Pacific blockade of Cuba by USA in 1962 and Role of Security Council

5.5 International Law and Institutions

(Project Rough Draft)

Submitted by
Muskan Goyal
UGJ20-22
BA.A.LL.B. (Hons. in Adjudication and Justicing)

SEMESTER – V
ACADEMIC YEAR: 2022-2023

Submitted to
Dr. Shilpa Jain, Associate Professor of Law
Prof. Abhirup Das, Assistant Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

Background
With President John F. Kennedy's dramatic broadcast announcing "a strict quarantine on all
offensive military equipment under shipment to Cuba" to force the removal from the island of
recently discovered Soviet medium- and intermediate-range nuclear missiles, what became
known as the Cuban missile crisis officially began that evening on October 22, 1962 1. Ships
heading towards Cuba across a 500-nautical-mile radius would be stopped and searched by the
U.S. Navy.
Despite Soviet leader Nikita Khrushchev's agreement to remove the missiles by October 28 due
to disputes about lasted until November 202. However, from the American government's
standpoint, one drawback of the embargo was that it would spark a legal dispute, which would
then erode support for American policies. Therefore, Washington worked to garner "global
support" and "the ultimate judgement of history" by formulating and advocating “a legal case for
the blockade in addition to providing political and security arguments, in the words of State
Department legal adviser Abram Chayes3. In an effort to establish precedent” for legislation and
to win political support, it was claimed that the "quarantine" wasn't a regular belligerent
blockade and so didn't have the same effects as a declaration of war. However, this as well as the
dependence “on the Organization of the American States (OAS) rather than the United Nations
(UN) to authorise the embargo proved difficult for some observers to accept.”
Although evidence from British archives reveals that the legal position still important because of
the necessity to sustain domestic backing for supporting the United States, allies backed
American policies more out of political self-interest than out of legal reasons. While the Soviet
Union's decision to remove the missiles from Cuba was unquestionably a victory for the United
States, a NATO diplomat observed that "the legal basis" of the blockade had become greatly
challenged. This suggests that the legal campaign had little effectiveness; in fact, several

1
“Caldwell, D. (1978). A Research Note on the Quarantine of Cuba October 1962. International Studies Quarterly,
22(4), 625–633. https://doi.org/10.2307/2600169
2
Christol, C. Q., & Davis, C. R. (1963). Maritime Quarantine: The Naval Interdiction of Offensive Weapons and
Associated Materiel to Cuba, 1962. The American Journal of International Law, 57(3), 525–545.
https://doi.org/10.2307/2196078
3
McDonough, J. A. (1967). CRISIS DIPLOMACY CUBA - 1962. Naval War College Review, 20(1), 3–24.”
American authorities questioned whether the embargo was legal 4. The majority of American
jurists who voiced their opinions within the following year or two believed that their government
had behaved within the law, but in the long run, opinions on the legality of the embargo of Cuba
have been divided.
International law experts have examined the legality of the blockade and the extent to which
American and Soviet behaviour during the missile crisis was impacted by legal considerations.
The legal aspect of the conflict has, however, often been overlooked by historians, probably due
to apprehension over the perceived complexity of international law and the pervasive realist idea
that international law doesn't matter much when important national interests are at play5.
Aim
To draw research on declassified documents – some rarely used before – from American and
British archives, alongside the analyses of jurists and historians.
Research Objectives-
 “To explore the American government’s making and presentation of the legal case for the
blockade, and the British, Canadian and Australian governments response to it.
 To provides a fresh angle on the legality of the blockade and on how the U.S. administration
tried to ‘sell’ its policy during the most dangerous confrontation of the Cold War.”

Research Questions

 How NATO countries react to US naval blockade ? discuss the legal case framed by us for
justifying the legality of the term “quarantine”
 How the role of security council affect the Legal Case for the ‘Quarantine’ of Cuba?
 How “pacific (non-belligerent) blockades” began to appear as a purportedly acceptable
alternative to actual hostilities? Discuss the US fresh angle on proving the same.

4
“Knott, S. F. (2013). LEGENDS OF THE FALL [Review of The Cuban Missile Crisis in American Memory:
Myths versus Reality, by S. M. Stern]. The Review of Politics, 75(3), 484–487. http://www.jstor.org/stable/43670899
5
Kennedy, John F ( John Fitzgerald ), 1917-1963, & Department of State, United States. (1962). The U.S. response
to Soviet military buildup in Cuba; report to the people October 22, 1962 [Documents]. Dept. of State; Dept. of
State ( Washington ). https://jstor.org/stable/community.32745465
Legal Thinking About Naval Blockades
The law of naval blockades has long been an aspect of customary international law, which
reflects legal customs or habits and imposes obligations on governments.  The blockade, a type
of siege warfare that was first applied in the sixteenth century, included cutting off an enemy's
ports or coastline from the high seas” in order to stop international trade by sea 6. Blockades were
once seen to be an unmistakable sign of war, but in the late nineteenth and early twentieth
centuries, “pacific (non-belligerent) blockades” began to appear as a purportedly acceptable
alternative to actual hostilities. These were "pacific" since they only included the ships of the
blockaded nation and were connected to relatively minor conflicts, including the failure to pay
debts.
However, the “doctrine of pacific blockade was controversial”. Legal scholar Lassa Oppenheim
stated in 1952 that while experts differed on the validity of blockades that exclusively applied to
the vessels of the blockaded states, they all agreed that the seizure and sequestration of third-
party state boats during peacetime was unlawful. Both treaties that enact law and common law
are included in international law7. These treaties include the Vienna Convention on Diplomatic
Privileges and Immunities (1961), the Law of the Sea (1948), the “United Nations (UN) Charter
of 1945, the four Geneva Conventions of 1949, and numerous others. According to Article 2 of
the UN Charter, "all Members must settle their international disputes via peaceful means" and
should "refrain in their international relations from the use of force or the threat of use of force."
Furthermore, Article 42 appears to prohibit the unilateral institution of a blockade by providing
for “Security Council authorization” of operations by air, sea, or land forces of Members of the
United Nations.
The U.S. government has been attempting since 1960 to overthrow Fidel Castro's government in
Havana through a number of means, including the ostensibly covert planning of the Bay of Pigs
invasion of Cuba by emigrants in April 1961. Additionally, in late summer of 1962, with Castro's

6
Allison, G. T. (1969). Conceptual Models and the Cuban Missile Crisis. The American Political Science Review,
63(3), 689–718. https://doi.org/10.2307/1954423”
7
“Laffey, M., & Weldes, J. (2008). Decolonizing the Cuban Missile Crisis. International Studies
Quarterly, 52(3), 555–577. http://www.jstor.org/stable/29734251
rise to power and a Soviet military buildup in Cuba, there were voices in Congress calling for an
unspecified naval blockade of the island8.
The head of the legal department at the State Department, Abram Chayes, however, questioned
the legality of this choice. According to his analysis, a belligerent blockade—which includes the
legal power to obstruct other people's commerce—would be difficult because "we are not at war
with Cuba." A pacific embargo would also need to be "reconciled with duties undertaken in the
Inter-American system and under the UN Charter" and "proportionate to a specific international
wrong" perpetrated by the Havana dictatorship9.
Chayes asserted that the OAS might be used to support the embargo of Cuba with a two-thirds
majority in regard to inter-American duties, and that under these conditions, a blockade may be
viewed as a UN "enforcement action" under UN Charter Article 53 10 which enabled the Security
Council to “utilize regional arrangements or agencies for enforcement action under its
authorit”.
The Legal Case for the ‘Quarantine’ of Cuba- Role of Security Council
ExComm (the Executive Committee of the National Security Council) debated whether to strike
the missile bases or encircle Cuba in an effort to prevent the bases construction and put pressure
on the Soviet Union to remove its missiles11. ExComm officials debated whether a declaration of
war against Cuba should be made in order to permit the stopping and searching of outside vessels
as they got closer to enacting a blockade. Llewellyn Thompson, a former ambassador to
Moscow, suggested that such a war declaration would be beneficial since the Soviets would be
more inclined to abide by a blockade that had been legally created. George Ball, the
undersecretary of state, thought that a declaration of war would let allies know where they stood,

8
Martins, D. (2018). THE CUBAN MISSILE CRISIS AND THE JOINT CHIEFS: Military Operations
to Meet Political Ends. Naval War College Review, 71(4), 91–110.
https://www.jstor.org/stable/26607091”
9
“Pious, R. M. (2001). The Cuban Missile Crisis and the Limits of Crisis Management. Political Science Quarterly,
116(1), 81–105. https://doi.org/10.2307/2657821
10
Westra, J. H. (2010). Cumulative Legitimation, Prudential Restraint, and the Maintenance of International Order:
A Re-examination of the UN Charter System. International Studies Quarterly, 54(2), 513–533
11
Welch, D. A., & Blight, J. G. (1987). An Introduction to the ExComm Transcripts. International Security, 12(3),
5–29. https://doi.org/10.2307/2538800
and Dean Rusk, the secretary of state, agreed that it would grant us "several legal privileges as a
combatant that would be quite advantageous for us12
In contrast, Dean Acheson, a former secretary of state, and assistant attorney general Nicholas
Katzenbach thought that any military action may be justified by self-defense. Robert F. Kennedy
thought that the OAS's backing made a declaration of war unnecessary 13. “Kennedy was opposed
to starting a war as well. He saw the possibility of a transaction involving American "Jupiter"
missiles stationed in Turkey and felt that declaring war would limit his options, even if he was
eager to project a stance of solid resolve and was unwilling to make public compromises. As a
result, the United States decided against starting a war with Cuba”.
Instead of using the word "blockade" or Norbert Schlei's option of "visit and search," U.S.
officials opted for the phrase "quarantine." By the word's inspiration has been given. Meeker
stated that whoever was in charge had done it in order "to avoid any inference of a state of war
from the implementation of measures which we labelled as blockade." The phrase was intended
to show calm in a tense circumstance and to avoid any legal issues.
A blockade, on the other hand, was "an operational element of the conduct of war, meant to
compel a state to conform to the demands of the blockading countries by crushing the state's
economy." Therefore, the "quarantine," in the eyes of the American government, was a tool of
peace, not war. Although historian Jutta Weldes believes the use of the term "quarantine" rather
than "blockade" was an attempt to cover up "an act of aggression against a sovereign state,"
Withana has fairly maintained that the U.S. government's legal argument was an attempt to
influence international law14. The term "quarantine," according to historian Robert Weisbrot, is
"a velvet cover to cushion the global reaction to a U.S. show of seapower." Additionally, there
were critics within the American administration, including Richard N. Gardner of the U.S. In a
private message, the mission to the UN said that "a blockade cannot be justified by its selectivity
or by using some other term." Although each goal involved attempting to create a positive

12
Guttieri, K., Wallace, M. D., & Suedfeld, P. (1995). The Integrative Complexity of American Decision Makers in
the Cuban Missile Crisis. The Journal of Conflict Resolution, 39(4), 595–621. http://www.jstor.org/stable/174379”
13
“SCOTT, L. (2015). The “Incredible Wrongness” of Nikita Khrushchev: The CIA and the Cuban Missile Crisis.
History, 100(2 (340)), 210–228. http://www.jstor.org/stable/24809570
14
Fuelling, C. (2017). To the Brink: Turkish and Cuban Missiles during the Height of the Cold War. International
Social Science Review, 93(1), 1–15. https://www.jstor.org/stable/90012918”
picture of the blockade, the concentration on terminology from Meeker et al. and the
accompanying explication of the legal position was an attempt to both construct international law
and to affect moral perceptions of U.S. policy.
In the legal context, this was not straightforward. This was not a simple situation in a legal
setting. The more benevolent features of the blockade were expressed by the stance that only
military cargo, as opposed to food and other essentials, was considered illicit and that vessels
carrying military cargo would be diverted rather than detained or destroyed. Blockading other
people's ships also had a hostile element to it that didn't sit well with current international law.
There was also the unpleasant issue of the UN's lack of support. It goes without saying that the
Soviet Union and Cuba would always criticise American legal doctrine.
A recent analysis has noted that Soviet officials did not take the initiative to present a legal
argument, that there were still concerns in the U.S. government that Soviet and Cuban legal
arguments could acquire traction. The blockade was to persist forever until all "offensive"
weaponry had been withdrawn, despite it being clear that Soviet ships carrying military
equipment on their way to Cuba were receding15. “This was done in retaliation for using force to
remove the missile bases. It is worth discussing why the U.S. government not taken its case to
the UN as soon as the missiles were discovered, instead of going ahead independently with a
naval blockade” –
1. First, it was acknowledged that uncomfortable issues would arise regarding the
comparability of American nuclear missile bases abroad, particularly in Turkey, and the
Soviet bases in Cuba.
2. Two, even if it were agreed that the missiles were an act of aggression, the UN would not
have been able to sanction the use of force due to the Soviet veto in the Security Council,
thus there was not likely to be much worry at the revelation of the bases.
3. Three, it would take time to pursue the issue at the UN. Finally, it would be challenging
to reach a compromise on the matter because the President had warned the Soviet Union
in September about the danger of stationing "offensive" weapons in Cuba.
Meeker had predicted that the United Arab Emirates, Ghana, and Romania would be against the
blockade. “Only if the other states, including Britain, France, the Republic of China, Chile,
15
“FRIEDMAN, R. R. (2011). Crisis Management at the Dead Center: The 1960-1961 Presidential Transition and
the Bay of Pigs Fiasco. Presidential Studies Quarterly, 41(2), 307–333. http://www.jstor.org/stable/23884834”
Venezuela, and Ireland, voted in favour would the measure receive the seven votes needed to
pass.” The Irish attitude, however, raised questions, and even if there were enough votes to
support American strategy, the Soviet Union would wield its veto to block further action.

Role of Security Council

A Security Council resolution under Article 40, which allowed the Council to mediate a
disagreement by "call[ing] upon the parties involved to comply with such interim measures as it
considers necessary or desirable," was offered by the U.S. delegation in New York. All
"offensive" weapons in Cuba were to be immediately dismantled and removed under UN
supervision, according to the proposed resolution. According to Chayes, the project was merely
symbolic and neither its introduction nor its introduction with the assumption that it would be
adopted gave it any possibility of success. The United States and Canada had proposed the
"Uniting for Peace" method in 1950 to get over the Security Council's impasse and allow the
General Assembly to approve the embargo. As a result, the People's Republic of China was
denounced by the UN as the aggressor in Korea. However, the subsequent rise in Assembly
members due to decolonization did not result in a proportionate gain in support for the United
States. As a result, U.S. officials questioned their ability to "muster a sufficiently impressive
majority" in the General Assembly during the missile crisis, according to a British investigation.
As a result, the "Uniting for Peace" process was put on hold. Acting Secretary General U Thant
made an effort to mediate outside of the Council and the Assembly 16. He suggested the
superpowers hold talks while the U.S. blockade and Soviet armament shipments to Cuba are
suspended.
By October 28, Washington and Moscow had come to an unofficial deal in which Washington
agreed not to invade Cuba and Moscow agreed to remove the Jupiter missiles from Turkey
within six months in exchange for Washington removing the missiles from Cuba. U Thant's
assistance was used during the ensuing negotiations in New York to iron out the specifics of the
agreement. Castro's concerns about national sovereignty prevented the acting secretary general
from visiting Cuba to try to establish a UN inspection regime to verify the removal of the
missiles.

16
“Bernstein, B. J. (2012). LOOKING BACK: Reconsidering the Perilous Cuban Missile Crisis 50 Years Later.
Arms Control Today, 42(8), 39–44. http://www.jstor.org/stable/23629322”
Richard N. Gardner was concerned that the use of a regional organisation purportedly working
for the UN would "erode" the American position because of the hazy legal situation. It will be
clear that several other states did question the decision to use the OAS rather than the UN. The
Monroe Doctrine, a warning issued by President James Monroe in 1823 to dissuade European
governments from pushing into the Americas, was congruent with the forceful response to the
discovery of Soviet nuclear missile facilities in Cuba 17. The Theodore Roosevelt "Corollary"
used the Doctrine to justify American military intervention in Latin America” eighty years later.
The Monroe Doctrine had been reframed as a continental and multilateral principle of non-
intervention" by the 1930s after debate among American and Latin American international
attorneys, politicians, and intellectuals. The Doctrine had altered both by circumstances and by
agreement" as a result of this evolution, according to Dean Rusk, who testified before the Senate
in September 1962, even if it continued to be an elementary aspect of our total national security
objectives.
“In order to counter the Soviet "threat in a manner consistent with international law and our
treaty obligations," the State Department claimed that the United States had "acted unilaterally in
the spirit of the Monroe Doctrine as well as multilaterally with its friends in the hemisphere to
establish the blockade." According to one perspective, the Doctrine "did not create a distinct
legal system for the Western Hemisphere in which the United States is authorised to vary from
the conventional standards," hence American authorities chose not to bring it up in the judicial
proceeding. In addition, despite a partial rejection of the Roosevelt corollary and the adoption of
a more "neighbourly" attitude under Franklin D. Roosevelt in the 1930s, the Doctrine had long-
standing associations with unilateralism and heavy-handedness”18. The U.S. stance was that the
naval embargo or "quarantine" was not a hostile blockade and that the OAS could still be used
appropriately as a regional UN body without the approval of the Security Council”.

Conclusion
17
“Absher, K. M. (2009). TECHNICAL COLLECTION VERSUS ESPIONAGE. In MIND-SETS AND MISSILES:
A FIRST HAND ACCOUNT OF THE CUBAN MISSILE CRISIS (pp. 12–17). Strategic Studies Institute, US Army
War College. http://www.jstor.org/stable/resrep12020.7
18
DORN, A. W., & PAUK, R. (2009). Unsung Mediator: U Thant and the Cuban Missile Crisis. Diplomatic
History, 33(2), 261–292. http://www.jstor.org/stable/44214038”
During the missile crisis, the U.S. government promoted the legal case for a blockade of Cuba as
a part of a larger effort to secure support, which also included the President's 22 October TV and
radio broadcast and briefings to leaders of NATO members and to 95 foreign ambassadors.
Despite the fact that there was little meaningful consultation with allies over how to react to the
Soviet missile finding, allied support was crucial to the morality of American policy. Withana
has argued that the "skillful application of the ideology of international law" by the American
government was "an important factor" in the victory, whereas “relatively weaker references to
the ideology of international law by Soviet representatives was a factor in shaping the outcome
of Soviet acquiescence to U.S. priorities to remove Soviet missiles from Cuba” 19." Nevertheless,
there is general agreement that Khrushchev caved in because the Soviet Union was in a position
of military strength. As can be seen, during the missile crisis, the Soviet Union held the moral
high ground but was compelled to retreat.
The reservations of American allies regarding the legality of the blockade indicate that Moscow
was more skilled at arguing its case than is generally acknowledged. Some government officials
the US had "created some unforeseen new law" appropriate for the times. As has been
mentioned, there were still some who had concerns about the legal situation, including Richard
N. Gardner.
This was demonstrated by Abram Chayes' initial scepticism regarding the legality of a naval
blockade of Cuba and his subsequent legal evangelization on behalf of the blockade regardless of
any doubts, possibly regarding the legality of using the OAS without UN approval, following the
discovery of the Soviet missile bases. The tension that results from giving the same officials the
roles of judge and advocate. Numerous American lawyers who supported the validity of the
blockade wrote articles in academic journals not long after the missile crisis.
Richard N. Gardner, who is currently a professor of international law at Columbia University,
made the following claim in 1990 as the first Gulf War drew near:
“Since the Cuban missile crisis, the law has been under development, so stopping ships may no
longer be an act of war.”
In light of Secretary of State James Baker III's statement that

19
“Wilson, L. C. (1965). International Law and the United States Cuban Quarantine of 1962. Journal of Inter-
American Studies, 7(4), 485–492. https://doi.org/10.2307/165270”
“the Administration is avoiding the words "blockade" and "quarantine" because under
international law those terms can be interpreted as acts of war,”

Bibliography
Books
 Malcolm N. Shaw, International Law, 8 th ed., Cambridge University Press, 2017, pp. 764-
775, 803-849.
 I.A.Shearer, Starke’s International Law, 11th ed., Oxford University Press,1994, pp.541-598,
441-476.
 James Crawford, Brownlie’s Principles of Public International Law, 8 th ed., Oxford
University Press, 2012, pp. 718-743.
 Martin Dixon (et al), Cases and Materials on International Law, 6 th Ed, Oxford University
Press, 2016, pp. 650-688.
Articles
 Caldwell, D. (1978). A Research Note on the Quarantine of Cuba October 1962.
International Studies Quarterly, 22(4), 625–633. https://doi.org/10.2307/2600169
 Christol, C. Q., & Davis, C. R. (1963). Maritime Quarantine: The Naval Interdiction of
Offensive Weapons and Associated Materiel to Cuba, 1962. The American Journal of
International Law, 57(3), 525–545. https://doi.org/10.2307/2196078
 McDonough, J. A. (1967). CRISIS DIPLOMACY CUBA - 1962. Naval War College
Review, 20(1), 3–24.
 Knott, S. F. (2013). LEGENDS OF THE FALL [Review of The Cuban Missile Crisis in
American Memory: Myths versus Reality, by S. M. Stern]. The Review of Politics, 75(3),
484–487.
 Kennedy, John F ( John Fitzgerald ), 1917-1963, & Department of State, United States.
(1962). The U.S. response to Soviet military buildup in Cuba; report to the people October
22, 1962 [Documents]. Dept. of State; Dept. of State ( Washington ).
 Allison, G. T. (1969). Conceptual Models and the Cuban Missile Crisis. The American
Political Science Review, 63(3), 689–718.
 Laffey, M., & Weldes, J. (2008). Decolonizing the Cuban Missile Crisis. International
Studies Quarterly, 52(3), 555–577.
 Martins, D. (2018). THE CUBAN MISSILE CRISIS AND THE JOINT CHIEFS: Military
Operations to Meet Political Ends. Naval War College Review, 71(4), 91–110.
 Pious, R. M. (2001). The Cuban Missile Crisis and the Limits of Crisis Management.
Political Science Quarterly, 116(1), 81–105. https://doi.org/10.2307/2657821
 Westra, J. H. (2010). Cumulative Legitimation, Prudential Restraint, and the Maintenance of
International Order: A Re-examination of the UN Charter System. International Studies
Quarterly, 54(2), 513–533
 Welch, D. A., & Blight, J. G. (1987). An Introduction to the ExComm Transcripts.
International Security, 12(3), 5–29. https://doi.org/10.2307/2538800
 Guttieri, K., Wallace, M. D., & Suedfeld, P. (1995). The Integrative Complexity of American
Decision Makers in the Cuban Missile Crisis. The Journal of Conflict Resolution, 39(4), 595–
621.
 SCOTT, L. (2015). The “Incredible Wrongness” of Nikita Khrushchev: The CIA and the
Cuban Missile Crisis. History, 100(2 (340)), 210–228.
 Fuelling, C. (2017). To the Brink: Turkish and Cuban Missiles during the Height of the Cold
War. International Social Science Review, 93(1), 1–15.
 FRIEDMAN, R. R. (2011). Crisis Management at the Dead Center: The 1960-1961
Presidential Transition and the Bay of Pigs Fiasco. Presidential Studies Quarterly, 41(2),
307–333.
 DORN, A. W., & PAUK, R. (2009). Unsung Mediator: U Thant and the Cuban Missile
Crisis. Diplomatic History, 33(2), 261–292.
 Wilson, L. C. (1965). International Law and the United States Cuban Quarantine of 1962.
Journal of Inter-American Studies, 7(4), 485–492. https://doi.org/10.2307/165270

International Instruments
 Charter of the United Nations, 1945
 Statute of International Court of Justice, 1945