Some past reflections on intermarriage in Cuba before the

new era of USA –Cuba political relationship.

Rossana Favero-Karunaratna

(LLB, Catolica-Peru/ LLM, Warwick, UK)

Abstract

Cuba was the second site of arrival of Italian explorer Christopher Columbus

who was searching for a new route to India in 1492. This island located in the

Caribbean Sea, became a colony of the Spanish Empire and as a consequence of

this event there was a transformation of its social and political system, originally

based on tribal traditions and customs. As an effect of colonization, it became a

destination of mainly Spanish immigrants; however other groups would be of

particular importance in the racial configuration of the inhabitants of Cuba, such

as immigrants coming from Asia, specifically from China.

During the period of post-independence, the issue of being strategically located-

the island is situated next to the United States- constituted a factor of influence

when taking decisions on immigration policies, a fact that continues to influence

its legal and political history up to date. Migration is a key issue which has

come under strict surveillance and has had an impact on the construction of the

concepts of nationality and citizenship. Intermarriage can be described as a

social phenomenon which involves more Cuban women than Cuban men. Topics

such as the one related to “sex tourism” are also being highlighted as a

consequence of this situation.

This paper was written around 201I and attempted to explore the legal, social

and economic effects of the immigration and emigration flows under the

political changes introduced by the Cuban Revolution from a gender perspective.

It is my intention to present it as a background to the present era of changes

between USA and Cuba and as a humble contribution to new research and

reflections currently being conducted based on the recent political changes.

Historical Background.

Cuba, the main island of the Caribbean, is an archipelago

made up of some 1600 islands, islets, and cays located in

the Caribbean Sea, 90 miles south from Florida, United

States. This geographical position has shaped the political

and legal history of more than 10 million people, 70% of

whom live in the main cities. Female population constitutes

49.9%. Spanish is the official language.

Cuba was the second site of arrival of Italian explorer

Christopher Columbus who was searching for a new route to

India in 1492. On October 27th of that year, Columbus,

sponsored by Queen Isabel of Spain, arrived in the island

known as Cubanacan inhabited by approximately 50000 natives

called Tainos, Siboney and Guanahatabey where he would find

different species of flora and fauna, some of them unique to

the island. Columbus later renamed this land as “Juana“, a

name that would be changed again to “Fernandina”1 -names

connected to the Spanish Royal family and its members.

Columbus established the first Spanish settlement not in

Cuba, but in the present Haiti and Dominican Republic

territories (Hispaniola).

During the following years, Cuba would gain economic

importance to the Spanish crown: this territory became not

only a haven for sugar and coffee plantations, but an

important strategic military point for Spain as an entrance to

the New World discovered by Christopher Columbus, a

consideration which is still politically much alive

nowadays. Havana became the capital of the island only in

1552.

The present population of Cuba is a mixture of descendants

of settlers from Europe, especially from Spain and black

descendants of the slave population who came from Africa

during the XVIII and XIX centuries. Asian-Chinese-

immigrants also played an important role in relation to the

ethnic composition of this land. The native population was

virtually exterminated.

Although there existed historical ties with Spain, in terms

of religion, 50% of the population does not profess any

1 The Island changed its name several times, even known as Ave Maria inthe name of Virgin Mary. The natives continued to call it Cuba, namewhich would survive administrative nominations and continues to remainup to date.

faith: 40% are Catholics, 6% atheists, 3.5% Christians and

1.5% practice Afro-Cuban rites and Santeria2.

The colonial period of the history of this island began in

1511 and continued till the year 1895, covering more than

three hundred years of life under Spanish occupation. The

Derecho Castellano (Castillian Law) had undergone the impact of

the different legal systems prevailing at that period: Roman

Law, German Law, Canon Law and Justinian Laws. The system

was also influenced by Arabic traditions, a political effect

of the occupation of Spain by the Arabs. The legal system

was based in the recognition of the principle that “a recent

norm prevails against the previous one in a subsequent order

up to the eighth grade.” This system entitled an individual

to look for the correct norm to be applied for a particular

case going backwards in a consecutive order up to eight

places in order to search for the most appropriate law to be

implemented for the case in dispute.

The Spanish authorities designed an original system of

administration, dividing the island through a political

system of “encomiendas” that was to be applied as a model

system to the rest of the territories under their domination

in Central and South America. The Indians had to work for an

“encomendero” (a Spanish official) who was expected to look

after the Indians; however the exercise of the powers

2 “Ten years of Legal Advancement post-Cairo”, CLADEM, 2004.

assigned to this post resulted in the conformation of a

privileged group whose abuses ended in the killings of

almost entire native populations all over the Spanish

settlements. people died due to harsh conditions of work and

the physical abuse of the “encomenderos”.

Even though in Cuba there are no records of an ancient

civilization development, the natives certainly had their

own language and practices, which were exterminated not

through death but forced conversions. Cuban colonial society

at the time was divided along color and class lines: Whites

of Spanish descent were either criollos (Cuban-born of Spanish

parents) or peninsulares (Spanish-born of Spanish parents),

while blacks were either slaves or liberated. The natives

were considered indios who were born to provide service and

labour to superior races. That was the natural order designed by God.

Religion was invoked to justify the prevailing

discrimination; the natives and the blacks were considered

as mere instruments or providers of labour force for the

economic gains and final benefit of the civilized.

Cuba divided on racial origins, generated a new set of

rights based on racial discrimination. Slavery was justified

and actively promoted with the objective to develop the

sugar and tobacco plantations.

Although intermarriage was encouraged in certain

circumstances by the Spanish Crown on the basis of economic

and political interests, the relation with people of African

origin was considered of lower status, even lower than a

relation with a native, and therefore intermarriage with a

slave was not accepted and was socially punished.

The book written by Verena Martínez-Alier on Marriage, Class

and Colour in Nineteenth-Century Cuba3, explains how the

Spanish Crown enacted set of rules in different period in

order to eradicate this type of marriage. The Royal

Pragmatic rule in 1778 was implemented in order to prevent

intermarriage among unequals; disinheritance was the penalty

for infractions.

A system of licenses of authorization was imposed. Legality

of the unions was based on the existence of a previous

authorization given by the Crown with no opposition from

relatives, as these unions were considered “to tarnish the

family honour”. The age of consent for marriage was 25;

however in 1803 the age of consent was changed on the basis

of gender: 23 years old for men and 25 years old for women.

Martinez-Alier and Stolcke refer to a case that took place

in Cuba in 1791. A white girl wanted to marry a pardo (mixed

white and black) or mulatto. The sister of the girl opposed the

marriage and the authorities proceeded to deny

3 Martinez Alier, Verena, a.k.a Verena Stolcke, “Marriage, Class andColour in Nineteenth-Century Cuba: A Study of Racial Attitudes andSexual Values in a Slave Society”, a study of marriage patterns in 19th-century Cuba

authorization. The girl appealed to the King whose advisors

finally decided that the girl’s illegitimate origin offset

the inferior color of the suitor and therefore they were

allowed to marry. The girl was the daughter of a priest.4

Human rights abuses that were perpetrated against the slaves

included abuses to women, and in a high number of instances

rape and sexual violence were perpetrated by the aggressors.

Interracial relations were promoted as a style of life for

the white planters and the presence of pirates also

stimulated the encouragement of careless and highly sexual

behavior. Sexual relations with African women became part of

the usual conduct in the plantations where slaves were not

seen as human beings but commodities to be sold and

exchanged. Sex and sexuality were part of that trade5.

The Attorney General of the Spanish Crown was firmly opposed

to interracial marriage but the Ministers advised to the

existence of some flexibility as “although the marriages in

question can cause grief to the individual families, they

could not be but an additional benefit to the State, as all

the laws that protect marriage are very convenient for the

State resulting as they do in an increase of the population

4 Martinez Alier / Stolcke,Chapter 1: Intermarriage and family honour.5 President Thomas Jefferson of the USA during the XIX century wrote:“The amalgamation of whites with blacks produces a degradation to whichno lover of his country, no lover of excellence in the human character,can innocently consent”. President Jefferson was involved in a historiccontroversial event with Sally Hennings, his slave. Jefferson was 43 andHennings 14.

which is the foremost and the greatest policy objective.6”

In 1805 a Royal decree was issued regarding intermarriage of

members of the nobility with blacks and mulattos and the

need for the State to intervene in these cases through

permissions. The criterion was to consider family honour as

part of the public sphere: official positions were given on

the basis of race and social status; the State needed to

protect its survival.

Discrimination continued to exist on the basis of color and

birth and the legal system became more detailed in relation

to land and property rights. Criollos could own land and

acquire wealth; however they were prohibited from holding

high administrative positions that brought the Peninsulares

greatest prestige and wealth. In fact, much of the

peninsulares' wealth was appropriated from the criollos.

Trading became another source of rivalry among the two

groups and economic issues attracted different regional

powers. Tobacco became a popular crop in Europe towards the

end of the XVII century; as a consequence Spain prohibited

the criollo tobacco farmers from selling their production

directly to Europe. The Spanish administration provided

regulations in order to protect the interests of the

Peninsulares. The criollos were forced to sell their product

at lower prices to tobacco monopolies owned by peninsulares,

6 Martinez Alier and Stolcke, page 12.

who then resold it for higher prices to Spain and other

European nations. As a consequence of that regulation, the

criollos started smuggling in order to obtain some revenues.

Such favoritism to peninsulares expressed in the regulations

implemented by the authorities of the Spanish Crown finally

became a driving force for the beginning of a consciousness

of Cuban nationalism and the need to create a force of

resistance against Spanish military, legal and

administrative control. This scenario repeated all over

Latin American territories occupied by Spain, generating a

movement which later fought for Independence.

In 1762, during the Seven Years' War, England attacked Cuba and

held control of Havana for one year. Under the terms of the

Treaty of Paris, which ended the conflict, the island was

returned to Spain in exchange for Florida. During those

years many French citizens would arrive in Cuba. Some of

them would leave but others took the decision to settle down

and assimilate with the population.

The struggle for Independence divided the population into

different sectors, according to their loyalties and their

expectations. One group was looking forward to continue the

relationship with Spain considered as Motherland while

another wanted independence from Spain considered as

oppressive. There was a current of opinion in favour of

being a territory integrated to the United States. The

fourth sector wanted full independence from any power.

Jose Marti, a lawyer and a poet would became the central

figure and a symbol of the struggle for Cuban total

independence which finally united the criollos, mestizos and

slaves - the oppressed- in this common plight. The war for

Independence suddenly included another party: the United

States, as a result of the destruction of an American ship

located in Havana harbour, an event recorded as a “self

inflicted aggression” according to Cuban history7and as a

consequence war was declared in 1898. The war only lasted

few months but had a terminal effect on the Colonial Spain.

Under the Treaty of Paris, (10 December, 1898), Spain

relinquished her hold on Cuba, which she had held for over

400 years. Beginning 1 January, 1899, the United States then

occupied the island with their troops and appointed a

military governor.

This event added new territories to the United States; Guam

and Puerto Rico were ceded to that country, and sovereignty

of the Philippines was transferred to the United States for

$20,000,000. Spain relinquished all claims to Cuba.

7On several occasions the American Governments have tried to takepossession of the island. In 1848, the American Government offered$100,000,000 for the purchase of Cuba, but Spain rejected the offer. In1854, another offer was made but again it came to nothing.

The United States had earlier announced its intention

through the Teller Amendment not to establish control of

Cuba. However, their new political position gave them

advantage to take over the government of Cuba, apparently as

a temporary measure.

The Platt Amendment was introduced restricting Cuba to enter

into treaties, to be under the American administration and

further allow the United States to purchase or lease land

for naval stations, giving birth to what is presently known

as the famous Guantanamo Bay military base, for perpetuity.

Cubans were forced to sign the agreement as the authorities

involved in the negotiations perceived this as the only

legal move possible to facilitate a United States withdrawal

from the island as immediate remedy. The Constitution was

ratified in 1901, and Cuba officially became an independent

Republic in 1902.8 Washington would intervene in the

internal affairs, despite of this declaration, and in 1906,

the United States appointed a provisional government led by

Charles E. Magoon.

Immigration and Emigration: the Eternal Issues 9

8 Don Tomás Estrada Palma became President on May 20th, 1902.

Migration and Immigration have always been important areas

in the history of Cuba. During the post-independence

period, a number of immigration policies were implemented

according to different set of interests formulated not only

at a national level, but under the influence of the

governments and legal instruments of the United States.

The Law on Immigration and Colonization published by

President Tomas Estrada in July 1906, promoted migration

specifically from the Canary Islands and Europe and

prohibited the flow of Cuban workers abroad. A system of

quotas was established in 1924 and used by certain groups in

benefit of their aspirations. Under this set of regulations

many Jews decided to settle down in the island. Economic

assistance was provided through Jewish organizations from

the United States which provided economic assistance to

their journeys.

The following Table related to the movement of people

involved from 1924 to 1930 shows numbers and countries of

origin:

9Bejarano, Margalit:” La inmigración a Cuba y la política migratoria delos EE.UU (1902-1933)”-“Immigration to Cuba and the migratory policy ofthe United States “, the Hebrew University of Jerusalem.

Country

1924-1926 1927-1930

passengers

passengers

arrivals

departures

immigrants

arrivals

departures

immigrants

Total

400,825

308,141

173,461

428,087

452,252

88,126

Spain

94,796

69,114

73,160

51,614

85,209

26,979

Haiti

43,051

24,762

52,109

9,699

19,445

38,130

Ja

13

12,9

12,3

6,

17,5

3,60

maica

,628

94 41238

75 3

China

5,570

2,557

2 - 24 3

USA.

191,088

150,123

1,845

317,663

285,206

2,568

England

4,948

3,257

1,632

1,113

1,021

1,459

France

5,922

3,159

449

10,167

6,769

341

Germany

2,286

1,259

725

794

1,283

571

S 1 22 3, 1 30 88

yria

,102

4 230 4 6

Turkey

3,740

781

1,715

- - 290

Italy

3,287

1,141

3,055

178

64 873

Greece

1,597

464

1,573

- - 649

Poland

3,558

1,048

3,803

- 172,583

Russia

1,663

749

1,801

5 6 848

Roman

862

138

1,292

9 3 350

ia

Source: Movimiento de pasajeros e inmigrantes, 1924-1930.

American authorities tried to exercise pressure on the

island as many travelers were using its geographical

location as a transit to enter the United States as a final

destination. In 1930, a payment of US$ 200 dollars was

imposed on each migrant to restrict the flow, along with the

proposal to expel anyone who applies for an American visa

within the first 3 years of residency in Cuba. However, the

American officials could not exercise such a pressure on the

Cuban authorities who decided to defend their own interests

and aimed to encourage “good migration”.

Expectations of a successful migration to the island were

very high, but the number of Europeans who were attracted by

the new agricultural policy of migrations was much reduced.

Some of them returned to their countries of origin after

completion of their work.

The main group of European immigrants came from Spain. It

is calculated that 251,578 people were attracted by their

relatives or friends who were already living in the island.

They were also organized in help-care associations to

provide support for their arrival and settling down.

The second important group in numbers originated from the

United States and from England, and it was integrated by

people who were attracted by offers of employment in big

companies or “white collar jobs”10.

From the Caribbean region, especially from Haiti and

Jamaica, many immigrants came attracted by the sugar

plantation offers especially after World War I. Cuba was the

main provider of sugar at that particular time and new

legislation was promulgated in order to attract cheap

labour. During the Government of President Mario Garcia

Berrocal, a law was promulgated allowing the immigration of

workers even two years after the war was over. They had to

offer money guarantee not to be considered dependant on the

national budget and show evidence of good health and good

conduct. Chinese workers also benefited from this policy

although their entrance continued to be labeled as illegal

for sometime. Corbitt mentions the list of Chinese citizens

registered in their Consulate in Havana between 1903 and

1916 as 6,258 immigrants11.

10 It is less known that Christian Lebanese - originally from Syria -also came to the island in large numbers but started their new life asstreet vendors and was part of what they considered to be a promisingpublic service.11 BEJARANO, Jerusalem Hebrew University/Universidad Hebrea de Jerusalén

Between 1842 and 1873 as part of plantation programmes

numbers show that there were 221,000 African slaves12 and

124,800 Chinese workers.13

These large numbers created some discomfort among Europeans.

12 After the Treaty of Utrecht in 1713, which ended the War of SpanishSuccession, England was permitted to bring slaves from Africa into Cubaand that influence brought a change into the ethnic composition of theCubans. African immigrants came to the island mainly as slaves and thatsituation would influence their initial assimilation as Cubans. Due tothe hard conditions of life they used to die young and were not highlyreproduced. Their flow of migration was affected by internal factors;they were denied rights. Their inability to return to the Africancontinent prompted their decision to marry Cuban women; however, thisfact did not assist them at all to be able to acquire a level ofpolitical representation and full participation in the society. Many ofthem remained linked to their past.Their right to a name and an identity was even abused by the colonizers.Their first nominations were linked to their lands of origin and laterwith the trade connections established along the Caribbean region,nominations were related to the names given to them by the peopleinvolved in human trafficking. This was a holocaust which meantdepriving many people of their land and their roots, taken to foreignlands, unable to go back to their countries of origin. Years later withthe implementation of the principle of equality through the ideals ofthe Cuban revolution, they would be considered full citizens and givenmore opportunities to contribute and continue to be recognized..

13 The Chinese presence in Cuba dates to 1847, when a group of 200immigrants from Canton province arrived on a Spanish ship to work onCuba's sugar cane plantations. The article “Dwindling presence ofChinese immigrants in Cuba” written by Vanessa Arington for AssociatedPress in 2007 explained that from the original amount of Chinese whofled their Communist regime during the 40s and 50s, “only 143 remain intheir ironic end destination”. From this number, 113 are men. In 2003 theCuban and the Chinese Government hosted a trip back home for fiveChinese settlers.

The Spanish descendants were not contented with the

immigration of African and Asian people as they preferred

people of white ascendants. They began to focus on Spain to

obtain human resources. The perception of the potential

migrants was different and not a common one, as the ones who

came to Cuba would prefer to work in commerce and in urban

areas while the ones arriving especially from Canary Islands

would be willing to live in rural areas and be in charge of

plantations.

Due to language and other related problems, Spanish

immigrants preferred Cuba as their final destination or even

as a transitory stop on their way to Latin America. Religion

and family links were pivotal in their decisions. Some of

the immigrants were religious people and officials thus they

had a very clear idea of their final destination. Between

1899 and 1923, more than 750,000 Spanish migrants traveled

to Cuba; many returned to Spain after a period of time while

40% of them settled down in the island.

Act 155 - of 15th May 1902, forbade the entrance of all

people who would be seen as providers of potential health

risks such as suffering from mental illnesses, viral

diseases, dependants, criminals, prostitutes, etc. This

piece of legislation included a prohibition on Chinese

Immigrants, clearly as a consequence of the influence of the

American immigration policy (Cuba was under their

occupation) and other foreigners classified as cheap labour.

This created a reaction from the sugar plantation companies

which were more willing to consider other locations such as

Haiti and Jamaica.

Later, with the downfall of the sugar industry, decisions

were taken in order to repatriate foreign workers who were

left jobless and in miserable conditions. However, economic

interests and the miserable situation at home produced an

illegal stay of number of people.

By 1921 there was a crisis in the economic scenario of the

island. A system of quotas would be imposed on May 19th

1921, under the basis of the nationality of origins of

immigrants in the USA. Nationals from Canada, Cuba and from

other American countries, including foreigners who have

lived at least one year were not considered subjected to

this criterion. In 1922 the period of residence to be

accepted was extended to five years, not one year of

residence as was required before.

Cuban officials used to take into consideration requirements

linked to the presence of good health, the tenure of an

expressed authorization of a relative or tutor for women

traveling alone or minors and the payment of US $ 30 per

migrant. There were a number of organizations providing

assistance to the nationals of their respective countries

such as the Centros Regionales Españoles (Spanish Regional

Centers) or the Centro Israelita de Cuba (Israeli Centre of Cuba,

founded by Jews coming from Eastern Europe). These centers

were established in order to legally and economically assist

their country people when coming to a different environment.

Settling down in a new land represented suffering in many

ways especially due to the possibility of health problems

due to weather, food and unknown diseases. Many settlers

experienced desperate situations that aggravated their

conditions of life; they could not find a job due to

language problems, faced starvation and lacked proper

information. During 1921 and 1922, many immigrants came from

countries such as Armenia, Austria, Checoslovaquia, Poland

and Russia; however, their real intention was to travel

later to the USA. Many people were waiting to complete their

periods of residence in Cuba to be able to enter legally to

the USA, and that was particularly followed with concern by

the government of the USA which introduced a number of

amendments to the quotas in order to limit the entrance of

unwanted immigrants. Traveling to the USA through Florida

was through the sea route as now.14

14 In 2006 the Miami Herald reported that U.S. immigrationauthorities in Miami were used to reject green card applications from childrenborn outside Cuba to Cuban parents (regulations facilitate green cards tochildren born of at least to one Cuban parent) because they could not producecertain Cuban government-issued documents to prove they were Cuban citizens.They recently persuaded U.S. Citizenship and Immigration Services to reverse along-standing practice in the Miami immigration office to turn down applicationsby the children of Cuban parents who happened to be born abroad and didn't havethe required proof of citizenship. The decision, issued on June 30th by thechief of USCIS' administrative appeals office, opens a whole new avenue for

In 1925 a Decree was signed between both countries on the

eradication of illegal trade but the agreement was used to

legally formulate some rules regarding the case of

immigrants. The government of the USA began to exercise

political pressure against the Government of Cuba through a

system of quotas or restrictions in order to avoid

naturalization of foreign citizens as they were using this

legal entitlement to enter to the USA.

Many Jews were affected by this petition15 and immigrants

started to be classified through the criteria of their

people of Cuban ancestry to claim protection under the Cuban Adjustment Act,according to immigration lawyers familiar with the issue. They say the changecould affect conceivably thousands of people -- born outside Cuba -- who have aCuban parent. The story of why the federal government changed its policy beginswith Liliana Lozano Buschini, born in Venezuela, who showed up on June 6, 2005at the Miami immigration office seeking a green card to allow her to remainpermanently. She thought it would be granted since her mother was Cuban and shehad documents showing she was Cuban herself. She assumed she qualified under theCuban Adjustment Act, which allows any Cuban to apply for U.S. residency aftermore than a year in the United States.

But Lozano Buschini's application was denied because she did not have a Cubanpassport, birth certificate or government-issued citizenship certificate. Sheonly had certified letters from a Cuban government official and a Venezuelanbirth certificate to establish her claim to Cuban citizenship. She was hardly anisolated case. Lozano Buschini's lawyers, who sued the federal government,discovered that many people born abroad of Cuban parents were denied residency-- even though the Cuban constitution says anyone born abroad with at least oneCuban parent can claim Cuban citizenship. Immigration lawyers familiar with theissue say the policy change will benefit hundreds or thousands of people whohave a Cuban mother or father and were born outside Cuba”.

15 Presently it is estimated a number of 1,500 Jews in the island. They mainly intermarried with the population and hid their religion as they were more concerned on becoming “Cubans”. With the introduction of freedom of religion, issues like this are discussed more openly than before.

intention of settlement in the USA, and therefore

considering Cuba only as a transit destination. This

criteria affected basically people who were coming from the

Middle East, Eastern Europe; Spanish immigrants continued to

be protected and treated differently considering their

traditional links with the island, and their capacity to

interrelate.

Intermarriage and the Law

Constitutions in Cuba are a firm expression of sovereignty

and integrity, a product of a continuous struggle for the

conservation of the unity of its territory and preservation

of their identity. The issue of intermarriage has been given

due consideration at a constitutional level.

From the time of Cuba's formal independence, the country has

had five constitutions: 1901, 1934, 1935, 1940, and 1976

(with major amendments in 1992 and 2002).

There are two constitutions that were considered for the

purpose of the present paper; The Constitution of the

Republic of Cuba of 1940 and the Constitution of 199216

16 Both legal instruments present interesting facts to be analyzedregarding nationality, on aliens and the rights of foreign spouses. Dueto these historical events and the present economic blockade imposed bythe United States of America, migration constitutes the most sensitiveissue in the present economic, social and political scenario whichhighlights relevant and important issues for the objective of thepresent research. For the purpose of the present study, the analysis andhistorical account of Cuba’s legal system is based on the Constitution

The Cuban Constitutions

1. The Constitution of 1940

The constitution is defined as “liberal and democratic in

nature”

Art. 3 establishes that the territory of the Republic

consists of the island of Cuba, the isle of Pines and other

adjacent islands and keys which were under the sovereignty

of Spain until the ratification of the Treaty of Paris on 10

December 1898. It also includes the statement that: “The

Republic shall not conclude or ratify pacts or treaties that

in any form limit or menace national sovereignty or the

integrity of the territory”.

While TITLE I is related to issues concerning “The Nation,

its territory and form of government”, TITLE II and III

include articles related to nationality and alien status.

On acquisition of Cuban citizenship, by birth, art 12

establishes four forms of determination:

“All those born in the territory of the Republic with

the exception of the children of aliens who may at the

time be in the service of their Government”

of the Republic of Cuba, 1992 which per se constitutes a historicalperspective of the land and its people and a search for its own identity

“Those born in foreign territory, of Cuba father or

mother, by the sole act of their becoming inhabitants

of Cuba”

“Those having born outside the territory of the

Republic, of father or mother who were natives of Cuba,

but who may have lost their nationality, who reclaim

Cuban citizenship in the form and subject of the

conditions stipulated by law”.

“Aliens who have served for one year or more in the

army of liberation, remaining in it until the

termination of the war of Independence, provided they

affirm this service with an authentic document issued

by national archive”.

Art. 13 of the Constitution expresses that Cubans by

naturalization are:

- Aliens who after five years of continuous residence in the

territory of the Republic and not less than one year after

having declared their intention of acquiring Cuban

nationality, obtain the letter of citizenship in accordance

with the law, provided that they know the Spanish language.

- An alien who maries a Cuban woman and an alien woman who

marries a Cuban man, in case of offspring result from such

union or if they maintain two years of continuous residence

in the country after their marriage and provided they

previously renounce their nationality of origin”.

The following articles on loss of citizenship further

clarify the criteria of acquisition of Cuban citizenship:

Art. 15:

First: “Those who acquire a foreign citizenship”

Second: “Those who, without permission of the Senate, enter

the military service of another nation or accept the

discharge of duties that are inconsistent with Cuban

authority or jurisdiction”.

Third: “Cubans by naturalization who reside for three

consecutive years in the country of their birth, unless they

express every three years, before the appropriate consular

authority, their desire to retain Cuban citizenship”.

Fourth: “Naturalized citizens who have accepted dual

citizenship”.

Art 16 of the Constitution establishes that “Neither

marriage nor its dissolution affects the nationality of

husband, wife and their children. A Cuban woman married to

an alien shall retain Cuban nationality.

An alien woman married to a Cuban, and an alien married to a

Cuban woman shall retain his/her nationality of origin or

shall acquire Cuban nationality upon his or her prior

option, as regulated by the Constitution, the law or

international treaties. However, regarding political

participation article 18 embraced security concerns when it

expressed that: “No Cuban by naturalization may discharge

official functions in the country of his origin in the name

of Cuba”.

2.The Constitution of 199217

The paper “Reflections regarding formal aspects of the

Constitution” by Martha Prieto Valdez18, highlights the

influence of the Roman-German –French Laws being transformed

by the influence of the revolutionary process in Cuba,

through a deconstruction of the notion of Law as a mechanism

to exercise power and how this power must emerge from the

civil society. In that sense the right to vote is not

regulated in the section on fundamental rights but the

electoral system according to new conceptions.

The present Cuban Constitution not only includes reference

to aspects of Cuban history and its struggle for

independence from Spain but highlights the occupation of its

territory by the United States and the political spirit of

the country under the revolutionary leaders of the Communist

Party. The State organizes, directs and controls the

17 The 1976 Constitution was amended in 1992. The present study gives relevance to this amendment.18REFLEXIONES EN TORNO AL CARÁCTER NORMATIVO DE LA CONSTITUCIÓN.,Derecho Constitucional , Estudios Jurídicos Básicos,Universidad de La Habana, Cuba, accessed September 2007.

economic life of the country under a socialist system.

However on this aspect, “the State guarantees the right to

personal ownership of earnings and savings derived from

one’s own work, of the dwelling to which one has legal title

and of the other possessions and objects which serve to

satisfy one’s material and cultural needs. Likewise, the

state guarantees the right of citizens to ownership of their

personal or family work tools. These tools may not be used

to obtain earning derived from the exploitation of the work

of others.

The Preamble to the Constitution is a declaration of

solidarity especially with the peoples of Latin America and

the Caribbean, guided by the President of the country Fidel

Castro.

Under the communist party guidelines, CHAPTER I on the

“POLITICAL, SOCIAL AND ECONOMIC PRINCIPLES OF THE STATE”,

describes the Republic of Cuba under this new legal body as

“an independent and sovereign socialist state of workers,

organized with all and for the good of all as a united and

democratic republic, for the enjoyment of political freedom,

social justice, individual and collective well-being and

human solidarity”. Article 5 gives prominence to this

political characterisitic:

ARTICLE 5: The Communist Party of Cuba, a follower of

Martí’s ideas and of Marxism-Leninism, and the organized

vanguard of the Cuban nation, is the highest leading force

of society and of the state, which organizes and guides the

common effort toward the goals of the construction of

socialism and the progress toward a communist society,

Under these legal scenarios, the Cuban citizenship acquires

an expression of identity with the political ideas of the

revolutionary process as follows: 

.ARTICLE 29: Cuban citizens by birth are:

a) Those born in national territory, with the exception of

the children of foreign persons at the service of their

government or international organizations. In the case of

the children of temporary foreign residents in the country,

the law stipulates the requisites and formalities;

b) Those born abroad, one of whose parent at least is Cuban

and on an official mission;

c) Those born abroad, one of whose parents at least are

Cuban, who has complied with the formalities stipulated by

law;

d) Those born outside national territory, one of whose

parents at least is Cuban and who lost their Cuban

citizenship provide they apply for said citizenship

according to the procedures stated by law;

e) Foreigners who, by virtue of their exceptional merits won

in the struggles for Cuba’s liberation were considered Cuban

citizens by birth.

ARTICLE 30: Cuban citizens by naturalization are:

a) Those foreigners who acquire Cuban citizenship in

accordance with the regulations established by law;

b) Those who contributed to the armed struggle against the

tyranny overthrown on January 1, 1959, provided they show

proof of this in the legally established form;

c) Those who having been arbitrarily deprived of their

citizenship of origin, obtain Cuban citizenship by virtue of

an express agreement of the Council of State.

ARTICLE 31: Neither marriage nor its dissolution affects the

citizenship status of either of the spouses or their

children.

ARTICLE 32: Cubans may not be deprived of their citizenship

except for established legal causes. Neither may they be

deprived of the right to change citizenship.

Dual citizenship is not recognized, however issues related

to the formalization of the loss of citizenship are in the

hands of Cuban authorities who are empowered to decide on

this as prescribed by law.

The criteria of the New Constitution on Citizenship is

basically set on the same determination of citizenship of

the Constitution of 1940, except for the specific inclusion

of having been part of the liberation struggle, which

constitutes a very specific element that is used by certain

countries only during certain periods of its history19. 

CHAPTER II on Aliens embraces the principle of equality

regarding duties: that:

 Article 34: Foreign residents in the territory of the

Republic are equal to Cubans in:

the safeguarding of persons and property;

the enjoyment of the rights and the fulfillment of the

duties recognized in this Constitution, under the

conditions and with the limitations prescribed by law;

the obligation to observe the Constitution and the law;

the obligation to contribute to the public expenditure

in the form and amount prescribed by law;

the submission to the jurisdiction and resolutions of

the Republic’s courts of justice and authorities.

The law establishes the cases and the ways in which

foreigners may be expelled from national territory and the

authorities empowered to decide on this.19 Automatic citizenship is being conferred to those who being membersof the US Armed Forces suffer injuries in battle. This is conferred asrecognition by the United States for their sacrifice and commitment tothe defense of its territory and people in the “War against Terror”.

By acquiring Cuban citizenship the new citizen has the duty

to defend the socialist homeland which is described as “the

greatest honor and the supreme duty of every Cuban citizen”.

He/she will be careful not to commit acts of treason as this

act is the most serious of the crimes; those who commit it are

subject to the most severe penalties. Article 66 reinforces

the need of strict fulfillment of the Constitution and the

laws as an inexcusable duty of all.

Legal Requirements for Migration

The “Letter of Invitation” or

“Carta de Invitación“ is the main document an applicant

needs (or used to need?) in order to be entitled to leave

the country. In that sense, Cuban citizens cannot freely

exercise their right to mobility or “freedom of movement” as

they need authorization of the Government in order to

proceed with their decision to migrate or leave the country,

temporarily or definitely.

The carta de invitación is a legal document which is defined

as a declaration of commitment. It must be done before a Consul

or an authorized official. (Cónsul o Notario del país).

Cuban citizens, who wish to apply for permission to travel

abroad are required to hand over a letter of invitation from

a Cuban relative or Cuban or foreign friend abroad

expressing clearly their invitation to visit them. This

document can be issued before a Cuban consul abroad or a

Notary. In any case this document needs to be legalized

before the Cuban Consulate and only after this procedure the

document will be sent to the International Legal Office in

Havana for its perusal. This institution will send the

document of invitation to the applicant by post. After

receipt they have to visit the Immigration Office mentioned

above to officially start the procedure.

The Carta de Invitación is valid for a year from the date it

was legalized before a Consulate. Cubans who are performing

official activities abroad or are in charge of their Mission

or under working contracts are not entitled to extent

letters of invitation.

Cuban residents who travel with the category of travel

permit (no-migrant) can stay abroad up to 11 months. They

have to register at the Cuban Consulate closer to their

destination in order to pay the amount of money for each

month abroad after the first 30 days. Payment can be done in

installments or at the end of the period of permanency.

There are several legal documents which are necessary to

hold in the case of intermarriage or marriage of an alien

with a Cuban citizen20:

•Solicitud de Permiso de Entrada (Entry Permit)

•Permisos de Residencia en el Exterior (PRE) (Permit to

reside abroad)

•Permisos de Salidas Indefinidas (PSI) (Permits for

indefinite departures)

•Vigencia de Viaje (VV) (Period of stay)

•Permiso de Regreso Definitivo (Return permit)

The applicant can apply for a special entry permit to the

country through the Consular Offices of Cuba, which are

entitled to certify documents.

Births

Every person born abroad of Cuban mother or Cuban father has

the right to register its birth before the Consular Official

of the country of birth, giving only the evidence of the

citizenship of any of his/her parents. The applicants can

produce their passport or birth certificate. Parents must

show the certificate of birth of the country of birth of

their child. If the document is not issued in Spanish

20 www.cubanminrex.com, Official site of the Ministry of Foreign Affairs of Cuba.

language it must be translated and be legalized/certified by

the proper authority.

Marriages outside Cuba21

If the marriage was celebrated abroad, applicants must give

evidence to the Consular authorities of the certificate of

21 My name is Laura Gutiérrez, I am 24years old and I have been in Italy for more than four

months. During that period I have married an Italian citizen and would like to obtain residence

permit to stay here and my marriage to be legally recognized. Correo de Cuba, a Cuban

magazine specialized on migration enlightened on this situation and

answered the couple to go before Cuban officials at the nearest

Consulate and ask for their marriage to be formally recognized in Cuba

to enable it to be included in the Special registration Book held by the

Ministry of Justice for all marriages celebrated abroad. They must

present the original marriage certificate legalized by the Ministry of

Foreign Affairs of that country, translated into Spanish language,

photocopies of both birth certificates, there is a special format

(Format 11/30) which has to be filled in order to get their marriage

registered before the Consular authorities. The official in charge will

send a certified copy of that transcription to Cuba to proceed with the

registration. In order to obtain the residence permit to live abroad

another set of documents must be presented, such as special form,

original passport, letter, residence permit in foreign country if it is

the case, and photos. The special format is 16/30 and a petition to

change travel status will be opened and the Division of Foreign Affairs-

Division de Extranjeria-will decide if giving the permit or not. These

procedures are subjected to payment.

My name is Clara González Zabala, I am Colombian citizen married to a Cuban in 1995. I want to divorce.

Marriage (translated by competent authority or under an

international format which includes Spanish language).

Both spouses must produce birth certificates or their

photocopies.

Aliens and Cubans resident abroad who wish to marry Cuban

citizens must produce, if single, their birth certificates

and a “Declaration of being single”. If he/she is divorced,

the applicant will have to produce not only a birth

certificate but final judicial resolution of divorce or its

proper registration. If he/ she are a widower or a widow,

The same source provides an answer regarding the possibility to initiate

procedure inside Cuban territory with no problem at all. The second

option is to start it from abroad, maybe from Colombia. She will have to

visit the Cuban consulate with two witnesses and the marriage

certificate. The authorities will ask for information about children and

if they were born in Cuba or not. The procedure for divorce can be

started in Colombia, under Colombian laws but the judicial resolution

must be registered before the Consulate authorities to be valid and

recognized in Cuba.

.

besides birth certificate and marriage certificate, they

must produce the certificate of death of the spouse.

Marriages in Cuba can be celebrated before legal officers

and Ministry of Justice.

-The Family Code - Codigo De La Familia: Regulations on

Intermarriage

Another important piece of legislation concerning marriage

with aliens is the Family Code-Código de la Familia- Ley/Act

1289, based on the socialist concept of equality among its

members.

The age of consent for marriage in Cuba is 18, but

authorization may be given in cases where the bride is 14

and the groom is 16, by the parents, a tutor or their

grandparents.

Section II of the Family Code refers to the cases of Consuls

and Vice-Consuls as the officials who are legally entitled

to authorize marriages between Cuban citizens residing

abroad. Law 1308 of August 21st, 1976 included the cases of

marriages between Cuban nationals and foreign citizens,

falling under the supervision of the Ministry of Justice and

the Ministry of Foreign Affairs.

The Cuban Family Code recognizes the legal effects of

informal unions subjected to recognition by law and in order

to protect the rights of the children born from such unions.

The family Code makes special reference to the protection of

rights originated by legal marriage despite the fact the

couple is not living together. Article 26 expresses that

husband and wife are obliged to take care of the family and

the education of the children according to socialist principles22.

Registration formalities are required for the validity of

the marriage. Article 64 expresses that the judicial

resolution dictated abroad in relation to marriages

celebrated according to Cuban laws between Cubans or a Cuban

and a foreign citizen or between two foreigners, will be

valid if Cuban Consular authorities give the proper

registration and confirmation it was legally formulated by

the competent authorities.

Interm

arriage and Human Rights Issues in Cuba

A closer analysis of the Cuban legal system denotes a strict

control of the movement of the citizen within the territory

as well as out of the Cuban territory, a power of

surveillance which is exercised by the State through a

number of requirements and formalities to be fulfilled,

22 People’s Tribunals or Tribunales Populares were created by law in order to impart justice under the principles of the Cuban Revolution. There are Chambers which deal with civil and administrative disputes.

including payments which are linked with the declaration of

the period a citizen intends to live abroad. Dual

nationality is not allowed. The situation of the children is

carefully monitored in cases of intermarriage where the

child product of that union is considered a Cuban because of

the effect of the nationality of one of the parents who is a Cuban citizen23.

There exist a variety of cases regarding “disappearances”

and intermarriage, a situation that has generated a first

assumption that all mixed marriages are intended to allow

Cubans to leave their country of birth. A magazine dedicated

to migration issues known as “Correo de Cuba24”, reports an

interesting case of two parents, Mr. and Mrs. Rafael Guardia

Almeida, searching for their son Manuel Ortiz Morando who

was working as a Security officer for the Embassy of Mexico

in Cuba. In 1992 he met Marcela Beltran a student of

journalism in Mexico who was spending her holidays in the

23 For the present study I was able to obtain a testimony of a Cubancitizen who adopted a new citizenship - presently married to a Europeancitizen. Testimonies are hard to obtain as people are reluctant to speakabout migrating. They are reluctant to speak as not to affect thecondition of their relatives who are still living in the island.However, the testimony of this person gave me an insight to thesituation of mixed marriages and the problems they face. This individualinformed me that during the 80s and 90s there was an explosion in thenumber of mixed marriages as many Cubans considered this as a realpossibility to be able to leave the island and change their standards oflife. These persons although reluctant to go back to the island are keento send remittances to their families despite the economic blockade bythe United States against Cuba which has finally generated arepercussion in the cost and modality of the remittances, as well as inrelation to phone to phone communications and visits to the island whichare restricted from the United States.24 Correo de Cuba, Third period 2002.

island. She was the daughter of a person belonging to the

Mexican Foreign Service. He married her and left the

country. Up to date they do not know his whereabouts. 25

On the available of statistics, officials are not able to

provide figures of marriages between Cuban and foreign

citizens but according to Spanish sources, the Spanish

newspaper “El Pais” reported that in 1990 only 15 Spaniards

married Cubans; the number increased up to 670 in 1993 and

to 1190 by 1996. 26.

Different analyses of this “skyrocketing” phenomenon27 are

based on the issue of economic constraints in the island.

Officials tend to disregard these conclusions, as they25 The Cuban Government offers a variety of Government scholarships todifferent countries. There are considerable numbers of foreign studentspresently studying in Cuba, coming from regions such as South andCentral America, and African countries. An average number of fivescholarships are offered to the Government of Sri Lanka per year.26 Media reports affirm that Spain and Italy record between 1000 to 1500marriages per year with Cuban citizens, especially Cuban women. The tendency would be for senior male citizens of those countries to look for “young wives”.27 In 1990 15 mixed marriages between Spanish and Cuban nationalswere registered in the General Consulate of Spain in Havana. In 1993 thenumber increased to 670, and in 2005 it went up to 1.190. In 2006 thereis an average of 150 weddings per month and in 90% of the cases, Cubanbrides are very young women. There is a pattern of “old “men gettingmarried to young women. Many single men are coming to the islandattracted by news or offers of sex and having affairs in exchange ofmoney. Some news refer to cases of deals between Cuban couples -husbands and wives - to allow the wives to enter into a relationship inorder to provide economic relief to the family. Some of the cases haveended in murder when the foreign man wants to marry and take his futurewife away from the island. Recently news have reported the phenomenon ofEuropean women traveling alone in order to find a partner.

relate the foreign marriage fact to the numbers of tourists

visiting the island and the possibility of the local

population to meet people from other countries, a situation

that in some cases may lead to marriage28.

The Government enforces hard regulations to eradicate

prostitution but the perspective of some women differs on

what they perceive as an exercise of their freedom in order

to improve their economic and social condition.

The concept of “jineteras”29 has introduced some interesting

points of discussion. The economic embargo imposed by the

United States is an element that has influenced the social

and economic development in the island. The Mission to Cuba

conducted by the UN Special Rapporteur on Violence against

Women, Dr. Radhika Coomaraswamy, established that:

“The Special Rapporteur was also concerned about women being

held in rehabilitation centres for "behavior modification"

as a result of their involvement in prostitution. As

prostitution is not a crime in Cuba, the use of criminal

28 Not much attention has been given to the case of women who traveledduring the XIX and early XX centuries to Cuba in order to find betterconditions of life. One of these cases is the one related to very poorwomen who came from Galicia, Spain. They came alone and had to endurehard circumstances ending in low paying jobs or as prostitutes. TheDaughters of Galicia Association refers numbers up to 60000 women beingconsidered a “stain in the honour of the Spanish immigrant community”.Information refers to studies made by Cuban Historian Julio C. GonzalesPlagcs.29 The translation in English would be “horse riders” which tends to give themcontrol over the “horse”.

procedure, such as imprisonment, forced labour in

agriculture and restriction of visiting time to a few hours,

violate their rights to due process of law. The Special

Rapporteur had to recognize in the course of her research

that the economic sanctions imposed by the United States of

America against Cuba have a significant impact on the social

and economic situation of Cuban women. The lack of

availability of medicines and pharmaceutical items was

clearly evident in the State hospitals the Special

Rapporteur visited, although the conditions in these

hospitals were exemplary by third world standards. In

addition, in relation to women’s quality of life, women’s

groups presented evidence to the Special Rapporteur of

hardships for women in the home caused by the embargo, and

put forward the argument that the embargo and the hardships

resulted in domestic violence. The counter-argument is that

the situation is not a product of the embargo but of

economic mismanagement by the central Government. However,

the Special Rapporteur is convinced from all that she heard

and saw that the embargo imposed unilaterally by the United

States has a particularly serious negative impact on the

lives of Cuban women and that other United Nations

mechanisms, concerned with economic and social rights,

should investigate the possibility that the United States

embargo actually results in the denial of the economic and

social rights of Cuban women”30.

The report includes findings in the modality of

prostitution.31 “Cuban prostitution today is characterized

by women with professional and vocational education and

careers who are unable to meet basic living costs from their

local currency salaries. Unlike the traditional woman in

prostitution who is considered a social outcast, the

"jineteras" of today predominantly serve foreigners who pay

in hard currency, and are considered "providers" for their

families.

“According to the Chief of the Cuban Revolutionary Police,

prostitution in Cuba is very different in character than in

many countries since it is not an organized phenomenon. In

Pinar del Rio, for example, there exist "casas de cita"

(dating houses) where prostitutes are known to take clients,

but more permanent commercial locations, such as brothels

30 Report of the Special Rapporteur on violence against women, itscauses and consequences, Dr. Radhika Coomaraswamy, submitted inaccordance with Commission on Human Rights Resolution1997/44. 31 Women prostitutes are sentenced by a judge to spend up to four yearsat rehabilitation centres, where they are required to work six to eighthours a day, mostly in the agricultural sector. The length of time theyspend at these centres depends on the degree of risk to society that thewomen are estimated to represent. They are allowed to receive two-hourvisits every 15 days from family and friends, but are not allowed tomove freely outside the facility. (See report)

were said not to exist. Similarly, most women and girls

found in prostitution do not engage in sex work full-time,

but rather in combination with other activities or

employment. At the same time, however, the Special

Rapporteur received information that there are individual

operators who act as mediators between local women and

foreigners, establishing the price for the sexual act and

arranging for a location. It is reported that these

intermediaries take up to 80 per cent of the price that the

client pays for a woman. This is an indication that

prostitution is most likely more organized than government

officials like to think”.

“The Federation of Cuban Women32, an organization which

belongs to the Communist Party, in accordance with its

commitment under the Plan of Action for the follow-up to the

Beijing Conference, has been engaged in discussions with

relevant government authorities, including the Ministry of

Justice, the Ministry of Tourism, the Cuban Institute of

Radio and Television and the Ministry of Culture, to ensure

32 Federacion de Mujeres Cubanas (FMC) (Cuban Women’s Federation-FCW) isthe women’s national umbrella organization, working towards the fullintegration of women in economic, political, social and cultural life inconditions of equal opportunity. FMC collaborates closely withgovernment authorities, such as the Ministries of Labour, Education andHealth. FMC is the national coordinating structure for theimplementation of the Beijing Platform for Action and of the CubanNational Plan of Action for Beijing.

that Cuban women are not promoted as a tourist attraction.

The FCW also realizes that it is important to work with tour

operators to verify that links with foreign countries are

not exploited for sex tourism. The Attorney-General

emphasized the need for the Cuban authorities to review

tourist publicity which depicted healthy and beautiful Cuban

women, which was “inviting people with the wrong

intentions”. The Government informed the Special Rapporteur

that all tour operators engaging in any suspicious

activities were immediately suspended. During her visit to

Cuba, it was reported that the Government undertook an

"energetic cleaning operation" within its tourism industry.

In fact, the managers of all tourism companies associated

with a particular foreign tourist operator called "Cubamor"

became under observation since the tour operator was

organizing the travel of single men to Cuba in order to stay

at a middle-class hotel outside Havana where government

control on contacts with young locals was minimal or non-

existent”.

Katherine Gordy, on the issue of dollarization of the Cuban

economy, brings up an in-depth exploration of the Cuban

revolution approach from the perspective of the people

feeling the financial problems they face in their daily

lives. This analysis represents an interesting perspective

on the link of economic reforms to the phenomenon of

intermarriage, going beyond a racial or nationalist point of

view.

Based on the same topic, a project organized by Yoanka

Navarro Lasalle y Tamara Felisola González, of Oriente

Press, aimed to identify interests among young people. A

number of 45 students of ages 12 to 13, among them 27 girls

and 18 boys were included for the survey. The result

comprehended the consideration of marriage as an event of

crucial importance for girls, specially a marriage with a

man with economic possibilities for their possible future.

They also expressed their dream to become flight attendants

in order to be able to fly, travel and meet foreigners. Boys

expressed their interest to sports, their dream to become

good sportsmen, be able to travel and own vehicles.

There was no indication of intellectual or nationalist

ideals in this focus group. Young people defended their

views on being able to maintain a good standard of life and

wear fashionable clothes as essential for their future. For

the old generation it was considered important to continue

working and to avoid unemployment. They mention pensions are

not enough to survive.

Remittances play a pivotal role in the present economy but

the economic blockade by the United States continue to

impose restrictions and penalties, including sending money

to Cuba, a legal provision that has affected the economy of

many Cuban residents who depend on remittances from their

relatives in the United States. Intermarriage undoubtedly

has a role to play as a factor which involves those who

marry foreigners and leave the country with the families

they leave behind. Sending money contributes to the

reduction of economic problems in the island.