University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 2009 Whither Communism: A Comparative Perspective on Constitutionalism in a Postsocialist Cuba Jon L. Mills University of Florida Levin College of Law, [email protected] Daniel Ryan Koslosky Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Comparative and Foreign Law Commons Recommended Citation Jon Mills & Daniel Ryan Koslosky, Whither Communism: A Comparative Perspective on Constitutionalism in a Postsocialist Cuba, 40 Geo. Wash. Int'l L. Rev. 1219 (2009), available at, http://scholarship.law.ufl.edu/facultypub/522 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. WHITHER COMMUNISM: A COMPARATIVE PERSPECTIVE ON CONSTITUTIONALISM IN A POSTSOCIALIST CUBA JON MILLS* AND DANIEL RYAN KOSLOSIc4 I. INTRODUCTION ........................................ 1220 II. HISTORY AND BACKGROUND ............................ 1222 A. Cuban ConstitutionalLaw .......................... 1223 1. Precommunist Legacy ........................ 1223 2. Communist Constitutionalism ................ 1225 B. Comparisons with Eastern Europe ................... 1229 1. Nationalizations in Eastern Europe ........... 1230 2. Cuban Expropriations ........................ 1231 III. MODES OF CONSTITUTIONALISM: A SCENARIO ANALYSIS. 1234 A. Latvia and the Problem of ConstitutionalInheritance . 1236 1. History, Revolution, and Reform ............. 1236 2. Resurrecting an Ancien Rgime ................ 1239 B. Czechoslovakia and Poland: Revolutions from Below .. 1241 1. Poland's Solidarity ........................... 1241 2. Czechoslovakia's Velvet Revolution ........... 1244 3. New Constitutionalism ....................... 1248 C. Hungary's GradualDecline and Decay ............... 1251 1. Goulash Communism ........................ 1251 2. Reforming the Unreformable ................ 1254 D. Cuba's PostsocialistPathways ....................... 1256 IV. EXTRAPOLATING A U.S.-CUBAN CLAIMS SETTLEMENT FRAMEWORK ........................................... 1259 A. American Responses to Cuban Nationalizations....... 1259 B. The Politics of Reparation........................... 1262 C. Prospectsfor a U.S.-Cuban Agreement ................ 1265 V. CONCLUSIONS AND IMPLICATIONS ...................... 1268 * Dean Emeritus and Professor of Law, University of Florida Levin College of Law; Director, Center for Governmental Responsibility, University of Florida; Honorary Doctor of Laws 1986, Stetson University;J.D. 1972, University of Florida College of Law; B.A. 1969, Stetson University. t Senior Fellow, Institute for Human Rights, Peace, and Development, University of Florida; J.D. 2007, University of Florida College of Law; M.Sc. 2006, London School of Economics and Political Science; B.A. 2002, University of Florida. 1219 HeinOnline -- 40 Geo. Wash. Int'l L. Rev. 1219 2008-2009 1220 The Geo. Wash. Int'l L. Rev. [Vol. 40 I. INTRODUCTION The rapid collapse of communism in Eastern Europe led many in academic and policy circles to accept that capitalism had emerged as the default global economic modus operandi.1 Remarka- bly, ten of the former Warsaw Pact countries succeeded in joining the European Union only fifteen years after the fall of the Berlin Wall. Their accession into global and regional markets and regula- tory systems was an extraordinary feat considering their simultane- ous political and economic transitions: 2 E.U. accession was conditioned upon both political and economic reform. 3 Political scientists, legal theorists, and economists began to assess the appli- cability of the dual Eastern European transition model with past and future democratizations and economic liberalizations. 4 Logi- cally, a post-Castro Cuba raises questions about whether a similar evolution might occur.5 As an analogous socioeconomic and political evolution in the Caribbean seems ever more forthcoming, looking to the Eastern 1. See FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN, xv, 25-29 (1992); SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CEN- TURY 27 (1991). 2. See Nicholas Barr, From Transition to Accession, in LABOR MARKETS AND SOCIAL POL- ICY IN CENTRAL AND EASTERN EUROPE: THE ACCESSION AND BEYOND 1, 1 (Nicholas Barr ed., 2005); LESZEK BALCEROWICZ, SoCILIsM, CAPITALISM, TRANSFORMATION 146 (1995); Claus Offe, Capitalism by Democratic Design? Democratic Theory Facing the Triple Transition in East Central Europe, 58 Soc. RES. 865, 868-69, 872-73 (1991). 3. ALAN MAYHEW, RECREATING EUROPE: THE EUROPEAN UNION'S POLICY TOWARDS CEN- TRAL AND EASTERN EUROPE 161-62 (1998); see James Hughes, Gwendolyn Sasse & Claire Gordon, Conditionality and Compliance in the EU's EastwardEnlargement: RegionalPolicy and the Reform of Sub-national Government, 42 J. COMMON MKT. STUD. 523, 524-25 (2004); Heather Grabbe, European Union Conditionality and the Acquis Communautaire, 23 INT'L POL. SCI. REv. 249, 249, 251 (2002). 4. A vigorous academic debate has emerged regarding the applicability of existing transition theory to Eastern Europe. Much of the focus has been on the inherent differ- ences, similarities, and emerging patterns between Eastern Europe and South America. See, e.g., Sarah Meiklejohn Terry, Thinging [sic] about Post-Communist Transitions:How Differ- ent Are They?, 52 SLAVIC REv. 333 (1993); Philippe C. Schmitter & Terry Lynn Karl, The Conceptual Travels of Transitologistsand Consolidologists:How Farto the East Should They Attempt to Go?, 53 SLAVIC REv. 173 (1994); Valerie Bunce, Should Transitologists Be Grounded?, 54 SLAviC REv. 111 (1995); Terry Lynn Karl & Philippe C. Schmitter, From an Iron Curtain to a Paper Curtain: Grounding Transitologists or Students of Postcommunism?, 54 SLAviC REv. 965 (1995); Valerie Bunce, Paper Curtains and Paper Tigers, 54 SLAVIC REV. 979, 979-87 (1995). 5. See, e.g., Kern Alexander & Jon Mills, Resolving Property Claims in a Post-Socialist Cuba, 27 LAW & POL'Y INT'L Bus. 137, 145-46 (1996) (using the resolution of property claims in East European nationalizations to outline what may happen in a postsocialist Cuba); Frances H. Foster, Restitution of Expropriated Property: Post-Soviet Lessons for Cuba, 34 COLUM. J. TRANSNAT'L L. 621, 621 (1996) (examining the "former U.S.S.R republics' approaches toward restitution of property seized during the Soviet era as a possible prece- dents for Cuba"). HeinOnline -- 40 Geo. Wash. Int'l L. Rev. 1220 2008-2009 2009] Constitutionalism in a Postsocialist Cuba 1221 European transitions is quite tempting. With the resignation of Fidel Castro as president, and his personal hegemony in a state of decline, the political future of the Partido Comunista de Cuba (PCC) is far from certain. The outcome of the possible economic liberali- zation and privatization programs in Cuba is central to the regional interests of the United States. Thus, the form and substance of a settlement agreement of the outstanding property claims currently held against Cuba, along with basic political and economic reform, will affect the political and economic dynamics of U.S.-Cuban rela- 6 tions for decades to come. Virtually all Eastern European countries adopted constitutional and legal frameworks permitting them to integrate into the larger European Economic Community as well as the global market- place. 7 Establishing institutions for protecting property rights, defining those rights, and adjudicating outstanding property claims were all key to the reform packages introduced in Eastern Europe.8 Yet property rights and economic freedoms are predi- cated on the underlying constitutional framework. A key factor in ascertaining how compensation for expropriated property is calcu- lated and distributed will be by how constitutionalism develops in postcommunist Cuba. Cuba is an open market to most of the world, yet its biggest potential market, the United States, is unavailable. The people of Cuba have lived under the weight of political oppression and the omnipotent presence of the state in their daily lives. What lessons can be drawn from the Eastern European experiences with over fifteen years of hindsight? What role will the Cuban people have in creating a future Cuban democracy? This Article seeks to answer these questions by analyzing the vari- ous constitutional experiences of Eastern Europe and their appli- cability to a possible Cuban democratization and economic transition. This Article examines the history and background of the Cuban economic system and its supporting legal framework in light of the various Cuban nationalizations. This Article also ana- lyzes Cuban constitutionalism in light of the communist ideology as well as Cuban constitutionalism's provisions relating to public 6. See discussion infra Part .B-C. 7. See generally RETr R. LUDW]KOWSKI, CONSTITUTION-MAKING IN THE REGION OF FOR- MER SOVIET DOMINANCE 110-93 (1996) (analyzing the drafting processes in Eastern Europe as well as the relative strengths of the new constitutions with civil rights protection and private property). 8. See id. HeinOnline -- 40 Geo. Wash. Int'l L. Rev. 1221 2008-2009 1222 The Geo. Wash. Int'l L. Rev. [Vol. 40 and private property rights. In Part II, Cuban constitutional law is explored in the broader context of its