"The Cuban Missile Crisis and International Law",
a review by Carroll Quigley in The American Historical Review,
Vol. 81 (February-June 1976),
of a book:
THE CUBAN MISSILE CRISIS: International Crises and the Role of
by Abram Chayes.
Oxford University Press: New York, 1974
"The Cuban Missile Crisis and
The Cuban Missile Crisis: International Crises and the Role of Law.
By Abram Chayes.
Published under the auspices of the American Society of International
New York: Oxford University Press. 1974. Pp. viii, 157. Cloth $5.95,
This is the first volume in a projected series,
"International Crises and the Role of Law", to be published under the
auspices of the American Society of International Law. Abram Chayes, now
at Harvard Law School, was legal advisor to the State Department during
the Cuban missile crisis, and he has been concerned with the subject
ever since. The study, financed by the Carnegie Corporation and the Old
Dominion Foundation (Mellon), adds little new except a 1968 letter from
N. A. Schlei on Justice Department activities in August 1962. For the
facts, historians must still turn to Elie Abel (1966), Graham Allison's
Essence of Decision (1971), and the memoirs of participants.
Chayes examines the role of law in three aspects of the crisis: the use
of blockade rather than alternative actions; the appeal to the
Organization of American States; and the approach to the United Nations.
He decides that the role of law was "substantial." The process by which
he reaches this conclusion is more revealing of the corruption of
contemporary legal thinking than of the events of October 1962. All
three aspects of the crisis were political, not legal, but Chayes
smuggles in a legal element by blurring distinctions through verbal
ambiguities. He rejects the sharp distinction made by the participants
between policy questions and legal questions on the grounds that power
is reflected in both. He rejects William P. Gerberding's suggestion that
legal analysis is rationalization, "something cooked up after the
event," and he rejects Robert F. Kennedy's statement that the OAS vote
was political, not legal, by phrasing his discussion of this vote in
terms of "authorization" and "justification." The use of
"authorization," a legal term, and of "justification" rather than
"rationalization" helps disguise the fact that the blockade was a
political act in an area (Caribbean) and with a weapon (the Navy) where
the Soviet Union could not resist except by using a different weapon
(strategic) or area (Europe) which neither side wanted. Calling the
blockade a "quarantine" was part of the deception since international
law insists that a blockade is a political act, not a legal one. Chayes'
conclusion that "'mere' justification carries greater practical
importance for the success or failure of great decisions than is
commonly supposed by the analysts" (p. 48) neither refutes Gerberding
nor supports Chayes' principal argument.
Like any honest brief for a poor case, this volume is full of
inconsistencies. Chapter III ends with the statement that Article 2(4)
of the United Nations Charter "was a significant factor in determining
the decision against air strike or invasion and for . . . a quarantine."
Chapter IV then turns to the ďauthorization" by the OAS, although, if a
"quarantine" was legal, there was no need for any "authorization," and
the appeal was political not legal.
Those who think this volume adds little to history will find it more
valuable for evidence on the sociology of law at the highest levels of
our society today.
-- CARROLL QUIGLEY