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Department of State bulletin (Volume v. 56, Jan- Mar 1967) online

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response to events directed from Hanoi, it
seems most logical to examine first what the
other side was doing.

Despite the obligation of regroupment in
the cease-fire agreement, some effective Com-
munist guerrilla units continued to operate in
areas of South Viet-Nam where they had
been during the hostilities with France.
Large numbers of the southern Viet Minh
troops who were withdrawn north of the
demarcation line were retained by Hanoi in
military or security units; others received
further training in guerrilla warfare.

The North Vietnamese regime began to
infiltrate these ethnic Southerners into South
Viet-Nam as early as 1957. Up to the conclud-
ing months of 1964, approximately 40,000
infiltrators moved south, to join the guerrillas
already there who had been supported with
arms and supplies by Hanoi since 1956. Once
in South Viet-Nam. the infiltrators were as-



56



DEPARTMENT OF STATE BULLETIN



signed to existing combat units or used to
form new units, frequently in their original
home provinces. All of this activity — the
training, the equipping, the transporting, the
assigning — was directed from Hanoi. It did
not just happen within South Viet-Nam.

As the infiltration from the North con-
tinued, Hanoi began to exhaust its supply of
ethnic Southerners who could be sent into the
South for guerrilla warfare. Beginning in
late 1964, the infiltrating units consisted es-
sentially of North Vietnamese soldiers or-
ganized in regular army units. Upward of
80,000 of these troops have infiltrated from
the North during the last 2 years. The
Northerners have frequently entered in large
units, rather than in small groups, and have
retained their military organization. After
allowing for casualties from all causes, it is
estimated that there are today about 45,000
North Vietnamese army regulars in South
Viet-Nam. This represents nearly half of the
main force of Communist combat troops in
the South — a force currently estimated at
100,000. Of the remaining 55,000, many are
irregulars who earlier infiltrated from the
North; almost all the rest have been re-
cruited from Communist-held areas in the
South — there has been no rallying to the
Communist cause from Government-held
areas.

Let us now look at what the Communists
have been doing with their forces in South
Viet-Nam during the last 10 years. They
began their operations with terrorism and
assassination aimed at local government
officials. From 1957 to 1959 more than 1,000
civilians were assassinated or kidnaped by
Communist guerrillas in the South. In the
ensuing 2 years their attacks were intensi-
fied and began to be conducted by battalion-
size units against the military and security
forces of the Government in the South. The
level of military activity increased progres-
sively.

With the arrival of regular North Viet-
namese army units, beginning in the conclud-
ing months of 1964, sizable military engage-
ments have taken place almost continuously
in many different parts of South Viet-Nam.



Unlike Korea, where the Communists
launched openly an invasion in broad day-
light across an international demarcation
line, the Communists in Viet-Nam have re-
sorted to covert and clandestine tactics. This
is the strategy of what Communist ideology
and propaganda call the "war of national
liberation."

On the basis of the evidence which has
been accumulated over a period of time, it
seems beyond dispute that from the begin-
ning the conflict in South Viet-Nam has not
been simply an indigenous rebellion. Much of
the military manpower came from the North.
So also with weapons and supplies. And, per-
haps most important of all, the planning, the
direction, the orders, have come from Hanoi.

International Law in Relation
to the Viet-Nam Conflict

How does one apply international law to
this kind of problem?

It is necessary to begin by finding out what
international law is. We have a fairly clear
idea of what it is not. It is not a framework
of government such as our own and other
democratic countries have at home. There is
no international legislature to make the rules
of the game for all to accept and follow.
There is no system of courts. There is no
police force.

What is a government to do in the face of
so imperfect a world, in the face of so chaotic
a scene, such as that created by large-scale
violence and hostilities in Southeast Asia?
Some have suggested that it is best to
acknowledge there is no real law to deal with
such a situation of conflict and that the
proper course is to proceed with whatever
practical actions will most advance the mili-
tary power, the security position, and the
general interests of the United States. I won-
der if such a view does not beg an important
question. Will this country's security be en-
hanced, will its interests be served, without
our making an honest and determined at-
tempt to develop international law and live
by it?

We may feel the absence today of a law-
giver outside national governments, who



JANUARY 9, 1967



57



could, to our comfort and security, give and
enforce law among the nations. That absence
does not relieve us of moral and political
obligations. It means instead that govern-
ments will have to go on working very hard
if there are to be functioning and effective
processes and institutions of world law in the
future.

Let us remember, too, that the shape of
things to come is in no small way determined
by the actions of great powers. This is an
aspect of the responsibility that the United
States, along with other countries, bears in
the modem world. I have no doubt myself
that the road of pragmatism and the road of
idealism run together as we consider the
needs and the possibilities for developing
effective world law.

International Agreements

1. There are many ways of making law.
One powerful means of lawmaking available
to governments is to join in making interna-
tional agreements and then to act in con-
formity with them.

In the case of Viet-Nam we have the
Geneva accords as a starting point and legal
framework for dealing with the situation.
Although the United States did not sign the
accords, from the beginning it undertook to
respect them, and President Eisenhower said
that "any renewal of Communist aggression
would be viewed by us as a matter of grave
concern." *

The United States began as early as 1954
to arrange for aid to South Viet-Nam to pro-
mote its viability and development. For
nearly 7 years United States forces and mate-
rial in the South stayed within the limits set
by the Geneva accords for external military
assistance, despite the fact that North Viet-
Nam had been violating these accords from
the start and despite the gradual escalation of
these violations. Not until late 1961 did the
number of United States military personnel
in the South rise above 900. When the United



■" For a statement made by President Eisenhower
on July 21, 1954, see Bulletin of Aug. 2, 1954,
p. 163.



States made the decision to exceed the limits
laid down by the Geneva accords, it was on
the basis of a principle of international law
similar to the doctrine of fundamental breach
in the domestic law of contracts. North Viet-
Nam had violated seriously the obligation to
prevent the northern zone from being "used
for the resumption of hostilities or to further
an aggressive policy." In these circum-
stances. South Viet-Nam was relieved from
the obligation to comply with the cease-fire
agreement's limitations on military man-
power and materiel when the South needed
additional strength for its own defense
against aggression from the North.

Here it is noteworthy that in June 1962 the
Indian and Canadian members of the Inter-
national Control Commission found it pos-
sible to agree as follows in a report:

. . . there is evidence to show that armed and
unarmed personnel, arms, munitions and other sup-
plies have been sent from the Zone in the North
to the Zone in the South with the object of support-
ing, organizing and carrying out hostile activities,
including armed attacks, directed against the Armed
Forces and Administration of the Zone in the
South. . . .

. . . there is evidence to show that the PAVN
[People's Army of Viet-Nam] has allowed the
Zone in the North to be used for inciting, encourag-
ing and supporting hostile activities in the Zone
in the South, aimed at the overthrow of the Ad-
ministration in the South.

The Commission also cited the Republic of
Viet-Nam for its activities in importing mili-
tary equipment and personnel above the
limits imposed by the 1954 Geneva accords.
However, these actions were taken by South
Viet-Nam as part of its effort to defend itself
against aggression and subversion from the
North. And at no time did South Viet-Nam
undertake to overrun the North by force.

I have mentioned this report of the Inter-
national Control Commission because it
shows that the international machinery set
up by the Geneva accords agreed with the
legal analysis of the situation made by the
United States, when that machinery was able
to function. But for most of the last dozen
years, it has been unable to function as in-
tended.



58



DEPARTMENT OF STATE BULLETIN



Government Actions and Precedents
They Create

2. Another way in which international law
is made is through the actions of govern-
ments and the precedents they create. If a
government acts consistently with a series of
coherent principles, it may make a contribu-
tion to the common law of nations. The
United States Government has tried to do
this in the case of Viet-Nam, both with re-
spect to situations not envisioned by the
Geneva accords and in giving practical in-
terpretations and applications to the general
rules laid down by the Charter of the United
Nations.

Some commentators, in talking about Viet-
Nam, have set up three categories of situa-
tions for their legal analysis of the problem:
The first is the category of wholly indigenous
rebellion. The second category is one in which
there is large-scale intervention from outside
short of armed attack. The third is the cate-
gory of armed attack, in which one country
employs its regular miUtary forces to gain
control of another country.

The evidence does not allow for the con-
clusion that the war in Viet-Nam was ever
a simple category-one situation. It was prob-
ably, fpv quite some period of time, a cate-
gory-two situation. By the end of 1964,
however, it had become very clearly a cate-
gory-three situation.

Critics of United States Gk)vernment policy
have argued that, if there was North Viet-
namese intervention in the South, any United
States assistance to South Viet-Nam that
might be justified would have to be confined
geographically to South Viet-Nam. Even if
one were to concede that such a rule applies
in the case of a category-two situation, it cer-
tainly does not apply to a case of armed
attack. Legitimate defense includes military
action against the aggressor wherever such
action is needed to halt the attack.

During the decade after Geneva, the
United States did confine its assistance to
South Viet-Nam to military personnel, sup-
plies, and activities in the South. The United
States took no action against the source of



aggression in the North. Then, in late 1964,
as I have already indicated. North Viet-Nam
moved into a new phase of its aggression and
began dispatching southward whole units of
its regular armed forces. The tempo of the
war had increased by early 1965, and addi-
tional measures of defense were required.

Infiltration — Current Mode
of "Armed Attack"

3. I have heard and read arguments by
some that Viet-Nam does not present a situa-
tion of "armed attack" because invading
armies were not massed at a border and did
not march across it in broad daylight. To be
sure, that is the way armed attacks occurred
in 1914, at the beginning of World War II,
and even in Korea. But strategies and tactics
have changed. The current mode of armed
aggression in Viet-Nam is by the infiltration
of military units and the weapons of war
under cover of darkness, through jungle
areas, and across the territory of a neighbor-
ing state — Laos.

The law, if it is to be a living and working
force, must concern itself with the substance
and the reality of what is going on. The
answer to a question of law cannot properly
turn on the mere form or appearance that a
protagonist may give to its action. The judg-
ment whether North Viet-Nam has engaged
in "armed attack" against the South cannot
depend on the form or appearance of its con-
duct. The crucial consideration is that North
Viet-Nam has marshaled the resources of the
state and has sent instrumentalities of the
state, including units of its regular armed
forces, into South Viet-Nam to achieve state
objectives by force — in this case to subject
the South to its rule.

Measures of Collective Defense

4. United States and South Vietnamese
airstrikes and other military actions against
North Viet-Nam have been based on the legal
proposition that they are measures of collec-
tive defense against armed attack from the
North. I would like to take up some of the
arguments that have been made against this
proposition. First, it has been argued that,



JANUARY 9, 1967



59



while the United States says South Viet-Nam
is under armed attack, no international body,
such as the United Nations, has made such a
finding-. The United States Government re-
grets that neither the Security Council nor
the General Assembly of the United Nations
has been able or seen fit to express itself on
Viet^Nam. But ought we to adopt the view
that if the United Nations makes no finding,
there is therefore no armed attack and the
aggressor must accordingly be permitted to
pursue his ambitions without being subjected
to effective countermeasures?

Certainly the United Nations Charter does
not say this. Article 51 of the charter, dealing
with armed attack, says that "the inherent
right of individual or collective self-defense"
may be exercised "until the Security Council
has taken the measures necessary to main-
tain international peace and security." Thus
it is for a defender to claim and assert that
armed attack has taken place, justifying
measures of defense. The defender does not
have to await action by the Security Council.
His duty, as is made clear by the remainder
of article 51, is to report to the Council. Then
the Council will, in the end, decide what has
happened, who is right, and what measures
must be taken.

The United States has several times re-
ported to the Council in the last 2 years on
military actions in Viet-Nam. The Council
has taken no action. In January and Febru-
ary 1966 the Council elected not to debate the
situation in Viet-Nam, although the United
States had once again raised the whole ques-
tion. In September of this year Ambassador
[Arthur J.] Goldberg made a full presenta-
tion to the General Assembly on Viet-Nam.^
The subject was a central topic in the month-
long general debate that was held in New
York during October. Again, no United Na-
tions action was taken.

International Lines of Demarcation

5. Another argument made against the
United States legal position on collective self-



' Ibid., Oct. 10, 1966, p. 518.



defense is that Viet-Nam is a single country
and that the regime in the North is not
legally precluded from taking steps, includ-
ing the use of force, to unify North and
South Viet-Nam under a single Communist
regime. Any such argument ignores the plain
provisions of the Geneva accords of 1954. It
also suggests a view of international law that
would operate to undermine peace and se-
curity in many parts of the world.

The Geneva accords are very clear in draw-
ing a demarcation line between North and
South Viet-Nam. This line was to be re-
spected by the opposing armed forces, includ-
ing all elements — regular or irregular — under
their control. It divided Viet-Nam into two
zones which would be administered by dif-
ferent authorities. The line was set by an
international agreement negotiated at a con-
ference in Geneva of the principal powers
concerned.

The fact that the demarcation line was not
intended as a permanent boundary surely did
not give either side license to disregard it.
The very purpose of the line was to end hos-
tilities and separate the fighting forces. Mov-
ing troops from one zone to the other to
engage them in hostilities was clearly in
breach of the international agreement
reached at Geneva in 1954.

It was also true in the Korea of 1950 that
the 38th parallel was not a permanent bound-
ary but instead an international demarca-
tion line established at the end of World War
II. Like the line in Viet-Nam, the line in
Korea was not intended to last; it was hoped
that the country could be unified. But all of
this made the North Korean invasion of that
year no less an armed attack under interna-
tional law.

The importance of respecting interna-
tional lines of demarcation is evident in
Europe also. The lines of demarcation be-
tween East and West Germany and around
West Berlin have never been intended as
permanent boundaries. However, they are
lines of great importance, and any moves to
disregard them would have the gravest con-
sequences.



60



DEPARTMENT OF STATE BULLETIN



Question of "Free Elections"

6. Still another argnment has been ad-
vanced by some to justify the actions of
Hanoi. It runs as follows: The Geneva ac-
cords looked forward to a political settlement
as the result of which Viet-Nam would be
unified; elections were to be held in the sum-
mer of 1956, and during the preceding year
consultations were to be held between the
authorities of North and South concerning
the elections; South Viet-Nam declined to
take part in consultations, and there have
been no elections; hence, North Viet-Nam had
freedom to proceed in its own way with re-
unification of the country.

This argument has no merit. The elections
referred to in the Geneva accords were to be
"free general elections by secret ballot." Even
the North Vietnamese Defense Minister in
effect admitted long ago that such elections
would have been impossible in North Viet-
Nam. Speaking at the 10th Congress of the
North Vietnamese Communist Party Central
Committee in October 1956 General [Vo
Nguyen] Giap said:

We have made too many deviations and executed
too many honest people. We attacked on too large
a front and seeing enemies everywhere, resorted
to terror, which became far too widespread.

Thus it cannot properly be said that there
was any breach of agreement by South Viet-
Nam when it declined to proceed toward elec-
tions that could not possibly have been mean-
ingful.

Defense Measures Proportional to Attack

7. Before concluding this review of the
United States legal position, I would like to
refer to the principle that measures of de-
fense must be proportional to the attack. The
United States program of airstrikes against
North Viet-Nam has been designed for the
purpose of interfering with transport to the
South; destroying supplies intended for ship-
ment to the South; in short, to halt the con-
tinuing aggression by North Viet-Nam. As
Ambassador Goldberg said 2 months ago:

It is because of the attempt to upset by violence



JANUARY 9, 1967



the situation in Viet-Nam, and its far-reaching
implications elsewhere, that the United States and
other countries have responded to appeals from
South Viet-Nam for military assistance.

Our aims in giving this assistance are strictly
limited.

We are not engaged in a "holy war" against com-
munism.

We do not seek to establish an American empire or
a sphere of influence in Asia.

We seek no permanent military bases, no per-
manent establishment of troops, no permanent al-
liances, no permanent American presence of any
kind in South Viet-Nam.

We do not seek to impose a policy of alinement
on South Viet-Nam.

We do not seek to overthrow the Government of
North Viet-Nam.

We do not seek to do any injury to mainland
China nor to threaten any of its legitimate interests.

We do not ask of North Viet-Nam an uncondi-
tional surrender or indeed the surrender of anything
that belongs to it.

Efforts To Find a Peaceful Settlement

I have been setting forth reasons in sup-
port of United States military actions against
North Viet-Nam. Justification for these ac-
tions in no way displaces a continuing obliga-
tion we have under the United Nations
Charter to seek a peaceful settlement. It has
long been said that nations must try to settle
their disputes by peaceful means before any
resort to force. But it is no less true that the
participants in armed conflict are bound to go
on seeking a settlement by peaceful means
even while hostilities are in progress.

Particularly in the last 2 years, the United
States has made major efforts to negotiate an
end to the war in Viet-Nam. In April 1965
President Johnson, in response to the appeal
of 17 nonalined countries, offered to com-
mence negotiations without precondition.*
This was not acceptable to Hanoi. A year ago
the United States conducted a concentrated
peace offensive for over 5 weeks. Again there
was no affirmative answer from the other
side.

At the General Assembly this fall, Ambas-



' For text of President Johnson's address at Johns
Hopkins University, Baltimore, Md., see ibid., Apr.
26, 1965, p. 606.



61



sador Goldberg summed up our aims in the
following way:

We want a political solution, not a military solu-
tion, to this conflict. By the same token, we reject
the idea that North Viet-Nam has the right to im-
pose a military solution.

We seek to assure for the people of South Viet-
Nam the same right of self-determination — to decide
its own political destiny, free of force — that the
United Nations Charter affirms for all.

And we believe that reunification of Viet-Nam
should be decided upon through a free choice by the
peoples of both the North and the South without
outside interference, the results of which choice we
are fully prepared to support.

. . . We are prepared to order a cessation of all
bombing of North Viet-Nam the moment we are
assured, privately or otherwise, that this step will be
answered promptly by a corresponding and appro-
priate deescalation on the other side.

Prospects Into the Future

It is not given to us to foresee in what way
the Viet-Nam war will end. It is possible that
the protagonists will meet at the conference
table and settle the conflict by negotiation.
The United States will continue to press its
efforts toward peaceful settlement.

It is also possible that, over time, North
Viet-Nam will gradually reduce and ulti-
mately cease its intervention in the South,
having found that force does not pay and that
the relationships between North and South
must be worked out on the levels of economic
intercourse and political accommodation.

Other possibilities have been urged by
some: for example, outright withdrawal of
United States forces from Viet-Nam or with-
drawal of those forces to a few coastal bases.
I cannot see that any such ending to the war
in Viet-Nam would be acceptable from the
point of view of the world community interest
in peace and justice among nations. Such an
ending would gravely impair the effectiveness
of the international law that we have today.

For one thing, withdrawal and abandon-
ment of South Viet-Nam would be to sacrifice
the Geneva accords and advertise for all to
see that an international agreement can with
impunity be treated by an aggressor as a
mere scrap of paper. Moreover, withdrawal



and abandonment of South Viet-Nam would
undermine the faith of other countries in
United States defense treaty commitments
and would encourage would-be aggressors to
suppose they could successfully and even
freely impose on their weaker neighbors by
force.

In less than 2 months after the 1954
Geneva conference on Indochina, the United
States and other Pacific countries signed the
Southeast Asia Collective Defense Treaty. By
a unanimously agreed protocol, that treaty
covers South Viet-Nam. The parties to the
treaty have engaged jointly and severally to
"act to meet the common danger" if there is
"aggression by means of armed attack"
against any of the parties or any protocol
state. To disengage from this commitment
could have no other effect than to undermine
the assurance of all concerned that the United
States will live up to its commitments. Politi-



Online LibraryUnited States. Dept. of State. Office of Public CoDepartment of State bulletin (Volume v. 56, Jan- Mar 1967) → online text (page 17 of 90)