Why Do Cubans Continue To Be Spaniards?

Tratado de París 1898 (CC)
Treaty of Paris 1898 (CC)

With the signing of the Treaty of Paris of 1898, Spain ceded or sold the last pieces of its former empire where, in the time of Carlos V, “the sun never set.” This treaty, as has already been proven by Pedro Albizu Campos, had several legal defects that made it invalid. Curiously, no Spanish politician has used these arguments to challenge it outright. This is due to two main factors: The first, ignorance, and the second, of equal weight, reality. Spain today, as it has been for the last 115 years, is not in any shape to oppose the “Pax Americana.”

However, today this legal fissure acquires an unexpected dimension. Spain, through various laws, decrees and circulars, has decided to re-establish the rights of nationality for many of its former citizens who lost their nationality for different reasons in the last century (and even earlier, as is the case of the Sephardic Jews). Over time this worthwhile path is going to turn out partial and incomplete because unfathomable depths of injustice are appearing. We are going to neither allude to the notorious inequality of conceding nationality only to descendants of male immigrants or detail the numerous legal ploys that officials abroad use in order to retard or delay the petitions of the interested parties, who could not always access to the documents necessary for validating their rights.

The Treaty of Paris completely dispossessed Cubans and Puerto Ricans born overseas of their status as Spaniards, leaving them to the disposition of the new authorities as if it were dealing with material property of the Crown ceded or sold by virtue of that agreement. Something that was in frank contradiction of the rights of peoples and is one of the reasons that the said treaty was never ratified by The Cortes – the Spanish Parliament – until today.

Few rose then to denounce such injustice, carried to The Cortes by Admiral Cevera, among others. Later a royal decree was published in the Manual of Military and Civil Classes, which declared them foreigners. Nevertheless, according to the current Constitution, the Civil Registry of the Kingdom was the only agency authorized legally to recognize (once registration had proceeded) the loss of nationality of those Spaniards, and this never occurred.

By not duly settling in the Kingdom of Spain’s civil registry the new administrative status of the natives of the island of Cuba, they continued to maintain  de facto Spanish nationality.

The creation of the Republic of Cuba did not resolve this legal problem either, given that the Cuban Constitution established that those people had to “opt” for the new Cuban nationality, something that in practice – and from all the evidence – also turned out difficult to put into practice. Those who did not do it, as well as their descendants, kept their  de facto status as Spaniards at least until 1940. As a result, their descendants continue to be Spanish and could demand that status currently in Spain’s civil registries.

In 1940, the new Constitution decreed by  ius solis (birthright through parentage) Cuban status to those born in Cuba so that Spaniards who did not “opt” at that moment to keep their Spanish nationality ended up losing it as did their descendants.

However, Spanish nationality does not depend on Cuban nationality or vice versa. Each sovereign state decides for itself who are its citizens. Spain cannot impugn the Treaty of Paris but it can do justice to the descendants of those Spaniards, recognizing their right to nationality. Nothing prevents it and it would be an act of basic justice. The recent decisions by the Supreme Court denying Spanish status to those born in overseas territories are a disgrace and a legal aberration. Given the current international political environment, offering nationality to all those descendants of Spaniards who seek it opens unusual prospects – transcendental – for the cause of Hispanic heritage. Only a blind man would not know how to see them.

Translated by MLK

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