In September 1962, the American press reported that the Soviet Union had secretly shipped military equipment and advisers to Cuba. Congressional pressure for a military response, such as airstrikes or even a second invasion of the island (after the failed 1961 Bay of Pigs incursion), was mounting. U.S. President John F. Kennedy and his administration insisted that the Soviet buildup was defensive and did not threaten U.S. national security. But the situation changed a few weeks later, in mid-October, after a U2 surveillance plane captured images of movable missile launchers carrying nuclear warheads with an effective range that brought major U.S. cities including Washington, D.C., Miami, and New Orleans well within striking distance.
Many histories recount that Kennedy solved the Cuban Missile Crisis by ordering a naval “quarantine” of Cuba so that the Soviet Union’s ships could not deliver additional missiles to the island. This quarantine, the story goes, brought Soviet leaders to the negotiating table, which eventually produced a diplomatic solution to the conflict and avoided bloodshed. The full story is more complicated and more multilateral.
What is often overlooked is that a U.S. president sought authorization for the quarantine from the Organization of American States (OAS) and did so, in large part, because U.S. policymakers advising the president believed there was a legal obligation to do so.
The legal role of an OAS resolution in supporting the quarantine is often downplayed – even by official histories of the crisis. But, 61 years on from those 13 tense days, the role of international law in solving the crisis deserves revisiting.
In the midst of today’s crises – including Russian President Vladimir Putin’s full-scale war of aggression against Ukraine in violation of the United Nations Charter and in the face of overwhelming U.N. General Assembly votes declaring Russia’s actions unlawful – such resolutions can be powerful, if not fully satisfactory, leverage to resolve the given crisis. In fact, the multilateral response to the Cuban Missile Crisis serves as a compelling example of international organizations acting as forums for negotiation and action, a role which remains critically important today. Resolving the West’s current standoff with Russia, or the dysfunction of the World Trade Organization in the midst of U.S.-China trade tensions, for example, will require multilateralism just as resolving the Missile Crisis did.
The Role of International Law in the Cuban Missile Crisis
In 1974 Abram Chayes, who served as Legal Adviser at the State Department during the missile crisis, published a legal history recounting the events and legal questions that Kennedy and his advisers considered at the time. The “Executive Committee” (ExCom) – the group of Kennedy’s advisers including Attorney General Robert Kennedy, Secretary of State Dean Rusk, and Secretary of Defense Robert McNamara –met in secret to resolve the crisis once intelligence revealed the offensive nature of the Soviet Union’s military buildup. In total, ExCom met more than 40 times, consulted various experts from across the federal government, and conducted secret negotiations with Soviet leadership.
Chayes makes the case that international law was not only on the minds of these decision-makers during the greatest crisis of the Cold War, but that it framed the debate by narrowing ExCom’s policy options and ultimately shaped the outcome: a successful de-escalation of a potential nuclear exchange between the United States and the Soviet Union. Three key lessons from Chayes’s account provide a roadmap for policymakers to resolve similar crises – by turning first to international law.
Legal Justification Legitimatizes National Security Actions
Aside from the “hard law” of treaties, which (like contracts) set out specific legal rights and obligations of the parties involved, international law also draws its content from customary rules based on the general practice of States in conjunction with States’ view that certain practices carry binding legal obligations. These include the familiar rules that a State cannot violate another’s territorial integrity and that a State has sovereignty within its own borders. Treaty provisions such as Article 2(4) of the U.N. Charter, which prohibits the use of force against the territorial integrity of any State, can reaffirm these customary rules between treaty partners.
Members of ExCom were easily persuaded, according to Chayes, that if the United States followed the international obligations to which it had agreed, its actions would be viewed more favorably by other States. That logic proved true.
At the time, these international obligations were fewer than 20 years old, rooted in the United States’ commitments in two treaties: the 1945 U.N. Charter and the 1947 Inter-American Treaty of Reciprocal Assistance (the Rio Treaty). As ExCom saw it, there were two general legal options to respond to the Soviet Union’s placement of nuclear missiles 449 miles from the Florida coast that were consistent with the U.N. Charter. First was regional collective action (the quarantine), supportable under Chapter VIII of the U.N. Charter. Chapter VIII permits regional organizations to take collective steps to maintain international peace and security, which are otherwise reserved to the U.N. Security Council under Chapter VII.
The second option was unilateral action (airstrikes) carried out under a self-defense theory based on Article 51 of the U.N. Charter, which permits a State to use force in self-defense if it comes under “armed attack.” The Department of Justice advised in a memorandum that anticipatory self-defense had a long history and was supported by other States, citing the 1837 Caroline incident in which British forces conducted a raid in U.S. territory to destroy a steamship they claimed was to be used in an “imminent” attack by Canadian insurgents in Canada. In his memoir, Chayes dismissed this option as “not tak[ing] the legal issues involved very seriously” because the placement of threatening weapons was not the same as a direct threat to use them. Such an expansive theory of self-defense, he argued, would render unilateral State actions legally “unreviewable” and not subject to any objective standard. ExCom considered this theory of “anticipatory” self-defense to justify airstrikes on Cuban missile sites, but ultimately decided against them.
Meanwhile, Article 6 of the Rio Treaty, a regional defense pact implemented by the OAS consistent with its own 1948 Charter, provided the means for taking regional action. Any OAS member can request an emergency session of the Permanent Council, composed of ambassadors representing each member State. Article 6 empowers the Permanent Council, meeting as the “Organ of Consultation,” to agree on measures “for the maintenance of the peace and security of the Continent.” The proposed U.S. quarantine fell within the measures listed in Article 8 of the treaty, including “interruption of economic relations or of . . . sea . . . communications; and use of armed force.”
By bringing the issue to the OAS, the United States was using legal processes to which it had agreed in ratifying the U.N. Charter, the Rio Treaty, and the OAS Charter. These were not just hasty negotiations, but an example of multilateralism delivering results.
Even Robert Kennedy – who as Attorney General initially opposed the decision to seek OAS approval of the naval quarantine for fear that the United States would not receive the required two-thirds vote of OAS members – later admitted the organization’s importance. In his own memoir of the crisis, he wrote that the vote of the OAS “changed our position from that of an outlaw acting in violation of international law” to “a country acting in accordance with twenty allies legally protecting their position.” As it happened, the OAS unanimously approved a resolution permitting members to use force, individually or collectively, to impose a quarantine on Cuba. (Uruguay’s ambassador switched his initial abstention to a “yes” vote the next day, after receiving formal instructions from his government; Cuba had been expelled from the OAS earlier that year and did not vote.)
The converse of legitimization is also true: ignoring the need for legal justification implicitly allows others to do the same. Legal scholar Ingrid Wuerth has argued, for example, that Western-led humanitarian interventions in Iraq, Libya, and Syria have “undermined” the principle of territorial integrity, which Russia then violated in its invasion of Ukraine – even if Putin’s claims to “denazify Ukraine” are “laughably weak.”
Yet, even when the international law grounds for national security actions are contested, architects of those actions typically use the language of international law to make their case. Suggestions that the March 2003 U.S.-led invasion of Iraq was an unlawful use of force range from partisan hyperbole to rigorous legal analysis. Regardless of whether that view is correct as a matter of law or not, the architects of that invasion relied on instruments of international law to make their case for it. The United States sought a Security Council resolution to declare Iraq in material breach of its disarmament obligations under prior U.N. resolutions. The resulting Security Council Resolution 1441 was adopted unanimously. Resolution 1483, which acknowledged the U.S. and U.K. roles as occupying powers under the Geneva Conventions, was also adopted unanimously.
These facts tend to be neglected in broad-brush comparisons of Russia’s invasion of Ukraine with the 2003 invasion of Iraq. But they illustrate the point that actions taken with legal justification can be more readily accepted as legitimate than actions which make no such claim to legal justification. And, as one scholarly critique of U.S. legal justifications pointed out at the time, reliance on international law and the institutions that implement it, even if used to advance flawed justifications, can ultimately preserve the long-term legitimacy of those rules and institutions by acknowledging the necessity to seek justification for action within them.
International Organizations Act as Structures for Resolving Disputes
When it comes to the role of international organizations in resolving crises, Chayes, writing in 1974, found their proliferation since 1945 “the most important development in the international legal system in the post-war period.” In addition to slowing escalation by requiring consultation, international organizations (groups formed by States which agree to cooperate via the mechanisms established in the organizations’ founding charters) also provide forums for negotiation – and action.
In fact, the existence of the OAS influenced ExCom’s “pattern of execution,” in Chayes’s words. To have a legal justification for whatever action it took, ExCom had to obtain it from an instrument or organization that could grant it. Kennedy’s ultimate decision was not, in fact, to implement the quarantine immediately, but rather, “a decision” as Chayes recalls, “to submit the matter in the first instance to the OAS.” This step to obtain legal justification – which ExCom viewed as legally and politically necessary – slowed down the U.S. reaction rather than escalating it in the heat of a crisis while at the same time providing a mechanism to help resolve the crisis.
International organizations operate according to their charters, which set out the rules and processes by which their member States agree to make collective decisions. While such procedures may slow the response to a crisis by requiring consultation and voting procedures, they are not always obstacles to a resolution. To the contrary, an international organization is a useful forum to begin forming a solution.
Today, international organizations remain indispensable. The European Union and the G7, for instance, have mobilized unprecedented financial support for Ukraine and imposed broad multilateral sanctions against Russia in response to Russia’s invasion of Ukraine. The Group of Friends of Haiti, formed under the auspices of the OAS, has been at the forefront of resolving the ongoing crisis in that country, inviting a first-of-its-kind multinational force led by Kenya to assist the Haitian government, which the Security Council then authorized.
In the case of the Cuban Missile Crisis, as Chayes noted, the OAS’s formal procedures “were an important asset in mobilizing hemispheric support.” Centralized voting, in emergency session in Washington, permitted the United States to quickly build regional consensus which would have proved far more difficult if U.S. diplomats had to travel to every Latin American capital to separately negotiate support.
Regional organizations also formalize support. Chayes contrasts the weight of a State’s vote on a resolution – which “has a finality about it” – with a mere public statement. Moreover, “to have ignored the OAS,” Chayes wrote, “would have been to make a mockery” of the diplomatic engagement and regional commitments its members had made over the preceding decade. A similar phenomenon played out in the General Assembly’s quick denunciations of Russia’s invasion of Ukraine, where formal statements reiterated U.N. Members’ 78-year commitment to uphold States’ territorial integrity.
Legal Principles and Processes Can Restrain Dangerous Actions
Those who supported the quarantine over airstrikes favored the quarantine in part because it would have a stronger legal justification when carried out under the authorization of the OAS. But, to obtain that authorization, the United States had to submit the issue to the OAS through its organizational procedures.
The search for legal justification in foreign policy decision-making therefore prevents hasty choices in addition to legitimizing a country’s actions. Legal options also lead to negotiations. As national security law scholar Laura Dickinson has argued, legal standards often set a floor on what States can do, which can be exceeded as a matter of each State’s own policy, lending policymakers “room to maneuver.” In the context of the OAS, the floor was the resolution required to endorse the quarantine; as Chayes notes, members were able to secure sentence-by-sentence votes so that they could abstain from language they found objectionable. While “the initial discussion proceeded slowly,” it resulted in unanimous regional approval of the U.S. response – itself a strong rebuke of the Soviet Union’s actions.
Such procedures do not necessarily mean that organizations cannot respond nimbly to crises. By meeting in emergency session, and tasking specialized committees (such as “Friends Of” groups) with mobilizing resources in particular types of crises, international organizations can, and do, effectively respond to crises. International organizations do not typically manage a crisis so much as aid in its resolution. The goal of Kennedy’s quarantine – a product of international law – was to create the conditions for negotiations with the Soviet Union over removing the offensive weapons. The quarantine was not an end in itself.
Tongue-in-cheek, Chayes acknowledges the critique that, due to a “high incidence of lawyers,” U.S. foreign policy is overly legalistic. But he urges us not to ignore the weight that formal structures and legal procedures carry. As Dickinson has observed, because lawyers help write government policies, those policies often adopt the status of international legal standards – creating “a real (and possibly lasting) difference” in their implementation even when international law itself fails to “exert binding force.”
Kennedy himself may have had a particular appreciation for international law and the rules of international organizations, having reported on the negotiations of the U.N. Charter from San Francisco in 1945. But the treaties and resolutions to which the United States agreed – and the principles they uphold – exist for a reason. International law is the language of foreign policy. Conflicts and crises cannot be resolved without it.