The U.S. Embargo on Cuba Should Be Lifted, But It is Not a Blockade, and Perfectly Legal

by Julian Ku

Last week, I accompanied a group of Hofstra Law students on a one-week study abroad “field study” in Havana, Cuba. We visited just a week after President Obama’s historic visit and a day after an almost equally historic Rolling Stones concert.  The trip gave my students and I an opportunity see how some of the effects of President Obama’s effort to normalize relations with Cuba, and also how the U.S. embargo on Cuba is viewed bimage1y Cubans.

It also gave me a chance to think again about my earlier analysis of Cuba’s argument that the U.S. embargo violates international law.  I still think Cuba’s description of the U.S. embargo as a “blockade” is ludicrous. But I am more sympathetic to legal criticisms of the
extraterritorial effects of the U.S. embargo.

First, as the photo suggests, Cuba calls the U.S. embargo a “blockade”.  Indeed, the billboard (which faces visitors as soon as they drive in from the airport), refers to the “bloqueo” as the “longest genocide in history.”  This might be put down simply to rhetorical excess, but the Cuban government has repeatedly used the term “blockade” in public statements at the United Nations. It has demanded upwards of $80 billion in compensation for damages caused by the “blockade.”

Whatever the U.S. embargo on Cuba is, it is NOT a blockade as that term is defined under international law.  According to a U.S. definition, a blockade is a “belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation.” Oppenheim had an even narrower definition, limited to naval blockades “of the approach to the enemy coast or a part of it….to intercept all intercourse and especially commercial intercourse by sea….”

It goes without saying that the U.S. is not imposing a blockade under this definition.  The U.S. embargo is not a belligerent operation using its military forces to prevent commercial intercourse with Cuba.  No military force prevents Cuba from trading with nations other than the U.S.  Calling a refusal by one country to trade with another a “blockade” is an insult to any reasonable definition of the term (or actual blockades).

The Cuban government knows that U.S. is not imposing a blockade, but it is useful for it to keep using the term at the U.N. and even win support from other nations for its characterization of the embargo.  The U.S. doesn’t even bother protesting Cuba’s use of the term anymore, which is a mistake because it grossly mischaracterizes what the U.S. embargo actually is.  Moreover, if the U.S. doesn’t fight back against the “blockade” smear, it subtles undermines the legitimacy of U.S. embargos on other (much more dangerous) countries like North Korea and Iran.

Accepting the term “blockade” uncritically also allows the Cuban government to blame the U.S. for Cuba’s various economic problems.  But while the U.S. embargo definitely is having an impact on Cuba, it is not the nearly as important as the Cuban government’s own economic policies.  It is worth noting that the international Cuban campaign against the embargo really started in the early 1990s after Cuba lost support from the Soviet Union.  Cuba did not “need” the embargo to be lifted until it lost Soviet support.  Relatedly, Cuba’s main high-value exports today are services (e.g. medical doctors and other specialists) that the U.S. probably won’t actually purchase.  There is only so much in cigars and rum that the U.S. market can absorb.  Cuba’s burgeoning tourist industry is growing, but it is hard to imagine Cuba could handle many more tourists than it is already receiving (or until at least they build a new airport).

To be sure, there is one aspect of the U.S. embargo that probably does violate international law. Under the 1996 “Helms Burton” law, the U.S. created a private cause of action against anyone trading in assets expropriated by the Cuban government, even if that person was located in a foreign country.  This, along with a measure requiring denial of visas to anyone who has traded in such expropriated assets, caused consternation in the EU and Canada.   Their pressure (and a threatened WTO case) has led to the U.S. suspending Helms Burton so that it has never actually gone into effect.

U.S. law also extends the embargo to foreign subsidiaries that are “owned or controlled” by U.S. persons.  This is also controversial because it applies U.S. law extraterritorially in violation of other countries’ sovereignty.  I think this is problematic, but this is not as settled as it might seem since the U.S. is arguably simply asserting an aggressive form of nationality jurisdiction.  But this aspect of the embargo is definitely legally questionable.

In the end of the day, I think the U.S. embargo is perfectly legitimate as a matter of international law.  But just because something is legal doesn’t mean it is a good or necessary policy.  Based in part on my trip to Cuba, I am inclined to agree with President Obama that the U.S. embargo is no longer useful, and counterproductive in many ways. Congress should probably (and will eventually) lift the embargo.  But the U.S. should not back down from defending the legality of its use of economic sanctions as a tool of statecraft.

http://opiniojuris.org/2016/04/07/u-s-embargo-cuba-lifted-not-blockade-perfectly-legal/

4 Responses

  1. Thanks for the post . With all due respect , I strongly disagree with the methodology or in fact , lack of it , presented in that post .

    For , bringing definition , is far from being sufficient ! The definition, the phrasing itself , is only the starting point, yet:

    One should also prove , that , the definition , combined with certain given factual configuration , with jurisprudence , and above all :

    Subjective purpose ( the legislator intent ) and Objective purpose ( universal values ) are finally matching , matching all together .

    Since : Some definitions insist upon conduct , some insist upon result , effective results , here for example , from Texas penal code :

    “Bodily injury” means physical pain, illness, or any impairment of physical condition.”

    So, one can see clearly, that we have residual results, not defined precisely:
    ” any impairment of physical condition …… ”

    Here the definition of ” assault ” in the Israeli penal code ( common law ) :

    “Definition of assault

    378. If a person strikes, touches, pushes or otherwise applies force to another person, whether directly or indirectly, either without his consent or with his consent, which was obtained fraudulently, then that constitutes assault; for this purpose, “application of force” includes the application of heat, light, electricity, gas, smells or any other thing or substance, if it is applied to a degree that causes injury or discomfort.”

    So, one can observe clearly : any mean , and : resulting in injury or discomfort ( the effective result , the purpose , prevails !! )

    In the case of Cuba :

    Had to be proven , that : only by force or military force , and no matter the purpose or results . Because :

    If the result of certain action, mounts to that one of classic Blockade ,then , one may argue , that it is a blockade . How have you proven it ??

    Let’s take the Sanctions on Iran:

    They (The Iranians) were denied access to ” swift code ” (global financial transaction capacity) So, the result, was basically, identical to such of a military blockade by force.

    You had to prove that :

    It is not blockade , since : means matter , since , results , no matter ! and everything in light of given factual configuration and purposes .

    Thanks

  2. How do you think the U.S. trade restrictions would be considered under the GATT/WTO? Is there a GATT violation? If so, could it be justified under GATT Article XXI?

  3. Simon, I agree it could violate GATT, but I think Art. XXI is capacious enough to justify the embargo on Cuba, and certainly elsewhere as well.

  4. An interesting read. Thank you.

    One minor (but material, I think) quibble with your description of “the U.S. suspending Helms Burton so that it has never actually gone into effect.” Strictly speaking, the USG has maintained a suspension of only Title III of the Helms-Burton legislation, codified at 22 USC 6081-6086.

    We’re all still dealing with other elements of Helms-Burton that are not so easily suspended, especially 22 USC 6032(h) (in Title I). That provision states that “The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations [the Cuban Assets Control Regulations (CACR)], shall be in effect on March 12, 1996, and shall remain in effect, subject to section 6064 of this title.”

    The practical impact is to limit the Executive Branch’s discretion to modify or lift the embargo in the absence of a Castro-free “transition government” in Cuba (although certain peripheral adjustments to the CACR can and have been made over the years). Unless I’m missing something–always a distinct possibility–section 6032(h) of Helms-Burton is the principal statutory obstacle to a complete easing of sanctions today.

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