In previous pieces we have analyzed which rights enshrined in the Universal Declaration of Human Rights and in the Cuban Constitution were violated by the regime when it refused to allow journalist Karla Perez and activists Anamely Ramos and Omara Ruiz Urquiola to enter Cuba (the latter on four occasions, to date).
But did the airlines that prevented them from boarding their flights back to the country, and the states involved, failed to protect their human rights? Could these Cuban women, banished by the regime, denounce them before the United Nations? The answer to both questions is yes.
The Office of the United Nations (UN) High Commissioner for Human Rights has developed a set of guidance and measures contained in the handbook entitled UN Guiding Principles on Business and Human Rights for use by states, business, civil society and other stakeholders.
These Guiding Principles apply to all states and to all enterprises, both transnational and otherwise, regardless of their size, sector, location, ownership and structure.
States are not, as a general rule, responsible for human rights violations committed by private actors. However, states may breach their international human rights obligations when such violations can be attributed to them, or when they fail to take adequate measures to prevent, investigate, punish and redress abuses committed by private actors acting within their territories.
According to these principles, states must ensure respect for human rights and clearly state that all companies domiciled in their territory and/or jurisdiction are expected to observe them in all their activities.
States are to: (a) Enforce laws that have the purpose or effect of making companies respect human rights, periodically assess the adequacy of such laws, and remedy any shortcomings; (b) Ensure that other laws and regulations governing the establishment and activities of companies, such as commercial law, do not restrict, but rather are conducive to respect for human rights by businesses; (c) Effectively advise companies on how to respect human rights in their activities; (d) Encourage and, if necessary, require companies to explain how they take into account the impact of their activities on human rights; (e) Encourage and, if necessary, require companies to explain how they take into account the impact of their activities on human rights; c) Effectively advise companies on how to respect human rights in their activities; d) Encourage and, if necessary, require companies to explain how they take into account the impact of their activities on human rights.
States, individually, are the primary subjects of obligations under international human rights law and, collectively, the guarantors of the international human rights regime.
When a company is controlled by the State or when its acts are otherwise attributable to the State, a human rights violation by this company may entail a violation of the State's own obligations under international law.
But states do not waive their international human rights obligations by privatizing the provision of services with a potential impact on the exercise of human rights. If they do not ensure that companies providing such services comply with human rights obligations, the consequences may be damaging to the reputation of the state itself and incur legal problems, according to these principles.
This means that the states of Panama and the United States failed to comply with their obligations before the UN by not demanding that the airlines Copa Airlines, Southwest and American Airlines, which operate in their territories, respect the human rights of these Cubans, who were prevented from returning to their country.
When human rights are violated, those affected must have access to effective judicial and extrajudicial grievance mechanisms, also provided for in Articles 7, 8 and 10 of the Universal Declaration of Human Rights, establishing the right to equal treatment and prohibiting discrimination, or even facilitating discrimination, of any kind. They also provide for access to effective remedies before competent national tribunals to protect individuals against violations of their fundamental rights recognized by the Constitution or laws. The latter declares the right of everyone, under conditions of full equality, to a fair and public hearing by an independent and impartial tribunal.
It is natural that airlines' first interest is to make profits, or at least not to lose money, but they have obligations to fulfill. The aforementioned UN manual states that companies must respect human rights, which means that they must refrain from violating the human rights of others and address any adverse human rights impacts in which they are involved.
Thus far, this has not happened in the cases of the Cubans Karla Perez, Anamely Ramos and Omara Ruiz Urquiola. When the airlines prevented them from boarding their flights back to the country, none of them were provided with a certified copy of the administrative resolution prohibiting these Cuban citizens from entering their country.
Now, if the airlines wish to function as legal proxies of the Cuban State/Government to defend their own interests, materially preventing the boarding of Cubans after receiving the government's decisions, they must demand, in a process involving the renegotiation of agreements with the competent authorities - as a minimum - compliance with the following technical/legal requirements guaranteed by International Law, as well as Cuban law in force, and the Constitution:
1. The airline cannot refuse to board a passenger if it does not first receive a copy of the administrative resolution that substantiates, with substantiations of facts and rights, the reasons for their impeded access to national territory. This document must guarantee the right to defense of those affected, and demonstrate to the airlines that there is no abusive, illegal or arbitrary act being perpetrated by the Cuban side.
2. The administrative resolution must clearly and fully identify the authority and institution that issues and signs it. It must also contain the delegation of express powers in favor of the airline to serve as a kind of intermediary legal agent between the State and Government and the persons in question, especially those with Cuban citizenship or nationality.
3. The administrative resolution, based on the "framework agreement" signed between the Cuban party and the airline, must clarify and recognize the affected persons’ right to compensation for damages to cover expenses unduly incurred in the purchase of the ticket and other movements and activities carried out in relation to it. The resolution must contain information on who and how the affected person will be compensated. This information must be provided by the company, unless the Cuban regime provides the airlines, in a timely manner, with the list of persons who are duly barred from entering national territory. The same recognition of compensatory rights will apply unless there is a firm judicial sentence that recognizes the validity and legality of the impediment.
4. The "framework agreement" will contain, in accordance with the rules of private international law, the ways, forms, terms and laws and courts that will be competent to resolve the dispute. This information must appear in the copy given to the person affect, so that he/she may exercise their constitutional and universal right of access to an impartial justice system. Since the person cannot enter Cuban territory, the court and competent laws are to be those of the country where he/she attempted to board the flight, such that the Cuban consular representation located in said State or foreign nation should be involved.
If the airlines do not wish to force the Cuban State/Government to comply with the minimum requirements above, or Cuba forswears them, those affected are left with a choice:
- Seek to satisfy their right to compensation for damages caused by the airline by accessing the internal complaint system.
- Secure consular assistance and a response
- As a last resort against impunity, to sue the airline and the representation of the State of Cuba in accordance with the laws in force in the country where the violation has occurred, stating the facts of the violation, the damages caused, and the claims for declaratory and compensatory justice that the plaintiff considers appropriate.
- To report, as a last resort, before the United Nations High Commissioner for Human Rights, alleged human rights violations committed by the airlines.