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Garcia dilemma

From the outset let me state that I believe that Raul Garcia should not be allowed to roam the streets of Barbados and frankly should be in a holding facility which does not require an additional burden on my tax dollars.

This is not an emotional statement but is based on the following reasons: 1) He is a convicted criminal; 2) he has no connection with Barbados either by birth, descent, naturalisation, association, inclination or otherwise; 3) the persons he may have had any contact with in this fair land would also be involved in the drug trade; 4) we are not sure of his identity and therefore he poses a risk to national security; and 5) he is residing in this country illegally and therefore like any other illegal alien is not entitled to remain. That being said, a toothbrush and one hour of exercise is uncalled for.

The United Nations Universal Declaration of Human Rights attempts to codify the inalienable rights of all humans and provides amongst other things that everyone is entitled to the right to a nationality (Article 15), the right to freedom of movement and residence within the borders of each state and to leave any country and return to his own (Article 13). Nationality has been defined in the case of Castillo-Petruzzi et al v Peru, IACHR No. 52 of 2009, as “the political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State,” which affirmed the earlier statement of the Nottebohm Case (Liechtenstein v Guatemala) 1955 I.C.J. 4, to the effect that “nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments ,together with the existence of reciprocal rights and duties.”

The problem with Garcia is that his country of birth (Cuba) has automatically revoked his citizenship, his country of residence (USA) does not want him back and the country from which he arrived and has the most tenuous connection (Columbia, home to the cartels) doesn’t want him either. Essentially, Garcia is effectively what we would call a stateless person. Article 1 of the UN Convention Relating to the Status of Stateless Persons to which Barbados succeeded on March 6, 1972, defines such a person as one “who is not considered as a national by any State under the operation of its law.”

The Convention however excludes its operation in relation “to persons with respect to whom there are serious reasons for considering that: (b) they have committed a serious non-political crime outside their country of residence prior to their admission to that country”. A conviction I would submit provides incontrovertible proof of the commission of such a crime and a good argument against the applicability of the Convention in relation to this particular individual. In addition, the provisions of the Convention speak to “persons lawfully in [a State’s] territory” and therefore would not apply to an illegal alien. Article 26 of the Convention relating to freedom of movement is “subject to any regulations applicable to aliens generally in the same circumstances”.

Illegal aliens, who have overstayed their welcome and are apprehended, are under the jurisdiction of the Chief Immigration Officer and are generally held in a holding facility until arrangements for their deportation can be made. There can therefore be no charges of discrimination against the government for keeping Garcia where he is. Article 31 also speaks to the non-expulsion of stateless persons who are lawfully within the jurisdiction and therefore Garcia could be expelled without any breach of our international obligations.

One always wishes to offer practical solutions to any dilemma and in that vein I would direct Garcia and his advisors, legal or otherwise to invoke Article 31 (3) of the Convention and request a reasonable period for him to seek legal admission to another country bearing in mind that the right is reserved to the state to “apply during that period such internal measures as they may deem necessary.”

The office of the UN High Commissioner for Refugees is created by the Convention for the Reduction of Statelessness and not the Convention Relating to the Status of Stateless Persons, nevertheless Garcia as a citizen of the world (or the Government of Barbados in desperation) can invoke its assistance and the UNHCR website indicates that they are more than happy to “work with governments to prevent statelessness… [and] to resolve those cases that do occur.” If all else fails, I know a man with a boat for sale.

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