an Immersion Experience
By Anna Han and Cynthia Mertens, Professors of Law
When Americans think of Cuba, there are a few stock images. For those old enough, the Cuban Missile Crisis, Fidel, and old cars come to mind. For others, Cuba is a total mystery due to the embargo and the inability to travel there unless under a license. This past March, our group of Santa Clara Law students and faculty was fortunate enough to embark on a legal study tour to see the Cuba of today.
To prepare for the journey, students enrolled in a one-unit class, which we co-taught. Students were required to write a paper on a topic that interested them relating to Cuba. They first wrote a proposal and an outline, and they then read articles about Cuba and heard from Cuba experts who gave guest lectures to share their thoughts on Cuba’s legal and political system, as well as the social challenges and the rich and unique culture of this region. Students completed their papers after returning and absorbing all of their in-country learning.
In class before our journey, Anna Han discussed transitional economies and how communist countries deal with issues such as property rights and workers’ rights. She also explored how things may change dramatically once the United States lifts its embargo. Santa Clara Law Professor Nancy Wright, who had taken a trip to Cuba not long before our class began, also gave a talk about her experience there and shared numerous photos, which was an excellent “cultural acclamation” for students.
Via Skype, our class had a meeting with Miguel Altieri, Professor of Agroecology at U.C. Berkeley in the Department of Environmental Science, Policy, and Management. Altieri shared interesting comments on the standard of living in Cuba, which he believes is quite good because of all the free benefits that Cubans receive. He also addressed agricultural issues and explained how, once the Soviet Union broke up and Cuba was no longer receiving much aid, the country basically was forced to go “organic” because fertilizers weren’t available.
Also via Skype, students met Julia Sweig, the Nelson and David Rockefeller Senior Fellow for Latin America Studies and Director for Latin America Studies at the Council on Foreign Relations. Considered one of the leading Cuba experts in the U.S., Sweig specializes in Latin America and U.S.–Latin America foreign policy, and she is the author of Cuba: What Everyone Needs to Know, an excellent and fascinating reference book on Cuba. Her discussion focused on U.S.–Cuba relations and the future of Cuba. Many of the points she made in her talk were later confirmed in Cuba by one of our in-country speakers.
Above left, the sign of the Union Nacional de Juristas de Cuba (the lawyer’s union), where the group learned about the Cuban legal system. Right, top, one of the many older American cars that are commonly seen in Cuba. Right, bottom, Santa Clara Law students listening to a lecture at the University of Havana.
On March 2, some 26 students, and 12 faculty members departed. As we waited in Cancun for our plane to Cuba, the airport announcer said: “Line up in a single file to board.” No first class, no business class, no priority according to group number. Everyone is treated equally … our first taste of Communism.
After an uneventful one-hour flight, we landed at the José Martí International Airport. As we prepared to go through the immigration line, an official approached Professor Mertens and asked her in Spanish to step out of line. Seemingly endless questions ensued regarding the purpose of our trip and the itinerary. The officer was detailed in his questioning.
“The trip to Cuba was a once-in-a-lifetime experience. I learned so much about the country in such a short amount of time. I loved being able to sit down with former Cuban Supreme Court Justices and learn about the criminal justice system.”
—SARAH SCOTT, 3L
After customs, we exchanged some money. Since American dollars carry a heavy commission in retaliation for the embargo, we had been instructed to bring either Canadian dollars or Euros. Although one Cuban Convertible Currency “CUC” is equal to $1 U.S., we would only get 93–95 cents if we changed U.S. dollars. This was our first introduction to the dual-currency system where a CUC is worth about 24 times the local peso. We also knew that U.S. debit and credit cards were not useable; cash was it.
The government’s inability to maintain the infrastructure of the city was apparent everywhere we went. Uneven curbs, potholes, rough sidewalks, rundown buildings, and broken street lights were evidence of a struggling economy. No wonder the government is encouraging private enterprise; it simply can’t continue to support the entire population using state funds. Overall, the streets were clean, although there were stray dogs in abundance. A flashlight was a must at night, as most streets did not have lights.
That first evening, our knowledgeable guide assured us that there was no crime. “Havana is very safe,” he said. Later that evening, a bicyclist grabbed the purse off the shoulder of an SCU student who was walking with several others. Luckily she had left her passport in the hotel. No crime? We would learn more about the criminal system of a “no crime” state later.
LEGAL AND SOCIAL LESSONS
Our group was able to meet with the director of Unión Nacional de Juristas de Cuba who gave us an overview of their legal system as well as how lawyers practice. The two retired Supreme Court judges who spoke to us, Jorge Bodes Torres and José Candia Ferreyra, confirmed that there is crime in Cuba. Their presentation highlighted some of the ways their criminal system is different from ours. The cases are tried before one or two “professional judges” (law school grads), and one or two lay judges from the community. Lay judges are nominated by organizations and unions and serve for a period of five years. Professional judges are appointed for life. Decisions are made by majority vote and can be appealed by either party—prosecution or defense. There is no jury and no plea bargaining. There is a presumption of innocence. Interestingly, defendants in Cuba can’t be convicted of perjury. They can change their stories as often as they like before the judge, and the judge is not allowed to consider this in rendering his or her decision. Economic crimes are becoming more prevalent. Corruption is a problem, as government officials make so little that some choose to use their positions to supplement their income.
As in other civil law countries, judges do not follow precedent but rather look to the penal code. Cuba recognizes the death penalty but it has been 12 years since a death sentence has been carried out. We learned other legal facts. Property: Everything is state owned and no foreigner is allowed to own land or houses. Intellectual Property: Cuba has a thriving pharmaceutical industry. They say they patent their inventions, and they are protective of the famous Cuban Cigar trademarks. Family Law: While divorce is legally easy in Cuba, there is such a housing shortage that couples who divorce often still live together in the same apartment until one of them meets someone who has a place to live, allowing him or her to move out.
The average tour guide makes three times the income of a lawyer, largely due to tips, and the cigar factory worker makes more than a judge. One of our guides was a lawyer-turned-guide for the money. Even though the University of Havana graduates many law students, practicing lawyers and judges are but a small percentage of those graduates.
In many ways, the embargo has made Cuba a place out of step with time. There also seems to be a duality to everything. While we tourists traveled in modern, air-conditioned buses made in China, the Cubans made do with old buses and older cars. We dined in small, family run, privately owned restaurants called paladars, where lobster, wine, and even an imported soft drinks were available. But the local bakery shelves were empty, and at 5 p.m., there was a line out the door waiting for a new batch of bread to appear.
We visited a school and a community clinic. Granted, they were both located in a model eco village that tourists visit, but we didn’t get the impression that much was “dressed up” unless super cute kids are part of the props. The classrooms were spartan. Electricity was used sparingly, so the rooms were dark. The students didn’t have cell phones or laptops to distract them. The younger kids played outside with imaginative creations, including a large inverted soda bottle and some paper mache, which had become a blender in their play kitchen.
The clinic served about 1,200 people in the village. There was one doctor and one nurse. The other doctor had been sent to Venezuela as part of Cuban aid in exchange for oil. Making do when you lack natural resources seems to be a Cuban trait. The kids learn that lesson early.
The Cuban economy, despite everything, is starting to improve, and, as more and more businesses are allowed to privatize, the standard of living is also gradually rising. In fact, one is hard pressed to find poverty in the way that homeless in the United States are poor. One thing the Cuban government has done is to provide for housing, however cramped; food, however limited or subsidized; education (free all the way through graduate school); and free medical care.
Tourism is on the rise, which, of course, benefits the Cuban economy. From the roadside seller of peanuts to the glittering hotels that are comparable to the ones in Miami, tourist money sustains much in Cuba. Foreign investors from Canada, China, and Europe are starting to invest, now that the government has opened some sectors to joint ventures. Foreign investment in Cuba means taking a minority share—49 percent—and management is heavily Cuban. The government is careful about whom it lets in and what investments foreigners can make. Naturally, tourist-focused industries benefit first. The roads to the resorts are well paved. The one national highway that goes half way through the country ends abruptly.
CUBA: GOING FORWARD
Where is Cuba headed? If the U.S. ever ends the embargo, the place will boom. Cuban Americans would invest, and others who now can’t qualify for a license will come in droves. In fact, the speech we heard by a Cuban diplomat was as much a plea for Americans to end the embargo as it was about the history of Cuban and U.S. relations. His points: Stop thinking of us as the Cold War enemy, start talking to us and we will reciprocate, and end the embargo sooner rather than later. Democracy may not come to Cuba anytime soon, but the U.S. deals with many nondemocratic countries and trades with them; Cuba can be one of them. The current economic changes prove one point—when it comes to the battle of Communism versus market economy, capitalism wins.
Predictions are dangerous, but we believe that Cuba will keep moving economically toward greater private ownership. How the country balances the economic growth to come with the preservation of its environment will be a big challenge. Not having the money to produce and import cars means fewer traffic jams and less pollution, and not having major industries means the same. However, once that changes, so will the surroundings. Already, offshore oil drilling and close-to-shore drilling are destroying some pristine waters and beaches.
Politically, a larger private economy will not mean more democracy. Raul Castro has already set his own term limit, but his successor has also been anointed. The Cubans seem quite open and speak freely on many subjects, but we didn’t hear a single negative comment about the leaders, certainly not against Fidel or Raul Castro. We suspect that in a few years, Cuba will be more accessible, will have more goods available, and will open more resorts. However, we also dread the day when the historical squares are lined with brands we see in every mall in the U.S. Hopefully, the Cubans will tread carefully, grow and prosper, but preserve what is uniquely Cuban.
STUDENT RESEARCH AND WRITINGS ON CUBA
As part of our course and trip, students researched and wrote a paper on a topic of choice related to Cuba. Student paper topics were quite varied and included:
- A Tale of Two Rums (Trademark)
- Cuba Relations and its Effect on Professional Baseball
- Cuba’s Tax Code
- Cuba’s Criminal Justice System
- Cuba’s Electoral System
- Cuban Economics & Legal Systems – a Comparison to the U.S.
- Cuban Industrial Property and the Pharmaceutical Industry
- Cuban Private Property
- Domestic Violence in Cuba
- Environmental Law and Tourism in Cuba
- Freedom of Expression in Cuba: Law and Practice
- LGBT Rights in Cuba
- International Protection of Intellectual Property
- Land Use Planning in Cuba
- The Evolution of the Cuban Woman
- Sustainable Development in Cuba and its Ethical Implications
- The Status of Labor Laws in Cuba
- Cuba’s New Private Sector and the Opportunity for International Business