The current Cuban Constitution, in its article 52, establishes that \u201cpeople 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.\u201d<\/p>\n
This article constitutionalizes the well-known \u201cright of free movement and residence,\u201d as set out in several international instruments, and the possibility of limiting them by law.<\/p>\n
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]<\/p>\n
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.<\/p>\n
The scope and meaning of human rights norms\u2015defined by methods of interpretation always in favor of the human being\u2015must 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.<\/p>\n
The international legal instruments<\/strong><\/p>\n 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<\/em> 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 Jos\u00e9, Costa Rica) of November 22, 1969, the African Charter on Human and Peoples’ Rights of June 27, 1981, among others.<\/p>\n Today, that sector of International Law, which is defined as \u201cInternational Human Rights Law,\u201d has managed to build a vast institutional and regulatory framework, of enormous proportions, both at regional and universal levels.<\/p>\n 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\u2019t 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.<\/p>\n 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.<\/p>\n 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 \u201cit 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.\u201d [3]<\/p>\n 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.<\/p>\n 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.<\/p>\n 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]<\/p>\n 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 \u201cright of free movement and residence\u201d contained in article 12 of the aforementioned Covenant.<\/p>\n The Committee has recognized that \u201cfreedom of movement is an indispensable condition for the free development of persons.\u201d Consequently, and as exceptional circumstances, the \u201cpermissible limitations that may be imposed on the rights protected under article 12 must not annul the principle of freedom of movement\u201d and must meet several requirements such as necessity<\/em> and its compatibility<\/em> with other human rights collected in the pact.<\/p>\n In this case, it is always necessary to note those limitations that could be imposed on the \u201cfreedom to leave any country, including your own,\u201d and the \u201cright to enter the country itself.\u201d In the same way, we would have to keep in mind what the \u201climits to the limits\u201d of both moments would have to be for the legislator in the future.<\/p>\n 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<\/em> that it places in the scope of \u201cnational security,\u201d \u201cpublic order,\u201d \u201cpublic health or morals\u201d or \u201cthe rights and freedoms of third parties.\u201d 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 \u201cpreventing criminal offenses.\u201d<\/p>\n Legality<\/em>, necessity<\/em> and proportionality<\/em> 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.<\/p>\n The freedom to leave any country, including your own<\/strong><\/p>\n 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:<\/p>\n 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 \u201cfor international travel it is usually necessary to have adequate documents, in particular a passport,\u201d according to the Human Rights Committee, \u201cthe right to leave the State must include the right to obtain the necessary travel documents.\u201d<\/p>\n 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.<\/p>\n In the first place, in the opinion of the Committee and other international bodies, the restrictive provisions in this area must use \u201cprecise criteria,\u201d in which \u201cunhindered discretion is not conferred on those responsible for their application.\u201d These must lack ambiguous criteria that allow arbitrary doubts and applications. The restrictions should not compromise the \u201cessence of the law,\u201d \u201cthe relationship between law and restriction, between norm and exception should not be reversed,\u201d as the Committee has stated.<\/p>\n In Cuban legislation, the purpose of the restriction is appealed as a factual event (such as \u201cwhen reasons of Defense and National Security so advise\u201d or \u201creasons of public interest\u201d 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?<\/p>\n In the same way, there are limitations when it comes to people who have \u201cobligations with the Cuban State or civil liability.\u201d In addition to a poor legal technique, which opens a scenario of conceptual ambiguity, it would also be important to ask here about necessity<\/em> and proportionality<\/em> of this cause to limit such a fundamental right related to the freedom of persons. Could a necessary measure for \u201cpublic order\u201d be understood, taking into account that it would hardly fit the need for \u201cnational security,\u201d \u201cpublic health or morals\u201d or \u201cthe rights and freedoms of third parties\u201d? I would have my doubts.<\/p>\n 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 \u201cobligations with the Cuban State or civil liability\u201d 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?<\/p>\n Actually, it doesn\u2019t 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.<\/p>\n 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.<\/p>\n In relation to the criteria of necessity<\/em> to be taken into account in the reason that is designed at \u201cpreserving the qualified workforce for the economic, social and technical scientific development of the country,\u201d 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.<\/p>\n One could argue, with total legitimacy, the necessity for its existence in Cuba\u2019s 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.<\/p>\n 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.<\/p>\n In relation to this point, I understand as an important moment its compatibility with a universally recognized right as the \u201cright to be heard publicly and with due guarantees by a competent, independent and impartial court,\u201d 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.<\/p>\n 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.<\/p>\n\n