Saturday, December 9, 2006

Cuban Property Claims

I participated in a conference yesterday at Yale on the political future of Cuba.  Panels covered the situation in Cuba today as well as the likely future of US policy towards Cuba after Castro's death.  I spoke on the property disputes that might surface in a transitional Cuban society and the possible responses of a post-Castro government. 

About 6000 people who were US citizens at the time of Castro's ascension to power in 1959 have registered claims with the U.S. government for property they lost during the first years of the Cuban revolution.  Their claims have an estimated value of $8 billion.  In addition, there are hundreds of thousands of Cubans who lost property under the Castro government.  Large agricultural land-owners had their properties nationalized under a series of agrarian reforms.  Landlords lost property occupied by tenants, who were given the right to purchase the properties at low, fixed prices.  Mortgages were canceled.  And anyone who fled the island had their property confiscated and redistributed.  By the end of 1968, virtually all private enterprise on the island had been confiscated, including 57,000 small and medium-sized, and mostly Cuban-owned, businesses.  Estimates of the possible property claims by Cuban-Americans range from $25 billion up to nearly $100 billion, although the latter figure strikes me as wildly inflated (it's several times larger than the Cuban GDP).

Many Cuban-Americans are waiting for full property restitution, a hope that has only been encouraged by the experience of some of the former Communist states of Eastern Europe.  Germany, for example, embarked on an ambitious program of property restitution (that is, the actual restoration of possession of expropriated properties -- not simply compensation) upon its reunification.  Restitution was also implemented in Bulgaria, the Baltics and the Czech Republic.  With news of Fidel's illness, some Cubans in Miami are dusting off their files and getting ready to press their claims with the hope of reclaiming ownership of property they lost. 

While I can sympathize with the desire to reclaim lost property -- my family lost a modest but wonderful home in Centro Habana and a small weekend farm outside Havana when they fled Cuba in the early 1960s after my father did a stint in a Cuban jail for supposedly possessing anti-Castro propaganda --   but the attempt to actually press these claims would seem to me to be sheer folly.  The fact is, nearly 50 years have passed since my family last lived in that home in Havana.  The people in whose care we left the home traded it with another family about a decade ago, and who knows how many times it's changed hands since then.  It's someone else's home now, and in the meantime, my family -- although they arrived with nothing (one hand in front and one hand behind, as the Cuban saying goes) has done pretty well in the United States.  It's not at all clear to me how justice would be done by my dispossessing someone who has suffered fifty years of tyranny and diminished economic opportunity under a one-party Communist state.  And, of course, there's the question of the propriety of using the 1959 allocation of property as a baseline for restitution, since that allocation was itself influenced by the Batista government -- no model of democracy and respect for human rights -- years of North American intervention in the Cuban economy and political system, and centuries of slavery.

More pragmatically, if even half of all the Cuban-Americans who lost property return to Cuba and file claims to have property restored, virtually all the property on the island will be locked up in litigation for years  to come, with predictable consequences for the ability of a post-Castro government to attract foreign investment and grow the economy.  After all, adjudicating these claims will be no small administrative task, particularly since the Cuban government has failed to update the property records for the last 50 years.

So far-fetched is the idea of full property restitution (or even compensation) in a post-Castro Cuba, it strikes me that any attempt to implement such a scheme is either hopelessly foolish or outright dishonest.  The resources simply don't exist to accomplish the task.

The question of how to heal the wounds between Cuba and the exile community is a real one.  Restitution of property, however, is not the answer.   It will just create new wounds and leave a post-Castro Cuba on a dubious footing for future development.

This is not to say that restitution for long past property harms is never appropriate.  I have some sympathy with Native American land claims and with claims by African Americans for reparations for slavery.  But I think that sympathy is due in large part to the fact that those communities continue to suffer the consequences of their losses in a way that is less true of Cuban-Americans, who are generally much better off than the people currently occupying the property they formerly owned.  It would be really interesting to hear Prof. Brophy's thoughts on this, since he's written extensively on the issue of reparations.

Eduardo Penalver

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Thanks for the invitation to comment. Of course, I agree with everything you say. As I was reading your essay, I was thinking how difficult restitution is in any context. Then I was pleasently surprised to see you invite a comment.

Couple of things here in thinking about reparations of any sort and on trying to establish the priorities for claimants who have suffered. As you point out, there simply isn't enough money to repair (or even begin to repair) all of the past injustices. And we want to avoid, to the extent possible, doing further injustice.

One the claimant side, I wonder is there some group (or members of a group) that continues to suffer a harm? If so, we may want to put those folks at the top of the list to receive some form of compensation. I can envision that there are some folks whose families lost what they had in the early 1960s and, for various reasons, have not begun to recover. There may be some reason to think about a needs test for claimants. (This is, in part, what the Great Society did--it looked to raise people who'd had the smallest share of the bounty of our country.)

I think we'd also want to look to the side of the people who might be asked to disgorge. I know much less than I'd like about property confiscation in Cuba. If the government confiscated property and then kept it, seems as though there's a stronger moral case for restitution than if it was dispersed into the hands of other people who suffered under the shadow of communism.

Particularly if we're thinking about some form of legislative reparations, seems to me that one would want to think hard about how to purchase the most amount of benefit from the limited resources that are available--how can we alleviate the most amount of suffering, for instance.

Then there's the symbolic efforts in this moment of transitional justice. Are there other actions that can be taken, memorials to those who've suffered? Stories of suffering and, perhaps, triumph in the face of oppression, that can be preserved by truth commissions?

Much to think about here--thanks for your wonderfully thoughtful post. It's one of my favorites of all time on a law blog.

Posted by: Al Brophy | Dec 9, 2006 10:55:34 AM

Thanks for sharing your thoughts, and for your kind words. I think you're right on by pointing towards state property as the proper source of compensation, and I couldn't agree more with you about the importance of symbolic measures. As it turns out, most industrial property confiscated by the state remains in state hands. Some agricultural lands were redistributed to tenants and squatters, and roughly 20% is currently privately owned. Of the remaining nationalized farm land, most of it was farmed in state farms on the Soviet model until the early 1990s, when Cuba, confronted with the collapse of My guess is that the most recent arrivals from Cuba that bill beits eastern bloc trade partners, converted its state farms into ostensibly autonomous cooperatives called UBPCs. Farmers work the UBPC land collectively in a quasi-private coop form, with a usufruct right to the land. But the state still exercises substantial control.

Another wrinkle, which I did not mention in the initial post, was the corruption of the pre-Castro Batista government and, of course, Cuba's own history of slavery, racism, and extremely unevenly distributed wealth. All of this points, in my view, to the dubious status of the property distribution on the eve of the 1959 revolution as the proper baseline for any restitution program.

I'm not sure which groups remain worse off as a result of the expropriations. My guess is that those who are the most recent arrivals from Cuba fit that bill better than those of us whose families left in the early 1960s. But your idea of means-testing seems to me to be a good one.

Posted by: Eduardo Penalver | Dec 9, 2006 1:43:42 PM

I meant to add that roughly 90% of the residential property is privately owned by its occupants.

Posted by: Eduardo Penalver | Dec 9, 2006 1:52:15 PM

So Professor Peñalver doesn't want his family's property back, or so he says, and that's alright with me, although I wonder whether his relatives share his point of view. Perhaps he holds this point of view precisely because his relatives don't share it.

The professor also states that while he does not support the restitution of confiscated properties to their legitimate owners in Cuba, he does support "somewhat" reparations to the victims of U.S. slavery. I do too. If you can find any living former slaves, let us by all means compensate them. But, of course, there are no living former slaves and what the professor supports is another welfare program, not reparations. And what other historical injustices does he want Americans to "repair?" Of course, he supports "somewhat" compensation for American Indians dispossessed from their lands. I thought that was what the casino monopoly was all about. In short, he wants to compensate everyone for their stolen property and their stolen labor except Cuban exiles.

The professor refers to "the corruption of the pre-Castro Batista government and, of course, Cuba's own history of slavery, racism, and extremely unevenly distributed wealth" to oppose the return of confiscated properties to their legal owners in Cuba. However "corrupt" the Batista regime may have been, it never confiscated or expropriated anyone's property. Even Castro's family enjoyed their vast landholdings without any arbitrary measures being taken against their properties by Batista. As for wealth in pre-Castro Cuba, it was never as "extremely unevenly distributed" as wealth is in the U.S. today. And the U.S. also has its history of slavery and racism, far worse than ours, because institutionalized racism, Jim Crow and segregation were never practiced in pre-Castro Cuba.

So, I suppose, since contemporary America more than meets the criteria for expropriations set forth by Professor Peñalver, that he must also favor such violations of the Rule of Law here.

Posted by: Manuel A. Tellechea | Feb 28, 2007 12:55:15 AM

Your an idiot

Posted by: Arturo Cintron | Apr 11, 2014 4:45:43 PM

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