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The Cuban Quarantine

Published online by Cambridge University Press:  28 March 2017

Quincy Wright
Quincy Wright*
Affiliation:
Of the Board of Editors
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Extract

Many problems of international law have arisen in connection with United States-Cuban relations since the establishment of the Castro regime in 1959, especially in regard to the following incidents:

1. Castro's confiscation of American property in Cuba in 1960, said to be in reprisal against the United States reduction of the Cuban sugar quota, was asserted by an American court to have been a breach of international law, and, following controversy over the number of persons in the U. S. Embassy in Havana, the United States broke diplomatic relations on January 3, 1962.

Type
Research Article
Information
American Journal of International Law , Volume 57 , Issue 3 , July 1963 , pp. 546 - 565
Copyright
Copyright © American Society of International Law 1963

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References

1 Banco National v. Sabbatino, 307 F. 2d 845 (1962); 56 A.J.I.L. 1085 (1962). A Cuban Association has been formed to press claims for an estimated $1 billion of confiscated investments of American citizens and corporations in Cuba. New York Times,Nov. 11, 1962, p. 34.

2 44 Dept. of State Bulletin 103 (1961).

3 U. S. Senate, Hearings before the Committee on Foreign Eelations and the Committee on Armed Services, 87th Cong., 2nd Sess., Situation in Cuba, Sept. 17, 1962, pp. 99, 101, 103; 56 A.J.I.L. 610, 612 (1962).

4 Quincy Wright, ' ' Intervention and Cuba in 1961,'' 1961 Proceedings, American Society of International Law 2 f.; 9 TJ.N. Eeview 14 ff. (April, 1962); note 49 below.It has been held that Sec. 960 of the U. 8. Criminal Code (Sec. 5 of Neutrality Act of 1794), which punishes "Whoever within the United States knowingly begins or sets on foot or provides or prepares a means for, or furnishes money for, any military expedition or enterprise to be carried on from thence against the territory or dominions of any foreign . . . state . . . or people with whom the United States is at peace," applies, even if the final organization of the expedition took place outside U. S. territory (Wiborg v. U. S. (1896), 163 U. S. 632, 653), and even if initiated with knowl-edge and approval of the President (XJ. S. v. Smith (1806), Ted. Case No. 16,342, pp.1229, 1243); U.8.C.A. Tit. 18, See. 960, pp. 94, 95; 6 Moore's Digest 908, 912, 918.

5 Under Secretary of State George Ball, Oct. 3, 1962, 47 Dept. of State Bulletin 592 ff. (1962).

6 Note 49 below.

7 In a report to the New York Times on Oct. 24, 1962, John W. Penney said that U. S. surveillance of Cuba was being carried on by Navy patrol planes photographing Soviet ships headed for Cuba and by military planes photographing Cuban territory obliquely from altitudes of around 40,000 feet and beyond the territorial boundaries of Cuba. "With the modern aerial cameras," he said, " i t is no longer necessary to fly over the territory to be photographed. Using the technique of peripheral photography, often employed against the Soviet Union, the camera could easily take pictures covering the 80-mile width of Cuba." However, on Nov. 1, it was reported that Major Anderson's plane was downed by a missile while flying over Cuba, and on Nov. 16, Castro was reported to have notified the United Nations that he would shoot down over-flying American planes. The United States was reported to have intensified its aerial reconnaissance of Cuba early in October and to have said it would take "appropriate measures'' to defend American planes, ' ' would defend its aerial surveillance flights over Cuba if necessary, and would continue them until the Castro government agrees to better means of guarding against an offensive military build-up there." It considered such flights authorized by the Organization of American States (O.A.S.) in meetings in Washington on Oct. 3 and 23 (47 Dept. of State Bulletin 599, 723 (1962); New York Times, Nov. 17, 1962, p. 1). Khrushchev's complaint that U. S. planes had flown over Soviet territory on Aug. 30 and Oct. 28, 1962, brought " regrets " from President Kennedy, who said they were "unintentional," thus indicating his recognition that deliberate overflights were, in principle, illegal (47 Dept. of State Bulletin 449, 744, 746 (1962)). For general discussion of the law concerning aerial surveillance, see Quincy Wright, "Legal Aspects of the U-2 Incident," 54 A.J.I.L. 836 ff. (1960), and of the law concerning espionage, idem, "Espionage and the Doctrine of Non-intervention in International Affairs," in E. J. Stanger (ed.), Essays on Espionage and International Affairs 3 (Columbus, Ohio State University Press, 1962).

8 9 U. N. Review 1, 6 (Nov., 1962). President Kennedy expressed concern about the Soviet build-up of armament in Cuba on Sept. 4 and 13, and in a telecast on Oct. 22 he declared that offensive weapons had been installed, a quarantine would be imposed, and the situation would be placed before the O. A. S. and the U. N. 47 Dept. of State Bulletin 450, 481, 715 (1962).

9 9 U.N . Eeview 1, 6 (Nov., 1962).

10 Arts. 6, 8, 17. Senate Hearings 92 (cited note 3 above). The Charter of the O. A. S. (Bogot4, 1948) affirmed these principles. Ibid. 107, 109.

11 Ibid . 98; 56 A.J.I.L. 607 (1962); 46 Dept. of State Bulletin 279 (1962).

12 47 ibid. 600 (1962).

13 See note 17 below.

14 Manley 0. Hudson, in International Regulation of the Trade in and Manufacture of Arms and Ammunition (Nye Committee), 73rd Cong., 2nd Sess., Washington, 1935, p. 1 ffl; Quincy Wright, A Study of War 1175 (Chicago, 1942).

15 Quincy Wright, Control of American Foreign Relations 294 (New York, 1922).

16 As the British contended and the United States agreed in the Caroline incident of 1840. 2 Moore, International Law Digest 412.

17 Note 8 above. The Soviet-Cuban agreement of Sept. 2, 1962, was printed in the New York Times, Sept. 3, and, together with the Soviet explanation of Sept. 11, in Foreign Policy Association, Headline Series, “ T h e Cuban Crisis, A Documentary Record,” pp. 3, 5 (Jan., 1963, No. 157).

18 “ If the nations of this hemisphere should fail to meet their commitments against outside Communist penetration—then I want it clearly understood that this government will not hesitate in meeting its primary obligations, which are to the security of our Nation.” President Kennedy, to American Society of Newspaper Editors, April 20, 1961, 44 Dept. of State Bulletin 659 (1961). See also Wright, loc. cit. note 4 above,p. 17.

19 See note 5 above.

20 47 Dept. of State Bulletin 281 (1962); Senate Hearings, p. 101. A Joint Resolution of Sept. 26, 1962, passed with one dissenting vote in the Senate and seven in the House, declared: “That the United States is determined—

“ ( a ) to prevent by whatever means may be necessary, including the use of arms, the Marxist-Leninist regime in Cuba from extending, by force or the threat of force, its aggressive or subversive activities to any part of this hemisphere;

“ (b) to prevent in Cuba the creation or use of an externally supported military capability endangering the security of the United States; and

“ (c) to work with the Organization of American States and with freedom-loving Cubans to support the aspirations of the Cuban people for self-determination.” 47 Dept. of State Bulletin 597 (1962).

Secretary of State Busk believed such a resolution desirable if non-partisan. Ibid. and Senate Hearings, p. 30. The President cited “the Constitution as endorsed by the resolution” as authority for the quarantine, necessary “ in the defense of our own security and of the entire Western Hemisphere” because “this secret, swift, and extraordinary build-up of Communist missiles—in an area well known to have a special and historical relationship to the United States and the nations of the Western Hemisphere, in violation of Soviet assurances, and in defiance of American and hemispheric policy —this sudden, clandestine decision to station strategic weapons for the first time outside of Soviet soil—is a deliberately provocative and unjustified change in the status quo which cannot be accepted by this country if our courage and our commitments are ever to be trusted again by either friend or foe.” 47 Dept. of State Bulletin 716 (1962).

21 Walter Lippmann pointed out the similarity between the U. S. missile bases in Turkey and the Soviet bases in Cuba and suggested a trade (N. Y. Herald Tribune, Oct. 25, 1962), as did Khrushchev in his note of Oct. 27, 1962 (47 Dept. of State Bulletin 742 (1962)). President Kennedy replied that the Cuban situation must be solved before considering “proposals concerning the security of nations outside the hemisphere” (ibid.), and in Ms subsequent note, proposing an agreement for Soviet removal of missiles from Cuba (see note 60 below), he said: “The effect of such a settlement in easing world tension would enable us to work toward a more general arrangement regarding other armaments.” He felt sure a linking of these problems with the Cuban situation would prolong discussions and intensify the Cuban crisis and its risks to peace (ibid. 743). In a press interview on Sept. 29, Secretary of State Busk had replied to a suggestion for a deal on U. S. overseas bases and Soviet Cuban bases: “This is not a negotiable point … You cannot support freedom in one place by surrendering freedom in another.” 47 Dept. of State Bulletin 598 (1962). In his statement before the U. N. Security Council on Oct. 23, 1962, Ambassador Adlai Stevenson said that the argument equating Soviet bases in Cuba with NATO bases near the Soviet Union was invalid because of the “sudden and drastic” character of the Soviet action imperiling “the security of all mankind,” and because the purposes were different. The NATO bases and missiles were for defense of NATO states threatened by Soviet missiles, the Cuban bases intruded a nuclear threat into an area now free of it and protected by a well-known international system of the Western Hemisphere.Ibid.731.

22 Frank Aiken, Irish representative in the U. N. Security Council, Oct. 24, 1962, 9 IT. N. Review 16 (Nov., 1962); Hanson W. Baldwin, “When are 'defensive’ arms oo offensive'?” (New York Times, Oct. 25, 1962); Quincy Wright, A Study of War 793 ff., 805 ff.; Marion Boggs, Attempts to Define and Limit Aggressive Armament in Diplomacy and Strategy, University of Missouri Studies, Vol. 6, p. 43 (Columbia,Mo., 1941). As quoted by President Kennedy on Oct. 22 and by Ambassador Stevenson in the Security Council on Oct. 23, 1962, the Soviet and Cuban statements on Sept. 15, Oct. 8, and Oct. 18, referred to by the President as “ fal se “ and “deliberate deeeit,” asserted that the “sole purpose” of the weapons was to “contribute to the defense capabilities of Cuba” (see also note 17 above), though the Soviet statement that they “were designed exclusively for defensive purposes” suggests that an inherently defensive character of the weapons was also implied, and the Cuban reference to “inevitable weapons which we do not wish to employ'’ suggests that they had an inherently offensive character. 47 Dept. of State Bulletin 716, 732, 734 (1962).

23 While the U. N. Charter calls for publicity of treaties (Art. 102), as did the League of Nations Covenant, strategic arrangements for implementing alliances have not in practice been published. Harvard Eesearch in International Law, Draft Convention on Treaties, Art. 17, 29 A.J.I.L. Supp. 913 (1935). Secrecy undoubtedly militates against the growth of confidence and agreement to disarm, as noted by Secretary of State Rusk on Nov. 21, 1962. 47 Dept. of State Bulletin 871 (1962).

24 The admitted deception by the United States in the U-2 incident was a factor in breaking up the Paris Summit Conference in May, 1960. Quincy Wright, “Legal Aspects of the U-2 Incident,” 54 A.J.I.L. 836 ff. (1960). An editorial on “ T h e Ethics of Lying” in World View, published by the Council on Religion and International Affairs, January, 1963, referred to lying, not by the Soviet Union, but by the United States in its “management of news” during the Cuban crisis. The Assistant Secretary of Defense had replied to a newsman's request for explanation of “ t h e ethical bases for the government's self-asserted right to lie to the people,” that the Government had an inherent right “ t o lie to save itself” and that the people would judge at the polls whether a particular falsehood was right or wrong. The editorial commented that an “adequate response to the problem” is not “easy or simple.”

25 Note 22 above.

26 In a press conference on Nov. 20, 1962, President Kennedy said: “ The United States has the means as a sovereign power to defend itself and of course, exercises that power: has in the past and would in the future. We would hope to exercise it in a way consistent with our treaty obligations, including the United Nations Charter. But we, of course, keep to ourselves, and hold to ourselves, under the United States Constitution and under the laws of international law, the right to defend our security on our own if necessary, though we … hope to always move in concert with our allies but on our own if that situation was necessary to protect our survival or integrity or other vital interest.” New York Times, Nov. 21, 1962, p. 10. See also Senator Wayne Morse, Senate Hearings, p. 20.

27 Senate Hearings, p. 34. Former President Truman, in a press statement on Feb.24, 1963, supported intervention in Cuba on grounds of the Monroe Doctrine and the ” P i a t t Amendment,” though the Treaty of 1903 (4 A.J.I.L. Supp. 177 (1910)) permitting U. S. intervention as provided by this Amendment to the Army Appropriation Act of 1901, was terminated by a new treaty in 1934. 28 A.J.I.L. Supp. 97 (1934);

Samuel F. Bemis, A Diplomatic History of the United States 504-507 (3rd ed., New York, 1950).

28 See also note 21 above. Ambassador Stevenson said in the U. N. Security Council:

“The principle of the territorial integrity of the Western Hemisphere has been woven into the history, the life, and the thought of all the people of the Americas. In striking at that principle the Soviet Union is striking at the strongest and most enduring strain in the policy of this hemisphere.” 47 Dept. of State Bulletin 731 (1962). See also President Kennedy's statement, note 26 above. The value of the Monroe Doctrine depended in large measure on the natural defense of the Americas by oceanic distances and has greatly declined with the development of jet planes and intercontinental missiles.

29 Castro had initiated invasions of Panama, Nicaragua, the Dominican Republic and Haiti in 1959. 44 Dept. of State Bulletin 107 (1961).

30 Senator Keating of New York deduced Soviet aggressive intent from the aggressive capability of the missiles, the possibility of future use of the Cuban bases, and the history of Soviet aggressions and subversive interventions in the past. Senate Hearings,p. 7.

31 47 Dept, of State Bulletin 715 ff. (1962).

32 This argument has been implied, rather than expressed, from the use of the term “quarantine,” not a term of art in international law, but used by President Roosevelt, Franklin D. Google Scholarin his Chicago Bridge speech in 1937 as a possible response to aggression after Japan had invaded China. By using this word the Government apparently hoped to avoid the legal implications of blockade and to emphasize the non-warlike intent of its action. New York Times, Oct. 24, 1962.

33 This argument was made to justify the Anglo-French invasion of Egypt in 1956. See notes 44 and 65 below.

34 This is the main argument relied on by the State Department. See Legal Adviser Abram Chayes, ‘ ‘ The Legal Case for TJ. S. Action on Cuba, ’ ’ 47 Dept, of State Bulletin 763 (1962); idem, “Law and the Quarantine of Cuba,” 41 Foreign Affairs 550, 554 (1963), reprinted in Congressional Record, May 2, 1963, A2732. See also Arthur Larson, former head of the U. S. Information Agency, New York Times, Nov. 26, 1962, and note 53 below.

35 The Legal Adviser notes that President Kennedy did not invoke this argument and the O. A. S. did not act under Art. 3 of the Rio Pact dealing with “armed attack,” but under Art. 6 dealing with other threats to the peace. Loc. cit. 764. See note 53 below.

36 Naulilaa Case, Portugal v. Germany, Arbitration, July 31, 1928; Herbert Briggs, The Law of Nations 951 (2nd ed., New York, 1952); Hindmarsh, Force in Peace 58 (1933).

37 2 Moore, International Law Digest 946; Q. Wright, Control of American Foreign Relations 281 (New York, 1922).

38 1903 TJ. S. Foreign Relations 420 ff., 452 ff.; League of Nations, Memorandum on Pacific Blockades (Doc. A.14. 1927. v. 14, p. 89); Briggs, op. cit. 959.

39 This development induced President Theodore Roosevelt to demand that the Venezuelan issue be arbitrated in order to avoid a war and possible invasion of Venezuela in violation of the Monroe Doctrine, and this was done. The Venezuelan Preferential Case, Permanent Court of Arbitration, The Hague, 1904, Scott, Hague Court Reports 56; Briggs, op. cit. 953, 959. For detailed study of pacific blockades see Hogan, Pacific Blockade (1908); League of Nations Memorandum, note 38 above.

40 U. N. Charter, Art. 2, pars. 3, 4.

41 27 Fed. Reg. 10401; 47 Dept, of State Bulletin 717 (1962); 57 A.J.I.L. 512 (1963). On Sept. 17, 1962, before the quarantine declaration, Senator Wayne Morse expressed grave concern at such action on grounds of international law. Senate Hearings, cited note 3 above, p. 20.

42 The French jurist, Charles Rousseau, identified the measure with “pacific blockade,” which term, he writes, manifests a “contradiction between substance and epithet,” and, although used in the “interventionist policies” of the great Powers in the 19th century, is inconsistent with principles now accepted, as indicated by the International Court of Justice in condemning the British “policy of force” against Albania in the Corfu Channel ease and by the United States in condemning the Franco- British action at Suez in 1956. “Le blocus Américain de Cuba et le droit international,” Le Monde, Oct. 24, 1962.André Fontaine comments that, instead of utilizing secret diplomacy, Platonic protests, or U. N. procedures, the United States “tranquilly violated the most elementary rules of international law by imposing, in time of peace, a control of traffic to Cuba and demanding that Russia withdraw its missiles under the threat of acts of war.” “Les Américains séduits par la 'realpolitik,” ibid., Dec. 6, 1962. Raymond Aron writes that the real basis of the quarantine is “the traditional and cynical prerogative of the major powers to impose limits on the action of the lesser powers … There is no article in the Charter authorizing a nation to be sole judge of which weapons in its opinion, constitute a 'threat of force,” but in the world of today “the practical application of international law is only distantly related to the theory of international law.” So he congratulates the United States that after one President, in the Suez crisis, “had placed considerations of international law above the ties of friendship,” another President has “placed their security above the law.” “International Law—Reality and Fiction,” New Republic, Dec. 1, 1962, p. 13.Charles Burton Marshall, formerly in the State Department, writes: “Blockade is a belligerent prerogative. If parties affected choose not to acknowledge its belligerent character it gets by as a peaceable act,” United States action was probably not countenanced by the Charter, but “it is beyond law to provide a signal for a transgressor against one's vital interests” and “in a match of one-upmanship, the adversary saw himself as one-up. This had to be redressed.” “Afterthoughts on the Cuban Blockade,” ibid., Nov. 10, 1962, pp. 18 ff. Former President of Mexico, Lazaro Cardenas, in a letter of Oct. 27, 1962, to the New York Times, writes: “A dangerous situation was created by the great power of the North in decreeing illegal unilateral blockade constituting a criminal threat to the liberty and sovereignty of Cuba and other nations.” See note 66 below.

43 See note 47 below.

44 Julius Stone seeks to justify acts of war without such purposes as measures of reprisal (Aggression and World Order (London, 1958); 39 Foreign Affairs 553 (July, 1961)). See comments by Quincy Wright, The Role of International Law in the Prevention of War 6, 48 (Manchester University Press and Oceana Publications, 1961), and Ian Brownlie, “Recent Appraisals of Legal Regulation of the Use of Force,” 8 Int. and Comp. Law Q. 707 ff. (1959). Philip Jessup concludes that hostile measures short of war, traditionally regarded as lawful remedial means of self-help, have ceased to be lawful if they involve the threat or use of force (A Modern Law of Nations 157 ff.). See also Briggs, op. cit. 960 ff.

45 U. N. Charter, Art. 1, par. 1.

46 47 Dept, of State Bulletin 722 (Nov. 12, 1962). Uruguay abstained, but cast an affirmative vote on the following day. Brazil, Mexico and Bolivia abstained in regard to the authorization to use “armed force ... to prevent” the missiles in Cuba from becoming an “active threat” to the peace of the continent, because they thought this might support invasion of Cuba. New York Times, Oct. 24, 1962, p. 23.

47 A League of Nations Committee held during the Ethiopian crisis of 1935 that a Member State could apply economic sanctions against Italy in accord with Art. 16 of the Covenant, even though contrary to commercial treaties, because Italy was bound by the Covenant, which abrogated inconsistent obligations among its Members (Art. 20), and by sanctions in accord with it. See 30 A.J.I.L. Supp. 49 (1936). See also Robert Layton, “The Effect of Measures Short of War on Treaties,” 3 University of Chicago Law Review 105 (Autumn, 1962).

48 Harvard Research in International Law, Draft Convention on Treaties, Art. 18, 29 A.J.I.L. Supp. 918 (1935).

49 The U. N. Security Council on Feb. 27, 1962, refused to put on its agenda a Cuban charge that the O. A. S. violated the Charter in excluding the Cuban Government from the O. A. S. and initiating economic enforcement measures; and on March 23, 1962, it rejected a Cuban request for an advisory opinion of the Court on the subject. The General Assembly took no action on the Cuban complaint in August, 1961, alleging United States aggression, and on Feb. 20, 1962, it rejected a Mongolian proposal recalling principles of the Charter in this context. 9 U. N. Review 1, 13 (March, 1962); ibid. 1, 14 (April, 1962).

50 The recommendations were approved by more than a two-thirds vote in the Consultative Organ, so constructive consent of Cuba might be assumed, even though Cuba has not been represented in that Organ since January, 1962.

51 Report to the President on the Results of the San Francisco Conference, by the Secretary of State, Dept, of State, June 26, 1945, pp. 103, 107. The exception in Art. 53 of “enforcement action” against “enemy states” in World War II has no applicability to either Cuba or the Soviet Union, who were “allies” in that war.

52 Advisory Opinion on Certain Expenses of the United Nations, [1962] I. C. J. Rep. 151; 56 A.J.I.L. 1062 (1962).

53 The United States has not used this argument officially (see note 35 above), but it was advanced by Arthur Larson (ibid.), who cites D. W. Bowett, Self-Defence in International Law (1958), and invoked a reply from Joseph H. Crown (New York Times, Nov. 26, 1962). Eustace Seligman finds the quarantine justified on grounds of self-defense, but not by the O.A.S. resolution. “The Legality of U. S. Quarantine Action Under the United Nations Charter,” 49 A.B.A.J. 142 (1963). See note 56 below.

54 Philip Jessup, A Modern Law of Nations 166 (New York, Macmillan, 1948). After an exhaustive discussion of “The Use of Force in Self-Defence,” Ian Brownlie concludes that “the beginning of an armed attack is a condition precedent for resort to force in self-defence.” 37 Brit. Yr. Bk. of Int. Law 266 (1962). See also notes 16 and 44 above.

55 47 Dept, of State Bulletin 724 (1962); 9 XJ. N. Review 6 ff. (Nov., 1962).

56 Op. cit. 167. The present writer gave some support to the broader conception of armed attack in The Role of International Law in the Prevention of War 60 (1961).

57 47 Dept, of State Bulletin 718 (1962).

58 Although no force was actually used, the test of legality should be applied to the President's Proclamation, its intent as declared by the President's statements, and the implementing instruction to the Department of Defense. Authoritative legislation and declarations by governments constitute “acts of state” which can properly be protested by states whose legal rights would be impaired by their execution prior to such execution. Thus, before the Canal was completed, Great Britain protested the discriminatory Panama Canal Tolls Act of 1911 as contrary to its rights under the Hay-Pauncefote Treaty, and, in response, President Wilson urged Congress to repeal the discriminatory provision. Diplomatic History of the Panama Canal, 63rd Cong., 2nd Sess., Sen. Doc. 474, pp. 82-83; President Wilson's Message to Congress, March 5, 1914, 51 Cong. Rec. 431; Quincy Wright, Control of American Foreign Relations 32, 163. The use of force was clearly contemplated, but only against merchant vessels, not against the public forces or territory of another state, consequently “acts of war” were neither used nor contemplated as charged by Cuba, though not by the Soviet Union, in the Security Council on Oct. 23, 1962 (note 9 above). See Quincy Wright, “When Does War Exist?”, 26 A.J.I.L. 362 ff. (1932).

59 It would not constitute ‘ ‘ aggression, ’ ’ if this term is defined in the legal sense as an illegal use of armed force in international relations, or more precisely as “a resort to armed force by a state when such resort has been duly determined, by a means which that state is bound to accept, to constitute a violation of an obligation.” Harvard Research, Draft Convention on Rights and Duties of States in Case of Aggression, 33 A.J.I.L. Supp. 847 (1939). Considering the obligations and permissions for Members concerning “force” in the U. N. Charter, aggression can lie defined “as the use or threat to use armed force in international relations except for purposes of individual or collective self-defense, under authority of the United Nations, or on invitation of the state against which the force is to be used.” Wright, “Intervention and Cuba in 1961,” cited note 4 above, p. 6. This definition may be questioned on the ground that “aggression” should not be found unless there have been actual “acts of war,” thus excluding “threats” and lesser uses of armed force. Wright, “The Prevention of Aggression,” 50 A.J.I.L. 526 (1956); The Role of International Law in the Prevention of War 59 ff.; A Study of War 891, 1340.

60 Because of Castro's refusal to allow U. N. inspection within Cuba, in spite of the efforts to persuade him by U Thant, the U. N. Secretary General, and Mikoyan, the Soviet Minister, Secretary of State Rusk told the Senate Foreign Relations Committee on Jan. 11, 1963, that the “no-invasion commitment no longer exists,” but the U. S. is bound to get approval of the O. A. S. before any such action. The agreement stated in President Kennedy's note of Oct. 27, 1962, was in these terms:

“1) You would agree to remove these weapons systems from Cuba under appropriate United Nations observation and supervision; and undertake, with suitable safeguards, to halt the further introduction of such weapons systems into Cuba.

“2) We, on our part, would agree—upon the establishment of adequate arrangements through the United Nations to ensure the carrying out and continuation of these commitments—(a) to remove promptly the quarantine measures now in effect and (b) to give assurances against an invasion of Cuba. I am confident that other nations of the Western Hemisphere would be prepared to do likewise.”

In his note of Oct. 28, the President said: “I consider my letter to you of October twenty-seventh and your reply of today as firm undertakings on the part of both our governments which should be promptly carried out.” 47 Dept, of State Bulletin 743746 (1962).

61 Ibid. 918, and the President's statement at a news conference, Nov. 20, 1962, ibid. 874. A U. S. Senate Subcommittee Report on May 9, 1963, found that Soviet and Cuban forces on the island are “quite powerful defensively and could oppose severe opposition to any attack,” and are “capable of suppressing any internal rebellion or revolt mounted without external support,” but that “the intelligence chiefs [of the TJ. S.] do not believe that Communist forces in Cuba now present a direct aggressive military threat to the United States or Latin America.” The Subcommittee thought that evidence was not “conclusive” on this, but was “overwhelming” that Castro was “supporting, spurring, aiding and abetting Communist revolutionary and subversive movements throughout the Western Hemisphere and that such activities present a grave and ominous threat to the peace and security of the Americas.” New York Times, May 10, 1963, p. 2.

62 Secretary of State Rusk's interview, Nov. 28, 1962, 47 Dept, of State Bulletin 909 ff., and detailed summary of procedures during the crisis, New York Times, Nov. 3, 1962, pp. 1, 6.

63 See note 59 above. Covey Oliver doubts whether the resolution of the crisis was either an unqualified triumph of law or an example of “ ‘power politics' determinism.” 57 A.J.I.L. 375 (1963).

64 Both President Kennedy and Chairman Khrushchev manifested this awareness in their exchanges of Oct. 27 and 28, 1962 (note 60 above), and it has been reported that the United States has removed missiles from Turkey and Italy.

65 The writer discussed the legal aspects of these incidents in 51 A.J.I.L. 257 (1957).

66 See note 42 above, and debate in the U. N. Security Council, Oct. 23, 1962, especially remarks of the Irish, United Arab Republic and Ghanaian representatives. The criticisms by the Cuban, Soviet and Rumanian representatives were extreme. The vigorous defense of the United States by its representative, Adlai Stevenson, was supported by representatives of the O. A. S. and NATO countries. 9 U. N. Review 6 ff., 16, 17 ff. (Nov., 1962).