INTERNATIONAL PROTECTION OF PROPERTY

Except in some cases of social interest, uncompensated confiscation and expropriation are contrary to the Declaration of Human Rights, among which stands the right to own property.

Confiscation attacks the freedom of expression, since it is a base to prevent citizens to freely express political opinions. Freedom of expression manifests in freedom of education, association, free union membership, etc. In other words, anything against those freedoms is equally against Democratic Foundations.

Constitutions and legal structures in a law abiding Democratic State explicitly forbid a confiscation without a corresponding compensation. In Totalitarian regimes these principles are not taken into consideration, even when they sometimes include similar laws in their Constitution. A notorious example is Castro’s 1976 Constitution. In fact, Castro often broke his own laws frequently during the sixties — and still breaks them today.

Illegally confiscated properties fattens the treasury of governments that feed on usurpation or illegal appropriation of estates. Consequently, those who indulge in commercial trade with that type of government, become accomplices of the totalitarian state by wrongfully sharing or buying stolen property to fence it in international markets.

Illegal confiscation out of political reasons rises complex property disputes once a Totalitarian regime cracks down. These events reflect in a series of negative processes damaging the development of the people in their geopolitical environment, and also the reputation of the accomplices. Well-intentioned new legitimate businesses and their promotion in the area in question may suffer the consequences of an erratic policy carried out by the previous rulers in the land of the investors.

However, if confiscation and expropriation for political reasons is not tolerated and looting in the guise of joint ventures with the Totalitarian regime is rejected, once the country frees from Totalitarianism legal claims by legal owners can be settled under the law within a legal environment.

Uncompensated confiscation and expropriation (and their consequence) are out of place in the XXI Century — as it is also out of place now the defense of such practices in any Totalitarian regime. Accomplices, by their own double standards, are calling for future retaliation and disturbing trade wars. Such a scenario is being set up in Cuba with the mixed and unfair business practice Castro is promoting with other countries’ participation and condonation.

Therefore, it seems imperative to apply now the Principle of Analogy, recognized by the law, that trafficking, stolen property and fencing crimes and complicity (common to all criminal codes) must be absorbed by International Law to fill up an important gap at an international level.

To legitimize the fencing of stolen property (under the euphemism of "confiscation") as in the above terms has been discussed for the last two decades. This legal gap must be recognized by all countries.

Let us not say now, that such condemnation would obstruct the freedom of trade — a triumph of liberalism — for this is neither all embracing nor absolute. There are international restrictions against prostitution, child slavery and abuse, slaves. high technology application to warfare, manufacturing and selling personal mines, narcotrafficking, import-export of ivory, green turtle shells, mothers-of-pearl, certain animal species in the endangered species list, etc.

One must add one more restriction to the list, one with important human value, too, the illegality for Totalitarian rulers to steal in the name of confiscation from legitimate owners and the illegality of fencers or countries who benefit from becoming their accomplices. Trafficking is a crime against free expression by tyrants and their unscrupulous partners.

Some would argue that Totalitarian regimes act in exercise of sovereignty. What sovereignty? Sovereignty comes from the people, not by the self-proclamation of a dictator. The notion of sovereignty should be limited to defend the rights of citizens against oppression, not to defend the repressing apparatus.

What could be more incongruent in a society whose legal bases recognize the need for society to rid themselves of tyrants than to condone and consequently participate in the theft of property and subsequent trading in stolen goods by a decades-old dictatorship? Cicero justified even killing a tyrant. Others also did. Just wars against a tyrant have been praised by philosophers and holy men (Saint Thomas of Aquinas). How come self-proclaimed civilized countries in these days condone trafficking with stolen goods?

Some countries consider penalizing those who trade with illegally confiscated (stolen) property to be a restriction to free trade. Such an attitude is actually legitimizing tyrannies and is far from being Democratic. Furthermore, it becomes too cynical in countries that enjoy elections and abide the laws of their Constitution. Those who promote such behavior should be considered accomplices and collaborators of Totalitarian regimes in crimes of international trafficking with stolen property.

Illegal trafficking is not trade, and it must be condemned. It should become internationally illegal until it vanishes from the face of the Earth. The Helms-Burton Law is a precedent not to be frowned upon, but to be followed by worldwide jurists and should receive international consensus.

Defending the right of property — a universal and fundamental right — must be compulsory to the point that such means of confiscation should not be recognized. A citizen victim of an illegal confiscation should receive international support in his right, instead of being bullied out his right. It is lamentable, that today, victims of officially condoned thefts should feel impotent before the abuse of power.

A resulting incongruence from lack of protection to individual property exists nowadays in most democratic countries. While in the one hand, they are adamant about the protection of Human Rights in their own countries, on the other hand, they overlook violations of the same rights in other countries, especially in totalitarian regimes. Freedom of Trade does not justify a violation of the least of Human Rights.

It should be agreed upon that Freedom of Trade, as it is now understood, is an imperfect notion. It is about time that jurists give it a better context, one more in accordance with the idea that democracy should be the rule io the land in the whole world, not in a dozen of privileged countries.

New parameters should be enacted to give rights and means to the victims of stolen properties, confiscated in the name of a treacherous ideology, and not to leave them defenseless. Is there any doubt that a democratic country is defined as "one with no political prisoners?»

Overwhelming winds of justice and human solidarity should blow on the XXI Century.

END

Ofelia Menocal
World Federation of Cuban Political Prisoners
Spain 1999

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