The current Cuban Constitution, in its article 52, establishes that “people have the freedom to enter, remain, transit and leave the national territory, change their domicile or residence, with no other limitations than those established by law.”
This article constitutionalizes the well-known “right of free movement and residence,” as set out in several international instruments, and the possibility of limiting them by law.
This last aspect has become extremely controversial in Cuba, as can be seen in the provisions of Decree-Law No. 302 of 2013, Amending Law No. 1312, Migration Law of September 20, 1976 [1 ] and Decree No. 306, On the treatment of cadres, professionals and athletes who require authorization to travel abroad of October 11, 2012. [2]
Like any limitation of rights, it is necessary to meet certain requirements and guarantees so that the limitation does not become arbitrary. The analysis of Cuban immigration legislation must take into account the level of the issue in international human rights law, to strengthen the mechanisms for the protection of human rights.
The scope and meaning of human rights norms―defined by methods of interpretation always in favor of the human being―must be specified so that the legislation conforms to this reality, and, consequently, has to cause the changes required to be consistent with the level of international protection of human rights.
The international legal instruments
There are many international legal instruments that recognize the right of free movement, of which it is worth just mentioning the Universal Declaration of Human Rights of December 10, 1948, the International Covenant on Civil and Political Rights of December 16, 1966, the American Convention on Human Rights (or Pact of San José, Costa Rica) of November 22, 1969, the African Charter on Human and Peoples’ Rights of June 27, 1981, among others.
Today, that sector of International Law, which is defined as “International Human Rights Law,” has managed to build a vast institutional and regulatory framework, of enormous proportions, both at regional and universal levels.
This has resulted in at least two characteristics of extreme importance: States are not only bound by treaties or conventions to which they are parties in the field of human rights, but many human rights protection standards in International Law result mandatory for States via customary law; that is to say, all those norms that protect human rights that have received a universal acceptance (doesn’t mean unanimity) for their conformation, are mandatory for those States that did not oppose their birth, even if they had not actively participated in its conformation.
It is necessary to take this into account because although Cuba is part of a significant number of human rights treaties, some norms in this matter contained in important treaties in which Cuba is not a party, such as the International Covenant on Civil and Political Law of 1966 (it signed it on February 28, 2008, but has not ratified it), become mandatory by customary means.
Consequently, in the application of Law in Cuba, the jurisprudence or opinions of international bodies that give meaning and scope to these norms must be addressed, as is the case of the International Covenant on Civil and Political Rights of 1966. The Cuban government has been aware of this fact, when “it reaffirms its commitment to its postulates, which was assumed at the time of adoption of their respective texts by the General Assembly of the United Nations.” [3]
A laudable attempt to bring international human rights law closer to the domestic legal system was the second paragraph of the then article 39 of the draft Constitution of 2019, which envisaged that rights and duties would be interpreted in accordance with international human rights treaties ratified by Cuba.
Unfortunately, this paragraph did not survive the suspicions and misgivings that have fueled the thorny issue of human rights, which imagine its existence only in relation to a use politically marked by contrary agendas. However, the politicization of the subject exists, and is verifiable, in any scenario.
The result is a Constitution in which no specific precept can be found on the application of international human rights treaties in the domestic order. In contrast, for several years the subject has been using various techniques for its incorporation into the domestic order in the constitutionalism of Latin America. [4]
Therefore, it is always necessary to keep in mind the interpretative criteria and standards set by some international bodies, such as the Human Rights Committee, the body responsible for ensuring the application of the International Covenant on Civil and Political Rights. In this sense, we will seek help through its General Comment No. 27 on the “right of free movement and residence” contained in article 12 of the aforementioned Covenant.
The Committee has recognized that “freedom of movement is an indispensable condition for the free development of persons.” Consequently, and as exceptional circumstances, the “permissible limitations that may be imposed on the rights protected under article 12 must not annul the principle of freedom of movement” and must meet several requirements such as necessity and its compatibility with other human rights collected in the pact.
In this case, it is always necessary to note those limitations that could be imposed on the “freedom to leave any country, including your own,” and the “right to enter the country itself.” In the same way, we would have to keep in mind what the “limits to the limits” of both moments would have to be for the legislator in the future.
The second paragraph of article 12 of the International Covenant sets, in addition to the provision in law of the limitation, the criterion of necessity that it places in the scope of “national security,” “public order,” “public health or morals” or “the rights and freedoms of third parties.” In the inter-American order, and specifically the American Convention on Human Rights in its article 22, it incorporates another criterion as the basis of the limitation, in this case when it comes to “preventing criminal offenses.”
Legality, necessity and proportionality make up a package for the application of restrictions, in which the Human Rights Committee and other important international bodies such as the Inter-American Court of Human Rights also coincide.
The freedom to leave any country, including your own
In the Cuban immigration regulation, we find a wide catalog of prohibitions or limitations to the right of free movement in article 25 of Decree-Law No. 302 of 2013:
- being subject to criminal proceedings, provided it has been provided by the appropriate authorities;
- pending compliance with a criminal sanction or security measure, except in cases expressly authorized by the court;
- being subject to compliance with the provisions on Military Service; when reasons of Defense and National Security so advise; having obligations with the Cuban State or civil liability, provided they have been expressly provided by the corresponding authorities;
- not having the established authorization, by virtue of the norms aimed at preserving the qualified labor force for the economic, social and technical scientific development of the country, as well as for the security and protection of official information;
- minors or incapacitated persons, to whom the authorization of the parents or legal representatives is revoked, formalized before a Notary Public;
- when for other reasons of public interest, determined by the approved authorities; and,
- when the requirements of the Migration Law, its Regulations and the complementary dispositions to leave the country are breached.
These same assumptions are contemplated in article 23 of Decree-Law No. 302 for Cuban citizens residing in the national territory who intend to obtain a regular passport. In this sense, as “for international travel it is usually necessary to have adequate documents, in particular a passport,” according to the Human Rights Committee, “the right to leave the State must include the right to obtain the necessary travel documents.”
If we make a simple comparison of these reasons with those established by the International Human Rights Law, and with the criteria that have been established, we find several problems.
In the first place, in the opinion of the Committee and other international bodies, the restrictive provisions in this area must use “precise criteria,” in which “unhindered discretion is not conferred on those responsible for their application.” These must lack ambiguous criteria that allow arbitrary doubts and applications. The restrictions should not compromise the “essence of the law,” “the relationship between law and restriction, between norm and exception should not be reversed,” as the Committee has stated.
In Cuban legislation, the purpose of the restriction is appealed as a factual event (such as “when reasons of Defense and National Security so advise” or “reasons of public interest” that can be determined by the authorities). Such content opens a framework of discretion of enormous proportions for the authority in charge of its application. The question is obvious: When is national defense and security reasons advised? What is the criterion for the assessment and application of the restriction?
In the same way, there are limitations when it comes to people who have “obligations with the Cuban State or civil liability.” In addition to a poor legal technique, which opens a scenario of conceptual ambiguity, it would also be important to ask here about necessity and proportionality of this cause to limit such a fundamental right related to the freedom of persons. Could a necessary measure for “public order” be understood, taking into account that it would hardly fit the need for “national security,” “public health or morals” or “the rights and freedoms of third parties”? I would have my doubts.
As established by the Human Rights Committee to comply with the principle of proportionality, we may ask ourselves in relation to the foregoing: Is it an appropriate measure to limit the exit from the national territory to people who have “obligations with the Cuban State or civil liability” to perform its protective function, which in this case, I understand, would be the protection of the public heritage of the State? Is the instrument less disturbing to achieve the desired result? Is it proportionate to the interest it must protect?
Actually, it doesn’t seem so, as there are many other ways in the legal system that can be activated to enforce the obligations of people with the State and thereby opt for a minimal intervention in the limitation of rights.
Could it be understood, in this order as well, that the latter is proportional in response to its inclusion in the legal text and the sense in which it could be applied? In accordance with the provisions, it would be possible to prevent from leaving the country a Cuban citizen who could file debts with the State for a negligible value by virtue of the sale of household objects in the framework of the Battle of Ideas. And in this sense I judge the proportionality of the cause because it is also the opinion of the Human Rights Committee that this principle operates not only for the law that defines the restrictions but also for the administrative and judicial authorities that apply it.
In relation to the criteria of necessity to be taken into account in the reason that is designed at “preserving the qualified workforce for the economic, social and technical scientific development of the country,” who are subject to a specific authorization, and which is regulated more broadly in Decree No. 306, On the treatment of cadres, professionals and athletes who require authorization to travel abroad, it is a criterion of necessity that gains a different configuration compared to those already stated.
One could argue, with total legitimacy, the necessity for its existence in Cuba’s conditions of development. However, this cannot be analyzed as a limiting criterion that escapes the framework established in the domain of human rights, as I have already stated. Therefore, it should be framed within a policy of greater scope, with strategic sense, of rights, duties and incentives for the preservation in the national territory of the skilled labor force and the use of the emigrated qualified labor force, from a holistic vision about national development.
Regarding the compatibility in the application of the limitations of these rights with other rights enshrined in the Covenant, the Committee also adds that this is extended to other fundamental principles such as equality and non-discrimination. In this way, these rights could not be restricted based on distinctions of race, color, sex, language, religion, political or other opinion, national or social origin, economic position, birth or any other social condition.
In relation to this point, I understand as an important moment its compatibility with a universally recognized right as the “right to be heard publicly and with due guarantees by a competent, independent and impartial court,” for which this can be endorsed by article 92 of the current Cuban Constitution. Any limitation of rights provided by law must include judicial control mechanisms in their application by the competent authorities. This is one of the main ways to correct the excesses or arbitrary behaviors in the application of restrictions.
In Cuba, progress is being made in the implementation of a Law that complements Article 99 of the Constitution, in relation to an expedited preferential procedure focused on the guarantees of constitutional rights.
This should become a propitious space for the defense of this right when its application becomes arbitrary and disproportionate. However, nothing excludes that, according to the current legal system, these limiting and presumably arbitrary measures can be combated in court. Or that even the migration legislation itself may be questioned in its constitutionality, in response to the new constitutional control procedures established in the current Law on Organization and Functioning of the National Assembly of People’s Power and the Council of State of January 16, 2020. At least, in the letter, it is possible.
* My thanks to academician Julio César Guanche for the review and suggestion of ideas for the content of this work.
Notes:
[1] Decree-Law No. 302, Modifying Law No. 1312, Migration Law of September 20, 1976. Official Gazette of the Republic of Cuba, Ordinary Edition, Havana, Tuesday, October 16, 2012, Year CX.
[2] Decree No. 306, On the treatment of cadres, professionals and athletes who require authorization to travel abroad, Official Gazette of the Republic of Cuba, Ordinary Edition, Havana, Tuesday, October 16, 2012, Year CX.
[3] See official website of the Ministry of Foreign Affairs.
[4] See: Brewer-Carías, Allan R., “La aplicación de los tratados internacionales sobre derechos humanos en el orden interno de los países de América Latina,” Revista IIDH, Vol. 46, pp. 215-267.
Authors
Harold Bertot Triana,
haroldbertot
