A customary rule against unilateral economic sanctions of the nature of the Helms-Burton Act? Regarding another (potential) vote in the United Nations General Assembly against the “bloqueo”
Presumably, in November 2024, within the framework of the General Assembly session, Cuba will once again submit a resolution for a vote emphasising the “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba”. This is an opportune moment to analyse whether the overwhelming support of the international community for this text over decades has had any impact on customary international law regarding unilateral economic sanctions.
International law allows the adoption of economic measures in bilateral relations between States or by international organisations against third States, which can be justified as countermeasures, retorsions, or within the framework of the international obligations of such international organisations (see here and here). It is an undeniable fact that efforts to present the United Nations Security Council as the sole organ of the international community with the authority to adopt or authorise coercive economic measures in the form of “sanctions” have failed. Practice clearly shows that States and international organisations do not regard economic sanctions as a function exclusively entrusted to the Security Council by the United Nations Charter in the process of the communitarisation of international society (see a defence of this position in the Separate Opinion, Partly Concurring and Partly Dissenting, of Judge Robinson, in Certain Iranian Assets (Islamic Republic of Iran v. United States of America), 30 March 2023, Judgment, para. 36.
In the same way, the international community has failed to establish prohibitions on the adoption of these unilateral economic measures. The large number of resolutions from the United Nations General Assembly and the Human Rights Council, which very clearly oppose these unilateral measures, face two realities: the non-binding nature of resolutions from bodies such as the UN General Assembly when rejecting the application of these measures, and the limited consensus within the international community on their adoption, which prevents their provisions from being considered as customary international law norms. This fact was recently recalled by the Grand Chamber of the General Court of the EU in its judgment of 13 September 2023, when Venezuela requested the annulment of Council Decisions and Regulations containing restrictive measures against Venezuela.
“Both the resolutions of the United Nations General Assembly referred to by the Bolivarian Republic of Venezuela and the resolutions of the United Nations Human Rights Council were adopted with a significant number of negative votes or abstentions, in particular on the part of Member States of the European Union. Thus, the resolutions relied on by the Bolivarian Republic of Venezuela cannot be considered to reflect ‘a general practice accepted as law’.”
A possible prohibitive exception to unilateral economic measures such as the Helms-Burton Act?
Despite the reality described above, it is worth considering a possible exception. One might ask whether the position adopted by the international community in the United Nations General Assembly against coercive economic practices, such as the Helms-Burton Act (Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), constitutes an exception to the general rule of a lack of international consensus in forming a customary norm against unilateral coercive measures.
The Helms-Burton Act comprises a broad set of provisions concerning economic restrictions and political purposes, which strengthened the United States’ economic sanctions against the “Castro government”. The comprehensive package of measures was expressly intended “to provide a policy framework for United States support to the Cuban people in response to the formation of a transition government or a democratically elected government in Cuba” and “to protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime”.
A set of reasons can be presented for the illegality of the application of this law under international law. The “intervention” implied by its application and the harmful impact on human rights would be the most relevant elements. Regarding the latter issue, for reasons of space, it would be worth providing further commentary on the possible limits of such measures in the field of human rights. Concerning the violation of the principle of non-intervention, whether applying the test for the existence of “coercion” from the Anti-Coercion Instrument (ACI) (intensity of the measures, the damage caused, their duration over time, etc.) or following the most authoritative doctrine, such as that of Marko Milanovic and his understanding of coercion models, the outcome is unlikely to be different. In my view, at least this “coercion” requirement would be met. It is a law that could be debated as to whether it concerns matters that are not solely within the state’s domestic jurisdiction (i.e., matters over which a state is not permitted to decide freely), but it is clear that it seeks to subordinate “the exercise of its sovereign rights” (see here and here).
However, the potential impact of General Assembly resolutions regarding unilateral economic sanctions, such as those imposed by laws like the Helms-Burton Act, does not extend to this discussion despite highlighting, for instance, its concern for human rights in Cuba. Its impact rests on aspects also emphasized at the time in the Opinion of the Inter-American Juridical Committee in compliance with Resolution AG/Doc.3375/96 of the General Assembly of the Organization of American States, entitled “Freedom of Trade and Investment in the Hemisphere”: the exercise of legislative or judicial jurisdiction over acts carried out abroad by a State, which exceeds all limits in matters of extraterritoriality, with effects on third parties, and with all the negative consequences that this implies for the possible infringement of other international legal norms and obligations.
Indeed, since 1992, on 31 occasions, the United Nations General Assembly has overwhelmingly approved draft resolutions submitted by Cuba calling for the end of “the economic, commercial and financial embargo imposed by the United States of America against Cuba”. The jurisprudence of the ICJ established in the Advisory Opinion Legality of the Threat or Use of Nuclear Weapons, regarding the normative particularities of UN General Assembly resolutions in relation to customary law, considered:
“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.” (para. 70).
The factors considered by the ICJ to deny the existence of an opinio juris in General Assembly resolutions have been the number of negative votes and abstentions, where the content of these resolutions indicates the absence of specific customary norms and where there is tension between an emerging opinio juris and State practice (See paras. 70-73).
If we applied the ICJ’s reasoning, mutatis mutandis, to the resolutions against the Helms-Burton Act, the “normative value” of these resolutions regarding unilateral economic sanctions could be discerned. This was indicated by Judge ad hoc Momtaz in the case Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America (para. 19-20), when referring to resolutions against the “blockade” of Cuba in his analysis of the 2018 U.S. sanctions against Iran, its nationals, and third-state nationals and companies. The approval of these resolutions against the “bloqueo” since 1992, with overwhelming support, provides evidence of the emergence of an opinio juris or, at the very least, the constitution of a customary norm against sanctioning practices like those established by this type of national law.
In these resolutions, such as the most recent one in 2023, there is no explicit reference to the existence or application of specific customary law norms prohibiting this type of sanction. However, the content of these resolutions clearly expresses the States’ position on the contradiction of these measures with norms of international law, specifically regarding “obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation”. For this reason, States not only “reiterate their call upon all States to refrain from promulgating and applying laws and measures” but also “urge States that have and continue to apply such laws and measures to take the necessary steps to repeal or invalidate them as soon as possible in accordance with their legal regime”. (See here)
In this sense, if this is indeed an emerging opinio juris, it would not be in tension with State practice. The unilateral economic measures or sanctions that could come into conflict due to their prevalence in State and international organisation practice do not share the characteristics of sanctions like those contemplated by the Helms-Burton Act. These coercive economic measures, such as those represented by this law, are precisely rejected by the international community because their scope is singular. As we have already mentioned, and as the resolution highlights, these are economic sanctions whose “extraterritorial effects (…) affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation”. (See here)
The result of the proportion of votes, an element that the International Court takes into account to determine the existence of an opinio juris, is more than revealing: these resolutions were approved overwhelmingly, with the only exceptions being the United States, Israel, and perhaps one or two other states and very few abstentions. In the November 2023 vote, the resolution was approved with 183 votes in favour, 2 against (the United States and Israel), and just one abstention (Ukraine).
The isolation of the United States in implementing such deeply impactful measures against another State suggests that it has not created tension with the emergence of an opinio juris against such “bloqueo” measures. At most, the United States could be considered a persistent objector in this matter -and a highly persistent one, at that.
Interestingly, in the September 2023 EU judgment you quoted, the General Court stated that EU sanctions against Venezuela are not countermeasures under the law of State responsibility. The reason, the Court seemed to argue, was that these sanctions go beyond the mere temporary non-performance of obligations. Besides, as the Court put it, they are designed and deployed "in response to a particular international situation [and not necessarily an international wrongful act], at the discretion of the Union authorities, in order to influence such a situation".
The above reasoning, however, begs one important question: are measures of this sort, aiming to influence a situation in any given country through economic coercion, not contrary to the principle of non-intervention? The General Court eventually suggested that there would be a "common legal interest" in promoting certain values "in the wider world", including the fulfillment of erga omnes obligations, in order to reject the argument that EU sanctions constitute an unlawful extraterritorial interference in the affairs of another State. Ane it did so, clearly, because it saw the need to justify EU sanctions, in view of the structure of the international legal order.
Now, without elaborating on the validity of that thesis (to me, this talk of "common interest" and "erga omnes obligations" seems the language we use to speak of legal standing, for example, to resort to third party countermeasures, which the Court rejected), one conclusion seems appropriate: in the absence of international consensus over the issue, it's not just a customary rule prohibiting unilateral coercive measures that a divided practice has been unable to consolidate; it is also a permissive rule, derogatory of the principle of non-intervention (and of the corrolary prohibition against at least some forms of unilateral coercive measures), that has failed to emerge.
A customary rule against unilateral economic sanctions of the nature of the Helms-Burton Act? Regarding another (potential) vote in the United Nations General Assembly against the “bloqueo”
Written by Harold Bertot TrianaIntroduction
Presumably, in November 2024, within the framework of the General Assembly session, Cuba will once again submit a resolution for a vote emphasising the “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba”. This is an opportune moment to analyse whether the overwhelming support of the international community for this text over decades has had any impact on customary international law regarding unilateral economic sanctions.
International law allows the adoption of economic measures in bilateral relations between States or by international organisations against third States, which can be justified as countermeasures, retorsions, or within the framework of the international obligations of such international organisations (see here and here). It is an undeniable fact that efforts to present the United Nations Security Council as the sole organ of the international community with the authority to adopt or authorise coercive economic measures in the form of “sanctions” have failed. Practice clearly shows that States and international organisations do not regard economic sanctions as a function exclusively entrusted to the Security Council by the United Nations Charter in the process of the communitarisation of international society (see a defence of this position in the Separate Opinion, Partly Concurring and Partly Dissenting, of Judge Robinson, in Certain Iranian Assets (Islamic Republic of Iran v. United States of America), 30 March 2023, Judgment, para. 36.
In the same way, the international community has failed to establish prohibitions on the adoption of these unilateral economic measures. The large number of resolutions from the United Nations General Assembly and the Human Rights Council, which very clearly oppose these unilateral measures, face two realities: the non-binding nature of resolutions from bodies such as the UN General Assembly when rejecting the application of these measures, and the limited consensus within the international community on their adoption, which prevents their provisions from being considered as customary international law norms. This fact was recently recalled by the Grand Chamber of the General Court of the EU in its judgment of 13 September 2023, when Venezuela requested the annulment of Council Decisions and Regulations containing restrictive measures against Venezuela.
“Both the resolutions of the United Nations General Assembly referred to by the Bolivarian Republic of Venezuela and the resolutions of the United Nations Human Rights Council were adopted with a significant number of negative votes or abstentions, in particular on the part of Member States of the European Union. Thus, the resolutions relied on by the Bolivarian Republic of Venezuela cannot be considered to reflect ‘a general practice accepted as law’.”
A possible prohibitive exception to unilateral economic measures such as the Helms-Burton Act?
Despite the reality described above, it is worth considering a possible exception. One might ask whether the position adopted by the international community in the United Nations General Assembly against coercive economic practices, such as the Helms-Burton Act (Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), constitutes an exception to the general rule of a lack of international consensus in forming a customary norm against unilateral coercive measures.
The Helms-Burton Act comprises a broad set of provisions concerning economic restrictions and political purposes, which strengthened the United States’ economic sanctions against the “Castro government”. The comprehensive package of measures was expressly intended “to provide a policy framework for United States support to the Cuban people in response to the formation of a transition government or a democratically elected government in Cuba” and “to protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime”.
A set of reasons can be presented for the illegality of the application of this law under international law. The “intervention” implied by its application and the harmful impact on human rights would be the most relevant elements. Regarding the latter issue, for reasons of space, it would be worth providing further commentary on the possible limits of such measures in the field of human rights. Concerning the violation of the principle of non-intervention, whether applying the test for the existence of “coercion” from the Anti-Coercion Instrument (ACI) (intensity of the measures, the damage caused, their duration over time, etc.) or following the most authoritative doctrine, such as that of Marko Milanovic and his understanding of coercion models, the outcome is unlikely to be different. In my view, at least this “coercion” requirement would be met. It is a law that could be debated as to whether it concerns matters that are not solely within the state’s domestic jurisdiction (i.e., matters over which a state is not permitted to decide freely), but it is clear that it seeks to subordinate “the exercise of its sovereign rights” (see here and here).
However, the potential impact of General Assembly resolutions regarding unilateral economic sanctions, such as those imposed by laws like the Helms-Burton Act, does not extend to this discussion despite highlighting, for instance, its concern for human rights in Cuba. Its impact rests on aspects also emphasized at the time in the Opinion of the Inter-American Juridical Committee in compliance with Resolution AG/Doc.3375/96 of the General Assembly of the Organization of American States, entitled “Freedom of Trade and Investment in the Hemisphere”: the exercise of legislative or judicial jurisdiction over acts carried out abroad by a State, which exceeds all limits in matters of extraterritoriality, with effects on third parties, and with all the negative consequences that this implies for the possible infringement of other international legal norms and obligations.
Indeed, since 1992, on 31 occasions, the United Nations General Assembly has overwhelmingly approved draft resolutions submitted by Cuba calling for the end of “the economic, commercial and financial embargo imposed by the United States of America against Cuba”. The jurisprudence of the ICJ established in the Advisory Opinion Legality of the Threat or Use of Nuclear Weapons, regarding the normative particularities of UN General Assembly resolutions in relation to customary law, considered:
“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.” (para. 70).
The factors considered by the ICJ to deny the existence of an opinio juris in General Assembly resolutions have been the number of negative votes and abstentions, where the content of these resolutions indicates the absence of specific customary norms and where there is tension between an emerging opinio juris and State practice (See paras. 70-73).
If we applied the ICJ’s reasoning, mutatis mutandis, to the resolutions against the Helms-Burton Act, the “normative value” of these resolutions regarding unilateral economic sanctions could be discerned. This was indicated by Judge ad hoc Momtaz in the case Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America (para. 19-20), when referring to resolutions against the “blockade” of Cuba in his analysis of the 2018 U.S. sanctions against Iran, its nationals, and third-state nationals and companies. The approval of these resolutions against the “bloqueo” since 1992, with overwhelming support, provides evidence of the emergence of an opinio juris or, at the very least, the constitution of a customary norm against sanctioning practices like those established by this type of national law.
In these resolutions, such as the most recent one in 2023, there is no explicit reference to the existence or application of specific customary law norms prohibiting this type of sanction. However, the content of these resolutions clearly expresses the States’ position on the contradiction of these measures with norms of international law, specifically regarding “obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation”. For this reason, States not only “reiterate their call upon all States to refrain from promulgating and applying laws and measures” but also “urge States that have and continue to apply such laws and measures to take the necessary steps to repeal or invalidate them as soon as possible in accordance with their legal regime”. (See here)
In this sense, if this is indeed an emerging opinio juris, it would not be in tension with State practice. The unilateral economic measures or sanctions that could come into conflict due to their prevalence in State and international organisation practice do not share the characteristics of sanctions like those contemplated by the Helms-Burton Act. These coercive economic measures, such as those represented by this law, are precisely rejected by the international community because their scope is singular. As we have already mentioned, and as the resolution highlights, these are economic sanctions whose “extraterritorial effects (…) affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation”. (See here)
The result of the proportion of votes, an element that the International Court takes into account to determine the existence of an opinio juris, is more than revealing: these resolutions were approved overwhelmingly, with the only exceptions being the United States, Israel, and perhaps one or two other states and very few abstentions. In the November 2023 vote, the resolution was approved with 183 votes in favour, 2 against (the United States and Israel), and just one abstention (Ukraine).
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Adis Ledon says
October 26, 2024
The vote will take place in October 29, 2024.
Thiago Braz Jardim Oliveira says
October 29, 2024
Thank you for your post, Harold.
Interestingly, in the September 2023 EU judgment you quoted, the General Court stated that EU sanctions against Venezuela are not countermeasures under the law of State responsibility. The reason, the Court seemed to argue, was that these sanctions go beyond the mere temporary non-performance of obligations. Besides, as the Court put it, they are designed and deployed "in response to a particular international situation [and not necessarily an international wrongful act], at the discretion of the Union authorities, in order to influence such a situation".
The above reasoning, however, begs one important question: are measures of this sort, aiming to influence a situation in any given country through economic coercion, not contrary to the principle of non-intervention? The General Court eventually suggested that there would be a "common legal interest" in promoting certain values "in the wider world", including the fulfillment of erga omnes obligations, in order to reject the argument that EU sanctions constitute an unlawful extraterritorial interference in the affairs of another State. Ane it did so, clearly, because it saw the need to justify EU sanctions, in view of the structure of the international legal order.
Now, without elaborating on the validity of that thesis (to me, this talk of "common interest" and "erga omnes obligations" seems the language we use to speak of legal standing, for example, to resort to third party countermeasures, which the Court rejected), one conclusion seems appropriate: in the absence of international consensus over the issue, it's not just a customary rule prohibiting unilateral coercive measures that a divided practice has been unable to consolidate; it is also a permissive rule, derogatory of the principle of non-intervention (and of the corrolary prohibition against at least some forms of unilateral coercive measures), that has failed to emerge.
Best regards,
Thiago