Competing Claims: The Struggle for Title in Nicaragua
Roche, Michael, Vanderbilt Journal of Transnational Law
Nicaragua's Sandinista Revolution of the 1980s left the country's property scheme in a state of disarray. For eleven years, the leftist Sandinista government instituted mass land confiscations and agrarian reform that caused many individuals to lose their property and flee the country. The transition to democracy begun in 1990 has been a difficult process for the country's new presidents who have been forced to reconcile competing claims and fight corruption from within their own ranks. In this Note, the Author examines the property legacy created by the Sandinista Revolution. With another round of presidential elections scheduled for November 2006, the Author also examines whether Nicaragua will be able to escape the wave of leftist leaders who have emerged successful in recent elections throughout Latin America. With the international community once again focusing its attention on Nicaragua, the Author suggests that the country must finally resolve the status of its land titles in order to attract foreign investment and increase its prospects for lasting democracy.
TABLE OF CONTENTS I. INTRODUCTION II. HISTORICAL BACKGROUND A. The Somoza Years B. Revolution and Sandinista Rule C. Transition to Democracy III. ANALYSIS: THE POLITICS OF PROPERTY A. Property Reform Under the Sandinistas 1. First Steps 2. Decree Number 760: "The Absence Law" 3. The Revolution Spreads: The Advent of True Agrarian Reform 4. The Sandinistas and the 1987 Constitution: An Attempt at Constitutional Legitimacy 5. The Revolution Falters: Protecting the Legacy B. Democratic Attempts to Reconcile Sandinista Land Policy IV. LOOKING AHEAD: THE NEED FOR REAL PROGRESS
In many ways, Nicaragua's entire turbulent history over the last century can be characterized as one large property dispute. As a nation of 5.6 million people in Central America, (1) Nicaragua's household poverty index of 63% (2) places it among the poorest nations in the Western Hemisphere. (3) As in many parts of the developing world, the concentration of Nicaragua's wealth in the hands of a small minority had, up until the Sandinista Revolution of 1979, historically deprived the majority of the nation's citizens of the ability to own land. (4)
The Sandinista Revolution brought Nicaragua much more than just land reform, however, as it sparked a decade-long civil war that resulted in the deaths of thousands of Nicaraguans and a national economy crippled by massive debt and utter ruin. (5) Depending on one's point of view, the situation in Nicaragua at the end of the Sandinista Revolution in 1990 was either much better, or much worse, than it was in 1979 when the violence first began. (6) Political biases aside, however, there was no arguing with the fact that the country's economy was in shambles both before and after the Revolution.
Exhausted from eleven years of violence, yet left with little in the way of lasting reform, Nicaragua found itself faced with two dilemmas at the end of the Sandinista Revolution in 1990. Not only was the nation faced with accomplishing the Revolution's initial goal of providing for the poor, but it was also charged with correcting the illegal actions taken by the Sandinista leadership that ran afoul of the rights guaranteed by Nicaragua's Constitution, and even the Sandinistas themselves, at least on paper. (7) While Nicaragua has been forced to address many of the legacies of its civil war and the Sandinista-led Revolution over the last fifteen years, the Sandinistas' property schemes have been the most difficult to confront. (8) Indeed, as former Secretary of State James Baker once remarked, "the investment community is going to take one more look at Nicaragua.... If [it doesn't] have policies in place by then or at least don't show that [it is] creating an environment for investment, they're going to go somewhere else." (9) As Nicaragua continues its attempts to structure its property law in a way that reconciles the country's colonial and revolutionary pasts with its democratic future, attracting foreign investment can be a tall order.
With this in mind, this Note will begin by examining the historical origins of the Somoza dynasty and the Sandinista Revolution. Part III of this Note will then examine the radical changes Nicaraguan property law experienced during the Sandinista Revolution. Part III will also analyze the efforts made by Nicaragua's three post-1990 democratic governments to reconcile the Sandinistas' expropriations and other land confiscation policies with the claims of dispossessed original landowners. Part IV will then briefly discuss the upcoming November 2006 presidential election, as well as the development opportunities that may result if the nation is finally able to attract much-needed foreign investment.
II. HISTORICAL BACKGROUND
A. The Somoza Years
While the nations of Latin America have often been ruled by military dictators since their independence, few have suffered from the long-lasting effects of a family dynasty like Nicaragua. (10) Indeed, no matter how one feels about the property confiscations and other actions undertaken by the Sandinista government, the root of Nicaragua's current property crisis is almost always attributed to the Somozas. (11) After decades of corruption under the Somozas--during which the Nicaraguan treasury, land, and other resources were all exploited for the benefit of a select few--the severity of the Sandinista policies can only be described as a reaction to the Somoza years. (12) "The government of the Somoza regime is a clear example of how a criterion that puts forward 'the increase of wealth' can lose its legitimacy ... when it is completely disconnected from improvements in health care, education and the diet of the rest of the society." (13)
The "Somoza dynasty," as it has come to be known, (14) formally began with the support of the United States when General Anastasio Somoza Garcia assumed control of the country in 1937. (15) Although Somoza Garcia ruled Nicaragua for nineteen years during a time when fascist leaders were generally disfavored on the world stage, the support Somoza Garcia received from the United States allowed him to remain in power. (16) Having studied in the United States, Somoza Garcia had early visions of continuing his dictatorial legacy when he sent his two sons to the United States to study. (17) It was the oldest of these sons, Luis Somoza Debayle, who assumed control of Nicaragua following Somoza Garcia's assassination in 1956. (18) Anastasio Somoza Debayle, Somoza Garcia's second son, and perhaps the most infamous member of the Somoza dynasty, served as commander of the National Guard, and assumed the presidency in 1967. (19)
Despite the Somozas' totalitarian tactics, Nicaragua's economy saw marked growth during the forty-plus years they were in power. (20) Fueled by international instability and a high demand on the world market, Nicaragua's exports of cotton, sugar, meat, and seafood increased exponentially during the 1950s. (21) Nicaragua's fortunes, however, did not translate into gains for the nation's population at large. (22) While foreign capital flowed into Nicaragua, it failed to reach the impoverished majority of Nicaraguans. (23)
[I]n spite of a gross domestic product that rose during [the 1950s] by 250%, the rapid economic expansion was not transferred into an equally rapid improvement of social indicators. At the end of the boom, the indices for literacy, infant mortality and life expectancy were among the worst in Latin America. (24)
Indeed, the Somozas' greed only appeared to worsen as power passed from one Somoza to the next, and "[l]ike their father, the sons constantly added to the family's wealth." (25)
The Somozas ultimately carried their graft too far, however. In December 1972, massive earthquakes hit Nicaragua's capital city of Managua, resulting in the deaths of over ten thousand people. (26) Various nations, including the United States, responded to the disaster with millions of dollars in aid money, which was quickly pocketed by Anastasio Somoza Debayle. (27) U.S. President Jimmy Carter was a strong proponent of human rights, and the United States was thus unwilling to continue supporting Somoza Debayle when he was swept from power by the Sandinistas on July 20, 1979. (28)
B. Revolution and Sandinista Rule
Drawing their name from a 1930s-era foe and eventual victim of General Somoza Garcia, (29) the Sandinista National Liberation Front (FSLN) was the political reincarnation of a terrorist organization the Somozas had long since disregarded. (30) Following nearly half a century of self-enrichment by the Somozas, the main goal of the FSLN was to improve the conditions of the impoverished majority of Nicaragua's citizens. (31) While many have argued that the Sandinista Revolution was fundamentally socialist in its philosophies, and that "the Sandinistas abandoned all pretense of pluralism and incrementally initiated a totalitarian, Marxist-Leninist state that was modeled after Cuba and aligned with the Soviet Union," (32) this view has not been universally accepted. Instead, others have argued, the primary force behind the 1979 overthrow of Somoza was the leader's unbridled greed, and that in actuality "[t]he FSLN ... sought to ensure that the needs and interests of the working class and peasantry [were] dominant in all aspects of Nicaraguan life, yet at the same time [it sought] to maintain the political, economic and cultural space for capitalist relations." (33) It is this dual purpose, it is argued, that allowed the FSLN to draw support not only from the poorest sectors of Nicaraguan society, but also from the middle-class "anti-Somocista" elements as well. (34) This view is certainly helpful in explaining why the middle class, which would clearly disfavor pure Marxism, was nonetheless extremely grateful to the FSLN for sounding the death knell of the Somoza regime. (35)
The difficulty one experiences in labeling the FSLN's precise political underpinnings is perhaps the result of its inability to keep up with its overnight transition from guerilla terrorist organization to ruling political party. Indeed, while the FSLN undertook a rapid nationalization of both Nicaragua's major industries and privately-held property, it was not always accomplished by strict adherence to parliamentary procedure. (36) Although the FSLN passed a dizzying number of decrees and acts that placed 35% of the nation's private property under its control, (37) it neglected to amend the Nicaraguan Constitution of 1974 that upheld the right to private property and stated that all other laws were subordinate to this fundamental right. (38) This fact has led some to suggest that "the [FSLN] confiscatory laws, decrees and resolutions ... have absolutely no value at all. Moreover, property rights have not been changed in substance by legislation or any other acts of government. The nature of property law [did] not change one iota during the [Sandinista Revolution]." (39)
Despite the technical legal justification behind such logic, the clear reality is that the Sandinista years did change Nicaraguan property law in a great number of ways. FSLN decrees and land reform policies resulted in a protracted ten year civil war that raged on through the final days of the Cold War. (40) Additionally, even though the end of Nicaragua's Revolution coincided with the FSLN's political loss in the February 1990 presidential elections, the Sandinistas remain a political party in Nicaragua today. (41) As such, the FSLN continues to play a role in supporting its property confiscation policies of the past, even as subsequent administrations work to undo the great legal uncertainties they have caused. (42)
C. Transition to Democracy
Following the defeat of the FSLN in the February 1990 elections, Nicaragua began on its long path to both democracy and reconstruction. (43) The FSLN was driven from power by the fourteen-party United Nicaraguan Opposition (UNO) coalition headed by Violeta Barrios …
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Publication information: Article title: Competing Claims: The Struggle for Title in Nicaragua. Contributors: Roche, Michael - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 39. Issue: 2 Publication date: March 2006. Page number: 577+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 2006 Gale Group.
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