Friday, May 25, 2007

From the Tellechea Digital Archives: An Exchange On Property Claims in Cuba

(The whimsically-titled PropertyProf Blog, edited by Professors Benjamin Barros of Widener University Law School (Hawaii) and Alfred L. Brophy of the University of Alabama Law School, appears to be more concerned with justifying the arbitrary confiscation of private property than with upholding property rights. It was the perfect venue for Professor Eduardo Peñalver, of Cornell University Law School, to showcase his unconditional support of the Hemisphere's oldest piñata and discount the property rights of Cuban exiles while championing the fanthom property "rights" of African-Americans who seek "reparations" for ancestral wrongs as well as those of Native Americans who want their ancient tribal lands returned to them which their ancestors were forced to quit under duress. We have removed the less than decorous swooning of Prof. Brophy over Peñalver's rather lite analysis of the question of property reclamations in post-Castro Cuba, but you can read that as well by visiting the website at the URL at the bottom of this post).

Professor Eduardo Peñalver: 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 [...]

[In response to the feedback that Peñalver solicited from Prof. Brophy]: 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 [Prof. Brophy's] idea of means-testing seems to me to be a good one.

Manuel A. Tellechea: 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.

Professor Peñalver honored us — I suppose that is the word — with a visit on June 6, 2007 between the hours of 9:50:03 AM and 10:05:59 AM; for a total of 15.56 minutes. He found us by googling his own name, a practice which we would be the last to censure. What amazes us is that he spent his entire stay here reading this one post and its corresponding thread, which can easily be read under 2 minutes by a slow reader. I should like to think that the professor spent the surfeit time contemplating the truth of what is said here. It should certainly be rather embarrassing if it took him nearly 16 minutes to read this 800-word post, of which more than half consists of his own words. Yet, despite his intensive reading of it, he left no comment here, proving that discretion is, indeed, the better part of valor.


Vana said...


I was uncertain on how to post this comment, since I lost nothing in Cuba, only a plot at Colon cemetery, but to want restitution for others and not your own, well that's just wrong, even though you well know that if we "ever" return the situation will be quite chaotic if everyone in exile starts claiming what once belonged to them, I say let's start from scratch, (this coming from someone who lost nothing only her birthright) tell me what do you think, am I wrong?

Albert Quiroga said...

"Professor" Peñalver's illogical and typical diatribe is a prime example why the tenure system in our nation's colleges and universities needs to be abolished, and pronto!

As for compensations and reparations: I'm thinking, being that I'm in "putative victim mode" this lovely Tuesday morn, it is time for my family to file a compensation claim against Italy, as no doubt 20 centuries ago someone in our ancestral group was a Roman slave, somewhere.


Granted, property restitution isn't even close to being the primary reason for liberating Cuba, it is, never-the-less, an interesting topic - given the history of the Jews in Nazi Germany among other things.

I feel as though we are forgetting that many Cuban-owned (I'm not talking about American-owned businesses here) industrial properties are still being used for their original purpose after having been illegaly seized by the revolutionary government in 1959 and 1960. Sugar refineries, breweries, shipyards and a host of other industrial sites continue to be used by the Cuban government, in conjunction with foreign companies, some 48 years after they were stolen. My point? These properties are still very much in use and it wouldn't surprise me at all if their actual owners - or their desendants - are dusting off the paperwork. Why not? In many cases, these were family businesses built over the course of decades and stolen at gunpoint. I can't blame a single person who endured that crime for wanting to set things right. Not to mention the fact that those Cubans with industrial claims would most likely return and be perfectly winning to pay sizable private and corporate taxes from the proceeds of their businesses in a bid to bolster the fledgling democratic government that will most likely arise one day in the near future. This will be a much-needed source of revenue and a way to right the horrible wrongs of decades earlier.

Ultra-leftists will no-doubt seize (as they've done in the past) on this as nothing more than appeasing the Cuban-American voting block however, when one takes into consideration the knowledge and experience that would no doubt rush into the Cuban economy once this process begins, we can only imagine how quickly Cuba's new economy will grow, thus helping to build a new stable economy for the masses and attracting new investments which will further aid in the redevelopment of Cuba's destroyed infrastructure.