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Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Matériel to Cuba, 1962*

Published online by Cambridge University Press:  28 March 2017

Carl Q. Christol  and
Charles E. Davis
Carl Q. Christol
Affiliation:
U. S. Naval War College
Charles E. Davis
Affiliation:
U. S. Naval War College
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Extract

It has often been said that international law is a living institution in a living society.

Type
Research Article
Information
American Journal of International Law , Volume 57 , Issue 3 , July 1963 , pp. 525 - 545
Copyright
Copyright © American Society of International Law 1963

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Footnotes

*

The views expressed herein are those of the individual authors and do not necessarily represent the position of the Department of the Navy or of the U. S. Government.

References

1 47 Dept. of State Bulletin 717 (1962); 57 A.J.I.L. 512 (1963).

2 47 Dept, of State Bulletin 722-723 (1962). The resolution cited Arts. 6 and 8of the Inter-American Treaty of Eeciprocal Assistance, 1947 (The Rio Pact;The Rio Treaty), 21 U. N. Treaty Series 93 et seq. (1948), 43 A.J.I.L. Supp. 53 (1949); see discussion below, pp. 537-539.

3 9 U. N. Review 6-17, 77-84 (November, 1962).

4 The New York Times, Oct. 27, 1962, to Nov. 20, 1962.525.

5 For example, the now operative Convention on the High Seas, 52 A.J.I.L. 842 (1958).

6 A firm indictment of past Soviet conduct was delivered by Ambassador Stevenson at the Security Council Meeting of Oct. 23, 1962. 47 Dept, of State Bulletin 725733 (1962).

7 47 Dept, of State Bulletin at 715. For a chronological listing of critical events, see Mallison, “Limited Naval Blockade or Quarantine-Interdiction; National and Collective Defense Claims Valid under International Law,” 31 George Washington University Law Review 339-343, 353, footnote 90 (1962).

8 The primary concern of these states in the affected areas is not open to doubt. Compare Aron, “International Law—Reality and Fiction,” 47 The New Republic 14 (Dec. 1, 1962).

9 It is a fact, however, that for some time prior to the President's interdiction Proclamation, units of the U. S. Navy and Air Force were engaged in normal training operations in and over Hemispheric waters in areas usually employed for such purposes.

10 47 Dept, of State Bulletin at 716-718.

11 “Text of President's News Conference on Foreign and Domestic Affairs,” The New York Times (Western ed.), March 7, 1963. See also Chayes, “The Legal Case for U. S. Action on Cuba,” 47 Dept, of State Bulletin 763 (1962), and “Law and the Quarantine of Cuba,” 41 Foreign Affairs 552 (1963).

12 On Oct. 27, 1962, the Secretary of Defense promulgated prohibited and restrictive zones and prescribed routes. Prohibited matériel had been specified in the Quarantine Proclamation. The interception area encompassed about 3.5 million square miles. See The New York Times of Nov. 6, 1962, for approximate boundaries. See also Dept, of State Press Release No. 645, Oct. 27, 1962, which released the text of a Department of State message transmitted to the Acting Secretary General of the United Nations and is here quoted in part:

“My Government has instructed me to inform you that the ‘interception area’ referred to in your letter of October 25 to the President of the United States and in his reply of October 26, comprises (a) the area included within a circle with its center at Havana and a radius of 500 nautical miles and (b) the area included within a circle with its center at Cape Maysi (Maisi), located at the eastern tip of the Island of Cuba, and a radius of 500 nautical miles.”

13 47 Dept, of State Bulletin 724 (1962).

14 The New York Times, Oct. 26, 1962.

15 Christian Science Monitor, Oct. 25, 1962.

16 lbid.

17 The New York Times, Oct. 24, 1962. The Soviet verbal response must be measured against the fact that it did withdraw some national and chartered ships from the quarantine area, and cargoes of these ships did not reach Cuba. It is generally believed that only such Soviet cargoes as were not on the prohibited list actually reached Cuba.

18 The New York Times, Oct. 25, 1962. See also Appendix I below.

19 The New York Times, Oct. 26, 1962; Par. No. 5982, Notice to Mariners No. 45,

20 62. See also Appendix I below. Ibid.

21 The New York Times, Oct. 25, 1962, and Dept, of State Press Eelease No. 644, Oct. 27, 1962, set forth as Appendices I and II below.

22 See pp. 541-543, below.

23 The New York Times, Oct. 25, 1962.

24 ibid., Oct. 30, 1962.

25 On Oct. 25, 1962, the Soviet tanker Bucharest was intercepted. Her cargo was checked visually from alongside by a unit of the quarantine force and she was allowed to proceed to Cuba. The Lebanese vessel Marcula, tmder Soviet charter, en route to Cuba was boarded by units of the U. S. Navy on Oct. 26, 1962. Apparently no items of the prohibited list appeared in the cargo and the vessel was cleared to proceed. The release also reported the sighting, etc., of some “190 different foreign surface and underwater craft” by Naval Air Reserve units alone. “Actions of Military Services in Cuban Crisis Outlined,” U. S. Dept, of Defense News Eelease No. 1942-62, Nov. 29, 1962, pp. 1-7.

26 Ibid. at p. 6. Admiral George W. Anderson, U.S.N., Chief of Naval Operations, is quoted as stating on Nov. 9; “The presence of many Russian submarines in Caribbean and Atlantic waters provided perhaps the finest opportunity since World War II for the U. S. Naval anti-submarine-warfare forces to exercise at their trade, to perfect their skills and manifest their capability to detect and follow submarines of another nation. In tomorrow's newspapers. I'm sure you will see photographs of some of the submarines that came to the surface after the persistent surveillance of United States ships and United States aircraft.” The Washington Post, Nov. 10, 1962, p. A-7, carries a photograph of what is identified as a surfaced Soviet submarine.

27 Secretary McNamara stated that on Oct. 22, 1962, eighteen Soviet cargo ships were route to Cuba, that sixteen of these ships turned back after the establishment of the quarantine, and that they were followed back to the Baltic Sea and the Mediterranean. See note 3 above.

28 Note 25 above, at 5. See also The New York Times, Nov. 21, 1962.

29 The extraordinarily grave situation existing during the last ten days of October will not soon be forgotten.

30 See the excellent discussion on modern concepts of blockade and its utility by Rear Adm. Robert D. Powers, Jr., U.S.N., “Blockade: For Winning Without Killing,”84 United States Naval Institute Proceedings 61-66 (1958).

31 Art. 51 provides in part; “Nothing in the present Charter shall impair the in-herent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. ...”

32 Wright has called for a literal construction of “armed attack.” Columbia Law School News 2 (Nov. 7, 1962). See also below, p. 560.

33 This point of view has been described by Berle as the ‘ ‘ Principle of Passivity ’ ’ and has been rejected. Lissitzyn has called it the “Sitting Duck” concept and also has rejected it. Columbia Law School News 1, 3. Elihu Eoot, in addressing the American Society of International Law, said in 1914 that each sovereign state has the right “to protect itself by preventing a condition of affairs in which it will be too late to protect itself.” 1914 Proceedings, American Society of International Law 12; 8 A.J.I.L. 432 (1914).

34 For a penetrating analysis, see McDougal and Feliciano, Law and Minimum World Public Order 121-260 (New Haven and London: Yale University Press, 1961). This view is also supported by H. C. Dillard, E. C. Pugh and W. G. Friedmann in Columbia Law School News (Nov. 7, 1962).

35 Pursuant to Art. 2 (6) even non-Members must conform to “the maintenance of international peace and security.” For the background of Art. 2 (4), see Davis, “First Commission: General Provisions,” in The United Nations Charter: Develop-ment and Text (International Conciliation, No. 413, Sept., 1945); 6 United Nations Conference on International Organization 80-82, 696-705 (1945); Russell and Muther, A History of the United Nations Charter, Chs. V-IX, XI, XXIV, and pp. 455-457, 473-476, 655-657, 672-675, 1067 (1958).

36 For a careful analysis of Ch. VIII, Arts. 52-54 of the U. N. Charter, see Mc- Devitt, “The UN Charter and the Cuban Quarantine,” 17 JAG Journal 71 (April- May, 1963).

37 Deputy Secretary of Defense Gilpatric, Dept, of Defense Press Release No. 1426-62, Sept. 5, 1962, p. 3.

38 Ibid.

39 The New York Times, Oct. 24, 1962. Secretary of State Rusk acknowledged that Cuba had engaged in “loud protestations of arming for self-defense ...” while per-mitting Soviet military forces to establish a foothold on the Island. 47 Dept, of State Bulletin 720 (1962). Germany in 1939 asserted it was obliged to defend itself in the face of Polish aggression. History, unfortunately, provides too many examples of such baseless contentions.

40 Rusk, loo. cit. 721.

41 47 Dept, of State Bulletin at 716.

42 lbid.

43 Ibid. 717.

44 lbid.

45 Ibid. 722.

46 Ibid. 734.

47 Ibid. 735.

48 Chayes, 47 Dept, of State Bulletin 764 (1962).

49 Chayes, “Law and the Quarantine of Cuba,” 41 Foreign Affairs 554 (1963).

50 The New York Times, Nov. 21, 1962. To the same effect was Secretary Rusk'a statement before the Senate Committees on Foreign Relations and Armed Services, 87th Cong., 2nd Sess., “Situation in Cuba” 33 (1962). He said on Sept. 17, 1962: “No great nation can ever abandon its elementary right of unilateral action if that becomes necessary for its own security.”

51 Mallison, loc. cit. note 7 above, at 353.

52 Ibid. 364.

53 Ibid. 378.

54 lbid. 393-394.

55 Ibid. 363.

56 49 A.B.A.J. 143 (1963).

57 Ibid. 142-143.

58 Ibid. 144; compare Dillard, loc. cit. note 34, at 3.

59 LOC. cit. note 56 above, at 143-145.

60 See p. 532 above.

61 21 U. N. Treaty Series 93 et seq. (1948); reprinted in 43 A.J.I.L. Supp. 53 (1949). The latter, it should be noted, was signed at an Inter-American Conference for the “Maintenance of Continental Peace and Security,” 17 Dept, of State Bulletin 565 (1947).

62 Ibid.

63 Ibid.

64 Because of the significant values to be protected through community as opposed to individual applications of force, e.g., “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 … ,” Chayes concludes that “States living under the regime of that Charter can no longer find justification for the use of force in their mere unilateral declaration.” Chayes, 41 Foreign Affairs 553-554; compare pp. 540541 below.

65 Chayes, 47 Dept, of State Bulletin 764 (1962).

66 Ibid.

67 Ibid. 765.

68 Ibid,.

69 loc. cit. 555.

70 Ibid. 550.

71 Ibid. 553.

72 Ibid. 554.

73 Ibid. 553.

74 Ibid. 554. Compare this statement with his earlier statement appearing at note 48 above.

75 lbid. 554.

76 U. N. Doc. A.CONF. 13/L.53; 52 A.J.I.L. 842 (1958).

77 Franklin, TJ. 8. Naval War College International Law Studies 1959-60, p. 175 (Washington: U. S. Govt. Printing Office, 1961), analyzes that convention as a “codi-fication of international law relating to the high seas and that the provisions are ‘generally declaratory of established principles of international law.’ ”

78 Franklin, op. cit. at 157, suggests that ‘ ‘ the essence of this provision is that each user of the high seas must accommodate every other user in order to have the least possible interference among all users.”

79 The Caroline (1837), 2 Moore, Digest of International Law 409, § 217

80 Approval of the application of the doctrine during the Cuban build-up has been general. See comments in Columbia Law School News, Nov. 7, 1962, by Wright, p. 2; Lissitzyn, p. 3; Dillard, p. 3; Meeker, “Eole of Law in Political Aspects of World Affairs,” 48 Dept, of State Bulletin 87 (1963); and see note 83 below,

81 47 Dept, of State Bulletin 717 (1962).

82 “U. S. Defense Policy for the 1960's,” Dept, of Defense News Eelease, Feb. 10, 1963, p. 5. Compare Mallison, loc. cit. 344-364, 382; Seligman, loc. cit. 143.

83 47 Dept, of State Bulletin 721; compare Chayes, 41 Foreign Affairs 551-552.

84 Busk, loc. cit.

85 Appendices I and II, below. See discussion at pp. 529-530 above.

86 Ibid.

87 It would be uniquely ironic if the quarantine as a new legal option for the use of force in peace would have as a major by-product the eroding of the principle of self-defense, no matter how narrow or broad the latter may be thought to be.

* Department of the Navy Oceanographic Office, Washington, D. C., pp. 2547-8.

* Department of State Press Release No. 644, dated Oct. 27, 1962; 47 Dept, of State Bulletin 747 (Nov. 12, 1962).