Analysis: Cuba and the clamor for claims

José Pallí explores the possible ways in which the two sides could begin moving towards resolving claims in the immediate future, under the Cuban legal system

Palli column headBy José M. Pallí, esq.

When those Cubans most affected by the early revolutionary laws — especially by the laws implementing urban reform — and by the consequences of going into exile in other lands ask me to help them reclaim the properties they left behind in Cuba (and this happens to me often), my answer is that such claims will have to be sorted out in Cuba and under the Cuban laws in effect at the time the claim is made.

Maybe it is time to explore the possible ways in which we could begin moving in the direction of resolving these kinds of issues in the immediate future, under the Cuban legal system and before Cuban courts or institutions.

I.- The certified claims

This is a topic, I confess, to which I have seldom dedicated time, perhaps because I have never lived or suffered in close quarters the experiences of American families whose Cuban property was taken over by the revolution.

Cuba has negotiated with all other countries whose nationals saw their interests expropriated by the Cuban Revolution, a negotiation that has never taken place between Cuba and the United States, in my humble opinion due to lack of political will from both sides, but especially from an American side which remains conditioned by the role Cuba plays in its domestic electoral politics.

At a lawyers’ conference in 2002 in Havana I had, during one of the coffee breaks, a personal encounter and exchange of opinions that proved to be extremely helpful to me and my views on the claims topic. Dra. Olga Miranda Bravo, counsel for Cuba’s Foreign Relations Ministry (MINREX) approached me and told me: “Pallí, what you said during the first session of the conference — about Cuba’s unwillingness to negotiate with the United States and with American nationals whose properties where taken over by the Revolution — is utter nonsense, and I can prove that to you simply by showing you a number of letters and documents exchanged over the years between our Foreign Ministry and your Department of State”. All I had done was repeat publicly what I had been told in Washington by people close to the Foreign Claims Settlement Commission, the instrumentality of the federal government of the United States that certified those claims. Thanks to Dra. Miranda’s rebuttal, I learned about the Cuban view regarding the topic of this paper. I must add that my interest in the topic first declined as a result of her comments, since that Cuban view clashed head-on with the views — or myth mania — of most people in Miami, where I live.

That is why, and even understanding that both sides need to find the political will to resolve this issue, it is time to set aside absurd narratives — like the one according to which only now, after the announcements made by both Cuba and the United States on Dec. 17, 2014, is Cuba even willing to discuss these matters. That is simply not true, and the evidence points to Cuba’s longstanding disposition to negotiate with the United States as equal parties (as Cuba did, timely, with so many other countries), and even directly about the individual expropriated American entities. I would like to believe that those who still insist in making this argument — some of them U.S. federal government employees who worked on these matters — do not act in bad faith, but rather are victims themselves of the narratives and tall tales that have turned Miami into the capital of the “New Latin American Novel” fad, and that — sadly — too often end up in collective myth manias.

A recent paper written by my learned colleague Matías Travieso Díaz, Resolving U.S. Expropriation Claims against Cuba: a very modest proposal, describes a series of sensible, balanced, practical and non-ideological steps aimed at resolving the issues related to the certified claims facilitating the removal of the coercive measures the United States still imposes on Cuba. Matías’ paper shows that the resources may well be at hand to compensate a good portion of those claims, if both sides are willing to seek and find a political solution to these issues.

II.- Those dispossessed by the revolutionary laws

Matías Travieso’s paper asserts that — beyond the case of those claims against Cuba certified by the United States by way of its Foreign Claims Settlement Commission (in a program that was initially closed in 1972) — the U.S. legal system does not encompass under its protection other persons or individuals whose assets or interests were expropriated by the Cuban Revolution. Or, to phrase this in a different way, the claims of those who were not U.S. citizens when they were dispossessed is not a bilateral matter to be resolved between Cuba and the Unites States. These people’s claims should be dealt with separately, and may well be seen and treated by Cuba as a domestic political and juridical (legal) matter. My purpose here is to try to discern which could be (or even should be, in my humble opinion) the treatment Cuba gives, domestically and through its own laws and courts of law, to these “non-certified” claims.

The treatment Cuba gives, by means of Law number 989 of Dec. 5, 1961, to the property rights of those Cuban citizens who definitely abandon the island and establish themselves in a foreign country, entails a confiscation of said property rights — the way I read it, Law 989 penalized the abandonment — even if the confiscation was based on grounds of public necessity that the property taken was meant to satisfy, since the ratio legis of this statute points to the need to reassign those property rights to other natural and juridical persons, or use them in social and public interest.

That treatment has changed, especially with regard to the rights over the housing units of those who decide to live away from Cuba, due to the process of adjustments to the Cuban social model the authorities have undertaken over the past few years.

That same process of adjustment should lead to an evolution in the Cuban legal system that could bring it closer, to some extent, to the expectations as to what is just and equitable for those who in the past saw their properties confiscated because they abandoned them. Those expectations, together with the will and the common interest of all Cubans to find, through the implementation of public policies, the road to a consensus upon which the future Cuba is to be built, should play a role in what ought to be, essentially, a political decision.

What could be the nature of such a political decision? Maybe to afford those persons who were dispossessed of their rights by the Cuban Revolution the opportunity to be heard before a Cuban tribunal, reviewing and questioning the file from the procedure whereby their rights were confiscated, whether applying the Cuban laws in force at the time the property was confiscated, or else the Cuban laws applicable at the time in the future when the claimant appears before a Cuban court seeking reparation.

The one thing that, in my opinion, is concrete and certain, is that the solution for these cases should be sought within the Cuban legal system and through Cuba’s courts of law, after that Cuban legal system evolves as a result of the ongoing process of adjustment to the Cuban social model, an adjustment and an evolution that, ideally, should result from a political decision reached through the participation of all Cubans, and only Cubans.

III.- The victims of the “Blobargo”

A similar problem is posed by the claims the Cuban authorities make on account of the huge damages generated and accumulated over decades by the restrictive and coercive policies the United States has maintained against Cuba, which Cuba defines as an economic blockade and we in the United States call an embargo (a colleague of mine coined the word “blobargo” to avoid the recurrent debates over what it really is).

Cuba, since 1992, yearly presents before the United Nations’ General Assembly a “Resolution Condemning the Blockade”, attaching to it an estimate of the damages U.S. sanctions have inflicted on Cuba and upon the Cuban people. Cuba updates its estimate every year, and every year the Cuban resolution receives the favorable and almost unanimous vote of the Assembly members; in 2015, only the United States and Israel voted against Cuba’s motion.

Cuba has also sought, before its own courts in the island, the reparation of those damages, in a couple of lawsuits on behalf of the Cuban People against the government of the United States of America which resulted in a couple of judgments issued by the Tribunal Provincial Popular de la Ciudad de La Habana (one in 1999 and the other one in 2000) for a total amount of more than $300 billion.

Some private parties in the United States have also obtained judgments from U.S. courts as a remedy for the violation of the defendants’ human rights by Cuba — judgments held as valid, especially by the courts in the State of Florida, without hearing the Cuban side (because Cuba has refused to defend itself).

It seems unsound to try to match or assimilate in search of compensation (for offsetting purposes) the damages suffered by the Cuban people under the many years of U.S. sanctions — which are still in force — with the certified claims held by the Americans who were expropriated during the early revolutionary period. We are talking apples and oranges here …

On the other hand, Cuba has given a legislative or statutory response to the U.S. claims of compensation by enacting its Law number 80 of 1996. This Cuban law, in its articles 3 and 4, dictates that the compensation claims of those Americans whose property was nationalized must be examined together with the compensation or indemnity Cuba and the Cuban people are entitled to due to the damages caused by the blockade as well as by a large number of other aggressions of every kind, holding the United States of America responsible for the consequences of those actions. And the aggressions this law refers to are not limited to actions officially undertaken by successive U.S. governments, but include crimes and aggressions by individuals acting from the United States (or under its protection), since according to the Cuban authorities the United States is accepting this responsibility by enacting laws like Helms-Burton and pretending they have extraterritorial reach.

There is no question that said Law 80 enacted by Cuba in 1996 is part and parcel of the laws applicable to all the different types of claims mentioned in this humble essay of mine, with a significant advantage over other laws engendered in the United States for purposes of domestic electoral advantage: Cuban Law 80 of 1996 does not claim any extraterritorial reach, since it does not need one (as long as it is used to protect assets physically located in Cuba from American claimants of any sort).

Article 12 of Law 80 of 1996 authorizes Cuba’s Ministry of Justice to create and organize Claims Commissions (Comisiones de Reclamaciones) before which the “Cuban victims of American imperialism against Cuba since January 1, 1959” can bring up their cases. These commissions may become part of the solution to the problems around the reciprocal claims.

IV.- The applicable law

More than 20 years ago, I read for the first time an article on the certified claims. It was a piece written by Juan C. Consuegra-Barquin: The Present Status Quo of Property Rights in Cuba.

I read it for practical reasons — back then, as is the case today, there was a great deal of effervescence on our side of the Florida Straits about Cuba’s future, with many of us anticipating the changes that would take place in Cuba on account of the demise of the Soviet empire (some even referred to that period in our history as “Castro’s Final Hour”).

I was then working on promoting and providing “title insurance” (a financial product or service that only existed in the United States) to those who ventured into real estate investments beyond our borders. Friends in our title insurance industry asked me this question: What do you think would happen if we were to issue a title insurance policy to someone who purchases real property in Cuba and then the past owner of that property — under the laws in effect before the Cuban Revolution — shows up and claims title to it from our insured party?

The applicable law, Mr. Consuegra says, can only be the law of Cuba (in a footnote the author even shreds to pieces the then recently passed Cuban Liberty Act, S. 381 H.R. 927, intelligently questioning its scope and consequences).

Mr. Consuegra’s paper also deals with the legal institution of usucapión or adverse possession, which works to the benefit of those who have been in possession of property situated in Cuba, and with the question whether the Cuban Revolution stands as a valid source of law. In both cases, the author concludes that the time already passed meant that those in possession in Cuba had by then acquired title to what they possessed, and that the laws passed by the Revolution were perceived, worldwide, as valid. And that was more than 20 years ago…

So, based on that applicable law, my answer to the “informal” consultation by the title insurance industry was that there was no much greater a risk in issuing policies subject to Cuba’s laws than there was, for example, in doing the same in Mexico under Mexican law, as we were already doing. But of course, there were other types of impediments. The Cuban land title recording system, which today has been substantially revamped, was not, in the mid-1990s, an efficient tool to do an exhaustive search of the chain of titles to a piece of real property. And the “blobargo” stopped (and still stops) U.S. title insurance companies (and their subsidiaries) from entering into Cuba-related transactions.

Beginning with its Law of Constitutional Reform of Jan. 10, 1959, Cuba has passed no less than 27 laws and 130 other regulatory norms dealing with nationalization and confiscation of property, the first one being Law 78 of Feb. 13, 1959.

In many of those more than 150 Cuban laws and regulatory norms we can find the mechanisms or procedures, judicial and/or administrative, pursuant to which the Cuban authorities had to act when they meant to confiscate or expropriate the rights of both, natural and juridical persons such as corporations. We can assume that those mechanisms or procedures generated individual files for each case of confiscation or expropriation.

And even if the Cuban procedural laws presently in effect may not contemplate the review of those cases/files, there is no obstacle (in the interest of a Cuban society where no one feels that his or her rights have been unjustly excluded or ignored) to its future evolution in a way that it becomes open to the expectations of all claimants to be heard, always under Cuban laws and within the parameters set by the Cuban legal system.

So why not give it a try?

It is up to us to show the way towards reengagement and, eventually, reconciliation among Cubans. We all need to stop being “anti” something or another, and become “anti-anti”.

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