White, Nigel D. (2015) The normalization of US-Cuba
relations: the easing of the embargo and the role of
international law. In: Guest Lecture, 12 February 2015,
Universita di Roma 3. (Unpublished)
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“The Normalization of US-Cuba Relations:
The Easing of the Embargo and the Role of International Law”
Nigel D. White1
On the 17 December 2014, US President Barack Obama and Cuban President Raul Castro,
speaking simultaneously, thanked Pope Francis for ‘helping to broker a historic deal to begin
normalising relations between the United States and Cuba, after 18 months of secret talks
over prisoner releases brought a sudden end to decades of Cold War hostility’.2
Under the agreement full diplomatic relations would be re-established for the first time since
January 1961 and the President would use his executive powers to relax many aspects of the
embargo that had also first been imposed in 1960, but the normalization could not agree on
the formal lifting of the embargo as that had been embedded in US legislation in the 1990s,
meaning that the termination of the embargo still requires formal legislation from the US
Congress.
Here are some key parts of President Raul Castro’s speech of 17 December 2014:
Since my election as President of the State Council and Council of Ministers I have reiterated on many
occasions our willingness to hold a respectful dialogue with the United States on the basis of sovereign
equality, in order to deal reciprocally with a wide variety of topics without detriment to the national
independence and self-determination of our people.
The heroic Cuban people, in the wake of serious dangers, aggressions, adversities and sacrifices, has
proven to be faithful and will continue to be faithful to our ideals of independence and social justice.
Strongly united throughout these 56 years of Revolution, we have kept our unswerving loyalty to those
who died in defense of our principles since the beginning of our independence wars in 1868.
Today, despite the difficulties, we have embarked on the task of updating our economic model in order
to build a prosperous and sustainable Socialism.
1
Professor of Public International Law, University of Nottingham, UK. This is the text of a presentation given
to the Faculty of Law at Universita Roma 3, 12 February 2015.
2
D. Roberts and R. Carroll, ‘US Decides to Bring Cuba in from the Cold’, The Guardian, 18 December 2014.
1
As a result of a dialogue at the highest level, which included a phone conversation I had yesterday with
President Obama, we have been able to make headway in the solution of some topics of mutual interest
for both nations.
….
We have also agreed to renew diplomatic relations.
This in no way means that the heart of the matter has been solved. The economic, commercial, and
financial blockade, which causes enormous human and economic damages to our country, must cease.
Though the blockade has been codified into law, the President of the United States has the executive
authority to modify its implementation.
We propose to the Government of the United States the adoption of mutual steps to improve the
bilateral atmosphere and advance towards normalization of relations between our two countries, based
on the principles of International Law and the United Nations Charter.
Cuba reiterates its willingness to cooperate in multilateral bodies, such as the United Nations.
While acknowledging our profound differences, particularly on issues related to national sovereignty,
democracy, human rights and foreign policy, I reaffirm our willingness to dialogue on all these issues.
I call upon the Government of the United States to remove the obstacles hindering or restricting ties
between peoples, families, and citizens of both countries, particularly restrictions on travelling, direct
post services, and telecommunications.
The progress made in our exchanges proves that it is possible to find solutions to many problems.
As we have reiterated, we must learn the art of coexisting with our differences in a civilized manner. 3
The content of President Obama’s speech is reflected in a fact sheet produced by the White
House on the 17 December 2014.4
Today, the United States is taking historic steps to chart a new course in our relations with Cuba and to
further engage and empower the Cuban people. We are separated by 90 miles of water, but brought
together through the relationships between the two million Cubans and Americans of Cuban descent
that live in the United States, and the 11 million Cubans who share similar hopes for a more positive
future for Cuba.
It is clear that decades of U.S. isolation of Cuba have failed to accomplish our enduring objective of
promoting the emergence of a democratic, prosperous, and stable Cuba. At times, longstanding U.S.
policy towards Cuba has isolated the United States from regional and international partners,
constrained our ability to influence outcomes throughout the Western Hemisphere, and impaired the
use of the full range of tools available to the United States to promote positive change in Cuba. Though
this policy has been rooted in the best of intentions, it has had little effect – today, as in 1961, Cuba is
governed by the Castros and the Communist party.
We cannot keep doing the same thing and expect a different result. It does not serve America’s
interests, or the Cuban people, to try to push Cuba toward collapse. We know from hard-learned
experience that it is better to encourage and support reform than to impose policies that will render a
3
‘Speech by Cuban President Raul Castro on Re-Establishing US-Cuba Relations’, The Washington Post, 17
December 2014 available at http://www.washingtonpost.com/world/full-text-speech-by-cuban-president-raulcastro-on-re-establishing-us-cuba-relations/2014/12/17/45bc2f88-8616-11e4-b9b7-b8632ae73d25_story.html
(accessed 17 February 2015).
4
‘Fact Sheet: Charting a New Course on Cuba’ available at http://www.whitehouse.gov/the-pressoffice/2014/12/17/fact-sheet-charting-new-course-cuba (accessed 4 February 2015). For actual speech see
http://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes (accessed 17
February 2015).
2
country a failed state. With our actions today, we are calling on Cuba to unleash the potential of 11
million Cubans by ending unnecessary restrictions on their political, social, and economic activities. In
that spirit, we should not allow U.S. sanctions to add to the burden of Cuban citizens we seek to help.
Today, we are renewing our leadership in the Americas. We are choosing to cut loose the anchor of the
past, because it is entirely necessary to reach a better future – for our national interests, for the
American people, and for the Cuban people.
The main elements of the new US policies are: to initiate discussions on the re-establishment
of diplomatic relations; to establish an embassy in Havana; to critically engage with Cuba
including supporting improved human rights conditions in Cuba; to increase remittances to
Cuba from US persons; to expand exports of certain US goods (building materials, goods for
private sector Cuban entrepreneurs, and agricultural equipment for small farms); to authorise
sale of software and hardware to improve Cuba’s internet access; to adjust Treasury and
Commerce regulations allowing an expansion of authorized travellers to Cuba including
family visits, official visits, journalists, professional visits, educational visits, public and
sports visits; and to enhance humanitarian projects. Additional options for promoting
entrepreneurship in Cuba will be explored. As with many aspects of the embargo the extent
of these is deliberately opaque and dependent upon how they are interpreted and enforced.
Although they will expand the US presence in Cuba from virtually nothing to being
significant, it remains to be seen whether this will result in a huge influx of US citizens and
businesses. There is no general expansion to cover all US tourists, for instance, although
licensed US travellers may import $400 goods from Cuba including a maximum of $100 in
tobacco – we are not talking about a huge amount of cigars here but it’s a start! More
significantly, US credit and debit cards will be permitted for use by travellers to the US.
Although the US President has been criticised by the Republicans in Congress, in terms of the
US not getting anything from the agreement (apart from the release of Alan Gross, a US
citizen who had been detained in Cuba); the final words of the Fact Sheet are worth noting:
A critical focus of our increased engagement will include continued strong support by the United States
for improved human rights conditions and democratic reforms in Cuba. The promotion of democracy
supports universal human rights by empowering civil society and a person’s right to speak freely,
peacefully assemble, and associate, and by supporting the ability of people to freely determine their
future. Our efforts are aimed at promoting the independence of the Cuban people so they do not need to
rely on the Cuban state.
The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance,
promote human rights and fundamental freedoms, and support the free flow of information in places
where it is restricted and censored. The Administration will continue to implement U.S. programs
aimed at promoting positive change in Cuba, and we will encourage reforms in our high level
engagement with Cuban officials.
The United States encourages all nations and organizations engaged in diplomatic dialogue with the
Cuban government to take every opportunity both publicly and privately to support increased respect
for human rights and fundamental freedoms in Cuba.
Ultimately, it will be the Cuban people who drive economic and political reforms. That is why
President Obama took steps to increase the flow of resources and information to ordinary Cuban
citizens in 2009, 2011, and today. The Cuban people deserve the support of the United States and of an
entire region that has committed to promote and defend democracy through the Inter-American
Democratic Charter.
3
While the agreement is an important step towards normalisation; it is only the start, and in a
sense, the fundamental disagreement between the two countries has not been resolved. This is
reflected in the speeches of both leaders. That disagreement is essentially about what we
understand about basic concepts of international law: sovereignty, self-determination and
human rights.
In my book The Cuban Embargo under International Law,5 which I must admit was written
in almost total ignorance of these developments, although of course I claim cause and effect!,
I trace the history of the relationship between the two countries through the lens of
international law. Bilateral relationships are in a sense the most important ones in
international law – if one state falls out with another then we have wars and other ruptures of
international relations. Multilateral agreements and organizations may help to keep relations
on the basis of mutual respect for sovereignty but they can’t guarantee that bilateral relations
– between the UK and Argentina, or between Israel and Palestine, or between the US and
Cuba – won’t break down. Ultimately international law cannot prevent this but, it is argued in
the book, it does and should play an important role in re-establishing normal relations.
The essence of the argument in the book is as follows, although the complex interplay of
history, politics and law is a little hard to summarise and, therefore, you will have to buy the
book!
The question at the heart of the matter, concerning the embargo, which one side (US) sees as
a lawful response to illegality and the other side (Cuba) sees as a violation of its rights. How
can this be explained? Is it enough to say that most of the rest of the world condemns the
embargo as unlawful in annual UN General Assembly resolutions, when the embargo
remains in place. How can we understand and explain what is either a 50 year-long violation
of international law or, alternatively, a 50 year-long enforcement of it?
The starting point, in understanding the relevance of international law, is to clarify the
historical and political contexts within which the bilateral relations of Cuba and the US have
been shaped. That history is a struggle about sovereignty, independence, intervention and
non-intervention, self-determination and human rights, so basically it is a struggle over
international law – its content, meaning and application.
Cuba has struggled to achieve self-determination – first from Spain during its long and brutal
colonial occupation of the island from 1511-1898, a period that saw the virtual extinction of
the indigenous Tainos, with the emerging population being a mixture of whites of Spanish
origin and blacks of African origin, the latter being brought to the island as slaves to provide
labour in the production of sugar, which for many years has been Cuba’s main export.
The defeat of the Spanish by the US in the war of 1898 saw Spain ceding territories to the US
by the Treaty of Paris, which resulted in a period of occupation by the US until 1902. The US
saw this short period as a means of facilitating a transition from Spanish rule towards Cuban
independence with the emergent government in the hands of the Cubans. Indeed, US troops
had fought alongside Cuban rebels to defeat the Spanish so, from the US perspective at least,
this was liberation not occupation, at least with any neo-colonial or imperial intent.
5
Nigel D. White, The Cuban Embargo under International Law: El Bloqueo (Routledge, 2014),
http://www.routledge.com/books/details/9780415668170/ (accessed 17 February 2015).
4
From the Cuban point of view, rather than a brief transition to full independence this can be
seen as a time when victory for the Cuban rebels was taken from them by US intervention
and occupation that was designed to create a state that was dependent upon the US both
economically and politically. The US reserved the right to re-intervene (another period of US
occupation took place in 1906-9) and it took out a perpetual lease on Guantanamo bay. Cuban
sovereignty was not absolute but limited, a relationship of dependency was created, a series
of rigged elections allowed for no credible alternatives and again a rebellion grew.
The successful revolution that overthrew General Batista’s government on 1 January 1959 is
commonly seen as Cuba throwing off the yoke of US crony capitalism but submitting to the
equally imperialistic yoke of Soviet-style communism, but that was a decision made by Fidel
Castro at some point in time after the failed Bay of Pigs invasion by CIA-backed Cuban
exiles in 1961. Even after the failed attempt to base Soviet nuclear missiles in Cuba in 1962,
the Cuban revolutionary government did not substantially succumb to Soviet-style
Communism, probably until the late 1960s/early 1970s.
Arguably, for a decade or more after the revolution, Fidel Castro and his fellow
revolutionaries did embody the will of the people, a genuine exercise in self-determination
without the trappings of Western-style democracy. There was dissent by a small minority but
they were in favour of returning to the status quo of being subservient de facto or de jure to
the US, thereby putting an interesting twist on the self-determination battle. In this regard the
UN General Assembly’s Declaration of Friendly Relations 1970, containing a Cold War
consensus on basic rules of international law, spoke of a government representing the whole
people without distinction as to race, creed or colour, and in general the revolutionary
government did this with the exception of a minority who actively opposed selfdetermination! The revolution was representative of the people of Cuba but it struggled to
deliver sovereignty, in the sense of freedom from external interference and in the sense of
freedom to choose its own destiny. This is not surprising given that Cuba had been under the
yoke of colonialism since the 16th century, a situation supported by international law, which
recognised Spain’s title to Cuba by way of discovery, occupation and possession, and its right
to cede that territory to the US in 1898. The still-cited Island of Palmas Case of 1928 remains
authority for the legality of colonial occupation and cession, although the language of the
judgment is one of ‘sovereignty’. In effect international law recognised that states could
exercise sovereignty over colonies and such sovereignty was hard to wrestle back.
After the revolution of 1959, as well as the Bay of Pigs invasion of 1961, the US was behind
acts of subversion in Cuba (Operation Mongoose), involving acts of intervention, minor uses
of force, and assassinations; while the Soviet Union was in competition with China to bring
Cuba into the Socialist sphere, with the Soviet Union buying most of Cuba’s sugar from
1963. Gradually US dependence was replaced by dependence upon the USSR; and from the
US perspective Cuba did not achieve what could be called normal status in international law,
meaning a state deserving respect for its political independence and territorial integrity. US
domination of the American hemisphere in the early 1960s was evidenced by the
Organisation of American States (OAS) support for the quarantine against Cuba in response
to the shipment of Soviet missiles in 1962, the expulsion of the Cuban government from the
organisation in the period 1962-2009, and limited regional economic sanctions in the period
1964-75.
As part of the effort to secure full independence from the US, the Cuban government started
nationalisation of US properties and assets later in 1959, with the offer of limited
5
compensation that did not meet the Western standard of prompt, adequate and effective
compensation. The US embargo was imposed initially in response to what the US saw as a
programme of unlawful expropriations and this remains one of its underpinning justifications.
At the centre of the developing principle of political self-determination in international law,
the Cuban revolution was also reflective of the changing norms of economic selfdetermination and permanent sovereignty over natural resources. It was in 1962 that the UN
General Assembly adopted a resolution asserting that states had permanent sovereignty over
natural resources and, therefore, had the right to expropriate foreign interests for a public
purpose, subject to paying ‘appropriate’ compensation. Two years earlier, in 1960, the UN
General Assembly had stated that all peoples have the right to self-determination in the shape
of freedom from colonial or alien rule or subjugation. The Cuban struggle for political and
economic self-determination was at the fulcrum of changes in international law. It was no
coincidence that Cuba rapidly became a leading light in the Non-Aligned Movement of
developing countries that had freed themselves, at least de jure, from colonial rule.
As has been said, the embargo was first imposed by the US as a response to Cuban
nationalisation of US-owned assets and properties, which it viewed as a violation of
international law as it was not accompanied by prompt, adequate and effective compensation.
In fact, the Cuban government offered US compensation based on the book value of the
properties, figures that were ludicrously low but this was due to the US owners declaring very
low values for their properties in order to avoid tax. From the US point of view, however, the
embargo was initially justifiable as an early form of counter-measure or non-forcible reprisal
by the US in response to violations of international law by Cuba or, more simply, as a
decision not to trade with an ‘enemy’ state. However, to what extent can such measures be
indefinite, given that Cuba has not yet settled that debt? The subsequent clarification of the
law, by the International Law Commission in 2001, suggests such counter-measures, at least,
should be temporary and should not be punitive, but one might ask whether this is realistic in
the face of continuing breach.
In any case international relations are not so neatly packaged as to allow international laws to
operate in a structured way, whereby a violation of rights then leads to a lawful act of selfhelp which, somehow, remedies the original wrong. Such a one dimensional understanding of
bilateral relations is inadequate. Cuba’s ‘wrongs’, at least from a US perspective, were added
to by its efforts to export revolution to overthrow US supported regimes and other right wing
regimes in Latin America in the 1960s, and Africa from the 1960s to the 1980s. The details of
each case varied of course, but both states viewed their actions as lawful – the US punishing
Cuba by means of the embargo for Cuban breaches of community norms prohibiting
unlawful force, and Cuba providing support for peoples struggling for self-determination.
Cuba could point to a series of UN General Assembly resolutions that encouraged ‘support’
for such peoples without specifying what that meant; while the US could point to the same
resolutions that outlawed both direct and indirect aggressions. In theory the International
Court of Justice could address these disputes but, as the Nicaragua v US judgment of 1986
shows - and remember this was a judgment concerning Cold War interventions including
Nicaragua’s intervention in El Salvador by supplying arms to the rebels in the country, arms
that came from Cuba - the judgment was to the effect that both countries (the US and
Nicaragua) behaved unlawfully: Nicaragua by intervening in El Salvador and the US by
counter-intervening in Nicaragua.
6
The embargo was instituted in 1960 by Presidential Executive Order, essentially an exercise
of the President’s powers in US foreign policy. Initially it prohibited: all exports from the US
to Cuba, and was extended to all imports including the sugar quota; travel between the
countries; US investments in Cuba; and placed limits on remittances sent by the Cuban exiles
to members of their families who remained in Cuba. From acts of an ‘imperial’ President
responding to violations of US rights under international law, control of the embargo passed
to Congress in the 1990s, first in the Torricelli Act in 1992 and then the Helms-Burton Act of
1996, making it firmly a matter of US politics and domestic law.
Rather than seizing the opportunity to end the dispute when Soviet support was removed in
1991 with the demise of the USSR, the US chose to combine political expediency, by
handing over control to Congress and the influential Cuban lobby, with a worrying decision
to finish off a weakened Cuban government by actually increasing the punitive nature of
sanctions. Finishing off a weakened government would inevitably impact upon an even
weaker Cuban population, a population who, I imagine, were not comforted by the stated
purposes of the Helms-Burton Act: ‘to assist the Cuban people in regaining their freedom and
prosperity’, to ensure free and fair elections, as well as to protect the US from Cuban
terrorism, address the theft of US property, and respond to Cuban violation of human rights.
Penalties for breach of the embargo were increased and included purporting to give US
citizens a remedy in US courts against anyone ‘trafficking’ in property that was US-owned
before seizure by the Cuban government in the early 1960s. This was the so-called extraterritorial effect of Helms-Burton, but it was far outweighed by the bringing together and
tightening of all the previous elements of the embargo and its placement in US legislation,
legislation that remains in place to this day and will remain in operation, albeit in a reduced
form, until Congress repeals it. There is also the possibility, of course, that a new President
may exercise his or her powers to restore the embargo to its full strength.
The effects on health of the Cuban population, due to the tightening of the embargo in the
1990s, were dramatic. The US was taking cruel advantage of the removal of Soviet support,
for example, sugar was no longer bought by the USSR. The effect on life expectancy, the
reduction in weight of the average Cuban, the effect on new born babies …, all were detailed
in a report by the independent and respected American Association for World Health
(AAWH) in 1997. Cuba has since diversified its economy – tourism for instance was only
started in the 1990s – in order to make up for the loss of its major trading partner, and it has
received support from Venezuela in the form of cheap oil, and China in terms of significant
investments, in more recent times.
But that period of 5-10 years after the demise of the Soviet Union, when the population was
especially vulnerable, was when the US government chose to continue, indeed intensify its
sanctions against Cuba. That demonstrates, in my opinion, sufficient intent and cause to
constitute the deliberate damage to Cuba and to its people, over and beyond the US simply
exercising its rights to choose trade partners. One of the unaddressed aspects of state
responsibility for wrongful acts, as now embodied in the International Law Commission’s
2001 Articles on State Responsibility, is not attribution but causation. The decision to
continue the embargo was clearly an act of the US state but did it cause the losses suffered by
the Cuban population? Evidence from bodies like the AAWH, as well as reports from a
number of human rights organs including the Inter-American Commission on Human Rights,
all point to violations of socio-economic rights of thousands of individuals in Cuba as a result
of the impact of US legislation tightening the embargo after the end of the Soviet Union –
7
this was deliberate damage inflicted on Cuba and was clearly not mitigated, as is often the
case, by humanitarian exceptions built into the embargo. Furthermore, this further squeeze
could not be justified by the on-going violations of civil and political rights by the Cuban
government, for instance in its laws criminalising subversion and the often rudimentary trial
and indefinite detention of political dissidents, all of which have been condemned by the
Inter-American Commission on Human Rights; for instance in the so-called Black Spring
clampdown on dissent of 2003. The Cuban government’s record on civil and political rights
has been in dark contrast to its impressive record on socio-economic rights, despite the
deprivations caused by the embargo.
Thus we have a classical bilateral dispute involving escalating measures and countermeasures
by both states – Cuba expropriates US property in 1959-60, the US responds by an embargo
and other forms of intervention, Cuba intervenes in Latin America and Africa, the US sees
this as a threat to its interests as well as violating peremptory norms and hardens the
embargo, despite the end of the Socialist Bloc in 1991 the Cuban regime of Fidel Castro
refuses to fall and continues to violate basic civil and political rights, so the US responds
further by tightening the embargo and giving it extraterritorial effects and by so doing does
deliberate harm to the Cuban population. International law not only fails to control this
escalation but, in some ways, encourages it by providing the legal basis for each side’s
justifications and, furthermore, by not clearly prohibiting economic coercion as it has done
military coercion; so how can international law help provide a solution?
It is at this point in the book that I suggest a return in some senses to a classic conception of
international law, one that is concerned with restoring normal relations between states when
there has been a rupture in those relations. That can include mechanisms for attributing
individual criminal responsibility, for example, as found in the trial of the two Libyan agents
suspected of the Lockerbie bombings on 1988, which was part of a restoration of normal
relations between the US and UK and the Libyan government in 2003. In the US-Cuba
dispute there are clear criminal cases to be answered on both sides: for instance the
destruction of the Cuban Airlines plane in 1976 with the loss of 73 lives; and the shooting
down of the ‘Brothers to the Rescue’ planes in 1996 by the Cuban airforce. That can be part
of the restorative process between Cuba and the US, but given the basic inter-state nature of
the dispute, full restoration will depend upon agreeing a process of peaceful settlement that
starts with the restoration of diplomatic relations, but will include fact finding and
conciliation, as well as agreement on mechanisms for settlement of the US claims to
compensation for expropriation and Cuban claims for human rights damage. This could either
take the form of tribunal to receive individual claims by Americans and Cubans who have
suffered loss as a result of the wrongful acts of both states (on the lines of the Iran-US claims
tribunal established in 1981 in the context of a very hostile relationship between Iran and the
US, following the Iranian revolution of 1979); or could include an inter-state agreement on a
joint compensation fund to be handled by the respective governments (or something like the
Compensation Fund set up by the UN after the Iraqi invasion of Kuwait in 1991).
Thus, while diplomatic relations have been restored between Cuba and the US, this is just the
first step towards normalising their relations. It may take several further years of negotiation
and diplomacy to deal with past wrongs and ensure that future relations are based on mutual
respect for sovereignty and self-determination. As I argue in the book, drawing on the work
of Martii Koskenniemi and others, major advances in the application of international law to
seemingly intractable disputes depend upon political contexts, meaning that major changes in
political context can free up some of the blocks to a bilateral relationship based on mutual
8
respect. The US (and Cuba) missed the opportunity at the end of the Cold War, while the
stepping down of Fidel Castro, the changing Latin American political landscape and the fact
that President Obama is in his last term and wishing to leave a legacy, have all led to the
recent shift; but one suspects that the final shift will need something more momentous. The
repeal of the Helms Burton Act may only occur when politics in the US are in alignment, but
may also be triggered by the withdrawing from government of both Castro brothers since the
legislation explicitly states that the US will not fully accept a Cuban government with either
of them in it. Until then respect for international law will remain unfulfilled in relations
between the two countries. Nonetheless, international law does not disappear since both
parties constantly frame their dispute by reference to it, but it will not be implemented until
both parties can agree on common ground within those disputed principles of sovereignty,
non-intervention, self-determination and human rights.
9