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Legal Aspects of the Viet-Nam Situation

Published online by Cambridge University Press:  28 March 2017


The Viet-Nam hostilities arose and have escalated because of the radically different perceptions of the situation by the principal parties. A settlement might be possible if each side understood the image perceived by the other. An analysis of the interpretation of the situation which would result from an impartial application of international law, presumably reflecting the consensus of world opinion, might also be helpful.

Research Article
Copyright © American Society of International Law 1966

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1 The importance of distorted images and diverse perceptions of the situation, resulting from established stereotypes and ideologies, as well as from inconsistent desires and expectations for the future, in the initiation and development of international conflicts is emphasized in The Craigville Papers, International Conflict and Behavioral Science, Roger Fisher, ed. (N.Y., Basic Books, 1964), especially in contributions by Anatol Rapaport (p. 13), William Gamson (p. 27), Kenneth Boulding (p. 85), Morton Deutsch (p. 142), Urie Bronfenbrenner (p. 161), and Lester Grinspoon (p. 272). See also my comments in A Study of War 1116, 1503, 1562 (University of Chicago Press, 1965); Problems of Stability and Progress in International Relations 145, 165 (Berkeley, Calif., 1954); “International Conflict and the United Nations,” 10 World Politics 38 ff. (1957); “The Escalation of International Conflicts,” 9 Journal of Conflict Resolution 417 (1965).

2 See Department of State, White Papers, December, 1961, and February, 1965; White House Statement, Oct. 2, 1965; and President Johnson's address at Johns Hopkins University, April 7, 1965, printed in The Vietnam Reader 123, 128, 193, 343 (Marcus Raskin and Bernard Fall, eds.) (hereafter cited as Raskin and Fall). The White Papers of February, 1965, the Johns Hopkins address of April 7, 1965, and Secretary of State Rusk's address to the American Society of International Law, April 23, 1965 are printed in Vietnam, History, Documents and Opinions 284, 323, 330 (Marvin E. Gettleman, ed.; New York, Fawcett Publications, 1965) (hereafter cited as Gettleman).

3 Department of State, Office of the Legal Adviser, The Legality of United States Participation in the Defense of Vietnam, March 4, 1966; reprinted in 60 A.J.I.L. 565 (1966) (cited hereafter as U. S. Legal Brief).

4 It has been argued that the Charter intended to permit “collective self-defense” only of “members of the United Nations” in order to prevent third-party intervention in behalf of a revolting community or colony whose independence the intervening state may have recognized. International law, however, permits defensive alliances. Art. 2, par. 4, of the Charter forbids armed attack upon any “state,” and a valid cease-fire line forbids such attack upon the territory protected by it. It would, therefore, appear that a state can exercise “the inherent right of collective self-defence” (Art. 51) in behalf of any genuinely independent “ state “ the victim of “armed attack” in violation of Article 2, par. 4, or even an imperfectly independent state protected by an internationally valid cease-fire line. The United States assumed that it could collectively defend non-Members of the United Nations when it admitted Portugal (before it was a Member) and West Germany to NATO and when it made defensive alliances with Japan (before it was a Member) and South Korea. The Soviet Union made a similar assumption in making defensive alliances with certain of its “satellites” in Europe before they were Members.

5 New York Times, June 30, 1966, p. 12. The International Commission to supervise the Geneva Cease-Fire in Viet-Nam considered the de facto alliance of the Southern Zone of Viet-Nam with the United States and SEATO a violation of the cease-fire agreement. See 8th Report, 1957-58, par. 30; Special Report, 1962, par. 20 (Gettleman 175, 188); and below, notes 53, 63. Endorsement of the United States position by SEATO has no weight in international law. The Harvard Research in International Law suggested that aggression could not be attributed to a state unless “duly determined by a means which that state is bound to accept” (33 A.J.I.L. Supp. 871 (1939)). While a necessity for self-defense permits a temporary unilateral determination of aggression by armed attack, such determination, whether by a state or an alliance, is not authoritative in international law because the other side is not bound to accept it. Failure of the United Nations to act cannot be assumed to indicate tacit approval of defense measures under Art. 51, unless the reasons for this failure so indicate.

6 The statements of the South Viet-Nam National Liberation Front (Viet-Cong) of Dec. 20, 1960, and of March 22, 1965, with notes by the North Viet-Nam government; the Policy Declaration by North Viet-Nam Premier Pham Van Dong, stating four points for negotiation of peace, April 14, 1965; and the Joint Statement by North Viet-Nam and the Soviet Union, April 17, 1965, are printed in Raskin and Fall 216, 232, 342, 362. The Vietnamese Declaration of Independence, Sept. 2, 1945; the Abdication of Bao Dai as Emperor of Annam, August, 1945; the French recognition of Viet- Nam as a “free state,” March, 1946; and the Viet-Minh's directive for resistance of Dec. 20, 1946, are printed in Gettleman 57, 59, 61, 87. See especially Ho Chi Minh's letter to the heads of several states printed in the Washington Post, Jan. 29, 1966, p. A 12.

7 In this he agrees with President Eisenhower who wrote in his memoirs, Mandate for Change 372: “ I am convinced that the French could not win the war because the internal political situation in Vietnam, weak and confused, badly weakened their military position. I have never talked or corresponded with a person knowledgeable in Indochinese affairs who did not agree that had elections been held as of the time of fighting, possibly 80 percent of the population would have voted for the Communist Ho Chi Minh as their leader rather than Chief of State Bao Dai. Indeed, the lack of leadership and drive on the part of Bao Dai was a factor in the feeling prevalent among Vietnamese that they had nothing to fight f o r . “ See Robert Scheer, How the United States Got Involved in Vietnam 11 (Center for the Study of Democratic Institutions, Santa Barbara, Calif., 1965). It is unlikely that this estimate, if correct for 1954, would have changed radically by 1956. In an election in South Viet-Nam in 1955, Diem proved to be much more popular than Bao Dai, but there was never a test of his relative popularity with Ho Chi Minh. For texts of Geneva Agreements, 1954, and other relevant documents, see 60 A.J.I.L. 629-649 (1966).

8 Premier Pham Van Dong of North Viet-Nam in his statement of April 8, 1965, indicated his willingness to go back to Geneva in a peace negotiation, provided it included the political as well as the military provisions (New York Times, April 14, 1965; Raskin and Fall 342). North Vietnamese assistance to the Viet-Cong across the ceasefire line would clearly be illegal if the cease-fire agreement were in effect, as insisted by the United States. In saying in this note “pending the peaceful unification of Vietnam … the military provisions of the 1954 Geneva agreement must be strictly respected,” and referring to violations by the United States, he stated a bargaining position. This statement also recognized the autonomy of South Viet-Nam under the South Vietnamese Liberation Front and said “the peaceful reunion of Vietnam is to be settled by the Vietnamese people in both zones without foreign interference.” (See note 20 below.)

9 U.S. Legal Brief 29; 60 A.J.I.L. 576 (1966).

10 International Control Commission, Special Report, 1962, par. 6, referring to joint declaration of Vice President Johnson and Premier Diem, May 13, 1961, Gettleman 186, 205.

11 U.S. Legal Brief 30-31; 60 A.J.I.L. 577 (1966).

12 See Ho Chi Minh, “The Path Which Led Me to Leninism,” April, 1960, and “Founding of the Communist Party,” February, 1930, printed in Gettleman 30, 33.

13 The White House statement of Oct. 2, 1965, said: “The Security of South Vietnam is a major interest of the United States as other free nations. We ‘will adhere to our policy of working with the people and government of South Vietnam to deny this country to Communism.” (Raskin and Fall 128.) President Eisenhower's statement (note 7 above) suggests that this motivation influenced the United States in seeking to prevent elections until the state of opinion in Viet-Nam had radically changed. The domino theory was first stated by President Eisenhower to indicate the United States’ national interest in containment of Communism in Southeast Asia. Insofar as it implies a rigid and undiscriminating application of the containment policy, it is vigorously criticized by Don, R. and Larson, Arthur (Vietnam and Beyond 6 ff., Duke University, 1965); Morgenthau, Hans J. (Vietnam and the United States 62, 77, Washington, Public Affairs Press, 1965 , reprinted in Gettleman 365); George F. Kennan, who initiated the policy of containment in 1947 (Report to subcommittee of Committee on Foreign Affairs, House of Representatives, May 14, 1965, reprinted in Raskin and Fall 15); The American Friends Service Committee (Report on Peace in Vietnam 12 ff., 65, New York, Hill and Wang, 1966); Walter Lippmann (numerous columns in the New York Herald Tribune, 1965); 28% of 525 members of the New York Council on Foreign Relations polled in 1965 (American Dilemma in Vietnam, a Report on the Views of Leading Citizens in Thirty-Three Cities 14, New York, Council on Foreign Relations, 1965); J. W. Fullbright (Ark.), Chairman, Foreign Relations Committee; Mike Mansfield (Mont.), Dem. Floor Leader; Wayne Morse (Ore.); Ernest Gruening (Alaska) ; Frank Church (Idaho), and other Senators (quoted, Raskin and Fall 209, 281; Gettleman 376); Quincy Wright (“Principles of Foreign Policy,” World View, Council on Religion and International Affairs, February, 1965, reprinted in Raskin and Fall 7).

14 Wright, Quincy, “International Law and Ideologies,” 48 A.J.I.L. 616 (1954); “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 45 ff.; The Role of International Law in the Elimination of War 61 (University of Manchester Press, 1962).

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15 Nearly a million refugees, mostly Roman Catholics and dependents of the colonial native army left North for South Viet-Nam after Geneva, and the land reform program in the North led to brutalities. General Nguyen Giap, Commander-in-Chief of North Vietnamese forces, in a speech of Oct. 31, 1956, admitted that the North Vietnamese government in this program had “executed too many honest people,” resorted to “terror -which became far too widespread,” “failed to respect the principles of freedom of faith and worship in many areas,” “attacked tribal chiefs too strongly,” resorted to “disciplinary punishments and executions” instead of education, and “torture came to be regarded as a normal practice during party reorganization.” These oppressions resulted in serious revolts among the peasantry which in Ho Chi Minh's home province had to be put down by the regular army. (See TJ. S. Legal Brief, p. 33; Bernard Fall, New York Times Magazine, July 10, 1966, p. 52.) Even worse brutalities were reported in the American press. Whether if shorn of exaggerations they were worse than in the South during the Diem regime has been controversial. See Friends Service Committee, note 13 above, p. 45; Scheer, note 7 above, pp. 26 ft., 58 ff.; Devillers, note 16 below, Gettleman 222 ff.

16 The underlying political issue was whether it should be a state with Communist or with Western orientation, but this was overshadowed by the desire for peace by all the Powers represented, except the United States and Bao Dai. See Donald Lancaster, former official in the British Legation, Saigon, “Power Politics at the Greneva Conference, 1954,” from The Emancipation of French Indochina 313 ff. (London, 1961) reprinted in Gettleman 118 ff.; see also American Friends Service Committee, note 13 above, p. 41, and General de Gaulle's news conference, July 23, 1964, quoted in Raskin and Fall 268. There seems to have been a general expectation among the participants that the compromise settlement accepted by all the representatives, except those of the United States and Bao Dai, would result in elections which would unite Viet- Nam under Ho Chi Minh. “The Conference ended amid a flurry of mutual congratulations, while Molotov, giving further proof of the unusual amiability which had distinguished Soviet behavior throughout the proceedings, paid a fulsome compliment to Eden, stressing the latter's outstanding services and rô1e in the Conference, a rôle which Molotov insisted ‘cannot be exaggerated'.” (Lancaster, loc. cit., Gettleman 136, 159.) “The disproportion between the monolithic power of the Vietminh, armed with the halo of victory, and the almost derisory weakness of the so-called Nationalist Vietnam was such that in the summer of 1954 almost no one thought that the two years’ delay won by M. Mendès-France at Geneva could be anything but a respite in which to salvage as much as possible from the wreck. At the end of the period, unity would certainly be restored, this time to the benefit of the Vietminh, the basic hypothesis then acknowledged by all being that the Geneva Agreements would definitely be implemented.” (Philippe Devillers, “ T h e Struggle for Unification of Vietnam,” The China Quarterly, London, Jan.-March, 1962, p. 3; reprinted in Gettleman 211.) “The opinion of the French at the time of Geneva (and that of most Western experts) was that the Accords would simply delay the eventual Viet Minh victory, since Ho's forces would surely win the elections scheduled for July, 1956'’ (Robert Scheer, note 7 above, p. 20). “ I f Geneva and what was agreed upon there means anything at all, it means … Taps for the buried hopes of freedom in Southeast Asia! Taps for the newly betrayed millions of Indochinese who must now learn the awful facts of slavery from their eager Communist masters I Now the devilish techniques of brainwashing, forced confessions and rigged trials have a new locale for their exercise.” (Cardinal Spellman, Speech, American Legion Convention, Aug. 31, 1954, quoted in New York Times, Sept. 1, 1954; Gettleman 239, and Robert Scheer, note 7 above, p. 21, who credits the Cardinal with much influence in inducing the United States to upset the Geneva settlement by building up Diem as head of an independent South Viet-Nam (p. 24).)

17 There was active debate at Geneva over the location of this line and the agreement put it further north than Ho's delegate wanted. The United States has argued that this indicates an opinion on both sides that the line would mark a division for a long time, probably beyond 1956, but it can also be argued that Ho gave way in spite of his strong military position because he thought the line would last for only two years. “The Vietminh was reluctant to agree to this partition, which left it slightly less than half of the territory of Vietnam despite the fact that at the time it controlled three-quarters. However, Ho Chi Minh's government was under strong Soviet and Chinese pressure to give way on this point. The concern of China and probably also the Soviet Union, was that a continuation of the war might cause the introduction of American military power—possibly atomic—in support of the French, a course of action which the United States did in fact come very close to taking. The Vietminh accepted this temporary loss because of the explicit promise in both the armistice agreement and in the Geneva Declaration that within a period of two years national elections would be held to unify the country. They had every reason to believe that these elections would take place because the agreements stipulated that France, the other party to the armistice, was to maintain control of civil administration in the South until elections were held. (Article 14a of the armistice agreement.) In effect, then, the elections and the military truce were interdependent.” (Friends Service Committee, op. cit. note 13 above, p. 41.) This accorded with the expectation of most of the Powers at Geneva (see note 16 above).

18 Gettleman 159.

19 The U. S. Legal Brief (p. 12) says: “The Republic of Viet-Nam in the South has been recognized as a separate international entity by approximately 60 governments the world over. It has been admitted as a member of a number of the specialized agencies of the United Nations.” Most of these sixty governments, including the United States, recognized the Republic of Viet-Nam (Bao Dai) before the Geneva division, though they accepted the Saigon Government as its representative after the division. A number of states recognized the Democratic Republic of Viet- Nam (Ho Chi Minh) before the Geneva separation and continue to accept the Hanoi government as its representative. Eight or nine states have missions with the National Liberation Front (Viet-Cong) in South Viet-Nam. (George A. Carver, Jr., 44 Foreign Affairs 347 at 367 (1966).) The Republic of Viet-Nam was admitted to UPU, UNESCO and WMO before Geneva, and to ILO, WHO, and FAO in 1950, and the Saigon Government has continued to represent Viet-Nam in these international organizations. These facts do not prove that South Viet-Nam is a “separate international entity” any more than the recognition by many states and the United Nations of the Republic of China, represented by the Government at Taipei (Chiang Kai-shek), proves that Taiwan is a separate political entity, though other facts may support this contention. The U. S. Legal Brief also says: “The United Nations General Assembly in 1957 voted to recommend South Viet-Nam for membership in the organization, and its admission was frustrated only by the veto of the Soviet Union in the Security Council.” The brief does not notice that the Soviet Union proposed simultaneous admission of both Viet-Nams (Devillers in Gettleman 220), which the United States opposed, as it has opposed “two Chinas.” The United States has also suggested that the extension of SEATO protection to South Viet-Nam soon after Geneva indicates that the Western-oriented states did not believe Viet-Nam would be united under a Communist government in 1956; but see notes 5 and 16 above.

20 The Viet-Cong were originally the supporters of Ho in the South when he was considered the symbol of Vietnamese nationalism, and the South Vietnamese National Liberation Front, which was formed in December, 1960, includes many non-Communist elements (see Devillers, note 16 above, Gettleman 229 ff.). The United States considers it a mere arm of Ho's government which should not be independently represented at any peace conference. (See Secretary Rusk's television statement, reported in the New York Times, Dec. 8, 1965.) The Front, however, Ho himself, other Communist states and some Americans like Senators J. W. Fulbright, Robert Kennedy, and the Friends Service Committee, credit it with an autonomous status which justifies its representation at any peace negotiation. The negotiating position stated by Premier Dong on April 8, 1965, and by the Front on July 22, 1965, appears to be a recession from Ho's original position in that it recognizes that two Viet-Nams will exist until united by “the Vietnamese people themselves,” and thus converges toward the United States position stated by President Johnson on April 7, 1965, and by Secretary Rusk on Aug. 3, 1965. (See note 8 above, and Friends Service Committee, note 13 above, p. 56 ff.)

21 This is controversial. The United States argues that, whatever may have been the situation in 1956, the de facto existence of South Viet-Nam and its wide recognition probably gave it a status of independence during the Diem period and since, but that in any case it had become a “separate international entity” which the United States could defend from aggression (Legal Brief, p. 14). See note 19 above.

22 Gettleman 157; 60 A.J.I.L. 645 (1966).

23 Gettleman 152; 60 A.J.I.L. 644 (1966).

24 General de Gaulle, at a news conference on July 23, 1964, said: “At the time everyone seemed to desire it (an end of fighting) sincerely.” Printed in Baskin and Fall 269. See also notes 16 above and 28 below.

25 Art. 27 of the Geneva Cease-Fire Agreement (Gettleman 146; 60 A.J.I.L. 638 (1966)). At the same news conference (July 23, 1964) General de Gaulle referred to the “shock caused in the South by the withdrawal of our administration and our forces,” which he attributed to the “determination of the Americans to take our place in Indochina” because of their assumption of an anti-Communist mission throughout the world, their aversion “ t o any colonial work which had not been theirs,” and to the “natural desire in such a powerful people to ensure themselves of new positions.” Raskin and Fall 269.

26 See note 36 below.

27 It has been suggested that the provision requiring that elections be free and fair, and the bargaining at Geneva on the location of the cease-fire line and the length of the cooling-off period before the elections, on both of which Ho's representative receded, indicate that Ho was more interested in the cease-fire than in the elections. This argument is not convincing. Ho undoubtedly wanted a cease-fire to avoid United States intervention, for which Dulles had been pressing, but he may have attached more weight to the positive dating of the elections than to their freedom, and cared less for the location of the cease-fire line than to its prospective termination in two years. See Bernard Fall, “How the French Got Out of Vietnam,” New York Times Magazine, May 2, 1965, printed in Raskin and Fall 88, and note 17 above.

28 The British, led by Anthony Eden, who with Molotov was co-chairman of the Conference, and the French, led by Mendès-France, who had succeeded Laniel as Prime Minister during the Conference, took the lead in the negotiations and favored compromises which would assure peace, in opposition to the desire of the United States, led by Secretary of State Dulles and later by General Bedell Smith, to contain Communism by military intervention. The British and French spirit of compromise was supported by the Soviet Union, represented by co-chairman Molotov, who was anxious to induce France to reject the pending “European Defense Community,” and by China, represented by Chou En-lai, who was worried about United States intervention. President Eisenhower, who had recently negotiated peace in Korea after his election as a “ peace “ President, moderated Dulles’ Cold-War position and later wrote in his Mandate for Change that “By and large, the settlement obtained by the French Union at Geneva in 1954 was the best it could get under the circumstances.” (Scheer, note 7 above, p. 18.) The United States, therefore, tolerated the compromise settlement, though it did not subscribe to it. Frustration of the election was, therefore, not only a breach of faith with Ho but also with the major Powers. (See Lancaster, op. cit. note 16 above, and Friends Service Committee op. cit., note 13 above, p. 41.) Anthony Eden, while noting in his memoirs (Full Circle 143) that through the Geneva accords “the Vietnamese (i.e., Bao Dai) had saved more of their country than had at one time seemed possible,” expressed his “regret” a dozen years after Geneva that these accords had not been accepted by the United States and carried out (44 Foreign Affairs 230 (1966)).

29 U.S. Legal Brief, pp. 30, 31; 60 A.J.I.L. 577 (1966).

30 Art. 14 (a). See Gettleman 140; 60 A.J.I.L. 632 (1966).

31 Pars. 6, 7, Gettleman 150-151; 60 A.J.I.L. 644 (1966). These resolutions were not signed, but the P.C.I.J. recognized that oral agreements might be binding in the Eastern Greenland case (Series A/B, No. 53). See also Eberhard P. Deutsch, “The Legality of the United States Position in Vietnam,” 52 American Bar Association Journal 436 at 440 (1966).

32 “When in a civil war a military struggle for power ends on the agreed condition that the competition will be transferred to the political level, the side which repudiates the agreed conditions must expect that the military struggle will be resumed.” (Friends Service Committee, op. tit. note 13 above, p. 43.) The IT. S. Legal Brief (p. 33) says: “The South Vietnamese Government realized these facts [that conditions for a fair election did not exist in North Viet-Nam] and quite properly took the position that consultations for elections in 1956 as contemplated by the accords would be a useless formality.” The Brief adds in a footnote: “ I n any event, if North Viet-Nam considered there had been a breach of obligation by the South, its remedies lay in discussion with Saigon, perhaps in an appeal to the co-Chairmen of the Geneva conference, or in a reconvening of the conference to consider the situation. Under international law, North Viet-Nam had no right to use force outside its own zone in order to secure its political objectives.” No reference is made to the fact that Ho Chi Minh had attempted all these remedies for four years without results. Not until 1958 did he conclude that Diem and the Powers had buried the Geneva agreements, and begin to give assistance across the cease-fire line to the Viet-Cong, which had renewed civil strife in South Viet-Nam in 1956, after the date for the elections had passed. See Devillers, in Gettleman 216 ff.; Fall, in Baskin and Fall 90.

33 U.N. Charter, Art. 2, par. 7.

34 Ibid., Art. 39.

35 U.S. Legal Brief, p. 13; 60 A.J.I.L. 570 (1966).

36 Par. 68; Gettleman 181.

37 U.S. Legal Brief, p. 12; 60 A.J.I.L. 569 (1966).

38 Gettleman 57.

39 There is also the ideological difference that in Viet-Nam the South professed the doctrine of individual freedom against Communism in the North, while in the United States the North professed this doctrine against slavery in the South. As noted above, such ideological differences are not recognized in international law except insofar as a state may have accepted covenants of human rights (note 14 above). This difference, however, probably prevented British intervention in behalf of the Confederacy after Lincoln had turned the Civil War into a war against slavery, rather than a war to preserve the Union, by the preliminary Emancipation Proclamation of September, 1862. (6 Moore, International Law Digest 7.) The difference also undoubtedly influenced U. S. intervention on the side of South Viet-Nam. Stereotypes about the offensive character of Communism and evidence of lack of respect for human rights in North Viet-Nam aroused American opinion against Ho Chi Minh, even though there was evidence of similar denials of human rights by Diem's Government, leading to his assassination, and the intervention itself resulted in increased brutalities against civilians from government and guerrilla activities on both sides and aerial bombings by the United States (see note 15 above).

40 The British lost interest in intervention after the war became one against slavery, but France continued to urge intervention. See 6 Moore, Digest of International Law 6-10.

41 On this assumption, these raids, if of a magnitude to constitute ‘ ‘ armed attack'’ and if not justifiable as “collective self defense” measures, would constitute aggression against North Viet-Nam, justifying that country in military action in defense. See Q. Wright, The Rôle of International Law in the Elimination of War 60.

42 The United States at first sought to justify these raids as ‘ ‘ reprisals'’ in response to attacks on Pleiku and Tuy Hoa “ordered and directed by Hanoi” (White House Statement, Feb. 7, 1965). This was similar to the justification given for the Tonkin Bay action six months earlier, but legal examination indicated that the facts would not justify “ reprisals “ in either situation, and that in any case military reprisals are forbidden by the U.N. Charter. See notes 56-58 below.

43 U.N. Charter, Art. 2, par. 4. See Philip Jessup, A Modern Law of Nations 166 (N. T., Macmillan, 1948); Ian Brownlie, International Law and the Use of Force by States 273 (London, 1963); Q. Wright, op. cit. note 41 above.

44 Wright, Q., “ The Cuban Quarantine,” 57 A.J.I.L. 546 ft. (1963).

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45 Note 41 above.

46 The International Control Commission established by the Cease-Fire Agreement was composed of representatives of Canada, Poland and India, with the latter presiding. Its reports are printed in British Command Papers, 1955 to 1965, and extensive extracts are printed in Gettleman 166 ff., and Raskin and Fall 273 ff. In some of its reports either Poland or Canada abstained.

47 Note 5 above.

48 U.S. Legal Brief, p. 29; 60 A.J.I.L. 576 (1966).

49 Interim Report, May-June, 1955. Gettleman 167.

50 U. S. Legal Brief, p. 2; 60 A.J.I.L. 565 (1966).

51 Gettleman 185.

52 Par. 9; Gettleman 187; quoted in part in XJ. S. Legal Brief, p. 3.

53 Par. 20; Gettleman 188.

54 Ibid. 189-190. There has been doubt whether the attack on Pleiku and Tuy Hoa actually proceeded from North “Viet-Nam. It was probably made by Viet-Cong guerrillas. See Baskin and Fall 398.

55 U.S. Legal Brief, pp. 3-4; 60 A.J.I.L. 566 (1966).

56 The Naulilaa Arbitration, Portugal v. Germany, 1928, 6 Hackworth, Digest of International Law 154; William W. Bishop, Jr., International Law, Cases and Materials 747 (Boston, Little, Brown, 1962).

57 Passed as a criticism of the British retaliatory raid during hostilities on the Yemen border. See I. F. Stone, “International Law and the Tonkin Bay Incidents,” I. F. Stone Weekly, Aug. 24, 1964, reprinted in Raskin and Fall 307 ff. The Security Council had passed similar resolutions on other border incidents on Nov. 24, 1953, Jan. 19, 1956, April 9, 1962. See also The Corfu Channel Case, [1949] I.C.J. Rep. 35; and Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations 217 (London, 1963).

58 See Raskin and Fall 396; 60 A.J.I.L. 580-581 (1966).

59 Wright, Q., The Control of American Foreign Relations 286 ff., 294 ff., 307 (New York, Maemillan, 1922).

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60 Don, and Larson, Arthur, Vietnam and Beyond 17 ff. (Duke University, 1965), printed in Raskin and Fall 99 ff.; text of treaty and protocol in 60 A.J.I.L. 646 (1966).

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61 The Philippines have discussed sending a small force.

62 Note 5 above.

63 Note 13 above, and Gettleman 175.

64 Wright, Q., “The Escalation of International Conflicts,9 Journal of Conflict Resolution 440 (December, 1965).

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