7. Paper Prepared by the Assistant Secretary of State for Inter-American Affairs (Mann)1
I would like a re-examination of paragraph two of the draft resolution with a view to determining whether the lawyers can strengthen this paragraph under either of the two following separate theories:
UN Article 51 says in substance that nothing in the Charter affects the right of individual or collective self-defense in the case of armed attack.
I recall that in the past some people have construed this article to limit the right of self-defense to cases in which there has been an armed attack. I seem to recall that there is respectable authority (McDougal of Yale)2 which takes the opposite view, i.e., that the inherent right of individual or collective self-defense is not so limited. If the second line of authorities are followed we could simply have the resolution declare in substance that in the event of a situation comparable to the Venezuela one, the American States would have the right to resort to the use of armed force, individually or collectively, in the exercise of their inherent right of self-defense.
Why can’t we capitalize on the fact that there has been an aggression by Cuba against Venezuela which falls within the purview of Article 6 of the Rio Treaty? More specifically, why can’t we have this paragraph invoke the sanctions of Article 8 of the Rio Treaty (which include [Page 22] the use of armed force) and then suspend the actual use of armed force— suspend the pushing of the button—on some theory such as, for example, the repetition of the same kind of aggression against another country? If the answer to the second question is that we cannot make the future employment of armed force dependent on some future event, then why can’t we invoke and simply suspend in an effort to give the United States a clear right to act in the future without specifying future contingencies?
The trouble with paragraph 2 of the present draft is that it adds nothing to our existing legal rights to act in the future—nothing to our existing rights under the Rio Treaty. What we should be seeking is to capitalize on the Venezuelan situation so as to improve our legal posture.3
- Source: National Archives and Records Administration, RG 59, ARA/LA Files, 1964: Lot 66 D 65, Venezuelan Arms Cache. Limited Official Use. Copies were sent to Dungan, Sorensen, Chayes, Whiteman, Bunker, Allen, and Crimmins.↩
- Myres S. McDougal, professor of law at Yale University.↩
- Chase explained in a February 26 memorandum to Bundy that “the Secretary and Tom Mann want the wording strong enough so that it gives the U.S. a release in order to act unilaterally, if necessary. Abe Chayes, however, takes the position that the present wording (which will be tough enough to sell in the OAS) does not give us that release.” (Johnson Library, National Security File, Country File, Cuba, OAS Resolution (Arms Cache), Vol. II, Memos, 11/63–9/64) Chayes offered new language for the second paragraph in a February 28 memorandum to Mann that “would provide a firmer legal basis for future individual or collective action against Cuba than the present draft.” (National Archives and Records Administration, RG 59, ARA/LA Files, 1964: Lot 66 D 65, Venezuelan Arms Cache)↩