investment contracts
due to an illicit cause: defrauding the Cuban worker], at http://www.futurodecuba.org.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

general, Cubans or foreigners who are permanent
residents in Cuba.” Since the regulation on foreign
investments also exempts from the above rule the
“technical occupations or top management positions,”
in these cases free zone concessionaires and
operators are able “to contract directly individuals
who are not permanent residents in the country,
and in these cases, determine the applicable labor
system and the rights and obligations of these
workers, after first obtaining the corresponding
work permit.”

Article 44 entrusts to the Ministry of Labor and
Social Security the determination of the minimum
salaries for jobs to be drawn by Cuban workers and
foreigners who are permanent residents in the
country and who render services to free zone concessionaires
or operators.

Pursuant to Article 45.1, “the concessionaire with Cuban
or mixed capital contracts directly Cuban workers and
foreigners who are permanent residents in the
country and also works as an employment entity
concerning the workers required by the operators.”
Such employment entity “contracts individually the
workers in question, pays them their salaries and
maintains the labor relationship with them” (Article
45.2). In any event, it is the task of the Ministry of
Labor and Social Security to establish the rules to
be followed by the concessionaire, in its capacity of
employment entity (Article 45.3).

The law obligates investors with full foreign capital
to contract employees through the employment
entities approved by the competent ministries. For
these purposes, Article 45.4 establishes that “in the
case of the Cuban workers and foreigners who are
permanent residents in the country, they render
their services to free-zone concessionaires and operators

28 The text is found at http://www.cubaminrex.cu.

whose capital is fully foreign, through a contract executed
by them with an employment entity proposed
by the Ministry for Foreign Investment and Economic
Collaboration and approved by the Ministry
of Labor and Social Security.”

In addition, the law allows the Executive Committee
to ignore other labor rules and to establish special
labor regulations. Thus, Article 46 establishes
that “notwithstanding the provisions contained in
the preceding sections of this chapter, the Executive
Committee, in the decision ordering the creation
of a free trade zone, may determine to establish
special labor regulations concerning it and exceptionally.”


Resolution No. 10/97 of the Ministry of Labor and
Social Security, currently in force,28 completes the
content of Legislative Decree No. 165 of June 3,
1996, and establishes various specific rules concerning
the labor system in the Free Trade Zones.29

4.
Codes of conduct and ethics: Special
features of the labor system in the
tourist sector; Resolution 10 of 2005 of
the Ministry of Tourism
4.1. Ethical
control of workers in the
tourism sector: Background
For Cuba, analyzing the globalization process in the
realm of tourism takes on a special meaning: first,
because some of the strongest worldwide tour operators
immersed in this globalization process are
present in the development of Cuban tourism; and
second, because tourism currently constitutes and
will continue to constitute in the long-term, according
to forecasts, the main economic activity on
the island and an essential factor for reviving other

29 The first action consists of the labor supply contract signed between the concessionaire and the operators. To contract workers, an agreement is
entered into with the employment entity and the union organization. Personnel are obtained from among those with qualifications, skill, professionalism,
and experience required for the efficient performance of the job in question, in accordance with current legislation in the matter. Legislation
indicates the compensation, the signing of an individual employment contract to establish the work relationship, and the causes for its termination.
The workers contracted in the Free Trade Zones earn their salary based on the rates in national currency approved centrally and referring to a daily
work schedule of 8 hours and 190.6 hours as a monthly average. The annual paid vacation, social security, and labor protection are also regulated
matters, so that these workers will be subject to the current legislation of the country. If necessary, aside from the salary per unit of time, payment
systems may be applied in accordance with the results of the production or services, as well as payment for overtime. As to labor discipline and conflict
resolution, the precepts of the labor code and internal regulations are taken into account, and complaints in this matter and concerning labor
rights are resolved by the employment entity, according to the current procedures of labor justice. In each free trade zone and industrial park, the
employment entity and the parties to the contract, along with the corresponding union organization, sign collective bargaining agreements and their
internal regulations, according to current legislation.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

economic sectors.30 By the end of 2000, there were
29 mixed companies, with a capital of over 1 billion
dollars. They include 26 hotel companies with
15,600 rooms, of which 3,700 are operating, and
the remaining are in project or construction phase;
17 foreign managements from 8 countries with 52
hotels under foreign administration, with 16,120
rooms; 93% of the hotels are 4-and 5-star. In five-
year tourist projections until 2010,31 “there are three
possible scenarios in which the number of visitors
would be between 5 and 10 million tourists.”

The economic relevance of the tourist sector for
the Cuban economy has brought with it intense
control by the State as employer over the workers
who render services in said activity sector. The
powers granted to the government entity under Law
No. 77 and Resolution No. 3/96 to select workers
who work for companies with foreign capital
reached its highest degree with the norms established
in 1990 for the employment of workers in
joint ventures in the tourist sector; these norms
stressed the personal qualities and conduct of the
individual instead of his performance at work. By
Resolution No. 15/90 of September 5, 1990, of the
State Labour and Social Security Committee
(Gaceta Oficial September 15, 1990),32 which appeared
in the heat of the first legislation on foreign
investments, a clear and defined choice was made in
favor of a type of worker ideologically defined. In
short, it is legislation that stresses personal qualities
and the conduct of the individual instead of the
assessment of his work. The resolution gave broad
powers to foreign investors to suspend, transfer, or
fire the employee who was not satisfactory. In a
certain way, the Cuban state takes responsibility for
the quality of the persons it sends to work.

4.2. Resolution No. 10 of
February 19,
2005: Control over the moral and
social image of the workers in international
tourism
The above ideas have again come up in Resolution
No. 10 of February 19, 2005, which establishes the

“Regulation for the Relations with Foreign Personnel in the
Tourism System.” The interest of the company to
maximize the control and the efficiency in the operation
of the organization has been supported, as
we indicated, in the duty of fidelity of the worker
to the company. The work relationship appears, in
this Resolution, as an eminently personal relationship,
based on mutual trust and loyalty, which unites
all collaborators of the company in a community of
interests and purposes, all of them feeling solidarity
in a common work of national and collective interest.
This leads to the understanding of the employment
relationship as a fiduciary relationship in
which there is no room for an opposition of interests
between employers and workers.

With regards to the Resolution under analysis, the
loyalty and fidelity owed by the worker to the company
where he works cannot be reduced to the
narrow limits of a simple execution of the task
entrusted, since it represts a true moral obligation
requiring rectitude towards the employer’s interests;
and outside of the workplace, in the case of approved
private activities related to those that constitute
the object of the employment contract, they
become spiritual duties that must be enforced with
even more rigor if the worker is in a trusted position,
in which case there is no doubt that the
ethical-legal profiles of these duties exceed the
exclusively financial field. This is clearly found in
Article 1 of the Resolution, which indicates: “Tourism
workers in their relations with foreigners while
meeting in and outside the country shall limit those
relations to those that are strictly necessary, and
should keep in mind the following ethical, moral,
and professional principles: A) Maintain conduct based
on loyalty to the nation, respect for the Constitution of the
Republic, socialist legality, and government policy. B) Practice
austerity, refrain from seeking power and making unauthorized
use of resources placed at their disposition. C) Always
place social interest above any personal interest. D) Practice
modesty and straightforwardness and maintain a personal
and family lifestyle deserving of respect and confidence both
in work and in social settings. E) Maintain permanent
vigilance against all acts or attitudes damaging to the interests

30 M. PEREZ MOK, A. GARCIA, Globalización y turismo. Política de desarrollo del turismo e inserción internacional de Cuba [Globalization and tourism. Tourism
development policy and international insertion of Cuba], in M. DE MIRANDA PARRONDO (Comp.), Alternativas de política económica y social en América Latina y el
Caribe (Cuatro casos de estudio: Colombia, Costa Rica, Cuba y México) [Economic and social policy alternatives in Latin America and the Caribbean (Four case studies:
Colombia, Costa Rica, Cuba and Mexico)], Cali, Editorial Javeriano, 2002, p. 250.

31 MINTUR, Proyección de largo plazo para el turismo cubano [Long-term projection for Cuban tourism], 2000, p. 5.

32 See the analysis of the labor system in the tourist sector and its comparison to the Cuban Labor Code contained in J. F. PÉREZ-LOPEZ, Cuba´s
Thrust to Attract Foreign Investment: A Special Labor Regime for Joint Ventures in International Tourism, Inter-American Law Review, 1992-93, vol. 2, n. 2, pp.
221-279.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

of the State.”

From this perspective, it is not strange that the duty
of fidelity is interpreted not as a mere duty of diligence
or accuracy in performing the service, but as
a specific fiduciary submission which imposes the
personal adhesion of the worker and which interprets
the mutual confidence and loyalty as the basis
of the relationship and its possible continuation.
This duty of intercommunication between the employer
and the worker appears in various precepts
of the Resolution, especially in connection with the
possible contacts with foreign embassies: “Invitations
to foreign diplomats for social events and invitations of any
type to embassies will be processed by a vice minister of
Tourism and the Ministry, which will also establish the rules
of behavior”; equally, it is established that “the attendance
in social events at embassies or invitations for foreigners to
visit Cuban officials in their homes must be the object of
consultations and approved in writing.”

The fact that the state entity may select the workers
of companies with foreign capital means that the
entity may select the candidates it considers most
suitable from the viewpoint of their loyalty. So far,
working for a foreign capital company is very much
desired by the Cubans, because generally such work
allows the employee to receive certain income in
hard currency (such as tips) even though the salary
is paid in pesos. The Resolution we just commented
on submits to severe controls the receipt of any gift
or accessory benefit by the worker during the performance
of his services. Thus, it is established that
“the receptions or meals of personnel commissioned abroad
must be authorized in writing by the minister or the head of
the delegation,” and also, “any worker of the sector at any
rank will report in writing to his superior any gift in kind
received by him from a foreigner with whom he has labor
relations (including checks, cash or credit cards),” or, finally,
“institutional gifts to foreigners will be approved by the Minister.”


As indicated above, the various manifestations of
this duty of loyalty may be grouped in positive or
active behavior obligations on the one hand and in
negative or abstention obligations on the other
hand. Among the latter, we must indicate those that
limit the possibility of obtaining gifts (when a foreigner
wishes to make a gift, it must be suggested to him to
give it to the health or education sectors) or the use of
vehicles of foreign citizens (“No worker or executive
may use, for work or personal purposes, vehicles owned or
rented by foreigners, nor enter vehicles with diplomatic license
plates”).

The truth is that the current labor relations in a
globalized world are rather far removed from these
ethical conceptions of the labor relationship which
go into the professional profiles of the worker. This
aspect, in addition to the fact that it has been overcome
in the modern organizational structure by
links or motivations of a different nature (participation,
commitment, mere economic interest, or
social prestige), forgets the facet of the worker as a
citizen, and, when assessing the play of competing
interests in this matter, it is necessary to identify the
obligations assumed by the worker-citizen and
those attributed by the company to the worker in
order to determine which of them prevails on the
others. The central dilemma in this atmosphere is
not, therefore, loyalty vs. disloyalty, but loyalty to
whom and under what circumstances. Indeed, when
the organization violates the legal and/or moral
rules of society, and when the violation may cause
damage to third parties, the contractual obligation
of loyalty of the employee loses its moral grounds.

On the other hand, in the Cuban tourism industry,
racism in the workplace has become, as some investigations
conducted in this field have concluded,
a growing problem. Although Cuban laws prohibit
labor discrimination for reasons of race, the great
majority of Cuban employees in tourist companies
are light-skinned, as pointed out by various investi



Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

gations. As in other foreign investment sectors, the
State employment entities hire for the tourist
industry.33

III. Codes of
conduct or good practices and
international commitments undertaken by
foreign companies investing in Cuba
The world of economy – personified in companies

– must collaborate on the project of building ethics,
just like real people must do. Each of us has to collaborate
by paying our taxes, just as companies do,
but also it appears that companies are not exempt
from that obligation. Companies have the same
ethical duties as real people do – the duty to be
compassionate, to fight pain, to help the weak, to
defend dignity, and to support justice.34
Business ethics is a relatively recent event. The purpose
of a company’s ethical reflection is to give
reason to the moral premises that make up and
support the legitimacy of the company, its reason
for being in the eyes of society and its claim to validity
or justice. In other words, the basic task of corporate
ethics consists of dealing with the conditions for the
possibility of the company having social credibility and,
therefore, being trusted by all groups that contribute to or are
impacted by its activity.35 It has been said that “the
most effective organizations are based on communities
of shared ethical values. These communities

do not require extensive contract and legal regulation
of their relations because prior moral consensus
gives members of the group a basis of mutual
trust.”36

The foregoing ideas have a specific bearing on the
business activity of foreign companies in Cuba.
That is why some business Codes of Conduct have
been created which attempt to outline the path for
business activities. In essence, they are the Arcos
Principles and the Principles for the Participation of
the Private Sector in Cuba.

In 1994, the Cuban Committee for Human Rights,
the International Society for Human Rights, and
Solidarity of Cuban Workers prepared the Arcos
Principles, in honor of Gustavo Arcos, an outstanding
Cuban human rights activist. The Arcos
Principles also urged companies to hire workers
directly, prohibit revision of the labor records, and
allow affiliation to governmental or independent
unions.37

The Arcos Principles are intended to promote respect
for and compliance with human rights and
fair labor hiring and employment practices in Cuba.
As such, they are not immutable. They are subject
to periodic review to ascertain if, by following them,
Signatories will in fact be contributing effectively to
the improvement of the human and labor rights

33 As indicated in Cuba’s Special Period, Cuba Briefing Paper Series, The Caribbean Project, Georgetown University, 1998, pp. 6-7, one manager in a tourist
corporation explained, “There is no explicit policy stating that a person has to be white to work in tourism, but it is regulated that people must have a
pleasant appearance (aspecto agradable), and blacks do not have it.” It has been indicated that increased foreign investment in tourism was worsening the
job situation for Cubans with darker skin, starting from the premise that Cuban officials were conceding to the wishes of tourist operation managers
who preferred lighter-skinned employees. These ideas are included in HUMAN RIGHTS WATCH, Cuba’s Repressive Machinery: Human Rights Forty Years
after the Revolution, 1999, at www.hrw.org. As indicated by J.A. ALVARADO RAMOS, Relaciones raciales en Cuba [Race relations in Cuba], Cuba Transition
Project, “a quick visit to the country’s tourist installations shows the high representation of white people in the direct service to tourism […], while in
the indirect jobs, the presence of blacks and mestizos is more obvious” […] “this reality is very closely related to the well-known fact of the overrepresentation
of whites in managerial and control jobs in all spheres of the country, from which tourism does not escape, but rather in this sector the
problem has increased. It is very rare to find among the main managers and administrators of these companies people who are not white. Everything
seems to indicate that the existence of negative stereotypes and prejudice in connection with the black and mestizo population has found in this sector
an outlet to become concrete acts of racial segregation and discrimination.”

34 J.A. MARINA, La creación económica [Economic creation], Bilbao, Deusto, 2003, p. 123.

35 D. GARCIA-MARZA, Ética empresarial. Del diálogo a la confianza [Corporate ethics. From dialogue to trust], Madrid, Trotta, 2004, p. 23.

36 F. FUKUYAMA, La confianza [Trust], Barcelona, Ediciones Grupo Zeta, 1998, p. 44.

37 R.H. CASTAÑEDA and G.P. MONTALVÁN, Los Principios Arcos [The Arcos Principles], the Cuban Committee for Human Rights, the International
Society for Human Rights and Solidarity of Cuban Workers, 1994.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

situation in Cuba. Adjustments may be made to the
Arcos Principles when and if it is felt that doing so
will further encourage the government of Cuba to
adhere to international human rights standards, as
established in the Vienna Declaration approved by
the World Conference on Human Rights on June
25, 1993, as well as workers’ rights related to employment
and occupation established in International
Labour Organization (ILO) Convention No.
111 concerning Discrimination of the Worker for
Various Reasons, Convention No. 87 concerning
Freedom to Form Labor Organizations, Convention
Nos. 29 and 105 concerning prohibition of
work that does not arise from free contracting between
workers and employers, and other relevant
agreements and conventions.

In July 1997, the North American Committee of
the National Policy Association published the
“Principles for the Participation of the Private
Sector in Cuba,” which implied: a secure and
healthy workplace, fair labor practices, direct contracting
of the workers, the right of the workers to
collective bargaining, freedom of expression in the
work centers, and reinforcement of legal processes
in Cuba. These principles are similar to those mentioned
above and are further detailed in the Arcos
Principles.

In the “Principles for the Participation of the Private Sector
in Cuba,” together with the aspects already indicated,
the companies were urged, among other
things, “to work to obtain the right to recruit, contract,
pay and promote the workers directly, without
going through government intermediaries; respect
the right of the employees to organize freely in the
workplace; and maintain a corporate culture which
does not accept political coercion in the workplace.”
Under these principles, the National Policy
Association constituted a task group of the international
private sector, made up of persons from
various origins and with various visions and opinions
of Cuban reality.38 The task group agreed on
the need to urge investors in Cuba to voluntarily

adopt in their activities in Cuba internationally accepted
socially responsible corporate practices.39

On the above theoretical basis, it is possible to ascertain
a series of ethical standards that are expressly
manifested in the various generally accepted
declarations, regulations, and guidelines we have
analyzed. These principles, as we have said above,
are based on four values that inspire: 1) equality of
all human beings in dignity and rights; 2) right to
life and safety, not to be treated in a degrading
manner or subjected to inhumane punishment; 3)
personal freedom; and 4) the right to economic,
social, and cultural freedom as conditions for the
realization of individual personality.

Cuban legislation suffers from an obvious lack of
consistency with these principles. In fact, the right
of union organizations to form and affiliate with
federations and confederations and the right of any
federation or confederation to affiliate with workers’
international organizations recognized in many
national regulations and in particular in ILO Convention
Nos. 87 and 98 are severely limited in Cuba. This
is obvious in light of the permanent calls for attention
made by qualified international entities and, in
particular, an entity such as the ILO’s Committee
on Freedom of Association characterized by its
impartiality and objectiveness.40 In the various complaints
resolved by said entity, the Cuban Government
has been urged to adopt “without delay” new
provisions and measures to recognize fully in law
and in practice the right of workers to establish
organizations that they consider necessary at all
levels (in particular, organizations independent from
the current union structure), and the right of these
organizations freely to organize their activities, or
those in which said Committee “urges the Government,
in future, to comply with the principle of
non-intervention or interference by the public
authorities in the trade union activities embodied in
Convention No. 87, Article 3.” These affirmations
point out the clear weakness of said fundamental
right, without the possibility to use as arguments to

38 The National Policy Association has the following members: AFL-CIO American Center for International Labor Solidarity (ACILS), American
Chamber of Commerce of Cuba in the United States (AmCham Cuba), Consejo Mexicano de Comercio Exterior (COMCE), Conference Board of
Canada, Florida International University, Instituto Tecnológico Autónomo de México (ITAM), National Policy Association, Pax Christi Netherlands,
Prince of Wales Business Leaders Forum, United States Chamber of Comerse, US Cuba Business Council, and Confederation of Netherlands Industry
and Employers (VNO-NCW).

39 A.C.E. QUAINTON, Toward best business practices for foreign investors in Cuba, Cuba on Transition, pp. 301-304.

40 In recent years, complaints have been lodged by several international union organizations with the ILO. For a more detailed study of these complaints,
we refer to our study entitled La realidad laboral en Cuba y la responsabilidad social corporativa [Reality of labor in Cuba and corporate social responsibility],
Valencia, Tirant lo Blanch, 2006.


Reality of Labor in Cuba and the Social Responsibilty of Foreign Investors

moderate the above conclusion the existence of
significant external actions that may guide and support
the action of independent union association,
since the establishment of measures of depravation
of freedom against union members or the search of
the meeting places, inter alia, are acts that blatantly
infringe the dignity of the person.

We must add that both the Committee of Experts
on the Application of Conventions and Recommendations
and the Conference Committee on the
Application of Conventions and Recommendations
of the ILO have endlessly repeated the need that
“the explicit reference to the ‘Confederation of
Workers’ in the labor legislation should be removed
to enable all workers in law and in practice to establish
and join organizations of their own choosing
outside the established trade union structure, in
accordance with Article 2 of the Convention.” In
its 2003 conclusions, the last of the entities cited
firmly urged “the Government to modify national
law and practice in the near future in order to recognize
the right of workers to establish organizations
of their own choosing in conditions of full
security, including organizations independent of the
established structure, if they so wished.”

We can add to the above a clearly distorted collective
bargaining. This character stems from the fact
that collective bargaining agreements are based on
guidelines established by the government and the
competent ministries, and, in the case of companies
with foreign capital, the collective bargaining
agreement is established between the employment
agency and the corporate administration, in the
presence of the state union. The above conclusion
is reinforced by the ILO Committee on Freedom of
Association, which urged the Government to take
measures to amend legislation with regard to collective
bargaining, to ensure that collective bargaining
in labor centers can take place without recourse
to binding compulsory arbitration prescribed
by the legislation and without interference by the
authorities, organizations at a higher level, or the
Confederation of Cuban Workers.

Similarly, the ILO Committee of Experts on the

Application of Conventions and Recommendations
has referred in various comments to a series of
legal and regulatory texts under which the access to
training and employment, as well as the evaluation
of the workers for labor selection and placement or
to define the labor merits and demerits, depend in
Cuba, among other factors, on political attitude.
Aspects such as the selection of administrative staff
in the educational system have made the Committee
express its desire that the Cuban Government take
the measures necessary to eliminate all forms of
discrimination, both in access to training and to
employment. Equally, observations have been made,
both by said Committee of Experts and by the
Conference Committee on the Application of Conventions
and Recommendations of the ILO, on
aspects such as the requirement from the inspectors
of the Ministry of Education to show political and
moral conduct in line with the principles and objectives
of the socialist State; the dismissal of certain
members of the personnel of higher education
establishments due to conduct contrary to socialist
morality, including the worker’s ideological conduct
among the merits in his labor file; the criteria to
evaluate the performance of journalists; or, finally,
the scope of the personal control file established by
certain companies, including information on the
moral aptitude and social conduct of the worker. It
is obvious that such accumulation of premises in
which ideological freedom is denied may generate a
well-founded suspicion that there are situations of
discrimination in the allocation of jobs for ideological
reasons or other related reasons. It is clear that
such actions are in obvious contradiction with the
principles established by Convention No. 111 concerning
Discrimination (Employment and Occupation),
1958, and by Convention No. 122 concerning
Employment Policy, 1964.

In short, the ample powers of the Cuban Government
over the rights of the worker in the sector of
foreign investments actually frustrate the companies
that support “better corporate principles,” such as
the respect of the right to association of the workers
and non-discriminatory hiring practices.

The complete book: “Reality of Labor in Cuba and the Social Responsibility of Foreign Investors” can be purchased at:
www.tirant.com