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Published online by Cambridge University Press: 28 March 2017
In appraising national security decisions, such as the recent decision to send United States combat forces into the North Vietnamese and Viet Cong border sanctuaries in Cambodia, it is useful to focus on three interrelated questions. First, is the decision consistent with national and international law? Second, is the decision consistent with the national interest? And third, are there other alternatives which are likely to be more satisfactory in implementing the national interest? Each of these questions represents an important perspective for appraisal. Although the answer to the first question is important for answering the second and third questions, international lawyers should resist the temptation to regard an affirmative answer to the legal question as equivalent to proof that a decision is the best option for national action. Conversely, international lawyers should also avoid the temptation to regard personal doubts about the efficacy of a particular option as equivalent to proof of the illegality of the option. An international legal perspective is a critical input in national security decisions and should have a major rôle in defining the national interest and in introducing and delimiting options for national action. On the other hand, efforts to overuse international law, whether by way of support or criticism of national action, serve only to obscure the vital rôle that an international legal perspective should play.
1 See Falk, , “Law, Lawyers, and the Conduct of American Foreign Relations,” 78 Yale Law J. 919 (1969)CrossRefGoogle Scholar; Moore, , “The Control of Foreign Intervention in Internal Conflict,” 9 Virginia J. Int. Law 205, 310–14 (1969)Google Scholar.
2 The Final Declaration, signed July 21, 1954; the Agreement on the Cessation of Hostilities in Cambodia, signed July 20, 1954; and the Declaration by the Royal Government of Cambodia of July 21, 1954, are reproduced in Further Documents relating to the discussion of Indo-China at the Geneva Conference, Misc. No. 20 (1954), Cmd. No. 9239, at 9, 11, 40 (1954). The text of the Final Declaration is also reprinted in 60 A.J.I.L. 643 (1966). See, generally, Randle, R., “The Settlement for Cambodia,” in Geneva 1954: The Settlement of the Indochinese War 482-503 (1969)Google Scholar.
3 R, Randle, op. cit. at 339-341, 486. See also Field, M., The Prevailing Wind: Witness in Indo-China 169–170 (1965)Google Scholar.
4 R. Randle, op. cit. at 340.
5 Cited note 2 above.
6 See M. Field, note 3 above, at 161–251.
7 R. Randle, note 2 above, at 501. In its Sixth Interim Report the International Commission for Supervision and Control in Cambodia reiterated that “the imports of war materials by the Royal Government were not in excess of requirements for its effective defence.” Cambodia No. 1 [1958], Cmnd. No. 526, at 8 (1958).
8 See Sixth Interim Report, cited above, at 9. See also M. Field, note 3 above, at 232.
9 See Sixth Interim Report, note 7 above, at 9. Art. 13(c) of the Agreement on the Cessation of Hostilities in Cambodia provides that the International Supervisory Commission shall: “Supervise, at ports and airfields and along all the frontiers of Cambodia, the application of the Cambodian declaration concerning the introduction into Cambodia of military personnel and war materials on grounds of foreign assistance.”
10 New York Times, March 17, 1970, at 1, col. 8 (City ed.); April 4, 1970, at 3, col. 1 (City ed.); April 23, 1970, at 4, col. 4 (City ed.). See also the Staff Report, “Cambodia: May 1970” prepared for the Senate Committee on Foreign Relations, 91st Cong., 2d Sess. 6 (Comm. Print June 7, 1970), reprinted in 9 Int. Legal Materials 858, 864 (1970).
11 According to John Stevenson, the Legal Adviser of the Department of State:
“In the past 5 years 150,000 enemy troops have been infiltrated into South Viet-Nam through Cambodia. In 1969 alone, 60,000 of their military forces moved in from Cambodia. The trails inside Cambodia are used not only for the infiltration of troops but also for the movement of supplies. A significant quantity of the military supplies that support these forces came through Cambodian ports. . . .
“During 1968 and 1969 the Cambodian bases adjacent to the South Vietnamese Provinces of Tay Ninh, Pleiku, and Kontum have served as staging areas for regimentalsize Communist forces for at least three series of major engagements—the 1968 Tet offensive, the May 1968 offensive and the post-Tet 1969 offensive.” Stevenson, , “United States Military Actions in Cambodia: Questions of International Law,” 62 Dept. of State Bulletin 765, 767 (1970)Google Scholar; reprinted in 64 A.J.I.L. 933 and in 9 Int. Legal Materials 840, 846–847 (1970).
12 See New York Times, March 16, 1970, at 1, col. 5 (City ed.); March 17, 1970, at 1, col. 8 (City ed.). “Cambodia had sent notes to the Vietcong and Hanoi Governments demanding that the troops leave by yesterday, but the deadline passed with no apparent exodus of troops.”
13 Ibid. “See ibid., March 16, 1970, at 11, col. 1 (City ed.). Staff Report, note 10 above, at 1; 9 Int. Legal Materials at 860 (1970).
14 Lacouture, J., “From the Vietnam War to an Indochina War,” 48 Foreign Affairs 617, 624–625 (1970)Google Scholar.
15 See New York Times, March 19, 1970, at 16, cols. 8–9.
16 Ibid., col. 9.
17 Ibid.; Shaplen, R., “Letter From Indo–China,” The New Yorker, May 9, 1970, at 130, 135 Google Scholar.
18 R. Shaplen, he. cit. at 136.
19 Ibid., at 139. According to the Staff Report prepared for the Senate Committee on Foreign Relations: “On March 18, Sihanouk was removed as Chief of State by unanimous vote of the Cambodian Parliament.” Staff Report, note 10 above, at 2; loc. cit., at 860.
20 New York Times, May 6, 1970, at 17, col. 6 (City ed.).
21 R .Shaplen, note 17 above, at 139.
22 See New York Times, May 7, 1970, at 1, col. 5. North Viet–Nam and the Viet Cong, however, recalled their diplomats from Phnom Penh on March 25, 1970. See New York Times, March 26, 1970, at 17, col. 1.
The Staff Report prepared for the Senate Committee on Foreign Relations points out that: “On May 5, Sihanouk announced in Peking the formation of a Royal Government of National Union. It was recognized by Communist China the same day and by North Vietnam and the Provisional Revolutionary Government the following day.” Staff Report, note 10 above, at 4; 9 Int. Legal Materials at 862. With respect to this government–in–exile, Robert Shaplen suggests that “Sihanouk is more a captive of Peking today than a spearhead of an independent government–in–exile. . . .” R. Shaplen, note 17 above, at 135. See also note 51 below.
23 See Staff Report, note 10 above, at 1–4; 9 Int. Legal Materials at 859–862.
24 The New York Times reported “an acceleration of the Communist invasion” following efforts by the new government “for negotiations on its demand for the withdrawal of Vietnamese Communist troops.” New York Times, May 7, 1970, at 16, col. 1 (City ed.).
25 See, e.g., ibid., April 8, 1970, at 1, col. 8 (City ed.); April 9, 1970, at 1, col. 4 (City ed.); April 10, 1970, at 1, col. 4 (City ed.); April 13, 1970, at 1, col. 2 (City ed.); April 20, 1970, at 1, col. 8 (City ed.); April 21, 1970, at 1, col. 6 (City ed.); April 23, 1970, at 1, col. 8 (City ed.); April 25, 1970, at 3, col. 4 (City ed.); April 27, 1970, at 1, col. 8 (City ed.); April 27, 1970, at 5, col. 1 (City ed.).
26 See New York Times, May 4, 1970, at 1, col. 6 (City ed.). Apparently about 2,000 ethnic Cambodians arrived in Phnom Penh on May 1 and 2. Ibid.
27 See ibid., April 23, 1970, at 4, col. 5 (City ed.).
28 Ibid., at 1, col. 8 (City ed.).
29 Ibid., at 4, col. 4 (City ed.).
30 Ibid., April 27, 1970, at 5, col. 1 (City ed.).
31 See ibid., April 11, 1970, at 1, col. 4 (City ed.); April 14, 1970, at 1, col. 5 (City ed.); April 18, 1970, at 1, col. 1 (City ed.); April 25, 1970, at 3, col. 1 (City ed.); but see ibid., April 23, 1970, at 5, col. 3 (City ed.), announcing the formation by the Cambodian Government of a “Commission responsible for the safety of all foreigners.
. . . . “
32 For a discussion of the legal issues raised in the Viet–Nam War and whether the North Vietnamese use of force against South Viet–Nam violates Art. 2(4) of the Charter, see 1 and 2 Falk (ed.), The Vietnam War and International Law (1968 and 1969).
33 But see R. Randle, note 2 above, at 414–415.
34 For a general discussion of the customary law of non–intervention, see Moore, note 1 above, at 242–246, 315–332.
35 Res. 2131, TJ. N. General Assembly, 20th Sess., Official Records, Supp. 14, at 11–12 (U.N. Doc. A/6014) (1965); 60 A.J.I.L. 662 (1966).
36 See Schwarzenberger, G., A Manual of International Law 218 (5th ed., 1967)Google Scholar; Stone, J., Legal Controls of International Conflict 382 (1959)Google Scholar. See also Greenspan, M., The Modern Law of Land Warfare 540 (1959)Google Scholar; Note, , “International Law and Military Operations against Insurgents in Neutral Territory,” 68 Col. Law Rev. 1127, 1142–1146 (1968)Google Scholar.
37 See, e.g., the declaration of the Royal Government of Cambodia of May 29, 1955, in R. Randle, note 2 above, at 489.
38 See, generally, on the duties of a neutral state, Castrén, E., The Present Law of War and Neutrality 459, 470–488 (1954)Google Scholar; 2 Oppenheim, International Law 687–726 (7th ed., Lauterpacht, 1952); McDougal, M. and Feliciano, F., Law and Minimum World Public Order 436–469 (1961)Google Scholar; G. Schwarzenberger, note 36 above, at 219–226.
39 See E. Castrén, cited above, at 442; M. Greenspan, note 36 above, at 537–538; 3 Hyde, International Law Chiefly as Interpreted and Applied by the United States 2344 (1945); L. Oppenheim, cited above, at 757–758; J. Stone, note 36 above, at 391. Greenspan says: “the practice of the two world wars appears to indicate that a small neutral state is not at fault for failure to offer resistance to the invasion of its territory, where such resistance would be hopeless.” (P. 537.)
40 One writer points out: “[I]t has been suggested by a student of Cambodian foreign policy that Prince Sihanouk believed that the continued independence of his state depended upon entering into a modus Vivendi with the Chinese People’s Republic and the Democratic Republic of Vietnam. At present, Cambodia is threatened by a Communist inspired insurgency; the consequence probably would have been far worse for the Cambodian government had impartiality been maintained throughout the war in Vietnam.” Note, note 36 above, at 1145.
41 78 U.N. Treaty Series 277 (1951). See, generally, McDougal, and Arens, , “The Genocide Convention and the Constitution,” 3 Vanderbilt Law Rev. 683 (1950)Google Scholar.
42 See the New York Times articles, note 31 above.
43 In late April the Cambodian Government announced the formation of a “Commission responsible for the safety of all foreigners. . . .” New York Times, April 23, 1970, at 5, col. 3 (City ed.).
44 See, generally, on the duties of a belligerent toward neutral states, E. Castrén, note 38 above, at 440–442; M. Greenspan, note 36 above, at 534; C. C. Hyde, note 39 above, at 2336–2344; L. Oppenheim, note 38 above, at 690.
Since France ratified in 1910 the Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat. 2310, Treaty Series No. 540, 1 Bevans 654, North Viet–Nam might be bound as a successor state. Sec J. B. Scott (ed.), The Reports to the Hague Conferences of 1899 and 1907, at 898 (1917). In any event, the general obligations of neutrality stemming from the Hague Conventions seem firmly established as customary international law.
45 M. McDougal and F. Feliciano, note 38 above, at 404.
46 See M. Greenspan, note 36 above, at 539–540; L. Oppenheim, note 38 above, at 698. But see C. C. Hyde, note 39 above, at 2341.
47 Nazi Conspiracy and Aggression, Opinion and Judgment 38 (1947).
48 See authorities cited in note 36 above. One scholar writes: “The thesis that under the Pact and Charter the neutral state has a duty to assist the victim of aggression is tenable only if there exists a set of standards which members of an international tribunal can apply impartially, regardless of their ideological inclinations to determine which side has in fact struck the first blow.” Note, note 36 above, at 1144.
49 See Moore, note 1 above, at 316–320, 333–339.
50 Res. 2131, note 35 above.
51 A claim that the Sihanouk government-in-exile is a widely recognized government would seem far–fetched. According to the New York Times, even the Soviet Union issued a statement in which it “seemed . . . to indicate that it recognized the new government [Lon Nol Government] as legal—if not to the Soviet Union’s liking.” New York Times, April 25, 1970, at 4, col. 4 (City ed.). See also note 22 above.
52 New York Times, March 17, 1970, at 14, col. 8 (City ed.).
53 Shaplen, note 17 above, at 133–134. Shaplen continues: “[Sihanouk] . . . then denounced the Communist incursions and showed less hostility toward the Americans; in fact, he even called upon them to maintain “a presence in Southeast Asia” after the end of the Vietnam war. Secretly, he accepted American intelligence obtained in various ways . . . which enabled him to pinpoint Communist troops and installations, and he used this material in making diplomatic complaints to the Vietcong and to Hanoi. . . .” Ibid, at 134. In contrast to the forty to fifty thousand experienced North Vietnamese and Viet Cong troops in Cambodia, the Cambodian Army was inexperienced and poorly equipped and, at the beginning of serious clashes with North Vietnamese troops, numbered only about 35,000. As such, the Cambodians seemed badly outmatched by the attacking forces. See Staff Report, note 10 above at 10; 9 Int. Legal Materials at 866.
54 See the New York Times articles, note 25 above.
55 New York Times, April 21, 1970, at 1, col. 6 (City ed.).
56 See ibid., March 22, 1970, at 16, col. 4; March 24, 1970, at 3, col. 2; March 26, 1970, at 17, col. 2; April 1, 1970, at 2, col. 4.
57 See ibid, April 27, 1970, at 3, col. 5 (City ed.) (Peking and Hanoi); April 28, 1970, at 1, col. 8 (City ed.) (Moscow).
58 See President Nixon’s address to the Nation, 62 Dept. of State Bulletin 617 (1970).
59 New York Times, May 1, 1970, at 3, col. 7.
60 On May 5 the Cambodian Government issued the following statement:
“In his message to the American nation of 30 April, 1970, the President of the United States, Richard Nixon, made public important measures that he has taken to oppose the growing military aggression of North Vietnam on the territory of Laos, Cambodia and South Vietnam. One of these measures concerned aid of the United States of America in the defense of the neutrality of Cambodia, violated by the North Vietnamese.
“The Salvation Government notes with satisfaction that the President of the United States of America has taken into account in his decision the legitimate aspirations of the Cambodian people, which desires only to live in peace, in its territorial integrity, in its independence and in its strict neutrality. For that reason, the Government of Cambodia wishes to declare that it respects the sentiments of President Richard Nixon in his message of 30 April, 1970 and expresses its gratitude for them.
“It is high time now that other friendly nations understand the extremely grave situation in which Cambodia finds herself and come to the aid of the Cambodia people, victims of armed aggression. The Salvation Government renews on this occasion its appeal for help issued 14 April, 1970, and points out that it will accept all unconditional help from friendly countries in all forms (military, economic and diplomatic).” New York Times, May 5, 1970, at 16, col. 8.
The statement of John R. Stevenson, the Legal Adviser of the Department of State, contains a slightly different version of the declaration of the Cambodian Government of May 5. Perhaps the only difference worth noting is that the Department of State version contains the slightly stronger language “appreciates the views” rather than “respects the sentiments” of President Nixon. Stevenson also points out: “Later statements have indicated even more clearly the Cambodian Government’s approval of our actions.” See Stevenson, note 11 above, at 766, note 9; 64 A.J.I.L. 935; 9 Int. Legal Materials at 843–844, note 8 (1970).
On May 6 the High Command of the Cambodian Armed Forces released a communiqué that:
“[United States and South Vietnamese forces are] useful not only in fending off dangers for the American and South Vietnamese forces but also to drive these Vietcong and North Vietnamese aggressors from our territory.
“They are indispensable because these occupiers have solidly installed their military aud subversive organizations in the zones that they, the Vietcong and North Vietnamese, are seeking to widen as far as possible in view of their future actions.” New York Times, May 6, 1970, at 18, col. 2.
Though, in general, Cambodian Government statements prior to the May 1 incursion indicate a request for military supplies rather than foreign troops, there was some ambiguity in the requests. Thus, on April 15, Lon Nol said:
“The Salvation Government has the duty to inform the nation that in view of the gravity of the present situation, it finds it necessary to accept all unconditional foreign aid, wherever it may come from, for the salvation of the nation.” New York Times, April 15, 1970, at 1, col. 3.
61 One example of this principle in state practice is the German bombardment of Salonika in neutral Greece during World War I after it had been occupied by the Allied Powers. The Greco-German Mixed Arbitral Tribunal held that the occupation of Salonika by the Allies “entitled Germany to take even on Greek soil any acts of war necessary for her defense.” See Coenca Brothers v. German State, 7 Recueil des Décisions des Tribunaux Arbitraux Mixtes 683, 687 (1927), discussed in McDougal and Feliciano, note 38 above, at 407, note 49. Other examples are the seizure of the Italian ship, the Anna Maria, in the neutral Tunisian port of Sousse by Allied Forces during World War II after a series of warlike acts by German and Italian forces on Tunisian territory, and the British entry into neutral Norwegian territorial waters in 1940 to liberate British prisoners held on the Altmark, a German auxiliary vessel which had entered Norwegian territorial waters to evade capture by the Royal Navy.
Professor Waldock after a study of the Altmark incident concluded that:
“A breach of the rules of maritime neutrality in favour of one belligerent commonly threatens the security if not the existence of the other belligerent. The breach is thus seldom really capable of being remedied in full by subsequent payment of compensation. Nothing but the immediate cessation of the breach will suffice. Accordingly, where material prejudice to a belligerent’s interests will result from its continuance, the principle of self-preservation would appear fully to justify intervention in neutral waters. The disposition in the past of some neutral opinion to condemn any such action out of hand was therefore not consistent with general principles and in any case flowed from a view of the superior merits of neutral status which no longer obtains. The right of a belligerent to intervene in a proper case to enforce neutrality is now generally recognized. . . .” (Emphasis added.) Waldock, “The Release of the Altmark’s Prisoners,” 24 Brit. Yr. Bk. Int. Law 216, 235–236 (1947).
For a discussion of the Anna Maria incident, see McDougal and Feliciano, note 38 above, at 407, note 49.
The United States has also entered foreign territory on a number of occasions to suppress continuing raids launched from the foreign territory against the United States. The principal examples are General Jackson’s incursion into Spanish West Florida in 1818 to check raids by Spanish Indians into American territory after the failure of the Spanish authorities to check the raids, and the incursion by an American military force into Mexico to check cross–border raids by the Mexican bandit Francisco Villa which the Mexican authorities had allowed to continue. See 1 Hyde, International Law Chiefly as Interpreted and Applied by the United States 240–244 (2d rev. ed., 1945).
62 Thus Professors McDougal and Feliciano point out: “where a nonparticipant is unable or unwilling to prevent one belligerent from carrying on hostile activities within neutral territory, or from utilizing such territory as a ‘base of operations,’ the opposing belligerent, seriously disadvantaged by neutral failure or weakness, becomes authorized to enter neutral territory and there to take the necessary measures to counter and stop the hostile activities.” Op. cit., note 38 above, at 568. See also ibid, at 76, 406–407.
63 Similarly, Greenspan states: “Should a violation of neutral territory occur through the complaisance of the neutral state, or because of its inability, through weakness or otherwise, to resist such violation, then a belligerent which is prejudiced by the violation is entitled to take measures to redress the situation, including, if necessary, attack on enemy forces in the neutral territory.” Op. cit., note 36 above, at 538.
84 Charles Cheney Hyde writes: “The obligation resting upon the belligerent with respect to the neutral is not of unlimited scope. Circumstances may arise when the belligerent is excused from disregarding the prohibition. If a neutral possesses neither the power nor disposition to check warlike activities within its own domain, the belligerent that in consequence is injured or threatened with immediate injury would appear to be free from the normal obligation to refrain from the commission of hostile acts therein.” Op. cit. note 39 above, at 2337–2338. See also ibid, at 2338–2341.
65 Professor Castrén says: “A belligerent may not violate the territorial integrity of a neutral State merely because the other belligerent side has done so. Nevertheless, the situation is different if the neutral State has not taken countermeasures, or if the enemy, in spite of the efforts of the neutral state, has succeeded in acquiring a permanent stronghold in its territory, in which case the other belligerent side is entitled to drive off the violator from there. A belligerent is further not bound to tolerate the continual passage of enemy military transports through neutral territory.” Op. cit. note 38 above, at 462–463. See also p. 442.
66 L. Oppenheim (Lauterpacht ed.), note 38 above, at 695, note 1, 698. Lauterpacht adopts the view that: “Normally, diplomatic representations and a claim for compensation are the proper remedy for any disregard of neutral duties of this nature. However, .circumstances may arise in which subsequent redress by the neutral must, in natura return, be wholly inadequate and in which the aggrieved belligerent must, therefore, be held to be justified in resorting to self-help.”
67 Some scholars would urge a less restrictive interpretation not limiting the right of self-defense to that of Art. 51. See, e.g., Bowett, D. W., Self-Defence in International Law 184–193 (1958)Google Scholar; M. McDougal and F. Feliciano, note 38 above, at 233–241 (1961); Stone, J., Aggression and World Order 92–101 (1958)Google Scholar.
68 See M. McDougal and F. Feliciano, note 38 above, at 217–218, 229–244, 259.
69 Mr. Webster to Mr. Fox, April 24, 1841, 29 British and Foreign State Papers 1129, 1138 (1840–1841).
70 M. McDougal and F. Feliciano, note 38 above, at 242.
71 See, generally, Falk, , “The Beirut Raid and the International Law of Retaliation,” 63 A.J.I.L. 415 (1969)Google Scholar; Blum, , “The Beirut Raid and the International Double Standard: A Reply to Professor Richard A. Falk,” 64 ibid. 73 (1970)Google Scholar. See also the exchange of correspondence between Professor Julius Stone and Professor Falk, ibid. 161–163.
72 See, generally, Moore, , “The Control of Foreign Intervention in Internal Conflict,” 9 Virginia J. Int. Law 205, 309–310 (1969)Google Scholar; Rubin, , “Legal Aspects of the My Lai Incident,” 49 Oregon Law Rev. 260 (1970)Google Scholar.
73 It is firmly established that collective as well as individual defense is permitted pursuant to Art. 51 of the Charter. See, e.g., Kelsen, , The Law of the United Nations 791–805 (1950)Google Scholar; McDougal, and Feliciano, , Law and Minimum World Public Order 244–253 (1961)Google Scholar; Stone, , Legal Controls of International Conflict 245 (1959)Google Scholar. In fact, Art. 51 was drafted largely to reassure the Latin American delegates that collective defense pursuant to regional arrangements would not be disturbed. See, generally, Jessup, , A Modern Law of Nations 165 (1948)Google Scholar; McDougal and Feliciano, op. cit. above, at 235; Russell, and Muther, , A History of the United Nations Charter 688–712 (1958)Google Scholar; Kunz, , “Individual and Collective Self–Defense in Article 51 of the Charter of the United Nations,” 41 A.J.I.L. 872 (1947)Google Scholar. The right of collective defense is also confirmed by a host of defense agreements representing a diversity of ideological groupings and including NATO, SEATO, the Rio Pact, the Warsaw Pact, and the Arab League.
One of the few scholars disagreeing with this almost universally accepted interpretation of Art. 51 has been Dr. Bowett. He argues that: “[T]he situation which the Charter envisages by the term is . . . a situation in which each participating state bases its participation in collective action on its own right of self-defence. It does not, therefore, generally extend the right of self-defence to any state which desires to associate itself in the defence of a state acting in self-defence.” Self-Defence in International Law 216 (1958). Not only does Bowett’s interpretation conflict with the history of Art. 51, the almost universal acceptance of the claim in state practice, and the writings of most international law scholars, but it would seem poor policy as well. See the discussion of his position in McDougal and Feliciano, op. cit. above, at 247–253.
74 New York Times, April 23, 1970, at 1, col. 8, and 5, col. 3 (City ed.).
75 See ibid., June 2, 1970, at 1, col. 5 (City ed.); June 3, 1970, at 1, col. 5 (City ed.).
76 See ibid., May 28, 1970, at 1, col. 2 (City ed.).
77 The full statement of May 5 is set out in note 60 above.
78 See, generally, Lillich, , “Forcible Self-Help by States to Protect Human Rights,” 53 Iowa Law Rev. 325 (1967)Google Scholar; Moore, note 72 above, at 261–264.
79 See Clark, M., Algeria in Turmoil—The RebeUion: Its Causes, Its Effects, Its Future 363–366 (1960)Google Scholar.
80 The comparison suggested by Professor Richard A. Falk between the United States and South Vietnamese action against the North Vietnamese and Viet Cong base areas in Cambodia and a hypothetical Soviet air strike against U. S. base areas in Japan, South Korea, Thailand, Okinawa, and Guam is only superficially helpful. Among other differences, the governments of Japan, South Korea, Thailand, Okinawa and Guam have not requested assistance from the Soviet Union and would be unlikely to consent to Soviet air strikes on their territory; those host governments have not appealed to the U.N. Security Council for assistance in defense against an armed attack from U. S. forces; there are no treaty obligations prohibiting the United States and its host governments from establishing U. S. military bases on their territory; the United States utilizes the base areas with the consent of the host governments; and the strategic posture of the geographically remote U. S. base areas would make a Soviet air strike a far more provocative action than the Cambodian incursion. Perhaps more important, Professor Falk’s seemingly neutral comparison disregards the basic Charter distinction between force used in extension of national values and force used in defense against an armed attack. There is no escape from the fundamental obligation to assess the lawfulness of the contending factions by this basic Charter principle.
81 Hall, W. E., A Treatise on International Law 246 (2d ed., 1884)Google Scholar.
82 Ibid, at 246–247. Professor Hyde also writes that the facts of the Caroline case “seem to have satisfied” the Caroline test of necessity. See 1 Hyde, note 61 above, at 239–240.
83 For statements critical of the lawfulness of the Cambodian intercession, see Edwards, “The Cambodian Invasion Violates International Law,” Cong. Rec. E4551 May 21, 1970); Brief of New York University Law Students, Cong. Rec. E4443 (May 19, 1970). The emphasis in the N.Y.U. law students’ brief that North Vietnamese and Vict Cong activities did not constitute an “armed attack” within the meaning of Art. 51 of the U.N. Charter is wholly unpersuasive. Though fact selection is an inevitable task in appraising complex public order disputes, the mind boggles at a fact-selection process which virtually ignores the continuing North Vietnamese and Viet Cong attacks from the Cambodian sanctuaries on U. S. and South Vietnamese forces and the massive North Vietnamese and Viet Cong military attack on Cambodia.
84 Letter from the U. S. Permanent Representative to the President of the Security Council, May 5, 1970. U.N. Doc. S/9781 (1970); 62 Dept. of State Bulletin 652 (1970); 64–AJ.I.L. 932; 9 Int. Legal Materials 838 (1970).
85 See Bowett, , Self-Defence in International Law 193, 195 (1958)Google Scholar; Brierly, , The Law of Nations 319, 320 (5th ed., 1955)Google Scholar; Jessup, , A Modern Law of Nations 164–165, 202 (1948)Google Scholar; Kelsen, , The Law of the United Nations 800, 804, 804, note 5 (1964)Google Scholar; idem, “Collective Security under International Law,” 49 Int. Legal Studies 61–62 (1956); “Collective Security and Collective Self–Defense under the Charter of the United Nations,” 42 A.J.I.L. 783, 791–795 (1948); McDougal, and Feliciano, F., Law and Minimum World Public Order 218–219 (1961)Google Scholar; Stone, , Legal Controls of International Conflict 244 (1954)Google Scholar; Thomas, and Thomas, , Non–intervention 171 (1956)Google Scholar.
86 Southeast Asia Collective Defense Treaty, signed at Manila, Sept. 8, 1954, 6 U. S. Treaties 81, T.I.A.S., No. 3170; 60 A.J.I.L. 646 (1966).
87 Protocol to the Southeast Asia Collective Defense Treaty, signed at Manila, Sept. 8, 1954, loc. cit. above.
88 See New York Times, April 30, 1965, at 2, col. 6.
89 See Moore, “The Constitution and the Use of the Armed Forces Abroad,” Testimony before the Subcommittee on National Security Policy and Scientific Developments of the House Committee on Foreign Affairs, June 25, 1970; idem, “The National Executive and the Use of the Armed Forces Abroad,” 21 Naval War College Review 28 (1969).
90 See, generally, on the merits of the war power controversy, Kurland, , “The Impotence of Reticence,” 1968 Duke Law J. 619 CrossRefGoogle Scholar; Moore, “The Constitution and the Use of the Armed Forces Abroad”; “The National Executive and the Use of the Armed Forces Abroad,” loc. tit. above; Reveley, , “Presidential War-Making: Constitutional Prerogative or Usurpation?” 55 Virginia Law Rev. 1243 (1969)Google Scholar; Velvel, , “The War in Viet Nam: Unconstitutional, Justiciable and Jurisdictionally Attackable,” 16 Kansas Law Rev. 449 (1968)Google Scholar; Francis D. Wormuth, “The Vietnam War: The President v. the Constitution” (An Occasional Paper of the Center for the Study of Democratic Institutions, 1968); Note, “Congress, The President, and the Power to Commit Forces to Combat,” 81 Harvard Law Rev. 1771 (1968). See also the memoranda prepared by Yale law students and professors: “Indochina: The Constitutional Crisis,” 116 Cong. Rec. (No. 76, May 13, 1970), and “Indochina: The Constitutional Crisis—Part II,” 116 Cong. Rec. (No. 82, May 21, 1970); and the proceedings of the Symposium on “The Constitution and the Use of Military Force Abroad” held at the University of Virginia Feb. 28–March 1, 1969, reprinted in 10 Virginia Journal Int. Law 32 (1969).
91 The Federalist, Number 69, at p. 463 (Heritage Press, 1945).
92 78 Stat. 384 (Approved Aug. 10, 1964).
93 President’s Message to Congress, Aug. 5, 1964, in Background Information Relating to Southeast Asia and Vietnam, Senate Committee on Foreign Relations 122, at 124 (Rev. ed., Coram. Print, June 16, 1965).
94 110 Cong. Rec. 18409–18410 (1964).
95 See “The Gulf of Tonkin, The 1964 Incidents,” Hearings before the Senate Committee on Foreign Relations, 90th Cong., 2d Sess. (Comm. Print, Feb. 20, 1968), and Part II, Supplementary Documents (Comm. Print, Dec. 16, 1968). There seems to be no doubt that the first attack on Aug. 2 occurred.
96 For a review of the Congressional debates on the Southeast Asia Resolution and the Constitutional issues concerning authority for the Viet–Nam War, see Moore and Underwood, “The Lawfulness of United States Assistance to the Republic of Vietnam,” 112 Cong. Rec. 14943, 14960–14967, 14983–14989 (daily ed., July 14, 1966).
97 112 Cong. Rec. 4226 (daily ed., March 1, 1966).
98 New York Times, March 2, 1966, at 1, col. 8 (City ed.).
99 See “Fulbright Panel Votes to Repeal Tonkin Measure,” New York Times, April 11, 1970, at 1, col. 5 (City ed.).
100 The President has only limited power initially to commit the armed forces to combat abroad. Nevertheless that power probably includes the power to take at least limited action in defense against attacks made on U. S. military forces stationed abroad and the power to provide military assistance short of the commitment of regular combat units to sustained hostilities. Although the Cambodian incursion seems more appropriately characterized as a decision relating to the conduct of hostilities rather than initial commitment, even if it were an initial commitment decision, the President probably has independent Constitutional authority to take limited action to defend U. S. forces stationed in South Viet–Nam and to provide low–level military assistance to the Cambodian Government. See Moore, note 89 above.
101 See, e.g., the resolutions appended to the “Report on the Termination of the Southeast Asia Resolution,” the Senate Foreign Relations Committee, Report No. 91–872 (Comm. Print, May 15, 1970); S. 3964 (introduced by Senators Dole and Javits on June 15, 1970); H. J. Res. 1151 (introduced by Representative Findley on March 26, 1970); H. R. 17598 (introduced by Representative Fascell).
102 See the “Legal Memorandum on the Constitutionality of the Amendment to End the War,” prepared under the supervision of Professors Abram Chayes and Frank Michelman and introduced in the record of the Hearings before the Subcommittee on National Security Policy and Scientific Developments of the House Committee on Foreign Affairs, June 25, 1970.
103 Egger, R. and Harris, J., The President and Congress 35 (1963)Google Scholar. See also 2 Watson, The Constitution 913–917 (1910).
104 Corwin, E. M., The President: Office and Powers 1787–1957, p. 259 (1957)Google Scholar.
105 Young, R., Congressional Politics in the Second World War 145 (1956)Google Scholar.
106 71 U. S. (4 Wall.) 2 at 139 (1866) (Opinion of the Chief Justice and Justices Wayne, Swayne, and Miller). See also Swain v. United States, 28 Ct. CI. 173, 221 (1893), aff’d, Swain v. United States, 165 U. S. 553 (1897).
107 Professor Watson points out that the provision making the President Commander– in–Chief may have resulted from the difficulties Washington experienced with the Continental Congress in the conduct of hostilities during the War for Independence. He writes: “[D]uring the Revolution Washington experienced great trouble and embarrassment resulting from the failure of Congress to support him with firmness and dispatch. There was a want of directness in the management of affairs during that period which was attributable to the absence of centralized authority to command. The members of the Convention knew this and probably thought they could prevent its recurrence by making the President Commander-in-Chief of the Army and Navy.” D. Watson, note 103 above, at 912.
108 R. Young, note 105 above, at 145.
109 See the Staff Report, “Cambodia: May 1970,” prepared for the Senate Committee on Foreign Relations, 91st Cong., 2d Sess. (Comm. Print, June 7, 1970), reprinted in 9 Int. Legal Materials 858 (1970).
110 The Federalist, Number 74, p. 497 (Heritage Press, 1945).
111 An Amendment to the Defense Authorization Bill, H.R. 17123, 91st Cng., 2d Sess. (1970).
112 See, generally, the “Legal Memorandum on the Constitutionality of the Amendment to End the War,” note 102 above.
113 See New York Times, June 25, 1970, at 1, col. 1; July 11, 1970, at 7, col. 4. The first vote to repeal was on June 24, 1970, and took the form of an amendment to the Foreign Military Sales Act, H. R. 15628, 91st Cong., 2d Sess. (1970). The second vote to repeal was on July 10, 1970, and took the form of a concurrent resolution, S. Con. Res. 64, S. Rept. 91–872, 91st Cong., 2d Sess. (1970).
114 An Amendment to the Foreign Military Sales Act, cited above.
115 New York Times, July 1, 1970, at 13, col. 1 (City ed.).
116 Ibid., cols. 5–6.
117 Spokesmen for the Senate have implied that, if the House wants the Foreign Military Sales Bill, it also will have to accept the Cooper-Church Amendment.
118 See S. 3964 (introduced by Senators Dole and Javits on June 15, 1970); H. J. Res. 1151 (introduced by Representative Findley on March 26, 1970); H. R. 17598 (introduced by Representative Fascell).
119 Representative Paul Findley of Illinois has modified his original proposal defining in advance the authority of the President to use the armed forces abroad, and has instead proposed a requirement for a Presidential report when the armed forces are committed abroad and a regular meeting between the President and the Senate and House Foreign Relations Committees during the course of sustained hostilities. As modified, the proposal is a constructive step for increasing the co–operation between Congress and the President.
120 See, e.g., Scheinman and Wilkinson, International Law and Political Crisis (1968). The American Society of International Law currently has a Panel on the Rô1e of International Law in Government Decision-Making in War-Peace Crises, which has a number of thoughtful studies in process.
121 Moore, note 72 above, at 310–314.
122 See Greenspan, M. The Modern Law of Land Warfare 536–537, 584 (1959)Google Scholar. Similarly, lawful actions by one belligerent directed against violations of neutral territory by another belligerent do not constitute hostilities against the neutral. See 2 Oppenheim, International Law 685 (7th ed., Lauterpacht, 1952).
123 In the sense that non-compliance with international law subjects a state to all the sanctions of the global community, however imperfect those sanctions may be in particular instances, states do not have a genuine option whether or not to comply with international law.
124 See Moore, note 72 above, at 310–314, 340–342.