Yesterday I posted my conference paper on Cuba's engagement with global trade, and the repercussions in the context of business and human rights. The focus was on one of the practices of Cuba's commercial activities--barter transactions in which the Cuban state trades labor for services or cash--and its potential incompatibility with global human rights norms. Larry Catá Backer, States, Labor as a Market Commodity, and Human Rights Frameworks--Cuba's Grannacional Programs at the Intersection of Business and Human Rights, Law at the End of the Day, July 17, 2010.
For its own reasons, the Legislative organs of American federal government have also considered these issues in the context of its stormy political relations with the Cuban state apparatus.
HEARING ON UNITED STATES - CUBA POLICY
Thursday, April 29, 2010
U.S. House of Representatives
Subcommittee on Trade
Committee on Ways and Means
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:04 a.m., in Room 1100 Longworth House Office Building, Hon. John S. Tanner [chairman of the subcommittee] presiding.
[The advisory of the hearing follows:]
*Chairman Tanner. Well, good morning and welcome. We'll get started. I understand that Secretary Block is caught in traffic, which comes as no surprise to those of us who fought the traffic here in the D.C. area.
So we'll get started and, if he appears by the time we get through with our opening statements, we can recognize him at that point, or when he gets here. But we'll go ahead.
Today's hearing is first to spotlight and emphasize our engagement in our hemisphere.
American business and job growth is, I think, in many respects dependent on our ability to export and to engage with countries.
And for some time now, I have watched with great interest our relationships in our own hemisphere. Cuba is a part of that. And as you know, there's a bill moving in the Agriculture Committee in this regard.
As I was thinking about Cuba, I got to thinking about what Coach Osborne said. You all remember Tom Osborne, a former football coach at Nebraska, who was here as a member one time. And he was asked what he thought about Cuba. And he said, "Well,'' -- and I'll paraphrase what he said -- he said, "I don't know much about Cuba, but if I call the same play in football 39 times in a row and it failed to gain, I'd try another play.''
This is about exploring the interest of this country, the United States of America, as it relates to our very complicated relationship with Cuba.
[The statement of Mr. Tanner follows:]
Before I recognize our Ranking Member, let me do some housekeeping here. Chris Van Hollen called me last night, and he's unable to be here today, because he's attending Dorothy Height's funeral, because she will be interred in his district. He wanted me to read this letter, and to put another letter in the record. And without objection, I'll do that.
It goes as follows: "Dear Chairman Tanner, Thank you and Ranking Member Brady for holding today's hearing on U.S./Cuba policy. I am attending the funeral of Civil Rights Leader, Dorothy Height and regret that I cannot be there in person.
As you know, a constituent of mine, Allen Gross, was arrested and imprisoned without charge by the Cuban government on December 3, 2009. For the last five months, Mr. Gross has only been permitted to communicate with his family a handful of times. He is 60 years old and suffers from chronic physical ailments and we are concerned about how the conditions of his confinement may be impacting his health. Additionally, his 86-year-old mother's health has begun to deteriorate in the wake of her son's incarceration.
Mr. Gross visited Cuba as part of a USAID contract to help Cuba's Jewish community improve its ability to communicate with other Jews - both in and outside of Cuba. He has worked on international development issues for over 25 years, and has devoted his career to helping thousands of people around the world.
Mr. Gross' incarceration is a matter of the greatest concern to the U.S. government, including Members of Congress. Attached is a letter from a bipartisan group of members to the Cuban government calling for his immediate and unconditional release. The letter further states that Mr. Gross' arrest has caused many to doubt the Cuban government's expressed desire to improve relations with the United States.
I welcome any suggestions of the witnesses, either on or off the record, as to the best way to resolve this urgent matter. I appreciate your assistance in this matter and ask that this letter, and the accompanying letter to the Cuban government, be entered into the record. [The information follows:]
And without objection, we'll so do.
I'm now pleased to recognize our Ranking Member, Mr. Brady, for his opening statement.
*Mr. Brady. Well, thank you.
I want to take this opportunity to publicly congratulate my friend and colleague, Mr. Tanner, on his becoming Chairman of the Trade Subcommittee. I look forward to working with you in your new capacity.
Today we're exploring the possibility of expanded trade with Cuba. I support sales of food, medicine to Cuba, as well as normal financing and travel arrangements to accommodate that. I suspect other members have different views, some willing to go farther, some unwilling to consider any liberalization whatsoever.
Where I think we all agree, however, is that we must resolve the other $6 billion in expropriation claims that our Federal Settlement Claim Commission certified before developing a more robust economic relationship with the post-Castro democratic government in Cuba. How these claims will be addressed is critical, not only because it makes policy sense, but because it is the law.
We're fortunate one of our witnesses today is a principal author or a USAID-funded report that analyzes the outstanding claims and proposes a mechanism for their resolution. I'm eagerly anticipating Professor Kelly's testimony.
More broadly, however, I admit I'm frustrated to be talking about Cuba, while we appear to be unable to have an open public discussion on exploring the possibility of expanding trade with democratic allies in the region, like Colombia.
President Obama and democratic leaders have argued the time is not right for the Colombia Trade Promotion Agreement, because Colombia's not made enough progress on labor and humans rights issues. They have said we need benchmarks. But here, after over a year in office, neither the Administration or the Congress, which has had even more time, has developed those benchmarks.
I would welcome an opportunity to focus on them, against which Colombia's progress on stamping out violence will be measured.
Let's look at the facts on the ground in both countries. The International Labor Organization has reported on Cuba's labor policies. In fact, several of the text witnesses today will talk about that. And it is not pretty.
Cuban labor law violates basic ILO principles with respect to the right to strike and bargain collectively. And Cuba has not even ratified the ILO core convention on the prohibition of the worst forms of child labor.
By contrast, Colombia has ratified all eight ILO core conventions. Moreover, the ILO recently commended Colombia for its progress in protecting labor rights. While U.S. trade policy should create incentives for countries to improve their policies, I worry about a possible double standard being promoted -- that trade with Cuba could be fine, but trade with Colombia is a problem. I'm concerned about the geopolitical signals we send, when we devote time and resources beyond food and medicine toward the consideration of overtures towards Chavez' ally, Cuba, while at the same time we continue to allow U.S. ally, Colombia, to twist in the wind.
Many say the increased trade with Cuba makes sense, because it represents a big market in our own back yard. It does. However, Cuba's economy is one-fourth that of Colombia's as well as the population.
Furthermore, the independent nonpartisan U.S. International Trade Commission found the United States is already Cuba's more competitive Ag supplier, in terms of price, quality, and delivery of items.
Finally -- and this may actually be the most important point -- at times it is hard not to question Cuba's interest in trading with us. Even in sectors in which America's allowed to trade, like agriculture, distortions abound as a result of politically motivated import practices of Cuba's estate-trading enterprise.
And although President Obama liberalized telecommunications trade with Cuba, our U.S. telecom companies haven't yet rushed in, because in their view, the costs and risks of dealing with the Cuban regime outweigh any marginal economic benefit.
The economic climate in Cuba is in many ways intolerant. In fact, Cuba is ranked virtually dead last in the 2010 Index of Economic Freedom.
And as our Secretary of State said earlier this month, the Castros "do not want to see an end to the embargo, do not want to see normalization with the United States, because they would then lose all their excuses for what hasn't happened in Cuba over the last 50 years.''
So it looks to me like we may be flirting with an unwilling dance partner. If we're looking for new customers, it would seem to me that beyond food and agriculture, in Cuba, that we should direct our attention to other, bigger, nearby markets with governments like Colombia, that have extended themselves to us.
That being said, Mr. Chairman, I appreciate you calling this hearing today. I think this is going to be interesting testimony.
Thank you, Chairman.
The ideas presented here suggest the extent to which the status quo remains intractable when it comes to relations between Cuba and the United States. But it also suggests one of the consequences of Cuba's active efforts to challenge the conventional (and dominant) framework for global economic organization. In this case, it is clear that the United States stands ready to use the arsenal of weapons developed to protect the rights of individuals and others within the ideological framework of dominant economic globalization to subvert efforts to undermine that system. The reaction is not surprising. The willingness of the United States to pay more attention to ALBA-zone economic activity, especially those pioneered by Cuba, suggests an acknowledgment of the importance of this challenge to the current global economic order.
The proceedings were also notable for the testimony of Michael Kelly, Professor of Law and Associate Dean for Faculty Research and International Programs at Creighton University School of Law, a principal author or a USAID-funded report that analyzes the outstanding claims and proposes a mechanism for their resolution. (The Resolution of Outstanding Property Claims Between Cuba & the United States (Creighton University Press 2007)). Professor Kelly suggests the complexities involved in any sort of settlement of property and damage claims between Cuba and the United States. The discussion highlights the difficulties of applying a legal and judicial overlay to the remedial issues between individuals, entities and states to this conflict. It is true enough that the juridicficaiton of conflict has become increasingly established as a method of managing conflict and legitimating the political settlements that bring closure to these conflicts. But Professor Kelly's discussion reminds us of the difficulties of using judicial process instrumentally. Professor's Kelly's formal testimony are worth reading and are reproduced below.
COMMITTEE ON WAYS AND MEANS, SUBCOMMITTEE ON TRADE
HEARING ON U.S.-CUBA POLICY
WED., APRIL 28, 2010, 1100 LONGWORTH HOUSE OFFICE BLDG, 10AM
WRITTEN STATEMENT OF PROFESSOR MICHAEL J. KELLY, JD, LLM, CREIGHTON UNIVERSITY SCHOOL OF LAW
Mr. Chairman, thank you for the opportunity to provide testimony today regarding U.S.-Cuba Policy. This is an important concern for everyone on both sides of the strait and for generations to come. Normalizing relations between our two countries is a goal that we all share, but the path to achieving that goal remains in some dispute. On behalf of the academic team that studied the property claims issue with respect to Cuba, we would counsel against immediately and unconditionally lifting the embargo without first addressing the property claims that U.S. citizens have against the Cuban government stemming from the first nationalization actions of Fidel Castro in 1959. To do so would
be to invite the nationalization of other U.S. assets by other regimes if they perceive that the U.S. government is not willing to legally fight for the rights of its citizens abroad.
By way of background, on October 1, 2005, Creighton University was awarded a grant from USAID to develop a model for a property claims settlement mechanism between Cuba and the United States. Three law faculty were joined by three political science faculty to form a team of experts supported by graduate students at both schools to investigate and report on the best outcome for such a mechanism. The model provides a template to be utilized by the United States Government in future negotiations with a post-Castro democratic regime in Havana.
As a central feature in the U.S. Government’s proactive planning for Cuba’s transition to democracy, this model responds to the intent of Congress in the Cuban Liberty and Democratic Solidarity Act of 1996 (the “Libertad Act”), Pub. L. 104-11422, 110 Stat. 785, U.S.C. § 6021-6091, that property claims be resolved as a precondition to the USG lifting the economic embargo against Cuba. Lifting the embargo is required to normalize Cuba-U.S. relations. Consequently, resolving the property claims issue is one of the early criteria which must be met in that process, after the president has certified to Congress that a democratically elected government has achieved power in Cuba.
Our Report proposes creates a dual-track property claims settlement mechanism.1 The first track is a bilateral Cuba-U.S. Tribunal (the “Tribunal”) established by treaty or executive agreement between a new Cuban government and the U.S. The jurisdiction of the Tribunal would be over property claims of U.S. nationals which have been certified by the Federal Claims Settlement Commission. The second track is a Cuban Special Claims Court (the “Court”) constituted as an independent chamber of the Cuban national judiciary. The jurisdiction of this Special Court would be over property claims from the
Cuban-American exile community.
PROPERTY CLAIMANTS
The Cuban government has paid lump sum amounts to settle outstanding property claims to several foreign states, including Canada, France, Spain and Switzerland. Consequently, the main universe of property claimants against the Cuban government consists largely of three groups:
1. U.S. National Claimants
2. Cuban Exile Community Claimants
3. Cuban Claimants Still in Cuba
There may also be some claims by Cubans against the U.S. Government for property such as frozen accounts or income proceeds. The Tribunal provides a forum for resolution of any cognizable property claims between the two respective governments.
U.S. NATIONAL CLAIMS
The first group of property claims are held by U.S. national claimants. These are American individuals and corporations who were Americans at the time of the unlawful expropriation (mostly in 1959 and the early 1960). They have certified their claims through the Federal Claims Settlement Commission (the “FCSC”). According to the FCSC estimates, their property claims with interest amount to approximately $6 billion. Their claims have not been satisfied with frozen Cuban assets in the United States. However, their claims are protected legislatively and are linked directly with the lifting of the U.S. embargo against Cuba. §207(d) of the Libertad Act states:It is the sense of the Congress that the satisfactory resolution of property claims by a Cuban Government recognized by the United States remains an essential condition for the full resumption of economic and diplomatic relations between the United States and Cuba.Moreover, international law generally recognizes the right of American claimants to be compensated. See, Shahin Shane Ebrahimi v. Government of the Islamic Republic of Iran, Award 560-44/46/47-3, Iran-U.S. Claims Tribunal (Oct. 12, 1994). Consequently, a bilateral system to resolve property claims between foreign claimants and the government of Cuba would be supported by international law.
CUBAN EXILE COMMUNITY CLAIMS
The second group of property claims is held by Cuban-American exiles. Members of this group were Cuban at the time of the expropriation of their property. The exile community claimants were not part of the certification process undertaken by the Federal Claims Settlement Commission, and thus are not protected under U.S. law to the same extent as U.S. national claimants.
Although the Libertad Act allows them the right to proceed, §304 specifically excludes their property claims from the high level of legislative protection accorded to the FCSC certified claimants:[N]either any national of the United States who was eligible to file a claim under section 503 but did not timely file such claim under that section, nor any national of the United States (on the date of the enactment of this section) who was not eligible to file a claim under that section, nor any national of Cuba, including any agency, instrumentality, subdivision, or enterprise of the Government of Cuba or any local government of Cuba in place on the date of the enactment of this section, nor any successor claim to, participate in, or otherwise have an interest in, the compensation proceeds or other nonmonetary compensation paid or allocated to a national of the United States by virtue of a claim certified by the Commission under section 507, nor shall any court of the United States or any State court have jurisdiction to adjudicate any such claim.Moreover, because members of this claimant group were nationals of Cuba when their property was expropriated, international law generally does not recognize a right of recovery. Consequently, a bilateral system to resolve property claims between this group and the government of Cuba would not be supported by international law. Jurisdiction over their claims would reside within the Cuban judiciary.
While the claims by this group are not supported specifically by either domestic or international law, politically and economically their claims should not be ignored. Politically, their influence in Washington brought about the Libertad Act (codifying the U.S. embargo against Cuba), achieved special immigration status for Cubans leaving the island, sustained Radio Marti programming, and leveraged millions of dollars in federal money to support democracy programming for Cuba.
Economically, this group will be among the first investors in an open Cuban market. Even before direct foreign investment by multinational corporations, who may prove more cautious and wait to see how the markets emerge on the island, the enthusiasm and wealth of the Cuban-American community will help to jump-start the Cuban economy at the outset of regime change and could do much to spark the suppressed but ever-present entrepreneurial spirit of the Cuban people.
However, if the property claims of the Cuban-American exile community are left unresolved, their political and economic power could be turned against stabilizing a new government in Cuba, much to the detriment not only of the island, but also to potentially fruitful Cuba-U.S. relations. Thus, from the perspective of elemental justice and reason, the positive aspects of including this group in a broader property claims settlement policy far outweigh the general lack of domestic or international legal justification for doing so.
CLAIMS BY CUBANS IN CUBA
The third group of property claims is held by Cubans against the Cuban government. These claims are wholly an internal matter for Cuba to resolve. There is no international dimension to them. Nevertheless, an important principle of this property claims settlement mechanism is that it does not negatively impact the Cuban population. If Cubans in Cuba, who may have their own claims against the government, view the settlement process as a venue for capital flight from the island, then they will not support it.
Moreover, to the extent that Cubans in Cuba are innocent third party owners of property that is the subject of a claim by U.S. national or exile community claimants, their property interest must be protected. Essentially, to eject people from their homes would needlessly destabilize the island further, prove to the Cubans that Castro was right about the property issue when he warned that Cubans would be thrown out on the streets by foreign and exile claimants, and engender unnecessary anger toward the United States.
CROSS CLAIMS BY CUBA
The Castro government asserts that Cubans have over $100 billion in claims against the U.S. based on harm flowing from the American embargo. These claims are a mixture of economic losses and tort claims. It is difficult to distinguish between harm done by the embargo and that done by the Cuban government, and it is impossible to verify the claims and claim amounts. Nevertheless, a lawsuit went forward in Cuban court in May 1999 asserting massive tort claims against the U.S. for losses and hardships flowing from the embargo. The prosecution presented evidence for thirteen days. The U.S. did not respond. The court awarded damages of $181.1 billion and ordered the U.S. to apologize.
The judicial bodies sought to be established here should not be overrun by Cuban claimants seeking redress against the U.S. To the extent that Cuban claims are allowed, making the claim settlement process a two-way street, only valid property-based claims should be considered under the jurisdiction of the bilateral Tribunal. These could involve, for instance, the remaining frozen assets of the Cuban government. Other Cuban claims, including tort claims, should be undertaken within the domestic Cuban judicial system and treated as normal litigation. The instruments establishing the Tribunal and
the Special Cuban Court contain language only allowing for property-based claims. Cases alleging other bases for compensation fall outside the jurisdiction of the judicial bodies recommended for establishment.
CUBA-U.S. CLAIMS TRIBUNAL
The Cuba-U.S. Claims Tribunal will be established by bilateral treaty or executive agreement between a successor government to the Castro regime and the U.S. The Tribunal will have international legal capacity as an arbitral body; its sole purpose will be to resolve outstanding property dispute issues between Cuba and the United States and the respective nationals thereof.
The Tribunal will consist of a minimum of nine members – one third appointed each by the governments of Cuba and the U.S. and the remaining third appointed by agreement among the two thirds who have been selected.
The Tribunal will have interpretive jurisdiction necessary to accomplish its purpose,
authority to promulgate rules of procedure,
the power to order interim measures of relief,
apply international law to resolve the claims before it.
Valuation of claims certified by the FCSC are to be given due weight by the Tribunal.
Small claims are to be compensated monetarily through a streamlined process.
Medium and large claims may be compensated monetarily, by specific restitution (under limited circumstances), or by alternative remedy awarded by the Government against which the claim is brought in the form of development rights, tax credits, rights in Government-owned property, or other remedies designed to promote foreign investment if the claimant agrees. Large claims must undergo a period of mandatory good faith mediation prior to seeking resolution by the Tribunal.
The Tribunal’s awards shall be final, binding and fully enforceable within Cuba and the United States.
No claims may be filed more than one year after the Tribunal is established.
The Tribunal’s expenses shall be borne equally by the two governments.
The seat of the Tribunal shall be selected by the President of the Tribunal.
The U.S. may find it necessary to assist a new government in Cuba in meeting Cuban obligations in the form of a loan on favorable terms or assistance in obtaining loans from international financial institutions.
CUBAN SPECIAL CLAIMS COURT
The Cuban Special Claims Court will be established by bilateral treaty or executive agreement between a successor government to the Castro regime and the U.S. The Court will be an independent chamber with in the Cuban judicial system.
The Court will consist of twelve judges appointed by the Cuban government in consultation with the U.S. No more than half of these judges may be of the same nationality.
The sole purpose of the Court will be to resolve claims by Cuban-American exile claimants against Cuba.
The Court shall have authority to promulgate its rules of procedure, and will conduct business according to the arbitration rules promulgated in 1976 by the United Nations Commission on International Trade Law.
All cases shall be decided on the basis of civil law, particularly as derived by from the Spanish Civil Code of 1889.
Small claims shall be compensated monetarily through a streamlined process.
Medium and large claims may be compensated monetarily, by specific restitution (again under limited circumstances), or by alternative remedy offered by Cuba in the form of development rights, tax credits, rights in Government-owned property, or other remedies designed to promote foreign investment if the claimant agrees.
Large claims must undergo a period of mandatory good faith mediation prior to seeking resolution by the Special Court.
The Court’s awards shall be final, binding and fully enforceable within Cuba and the United States.
No claims may be filed more than two years after the Court is established.
The Court’s expenses shall be borne by Cuba.
The seat of the Cuban Special Court shall be selected by the Chief Judge, but the location of the seat shall not prejudice the ability of the Court to sit at locations outside of Cuba if it so desires.
The U.S. may find it necessary to assist a new government in Cuba in meeting Cuban obligations in the form of a loan on favorable terms or assistance in obtaining loans from international financial institutions.
TRANSITIONAL CUBAN GOVERNMENT
The Libertad Act prohibits normalized relations between Cuba and the U.S. so long as the regimes of Fidel or Raul Castro remain in power. Moreover, sections 205 and 206 of the law contain a long list of criteria which must be met for a transitional government in Cuba to be considered democratic. Once those criteria are met, normalized relations are possible.
Cuba has undergone a succession. Fidel Castro ceded power to his brother Raul on August 1, 2006 to undergo surgery and has not returned to power. Raul Castro has been in control since that date. Consequently, while a succession has occurred in Cuba, a transition has not. Many experts believe that a slow transition is the most likely scenario for Cuba beginning toward the end of the Raul Castro regime and then moving cautiously forward under a new socialist regime. Thus, a quick transition to full-blown democracy, wherein most of the Libertad Act requirements are met, is not likely.
LEGISLATIVE ADJUSTMENTS
If the U.S. desires to enter into more normalized relations with Cuba, including resolving outstanding property claims issues between the two countries, before the criteria of the Libertad Act are met (especially those related to a democratic government), then legislative adjustments will be necessary. Congress must alter some or all of the criteria, thereby allowing the President to enter into negotiations with a new government in Cuba or the successor regime to Fidel Castro. This could take the form of specific amendments or entirely new legislation establishing a new framework for dealing with Cuba.
Moreover, the nature of the agreements establishing the Tribunal and the Court (i.e. whether they are treaties or executive agreements) would determine the degree of legislative adjustments required by the U.S. Subsequent Article II treaties effectively modify earlier statutes, and specifically so if implementing legislation is passed. The Libertad Act is the controlling legislation on Cuba-U.S. relations, and its provisions establish both process and substance governing what relations the U.S. has with the current and future Cuban governments and how those relations may be effectuated. However, if the instruments are adopted as executive agreements, then more extensive legislative adjustments would be necessary.
That said, it is not our recommendation that Congress seek to lift the embargo against Cuba before addressing the property claims issue. Indeed, the embargo is widely seen as the key point of pressure to move the Cuban government into negotiations over the property issues. If the U.S. is seen to walk away from forcefully asserting the internationally recognized legal rights of its citizens, the signal to other regimes would amount to a green light for confiscation of U.S. assets in their countries as well.
SOCIO-ECONOMIC CHALLENGES
Economically, while multinational corporations are not as likely to move as fast as Cuban-American investors in Cuba, they will want to get into Cuba fairly quickly as the government stabilizes and the market opens up. U.S. corporations will want to move in before foreign multinational corporations seeking to invest in Cuba, this reality will motivate them to take much less on their FCSC certified claims because their claims would be worth far less than the business opportunities that will present themselves. The mediation opportunity for medium and large claims within the Tribunal instrument seeks to meet this challenge.
Nevertheless, socially and politically, the racial disconnect between the populations in Cuban and the exile community could be problematic. The exile community is mainly Caucasian, contrasted with the population in Cuba which is 62% Afro-Cuban. This ethno-social disconnect has the potential to create friction between the two populations. Under the Batista regime, Caucasian Cubans held power, but were also an ethnic majority on the island. Under the Raul Castro regime, Caucasian Cubans remain in power, but constitute a minority of the population on the island. The current system of political and economic power distribution in Cuba has been characterized as a quasi-Apartheid system.
The four major pillars of the Cuban economy are tourism, Venezuelan subsidies, Cuban health care to foreign patients, and nickel mining. Oil drilling has not yet beenexploited by the government as a fifth pillar of the economy, although significant reserves have been discovered in the Gulf of Mexico. Afro-Cubans are allowed to mine nickel and only participate in a limited way in the other sectors, but do not control them. Moreover, aid sent from the exile community goes to Caucasian Cubans, not Afro-
Cubans. Early members of the exile community were the wealthy Caucasian supporters of the corrupt land-regime under Batista which similarly held back Afro-Cubans. To the Afro-Cuban population on the island, then, a fight over property settlement is a fight amongst the Caucasians and the Afro-Cubans continue to lose either way.
If Afro-Cubans come to power in a democratic government (which by definition they might since they are the majority), the second instrument advocating a special Cuban court for exile claims could be seen as nothing more than a give-away to a wealthy Caucasian exile community that abandoned the struggle on the island and failed to support Afro-Cubans even during the Castro regime.
Consequently, several elements have been built into the instrument creating the Special Cuban Claims Court to mitigate this view. First, investment in the Cuban economy is encouraged instead of monetary compensation or property restitution. Second, innocent third parties currently occupying confiscated property are protected in their property rights – restitution will not occur in those instances. Third, financial assistance to the Cuban government specifically earmarked for this process is called for to come either directly from the USG or foreign financial institutions; thus, Cuban assets will not be diverted from assistance to the Cuban people to meeting property claim awards.
While predicting the exact course of any transition is impossible, we have tried to take into account the complex social and economic realities that will influence the course of a new Cuba.
USAID-CUBA TRANSITION GRANT TEAM
The team of scholars at Creighton University who were entrusted by USAID with the Cuba-U.S. property claims project are among the top experts in their respective fields. They brought unique qualifications to undertake this work, and have succeeded in producing a blueprint for property claims settlement between Cuba and the United States that will not only resolve the outstanding claims of Americans and Cuban-Americans, but also contribute to the economic recovery of the island.
The team was comprised of Patrick J. Borchers, Vice President for Academic Affairs and Professor of Law, Michael J. Kelly, Associate Dean for Faculty Research and Professor of Law, Erika Moreno, Assistant Professor of Political Science, Richard C. Witmer, Associate Professor of Political Science, James S. Wunsch, Professor and Chair of the Department of Political Science, Arthur B. Pearlstein, Professor of Law and Director of the Werner Institute for Negotiation and Dispute Resolution. Many groups and group members participated at several levels of formal and informal discussion and development of the claims settlement instruments, including the leadership of the Cuban American Bar Association (CABA), the leadership of the Association for the Study of the Cuban Economy (ASCE), United States Southern Command, the Cuba Study Group, and the Cuba Transition Project at the University of Miami.
CONCLUSION
The model for property claims settlement between Cuba and the United States that we devised is one in which the short-term interests of the Claimants are addressed simultaneously with the long-term interests of normalized Cuba-U.S. relations, stabilized post-embargo circumstances in Cuba, sustainable foreign investment in the Cuban economy, and direct and indirect benefit to the Cuban people. Moreover, the interests of all Claimant classes are addressed in furtherance of decreasing cross-strait turmoil and mending Cuban-American/Cuban relations.
Additionally, property interests of Claimant parties are recognized and addressed with compensatory, restitution, or mediated investment awards while the property interests of innocent third parties in Cuba are also recognized and protected. Nobody on the island will be turned out of their homes. Yet nobody with a verifiable claim of property confiscation will come away empty-handed. Our models for property claims settlement are the best, most legitimate, and most
ENDNOTES:
1 The full Report is available at http://law.creighton.edu/cubareport/index.pdf. The Report fulfillsCreighton University’s commitment under its agreement with USAID’s Cuba Transition to Democracy Program, completed pursuant to the grant awarded in response to RFA# M/OAA/GRO/LMA-05-LAC/CUBA. The views expressed in the Report are those of the investigators, not USAID, Creighton University, nor the U.S. Government.
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