Cuba’s Treaty-Making Process: Constitutional Framework and International Commitments

Introduction

Cuba, as a sovereign state in the Caribbean, has a unique political and legal framework that shapes its approach to international relations and treaty-making. The country’s socialist system, rooted in its revolutionary history, is reflected in its constitutional provisions and the way it engages with international commitments. Understanding Cuba’s treaty-making process requires an analysis of its constitutional framework, its approach to international law, and its stance on key international instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969. This article explores the legal mechanisms through which Cuba enters into treaties, examines whether it adopts a monist or dualist approach to incorporating international law into its domestic legal system, and assesses the implications of its relationship with the VCLT for other states engaging in treaty negotiations with Cuba. By delving into these aspects, the article aims to provide a comprehensive overview of Cuba’s treaty-making process and its position within the broader context of international law.

The discussion is structured as follows: the first section outlines the constitutional framework governing treaty-making in Cuba, with specific references to relevant provisions in the Cuban Constitution of 2019. The second section analyzes whether Cuba adheres to a monist or dualist approach in integrating treaties into national law and the corresponding implementation mechanisms. The third section examines Cuba’s relationship with the VCLT of 1969 and the potential implications for other states. Finally, the article concludes with reflections on the broader significance of Cuba’s treaty-making practices in the international legal order.

Constitutional Framework for Treaty-Making in Cuba

The legal basis for Cuba’s engagement in international treaties is enshrined in its Constitution, which was last reformed and adopted in 2019. The Cuban Constitution of 2019 reflects the country’s commitment to socialist principles while addressing the modalities for entering into international agreements. Several articles within the Constitution outline the authority, procedures, and principles governing treaty-making, ensuring that such actions align with national interests and sovereignty.

Article 1 of the Cuban Constitution establishes Cuba as a socialist state, emphasizing its commitment to international solidarity, particularly with other socialist and developing nations. This ideological foundation often influences the types of treaties Cuba enters into, prioritizing agreements that promote mutual cooperation and non-interference (Constitución de la República de Cuba, 2019). While Article 1 does not directly address treaty-making, it sets the tone for Cuba’s foreign policy, which is a critical backdrop to understanding its international engagements.

More specifically, Article 16 of the Constitution outlines the principles of Cuba’s foreign policy, which include respect for international law, sovereignty, and equality among states. It states that Cuba “bases its international relations on the principles of equality among states, self-determination, non-interference in internal affairs, and solidarity among peoples” (Constitución de la República de Cuba, 2019). This article implies that treaties entered into by Cuba must conform to these principles, ensuring that international commitments do not undermine national sovereignty or contradict the state’s ideological stance.

The explicit authority to enter into treaties is addressed in Title VI of the Constitution, which delineates the structure and powers of the state. Article 102 assigns the President of the Republic the power to represent the state in international relations, including the ability to negotiate and sign international treaties (Constitución de la República de Cuba, 2019). This provision designates the President as the primary figure in the treaty-making process, reflecting a centralized approach typical of many socialist systems where executive authority plays a dominant role in foreign affairs. However, the President’s power is not absolute, as other state organs are involved in the process, particularly in the ratification stage.

Article 98 of the Constitution empowers the National Assembly of People’s Power (Asamblea Nacional del Poder Popular), Cuba’s supreme legislative body, with the authority to approve or reject international treaties. Specifically, it states that the National Assembly is responsible for “approving, denouncing, or modifying international treaties” (Constitución de la República de Cuba, 2019). This provision highlights a critical check on executive power, ensuring that treaties negotiated by the President receive legislative scrutiny and approval before they can be considered binding on the state. The involvement of the National Assembly underscores the democratic centralism that characterizes Cuba’s political system, where key decisions, including those related to international commitments, require collective approval.

Additionally, the Council of State, as per Article 109, plays a supporting role in the treaty-making process. While not directly responsible for negotiation or ratification, the Council of State, which acts as the executive arm of the National Assembly when it is not in session, may be involved in advising on or endorsing treaty-related decisions (Constitución de la República de Cuba, 2019). This layered structure of authority ensures that treaty-making in Cuba is a collaborative process involving multiple branches of government, reflecting the interplay between executive initiative and legislative oversight.

Furthermore, Article 8 of the Constitution emphasizes the supremacy of the Constitution over all legal norms, including international treaties. It states, “The Constitution of the Republic of Cuba is the supreme norm of the state. All are obliged to comply with it. Other laws and legal norms must conform to it” (Constitución de la República de Cuba, 2019). This provision suggests that treaties, once ratified, must align with constitutional principles, and in case of conflict, the Constitution prevails. This hierarchical approach has significant implications for how treaties are implemented and interpreted within the Cuban legal system, as discussed in the next section.

In practice, the treaty-making process in Cuba follows a structured sequence: negotiation by the executive (led by the President or designated representatives), submission to the National Assembly for approval, and, upon ratification, integration into the domestic legal framework as necessary. This process ensures that international commitments are not only in line with national interests but also subject to rigorous internal review. The constitutional provisions collectively establish a clear legal pathway for Cuba to enter into treaties, balancing executive leadership with legislative accountability.

Monist or Dualist Approach: Treaties in Cuban National Law

One of the fundamental distinctions in international law is whether a state adopts a monist or dualist approach to the incorporation of treaties into domestic law. In a monist system, international law and domestic law form a unified legal order, meaning that treaties are automatically applicable within the national legal system upon ratification, without the need for further legislative action. In contrast, a dualist system treats international law and domestic law as separate spheres, requiring specific legislative measures to transform international obligations into enforceable national law (Cassese, 2005).

Cuba’s approach to the relationship between international and domestic law leans toward a dualist framework, though with certain nuances that reflect its socialist legal tradition. The Cuban Constitution does not explicitly declare a monist or dualist stance, but an analysis of its provisions and legal practices provides insight into its position. As previously mentioned, Article 8 of the Constitution establishes the supremacy of the Constitution over all legal norms, which implies that international treaties, while binding on the state at the international level, do not automatically override domestic law unless they are incorporated through specific legislative or regulatory mechanisms (Constitución de la República de Cuba, 2019).

In Cuban legal practice, treaties do not have direct effect in the domestic legal system upon ratification by the National Assembly. Instead, their implementation often requires additional legislative or executive action to align national laws with the obligations set forth in the treaty. For instance, if a treaty requires changes to existing Cuban laws or the creation of new legal norms, the National Assembly must enact corresponding legislation. This process aligns with the dualist principle that international law does not automatically become part of the domestic legal order without formal incorporation (Crawford, 2012).

However, Cuba’s dualist approach is not absolute, as the country demonstrates a strong rhetorical commitment to international law, particularly in areas such as human rights and anti-imperialist solidarity, which are core tenets of its foreign policy. Article 16 of the Constitution underscores Cuba’s adherence to international law, suggesting a willingness to align domestic practices with international obligations when they are consistent with socialist principles (Constitución de la República de Cuba, 2019). This indicates a pragmatic approach where, although formal incorporation is required, the state often seeks to harmonize its laws with international commitments, especially in areas aligned with its ideological goals.

The process of translating treaties into national law in Cuba typically involves the following steps after ratification by the National Assembly: (1) publication of the treaty in the Official Gazette (Gaceta Oficial) to make it publicly known, (2) assessment by relevant ministries or state bodies to determine if domestic legal adjustments are needed, and (3) the proposal and enactment of enabling legislation or regulations if necessary. This methodical approach ensures that treaties do not create legal uncertainty within the domestic system and that their implementation is consistent with the broader framework of Cuban law.

An illustrative example of Cuba’s dualist approach can be seen in its handling of human rights treaties. While Cuba is a signatory to several international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the direct application of these treaties in Cuban courts is limited unless specific domestic legislation reflects their provisions. Cuban courts generally rely on national laws rather than invoking international treaties directly, reinforcing the dualist separation between international and domestic legal spheres (Shelton, 2014).

This dualist orientation has both advantages and challenges. On one hand, it allows Cuba to maintain control over the pace and manner of implementing international obligations, ensuring that they do not conflict with national priorities or socialist principles. On the other hand, it can lead to delays or inconsistencies in fulfilling international commitments, as legislative processes may be slow or influenced by political considerations. Nonetheless, Cuba’s dualist framework reflects a cautious approach to balancing sovereignty with international engagement, a hallmark of its legal and political identity.

Cuba and the Vienna Convention on the Law of Treaties (1969)

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the cornerstone of international treaty law, codifying customary rules on the formation, interpretation, and termination of treaties. Adopted on May 23, 1969, and entered into force on January 27, 1980, the VCLT provides a comprehensive framework for states to engage in treaty-making, ensuring clarity and predictability in international agreements (United Nations, 1980). A key question in understanding Cuba’s treaty-making process is whether it is a party to the VCLT and how this status influences its interactions with other states.

Cuba is not a signatory or party to the VCLT of 1969. According to the records of the United Nations Treaty Series, Cuba has neither signed nor ratified the Convention, a stance that aligns with its historical skepticism of certain international instruments perceived as dominated by Western powers during the Cold War era. This position reflects Cuba’s broader approach to international law, where it selectively engages with treaties and conventions based on alignment with its national interests and ideological principles (United Nations Treaty Collection, 2023).

Despite not being a party to the VCLT, Cuba is still bound by many of its provisions under customary international law. The VCLT is widely recognized as codifying customary rules that apply to all states, regardless of whether they have formally acceded to the Convention (Sinclair, 1984). For instance, principles such as pacta sunt servanda (treaties must be observed in good faith, as per Article 26 of the VCLT) and rules on treaty interpretation (Articles 31-33) are considered reflective of customary international law and are generally adhered to by Cuba in its international dealings. Therefore, while Cuba is not formally obligated by the VCLT as a treaty, its treaty-making practices are influenced by the customary norms the Convention embodies.

The fact that Cuba is not a party to the VCLT has several implications for other states seeking to enter into treaties with it. First, states must be aware that Cuba may not feel bound by specific procedural or interpretive rules outlined in the VCLT, such as those related to reservations (Articles 19-23) or the invalidity of treaties due to coercion (Article 52). While customary international law provides a baseline, the absence of formal adherence to the VCLT means that negotiations with Cuba may require explicit agreements on procedural matters to avoid misunderstandings.

Second, other states should consider Cuba’s ideological and political context when drafting treaties. Given Cuba’s emphasis on sovereignty and non-interference, as articulated in Article 16 of its Constitution, treaty provisions that appear to encroach on national autonomy may face resistance during negotiations or ratification (Constitución de la República de Cuba, 2019). States engaging with Cuba would benefit from aligning treaty objectives with principles of mutual benefit and respect for sovereignty, which are likely to facilitate smoother negotiations.

Third, the dualist nature of Cuba’s legal system, as discussed earlier, means that other states must account for potential delays or discrepancies in the implementation of treaty obligations. Since treaties require domestic legislative action to be fully effective within Cuba, partner states should anticipate that commitments made at the international level may not immediately translate into enforceable domestic measures. Patience and diplomatic engagement are essential to ensure that Cuba aligns its national laws with treaty obligations over time.

For states that are parties to the VCLT, engaging with Cuba offers a lesson in the importance of flexibility and adaptability in international treaty-making. While the VCLT provides a standardized framework, not all states are bound by it, and successful treaty negotiations require an understanding of the specific legal and political contexts of non-party states like Cuba. This underscores the need for a tailored approach that respects the diversity of legal systems while adhering to fundamental principles of international law.

Conclusion

Cuba’s treaty-making process is deeply rooted in its constitutional framework, which emphasizes sovereignty, socialist principles, and a structured balance of executive and legislative authority. The Cuban Constitution of 2019, through provisions such as Articles 1, 8, 16, 98, 102, and 109, provides a clear legal pathway for entering into international treaties, involving negotiation by the President, approval by the National Assembly, and alignment with constitutional supremacy. This process reflects a deliberate and centralized approach to international commitments, ensuring that treaties serve national interests and adhere to ideological goals.

In terms of its approach to international law, Cuba operates within a predominantly dualist framework, requiring legislative or regulatory action to incorporate treaties into domestic law. This system prioritizes national control over the implementation of international obligations, allowing Cuba to maintain sovereignty while selectively engaging with global norms. However, the dualist approach can pose challenges in terms of timely compliance with treaty commitments, necessitating patience and understanding from international partners.

Cuba’s non-party status to the Vienna Convention on the Law of Treaties of 1969 further shapes its engagement with the international community. While bound by customary international law reflected in the VCLT, Cuba’s absence from the Convention highlights the importance for other states to approach treaty negotiations with flexibility, explicit procedural agreements, and an appreciation of Cuba’s unique legal and political context. For the international community, Cuba’s treaty-making practices offer valuable insights into navigating treaty relationships with states outside the formal VCLT framework, emphasizing the need for mutual respect and tailored diplomacy.

In conclusion, understanding Cuba’s treaty-making process requires a nuanced appreciation of its constitutional provisions, dualist legal system, and selective engagement with international instruments. As global interactions continue to evolve, Cuba’s approach serves as a case study in balancing national sovereignty with international cooperation, providing lessons for states seeking to build effective and respectful partnerships in a diverse legal landscape.

References

• Cassese, A. (2005). International Law (2nd ed.). Oxford University Press.
• Constitución de la República de Cuba. (2019). Gaceta Oficial de la República de Cuba.
• Crawford, J. (2012). Brownlie’s Principles of Public International Law (8th ed.). Oxford University Press.
• Shelton, D. (2014). International Human Rights Law. Oxford University Press.
• Sinclair, I. (1984). The Vienna Convention on the Law of Treaties (2nd ed.). Manchester University Press.
• United Nations. (1980). Vienna Convention on the Law of Treaties. United Nations Treaty Series, 1155, 331.
• United Nations Treaty Collection. (2023). Status of Treaties: Vienna Convention on the Law of Treaties. Retrieved from the United Nations online database.