The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.

http://opiniojuris.org/2015/10/01/the-u-s-embargo-on-cuba-may-be-a-bad-idea-but-it-doesnt-violate-the-un-charter/

7 Responses

  1. so, would the GA Res. reflect general patterns of opinio juris relevant to interpretation of the Charter?

  2. …the classical straw man – the Resolution does not say that what the US is doing with Cuba is illegal. It reiterates a call to refrain from restricting trade. If the US is not in practice doing it, no harm done. If it is ever thinking about actually applying a blockade, it should not do it. Full stop. Nothing terrible, just one of the many situations when the UN Charter is invoked (as the US often does) to reiterate a wish rather than a right.

  3. Julian,

    I guess the one-million dollar question is when unilateral sanctions may amount to economic coercion in contravention of the non-intervention principle. For an interesting (yet somewhat sobering) account on this question, see Tzanakopoulos’ recent paper at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2633065.

    Inasmuch as unilateral sanctions breach the non-intervention principle or other rules of international law (treaty/custom), this raises the distinct question whether they can be justified as countermeasures by an injured State, or as third-party countermeasures against breaches of erga omnes norms. The sanctions against Russia to which you refer, for instance, are quite evidently inspired by such a breach of an erga omnes norm (Article 2(4) UNCh)…

    There is moreover another relevant difference between the sanctions against Russia and the US ’embargo’ against Cuba, in that the latter sanctions regime envisages so-called ‘secondary sanctions’ that sit uneasily with international law principles governing the exercise of jurisdiction.

    (ps: of course the annual UNGA resolutions are an expression of State practice/opinio juris)

  4. And Tom, see our Arab Oil Weapon article, way back in time, in the American Journal of International Law, the response there, our response to the response in the Columbia Journal of Transnational Law, etc. Richard Lillich put much of these together in his book on Economic Coercion, way back in time. Our articles are on-line at SSRN.
    We recognized (but seem to be in the minority) that 2(4) can reach “force” of an economic nature [there is no textual limit to “armed” force] and that some forms of economic coercion can be so intense and destructive as to amount to a violation of 2(4). Probably still a minority viewpoint.

  5. Tom, et al., the first article is at http://ssrn.com/abstract=2456026 — from AJIL

Trackbacks and Pingbacks

  1. christian louboutin

    Opinio Juris » Blog Archive The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter – Opinio Juris

  2. clash of clans hack tool 2015,clash of clans hack download apk,clash of clans hack activation code,clash of clans hack cydia july 2015,clash of clans hack apk 2015,clash of clans hack download apk android,clash of clans hack no survey,clash of clans…

    Opinio Juris » Blog Archive The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter – Opinio Juris