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Book Synopsis — The Cuban Missile Crisis: International Crises and the Role of Law

Abram Chayes The Cuban Missile Crisis: International Crises and the Role of Law (Oxford University Press (1974)

by Chris deLaubenfels, a law student at New York University School of Law

ChayesAbram Chayes’ The Cuban Missile Crisis begins in the fall of 1962 as Cold War tensions between the United States and the Soviet Union were at their highest.  Chayes provides an insider’s account of the factual and legal background of the crisis, discussing the Kennedy Administration’s red line prohibition of Soviet offensive missiles in Cuba and describing in detail the deliberations over potential U.S. responses if that red line were crossed.  Chayes addresses the question of how—not whether—international law entered into policy-making processes during the crisis.  In any individual policy choice, there is never one consideration, whether legal, military, or diplomatic, that dictates a decision.  Chayes states that it is a fruitless task to measure precisely how significant any single factor played influencing a decision. In answering how international law entered into policy decisions, the book seeks to discuss how law was actually, not theoretically, used throughout the crisis.

Chayes focuses on three interrelated decisions made during the missile crisis and the role the law played in those decisions: (i) the choice by the United States to use a blockade, or “quarantine,” instead of a harsher or milder response; (ii) the decision to seek an Organization of American States (O.A.S.) authorizing resolution; and (iii) the choice of how to interact with the United Nations.  Chayes endeavors to demonstrate that law was an important force in each of these decisions.  In particular, the book shows that the law was a constraint on and a basis of justification for particular actions and provided the organizational structures within which policy decisions were made.

Chayes recounts how President Kennedy acted in consultation with his “Executive Committee” composed of legal advisors from the Departments of State, Justice, and Defense—the cabinet departments chiefly concerned with the international legal and policy questions surrounding a U.S. response. The group considered the legal justifications for various potential responses if the Soviets crossed the red line, including continuing U-2 flights over Cuba, a quarantine, air attacks, and an invasion. Through independent deliberations, the advisors from the different departments discussed the legality of the Soviet’s placement of missiles in Cuba and the potential U.S. responses.  The departments reached three overlapping legal conclusions: (i) the placement of missiles in Cuba was not an armed attack warranting use of force in self-defense under U.N. Charter Article 51; (ii) the O.A.S. could authorize certain uses of force by the United States under Article 6 of the Rio Treaty absent an armed attack; and (iii) the U.S. should consult with the O.A.S., and potentially the U.N., before taking unilateral action.

When considering the role that law played in the Cuban Missile Crisis, Chayes argues that law channels and constrains behavior. Even when a law is broken—such as the speed limit—it does not mean that the level and type of deviations are not inhibited by the law. For example, even if the U.S. use of a blockade was illegal, international law may still have constrained the U.S. from choosing a more illegal action. Furthermore, most laws are not as cut and dry as speed limits; legal consequences are generally context specific. During the crisis, there were legitimate debates over the legality of varying issues, such as whether a blockade qualified as a use of force, according to Chayes. He contends that international law can be indeterminate, often lacking a definitive line that specifies whether an action is illegal.

Next, the book evaluates Executive Committee members, noting that they relied on legal arguments to different degrees in shaping their policy calculations. Some members, such as Deputy Legal Adviser of the Department of State Leonard C. Meeker and U.S. Ambassador to the Soviet Union Llewellyn Thompson, placed a high priority on international law and assuring that decisions complied with these legal standards. The purpose of distinguishing the committee members is not to rate them on a scale of “law-abiding” to “Machiavellian.” Instead the analysis demonstrates that legal considerations favor one or more players in a game, and individuals such as Meeker and Thompson highlighted legal arguments, such as the need for the U.S. to act multilaterally with the O.A.S.  Political scientist Quincy Wright, a skeptic of the role of law in the missile crisis, argued that because the United States used a quarantine, which was arguably an illegal threat or use of force under Article 2(4), law was not a constraint.  However, Chayes disagrees, noting that the Executive Committee’s choice was between an air strike or ground invasion or quarantine—not milder alternatives. Chayes argues that, although the quarantine was possibly unlawful, the fact that the U.S. chose the least legally offensive policy option was evidence that international law acted as a constraint. Although Attorney General Robert Kennedy stated that the choice to avoid an invasion was a “moral” decision, Chayes contends: “legal norm and moral precept are two expressions of the same deep human imperative.” Thus, it would be morally wrong to choose an illegal invasion when a less legally offensive quarantine was available. Chayes, in short, concludes that Article 2(4) was a significant constraining factor in the decision to use a blockade instead of an air strike or ground invasion.

Chayes points to skeptics of the importance of international law in the crisis, such as political scientist William Gerberding, who argue that lawyers are essentially brought in only after policy decisions have been made to provide a legal justification for the actions. According to Chayes, however, the law functioned as a justification for policy-decisions during the crisis.  Legal justification, he argues, shows that a decision is reconcilable with accepted norms and helps legitimize an action both domestically and abroad.  Chayes then describes how the U.S. specifically used international law to justify its actions during the missile crisis.

For example, Chayes shows how the U.S. adopted different strategies to help establish the legality of the quarantine. Specifically, the Soviet’s first response to the quarantine was to denounce it as a breach of international law.  However, on the same day, the O.A.S. unanimously authorized the quarantine. Three types of considerations affected the U.S. decision to seek O.A.S. authorization.  First, a basic purpose for preferring collective action through the O.A.S. to U.S. unilateral action was that the policy decisions were less biased and more balanced. Yet, balance can be difficult to achieve when a world power is driving the policy decision. Chayes notes that during the crisis, the O.A.S. could have been perceived as controlled by the U.S.  However, the unanimity of the O.A.S. reflected that the entirety of the Americas perceived a sense of danger.  This provided the U.S. with justification that the quarantine was a collective action.  Second, the U.S. needed to distinguish O.A.S. actions against the Soviets and Cuba from other multinational groups using force, such as the Arab League in Israel or the Warsaw Pact in Hungary. The U.S. justified the use of force on the ground that Cuba was a member of the O.A.S.  Under Article 51 of the UN Charter, defense alliances such as NATO may only use force when a coalition member has been attacked.  However, under Chapter VIII of the UN Charter, Chayes opines that regional arrangements such as the O.A.S. have broad authority to ensure regional peace. Finally, the quarantine operated directly against the Soviet Union, which had not assented to O.A.S. jurisdiction.  This raised the issue whether all regional arrangements must act within the scope of Article 53 of the UN Charter, which states that the Security Council can utilize regional arrangements and that regional arrangements should not take enforcement actions without Security Council approval. Chayes does not directly resolve this final issue, but contends that whether or not the O.A.S. must act within the scope of that understanding of the UN Charter, the U.S. used the authorization of the O.A.S. as a legal justification. Whether the Executive Committee “thought the United States ought to obey the law, the men involved knew it would be desirable to offer a strong legal justification for their action.”

Chayes also examines the important roles that the O.A.S. and the U.N. played during the missile crisis.  He notes that international organizations are both products and sources of international law and argues that several aspects of these international organizations made them important legal entities during the missile crisis.  First, they are formal, multilateral, public institutions that generate legal norms simply by acting.  Chayes compares the range of ally support for the U.S. quarantine decision to the official authorization by the O.A.S.  He concludes that the latter functioned as a stronger legitimizing force due to its formality. Second, these institutions are not sovereigns but political organizations. The delegates of organizations also act independently—to an extent—of the governments that they represent. Lastly, even if organization resolutions are not binding nor have compliance mechanisms, states have to include them in their policymaking calculus. Chayes contends that the existence of international organizations altered the political conditions and legal options for U.S. decision-makers.

Chayes also considers the role of the U.N. during the crisis. The Executive Committee had to navigate the Security Council, General Assembly, and the Secretary-General to prevent a U.N. directive ordering the U.S. to stand still or stand down.  The U.S. had two options for engaging with the Security Council: (i) wait for the Soviets to challenge the quarantine as an unlawful use of force or (ii) affirmatively bring the U.S. argument that a blockade was necessary. That said, the prospect of either claim succeeding inside the Security Council was nil due to the U.S. and Soviets’ ability to veto any resolution. The General Assembly was also unable to act due to largely political reasons. As a result, eventually the Secretary-General acted, calling on the Soviets to suspend all arms shipments to Cuba and the U.S. to halt the quarantine.

The U.N. also provided a forum for public debate. Chayes believes this forum was a significant factor “in generating support for and neutralizing opposition to the United States.”  Chayes further notes that the power structure of the U.N. contributed to the U.S. legal approach.  The legal approach to the U.N. did not focus on analysis of terms in the U.N. Charter. Instead its legal analysis focused on which entity had the power to make political decisions to interpret the terms of the Charter.  The U.S. was concerned with the relationships between a state and an international organization and when and how one preempts, displaces, or supersedes the other.  Chayes submits that if international law and international organizations are to regulate governmental behavior, “[they] must do so not in the form of rules of conduct, but by means of constitutional architecture.”

In the final analysis, Chayes contends that his study of decision-making throughout the missile crisis reveals several points about how international law and political judgment interact.  First, law is not self-activating.   This means that legal analysis does not enter deliberations on its own. Instead, legal analysis must be invited into the decision-making process.  Furthermore, while often unable to provide black and white determinations, the analysis of the law influences which alternative is chosen.  In this way, law acts as a persuasive force among many other considerations.  Chayes also argues that the significance of legal justification in decision-making is greater and more complex than is often appreciated. Legal justification is an important element that helps hold governments accountable to the public.  Finally, policymakers must take into account the relevant international organizations that will influence their decisions—especially as international organizations grow in power.  International organizations are legal institutions that shape public justification and can themselves alter legal settings.  Chayes concludes The Cuban Missile Crisis with an endorsement of the importance of legal justification and its ability to make governments more accountable.

 

Harold Hongju Koh on Chayes’ The Cuban Missile Crisis:

Fifty years after the events, this insider’s account by a former Legal Adviser and Harvard Law Professor remains the most gripping account of exactly how government lawyers and policymakers can interact to produce better options during international crises.  During thirteen chilling days, with nuclear war looming, Chayes and his fellow government lawyers coaxed policymakers past their initial taste for an arid policy option set of “ground invasion, air attack or do nothing,” to an innovative fourth option that worked: a “quarantine,” supported by OAS resolution, with Track Two diplomacy regarding Jupiter missiles in Turkey.

Jennifer Daskal on Chayes’ The Cuban Missile Crisis:

Drawing on his experience as Legal Adviser to the Secretary of State during the Cuban Missile Crisis, Abram Chayes offers a remarkably incisive and nuanced analysis of the ways in which international law “affected the decisions and acts of men who saw themselves as grappling with issues of national survival.”  In classic Chayes form, he rails against the anthropomorphic fallacy of a monolithic government client turning to the omniscient lawyer for a yes or no vote as to the legality of a particular proposed action.  Rather, he describes a complicated interplay between law, policy, and international structure, in which multiple players with varied institutional agendas and normative proclivities have a voice, and law does not provide a decisive answer, but helps differentiate “infinite shades of grey”.

In a provocative passage, Chayes disclaims the ability of the law to establish codes of conduct or provide the “right” answer – instead describing law’s primary achievement as one of institutional design.  That said, he also highlights a requirement of public justification – justifications that more often that not refer to both legal processes and standards – as providing a mechanism for normative legal considerations to become incorporated in the initial decision-making process.  It is an insight that disclaims secret decision-making, and highlights, yet again, the importance of transparency.

Of particular salience to debates today, Chayes describes the conscious and repeated rejection of any reliance on self-defense as a response to the build-up of Soviet missiles on Cuban soil.   He highlights a concern about precedent-setting – not because anyone believed the U.S. interpretation would be binding in a future case, but because of a recognition that the “normative atmosphere in which states act, though tenuous and impalpable perhaps” matters, and that U.S. adoption of such an expansive notion of anticipatory self-defense would “weaken those normative checks.” He further warns that an expanded notion of anticipatory self-defense to cover deployments absent the likelihood of an imminent attack would “trivialize” the whole effort at legal justification – making the use of force to any perceived threat to a nation’s vital interests permissible, without any discernible limits or objective standard against which the use of force could be judged.

The book is both engaging and illuminating.  It is a must-read for anyone interested in international law, institutional design, diplomacy and the relationship among them – as well as anyone interested in the historical, substantive limits on the use of force in self-defense.