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The Cambodian Incursion: United States notifies U.N. Security Council

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* [The statement made by the Legal Adviser of the U.S. Department of State on the issues of international law involved in United States military actions in Cambodia appears at I.L.M. page 840.]

1] The views of the Administration on the military and political issues have been expressed clearly by the President and other officials. See, in particular, President Nixon’s address of April 30, 1970, reprinted in State Dept. Bulletin of May 18, and his press conference of May 8, reprinted in the New York Times on May 9. See also, Deputy Secretary of Defense Packard’s address of May 15, 1970 in Fort Worth, Texas.

2] Meeker, , “The Legality of United States Participation in the Defense of Viet-Nam”, March 4, 1966 , submitted to the Senate Committee on Foreign Relations on March 8, and published in the State Department Bulletin of March 28, 1966.

* [Reproduced from U.S. Department of State Press Release No. 166 of May 30, 1970.

[A report on “Cambodia: May 1970”, prepared for the use of the U.S. Senate Committee on Foreign Relations, appears at I.L.M. page 858.]

3] They were also justified on that basis in U.S. reports to the United Nations, pursuant to Article 51. See the texts of the letters from Ambassador Stevenson to the Security Council, dated February 7 and February 27, 1965, reprinted in the Department of State Bulletin, Feb. 22, 1965, p. 240, and March 22, 1965, p. 419.

4] See the collection, in two volumes, The Viet-Nam War and International Law, edited by Richard A. Falk, and published in 1968 and 1969 by the American Society of International Law.

5] The President reviewed our efforts at negotiation and the progress of Vietnamization in his statement of April 20, 1970, published in State Dept. Bulletin, May 11, 1970 and stated: “...our overriding objective is a political solution that reflects the will of the South Vietnamese people and allows them to determine their future without outside interference.”

6] In his address of April 30, announcing the use of force in Cambodia, President Nixon said: “We take this action not for the purpose of expanding the war into Cambodia but for the purpose of ending the war in Viet-Nam, and winning the just peace we all desire. We have made and will continue to make every possible effort to end this war through negotiation at the Conference table rather than through more fighting in the battlefield.”

7] See Chayes, , “Law and the Quarantine of Cuba”, 41 Foreign Affairs (1963) 550 .

8] On May 1 a Cambodian spokesman said that “the Cambodian Government as a neutral government cannot approve foreign intervention.” However, on May 5, Lon Nol issued the following statement: “in his message to the American people of April 30, 1970, President Nixon made known the important measures which he had taken to counter the military aggression of North Vietnam in Laos, Cambodia and South Vietnam. One of these measures concerns the aid of the U.S. in the defense of the neutrality of Cambodia violated by the North Vietnamese.

“The Government of Salvation notes with satis-faction the President of the United States took into consideration in his decision, the legitimate expressions of the Cambodian people who only desire to live in peace within their territory, independent, and in strict neutrality. For this reason, the Government of Cambodia (GOC) wishes to announce that it appreciates the views of President Nixon in his message of April 30 and expresses to him its gratitude.

“It is time now that the other friendly nations understand the extremely serious situation in which Cambodia finds itself and come to the assistance of the Cambodian people who are victims of armed aggression. The Government of Salvation renews on this occasion its appeal for assistance made April 14, noting that it will accept from friendly countries all unconditional and diplomatic, military and economic assistance.”

Later statements have indicated even more clearly the Cambodian Government's approval of our actions.

9 This is to be distinguished from the furnishing of weapons and ammunition to Cambodia pursuant to the Foreign Assistance Act, 75 Stat. 424, 22 U.S.C. §2161-2410, which is done to improve the ability of Cambodia to defend itself.

10 The President’s statements were not for direct quotation, but the New York Times of July 26, 1969 contains a fair summary of his remarks. The President later clarified the Doctrine in his address to the nation on Viet-Nam of November 3, 1969 and in his Report to the Congress dated February 18, 1970 on U.S. Foreign Policy for the 1970’s.

11] 1 Bevans, , Treaties and Other International Agreements of the United States of America (1968) 654 .

12] As the Harvard Research in International Law pointed out in its 1939 Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, “A neutral State is not an insurer of the fulfillment of its neutral duties. It is obligated merely to ‘use the means at its disposal’ to secure the fulfillment of its duties.” 33 American Journal of International Law (1939), Suppl., p. 247.

13] According to Greenspan, , The Modern Law of Land Warfare (1959) 538 : “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.”

13a] Castrén, , The Present Law of War and Neutrality (Helsinki, 1954) 442 . See also II Guggenheim, , Traité de Droit International Public (Geneva, 1954) p. 346 .

14] II Oppenheim, International Law (7th ed. 1952) 698.

This is true whether or not the neutral has met its obligations to use the means at its disposal to oppose belligerent use of its territory. Stone, Legal Controls of International Conflict (1954) says (p. 401): “One clear principle is that, the right of self-preservation apart, an aggrieved State is clearly not entitled to violate the neutral’s territorial integrity, simply because his enemy has done so. Diplomatic representations and claim are the proper course.” A Columbia Law Review Note concludes: “Military action within neutral territory may be justified as a measure of self-defense or as an appropriate response to the failure of a neutral state to prevent the use of its territory by belligerent forces... It is suggested ... that international law should permit and encourage primary reliance on self-defense as a justification”. Note, “International Law and Military Operations against Insurgents on Neutral Territory”, 68 Col. L. Rev.

1127 (1948). See also Corfu Channel Case, ICJ Reports 1949, 34-35 and 77.

15] FM 27-10 (July 1956) para. 520, p. 185. Similar provisions, were contained in the U.S. Rules of Land Warfare of 1940 (para. 366) and in the British Manual of Military Law (para. 655). See Greenspan, , The Modern Law of Land Warfare (1959) p. 538 , n. 23. Briggs, , The Law of Nations: Cases, Documents and Notes (1938) pp. 756–58 .

17] Waldock, , “The Release of the Altmark’s Prisoners,” 24 British Year Book of International Law (1947) p. 216 , at 235–36. See also Tucker, , The Law of War and Neutrality at Sea (Naval War College, International Law Studies, Vol. XLX, 1955, p. 262).

18] 3 DeVattel, E., Le Droit des Gens (Ienwick transl. 1916) §133, at 277 (emphasis added).

19] Hyde, I., International Law (2d ed., 1945), pp. 240–44 .

20] In particular, Article 2, para. 4 of the Charter.

21] See note 8/ above.

22] S/9781 (May 5, 1970). [I.L.M. page 838]

* [Reproduced from U.S. Senate, Committee on Foreign Relations, Staff Report of June 7, 1970 (Committee Print), 91st Cong., 2d Sess.]

1 All dates given in this report are local dates, i.e. date at the place where the event occurred.

1 These figures were actually not released in Washington until May 14 in the course of a press conference after Ambassador Bunker had testified before the Committee in executive session.

The Cambodian Incursion: United States notifies U.N. Security Council

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