Legal aspects of the Cuban Missile Crisis – Monroe Evening News

James W. Pfister| The Daily Telegram

Fifty-nine years ago on Oct. 22, 1962, President John F. Kennedy introduced the American public and the world to the Cuban Missile Crisis in his famous Monday-evening speech. The Soviet Union was placing short-range (1,500-2,000miles) offensive nuclear missiles on its ally Cubas territory. The Kennedy team had worked for days in secret to come up with a strategy to get those weapons out of Cuba, including an invasion of Cuba. Kennedy settled on the legal option: a blockade (called a quarantine) of Cuba on the high seas to stop Soviet ships in route to Cuba. He created a chicken game with the Soviet leader, Nikita Khrushchev.

My thesis is that, although this was a most dangerous nuclear confrontation, law mattered; morality mattered. Kennedy chose the option that could be supported by a sound legal argument and would not necessarily kill civilians.

The action of putting offensive nuclear weapons on an allys territory with consent was perfectly legal. Cuba was an independent, sovereign nation. There was freedom of the seas. No legal rights of the United States were violated. We were doing the same thing with our short-range weapons in Turkey near the Soviet border.

We, however, were not as legally innocent with that blockade. The blockade in times of peace on the high seas was a violation of international law, everything else being equal. But, they were not equal: there was the United Nations Charter. The UN Charter is like the constitution of international law; it preempts any contrary international law. Three Charter articles were relevant to the American legal argument: Articles 51, 52and 53.

Article 51 deals with the inherent right of self-defense. It reads in relevant part: Nothing … shall impair the inherent right of individual or collective self-defense if an armed attack occurs…. Although the American motivation was defensive, in law we were not being attacked, nor was an attack imminent. The lawyers debated this, but Kennedy went with those who respected the legal text which required an armed attack; they believed that to stretch self-defense here would make it appear we did not take the legal argument seriously.

Kennedy settled on Article 52. It provides for regional organizations to maintain peace. The relevant organization here was the Organization of American States (the OAS). Article 52 states that a regional organization can deal with matters relating to, … the maintenance of international peace and security…. In addition to action to defend against attack, the organization was empowered to act, … by any other fact or situation that might endanger the peace of America… (Article 28 of the OAS Charter). Armed attack there wasnt (Article 51); a threat to the peace, there was. Whereas, it was against international law for the United States to put out a blockade by itself, it was within the authority of the OAS to put one out, or to authorize the American one, under Article 52 of the UN Charter, Article 28 of the OAS Charter. This was the legal authorization the United States needed.

Note the willingness of Kennedy to take a risk to get legal authorization. There would be a vote in the OAS; what if we had lost that vote? Our position would have been untenable. Not all the Latin American states were warm regarding the great and meddling power to the north. But when the chips were down, they voted unanimously to support the United States.

Article 53 offered the Achilles heel of the American legal argument: any enforcement action by a regional organization, which this was, was to be authorized by the Security Council, where the Soviets had a veto. We said the Security Council, being aware of the blockade, did not say no (we would have vetoed that disapproval). We took silence as a tacit approval. (Abram Chayes, "The Cuban Missile Crisis," 1974, pages 61-62).

Law, during a nuclear confrontation? Yes, when the United States is involved.

JamesW.Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

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Legal aspects of the Cuban Missile Crisis - Monroe Evening News