Remembering Abe Chayes on the Cuban Missile Crisis

by Peter Spiro

With all the 50th anniversary retrospectives, seems like a good time to revisit Abram Chayes’ foreign relations law classic, The Cuban Missile Crisis: International Crises and the Role of Law. Chayes was the State Department Legal Adviser in October 1962, on leave from Harvard Law School; though Chayes was a participant in deliberations around the crisis, the book wears its autobiography lightly.

It’s a slim volume, a good primer on the legal aspects of the crisis. The quarantine decision might seem legally anodyne to us (does it?), but it was controversial at the time. Quincy Wright, for instance, thought it clearly illegal. Of course the quarantine was less legally and otherwise aggressive than the alternatives of an air attack and/or invasion, both of which were on the table (scorecard here). Chayes describes how a self-defense rationale for the action was considered and rejected. OAS authorization for the response loomed large, in a way that brings NATO and Kosovo to mind. Forgotten fun fact: Adlai Stevenson floated a deal to the ExCom under which the US would have withdrawn from Guantanamo – think of future headaches averted!

But the bigger pay-off is found in Chayes’ global observations on how the law influences foreign relations. Chayes shows legal realist tendencies, highlighting the contingencies of personal relations (eg, the fact that the Attorney General was the President’s brother and “adjutant”) and other circumstances. He is also a legal realist in stressing international law’s indeterminacy, which must have been radical against the backdrop of the formalist tendencies of the day. (He is at the same time not at all a Realist in the IR sense, calling out the “anthropomorphic fallacy” and highlighting bureaucratic interests in the way of another classic out of the crisis, Graham Allison’s The Essence of Decision.)

But indeterminacy does not make international law epiphenomenal, in this crisis or others. Public legal justification is a predicate to public acceptance, both domestic and international (a proposition demonstrated some years later, as Chayes points out, with the bombing of Cambodia) – “‘mere’ justification carries greater practical importance for the success or failure of great decisions than is commonly supposed by the analysts.” And the need for the legal justification itself spawns internal accountability mechanisms:

[I]f there can be no determinate answer, analysis and criticism can nonetheless distinguish a persuasive from a specious rational, a responsible and serious performance from a trivial one. In this way, the requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process.

This still seems fresh even if others have made similar arguments since.

The book, published in 1974, is now out of print. Calling OUP: how about a Kindle edition? This should be required reading for students of foreign relations law, young and old.

http://opiniojuris.org/2012/10/22/remembering-abe-chayes-on-the-cuban-missile-crisis/

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