257. Study Prepared in the Department of State1 2
SUBJECT:
- Protection of Third-Country Ships from Cuban Attack
Background
The National Security Council Staff has requested a study of the U.S. legal position in the event U.S. Armed Forces take action to protect third-country flag vessels from attack or seizure by Cuban units. Action by U.S. Forces would be taken pursuant to Special Rules of Engagement promulgated by the Joint Chiefs of Staff (Tab A) to implement the Contingency Plan approved by the President for the “Safeguarding of Freedom of Navigation in the Caribbean for Third-Country Flag Vessels Engaged in Commercial Pursuits” (Tab B). Those rules contemplate U.S. assistance to threatened third-country flag vessels in response to an official request from the government of the flag state or, in the absence of such a request, in response to a request from the Master or owner of a threatened vessel “only when there are U.S. citizens aboard”. In the absence of other certification, the word of the Master would be accepted as to the presence of U.S. citizens. The U.S. would not render assistance to threatened vessels when we have reason to know that the purpose of the voyage of the vessel concerned is to engage in illegal acts against Cuba irrespective of whether U.S. citizens are aboard. However, illegal acts against Cuba in the past would not preclude assistance.
The Rules of Engagement provide that the use of force is not excluded in self-defense or to protect a vessel against seizure in clear violation of international law. Authority to engage Cuban forces with weapons systems (conventional) is reserved to higher authority (at the direction of the President) except in “self-defense”. U.S. Forces are directed to interpose themselves between Cuban units and threatened third-country vessels “until point where further Cuban aggression creates a situation of self-defense for U.S. units.” It is not clear whether the U.S. Forces are to stop short of that point pending authorization to engage Cuban forces, or whether they are to continue even if certain that Cuban fire will be drawn, in which case they would respond in “self-defense”.
U.S. military aircraft and vessels are authorized to enter the airspace and territorial waters of friendly countries without prior permission if in the act of preventing or forestalling a Cuban attack on a third-country vessel. The country concerned [Page 2] is to be informed of the incident and the reasons for entering its territory “simultaneously”. To that end, military commanders are to “take measures to notify local U.S. diplomatic authorities“at the time occurring (sic) when it becomes necessary to enter a friendly country’s territorial waters and airspace without prior request”. Haiti and the Dominican Republic have consented to this procedure except, in the case of the Dominican Republic, as to overflights of land. The problem could arise, however, with other countries, particularly the Bahamas (U.K.).
Conclusions
If the United States acts at the request of the flag state we could base our actions on the right of individual or collective self-defense under Article 51 of the U.N. Charter and, possibly, the Rio Treaty. Absent such a request, we could base our action on the protection of U.S. nationals. The strength of the United States legal position in this situation would depend upon the specific circumstances, including particularly, (1) whether Cuba was justified in interfering with the particular third-country vessel on the high seas as a reasonable measure of self-defense, 2) whether there is a request for U.S. assistance from the flag state involved, and (3) whether a coastal state involved consents to the conduct of military operations by U.S. Forces within its territory. The United States would have a strong case for action under international law if Cuban forces attack a vessel which has not been utilized for, or whose owners have not carried out, hostile actions against Cuba, and the flag state requests U.S. assistance on the high seas. In the absence of a flag state request for U.S. assistance, it would be necessary to justify U.S. action on the basis of protection of U.S. nationals aboard at the request of the Master or owner. The legal case for such intervention may not be persuasive, however, if only one or two U.S. citizens are involved. If the vessel has been used previously to carry out hostile acts against Cuba, the question will arise as to whether Cuba has reasonable grounds to act against the vessel as a measure of self-defense to counter a continuing pattern of action against it. Where the vessel or its owner is “tainted” with illegal acts against Cuba and the flag state does not request, or perhaps disclaims, U.S. assistance, it will be difficult to gain international support for U.S. actions even though we may believe them to be justified. Should it become necessary for US. Forces to carry out military operations in the territory of a friendly country without that country’s consent, such actions would violate the sovereignty of the country concerned.
Cuban Actions in Violation of International Law
Freedom of navigation for all states on the high seas is a universally recognized principle of international law. Under the 1958 Geneva Convention on the High Seas, a state would be justified in interfering with a merchant vessel of another state on [Page 3] the high seas only in cases of piracy, the slave trade, or “uninterrupted hot pursuit” of vessels having violated the laws or regulations of the coastal state. A war ship also may board a foreign merchant ship flying another flag or refusing to show its flag if the ship is in reality of the same nationality as the war ship. None of these circumstances are likely to be present in this situation. Therefore, Cuban action of firing upon, boarding and seizing a merchant vessel of another state would be a clearer violation of international law unless Cuba could establish that the vessel was engaged in supporting an armed attack or a continuing pattern of aggression against Cuba substantial enough to warrant the exercise of the right of self-defense against that vessel on the high seas.
U.S. Assistance—Collective Self-Defense
The Cuban action cannot be regarded as “piracy”; that concept is defined by international law and Article 15 of the High Seas Convention to apply only to such actions “committed for private ends by the crew or the passengers of a private ship or private aircraft.” However, a Cuban attack against a merchant vessel of another power on the high seas can be considered to be an “armed attack against a member of the United Nations” within the meaning of Article 51 of the United Nations Charter. In these circumstances, Article 51 would justify the United States taking proportionate measures in collective self-defense at the request or with the permission of the state of nationality of the vessel. Similarly, Article 3 of the Inter-American Treaty of Reciprocal Assistance (Rio Treaty) provides that in the event of an armed attack, “on the request of the state or states directly attacked and until the decision of the Organ of Consultation of the Inter-American System, each one of the contracting parties may determine the immediate measures which it may individually take in fulfillment of the obligation”-“to assist in meeting the attack.”
In the absence of a request for assistance by the flag state or the coastal state, it is more difficult to justify unilateral military action by the United States to protect the ships or nationals of a third state. There is little support today for the concept that a state may take unilateral military action to maintain recognized principles of international law such as freedom of navigation on the high seas where a direct national interest is not involved. This is a responsibility which, under modern international law, has fallen upon the United Nations and regional organizations such as the OAS, which have the primary responsibility for the maintenance of international peace and order.
[Page 4]If unilateral action is necessary, a legal justification would have to be based primarily on the protection of U.S. nationals. The U.S. has consistently asserted the right to use force to evacuate its nationals in chaotic situations in which the host government is unable to provide that protection although the Latin American states generally regard such interventions as prohibited by the OAS Charter. There is a strong case for such protection of nationals on the high seas, as no foreign sovereignty is violated, but this may not be a persuasive rationale for military action in cases in which only one or two American nationals may be involved and the “innocence” of the vessels is clouded.
Actions in the Territory of Third States
The Rules of Engagement authorize U.S. military aircraft and vessels to enter the airspace and territorial waters of friendly countries without prior permission if in the act of preventing or forestalling a Cuban attack on a third-country vessel. Attacks within the territorial sea of a third state constitute unlawful violations of the sovereignty of that state, but the United States could lawfully act to frustrate such an attack against a non-U.S. vessel only with the consent of the coastal state. The present instruction raises the possibility of a situation in which U.S. Forces violate the sovereignty of a friendly country. Such an action could cause unnecessary difficulties in relations with the state concerned and could prejudice important U.S. interests in the law of the sea negotiations. An obvious violation of international law by the U.S. resulting from what could be interpreted as an abuse of the high seas freedoms we are seeking to secure in those negotiations could undermine our credibility. Further unauthorized conduct of military operations in the territorial sea of another country is a bad precedent that could be imitated other powers contrary to our interests.
- Source: National Archives, Nixon Presidential Materials, NSC Files, Box 781, Country Files, Latin America, Cuba, Vol. IV, 1972. Top Secret. Sent under a March 16 covering memorandum from Eliot to Kissinger. Attached at Tab A but not published is Telegram 8394 from the JCS to RUCBSAA/CINCLANT, February 10, describing the Special Rules of Engagement. Tab B, the contingency plan approved by President Nixon, is published as Document 252.↩
- The Department of State prepared a study on the legal position of the United States in the event that the U.S. Armed Forces should take action to protect third-country ships from Cuban attack.↩