THE RIGHT TO RECEIVE FUNDING
Article 143 of the preliminary draft bill of the Cuban Penal Code is the latest tool of the Cuban dictatorship to imprison activists, independent journalists and artists who receive foreign funding with up to 10 years in prison. It is also intended to intimidate those outside Cuba providing support and financial aid to the human rights movement inside the island.
As in Russia with the 2006 law on non-governmental associations (NGOs), Foreign Agents Law, the Bill no. 1052523 of 2020 and similar gag laws in other countries under dictatorship where similar gag laws exist, the preliminary draft of Article 143 of the Cuban Penal Code seeks to silence and annihilate intendent journalism and civil society organizations leading the peaceful struggle for democracy, plurality and human rights in Cuba.
Article 143. Whoever, by himself or on behalf of non-governmental organizations, institutions of international character, associative forms or any natural or juridical person of the country or of a foreign State, supports, promotes, finances, provides, receives or has in his power funds, material or financial resources, for the purpose of defraying activities against the State and its constitutional order, shall be punished with deprivation of liberty for four to ten years.
The preliminary draft would be incorporated into a battery of provisions of the Cuban Penal Code, such as enemy propaganda, contempt for authority, rebellion, acts against state security, clandestine printing, distribution of false news, pre-criminal social dangerousness, illicit associations, meetings and demonstrations, resistance and defamation and libel, and others that have been used by the Cuban dictatorship against its critics. These articles of the Cuban Criminal Code have been considered by human rights organizations such as Amnesty International as violating fundamental human rights as they restrict the peaceful exercise of freedom of expression and freedom of peaceful assembly and association.
The core of the defamation campaigns used by the Cuban regime against human rights activists and members of civil society in Cuba revolves around vilifying and stripping those who receive foreign aid of their legitimacy and autonomy of thought. It also seeks, as the Communist Party of Czechoslovakia did in its day against Vaclac Havel, to use envy to foment hatred and division among Cubans, in a country where the regime uses misery as an instrument of political and social control
History shows, contrary to this black and white perception of the Cuban regime, that movements for civil and political rights have received foreign funding and not for that reason the independence of their ideas and objectives is compromised. I refer to two examples of many: Just to mention a few examples:
Luis María Buch Rodríguez, a member of the 26th of July movement led by Fidel Castro, was in charge of Venezuela after the fall of the dictator Pérez Jiménez in January 1958 of soliciting money and weapons from the new Venezuelan government for the Rebel Army. He collected $100,000 and installed shortwave communications between Caracas and the Sierra Maestra.
The Swedish government's financial support to the black resistance against Apartheid between 1972 and 1994 amounted to more than $443 million dollars.
However, the Cuban regime does not claim that Fidel Castro was a puppet of the Provisional Government Junta in Venezuela, nor that Nelson Mandela, the African National Congress and the anti-apartheid resistance groups were puppets of the government of the socialist Olof Palme and other Swedish cabinets.
The Cuban regime, for its part, has received monumental aid in oil and financing from the former Soviet Union and Venezuela. It is therefore valid to ask: if a government receives foreign aid from other governments, why shouldn't human rights activists?
Receiving foreign funding is protected by international law and is considered essential for exercising fundamental human rights such as the right to freedom of association. The United Nations Human Rights Council charged with authoritative interpretation of the International Covenant on Civil and Political Rights has published several communications in defense of the right of civil society organizations to access resources and funding.
The Right to Receive Funding according to International Law:
1- Report of the Special Rapporteur, para. 20.
“The ability of Civil Society Organizations (CSOs) to access funding and other resources from domestic, foreign and international resources is an integral part of the right to freedom of association (A/HRC/23/39, para. 20). This is because of the central importance of resources in effectively exercising freedom of association.”
“The ability to seek, secure and use resources is essential to the existence and effective operations of any association, no matter how small. The right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also to seek, receive and use resources – human, material and financial – from domestic, foreign, and international sources.”
Source: “General Assembly. A/HRC/23/39. Human Rights Council. Twenty third session. Agenda Item 3. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development” 24 Abril, 2013.
2- General Comment 37 on the International Covenant on Civil and Political Rights
“The obligations of States to protect the freedom of peaceful assembly extends to actions outside of the immediate context of gatherings such as the mobilization of resources.”
Source: The General Comment No. 37 was adopted on 23 July 2020 during its 129th online session. General Comment No. 37 on Article 21 - on Right of peaceful assembly (CCPR/C/GC/37).
3- Communication No. 1274/2004:
“States that access to resources “relates not only to the right to form an association, but also guarantees the right of such an association freely to carry out its statutory activities,” which includes fundraising activities. (October-November 2006)”
Source: “Communication no. 1274/2004 : Human Rights Committee, 88th session, 16 October-3 November 2006”
4- Resolution 22/6 on Protecting Human Rights Defenders
“States shall ensure that reporting requirements for civil society “do not inhibit functional autonomy [of associations]” and “do not discriminatorily impose restrictions on potential sources of funding.”(12 April 2013)
Source: GE.A/67/292. 3-14813. Human Rights Council Twenty-second session
5- Resolution 27/31 on Civil Society Space
“Calls upon States to ensure that domestic provisions on funding to civil society actors are in compliance with their international human rights obligations and commitments and are not misused to hinder the work or endanger the safety of civil society actors, and underlines the importance of the ability to solicit, receive and utilize resources for their work”
Source: “General Assembly. A/HRC/RES27/31. Human Rights Council. Twenty Seventh Session. Agenda Item 3. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development” 3 October 2014
6- Declaration on the Elimination of All forms of Intolerance and of Discrimination Based on Religion or Belief, Art 6-F.
“Explicitly refers to the freedom to access funding, stating that the right to freedom of thought, conscience, religion or belief shall include, inter alia, the freedom “to solicit and receive voluntary financial and other contributions from individuals and institutions.”
Source: “Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. General Assembly resolution 36/55 New York, 25 November 1981