Cuban Obligation to Accept Returning Nationals

U nder custom ary international law , one state has a du ty to an o th er state to accept any o f 

its ow n nationals w h o have been expelled from the o th er state. T his du ty betw een 

states to accept returning nationals is reinforced by a num ber o f international instrum ents under w hich individuals have a right to return to th eir ow n country.

C u b a’s obligation to accept its returning nationals is intensified by ev idence that it 

violated international law in expelling them in the first place.

June 6, 1980

MEMORANDUM OPINION FOR TH E ATTORNEY GENERAL

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 individuals.

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 was a U.N. member 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 distinction 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 evidence 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 territory o f the State o f which he is a national or be deprived 

o f the right to enter it.”

3 Handbook o f Existing Rules Pertaining to Human Rights in the Inter-Am erican System, 29 (1983) 

(O.A.S. Inter-Am erican Commission on Human Rights). “ N o one shall be arbitrarily deprived 

o f the right to enter his ow n country.” Official R ecords o f the General Assembly, 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 Declaration 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 of

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 protection 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 of Legal Counsel

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