Chapter Five the Place of International Law in State
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CHAPTER FIVE THE PLACE OF INTERNATIONAL LAW IN STATE BEHAVIOUR DURING THE CUBAN MISSILE CRISIS1 In the previous chapter we looked at a scenario where the State aiming to use force is less powerful and whose preferred policy would more readily be deemed ‘illegal’ than the rival State seeking to oppose the use of force. This chapter will examine the third case study, focussing on the Cuban Missile Crisis (CMC). In the CMC the US responded to the secret Soviet deployment of medium and long range missiles to Cuba with a blockade on Soviet ships to Cuba and a threat to escalate to an overt use of force if the Soviet Union did not stop the deployment of its missiles to Cuba. The Soviet Union was faced with the prospect of opposing this threat of force by either negotiating an end of the crisis or escalating the conflict. The CMC involves a scenario in which the State employing threats of force, the US, was relatively more powerful but whose preferred policy would more readily be deemed ‘illegal’ than the State responding to the threat of force, which in this case was the Soviet Union. This chapter will proceed by first outlining the historical background to, and geopolitical context of, the CMC. The chapter will then examine the historical record of the influence of international law on American and Soviet State behaviour during the CMC. The chapter will then compare the historical record against existing em- pirical studies of the CMC and its theoretical underpinnings to assess the adequacy of rival theoretical explanations in accounting for the relationship of international law to US and Soviet Union foreign policy behaviour during the CMC. Finally, the chapter will analyse the historical record from an ILI perspective, to assess the relative empirical efficacy of an ILI approach in explaining the historical record. 1 Parts of this chapter have also formed the basis of previously published work. See Shirley V Scott and Radhika Withana “The Relevance of International Law for Foreign Policy Decision-making When National Security is at Stake: Lessons from the Cuban Missile Crisis” Chinese Journal of International Law, Vol. 3(1), 2004, pp. 163-187. 168 Chapter Five Background to the Crisis The Cuban revolution was close to four years old when the CMC began. Fidel Castro had consolidated his power internally, having within a year of his victory over the Batista dictatorship resolved any ambiguity about his relationship to communism. Mutual hostility between Castro and the Americans, signalled by declining American economic assistance to Cuba, an American trade embargo on Cuba and the failed Bay of Pigs invasion in 1961 by Cuban refugees trained by the CIA and sanctioned by President Kennedy, removed any basis for accommodation. Within three years of the revolution the Cuban economy (almost entirely dependent on American trade prior to 1959) was effectively integrated into the Soviet bloc. Furthermore, Soviet arms defended Cuban soil, which lay a mere 90 miles off the Florida coast. It was this presence of Soviet arms in Cuba, especially the subsequent Soviet deployment of missiles to Cuba that triggered the crisis. These developments took place against the backdrop of another serious Cold War confrontation between the two superpowers that had yet to be resolved at the time of the missile deployment to Cuba: the dispute over the status of West Berlin. Since 1949 Berlin had been split into two opposing sides: Soviet occupied East Berlin and Allied occupied West Berlin. By 1958 Khrushchev was demanding the withdrawal of the Allied powers from West Berlin and the handing over of the city to the Soviet allied German Democratic Republic. In 1960, talks were scheduled in Paris between Khrushchev and Eisenhower; however, with the shooting down of a US reconnais- sance plane 11 days prior to the conference, the talks collapsed. They were not resumed until June 1961 when newly elected President John F Kennedy met Khrushchev for the Vienna summit between the two leaders. This meeting resolved nothing and the Berlin issue remained unresolved at the time of Soviet military activity in Cuba. Furthermore, the issue of American missile bases in Turkey and Italy – in the figurative backyard of the Soviet Union – continued to occupy Khrush- chev’s mind. It was in this geopolitical context that the CMC took place. For the Soviet Union the decision to deploy missiles to Cuba was inspired not only by the desire to deter an attack on its new ally and to redress the strategic imbalance between the US and the Soviet Union with respect to the ‘nuclear’ gap, but to “remind Washington of Soviet power.”2 The American response to the deploy- ment of missiles to Cuba was grounded in a mixture of the old Monroe Doctrine and the new Cold War strategic priorities. The Monroe Doctrine had compelled American leaders since its inception in the ninetheenth century to resist all powers outside the Western Hemisphere from gaining entry into the region. The Cold War heightened this imperative to resist the entry of foreign communist powers into the region. 2 Aleksandr Fursenko and Timothy Natfali One Hell of a Gamble: Khrushchev, Castro, and Kennedy, 1958-1964 (W. W. Norton and Company: New York 1997) at 183..