INTRODUCTION :: “This little yellow Cuban biplane opened a diplomatic Pandora’s box when it touched down at the Key West airport.”
In November 2002, an Antonov Colt biplane owned by the Cuban government was stolen from a Havana airfield and flown to Key West, Florida, in a daring attempt by eight Cuban citizens to gain political asylum. The incident was not the first of its kind; in recent years, Cuban defectors increasingly have taken to the skies in their ninety-mile journey to reach American soil in the Florida Keys. In addition to many affable but unexpected arrivals, blatantly aggressive incidents of air piracy by Cuban defectors have become far more common.
Although the biplane’s arrival may not have been extraordinary, a fiery controversy quickly erupted. The debate focused on the ultimate disposition of the mustard-yellow biplane with peeling paint and fading Cuban insignia. International law seemed to provide a clear instruction. According to the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention), a treaty signed by Cuba and the United States, participating nations are required to deliver unlawfully seized aircraft “to the persons lawfully entitled to possession.” The United States always has followed this mandate and returned aircraft to Cuba. However, in the case of the biplane, international law did not provide the prevailing principle. A seemingly unrelated action brought in a Miami court by a Cuban-American woman, Ana Margarita Martinez, significantly altered the legal framework and ultimately led to a disposition that many considered a flagrant disregard of international law.
In 2001, Martinez sued the Cuban government for civil damages stemming from sexual battery committed by her husband. Martinez brought the lawsuit when she discovered that her husband, Juan Pablo Roque, was a Cuban spy who married her only to gain access to the Miami exile community. Martinez argued that since her husband never informed her of his actual identity, he procured her consent to a marital relationship fraudulently. Therefore, any intimate acts that occurred within that marriage constituted rape. The jury found in her favor and awarded her a judgment of $ 27.1 million against the Cuban government.
While Martinez’s marriage to Roque was regrettably ill-fated, her ability to seek a legal remedy for these wrongs resulted from an almost celestial alignment of recent laws and political determinations. Although the Foreign Sovereign Immunities Act of 1976 (FSIA) bars most private lawsuits by American citizens against foreign governments, more recent enactments enabled Martinez to bring suit. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended the FSIA to allow private actions against foreign governments if the plaintiff alleges an injury caused by an act of terrorism by an officially designated terrorist state. Only weeks after the biplane touched ground on the Key West tarmac, Congress passed the Terrorism Risk Insurance Act of 2002 (TRIA). This Act buttressed Martinez’s lawsuit by permitting her to enforce her judgment against a much wider range of assets. Pursuant to this statute, the judge presiding over Martinez’s case issued an order to seize and auction the biplane as an item of property belonging to the defendant Cuban government.
The Cuban government argued that these domestic laws should not modify prior promises made by the United States. Citing the Hague Convention, the Cuban government labeled the attachment of the biplane to Martinez’s lawsuit “a flagrant violation” of the law and demanded that the United States return the aircraft and the eight Cuban defectors. The United States government declined to intervene, and the biplane was auctioned in January 2003.
If we think of this case as a classic debate over ownership and possession, then the auction undoubtedly resolved the matter. However, if we reflect on the entire occurrence as a political problem with likely international ramifications, then the impact of this “little yellow Cuban biplane” remains a complex and open-ended question. Most importantly, the incident may have set the dangerous precedent that an individual can, at the trial court level, vastly disrupt foreign relations by dissolving a foreign government’s ownership interest in property that normally would be protected by international agreements. One United States government official explained the potential impact of this so-called “plaintiff’s diplomacy” thus: “‘[I]f some American Airlines plane on the way from Puerto Rico ended up in Havana, we’d expect the Cubans to give us our airplane back’ . . . .” Worldwide, the aviation industry and its civilian passengers depend on participating nations to honor international agreements. Yet domestically, the United States has an interest in compensating victims of terrorism and deterring future violence by allowing plaintiffs to enforce judgments against foreign nations. The biplane, as an item of property belonging to the Cuban government and resting on American soil, provided an opportunity to compensate Martinez. Thus, the case presents a unique opportunity to investigate the intersection of two bodies of law that each grapple with international terrorism. While the fate of the biplane already has been determined, the case is worth revisiting because of the likelihood that the same controversy will arise the next time an aircraft owned by an officially designated state sponsor of terrorism is unlawfully seized and brought to the United States. Throughout this Note, I discuss the “case of the biplane”; by this nomenclature I refer to a past incident as well as to all future cases in which the same statute and treaty conflict.
Part II of this Note analyzes the three international agreements that define and protect foreign ownership interests in civil aircraft, with special focus on their cumulative force in defining the applicable language of the Hague Convention. Part III focuses on the evolution of domestic laws that allow Americans to bring suit against state sponsors of terrorism. In anticipation of the interest analysis provided in subsequent sections, Parts II and III provide detailed legislative histories of the conflicting laws, including relevant predecessor laws. Part IV considers whether traditional canons of construction can resolve the apparent conflict and finds that these strict rules do not provide a consistent answer. Part V introduces interest analysis, an approach used in interstate conflicts jurisprudence. Part V also considers the legislative interests behind the competing laws, finding that the comparative impairment approach may be the most appropriate for resolving intrajurisdictional conflicts between statutes and treaties. This Note concludes with a broad recommendation that courts apply interest analysis to resolve intrajurisdictional conflict of laws questions, rather than perform concealed interest analyses under the guise of mechanical application of selected canons. Additionally, this Note recommends that in the case of the biplane, lawmakers should create an exception for civil aircraft that is similar to the immunity currently afforded to diplomatic and consular property. This change is essential because canons of construction cannot produce a predictable outcome. A decisive answer, however, is necessary in this conflicts question; both the continued protection of the civil aviation industry and the steadfast deterrence of air piracy depend on consistent application of international agreements. With humanity still reeling from the tragic events of September 11, 2001, it is perhaps more important than ever to preserve the same set of international agreements that helped a shocked world regain confidence in civil aviation in the aftermath of World War II.
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation