The blockade remains intact
News from Cuba | Tuesday, 5 May 2015
By Sergio Alejandro Gómez for Granma International
Some 53 years after President John F. Kennedy signed Decree no.3447, on February 3, 1962, formally establishing the U.S. blockade of Cuba, Granma spoke with Professor Rodolfo Dávalos about this hostile policy which remains intact.
"THE majority of Cubans support Castro," was the opinion expressed in 1960 by the U.S. State Department, the National Security Council and CIA, just one year after the triumph of the Cuban Revolution. Philip W. Bonsal, the last United
States ambassador in Cuba reached the same conclusion by simply looking out the window of his Havana office.
In a secret memorandum dated April 6, 1960, Lester D. Mallory, deputy assistant Secretary of State for Inter-American Affairs, expressed the aforementioned opinion and affirmed that the only way to undercut support for the Revolution's leaders was to create economic chaos, saying, "The only foreseeable means of alienating internal support is through disenchantment and disaffection based on economic dissatisfaction and hardship...Every possible means should be undertaken promptly to weaken the economic life of Cuba."
Mallory proposed "a line of action which...makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and overthrow of government."
For more than 50 years, over the course of 11 U.S. administrations, the economic, commercial, financial blockade of Cuba has failed in its objective. Nevertheless, the
economic damage caused has reached more than a trillion dollars, severely impacting the daily lives of 11 million Cubans. Seven of every 10 Cubans have never known a different reality.
U.S. President Barack Obama recently called on Congress to initiate a discussion to end the blockade, as part of the policy changes he announced this past December 17.
Shortly thereafter, Cuban President Raúl Castro made clear at the Community of Latin American and Caribbean States Summit that, while the two countries were moving toward the reestablishment of diplomatic relations, the normalization of ties would be impossible as long as the blockade remained in effect.
To understand better how the blockade emerged, and how it can be ended, Granma spoke with Rodolfo Dávalos, a professor at the University of Havana Law School, and president of Cuba's International Commerce Arbitration Court.
What are the essential components of the U.S. blockade of Cuba?
It is a complex tangle of distinct, pseudo-legal norms at different levels, which range from simple proclamations to others of greater scope, such as government regulations and laws.
There are at least 12 legal stipulations which comprise the blockade's regulatory framework.
Some of these have already been left without effect, or are not currently applicable, such as proclamation no. 3355 of 1960 which reduced the sugar quota assigned to Cuba for the U.S. market that year and the following one.
The foreign aid law of September, 1961, was the first legislation which included appendices specifically designed in opposition to Cuba. Interestingly, this law led to the creation of the U.S. Agency for International Development (USAID), which eventually became an instrument of subversion in our country and many nations around the world, which did not respond to U.S. interests.
But the Trading with the Enemy Act of February 1962, decree no. 3447, established what they call the "trade embargo" of Cuba, in practice a blockade. From a legal point of view, it establishes the official description of our country as an enemy of the United States.
This last decree authorized the President to use the legal framework for trade during emergencies or times of war. Thus, the Export Control Act of 1949 was applied to Cuba. Promulgated at the height of the Cold War, this legislation defined the peculiar regimen of U.S. intervention in inter-national commerce, and in the foreign trade of third countries. Its stipulations were expanded after the Export
Administration Act (EAA) of 1979.
Others came later, like the Torricelli of 1992, which, among other aspects, prohibited our trading with subsidiaries of U.S. companies based in third countries. Likewise, the Helms-Burton in 1996 broadened, in an unprecedented manner, the extraterritorial dimension of the blockade, and fully codified the 'regime change' concept and the possibility of direct intervention to accomplish such a change.
What is the objective?
The blockade seeks to isolate the Cuban state inter-nationally, to economically strangle the government and people, to obstruct the country's foreign trade, to discourage or prevent foreign investment, all with the objective of obliging the
people to give up their efforts to build a just society, a free, independent, sovereign country. That is, it seeks the end of the Revolution.
How can a policy of this nature be described from the legal, judicial point of view?
A student asked a similar question some years ago, which motivated me to write my book, ¿Embargo o bloqueo? La instrumentación de un crimen contra Cuba. (Embargo or Blockade? The instrument of a crime against Cuba).
I include in this text the response I gave to that question about how an act legally established by a sovereign state can be illegal, "To legally describe the blockade, it must be said that it is a means to an end, it is an act of economic war, which has as its objective the surrender of the Cuban people as a result of hunger, the strangling of the Revolution. Given its objectives, purposes and consequences, it is undoubtedly an illegal international act. Its legal format implies a series of acts which go beyond the authority of a state, which is part of the inter-national community. The blockade is, in summary, an act of war dressed up as law. Legally speaking, a crime. Because a crime is that which is unjust, illegal and inhuman.
Its implementation, moreover, is extended beyond the borders of the U.S...
It is important to clarify this point. There are certain types of laws which are effective extraterritorially. But this does not mean that a state has the authority to establish laws to govern another. Given its sovereignty, in the end, the state itself is the only authority which can determine the laws which hold sway within its territory.
The issue is not that complicated. States can establish laws for their own territory and also for their citizens. But no state is above another.
Why is the difference between embargo and blockade so important?
It is not a semantic discussion, it's conceptual. Embargo is a legal term commonly used in the word of juris-prudence, while blockade implies an act of war, which is illegal.
International law, specifically the United Nations Charter and international law in general, establishes the obligation of states to use peaceful means to resolve international disagreements, and categorically prohibits the use of force - war, aggression or any other coercive means, within which the blockade is included.
An embargo, on the other hand, is the retention or confiscation of goods by judicial order. This may be preventative, to protect goods which are the object of litigation or claims; or it may be executive, for the adjudication, or enforced sale of goods to cover a legally recognized debt.
I once used an example to explain this to a Cuban-American attorney at an international event, who insisted on calling the blockade an embargo. I remembered that he was a basketball fan, so I put a book on the table, stood in front of it, and said, "Try to put it on the desk behind me."Since he wasn't as tall as I am, he couldn't do it. Then I asked him what this action was called in basketball. He answered, "Blocking." So this is exactly what the U.S. is doing to Cuba, not letting us make a basket.
What did the Helms-Burton law of 1996 change?
This law granted the status of legislation to the entire regulatory framework which had been developed to create the blockade of Cuba.
The Helms-Burton was extraterritorial from its very beginning, in the clear sense of excessive, arbitrary - and therefore illegal - extraterritoriality. Introduced in its third article was the concept of "trafficking" for those who do business with properties nationalized by the Revolution, and even for those who simply participate in commercial activity which uses confiscated property. You don't have to be a legal expert to know that no state has this authority.
In fact, the law generated so much international condemnation that some countries passed antidote legislation to vacate its application.
Additionally the law limited the prerogatives which the President had historically to authorize commercial activities with the enemy, with the objective of impeding or obstructing the easing, modification or suppression of the measures included in its contents.
This codification of the blockade establishes limitations on the executive right to direct foreign policy and infringes on U.S. legal norms, in addition to violating international law, although it does leave open the possibility of implementing some articles or not.
In this situation, what is within the President's authority to change policy toward Cuba?
Despite the Helms-Burton, the President still has many prerogatives, enough to dismantle many of the obstacles which hamper trade and relations with Cuba.
As was demonstrated with the measures announced this past December 17, Obama can reestablish diplomatic relations, and elevate the status of the current Interest Section to that of embassy. He can substantially expand travel by U.S. citizens and permanent residents to this country, through a broad interpretation of the 12 categories which are established by law. Nevertheless, he can not allow tourist travel to Cuba. Yes, he can eliminate or increase the expenses allowed for visits, facilitate the use of credit and debit cards and travelers checks, or expand the list of airports which can operate flights to Cuba, among many other things.
In summary, the President can not lift the blockade, but he can do a great deal to improve relations between the two countries.
In what condition is the blockade after the December 17 announcements?
The blockade is still intact.
Nevertheless, there is a moral and ethical aspect which emerges from what has happened. The blockade is an act of war, and you can not commit this type of aggression against a country with which you have diplomatic relations.
Moreover, establishing diplomatic ties implies the adoption of behavior which is in accordance with inter-national law, and reciprocal respect for the norms and principles which govern relations between states.
Sovereignty, territorial integrity and the right to choose one's own political and social system must be respected.
In my personal opinion, these steps indicate that the blockade must end, because it has no moral justification. This discussion must take place within Congress and the entire legal framework which sustains it must be dismantled.
Thinking solely about respect for the sovereignty of states, and respect for international law, the blockade must come down.
NOTE: This English translation appeared in the print edition of GRANMA INTERNATIONAL on February 20, 2015. Thanks kindly to GI for sharing this text, not previously online.
