While scholars and journalists have written exhaustively about the property claims against Cuba certified by the U.S. Foreign Claims Settlement Commission, little attention has been paid to Cuba’s public international law claim against the United States for embargo losses caused by its unilateral sanctions. As a result of the normalization process between the two countries that began in 2014, resolving both the property claims and the embargo claim has become a diplomatic priority. While conceding the doctrinal limitations under existing authorities, this paper critically evaluates Cuba’s claim and presents strong legal support for it.
Public international law provides no exact precedent for damages caused by unilateral economic sanctions, but the distinctive circumstances in the case of Cuba may justify a new precedent. In particular, three aspects of these sanctions weigh in favor of liability on the part of the United States: (i) its Cuba sanctions do not comply with public international norms about economic sanctions; (ii) these sanctions have consistently demonstrated an intent to manipulate and to harm Cuba’s civilian population; and (iii) these sanctions have handicapped Cuba’s sovereign prerogative to adapt to a changed global trading system, one built on relational value chains. The paper concludes by arguing for a consolidated claims settlement process that nets Cuba’s embargo claim against the certified property claims of the United States. Doing so would provide the liquidity needed to clear away some of the political risk that currently cripples the Cuban economy.
Jose Gabilondo, Economic Coercion and the Limits of Sovereignty: Cuba's Embargo Claims against the United States, 20 Harv. Latinx L. Rev. 51, 100 (2017)