Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-13T11:15:12.240Z Has data issue: false hasContentIssue false
  • English
  • Français

The Lawfulness of Military Assistance to the Republic of Viet-Nam*

Published online by Cambridge University Press:  28 March 2017

John Norton Moore
John Norton Moore*
Affiliation:
The University of Virginia
Get access Rights & Permissions [Opens in a new window]

Extract

The major thrust of contemporary international law is to restrict coercion in international relations as a modality of major change. The use of force as an instrument of change has always been wasteful, disruptive, and tragic. In the nuclear era the renunciation of force as a method of settlement of disputes has become an imperative. These necessities have resulted in a widely accepted distinction between lawful and unlawful uses of force in international relations which is embodied in the United Nations Charter. Force pursuant to the right of individual or collective defense or expressly authorized by the centralized peacekeeping machinery of the United Nations is lawful. Essentially all other major uses of force in international relations are unlawful. These fundamental proscriptions are designed to protect self-determination of the peoples of the world and to achieve at least minimum world public order. As such, they reflect the basic expectations of the international community. Since they are aimed at prohibiting the unilateral use of force as a modality of major change, they have consistently authorized the use of force in individual or collective defense at least “until the Security Council has taken the measures necessary to maintain international peace and security.” This defensive right is, at least at the present level of effectiveness of international peacekeeping machinery, necessary to the prevention of unilateral use of force as an instrument of change. The fundamental distinction between unlawful unilateral force to achieve major change and lawful force in individual or collective defense against such coercion is the structural steel for assessment of the lawfulness of the present military assistance to the Republic of Viet-Nam.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 1 , January 1967 , pp. 1 - 34
Copyright
Copyright © American Society of International Law 1967

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

This article draws heavily on a more comprehensive paper entitled “The Lawfulness of United States Assistance to the Republic of Viet Nam,” written by the author and James L. Underwood in collaboration with Myres S. McDougal, and distributed to Congress by the American Bar Association. This joint study is summarized by Senator Javits at 112 Cong. Rec. 13232-33 (daily ed., June 22, 1966), and is reprinted in full at 112 Cong. Rec. 14943 (daily ed., July 14, 1966), — and Philippine Int. Law J. — (1967). The joint study also includes an analysis of the lawfulness of United States assistance under internal constitutional processes.

For different perspectives on the problem treated in this article, see Standard, “United States Intervention in Vietnam Is Not Legal,” 52 A.B.A.J. 627 (1966); Wright, “Legal Aspects of the Viet-Nam Situation,” 60 A.J.I.L. 750 (1966). See generally Finman and Macaulay, “Freedom to Dissent: The Vietnam Protests and the Words of Public Officials,” 1966 Wis. Law Eev. 632.

References

2 See generally McDougal and Feliciano, Law and Minimum World Public Order 121-260 (1961).

3 Kelsen, The Law of the United Nations 930, note 6 (1964); McDougal and Feliciano, op. cit. note 1 above, at 221.

4 McDougal and Feliciano, op. cit. note 1 above, at 221.

5 Ibid., note 222.

6 Friedmann, , ‘’ United States Policy and the Crisis of International Law,'’ 59 A.J.I.L. 857, at 866 (1965)Google Scholar.

7 For more detailed treatment of the evidence, see McDougal, Moore and Underwood, “The Lawfulness of United States Assistance to the Republic of Viet Nam,” 112 Cong. Rec. 14943, 14944-48 (daily ed., July 14, 1966).

8 During the debates on this and the other draft resolutions calling for the admission of the R.V.N., the three Soviet delegates said between them: “[B]oth in Korea and in Viet-Nam two separate States existed, which differed from one another in political and economic structure… . '’ The fact was that there were two States in Korea and two States in Viet-Nam… . “The realistic approach was to admit that there were two States with conflicting political systems in both Korea and Viet-Nam. In the circumstances, the only possible solution was the simultaneous admission of the four countries constituting Korea and Viet-Nam… . “[T]wo completely separate and independent States had been established in each of those countries, [Korea and Viet Nam] with different political, social and economic systems.” Ibid, at 14947.

9 Professor Lauterpacht listed both Viet-Minh and Viet-Nam as separate states under international law apparently even prior to the Accords. Under the heading “States At Present International Persons,” Professor Lauterpacht listed among others “Vietminh, Vietnam, North Korea and South Korea.” 1 Oppenheim, International Law 255-258 (8th ed., Lauterpacht, 1955). See also Murti, Vietnam Divided 171-172, 172, note 7 (1964). As Dr. B. S. N. Murti, an Indian scholar who was actively associated with the International Commission For Supervision and Control in Viet-Nam, has written in 1964: “Two independent sovereign States, claiming sovereignty over the whole country, came into existence in Viet Nam and the division of the country seems permanent… . “ Ibid, at v. “Both the States are completely independent with full-fledged Governments of their own owing no allegiance to the other.” Ibid, at 176.

10 William Standard, in a recent article in the American Bar Association Journal invokes this language to indicate that “ I t cannot be asserted that South Vietnam is a separate ‘country’ so far as North Vietnam is concerned.” Standard, “United States Intervention in Vietnam Is Not Legal,” 52 A.B.A.J. 627, 630 (1966). The group known as the “Lawyers Committee on American Policy Toward Vietnam,” of which Standard is Chairman, make much the same point. “Memorandum of Law of the Lawyers Committee on American Policy Toward Vietnam,” 112 Cong. Bee. 2552, 2555- 56 (daily ed., Feb. 9, 1966). Aside from the very considerable uncertainties as to whom the Geneva Accords bound and the reasonable expectations of the participants with respect to the Geneva settlement, Standard and the Lawyers Committee miss the point. The issue is not whether North and South Viet-Nam are separate countries, although there are substantial expectations today that they are, despite this language, but whether they are separate international entities for purposes of assessing the lawfulness of the use of force.

11 As Professor Quiney Wright pointed out in the 1959 Proceedings of the American Society of International Law: “Another complication may result from the protracted functioning of a cease-fire or armistice line within the territory of a state. While hostilities across such a line by the government in control of one side, claiming title to rule the entire state, seems on its face to be civil strife, if such lines have been long continued and widely recognized, as have those in Germany, Palestine, Kashmir, Korea, Viet Nam and the Straits of Formosa, they assume the character of international boundaries. Hostilities across them immediately constitute breaches of international peace, and justify “collective defense” measures by allies or friends of the attacked government, or “collective security“ measures by the United Nations. If this were not so, armistice and cease-fire lines would have no meaning at all… . “ Wright, “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 145, 151. “McNair, Law of Treaties 577, note 1 (1961). See also Bowett, Self-Defence in International Law 189 (1958).

12 See McDougal, Moore and Underwood, note 6 above, at 14971, note 71. In an official message from the British and Soviet Co-Chairmen, which adverted to the possibility of non-implementation of the election provisions, the Co-Chairmen said: “Pending the holding of free general elections for the reunification of Viet-Nam, the two Co-Chairmen attach great importance to the maintenance of the cease-fire under the continued supervision of the International Commission for Viet-Nam.” Documents relating to British Involvement in the Indo-China Conflict (Misc. No. 25 [1965], Command Paper 2834) 96-99, at 97.

13 See McDougal, Moore and Underwood, note 6 above, at 14971, note 70. “The commission receives an average of one note daily from North Vietnam protesting alleged violations of the Geneva agreements… . “ New York Times, Aug. 6, 1966, p. 3, col. 6 (city ed.).

14 The “Four Points” state the public position of the D.E.V. with respect to negotiation of the Viet-Nam conflict. They rest heavily on unilateral U. 8. compliance with the Geneva Accords of 1954 as interpreted by Hanoi. See the April 8, 1965, speech by Mr. Pham Van Dong excerpted in Recent Exchanges Concerning Attempts to Promote a Negotiated Settlement of the Conflict in Viet-Nam (Viet-Nam No. 3 [1965], Command Paper 2756), at 51.

15 For the stress that the D.E.V. places on the Accords, see McDougal, Moore and Underwood, note 6 above, at 14978. Hanoi also invokes the Geneva Accords as the principal reason why United Nations “intervention” is inappropriate. Ibid. The D.E.V. position on whether Viet-Nam is one or two international entities is not the simple “civil war after elections were not held” argument put forward by some. By way of example, Ho Chi Minh's letter to heads of state on January 28, 1966, said: “U.S. imperialists have massively increased the strength of the U.S. expeditionary corps and sent in troops from a number of their satellites to wage direct aggression in South Vietnam. They have also launched air attacks on the D.E.V., Democratic Republic of Vietnam, an independent and sovereign country, and a member of the Socialist camp.” New York Times, Jan. 29, 1966, p. K, col. 5 (city ed.).

16 McDougal and Feliciano, op. cit. note 1 above, at 259.

17 See references in note 9 above.

18 See, e.g., Bowett, Self-Defence in International Law 184-193 (1958); McDougal and Feliciano, op. cit. note 1 above, at 233-241; Stone, Aggression and World Order 92-101 (1958). The restrictive interpretation advocated by some scholars that the right of defense under the U.N. Charter is limited by the language of Art. 51 differs principally in practical effect from the above interpretation in assessing the lawfulness of anticipated defense and the lawfulness of response to attacks not involving the use of the military instrument. Since the D.E.V. aggression against the E.V.N, utilizes the military instrument as the principal strategy and since the response of the E.V.N, and the United States does not even remotely raise questions of anticipatory defense, there would seem to be little doubt that an “armed attack” has taken place even under this more restrictive view of the Charter. For scholars advocating the more restrictive view see, e.g., Jessup, A Modern Law of Nations 165-167 (1948); Wright, “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 145, 148, 152.

19 Special Report to the Co-Chairmen of the Geneva Conference on Indo-China (Vietnam No. 1 [1962], Command Paper 1755). Great Britain Parliamentary Sessional Papers, XXXIX (1961/62), at 6-7.

20 Ibid at 7 (emphasis added). The Commission also found after recording this armed aggression from the D.B.V. that the E.V.N, had violated Arts. 16, 17 and 19 of the Geneva Agreements by receiving military assistance. Ibid, at 10. It is erroneous to merely “balance” the violations recorded against both sides in this report. The kinds of violations recorded against the two sides are crucially different. For a fuller exploration of this point and a discussion placing the Commission findings in the broader context of the Geneva settlements and the norms regulating the use of coercion, see the discussion in Section VI below.

21 Special Report to the Co-Chairmen of the Geneva Conference on Indo-China, February 13, 1965 (Vietnam No. 1 [1965], Command Paper 2609), at 14-15.

22 New York Times correspondent Neil Sheehan, in an article in the May 2, 1966, New York Times, points out that: “The available evidence strongly indicates that the war was actually initiated on orders from Hanoi… . The instrument for the renewal of guerrilla warfare was the clandestine organization that had been deliberately left behind when the bulk of the Communist-led Vietminh troops, who fought the French and were the predecessors of the Vietcong, were withdrawn to the North in 1954. “The existence of such a clandestine Communist party organization in the South has been documented. In this regard, analysts also point out a fact often little understood in the West, that there is only one Communist party in Vietnam and that its organizational tentacles extend throughout both the North and the South. At no time since the mid-nineteen-forties, when the struggle against the Japanese, and then the French began, has the politburo of the party lost control over its branch in the South… . “By 1960, the evidence indicates, Hanoi decided that some instrument was necessary to lend an aura of legitimacy and to disguise Communist control over the guerrilla warfare its cadres had fostered in the South [leading to a call for the formation of the N.L.F.]… . “[T]he Liberation Front does not control the Vietcong armed forces, despite its claims to the contrary. Documentary evidence, interrogation of prisoners and other intelligence data indicate that the guerrilla units are directed by an organization known as the Central Office for South Vietnam, or Cosvin as it is commonly called here. “Cosvin is believed to be the senior Communist headquarters in the South, reporting directly to the reunification department of the Communist party in Hanoi and thus to the politburo. Through its military affairs department, Cosvin acts as a high command for the Vietcong guerrilla units… . “ New York Times, May 2, 1966, p. 1, col. 2 (city ed.). Similarly, Takashi Oka, a former Far East correspondent for the Christian Science Monitor, who has been in Viet-Nam for the past two years, wrote recently in the New York Times Magazine: “Ho Chi Minh's Laodong party, with the intense, single-minded Le Duan as secretary general, was the Communist party for all of Vietnam until the Geneva Accords of 1954 divided the country into Communist North and non-Communist South. It retained its clandestine network in the South, and began expanding party membership there in earnest soon after the Third Party Congress (Hanoi, September, 1960), which decided on the ‘liberation’ of South Vietnam. When it changed its name in the South to People's Revolutionary party, it was following the Communist scenario of an insurrection independent of Hanoi… . “The Communist chain of command begins in Hanoi, where the Laodong party's central committee openly maintains a reunification department headed by Maj. Gen. Nguyen Van Vinh. Analysts in Saigon believe that the reunification department is an agency for transmitting orders from the Laodong politburo to the South. Policy-making is the sole prerogative of the politburo, with Le Duan himself probably playing a major role. “From the reunification department in Hanoi, orders go out to C.O.S.V.N., which is at the same time the central committee of the People's Revolutionary party.“ Takashi Oka, “The Other Regime in South Vietnam,” New York Times Magazine, July 31, 1966, p. 9, at 46. In a recent article about General Vo Nguyen Giap, Commander of the North Vietnamese Army, the New York Times reported: “Late in 1964 General Giap apparently decided, with the concurrence of party leaders, to move to phase three [mobile warfare] in the war in South Vietnam. So he began moving North Vietnamese regular army units down the Ho Chi Minh Trail.” New York Times, July 31, 1966, p. 2, col. 5 (city ed). According to the Mansfield Report, “Infiltration of men from North Vietnam through Laos has been going on for many years. It was confined primarily to political cadres and military leadership until about the end of 1964 when North Vietnam Regular Army troops began to enter South Vietnam by this route.” Mansfield, Muskie, Inouye, Aiken and Boggs, The Vietnam Conflict: The Substance and the Shadow—Report to the Senate Committee on Foreign Relations, 112 Cong. See. 140, .141 (daily ed., Jan. 13, 1966). Times Saigon correspondent, Charles Mohr, recently reported that according to informed sources the latest intelligence estimates indicated that “of the 177 enemy combat battalions in South Vietnam, 81, or 46 per cent, are now North Vietnamese… . “ New York Times, Aug. 10, 1966, p. 1, col. 4, at p. 5, col. 5 (city ed.). These figures are not far from those released by General William Westmoreland at a press conference on Aug. 14, 1966, when he indicated that: “At the present time there are approximately 280,000 Vietcong. This consists of about 110,000 main-force North Vietnamese regular army troops; approximately 112,000 militia or guerrilla forces; approximately 40,000 political cadre, and approximately 20,000 support troops. Regular troops have been, in recent months, moving down from North Vietnam to South Vietnam in great numbers. “Since the first of the year, we estimate that at least 30,000 regular troops have moved down, and perhaps as many as 50,000. You are well aware that several weeks ago a regular army North Vietnamese division crossed the demilitarized zone. This is the latest intrusion.” New York Times, Aug. 15, 1966, p. 2, col. 4, at col. 7 (city ed.).

23 The Basis for United States Actions in Viet Nam Under International Law 5 (Mimeograph, U. S. Dept. of State).

24 Kelsen, , ‘ ‘ Collective Security under International Law,'’ 49 International Law Studies 88 (1956).Google Scholar

25 Brownlie, International Law and the Use of Force By States 373 (1963).

26 Bowett, Self-Defence in International Law 193, 195 (1958); Brierly, The Law of Nations 319-320 (5th ed., 1955); Jessup, A Modern Law of Nations 164-165, 202 (1948); Kelsen, The Law of the United Nations 800, 804, 804, note 5 (1964); Kelsen, , “Collective Security under International Law,” 49 International Law Studies 61-62 (1956)Google Scholar; McDougal and Feliciano, Law and Minimum World Public Order 218-219 (1961); Stone, Legal Controls of International Conflict 244 (1954); Thomas and Thomas, Non-intervention 171 (1956); Kelsen, , “Collective Security and Collective Self-Defense under the Charter of the United Nations,” 42 A.J.I.L. 783, 791-795 (1948)Google Scholar,

27 Professor Kelsen indicates the correct doctrine when he says: '’ Since within a more or less centralized system of international security the exercise of the right of individual and collective self-defense must be permitted because the central organ of the organization cannot interfere immediately after an illegal use of armed force has taken place, the question of whether or not the use of armed force which has actually taken place is illegal must be decided by the state which claims to be exercising the right of individual or collective self-defense. However, this is true only as long as the central organ of the security organization does not interfere. As soon as it does, this central organ must decide that question, and it may decide that question in another way than the state which claims to be exercising its right of selfdefense.“ Kelsen, , “Collective Security under International Law,” loo. cit. note 24 above, at 61-62 (1956).Google Scholar

28 Standard, loo. cit. note 9 above, at 628.

29 Kelsen, ‘’ Collective Security under International Law,'’ loc. cit. note 24 above, at 88.

30 Brownlie, note 25 above, at 331.

31 In addition to the discussion by Professors Kelsen and Brownlie cited in notes 29 and 30 above, see Bowett, op. cit. note 26 above, at 193-195; Brierly, , Law of Nations 305 (6th ed., Waldock, 1963)Google Scholar; Heindel, , Kalijarvi, and Wilcox, , “The North Atlantic Treaty in the United States Senate,” 43 A.J.I.L. 633, 657-658 (1949)Google Scholar. See also McDougal and Feliciano, op. cit. note 26 above, at 233-241; Pompe, Aggressive War An International Crime 66 (1953); Thomas and Thomas, op. cit. note 26 above, at 171. Scholars indicating in the context of the Viet-Nam debate that the U.N. Charter does not restrict a Member from participating in the collective defense of a non-Member include Professor Myres S. McDougal, Sterling Professor of Law at Yale, Professor Louis B. Sohn, Bemis Professor of International Law at Harvard, and Professor Quincy Wright, Professor of International Law at the University of Virginia. The only authority cited by Standard and the Lawyer's Committee for the proposition that U.N. Members may not assist in the collective defense of non-Members is an excerpt from Stone, op. cit. note 26 above, at 244 to the effect that “the license of Article 51 does not apparently cover even an ‘armed attack’ against a non-Member.“ Standard has not done his homework. Professor Stone is one of the scholars taking the position that the right of individual and collective defense under customary international law is not impaired by Art. 51. Although, as the quotation by Standard illustrates, Professor Stone does take a narrow view of the right of Members to assist in the collective defense of non-Members when acting under the license of Art. 51, he does not take the position, necessary for Standard's argument, that the U.N. Charter restricts a Member from participating in the collective defense of a non-Member. In fact, in his more recent book, Aggression and World Order, Professor Stone indicates that a consequence of the extreme restrictive interpretation of the U.N. Charter would be that a Member could not assist in the collective defense of a non-Member, and terms such a result an absurdity and injustice. He clearly opts against what he terms this “extreme” view. See Stone, Aggression and World Order 92-98, at 97 (1958). Professor Stone's interpretation of Art. 51 seems to be based solely on the literal text and is also open to the criticism discussed above.

32 See, generally, McDougal and Feliciano, op. cit. note 26 above, at 235; Russell and Muther, A History of the United Nations Charter 688-712 (1958).

33 Frank law and modern mind 24-82(Anchor book ed., 1963)

34 See Kelsen, The Law of the United Nations 795-796 (1950); Pompe, Aggressive War An International Crime 66 (1953); Thomas and Thomas, Non-intervention 172 (1956); Kunz, , “Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations,” 41 A.J.I.L. 872, 874 (1947).Google Scholar

35 Standard, note 9 above, at 633.

36 Memorandum of Law, note 9 above, at 2557.

37 See Jessup, A Modern Law of Nations 208 (1948); Kelsen, The Law of the United Nations 792-795, 921-927 (1950); Kelsen, , “Collective Security under International Law,” 49 International Law Studies 264 (1956)Google Scholar; McDougal and Feliciano, Law and Minimum World Public Order 245 (1961); Stone, Legal Controls of International Conflict 248-251 (1954); Thomas and Thomas, Non-intervention 187 (1956); Heindel, Kalijarvi, and Wilcox, , “The North Atlantic Treaty in the United States Senate,” 43 A.J.I.L. 633, 639 (1949)Google Scholar; Kelsen, , “ Is the North Atlantic Treaty a Regional Arrangement?”, 45 A.J.I.L. 164-166 (1951).Google Scholar

38 101 Cong. Bee. 1055 (1955).

39 Ibid. Ruth Lawson has summarized this understanding: ” The relationship of contemporary regional and global organizations is worthy of special comment. The collective defense organizations based on the North Atlantic Treaty and the Bio, Manila, Baghdad, and Warsaw pacts are ultimately grounded in Article 51 of the United Nations Charter, which with notable prescience legitimized collective defense against armed attack without Security Council authorization.” Lawson, International Regional Organization vi (1962).

40 See McDougal, Moore and Underwood, note 6 above, at 14955-56, 14977-79.

41 As McDougal and Feliciano indicate: “Proportionality in coercion constitutes a requirement that responding coercion be limited in intensity and magnitude to what is reasonably necessary promptly to secure the permissible objectives of self-defense. For present purposes, these objectives may be most comprehensively generalized as the conserving of important values by compelling the opposing participant to terminate the condition which necessitates responsive coercion. … Thus articulated, the principle of proportionality is seen as but one specific form of the more general principle of economy in coercion and as a logical corollary of the fundamental community policy against change by destructive modes.“ Op. cit. note 37 above, at 242-243.

42 Mansfield, Muskie, Inouye, Aiken and Boggs, note 22 above, at 140.

43 See McDougal, Moore and Underwood, note 6 above, at 14974, note 124.

44 According to the Mansfield Report, as late as May, 1965, U. S. regular combat units were still not engaged on the ground. Mansfield, Muskie, Inouye, Aiken and Boggs, note 22 above, at 141.

45 See McDougal, Moore and Underwood, note 6 above, at 14980, note 248; Jessup, op. cit. note 37 above, at 167-168.

46 See McDougal, Moore and Underwood, note 6 above, at 14977-79, note 233; New York Times, Aug. 19, 1966, p. 2, col. 7 (city ed.); Aug. 7, 1966, p. 10, col. 1; Aug. 4, 1966, p. 4, col. 3 (city ed.).

47 Ibid. See also ibid., July 25, 1966, p. 3, col. 5 (city ed.). But U. N. Secretary General IT Thant has indicated that in 1964 and early 1965 Hanoi may have had more interest in negotiations.

48 lbid., July 31, 1966, p. 3, col. 5 (city ed.). British Foreign Secretary George Brown was equally unsuccessful in his efforts to convince the Soviets to convene a peace conference. See the New York Times, Nov. 26, 1966, p. 6, col. 4 (city ed.). There have recently been some hints that the Soviet attitude on the Viet-Nam issue is thawing.

49 See New York Times, Aug. 19, 1966, p. 2, col. 7 (city ed.); Aug. 11, 1966, p. 2, col. 4 (city ed.); Aug. 9, 1966, p. 2, col. 4 (city ed.).

50 For documentation with respect to the discussion in this section see McDougal, Moore and Underwood, “The Lawfulness of United States Assistance to the Republic of Viet-Nam,” 112 Cong. Rec. 14943, 14972, notes 74 and 75 (daily ed., July 14, 1966). In a recent article in The Reporter, Victor Bator makes many of these same points with respect to the ambiguities of the 1954 Geneva settlement. See Bator, “Geneva, 1954: The Broken Mold,” The Reporter 15 (June 30, 1966). According to Bator: “The primary motivation of the Vietminh was to consolidate their rule somewhere, anywhere, in Vietnam. To accomplish this, Ho Chi Minh was willing to make political concessions from his militarily superior position. So it came about that, on May 25, the head of the Vietminh delegation first mentioned partition. It was to be based on a regrouping of forces on either side of a line of demarcation that would give both parties an area with a sufficiently large population to exist independently… . “The contradictions and the equivocations in the documents that emerged from the Geneva Conference gain added emphasis by the procedure by which they were reached. As narrated in memoirs such as those of Anthony Eden, who presided at Geneva, or in the detailed accounts of Bernard B. Fall, Jean Lacouture, and Philippe Devillers, partition—so ambiguously treated in the documents—was the most important subject of bargaining, both in principle and in its geographical application. It was discussed continually, if confidentially, within each delegation, but for a time was carefully ignored when the delegations met. “When at last partition was openly breached by the Vietminh, the French and British were elated. From that moment the location of the dividing line became the principal hurdle blocking the road to a settlement. Secretary of State Dulles, in order to underscore his insistence that it be drawn on the 17th parallel and to demonstrate western unity on this point, flew from Washington to Paris to meet with Eden and Premier Pierre Mendes-France. There were discussions even about the viability of the parts. It is hard to believe that all this activity could have been devoted to the location of a temporary military demarcation line, a kind of billeting arrangement that would shortly disappear. The innocent-sounding text of the final agreement must have signified something of greater import.” Ibid, at 17.

51 For documentation with respect to discussion of this point, see McDougal, Moore and Underwood, note 50 above, at 14944-48, 14956-58, 14969-71, notes 22, 23, 24, 33, 34, 36, 37, 41, 44 and 49; 14980-82, notes 251, 252, 254, 261, 262, 267, 270, 274, 275, 276, and 278

52 See MeDougal, Moore and Underwood, note 50 above, at 14970, note 46.

53 The principal argument seems to be based on Art. 27 of the Agreement on the Cessation of Hostilities, which says that: “The signatories of the present Agreement and their successors in their functions shall be responsible for ensuring the observance and enforcement of the terms and provisions thereof… . “ It is argued that the B.V.N. succeeded to the obligations of the French Union Forces. But if the R.V.N. is not otherwise bound by the Agreement, there is little reason to suggest that it is bound by Art. 27. In light of the evidence suggesting that France considered the state of Viet-Nam independent prior to the signing of the Accords, that France did not intend to bind the state of Viet-Nam and that the state of Viet-Nam expressly refused to be bound by the Agreements, this argument from the text of Art. 27 is not persuasive. There remain among others the questions of whether France had legally granted independence to the state of Viet-Nam prior to the signing of the Accords and,. even if not, whether the independence agreements entered into by France with the state of Viet-Nam prior to the Accords would take precedence over any later inconsistent agreements entered into by France. Moreover, it is not clear from this provision that the parties adverted to the E.V.N, as a successor “ i n their functions“; for example, it is also open to the interpretation that they were referring to successive Commandersin- Chief of the PAVN and French Union Forces. Nor would this argument solve the question of whether the E.V.N, was bound by the Final Declaration. Attempts to find certainty in the basic outline of the Geneva settlement, whether from the language of Art. 27 or any other, oversimplify the case.

54 Background Information Relating to Southeast Asia and Vietnam, Committee on Foreign Relations, United States Senate (Rev. ed., Comm. Print, June 16, 1965), at 60.

55 Arts. 34 and 36 of the Agreement on the Cessation of Hostilities.

56 See authorities cited in McDougal, Moore and Underwood, note 50 above, at 14959, 14982, notes 289 and 290.

57 Memorandum of Law of Lawyers Committee on American Policy Toward “Vietnam, reprinted in 112 Cong. Rec. 2552, at 2554 (daily ed. Feb. 9, 1966).

58 See, e.g., authorities collected in McDougal, Moore and Underwood, note 50 above, at 14975-76, notes 176 and 179. But see, e.g., Wright, “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 145, 149.

59 .lbid. Also see Brownlie, International Law and the Use of Force by States 327 (1963).

60 The frequent emphasis on Viet-Cong control of territory in the popular literature also evidences this misconception. Although it is questionable what “control” means in this context, and whether military “control” is a particularly relevant standard in any sense, if “control” of people is looked to rather than trees or acres, the Saigon government has substantially better credentials than the N.L.F.-Viet-Cong. According to the Mansfield Report the Saigon government controls about 60% of the population compared with only 22% for the rebels. The remainder is disputed. See Mansfield, Muskie, Inouye, Aiken and Boggs, note 22 above, at 142.

61 Letter from Louis B. Sohn, Bemis Professor of International Law, Harvard, to John Norton Moore, April 21, 1966.

62 See Eisenhower, Mandate for Change 449 (Signet ed., 1963).

63 See Standard, note 9 above, at 634.

64 See, generally, New York Times, Aug. 23, 1966, p. 1, col. 1 (city ed.).