Free! Analysis: Cuba claims — to advise or not to advise, part 2

Regarding U.S. claims that are still unresolved, the easiest path seems to be the opening of direct negotiations between the two countries. That said, I would not hesitate, if I were advising a U.S. national to approach Cuban authorities directly, on an individual basis.

Palli column headBy José M. Pallí, esq.

In the first of this series of little essays on Cuban claims, I tried to establish the need to focus on Cuba’s present laws in order to assess the possibilities of success a claimant may have. That included both claimants who were U.S. nationals at the time of the nationalization of their Cuban assets, and those who were not.

I may have already lost those readers who believe there is no need to focus on Cuba’s present laws, since people like themselves will eventually change those laws into ones that are more of their own liking. For those of you who do not want to place your bets on the success of those future legislators (some of which are not even Cuban), what follows may make some sense.

It must be pointed out that, from Cuba’s perspective, there is a significant difference between the claims of those who were U.S. nationals at the time their Cuban assets were nationalized by the Revolutionary government and the claims of those who were Cuban nationals when their property was taken from them. This distinction — which, in my humble opinion, is well grounded on international law — was also shared by the U.S. government, until it was resolutely ignored in some of the laws passed (in more than one occasion as a reaction to Cuban actions that seemed more like baiting than anything else) pursuant to internal needs dictated by domestic electoral politics and not because of any valid foreign policy considerations.

Regarding those long certified U.S. claims that are still unresolved by the two nations, the easiest path seems to be the opening of direct negotiations between the two countries; after all Cuba has resolved them vis-a-vis every other nation on earth. That said, I would not hesitate, if I were advising a U.S. national — whether the claim in question is certified or not — to approach Cuban authorities directly, on an individual basis. I would not hesitate, that is, if I knew the U.S. government would not penalize me or the claimant. As things stand today, my sense is that Cuba would be amenable, as it has always been, to either approach. Cuba has never repudiated these claims, even if it often lists a huge number of counterclaims related to the damage caused to Cuba by U.S. embargo laws, that may end up offsetting them. The one impediment to either approach is posed by Washington, where it has become ever more difficult to find anyone willing to spend the political capital required to break the impasse. The feebleness of our politicians, specially a few months before a national election, whether presidential or mid-term, is legendary, and it is played out at an ever higher price before the world at large. There is very little I — or you, I am afraid — can do to change this, trying to add a new dimension to it.

So from now on, what you will be reading in my coming essays will refer to the claims of those who were Cuban nationals at the time they were dispossessed of their assets in Cuba.

In my previous commentary on Cuban claims, where I began discussing the one legal system that can presently give us a sense of how those claims can be resolved, I refer to new Cuban laws that have a more “tolerant” or flexible approach to those who “abandon” the island or leave it for good (or else are presumed to have done so under those same laws). The new approach, resulting from the changes made to Cuba’s housing laws in late 2011, allow those who plan to leave the island to transfer title to their housing units to others, whether for profit — by sale or some other commercial transaction — or not.

But since no law exists in a vacuum but rather interacts with other laws in a given legal system, these changes in the Cuban housing laws should be read and understood in a broader context, that of the entirety of the legal system presently in place in Cuba. This summer I, and a few others in Miami, had the benefit of listening and learning from a series of lectures rendered by María Elena Cobas Cobiellas, a professor of law at the University of Valencia, Spain. María Elena was trained as a lawyer in Revolutionary Cuba, and was once a distinguished professor of civil law at the University of Havana Law School. The number of Cuban law students who were María Elena’s disciples at the University of Havana and now reside in Miami is huge, and many of them came to her lectures and expressed their love, devotion even, to their former teacher. María Elena now teaches the same course, civil law, in Spain to Spanish law students (she teaches them Spanish Civil Law, which in and of itself is a testimony to the quality of Cuban lawyers and professors of law). Her lectures at the University of Miami School of Law and its counterpart at Florida International University were eye-opening in the sense that they made evident how little most Miamians — including yours truly — know and understand Cuban laws. But her mere presence among us, and the reception she got, are an indication that things are also changing here in “The Exile Capital” (not just in the Revlon-ruled island).

One of the most interesting questions posed by Dra. Cobas in her lectures was why, three years after the changes made to Cuba’s housing laws by Decreto Ley 288 in October 2011, article 470 of the Cuban Civil Code has not been set aside (derogado). This article appears to run head-on into some of the new provisions aimed at giving greater flexibility to Cuba’s housing rights. This article, which is found under Chapter Two, Title One, Book Four (Derecho de Sucesiones, what we know as Probate in the United States), says that someone who has definitely abandoned Cuba is — still — not legally capable of being an heir or legatee (of assets situated in Cuba, as I understand it) under Cuban laws.

My next piece for this series about Cuban claims will explore this inconsistency, hopefully with the help of Maria Elena herself, whom I plan to induce into a dialogue on this and other Cuban law topics, a long-standing aspiration of mine (and of the editor of Cuba Standard). I have tried to implement this with the appearance on these pieces of colleagues of mine who reside and practice law in Cuba, without success. María Elena has been living and teaching in Spain for more than 10 years now, but the last time she tried to enter Cuba to visit he ailing mother, she was denied entry; she was sent back in the same plane in which she arrived. This may give you a hint why many of my good friends and colleagues are not exactly eager to participate in the kind of repartee I propose to them. There are still many things — specially attitudes — that need to change, both in Cuba and on our side. But I am optimistic we are getting there …

José Manuel Pallí is president of Miami-based World Wide Title. He can be reached a

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