RIGHT TO PROPERTY
A. GENERAL OBSERVATIONS
1. According to Article XXIII of the American Declaration of the Rights and Duties of Man:
Every person has the right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.
2. It may be noted that when the American Declaration speaks of the right to property it refers to property required to meet “the essential needs of decent living”. It is of interest to consider observance of this right in the broader context of the system currently prevailing in Cuba.
B. JURIDICAL FRAMEWORK AND PRACTICE
1. State Property
3. Articles 14 and 15 of the Cuban Constitution of 1976 establishes:
14. The Republic of Cuba rules by the socialist system of economy, based on the socialist ownership of all people’s socialist ownership of the means of production and on the abolition of the exploitation of man by man.
15. The socialist state property, which is the property of the entire people, becomes irreversible established over the land that do not belong to small farmers or to cooperatives formed by the same; over the subsoil, mines, the natural and live resources in the marine area within its zone of sovereignty, woods, waters, means of communication; over the sugar mills, factories, chief means of transportation; and over all those enterprises, banks, installations and properties nationalized and expropriated from the imperialists, the landholders and the bourgeoisis; as well as over the people’s farms, factories, enterprises and economic, social cultural and sports facilities built, fostered or acquired by the state and those which shall be built, fostered or acquired by the state in the future.
4. In this regard, care should be taken not to confuse state property with the western concept of cooperative property in which members have rights of disposal, use and direct usufruct nor with cooperative property in the Eastern European fashion in which members have limited usufruct of its product. Nor should it be confused with “social” property in the fashion of Yugoslavia, in which the workers, through self management, participate in decision-making, including distribution of the enterprise’s profits.
5. According to these articles, state socialist property is the property of all the people; nevertheless, in practice, the most important decisions on state property are made by the higher levels of leadership, and management and control are carried out by the public bureaucracy. State property in Cuba includes practically all production goods and services, both “productive” and “nonproductive’. The Constitution sets forth an extensive list of items that it considers to be specific state property (Articles 15, 18 38.b, 52); also defined as state property are construction, domestic commerce (wholesale and retail), nearly all fishing, health services, hotels, restaurants, nightclubs, movie theaters, theaters and other tours or recreation centers. The bulk of production goods were appropriated by the State in 1960, through nationalization, confiscation and expropriation; two land reforms (1959 and 1963) made land state property, and in 1961 education became exclusively public. In 1968, during the so-called “revolutionary offensive”, even the street stands that sold food and other goods, as well as handicrafts made in the home, also became state property.
6. Today, less than 20% of agricultural land, organized in small individual and cooperative farms, 2% of transportation (chiefly taxis and carriers), and a small group of fishing cooperatives are not state property.
2. Quasi-private Property in Agriculture
7. The Constitution (Articles 20, 21 and 24) recognizes “the ownership of small farmers of their lands and other means and instruments of production”. But neither the Constitution, not the law, nor the communications media uses the term “private” but rather “small” (the 1 maximum legal size of these farms is 67 hectares and the national average is 13.8 hectares). In fact, there is quasi-private property for several reasons: a. the owner does not enjoy the right of alienability since he cannot sell the farm without prior authorization of the State, which has and invariable exercises a preferential right in purchase; farms may be inherited only by such heirs as work on it personally; b. the right to use is also limited since the owner may not rent, allow use to sharecroppers, mortgage or encumber the land; in addition, since 1966 and especially since 1971 when the law against vagrancy was enacted, until 1981, it was nearly impossible to hire labor on farms; c. the right to usufruct is conditioned by the obligation to sell to the State a part of the harvest, for which the farmer receives an annual rent from the State. In addition, small farmers must register with (ANAP), which is integrated into the national agricultural plan; both farmers and the association are supervised by the State.
8. It should be pointed out that there is an undetermined number of farmers who cultivate the land illegally, as sharecroppers or simple tenants, who are not registered in the INRA and who do not belong to the ANAP. A campaign was undertaken in 1982 to identify them. Despite the above-mentioned restrictions, private farms have higher productivity rates than state farms, and with 20% less land, produce 80% of the tobacco and 50% of the coffee, tubers and fruits, and raise 33% of the livestock.
9. From 1968 to 1980, semi-private farmers could not sell their surplus production (the remainder after stocking and family consumption) in free markets; they could only do so on the farm and with extensive limitations with respect to the volume that they sold to a single person (Law 1035 makes illegal traffic of agricultural goods punishable by law). As of 1980, small farmers were authorized to sell their surplus production (with some exceptions such as beef) in “peasant free-markets”, at the price determined by supply and demand. These markets, combined with higher stocking prices, have provided a strong incentive to raise agricultural production. In 1981, some products were sold on the free market at 2, 3, and 4 times the ration price, and there were farmers who earned hundreds of thousands of pesos (in 1981, the official exchange rate was 1 peso = US $1.28). These earnings and those of intermediaries led to arrests, harsh official criticism, and recommendations to raise fines up to 500% and set ceiling prices for the products.
10. The State tolerates small farmers as a small and temporary evil, but their goal is to gradually eliminate them in the long term, as the farmers retire or die, and as the State purchases their farms and integrates individual farms into cooperatives. In the party platform of the Communist Party of Cuba in 1976, it was states: “Construction of socialism means overcoming every kind of private ownership of the means of production in the economy”.
11. Toward the end of 1971, at the Fourth Congress of NAP, a resolution was approved that urged the progressive and voluntary incorporation, through political education, of the private farms into the state sector, which was ratified by Article 20 of the Constitution of 1976. But in May 1977, at the Fifth ANAP Congress, it was recognized that incorporation into the State would take 30 years and in its place, incorporation of quasi-private farms into cooperatives was promoted. Five years later, the Sixth Congress was held, and its motto was “strengthen the cooperative movement”; It was there reported that there were 1,222 cooperatives that covered 530,485 hectares, 35% of the total land of the quasi-private farms. At this pace, the quasi-private farms will disappear in less than ten years; President Fidel Castro’s prediction is that the peasant free-market will also disappear with them, and that agricultural surplus will be sold by the State in the parallel market. Thus will the last vestiges of private agricultural property in Cuba disappear.
3. Other Property Rights
12. Article 22 of the Cuban Constitution lists these additional rights:
The state guarantees the right to personal ownership of earnings and savings derived from one’s own work, of the dwelling to which one has legal title and of the other possessions and objects which serve to satisfy one’s material and cultural needs.
Likewise, the state guarantees the right to ownership of personal or family work tools, as long as these tools are not employed in exploiting the work of others.
13. This article recognizes personal ownership of the profits of one’s own labor and over the material goods that meet the basic needs of the individual. Intellectual property and the payment of royalties were abolished in the sixties, but reintroduced at the end of the seventies, at least for national authors.
14. Article 22 also recognizes ownership of housing inhabited by the owner, but as was the case with land, housing may not be rented, mortgages or encumbered and may be inherited only by an heir who does not own his housing. In the sixties, the State promoted the purchase of housing through payment to the State of rent, which was converted into mortgage payments, for a period of 10 years. Nevertheless, at the beginning of the seventies it was decided to indefinitely postpone acquisition of the right to ownership of housing for ideological and economic reasons, and those occupying such housing have become permanent renters.
15. In addition, the above-cited Article 22 establishes the ownership of the individual over the instruments of personal or family labor. Although the Constitution of Cuba does not expressly recognize small private enterprise, the above-mentioned article and subsequent legislation allow professionals and independent laborers (as well as of their families, without payment) to work for themselves in the services sector, but proscribe employment of salaried labor.
16. In sum, it may be stated with respect to the right of property that production goods are owned by the state in their entirety with the exception of one-fourth of the quasi-private agriculture, in which farmers do not enjoy the right to alienability and whose rights to use and usufruct are seriously limited. This small non-state sector has been gradually shrinking in the last 25 years, and its disappearance through integration into cooperatives and state farms is predicted. There is also personal ownership of housing (although limited in rights of alien ability, use and usufruct) as well as over the instruments of personal and family labor.
 Carmelo Mesa Lago, Dialéctica de la Revollución cubana: del idealismo carismático al pragmatismo institucionalista, (Madrid, Ed. Playor, 1979), pp. 150-185.
 Party Platform of the Communist Party of Cuba, Havana: Department of Revolutionary Orientation of the Central Committee of the PCC, 1976, p. 58.
 “Sixth Congress at ANAP”, Granma Weekly Review, May 23, 1982, P. 1.
 Fidel Castro, “Speech at the closing session of the Sixth Congree of ANAP”, Granma Weekly Review, May 30, 1982, P. 4.