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 by 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.