1 See Contemporary Practice of the United States Relating to International Law, 90 AJIL 442, 448–54 (1996); SC Res. 1067, paras. 2, 6 (July 26, 1996); Resolution Adopted by the Council of the International Civil Aviation Organization at the Tenth Meeting of Its 147th Session on March 6, 1996, reproduced as Appendix A to International Civil Aviation Organization, Report of the Investigation Regarding the Shooting Down of Two U.S.-Registered Private Civil Aircraft by Cuban Military Aircraft on 24 February 1996, Doc. C-WP/10441 (1996); Report on the Situation of Human Rights in Cuba Submitted by the Special Rapporteur, Mr. Carl-Johan Groth, in Accordance with Commission Resolution 1996/69 and Economic and Social Council Decision 1996/275, UN Doc. E/CN.4/1997/53, para. 37 (1997).

2 Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, Pub. L. No. 104–114, 110 Stat. 785 (codified at 22 U.S.C. §§6021–6091, 1643l, and 28 U.S.C. §1611 (Supp. II 1996)). See Agora: The Cuban Liberty and Democratic Solidarity (Libertad) Act, 90 AJIL 419 (1996).

3 Proclamation No. 3447, 27 Fed. Reg. 1085 (1962). See Andreas F. Lowenfeld, Congress and Cuba: The Helms-Burton Act, 90 AJIL 419, 420–22 (1996).

4 Pub. L. No. 104–132, §221, 110 Stat. 1214, 1241 (1996) (codified at 28 U.S.C. §§1605(a), 1610(a) (Supp. II 1996)) [hereinafter Antiterrorism Act]. See generally Leslie McKay, A New Take on Antiterrorism: Smith v. Socialist People's Libyan Arab Jamahiriya, 13 Am. U.J. Int'l L. & Pol'y 439 (1997).

5 28 U.S.C. §§1330, 1602–1611 (1994).

6 Pub. L. No. 104–208, §589, 110 Stat. 3009 (1996) (codified at 28 U.S.C. §1605 note (Supp. II 1996)) [hereinafter Foreign Operations Act].

7 Cuba did not appear. It sent a diplomatic note to the Department of State asserting that the court had no jurisdiction over it. 996 F.Supp. 1239, 1242 & n.1. Under 28 U.S.C. §1608(e), default judgments against foreign states are prohibited.

8 Antiterrorism Act, supra note 4, §221 (c), 110 Stat, at 1243; Alejandre, 996 F.Supp. at 1250 n.9.

9 For other limitations, see 28 U.S.C. §1605(f), (g) (1994).

10 28 U.S.C. §1605(e)(1). See 28 U.S.C. §1350 note (“extrajudicial killing” is “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people”).

11 996 F.Supp. at 1248. The court looked to general common law principles in determining agency under the Foreign Operations Act. Id. In addition, it apparently assumed that the term “agent,” see 28 U.S.C. §1605 note (referring to “[a]n official, employee, or agent of a foreign state … acting within the scope of his or her office, employment, or agency”) includes entities other than individuals. While the reference to “his or her” might suggest otherwise, the better explanation is that the Act, part of a grab bag of appropriations and other statutes enacted right before the new fiscal year, was badly drafted.

12 28 U.S.C. §1605(a) (7) (A) (referring to designation by Secretary of State under the Foreign Assistance Act of 1961, §620A, 22 U.S.C. §2371(a), or the Export Administration Act of 1979, §6(j), 50 U.S.C. App. §2405(j)).

13 See 47 Fed. Reg. 16,623 (1982) (Cuba); 31 C.F.R. §596.201 (1997) (current list) (Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria).

14 28 U.S.C. §1605(a)(7)(B)(ii).

15 See 28 U.S.C. §1605(a) (7)(B)(i) (when “the act occurred in the foreign state against which the claim has been brought,” that state is immune if “ the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration”).

16 996 F.Supp. at 1248. Cf. International Civil Aviation Organization, supra note 1, at 90–91 (same).

17 28 U.S.C. §1350 (1994).

18 Pub. L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §1350 note (1994)).

19 28 U.S.C. §1605(a) (7) (incorporated by reference in 28 U.S.C. §1605 note).

20 The requirements specified in §1605(a) (7) must also be satisfied, and no action may be maintained if a U.S. official, acting within the scope of his or her employment, “would not be liable for such acts if carried out within the United States.” 28 U.S.C. §1605 note.

21 996 F.Supp. at 1247–49.

22 Id. at 1250 n.9.

23 The damages were divided roughly equally among the three sets of plaintiffs. Id. at 1249–50.

24 28 U.S.C. §1605 note. Punitive damages could not be awarded against Cuba, a foreign state. 28 U.S.C. §1606. The court held that it had subject matter jurisdiction to award punitive damages against the Cuban Air Force as an “agency or instrumentality” of Cuba. 996 F.Supp. at 1249 n.8 (citing 28 U.S.C. §1606 (“a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages”)). The court apparently treated its conclusion that the Air Force was an “agency” of the Cuban Government under the Foreign Operations Act as sufficient to determine that it was an “agency or instrumentality” under the FSIA's provision permitting punitive damages against such entities. It did not address whether the Air Force is a “separate legal person, corporate or otherwise,” as specified in 28 U.S.C. §1603(b)(1). Id. Compare Marlowe v. Argentine Naval Comm'n, 604 F.Supp. 703, 706–07 (D.D.C. 1985) (Argentine Naval Commission, a part of the Navy, is a foreign state, not agency or instrumentality), aff'd per curiam on other grounds, 808 F.2d 120 (D.C. Cir. 1986) with Behring Int'l, Inc. v. Imperial Iranian Air Force, 475 F.Supp. 396, 403 (D.N.J. 1979) (Air Force “is an agency or instrumentality of a foreign state, Iran”).

25 996 F.Supp. at 1252.

26 Id. at 1253. That the MIGs were used to kill civilians made it apt to award a portion (1%) of the fleet's value for each death. Of course, if all that stood between most governments and bankruptcy were one hundred serious human rights violations, national insolvency would be the order of the day. Alexandre's approach is most appropriate where the state consistently violates human rights but is unlikely to be held accountable.

27 In addition, the current relatively small burden on the federal courts' caseload—a product in part of the difficulties of obtaining personal jurisdiction over individual defendants—might increase dramatically. And other states might respond by attempting to narrow the United States' immunity in their own courts.

28 28 U.S.C. §1605(a)(5). See, e.g., Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989).

29 See Edward D. Re, Human Rights, Domestic Courts, and Effective Remedies, 67 St. John's L. Rev. 581 (1993).

30 E.g., Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996).

31 When the United States placed Cuba on the list of state sponsors of terrorism in 1982, it removed Iraq from the list at the same time, 47 Fed. Reg. 16,623 (1982) (Cuba); 47 Fed. Reg. 9201 (1982) (Iraq); see 21 ILM 853 (1982), and, apparently as part of a further tilt toward Iraq in the Iran-Iraq war that had begun in September 1980, placed Iran on the list two years later, 49 Fed. Reg. 2836 (1984); see Bernard Gwertzman, President Affirms His Policy to Keep Marines in Beirut, N.Y. Times, Jan. 24, 1984, at A1. Iraq was then returned to the list after it invaded Kuwait. 57 Fed. Reg. 4553 (1992). Cf. Re, supra note 29, at 584 (stating that FSIA “was enacted to depoliticize the sovereign immunity decision process”).

32 Anne-Marie [Slaughter] Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AJIL 461 (1989).

33 511 U.S. 244, 280 (1994).

34 See Lindh v. Murphy, 117 S.Ct. 2059, 2062–63, 2064 n.4 (1997).

35 Antiterrorism Act, supra note 4, §221 (c), 110 Stat, at 1243.

36 Thus, they may not be truly “retroactive.” Alejandre, 996 F.Supp. at 1250 n.9; Landgraf, 511 U.S. at 274.

37 996 F.Supp. at 1249.

38 Lindh, 117 S.Ct. at 2062 (rejecting view that “in the absence of an express command regarding temporal reach,” courts must apply Landgraf presumption “to the exclusion of all other standards of statutory interpretation”). Instead, the Alejandre court simply concluded that neither the amendments to the FSIA nor the Foreign Operations Act is retroactive under Landgraf, because both are “jurisdictional provisions.” 996 F.Supp. at 1250 n.9. While this characterization may be correct as to the FSIA, it is less clear as to the Foreign Operations Act. As to its effect, see Hughes Aircraft Co. v. United States ex rel. Schumer, 117 S.Ct. 1871, 1878 (1997) (rejecting view that “absent a clear statement of congressional intent, there is a strong presumption in favor of retroactivity for jurisdictional statutes”).

39 Conf. Rep. on H.R. 3610, Department of Defense Appropriations, reprinted in 142 Cong. Rec. H11,915 (daily ed. Sept. 28, 1996).

40 Cf. Lindh, 117 S.Ct. at 2064 (Congress may well have taken Landgraf into account in formulating retroactivity provisions of the Antiterrorism Act).

41 Alejandre v. Republic of Cuba, Nos. 96-10126-Civ-King, 96-10127-Civ-King, 96-10128-Civ-King, Docket Sheets (S.D. Fla. Oct 31, 1996). There apparently was at least one case pending as of September 30, 1996. See Smith v. Socialist People's Libyan Arabjamahiriya, 101 F.3d 239, 247 (2d Cir. 1996); Rein v. Socialist People's Libyan Arab Jamahiriya, 995 F.Supp. 325 (E.D.N.Y. 1998). Cf. McKay, supra note 4, at 454 (concern over bombings of Pan Am Flight 103, World Trade Center, and Oklahoma City a factor in adoption of Antiterrorism Act).

42 Two other interpretations are possible. First, Congress might have been uncertain whether the statute would create or expand liability for past conduct. It might have left that question to the courts, on the condition that if a court did conclude that the Act was retroactive under Landgraf, it should still apply the Act to all pre-enactment causes of action pending on September 30, 1996. This interpretation would be consistent with applying the Act to Alejandre's facts only if the court was correct in concluding that the Act did not create or expand liability for past conduct. Second, Congress might have believed that the statute simply did not create or expand liability for past conduct. If so, no policy would be served by refusing to apply the Act to the facts in Alejandre. Unlike the interpretation offered in text, however, both these alternatives assume that Congress chose a rather obscure form in which to express its intentions.

43 Landgraf, 511 U.S. at 280.

44 Conf. Rep. on H.R. 3610, supra note 39, at H11,915. One might view international law itself as having already provided for liability, with the FSIA simply affording claimants a forum. Although one might generally also view the Alien Tort Statute and the Torture Victim Protection Act as providing for liability for human rights violations, neither would apply to the Alejandre plaintiffs' cause of action against Cuba and die Air Force. Only aliens can bring claims under the Alien Tort Statute, and only individuals may be sued under the Torture Victim Protection Act.

45 See Alejandre, 996 F.Supp. at 1252 (holding ban on extrajudicial killing to be jus cogens).

46 See 28 U.S.C. §1610(a)(7) (broadening exception to immunity from attachment and execution). If they cannot, the size of the awards suggests that a post-Castro government might insist that they be resolved as part of a larger settlement of outstanding claims with the United States. There may be some doubt, however, about the President's (or even Congress's) ability to compromise judgments rendered by a federal court. See Dames & Moore v. Regan, 453 U.S. 654, 688–90 (1981) (declining on ripeness grounds to consider whether suspension of claims against Iran constituted a taking). See generally Abrahim-Youri v. United States, 139 F.3d 1462 (Fed. Cir. 1997); Shanghai Power Co. v. United States, 4 Cl. Ct. 237 (1983), aff'd mem., 765 F.2d 159 (Fed. Cir. 1985).

47 Torture Victim Protection Act, 28 U.S.C. §1350 note. Cf, e.g., Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95, doc. 7, rev., at 671, 687 (1997) (faulting Cuba for disrespecting right “to be judged based on provisions of criminal law enacted prior to when the offense was alleged”); AfCommHPR, Opinion of Mar. 22,1995 (Coram. 101/93), AHG/Res. 240 (XXXI) (June 28, 1995), reprinted in 18 Hum. Rts. L.J. 31 (1997) (faulting Nigeria for retroactive application of criminal law). It seems inadequate, therefore, simply to justify retroactive imposition of punitive damages as “secondary” to the “primary purpose” of creating a remedy for victims of terrorism, as did Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 27 (D.D.C. 1998), in awarding $225 million in punitive damages.

48 886 F.Supp. 162, 172 (D. Mass. 1995).

49 Id. at 200. See also Landgraf, 511 U.S. at 281 (“The very labels given ‘punitive’ or ‘exemplary’ damages, as well as die rationales that support them, demonstrate that they share key characteristics of criminal sanctions. Retroactive imposition of punitive damages would raise a serious constitutional question.”). See also Rein v. Socialist People's Libyan Arab Jamahiriya, 995 F.Supp. 325, 331 (E.D.N.Y. 1998) (generally rejecting constitutional challenge to retroactive amendments to FSIA, but reserving for later any decision on constitutionality of retroactive imposition of punitive damages).

50 See 886 F.Supp. at 200–02 (awarding punitive damages under Guatemalan and Kentucky law).