No CrossRef data available.
Article contents
Law and Politics in the Vietnamese War: A Response to Professor Friedmann
Published online by Cambridge University Press: 28 March 2017
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Notes and Comments
- Information
- Copyright
- Copyright © American Society of International Law 1967
References
1 Friedmann, “Law and Politics in the Vietnamese War: A Comment,” 61 A.J.I.L. 776,(1967).
2 Moore, “The Lawfulness of Military Assistance to the Republic of Viet-Nam,” 61 A.J.I.L. 1 (1967). My own views are further elaborated in “International Law and the United States Role in Viet Nam: A Reply,” 76 Tale Law J. 1051 (1967), and “The Role of Law in the Viet Nam Debate,” 41 Connecticut Bar J. 389 (1967). Additional background documentation supporting this view may be found in Moore and Underwood, ‘ ‘ The Lawfulness of United States Assistance to the Republic of Viet-Nam,'’ 112 Cong. Rec. 14943 (daily ed., July 14, 1966), reprinted in 5 Duquesne Law Rev. 235 (1967).
3 See Friedmann, “United States Policy and the Crisis of International Law,” 59 A.J.I.L. 857, 865-66 (1965); idem, “ Intervention, Civil War and the R61e of International Law,'’ 1965 Proceedings, American Society of International Law 67.
4 See the letter from the Lawyers Committee on American Policy Toward Vietnam to President Johnson, Jan. 25, 1966, in 112 Cong. Rec. 2551 (daily ed., Feb. 9, 1966).
5 Friedmann, note 1 above, at 778-779. Professor Friedmann has informed me that his endorsement of the “Lawyers Committee Memorandum” was qualified but that his reservations were not published. By way of further clarification of his reservations, however, he indicates only that he does “not agree with some of their [the Lawyers Committee] statements, e.g., on U.S. aggression and the de facto status of South Vietnam.
6 olbid. at 779.
7 Ibid.
8 Friedmann, note 1 above, at 783.
9 The evidence is developed in Moore, ‘ ‘ International Law and the United States Role in Viet Nam: A Reply,” 76 Yale Law J. 1051 (1967). By way of illustration, Ellen Hammer writes that: “ I n contrast to the detailed implementation provided for ending hostilities and for the de facto partition of the country (including the right of each Vietnamese to decide whether he wished to live north or south of the seventeenth parallel), the Final Declaration offered no long-term perspective for a definitive settlement of the Vietnamese question. The method by which the desirable conditions laid down in Article 7 were to be achieved, was not explained… . “Thus, although the Franco-Vietminh war was ended at Geneva in July 1954, a political soluction f pr Vietnam was postponed to seine unspecified future date,
10 The evidence is developed in Moore, note 9 above.
11 See, for example, Farer, ‘ ‘ Intervention in Civil Wars: A Modest Proposal,'’ 67 Columbia Law Eev. 266 (1967).
12 See Moore, note 9 above.
13 Friedmann, note 1 above, at 779.
14 See Moore, note 2 above, 8-11, at 11 (emphasis added).
15 Friedmann, note 1 above, at 779.
16 See Moore, note 9 above.
17 Friedmann, note 1 above, at 780.
18 Ibid, at 779-780.
19 Moore, note 2 above, at 9, note 20.
20 This is inaccurate. The Commission issued in 1954 and 1955 four reports which, among other things, indicate the serious concern of the Commission with Northern implementation of Art. 14(c), the provision allowing persons to choose zones.
21 Friedmann, note 1 above, at 780.
22 Moore, note 2 above, at 12.
23 Eleventh Interim Report of the International Commission for Supervision and Control in Vietnam (Vietnam No. 1 [1961], Command Paper 1551). Great Britain Parliamentary Sessional Papers XXXIX (1961/62), at 25.
24 See the articles from the Indian daily, The Hindustan Times, and the New Delhi periodical, Thought, discussing the operation and reports of the Commission, collected in Ngo Ton Dat, “The Geneva Partition of Vietnam and the Question of Reunification During the First Two Tears,” pp. 481-487, Appendix U (Unpublished Ph.D. dissertation, Cornell University, 1963). On December 16, 1961, the Hindustan Times wrote: “On the whole … the non-co-operation of the North seems more ominously purposeful than the non-co-operation of the South.” Ibid, at 485.
25 Ngo Ton Dat, ibid, at 419, note 4. Dat adds that “ t h e members of the commission were constantly denied freedom of circulation and investigation by the Viet- Minh.” Ibid.
26 Citations for all of the Commission reports and a summary of the principal grievances asserted against both sides may be found in Moore and Underwood, note 2 above, at note 285 and accompanying text. See also Dai, “Canada's Role in the International Commission for Supervision and Control in Vietnam,” 4 Canadian Yr. Bk. Int. Law 161 (1966).
27 Friedmann, note 1 above, at 780.
28 Ibid.
29 Wright, “Legal Aspects of the Viet-Nam Situation,” 60 A.J.I.L. 750, 763 (1966).
30 Moore, note 2 above, at 27.
31 Ibid.
32 Friedmann, note 1 above, at 779.
33 Ilia, at 780-781.
34 Ibid, at 779.
35 lbid. at 782.
36 lbid. at 783.
37 Moore, note 2 above, at 31. This statement is part of the over-all discussion of “civil war” non-intervention norms, ibid, at 28-33,
38 Moore, note 9 above. See also my brief recommendation of a framework for inquiry about non-intervention norms in 1967 Proceedings, American Society of International Law 75.
39 Professor Farer's recent suggestion of a prohibition on tactical support is the kind of alternative which breaks new ground and which should be explored. See Farer, note 11 above. Though this writer doubts that this alternative, which focuses solely on the modalities of assistance, is realistic for all contexts, for example, the inter-bloc conflict, it may be a useful alternative for some types of intra-state conflict. The important point is that alternatives other than either/or should be explored and that the modalities of assistance, objectives of the participants, arenas of fighting, and outcomes (supervised elections, perhaps), are highly relevant.
40 Friedmann, note 1 above, at 781.
41 ibid. at 778.
42 Professor Friedmann reiterates this theme in a debate with Professors A. J. Thomas and A. A. Berle on the Dominican Republic crisis. See The Dominican Republic Crisis 1965: The Ninth Hammarskjold Forum 112-113 (1967).
43 Friedmann, note 1 above, at 779.
44 Ibid, at 783.
45 Ibid, at 785. This statement is difficult to reconcile with Professor Friedmann's earlier endorsement of the “Lawyer's Committee Memorandum,” which condemned United States assistance as illegal.