             Cuban Obligation to Accept Returning Nationals

U n d e r c u sto m a ry in tern atio n a l law , o n e sta te h as a d u ty to a n o th e r sta te to a c c e p t an y o f
  its o w n natio n als w h o h av e been expelled from th e o th e r state. T h is d u ty b etw een
  states to a cce p t re tu rn in g natio n als is rein fo rced by a n u m b er o f in te rn a tio n a l in stru ­
  m en ts u n d e r w h ic h in d iv id u als h av e a rig h t to re tu rn to th e ir o w n c o u n try .
C u b a ’s o b lig atio n to a c c e p t its re tu rn in g natio n als is intensified by e v id e n c e th at it
   v io lated in tern atio n al law in exp ellin g them in th e first place.

                                                                                                     June 6, 1980
 MEMORANDUM OPINION FOR T H E ATTORNEY G EN ER A L

   This responds to your request for our views, on an urgent basis, on
Cuba’s obligation to accept the return of Cuban nationals who have
been excluded from the United States.
   Our examination of authorities indicates that a case can be made that
Cuba has a duty to take any of its nationals that we may expel. A
leading international law treatise states the obligation quite clearly:
          The duty [of the State] is that of receiving on its territory
          such of its citizens as are not allowed to remain on the
          territory of other States. Since no State is obliged by the
          Law of Nations to allow foreigners to remain within its
          boundaries, it may, for many reasons, happen that certain
          individuals are expelled from all foreign countries. The
          home State of expelled persons cannot refuse to receive
          them on the home territory, the expelling States having a
          right to insist upon this.
1 Oppenheim, International Law § 294 (Lauterpacht ed. 1948).
  This duty between states is reinforced by a number of international
instruments adopted in recent years concerned with the rights of indi­
viduals.
  In 1948 the United Nations faced this question when the General
Assembly adopted, without dissent,1 the Universal Declaration of
Human Rights. Article 13(2) provides:
       Everyone has the right to leave any country, including
       his own, and to return to his country.
G.A. Res. 217A(III), 1948-49 U.N.Y.B: 535-37.

  1 Cuba w as a U.N. m em ber at that time.


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Although the Declaration is not a binding treaty, it has frequently been
cited as a source of customary international law.
   Similarly, two major human rights treaties provide that a national
cannot be deprived of the right to enter his own country, the American
Convention on Human Rights “Pact of San Jose, Costa Rica,” Art.
22.5 2 and the International Covenant on Civil and Political Rights,
Art. 12.4.3 Cuba is not a party to either; President Carter has signed
both and sent them to the Senate but the United States is not a party.
Ex. E, 95th Cong., 2d Sess., Ex. F, 95th Cong., 2d Sess., Feb. 28, 1978.
The treaties are both in force, however, and have been ratified by a
significant number of countries. In such a situation it can be argued that
the right to return to a national’s own country has been established by
customary international law even as to non-parties. Cf. The Paquete
Habana, 175 U.S. 677 (1900).
   Another treaty of possible relevance is the International Convention
on the Elimination of All Forms of Racial Discrimination (Ex. C, 95th
Cong., 2d Sess.). Article 5 provides that parties undertake to eliminate
racial discrimination in all its forms
          and to guarantee the right of everyone, without distinc­
          tion as to race, colour, or national or ethnic origin, to
          equality before the law, notably in the enjoyment of the
          following rights:
                       *              *               *              *              *

            The right to leave any country, including one’s own,
          and to return to one’s country.
   Cuba became a party to this treaty in 1972. President Carter signed it
but the Senate has not approved it. One problem in citing this provision
is that the Administration has taken the position that this obligation is
not primarily to protect the rights included as such “but rather to
assure equality and nondiscrimination in the enjoyment of those rights.”
Letter of Submittal to the President from Warren Christopher, sent to
Senate with Ex. C, 95th Cong., 2d Sess. at VII. Thus, it does not
appear that Cuba would violate this treaty unless it discriminated on
racial and ethnic grounds in expulsion and acceptance of the return of
nationals.
   The obligation of Cuba to accept its nationals is intensified by evi­
dence that it violated international law in expelling nationals. There is
evidence that some of the persons leaving Cuba, and whom we wish
deported, were forced out of Cuba in the first place. The American

    2 “ N o one can be expelled from the territo ry o f the State o f w hich he is a national o r be deprived
o f the right to en ter it.”
    3 H andbook o f Existing Rules Pertaining to H um an R ights in the Inter-A m erican System, 29 (1983)
(O .A .S. Inter-A m erican Com m ission on H um an Rights). “ N o one shall be arbitrarily deprived
o f the right to en ter his ow n c o u n try .” Official R eco rd s o f the G eneral Assem bly, 21st Sess.,
Supp. No. 16, 52.


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Convention, supra (Art. 22(5)), provides that no one can be expelled
from the state of which he is a national, as does the American Declara­
tion of the Rights and Duties of Man, Art. VIII. The Declaration is
enforceable by the Organization of American States (OAS) Human
Rights Commission, which is given its status under the OAS Charter.
See T. Buergenthal, The Revised OAS Charter and the Protection o f
Human Rights, 69 Am. J. Int’l L. 828 (1975). Despite Cuba’s suspension
from OAS activities, it is still a member and the United States has taken
the position that Cuba is still subject to human rights obligations.
   The human rights instruments discussed are basically for the protec­
tion of the individual rather than other states. All of them recognize the
possibility, however, that states may complain of violations against
persons who are not its nationals.

                                        J o h n M. H a r m o n
                                     Assistant Attorney General
                                      Office o f Legal Counsel




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