OF HUMAN RIGHTS IN CUBA
TO RESIDENCE AND MOVEMENT
On the right to residence and movement, the American Declaration of the
Rights and Duties of man establishes:
It will be noted that the American Declaration does not explicitly
establish the right of every person to return to his country; nevertheless, the
Commission considers that that right is implicitly recognized in that
instrument. Thus, the IACHR has
upheld that “The right of every person to live in his own country, to leave
and return when he deems fit¼”
is a basic right that “is recognized in every international instrument that
protects human rights”.
Indeed, the Universal Declaration of Human Rights, in Article 13 (2)
provides that “every person has the right to leave any country, including his
own, and to return to his country”.
It should be borne in mind that, in accordance with the above-cited text,
the right to residence and movement is clearly related to the right to
nationality. The latter is
established by the American Declaration in Article XIX, and the Commission has
referred to the essential importance of the observance thereof, and has
condemned those situations in which the right to nationality is impaired as a
consequence of government actions against political adversaries.
The Commission considers that the exercise of the right to residence and
movement can under no circumstances be ground for the deprivation of
nationality, and that such a punishment, if imposed for that reason, would be
illegitimate; in this case, then, loss of nationality could not be relied upon
by any government to prevent a person from returning, in any capacity, to his
country of origin.
Given the importance of US/Cuban relations on the right to movement
between the two countries, considerable space has been allowed to present the
experience of Cubans who have emigrated or traveled to the United States.
Cubans travel around the world and Cuba receives official visitors,
technicians and tourists from dozens of countries. Nevertheless, the greatest exchange of people has always
taken place between Cuba and the United States.
For the current Cuban Government, this flow has been the source of very
serious problems. Several laws and
rules that govern immigration, migration and travel between Cuba and the United
States have been subjected to special regulation and their enforcement has been
impeded by obstacles not encountered with respect to travel between Cuba and
other countries. Both in practice,
and to a certain degree in legislation also, Cuban immigration, emigration and
travel policies respond to the specific problems of movement between the United
States and Cuba.
The laws that control immigration, emigration and travel are contained
for the most part in the law on migration and its regulation, and in the law on
aliens and its regulations. It
should be pointed out that the right to residence and movement is not enshrined
in the Constitution of Cuba, an omission that the Commission regrets.
Law on Immigration and Law on Aliens
Travel outside of Cuba
The Cuban Immigration Law covers citizens, foreign residents, temporary
residents, visitors, guests and tourists. These
provisions regulate travel of Cubans for diplomatic or official reasons, for
personal business or family visits, and the entry into national territory for
the same purposes of anyone not of Cuban origin. The law on aliens defines aliens and their rights and
obligations while in Cuba.
Cubans who leave the country temporarily or permanently must have a
passport. Passports are issued by
request to any person over eighteen years of age.
Passport requests, notarized by a notary public, are submitted to the
office of the Director of Immigration and Aliens and should be accompanied by
due proof of identity and the receipt demonstrating the appropriate payment.
Cuban citizens residing outside of Cuba may request passports at certain
Cuban diplomatic and consular offices. The
passports are valid for two years and may be renewed for two more years on two
successive occasions. Cubans with
current passports as well as foreigners and persons without citizenship who
reside in Cuba for more than ninety days and do not hold an official position,
may obtain an exit visa in addition to their passports (Regulation of the Law on
Migration, Chapters 1 and 2).
Persons who request permission to leave the country should accompany that
request with a communication from their place of employment or study in which
are listed their characteristics as workers or students, a certificate of
criminal record and, if the purpose of travel is to visit family or friends, the
invitation extended by them and information on them.
In the case of visits or travel for personal reasons, it is also
necessary for those of military age to present documents that certify compliance
with the provisions of the law on military service; persons who wish to travel
to non-socialist countries must deposit the funds or prove that the travel
expenses will be covered. Temporary
exit visas are valid for specific time periods, although they may be extended.
(Regulation of the Law on Migration, Chapter 3).
When a permanent exit is issued, the persons who are going to emigrate
must submit an inventory of their possessions.
Travel abroad of Cubans and foreign residents is regulated by government
agencies, through the issue of exit permits.
The procedures involve the Ministry of Foreign Affairs, the Ministry of
the Interior, and a ministry who jurisdiction covers whatever activities are to
be carried out abroad. If there are
objections of any kind, issue of the exit permit may be delayed or denied.
The Comités de Defensa de la Revolución (Committees for the
Defense of the Revolution CDRs) may be consulted to verify addresses or other
information submitted for the purpose of travel or family visits.
Citizens who are not well regarded by the CDRs may on some occasions have
difficulty in obtaining exit permits.
Exit permits to visit relatives abroad are issued almost automatically
for Cubans over 60 years of age. Younger
Cubans may visit their relatives abroad only in emergency situations such as
illness or death. Although most
professionals eventually obtain temporary exit permits allowing them to travel
abroad when they are invited by organizations located abroad, young men
generally have to complete their obligatory military service before they can
obtain an exit permit.
Through the years, the procedure to obtain exit permits has become
standardized and less punitive. It
is still the case that Cubans who wish to permanently leave the country must
give up their property, except for their personal belongings. Once the exit visa permit is issued, the authorities take an
inventory of all family belongings, and they must be accounted for at the time
the person leaves the country. However,
if only one member of a family leaves permanently, their property is left
Several years ago, when a Cuban declared his intention to leave, he
generally lost his employment, if he held a good position, and was forced to
perform manual labor or remain unemployed until he left the country. This situation has changed, and it has rarely occurred in
recent years. However, once the
person declares his intention to permanently leave the country by requesting an
exit permit for that purpose, it is quite unlikely that that person will be
selected to receive special privileges, such as scholarships, official travel,
material incentives, or that he will be considered for promotion in his place of
It is difficult at this time to evaluate current Cuban policies and
practices with respect to those who wish to emigrate, since few Cubans obtain
exit permits for the countries to which they wish to emigrate.
A few are still allowed to go to Venezuela; Costa Rica and Spain still,
accept Cubans in order to unite them with their families.
With respect to the United States, a country that has accepted over
800,000 Cubans since the Revolution, the government now only accepts members of
the immediate families of US citizens, by special permit, and a limited number
of Cuban requests from third countries. Current
US policy resulted from the boat exodus of 1980, in which approximately 125,000
Cubans left through the Port of Mariel.
Travel within Cuban territory
Travel within Cuban territory is free of restrictions. People who stay for long periods with relatives and friends
may be required to make arrangements with respect to their ration cards.
Also, Cubans may make reservations at hotels and other establishments
through the National Institute of Tourism.
Cubans are not legally prohibited from changing their residence.
In fact, however, the real possibility of changing one’s place of
residence is limited by government control of housing and employment. Cubans who change their place of residence must register with
the CDRs in their new location.
16. It is very
difficult for Cubans who have opted for permanent exile to change their minds
and return to life in Cuba as resident citizens.
A person who states his intention to permanently leave the country
generally renounces his home and employment.
Government permission to return entails official responsibility to
provide housing and assist in obtaining employment.
If a Cuban residing abroad as an exile requests permission to return, the
decision is transmitted from the Cuban diplomatic or consular office where the
request is made to the Ministry of Foreign Relations and the Ministry of the
The outcome of this process depends to a large extent on the
circumstances under which the person left the country.
For example, a person who leaves in order to marry a citizen of an East
European country and to live in that country with his or her spouse usually is
not hindered from returning if he wishes to do so. Cubans who emigrated to the United States in the sixties and
request permission to return can expect a considerable delay at least in
obtaining such permission. The
authorities express their fear that Cubans residing in the United States may be
used for espionage, and as a result they thorough investigate such requests.
However, persons in this last category, particularly if they left the
country while still very young or if they are now of an advanced age and have
family in Cuba, have been able to recover their Cuban citizenship.
The group that has had the most difficulty in returning to Cuba is the
most recent group to leave, i.e., those who left in the boat exodus of 1980.
Cuban exiles with Cuban citizenship who wish to return to or visit Cuba
must request a passport at a consulate or other office designated by the Cuban
Government. These requests are
considered by the Ministry of Foreign Relations and the Ministry of the Interior
on the basis of information on the petitioner and his reasons for wishing to
travel to or reside in Cuba. If the
stated reason is to visit family members, the pertinent office of immigration
and aliens will verify the visit with the indicated family member who is over 18
years of age. If the family does
not confirm the visit, the entry permit will probably be denied.
If the family in question wishes to invite the visitor to stay in its
home, if may do so by formally undertaking to assume responsibility for the food
and housing of the visitor during his stay.
Cubans residing abroad who request a temporary visa must show their
roundtrip tickets or a return ticket to a country outside of Cuba.
Temporary permits are generally issued for a period of three months, but
they may be extended.
Persons who travel to Cuba for reasons other than family visits are
generally the guests of an official Cuban agency, or travel with an authorized
tourist group. In the latter case,
the International Travel Agency that organizes the visit works through the
National Institute of Tourism to establish a program for the visit.
Tourists must follow this program with respect to travel itinerary and
lodging, but they may substitute programmed events by other activities, such as
visits to friends. As in the case
of tourists, official guests of the government or official agencies make
specific travel arrangements with those agencies, but they may use their free
time as they wish, to the extent allowed by these arrangements and in observance
of Cuban law.
Foreigners who may visit Cuba include guests and tourists, as well as
students, members of the clergy, artists, actors, journalists and businessmen,
who have generally been classified as temporary residents.
In all cases, they must obtain visas (unless they embark from countries
with which Cuba has established a visa exemption agreement) and they must show
roundtrip tickets or tickets to other countries (or, as an alternative, the
import deposit for the ticket). Cuban
authorities retain passports or other documents of these visitors during their
stay in Cuba. Only those persons
invited by the Cuban Communist Party are exempted from this requirement.
(Regulation of the Law on Aliens, chapter 1).
Persons who travel to Cuba and request political asylum or who are given
the status of refugee by Cuba are also considered temporary residents under the
law. The status of refugee and
asylee are granted in accordance with the stipulation set forth in Article 13 of
the Constitution. The granting of
political asylum or the status of refugee in accordance with the regulation, is
temporary and those granted such status remain in Cuba after stating their
formal intention to return to their country as soon as conditions allow. (Regulation of the Law of migration, Chapter 2).
While in Cuba, they are provided housing and they are allowed to work.
Refugees and political asylees receive a special document from the
ministry of Foreign Relations that certifies their status. (Regulation of the
Law on Aliens, Chapter 1).
The United States and Cuba and
Right to Travel
Historically, movement of people between the United States and Cuba has
been considerable, and even before the Cuban Revolution, it was a controversial
political issue. Prior to 1959 many
Americans visited the island as tourists and to do business of various kinds.
Many Americans also resided in Cuba as owners of large and small urban
and rural businesses. A large number of Cubans of upper class or middle-class
families were educated fully or to a large extent in the United States, and they
frequently established business ties with the United States or with US-owned
businesses. Both the owners of
property in Cuba and Cubans who had been educated in the United States and
established ties of economic dependence regarded the Revolution with some
hostility, and in some cases opposed it actively.
The Cubans of the latter group constituted the majority of the first wave
of exiles from Cuba to the United States.
Since the fall of the Batista Government, approximately 10% of the Cuban
population has left the country, above all for the purpose of settling in the
United States. Although the first
to leave were mostly of middle or upper class origin, later emigration came to
include groups from all levels of society.
Between January 1959 and October 1980, over 800,000 Cubans entered the
United States. The years of
greatest Cuban migration to the United States were from 1959 up to the latter
part of 1962, from 1965 to 1973, and in 1980.
The first wave came in regularly scheduled commercial flights, until the
missile crisis of October 1962, at which time they were suspended.
In this first wave, Cuba lost a substantial part of its best educated and
trained professionals. By march 1961, approximately 125,000 Cubans were already in
the United States. The second major
wave of emigration took place with the massive exodus of Cubans from Camarioca
in 1965, an event which in many respects parallels the “boat exodus” from
Mariel in 1980. Through the
so-called “freedom flights”, US airplanes brought Cubans directly to the
United States between 1965 and 1973, with the permission of the Cuban
government. Again, a large number
of the better educated and trained members of Cuban society took advantage of
this opportunity to leave the country.
In the period following termination of the “freedom flights” up until
1980, relatively few Cubans emigrated to the United States.
A number of Cubans who were immediate family members of US citizens who
had not been able to obtain visas previously were allowed to leave.
In addition some 4,000 political prisoners were released and allowed to
go into exile. This was a period
during which relations between Cuba and the United States had improved somewhat
and during which the two governments signed an agreement on aviation hijacking
(1973), established limited diplomatic relations through interest sections
established in the capitals of the two countries (1977), and for the first time
undertook a process to establish orderly immigration procedures in order to
facilitate reunification of families.
During this seven-year period, a group of Cuban residents in the United
States also initiated a direct dialogue with the Cuban Government.
The most significant outcome of this dialogue was an agreement by the
Cuban Government to allow entry to almost all exiled residents in the United
States in order to visit the island and visit their families, as well as to
considerably relax restrictions on Cubans visiting their families in the United
States. These visits by relatives
benefited Cuba in that they diminished the tensions caused by the separation of
families and at the same time contributed considerable foreign exchange to the
The limited détente achieved between the Unite States and Cuba came to
an end in the latter part of 1978, when Cuban military participation in Africa
led US Government authorities to reject any further measures to improve
approximately 100,000 Cuban Americans visited Cuba in 1979, and for most it was
the first time since they had left the island.
In December, 1978, the plan to release political prisoners was announced
as one of the achievements of the dialogue between Cuban American exiles and the
Cuban Government. Under this
agreement, a number of political prisoners were released to allow them to leave
the island and go to the United States. The
Government of the latter, however, did not process or admit those political
prisoners to the extent it had promised.
Contact between Cuban exiles and those living in Cuba rose as Cuban
restrictions on travel to the country and outside of it were relaxed. The regulations on immigration facilitated visits of
relatives for most Cubans, but at the same time were designed to ensure:
(1) that certain Cubans whose loyalty was questionable could not use the
temporary exit permits granted to them to remain outside the country; (2) that
exiled Cubans considered to be a risk to national security would not be allowed
to return to the island; (3) that Cuban citizens who wished to leave the island
permanently would not remove such property as the Cuban government considered
should become the property of the state; and (4) that Cubans whose labor
services wee considered to be of particular importance for national development
could not leave permanently without first meeting certain obligations.
The Special Case of the Boat Exodus form Mariel
The boat exodus of Mariel began with the movement of 10,000 Cubans
requesting political asylum in the Embassy of Peru building between April 18,
and 21, 1980. The Cuban Government
withdrew from the Embassy the police forces that normally prevented entry into
foreign embassies, supplied additional food and water to the Peruvian Embassy,
and announced that those who had entered it were free to leave the country and
travel to any nation that would legally accept them.
Over the next two weeks, and while the international community negotiated
the resettlement commitments that they would undertake, most of the Cubans in
the Embassy of Peru accepted the safe conduct offered by the Cuban Government
and returned to their homes to await emigration.
Eventually the United States agreed to accept 3,500 Cubans; Peru would
accept 1,000, Spain 500, Costa Rica 300, Canada 300, Ecuador 200, and Belgium
In very strongly worded public statements, the Cuban government condemned
both the occupants of the Peruvian Embassy and the governments that accepted
them in the capacity of political exiles. According
to Prime Minister Fidel Castro, these Cubans had no valid grounds to claim
political asylum: they had not been accused of political crimes in revolutionary
tribunals nor sought by the security agencies of the state.
He affirmed that many of them had police records and that they were
nothing more than common criminals and “lumpen”.
Initially, these Cubans were taken by airplane to San José, Costa Rica,
which served as country of first asylum and concentration point from which the
Cubans embarked toward other destinations.
The Cuban Government, however, interrupted the evacuation by air after
only two days, having taken exception to the publicity with which the airplanes
that arrived in Costa Rica were received. Two
days later, the Cuban Government announced that the Cuban exiles could come to
the Port of Mariel and collect those who had been in the Embassy, as well as
other Cubans who wished to leave the island.
The Cuban-American community responded immediately and launched a
maritime shuttle with the initial support of US Government officials who spoke
in terms of a “freedom flotilla.” However,
shortly thereafter, the Government (but too late) declared that the boat exodus
was illegal. Many more Cubans
arrived than had been expected, including many considered undesirable by US
authorities, as well as by the Cuban-American community, and it soon became
clear that the United States was not in a position to manage and absorb the
While the boat exodus was in full swing, on May 2, 450 former Cuban
political prisoners entered the Interest Section of the United States in Havana.
The Chief of the Interest Section had been informed by US officials that
he could authorize their emigration to the United States at that time.
Many had been waiting for more than a year for visas that had been
promised to them previously. They
remained in the Interest Section rather than go to the United States in the boat
exodus, in order to be able to legally enter that country. All of them had previously obtained their permanent exit
permits from the Cuban Government.
Instead of immediately processing the requests of those who had forcibly
entered the Cuban Interest Section, the Government immediately ordered first
that the Interest Section receive protection against future undesirable entries,
and while special barriers were under construction, the Interest Section was
closed. After considerable delay,
the request of those persons were processed.
Approximately 2,000 people from that group traveled legally to the United
States. A certain number of former
political prisoners—approximately 1,500—remained behind in Cuba, in the
belief that their emigration requests would be processed.
However, due to the reaction of US officials to the Mariel boat exodus,
neither they nor the political prisoners who had previously been accepted to
emigrate to the united States as part of the exchange of prisoners received
The negative US reaction to the Mariel boat exodus stemmed in the first
place from the fact that among those who came to the United States in the boats
were criminals who had been released from Cuban prisons and people released from
mental institutions; secondly from the fact that the Cuban Government had
refused to permit most of those leaving from Mariel to return to the island.
The United States had accused the Cuban government of sending criminals
and people with serious mental disturbances in the boats in order to pressure
the US Government and to force Cuban-Americans, who ha come to take their
relatives to the united States, to also take these undesirable elements.
The Cuban Government placed these people in the boats against the will,
or at least contrary to the intention of the owners of the boats, but this was
certainly not done against the will of the prisoners or any of the others
considered to be “undesirable”. Given
the choice of leaving the country in the boat exodus or continuing to serve
their sentences, a good number opted for the latter.
Cuban authorities regarded the boat exodus as a vehicle for ridding
itself of the maladjusted or the discontent.
While it is true that the Cubans were told they were free to emigrate,
they were also told that unlike other Cubans who had gone into exile previously,
they would not be allowed to return, and what is more serious, that they would
lose their nationality. The port
was opened for the exit of whoever wished to leave, but Cuban officials strongly
encouraged some Cubans to do so, and the Government also reiterated that to
embark on one of the boats from Mariel constituted illegal exit and was an
irrevocable decision. A special
regulation was enacted which proscribed their return.
Public opinion in Cuba ran strongly against those who wished to leave,
and many were subjected to verbal and even physical abuse.
In official language and in public demonstrations, Cubans who joined the
boat exodus were vilified as the dregs of society and unpatriotic.
Several months later, approximately 20,000 of those who had arrived in
the boat exodus from Mariel remained in detention centers awaiting sponsors;
many had serious difficulties in adapting and a small but visible number of the
recent arrivals rant into trouble with US laws.
Approximately 1,000 Cubans had been kept in prison without trial ain a
federal prison of Atlanta for having committed crimes in Cuba, despite the fact
that an Atlanta judge recently ordered that most of them should be released.
Other Cubans remained in local prisons.
The Cuban Government has declared that it is not intransigent with
respect to accepting some of the Mariel emigrants, including those who are in
jail, but it insists that the United States discuss the issue of the Mariel
exiles in the context of general problems of immigration, including for example,
the refusal of the United States to return to Cuba persons condemned as war
criminals for crimes committed during the Batista Regime.
The chief victims of the present situation are, in the first place, the
large number of Cubans who have obtained exit permits from their government and
have been informed by the Government of the United States that they will not be
processed for entry into the United States, and secondly, the “Marielitos”,
i.e., those who acted impulsively or under pressure and are not homesick, as
well as those who simply exchanged a Cuban jail or mental institution for its
counterpart in the United States. In
the first group, the situation of former political prisoners is particularly
sad. Their applications had already
been denied at that time of the boat exodus and in some cases they had left
their places of employment because they expected to leave soon. In the second group, the “Marielitos”, many have tried to
take measures on their own. The
Cuban Interest Section in Washington has received hundreds of requests for
return from people from this group. Officials
review these requests individually. In
most cases, they are denied. Only a
few of them, as in the case of people who did not wish to leave and were taken
as part of families and where there are solid humanitarian reasons for accepting
their return, do Cuban officials issue the return permit.
Others, apparently desperate, have hijacked airplanes or boats to Cuba.
Those who arrive in Cuba by this means are immediately taken to prison;
sentences initially varied from two to three years, but some recent sentences
have been as high as fifteen to twenty years.
According to the United States State Department, of all the airplanes
hijacked to Cuba, three-fourths are presumed to have been hijacked by “Marielitos”.
In view of the above, the Commission considers that the Government of
Cuba continues to closely limit and control travel and in particular the
emigration of its citizens. The
right to residence and movement is not established in the Constitution, which is
an anomaly that should be remedied. Although
most of the Cubans who are invited to leave the country by relatives or by
international organizations generally obtain exit permits, there are, have been,
and continue to be some notable exceptions. Over the years, many Cubans regarded as critics of Cuban
policies have been denied exit permits. Decisions
in their regard are also arbitrary and dependent of political power.
Not all Cubans have the right to leave and return to their country.
The right to leave has been limited by formal and informal regulations
against the exit of persons from certain groups; the right to return has been
denied to the majority of those who left Cuba through the Mariel boat exodus and
apparently they have lost their Cuban nationality by virtue of that act alone.
This is a serious violation of the right to residence and movement and
the right to nationality, which the Commission emphatically condemns.
With respect to the right to leave the country, young men of military age
who have not completed their obligatory service are prohibited from leaving, and
cases have been reported of young people who have completed their obligatory
military service and who have been denied permission to leave solely because
they were of military age. Emigration
has been extremely difficult, when not formally prohibited, for doctors and
certain other categories of technicians, unless they are of advanced age and
have few years of productive activity remaining.
The fact that anyone who wishes to leave must abandon their property and
renounce their employment even further restricts the possibility of emigration.
Apart from the restrictions described above, there are other factors that
limit the possibility for nationals to emigrate.
More important, the migration process is influenced by the willingness of
host countries to accept Cubans as immigrants or refugees.
Since 1978, the Cuban government has facilitated the departure of former
political prisoners through the plan for release of prisoners, which allows
these people to travel to the United States as refugees.
However, this plan has been suspended.