619. Memorandum From the Legal Adviser (Hager) to the Under Secretary of State for Political Affairs (Merchant)1
SUBJECT
- Cuba
This memorandum is in response to Joseph W. Scott’s memorandum to me dated December 2, 1960,2 containing four questions relating to the above subject.
[Page 1165]All four of the questions are somewhat interrelated and affected by the same provisions of certain international agreements to which the United States is a party. I would therefore like to call attention at the outset to the following:
[Here follows a summary of various provisions of the United Nations Charter, the Charter of the Organization of American States, the Inter-American Treaty of Reciprocal Assistance, and the Convention on Rights and Duties of States in the Event of Civil Strife (Havana, 1928).]
- 1.
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What would be the legal limitations, if any, to our support for a Cuban government in exile:
Support for a Cuban government in exile would of course be inconsistent with continued recognition of the Castro regime as the lawful government of Cuba.
The United States may unilaterally sever relations with the Castro regime at any time and for any reason, or even without reason. Such a severance of relations does not violate any obligation under any treaty or under international law.
However, the recognition of a government-in-exile and the support of such a government can involve serious legal problems.
It should first be noted that the mere recognition of such a government would constitute a departure from our announced policy in this respect. In extending recognition, we normally consider whether the government is in possession of the machinery of state, administering the government with the assent of the people, and in a position to fulfill the international obligations incumbent upon the particular state. Presumably a government-in-exile would not meet these conditions. It is true that we have in the past recognized governments-in-exile, but those cases have normally involved some important additional factor which would be missing here. In the case of the governments-in-exile of Norway, Netherlands and Belgium during World War II, we recognized on the basis that it was the established government which had fled enemy-occupied territory over which it was the lawfully constituted sovereign. In the case of the Czechoslovak Provisional Government in London, our recognition was on the basis that the annexation of its territory by Germany was illegal. In the case of the Fighting French under DeGaulle, recognition was on the basis of effective control of certain territory of a state partially occupied by the Enemy.
Turning to legal limitation, there is no treaty provision or other international obligation which would specifically prevent us from unilaterally recognizing a Cuban government-in-exile. However, it could easily be argued that such recognition by itself constituted an intervention in the internal affairs of Cuba or a form of interference in violation [Page 1166] of Article 15 of the OAS Charter, or a violation of some other of the above obligations of the OAS Charter or even of the general obligation under international law not to intervene in the internal affairs of other States. This legal argument might find favor among Latin American and other States, in the UN or the OAS.
It should be recalled that the U.S.S.R. recognized and signed a treaty with the “Finnish Democratic Republic” (established by the Finnish Communist Party) in connection with the armed attack by the U.S.S.R. on Finland in 1939. The League of Nations Assembly found the U.S.S.R. guilty of “aggression” and pointed out that the U.S.S.R. had established relations with “an alleged Government which is neither de jure nor de facto the Government recognized by the people of Finland in accordance with the free working of their institutions”. The Council of the League then determined that the U.S.S.R. was no longer a member of the League.
The indirect consequences of a severance of relations with the Castro regime and the recognition of a government-in-exile must also be considered. Such a severance of relations does not normally affect treaty obligations, because treaties are between States, as distinguished from governments. Technically, therefore, our treaties with Cuba, relating to Guantanamo and other matters, would continue in force. However, any treaty provisions which required consultation or other action in relation to or conjunction with an effective government in control of territory and governmental machinery would become a dead letter. A severance of relations might also provide an excuse for various retaliations. Finally, after withdrawing recognition from the Castro regime, we would no longer be able to hold it responsible as the government of Cuba for any actions which it took.
Assuming that we went beyond mere recognition and gave active support to a government-in-exile, we would find ourselves subject to charges of violation of more of the provisions referred to at the beginning of this memorandum, depending upon the extent of our support. Cuba might bring the matter to the attention of the Security Council or the General Assembly under Article 35 of the UN Charter, alleging a dispute likely to endanger the maintenance of international peace and security (Article 33) or even a threat to the peace, breach of the peace or act of aggression (Article 39). On the other hand, if she preferred to proceed under the inter-American system, Cuba might charge an aggression short of an armed attack, or at least a fact or situation that might endanger the peace of America, under Article 6 of the Rio Treaty, calling for a meeting of Foreign Ministers.
- 2.
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What would be the legal limitations to training Cubans on US soil for ultimate use by a Cuban government-in-exile?
From the standpoint of our international obligations, the legal limitations have already been discussed to some degree under question 1 above. Cuba would undoubtedly charge that such activity, whether condoned or conducted by the United States, constituted a threat of force and an aggression in violation of the UN Charter and the Rio Treaty, and furthermore that it was at least an incipient violation of Article 1 of the Convention on Rights and Duties of States in the Event of Civil Strife, quoted above.
In addition, we might have certain problems under domestic law. Private persons training Cubans on United States soil might run afoul of certain criminal laws (18 U.S.C. 956–960) relating to conspiracies within the jurisdiction of the United States to insure or destroy property of a foreign government within a foreign country, accepting and exercising within the jurisdiction of the United States a commission to serve against a foreign nation, enlisting within the United States in the service of a foreign country, and knowingly beginning or setting on foot or taking part in any military or naval expedition to be carried on from the United States against the territory of any foreign state. These statutes would presumably not be applicable, however, if we recognized a Cuban government-in-exile. Further, in that case there is existing statutory authority for our military authorities to train Cubans (22 U.S.C. 1812).
- 3.
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What would be the legal consequences of a blockade which would prevent shipments of arms going to Cuba?
A blockade is the blocking by naval vessels of the approach to an enemy coast, or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all nations. It involves the seizure of vessels or aircraft of the blockaded state, and also the seizure of neutral vessels or aircraft which violate the blockade.
A blockade is itself an act of war. It may be resorted to only in the case of existing belligerency or for the purpose of bringing belligerency into effect. The declaration of a blockade against Cuba would undoubtedly be cited by the Castro regime as an aggression in violation of the UN Charter and the Rio Treaty.
There is also a limited form of blockade, the so-called “pacific blockade”, relating only to vessels of the blockaded state. However, this type of blockade would not be effective in preventing shipments of arms to Cuba, since it would apply only to Cuban ships. Further, it is not clear under international law that even a “pacific blockade” is not an aggressive act.
Under our domestic legislation, we already have authority to prevent the export of arms from the United States to Cuba, and also the carriage of arms from any location to Cuba by United States flag [Page 1168] vessels. We could also extend our control further under the Battle Act, to affect shipments by recipients of our aid. However, the declaration of a blockade might raise the question whether action had been taken tantamount to a declaration of war, a matter as to which the Congress is given authority under the Constitution.
- 4.
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What would be the legal consequences of a blockade which would prevent armed expeditions leaving Cuba?
What has been said in answer to question 3 concerning blockade applies also to this question.
In the absence of an actual declared blockade, of course, Cuban vessels and aircraft transporting an armed expedition could not be interfered with either on or over the high seas. They could however lawfully be kept under such surveillance as would not amount to harassment and would not interfere with navigation. Furthermore, at the request of any foreign state concerned, the United States could assist in arresting Cuban vessels or aircraft once they had entered the territorial sea or overlying airspace of that state.