{"id":10376,"date":"2026-09-25T08:12:06","date_gmt":"2026-09-25T12:12:06","guid":{"rendered":"https:\/\/latinamericasecurityreport.com\/?p=10376"},"modified":"2026-09-25T08:12:06","modified_gmt":"2026-09-25T12:12:06","slug":"international-law-in-the-cuban-missile-crisis","status":"publish","type":"post","link":"https:\/\/latinamericasecurityreport.com\/?p=10376","title":{"rendered":"International Law in the Cuban Missile Crisis"},"content":{"rendered":"

Although important for justifying the blockade of Cuba, international law did not meaningfully constrain the Kennedy administration during the crisis.<\/strong><\/em><\/p>\n

October 1962 Executive Committee of the National Security Council meeting, White House, Cabinet Room. (Cecil Stoughton\/White House, https:\/\/tinyurl.com\/bdd3vr7t; Public Domain, https:\/\/creativecommons.org\/public-domain\/)<\/figcaption><\/figure>\n
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Article 2(4) of the United Nations Charter<\/a>\u2014a crucial element of the post-World War II international legal order\u2014prohibits the use of force against other states unless the UN Security Council authorizes it or there are grounds for self-defense against an actual or imminent armed attack. In light of current events, many scholars<\/a> are coming to the conclusion<\/a> that this foundational norm is on the brink of collapse given, among other instances, Russia\u2019s invasion of Ukraine and the United States\u2019 recent interventions in Venezuela and Iran. What is sometimes lost in the various preemptive autopsies of this prohibition is that it has been challenged continually since its inception, including during the Cold War<\/a>, the 2003 invasion of Iraq<\/a>, and other uses of force under questionable or novel legal grounds by different states.<\/p>\n

To chart the future course for Article 2(4), it\u2019s crucial to distinguish myth from the reality of its operation in practice. The Cuban missile crisis\u2014the most dangerous nuclear standoff of the Cold War\u2014is an apt case study to shed light on what international law can and cannot do in regulating recourse to force by states on its own. Although the crisis  is often touted as a  gold standard<\/a> of what international law can accomplish<\/a> in high-stakes contexts, the Kennedy administration\u2019s decision-making, in fact, highlighted the limited value of Article 2(4) in constraining state conduct on its own. In short, the crisis showed that international law was used to justify and legitimize policy choices but did not exert a meaningful constraining effect on the Kennedy administration.<\/p>\n

The Kennedy Administration\u2019s Deliberations<\/strong><\/p>\n

On the morning of Oct. 16, 1962, National Security Adviser McGeorge Bundy briefed President Kennedy<\/a> about the installation of Soviet medium- and intermediate-range nuclear missiles in Cuba. In the coming days, Kennedy and his advisers, who formed the Executive Committee of the National Security Council (ExComm), discussed different options<\/a> for removing the missiles, including limited and general airstrikes, a potential naval blockade, and an invasion of Cuba. They eventually decided on a naval blockade to interdict the delivery of offensive weapons to the island by the Soviet military. The United States euphemistically called the blockade<\/a> a \u201cdefensive quarantine\u201d to signal restraint in its actions and \u201cavoid any implication of a state of war.\u201d The policy eventually led to negotiations with the Soviet Union and the removal of Soviet missiles from the island in exchange for the U.S. promise not to invade Cuba, in addition to a secret assurance about the removal of U.S. Jupiter nuclear missiles from Turkey.<\/p>\n

During their deliberations, members of the ExComm discussed<\/a> the legality of various policy choices under international law. Since the Soviet Union and Cuba were not planning<\/a> an immediate armed attack against the United States, all the proposed courses of action, including a blockade, could have violated the prohibition on the use of force in Article 2(4) of the UN Charter. Indeed, a mere placement of nuclear missiles in Cuba did not constitute<\/a> an armed attack against the United States that would justify the use of force in self-defense under Article 51 of the UN Charter. In considering these legal challenges, U.S. legal advisers developed varying and controversial legal positions in an attempt to avoid the limitations under the charter and legally justify the choice of policies within the administration and to the world.<\/p>\n

The Office of Legal Counsel<\/a> (OLC) and other Justice Department officials argued<\/a> that the use of force against Cuba could be justified based on self-defense grounds under Article 51 of the UN Charter. They supported the controversial concept of preventive war against perceived nuclear threats short of an imminent armed attack. Interestingly, the OLC opinion<\/a> relied on the Monroe Doctrine as creating a regional custom with relaxed requirements of U.S. self-defense in the Western Hemisphere. The Department of State\u2019s legal advisers, in turn, disagreed with<\/a> the self-defense position, arguing that the Organ of Consultation of the Organization of American States (OAS) could recommend a \u201cquarantine\u201d of Cuba and thus render the necessary use of force lawful pursuant to Article 52 of the UN Charter on regional arrangements and agencies.<\/p>\n

The difference in the legal positions of two departments\u2019 lawyers correlated with the views of their leaders, Attorney General Robert \u201cBobby\u201d Kennedy and Secretary of State Dean Rusk. As Abram Chayes put it<\/a>, \u201cthe legal arguments were there, available for whatever use might be made of them by one or another participant or faction, grist for the mill of decision.\u201d<\/p>\n

Bobby Kennedy, the president\u2019s brother and close adviser, had one of the most hawkish <\/a>perspectives among ExComm members, initially arguing in favor of an outright invasion of Cuba and against softer responses, including the blockade. This should not be surprising, as the attorney general was, among other things, simultaneously supervising a secret operation\u2014code-named \u201cMongoose\u201d<\/a>\u2014aimed at \u201cgetting rid of the Castro regime\u201d through sabotage, assassination attempts, and other covert activities. At one point during the ExComm\u2019s deliberations, the attorney general posed the rhetorical question<\/a> of whether \u201ca blockade ever brought anybody down.\u201d The Justice Department lawyers\u2019 justifications of the United States\u2019 unilateral use of force against Cuba in self-defense allowed a broad spectrum of policy options for the president unconstrained by the voting in the OAS and thus perfectly aligned with the attorney general\u2019s preference for regime change in Cuba.<\/p>\n

In contrast with President Kennedy\u2019s brother, Secretary of State Rusk advocated<\/a> for diplomacy from the beginning, as well as acting multilaterally with Latin American countries to build a coalition supporting the U.S. actions and resisting Soviet and Cuban objections. The Department of State\u2019s opinion served Rusk\u2019s position well by requiring OAS recommendation of the \u201cquarantine\u201d supported by at least two-thirds of OAS members. Ultimately, the Department of State\u2019s opinion served<\/a> as <\/a>an<\/a> o<\/a>fficial legal justification<\/a> for U.S. actions before the world as President Kennedy opted for the so-called quarantine supported by the OAS recommendation.<\/p>\n

Some ExComm members considered legal arguments altogether irrelevant in the crisis. Namely, former Secretary of State Dean Acheson\u2014who participated in the ExComm\u2019s discussions\u2014argued that<\/a> \u201clegal niceties were so much pompous foolishness in a situation where the essential s<\/a>ecurity of the United States, its prestige, its pledged word to defend the Americas, was threatened.\u201d According to Acheson, regardless of a legal position, \u201c[t]he world would understand that the President had done no more and no less than the situation required.\u201d<\/p>\n

Legal Justifications<\/strong><\/p>\n

Speaking at a Harvard Law School reunion event less than a month after the crisis, Chayes, a former Harvard Law professor and the Department of State\u2019s legal adviser at the time, did not hide<\/a> that the U.S. legal case regarding the \u201cquarantine,\u201d based on the OAS recommendation, tested the limits of the prohibition of the use of force under Article 2(4) of the UN Charter. He compared international law to American constitutional law, noting that \u201cnorms, to be durable, must be subject to growth and development as circumstances change.\u201d Although the Kennedy administration provided a detailed legal rationale<\/a> for the blockade and did not explicitly rely on unreasonably sweeping and erroneous self-defense arguments, its legal arguments based on the OAS recommendation remained highly controversial.<\/p>\n

The U.S. position was built on Article 52 of the UN Charter, which allows regional organizations, such as the OAS, to take appropriate actions for the maintenance of international peace and security, provided they comply with the purpose and principles of the United Nations, including the prohibition on the use of force. Article 6 of the Rio Treaty<\/a> provides that the OAS Organ of Consultation can agree on measures to address any situation that \u201cmight endanger the peace of America\u201d short of an armed attack. Under Article 8 of the treaty, such measures may include the use of armed force, including a blockade. According to U.S. legal advisers and OAS members<\/a>, the placement of Soviet missiles in Cuba endangered the peace of America, and thus the Organ of Consultation could recommend the \u201cquarantine,\u201d arguably making it lawful under Article 52 of the UN Charter.<\/p>\n

There are two main problems with this position. First, similarly to Article 103 of the UN Charter, Article 10 of the Rio Treaty provides that its provisions should not be construed to prevail over the rights and obligations under the UN Charter. At the same time, under Article 53 of the UN Charter, regional organizations cannot take \u201cenforcement actions\u201d without the Security Council\u2019s authorization. The imposition of quarantine to interdict the Soviet weapon shipments to Cuba was intended to coerce Cuba and the Soviet Union to change their actions and thus likely  qualified<\/a> as an enforcement action under Article 53, which required the UN Security Council\u2019s authorization to be legal. Indeed, even U.S. legal advisers acknowledged<\/a> that such an argument could be made. To counter this position, the U.S. argued that the OAS Organ of Consultation only recommended <\/em>the use of force, not required its members to use it, and thus it did not amount to \u201cenforcement action\u201d under Article 53 of the UN Charter. Such an interpretation was, at best, a progressive development of international law. As legal scholar James S. Campbell noted<\/a> at the time, \u201cthere is at present inadequate legal support for this contention, and the world community has yet to recognize the Cuban crisis as standing for the proposition that regional agencies are free to use armed force to maintain the peace in the absence of Security Council authorization when conditions justifying self-defensive action are not present.\u201d<\/p>\n

Second, although Cuba was a member of the OAS\u2014albeit excluded from participation in its bodies\u2014the Soviet Union was not a member and thus did not consent to the application of the OAS procedures under the Rio Treaty to it. Hence, there was a plausible argument<\/a> that the OAS recommendation could not justify the use of force, including a blockade, against the Soviet Union and related limitation of its right of navigation in the high seas.<\/p>\n

 At the same time, the Soviet Union and Cuba had a sound legal basis for placing the Soviet missiles on the island. First, as a general matter, international law does not prohibit states from placing their military infrastructure on the territory of other states with the host state\u2019s consent. Indeed, prior to the crisis, the U.S. also placed<\/a> its Jupiter nuclear missiles in Turkey and Italy as a deterrent against Soviet attacks and considered it legal given the consent of these states.<\/p>\n

Second, one of the goals of the Soviet deployment was to protect Cuba from potential attacks from the United States. Indeed, given the United States\u2019 goal of regime change in Cuba\u2014illustrated by the Bay of Pigs invasion of the island and the Mongoose operation<\/a>, among other instances\u2014the Soviet Union had good reasons to bolster Cuba\u2019s capacity for self-defense under Article 51 of the UN Charter. In particular, Article 51 allowed the Soviets to argue that, regardless of whether offensive or defensive capabilities were deployed in Cuba\u2014they could still be portrayed as defensive if judged not by their nature, but by their stated goal of defending Cuba. Interestingly, First Secretary of the Communist Party of the Soviet Union Nikita Khrushchev used the self-defense-of-Cuba argument, not balance-of-power considerations, to justify the placement of missiles before his colleagues in the Central Committee and before Soviet generals<\/a>.<\/p>\n

Paradoxically, despite Cuba\u2019s and the Soviet Union\u2019s good legal case, the U.S. effectively used its legal arguments to legitimize its policy position before its allies and the world writ large, including getting explicit backing of the blockade from all the OAS members except Cuba.<\/p>\n

The Role of Law in the Crisis<\/strong><\/p>\n

Available legal accounts of the crisis tend to overestimate<\/a> the role of international law in influencing Kennedy\u2019s choice of the blockade, including by constraining the available policy options. In his seminal book on the Cuban missile crisis, Chayes identified three principal functions<\/a> of law during the crisis: (a) a constraint on action in the sense of \u201cnarrow[ing] choice or exclud[ing] certain courses of action\u201d; (b) a basis of justification or legitimation of action, meaning \u201cshowing that the decision is reconcilable with a generally accepted set of norms\u201d to \u201cassist in legitimating the action taken at home and abroad\u201d; and (c) providing organizational structures, procedures, and forums. In Chayes\u2019s view, \u201clegal considerations [\u2026] operated on decision not directly, but mediately, filtered through the different purposes, perspectives, and susceptibilities of the players in the central game.\u201d However, although it was used to legitimize and resist policy choices within the administration and in the court of public opinion, the historical record\u2014contrary to Chayes\u2019s account\u2014indicates that international law did not meaningfully constrain the Kennedy administration, either directly or indirectly.<\/p>\n

First, the mere fact that members of the ExComm considered and relied on the legal arguments described above does not in and of itself prove that law narrowed choice or excluded certain courses of action of the administration as Chayes seemed to suggest. It just meant that various factions within the Kennedy administration tried to justify their preferred policy options with legal arguments. In this sense, law served as a justification for a controversial blockade rather than a constraint. Second, as explained above, the United States was pushing the limits on the use of force under Article 2(4) and, thus, instead of being constrained, sought to expand the constraints of international law to legitimize the chosen blockade.<\/p>\n

Third, recordings of the ExComm\u2019s meetings<\/a> suggest that one of the key reasons for the president\u2019s change of heart in favor of the blockade was the significant risk that airstrikes or an invasion could easily escalate into nuclear war. Indeed, the CIA informed the president<\/a> that at least eight operational Soviet medium-range missiles were discovered on the island that could be used in reply to U.S. military actions. As Under Secretary of State George Ball<\/a> put it, \u201cwith [military options], you\u2019re playing Russian roulette. You\u2019re flipping a coin as to whether you end up with world war or not.\u201d<\/p>\n

Fourth, despite choosing the blockade as the initial course of action, President Kennedy explicitly noted<\/a> that they \u201cmay need to do an airstrike with or without a warning\u201d if the Soviets do not agree to remove their missiles from Cuba. Moreover, the OAS resolution<\/a> was not limited to the blockade but recommended \u201call measures [\u2026] including the use of armed force\u201d necessary to prevent the Soviet offensive assistance to Cuba, which could include airstrikes and an invasion. These factors suggest that international law did not function as a constraint on the U.S. choice of the \u201cquarantine\u201d in the crisis.<\/p>\n

Admittedly, some members of the ExComm, including Bobby Kennedy, at some point voiced morality and legitimacy concerns<\/a> about an attack without a warning that would resemble the Japanese attack on Pearl Harbor. \u201cIt\u2019s a hell of a burden to carry,\u201d the then-attorney general stated<\/a> at one point. However, it was unclear how a mere warning could fully remove the stated moral concerns. As National Security Adviser Bundy wondered<\/a>, \u201chow much are you better off for history for asking 24 hours ahead of time, if [Khrushchev] says: \u2018I want a summit,\u2019 and you say \u2018Nuts\u2019?\u201d Still, Chayes argued<\/a> that these moral considerations signified the law\u2019s constraining force because, according to him, \u201clegal norm and moral precept are two expressions of the same deep human imperative.\u201d To make this argument, Chayes narrowed down the prohibition of Article 2(4) to \u201cat the very least [\u2026] aggression and surprise attack,\u201d when in fact its provisions explicitly prohibited all the uses of force not authorized by the UN Charter. Regardless of what one makes of Chayes\u2019s connection between law and morality, as mentioned earlier, President Kennedy, in his own words, seemed to be ready to order the airstrikes following the blockade \u201cwith or without warning,\u201d if necessary.<\/p>\n

*          *          *<\/p>\n

 Although international law did not meaningfully restrain the U.S. actions in the crisis, U.S. officials cared about the need to justify American actions, including in legal terms, to U.S. allies and partners and to the world writ large, to ensure that the Soviet Union and Cuba would not isolate the U.S. in the court of public opinion with their legal arguments about Cuba\u2019s self-defense.<\/p>\n

– Mykhailo Soldatenko is an attorney in Ukraine and New York and an S.J.D. candidate at Harvard Law School. He was previously a senior associate at a leading Ukrainian law firm, practicing international dispute resolution. Published courtesy of Lawfare<\/a>. <\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Although important for justifying the blockade of Cuba, international law did not meaningfully constrain the Kennedy administration during the crisis. Article 2(4) of the United Nations Charter\u2014a crucial element of the post-World War II international legal order\u2014prohibits the use of force against other states unless the UN Security Council authorizes it or there are grounds…<\/p>\n","protected":false},"author":124,"featured_media":10377,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"fifu_image_url":"https:\/\/lawfare-assets-new.azureedge.net\/assets\/images\/default-source\/article-images\/exomm_cuban_krakd.jpeg?sfvrsn=6c7e850e_5","fifu_image_alt":"","footnotes":""},"categories":[182],"tags":[214],"class_list":["post-10376","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-security-public-safety","tag-thedailybrieffriday"],"_links":{"self":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/10376","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/users\/124"}],"replies":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10376"}],"version-history":[{"count":1,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/10376\/revisions"}],"predecessor-version":[{"id":10378,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/10376\/revisions\/10378"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/media\/10377"}],"wp:attachment":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10376"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10376"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10376"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}