Cuba's Grannacional Projects at the Intersection of Business and Human Rights (Preliminary Conference Draft)
Larry Catá Backer [i]
ABSTRACT: This paper considers recent to Cuban led efforts to develop new forms of state-owned multinational enterprises and the potential conflicts between these entities and the emerging rules for international business behavior, especially those touching on business and human rights. The paper starts by discussing the basic theory and objectives of the grannacional generally, as a new form of transnational public enterprise, one that is meant to provide a viable challenge to current conventional global systems of economic organization. These ideas have been articulated as the “concepto grannacional” being given effect through the inter-governmental arrangements of the Alternative Bolivariana Para los Pueblos de Nuestra América (ALBA). Grannacional economic activity, ideologically based, is divided into two categories. The first, proyectos grannacionales, are inter-governmental in character. These include enterprises targeting education, tourism and the provision of medical services. The second, empresas grannacionales, focus on the creation of entities controlled by ALBA states and geared to the production, sale and distribution of goods. It then focuses on a specific grannacional related project--the Misión Barrio Adentro (MBA), a socio-political barter project in which Cuba exchanged doctors and other health field related goods and services under its control for Venezuelan goods, principally petroleum. (Convenio 2000). For Cuba programs like MBA have served as a means of engaging in economic globalization and of leveraging its political intervention in the service of its ideological programs in receptive states like Venezuela. It has also provided a basis for expanding Cuba’s commercial power by permitting large scale state directed barter transactions. But when bartering involves labor as well as capital, the fundamental premises of the ALBA system—and Cuban ideological notions of the fungibility of labor and capital in the service of the state—may collide with emerging global frameworks for human rights and economic activity. That collision is examined against (1) recent litigation in which Cuba has been accused (directly or indirectly) of violating international law by operating enterprises based on forced labor, (2) the possibility of conforming to the OECD's Guidelines on Corporate Governance of State Owned Enterprises, and (3) the possibility that these enterprises will not be able to conform to the United Nation's developing business and Human Rights project. The paper concludes that these emerging forms of economic enterprises, like related public ventures into private markets pose substantial political and legal issues at the intersection of public, private, national and international law. Global human rights norms, then, might as effectively confine grannacional activity to the territory of the sponsoring states more effectively than any sort of politically motivated embargo.
Based on the humanitarian support provided by Cuba during the Vargas tragedy, Caracas Mayor Freddy Bernal, with the support of President Chávez, agreed on a pilot project with the Cuban government. In April 2003, 58 Cuban doctors specializing in integral general medicine (a form of family medicine) were established in several peripheral neighborhoods (barrios) of Caracas, to provide primary health care. Health team personnel live in the same barrio in which they work . . . and an assistant known as a “Defensor de la Salud” (“Defender of Health”), is chosen from the community and trained by the Ministry of Health to provide basic support to the physicians. (Mutaner et al. 2008, 236).
the newest reflection of how Cuba, in concert with the people of many nations in Africa, Latin America, and the Caribbean, is transforming the training of doctors, nurses, and other health professionals while also delivering medical care to poor populations that in the past seldom received any attention at all. This dynamic notion, planted by Che and others at the beginning of the Revolution, has taken decades finally to develop, and now has come to fruition: thousands of doctors have been created who are capable of practicing and teaching revolutionary medicine, and they are putting this “weapon” to good use. (Id.).
International missions have allowed Cuba to fulfill dual goals of capitalizing on its highly educated population as a source of export income while pursuing its humanitarian goals of international solidarity. Cuba's model of charging below-market rates for professional health services has expanded exponentially since 2003 in a win-win situation for poor countries with insufficient medical care. Revenues for services earned from international missions (as well as the licensing and export of Cuban biotechnology and medical treatment to foreigners in Cuba) have become a major source of hard currency earnings, surpassing tourism earnings every year since 2005. (Blue 2010).
Cuba is a totalitarian state that abuses human rights; that Cuba has a long historyof forced labor and routinely compels labor under threat of imprisonment in violation of international law; that any Cuban who resists performing work is subject to persecution; that Cuba imposes prosecutions or “therapy and reeducation” at police discretion for the crime of “potential dangerousness” on those who refuse to work for the socialist cause; that Cuba imprisons those who refuse to work at worksites in prisons that are particularly inhumane and dangerous; that Cuba employs outrageous means to persecute those who resist the will of the state; that the Cuban state was particularly concerned with the laborers it was deploying to Curaçao because they generated hard currency; that the punishment workers would receive if they refused to work in its forced labor program would be particularly harsh because the program generated foreign currency that allowed the state to survive economic sanctions on it; and that the laborers provided by Cuba were not free individuals. (Id., 1359-61).
The Defendant in this case, one of the largest drydock companies in the Western Hemisphere, with tens of millions if not hundreds of millions of dollars in annual revenues, conspired with the Republic of Cuba to force Cuban citizens to travel to facilities the Defendant owns in Curaçao, to hold them in captivity there, and to force them to work repairing ships and oil platforms. (Id., at 1360).
“Corporate complicity" is a relatively new concept. Although it has echoes in the law of accomplices in criminal law, those active in the area of business and human rights are seeking to describe what "corporate complicity" means in terms of legal policy, good business practices, as well as in different branches of the law. But there remains considerable confusion and uncertainty about when a company should be considered to be complicit in human rights violations committed by others. (Backer 2010).