628. Memorandum from Brubeck
to McGeorge Bundy, March 91
[Facsimile Page 1]
SUBJECT
- United States Air Surveillance of Cuba
This memorandum is in response to your oral request to Mr. Sterling J. Cottrell for the legal
aspects of United States air surveillance of Cuba, and the handling of
the Cuban air surveillance issue in the United Nations should it be
introduced there by the Castro government.
Legal Aspects
Under present circumstances, aerial surveillance of Cuba, including
overflight of Cuban territory, is consistent with the Inter-American
Treaty of Reciprocal Assistance of 1947 (the Rio Treaty) and with
international law. It has been authorized by the Organization of
American States. It is also consistent with our obligations under the
Charter of the United Nations, since photographic surveillance is not a
“threat or
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use of force” as prohibited by Article 2(4) of the Charter, nor could
aerial surveillance be considered “endorsement action” as that term is
used in Article 53 of the Charter.
Possible Action in the United Nations
The Cubans and/or the Soviets could quite readily raise the question of
our aerial surveillance over Cuba either in the Security Council or the
General Assembly. In such circumstances, it might be desirable for the
United States to put forward a proposal which would once again call for
the establishment of UN on-site
inspection in Cuba to ensure against the reintroduction of offensive
weapons. Such a resolution would be an effective counter to a
Soviet-Cuban proposal calling for an end to aerial surveillance. The
likely result would be a stalemate with neither proposition being
adopted by the United Nations.
/s/ Robert Kent
for
William H. Brubeck
Executive Secretary
[Facsimile Page 2]
Attachment
MEMORANDUM OF LAW
UNITED STATES
AIR SURVEILLANCE OF CUBA
One of the means to verify implementation of the undertaking by
Chairman Khrushchev to
dismantle offensive missiles and missile sites in Cuba has been
continued air surveillance by the United States. At least in part
such surveillance has involved flights over Cuban territory.
Under general international law, the air space over the territory of
a state is subject to the sovereign power of the state. The state
controls entry into its air space, and intrusions without its
consent are unlawful. This general rule is, however, subject to any
arrangement to which a particular state may be a party. In the case
of Cuba, those include the Inter-American Treaty of Reciprocal
Assistance of 1947 (the Rio Treaty).
The Organization of American States, acting pursuant to the Rio
Treaty, has authorized the continued surveillance of Cuban military
activity by the United States. It is our conclusion that under
present circumstances aerial surveillance of Cuba including
overflight of Cuban territory is consistent with the Rio Treaty and
with international law.
By its Resolution of October 23, 1962, the Council of the
Organization of American States, acting as the Provisional Organ of
Consultation under the Rio Treaty of 1947, unanimously agreed:
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1. To call for the immediate dismantling and withdrawal from
Cuba of all missiles and other weapons with any offensive
capability;
2. To recommend that the member states, in accordance with
Article 6 and 8 of the Inter-American Treaty of Reciprocal
Assistance, take all measures, individually and collectively,
including the use of armed force, which they may deem necessary
to ensure that the Government of Cuba cannot continue to receive
from the Sino-Soviet powers military material and related
supplies which may threaten the peace and security of the
Continent and to prevent the missiles in Cuba with offensive
capability from ever becoming an active threat to the peace and
security of the Continent;
[Facsimile Page 3]
It is to be noted that the overflights are directly related to the
objectives set forth in the Resolution cited. That Resolution
related not only to immediate dismantling and withdrawal of present
missiles, but to assurances that Cuba could not continue to receive
from the Sino-Soviet powers military materials which might threaten
the peace and security of the Continent.
It is to be noted also that the cited Resolution authorizes “all
measures” consistent with Article 6 and 8 of the Rio Treaty. These
Articles read as follows:
6. If the inviolability or the integrity of the territory or
the sovereignty or political independence of any American State
should be affected by an aggression which is not an armed attack
or by an extra-continental or intra-continental conflict, or by
any other fact or situation that might endanger the peace of
America, the Organ of Consultation shall meet immediately in
order to agree on the measures which must be taken in case of
aggression to assist the victim of the aggression or, in any
case, the measures which should be taken for the common defense
and for the maintenance of the peace and security of the
Continent.
8. For the purposes of this Treaty, the measures on which the
Organ of Consultation may agree will comprise one or more of the
following: recall of chiefs of diplomatic missions; breaking of
diplomatic relations; breaking of consular relations; partial or
complete interruption of economic relations or of rail, sea,
air, postal, telegraphic, telephonic, and radio-telephonic or
radiotelegraphic communications; and use of armed
force.
While aerial surveillance is not specifically listed in Article 8
among the measures on which the Organ of Consultation may agree, it
is clear that a treaty which contemplates the use of force as the
ultimate sanction must be interpreted to authorize lesser activities
associated with military action. The facts of the overflights—and
indeed photographs taken in the course of those flights—were before
the Organ of Consultation when it was considering the Resolution of
October 23, and it is clear that the member countries acted in
anticipation that those flights would continue pursuant to the
Resolution.
Aerial surveillance of Cuban military activity, including overflight
of Cuban territory, is also consistent with the Charter of the
United
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Nations. Photographic surveillance is not “a threat or use of
force”. Therefore, the prohibition of Article 2(4) of the Charter
[Facsimile Page 4]
does
not reach this activity. Nor could aerial surveillance be considered
“enforcement action” as that term is used in Article 53 of the
Charter. Moreover, no organ of the United Nations has in any way
called this practice into question.
CONCLUSION
Overflights and surveillance of Cuban territory are consistent with
the Rio Treaty and have been authorized by the OAS. Cuba has not expressly consented
to such overflights and might contend that decisions taken by organs
of the OAS without its
participation cannot lend validity to invasions of its sovereignty.
However, this argument has not thus far been made, and it is no
different from the argument that could be made against any of the
collective measures taken by the Inter-American System in response
to the Cuban threat. It is obviously the view of the members of the
OAS that overflights of Cuban
territory for reconnaissance are consistent with international law
and with rights and obligations under the Inter-American System.
Such activity is also consistent with the obligations of the United
Nations Charter.
Abram
Chayes
The Legal Adviser
[Facsimile Page 5]
Attachment
CONTINGENCY PLANNING FOR POSSIBLE
UN CONSIDERATION OF CUBAN
COMPLAINT AGAINST US AERIAL SURVEILLANCE
This memorandum is addressed to two principal questions: (a) how
might Castro bring the question of US aerial surveillance to the
United Nations; and (b) how would the United States deal with such a
Cuban complaint in the UN.
Cuban Complaint to UN
The Cubans could request consideration of the Cuban situation either
by the Security Council (either under the Cuban item still
“technically” on the agenda or a new one) or the General Assembly.
The Cubans would probably contend that our aerial surveillance is
interference in Cuban affairs, a violation of Cuban air space, the
use of force contrary to the Charter, and “aggression” by the United
States against Cuba. The thrust of any Soviet-Cuban resolution would
be to call for cessation of our aerial surveillance.
We would be in a reasonably strong position to deal effectively with
such a line of attack as long as Castro remains adamant in his
opposition to on-site inspection under the aegis of the United
Nations.
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As you will recall, in the two statements made by Ambassador
Stevenson in the
Security Council last fall, we purposely avoided getting into a
legal justification of our position. There was and is no political
profit in the United States taking the initiative in spelling out in
the United Nations a legal justification for our position. Any legal
rationalization along the lines stated in the Legal Advisor’s
memorandum of February 14 should be undertaken in the Council only
if we find it necessary and helpful to our friends on the
Council.
Our strongest arguments are political. We would reiterate that the
reason for relying on our own resources in conducting surveillance
over Cuba is because of Cuban refusal to agree to United Nations
inspection. We would recall that Khrushchev committed himself to inspection but could
not carry it off because of Castro’s intransigence. We would
continue to call for UN
inspection.
As to formal Security Council action, it might be desirable for the
United States to take the initiative in putting forward a resolution
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containing two principal elements: (a) a reminder that Cuba has been
unwilling to agree to international inspection; and (b) a request
that the Secretary-General establish an on-site inspection team to
assure against the reintroduction of offensive weapons into Cuba. We
would be expected to state in the Council our willingness to
terminate aerial surveillance at such time as effective UN on-site inspection was established.
Such a resolution would be an effective counter to a Soviet-Cuban
proposal calling for an end to aerial surveillance. The likely
result would be a stalemate with neither proposition being adopted.
While even some of our friends would have doubts about the strength
of our legal case, they would support us on political grounds. Our
resolution would get the required seven votes, but would be vetoed
by the USSR. The Soviet-Cuban
resolution would fall short of the required majority. (In addition
to the five permanent members, the Security Council includes: Ghana,
Philippines, Brazil, Venezuela, Norway and Morocco.)
It is doubtful that the matter would be pursued further in the
Assembly. If it was, essentially the same strategy could be followed
in the Assembly with results probably similar to those in the
Security Council.
Ambassador Stevenson concurs
in the above.
