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IV. Freedom of Movement in International Law

Under international law, all Cubans have a right to leave and return to Cuba.  The Universal Declaration of Human Rights (UDHR) establishes the principle that “[e]veryone has the right to leave any country, including his own, and to return to his country.”190  The International Covenant on Civil and Political Rights (ICCPR) similarly establishes that “[e]veryone shall be free to leave any country, including his own,”191 and that “[n]o one shall be arbitrarily deprived of the right to enter his own country.”192

The right to return extends even to those Cubans who have obtained citizenship in the United States or a third state, since the definition of “own country” in these provisions of the ICCPR is not limited to “country of nationality.”  According to the U.N. Human Rights Committee, it applies as well to “an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”193

The right to freedom of movement is a basic element of liberty.  The freedom to leave one country for another allows individuals to escape political systems that deny them other basic freedoms, thus serving as a right of last resort.  The right to return to one’s own country similarly guards against government repression by barring the state from exiling disfavored groups or individuals.  The right to return also serves to strengthen the right to leave a country, in the case of non-nationals, as it ensures them that they will have a place to go.

In the case of parents and children residing in different countries, the right to leave and return is further protected by the Convention on the Rights of the Child (CRC), which proscribes the forced separation of families.  The Convention establishes a child’s “right to maintain on a regular basis, save in exceptional circumstances[,] personal relations and direct contacts with both parents.”194  Toward that end, the Convention requires States Parties to “respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country.”195  The Convention also requires States Parties to respond to applications for travel “for the purpose of family reunification … in a positive, humane and expeditious manner.”196  And the UDHR and the ICCPR recognize a more general right to family unity, providing that: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”197

International law allows States to restrict the right to freedom of movement, but only under limited circumstances.  Both the ICCPR and the Convention on the Rights of the Child bar states from restricting the right to leave any country, except when the given restrictions are prescribed by law, are “necessary to protect national security, public order, public health or morals or the rights and freedoms of others,” and are consistent with the other rights recognized in those same treaties.198

The obligation to respect the right to return to one’s own country is even more stringent. While the ICCPR specifically states that individuals should not be “arbitrarily deprived” of this right, the U.N. Human Rights Committee has concluded that “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”199  The Convention on the Rights of the Child, meanwhile, allows for no restrictions on the right to enter one’s home country for the purpose of family reunification.

Cuba’s practice of denying exit or entrance visas to its citizens undermines its citizens’ right to leave and return as established in the Universal Declaration of Human Rights, as well as their right to family unity.  Cuba’s international obligation to respect the Universal Declaration stems from the fact that the UDHR is widely recognized as customary international law, constituting a basic yardstick by which to measure any country’s human rights performance.

Although Cuba is not a party to the ICCPR, it has ratified the Convention on the Rights of the Child.  In doing so, Cuba assumed responsibility for complying with the treaty’s provisions and for incorporating them into Cuban domestic legislation.  Consequently, its denial of travel visas and entrance visas to parents and children seeking family reunification constitutes a breach of its treaty obligation.  In addition, its failure to respond in a timely fashion to parents and children seeing either entry or exit visas also contravenes its obligations under the CRC. 

Nor is Cuba’s denial of exit visas justified in the case of doctors, though it may serve a legitimate public health objective.200  It is easy to imagine other, less coercive ways to encourage doctors to practice medicine for several years in Cuba prior to emigrating (such as providing economic incentives or establishing a residency requirement for medical students to obtain their degrees).  It is highly unlikely, moreover, that making an exception for doctors seeking reunification with their children abroad would have a significant impact on public health in Cuba.

U.S. restrictions on family-related travel also impair family unity and undermine the right of Cubans and Cuban Americans to return to their own country.201  Like Cuba, the United States is bound to respect the principles enshrined in the Universal Declaration.  And unlike Cuba, the United States has ratified the ICCPR and therefore has an obligation to pursue policies that promote the rights that the Covenant recognizes.  Yet, because the U.S. has failed to recognize that its travel restrictions infringe upon rights, not simply privileges, successive U.S. administrations have felt free to tighten or loosen restrictions as a matter of political discretion.

The current restrictions, by allowing family-related travel only once every three years, and allowing no humanitarian exceptions, severely limit the ability of hundreds of thousands of Cubans and Cuban-Americans to exercise their right to return to their home country.202  The U.N. Human Rights Committee, as noted above, has established that “there are few, if any, circumstances” in which the limiting this right would be acceptable.  Given the proven ineffectivess of the embargo policy, and the profound hardship caused by the family-related travel restrictions, there can be little doubt that the Bush administration’s justification for its travel policy would not meet the Committee’s high standard.  


[190] Universal Declaration of Human Rights, Article 13(2).

[191] International Covenant on Civil and Political Rights, Article 12(2). 

[192] International Covenant on Civil and Political Rights, Article 12(4). 

[193] See ICCPR General Comment No. 27, para. 20 (U.N. DOC. CCPR/ C/21/Rev.1/Add.9, 2/11/199):  “The scope of ‘his own country’ is broader than the concept ‘country of his nationality.’ It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”

[194] Convention on the Rights of the Child, Article 10(2). Cuba ratified the CRC on August 21, 1991.  The United States signed the CRC on February 16, 1995, but has not ratified it.

[195] Ibid.

[196] Convention on the Rights of the Child, Article 10(1).  The Convention explicitly links this right to its prohibition, in Article 9, on the forced separation of families.  Article 9 requires States Parties to “ensure that a child shall not be separated from his or her parents against their will,” allowing for exceptions only where “separation is necessary for the best interests of the child” and where such a determination has been made by “competent authorities subject to judicial review.” Convention on the Rights of the Child, Article 9(1).

[197] Universal Declaration of Human Rights, Article 16(3), and International Covenant on Civil and Political Rights, Article 23(1).  The concept that the family unit is entitled to protection is reinforced by other provisions that prohibit arbitrary interference with the family and that affirm the right to found a family. See, e.g., Universal Declaration of Human Rights, Articles 12 and 13.

[198] International Covenant on Civil and Political Rights, Article 12(3), and Convention on the Rights of the Child, Article 10(2).

[199] ICCPR General Comment No. 27, para 21.  “The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable.…”

[200] As Manfred Nowak has explained, “governments have a keen interest in preventing their working population or certain groups (e.g., regime critics, scientists, skilled workers) from leaving the country.  It is always possible to come up with some sort of ‘debt’ owed the State, perhaps simply the costs that the State has ‘invested’ in educating these persons.”  He goes on to say that that restrictions on freedom of movement cannot be justified on these grounds, as “the exception would otherwise become the rule.”  Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, 1993), p. 214.  Nowak was writing about the restrictions on the right as defined in the ICCPR, but the same principles apply for judging restrictions under the UDHR.  See also Kwado Mensah and others, “The ‘Skills Drain’ of Health Professionals from the Developing World: A Framework for Policy Formulation,” Medact, February 2005, pp. 6, 27 (noting that many developing countries have tried to restrict the outflow of health workers, but that non-coercive approaches to the problem serve to respect the right to freedom of movement).

[201] The narrow definition of family contained in the restrictions is also incompatible with international standards.  According to the U.N. Human Rights Committee, the term “family” used in the ICCPR must be given a broad interpretation so as “to include all those comprising the family as understood in the society of the State party concerned.” ICCPR General Comment 16, UN Doc. CCPR/C/21/Add.6 (1988), para. 5.

[202] While some Cubans and Cuban-Americans are able to receive permits to travel as journalists, academic researchers, or participants in missions by religious groups, this is not an option for the vast majority. 


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