This Day in International Law: November 25

By: Sara Birkenthal, J.D. Candidate, University of California, Berkeley


On November 25, 1999, a five-year old Cuban boy, Elián González, was rescued by fishermen and turned over to the United States Coast Guard while floating in an inner tube off the Florida coast. He’d just been through the traumatizing experience of watching his mother Elizabet drown when the overcrowded boat smuggling them from Cuba capsized.

The bilateral relationship between the U.S. and Cuba has long been tumultuous. These tensions can be traced to the Cold War. In 1959, Fidel Castro and a group of revolutionaries seized power in Havana, overthrowing Fulgencio Batista. The U.S. recognized Castro’s government, despite reservations about its Communist system. However, as the Castro government hiked up taxes on U.S. properties and increased trade with the Soviet Union, the U.S. initially responded by slashing Cuban sugar imports and ultimately expanded to a full economic embargo.

In 1961, the U.S. cut diplomatic ties with Cuba and began pursuing clandestine operations to overthrow the Castro regime. The Bay of Pigs invasion in 1961, a failed attempt supported by the CIA to topple the government, fueled mistrust, leading Cuba to allow the Soviet Union to build a missile base on the island. This led the U.S. to impose a naval quarantine around the island. The Cuban Missile Crisis came to a close with an agreement that the sites would be disassembled in exchange for the U.S. not invading Cuba. Isolation continued to characterize U.S. policy toward Cuba, even after the fall of the Soviet Union.

However, under international law, when Elián arrived in U.S. territory, U.S. authorities were obligated to restore him to his father, Juan Miguel González, who did not consent to Elián’s mother taking their son on the voyage,— even if that meant returning him to Castro’s communist society. The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) seeks to guarantee cooperation among many nations, and ultimately all nations, to expeditiously return the child to the habitual residence for custodial consideration. The Convention requires that both the “home” state and the foreign state be signatories of the Convention at the time of the abduction, the Convention was not triggered in the Elián González case because though the U.S. was a signatory, Cuba was not.

Therefore, in the absence of an international agreement to resolve the issue, the U.S. turned to its own immigration laws. First, Elián was placed with his family in Miami, who initially refused to hand him over. Ultimately, after Castro organized mass demonstrations, federal agents seized Elián from his family, and he was reunited with his father.

The case was a flashpoint between the U.S. and Cuba. With the recent restoration of diplomatic ties between the two countries, it remains to be seen whether they can put aside their long history of hostility and achieve détente.

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