Thinking About the Unthinkable in Ukraine
What Happens If Putin Goes Nuclear?
The Soviet missiles in Cuba were a threat to the security of the United States and the Western Hemisphere. As such they endangered the peace of the world. The action undertaken against this threat carried its own dangers. But as President Kennedy said on October 22, "the greatest danger of all would be to do nothing."
The course on which he then embarked was successful in securing the removal of offensive weapons from Cuba. This success was due, in the first instance, to the ability and will of this country to enforce the quarantine and to the mobilization of allies and others throughout the world in our support.
The confrontation was not in the courtroom and, in a world destructible by man, a legal position was obviously not the sole ingredient of effective action. We were armed, necessarily, with something more substantial than a lawyer's brief. But though it would not have been enough merely to have the law on our side, it is not irrelevant which side the law was on. The effective deployment of force, the appeal for world support, to say nothing of the ultimate judgment of history, all depend in significant degree on the reality and coherence of the case in law for our action. It is worthwhile, I think, to set out that legal case and to examine some of its implications.
The blunt fact of the quarantine is that it involved the use of naval force to interfere with shipping on the high seas, though, to be sure, the carriage of offensive weapons, against which it was directed, was something other than ordinary maritime commerce. Historically, the United States, as a great maritime power, has resisted interference with the freedom of the seas. In 1793, when France and England, struggling for the mastery of Europe, seized and blockaded United States shipping, Jefferson wrote:
. . . those who choose to live in peace retain their natural right ... to carry the produce of their industry, for exchange, to all nations, belligerent or neutral, as usual; to go and come freely, without injury or molestation; and, in short, that the war among others shall be, for them, as if it did not exist.
A few years later, British blockades, in defiance of our bitter protests, were one of the causes of the War of 1812, although Britain went far beyond mere blockading. Her warships often stopped American vessels on the high seas, declared without proof that certain crewmen were British deserters, and carried them off in irons. During the undeclared war against France, Joseph Story, then a Harvard student but later to become a Supreme Court Justice and one of our great admiralty lawyers, wrote with perhaps more ardor than poetry:
Shall Gallia's clan our coast invade, With hellish outrage scourge the main, Insult our nation's neutral trade, And we not dare our rights maintain?
Less hoary examples could be cited.
When our own wartime necessities were involved, however, we took a different view of the matter. In the Civil War, over strident British objections, President Lincoln declared a blockade of 3,000 miles of southern coast line and sought to prevent any contraband from reaching Confederate hands. On the outbreak of World War II, the same 21 American nations that now make up the Organization of American States, meeting in the first Pan American ministerial conference, identified a zone in the high seas ranging from 300 to 1,200 miles wide which they said was of "primary concern and direct utility in their relations." They declared their right to patrol the zone and keep it free from "the commission of any hostile act by any non-American belligerent nation."
The thrust and counter-thrust of nineteenth-century practice was codified with somewhat illusory precision in the Declarations of Paris in 1856 and London in 1909, dealing with the law of blockade and contraband. As a result, the legal textbooks have a satisfyingly categorical ring. They tell us that a blockade must be declared through competent authority, must be limited to enemy coasts and ports, and must be impartially applied. Most important, the blockade must be effective: the blockading country must have and use the power to enforce it. Similarly, traditional rules of contraband require a proclamation, after which neutral ships can be prevented from aiding the enemy by carrying "objectionable" goods, a category which, if not overly precise, surely includes weapons.
The rules were designed to minimize disruption of neutral commerce, primarily by limiting the scope of sanctioned interference and by notifying ships and sailors so that they could stay out of harm's way. Mutatis mutandis these aspects of the classical rules were complied with, to like purpose and effect, in the Cuban quarantine.
But there was a further over-riding limitation in the traditional rules: they were part of the Law of War which says that only a belligerent in wartime can invoke the right to blockade or search for contraband. Unless nations were at war, there could be no justification for any interference at all with ordinary maritime commerce. Thus some have maintained that everything done in the October crisis would have been "legal" if only the United States had declared war on Cuba. This may be attractive as a syllogism, but it doesn't have very much to do with law.
The rules of blockade and contraband evolved, like most law, out of the interaction between moral precept, experience and changing practical necessity. And they reflect rather accurately the shape of the international system-as well as the weapons technology-that prevailed in the last century. Relations between nations were episodic and largely bilateral When force was applied, it was-at least in theory-a bilateral affair, or at most something between small and temporary groupings of nations on each side. The age of total war was only beginning and there was no general stricture in international law against the use of force as an instrument of state policy.
Resort to force was common enough, however, and was always dangerous enough to provoke rudimentary efforts at regulation. Thus evolved the Law of War, a separate legal régime establishing-probably with a good deal more precision and coherence in retrospect than at the time-the rights and obligations of belligerents and neutrals. The declaration of war invoked this special régime. Its legal signification was that the declaring state was prepared to accept its obligations and claim its rights under the Law of War. Thereupon, application of force within those confines was legitimate.
International law addresses different problems today and there is different legal machinery to deal with them. The over-riding object of international law is not to regulate the conduct of war, but to keep and defend the peace. It is no longer possible for any nation to treat war, in Jefferson's words, "as if it did not exist." If non-alignment continues to be a goal for some countries, non-involvement has become a luxury beyond price. A threat to the peace of any nation is a threat to the peace of all nations, and maintenance of peace has therefore become a collective responsibility. The first quarantine speech, President Franklin Roosevelt's call to "protect the health of the community against the spread of the disease," marked an early recognition of this collective responsibility.
The enduring monument of World War II is the United Nations Charter. It records the judgment of all nations that international law can no longer regard the use of force with benevolent neutrality. In Article 2 of the Charter, Members pledge that they will
. . . refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
States living under the régime of that Charter can no longer find justification for the use of force in their mere unilateral declaration.
Declarations against war had been known before, but the Charter records also the judgment that, if these declarations are to be more than empty promises, collective machinery and processes of enforcement are needed. The United Nations Organization was the primary instrument designed for preserving the peace. Regional organizations, like the O.A.S., arose to perform the same functions within the area of their competence. These organizations are clothed by their charters with the authority to act collectively against aggression and threats to the peace. Through these collective agencies, world-wide or more restricted in scope, we have hoped to give reality to the pledge to maintain the peace.
The Soviet threat in Cuba was made and answered in the context of this international system. The United States response must be judged and justified within that same context. It is wrong, therefore, to view the Cuban crisis as though it were a nineteenth-century contest between two nations, the United States and Cuba, to be regulated by the traditional rules of blockade and contraband. And it is wrong to view the quarantine as a unilateral use of force by the United States in the course of such a contest.
The Charter obligation to refrain from the use of force is not absolute. Article 51, of course, affirms that nothing in the Charter impairs "the inherent right of individual or collective self-defense." The quarantine was defensive in character and was directed against a threat to the peace. But neither the President in his speech nor the O.A.S. in its resolution invoked Article 51.
Obviously, the United Nations itself can sanction the use of force to deal with a threat to the peace. So it did in Korea and in the Congo. But no United Nations organ ordered the quarantine of Cuba.
The quarantine action falls within a third category: action by regional organizations to preserve the peace. The Charter assigns an important role to regional organizations in carrying out the purposes of the U.N. Article 52(1) prescribes the use of "regional arrangements or agencies for dealing with such matters relating to the maintenance of national peace and security as are appropriate for regional action. . . ." Regional organizations are referred to throughout the Charter, and all of Chapter VIII is devoted to their peace-keeping functions. These provisions were written into the Charter with the Inter-American system specifically in mind. Alberto Lleras Camargo, later to be President of Colombia, was chief protagonist in early 1945 of the Act of Chapultepec, which foreshadowed the Rio Treaty, and was head of the committee at San Francisco which dealt with regional organizations a few months later.
The Charter reflects the judgment of the world community that collective action is to be preferred to the unrestricted use of force by individual nations. Why? First, members of an organization, in signing its charter, have assented to its powers and procedures. Second, decisions are made by political processes involving checks and balances and giving assurance that the outcome will reflect considered judgment and broad consensus. These principles can be seen in operation in the Inter-American system. The assent of the parties to the Rio Treaty is real and significant. Though the present government of Cuba is now and has been for some time the object of sanctions by the O.A.S., and has been suspended from participation in its agencies, Cuba as a state has remained a party to the treaties and a member of the Inter-American system, as, in a like case, did the Dominican Republic. The political processes in the Organization of American States are also real. It is not a rubber stamp, despite the disproportion of power between the United States and its neighbors to the south. Not until the danger was clear and present was the necessary majority mustered for the use of force. But when that time came, the vote was unanimous.
The quarantine action was authorized under the Rio Treaty of 1947, whose primary purpose was to organize law-abiding states for collective action against threats to the peace. This Treaty, together with related agreements, forms the legal framework of the Inter-American system.
The Treaty provides for collective action not only in the case of armed attack but also "if the inviolability or the integrity of the territory or the sovereignty or political independence of any American State should be affected . . . by any . . . fact or situation that might endanger the peace of America. . . ." In such cases, a special body, the Organ of Consultation, is to "meet immediately in order to agree on the measures . . . which must be taken for the common defense and for the maintenance of the peace and security of the Continent." The Organ of Consultation acts only by a two-thirds vote. The Treaty is explicit as to the measures which may be taken "for the maintenance of the peace and security of the Continent." The "use of armed force" is specifically authorized, though "no State shall be required to use armed force without its consent."
On October 23, the Organ of Consultation met, in accordance with the Treaty procedures, and considered the evidence of the secret introduction of Soviet strategic nuclear missiles into Cuba. It found that a situation existed which endangered the peace of America. It recommended that Member States "take all measures, individually and collectively, including the use of armed force, which they may deem necessary to ensure that the Government of Cuba cannot continue to receive from the Sino-Soviet powers military material and related supplies. . . ." The quarantine was imposed in accordance with this recommendation. Indeed, the operative language of the O.A.S. resolution is recited in the President's proclamation, "Interdicting the Carriage of Offensive Weapons to Cuba."
Some have asked whether we should not first have gone to the United Nations Security Council, before taking other action to meet the Soviet threat in Cuba. Perhaps in the original conception at San Francisco it was intended that the Security Council would be the agency for dealing with situations of this kind unless it chose to delegate its responsibility. This much may be implicit in Article 53, which states: "No enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." The drafters of the Charter demonstrated their wisdom, however, by making Security Council responsibility for dealing with threats to the peace "primary" and not "exclusive." Events since 1945 have demonstrated that the Council, like our own electoral college, was not a wholly viable institution. The veto has largely disabled it from fulfilling its intended role in keeping the peace.
This paralysis of the Security Council has led to a reliance on alternative peace-keeping institutions. In the United Nations itself, the General Assembly and the Secretary-General have stepped into the gap. Less dramatically, so has the O.A.S., pursuant to the provisions of Chapter VIII of the Charter on "Regional Arrangements."
A technical part of this evolution, if a quiet one, has been the construction of Article 53 so as to limit its scope. Security Council discussion of sanctions imposed by the O.A.S. against the Dominican Republic and Cuba, as well as the opinion of the International Court of Justice in the United Nations Assessment Case, have treated "enforcement action" as a rigorously narrow category. Perhaps more important, the debates in the Security Council in the case of the Dominican Republic revealed a widespread readiness to conclude that the requirement of "authorization" does not import prior approval, but would be satisfied by subsequent action of the Council, or even by a mere "taking note" of the acts of the regional organization. In this context, it is important that the Security Council met in emergency session before the quarantine of Cuba went into effect. The Soviet Union introduced a resolution of disapproval, but by general consent it was not brought to a vote.
This narrowing process of interpretation may be resisted by those who seek the comforting certainty of "plain meaning" in words-forgetting that they are, in Holmes' phrase, the skin of living thought. But surely it is no more surprising to say that failure of the Security Council to disapprove regional action amounts to authorization within the meaning of Article 53 than it was to say that the abstention and even the absence of a permanent member of the Security Council met the requirement of Article 27(3) for "the concurring votes of the permanent members . . . ."
This interpretation does no violence to the notion of the United Nations as the paramount organization. Regional organizations continue subordinate to the United Nations by the terms of the Charter, and, in the case of the O.A.S., by the terms of the relevant Inter-American treaties themselves. Like an individual state, the O.A.S. can be called to account for its action in an appropriate agency of the more encompassing organization. In recognition of this relationship, the President ordered that the Cuban case be put immediately before the Security Council. The United Nations, through the Council and the Secretary-General, became actively involved in the effort to develop a permanent solution to the threat to the peace represented by the Soviet nuclear capability in Cuba.
Since World War II, each of the actions to keep the peace-in Korea, in the Middle East, in Lebanon, in the Congo and now in Cuba-has taken a different operational form. But each of them reflects our conviction that a breach of the peace involves us all and that we must meet it together, through institutions of collective security established for that purpose.
The quarantine, seen in this framework, is a significant addition to the developing body of postwar experience with collective responsibility and collective action to preserve the peace.