A Matter of Law

Policías nicaragüenses resguardan la frontera con Costa Rica para impedir el paso de los inmigrantes cubanos que se dirigen a Estados Unidos (Foto Álvaro Sánchez/EFE)
Nicaraguan police guarding the border with Costa Rica to prevent passage to Cubans bound for the United States (Photo Álvaro Sánchez / EFE)

The crisis that has led to a bottleneck of more than 2,000 Cubans on the border between Costa Rica and Nicaragua these last few days brings to the forefront the issue of the incessant flow of émigrés from Cuba to the US, creating a delicate collateral diplomatic situation between the two Central American nations.

Belatedly, as it is usual for the Cuban government to react to important situations that they would rather avoid, Cuba’s Ministry of Foreign Affairs has published a statement attributing all the causes for the exodus to the Cuban Adjustment Act and the “wet foot/dry foot” policy that the U.S. applies to those who flee the Island.

In short, according to the official Cuban version,  responsibility for the growing tide of migration from Cuba to that country belongs entirely to the US administration, which is jeopardizing the process of reconciliation and dialogue between the two governments which began in December, 2014.  

With rampant disregard towards its people, the power is, once again, ignoring the human drama of emigration

Here is a situation where a foreign power applies a law that incites in Cubans the irrepressible urge to embark on an uncertain and dangerous adventure.This portrayal, attributed to hundreds of thousands of Cubans who emigrate to the US, or aspire to do so, depicts them with the regrettable inability to reason for themselves, and, paradoxically, calls into question the much-vaunted national sovereignty, since it assumes that a law established by a foreign power is a necessary and sufficient condition to cause what is becoming a gradual and constant emptying of the Island.

Meanwhile, the official press ventriloquists have been ordered to support their boss, so very astute comments from its  analysts have started to appear on television news programs and in newspapers. For Castro-style journalism, all resources are valid, starting from the most rude and cynic comment, offensive to the Cuban people, that mocks the national misfortune that this never-ending escape represents: from “Anyone who has $ 15,000 to pay a smuggler is not fleeing from poverty,” was the comment of Oliver Zamora, a yeomen of the guard, on last Friday’s primetime broadcast of the National Television News; to the reductionist, untimely and manipulative “opinion” article – “The Cuban Adjustment Act. From the escape to the stockade” – by Ricardo Ronquillo, in Sunday’s  Juventud Rebelde.

Resolution of this problem is in the hands of the Cuban authorities, also from a legal perspective, that is, revamping the laws in our country

Both pawns stick to the Master’s script that points to the Cuban Adjustment Act – enacted and in effect since 1966 – as the cause and continuation of the problem, and the government’s defense is sustained on that aspect, which motivates the challenge of debating from a legal perspective.

Thus, accepting that such a law affects the Cuban exodus to some extent, and mercifully leaving aside the element that one of its greatest beneficiaries is precisely the Cuban government, whose coffers swell each year with the merciless tax it imposes on contributions sent from emigres to their relatives in Cuba, it is unquestionable that the resolution of this problem is in the hands of the Cuban authorities, as well as from a legal perspective, that is, revamping the laws in our country.

The absolute power of the Cuban regime places it in a privileged position when it comes to legislating, since the General-President is not required to consult anyone nor to have the approval of any parallel power to enact laws at will. If Castro II wants to defeat the formidable power he attributes to the Cuban Adjustment Act, and if he wants to avoid the shameful humiliation that a foreign law has greater convocation capability for the Cuban people than does the Revolutionary discourse of over half a century, he should make deep legal changes in favor of the governed, so that they benefit from our laws and not from the laws of others.

For instance, the Foreign Investment Law could be revised to acknowledge the rights of Cubans to invest in their own country, given that, as Oliver Zamora has stated, Cubans are not fleeing poverty, since they have funds to pay traffickers. It is logical to offer them the opportunity of a better way to invest their money in their own country. Incidentally, tax laws could be relaxed to establish soft taxing for Cuban investors, offer them low-interest, long-term credit, and enact favorable import tariffs for to improve the performance of their businesses.

I am convinced that the new scenario that would appear in Cuba from this revamping would greatly discourage the disorderly stampede of emigrants to the United States

The labor codes could also be reviewed to grant Cuban workers the right to strike, the right to unionize, and the right to enter into contracts; a new agrarian reform could be enacted that places ownership of the land in the hands of producers who work it; the period of time that Cubans can remain abroad without losing the right to return to their home country when they wish could be declared unlimited; provisions that establish the loss of citizenship could be repealed and the full right of all Cubans residing in Cuba or abroad to enter and leave the national territory and to participate in elections could be recognized.

Other legal issues that are entirely dependent on the will of the Cuban government and not on that of the U.S. are those concerning the consecration of those rights intrinsic to democratic societies, such as freedoms of expression, of opinion and of the press, and the multiparty system, just to mention the most elementary.

I am convinced that the new scenario that would appear in Cuba from this revamping would greatly discourage the disorderly stampede of emigrants to the United States. The suitability of Cuban laws would eventually defeat the evil power of the Cuban Adjustment Act and acknowledge the Cuban establishment. It would ultimately become clear that, in effect, the Cuban emigration problem is only a matter of law.


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