CC BY
0УДК 341.91
DOI: 10.18522/2313-6138-2024-11-2-7
Caridad Figueredo Guerra,
Instructor Professor of International Law, University of Cienfuegos «Carlos Rafael Rodríguez» (UCf), email: guerracaridad676@gmail.com Supervisor: Dr. C. Rodolfo P. Ripoll Salcines, Full Professor/Consultant
Каридад Фигередо Герра,
профессор, преподаватель международного права, Университет Сьенфуэгоса «Карлос Рафаэль Родригес» (UCf), email: guerracaridad676@gmail.com Доктор К. Родольфо П. Риполь Салчинес, профессор/консультант
PUBLIC ORDER AS A LIMITATION TO THE APPLICATION
OF FOREIGN LAW IN CUBA ♦
ОГРАНИЧЕНИЯ В ПРИМЕНЕНИИ ИНОСТРАННОГО ПРАВА НА КУБЕ
ABSTRACT. The existence of the problem of evasion or at least limitation in the application of foreign law is recognized in law enforcement practice and in the legislation of almost all states. In turn, this issue is also controversial in the doctrine of private international law of the Republic of Cuba. The political significance of this topic is determined, among other things, by the complex and contradictory tangle of relationships between Cuba and the international community. Human rights in Cuba occurred under the influence of certain internal factors since the formation and development of political, civil and socio-economic, such as the socialist nature of the state, the activities of the opposition and its interaction with the authorities, and external factors, such as the conflict with the United States, relations with the European Union, cooperation with international human rights organizations.
KEYWORDS: public order; custom; sanctions; restrictions; state sovereignty; history; culture.
АННОТАЦИЯ. В правоприменительной практике и в законодательстве почти всех государств признается существование проблемы уклонения или, по крайней мере, ограничения в применении норм иностранного права. В свою очередь, данный вопрос является дискуссионным и в доктрине международного частного права Республики Куба. Политическая значимость данной темы определяется в том числе сложным и противоречивым клубком взаимоотношений между Кубой и международным сообществом. Поскольку становление и развитие политических, гражданских и социально-экономических прав человека на Кубе происходило под влиянием определенных внутренних факторов, - таких, как социалистический характер государства, деятельность оппозиции и ее взаимодействие с властями, - и внешних факторов, - таких, как конфликт с США, отношения с Европейским Союзом, сотрудничество с международными правозащитными организациями.
КЛЮЧЕВЫЕ СЛОВА: общественный порядок; обычай; санкции; ограничения; суверенитет государства; история; культура.
FOR CITATION:
Figueredo Guerra, C. (2024) Public order as a Limitation to the Application of Foreign Law in Cuba. Bulletin of the Law Faculty, SFEDU. 11(2): 61-68 [in Eng.]. DOI: 10.18522/2313-6138-2024-11-2-7
ОБРАЗЕЦ ЦИТИРОВАНИЯ:
Фигередо Герра, К. Public order as a Limitation to the Application of Foreign Law in Cuba (Ограничения в применении иностранного права на Кубе) / К. Фигередо Герра. - Текст : непосредственный // Вестник юридического факультета Южного федерального университета. - 2024. - Т. 11, № 2. - С. 61-68. - DOI: 10.18522/23136138-2024-11-2-7
© C. Figueredo Guerra (К. Фигередо Герра), 2024
Introduction. The central function of Private International Law (hereinafter PIL) is the determination of the applicable law, either by judges, officials, or authorities of a State, in the knowledge and, where appropriate, the solution, of a legal relationship with a foreign element (Bustamante, 1939, Echemendia, 1983; Davalos, 2007).
In that sense, in the Cuban legal system, the PIL norms are not codified in a single legal instrument, but scattered in different laws. The best defined and most comprehensive PIL norms are those contained in Law 59 of 1987 (Civil Code), from Articles 11 to 21, although these, as part of the Civil Code as a whole, have a supplementary character with respect to civil, family or other matters regulated in special laws1; and in Law 156 of 2022 (Family Code) from Article 453 to 4742.
The Civil Code identifies the institution of Public Order in Article 21, which states: «Foreign law does not apply to the extent that its effects are contrary to the principles of the political, social and economic regime of the Republic of Cuba3. However, the recently approved Family Code defines public order in Article 457, specifically in paragraph 3: «For these purposes, public order is understood as the set of principles and norms that inspire and sustain the Cuban legal-social regime, and the culture of society to preserve its goods, values and general interests, consistent with the protection of the rights of children, adolescents and people in vulnerable situations».
Consequently, with the above Articles it can be seen that each law establishes a different concept of the institution in question, taking into account that both have the same normative hierarchy, should
1 Article 8 establishes that: «The provisions of this Code are supplementary with respect to civil matters or others regulated by special laws».
In addition, in its First Final Provision it reaffirms that: «Without prejudice to the supplementary nature of this Code, legal relations related to the family are governed by special legislation...».
2 Regardless of the fact that the Cuban PIL System is dispersed, this dispersion does not constitute a problem in itself, as long as there is a systemic coherence between the corresponding PIL norms of each law that guarantees to know and solve the legal relations with a foreign element with a common legal logic in all matters.
3 As can be seen, the ordinal does not refer to the term «public order» as such, but according to (Davalos, 2007), its content must be interpreted as fulfilling the functions of what is understood by public order.
be taken into consideration the aforementioned supplementary nature of the Civil Code in relation to all matters, including family matters.
Therefore, what is regulated in the Family Code must be consistent with what is legislated in the Civil Code. In addition, it is important to emphasize that public order is not an institution of Civil Law, nor of Family Law, in any case it is an institution of the PIL; resulting necessary that there is a systemic coherence in the treatment of this legal institution in all the subjects of the Law that use it. Regardless of the fact that each specific law may use conflict rules and define in them which are the points of connection that determine the law applicable to the legal type that is regulated in each of them, something very different is that the conceptual definition and, thus, the content of a legal institution of the PIL, is different in different laws of the same legal system.
Having said this, the problem situation can then be defined as follows.
Problematic situation: On the one hand, public order is defined by the Civil Code as the set of «principles of the political, social and economic regime of the Republic of Cuba». On the other hand, the Family Code defines it as the «set of principles and norms that inspire and sustain the Cuban legal-social regime», to which it adds the «principles and norms that inspire and sustain the culture of society to preserve its goods, values and general interests». Consequently, being an institution proper to PIL, given the legislative dispersion of the legal norms of this branch of law, public order is defined with different contents in different laws, which generates the risk of arbitrary interpretations as to the determination of its meaning and scope to deny the application of certain rules of foreign law to specific cases in the legal practice in Cuba.
Therefore, the scientific research work is aimed at fulfilling the following general objective: «To define the legal theoretical elements necessary to regulate in a coherent manner in the Cuban legal system the institution of public order as a limitation to the application of foreign law. As theoretical methods of scientific research in general, the analysis-synthesis, abstraction-concretion and systemic methods were used in the research. As a specific method of legal research, the legal hermeneutic method was used in its grammatical variable.
Development concept of public order as a limitation to the application of foreign law.
There are many different conceptual definitions of the concept of public policy as a limitation to the application of foreign law, among which the following authors stand out: Wolf [1950, p. 71].
ublic policy can only be invoked in a hypothesis in which it would normally be applied, public policy can only be invoked when the application of the foreign rule results in a danger or harm to the community, a situation that must be avoided at all costs. Savigny [14, p. 55] argued that public policy was a remedy against the application of the foreign law that should normally be applied, it is an exception, which must be limited and argues that: «when the application of the foreign rule is directed to a state of affairs that the legislator considers as destructive of social order or morality cannot tolerate this application».
Miaja de la Muela [11, p. 103] states that the non-application of foreign law is an exception and accepts the inapplicability of laws inspired by moral conceptions in their broadest sense: moral, religious and economic, because they are considered contrary to the rules in force in the judge's country. According to Balestra [2, p. 62] «if the foreign law, exceptionally, violates rules of public order of the State where the assets are located (as if it were contrary to its morals and good customs, for example), it would logically not be applicable».
Taking into account the above criterion, the content of public order as a limitation to the application of foreign law could be identified with the set of rules of public order, understood as territorial rules. However, at least with the wording in which this idea is expressed, morality and good customs are elements that, in addition to the territorial legal rules, may be taken into account by a judge or court to decide not to apply foreign law in a specific case.
Authors such as Dávalos [4, p. 20], Echemendía [5, p. 98] and González and Rodríguez [7, p. 64] provide elements that make it possible to reduce the content of this limitation to the set of legal rules that can be classified as territorial, public order or police rules. Although, as will be argued below, in some cases this content is possibly too narrow.
Echemendía [5, p. 226] refers that public policy rules are based on the exercise of sovereignty of the State that dictates them and specifies that, in
certain circumstances, «the State's public policy rule prevents the application of foreign law».
For their part, González and Rodríguez [7, p. 51] agree that the institution of public policy is in any case contained in the legal system, without having to resort to any extra-legal element. That is to say, when speaking of public policy as a limiting factor, reference is made to the fact that foreign law brought to the forum by a conflict rule will not be applicable when the effects of its application are contrary to the provisions of certain public policy rules. In this sense, they agree that it is the legal system that sets limits to judicial discretion, regardless of the fact that, in each specific case, it is the judges who have to assess whether the application of a foreign rule could generate effects contrary to what is regulated in a public policy rule and that this assessment is made through a judicial interpretation of the latter rule.
Dávalos [4, p. 157] refers to public order as a limiting factor that: «each State protects its fundamental interests with mandatory rules that bind nationals and foreigners alike. The State, when dictating or making use of the rules of public order, is based on the exercise of its inherent sovereignty, and can establish through these rules certain limitations to the exercise of a right granted by foreign law or even the application of that foreign law».
However, there are two clarifications on this issue. The first is that, as can be seen above, both González and Rodríguez and Dávalos clarify that what must be assessed is not whether the foreign rule subject to assessment provides something different from what is provided by the public policy rule taken as a reference; rather, what must be assessed is whether the application of that foreign rule may generate effects contrary to what is provided by the public policy rule taken as a reference. In this sense, according to Dávalos «it is not necessary that the foreign law declared applicable violates a Cuban legal rule, but it is sufficient that its effects are contrary to the principles of the regime»; but, with this approach of Dávalos a second element that must be clarified is introduced and it is that this author refers, not to any rule of public order, but to those that constitute principles. In this aspect, Dávalos adds that:
... the principles of the political, social and economic regime are contained in the Constitution and in the laws, so that any violation of a provision
of a political, economic or social nature cannot be alleged as an exception, but it is necessary that the injured good constitutes «principles» of the regime... although these must be contained in rules.
In the first place, this reasoning then requires defining, within the territorial rules, which ones constitute «principles» for the purposes of the prohibition of the application of foreign law. In addition, it is necessary to define whether this condition of principle must be given in the law itself, or whether it is at the discretion of the judges according to each specific case, which would again extend judicial arbitrariness to questionable levels.
But the most important thing is that, if, as Davalos suggests, public order (as a limitation to the application of foreign law) is reduced to the rules that can be identified as principles, then many territorial rules, or public order rules, that do not admit this classification would not prevent the application of a rule of foreign law. The term principle, in the legal system, serves as a center or reference to the regulation of a part of the law or of a certain legal institution, participating, as a development of the general principles of law and with respect to the sector or institution in which they are framed, of a mediate foundational, orientative, informative and critical virtuality.
The problem then returns to the need for clarity as to which rules are really territorial or of public policy, which implies defining that, in a legal relationship with a foreign element, the territorial rules, as rules of public policy, will apply just as in legal relationships without that foreign element. This implies at the same time that not only the territorial rules containing principles, but all the territorial rules as a whole can be considered as forming the content of the institution of public policy as a limitation to the application of foreign law.
The institution of public order in the Cuban PIL system. In the assessment of public order as an institution in the Cuban PIL system, it is necessary to take into account as a starting point the Bustamante Code, which constitutes an International Treaty to which Cuba is a State Party and therefore is part of our domestic legal system. Subsequently, the Civil Code, specifically Article 21, as well as the Family Code in its Article 457 with all its sections, as part of the internal legal norms that regulate this institution.
Bustamante Code. For the Bustamante Code (CDIP, 1928) the definition of the rules of
international public policy, as well as the definition of the institution of public policy, understood as a limitation to the application of foreign law, are regulated in the Preliminary Title (General Rules), in Articles 3 to 5 and 8 of the Code.
In this sense, at first glance, Article 4 states something that is indisputable, namely that all constitutional precepts are of imperative application to all persons within the national territory. However, if by international public order should be understood, according to the aforementioned article 3, section II, all legal rules that are equally binding on all those residing in the territory, whether or not they are nationals, it is not possible to interpret, as stated in article 4, that the constitutional precepts (all) are of international public order, since not all of them are binding, nor do they grant rights to foreigners, even if they are residents in the national territory. In that order, the Constitutions establish rights and duties for all persons in the national territory; but, they also establish specific rights and duties only for citizens, which neither assist nor oblige all equally. Therefore, the attempt made by the Bustamante Code to exemplify the international public order (as imperative material norms) through the constitutional precepts does not provide sufficient clarity in the conceptual order, at least in the form in which it appears in this article.
Article 5, on the other hand, assumes a more flexible regulation, although it is questionable what type of legal norms this precept refers to when it alludes to Political Law and does so independently of the constitutional precepts.
Up to this point, the Bustamante Code refers to international public policy as a classification of PIL rules, as understood from the aforementioned Article 3. And up to this point it could be assumed that it is one thing to speak of international public policy rules, as a specific type of PILI rule, and another thing to speak of public policy as a PIL institution consisting of subjecting the foreign law indicated by a conflict rule to certain criteria of applicability in the national territory. However, in the text of the Bustamante Code both things are linked, or at least they are addressed with the same denomination by establishing the following in Article 8:
«The rights acquired under the rules of this Code have full extraterritorial effectiveness in the Contracting States, unless any of their effects or
consequences are opposed by a rule of international public policy».
This article 8 ultimately regulates the institution of public policy as a limitation to the application of foreign law and does so on the basis of two elements that are of interest for this research. Firstly, it regulates this limitation in the same title in which rules are established in relation to the rules of international public policy. Secondly, and more importantly, when it refers to the aforementioned limitation, it does not establish that foreign law shall not apply when its effects are contrary to an abstract concept of public policy. What it establishes is that the foreign law shall not apply when its effects or consequences are contrary to «a rule of international public policy». Thus, according to a literal interpretation of this article, the Bustamante Code here establishes that the content of public order as a limitation to the application of foreign law is made up of the rules or norms of international public order.
However, in the rest of the text of this Code itself there are articles that contradict this interpretation of article 8, so that by way of summary the Bustamante Code does not give a definition of the concept of public order and, therefore, its text does not allow defining what public order is, however, it does allow defining what public order is not and, in this sense, public order, as a limitation or impediment for the application of foreign law, is treated as something different from: morals, good customs, public law and laws in general.
Law No 59 of 1987 (Civil Code of Cuba). The Civil Code only makes reference to the subject under investigation in Article 21, as mentioned above, so it is necessary to make an assessment of this for a better understanding.
The legislator establishes conditions that prevent the application of Foreign Law and those conditions are summarized in the principles referred to in the article, which in order to define those principles it is necessary to refer to the Constitution of the Republic of Cuba. This leads unfailingly to the political foundations (Title I), the economic foundations (Title II) and the foundations of the educational, scientific and cultural policy (Title III) and, in relation to the foundations of the Cuban State, to the duties and fundamental rights endorsed in the constitutional text; however, these principles limit the assessment in the whole range of possible assumptions that could arise and in
which it could be questionable to apply foreign law, since the principles are selectively found within the constitutional text.
Moreover, on the basis of what has already been specified above from the theoretical point of view, to reduce the institution of public order as a limitation to the application of foreign law to those norms that can be considered as principles of the political, social and economic regime of the Republic of Cuba and, at the same time, to consider that such principles must be identified in the constitutional text, equates the assessment of public order to an assessment of constitutionality. As already stated, such an interpretation of Article 21 of the Civil Code would mean that legal rules not contained in the Constitution, but in other laws of lower hierarchy, such as, among other possible laws, the Penal Code, could not be taken as a reference and, therefore, foreign rules could be applied whose possible effects could constitute a crime, something that would obviously not be admissible.
Another interpretation of Article 21 may be that contained in Article 40 of the Constitution of the Republic (ANPP, 2019): «Human dignity is the supreme value that underpins the recognition and exercise of the rights and duties enshrined in the Constitution, treaties and laws». In this case the effect would be the inverse, since, from an extreme limitation of criteria collected in the aforementioned grounds, it would go to an extremely imprecise and very subjective criterion in some cases, to determine, according to the person called to apply or a rule of foreign law to a specific case, what may infringe human dignity. Assessment that, except in cases where this effect is very evident, would depend on the subjectivity of each person.
Law No. 156 of 2022 (Code of Families). The Family Code in force regulates public order as a limitation to the application of foreign law in Article 457 in all its paragraphs and does so in the following terms:
In Article 457.3 of the Family Code there are several questionable aspects. First, the phrase «set of principles and norms that inspire and sustain the Cuban legal-social regime» is extremely vague or imprecise. In this sense, unlike the Civil Code, this article does not limit the possible evaluations to the legal norms that could be considered as «principles» and which, as already stated, would be those that, as
such, could be considered to be those that «inspire and sustain the Cuban legal-social regime». To this it adds the idea of norms to which, without being considered as principles, could be attributed such effect. With this, the aforementioned article leaves uncertainty as to what those other norms would be.
Secondly, when referring to those principles and those norms that are not principles, it does so by stating that both inspire and sustain, not the Cuban legal system, but the Cuban legal-social regime. In this sense, the use of the latter term, particularly when the idea of «social» is added, allows interpreting that an assessment of the applicability of foreign law can go beyond the strictly legal and make assessments of social order that, although possibly related to the legal system, do not have a clear protection in the positive law in force. This contradicts what most of the authors consulted state from a theoretical point of view, in the sense that, whether considered as principles or not, the foundations of public order must be contained in legal norms, or interpreted on the basis of legal norms.
Thirdly, the linking of the concept of public order with extralegal elements becomes more evident in the second part of the definition of this institution in the PIL, when with a somewhat ambiguous wording, reference is made to what could be interpreted as «the set of principles and norms that inspire and sustain... the culture of society to preserve its goods, values and general interests... »
In a general sense, this article of the Family Code allows a judicial arbitration that, in the knowledge of a concrete case, could go far beyond the linking of judicial decisions to the norms that make up the Cuban legal system. This, precisely from a systemic perspective of the Cuban legal system, makes it necessary to take into account what is regulated by the Law of the Courts of Justice and the Procedural Code.
Law No. 140 of 2021 (Law of the Courts of Justice). The Law of the Courts (ANPP, 2021a) establishes in Article 3 important issues to take into account regarding the analysis of this institution, since it regulates that judges must adjust and base their decisions on legal norms expressly specified in the Cuban legal system, composed of the Constitution, the international treaties in force for Cuba and the legal norms promulgated by the Cuban State itself. Moreover, when interpreting
and/or integrating these norms to apply them to a specific case in judicial practice, judges may resort to or rely on principles, values and formal sources, but always formal sources of law and, therefore, of the Cuban legal system. In such a way that, in a general sense, all judicial actions must be in accordance with the Law, more specifically, in accordance with the legal system, which is nothing other than the positivized Law, the written Law in force. There is nothing in the Law of the Courts that allows a judge to base his decisions on matters outside the legal system.
Law 141 of2021 (Procedural Code). For its part of the Procedural Code (ANPP,2021b) in Article 3 and 4.1, it can be concluded that judges and magistrates «owe obedience only to the law» and this implies, conversely, that judges and magistrates «owe obedience to the law». Therefore, they must base their decisions solely and exclusively on the law and, of course, on their relevant interpretations of that law.
Thus, there is nothing, neither in the Law of the Courts, nor in the Procedural Code, that allows a judge to base any decision on something that is alien to the interpretation and integration of the legal norms that make up the legal system.
Conclusions. Taking into account the assessments made in relation to the institution of public order as a limitation to the application of foreign law, the scientific research work, based on the objective pursued, leads to the following conclusions:
As a result of a systematization of the theoretical framework of this research, it can be affirmed that, according to the majority and best founded criterion in relation to the object of study addressed, the content of public order as an institution limiting the application of foreign law is made up of the set of territorial rules, these being those that are equally applicable to all persons, things and legal facts in the national territory. This justifies the use of the term «public order» to refer both to the aforementioned institution limiting the application of foreign law and to adjectivize such territorial rules.
In spite of this clarity that can be reached from the theoretical point of view, Cuban positive law shows deficiencies that must be remedied. Public order, as an institution proper to PIL, must be treated with systemic coherence in all areas of law, so it is not appropriate for it to be defined in different
ways in the Civil Code and in the Family Code, much less when the former has a supplementary character in relation to the latter. The Bustamante Code, although in its Article 8 it is coherent with the majority theoretical evaluations, in the rest of its articles in which it deals with the institution of public order, it enters into an internal contradiction with the mentioned Article 8 of this Code.
In general, in the Cuban legal system there is no clarity regarding the definition of the content and scope of public order as a limitation to the application of foreign law. Judges may base their decisions on extra-legal assessments, such as culture, morals, or good customs, among others. This, in turn, is prohibited by the provisions of the Law of the Courts and the Procedural Code, both laws that impose on judges the obligation to adjust their decisions, through the relevant judicial interpretations and integrations, to the provisions of the legal system, regardless of whether the rules that integrate it in its axiological dimension are bearers of cultural and ethical elements.
Consequently, in order to guarantee a coherent regulation in the Cuban legal system of the institution under study, the following legal theoretical elements are defined below:
a) Regardless of the matter in which it is used, the content of public order, as an institution limiting the application of foreign law previously indicated by a conflict rule, must be made up of the set of legal rules that the Cuban legislator dictates as valid for everything and everyone in the national territory. So that there is sufficient legal certainty that the foreign law will not be applicable to the extent that its effects are contrary to the provisions of any rule of public order. The regulation of this institution of PIL must be drafted in the Law without the use of ambiguous or imprecise terms, which generate the risk of extra-legal valuations, such as moral, or good customs, which may lead to arbitrary decisions, or in any case, loaded with an extreme subjectivity of the judges.
b) The manner in which public policy is formulated in Cuban law must ensure that judicial discretion is limited, on the one hand, to determining which public policy rules should be taken as a reference in a specific case to assess the applicability of a foreign rule, as well as to the interpretation of such Cuban public policy rule and, on the other hand, to assessing the possible effects of the foreign rule subject to its applicability
judgment and its possible contradiction with the aforementioned public policy rule.
c) In any case, it should not be up to the judges to define the content of public order. It is up to the legislator to define in law, with sufficient clarity, which legal rules have the status of public order.
d) The concept of rules of public order must include, as a minimum, constitutional rules (excluding those that are valid only for Cuban citizens); criminal rules that typify and punish crimes; rules of Administrative Law, particularly those that typify and punish contraventions (except those from whose compliance the legislator expressly exempts foreigners). Beyond the minimum of matters determined here, the law must define with sufficient clarity, either by matters in general, or at the level of specific legal rules, which rules the legislator provides that operate with the status of rules of public order, against which the application of any foreign legal rule cannot have contrary effects.
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LEGISLATION
National Assembly of People's Power (ANPP, 1987). Law No. 59 «Civil Code». Extraordinary Official Gazette No. 9 of October 15, 1987.
Constitution of the Republic of Cuba. Extraordinary Official Gazette No. 5 of April 10, 2019.
Law No. 156 «Family Code». Official Gazette No. 99 of September 27, 2022.
Convention on Private International Law (CDIP, 1928). Code of Private International Law (Bustamante Code), Havana, February 20, 1928: http://www.oas.org/juridico/ mla/sp/gtm/sp_gtm-mla-leg-cdip.pdf.
Поступила в редакцию 03.05.2024 Received May 03, 2024
