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Weekly News Wrap: Monday, May 30, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Stay in Your Lane! When Political Scientists Become Bad International Lawyers

by Julian Ku

Next month’s issue of Foreign Affairs, a leading journal of highbrow foreign policy in the U.S., features an important article on the United States as “The Once and Future Superpower” (subscription).  Based on their forthcoming book, professors Steven Brooks and William Wohlforth of Dartmouth College argue that China is not going to displace the United States as the world’s leading superpower in the near or even mid-range future.

As an article analyzing global power politics, it seems fairly (although not completely) persuasive.  But I was struck by how the otherwise carefully argued piece descends into complete gibberish when it tries to explain how “international law” can be a tool for the United States to constrain and manage China’s activities in the South China Sea.

And if Beijing tried to extract economic gains from contested regions [in the South China Sea], Washington could facilitate a process along the lines of the proportional punishment strategy it helped make part of the World Trade Organization: let the Permanent Court of Arbitration, in The Hague, determine the gains of China’s illegal actions, place a temporary tariff on Chinese exports to collect exactly that much revenue while the sovereignty claims are being adjudicated, and then distribute them once the matter is settled before the International Court of Justice.

Whaaaahhht?

In this one sentence, the authors propose that an arbitral tribunal convened under UNCLOS issue an award granting money damages to the Philippines. This is somewhat unlikely, but it is theoretically possible.  But who exactly is going to place a “temporary tariff on Chinese exports”?  The United States? A country that is not party to the dispute between China and the Philippines? And why exactly wouldn’t this cause a trade war with China and why wouldn’t it violate the WTO Agreement? And when exactly did the International Court of Justice get involved given that China has not consented to that court’s compulsory jurisdiction?  

Not only is this not a plausible mechanism for sanctions against China (the world’s second largest economy), but it is not a plausible mechanism for sanctions against almost any country in the world.  It has never been done before outside of the trade context, where every country specifically agreed to the trade sanction system in advance! 

The authors’ casual, offhand explanation of how “international law” is an asset that can be used for pursuing policy goals irrespective of existing legal institutional frameworks and legal principles is something I’ve noticed before in political science literature.  The “law” argument is not a bad one in principle, but it requires a deeper understanding of law as an independent analytical field than political scientists are willing to give it credit for.

As it stands now, this otherwise interesting article loses credibility with policymakers because the authors didn’t bother to try to understand how law and legal institutions are organized.  Maybe they should just skip over the legal stuff, and stay in their own lanes.  Or maybe they could find a reader up there in New Hampshire with a J.D. (I’m always available!).

Weekly News Wrap: Monday, April 18, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Interview with David Remnick About Syria

by Kevin Jon Heller

I had the pleasure about a week ago to discuss Syria with David Remnick for the New Yorker Radio Hour. Most of the questions, not surprisingly, focused on whether I thought there was any realistic prospect that Assad would face justice. (My answer: probably not.) The show went live a couple of days ago — I was traveling and didn’t have access to internet — but you can find the podcast here. My interview lasted about 25 minutes, and I highly recommend the segment on Syria that precedes it.

Thoughts most welcome!

New Decision Finds UN Responsible in Kosovo Lead Poisoning Case

by Kristen Boon

The Human Rights Advisory Panel has found UNMIK, the UN Mission in Kosovo, responsible for breach of a number of human rights provisions connected with lead poisoning of the Roma population following the 1999 conflict.   Under Section 2 of UNMIK Regulation No. 2006/12, t the Panel has jurisdiction over complaints relating to alleged violations of human rights   “that   had   occurred   not   earlier   than   23   April   2005   or   arising   from   facts   which   occurred prior to this date where these facts give rise to a continuing violation of human   rights”.

The facts of the case first launched in 2008 are summarized as follows:

the complainants are 138 members of the Roma, Ashkali and Egyptian (RAE)2 communities in Kosovo who used to reside in the camps for internally displaced persons (IDPs) set up in northern Mitrovicë/Mitrovica since 1999. All complainants claim to have suffered lead poisoning and other health problems on account of the soil contamination in the camp sites due to the proximity of the camps to the Trepca smelter and mining complex and/or on account of the generally poor hygiene and living conditions in the camps. The Trepca smelter extracted metals, including lead, from the products of nearby mines from the 1930s until 1999.

In the recently released decision 26-08 NM etal Opinion FINAL 26feb16 the panel noted at para. 207 that:

 the heavy exposure to contamination, coupled with poor living conditions in the camps, a situation which lasted for more than 10 years, three of them within  the  Panel’s  jurisdiction,  was such as to pose a real and  immediate  threat  to  the  complainants’  life  and  physical  integrity. The Panel also considers established the bad health conditions incurred by the complainants, and especially by children and pregnant women, as a result of their prolonged exposure to lead.

Ultimately, the panel found that UNMIK breached articles 2,3 and 8 of the ECHR (including the right to life, the right to be free from degrading and inhumane treatment, and the right to family life), Arts 2, 11, 12 and 23 of the ICESR (including the right to health and adequate standard of living), Arts. 2 and 26 of the ICCPR, and various provisions of CEDAW and the CRC due to the increased risk that pregnant women and children face from lead exposure.

With regards to remedies, the Panel recommended that UNMIK:

PUBLICLY ACKNOWLEDGES, INCLUDING THROUGH THE MEDIA, UNMIK’S   FAILURE   TO   COMPLY   WITH APPLICABLE HUMAN RIGHTS STANDARDS IN RESPONSE TO THE ADVERSE HEALTH CONDITION  CAUSED BY       LEAD CONTAMINATION IN THE IDP CAMPS AND THE CONSEQUENT HARMS SUFFERED BY THE COMPLAINANTS, AND MAKES A PUBLIC APOLOGY TO THEM AND THEIR FAMILIES;

TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MATERIAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;

TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MORAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;

It is hard to tell at this stage what influence this decision will have.   A Chatham House report from 2012 reported that at that date,  the UN had not acted on similar recommendations to pay compensation.

“although the Panel has recommended that UNMIK award ‘adequate compensation for non-pecuniary damage’ to date no compensation has been paid out on the basis of the Panel’s recommendations.”

Nonetheless, the decision creates important precedents in other ways.  It is to be contrasted, in particular, with the fate of a decision rendered in 2011 under a different process established by the General Assembly, in which the UN’s immunities blocked the claims.   I discuss this decision in a recent article on mass torts against the UN, and copy the relevant paragraph below:

This claim was brought by private claimants to the U.N. under a procedure established by General Assembly Resolution 52/24768 within six months from the time of the injury, asking for compensation and remedies for economic losses. The U.N. rejected the claim on July 25, 2011, stating by letter that the claims “do not constitute claims of a private law character and, in essence, amount to a review of the performance of UNMIK’s mandate . . . therefore, the claims are not receivable.” The U.N.’s response gave no explanation for why these were deemed to be public law claims, other than to note that the claims “alleged widespread health and environmental risks arising in the context of the precarious security situation in Kosovo.” In a more recent communication addressing the U.N.’s position on private torts claims generally, the U.N. added the following justification for its rejection of the Kosovo claim: The claims were considered by the Organization not to be of a private law character since they amounted to a review of the performance of UNMIK’s mandate as an interim administration, as UNMIK retained the discretion to determine the modalities for the implementation of its interim administration mandate, including the establishment of IDP camps.

 

The merits decision was issued after the case was refiled in October 2011 pursuant to the decision noted above.  Significantly, the reasoning was similar to that used to reject the claim against the UN for bringing cholera to Haiti.

Complementarity Compromised? The ICC Gives Congo the Green Light to Re-Try Katanga

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

On 7 April 2016, the ICC made an important but troubling decision in the case of Germain Katanga. After reviewing a request from the authorities of the Democratic Republic of Congo (DRC), the ICC Presidency determined that, in spite of the Rome Statute’s prohibition of double jeopardy, a Congolese military tribunal may effectively re-try Katanga on charges of war crimes and crimes against humanity. In addition to fair trial concerns, this decision raises a number of questions about the ICC’s raison d’etre, in particular the relationship of international criminal justice to human rights law and the future of complementarity.

Readers of this blog will know that Katanga’s trial has generated significant controversy over the years, especially as regards the ICC judges’ use of Regulation 55 (covered by Kevin Jon Heller here and here). A Congolese rebel re-integrated into the national armed forces, Katanga was convicted of war crimes and crimes against humanity in March 2014. Later that year, the ICC sentenced him to twelve years imprisonment, of which he had already spent seven years in detention at the ICC. In November 2015, just 18 months into his sentence, the ICC decided that he was eligible for early release, meaning Katanga would be a free man in January 2016.

Everything seemed to be going well for Katanga, when in December 2015 he made the fateful and still inexplicable decision to return to the DRC to finish serving his sentence. Shortly after he was transferred to a prison in Kinshasa (together with his compatriot and fellow ICC inmate Thomas Lubanga), rumors surfaced that the Congolese authorities would want to prosecute Katanga domestically. Sure enough, a few weeks before his scheduled release, the Congolese authorities announced Katanga would be tried in the DRC for war crimes and crimes against humanity.

It should be noted at the outset that Katanga’s trial in the DRC is not prohibited as such by the Rome Statute. That multiple courts may assert jurisdiction over a single suspect flows from the ICC’s principle of complementarity. However, national prosecutions cannot violate Article 20 (2), which guarantees that “[n]o person shall be tried by another court for a crime… for which that person has already been convicted or acquitted by the [ICC].“

A reaffirmation of the cardinal human rights principle ne bis in idem (known as double jeopardy in the common law, though there are some differences), this provision basically ensures that ICC defendants will not be tried for the same crimes twice.

Simple enough in theory, Article 20 is not as clear as it should be. International crimes are by their very nature composites of multiple crimes, which means that unless a person is tried and convicted for everything they did in their first trial, there will almost always be additional charges that a thorough or overzealous national prosecutor can bring in domestic proceedings.

Thus, the key question is who gets to decide whether a national court may prosecute an ICC defendant for ‘a crime for which that person has already been convicted or acquitted.’ It would be extremely problematic if national courts were free to decide this vexing issue, especially in cases such as Katanga’s, where the defendant is a former rebel who fought to overthrow the government currently in power. Thankfully, the Rome Statute recognizes this risk and gives the ICC the final word:

A sentenced person in the custody of the State of enforcement shall not be subject to prosecution… unless such prosecution… has been approved by the Court at the request of the State of enforcement.

It is Article 108 (1) that lies at the heart of the ICC’s decision to allow (more…)

Weekly News Wrap: Monday, April 11, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • John Kerry on Monday became the first U.S. secretary of state to pay his respects at Hiroshima’s memorial to victims of the 1945 U.S. nuclear attack, raising speculation that U.S. President Barack Obama might visit in May.
  • A Canadian aboriginal community of 2,000 people declared a state of emergency on Saturday after 11 of its members tried taking their own lives this month and 28 tried to do so in March, according to a document provided by a local politician.

Oceania

UN/World

Events and Announcements: April 10, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Seminar “Public Health and Human Rights – Current Challenges and Possible Solutions” (19 May 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 25 April 2016. The issue of global health governance deals with the question how to regulate efficiently a panoply of actors in global health, such as international organisations, States, NGOs (including philanthropic foundations), private-public partnerships, pharmaceutical companies, individuals and others. Recently, a concept of global health law has been developed for the improvement of health worldwide (L. Gostin), which comprises legal instruments developed by the WHO and other organisations, human rights documents that protect the right to health and standards that deal with social justice and the prohibition of discrimination.Key-Note Lecturer is Stefano Semplici is Professor of Social Ethics at «Tor Vergata» University. He is the former Chairperson of the International Bioethics Committee of Unesco (since 2008) and Chairperson of the Bioethical Committee of the Italian Society for Pediatrics. He is the Scientific Director of the University College “Lamaro-Pozzani”. Other lecturers: Prof. Brigit Toebes (Groningen), Prof. Vesna Švab (Ljubljana), Dr. Gorik Ooms (Protection International), Dr. Sondus Hassounah (Imperial College), Dr. Chamundeeswari Kuppuswamy (Hertfordshire), Prof. Stefania Negri (Salerno), Prof. Stéphanie Dagron (Geneva), Rossella Miccio (EMERGENCY), Prof. Sarah Hawkes (University College London). Interested candidates should register by compiling the online application form. For any query about the seminar please contact us at training [dot] publichealth [at] eiuc [dot] org.

Calls for Papers

  • The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its fourth annual workshop for junior scholars in law. The workshop provides junior scholars with the opportunity to present and discuss their work, receive meaningful feedback from faculty members and peers and aims to invigorate the scholars’ active participation in the community of international junior scholars in law. Call for papers for the 4th Annual TAU Workshop for Junior Scholars that will take place on November 21-23, at Tel-Aviv University Faculty of Law. Abstracts of up to 700 words of the proposed presentation (with a short bio and your current institutional affiliation(s)) should be submitted by email to TAU [dot] junior [dot] scholars [at] gmail [dot] com by May 16, 2016. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the city they expect to depart from and an estimate of the funds requested. A link to the call for papers and more information can be found at the faculty’s website.
  • The Faculty of Law at The University of Western Australia is convening the Fourth Annual International Criminal Law Workshop on 15-16 September 2016. The keynote speaker for this event is the Honourable Justice Kevin Parker, former Judge of the International Criminal Tribunal for the former Yugoslavia.  The Workshop organizers – Professors Holly Cullen, Philipp Kastner and Sean Richmond – request paper proposals of up to 400 words that examine the theme “The Politics of International Criminal Law”, or ICL more generally. The deadline for abstract submission is Monday 9 May 2016.  Following the Workshop, selected papers will be published in a special issue of the peer-reviewed International Criminal Law Review and, possibly, an expanded edited book with Brill Publishing.  To support and incentivize leading PhD students and Early Career Researchers throughout Australia and abroad to present at the Workshop, we are pleased to provide up to five travel awards of up to $1,000. For more information, please consult the Call for Papers.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa invite submissions for participation in a young researchers workshop on “Terrorism and Belligerency”. See also this link for more information.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

The Ruto Trial Chamber Invents the Mistrial Without Prejudice

by Kevin Jon Heller

As readers no doubt know, on Tuesday the ICC’s Trial Chamber declared a “mistrial” in the case against William Ruto and Joshua Arap Sang. The decision likely puts an end to the fiasco of the Ocampo Six — now the “Ocampo Zero,” to borrow Mark Kersten’s nicely-turned expression — although the Trial Chamber dismissed the charges “without prejudice,” leaving the door open for the OTP to prosecute Ruto and Sang again if its evidence ever becomes stronger.

The decision is obviously terrible for the OTP. And it is difficult not to feel sympathy for its plight: although I fully agree with the majority that no reasonable finder of fact could convict Ruto and Sang on the evidence presented during the OTP’s case-in-chief, Kenya has consistently refused to cooperate with the Court (despite its treaty obligations under the Rome Statute) and the allegations that pro-Ruto and Sang forces intimidated (and perhaps even killed) witnesses seem well-founded. In the absence of those serious limitations on its ability to investigate, it is certainly possible the OTP might have been able to establish a case to answer.

In this (extremely long) post, however, I want to address a different issue: the majority’s decision to declare a mistrial and dismiss the charges against Ruto and Sang without prejudice, instead of entering a judgment of acquittal. That is very much a distinction with a difference: had the majority acquitted Ruto and Sang, the OTP could not prosecute them again for the same conduct, because Art. 20 of the Rome Statute — the ne bis in idem provision — specifically provides that “no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.”

My question is this: where did the majority get the idea it could declare a mistrial instead of granting the defence’s no-case-to-answer motion? Unfortunately, Neither Judge Fremr nor Judge Eboe-Osuji provide a convincing answer to that question. On the contrary, they have simply invented the possibility of a mistrial in order to leave open the possibility of Ruto and Sang being re-prosecuted…

Friends Don’t Let Friends Torture: Comment on Youssef v. Secretary of State for Foreign and Commonwealth Affairs

by Matthew Sands

[Matthew Sands is a Legal Advisor with the Geneva based NGO, Association for the Prevention of Torture (APT) the full judgment on this case is available here.]

In late January, the UK Supreme Court published its judgment in the case of Youssef. In 2005, Mr. Youssef had been suspected of involvement in terrorist-related activity, and Egypt had requested the UN sanctions committee mandated under UN Security Council resolution 1267 to impose targeted sanctions on Youssef including an assets freeze and a travel ban. The UK Secretary of State for Foreign and Commonwealth Affairs agreed with the designation, and this blog asks whether alternative actions by the UK would have been more consistent with international law.

One issue decided by the case was whether the UK Secretary of State should step in and intervene when other States might be relying on evidence tainted by torture, in deciding whether to add Youssef’s name to the UN Sanctions list. Though the Secretary of State had not relied on tainted evidence himself, Youssef argued the decision to support the sanctions committee’s designation effectively sanctioned or consented to the use of torture-tainted information which had likely been used by other States to influence their own decisions.

In its ruling, the UK Supreme Court restated an earlier ruling that international law empowered, but did not oblige, the Secretary of State to so intervene. Ultimately, the Court ruled that the Secretary of State may simply turn a blind eye to the possible jus cogens violations of partner States in the UN.

We should emphasise that this was a possible jus cogens violation. It was not shown that the evidence on which other States relied was definitely the result of torture. The UK Supreme Court seems willing to distinguish between this and a definitive finding of illegality, which could engage a duty to intervene. In its reasoning, the Court examined the ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that placed other States under an obligation “not to recognise the illegal situation resulting from construction of the wall” and “not to render aid or assistance in maintaining the situation created by such construction” (ICJ, para.159). The Supreme Court reasoned that such rules “do not suggest or imply any duty on States to inquire into the possible reliance on such evidence by other States […] The obligations held to arise out of the International Court’s decision on the Palestinian wall are nothing in point. They followed a definitive finding of illegality.” [emphasis added] (at 29).

In accepting that duties likely flow from definitive knowledge of unlawful acts, but not from mere suspicion, the UK Supreme Court leaves open a gap that State actors will surely exploit. This is because it is understandably extremely difficult for anyone, whether a complainant or a State, to establish that information obtained overseas, often from victims who remain detained and who continue to be at risk of further torture, were tortured in order to get it.

Absent a definitive finding of illegality (and in these circumstances, it seems unlikely that such a finding would be made) the Youssef ruling implies no duty on the State to act in any way which stymies the possible jus cogens violations of others.

This conclusion seems at odds with the ICTY’s Furundžija judgment which was one of the authorities considered by the Court that recognised positive obligations of States “not only to prohibit and punish torture, but also to forestall its occurrence” (Furundžija, para.148). The ruling would also seem to be plainly inconsistent with settled jurisprudence of various international and regional bodies which require States to take effective measures to prevent torture and to ensure that evidence which cannot be shown to be untainted from the stain of torture is excluded in any proceeding.

The ruling in Youssef is therefore likely to frustrate the work of actors who assert that States can and should do more than passively respect the absolute prohibition if they are to actually stop torture in practice.

By failing to object to the designation placing his name on the sanctions list, Youssef argued that the Secretary of State did not fulfil an obligation to insist on respect for the prohibition against torture, which includes a duty not to rely on the fruits of torture. The UK Supreme Court recalled further passages from Furundžija that the prohibition of torture imposes on States “obligations owed to all the other members of the international community, each of which then has a correlative right. […] [A]nd every member […] then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued” (Furundžija, para.151).

In recognising that the UK has the right, rather than the obligation, to insist that other States reject evidence obtained by torture, the Court retained its customary deferential position to the State in the exercise of prerogative powers. A better reading might have been to accept that the positive duty to forestall a breach of the prohibition against torture required the Secretary of State to withdraw from any decision where tainted evidence was likely being considered.

Putting law to one side for a moment, as a recognised purpose of the UN, States should cooperate towards universal respect and observance of human rights through the exercise of friendly relations. It then begs the question, what would a friend do if confronted with the possibility that others relied on evidence tainted by torture?

The responsible thing to do would be to refuse to offer support for the designation of the UN sanctions committee, avoiding injury to individuals wrongly listed and to States themselves, until the committee was in a better state to make a fair decision based on untainted evidence. This would be more consistent with the role of the Secretary of State as a person constrained by a professional and a legal duty to uphold the obligations of international law, such as those described in the Convention against Torture.

In finding that the Secretary of State did not have an obligation to intervene, the UK Supreme Court gave the UK and others just enough wiggle room to permit torture and its fruits to continue to be collected and used. There is a risk that the judgment will be relied on elsewhere to show that wilful blindness to torture committed overseas is an excuse to do nothing. It is not.

The Next UN Secretary General – Public Meetings Starting Soon

by Kristen Boon

Importantly, and for the first time, meetings will soon be held with all candidates for the post of UN Secretary General, enabling them to present their candidatures.  Member States will also have the opportunity to ask questions.   Mogen Lykketoft, president of the GA, has publicized his plans for these meetings in letters here and here.

A current list of candidates (and their accompanying documents) for the position is available here, and includes the recently announced Helen Clark of New Zealand, Antonio Guterres of Portugal, Danilo Turk of Slovenia, and Vesna Pusic of Croatia.  The informal dialogues noted below are scheduled for April 12-14, and will be webcast on UN TV:   http://webtv.un.org.

Tuesday, 12 April 2016 [Trusteeship Council]

Wednesday, 13 April 2016 [Trusteeship Council]

Thursday, 14 April 2016 [Trusteeship Council]

9 AM – 11 AM

Dr. Igor Lukšić Dr. Danilo Türk

11 AM – 1 PM

Ms. Irina Bokova Dr. Vesna Pusić  Helen Clark

3 PM – 5 PM

Mr. António Guterres Ms. Natalia Gherman Dr. Srgjan Kerim

Other organizations are also holding meetings with the candidates, such as the International Peace Institute (IPI) whose conversation with Dr. Pusic was broadcast yesterday and can be viewed here.

Despite this new process, a recent New York Times article suggests this move towards more dialogue will have little substantive effect:

In the end, the selection will be made by the five permanent members of the Security Council, who will send that person’s name to the 193-member General Assembly for approval. As in the past, the deliberations are likely to be shaped more by diplomatic jockeying between Moscow and Washington than what the candidates say or do in public hearings that start next week. The Russian ambassador, Vitaly I. Churkin, made this clear to diplomats who asked him about the new pressure for transparency.

Given recent negative press about the relevance of the Organization, this possibility makes it all the more important for Member States and civil society to strategically engage the candidates, and raise agenda setting items early.   For background on the push for a new and more transparent selection process, see my post here.

Some of the issues that are being raised with the candidates include qualities of a new SG (with gender being a frequently discussed topic in the current campaign);  how the UN should respond to new threats to peace and security including asymmetrical warfare, whether we need more peacekeepers, and how their quality (training) can be maintained and improved.

Another frequent question is how the UN should respond to claims against the Organization, including the Haiti Cholera case and recent allegations of sexual abuse by UN peacekeepers.   To date, Danilo Turk has been most concise and convincing on this point, stating in the Times article noted above that he hoped the organization would “provide the victims with a fair process and an effective remedy.”   Dr. Pusic’s response in the IPI interview yesterday was disappointing:  she suggested more study was needed, and quickly moved on.

What questions would you like to pose to Secretary General Candidates?

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.