      Authority Under International Law to Take Action If the
          Soviet Union Establishes Missile Bases in Cuba
In the event that missile bases should be established in Cuba by the Soviet Union, international law
   would permit use by the United States of relatively extreme measures, including various forms and
   degree of force, for the purpose of terminating or preventing the realization of such a threat to the
   peace and security of the western hemisphere.
An obligation would exist to have recourse first, if time should permit, to the procedures of collective
  security organizations of which the United States is a member.
The United States would be obliged to confine any use of force to the least necessary to the end
  proposed.

                                                                                     August 30, 1962

                 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

    The attached memorandum makes reference to an appendix of historical mate-
rials which has not yet been typed in final form. It will be delivered later today.
    As you will see, the memorandum has some of the tone of a brief; it devotes
little space to any counter-arguments that might be made. This approach seemed
desirable in order to avoid any appearance of doubt or indecision in case any
public use of the material should be made. I do not mean to suggest that we doubt
our conclusions, but only that greater emphasis could have been given to the
opposing arguments that exist. Nick and I discussed the memorandum this
morning and agreed that it might be a good idea to prepare a supplemental
memorandum on the opposing arguments and some of the non-legal factors that
may be relevant.
    The form of any statement that might be made, and the question whether one
should be made at all, depend greatly on what information and evidence are
available. There are strong reasons for withholding any statement until the
President is ready to take some action. If this subject is raised and discussed and
nothing happens, the international community may grow used to the problem of
Soviet missiles in Cuba and it will become more difficult for us as time passes to
generate the sense of urgency needed to get action approved in the Organization of
American States (“OAS”). On a political level, there might be charges of inaction
and of “no win” policy. On the other hand, if no statement is made we would lose
the chance that a mere warning would be sufficient. I think the Soviet Union and
Cuba are already aware that any attempt to install missiles in Cuba might provoke
the most extreme countermeasures on our part.*

    *
      Editor’s Note: This opinion has previously been published in 6 Green Bag 2d 195 (2003), but
without the cover memorandum (the material that precedes this note) and without the appendix of
historical materials that starts on page 260. We have not been able to locate the supplemental memo-
randum that is mentioned in the second paragraph above.




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


                                             *****

    This is in response to your request for the views of this Office as to certain
legal issues bearing upon a proposed declaration by the President of the intentions
of this government in the event that missile bases should be established in Cuba by
the Soviet Union. In general, it is our view that international law would permit use
by the United States of relatively extreme measures, including various forms and
degree of force, for the purpose of terminating or preventing the realization of
such a threat to the peace and security of the western hemisphere. An obligation
would exist to have recourse first, if time should permit, to the procedures of
collective security organizations of which the United States is a member. The
United States would, further, be obliged to confine any use of force to the least
necessary to the end proposed.
    Part I of this memorandum deals with the function and content of the concept
of self-defense in international law generally. The next part examines certain
regional differences which have developed in the application of that concept as a
result of historical attitudes and practices and other factors. The memorandum
concludes with several concrete suggestions as to the form and content of the
proposed statement by the President.

                                                 I.

   International law relating to the use of force centers about the polar concepts of
aggression and self-defense. Although forcible violation of a state’s boundaries or
of its most highly developed systems of municipal law permit the use of force in
self-defense within relatively narrow limits, in the international community, where
there exists no centralized authority capable of maintaining order, states must
have, and are accorded by law, a proportionately greater freedom to protect their
vital interests by unilateral action. Not only customary international law but the
United Nations Charter and substantially all other conventions and treaties which
relate to this subject recognize the indispensable role of self-defense under present
conditions.
   The concept of self-defense in international law of course justifies more than
activity designed merely to resist an armed attack which is already in progress.
Under international law every state has, in the words of Elihu Root, “the right . . .
to protect itself by preventing a condition of affairs in which it will be too late to
protect itself.”1 Cases commonly cited as illustrative of this principle include that
of the Virginius,2 in which Spanish forces seized an American vessel on the high


   1
     Elihu Root, The Real Monroe Doctrine, 8 Am. J. Int’l L. 427, 432 (1914).
   2
     2 John Bassett Moore, A Digest of International Law §§ 309, 315, at 895–903, 980–83 (1906);
William Edward Hall, A Treatise on International law § 86, at 328–31 (A. Pearce Higgins, ed., 8th ed.
1924).




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      Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


seas en route to Cuba carrying arms for the use of insurgents. Britain demanded
reparations for arbitrary treatment of its subjects found on board the vessel after
the seizure was effected, but conceded the legality of the seizure itself. The United
States withdrew its initial protest and eventually adopted the British view of the
incident as its own. Similarly, in the case of the Caroline,3 Canadian forces
invaded the United States and destroyed the vessel, which was to be used by
Canadian insurgents and American sympathizers in an attack on Canada. Many
other illustrations of the principle could be cited.4
    Although it is clear that the principle of self-defense may justify preventive
action in foreign territory and on the high seas under some circumstances, it is also
clear that this principle is subject to certain limitations. For example, such
defensive action is subject to a rule of proportionality. Thus in the Caroline case
the United States called upon Great Britain not only to justify the taking of
preventive action, but also to show that its forces “did nothing unreasonable or
excessive; since the act, justified by the necessity of self-defence, must be limited
by that necessity and kept clearly within it.”5
    A further limitation on preventive action, at least unilateral action not sanc-
tioned by any collective security arrangement, relates to the degree of urgency that
must exist before it is invoked. In the next section of this Memorandum it is
argued that, under the special regime applicable to the Western Hemisphere, the
mere maintenance of facilities for certain kinds of armed attack, without more,
may justify preventive action. However, apart from such special regimes, it is
clear that preventive action in self-defense is warranted only where the need for it
is “instant, overwhelming, leaving no choice of means, and no moment for
deliberation.”6 It thus is clear that preventive action would not ordinarily be lawful
to prevent the maintenance of missile bases or other armaments in the absence of
evidence that their actual use for an aggressive attack was imminent.
    Another limitation upon the concept of self-defense, as derived from customary
law, is imposed by the United Nations Charter (59 Stat. 1031) and the charters of
regional collective security organizations, such as the Organization of American
States (“OAS”), of which the United States is a member. The charters of these
organizations in each case preserve the right of individual states to use force in
self-defense, and, although certain ambiguities are presented by the language used,
it appears that none of the charters prohibits the taking of unilateral preventive


    3
      Hall, supra note 2, § 84, at 322–25; 1 Charles Cheney Hyde, International Law Chiefly as Inter-
preted and Applied by the United States § 66, at 239–40 (2d ed. 1945).
    4
      See, e.g., D.W. Bowett, Self-Defense in International Law (1958).
    5
      Letter for Henry Stephen Fox, Envoy Extraordinary and Minister Plenipotentiary, from Daniel
Webster, Secretary of State, Apr. 24, 1841, reprinted in 29 British and Foreign State Papers 1129,
1138 (1840–41).
    6
      Id. Mr. Webster’s statement was quoted with approval by the International Military Tribunal at
Nuremberg. Judgment of Oct. 1, 1948, reprinted in 41 Am. J. Int’l L. 172, 205 (1947).




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              Supplemental Opinions of the Office of Legal Counsel in Volume 1


action in self-defense prior to the occurrence of an armed attack. However,
although it is arguable that there is no express commitment in these charters to
utilize the procedures they afford in situations calling for preventive action,
adherence to such an organization undoubtedly carries with it a commitment to
have recourse to the organization’s procedures if at all possible before acting
unilaterally.7 Indeed, an obligation to this effect might well be deduced from the
general rules as to preventive action, summarized above, to the effect that such
action is lawful only as a last resort. In any event, the United States is heavily
committed to the use of collective security procedures as a matter of policy.
    A further principle recognized in the U.N. Charter (art. 51) is that action may
be taken in self-defense, pursuant to a regional collective security arrangement, by
a state which is not directly threatened. If a sufficient threat against any member
state is established, the organization and all its members may act. In this respect,
the Charter has the effect of expanding the area in which preventive action is
regarded as lawful.
    Both the U.N. Charter and the Charter of the OAS (Apr. 30, 1948, T.I.A.S. No.
2361, 2 U.S.T. 2416, 119 U.N.T.S. 48) authorize collective action upon less
provocation than would be required to justify unilateral action. The Security
Council may take action against any “threat to the peace” or “breach of the peace”
as well as any “act of aggression” (U.N. Charter art. 39). Such action may include
not only the economic and political sanctions listed in article 41 but also “demon-
strations, blockade, and other operations by air, sea, or land forces,” as provided in
article 42. Action proposed in the Security Council is, of course, subject to veto by
any one of the five permanent members. Upon a less explicit legal basis, the
General Assembly may take similar action under the “Uniting-for-Peace” resolu-
tion. Under article 25 of the Charter of the OAS and article 5 of the Rio Treaty (or
“Rio Pact,” Inter-American Treaty of Reciprocal Assistance, opened for signature
Sept. 2, 1947, 62 Stat. 1681, reprinted in 17 Dep’t of State Bull. 565 (Sept. 21,
1947)), which are interrelated, measures for the common defense may be taken not
only in the event of an armed attack but also if the “territory or the sovereignty or
political independence of any American State” is affected by “an act of aggression
that is not an armed attack” or by “any other fact or situation that might endanger
the peace of America . . . .” Under article 17 of the Rio Treaty, enforcement action
requires a two-thirds vote in the Organ of Consultation.




    7
      Article 51 of the U.N. Charter requires that action taken in the exercise of the right of self-defense
be reported to the Security Council. Unilateral action such as a blockade or an armed attack could,
further, be brought before the OAS for review by any member nation. Decisions by two-thirds vote of
the Organ for Consultation created by the Rio Pact are binding upon all member states (art. 20), except
that no state can be required to use armed force without its consent.




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      Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


                                              II.

    Since the Monroe Doctrine was announced in 1823, the United States has
consistently maintained that it has the right to take all necessary action to prevent
any non-American power from obtaining control over territory in the Western
Hemisphere. Since 1846, when the so-called Polk Corollary of the Doctrine was
added, it has been understood that this right is claimed regardless of whether the
foreign intervention occurs with the consent of inhabitants of the area affected. In
modern times, it has been understood that the right is claimed not only on behalf
of the United States but on behalf of all American states. The right has repeatedly
been respected and acknowledged throughout the Americas and the world.
    Historical materials with respect to the Monroe Doctrine are collected in the
Appendix which is attached. Perhaps the most relevant of these materials are those
relating to action taken by the United States and other nations in the Western
Hemisphere during the period of 1940–41, prior to their involvement in World
War II. In 1940, by the Act of Havana, the American powers agreed to prevent by
collective action, or by unilateral action if necessary, changes in the control of
territory in the Western Hemisphere as a result of the European hostilities. In
1941, the United States occupied Greenland and dispatched troops to Iceland.
Although the occupation of Greenland was justified in part under a treaty with the
Danish government in exile, it seems clear that the true basis for the action taken
by the United States was the concept of regional self-defense expressed in the
Monroe Doctrine.8
    The historical materials which are appended show that the Doctrine has from
the beginning represented a regional variation in the international law of self-
defense. The Doctrine asserts that, in order to insulate the Americas from dangers
to peace and security stemming from conflicts involving non-American states, the
occupation or control of American territory by a non-American power in itself
shall be deemed to present a sufficient danger to warrant exercise by the United
States and other American powers of the right of self-defense. The result of the
consistent adherence to this attitude by the United States and most other American
states, together with the acquiescence of the rest of the civilized world, has been to
create a specialized, regional body of law under which preventive action in self-
defense is, in the Americas, authorized under less restrictive conditions than would
be required in some other regions.
    In more recent years, the United States has ceased to maintain the Monroe
Doctrine in the more extreme forms which it assumed in the late nineteenth and
early twentieth centuries. The Doctrine today does not protect purely economic or
political interests, as it once did, or even security interests which are less than
fundamental. Thus the United States has refrained from direct intervention in Cuba

  8
    See, e.g., Herbert W. Briggs, Editorial Comment, The Validity of the Greenland Agreement, 35
Am. J. Int’l L. 506 (1941).




                                              255
                Supplemental Opinions of the Office of Legal Counsel in Volume 1


to prevent the mere continuance in office, apart from any specific military threat,
of a government which is allied with the communist bloc and which has not
hesitated to destroy economic interests of the United States in the island. The
United States has further refrained from forcible intervention to prevent shipment
of conventional arms to Cuba, thus tolerating a certain degree of danger that such
arms might be used for aggressive purposes against the United States or against
other American nations. So far the United States has withheld action in deference
to conceptions, entertained strongly in some quarters in Latin America, of self-
determination and non-intervention. However, thus far it has been arguable that
under modern conditions, no critical danger to the peace and security of other
countries in the Western Hemisphere was presented; that shipments of conven-
tional arms to the Castro government could not necessarily be ascribed to any
purpose beyond the defense of Cuba. The same cannot be said of missiles,
certainly not of ground-to-ground missiles. The use of Cuban territory to mount
such weapons, usable by the Soviet Union only to attack other states and not
merely for the defense of Cuba against attack, falls wholly outside the reasons for
mitigation by the United States of some aspects of the Monroe Doctrine. Equally
important, it falls wholly outside the reasons advanced by our allies in Latin
America for opposing interventionist aspects of the Doctrine.
   There is nothing unique about the concept of regional differences, based upon
historical attitudes and practices, in the impact and requirements of international
law. In the Anglo-Norwegian Fisheries Case,9 for example, the International Court
of Justice upheld a system for determining the baselines and boundaries of
Norway’s territorial sea that could be valid outside Norway, if at all, only in the
Scandinavian region. In so doing, the Court relied upon “interests peculiar to [the]
region, the reality and importance of which are clearly evidenced by a long
usage,” and upon the “general toleration of foreign States” over an extended
period.10 Regional variations are also familiar features of the law of the sea with
respect to bays and with respect to sedentary fisheries.
   In a memorandum for the Attorney General dated April 12, 1961, Assistant
Attorney General Katzenbach noted that traditional legal doctrines relating to
intervention date from the pre-World War I period and reflect the existence at that
time of a security structure based upon flexibility of alignment. Since change of
alignment to preserve a balance of power was the principal technique by which
security was maintained, legal doctrines tended to develop that would promote
freedom to change alignment and would discourage intervention for the purpose of
maintaining existing alignments.
   The memorandum continues as follows:



   9
       Fisheries Case (U.K. v. Nor.), Judgment, 1951 I.C.J. 116 (Dec. 18).
   10
        Id. at 133, 138.




                                                   256
         Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


          The political structure today is vastly different. Alignments within
          the Communist Bloc and within the West are long-term political
          alignments with considerable aspects of supra-national authority. As
          a result, the security system from the point of view of each bloc de-
          pends less upon neutrality of alignment than it does upon preserving
          the alignments which exist. Therefore, . . . there is considerable pres-
          sure for intervention in situations where bloc security is threatened.
          There is nothing in the existing legal structure which recognizes this
          state of affairs, but there are numerous instances where intervention
          has been tolerated in the postwar period; for example, Hungary,
          Guatemala, Lebanon, and, in 1948, Israel.

Memorandum for Robert F. Kennedy, Attorney General, from Nicholas deB.
Katzenbach, Assistant Attorney General, Office of Legal Counsel, Re: Interven-
tion by States and Private Groups at 3 (Apr. 12, 1961).
    Although it is true that traditional legal concepts of general application do not
expressly recognize interests in bloc security, the Monroe Doctrine constitutes an
explicit qualification on a regional basis of general legal concepts insofar as the
Western Hemisphere is concerned. The history of the Doctrine includes many
incidents which emphasize its purpose to prohibit flatly the adherence of territories
in the Americas to European or Asiatic power blocs, or for that matter the transfer
by them of allegiance from one bloc to another.11 The premise underlying this
purpose—that peace and security in the Hemisphere could be assured only by
insulating it from the unstable alliances and rivalries of Europe and Asia—
squarely contradicts the balance-of-power policies that infuse the doctrines of
general application which are altered by the Doctrine.
    Moreover, although publicists in the field of international law have not yet
formulated concepts and doctrines which expressly recognize the changed world
situation, it seems probable that international law, as reflected in the actual
practices and expectations of states, already recognizes the decisive importance of
bloc security today in certain geographic areas. International law is, after all,
essentially a generalized statement in terms of rules and policies of the reasonable
expectations of states as derived from their practices in making claims and
reacting to the claims of others. The Western states have, of course, condemned as
unlawful the Soviet intervention in Hungary, directed as it was against a revolt
which at the time posed a purely political threat against the Soviet Union. It may
be doubted, however, whether the United States would have protested seriously
the use of force by the Soviet Union if it had been designed for the limited purpose
of compelling abandonment of a plan to install Western missile bases in Hungari-
an territory.


   11
        See generally John A. Logan Jr., No Transfer: An American Security Principle (1961).




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                Supplemental Opinions of the Office of Legal Counsel in Volume 1


   If in the future the government of Poland should become increasingly friendly
to the United States, our government would undoubtedly defend strongly its legal
right to withdraw from the communist political bloc. It seems altogether certain
that we would, however, feel obliged to refrain from attempting to supply Poland
with ground-to-ground missiles or other armaments readily susceptible of
aggressive use. Yugoslavia, and perhaps Finland as well, provide examples of
states which the international community as a whole probably regards as insulated,
under threat of intervention by the Soviet Union, from full incorporation into the
western military structure.
   In appraising the rights of the United States vis-à-vis Cuba, the treaty of 193412
may have some relevance. The principal effect of the treaty was to abrogate the
Cuban-American Treaty of 1903,13 under which the United States had the right to
intervene in Cuba virtually at will. However, the treaty of 1934 preserved existing
agreements indefinitely with respect to the leasing of naval stations in Cuba
insofar as they applied to the naval station at Guantanamo. The Treaty of 1934 did
not expressly obligate Cuba to refrain from permitting the use of its territory for
military purposes by other states. However, the fair inference arising from the
cession of naval rights to the United States is that the island was to be a part of, or
at least not a breach in, the defensive military system protecting the continental
United States and the Caribbean countries. At the time of the treaty, of course, a
military threat to these areas from Cuba could arise only as a consequence of naval
and air installations of the type which the treaty secured to the United States. The
evident intention of the parties to the treaty, broadly stated, thus was to restrict
intervention by the United States on political or economic grounds, but to preserve
the position of Cuba in the defensive military system of the United States.
Certainly the treaty is not inconsistent with the position here expressed as to the
legal rights of the United States in the event of military use of Cuban territory by
the Soviet Union.
   It should be apparent that the conclusions here reached do not undermine the
legal position of the United States with respect to its own missile bases abroad. In
no case of which we are aware is a country in which the United States maintains
missile bases subject to a special regime comparable to the Monroe Doctrine.
Moreover, in no case is any such country a member or former member of the
Communist Bloc or within the acknowledged periphery of the Soviet security
system. Finally, there is a basic factual difference in the military relationships of
such countries to the Soviet Union and that of Cuba to the United States. The
states in which bases are maintained by the United States are in each case among
the major targets of Soviet Military preparations. No impartial observer could
conclude that Cuba is a major object of the military program of the United States,


   12
        U.S. Dep’t of State, Treaty Info. Bull. No. 56 (May 31, 1934).
   13
        U.S. Dep’t of State, Foreign Relations of the United States 243 (1905).




                                                   258
     Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


or that Cuba is in any danger of a missile attack by the United States. The United
Kingdom may harbor U.S. missiles in self-defense because it is a likely target of
Soviet missiles. For Cuba to harbor Soviet missiles would constitute a wholly
disproportionate response to any sane estimate of its defensive needs against the
United States.

                                          III.

    We assume that any statement by the President on this subject would begin by
announcing that there is reason to believe the governments of Cuba and the Soviet
Union may be actively considering the installation of Soviet missiles on Cuban
territory, and would be designed generally to warn those countries of the inten-
tions of the United States in any such eventuality. We offer the following sugges-
tions with regard to such a statement by the President:
    1. The statement should emphasize the historical and regional aspects of the
rights being asserted by the United States.
    2. The statement should emphasize the threat to other countries as well as the
United States, and the defensive character of any action that might be taken by the
United States. Possibly the statement should expressly disclaim any intention to
act for economic or political ends, or for any purpose other than to compel an
abandonment of plans to create a specific military threat in Cuba.
    3. The statement should indicate an intention to have recourse first, if at all
possible, to collective security arrangements to which the United States is a party,
particularly the Organization of American States. It should also, without qualify-
ing the strong commitment of the United States to the principle of collective
security, make the point that the United States has an ultimate responsibility for its
own safety which in situations of extreme gravity necessarily would take prece-
dence over all other commitments. Consideration should be given to withholding
the statement until it can be made as a first step in an integrated plan to secure
collective action by the OAS. If made in that context, the statement should
announce a call for a meeting of the Organ of Consultation pursuant to the Inter-
American Treaty of Reciprocal Assistance (Rio Pact).
    4. The statement should acknowledge an obligation on the part of the United
States to observe a rule of proportionality. An express reference might be made to
total blockade or to “visit and search” procedures as appropriate reactions by the
American states or by the United States to meet a threat to install missile bases in
Cuba. In this connection, care should certainly be exercised to avoid the implica-
tion that Cuba is under any immediate threat of nuclear attack.

                                                  NORBERT A. SCHLEI
                                                 Assistant Attorney General
                                                  Office of Legal Counsel




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              Supplemental Opinions of the Office of Legal Counsel in Volume 1


                                           APPENDIX

              Historical Material with Respect to the Monroe Doctrine

                              1. The Monroe Doctrine (1823)

   The Monroe Doctrine was proclaimed by President Monroe in his message to
Congress on December 9, 1823. This proclamation of fundamental principles of
American foreign policy in the Western Hemisphere was induced by several
factors—the intervention of the three leading absolute monarchies of Russia,
Austria, and Prussia (the so-called “Holy Alliance”) in the affairs of other
European countries, the fear that they might attempt to overthrow the newly
independent Latin-American states and restore them as Spanish colonies, and
Russian claims in the Western Hemisphere. 14 President Monroe’s message stated
in part:

            [T]he occasion has been judged proper for asserting as a principle
         in which the rights and interests of the United States are involved,
         that the American continents, by the free and independent condition
         which they have assumed and maintain, are henceforth not to be
         considered as subjects for future colonization by any European pow-
         ers . . . .

             . . . The political system of the allied powers is essentially differ-
         ent in this respect from that of America. . . . We owe it, therefore, to
         candor, and to the amicable relations existing between the United
         States and those powers, to declare that we should consider any at-
         tempt on their part to extend their system to any portion of this hemi-
         sphere as dangerous to our peace and safety. With the existing colo-
         nies or dependencies of any European power we have not interfered
         and shall not interfere. But with the Governments who have declared
         their independence, and maintained it, and whose independence we
         have, on great consideration and on just principles, acknowledged,
         we could not view any interposition for the purpose of oppressing
         them, or controlling in any other manner their destiny, by any Euro-
         pean power, in any other light than as the manifestation of an un-
         friendly disposition towards the United States. . . .

              . . . It is impossible that the allied powers should extend their po-
         litical system to any portion of either [American] continent without
         endangering our peace and happiness; nor can anyone believe that


  14
       Alejandro Alvarez, The Monroe Doctrine 6–7 (1924).




                                               260
      Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


       our southern brethren, if left to themselves, would adopt it of their
       own accord. It is equally impossible, therefore, that we should be-
       hold such interposition, in any form, with indifference.15

                             2. The Polk Corollary (1848)

   In 1848 Mexican officials in Yucatan indicated a willingness to permit annexa-
tion of territory under their jurisdiction by Great Britain or Spain in return for
protection against the rebellious native Indian population. To forestall any
possibility of European intervention in Mexico, President Polk sent a special
message to Congress on April 29, 1848, enunciating what is known as the Polk
Corollary of the Monroe Doctrine. The President’s message declared in part:

          I submit for the consideration of Congress several communica-
       tions received at the Department of State from Mr. Justo Sierra,
       commissioner of Yucatan, and also a communication from the Gov-
       ernor of that State, representing the condition of extreme suffering to
       which their country has been reduced by an insurrection of the Indi-
       ans within its limits, and asking the aid of the United States.

           ....

          In this condition they have, through their constituted authorities,
       implored the aid of this Government to save them from destruction,
       offering in case this should be granted to transfer the “dominion and
       sovereignty of the peninsula” to the United States. Similar appeals
       for aid and protection have been made to the Spanish and the English
       Governments.

          Whilst it is not my purpose to recommend the adoption of any
       measure with a view to the acquisition of the “dominion and sover-
       eignty” over Yucatan, yet, according to our established policy, we
       could not consent to a transfer of this “dominion and sovereignty” ei-
       ther to Spain, Great Britain, or any other European power. In the
       language of President Monroe, in his message of December, 1823—

              We should consider any attempt on their part to extend their
              system to any portion of this hemisphere as dangerous to our
              peace and safety.

              ....


   15
      2 A Compilation of the Messages and Papers of the Presidents (New Series) 778, 787, 788
(James D. Richardson ed., 1897).




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


           Our own security requires that the established policy thus an-
        nounced should guide our conduct, and this applies with great force
        to the peninsula of Yucatan. It is situate in the Gulf of Mexico, on
        the North American continent, and, from its vicinity to Cuba, to the
        capes of Florida, to New Orleans, and, indeed, to our whole south-
        western coast, it would be dangerous to our peace and security if it
        should become a colony of any European nation. 16

           3. President Johnson and European Intervention in Mexico
                                   (1865–66)

   In 1861 and 1862, during the Civil War, France, Great Britain and Spain invad-
ed Mexico. After the British and Spanish withdrew, Emperor Napoleon III of
France selected Archduke Maximilian of Austria as Emperor of Mexico. Maximil-
ian accepted on the basis of “proof” given by Napoleon and by Mexican exiles in
France that the Mexican people wanted him. Because of its involvement in the
Civil War, the United States could not interfere. After the war, Secretary of State
Seward reaffirmed the principles of the Monroe Doctrine, although he did not
refer to it by name.17 The House of Representatives then adopted a resolution
declaring that

        it does not accord with the policy of the United States to
        acknowledge any monarchical government erected on the ruins of
        any republican government in America under the auspices of any
        European power.18

   In his First Annual Message to Congress on December 4, 1865, President John-
son said in this connection:

           From the moment of the establishment of our free Constitution
        the civilized world has been convulsed by revolutions in the interests
        of democracy or of monarchy, but through all those revolutions the
        United States have wisely and firmly refused to become propagan-
        dists of republicanism. It is the only government suited to our condi-
        tion; but we have never sought to impose it on others, and we have
        consistently followed the advice of Washington to recommend it on-
        ly by the careful preservation and prudent use of the blessing. . . .
        Twice, indeed, rumors of the invasion of some parts of America in
        the interest of monarchy have prevailed; twice my predecessors have
        had occasion to announce the views of this nation in respect to such

   16
      5 Richardson, supra note 15, 2431, 2431–32.
   17
      Julius W. Pratt, A History of United States Foreign Policy 342 (1955).
   18
      Id.




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        Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


         interference. On both occasion the remonstrance of the United States
         was respected from a deep conviction on the part of European Gov-
         ernments that the system of noninterference and mutual abstinence
         from propagandism was the true rule for the two hemispheres. . . .
         We should regard it as a great calamity to ourselves, to the cause of
         good government, and to the peace of the world should any Europe-
         an power challenge the American people, as it were, to the defense
         of republicanism against foreign interference. We can not foresee
         and are unwilling to consider what opportunities might present them-
         selves, what combinations might offer to protect ourselves against
         designs inimical to our form of government. The United States desire
         to act in the future as they have ever acted heretofore; they never will
         be driven from that course but by the aggression of European pow-
         ers, and we rely on the wisdom and justice of those powers to respect
         the system of noninterference which has so long been sanctioned by
         time, and which by its good results has approved itself to both conti-
         nents.19

Finally, in 1866, the French Government withdrew its forces from Mexico and the
Mexicans overthrew the Maximilian regime in 1867.

             4. President Hayes and the Isthmian Canal Question (1880)

   In 1879 it appeared imminent that a private French company was about to
undertake the construction of a canal across the Panama Isthmus. The United
States feared that control of the canal would fall into the hands of the French
Government just as the British Government had earlier obtained control of the
Suez Canal. On March 8, 1880, President Hayes sent a message to Congress
expressing his opposition to the project as follows:

         The United States can not consent to the surrender of this control to
         any European power or to any combination of European powers. If
         existing treaties between the United States and other nations or if the
         rights of sovereignty or property of other nations stand in the way of
         this policy—a contingency which is not apprehended—suitable steps
         should be taken by just and liberal negotiations to promote and es-
         tablish the American policy on this subject consistently with the
         rights of the nations to be affected by it.

            The capital invested by corporations or citizens of other countries
         in such an enterprise must in a great degree look for protection to


  19
       8 Richardson, supra note 15, 3551, 3566–67.




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              Supplemental Opinions of the Office of Legal Counsel in Volume 1


         one or more of the great powers of the world. No European power
         can intervene for such protection without adopting measures on this
         continent which the United States would deem wholly inadmissible.
         If the protection of the United States is relied upon, the United States
         must exercise such control as will enable this country to protect its
         national interests and maintain the rights of those whose private
         capital is embarked in the work.

            An interoceanic canal across the American Isthmus will essential-
         ly change the geographical relations between the Atlantic and Pacific
         coasts of the United States and between the United States and the
         rest of the world. It would be the great ocean thoroughfare between
         our Atlantic and our Pacific shores, and virtually a part of the coast
         line of the United States. Our merely commercial interest in it is
         greater than that of all other countries, while its relations to our pow-
         er and prosperity as a nation, to our means of defense, our unity,
         peace, and safety, are matters of paramount concern to the people of
         the United States. No other great power would under similar circum-
         stances fail to assert a rightful control over a work so closely and
         vitally affecting its interest and welfare.

            Without urging further the grounds of my opinion, I repeat, in
         conclusion, that it is the right and the duty of the United States to
         assert and maintain such supervision and authority over any inter-
         oceanic canal across the isthmus that connects North and South
         America as will protect our national interests. This, I am quite sure,
         will be found not only compatible with but promotive of the widest
         and most permanent advantage to commerce and civilization.20

In addition, both Houses of Congress formally protested against any canal which
might be built by foreign capital or controlled by foreign nations. 21

                5. President Cleveland’s Intervention in the Venezuela
                               Boundary Dispute (1895)

    In President Cleveland’s second administration, he invoked the Monroe Doc-
trine in the British-Venezuela dispute concerning the boundaries between British
Guiana and Venezuela. The British being unwilling to arbitrate the matter, the
President in a special message to Congress on December 17, 1895, announced that
under the principles of the Monroe Doctrine the United States would designate a


  20
       10 Richardson, supra note 15, 4537, 4537–38.
  21
       Thomas A. Bailey, A Diplomatic History of the American People 396–97 (1955).




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         Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


commission which would itself investigate the boundary and render a report. 22 In
the event the report favored Venezuela in the dispute, he said,

          it will, in my opinion, be the duty of the United States to resist by
          every means in its power as a willful aggression upon its rights and
          interests, the appropriation by Great Britain of any lands or the exer-
          cise of governmental jurisdiction over any territory which after in-
          vestigation we have determined of right belongs to Venezuela.

             In making these recommendations I am fully alive to the respon-
          sibility incurred and keenly realize all the consequences that may
          follow.23

He further said:

          [I]t may not be amiss to suggest that the doctrine upon which we
          stand is strong and sound, because its enforcement is important to
          our peace and safety as a nation, and is essential to the integrity of
          our free institutions and the tranquil maintenance of our distinctive
          form of government. It was intended to apply to every stage of our
          national life and can not become obsolete while our Republic en-
          dures. If the balance of power is justly a cause for jealous anxiety
          among the Governments of the Old World and a subject for our ab-
          solute noninterference, none the less is an observance of the Monroe
          doctrine of vital concern to our people and their Government.

              Assuming, therefore, that we may properly insist upon this doc-
          trine without regard to “the state of things in which we live” or any
          changed conditions here or elsewhere, it is not apparent why its ap-
          plication may not be involved in the present controversy.

              If a European power by an extension of its boundaries takes pos-
          session of the territory of one of our neighboring Republics against
          its will and in derogation of its rights, it is difficult to see why to that
          extent such European power does not thereby attempt to extend its
          system of government to that portion of this continent which is thus
          taken. This is the precise action which President Monroe declared to
          be “dangerous to our peace and safety,” and it can make no differ-




   22
        13 Richardson, supra note 15, 6087, 6090 (1909).
   23
        Id. at 6090.




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


        ence whether the European system is extended by an advance of
        frontier or otherwise.24

Addressing himself to the contention that the Monroe Doctrine found no support
in any principle of international law derived from the general consent of nations,
the President stated:

            Practically the principle for which we contend has peculiar, if not
        exclusive, relation to the United States. It may not have been admit-
        ted in so many words to the code of international law, but since in in-
        ternational councils every nation is entitled to the rights belonging to
        it, if the enforcement of the Monroe doctrine is something we may
        justly claim it has its place in the code of international law as certain-
        ly and securely as if it were specifically mentioned; and when the
        United States is a suitor before the high tribunal that administers in-
        ternational law the question to be determined is whether or not we
        present claims which the justice of that code of law can find to be
        right and valid.

           The Monroe doctrine finds its recognition in those principles of
        international law which are based upon the theory that every nation
        shall have its rights protected and its just claims enforced. 25

    The British Prime Minister acknowledged that the interests of the United States
in the Caribbean area were as natural as British concern would be over any attempt
by a great European power to secure control over the Channel ports of Belgium
and the Netherlands. The British finally submitted the controversy to arbitration. 26

              6. Cuba—The Platt Amendment—President Theodore
                              Roosevelt (1901)

   Congress, on March 1, 1901, passed the Platt Amendment to the Army appro-
priation bill. 34 Cong. Rec. 3332–84. The amendment defined the relations
between Cuba and the United States following the establishment of the Cuban
republic. It provided that in order to permit the United States to maintain Cuba’s
independence, and to protect its people, Cuba would sell or lease to the United
States lands necessary for coaling or naval stations at certain specified points, to
be agreed upon with the President of the United States; and that Cuba would
embody the foregoing provisions in a permanent treaty with the United States. 27

   24
      Id. at 6088.
   25
      Id. at 6088–89.
   26
      Louis Martin Sears, A History of American Foreign Relations 431 (1938).
   27
      Act of Mar. 2, 1901, ch. 803, 31 Stat. 895, 897–98.




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      Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


The amendment in effect contemplated a United States quasi-protectorate over
Cuba. Later that year Cuba incorporated these provisions as an appendix to its
constitution.28
   In his message to Congress on December 3, 1901, President Theodore Roose-
velt discussed the Monroe Doctrine in relation to Cuba. The President said:

          The Monroe Doctrine should be the cardinal feature of the foreign
       policy of all the nations of the two Americans, as it is of the United
       States. Just seventy-eight years have passed since President Monroe
       in his Annual Message announced that “The American continents are
       henceforth not to be considered as subjects for future colonization by
       any European power.” In other words, the Monroe Doctrine is a dec-
       laration that there must be no territorial aggrandizement by any non-
       American power at the expense of any American power on Ameri-
       can soil. It is in no wise intended as hostile to any nation in the Old
       World. Still less is it intended to give cover to any aggression by one
       New World power at the expense of any other. It is simply a step,
       and a long step, toward assuring the universal peace of the world by
       securing the possibility of permanent peace on this hemisphere.

          During the past century other influences have established the
       permanence and independence of the smaller states of Europe.
       Through the Monroe Doctrine we hope to be able to safeguard like
       independence and secure like permanence for the lesser among the
       New World nations.

           ....

           Our attitude in Cuba is a sufficient guaranty of our own good
       faith. We have not the slightest desire to secure any territory at the
       expense of any of our neighbors. We wish to work with them hand in
       hand, so that all of us may be uplifted together, and we rejoice over
       the good fortune of any of them, we gladly hail their material pros-
       perity and political stability, and are concerned and alarmed if any of
       them fall into industrial or political chaos. We do not wish to see any
       Old World military power grow up on this continent, or to be com-
       pelled to become a military power ourselves. The peoples of the
       Americas can prosper best if left to work out their own salvation in
       their own way.29


   28
      See Dep’t of State, Papers Relating to the Foreign Relations of the United States 243, 244
(1905).
   29
      14 Richardson, supra note 15, 6641, 6664–65 (1909).




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


   In the Cuban-American treaty of 1903,30 Cuba agreed not to enter into any
treaty or other compact with a foreign power which would impair the independ-
ence or permit military or naval control by a foreign power. It also agreed that the
United States should have the right to intervene to preserve Cuban independence.
The United States, for its defense as well as that of Cuba, was to have the right to
maintain naval bases in Cuba. Pursuant to the treaty, a permanent naval base was
established at Guantanamo.31
   In 1905 the President addressed a message to Congress, stating:

           One of the most effective instruments for peace is the Monroe
        Doctrine as it has been and is being gradually developed by this
        Nation and accepted by other nations. No other policy could have
        been as efficient in promoting peace in the Western Hemisphere and
        in giving to each nation thereon the chance to develop along its own
        lines. If we had refused to apply the doctrine to changing conditions
        it would not be completely outworn, would not meet any of the
        needs of the present day, and, indeed, would probably by this time
        have sunk into complete oblivion. It is useful at home, and is meet-
        ing with recognition abroad because we have adapted our application
        of it to meet the growing and changing needs of the hemisphere.
        When we announce a policy such as the Monroe Doctrine we there-
        by commit ourselves to the consequences of the policy, and those
        consequences from time to time alter. It is out of the question to
        claim a right and yet shirk the responsibility for its exercise. Not
        only we, but all American republics who are benefited by the exist-
        ence of the doctrine, must recognize the obligations each nation is
        under as regard foreign peoples no less than its duty to insist upon its
        own rights.

           That our rights and interests are deeply concerned in the mainte-
        nance of the doctrine is so clear as hardly to need argument. This is
        especially true in view of the construction of the Panama Canal. As a
        mere matter of self-defense we must exercise a close watch over the
        approaches to this canal; and this means that we must be thoroughly
        alive to our interests in the Caribbean Sea.




   30
      U.S.-Cuba, May 22, 1903, 33 Stat. 2248.
   31
      Lease of Coaling or Naval Stations to the United States, U.S.-Cuba, Feb. 23, 1903, in Dep’t of
State, Papers Relating to the Foreign Relations of the United States 350 (1904); Lease to the United
States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in
Guantanamo and Bahia Honda, U.S.-Cuba, Oct. 2, 1903, in Dep’t of State, Papers Relating to the
Foreign Relations of the United States 351 (1904).




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         Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


             There are certain essential points which must never be forgotten
          as regards the Monroe Doctrine. In the first place we must as a Na-
          tion make it evident that we do not intend to treat it in any shape or
          way as an excuse for aggrandizement on our part at the expense of
          the republics to the south. We must recognize the fact that in some
          South American countries there has been much suspicion lest we in-
          terpret the Monroe Doctrine as in some way inimical to their inter-
          ests, and we must try to convince all the other nations of this conti-
          nent once and for all that no just and orderly Government has
          anything to fear from us. . . . It must be understood that under no cir-
          cumstances will the United States use the Monroe Doctrine as a
          cloak for territorial aggression. We desire peace with all the world,
          but perhaps most of all with the other peoples of the American Con-
          tinent.32

                       7. Elihu Root on the Monroe Doctrine (1914)

  Elihu Root was President Roosevelt’s Secretary of State from 1905 to 1909.
Subsequently Root became President of the American Society of International
Law. In his exposition in 1914 in the American Journal of International Law of the
Monroe Doctrine, he said:

              No one ever pretended that Mr. Monroe was declaring a rule of
          international law or that the doctrine which he declared has become
          international law. It is a declaration of the United States that certain
          acts would be injurious to the peace and safety of the United States
          and that the United States would regard them as unfriendly. The dec-
          laration does not say what the course of the United States will be in
          case such acts are done. That is left to be determined in each particu-
          lar instance.

              ....

             The doctrine is not international law but it rests upon the right of
          self-protection and that right is recognized by international law. The
          right is a necessary corollary of independent sovereignty. It is well
          understood that the exercise of the right of self-protection may and
          frequently does extend in its effect beyond the limits of the territorial
          jurisdiction of the state exercising it. The strongest example probably
          would be the mobilization of any army by another Power immediate-
          ly across the frontier. Every act done by the other Power may be


   32
        15 Richardson, supra note 15, 6973, 6994–95.




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               Supplemental Opinions of the Office of Legal Counsel in Volume 1


         within its own territory. Yet the country threatened by the state of
         facts is justified in protecting itself by immediate war. The most
         common exercise of the right of self-protection outside of a state’s
         own territory and in time of peace is the interposition of objection to
         the occupation of territory, of points of strategic military or maritime
         advantage, or to indirect accomplishment of this effect by dynastic
         arrangement. For example, the objection of England in 1911 to the
         occupation of a naval station by Germany on the Atlantic coast of
         Morocco; the objection of the European Powers generally to the vast
         forces of Russia extending its territory to the Mediterranean; the re-
         vision of the Treaty of San Stefano by the Treaty of Berlin; the es-
         tablishment of buffer states; the objection to the succession of a
         German prince to the throne of Spain; the many forms of the eastern
         question; the centuries of struggle to preserve the balance of power
         in Europe; all depend upon the very same principle which underlies
         the Monroe Doctrine; that is to say, upon the right of every sovereign
         state to protect itself by preventing a condition of affairs in which it
         will be too late to protect itself. Of course each state must judge for
         itself when a threatened act will create such a situation. If any state
         objects to a threatened act and the reasonableness of its objection is
         not assented to, the efficacy of the objection will depend upon the
         power behind it.33

                           8. The Magdalena Bay Episode (1912)

   In 1912 it was asserted that a Japanese private fishing company was about to
lease from the Government of Mexico an extensive tract of land on the shore of
Magdalena Bay, in Lower California, Mexico. This land could be used as the site
of a naval base capable of intercepting communications between the Pacific coast
of the United States and the Panama Canal. The Senate adopted a resolution
proposed by Senator Lodge as follows:

            Resolved, That when any harbor or other place in the American
         continents is so situated that the occupation thereof for naval or mili-
         tary purposes might threaten the communications or the safety of the
         United States, the Government of the United States could not see
         without grave concern the possession of such harbor or other place
         by any corporation or association which has such a relation to anoth-




  33
       Root, supra note 1, at 431–32 (emphasis added).




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         Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


          er Government, not American, as to give that Government practical
          power of control for naval or military purposes. 34

                         9. President Wilson and Vera Cruz (1914)

   In 1914 President Wilson was notified that a German merchantman was ap-
proaching Vera Cruz, Mexico, with a large cargo of arms which it was suspected
the Huerto Government intended to use against the United States. The President
ordered American forces to seize the port; a battle ensued, and the objective of
preventing the arms from reaching Huerto’s forces was attained. 35 American forces
then occupied the city, and a proclamation was issued prohibiting the importation
of arms into Mexico.
   This armed intervention terminated diplomatic relations between the United
States and Mexico. However, Argentina, Brazil and Chile offered to mediate the
controversy and President Wilson accepted.

              10. Charles Evans Hughes and the Monroe Doctrine (1923)

   Mr. Hughes, Secretary of State in the Harding Administration, delivered an
address in 1923 on the Monroe Doctrine before the American Bar Association
which is often cited as an authoritative statement. He said:

              It is not my purpose to review the historical applications of what
          is called the Monroe doctrine or to attempt to harmonize the various
          redactions of it. Properly understood, it is opposed (1) to any non-
          American action encroaching upon the political independence of
          American States under any guise and (2) to the acquisition in any
          manner of the control of additional territory in this hemisphere by
          any non-American power.

              The Monroe doctrine is not a legislative pronouncement; it has
          been approved by action of Congress, but it does not rest upon any
          congressional sanction. It has had the implied indorsement of the
          treaty-making power in the reservations to the two Hague conven-
          tions of 1899 and 1907, but it is not defined by treaty and does not
          draw its force from any international agreement. It is not like a con-
          stitutional provision deriving its authority from the fact that it is a
          part of the organic law transcending and limiting executive and leg-
          islative power. It is not a part of international law, maintained by the
          consent of the civilized powers and alterable only at their will. It is a


   34
        48 Cong. Rec. 10,045–46 (1912).
   35
        Bailey, supra note 21, at 555–60.




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


        policy declared by the Executive of the United States and repeated in
        one form and another by Presidents and Secretaries of State in the
        conduct of our foreign relations. Its significance lies in the fact that
        in its essentials, as set forth by President Monroe and as forcibly and
        repeatedly asserted by our responsible statesmen, it has been for 100
        years, and continues to be, an integral part of our national thought
        and purpose, expressing a profound conviction which even the up-
        heaval caused by the Great War, and our participation in that strug-
        gle upon European soil, has not uprooted or fundamentally
        changed.36

   Mr. Hughes summarized the principles of the Doctrine as follows:

            First. The Monroe doctrine is not a policy of aggression; it is a
        policy of self-defense. It was asserted at a time when the danger of
        foreign aggression in this hemisphere was very real, when the new
        American States had not yet established a firm basis of independent
        national life, and we were menaced by threats of Old World powers
        directed against republican institutions. But the achievements of the
        century have not altered the scope of the doctrine or changed its ba-
        sis. It still remains an assertion of the principle of national security.
        As such, it is obviously not exclusive. Much time has been wasted in
        the endeavor to find in the Monroe doctrine either justification, or
        the lack of it, for every governmental declaration or action in relation
        to other American States. Appropriate action for our defense may
        always be taken, and our proper influence to promote peace and
        good will may always be exerted, with the use of good offices to that
        end, whether or not the particular exigency comes within the range
        of the specific declarations which constitute the doctrine. 37

           ....

           Second. As the policy embodied in the Monroe doctrine is dis-
        tinctively the policy of the United States, the Government of the
        United States reserves to itself its definition, interpretation, and ap-
        plication. This Government has welcomed the recognition by other
        governments of the fact and soundness of this policy and of the ap-
        propriateness of its application from time to time. Great powers have
        signified their acquiescence in it. But the United States has not been
        disposed to enter into engagements which would have the effect of

   36
      Charles Evan Hughes, Observations on the Monroe Doctrine, in Alvarez, supra note 14, at 413,
417–18.
   37
      Id. at 418–19.




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     Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


      submitting to any other power or to any concert of powers the de-
      termination either of the occasions upon which the principles of the
      Monroe doctrine shall be invoked or of the measures that shall be
      taken in giving it effect. This Government has not been willing to
      make the doctrine or the regulation of its enforcement the subject of
      treaties with European powers; and, while the United States has been
      gratified at expressions on the part of other American States of their
      accord with our Government in its declarations with respect to their
      independence and at their determination to maintain it, this Govern-
      ment in asserting and pursuing its policy has commonly avoided
      concerted action to maintain the doctrine, even with the American
      Republics. As President Wilson observed: “The Monroe doctrine
      was proclaimed by the United States on her own authority. It always
      has been maintained and always will be maintained upon her own re-
      sponsibility.”38

         ....

         Third. The policy of the Monroe doctrine does not infringe upon
      the independence and sovereignty of other American States. Miscon-
      ception upon this point is the only disturbing influence in our rela-
      tions with Latin American States.39

         This notion springs from a misunderstanding of the doctrine itself
      and of our national sentiment and purpose . . . .

         The Monroe doctrine does not attempt to establish a protectorate
      over Latin American States. . . .

         . . . That ground [of the declaration] is found in the recognized
      right which every State enjoys, and the United States no less than
      any other, to object to acts done by other powers which threaten its
      own safety. The United States has all the rights of sovereignty, as
      well as any other power; we have lost none of our essential rights
      because we are strong, and other American States have gained none
      either because of increasing strength or relative weakness. . . .40

         ....




38
   Id. at 419–20.
39
   Id. at 421.
40
   Id. at 422.




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


           Fourth. There are, indeed, modern conditions and recent events
        which can not fail to engage our attention. We have grown rich and
        powerful, but we have not outgrown the necessity, in justice to our-
        selves and without injustice to others, of safeguarding our future
        peace and security. . . .41

           ....

           Fifth. It is apparent that the Monroe doctrine does not stand in the
        way of Pan American cooperation; rather it affords the necessary
        foundation for that cooperation in the independence and security of
        American States.42

            11. The Clark Memorandum and President Hoover (1928)

   In 1928, a Memorandum on the Monroe Doctrine was prepared by J. Reuben
Clark, then Undersecretary of State, for use by the Secretary of State. It repudiated
the (Theodore) “Roosevelt Corollary” that “in case of financial or other difficulties
in weak Latin American countries, the United States should attempt an adjustment
thereof lest European Governments should intervene, and intervening should
occupy territory.”43 Clark’s thesis was that this was not “justified by the terms of
the Monroe Doctrine, however much it may be justified by the application of the
doctrine of self-preservation.”44 Clark’s conclusions about the Doctrine were as
follows:

        The Doctrine does not concern itself with purely inter-American re-
        lations; it has nothing to do with the relationship between the United
        States and other American nations, except where other American na-
        tions shall become involved with European governments in ar-
        rangements which threaten the security of the United States, and
        even in such cases, the Doctrine runs against the European country,
        not the American nation, and the United States would primarily deal
        thereunder with the European country and with the American nation
        concerned. The Doctrine states a case of the United States vs. Eu-
        rope, and not of the United States vs. Latin America. Furthermore,
        the fact should never be lost to view that in applying this Doctrine
        during the period of one hundred years since it was announced, our
        Government has over and over again driven it in as a shield between

   41
      Id. at 424.
   42
      Id. at 431.
   43
      J. Reuben Clark, Undersecretary of State, Memorandum on the Monroe Doctrine, Dep’t of State
Publication No. 37, at xxiii (Dec. 17, 1928).
   44
      Id. at xxiii–xxiv.




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        Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


         Europe and the Americas to protect Latin America from the political
         and territorial thrusts of Europe; and this was done at times when the
         American nations were weak and struggling for the establishment of
         stable, permanent governments; when the political morality of Eu-
         rope sanctioned, indeed encouraged, the acquisition of territory by
         force; and when many of the great powers of Europe looked with ea-
         ger, covetous eyes to the rich, undeveloped areas of the American
         Hemisphere. Nor should another equally vital fact be lost sight of,
         that the United States has only been able to give this protection
         against designing European powers because of its known willingness
         and determination, if and whenever necessary, to expend its treasure
         and to sacrifice American life to maintain the principles of the Doc-
         trine. So far as Latin America is concerned, the Doctrine is now, and
         always has been, not an instrument of violence and oppression, but
         an unbought, freely bestowed, and wholly effective guaranty of their
         freedom, independence, and territorial integrity against the imperial-
         istic designs of Europe.45

  In embarking on a “Good Neighbor” policy, it has been said that President
Hoover gave his support to the views expressed by Clark. 46

          12. President Franklin D. Roosevelt—Abrogation of the Platt
        Amendment—the Inter-American Conference—Canada (1934–38)

    The Good Neighbor Policy was followed and implemented by President Frank-
lin D. Roosevelt in an attempt to make the policy of non-intervention acceptable in
both hemispheres. As an integral part of the new policy, the United States decided
to release Cuba from the provisions of the Platt Amendment. This was accom-
plished by a treaty between the United States and Cuba signed in May 1934.47
Article III of this treaty, which continued the right of the United States to maintain
a naval base at Guantanamo, provided as follows:

            Until the two contracting parties agree to the modification or ab-
         rogation of the stipulations of the agreement in regard to the lease to
         the United States of America of lands in Cuba for coaling and naval
         stations signed by the President of the Republic of Cuba on February
         16, 1903, and by the President of the United States of America on
         the 23d day of the same month and year, the stipulations of that
         agreement with regard to the naval station of Guantanamo shall con-


   45
      Id. at xxiv–xxv.
   46
      Bailey, supra at note 21, at 681.
   47
      Dep’t of State, Treaty Info. Bull. No. 56 (May 31, 1934).




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


        tinue in effect. The supplementary agreement in regard to naval or
        coaling stations signed between the Governments on July 2, 1903,
        also shall continue in effect in the same form and on the same condi-
        tions with respect to the naval station of Guantanamo. So long as the
        United States of America shall not abandon the said naval station of
        Guantanamo or the two Governments shall not agree to a modifica-
        tion of its present limits, this station shall continue to have the terri-
        torial area that it now has, with the limits that it has on the date of the
        signature of the present Treaty.48

   In 1936 President Roosevelt proposed a special Inter-American peace confer-
ence. At this conference, held at Buenos Aires, he invited all American states to
resort to the principles of the Monroe Doctrine in dealing with aggressive threats
by non-American totalitarian states and declared that such states seeking “to
commit acts of aggression against us will find a Hemisphere wholly prepared to
consult together for our mutual safety and our mutual good.” 49
   In 1938 Canada supported President Roosevelt’s statement in a speech at King-
ston, Canada, that “the people of the United States will not stand idly by if domi-
nion of Canadian soil is threatened by any other empire.” 50

                13. Congressional Resolution of 1940 on Transfers of
                       Territory in the Western Hemisphere

    The collapse of the Low Countries, France, and Denmark in 1940 aroused
serious concern in the Americas. Seizure by Hitler of the American possessions of
these countries, it was felt, would pose not only a grave threat to the Panama
Canal and the Caribbean trade routes but also to the mainland of the United States.
Congress promptly passed a resolution expressing opposition to the transfer of
territory in the Western hemisphere from one non-American power to another. The
resolution, which had been drafted by the Department of State with the President’s
approval, declared:

           That the United States would not recognize any transfer, and
        would not acquiesce in any attempt to transfer, any geographic re-
        gion of this hemisphere from one non-American power to another
        non-American power; and

           That if such transfer or attempt to transfer should appear likely,
        the United States shall, in addition to other measures, immediately


   48
      Id. at 30–31.
   49
      Bailey, supra note 21, at 684.
   50
      Id. at 686.




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        Authority To Take Action If the Soviet Union Establishes Missile Bases in Cuba


         consult with the other American republics to determine upon the
         steps which should be taken to safeguard their common interests. 51

                            14. The Greenland Action (1941)

   In April 1941, United States forces occupied the Danish possession of Green-
land. This action was taken pursuant to an agreement signed by Secretary of State
Hull, acting on behalf of the United States, and the Danish Minister in Washing-
ton.52 The agreement noted the danger that Greenland might be converted into a
base of aggression against American states and recognized the responsibility of the
United States to assist in the maintenance of the existing status of Greenland.
Article I of the Agreement provided:

            The Government of the United States of America reiterates its
         recognition of and respect for the sovereignty of the Kingdom of
         Denmark over Greenland. Recognizing that as a result of the present
         European war there is danger that Greenland may be converted into a
         point of aggression against nations of the American Continent, the
         Government of the United States of America, having in mind its ob-
         ligations under the Act of Habana signed on July 30, 1940, accepts
         the responsibility of assisting Greenland in the maintenance of its
         present status.53

   The Hitler-dominated government in Denmark disapproved the agreement as
contrary to its constitution. Mr. Hull replied that the Denmark government was
acting under duress and refused to acknowledge that the agreement was invalid.

             15. Act of Havana of 1940—Implementing Treaty of 1942

    After the defeat of France, representatives of the American states, convening in
Havana in July 1940, adopted the Act of Havana, by which they agreed to prevent
by collective action, or by unilateral action if necessary, changes in the control of
territory in the Western Hemisphere as a result of the European hostilities. The Act
was adopted in connection with the negotiation of a treaty thereafter ratified by
fourteen states—the necessary two-thirds—in 1942.54 It provided that if it
appeared that American possessions of European powers might fall into the hands
of any Axis power, they could be taken over and administered jointly by the
American republics as trustees. In the event that the situation called for it, an
individual state, such as the United States, could assume temporary control.

   51
      Logan, supra note 11, at 327.
   52
      Agreement Relating to the Defense of Greenland, 4 Dep’t of State Bull. 443, 445–47 (1941).
   53
      Id. at 445.
   54
      Samuel Flagg Bemis, The Latin American Policy of the United States 367–73 (1943).




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