The Cuban Embargo under International Law

El Bloqueo

Nigel D. White

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134451241
• Edition: 1
• Topic: Volkswirtschaftslehre
• Subtopic: Wirtschaftsgeschichte

The United States embargo against Cuba was imposed over fifty years ago initially as a response to the new revolutionary government's seizure of US properties, which was viewed by the US as a violation of international law. However, while sanctions can be legitimate means of enforcing established norms, the Cuban embargo itself appears to be the wrongful act, and its persistence calls into question the importance and function of international law.

This book examines the history, legality and effects of US sanctions against Cuba and argues that the embargo has largely become a matter of politics and ideology; subjecting Cuba to apparently illegitimate coercion that has resulted in a prolonged global toleration of what appears to be a serious violation of international law. The book demonstrates how the Cuban embargo undermines the use of sanctions world-wide, and asks whether the refusal of world governments to address the illegality of the embargo reduces international law to tokenism where concepts of sovereign equality and non-intervention are no longer a priority. Despite the weaknesses of international law, Nigel D. White argues that in certain political conditions it will be possible to end the embargo as part of a bilateral agreement to restore normal relations between the US and Cuba and, furthermore, that such an agreement, if it is to succeed, will have to be shaped by the broad parameters of law and justice.

As a fierce re-evaluation of international law through the story of a country under siege, this book will be of great interest and use to researchers and students of public international law, international relations, and US and Latin American politics.

1 Introduction

1.1 The relevance of international law

The story of the Cuban embargo appears to be the story of international law, whereby coercion by means of unilateral trade and other sanctions against a country does not seem to be the attempted enforcement of international law, but rather the violation of it. Although the original reasons for the US imposition of measures in 1960 included responding to violations of international law by the revolutionary government in Cuba, its maintenance over five decades appears almost exclusively a matter of ideology and politics. The concept of sanctions, normally seen as legitimate means of enforcing established norms, appears to be turned on its head. The punishment (the embargo) seems to be the wrongful act, which has not been curbed or fully confronted by the rest of the world. Indeed, the continuing act of apparently illegitimate coercion becomes the norm, making it very difficult to identify when sanctions are lawful or not, potentially undermining other such measures (for example measures taken against Iran for its violations of the Nuclear Non-Proliferation Treaty 1968). Only limited critical responses to the Cuban embargo have been undertaken by other countries or organisations (for example the EU’s response to the extraterritorial effects of the US Helms-Burton Act of 1996), so that the end result is a fifty-year toleration of what appears to be a serious violation of international law.

What does this say about the importance and function of international law in the modern era, indeed the very existence of international law? Is it enough to say that some or even most governments recognise the illegality of the embargo (as evidenced by regular condemnation in the UN General Assembly)? Doesn’t that reduce international law to mere tokenism or is such a low-level function enough when dealing with the world’s remaining superpower? Indeed, should we reconsider the fundamentals of international law and take a more pragmatic view, one which recognises the imbalances of power and no longer pays lip-service to sovereign equality and nonintervention? This book considers these fundamental questions about international law and the international order through a detailed examination of the story of a country under siege.

The book is a sustained legal analysis of the embargo through its various iterations; but it also places it at the centre of a long-standing bilateral dispute between the two countries. The dispute is not simply about how to conduct and control trade, but also concerns different conceptions of security, intervention, human rights and self-determination. To this end the thesis is not only to dissect the embargo in terms of its legality, but also to place its removal at the centre of a potential rapprochement between the two governments involving a restoration of normal conditions between two sovereign states based on mutual respect and cooperation. It will be shown that in the context of a bilateral relationship between two countries, international law can set the framework for a peaceful solution that involves recognising, addressing and remedying past wrongs in a constructive way.

Effective dispute settlement is a feature of a legal order that does not simply consist of primary rules setting standards of behaviour, but of a more rounded legal system where there are secondary rules of recognition, change and adjudication.¹ A system of primary rules alone is one that is uncertain, static and relies on diffuse pressure to maintain it.² International law does suffer from these structural defects, especially when compared to national legal systems, but we should understand that it is a legal order of a different nature, which is at its most rudimentary when considering inter-state disputes. Even though the international legal order falls short of a complete legal system it does have the potential to facilitate settlement even in the most intractable disputes. In order to understand international law it is always necessary for the actor, interpreter or observer to come to terms with the relationship between politics and law that is so intrinsic to the study of international law, its legitimacy and effectiveness. In international relations, law is a facet of politics in a much more intimate and complex way than in many domestic legal and political systems where there has developed, over time, a rule of law. Although the international rule of law is increasingly referred to,³ this book demonstrates that it is clearly an aspiration as opposed to a reality. This is arguably so even in sectors of international law where there appears to be effective dispute settlement (such as the world trading system).⁴

While rights and duties of states under international law can readily be identified, there is often a lack of clarity as to their content, with general principles such as that of self-determination having greater indeterminacy than others. Furthermore, despite the development of secondary rules on liability (or ‘responsibility’ in international legal terminology) there remains uncertainty as to how rights can be asserted and duties enforced. Indeed, one of the most problematic issues in international law is that although it has largely (but not completely and not without controversy) banned the use of military force to settle disputes, it still allows for, indeed arguably encourages, self-help in the shape of unilateral enforcement using a variety of non-forcible measures. Furthermore, the weaknesses of international laws signify, according to the pragmatists, that they are outweighed by political concerns and interests.

A pragmatic approach justifies the Cuban embargo as a legitimate defence of US rights and interests. While the pragmatic view sees international law as peripheral and no barrier to the pursuit of sovereign interests, scholars from post-colonial countries would argue that it is important to confront the reality that international law actually embodies the inequalities in international relations, reflecting its imperial and colonial origins. Given Cuba’s dependence on the United States prior to the revolution of 1959, this view has resonance for the subject of the book. The critical view has been developed to put forward the idea of unequal sovereignty whereby a great power is not so limited by international law as a ‘normal’ state would be and, further, has far more rights than a ‘pariah’ state, which, for example, cannot hide behind the principle of non-intervention.⁵ Given Cuba’s alleged ‘outlaw’ status – at least from the US perspective – this literature has relevance and is discussed in the book.

In contrast to these and other power-focused theories, the universal approach will also be considered. This portrays international law as being legitimately universally applicable to all states and other international legal persons, an approach that recognises the weaknesses of international law but still sees its rules and principles as embodying the values of the international community of states and other actors (values of equality, peace, humanity, and justice), producing a system of law that can be held up against even the most powerful of actors. Although this is the approach favoured by the author and,⁶ more importantly, by the International Court of Justice (for instance in the Nicaragua Case of 1986),⁷ the ease with which international law is brushed aside by powerful states, with very little by way of sanction, needs to be taken seriously and requires a critical re-evaluation of the universal approach to international law.

The Cuban embargo is shown to embody the weaknesses and contradictions at the heart of international law; it poses a series of questions about international law that are addressed as a test-case for the normative relevance and legitimacy of international law. Throughout the book international law is not seen simply as a set of universal rules, but as part of an on-going process,⁸ enabling progress to be made towards dispute settlement within a normative framework established by international law, but also one which allows for a significant degree of political choice. Indeed, it will be argued, adapting Koskenniemi’s analysis,⁹ that in case of highly politicised disputes, law is normally shaped by politics, but there are occasions when the political context changes where international law comes into its own and shapes political choices.

1.2 A note on sources

The history of Cuba, which features in the earlier chapters of the book, is based on a number of secondary accounts, but particularly revolves around two authoritative accounts: Marifeli Pérez-Stable’s, The Cuban Revolution,¹⁰ and Richard Gott’s Cuba: A New History.¹¹ The two books are widely referred to in the literature and the information within them has been used to form the basis of a legal analysis of events. These histories have been supplemented by the excellent political history of the embargo by Patrick J. Haney and Walt Vanderbush, The Cuban Embargo.¹² The legal analysis that dominates later in the book is largely based on an examination of numerous primary documents (treaties, meetings, resolutions, legislation, cases, state practice . . .), supplemented by secondary sources, where available. The literature is primarily English language based.¹³

The purpose in assimilating these various sources is not to provide an alternative history of Cuba, rather a historical account of the bilateral relationship between Cuba and the US and the legal relations established (and broken) by it. Those legal relations are partly bilateral but are, in the main, part of a multilateral, arguably universal, set of rules, which bind both parties. Care clearly has to be taken not to impute obligations to the two countries that they do not have, for instance, under human rights treaties. However, while the US and Cuba do not have many reciprocal treaty obligations under human rights law, they are both subject to that cruder, but essential element of international law, custom. Custom though suffers, by its very nature, from indeterminacy and is often contested but it is worthwhile here reprising the orthodox understanding of it as forming a core component of universal international law.

From an orthodox perspective customary international law has both an internal and an external aspect. Customary law is what states do while accepting that they are under a duty or have a right to do so (opinio juris sive necessitates).¹⁴ Opinio juris is best understood as the internalisation of a norm by a state so that when it is asserting its rights or following its duties, in relation to other states, its agents will make declarations to that effect; or when other states are not acting in accordance with their obligations it will condemn those states for breaching customary norms. Opinio juris is an essential element of customary law and it is this element that explains the continued validity of the norm prohibiting the use of force as a rule of custom. In treaty law there is a parallel principle – pacta sunt servanda – which explains the obligatory force of treaties.¹⁵

It is informative to consider the most debated customary international law, namely that prohibiting the use of force, to uncover its continued validity and, moreover, relevance even in the face of clear violations of the norm. This is best illustrated by an example from the Cold War when the superpowers seemed to use force whenever their spheres of influence were under threat. For example, in 1979, the Soviet Union invaded Afghanistan but claimed that the ...