The Cuban Democracy Act of 1992 ("the CDA") violates the Charter of the Organization of American States ("the OAS Charter" or "the Charter") by imposing a ban in fact (though not in law) on the sale (and, under some circumstances, the donation) of food, medicines, and medically related materials. That the CDA imposes such a de facto ban was the conclusion of the American Association for World Health’s (AAWH) March 1997 report, Denial of Food and Medicine: The Impact of the U.S. Embargo on Health & Nutrition in Cuba. The AAWH report meticulously outlines how the CDA’s requirements and certain federal regulations’ licensing standards are so onerous as to deny Cuba access to potentially life-saving medical materials that are either unique or of such quality as to make them clearly safer and more effective than alternatives from other sources.
As a member of the team that produced the AAWH report, I researched and wrote about, among other things, the international law aspects of the CDA. While a comprehensive assessment of the CDA’s validity within the context of the OAS Charter was beyond the report’s scope, it is important to understand how the CDA fares in light of the Charter. As colleagues and I argued in a petition submitted to the Inter-American Commission on Human Rights, the Charter’s text and history reveal that nations within the Americas bear hemispheric, extraterritorial human rights obligations. The Cuban Democracy Act is in conflict with the spirit and text of the OAS Charter by violating these regional duties.
Extraterritoriality of Human Rights Obligations in the Americas. The OAS Charter’s language and history imply an intent to create a regional, extraterritorial human rights system for the Americas. Drafted in the spirit "of American solidarity and good neighborliness," the OAS Charter aspires to forge a hemispheric, American "order of peace and justice" that promotes solidarity and collaboration and that defends American states’ "sovereignty, … territorial integrity, … and independence." Understood more broadly, the Charter establishes an inter-American, hemispheric matrix of reciprocal human rights obligations protecting people from rights violations by their own or another American government.
It should hardly be news that the Americas intentionally established such a hemispheric web of reciprocal rights and duties for international protection of human rights. In fact, the years of international discussion culminating in the Charter show that human rights and regional responsibility have always been central to the inter-American sensibility. The Charter’s history reveals that an intent to create a regional rights system has "been manifest since the very origin of the inter-American system. The Treaty of Perpetual Union, League and Confederation … [a Charter precursor] … recognized the principle of juridical equality of nationals of a state and foreigners."
While this speaks directly to equal treatment for foreigners and citizens living in the same country, it seems clear that the Charter’s evolution involved the application of the same protection to peoples living in different (i.e., their respective) countries. Deliberations leading to the OAS Charter’s creation suggest the creators envisioned extraterritorial human rights obligations that would hold nations accountable for those of their actions that violated the human rights of member states’ citizens. Under this interpretation, a member state would therefore violate the spirit of the Charter and the inter-American system’s codified norms if that state’s law and/or administrative actions were in conflict with "the exercise or enjoyment of rights protected by the [inter-American] system."
Bound by the OAS Charter. A full-fledged OAS member state, the United States is bound to the spirit and word of the Charter. Obligated to adhere to Charter standards "in good faith," the United States "may not invoke the provisions of its internal law as justification for its failure to perform a treaty."
Equally important, U.S. obligations under the Charter apply to Cuba. Arguments that Cuba’s allegedly nebulous status with the OAS obviates the United States’ international law duties toward Cuba under the Charter are simply invalid. Though the OAS excluded Cuba from the organization in 1962 and directed member states to sever diplomatic and commercial ties to the island, the OAS withdrew these sanctions and left "to each member state the right to determine its diplomatic and trade relations with Cuba." Most importantly, the OAS, through the Inter-American Commission on Human Rights, recognizes the "Cuban State [rather than the Government of Cuba] … [as] … a party to … the Charter of the Organization of American States." Asserting that "Government and State are two juridical and institutionally differentiable concepts," the Commission has unequivocally stated that "[i]t was the Cuban Government — not the State — that was excluded from the inter-American system" in 1962 and that such exclusion "was not [intended] to leave the Cuban people unprotected." Thus the United States’ human rights obligations within the inter-American system apply to Cuba as they do to other OAS member states.
Violating OAS Charter Provisions. By denying Cuba access to critical medical supplies, the Cuban Democracy Act directly endangers Cuban lives, denies Cubans’ right to protection of life, and cripples the Cuban government’s ability to meet the international human rights obligations it owes its people. The Act therefore violates the OAS Charter’s spirit and purpose. It also contravenes Vienna Convention Article 27, for while the CDA may be valid domestic law, the United States cannot invoke domestic law sovereignty where that law fails to meet OAS Charter obligations.
The Cuban Democracy Act violates the OAS Charter’s prohibition on the use of "coercive measures … to force the sovereign will of another State and obtain from it advantages of any kind." Yet the CDA arguably violates other pertinent Charter provisions as well. These provisions are worded broadly enough to suggest that Charter obligations apply when one state’s acts adversely affect another state and/or its people.
OAS Charter Article 10, for example, states that "[e]very American State has the duty to respect the rights enjoyed by every other State in accordance with international law." Article 11 asserts that "[t]he fundamental rights of States may not be impaired in any manner whatsoever." Finally, Article 14 claims that "[t]he right of each State to protect itself and to live its own life does not authorize it to commit unjust acts against another State." Article 16 proclaims each state’s "right to develop its cultural, political, and economic life freely and naturally."
The Cuban Democracy Act violates these provisions individually and as they interrelate. The Act impairs (Article 11) — indeed, denies respect for (Article 10) — Cuban citizens’ peremptory rights to life and health by denying them critical pharmaceuticals and equipment solely available from the United States. The CDA also violates Cuba’s Article 16 "right to develop its … economic life freely and naturally" by closing off Cuba’s access to U.S. and U.S. subsidiaries’ products, alternatives to which either do not exist or are prohibitively expensive to procure. Foodstuffs, medicines, and medically related materials and equipment are some of the commodities denied Cuba. Without them, and without items from countries fearful of damaging their own commercial ties with the United States, Cuba can hardly enjoy "free and natural" economic development. Nor can it realize its Article 14 right "to live its own life" unimpaired "in any manner whatsoever." Under these conditions, Cuba cannot meet its duty to guarantee its citizens’ jus cogens rights to life and health. In its impact, therefore, the CDA represents an "unjust act against another State" in direct violation of Article 14.
Article 18 denies any state "the right to intervene, directly or indirectly, … in the internal or external affairs" of another state. This prohibition applies to any form of interference against another state. Article 19 prohibits "the use of coercive measures of an economic or political character … to force" another state’s "sovereign will." Finally, Article 20 confirms that "[t]he territory of a State is inviolable" and that such territory cannot be the object of direct or indirect force.
The CDA provisions create both direct and indirect interventions in Cuba’s internal affairs. The law as a whole is an economically coercive measure designed to force Cuba to "move toward democratization and greater respect for human rights." No one doubts the Castro regime’s historic brutality and denial of human rights. But legislatively endangering innocent lives represents a violative force that hardly jibes with the CDA’s stated goal of promoting "a resumption of economic growth in Cuba through … support for the Cuban people." By measuring the CDA’s validity against the OAS Charter’s codified norms, it is clear that affirmatively neglecting the human rights of another state’s people seems a hypocritical way to "vigorously … oppose the human rights violations of the Castro regime."
Stephen Kimmerling is an attorney involved in U.S.-Cuban affairs.
1. Cuban Democracy Act of 1992, Title XVII, Pub. L. No. 102-484,