Neg
Counterplan Core – 1NC
The United States Federal Government should establish a policy that
it will ___________ when, and only when, certified American claims
for expropriated property in Cuba are paid.
The United States Federal Government should subject transactions
with Cuba to a fee, creating a settlement fund to pay certified
transactions.
Engaging Cuba before resolving claims leads to global
expropriations
Joint Corporate Committee on Cuban Claims ’06 A resource for information
pertaining to certified Cuban claims. 2006.
http://web.archive.org/web/20060814030423/http://www.certifiedcubanclaims.org/faqs.htm
Q. Why is it in the interest of the U.S. Government to insist upon a settlement of claims before trade and diplomatic
relations are restored?¶ A. If the United States resumes trade and diplomatic relations without
first resolving the claims issue, this might lead to future unlawful confiscations of
American properties without compensation. Our government should not be sending a
signal to other foreign nations that unlawful seizures of property can occur without
consequence.
The counterplan sequences our Cuba policy – it pays off claims
before engaging
Tomargo ’12. Mauricio J. Tomargo, 14th Chairman of the Foreign Claims Settlement
Commission, recognized authority on international law with particular expertise in international
claims law and claims against foreign sovereigns, such as Iraq Claims, Cuba Claims, and Lybia
Claims, “A Process to Begin Settling American Certified Claims Against Cuba,” 2/28/12
http://www.pobletetamargo.com/the-pt-law-blog/international-claims/settle-american-claimsagainst-cuba
The current commerce and travel being transacted between Cuba and the United States
should be subjected to a fee to be used to settle the debt Cuba owes our fellow Americans
with certified claims. Settling and paying these claims will achieve a goal of both the proCuba sanctions and the anti-Cuba embargo supporters, while simultaneously removing a
significant obstacle to making progress in U.S. - Cuba relations. This proposed solution calls for
imposing at least a 10% fee on the value of all transactions between the U.S. and Cuba, including
travel, sales or transfer of goods, services, and commodities, and remittances. Funds raised from
this fee will be used to create a settlement fund at the Department of the Treasury. Americans
with certified claims can tap this settlement fund for payments to fully satisfy the debt owed to
them, including interest, in accordance with the certified claim issued to them by the Foreign
Claims Settlement Commission, at the Department of Justice
Resolving these claims is neither a pro nor anti economic sanctions proposal. It simply helps
fellow Americans, who have been forgotten in this Cuba policy debate, find justice and peace at a
time when many of them could use this compensation to find closure and start anew. There are
5,913 certified and pending American claims against the government of Cuba which are currently
valued at over $7 billion that have gone unpaid for over 50 years. These claims are based on
real and personal property expropriated by the communist government of Cuba without
compensation. These claims were all evaluated and certified by the Foreign Claims Settlement
Commission, which I chaired for eight years, under the first and second Cuba Claims Programs.
Claims programs are not designed to remain unpaid for 50 years. Frankly, having the Cuba
Claims Program go unpaid for 50 years makes a mockery of the international claims
process. Typically these programs are settled after a few years and, while it may take a little
longer, half a century sets a new and untenable precedent for future claims programs.
Free Trade Net Benefit – 1NC
International standards on expropriation are key to global investment
and free trade –
DiMascio, JD from Duke University, and Pauwelyn, Professor at the Graduate Institute of
Internatioinal Development Studies in Geneva, January 2008
(NONDISCRIMINATION IN TRADE AND INVESTMENT TREATIES: WORLDS APART OR TWO
SIDES OF THE SAME COIN?, American Journal of International Law, 102 A.J.I.L. 48, Lexis)
Although national treatment provisions were included in even the earliest BITs, what mattered in
the first decades (1960s to 1980s) were rules on expropriation and other minimum standards.
National treatment in the investment context gained prominence only in the late 1990s. Developing-country hosts of
foreign investment gradually increased their domestic standards, often exceeding the original benchmark set by earlier
international minimum standards. As the treatment of domestic investors thereby rose above the "mere" international
minimum, the discipline of national treatment gained importance and attracted investors' renewed attention.
Political and economic developments since the 1980s have further induced most host countries to
liberalize their markets to FDI on their own. n109 As a result, investment disputes have shifted
from focusing on overt instances of expropriation to claims that host nations are indirectly
expropriating property or are violating national treatment obligations through the enactment of
discriminatory domestic laws. n110 This trend accelerated with the conclusion of NAFTA and can
also be seen in the increased number of investor-state arbitration cases launched against
developed countries n111 where direct expropriation or blatant violations of minimum standards
have not generally been at issue. n112
What is more, the renewed potential of national treatment as an investment discipline may actually be broader and deeper
than in the trade context. First, unlike trade law, whose national treatment obligation remains limited to the treatment of
products, national treatment in BITs [*68] covers the entire lifecycle or footprint of an investment. n113 It goes far beyond
measures that affect the products or services produced by foreign investors. It also covers the entire gamut of laws, rules,
and regulations that may affect any aspect of an investor's business. n114 Second, whereas GATT national treatment
may be losing importance with the creation of the TBT and SPS Agreements, n115 the future of national treatment in the
investment context looks brighter. According to a study by the UN Conference on Trade and Development, for example,
the "national treatment standard is perhaps the single most important standard of treatment enshrined in international
investment agreements." n116 At the same time, national treatment in BITs may often coincide with, or blur the boundary
between, itself and discrimination under another obligation commonly included in BITs: the fair and equitable treatment
standard. n117 To some extent this standard, with its focus on fairness and reasonableness, can even be seen as a
rough equivalent to the SPS and TBT Agreements in the trade context, with their focus on "necessity" and sound science.
If so, the future of national treatment in both spheres may, after all, be similarly uncertain. n118
The presence of both "fair and equitable treatment" and "national treatment" provisions in BITs
reminds us, however, that from the very beginning, protection of investors against discrimination
was a real and primordial concern in investment treaties. n119 Unlike GATT/WTO national
treatment, where discrimination is found by comparing imports with like domestic products,
investment treaties' approach to discrimination was not concerned with relative standards of
treatment. Indeed, BITs' minimum standards were designed to counteract the Calvo doctrine, and
their nondiscrimination obligations aimed at the alleged right of newly [*69] independent
developing countries to discriminate against foreign investors, especially investors of former
colonial rulers. n120
As part of the obligation to provide foreign investors "fair and equitable treatment" (as opposed to national treatment),
countries were required to refrain from discriminating. But the standard did not call for a relative comparison of domestic
and foreign investors, nor was it limited to origin-based discrimination. It was, and continues to be, a much broader
standard--potentially including such things as racial or religious discrimination, and grounded in the customary
international law on the treatment of aliens. Whereas nondiscrimination in trade law quickly focused on economy-wide
efficiency and competition, nondiscrimination in investment law originated and remains embedded in the idea of individual
fairness. For example, Article 3.1 of the Netherlands--South Africa BIT provides: "Each Contracting Party shall ensure fair
and equitable treatment of the investments of investors of the other Contracting Party and shall not impair, by
unreasonable or discriminatory measures, the operation, management, maintenance, use, enjoyment or disposal thereof
by those investors." n121 Similarly, an oft quoted definition of "fair and equitable treatment" by the NAFTA tribunal in
Waste Management puts it thus:
[D]espite certain differences of emphasis, a general standard for [NAFTA] Article 1105 [on fair
and equitable treatment] is emerging. Taken together, the S.D. Myers, Mondev, ADF and Loewen
cases suggest that the minimum standard of fair and equitable treatment is infringed by conduct
attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair,
unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice,
or involves a lack of due process leading to an outcome which offends judicial propriety . . . .
n122
In sum, trade law's focus on market access and liberalization centers national treatment in
the GATT/WTO on efficiency concerns: protecting tariff commitments against circumvention
and ensuring equal competitive opportunities to imported products. In contrast, investment law's
focus on protecting individual investors in order to attract more FDI, especially to developing
countries, focuses national treatment on providing security and fairness to individual
business operations by curtailing discriminatory abuse by local governments.
Peaceful trade solves global nuclear war
Copley News Service, 1999 (Dec 1, LN)
For decades, many children in America and other countries went to bed fearing annihilation by nuclear
war. The specter of nuclear winter freezing the life out of planet Earth seemed very real . Activists
protesting the World Trade Organization's meeting in Seattle apparently have forgotten that threat. The truth is that
nations join together in groups like the WTO not just to further their own prosperity, but also to forestall
conflict with other nations. In a way, our planet has traded in the threat of a worldwide nuclear war
for the benefit of cooperative global economics. Some Seattle protesters clearly fancy themselves to be in the
mold of nuclear disarmament or anti-Vietnam War protesters of decades past. But they're not. They're special-interest
activists, whether the cause is environmental, labor or paranoia about global government. Actually, most of the
demonstrators in Seattle are very much unlike yesterday's peace activists, such as Beatle John Lennon or philosopher
Bertrand Russell, the father of the nuclear disarmament movement, both of whom urged people and nations to work
together rather than strive against each other. These and other war protesters would probably approve of 135 WTO
nations sitting down peacefully to discuss economic issues that in the past might have been settled by bullets and bombs.
As long as nations are trading peacefully, and their economies are built on exports to other
countries, they have a major disincentive to wage war. That's why bringing China, a budding superpower,
into the WTO is so important. As exports to the United States and the rest of the world feed Chinese prosperity, and that
prosperity increases demand for the goods we produce, the threat of hostility diminishes. Many anti-trade protesters in
Seattle claim that only multinational corporations benefit from global trade, and that it's the everyday wage earners who
get hurt. That's just plain wrong. First of all, it's not the military-industrial complex benefiting. It's U.S. companies that
make high-tech goods. And those companies provide a growing number of jobs for Americans. In San Diego, many
people have good jobs at Qualcomm, Solar Turbines and other companies for whom overseas markets are essential. In
Seattle, many of the 100,000 people who work at Boeing would lose their livelihoods without world trade. Foreign trade
today accounts for 30 percent of our gross domestic product. That's a lot of jobs for everyday workers. Growing global
prosperity has helped counter the specter of nuclear winter. Nations of the world are learning to
live and work together, like the singers of anti-war songs once imagined. Those who care about
world peace shouldn't be protesting world trade. They should be celebrating it.
International Law Net Benefit – 1NC
Claims must be a precondition – key to international law
Travieso-Diaz 95 Matias F. Travieso-Diaz lawyer focused on administrative and judicial
litigation and arbitration proceedings.He has represented U.S. and foreign clients in
administrative, judicial, and international arbitration proceedings “SOME LEGAL AND
PRACTICAL ISSUES IN THE
RESOLUTION OF CUBAN NATIONALS' EXPROPRIATION CLAIMS AGAINST CUBA” Vol. 16:2
Pages 221-222 https://www.law.upenn.edu/journals/jil/articles/volume16/issue2/Traviesodiaz16U.Pa.J.Int'lBus.L.217(1995).pdf
The outstanding property claims of both U.S. and Cuban nationals raise an important
issue that will need to be addressed in the early stages of Cuba's free-market transition.
There are several reasons why the early resolution of this issue is urgent: (1) U.S. laws require resolution of
U.S. citizen expropriation claims before foreign aid can resume; 6 (2) the Cuban government
will need to give early resolution to the outstanding expropriation claims to assure
domestic order and political and economic stability, expedite privatization, and foster
foreign investment; 17 and (3) resolution of the claims issue will diminish the perceived
political risks of investing in Cuba. Political risks are a matter of concern to prospective
investors, traders, and financial institutions."8 The expropriation claims by U.S. nationals and Cuban
citizens have separate legal and political bases and may have to be addressed differently by the Cuban government.
U.S. claims are based on well-recognized international law principles that require "prompt,
adequate and effective" compensation to aliens whose property is confiscated. 9 As a practical
matter, U.S. citizens' claims are also backed by express U.S. policy dating back to President
Kennedy, under which settlement of U.S. nationals' expropriation claims is cited as a
precondition to the normalization of U.S.-Cuba relations and the lifting of the trade
embargo. 2
Compliance with international law solves extinction
Malaysian Medical Association 2002 [“11TH SEPTEMBER - DAY OF REMEMBRANCE,” Sep 6,
http://www.mma.org.my/current_topic/sept.htm]
Our world is increasingly interdependent and the repercussions of the actions of states , non-state actors and
individuals transcend national boundaries. Weapons of mass destruction, landmines, small arms and
environmental damage have global consequences, whether they be deadly armed conflict, nuclear
testing or climate change from global warming. The risk of nuclear war continues to threaten human
survival. The casualties resulting from even a single explosion would overwhelm the medical facilities in any city in the world. The use of nuclear
weapons is morally indefensible, and the International Court of Justice has declared their use and threatened use illegal. Yet, nuclear weapons remain part
of the military strategy of many nations. Nuclear war must be prevented. Nuclear weapons must be eliminated. Ongoing violations of the United Nations
Charter and international humanitarian and human rights law and increasing poverty and preventable disease continue to fuel violence. World military
expenditure, estimated at US$839 billion in 2001, prevents governments from meeting the social needs of their citizens and the global proliferation of
armaments has ¶ caused unspeakable carnage. We
call on all governments to place their foreign and domestic policies and their
behaviour under the scrutiny of international law and international institutions. Each government must take primary
responsibility for ending its own contribution to the cycle of violence. As citizens, we are expected to abide by the law. We expect no less from
governments. This is a necessary part of honouring the lives of so many men, women and children whose deaths are commemorate. At a time when
global problems should be solved by cooperating and complying with multilateral legally-binding treaties,
and by embracing the rule of law as valuable instruments for building common security and safeguarding the long-term, collective interests of humanity , there are unmistable signs that powerful states are taking unilateral
action, setting aside international treaties, and undermining international law. The principle of the rule of law implies that even the most
powerful must comply with the law, even if it is difficult or costly or when superior economic,
military and diplomatic power may ¶ seem to make compliance unnecessary. The destruction of the symbols of
American economic power and military might on 11th September is a salutary reminder that military power, including the possession of nuclear weapons,
does not deter terrorists or confer security or invulnerability. It has prompted the Bush administration to declare "war on terror" and convinced it that a
military response is the best way to fight terrorism on a global scale, without considering alternative, more effective ways of combating terrorism, such as
addressing the root causes of terrorism. The greatest betrayal of those who died on 11th September 2001 would be to not recognise that there are nonviolent ways of resolving conflict. This is a difficult, uncertain ¶ path to take, whereas violence and war are easy, predictable options. The lesson of 11th
September is that our
collective survival depends upon forging cooperative, just and equitable relationships
with each other; in rejecting violence and war; and in pursuing non-violent resolutions to conflict. The alternative is a world
perpetually divided, continually at war, and possibly destroying itself through environmental
degradation or the use of weapons of mass destruction.
“Say Yes” – 2NC
Conditioning it on a “user fee” pays back the claims
Tomargo ’12. Mauricio J. Tomargo, 14th Chairman of the Foreign Claims Settlement
Commission, recognized authority on international law with particular expertise in international
claims law and claims against foreign sovereigns, such as Iraq Claims, Cuba Claims, and Lybia
Claims, “A Process to Begin Settling American Certified Claims Against Cuba,” 2/28/12
http://www.pobletetamargo.com/the-pt-law-blog/international-claims/settle-american-claimsagainst-cuba
Travel to Cuba results in money being paid to the Cuban government; as Americans pay tribute
fees to the regime every time they visit and spend money there, including a healthcare fee. In
addition, Americans send millions of dollars each year in remittances to relatives in Cuba. As you
can see, these seemingly minor exceptions to the “embargo” add up. Another consequential
exception to U.S. sanctions includes the cash sale of agricultural commodities to the Government
of Cuba by American farmers. American companies also sell medicine, medical supplies, and
telecommunications equipment to Cuba. Estimations of this commerce are hard to come by
but, according to some experts, it is likely to be valued between 1 and 2 billion dollars
annually (possibly a gross underestimation). To some degree, normal trade and commercial
relations between the U.S. and Cuba have already been restored. Cuba sends cash to the U.S.,
mostly in exchange for agricultural commodities, and such transactions are financed by
remittences and travel to Cuba; yet, the government of Cuba has not been forced to pay the
certified claims of our fellow Americans. To add insult to injury, this trade and travel uses,
and is enabled by, the stolen property of the American claimants, which is why terming this
charge on all qualifying commerce and trade a “user fee,” is appropriate. The docks, ports,
railroads, electrical grids, telephone grids, and many hotels, mines, farms, and businesses were
all expropriated by the government of Cuba from Americans and are now being used to benefit
the Cuban regime. American farmers, travel agencies, and many other U.S. businesses also
profit from this trade.
“Say Yes” – AT: Not Enough Money
The counterplan creates a settlement fund – it will accumulate
enough money – that’s Tamargo
Settlement fund solves
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
A major concern under any restitution scheme is the availability of natural (e.g., land) and
financial resources to satisfy claims. Cuba and its government are currently in financial turmoil. n139 Clearly,
if a restitution system is implemented, Cuba will lack the natural and financial resources necessary to satisfy a majority of
the expropriation claims for restitution. Other countries facing such a dilemma create special
compensation funds to raise money to satisfy restitution claims ; n140 issue government
securities when cash is unavailable; require claimants choose between restitution and compensation to
reduce government liability; and privatize large state assets and use the funds to satisfy
compensation claims.
Turns Human Rights – 2NC
Expropriations are an attack on human rights-must be rejected
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
Upon the Soviet Union's complete economic and political failure, many speculated that Cuba would not
have the financial capability to continue its current system of government. n1 Despite [*322]
the Soviet Union's collapse, a thirty-seven year U.S. economic embargo, and a massive internal
economic crisis, Fidel Castro continues to defy the odds and remains in control of the island.
Hence, the denial of freedom and democracy continues to plague the Cuban people.
Located just ninety miles from the United States, Cuba is the only communist country in the Western
Hemisphere. n2 In 1959, Castro led a communist revolution that systematically and progressively
destroyed the fundamental human rights of the people on the island. n3 Castro's
nationalization of private property without compensation to property owners was one of his more
visible attacks on human rights. n4 Through a series of expropriations, the communist
regime confiscated private residences, businesses, and lands belonging to both Cuban citizens
and foreign citizens and entities - primarily those from the United States. n5 Since taking control of the island,
the Castro Government has enacted numerous laws substantially limiting the right to own property in Cuba. n6
Turns Cuban Transition – 2NC
Compensation is key to international law, human rights, and Cuba’s
transition to democracy
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
The purpose of this Article is to address the
Castro Government's outrageous, unacceptable, illegal,
and abusive expropriation of property in Cuba. The Castro regime violated the property provisions of
Cuba's Constitution of 1940, n10 which were technically in place at the time the illegal takings occurred at the start of the
Castro era. In addition, Castro's regime flagrantly violated fundamental international law
principles and deprived expropriation victims of their basic human rights. n11 In the future,
post-Castro government authorities will likely attempt to transition to a free-market
economy. Accordingly, this Article proposes that recognizing property rights and compensating
victims of the takings, both domestic and foreign, will be crucial early steps in Cuba's transition to
democracy.
Compensating expropriations is a prerequisite to economic reforms
Garibaldi and Kirby 03 Oscar M. Garibaldi Associate at Covington & Burling and John D.
Kirby defense attorney“ Property Rights in the Post-Castro Cuban Constitution” 2003
http://ctp.iccas.miami.edu/Research_Studies/Expropriated%20Properties.pdf
Among the many important reforms undertaken by nations in transition from communism to democracy are market
reforms. The shift from a state controlled economy to a market economy requires the re-
institution of private property rights and the creation of an environment of stability and
predictability with regard to those rights. In many transition countries, the re-institution of
property rights and the creation of a legal framework supporting those rights have been
accompanied by laws attempting to address the claims of persons or entities whose properties
were wrongly expropriated without compensation. During transition, Cuba will likely also reestablish the right to own private property as part of a broader plan of market reforms.
Along with these reforms, and because of the importance of giving finality to any resolution of
these claims, Cuba will also develop a program to address claims of corporations or individuals, both
foreign and domestic, whose properties were expropriated or confiscated by the Castro government. Whatever form these
laws take, it is important that they be well thought out and geared towards establishing an effective and efficient legal
framework for resolving this particularly complex issue.
Turns FDI – 2NC
Compensation is a prerequisite to US investment- key to Cuba’s
economy, democracy, and human rights
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
As a consequence of Cuba's current archaic property laws, changes more substantial than simple reinstatement of the 1940 provisions
the framers of any
new Cuban laws will have to formally declare that the Castro takings were illegal and the
victims are entitled to restitution and/or compensation. The new legal framework must include a
restitution scheme encouraging U.S. and foreign investment. Such investment is crucial in
Cuba's transition to a market-based economy and democracy. n92 Wealthy Cuban exiles
and multitudes of U.S. and foreign corporations relish the idea of tapping into the Cuban
economic market, which has remained virtually dormant since the enactment of the Fundamental Law of 1959.Domestically, the
may be necessary if the ultimate settlement of property claims in Cuba is the desired objective. For example,
Cuban treasury is drained, Cuba's citizens' resources are nominal, and the Cuban Government is on the verge of insolvency. n93
Without foreign investment, it would be extremely difficult for Cuba to develop a marketbased economy, n94 and without a market-based economy, establishing a democracy will be virtually
impossible. n95 Therefore, the importance of implementing restitution and/or compensation schemes
cannot be overstated. IV. Identifying the Possible Claimants and Applying the Corresponding Takings LawThere will be three
primary classes of claimants vying for positions in a Cuban restitution system: (1) Cuban nationals and exiles; (2) U.S. corporations and
individuals; and (3) foreign companies currently possessing ownership interests in expropriated property. An illegal expropriation restitution
scheme must first identify which takings laws apply to which claimants. The next step is determining whether the expropriations by Castro's
Government violated those laws. [*337] A. For All Eligible Claimants: A Human Rights Violation First and foremost, it
must be
noted that Castro's takings violated all of the eligible claimants' human rights. Every
human being enjoys the right to own property and the right not to be arbitrarily deprived
thereof. n96 This principle is set forth in the Universal Declaration of Human Rights and
recognized in many countries' domestic laws.
Solving the property dilemma is a prerequisite to trading with Cuba
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
The manner in which the Castro regime stripped Cuban citizens and foreign nationals in Cuba of constitutional property
rights will be the primary source of discussion and controversy in negotiated settlements between a post-socialist Cuba
and the international community. n85 If post-socialist Cuban government authorities wish to take
part in the global economy, they will need to implement a governmental and legal framework based on a new
democratic constitution. Furthermore, government authorities must make resolving Cuba's property
dilemma a priority. n86 To develop a free-market economy, Cuba needs the United States as
a trading partner. In return, the United States will likely demand a role in structuring the
new Cuban government and legal system. The United States, however, should merely assist the Cuban
people in this undertaking because the drafting of a new constitution must be left primarily to the Cuban people.
International Law – Link 2NC
Reimbursing expropriations is mandatory under international law
Smith ‘1 (Law & Valuation Professor Palmiter, ‘THE LAW OF COMPENSATION FOR EXPROPRIATED COMPANIES AND THE VALUATION METHODS USED TO ACHIEVE THAT
COMPENSATION’ http://users.wfu.edu/palmitar/Law&Valuation/Papers/2001/Smith.htm. Spring 2001.)
Because international treaties and agreements often require the parties to follow the generally accepted principles of international law,
much has been made of the United Nations view of compensation for expropriated
companies. In 1962, the United Nations General Assembly declared that in cases of
expropriation "the owner shall be paid appropriate compensation, in accordance with the
rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law."¶ This
standard takes into account both the host country’s laws as well as general international
laws, however the UN has since changed its stance. While still adhering to the "appropriate compensation" standard, a subsequent
resolution in 1974 states that the expropriating State itself is to settle the dispute and should take
into account "its relevant laws and regulations and all circumstances that the State
considers pertinent." The United States actually approved of this formulation of "appropriate" compensation. The US
representative to the UN explained his vote in favor of the resolution stating that he was confident that the agreement reflected the US view
of the Hull doctrine of "prompt, adequate and effective compensation." Although courts and commentators do not agree on exactly what
standard "appropriate" suggests, most would agree that it does not reflect the Hull doctrine.¶ Although the UN has continued to promote the
idea of "appropriate compensation", questions
of "appropriateness" were now referred to the
nationalizing state’s law and tribunals. The role of the prevailing international law was not
mentioned, and thus what is customary in international law is not relevant. This standard now
creates even more uncertainty as different host nations may have different even conflicting expropriation laws. This raises the
issues of whether the resort to specific State law is meant to be exclusive and, if not, must
it first be exhausted. In reviewing UN law, the second circuit in Banco Nacional De Cuba v. Chase Manhattan Bank held that
international laws may be applied, but the national jurisdiction of the State taking the expropriation measures must be first exhausted.
International Law – AT: Cuban Law Supercedes
Cuban expropriations break international law despite domestic lawsmust be prioritized
Ortiz 00 Jose A. Ortiz J.D., The Catholic University of America, Columbus School of Law
(1999); B.S., Florida State University (1994); law clerk to the Honorable James Lawrence King,
United States District Court for the Southern District of Florida, 1999-2000. June, 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” lexisnexis https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=
22+Loy.+L.A.+Int'l+%26+Comp.+L.+Rev.+321&srctype=smi&srcid=3B15&key=b518c56d9e1265
45a8e5a06cfd7740cd
At the time the taking of U.S. properties occurred, Cuba was a member of the United
Nations. n103 Thus, it is appropriate to analyze the taking of U.S. property in Cuba in accordance
with international law - more specifically, the United Nations' view on government takings of foreign-owned
property. Furthermore, in accordance with the Constitution of 1940, "the Cuban Nation adopts the
principles and practices of international law that favor human solidarity, respect for the sovereignty of
peoples, reciprocity between nations, and universal peace and civilization." n104 [*339] In 1974, the United Nations
adopted Resolution 3281 of the Charter of Economic Rights and Duties of States. n105 Article 2.2(c) of Resolution 3281
provides that each state has the right: [to] nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate compensation should be paid by the State
adopting such measures, taking into account its relevant laws and regulations and all circumstances that the
State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled
under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States
concerned that other peaceful means be sought on the basis of sovereign equality of States and in accordance with the
principle of free choice of means. n106 Cuba could argue that its domestic laws do not require full
compensation; thus, its actions do not conflict with the current U.N. position. This argument is problematic
because Cuba has neither provided nor contemplated providing any compensation to U.S.
citizens and corporations. n107 Thus, according to the U.N., the Cuban takings are clearly
illegal. Together, U.S. corporations' and citizens' claims against Cuba exceed 1.6 billion dollars. n108 Some argue
that Cuban nationals' claims should take priority over U.S. claims. Such an argument is
unwise, however, because the law should treat all claimants equally. Furthermore, because U.S. investment is
critical to the future of Cuba's economy, U.S. claimants must receive compensation for the
illegal takings. n109
International Law – Compliance Good 2NC
Complying with international law prevents use of nuclear weapons
Moxley et al 11 Charles J. Moxley is an adjunct Professor at Fordham University School of
Law teaching Nuclear Weapons Law. He is a practicing attorney in New York City John
Burroughs, J.D., Ph.D. is the Executive Director of the New York-based Lawyers Committee on
Nuclear Policy and Director of the United Nations Jonathan Granoff is President of the Global
Security Institute, Co-Chair of the American Bar Association’s International Law Section’s Blue
Ribbon Task Force on Nuclear Non-Proliferation, and Senior Advisor to its Committee on Arms
Control and National Security FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 34:595] page
609 “NUCLEAR WEAPONS AND INTERNATIONAL LAW: A NUCLEAR NONPROLIFERATION
REGIME FOR THE 21ST CENTURY” http://lcnp.org/wcourt/Fordhamfinaljoint.pdf
Some of the legal requirements may come as a surprise even to leading public policy and nuclear weapons experts. The
law governing the use and threat of use of nuclear weapons has been largely overlooked.
Analyses of nuclear weapons issues by governmental and private experts across the
political spectrum routinely fail to take into consideration the requirements of international
law. A current example is the fact that the Obama Administration’s wide-ranging efforts to address
nuclear weapons issues have been presented on the basis of policy and security considerations, with
little or no acknowledgement of the requirements of international law. Against this backdrop, the
affirmation by states party to the NPT at the 2010 Review Conference, regarding nuclear disarmament, that there is a
“need for all States at all times to comply with applicable international law, including international
humanitarian law,”37 was the inspiration for this Article. That unambiguous commitment should usher in
a new era in which the requirements of IHL define the creation, deployment, use, and
threat of use of nuclear weapons. In fact, it is the authors’ contention that this body of law renders
the use and threat of use of nuclear weapons unlawful and compels immediate progress to
obtain the elimination of the weapons.
International Law – AT: Drones Non-Unique
Drone attacks aren’t a violation of international law – Pakistan proves
Jacobson 10 [Louis Jacobson is a senior writer for PolitiFact and the Tampa Bay Times. He has
served as deputy editor of Roll Call and as founding editor of its legislative wire service, CongressNow.
Earlier, he spent more than a decade covering politics, policy and lobbying for National Journal magazine.
Since 2002, he has handicapped political races, including state legislatures, governors, congressional seats,
state attorneys general and the electoral college, currently for Governing, Author of “Do drone attacks
comply with international law?” Published Thursday, July 1st, 2010,
http://www.politifact.com/truth-o-meter/article/2010/jul/01/do-drone-attacks-comply-international-law/]
On the June 27, 2010, edition of ABC's This Week, CIA Director Leon Panetta offered comments
on several high-profile national security issues, including U.S. drone attacks against terrorist
targets overseas, especially in Pakistan.¶ At one point in the interview, host Jake Tapper said to
Panetta, "I know you can't discuss certain classified operations or even acknowledge them, but
even since you've been here today, we've heard about another drone strike in Pakistan and
there's been much criticism of the predator drone program, of the CIA. The United Nations
official Phil Alston earlier this month said, 'In a situation in which there is no disclosure of
who has been killed for what reason and whether innocent civilians have died, the legal
principle of international accountability is by definition comprehensibly violated.' Will you
give us your personal assurance that everything the CIA is doing in Pakistan is compliant with
U.S. and international law?"¶ Panetta responded, "There is no question that we are abiding by
international law and the law of war. Look, the United States of America on 9/11 was attacked by
al-Qaida. They killed 3,000 innocent men and women in this country. We have a duty, we have a
responsibility, to defend this country so that al-Qaida never conducts that kind of attack again.
Does that make some of the al-Qaida and their supporters uncomfortable? Does it make them
angry? Yes, it probably does. But that means that we're doing our job. We have a responsibility to
defend this country and that's what we're doing. And anyone who suggests that somehow we're
employing other tactics here that somehow violate international law are dead wrong. What we're
doing is defending this country. That's what our operations are all about."
Aff
CP = Status Quo
Counterplan is the status quo – no progress has been made
AFP 10 [Agence France-Presse, “Cuba must compensate US before embargo is lifted:
lawmaker,”
http://www.google.com/hostednews/afp/article/ALeqM5i4xHNR1Zae4phTYTtL5cP3QiXAuQ ,
(AFP) – Published April 29th, 2010.]
WASHINGTON — Cuba must pay the United States six billion dollars in compensation for
expropriated businesses and property before Washington lifts a decades-old trade
embargo, a US lawmaker said Thursday.¶ "We must resolve the over six billion dollars in
expropriation claims... before developing a more robust economic relationship with a postCastro democratic government in Cuba," said Kevin Brady, a Republican US representative
from the state of Texas, speaking at a congressional hearing on US trade with Cuba. ¶ Brady's
remarks come after a top Cuban official last week challenged the United States to lift its punishing
economic embargo against Havana.¶ Cuba's National Assembly president Ricardo Alarcon
pressed Washington to "lift it, even for a year, to see whether it is in our interest or theirs."¶ After
coming to power in 1959, Cuban leader Fidel Castro nationalized numerous US enterprises
in the name of the communist revolution.¶ In 1972, the value of Cuba's expropriated US
property was estimated to be worth about 1.8 billion dollars, according to a US
government panel that examined the issue.¶ That sum has grown more than three-fold over
the years because of compounding interest, set at an annual rate of six percent. ¶ The Foreign
Claims Settlement Commission of the United States (FCSC), the independent, quasi-judicial
federal agency under the aegis of the US Department of Justice, is tasked with determining the
monetary value of claims by US nationals for loss of overseas property as a result of
nationalization or military operations.¶ At Thursday's hearing, the US Chamber of Commerce and
non-governmental organizations including the Washington Office on Latin America (WOLA)
argued in favor of relaxing trade restrictions against Havana.¶
Say No
Cuba will say no – lifting embargo must come first
Marquez 2 [Manuel Marquez, Marquez is a columnist for the Orlando Sentinel , Published
November 19th, 2002, http://articles.dailypress.com/2002-11-19/news/0211190058_1_embargocuban-people-religious-freedom.]
I don't come to this position lightly, though I'm prepared for what's to come from exiles whose
views are entrenched in dreams of past glory never realized. Pride on both sides of the Florida
Strait keeps getting in the way of freedom for the Cuban people. Pride -- and prejudice about the
reality.¶ Bush won't budge on lifting the embargo because he echoes the exiles' line that to do so
now, after 43 years of a one-party state, would tighten Castro's grip. But many other Republicans
disagree. They see Castro handing out U.S. greenbacks for food. They want a piece of the
capitalist action. Each year, the vote in Congress gets closer to overriding the embargo.¶
When I was in Cuba this year, officials were as clear as the turquoise sea at Varadero Beach
about their position. Cuba, which trades with the rest of the world, has nothing to lose with
the status quo. Lift the embargo, they said, and then let's talk about U.S. property claims,
human rights, even the possibility of political parties.¶ I've been a supporter of the U.S.
embargo since my abuelito (grandfather) put me on his knee and told me about communism's
horrors. I've had three generations of family flee Cuba -- on planes, boats, rafts and inner tubes. I
still have cousins living on the island, decent people whose lives have been irreparably damaged
by a system that refuses to acknowledge individual worth and encourage creativity.
AT: International Law
International Law supports bilateral negotiations between the U.S. and
Cuba that include removing the embargo.
Kelly and
Witmer 07
Michael J.
Richard C.
, Association for the Study of the Cuban Economy (ASCE), “Resolution of
Outstanding Property Claims Between Cuba and the United States,” 2007, pp. 64,
http://www.ascecuba.org/publications/proceedings/volume18/pdfs/kellywitmer.pdf
The first group of property claims are held by U.S. National¶ Claimants. These are American individuals and¶ corporations
who were Americans at the time of the¶ unlawful expropriation (mostly 1959 and the early¶ 1960s). They have certified
their claims through the¶ Federal Claims Settlement Commission (FCSC). According¶ to FCSC estimates, their property
claims with¶ interest amount to approximately $6 billion. Their¶ claims have not been satisfied with frozen Cuban assets ¶
in the United States. However, their claims are protected legislatively and are linked directly with
lifting the U.S. embargo against Cuba. §207(d) of the Libertad Act states:¶ It is the sense of
the Congress that the satisfactory resolution of property claims by a Cuban Government
recognized by the United States remains an essential condition for the full resumption of
economic and diplomatic relations between the United States and Cuba. ¶ Moreover,
international law generally recognizes the right of American claimants to be compensated.
Consequently, a bilateral system to resolve property claims between foreign claimants and
the government of Cuba would be supported by International Law.
International law doesn’t affect anything. Countries act the same with or
without International law.
Michael Tomz, 08, Stanford University, “Reputation and the Effect of International Law on
Preferences and Beliefs,” February 2008, pp. 7-8, http://www.stanford.edu/~tomz/working/TomzIntlLaw-2008-02-11a.pdf
Due to limitations of existing data, it has been extremely difficult to make progress in¶ understanding the
effects of international law. We currently do not know the conditions under¶ which
international law matters, or when the act of signing a legal agreement is most likely to¶
demonstrate credibility. Previous research has relied entirely on historical records to
estimate the¶ effect of international law. Have countries that signed environmental
protection treaties polluted¶ less than countries that did not sign? Has respect for human
rights, arms control, and free trade been greater among countries that entered treaties on
these topics than among countries that did¶ not?¶ If treaties arose from a purely random process, the
use of historical data would be¶ unproblematic. In reality, though, countries choose whether and on what terms to enter
treaties.¶ Thus, it is hard to know whether the historical correlation between treaties and
behavior is a¶ consequence of the treaty itself, or is due to cross-national or intertemporal differences in the¶ baseline propensity to take the kinds of actions the treaty
requires. Most countries honor their¶ treaties most of the time, but this does not prove that treaties shape foreign policy.
According to¶ skeptics, treaties reflect but do not change the pre-existing interests of states.¶ We can bring the existing
debate—and the roadblock of endogeneity—into sharper relief¶ by drawing on Rubin’s (1974) counterfactual account of
causality. Suppose we are interested in¶ Yi, a measure of country i's behavior on a given issue at a particular time. The
impact of a treaty¶ on Yi is i i1 i0 δ = Y − Y , where i1 Y represents the way i would behave if party to the treaty, and i0 Y ¶
signifies how the same country would behave if not party to the treaty. The quantity i¶ δ tells what¶ difference,
if any, the treaty makes.¶ Unfortunately, the causal effect i¶ δ is unobservable. We might
imagine how country i¶ would behave in both the treaty and the no-treaty conditions, but we cannot observe both i1 Y and
Y for the same i at the same time. No country can be observed in the treatment and control ¶ regimes simultaneously, a
fact that Holland (1986) called “the fundamental problem of causal ¶ inference.”
Empirically US companies demand more money than international law
awards. Taxing Cuba on our terms wouldn’t follow international law.
Kevin Smith, 01, Wake Forest University, “The Law of Compensation for Expropriated Companies and the Valuation
Methods Used to Achieve that Compensation,” Spring 2001,
http://users.wfu.edu/palmitar/Law&Valuation/Papers/2001/Smith.htm
Matching an appropriate valuation method such as going concern or discounted cash flow with terms such as "full", "just"
or "appropriate" may be impossible. While most tribunals espouse their method of valuation, very few decisions are bold
enough to break down their award. Applying an incorrect method of valuation can completely
destroy the compensation standard a court or tribunal has tried so desperately to state .
However, the method of valuation cuts both ways as it also gives the court a chance for judicial activism, allowing them to
make the award fit the circumstances.¶ There are many different compensation standards set forth by different
international laws and treaties. As stated above, the closest resolution that can be generated out of customary
international law is that of "full" compensation. "The other standards proffered for compensation are wholly indeterminate.
To tell an arbitrator to decide which value is �just,� �adequate� or �appropriate under all the circumstances� is to
tell the arbitrator nothing." The question still remains, what does full compensation mean? What valuation techniques does
this term require and how is this desired level of compensation best achieved? ¶ A. Book Value¶ "One can argue
about how to arrive at full value, but the intent is clear: the investor should receive the
value the market would give." But who is the market? There is no market for an
expropriated company because the expropriating government will not allow any buyers.
Developing countries have often argued that because there is no market to value the
company, expropriated companies compensation should be limited to the book value. ¶ Book
value is an assets method of valuation that is often referred to as net asset value. This valuation represents the net worth
of the company (assets minus liabilities) as seen on the balance sheet. Book value is often cited as an
improper valuation method for valuating companies because it does not take into account
the company’s goodwill, trademark rights, or earnings potential � the company’s going
concern. Net book value also omits valuation intangibles such as contractual rights and
commercial prospects.¶ In Banco Nacional De Cuba v. Chase Manhattan Bank, the court
awarded Chase only the net asset value (book value) of its bank branches that were
expropriated and did not take into account a going concern premium. The second circuit
reasoned that an award of "lost" future earnings would not be proper because of the state
of the Cuban economy at the time. The court stated that no potential buyer would have
paid Chase a premium in anticipation of its future Cuban earnings after the revolution.
Can’t solve international law-Cuban expropriations must be paid back
too
Garibaldi and Kirby 03 Oscar M. Garibaldi Associate at Covington & Burling and John D.
Kirby defense attorney“ Property Rights in the Post-Castro Cuban Constitution” 2003
http://ctp.iccas.miami.edu/Research_Studies/Expropriated%20Properties.pdf
A primary goal of the Program is to treat Cuban and non-Cuban claimants alike under
standards no less favorable than those required for non-Cubans under international law.
Under international law, nonCubans whose properties were taken by the Castro regime
without just compensation are entitled to certain standards of protection and certain means of redress,
including restitution of the property or, if restitution is not feasible, payment of the fair market value of the
property at the time of the taking, with interest at market rates from that time to the time of payment.51 Cuban
claimants whose properties suffered the same fate ought to be entitled, as a matter of
fairness and sound policy, to the same standards of protection and means of redress.
Guantanamo Bay violates international law
Nebehay 13 Stephanie Nebehay is Reuters reporter based in Geneva mainly covering the
United Nations “UN says US violating international law, calls for closure of Guantanamo” April 5,
2013 http://worldnews.nbcnews.com/_news/2013/04/05/17617277-un-says-us-violatinginternational-law-calls-for-closure-of-guantanamo?lite
GENEVA -- The UN human rights chief called on the United States on Friday to close down the
Guantanamo Bay prison camp, saying the indefinite imprisonment of many detainees
without charge or trial violated international law .Navi Pillay said the hunger strike being staged by some
inmates at the Guantanamo Bay U.S. Naval Base in southeastern Cuba was a "desperate act" but "scarcely
surprising.""We must be clear about this: The United States is in clear breach not just of its own commitments
but also of international laws and standards that it is obliged to uphold ," the UN high
commissioner for human rights said in a statement.
Drone strikes violate international law
Niemeyer 13 Kelly Wiese Niemeyer a Sr. News Writer / Asst. Record Editor at Washington
University in St. Louis. “Drones may violate international law” May 24, 2013
http://phys.org/news/2013-05-drones-violate-international-law.html
(Phys.org) —As President Obama gives a speech on national security—including defending U.S. use of drones to combat
terrorism—Leila Sadat, JD, international law expert and professor of law at Washington
University in St. Louis, argues that such targeted killing by unmanned planes may violate
international humanitarian law . Legalities aside, she also questions whether it promotes U.S. interests abroad.
Sadat wrote about the subject in her article, "America's Drone Wars," published in the Case Western Reserve Journal of
International Law.Sadat notes that drone strikes have become a major part of U.S. military strategy
and counterterror operations, but writes that the U.S. use of drones raises several troubling
legal questions, such as what is the legal foundation for government use of lethal force
and whether drone strikes are considered acts of aggression against other countries. She
finds that the Obama administration largely continued the policy and legal rationale of former President George W. Bush
regarding drones.The U.S. argues there are no geographical constraints in the war on terror, Sadat writes, but adds that
most authorities reject that idea."The process used by the executive branch to determine who and
when to target human beings for death can be summarized in two words: 'trust us,'" she
wrote in the article. But while she believes the administration is cautious, mistakes still can occur, and innocent
civilians get killed, raising legal, political and diplomatic worries for the U.S."Some of these
'mistakes' end up as YouTube videos … which serve as recruitment devices for al-Qaeda and its associates, and fuel
anti-American sentiment in areas where drones are operating," Sadat wrote.