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Titling Cuba: Resolving Ownership, Allocation and Productivity Problems in a Post-Communist Agricultural Sector

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Carbonero Las TunasProperty rights in the Cuban countryside took on inauspicious beginnings in the sixteenth century when the Spanish Crown began making land grants called mercedes, distributed to colonial settlers in the form of circles. Ownership interests in the circles were also partitioned at oblique angles; grants were made to a grantee and all his descendants as holdings in common. The result was for all the heirs, increasing generation after generation, to assume use of the land, cramming into the single house or establishing homes at different points around the bend, though all sharing in the profits of the whole estate.

Although circular land grants ceased in the eighteenth century, the distribution of agricultural property rights in Cuba since then has continued on a crooked path.  Those rights and uses, both today and in a more rational future are the particular focus of this work. The goal of this article is to examine the current system of agricultural property rights in Cuba, its relationship to production, and some modest means through which reform of those rights could contribute to the development of Cuba as a whole. The picture of a developed Cuba in this article is one that has abandoned the tenets, or at least, the dictatorship of Marxist socialism.

The link between economic development in Cuba and its agricultural output cannot be overstated, though it has been famously undervalued. This article explores the potential role of a freer agricultural property regime on the island tending towards promoting production at the same time as greater economic and legal freedom for the people. The framework for this proposal relies on the licensing and formalizing theories of Hernando de Soto specifically tailored to the Cuban situation.

In brief, that proposal is to distribute title to state-held agricultural lands to a mix of the farmers who currently reside on and work those lands and other claimants, in particular Cuban expatriates with a claim to the same acreage. Such a distribution would be authorized and secured by numerous regional legislative bodies across the arable territory, composed of the very farmers of the former-cooperative bodies. Once granted, title becomes secure in the grantee, the legislative body dissolves, and the economy gives way to transactional processes secured by law.

The first section of this work briefly explores the theories of property that drive the policy goals of this article: the dynamic analytics of property and the real property titling scheme of Hernando de Soto. These theories bear a nice fit to the post-communist context in general and (presumably) in Cuba, as well as the yet unexplored setting of agricultural lands. Their main goals are neither substantive nor procedural, but rather functional-economic views of property that focus on productivity and capital generation rather than ownership and exclusion. I will explore how de Soto’s reforms are held together by this theory, and find vindication for them in the post-communist countryside. In support of this I will draw from the Chinese experience in deregulating agriculture.

In the second section, I give a brief overview of the recent history of the Cuban agriculture sector, demonstrating how ownership schemes and government policy have greatly distorted its productive potential. The relevance of recent government reforms in the Cuban agriculture sector will also be discussed – the major shifts in agricultural policy of the 1990s pose unique challenges and opportunities to future reform. In the following portions of the article I will make reference to the findings in this section.

In the third section, I make an apology against the common critique of de Soto’s scheme – that a rapid reallocation of property in society would, at best, result in traction and a multiplicity of title disputes, and at worst, tend only to concentrate the property among the few. The particularities of the Cuban agricultural context underpin this apology. In conjunction, the application and adaptation of de Soto’s reform measures to the unique cases of communist collectivism would also tend to solve much of the struggle associated with land allocation.  Similarly, the problem of “selective turnaround,” of preexisting industries or legal regimes from inefficient and unsustainable models to workable ones is largely solved by the quasi-naturalism of de Soto’s reform. The article will once again make application of the context of Cuban agricultural land ownership, showing these problems to be readily solvable in the Cuban situation. The results of the telling but inadequate land reform measures pushed through the Cuban economy during the early 1990s affirm this…  

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Nathan C. Santamaría

About the Author:

Nathan C. Santamaría is an associate with Linklaters LLP in London and focuses his practice on the area of energy project finance and development. Mr. Santamaría’s practice spans four continents where he also advises clients on compliance with international treaties, major energy supply contract disputes, and seeking authorization and permitting from foreign governments for industrial activities of foreign investors and developers. He has also advised in major international arbitrations involving global companies, state controlled entities, and private investors. Before a career in law, Mr. Santamaría worked as a journalist for National Public Radio, covering matters in Latin American politics. Mr. Santamaría is a member of the Ivy Club. He was educated at Princeton University (A.B. cum laude), and Georgetown University Law Center (J.D.).

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