Human Rights advocate says MOU should be revealed

Cubans arrive on Cayman Brac in unseaworthy vessel

Wednesday,  February 16, 2005

In light of the recent changes to the rules on what residents can and can’t do to help Cuban migrants, Cayman Net News’ Sister Islands correspondent, Nicky Watson put ten questions about the new government guidelines to the ten members of the Cayman Islands Human Rights Committee (HRC). 

One member, Gordon Barlow has replied, though he stressed that these are his own personal views and do not necessarily reflect the views of the other nine members.

Mr Barlow, an independent human rights activist, represented the Cayman HRC at the Gibraltar Human Rights Symposium in September last year.

Early this year, the Cayman Government introduced these new official guidelines for dealing with Cubans who illegally enter Cayman shores by sea. The guidelines state that the Cubans will be repatriated unless they leave in the boat they arrived in without any assistance, in accordance to the Memorandum of Understanding (MOU) between the Government of the Cayman Islands and the Government of the Republic of Cuba. 

The HRC was appointed in 2004 by the UDP Government to report on progress in the Cayman Islands regarding the adoption of human rights conventions. Its members include Committee Chairman Roy Bodden, Minister for Education, Human Resources and Culture, and Deputy Chairman Dr Frank McField, Minister for Community Services, Youth, Sports and Gender Affairs.

CNN: Do you feel that the MOU concerning the repatriation of Cuban migrants, should be available to public scrutiny? 

GB: Yes, absolutely. However, I very much doubt whether this is a decision for the Cayman Islands Government. It is inconceivable that Britain would delegate to any Overseas Territory’s government the authority to negotiate with any foreign country on the treatment of refugees. 

CNN: The MOU is said to contain assurances from the Cuban government that repatriated Cubans will not suffer recrimination. What measures are taken to ensure that this is so? 

GB: I’m not sure an MOU even exists in any enforceable format. It would carry no weight at all in Cuba if ‘the Cayman Islands Government’ alone had signed it. The FCO carries full responsibility for what happens to refugees arriving in a British Territory. The alleged ‘Cayman Islands Government’ signing of an MOU may be a red herring laid by the FCO to avoid international criticism of Britain.

CNN: Are the Cayman Islands bound by international conventions signed by the UK Government? 

GB: The UK Government is very selective in nominating which formal covenants apply in which Overseas Territories, and the extent to which they are enforceable there. There is no evidence that the ECHR (European Convention on Human Rights), for instance, is enforceable in Cayman, and the UK’s Human Rights Act seems not to be enforceable against FCO officials in Britain, when they deal with matters in Cayman.

CNN: What are the moral and legal implications of assisting Cubans to continue an extremely hazardous journey in un-seaworthy vessels? 

GB: The legal question should be referred to our Attorney-General, who is doubtlessly being advised by the FCO Legal Department. Assisting anybody to put out to sea in an inadequate vessel looks to me like reckless endangerment of lives, which I think is a crime in Cayman. 

CNN: If migrants are offered the choice of repatriation or to continue their journey in un-seaworthy vessels without food or water, and they choose to continue, are Cayman authorities responsible for their safety? 

GB: Morally, yes. Legally: see my answer to (the previous question). Certainly there is a moral obligation to check whether any of the boat people die at sea between here and their next destinations. If any do die, then those who pushed their boats out may bear some responsibility. That’s only logical. 

CNN: What are the moral implications of refoulement (involuntary repatriation) to a politically repressive regime? 

GB: “Politically repressive” is a flexible term, I would think. I have no idea what fate awaits escapees from Cuba who are returned. International treaties relating to the repatriation of refugees aim to strike a fair compromise between the basic “human rights” of refugees and the sovereign rights of the countries they go to. In Cayman, there is enough social stress caused by legal immigration, without our taking in thousands of illegal ones; and we are all justified in wanting the Cubans to keep moving. However, we do have a humanitarian obligation not to send them out to die at sea, and the UK Government is bound by treaties not to let that happen. And if it is happening – if – then the Cayman public is entitled to be told about it. State secrecy is not justified where human-rights violations are being alleged.

CNN: The Deputy Chief Secretary has stated to Cayman Net News that the FCO does not advise or direct the CI Government in the handling of illegal immigrants. Should the CI Government appeal for help, financial or otherwise, to assist with this issue? 

GB: I don’t believe the FCO has given the Cayman Government ‘carte blanche’ to deal with Cuba, about the boat people or anything else. Our Government could profitably ask the Commonwealth Secretariat for advice, if it is uncertain about anything. I know from my attendance at the Gibraltar Seminar that the Commonwealth takes a very close interest in how human rights issues are handled.

CNN: Have the Cayman Islands met obligations stipulated under international maritime law to develop search and rescue procedures? 

GB: In the absence of any announcement, probably not. 

CNN: Should migrants be advised of all their rights when they arrive, including their right to apply for political asylum? 

GB: Yes. Unfortunately, the FCO has always been ambivalent about the enforcement of international human rights conventions, so public officials such as Immigration and Police officers have no proper training relating to human rights, and no awareness of the international standards. They may have no idea that local laws are not always the highest source of authority. I feel very sorry for the officials on the Brac, having to deal with the boat people without the benefit of adequate legal advice. The purpose of international human rights treaties is to provide outside points of reference when signatory countries’ domestic laws permit inhumanities to occur. The Universal Declaration of Human Rights was written in direct response to the atrocities permitted by the domestic laws of Germany in the 1930s and ‘40s. 

CNN: International human rights law dictates the safe and humane treatment of all persons, regardless of their legal status. Has the HRC been monitoring the treatment of migrants to ensure that this is complied with? 

GB: No.

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