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Letter from the Dais

Dear delegates, Welcome to the Legal Committee! Our names are Luca Baca and Nicole Minkina and we are thrilled to chair this committee and have the opportunity to work with all of you. Here is a little bit more about us before the conference begins: Luca is a junior pursuing a major in Global Affairs with a special focus on the human rights regime in Latin America and US-Latin America relations. She was born in Buenos Aires, Argentina but at six years of age moved to Miami, FL, where she has spent most of her life before coming to Yale. During her junior year of high school, she began participating in her schools MUN team and fell in love with international relations because of it. Since then, she has joined the MUN Team at Yale (MUNTY) and chaired several committees for YMUN and for the Security Council Simulation at Yale (SCSY), our college conference. Outside of MUN, shes passionate about increasing access to education, ending sex-ual violence, and improving the lives of immigrant communities in the United States. She teaches with Hemispheres, YIRAs educational outreach program to the New Haven community; serves as VP for the Club of Argentine Students at Yale (CASY); and works as a Community Consent Educator (CCE) to prevent on-campus sexual violence. Nicole is a junior studying Ethics, Politics & Economics. She was born in Belarus and moved to the beautiful shores of Southern California at a young age. During high school, she competed on her schools Model UN and debate teams - and of course fell in love with both. Upon coming to college, Nicole decided to continue engaging in the art of diplomacy by joining the Yale Model UN Team. Com-peting in MUN, along with chairing the YMUN conference, have become two of her favorite activities at Yale. Outside of this, Nicole has served on the Executive Board of the Yale International Relations Association and assisted with planning the Security Council Simulation at Yale. She currently serves as Senior Editor for the Yale Economic Review and a director for Yale Model Government Europe (in Bu-dapest!). During the school year, she works for Lawyers Without Borders, helps with the Global Justice Programs Illicit Financial Flows Project, and plays on Yales club tennis team.

Please feel free to email us at any time with questions, concerns, or even just to introduce yourselves. We look forward to meeting you all, reading your position papers, and hearing your speeches in com-mittee. See you in January! All the best, Luca Baca, co 17lucia.baca@yale.edu Nicole Minkina, co 17nicole.minkina@yale.edu

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Table of ConTenTsHistory and Role of the Committee 4 Topic 1: Extrajudicial Killings in Counterterrorism Operations (targeted killings) Topic History 5 Current Situation 10 Bloc Positions 17 Questions to Consider 18Topic 2: Addressing the question of restitution in Cuba Topic History 19 Current Situation 24 Bloc Positions 29 Questions to Consider 33 Suggestions for Further Research 34

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The Sixth Committee (Legal) called its first session to order in 1948. Tasked as the foremost forum for the consideration of legal questions in the General Assembly, the Legal Committee makes non-binding recommendations pertaining to international law, especially as it relates to the protection of basic human rights and freedoms. It does not, however, resolve legal disputes, which is integral to the mandate of the International Court of Justice (ICJ). In 1958, the Legal Committee convened the Conference on the Law of the Sea and ultimately adopted legal protections for marine wildlife and regulations for the underwater testing of nuclear weapons.1 A series of other important legal measures followed throughout the 1960s and 1970s, such as the Vienna Convention on Diplomatic Relations (1961),3 the Vienna Convention on the Law of Treaties (1969),2 and the International Convention against the Taking of Hostages (1979),4 but chiefly during the 1990s. In fact, not only did the nineties witness the adoption of a series of laws against international terrorism, but they also saw the groundbreaking codification of the Rome Statute of the International Criminal Court (ICC) in 1998. The Rome Statute of 1998 established four core international crimes - genocide, crimes against humanity, war crimes, and the crime of aggression - and set up the ICC to bring those who commit these crimes to justice.5 Since 2000, the Legal Committee has been developing a Comprehensive Convention on International Terrorism, which would complement existing counterterrorism instruments but has yet to be adopted.6

The Legal Committee has universal membership. Non-member status with observer status may attendand participate in meetings, which take place every year from late September to late November paralleling the General Assemblys annual session. While most committees face overwhelming schedules, the Legal Committee has maintained a relatively short agenda.

history anD roLe of the Committee

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topiC 1: extrajuDiCiaL KiLLings in Counterterrorism operations

Topic HistoryThe topic of targeted killing sits at the intersection of law, international relations, morality, and strategy. It is incredibly important for the Legal committee to debate and consider this subject. The United Nations Human Rights Council defines a targeted killing as the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator7. While targeted killings have existed as part of some states foreign policy responses for many years, this is not a term or practice that is defined under any existing international legal framework. Given the increasingly prominent use of such tactics, it is important for this committee to address its legal implications. Broadly speaking, the UN must develop an understanding of how targeted killing operations should be viewed in light of strategic multilateral security goals. This committee will focus on targeted killings as carried out by governments against citizens or non-citizens, typically in foreign territories and without due process proceedings. However, it should be noted that such operations can also be orchestrated by armed groups both in and outside of armed conflict situations.

Several countries have either explicitly or implicitly acknowledged the existence of targeted killing programs:

Russia

From 1999 to 2009, during the Second Chechen War, Russia admitted to mounting targeted killings operations against Chechen separatists. During August and September of the first year of the war, Russia bombed select targets on the Chechen-Dagestan border8. Notably, one of the bombings targeted Chechnyas airport and destroyed one of two planes owned by the Chechen government9. The Russian Federation describes targeted killing operations in this context as part of a larger counterterrorism campaign. Several human rights authorities have pointed out the difficulties with this designation of the separatist conflict because Russia had labelled most of Chechnyas population as terrorists. Chechens killed by Russian targeted killing operations include but are not limited to: Zelimkhan Yandarbiyev, Former President of Chechnya; Aslan Maskhadov, democratically elected leader of Chechnya; Abdul Khalim Sadullayev, Maskhadovs successor; and Shamil Basayev, Islamist responsible for the Dubrovka theater

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siege10.

In later stages of the conflict, during 2006, Russia passed a counterterrorism provision that allowed the Federal Security Service (FSB) to kill terrorists abroad given the Presidents authorization11. This law is called Federal Law No. 35 on Counteracting Terrorism, and acts as a replacement of the 1998 Law on Fighting Terrorism12. The new law effectively expanded the definition of terrorism to include propagating terrorism, disseminating materials that call for engaging in terrorist activity or include justifications of terrorism, and carrying out informational and other collaboration with terrorists and in the planning of terrorist attacks13. The 2006 law also removed territorial restrictions on where counterterrorism operations regimes could operate - effectively allowing for targeted killings in any foreign territory or autonomous region14.

Israel

Though Israel formally denied the existence of targeted killing operations throughout the 1990s, the government and Israeli Defense Forces (IDF) confirmed the countrys targeted killing program and justified it under the legal framework of international humanitarian law (IHL). In 2000, Israel formally adopted a policy of targeted prevention of Palestinians alleged to be active members of terrorist organizations involved in organizing, promoting or executing terrorist attacks in Israel and the Occupied Territories15. Some of the IDFs earliest attacks included the killing of Hussein Abayat, leader of Yasser Arafats Fatah movement, as well as Hamas leaders Ahmed Yassin and Abdel Aziz Rantisi16. Abayat was believed to have led attacks in the West Bank and the Bethlehem region that resulted in the deaths of several Israeli soldiers17.

In 2002, the IDFs Judge Advocate General (JAG) delineated conditions under which targeted killings of terror suspects would be defensible. The JAG ruled that punitive, retributive attacks carried out for past terror strikes would not be allowable.

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Instead, select killings of terror suspects could be conducted under the following conditions: credible information exists that the suspect will carry out a terror attack in the future, appeals made to the Palestinian Authority (PA) to curb the activity and arrest the terrorist have been ignored, and attempts made by IDF to arrest the suspect have failed18. Most of Israels targeted killings have occurred in Area A and have included the members of groups such as Hamas, Fatah, and Islamic Jihad; in particular, Israel has claimed that only those who present an immediate threat to the State of Israel and Israeli civilians by means of attack are targeted19.

More recently, Israel has taken steps to further outline the circumstances under which targeted strikes can be deemed lawful. In 2006, the Israeli Supreme Court ruled that the lawfulness of each killing must be determined individually and that generalizing about the legitimacy of targeted killing policy would not be legally plausible. The court also found that customary law was applicable to cases of targeted killings as opposed to human rights law or international humanitarian law (IHL) of non-international armed conflicts. The distinctions between these bodies of law will be discussed below. In opposition to the governments position, the Supreme Court also ruled that targeted killings of civilian suspects could only be permitted if they were directly participating in hostilities (DPH) and if four other conditions were met: proportionality, force minimization, multiple forms of target identification, and the carrying out of an independent investigation after each strike to validate the targets identity and document collateral damage20.

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United States of America

The United States has pursued a policy of targeted killings as part of its counterterrorism strategy for a number of years. This was formally inaugurated by President George W. Bush after the 9/11 terrorist attacks as part of a broader initiative denoted the War on Terror21. The program has since been expanded considerably under President Barack Obama. In 2001, the Authorization for Use of Military Force (AUMF) formed the basis for the counterterrorism response taken by the United States. As such, it authorized a response against "those responsible for [] the acts of treacherous violence [] committed against the United States and its citizens" on September 11, 200122. In the AUMF, the United States invokes a self-defense and deterrence based justification for a response to the parties responsible for these attacks - stating that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States23. Moreover, the AUMF specifies the scope of targetable individuals and the preventative goal of the U.S. response:

The President is authorized to use all necessary and appropriate force againstthose nations, organizations, or persons he determines planned, authorized,committed, or aided the terrorist attacks that occurred on September 11, 2001, orharbored such organizations or persons, in order to prevent any future acts ofinternational terrorism against the United States by such nations, organizations orpersons24.

Targeted killings against the Taliban, al Qaeda, and affiliates take place in several geographic locations and are carried out by different actors accordingly25. Both the Central Intelligence Agency (CIA) and Department of Defense (DoD) have been involved with such operations, but there has been a recent effort to unify command and control for targeted killings under the Joint Special Operations Command (JSOC) due to complaints that military operations, regardless of their covert nature, should not be carried out by a civilian agency26. The United States has conducted drone strikes in areas of armed conflict including Afghanistan and Iraq as well as those not undergoing armed conflict - including Pakistan, Somalia, and Yemen27.

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There is an important legal distinction to be made between these two arenas for targeted killings; this will be discussed further in the next section. One of the most high profile killings under the United States targeted strike program was that of Anwar al-Awlaki, a United States citizen. According to U.S. and foreign intelligence, al-Awlaki was a senior level talent recruiter and militant for al-Qaeda. He was also said to be the man who inspired the Boston Marathon Bombing in 2013. Two Predator drones armed with hellfire missiles targeted and killed al-Awlaki and five others individuals who were travelling in a car with him at the time of the strike28. This took place after a failed attempt to kill al-Awlaki was authorized earlier on by President Obama.

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Current SituationCharacteristics of Modern Warfare

In each case delineated above, tactics for carrying out targeted killings abroad have evolved over time. Whereas military organizations used to rely on conventional aerial and ground operations, there has been a rapid transition to unmanned, remotely piloted technology. Unmanned aerial vehicles (UAVs), or drones, are one such mechanism upon which states rely to carry out targeted killing operations. Some scholars and commentators draw a distinction between UAVs and UCAVs, or unmanned combat aerial vehicles, which are also armed with missiles. Typically, drones will serve both surveillance and combat functions - hovering above a remote site, gathering intelligence about people and terrain, and ultimately striking a target when a decision is made to do so29. War has changed in such a way that threats no longer emergeonly from other states and nonstate actors within our own states, but from nonstate actors inother states. Technology enables unmanned aircraft to track individuals thousands of milesaway and, if necessary, release precision-guided weapons to eliminate them. As Benvenistiand Reisman have noted, modern conflicts of asymmetrical nature are eroding the "dynamicof reciprocity and retaliation", with nonstate actors being neither "beneficiaries of norhostages to the territorial system"30. There are numerous characteristics of drones that are important to consider when thinking about the legal and policy implications of extrajudicial targeted killings, particularly in counterterrorism operations:

Asymmetry

Drone warfare is inherently asymmetrical. Though many drone attacks involveground forces for intelligence gathering, verification, and support, the act of striking atarget presents nearly zero risk to the attacking force, which is able to send an unmanned,armed machine with impeccable surveillance capabilities to strike a target in a remotelocation31. On the other side of the battlefield, drones are difficult to detect and impossible todefend against once deployed.

Before UAVs were available in a military context, warfare was framed as "a give-and-take between attacker and defender", wherein collateral civilian damage was likely regardless of the efforts of either party32. This dynamic is inapplicable to UAV warfare, the commanders of which are immune to immediate retaliation.

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This characteristic of drones has implications for the psychology of warfare as well as the legal doctrine the covers resorting to force. Many have written about the cognitive impacts that armed drones have on their operators, who carry out commands to kill from computers thousands of miles away. This brings up the possibility that decisions to kill are more unrestrained when compared with those made in the heat of battle. Others write about the possibility that physical removal from the site of battle diminishes empathy and thus heightens decisionmakers inclination to eliminate lives.

Precision

Once a target is located, "persistent collection can reveal the life patterns of thetargeted individual, such as 'overnight locations, daily routes, visitations, and trustworthyassociates'", allowing the attacker to fix the target33. This process is enabled in part by drones'impeccable hover-time, which allows them to remain fixed above a location without refuelingin order to constantly monitor a target and his or her surroundings. Moreover, drone strikes themselves can be carried out with a stunningly high level of precision. In the United States, when a target is identified, officials begin the Collateral Damage Methodology (CDM), which "takes into account every conventional weapon in the U.S. inventory" to develop a "collateral hazard area" around a target based on the effects radius of a weapon as well as blast, fragmentation, and debris34. Moreover, a weaponeering process investigates different fusing combinations in an attempt to mitigate the risk of collateral damag35. Particularly in counterterrorism operations, "where targets are frequently engaged while on the move, [] weaponeering restrictions increase the possibility that a weapon fails to kill a target36.

International Law

There is disagreement over which legal regimes ought to govern precision warfare in targeted killings. International humanitarian law seeks to protect the victims of war and minimize force and suffering to the greatest extent possible.

Jus Ad Bellum

Jus ad bellum (right to war) governs how entities resort to war. This assesses the circumstances under which states may justify engaging in hostilities. For jus ad bellum to be fulfilled, a state or political entity must fulfill each of six requirements:

Just cause Right intention

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Proper authority and public declaration Last resort Probability of success Proportionality

Just causes for resorting to war include self-defense, defending others from attack, protecting innocents from brutal rights violations, and resisting aggression37. Importantly, an aggressor has no right not to be warred against in defence - meaning that once a state actor takes action against another entity, the entity can respond justifiably through the use of force38. The asymmetric nature of targeted killings means that it is often impossible for the receiving party to retaliate proportionately. This could have implications for interpretations of just cause in a counterterrorism context.

The requirement of proper authority and public declaration is also called into question in situations of counterterrorism-driven targeted killings. Some states conduct targeted killings via civilian agencies and carry them out covertly. The United States has been criticized for the fact that the majority of its targeted killings are carried out by the Central Intelligence Agency, a civilian agency.

One of the most interesting jus ad bellum provisions is proportionality. When an event warrants a belligerent's response to a grievance, jus ad bellum proportionality attempts to "prevent the state acting in self-defense from using a measure of force beyond that which is necessary to repel or avert an armed attack"39. In other words, the violence used in war must be proportional to the attack suffered, with the means of attack remaining commensurate with its ends.

Jus In Bello

Jus in bello refers to just conduct once hostilities or warfare have already begun. It disregards the justifications for resorting to force and addresses how force is conducted by both parties. The rules of jus in bello include:

Obey all international laws on weapons prohibition Discrimination and Non-Combatant Immunity Proportionality Benevolent quarantine for prisoners of war No Means Mala in Se No reprisals

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Whereas jus ad bellum seeks to protect a political entity responding to an attack by another, the system of jus in bello acknowledges that there is no prevailing interest, but a variety of interests and which must be balanced against one another and afforded equivalent protection under international law40.

The IHL proportionality clause is found in Article 51(5)(b) of Protocol I (AP I) to the Geneva Conventions, and reads:

"An attack which may be expected to cause incidental loss of civilian life, injuryto civilians, damage to civilian objects, or a combination thereof, which would beexcessive in relation to the concrete and direct military advantage anticipated" isto be considered indiscriminate41.

This provision indicates that there must be a level of parity between the damage suffered by innocents as a result of an attack and the level of military advantage obtained resultantly by the attacking force. Given the original phrasing of this clause, it is difficult to conceptualize how one might carry out a comparison between human life and military advantage, particularly in practice. This brings up important legal, philosophical, and practicable questions. If a drone strike is launched in one instance as part of a broader military campaign, can the attacking party claim military advantage for the entire campaign, or is it confined to the singular drone strike? Some time after the publishing of the original IHL proportionality provision, an amendment was made to attempt to answer this question. The ICC Statute, written after AP I, amends "concrete and direct military advantage" to read "concrete and direct overall military advantage":

"Intentionally launching an attack in the knowledge that such attack will causeincidental loss of life or injury to civilians or damage to civilian objects []which would be clearly excessive to the concrete and direct overall militaryadvantage anticipated"42.

Other expressions of proportionality in international documents refer similarly tomilitary advantage, establishing the need to balance damage to civilians and civilian objectswith military utility43. This leads into a discussion of one of the most contentious aspects of targeted killings: the potential for collateral damage.

Civilians and Direct Participation in Hostilities

Assessing the role of civilians in targeted killings is important. Firstly, can a belligerent actor prioritize the lives of domestic civilians over foreign ones? The IHL proportionality clause seems to suggest so within the framework of military advantage.

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Secondly, how much - if any - collateral damage of both civilian property and lives is justifiable within an international legal regime? Answering this question involves tracing it back to whether the hostilities in question can be considered an armed conflict44. There are two primary, internationally recognized forms of armed conflict: international armed conflicts (IAC) and non-international armed conflicts (NIAC). Both have been defined by the Geneva Convention. IACs refer to cases in which two sovereign entities engage in armed conflict, and NIACs refer to fighting between a government and a non-state actor or actors within its own territory. While some of the cases of targeted killing described earlier fall neatly within the NIAC designation, others do not. Targeted killings carried out in one sovereign territory by a foreign actor do not clearly fall under either variant of armed conflict. As a result, legal scholars have written about the possibility of an internationalized non-international armed conflict, in which the armed forces of a foreign power intervene in a countrys civil war or other domestic conflict45. This seems applicable in the case of the United States targeted killings against al-Qaeda and affiliates. Even this case encounters legal difficulties because al-Qaeda has carried out operations in Afghanistan and has crossed over into the Federally Administered Tribal Region (FATA) in northern Pakistan as well as other locations across Africa and the Middle East46.

Depending on the designation of an armed conflict, its collateral damage can be assessed in different ways. In some cases, civilians are distinguished from belligerents. In others, all parties involved - including the targeted one - are considered civilians; here, the distinction becomes whether civilians are directly participating in hostilities. Protecting civilians is one of the foremost goals of international law. In accordance with jus ad bellum and jus in bello principles, all parties to conflict must distinguish between civilians and combatants. International humanitarian law acknowledges that the nature of warfare has changed. Since World War II, there has been an ever increasing trend towards civilian participation in hostilities. The International Committee on the Red Crosss handbook on making collateral damage assessments points to two emblematic instances: cases of rebellion or insurgency within individual states and international conflicts between governments and non-state armed groups47. In response to these changes, Rule 6 of the Additional Protocols to the Geneva Convention states that:

Pursuant to Article 13(3) of the Additional Protocol II, civilians are immune from direct attack unless and for such time as they take a direct part in hostilities48.

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Applied to targeted killings, the DPH (direct participation in hostilities) standard can cause interpretive and operational confusion. It is well-documented that certain states have manipulated DPH standards - or defined them too broadly - in order to report lower collateral damage statistics. Proportionality standards indicates that civilians are not entirely immune from harm; instead, damage to civilians must be minimized to the greatest degree possible and be proportional. There are three primary elements to the definition of DPH in AP II stated above: hostilities, the notion of direct, and the temporal aspect indicated by for such time49. In order to be direct, a civilians actions must have a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity takes place50. Thus, civilians preparing weapons systems on the frontline of battle would be directly participating in hostilities, while civilians working in a weapons factory would not be. Civilians providing tactical intelligence during battle could be classified under DPH, while those conducting strategic intelligence analysis would not be51. How does one classify the members of a household - such as the mothers and children - living with dangerous combatants? In 2012, the United States published statistics stating that zero civilian deaths occurred in the course of drone strikes in Pakistan during that year52. There are problems with this assessment, particularly because the United States has classified as militants any military-aged male in the strike target area53.

Moreover, ones classification as directly participating in hostilities is not static, and it has the potential to change over time or over the course of a conflict. Many have raised the criticism that this creates a revolving door problem in which a person can be a farmer by day, terrorist by night54. As a result, this may encourage non-state actors and members of armed groups to seek refuge among civilian populations. To avoid this difficulty, experts have suggested using a membership-based definition of participation in hostilities55.

Human Shields

In a densely populated location like Gaza, there is little spatial distinction between civilians and combatants. Israel and much of the international community have accused Hamas of using civilians as human shields in order to deter enemy attacks. Using human shields is illegal under international law. the Geneva Convention states:

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"The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.56"

The legal difficulty occurs when considering the implications this has for the opposing party. Is it unlawful for a nation strike at targets that knowingly use human shields to defend themselves? According to the Geneva Convention, it is unlawful:

"Any violation of these prohibitions shall not release the parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures57.

The international community must come together to determine how binds such as these might be resolved. How should combatant immunity and collateral damage be viewed in light of the aforementioned challenges? From a legal standpoint, how can international humanitarian law either be amended or clarified in this respect?

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United States, United Kingdom, Europe, Israel

While Israel and the United Kingdom have carried out targeted strikes using unmanned drones, the United States has by far been the largest deployer of this strategy. In contrast, the European Union has remained fairly passive in the face of the drone revolution. Many EU countries have attempted and succeeded at acquiring drone technology themselves, but have nonetheless abstained from reacting to their neighbors targeted killing practices or finding alternatives in the way of lethal force58.

Middle East and North Africa

Several countries in this region are leaders in opposing drone strikes and targeted killings. These include Pakistan, Yemen, Libya, Afghanistan, and Somalia59. Despite Pakistans public denouncement of drone strikes, it is reported that the countrys government offers support in the forms of intelligence and operational assistance to the United States drone program.

East and Southeast Asia

Fueled by tensions over the South China Sea, China and Japan have experienced clashes over the rise of the drone fleet owned and operated by the Peoples Republic. In November 2013, China carried out its first unmanned test flight, alarming the West and its rivals in the region60. This incident caused Japanese officials to, allegedly, explore options for shooting down unmanned drones that originate from China and enter into its airspace61. These two adversaries are not the only ones seeking to enter into the business of targeted killings and unmanned surveillance technology. The Republic of Korea has been acquiring Global Hawk UAVs and building its own indigenous UAV capabilities, Taiwan is developing UAVs instead of importing from abroad, Indonesia seeks to build a UAV fleet of its own, and Vietnam has plans for building a UAV factory62.

Bloc Positions

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1. Is the current formulation of international humanitarian law sufficient for guiding countries in modern warfare and targeted killings?

2. How can we use a proportionality framework to approach collateral damage assessments? What is your countrys take on this?

3. Does your country generally support targeted killings in other territories?4. Does your country believe that targeted killings violate foreign sovereignty? If

so, if a foreign nation were to grant consent to another country carrying out targeted killings, would this be permissible?

5. What decisions must the Legal committee make in order to better govern targeted killing practices? Do you support an approach that is more restrictive or more permissive of such practices?

6. In international conflicts, should a nation prioritize the lives of its own innocents over that of foreign innocents?

Questions to Consider

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topiC 2: aDDessing the question of restitution in CubaTopic HistoryIn January 1959, Fidel Castro and his allies successfully staged the Cuban Revolution, toppling long-time dictator Fulgencio Batista and taking control of the Cuban government. Though he did not proclaim the socialist character of the Revolution until April 1961, the Cuban government nationalized all private property, including that of Cuban nationals and Americans, by August 1960. Castros expropriation campaign seized homes, businesses, factories, and farms from tens of thousands of Cubans, many of which subsequently went into exile in the United States (especially in Miami), as well as from U.S. corporations and foreign nationals. It was the single largest grab of U.S. property in history. Factories were put under state management, farmland handed out to cooperatives, and large houses carved up into small apartments and doled out to the poor.63 The combined worth of all of these assets was approximately $9 billion in 1960 and perhaps over $50 billion today.64

The Castro government refused to compensate owners for property expropriated during this nationalization process. Alberto Beguiristain, a Cuban exile who moved to Miami following the confiscation of his large Spanish colonial estate and two sugar mills in Sagua la Grande, east of Havana, recalled Castros restitution as follows: He said I could leave the island alive.65 In fact, after taking control of the island, Castro went on to enact a series of laws limiting the right to own property in Cuba.66 All of this was done in violation of the property provisions of the Cuban Constitution of 1940, which was technically still in effect when the Revolution took place, as well as the fundamental principles of international law. Notably, Articles 24 and 87 of the Constitution of 1940, widely regarded as a feat of Cuban sovereignty, read as follows:

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Article 24: Confiscation of property is prohibited. No one can be deprived of his property except by competent judicial authority and for a justified cause of public utility or social interest, and always after payment of the corresponding indemnity in cash, as fixed by a court.67

Article 87: The Cuban Nation recognizes the existence and legitimacy of private property in its broadest sense as a social function and without other limitations than those which, for reasons of public necessity or social interest, are established by law.68

Though Batistas Constitutional Act of 1952 had repealed the Constitution of 1940, Castro re-enacted it during the early days of the Revolution. However, he soon usurped its amending procedures, as Batista had done before him; repealed the Constitution of 1940 once again; and operationalized a revised Article 24 to confiscate property belonging to anyone who opposed him or who fled the country.69 By the 1970s, he redefined property altogether, calling for an economic system based upon socialist ownership of the means of production in Article 14 of the Constitution of 1976.70

Not long after the first wave of expropriations, the administration of Dwight D. Eisenhower slapped Cuba with an embargo consisting of economic sanctions on Cuban exports as well as restrictions on travel to Cuba and commerce for all peoples and companies operating under the jurisdiction of the United States.71 In January 1961, following the second wave, it severed diplomatic relations altogether. Over time, the U.S. continued to tighten the embargo in hopes of forcing the hand of the Cuban government, which had to introduce some market reforms in order to stem the deterioration of its economy. Currently, the embargo is enforced through six statutes: the Trading with the Enemy Act of 1917, the Foreign Assistance Act of 1961, the Cuban Assets Control Regulations of 1963, the Cuban Democracy Act of 1992, the Helms-Burton Act of 1996, and the Trade Sanctions Reform and Export Enhancement Act of 2000.

Meanwhile, throughout the decades, Cubans, Americans, and Cuban-Americans, continued to clamor for compensation as the Castro regime put its finishing touches on its expropriation scheme.Though ultimately a complete and utter catastrophe, Brigade 2506 of the 1961 Bay of Pigs Invasion73 counted with over 1,400 paramilitaries, many of which were anti-Castro Cuban exiles (Beguiristain among them) recruited from the Miami area who sought to recapture everything that had been taken away from them

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For years, Cuban exiles held on to the yellowing deeds and titles of their expropriated properties while Castro filled them with scores of new families or put them under state management. They remained lawyered up and poised to state their claims at any possible opening. In 1964, the U.S. Congress established a Cuban Claims Program, under which the Foreign Claims Settlement Commission of the United States (FCSC) was given the authority to determine and certify the validity and amount of claims by U.S. nationals against the Cuban government.74 In 1972, the FCSC attested the value of the U.S.-owned property confiscated by the Cuban government at U.S. $1.8 billion.75 Certifying 5,911 of over 8,300 claims, the Commission took into account the basis of valuation most appropriate to the property including but not limited to, (i) fair market value, (ii) book value, (iii) going concern value, or (iv) cost of replacement.76 When added to the original amount of confiscated claims and with simple interest accumulating at 6%, it calculated a total debt to former owners of $5.364 billion as of August 1993 and some $12 bullion in June 1998.77 Yet not only has this staggering amount continued to climb over time, but it also does not include Cubas debt to foreign governments and commercial banks and, more importantly, the claims of Cuban nationals. In 1995, one crude estimate of the Cuban national expropriation claims put their aggregate value at $7 billion, not including interest.78

Though many people gave up on the prospect of retaking their lands over time, they refused to give up on receiving some sort of compensation. As late as 2006, for example, the De La Cmara family, whose patriarch Jos Ignacio was forced to sign over the assets of his oil company in 1960, was lobbying the administration of George W. Bush to pull the U.S. visas of business executives from European, Canadian, and South American firms operating on their property in hopes of leveraging a financial settlement.79 While the Helms-Burton Act makes foreign firms liable to U.S. lawsuits or forfeiture of U.S. visas for doing business on property confiscated from Cuban-Americans or U.S. companies in Cuba, it does so only at the discretion of the President and Bush remained reluctant to green light a Helms-Burton suit for fear of alienating allies with big investments there.

The issue thus remained stagnant for decades because Fidel Castro defied all odds and the status quo remained unchanged. Still, thousands of people held out hope for a democratic transition and the restitution of their expropriated property. We find several clear historical precedents for such resolutions, namely in the democratic transitions of former Soviet satellite states:

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Czechoslovakia: The Restitution Model

During its post-Communist democratic transition, the former Czechoslovakian Federal Republic (CSFR) adopted the purest form of the restitution model. The three basic notions common to all forms of the Restitution Model are: (a) the laws deal primarily with commercial property rather than residential property; (b) various conditions are set forth which former owners must meet before qualifying for restitution; (c) the laws are based on a clear deadline for filing claims.80

Opting to enact different laws for different types of property, the CSFR based its restitution proceedings on three Federal Acts: the Small Federal Restitution Act (SFRA), which governed the restitution of small property (e.g. small businesses and apartment buildings); the Large Federal Restitution Act (LFRA), which governed the restitution of large property, except where the property was in use by natural persons or foreign entities;81 and the Federal Land Act (FLA), which governed the restitution of agricultural land and forests to the original owners.82 Under these acts, all restitution claims had to be made before the expiry of a government- mandated time limit which has long since passed. Expatriates were eligible to claim restitution for small property, but not for large property, and only resident citizens were entitled to the restitution of agricultural and forestry lands. Interestingly, the CSFR did not set up an agency to administer to review restitution claims, leaving the matter to negotiation between the former owner and the person occupying the property.83

Hungary: The Compensation Model

Unlike Czechoslovakia, Hungary chose a route closer to the compensation model. In July 1991, the Hungarian Parliament passed the Law to Provide Partial Compensation for Unjust Damage Caused by the State to the Property of Citizens, which relied on compensation in the form of government-issued interest-bearing certificates that could be used to buy state-owned property, businesses, or shares in businesses sold by the State Property Agency or local government.84 There were several restrictions on these certificates. Former owners were generally given priority to acquire confiscated property, but not in the case of apartments, and purchasers of agricultural land were limited to those who were currently farming and living in a community and who were prepared to continue the use of land for farming purposes.85

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.86 Still, while foreign citizens and residents could not reclaim their rural holdings, they could claim compensation if they were Hungarian citizens at the time of expropriation. Hungary established compensation offices in each county and in Budapest as well as an appellate National Compensation Office (also in Budapest) to administer remedies.

Germany: A Mix of the Restitution and Compensation Models

Upon reunification, Germany adopted a heavily modified version of the restitution model combined with elements of the compensation model, assigning responsibility for handling expropriation claims to local property registries. On one hand, German courts deemed the seizures that took place between 1945 and 1949 in the German Democratic Republic (GDR) under Soviet occupation unrecoverable. However, as per the 1990 Property Law,87 any property confiscated by the East German government and subsequently transferred either to a third party or state ownership were to be returned to its former owners (or their successors) and those owners (or their successors) could choose compensation or restitution. For expropriated property specifically, not property taken for public administration, the Special Investments Law88 provided for the right of a present owner to sell property, even if the former owner had filed a claim, if the present owner can obtain a certificate stating the the property has a special investment purpose.89 Finally, the Obstacles Removal Law of March 1991, which amended both aforementioned laws, moved Germany away from reconveyance and towards compensation as the primary form of restitution.90 Germany also concluded a 1992 settlement with the U.S. concerning East Germanys expropriations of assets belonging to U.S. nationals.91

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Current Situation

On December 17, 2014, in an astonishing twist of fate, U.S. President Barack Obama and Cuban President Ral Castro92 announced that the United States and Cuba would restore full diplomatic ties for the first time in over fifty years. The announcement followed a prisoner swap: the three still-jailed members of the Cuban Five for a U.S. intelligence asset, Rolando Sarraff Trujillo, who had been imprisoned in Havana for nearly twenty years.93 Alan Gross, who was arrested while working as a subcontractor for the U.S. Agency for International Development (USAID), was released on humanitarian grounds that morning as well. As part of the process of rapprochement, Obama also eased restrictions on remittances, travel, and banking and had Cuba removed from the U.S. list of state sponsors of terrorism. Cuba, on the other hand, released 53 prisoners that the U.S. had designated as political dissidents.

Yet there are still several sticking points on the road to normalization of U.S.-Cuba relations and one of the key issues at stake is that of restitution. Such a momentous shift in the status quo has renewed the hopes of both U.S. and Cuban nationals holding out for restitution or compensation for outstanding property claims. Early resolution of this issue is also fundamental because U.S. laws require the settling of U.S. citizen expropriation claims before foreign aid can resume and because it will contribute to political and economic stability and reduce the perceived political costs of investing in Cuba.94 Though the claims of U.S. nationals pose the bigger obstacle to normalization, the Cuban government can hardly settle these claims and put the issue to bed without addressing the claims of Cuban nationals. Not only do these claimants constitute a vocal and politically potent minority in the United States (as the descendants of the original owners, many are also likely to be U.S citizens), but, more importantly, arbitrary expropriation of property contravenes internationally recognized human rights. Article 14 of the Universal Declaration of Human Rights of 1948, a fundamental constitutive document of the United Nations that Cuba voted to ratify, reads as follows:95

(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.96

However, the question of restitution remains a thorny problem and resolving it will require Cuba, the United States, and the international community to contend with the following issues:

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Cuba is still a communist country

All historical precedents for restitution schemes, including the aforementioned case studies, pertain to once communist countries making a democratic transition to a market economy predicated on private property. Likewise, most, if not all, existing scholarly proposals for the resolution of the outstanding property claims of Cuban and U.S. nationals against the Cuban government assume a post-Communist and a post-Castro Cuban government. For many years, the U.S. held that, once Cuba established a process by which former owners could settle their property disputes, it could legally reestablish relations.97 Yet, reevaluating what was clearly a failed Cold war relic in U.S. foreign policy, the re-establishment of relations came at time when Cuba was neither post-communist nor post-Castro. The Cuban Constitution of 1976 promulgated by Fidel still stands and private property is not a hallmark of the Cuban economy.

However, Ral Castro98 has introduced several notable market-oriented reforms. While many Cubans describe Fidel as an idealist who wanted to change the world, they think of Ral as a pragmatist who wants to change Cuba. Since assuming presidential leadership of Cuba in 2008, he has removed restrictions against the purchase of numerous products not available under Fidels administration (e.g. DVD-players, computers, rice cookers, and microwaves), turned over unused state-owned land to private farmers and cooperatives, liberalized the sale of homes and automobiles (people can now buy and sell houses and cars), and expanded authorizations for opening small businesses in the private sector. He also erected the Mariel Free Trade Zone (FTZ), west of Havana, and appealed to international companies to invest over $8 billion in 246 specified development projects that Cubas economy desperately needs. The 2014 Portfolio of Opportunities for Foreign Investment, prepared by the Ministry of Foreign Trade and Investment, reveals tensions between Cuban elites who are prepared to dramatically open their economy to international capital and others that seek carefully controlled change.99 While Rals style has been dubbed relentless gradualism, these kinds of reforms are more conducive to the resolution of the question of restitution. Still, Ral Castro intends to maintain the influence of the Communist Party and, as it stands, restitution programmes must take that into account.

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Claimant Eligibility

The first question that any restitution programme must answer is deceptively simple: Who can make claims? As discussed, both U.S. and Cuban nationals have outstanding property claims against the Cuban government. However, like those of U.S. nationals, many of the claims of Cuban nationals also await on the other side of the Florida Straits, that is, they belong to Cuban exiles and their Cuban-American descendants. This means that both the rights of expatriates and their successors as claimants are on the negotiating table. Recall that Czechoslovakia conditioned migrs claims on the basis of the type of property expropriated and precluded those that had become citizens of other countries from owning land altogether while Hungary allowed them to claim compensation if they were Hungarian citizens at the time of expropriation. On the other hand, Czechoslovakia offered more liberal approach for the claims of heirs and the immediate family of deceased owners. Because a considerable amount of time has passed since Castros expropriations, the Cuban government will have to decide whether the heirs of former owners are entitled to share in the remedies, and if so, who qualifies as an heir for purposes of determining eligibility for compensation and/or restitution.

Adjudication of Claims

The question of eligibility is closely linked to that of adjudication. The outstanding claims of U.S. nationals and Cuban nationals have separate legal and political bases and may have to be addressed differently by the Cuban government.100 On one hand, the claims of U.S. nationals are based on well-recognized international law principles that require prompt, adequate and effective compensation to aliens whose property is confiscated.101 In the past, the United States and the expropriating country have arrived at a settlement102 involving a lump sum payment by the expropriating country that was a fraction of the total estimated value of the confiscated assets.103 The proceeds were then distributed among the claimants in proportion to their losses. Moreover, as mentioned, U.S. policy dictates that resolving the claims of U.S. nationals against the Cuban government is a precondition to the normalization of relations, an outcome desirable to not only the U.S. and Cuba but also to the international community. In contrast, international law does not provide a remedy to domestic claimants for the expropriation of their assets by their own government. The claims of Cuban nationals must be handled in accordance with Cuban laws. Yet many Cuban nationals who moved to the States after Castros expropriation campaign and ultimately became U.S. citizens advocate being added to the U.S. claimants class so they can be included in the potential settlement whereas others seek to be recognized as not bound by an agreement between the U.S. and Cuba so that may they pursue their claims in U.S. courts or be included in Cubas domestic restitution package.

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depending upon the means originally used (expropriation, confiscation, seizure of abandoned property) to justify the takings.104 Still, others have proposed addressing the distinct treatment of properties by value rather than by type.

In addition, several expropriated properties have been destroyed, lost, or irreversibly converted for state use, making natural restitution impossible. Providing substitutional restitution or compensation to former owners is thus the only option. For either natural or substitutional restitution, however, the Cuban government must decide whether to impose restrictions on a former owners use of re-acquired property. Examples of such restrictions include limiting the amount of land a former owner may re-acquire and conditioning the use of the returned property by requiring that the former owner use it exclusively for state-related needs.105

Finally, the claims of foreign companies that obtained equity in confiscated property must also be accounted for. In Czechoslovakia, third parties who invested in confiscated property were obliged to enter into contracts with claimants to recover their investments.106

The Nature of Compensation

Compensation involves providing claimants with financial restitution for the value of the confiscated property. It usually comes in the form of a lump sum payment or interests in government securities. With respect to the latter, there is a whole constellation of choices available, including annuities, bonds, promissory notes, as well as combinations of several forms. Another option is the use of stock certificates in privatized enterprises. Each comes with their own set of strings attached. For example, the level of compensation provided in Hungary was limited by the fact that the government vouchers it offered traded for less than 50% of their face value due to its low value as a source of annuity payments, ultimately sowing widespread dissatisfaction with its compensation programme.107 Moreover, for both substitutional restitution and compensation, the Cuban government must determine the bases for valuing expropriated property. It also must give due weight to the valuations of claims certified by the FCSC. There will be cases in which the state may have to pay an adjustment to the former owner for a decrease in the value of his property or vice versa as well.

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Natural and Financial Insufficiency

Cuba lacks the natural and financial resources necessary to satisfy a majority of the expropriation claims for either restitution and compensation. If even half of all the Cuban-Americans who lost property return to Cuba and file claims for restitution, virtually all the property on the island will be locked up in litigation for years to come. In addition, although the Cuban economy has seen significant improvements since the hard times of the Special Period,108 compared to pre-reform Europe, it is much poorer, has a less diversified base of exports, and remains far from orchestrating a full-scale transition to a market economy. Though some have suggested that a substantial loan on favorable terms from the U.S. and/or the aid of international financial institutions could resolve Cubas claims, these options are problematic, if not infeasible, for two main reasons: the steep value of the claims and Cubas reluctance to subject itself to financial dependence either on the U.S. or on financial institutions that sees as controlled by Western powers. In fact, taking into account its foreign debt, which stands between $25 billion and $30 billion, we find that Cuba falls in the category of highly-indebted, poor countries (HIPC).109

Procedural and Evidentiary Matters

Most restitution schemes establish government agencies, commissions, or committees with legal authority over the settlement of claims. Some create appellate divisions or provide for appellate review through the courts.110 Since the claims of Cuban nationals must be handled in accordance with Cuban laws, the Cuban government will have to create some sort of agency or court to determine the applicable laws and field the applicable claims. Regardless of the structure, the body must operate with transparency and accountability. One possible route is establishing the body via treaty or executive agreement between the U.S. and Cuba. A successful restitution scheme also requires well-defined procedures, such as enforcing strict deadlines for filing claims, implementing clear rules establishing claimant's eligibility, and applying fixed evidentiary standards of proof.111 In former communist countries, records of original ownership are difficult to obtain, so proving ownership may represent a significant hurdle for many claimants.112 Cubas eventual restitution scheme will have to contend with this fact in some way.

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Cuba

In addressing the question of restitution, nothing is more important to Cuba than maintaining its national sovereignty, especially vis-a-vis the United States. Where changes are necessary, Cuba is also an advocate of gradualism. While Ral Castro has introduced a series of market-oriented reforms, Cuba is not looking not looking for a full-fledged transition and wishes to maintain the influence of the Communist Party. The Cuban people are generally supportive of Rals path and, though some may embrace more dramatic change than others, the question is less about scale and more about pace. Cuba is also wary of too much foreign ownership. Even as it courts foreign investors, the Cuban government explicitly stated that in it will favor the diversification of different countries in its selection of foreign partners.113 However, Cuba wants to normalize ties with the United States, which requires fairly resolving the claims of U.S. and Cuban nationals, for the sake of stimulating economic growth and lessening its perilous dependence on a faltering Venezuela. Previous Cuban efforts to launch free trade zones like the aforementioned Mariel FTZ have floundered in part because of the continuing closure of the most logical export market, the United States.114 Moreover, in spite of Cubas balking at foreign ownership and the somewhat thorny relationship between Cubans on the island and the Cuban exile community, Cuban exiles may be the best equipped to breathe new life into the Cuban economy. Although many will refuse to negotiate with the Castro brothers, others are eager to help rebuild Cubas economy.

The United States

After decades of severed ties, the United States has finally turned the page on its Cold War policy of diplomatic isolation against Cuba. Although public opinion among Cuban-Americans with respect to this policy change is on the up and up, a staunchly conservative Cuban minority, located primarily in Miami, vehemently rejects it and strong opposition among Republicans in the U.S. Congress prevents the embargo from being lifted.115 Still, as previously mentioned, in order for the normalization of relations to take place, U.S. law mandates that Cuba resolve the expropriation claims of U.S. nationals. As a result, the U.S. government will seek to ensure that its citizens are fairly compensated for the losses that they incurred. They are likely to run into difficulties with their own citizens, primarily Cuban-Americans, who deny the legitimacy of the Castro government and expected to sort out their claims with a post-Castro and post-Communist Cuba. Non-tangible remedies, namely the recognition of Castros campaign of expropriation as a violation of human rights, may also come into play.

Bloc Positions

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Latin America and the Caribbean

Latin America has long opposed the U.S. embargo against Cuba. Yet Cubas relations with Latin America and the Caribbean have expanded significantly in breadth and depth during the last decade as a result of two key developments: the leftward shift in Latin American politics and Cubas gradual process of reform. In recent years, Cuba has sent teachers throughout the region to improve literacy rates, launched the Mariel FTZ in conjunction with the Brazilian government, and is currently hosting the peace talks between the Colombian government and the Colombian guerilla group known as the FARC. Consequently, in May 2009, at an historic meeting of the Organization of American States (OAS) in Honduras and against the strong wishes of the United States, the Latin American countries voted unanimously that Cuba should be returned to full membership in the organization. In April 2012, following the sixth Summit of the Americas, some Latin American leaders threatened to boycott the seventh Summit in April 2015 if Cuba was barred from attending.116 Cuba ultimately received an invitation for the April 2015 Summit. The historic announcement of the opening of U.S.-Cuba relations, hailed even by Nicols Maduro, the most anti-American leader in Latin America, thus came in the context of accelerating opposition against the United States diplomatic isolation of Cuba. In addition, the principle of non-intervention is a strong feature of Latin American foreign policies and within the region the acceptance of political diversity has been perceived as a sign of political maturity.117This means that Latin American countries will be looking out for Cubas interests in its restitution negotiations with the U.S. as well as to secure more favorable conditions from the United States for investing in Cuba.118

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Nations Investing in Cuba

The legal restrictions under the U.S. embargo have made Cuba a riskier country to invest in for outside nations, which can be penalized for banking transactions with Cuba that pass through the United States. Plus, as mentioned, the opening of the closest local export market, the United States, would make investments and trade with Cuba more profitable for other countries. This means that nations looking to invest in Cuba want the U.S. to normalize relations and lift the embargo, both of which require the resolution of the outstanding claims of U.S. and Cuban nationals, for the sake of their business ventures. There are also more immediate concerns then the lifting of the U.S. embargo. Investors want the issue of restitution resolved to avoid disputes with the original owners of expropriated property and assets. There is enough uncertainty in any business without having to worry about claims against the legal title to physical assets central to the operation.119

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1. Most existing proposals for the resolution of the outstanding property claims of U.S. and Cuban nationals assume a post-Communist and a post-Castro Cuban government, but this is not the case. What kinds of ramifications will this have for the development of a restitution programme? What guidelines can the Legal Committee given the circumstances?

2. How should Cuba decide the criterion for claimant eligibility? Should it be conditioned on citizenship status, filial relations, type of property, etc.?

3. What legal mechanisms should Cuba adopt for resolving the claims of U.S. and Cuban nationals? What are the applicable domestic and international laws? Should it submit itself for international arbitration in disputed cases?

4. What combination of restitution and compensation is most advisable for Cuba? What lessons can it learn from the post-Soviet experiences of Central and Eastern Europe? How, if at all, can the international community help it address the question of insufficiency?

5. What administrative structure should Cuba set up to carry out its restitution programme? How can it go about upholding the principles of transparency and accountability in the eyes of the international community?

6. How do the following shape your countrys stance on the issue of restitution in Cuba: its relationship with Cuba and the United States, the role of non-intervention in its foreign policy, its economic portfolio and investment prospects, and its attitudes toward Cubas economic system?

Questions to Consider

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suggestions for further researCh

Carrandi, A. (2008). Resolution of the Outstanding Property Claims Between Cuba and the United States: Comment. Association for the Study of the Cuban Economy. http://www.ascecuba.org/c/wp-content/uploads/2014/09/v18-carrandi.pdf

Consuegra-Barquin, J. (1994). Cubas Residential Property Ownership Dilemma: A Human Rights Issue Under International Law. Rutgers Law Review 46(2).

Feinberg, R. (2014). Cubas Foreign Investment Invitation: Insights into Internal Struggles. The Brookings Institution. http://www.brookings.edu/blogs/up-front/posts/2014/11/21-cuba-foreign-investment-feinberg

Golay, C. & Cismas, I. Legal Opinion: The Right to Property from a Human Rights Perspective. International Center for Human Rights and Democratic Development. http://www.geneva-academy.ch/docs/publications/ESCR/humanright-en.pdf

Guitirrez, N. Righting Old Wrongs: A Survey of Restitution Schemes for Possible Application to a Democratic Cuba. University of Miami International and Comparative Law Review 4(1).http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1189&context=umiclr

Kern, A. & Mills, J. (1995). Resolving Property Claims in a Post-Socialist Cuba. Georgetown International Law Journal 27(137).

Norton, P. (1991). A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation. American Journal of International Law.

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1. United Nations General Assembly Sixth Committee (1958). United Nations Conference on the Law of the Sea, 1958. http://legal.un.org/diplomaticconferences/lawofthesea-1958/lawofthesea-1958.html2. United Nations General Assembly Sixth Committee (1961). Vienna Convention on Diplomatic Relations. http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf3. United Nations General Assembly Sixth Committee (1969). Vienna Convention on the Law of Treaties. http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf4. United Nations General Assembly Sixth Committee (1979). International Convention against the Taking of Hostages. http://www.un.org/en/sc/ctc/docs/conventions/Conv5.pdf5. United Nations General Assembly Sixth Committee (1998). Rome Statute of the International Criminal Court. http://legal.un.org/icc/statute/99_corr/cstatute.htm6. Ad Hoc Committee established by General Assembly resolution 51/210 (1996). Measures to Eliminate International Terrorism. http://www.un.org/law/terrorism/7. Alston, Philip. "Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions." OHCHR. N.p., 28 May 2010. Web. 24 Aug. 2015.8. http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf9. Gordon, Michael R. "Russia Bombs Chechnya Sites; Major Step-Up." New York Times. N.p., 24 Sept. 1999. Web. 24 Aug. 2015.10. http://www.nytimes.com/1999/09/24/world/russia-bombs-chechnya-sites-major-step-up.html11. Ibid. 12. Cronin, Audrey. Ending Terrorism: Lessons for Defeating Al Qaeda. London: International Institute for Strategic Studies, 2008. Web. 24 Aug. 2015.13. Ibid at 7.14. "Domestic Legal Framework for Counterterrorism." Human Rights Watch. N.p., June 2008. Web. 24 Aug. 2015.15. http://www.hrw.org/reports/2008/russia0608/6.htm16. "Federal Law NO. 35-FZ of 6 March 2006 on Counteraction Against Terrorism." Committee of Experts on Terrorism. N.p., n.d. Web. 24 Aug. 2015.

17. http://www.coe.int/t/dlapil/codexter/Source/country_profiles/legislation/CT%20legislation%20-%20Russian%20Federation.pdf18. Ibid at 12. 19. Kretzmer, David. "Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?" The European Journal of International Law 16.2 (2005).20. http://www.colonelby.com/teachers/krichardson/Grade%2012/Carleton%20-%20Int%20Law%20Course/Week%2011/TargetedKillingTerrorists.pdf21. Philips, Alan. "Israeli rocket kills Fatah militant." The Telegraph. N.p., 10 Nov. 200. Web. 24 Aug. 2015.22. http://www.telegraph.co.uk/news/worldnews/middleeast/israel/1373950/Israeli-rocket-kills-Fatah-militant.html23. Ibid. 24. Alon, Gideon, and Amos Harel. "IDF Lawyers Set 'Conditions' for Assassination Policy." Haaretz. N.p., 4 Feb. 2002. Web. 24 Aug. 2015.25. http://www.haaretz.com/print-edition/news/idf-lawyers-set-conditions-for-assassination-policy-1.5391126. Ibid at 7. 27. "A REPORT TO THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE: AFGHANISTANS NARCO WAR: BREAKING THE LINK BETWEEN DRUG TRAFFICKERS AND INSURGENTS ." Committee on Foreign Relations. N.p., 10 Aug. 2009. Web. 10 Aug. 2015.28. http://www.gpo.gov/fdsys/pkg/CPRT-111SPRT51521/pdf/CPRT-111SPRT51521.pdf29. Miller, Greg. "Under Obama, an emerging global apparatus for drone killing." Washington Post. Ed.30. Martin Baron. N.p., 27 Dec. 2011. Web.31. "Joint Resolution: Authorization for Use of Military Force." U.S. Government Printing Office. N.p.,32. 18 Sept. 2001.33. Ibid.34. Ibid. 35. Daskal, Jennifer, and Stephen Vladeck. "After the AUMF." Harvard National Security Journal 536. (2014): 115-26. Web.37. Zenko, Micah. "Transferring CIA Drone Strikes to the Pentagon." Council on Foreign Relations.38. N.p., Apr. 2013. Web.39. Drummond, Keith. "The

Legality of Americas Program of Targeted Killings by Unmanned Aerial Vehicle." E-International Relations. N.p., 18 Feb. 2011. Web. 24 Aug. 2015.40. http://www.e-ir.info/2011/02/18/the-legality-of-americas-program-of-targeted-killings-by-unmanned-aerial-vehicles/41. Rushe, Dominic, Chris McGreal, Jason Burke, and Luke Harding. "Anwar al-Awlaki death: US keeps role under wraps to manage Yemen fallout." N.p., 30 Sept. 2011. Web. 24 Aug. 2015.42. http://www.theguardian.com/world/2011/sep/30/anwar-al-awlaki-yemen?newsfeed=true43. "UAV evolution how natural selection directed the drone revolution." Army-Technology. N.p., 15 Nov. 2012. Web. 24 Aug. 2015.44. http://www.army-technology.com/features/featureuav-evolution-natural-selection-drone-revolution45. Reisman, W. Michael, "Assessing Claims to Revise the Laws of War" (2003). Faculty Scholarship46. Series. Paper 1008.47. Byman, Daniel. "Why Drones Work." Foreign Affairs. N.p., July 2013. Web.48. Fenrick, United States Joint Doctrine for Targeting, Joint Publication 3-60 (2002).49. McNeal, Gregory S. "Targeted Killing and Accountability." The Georgetown Law Journal 102.68150. (2014): 681-794. Web. 13 July 2014.51. Declaration of Jonathan Manes, Exh. A: The Joint Targeting Definitions and Process.52. Ibid at 27.53. Ibid. 54. "War." Stanford Encyclopedia of Philosophy. N.p., 28 July 2005. Web. 24 Aug. 2015.55. http://plato.stanford.edu/entries/war/#2.156. Ibid.57. Tams, Christian. "The Use of Force against Terrorists." The European Journal of International58. Law 20.2 (2009): 359-97. Web.59. Cannizzaro, Enzo. "Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese60. war." International Review of the Red Cross 88.864 (2006). Web.61. Treaties and States Parties to Such Treaties." International Committee of the Red Cross.

62. "Rome Statute of the International Criminal Court." ICC-CPI (2010).63. 1923 Hague Rules of Air Warfare (Article 24)64. Groves, Steven. "Drone Strikes: The Legality of U.S. Targeting Terrorists Abroad." The Heritage Foundation. N.p., 10 Apr. 2013. Web. 24 Aug. 2015.65. http://www.heritage.org/research/reports/2013/04/drone-strikes-the-legality-of-us-targeting-terrorists-abroad66. Gasser, Hans-Peter. "INTERNATIONALIZED NONINTERNATIONAL ARMED CONFLICTS: CASE STUDIES OF AFGHANISTAN, KAMPUCHEA, AND LEBANON." THE AMERICAN UNIVERSITY LAW REVIEW 33.145. http://americanuniversitylawreview.org/pdfs/33/33-1/gasser.pdf67. Ibid at 44. 68. Melzer, Nils. "Interpretive guidance on the notion of Direct participation in hostilities under international humanitarian law." International Committee on the Red Cross.69. https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf70. Additional Protocol II to the Geneva Convention, Article 13(3) 71. Additional Protocol I, supra note 2, art. 51(3); AP II, supra note 2, art. 13(3)72. ICRC, Commentary, supra note 23, 1679. 73. Schmitt, Direct Participation, supra note 7, at 509; Schmitt, Humanitarian Law, supra note 5, at 5434474. Friedersdorf, Conor. "Flawed Analysis of Drone Strike Data Is Misleading Americans." The Atlantic. N.p., 18 July 2012. Web.75. http://www.theatlantic.com/politics/archive/2012/07/flawed-analysis-of-drone-strike-data-is-misleading-americans/259836/76. Ibid.77. Kretzmer, supra note 30, at 91; W. Hays Parks, Air War and the Law of War, 32 A.F. L. REV. 1, 134 (1990).78. ICRC, 2005 Report, supra note 3, at 6365. 79. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.80. Ibid.81. Dworkin, Anthony. "DRONES AND TARGETED KILLING: DEFINING A EUROPEAN POSITION ."

enDnotes

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European Council on Foreign Relations. N.p., n.d. Web. 24 Aug. 2015.82. http://www.ecfr.eu/page/-/ECFR84_DRONES_BRIEF.pdf83. Masters, Jonathan. "Targeted Killings." Council on Foreign Relations. N.p., 23 May 2013. Web. 24 Aug. 2015.84. http://www.cfr.org/counterterrorism/targeted-killings/p962785. Harress, Christopher. "The Rise Of China's Drone Fleet And Why It May Lead To Increased Tension In Asia." International Business Times. N.p., 11 Jan. 2014. Web. 24 Aug. 2015.86. http://www.ibtimes.com/rise-chinas-drone-fleet-why-it-may-lead-increased-tension-asia-153571887. Torres, Ida. "Japan considering shooting down drones that infringe into airspace." Japan Daily Press. N.p., 17 Sept. 2013. Web. 24 Aug. 2015.88. http://japandailypress.com/japan-considering-shooting-down-drones-that-infringe-into-airspace-1736030/89. http://foreignpolicy.com/2013/09/17/the-drone-war-comes-to-asia/90. Map of Cuba. World Atlas. http://www.worldatlas.com/webimage/countrys/namerica/caribb/lgcolor/cucolor.gif. 91. Ortiz, J. (2000). The Illegal Expropriation of Property in Cuba: A Historical and Legal Analysis of the Takings and a Survey of Restitution Schemes for a Post-Socialist Cuba. Loyola of Los Angeles International and Comparative Law Review 22(3).92. Padgett, T. (2006). Cuba After Castro: Can Exiles Reclaim Their Stakes? TIME Magazine. http://content.time.com/time/nation/article/0,8599,1223316,00.html 93. Ibid.94. Alexander, K. & Mills, J. (1995). Resolving Property Claims in a Post-Socialist Cuba. Law and Policy in International Business 27. 142-144.95. Cuban Constitution of 1940. art. 24. Political Database of the Americas. http://pdba.georgetown.edu/Constitutions/Cuba/cuba1940.html 96. Cuban Constitution of 1940. art. 87.97. Ortiz 2000, 328-332.98. Cuban Constitution of 1976. art. 14. http://www.constitutionnet.org/files/Cuba%20Constitution.pdf 99. Though food and medicine were exempted in 1961, the embargo was extended to include nearly all imports by 1962.100. On April 17th, 1961, under the government of John

F. Kennedy, the CIA-sponsored paramilitary group Brigade 2506 undertook the military invasion of the island in order to topple the Castro government.101. Travieso-Diaz, M. (1995) Some Legal and Practical Issues in the Resolution of Cuban Nationals Expropriation Claims against Cuba. University of Pennsylvania Journal of International Business Law 2(16). 219-220.102. Alfonso, J. & Lago, A. (1994). The Foreign Assistance Requirements of a Democratic Cuba. La Sociedad Econmica (the bulletin of economic policy organization La Sociedad Econmica de Amigos del Pas). 33. 103. 22 USC (United States Code) 1643(b).104. Alfonso & Lago 1994, 33.105. Travieso-Diaz 1995, 221.106. Padgett 2006.107. Harper, D. (1999). Restitution of Property in Cuba: Lessons Learned from Eastern Europe. Association for the Study of the Cuban Economy. 412.108. The government paid compensation instead in these cases.109. Heinz, V. (1994). The Czech and Slovak Law of Restitution. Speech given in Melbourne on occasion of the IBA conference. 1-2. http://www.heinzlegal.com/publik_vortraege/pub_download/speeches/CzechSlovakLaw.pdf 110. Travieso-Diaz 1995, 250.111. Harper 1999, 420.112. Ibid. at 421.113. Gruson, M. & Thoma, G. (1991) Investment in the Territory of the Former German Democratic Republic - A Change of Direction. Fordham International Law Journal 14. 114. Gruson & Thoma 1991, 561.115. A special investment purpose exists for: the maintenance or creation of employment in particular through the setting up of an industry or commercial establishment, or a service enterprise; the provision of housing for local people; or the installation of infrastructure necessary for one of the above. See Interim Report 1, p. 4, Fundacin Sociedad Econmica de Amigos del Pas.116. Gruson & Thoma 1991, 1158.117. Travieso-Diaz 1995, 226.118. Fidel Castro officially handed over the presidential reins to his brother, Ral, in 2008. He previously exercised presidential powers in an acting capacity between 2006 and 2008 due to Fidels illness.119. Lee, B. & Renwick, D. (2014). CFR Backgrounders: U.S.-Cuba Relations. Council on Foreign Relations. http://www.cfr.org/cuba/us-cuba-relations/p11113 120. Travieso-Diaz 1995, 222.121. Though the two main

binding human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), founded on the Declaration remain silent on property rights, several other core human rights treaties refer to the right to property and explicitly prohibit its arbitrary confiscation. However, most of these were adopted long after Castros campaign of expropriation so they are not applicable.122. The Universal Declaration of Human Rights. (1948). The United Nations. http://www.un.org/en/documents/udhr/ 123. Harper 1999, 411.124. Perez, R. Newly elected President Raul Castro greets the crowd in Santa Clara, Cuba. Reuters. http://www.brookings.edu/~/media/research/files/papers/2008/3/cuba-desai/03_cuba_desai.pdf 125. Feinberg, R. (2014). Cubas Foreign Investment Invitation: Insights into Internal Struggles. The Brookings Institution. http://www.brookings.edu/blogs/up-front/posts/2014/11/21-cuba-foreign-investment-feinberg 126. Travieso-Diaz 1995, 222.127. Consuegra-Barquin, J. (1994). Cubas Residential Property Ownership Dilemma: A Human Rights Issue Under International Law. Rutgers Law Review 46(2). 196.128. Note that the claims by citizens of countries other than the United States, which were much smaller in quantity, have been settled through agreements between Cuba and the respective countries (e.g. Spain, France, Switzerland, and Canada). 129. Travieso-Diaz 1995, 226.130. See Norton, P. (1991). A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation. American Journal of International Law 85. 482-86. and Kern, A. & Mills, J. (1995). Resolving Property Claims in a Post-Socialist Cuba. Georgetown International Law Journal 27(137). 186-190. arguing for the formation of such a tribunal.131. Foster, F. (1996). Restitution of Expropriated Property: Post Soviet Lessons for Cuba. Columbia Journal of Transnational Law 34. 633-5.132. Ibid. at 116.133. Travieso-Diaz 1995, 245.134. Foster 1996, 633.135. Travieso-Diaz 1995, 247.136. Ibid.137. Guitirrez, N. Righting Old Wrongs: A Survey of Restitution Schemes for Possible Application to a Democratic Cuba. University of Miami International

and Comparative Law Review 4(1). 123.138. Simonetti, K. et al. (1994). Compensation and Resolution of Property Claims in Hungary, in Cuba in Transition: Options for Addressing the Challenge of Expropriated Properties. Ed. Joan Klein. Gainesville: Levin College of Law, University of Florida.139. Note that most of the scholarly proposals for restitution in Cuba were drawn up during the 1990s during the Special Period.140. Carrandi, A. (2008). Resolution of the Outstanding Property Claims Between Cuba and the United States: Comment. Association for the Study of the Cuban Economy. 72. http://www.ascecuba.org/c/wp-content/uploads/2014/09/v18-carrandi.pdf 141. Foster 1996, 633-645.142. Ibid. at 656.143. Ibid. at 643.144. Feinberg 2014.145. Ibid.146. This requires the repeal of the Helms-Burton Act.147. For decades, the United States blocked Cuba from attending the meeting.148. Hirst, M. (2013). Cuban-Latin American and Caribbean relations: challenges beyond normalisation. Norwegian Peacebuilding Resource Center (NOREF). 2. http://www.peacebuilding.no/var/ezflow_site/storage/original/application/4ddd027eb8853fc6b6464705b630c332.pdf 149. Pew Research Center (2015). Latin Americans Express Strong Support for U.S. Restoring Relations with Cuba and Ending Trade Embargo. Spring 2015 Global Attitudes Survey. http://www.pewglobal.org/2015/07/21/latin-americans-approve-of-u-s-re-establishing-diplomatic-ties-with-cuba/#support-in-latin-america-for-ending-embargo 150. Jorge, A. & Suchlicki, J. (1994). Investing in Cuba: Problems and Prospects. Transaction Publishers: Coral Gables, Florida.

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