Property Rights in Cuba

Property Rights in Cuba

News that the U.S. will begin normalizing relations with Cuba renews interest in Creighton study.

By Patrick Borchers  |  Professor of Law and Director of the Werner Institute

Few nations have preoccupied me like Cuba.

This is a personal story. It’s a Creighton story. It’s an international story. But it’s not much about the politics of the United States and Cuba.

In 2005, when I was dean of Creighton’s School of Law, a young faculty member and international law expert, Mike Kelly, said that he wanted to team up with members of Creighton’s political science faculty to make a grant application to the United States Agency for International Development (USAID) to study the resolution of claims of Cuban expropriated properties.

“Great,” I said. As dean, one of my goals had been to build the international profile of the law school. “Uh, there’s one other thing,” Mike said. “We need you as the principal investigator.” He read my quizzical look. “You’re well known in private international law, so we need you.” I agreed, figuring we had no shot.

Several months later, Mike told me: “We won.” “Won what?” I said, figuring it was about one of Mike’s moot court teams. “The USAID grant,” he replied. Oh that.

We had lots of new friends and enemies.

A Washington Post columnist suggested that we had won because an assistant administrator in the USAID, Adolfo Franco, JD’83, was a Creighton graduate, even though we had never met.

“Welcome to the big leagues,” I thought.

One friendly voice was the Omaha World-Herald. In an editorial it said “political sniping” was unfairly targeting us and scorned some of the more absurd Castro-apologist claims.

Our first meeting included those of us who would do most of the writing: Kelly, political science professors Erika Moreno, Ph.D., and Rick Witmer, Ph.D., and me, as well as indispensable research assistants Julie Borchers, BA’04, JD’07 (no relation); Danielle Pressler, BA’04, MS’07, JD’10; Leah Shadle, BA’03, JD’07; and Kevin Tuininga, JD’07. Werner Institute faculty members Arthur Pearlstein and Jackie Font-Guzman, as well as then-political science chair Jim Wunsch, Ph.D., would also play important roles. I said that I felt like the dog that caught the squirrel. Now what?

We wrote a 280-page book. It covers a tortured political history; examines mechanisms by which claims have been resolved in disputes between nations; crunches massive amounts of data regarding the claims; and surveys Cuban, U.S. and international law.

It was a long road. We added another research assistant, Katie Pitts, BA’09, JD’12. Our travels took us to places as varied as the Harvard Law Library, Washington, D.C., and Europe.  

The Creighton libraries obtained scads of foreign language materials. We made trips to Miami, where most of the Cuban-American community resides. We made trips to Cuba. We quite literally scoured the globe.

We were in Miami in 2006 when news broke of Fidel Castro’s brush with death. The streets were packed with Cuban-Americans waving Cuban flags. Fidel proved to be hardier than thought, but power passed to his brother (probably half-brother) Raul. We met with lots of interested parties in Miami. We accepted an invitation to a joint briefing with the U.S.’s Southern Command.  

We attended meetings that included Cuban exiles. I say, without exaggeration, that they would kill the Castro brothers, even if it meant enduring torture and death.

We did a lot of work.

We wrote and published the report and held a well-attended press conference in October 2007.

A funny thing happened. Our report was well received. We suggested alternatives to cash compensation, such as development rights for claimants and ways to stimulate the Cuban economy. We wrote that claims of Cuban-Americans and Cubans stood on the same moral footing as claims of Americans.

Many of our early critics were silent. We presented at conferences and testified before Congress.

In April of 2014, The Boston Globe contacted us. Maybe the reporter knew something we didn’t. The reporter called our report “the most ambitious and pragmatic solution that’s been laid out so far” to the property issue.

Then in December 2014, President Barack Obama announced, after 18 months of secret negotiations, that the U.S. and Cuba were restoring diplomatic relations.

Suddenly, the Creighton report is a hot item again — generating press inquiries from across the globe.

We all hope that our report helps arrive at a just solution.

But I’m stuck with a Cuban aphorism: “What are the three great accomplishments of the revolution? Sports, education and health care. What are its three great failures? Breakfast, lunch and dinner.”

Any solution that doesn’t address “breakfast, lunch and dinner” is no solution.


Read more

Following the news in December that the U.S. and Cuba had moved to normalize relations, the Creighton University study and its authors have been highlighted in numerous national media reports, including an article that appeared in Bloomberg, “Cuba Property Claims, Yielding Pennies, May Spur Talks.” Read the article here.