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Last Updated: 05/06/2016
Stranded migrants, human rights, sovereignty and politics
Cindy Regidor

Law, human rights and migration specialists analyze the case of the Cuban migrants who remained stranded for more than two months in Costa Rica, after Nicaragua refused to grant transit visas, truncating their voyage it to the United States. Politics, sovereignty, the application of legal instruments and the fulfillment of the migrants’ human rights: how are they balanced and prioritized as governments make decisions?

This article was originally published in Spanish by the Costa Rican magazine Firma.

At eleven o’clock in the morning, November 15, 2015 in Peñas Blancas, the frontier region between Nicaragua and Costa Rica, around 2,000 Cubans cross into Nicaragua. Several miles into Nicaragua, they are met with a heavy display of military and police forces, whose goal was to expel them from the Nicaraguan territory. In a matter of minutes, the situation turns violent. Military and police officers confront the migrants while helicopters circle the zone. Tear gas, rubber bullets, physical altercations result in numerous wounded or unconscious Cubans and two fatalities.

The Nicaragua government stated that the Cubans had entered illegally and by force, as a justification for the use of military and police to repel the migrants. The Cubans, for their part, sought to enter Nicaraguan territory only transitionally, for their goal was to pass through the region to reach their final destination: The United States. This is just one of many scenes and events in a very complex case involving the Central American countries, Ecuador, Cuba, the U. S. and approximately 9,000 Cuban migrants, according to calculations made a month after the violent event that took place in Peñas Blancas.

It all starts in Cuba, where thousands of its citizens leave annually for different destinations, primarily the U.S. Since 1966, the U.S. welcomes Cuban migrants and gives them the possibility of applying for the residence card only after a year, as the Cuban Adjustment Act states. The reform of this bill, in 1995, known as the ‘dry feet-wet feet’ policy, is the reason for Cubans to use a new route from their country of origin to the U.S. After the law passed a revision, Cubans who enter by foot are accepted, but the ones who attempt to enter by sea and get caught on the waters between the two countries are sent back to Cuba. Under this condition, migrants have decided to set off on a journey from Havana, where they catch a flight to Ecuador – up until recently this country did not require for Cubans to hold visa. From there, they travel overland to Colombia, from which they depart by sea to Panama. From Panama they travel by land over the Central American Isthmus, until they arrive to Mexico, from where they finally make it to the U.S.

According to many media articles, by the beginning of November 2015, about 2,000 Cubans were left stranded in Panama, in Paso Canoas frontier region. Costa Rican authorities had recently dismantled a gang of smugglers and part of an international trafficking network that had promised the Cubans to take them to the U.S. The Costa Rican government decided to grant transit visas to the Cubans, so they would continue their journey, but Nicaragua closed its borders to them. Thus, around 9,000 Cubans got stranded on their way, from which 6,000 remained in humanitarian shelters in northern Costa Rica for more than two months.

Thousands of Cubans involved in the recent crisis suffered from physical violence, hunger, homelessness, and uncertainty. In the middle of all decisions taken by the governments of each implicated country, the political context and the historical background, many questions arise around the migrants’ human rights fulfilment, in a case considered by the experts as unique.

To have a better understanding of what happened, it is necessary to first identify the category under which the Cuban migrants fit into. For Dr. Miriam Castillo-Estrada, international expert in Human Rights, who worked for several years in different positions for the United Nations system, when talking about human rights in this case, it is necessary to begin by underlining the unequal immigration policy implemented by the U.S. “They refuse to welcome some immigrants, while opening their doors to the Cubans”, she says, when explaining that the Cuban Adjustment Act is a political instrument used by the U.S., along with the economic blockade imposed to the island, in an attempt to “crush the Cuban revolution”. Under this premise, Estrada-Castillo states that, the Cubans who are migrating, are doing so, not because of political repression, but due to economic reasons. They go after the American dream, which is a lie, she adds. “They are not fleeing war, they are not escaping from the dictatorship, the torture nor the monstrosity… they leave for the U.S. thinking that the key to happiness is acquiring the American citizenship”, she says. At the same time, she highlights a series of human rights violations the Cubans face, for they don’t have secured jobs, education or healthcare and, on top, they also face discrimination and xenophobia once they enter the U.S. From her perspective, the Cuban migrants don’t qualify as refugees and, what happened to them in December 2015 cannot be called a migratory crisis.

Mihir Kanade, Director of the Human Rights Center at the United Nations mandated University for Peace, has a different interpretation on the subject. For him, this group qualifies as mixed migration flux, which includes people who “are genuinely fleeing persecution back home, and can be branded as refugees, but not all them are refugees, there are definitely some people in that group who are fleeing for better economic opportunities in the U.S.” and explains that the complexity of the case resides in that the Cuban Adjustment Act “does not necessarily distinguish between an economic migrant and a refugee from Cuba”, and he agrees with Estrada-Castillo in that this act is basically a political tool of the U.S., with both positive and negative consequences. “From a human rights perspective, of course, it’s a good thing for the free migration. Any sort of migration regulations or regimes, these are not necessarily a good thing from a human rights perspective. It’s good for the Cuban people who are fleeing, however, there is also a big amount of discrimination against non-Cubans, because only Cubans get those benefits and non-Cubans who are in a much dire condition, let’s take the case of Central America, like a person in El Salvador or in Honduras, today is probably in a much worse and precarious situation than a Cuban migrant, but they don’t get that benefit. For the Cuban migrants, of course it is a great thing, because they have the opportunity to get a higher level of human rights protection in the U.S. as compared to Cuba. The flawed side is that other people from other parts of the world, like Syria and Afghanistan, don’t get that kind of benefits”. Migration expert Martha Cranshaw, who is also coordinator for the NGO Nicaraguan Migrant Network, adds to the discussion that this is an outdated law. “This is an unsuited law, it belongs to a reality that no longer exists today. There are other conditions in the relationship between the U.S. and Cuba, and, besides, a significant amount of this massive migratory flux has its origins in economic reasons, more than those of a political context. Their conditions, decisions and political profile do not seem to be the same they were in the 60s”, she notes.

The experts have different opinions on the role each country played in the situation. “I don’t understand Costa Rica’s story, why call the rest of the countries? Costa Rica could have easily said to the Cubans: ‘You can go back. You are not dying, nobody is trying to kill you, nobody is torturing you, you will not be shot, what are you doing here?’” states Estrada-Castillo, while Kanade argues that “if there is a guarantee from the U.S. that these people would be taken in, the right thing is to grant a transit visa. I think it’s wrong to deny a transit visa as long as the Cuban Adjustment Act continues. Having said that, it is very much within the solemn act of all countries in Central America to reject a transit visa. There is nothing on Human Rights Law that requires them to grant a transit visa”. Cranshaw highlights the humanitarian actions of the governments that tried to “look after and protect this population traveling to the U.S. by procuring them the best conditions, so that they didn’t fall into the hands of human traffickers. It is important to acknowledge that the established procedures between Mexico, Guatemala, El Salvador, Honduras, Costa Rica and the United States were guaranteeing the human rights of that population”.

A central matter within this subject is that this massive influx of Cubans was not unexpected by the Central American governments. Cranshaw revealed that “the migration of Cubans ant the Cuban presence concentrating in Panama and Costa Rica was known more than a year ago. During several meetings of the Regional Conference on Migration the in crescendo process was noticed. The crisis was seen coming, though maybe the dimensions were unknown, there were warning signals.” This is a revealing fact, for it brings to the table various questions: Why the governments did not take decisions in advance? Why was there a lack of communication between states to prevent the crisis from happening?

The decision of the Nicaraguan government to close its borders to Cuban migrants in November 2015 was one of the main highlights of the recent crisis. The violent confrontation between the Nicaraguan armed forces and the Cubans determined to enter the country, qualifies as a clear violation of human rights, says Cranshaw. “Not only did they not let the Cubans in, but there was use of military force, people were beaten and killed”, she recalls.

But, does the denial of passage also constitutes a violation of human rights? Kanade, who interprets the decision of Nicaragua as a political one in its eagerness to align itself with the Cuban government, affirms that it can be considered a human rights violations taking into account whether the migrants, being sent back to their country of origin, would face persecution. “There could be situations where it might amount to a human right violation. And that’s why this case became so complicated, because in Refugee Law there is a concept called ‘Refugee Sur Place’. A traditional refugee is someone who is fleeing persecution, but in this case there might be some migrants who are not fleeing persecution, but might actually be persecuted if they are thrown back, so in such circumstances, it is absolutely essential for countries such as Costa Rica, Nicaragua, to make sure that these people are not forced to go back to Cuba”. He adds that Nicaragua’s refusal to grant transit visas does not constitute a violation in International Law, however, “This is not to say that it’s the right thing to do”. “On the international law, as it exists, Nicaragua is entirely in its right to deny a transit visa because there is no international law obligation, but the fact that there is no international obligation is a problem”, Kanade points out.

In this situation, the argument of state sovereignty and security also comes into play, which Nicaragua claimed at the time to justify the use of force and the act of closing the borders to Cubans. Estrada -Castillo states that "the government of Nicaragua handled it very well. I applauded the government of Nicaragua. It's a matter of principles", and affirms that "Nicaragua exercised its sovereignty and showed the world that, at least, there are still some places where ethics exists. [Nicaragua said] ‘hey! Stop the drama about these poor people and about human rights, the truth is this… I am a sovereign country and I have my right. These people are not migrants nor refugees. They are not fleeing murder, or the possibility of genocide, nor war crimes, therefore, they won’t pass, stop!’. [Nicaragua] not only did it based on ethics and logic, it acted in its exercise of sovereignty, but it also acted based on legal reasoning, because it did not come up with a solution by violating its constitution”, argues Estrada-Castillo.

For Cranshaw, the argument of sovereignty and security was “excessive”. On the other hand, she also takes into consideration that Nicaragua, as a state, “has the right to reject a population which has knocked on its door at the airport or any of its borders”, nonetheless, she claims that “what’s regrettable is that Nicaragua violated the Cubans’ human rights by making use of force”.

The thousands of Cubans who were left stranded, spent around two months in Costa Rica after Nicaragua refused to grant them with transit visas, so that they could continue their journey to the U.S. Thus, Costa Rica had to assist them and look for a prompt solution. The humanitarian assistance performed by the Costa Rican government is praised by Kanade, and so he highlights how a resolution was founded. The first group of Cubans left for the U.S. in January 2016, in a pilot plan agreed between Panama, El Salvador, Guatemala, Honduras, Mexico, Costa Rica and the International Organization for Migration. According to media articles, the Cuban migrants flew from Costa Rica to El Salvador and, from there, they took buses to get to Mexico.

“The most obvious way to solve this humanitarian crisis would have been for Nicaragua to give the transit visas. Since it did not give the transit visas because of political reasons, it was a big management issue for Costa Rica to handle because it couldn’t and didn’t want to keep this massive flood of migrants in Liberia. And so I think Costa Rica managed it very well and I think the amount of time that Costa Rica took in terms of getting the agreement through in collaboration with the other transit countries and the U.S. is actually very admirable, because these things don’t happen so quickly. People are stranded for many, many years. Migrants have been stranded in Ukraine, in Ethiopia, in Uganda for a long, long time. So I think the management by Costa Rica, in this case, has been really extraordinary, and also the other transit countries, and I think even the U.S. for that matter”, says the expert, at the same time that he draws attention to a very relevant void in International Law: “How do you deal with stranded migrants? There is no concept of stranded migrants on International Law, which means that there is no protection for stranded migrants, there is no regime specifically for that”. For Cranshaw, the logic of formally identifying the kinds of migrants should be secondary, for the priority when attending mobile populations should be “to make sure that these people don’t die, it’s about saving lives first. After that, you can start the process to better understand which ones are refugees, which ones are migrant workers or asylum seekers, or whether they are migratory flux of family integration… I think that is a lesson learned by all the governments”.

Precisely, there are many lessons these unique case has brought, regarding the law, sovereignty and politics, as well as regarding human rights. Estrada-Castillo analyzes the case, mainly based on the historical background and the political context as the main causes of the issue, and concludes that the level of importance given to human rights is highly relative. “It is as relative as the level of economic or political interest” the involved states have in a particular situation, she concludes. Kanade also estimates that “political interests will continue to influence the application of human rights and suggests that the implicated countries should have a more humanitarian approach. “My suggestion to all the countries is a more humane approach, I think that Nicaragua, in particular, needs to adopt a more humane approach. just because it’s not required by international law to act in a particular manner (for instance, providing transit visas), it doesn’t mean (that not providing them) it’s the right thing to do”. Cranshaw agrees, she thinks that “on top of migration norms or laws, there must be the Universal Declaration of Human Rights”, and, beyond, she provides a general analysis of what’s currently going on in the world: “The entire humanity has to realize that we are facing the presence of migration flows in a never seen magnitude. The situation with the Cubans needs a different understanding so that human kind comprehends what is going on worldwide. This a very critical moment. This crisis is bigger than a problem of procedures, it’s a heart crisis, it’s the crisis of our capacity, as human beings, to be sensitive to the problems of other human beings”, she concludes.

Cindy Regidor is a Nicaraguan journalist and television host with seven years of experience in print, broadcast and digital media. Regidor has worked in the most important TV station, newspaper and news site in her country, focusing and covering topics such as politics, environmental and social issues. She currently pursues her Masters Degree in Media, Peace and Conflict Studies at the United Nations- mandated University for Peace in Costa Rica.