Foreign Relations of the United States, 1969–1976, Volume E–10, Documents on American Republics, 1969–1972

251. Contingency Plan Prepared in the Department of State¹ ²

Washington, December 19, 1971

SUBJECT:

• Safeguarding of Freedom of Navigation in the Caribbean for Third Country Flag Vessels Engaged in Commercial Pursuits

I. Policy Assumptions

A. The U.S. is prepared to provide assistance in response to an official request from the government of the flag vessel being threatened, and with respect to such assistance does not exclude the use of force in self-defense or to protect a vessel against seizure in clear violation of international law.

B. In the absence of an official request from the government concerned, the U.S. is prepared to provide assistance in response to a request from the Master of or company owning a third flag vessel that is under threat only when there are U.S. citizens aboard, despite the fact we have information that the vessel concerned has in the past engaged in illegal acts against Cuba, but is not doing so on this voyage. Such assistance would not rule out the use of force for the purposes described in A above.

C. The U.S. is not prepared to render assistance to vessels that are threatened 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.

D. In the event that U.S. military aircraft and vessels in the area are attacked they will defend themselves in accordance with existing rules of engagement.

E. U.S. military aircraft and vessels will remain in international air space and waters unless permission is obtained from foreign government concerned to enter territorial air and waters, except as specified in existing rules of engagement pertaining to penetration of Cuban air space.

F. It is assumed that Soviet armed forces in the general area will not take actions in support of Cuba or otherwise become involved.

II. Nature of the Threat

The specific immediate motives for the Cuban actions appear to be to prevent the recurrence of and to retaliate against a mid-October Cuban exile raid by the de la Torriente group on a small Cuban town on the northeast coast in which several Cubans were killed or wounded. In that raid, de la Torriente used as a mother ship, the Panamanian-flag vessel Aquarius, which is generally the same class ship as those operated under Panamanian registry by the Babun brothers, although it is not owned by them. Because of past Babun family support of Cuban exile armed raids against Cuba, Castro appears intent to seize as many of the Babun Brothers vessels as feasible as well as any other foreign-flag vessels which he believes have been involved in operations against Cuba. There does not appear to be a Cuban threat at this time to other vessels which are not owned by the Babun brothers or are not suspected of having been used in anti-Castro operations.

Castro has long taken a most serious view of exile activities directed against Cuba, and the regime generally also has played on exile-related incidents to bolster pro-government support at home and divert popular attention from domestic problems. Cuba’s seizure of the Layla Express on December 5 and the Johnny Express on December 15 will suit Castro’s propaganda exploitation pattern and will probably garner considerable domestic, foreign Communist, and third world support and sympathy for Cuba’s actions against “pirate ships” sent by “the imperialists.” This same sort of sympathy, it can be anticipated, would also be forthcoming if Cuba were to seize similar vessels under similar circumstances.

Several logical restraints that would appear to be operative in any Cuban decision to employ force in seizing such vessels are: (a) Cuba would be restricted by the need to use her rather limited naval strength primarily to guard a long coastline and several key port areas (i.e., Havana, Mariel, Cienfuegos, Santiago); (b) many of Cuba’s naval combatant ships are limited in both mechanical and range capabilities—mechanical breakdowns on gunboats like those used in the recent incidents have occurred fairly frequently; (c) it seems unlikely that Cuba would attack US-flag vessels.

Cuban efforts to intercept and seize foreign vessels probably will be concentrated in the shipping lanes in and near the Windward Passage and the seas between eastern Cuba and the Bahamas. Cuban naval and aerial reconnaissance activities and patrols are traditionally the heaviest in these areas, and the many islands and cays in these regions afford good natural cover to Cuban gunboats lying in wait for their targets. It seems very doubtful, however, that Cuban naval units would enter Dominican or other foreign ports or waters to attempt to seize other vessels. The Cubans probably will continue, however, to maintain close surveillance of other foreign ports and waters—especially those of the Dominican Republic—in an attempt to locate those vessels that they suspect to be involved in Cuban exile activities. On several recent occasions Cuban non-military aircraft have openly reconnoitered Dominican ports and airfields, and it seems likely that Babun family vessels and possibly other signs of Cuban exile activity were the prime targets of their searches.

III. International Law Considerations

Freedom of navigation 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 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. These circumstances are absent here. Therefore, assuming that the Panamanian flag vessels seized by Cuban authorities were not engaged in armed attacks or a continuing pattern of aggression against Cuba substantial enough to warrant the exercise of the right of self-defense on the high seas, the Cuban action of firing upon, boarding and seizing these vessels is a clear and flagrant violation of international law.

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, the Cuban acts do constitute “armed attacks” against the merchant shipping of another power. In these circumstances Article 51 of the United Nations Charter would justify the United States taking proportionate measures in collective self-defense at the request of the state of nationality of the vessel, or the coastal state in the event the attack should take place in territorial waters. Similarly, Article 3 of the Inter-American Treaty of Reciprocal Assistance (Rio Pact) 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. Under the present framework of international law, the United Nations and regional organizations such as the OAS have the primary responsibility for the maintenance of international peace and order. 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.

If unilateral action is necessary, a legal justification would have to be based primarily on the protection of U.S. nationals and/or property. 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.

In recent years, the United States has not asserted the right of intervention in foreign countries to protect U.S. property, but such protection of property may be warranted in cases of unlawful attacks on the high seas. Although, the vessels are registered in Panama and are owned by Panamanian corporations, they are beneficially owned by members of the Babun family resident in the United States but not all members of this family are United States citizens. Thus, the extent of U.S. interests in these vessels is not known.

Any unilateral action by the United States would be strengthened if it were possible to show that the U.S. had made a good faith effort to solve the problem by peaceful means, as required by the OAS and if some international support could be shown for United States action. In the event the United States does act unilaterally, it would be prudent to report the U.S. action to the OAS and the U.N. Security Council. Such reports could also provide the vehicle for full statement of the justification for U.S. action.

IV. Courses of Action

A. Intelligence Collection

• 1. Maintain close and continuous contact with the Babun brothers regarding the whereabouts, ETD’s, ETA’s and routing of these vessels. Similar contact should be established with the owners or agents of other vessels known to have configuration similar to that of the Aquarius. (The Babun brothers have agreed to instruct their vessels to navigate considerably further from Cuba than heretofore.)
• 2. Obtain and keep current crew lists, including nationalities, of the vessels described in A. 1, above.
• 3. Monitor closely and continuously the whereabouts of Cuban patrol vessels and aircraft.
• 4. Maintain close and continuous surveillance of militant exile groups who may be planning infiltration raids against Cuba.

(Long range intelligence requirements are presently being developed by the intelligence community.)

B. U.S. Responses

1. Military

• a) Continue U.S. surveillance actions now underway. Announce and explain them.
• b) Pre-position air and sea units to provide a capability for an immediate U.S. response to a call for help from a vessel under Cuban threat, harassment or attack. Such air and sea units will be authorized to take measures short of the use of force to deter or frustrate Cuban actions. Actual engagement by such U.S. units in hostilities with Cuban units, except in self-defense, will be at the direction of the President.
• c) Consider the feasibility of providing air/or ship escort for potentially threatened vessels.

2. Political

• a) where we have good reason to believe that a third country flag vessel (other than Panama) faces imminent attempts at seizure by Cuba and has U.S. citizens aboard, elicit from that nation a request for U.S. assistance.
• b) Reiterate warning to Cuban exile groups that U.S. law enforcement agencies will continue to enforce rigorously U.S. laws prohibiting the use of U.S. territory as a base for any military actions against a foreign country. Actively prosecute offenders (to do otherwise serves only to encourage these counter-productive raids).
• c) Prior to public announcement of the pre-positioning of U.S. forces, inform OAS countries of our estimate of the current Cuban threat to freedom of navigation and the steps we are taking to meet this threat.
• d) Prior to public announcement of pre-positioning of U.S. forces, inform the USSR of our intention and the reasons therefore.
• e) If there should be further seizures of third country vessels, making a clear case that there is a general threat to freedom of navigation of innocent vessels in the Caribbean, encourage the flag country (if an OAS member) to bring the question to the OAS under the Rio Treaty; if a non-member flag is involved, bring the case ourselves, preferably in a joint initiative.
• f) Enlist British cooperation when pertinent.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 781, Country Files, Latin America, Cuba, Vol. III, 1971. Top Secret. It was sent to the President under a covering memorandum from Kissinger, which summarized the paper and asked for Kissinger’s approval on behalf of the President.
2. The Department of State, in consultation with other agencies, prepared a contingency plan for safeguarding freedom of navigation in the Caribbean for third country vessels.