Thus, apart from the possibility of long-range attacks into North
VietNam, the issues in deciding on our future course of action are
essentially political. But we must remember that the extent to which
resort to direct self-help, rather than to the procedures and
institutions for peaceful settlement of international problems, has an
important bearing on the prospects and effectiveness of the rule of law
in the world. Because of my deep concern with these matters, I should
like to give you my thoughts on the less technically legal issues in
relation to VietNam.
In my view, a more promising course of action would be to seek to
internationalize the problem with a view to a negotiated settlement or a
United Nations solution. I believe we should take advantage of
Ambassador Harriman’s presence at
Geneva and his working relations with Pushkin to sound out the Soviets on the possibility of a
negotiated settlement in VietNam. Mr. Harriman has discussed this problem with me and has
shown me the memorandum which he has given you on this subject.5 I concur generally in his
proposals.
You have often said with reference to the Berlin question that, in view
of the magnitude of the stakes, we owe it to ourselves, to the American
people and to our allies and associates in the free world, to exhaust
the possibilities of a negotiated or peaceful settlement which will be
consistent with our interests and responsibilities. The alternative to
such a settlement is no less grave in Southeast Asia.
[Tab A]
Memorandum Prepared in the Office of the Legal Adviser7
General Taylor’s Report on
Viet-Nam recommends among other things that additional United States
military personnel and equipment be introduced into South Viet-Nam
to provide increased airlift, for expanded intelligence operations,
for naval surveillance activities, and to expedite training and
equipping of South Vietnamese military and civil guard elements. The
question of whether additional United States forces should be
introduced even to the extent of a Korea-type operation and whether
we may eventually have to attack the source of guerilla aggression
in North Viet-Nam is also discussed.
It has been suggested in connection with the Taylor Report that because South
Viet-Nam did not sign the Geneva Accords, it is not
[Page 632]
bound by them. In any case, it is
said, North Vietnamese violations of the Accords have made them
inoperative, and the Accords can be ignored by South Viet-Nam in
taking actions to meet the present danger. In addition, it has been
suggested that the right of self-defense under the United Nations
Charter can be invoked to justify actions now contemplated by the
United States in South VietNam.
The legal implications of these proposed actions and suggested
rationale are discussed below. As with all legal principles, the
application of the particular principles of law discussed herein
depends upon the facts of the case. One of the steps necessary to
the successful development and projection of our case in the
international forum is a much fuller development than presently
exists of the facts concerning external interference in VietNam,
such as those disclosed in the Jorden Report. We must remain
continuously alert to ways in which facts that bring the legal
principles into operation-such as the facts of external
interference-can be gathered from reliable sources and persuasively
presented.
1954 Geneva Accords
This office has never accepted the argument that South Viet-Nam is
not bound by the Geneva Accords of 1954 because it did not sign
them. While the representative of South Viet-Nam did not sign the
agreement and in fact protested against certain provisions in it, it
was signed by the French on behalf of the French Union Forces, and
since the State of Viet-Nam was part of the French Union it would
seem to be bound by the French signature. The agreement relating to
Laos was similarly signed on behalf of the French Union Forces
without a Laotian signature, yet we have always considered the
Kingdom of Laos bound by the Accords. South Viet-Nam can also be
considered bound by the Accords as a successor state to France. In
any event the argument to the contrary leads to very undesirable
consequences, for if the South Vietnamese are not parties to the
Accords and not bound by them, they would seem to have no legal
basis for demanding compliance by the Viet Minh with obligations
under the Accords such as respect for the demarcation line and the
cease-fire.
Unlike VietNam, the United States did not become a party to the
Accords. It issued a unilateral declaration stating that it would
refrain from the threat or use of force to disturb them and that it
would view any renewal of aggression in violation of the Accords
with grave concern and as seriously threatening international peace
and security.
The Geneva Accords prohibit the introduction into Viet-Nam of foreign
troop reinforcements, additional military personnel and increased
[Page 633]
amounts of war
material. In the absence of adequate legal justification,
introduction of United States military personnel and equipment as
envisaged in the Taylor
Report would therefore, in our view, be a violation of the Accords
by South VietNam. Such action would not be inconsistent with the
unilateral declaration of the United States, since it would not
constitute the threat or use of force to upset the Accords.
Nevertheless, again in the absence of adequate legal justification,
the United States would be aiding and abetting violations by South
VietNam.
Justifications for the actions presently contemplated may be found in
general principles of international law governing treaties. Under
these principles, a material breach of a treaty by one party
entitles the other either to suspend the operation of the entire
agreement or at least to withhold compliance with an equivalent,
corresponding or related provision until resumption of observance by
the other party. The Viet Minh have violated the Geneva Accords by
directing, assisting and engaging in active hostilities in South
Viet-Nam and presumably by illegal introduction into North Viet-Nam
of military personnel and war materials.
Justification of suspension of certain parts of the Geneva Accords
would gain force in the present context from the fact that actions
contemplated by the Government of Viet-Nam which might be said to
contravene the Accords can be related to the requirements of
legitimate self-defense necessitated by the breaches of the other
party.
Thus, under the applicable principles, we would have the option of
suspending the agreement in toto or of withholding compliance with
appropriate provisions. In our judgment, the United States and South
Viet-Nam should choose the latter course, since we will wish to
assert the continuing force of a number of obligations which the
Viet-Minh have undertaken under the Accords. The demarcation line
itself between North and South Viet-Nam is established by the
Accords, as is the requirement for the general cessation of
hostilities. It should be recognized, however, that the adoption of
this course imposes upon us some obligation to keep our response
appropriately related to the infractions of the other side.
Though we believe that the introduction of additional military forces
and equipment into South Viet-Nam for the purposes described at the
beginning of this memorandum would be justified at law, there is no
doubt that the Communists will claim, and with a certain
plausibility, that South Viet-Nam has violated the Accords, aided
and abetted by the United States. To the extent that the
contemplated measures can be cast in the form of assistance and
training to police and constabulary forces rather than the
introduction
[Page 634]
and training
of regular troops, the persuasive force of these complaints will be
lessened.
General Intervention
Assuming that the Geneva Accords are not a barrier to actions
contemplated in the Taylor
Report, the question arises as to whether there are any other legal
obstacles to such actions under general international law or the
United Nations Charter.
International law permits the United States to introduce its forces
into South Viet-Nam at the invitation of the Government of Viet-Nam
to assist that Government in quelling insurgent activities having
substantial external support, inspiration or direction. There is
nothing in the United Nations Charter that prohibits such
action.
In 1958, at the invitation of the President of Lebanon, and in
circumstances of alleged indirect aggression against the Government
of Lebanon by outside forces or governments, United States troops
were sent to Lebanon. President Eisenhower explained that this action was taken in
part “to encourage the Lebanese Government in defense of Lebanese
sovereignty and integrity.”
As in the Lebanese situation, however, we should be prepared to
defend United States action in Viet-Nam in an international forum
such as the United Nations, whether the question is brought there at
our own or someone else’s initiative.
Retaliatory Attacks
As to the problem of attacking the source of guerilla aggression in
North Viet-Nam there are two currently relevant categories of fact
situations:
- 1)
- The first category relates to operations undertaken
against bases near the border in North Viet-Nam and Laos
which are being used as a sanctuary and for supply purposes
by the Viet Cong. It would seem justifiable under
international law principles relating to hot pursuit to
follow the enemy across the border and attempt to destroy
his bases of operations adjacent to the border. Such
operations would have to be appropriately related to the act
provoking them, proportionate in their effects and limited
to action necessary to obtain relief.
- 2)
- The second category consists of direct attacks against
Hanoi and similar strategic centers deep inside North
VietNam. In the absence of overt aggression by means of
armed attack against South VietNam, such action would go
beyond permissible self-defense under general international
law and would be contrary to the United Nations
Charter.
The right of individual or collective self-defense referred to in
Article 51 of the Charter can be invoked only in the event of an
armed attack. The term “armed attack” as used in the Charter is
[Page 635]
generally understood as a
direct external attack upon one country by the armed forces of
another such as the German invasion of Poland in 1939 or the North
Korean attack on South Korea in 1950. Armed attack is a form of
aggression. “Aggression” is a broader concept, covering a range of
actions by which one state may threaten the territorial integrity or
political independence of another. This difference is recognized in
international law generally, in the United Nations Charter and in
our mutual defense treaties. In the latter the term “armed attack”
has been expressly or implicitly limited to exclude indirect
aggression.
An essential element in determining whether an action constitutes an
“armed attack” is the factor of time. An armed attack is an action
which occurs swiftly, requiring immediate measures to ward it off.
The “armed attack” envisaged under Article 51 of the Charter is an
attack which requires immediate measures of self-defense, measures
which cannot await the action of the United Nations but which must
be undertaken at once. By the same token “armed attack” under such
agreements as the North Atlantic Treaty, the Southeast Asia Treaty,
and the Rio Treaty implies a situation in which a response is
required before the normal consultative procedures can be availed
of.
Article 2(4) of the Charter prohibits any use of force by a United
Nations member in its international relations which is inconsistent
with the purposes of the United Nations. Article 51 of the Charter
recognizes the right of individual or collective use of force in
self-defense against armed attack without waiting for steps to be
taken by any United Nations organ. In cases of aggression that fall
short of armed attack, however, it would not be consistent with the
purposes of the United Nations for the United States as a UN member to proceed to the use of armed
force to defeat acts which it considers aggressive. In such cases,
it would be incumbent upon a UN
member to bring the matter first to the attention of the United
Nations organization for its consideration and judgment.
