Legal and Practical Consequences of a Blockade of Cuba

Legal and Practical Consequences of a

Blockade of Cuba

The President has the power to establish a blockade of Cuba under the laws of the United States

without further congressional action.

A blockade may be unilaterally established by the United States under international law but its

establishment may be questioned within the Organization of American States and the United

Nations. In addition, such a blockade could be regarded by Cuba and other Soviet Bloc nations as an

act of war.

October 19, 1962

MEMORANDUM*

This memorandum discusses the legality and practical consequences of a

blockade of Cuba established unilaterally by the United States in response to the

current buildup of a military potential in Cuba with clearly aggressive capabilities.

It concludes that the President has the power to establish such a blockade under the

laws of the United States without further congressional action; that it may be

confined to surface vessels or include aircraft as well; that a blockade may be

unilaterally established by the United States under international law but that its

*

Editor’s Note: This unsigned, unaddressed memorandum appears in the daybooks of the Office of

Legal Counsel and was cited in The President’s Constitutional Authority to Conduct Military

Operations Against Terrorists and Nations Supporting Them, 25 Op. O.L.C. 188 (2001).

Prior to publishing the 2001 opinion, we consulted with officials at the Department of State to

determine whether they had any record or evidence of authorship of this memorandum. Although they

were unable to locate a copy of the memorandum itself, they pointed us to declassified records of a

meeting held on October 19, 1962 (the same date as this memorandum) and attended by a number of

top-level administration officials (including Secretary of State Dean Rusk, Attorney General Robert

Kennedy, and National Security Advisor McGeorge Bundy). See U.S. Dep’t of State, Foreign Relations

of the United States, 1961–1963: Volume XI, Cuban Missile Crisis and Aftermath, doc. 31 (Edward C.

Keefer et al., eds., 1998), available at http://history.state.gov/historicaldocuments/frus1961-63v11/d31

(last visited Aug. 3, 2012) (notes of October 19, 1962 meeting). These records suggest that the memo-

randum may have been prepared by Leonard Meeker, Deputy Legal Adviser for the Department of

State, perhaps in consultation with Nicholas Katzenbach, Deputy Attorney General at the time and

previously Assistant Attorney General for OLC. Mr. Meeker kept the notes that are collected in the

declassified records of the October 19 meeting. According to Mr. Meeker, Mr. Katzenbach spoke first

at the meeting and stated that “the President had ample constitutional and statutory authority to take any

needed military measures.” Id. Mr. Meeker recorded that “my analysis ran along much the same lines.”

Id.

Mr. Katzenbach’s and Mr. Meeker’s positions were thus consistent with that of this memorandum.

They were also consistent with two other OLC opinions included in this volume—one signed by Robert

Kramer, Assistant Attorney General for OLC, and addressed to Attorney General Kennedy (Authority

of the President to Blockade Cuba, 1 Op. O.L.C. Supp. 195 (Jan. 25, 1961)); the other signed by

Norbert Schlei, Assistant Attorney General for OLC, also addressed to Attorney General Kennedy

(Authority Under International Law to Take Action If the Soviet Union Establishes Missile Bases in

Cuba, 1 Op. O.L.C. Supp. 251 (Aug. 30, 1962)). This memorandum does not cite either of those

opinions, however, which tends to suggest that it was not prepared by the Department of Justice.

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establishment may be questioned within the Organization of American States

(“OAS”) and, perhaps, within the United Nations. In addition, it concludes that

such a blockade could be regarded by Cuba and other Soviet Bloc nations as an act

of war.

I. The Legal Requirements of a Blockade

The most authoritative definition of blockade reads as follows:

Blockade is the blocking by men-of-war of the approach to the ene-

my coast, or a part of it, for the purpose of preventing ingress and

egress of vessels or aircraft of all nations. . . . Although blockade

is . . . a means of warfare against the enemy, it concerns neutrals as

well, because the ingress and egress of neutral vessels are thereby in-

terdicted, and may be punished.

2 L. Oppenheim, International Law: A Treatise 768 (H. Lauterpacht ed., 7th ed.

1952).

Historically, blockade has been associated with belligerent nations as a measure

of war.

While the practical effectiveness of a blockade may be influenced by the failure

to interdict aircraft or, presumably, submarines, the legal effectiveness of a

blockade is not affected by the failure to do so. Id. at 781. Thus, a blockade may be

declared against shipping alone, or against shipping and aircraft.

The formal requirements of a blockade have to do with the manner in which it

is established and its existence made known. The declaration must state the date on

which a blockade begins and must make clear its geographical limits. In addition,

it must satisfy three conditions: (1) it must be effectively maintained; (2) it must

not bar access to ports and coasts of countries not included within its objectives;

and (3) it must be applied impartially to the shipping of all nations.

The reasons for these conditions are clear. The state declaring the blockade

must be able to make it effective against all shipping to the extent that the risk of

running the blockade is clear and apparent. Otherwise, a so-called “paper block-

ade” would exist and amount to a mere license to commit haphazard acts of

privateering. The element of danger must be clearly understood since, as a matter

of law, any shipping which seeks to run a blockade is liable to seizure and eventual

condemnation by the blockading state.

A blockade may exclude all shipping and, therefore, all cargoes from the block-

aded state. Alternatively, the blockading state may declare only certain cargoes

contraband.

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II. Blockade as an Act of War

There is a good deal of authority to the effect that a blockade assumes the exist-

ence of a state of war and that there is legally no such thing as a “pacific blockade”

or “a blockade during time of peace.” There are frequent statements by commenta-

tors that a blockade necessarily means war, or depends upon a pre-existing state of

war, or in and of itself creates a state of war. The United States took such a

position with respect to the Anglo-German Blockade of Venezuela in 1902, and

again in 1919, with respect to the proposal that the Allied governments blockade

Bolshevist Russia. Broad statements of this kind, however, require considerable

qualification in the light both of history and of contemporary conditions.

A. History

During the nineteenth century, a lawyer’s distinction between war and peace

grew up. Since international law was divided between that which existed in

peacetime and that which existed in wartime, it became important to lawyers to

attempt to make a clear distinction. For example, the law of the high seas in

peacetime forbade one nation to stop the shipping of another, but during time of

war freedom of the seas could be heavily circumscribed through rights of blockade

and search and seizure.

In practice, states never observed the clear-cut distinction between war and

peace which lawyers insisted must exist. Whenever a state had a limited objective

in its use of force, it customarily refrained from declaring war, which implied all-

out hostilities rather than limited action. Often these were referred to as “acts short

of war,” “hostile measures short of war,” or “reprisals short of war.” The lawyers,

however, kept insisting that as a matter of strict logic there could be no such thing.

There are numerous examples. On several occasions, the United States used

armed force to protect American property abroad against the will of the state

involved without a declaration of war. One such instance was the bombardment

and occupation of Vera Cruz, which Mexico insisted was an act of war, though the

United States maintained that no state of war existed. Other states engaged in

similar practices; Corfu is another famous example.

In 1902, the British engaged in a blockade of Venezuela as a measure to en-

force the collection of a debt. The United States insisted that a blockade required a

declaration of war and demanded that the British either cease the blockade or

declare war on Venezuela. Eventually the British did, and only after they had done

so did the United States recognize the legality of the blockade.

The declaration of a state of war was helpful in ascertaining the rights and

obligations of neutrals in a given situation. Apart from this, however, it served

little function. War itself, whatever its reason, was legal self-help, and so were

lesser measures if such could be said to exist.

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Whether or not a nation declared a state of war it would be found by others to

exist if that state were claiming rights, such as blockade, normally associated with

war. Therefore, it seems to me that legal doctrine to the effect that blockade

requires a state of war is utterly tautological. Blockade is a right that existed only

during war since it was doctrinally related to wartime rather than peacetime. One

could deduce a state of war from the existence of a blockade. And one could not

conceptually claim rights of blockade without acknowledging its relationship to

war. Thus the declaration of war really had no significance apart from clarification

that one was claiming the rights normally associated with blockade under interna-

tional law rather than exceptional rights which would have been unprecedented

interference with freedom of the high seas during peacetime.

Applied to the current situation, one could say that if the United States declared

a blockade and asserted the rights with respect to neutrals normally associated with

it, there would be no need to declare a state of war as well. Other states might

insist, as we did in the case of Venezuela, that we declare a state of war, but it is

difficult to see the significance of this insistence in any realistic terms should we

refuse to do so. Alternatively, they could state that war existed by virtue of the fact

that we have declared a blockade, whether we affirmed the state of war or not.

In the light of these facts, what we say with respect to the existence or nonex-

istence of a state of war is largely a political judgment. I would recommend,

therefore, that if we declare a blockade, we simply claim all the rights a blockad-

ing nation would have if a state of war existed. This clarifies our position suffi-

ciently for legal purposes. A number of states will say this amounts to a declara-

tion of war against Cuba, but that could scarcely be avoided under any

circumstances.

B. Contemporary Conditions

In actuality the existence or non-existence of a state of war has always been a

question of fact, not of law. If actual hostilities exist, then such parts of the law of

war as treatment of prisoners, etc., exist irrespective of any formal declaration and

irrespective of the legality or illegality of the hostilities themselves. Moreover, the

distinction between war and peace, as it existed in the nineteenth century, has

limited application today. Various acts are made unlawful by the U.N. Charter, a

sharp distinction from the nineteenth century view that war was itself a lawful

prerogative of states. The significance, therefore, from a legal point of view of a

declaration of war is less important, since it does not make acts in violation of the

Charter lawful.

One pertinent example of this state of affairs is the blockade of shipping insti-

tuted by Egypt against Israel. Egypt sought to invoke its declared state of war with

Israel as a justification for the blockade. The Security Council, without questioning

or commenting upon the existence of a state of war, declared the blockade to be

unlawful under the Charter.

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The legality today of a blockade unilaterally imposed by one state upon another

depends upon its compatibility with the language and principles of the Charter.

Ordinarily it, like other measures involving force, is reserved to the United Nations

or to regional organizations such as the OAS. If imposed unilaterally without prior

approval it must be considered a reasonable measure under the circumstances,

proportional to the threat posed, and limited to a legitimate purpose. It does not

become more or less lawful on the basis of declaration of war or a failure to

declare war.

The irrelevancy of a declaration of war is further supported by the fact that

institution of a blockade is a measure granted expressly to the United Nations and

by inference to the OAS under their respective charters, but nothing is said about

the right of these organizations to declare war. In point of fact, the United Nations

authorized a blockade in the Korean “police action” and claimed all of the usual

legal incidents of a blockade during a state of war. War, of course, was not

declared by the United Nations or by nations participating.

III. Presidential Authority to Declare a Blockade

Both practice and authority support the proposition that the President, in the

exercise of his constitutional power as Commander in Chief, can order a blockade

without prior congressional sanction and without a declaration of war by Congress.

President Lincoln took such action in 1861, and his authority was sustained by the

Supreme Court in the Prize Cases. 67 U.S. (2 Black) 635 (1862). While the

Supreme Court there found, in accordance with the doctrine discussed above, that

a state of war existed as a matter of fact and as a result of the proclamation by the

President of a blockade, the Court did not suggest that the President was remiss in

failing to seek a declaration of war from Congress.

On April 20, 1898, a joint resolution of Congress directed the President to use

the land and naval forces of the United States to compel the Government of Spain

to relinquish its authority over Cuba. Pub. Res. No. 55-24, 30 Stat. 738. In accord-

ance with this resolution, President McKinley, on April 22, issued a proclamation

instituting a naval blockade of Cuba. 14 Compilation of the Messages and Papers

of the Presidents 6472 (James D. Richardson ed., 1909). Subsequently, Congress

declared that a state of war existed and that such state had existed since prior to the

proclamation. Pub. L. No. 55-189, 30 Stat. 364 (Apr. 25, 1898). But it is clear that

the President did not depend upon any congressional declaration of war, or even

upon a future ratification of his proclamation, when he issued it.

Finally, President Truman, in 1950, issued an order blockading Korea. He

stated that he did so in keeping with the Security Council’s request for support, but

he did not then seek congressional authorization for the act, nor did he seek a

declaration of war. White House Statement Following a Meeting Between the

President and Top Congressional and Military Leaders to Review the Situation in

Korea, Pub. Papers of Pres. Harry S. Truman 513 (1950).

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I believe with or without the congressional resolution of October 3, 1962, Pub.

L. No. 87-733, 76 Stat. 697, the President could declare a blockade of Cuba, and it

is doubtful if Congress could circumscribe this right. The instant resolution,

however, tends to support the proposed action, and thus serves a purpose analo-

gous to that of the 1898 Resolution and the 1950 action of the Security Council.

It should be noted that even if one were to assume that international law re-

quires a state of war to exist before one can invoke the right of blockade, this

international rule is not pertinent to the President’s authority under the Constitu-

tion. There are numerous examples of American Presidents taking measures which

could internationally be regarded as acts of war without first seeking congressional

authority. And no foreign state could argue that a state of war did or did not exist

because American constitutional procedures were or were not followed in a

particular instance.

IV. Unilaterally Declared Blockade Under the U.N. Charter

The most difficult legal problem is to justify a unilateral declaration of block-

ade in the face of the U.N. Charter. The Charter appears to reserve to the United

Nations, or to regional organizations, most measures involving the use of force.

But, at the same time, it explicitly precludes the use of force only against the

“territorial integrity” or “political independence” of another state (Article 2), and

even this is qualified by recognizing the right of a state to act in self-defense

(under Article 51) against an armed attack. In addition, the Charter forbids other

actions which breach the peace or are inimical to the purposes of the United

Nations.

Three justifications of a unilateral blockade are possible: (1) self-defense;

(2) that it is necessary to preserve the peace; and (3) that it is not forbidden by the

Charter.

Self-defense is a difficult argument in view of the requirement for an “armed

attack.” Some writers, however, take the realistic view that a state need not wait so

long if, in fact, to do so would so jeopardize its security position as to render it

helpless.

An easier argument, in my judgment, is to assert the right to preserve the peace

by acting in an emergency on behalf of a regional organization, promptly submit-

ting the matter to the organization for ratification. Acting without prior approval

could be justified on the basis of urgency and lack of time. In the case of U.S.

action against Cuba it could be further bolstered by prior findings of the organiza-

tion and the long history of U.S. protection of Latin America against threats of

foreign domination.

This latter argument would be difficult to maintain if the United States were

actually to mount an assault on Cuba. But a blockade is not an action which is

irreversible if subsequently it fails of ratification, and is correspondingly more

defensible as a unilateral step.

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The third argument in justification is closely related to the second. I believe one

could successfully contend that a state has the right unilaterally to prevent a

change in the status quo adverse to its security and itself a threat to the peace

pending action by the OAS (or United Nations), provided the action it takes is

essentially non-violent and designed to protect rather than irrevocably change the

pre-existing situation. This, of course, would be true of blockade. Thus, until the

OAS either supported or renounced the U.S. blockade, I believe we would be

justified in maintaining it as a measure preserving a pre-existing state of affairs

and preventing a situation which might require more drastic action to overturn or

even lead to full-scale war.

V. Blockade and Marine Insurance

The effect of a blockade on marine insurance can be viewed from several

standpoints. First, from the standpoint of the blockading state it is illegal for

insurance companies to write insurance on cargoes destined to the ports of the

blockaded state. This would, of course, under the historic view be prohibited

trading with an enemy. On the other hand, it would not be illegal for an English

insurance company to write policies on cargoes destined to a blockade country

where England was not the blockading state. See 2 Joseph Arnould, Arnould on the

Law of Marine Insurance and Average § 760, at 681 (Robert S. Chorley ed., 14th

ed. 1954). As a practical matter, however, it is obvious that British companies will

not write policies on cargoes destined to Cuba because of the risk of loss involved.

A second insurance problem relates to neutral ships on the high seas bound for

a blockaded port before the institution of the blockade or caught in such a port

with a cargo taken on before the blockade has been instituted. This situation

involves the application of the usual clause in marine insurance policies covering

loss arising from “arrests, restraints, and detainments of all kings, princes, and

people of what nation, condition, or quality whatsoever.” Under American law,

this clause protects a neutral vessel in the situation described. Olivera v. Union Ins.

Co., 16 U.S. (3 Wheat.) 183 (1818) (Marshall, C.J.); Vigers v. Ocean Ins. Co., 12

La. 362 (1838). Apparently this is also the law in continental European countries.

On the other hand, in England “it has been repeatedly decided, and must now be

taken as clear insurance law, that neither interdiction of trade at the port of

destination after risk commenced, nor interception of the voyage by blockade, or

by the imminent and palpable danger of capture or seizure, amounts to a risk for

which English underwriters are answerable under the common form of policy,

either as an ‘arrest, restraint, and detention,’ or in any other way whatever.”

2 Arnould, Marine Insurance § 804, at 727.

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