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261. Memorandum From the Legal Adviser (Chayes) to the Secretary of State 1

SUBJECT

  • Report of Taylor Mission on VietNam2

I have reviewed General Taylor’s report on Viet-Nam and the proposed action documents stemming from it (draft instructions to Embassy Saigon and draft letter from President Diem to President [Page 630] Kennedy).3 Attached is a memorandum (Tab A) which examines the proposed actions from the legal point of view. This memorandum concludes that, apart from any measures involving military operations deep into North VietNam, the proposed actions do not present legal problems incapable of being dealt with and surmounted. The memorandum suggests some changes that ought to be made in the planning for these actions if it is decided to proceed with the general course plotted out by the Taylor Mission. These changes would be designed to improve the defensibility of our actions and to avoid consequences that would be prejudicial to the interests of South Viet-Nam and the United States. There is also (Tab B)4 a suggested revision of certain paragraphs of the draft letter from President Diem.

Thus, apart from the possibility of long-range attacks into North VietNam, the issues in deciding on our future course of action are essentially political. But we must remember that the extent to which resort to direct self-help, rather than to the procedures and institutions for peaceful settlement of international problems, has an important bearing on the prospects and effectiveness of the rule of law in the world. Because of my deep concern with these matters, I should like to give you my thoughts on the less technically legal issues in relation to VietNam.

General Taylor’s analysis of the situation in South Viet-Nam shows that the basic causes of deterioration and threatened collapse of non-Communist authority are not military but political. But the remedies proposed would undertake to cope with the situation principally by military and semi-military means. The central feature of the course would be the initial introduction of substantial numbers of United States troops to help in pacifying the country. It is said that to embark on this course we must be prepared to escalate, if necessary, to the dimensions of a Korea-type conflict. In assessing the prospects for this course the long history of attempts to prop up unpopular governments through the use of foreign military forces is powerfully discouraging. The French experience in this very area, as well as our own efforts since 1955, reveal the essential inadequacy of the sort of program now proposed. The drawbacks of such intervention in Viet-Nam now would be compounded, not relieved, by the United States penetration and assumption of co-responsibility at all levels of the Vietnamese Government suggested in the Taylor Report.

[Page 631]

In my view, a more promising course of action would be to seek to internationalize the problem with a view to a negotiated settlement or a United Nations solution. I believe we should take advantage of Ambassador Harriman’s presence at Geneva and his working relations with Pushkin to sound out the Soviets on the possibility of a negotiated settlement in VietNam. Mr. Harriman has discussed this problem with me and has shown me the memorandum which he has given you on this subject.5 I concur generally in his proposals.

If Ambassador Harriman’s efforts should produce no affirmative result we should also consider the advisability of taking the Viet-Nam problem to the United Nations. We would particularly seek to establish in the United Nations the facts of foreign intervention in VietNam, and to enlist the United Nations’ assistance in protecting the independence and integrity of VietNam. Attached at Tab C6 is a memorandum outlining a course of action in the United Nations.

You have often said with reference to the Berlin question that, in view of the magnitude of the stakes, we owe it to ourselves, to the American people and to our allies and associates in the free world, to exhaust the possibilities of a negotiated or peaceful settlement which will be consistent with our interests and responsibilities. The alternative to such a settlement is no less grave in Southeast Asia.

817

Memorandum Prepared in the Office of the Legal Adviser7

General Taylor’s Report on Viet-Nam recommends among other things that additional United States military personnel and equipment be introduced into South Viet-Nam to provide increased airlift, for expanded intelligence operations, for naval surveillance activities, and to expedite training and equipping of South Vietnamese military and civil guard elements. The question of whether additional United States forces should be introduced even to the extent of a Korea-type operation and whether we may eventually have to attack the source of guerilla aggression in North Viet-Nam is also discussed.

It has been suggested in connection with the Taylor Report that because South Viet-Nam did not sign the Geneva Accords, it is not [Page 632]bound by them. In any case, it is said, North Vietnamese violations of the Accords have made them inoperative, and the Accords can be ignored by South Viet-Nam in taking actions to meet the present danger. In addition, it has been suggested that the right of self-defense under the United Nations Charter can be invoked to justify actions now contemplated by the United States in South VietNam.

The legal implications of these proposed actions and suggested rationale are discussed below. As with all legal principles, the application of the particular principles of law discussed herein depends upon the facts of the case. One of the steps necessary to the successful development and projection of our case in the international forum is a much fuller development than presently exists of the facts concerning external interference in VietNam, such as those disclosed in the Jorden Report. We must remain continuously alert to ways in which facts that bring the legal principles into operation-such as the facts of external interference-can be gathered from reliable sources and persuasively presented.

1954 Geneva Accords

This office has never accepted the argument that South Viet-Nam is not bound by the Geneva Accords of 1954 because it did not sign them. While the representative of South Viet-Nam did not sign the agreement and in fact protested against certain provisions in it, it was signed by the French on behalf of the French Union Forces, and since the State of Viet-Nam was part of the French Union it would seem to be bound by the French signature. The agreement relating to Laos was similarly signed on behalf of the French Union Forces without a Laotian signature, yet we have always considered the Kingdom of Laos bound by the Accords. South Viet-Nam can also be considered bound by the Accords as a successor state to France. In any event the argument to the contrary leads to very undesirable consequences, for if the South Vietnamese are not parties to the Accords and not bound by them, they would seem to have no legal basis for demanding compliance by the Viet Minh with obligations under the Accords such as respect for the demarcation line and the cease-fire.

Unlike VietNam, the United States did not become a party to the Accords. It issued a unilateral declaration stating that it would refrain from the threat or use of force to disturb them and that it would view any renewal of aggression in violation of the Accords with grave concern and as seriously threatening international peace and security.

The Geneva Accords prohibit the introduction into Viet-Nam of foreign troop reinforcements, additional military personnel and increased [Page 633]amounts of war material. In the absence of adequate legal justification, introduction of United States military personnel and equipment as envisaged in the Taylor Report would therefore, in our view, be a violation of the Accords by South VietNam. Such action would not be inconsistent with the unilateral declaration of the United States, since it would not constitute the threat or use of force to upset the Accords. Nevertheless, again in the absence of adequate legal justification, the United States would be aiding and abetting violations by South VietNam.

Justifications for the actions presently contemplated may be found in general principles of international law governing treaties. Under these principles, a material breach of a treaty by one party entitles the other either to suspend the operation of the entire agreement or at least to withhold compliance with an equivalent, corresponding or related provision until resumption of observance by the other party. The Viet Minh have violated the Geneva Accords by directing, assisting and engaging in active hostilities in South Viet-Nam and presumably by illegal introduction into North Viet-Nam of military personnel and war materials.

Justification of suspension of certain parts of the Geneva Accords would gain force in the present context from the fact that actions contemplated by the Government of Viet-Nam which might be said to contravene the Accords can be related to the requirements of legitimate self-defense necessitated by the breaches of the other party.

Thus, under the applicable principles, we would have the option of suspending the agreement in toto or of withholding compliance with appropriate provisions. In our judgment, the United States and South Viet-Nam should choose the latter course, since we will wish to assert the continuing force of a number of obligations which the Viet-Minh have undertaken under the Accords. The demarcation line itself between North and South Viet-Nam is established by the Accords, as is the requirement for the general cessation of hostilities. It should be recognized, however, that the adoption of this course imposes upon us some obligation to keep our response appropriately related to the infractions of the other side.

Though we believe that the introduction of additional military forces and equipment into South Viet-Nam for the purposes described at the beginning of this memorandum would be justified at law, there is no doubt that the Communists will claim, and with a certain plausibility, that South Viet-Nam has violated the Accords, aided and abetted by the United States. To the extent that the contemplated measures can be cast in the form of assistance and training to police and constabulary forces rather than the introduction [Page 634]and training of regular troops, the persuasive force of these complaints will be lessened.

General Intervention

Assuming that the Geneva Accords are not a barrier to actions contemplated in the Taylor Report, the question arises as to whether there are any other legal obstacles to such actions under general international law or the United Nations Charter.

International law permits the United States to introduce its forces into South Viet-Nam at the invitation of the Government of Viet-Nam to assist that Government in quelling insurgent activities having substantial external support, inspiration or direction. There is nothing in the United Nations Charter that prohibits such action.

In 1958, at the invitation of the President of Lebanon, and in circumstances of alleged indirect aggression against the Government of Lebanon by outside forces or governments, United States troops were sent to Lebanon. President Eisenhower explained that this action was taken in part “to encourage the Lebanese Government in defense of Lebanese sovereignty and integrity.”

As in the Lebanese situation, however, we should be prepared to defend United States action in Viet-Nam in an international forum such as the United Nations, whether the question is brought there at our own or someone else’s initiative.

Retaliatory Attacks

As to the problem of attacking the source of guerilla aggression in North Viet-Nam there are two currently relevant categories of fact situations:

1)
The first category relates to operations undertaken against bases near the border in North Viet-Nam and Laos which are being used as a sanctuary and for supply purposes by the Viet Cong. It would seem justifiable under international law principles relating to hot pursuit to follow the enemy across the border and attempt to destroy his bases of operations adjacent to the border. Such operations would have to be appropriately related to the act provoking them, proportionate in their effects and limited to action necessary to obtain relief.
2)
The second category consists of direct attacks against Hanoi and similar strategic centers deep inside North VietNam. In the absence of overt aggression by means of armed attack against South VietNam, such action would go beyond permissible self-defense under general international law and would be contrary to the United Nations Charter.

The right of individual or collective self-defense referred to in Article 51 of the Charter can be invoked only in the event of an armed attack. The term “armed attack” as used in the Charter is [Page 635]generally understood as a direct external attack upon one country by the armed forces of another such as the German invasion of Poland in 1939 or the North Korean attack on South Korea in 1950. Armed attack is a form of aggression. “Aggression” is a broader concept, covering a range of actions by which one state may threaten the territorial integrity or political independence of another. This difference is recognized in international law generally, in the United Nations Charter and in our mutual defense treaties. In the latter the term “armed attack” has been expressly or implicitly limited to exclude indirect aggression.

An essential element in determining whether an action constitutes an “armed attack” is the factor of time. An armed attack is an action which occurs swiftly, requiring immediate measures to ward it off. The “armed attack” envisaged under Article 51 of the Charter is an attack which requires immediate measures of self-defense, measures which cannot await the action of the United Nations but which must be undertaken at once. By the same token “armed attack” under such agreements as the North Atlantic Treaty, the Southeast Asia Treaty, and the Rio Treaty implies a situation in which a response is required before the normal consultative procedures can be availed of.

Article 2(4) of the Charter prohibits any use of force by a United Nations member in its international relations which is inconsistent with the purposes of the United Nations. Article 51 of the Charter recognizes the right of individual or collective use of force in self-defense against armed attack without waiting for steps to be taken by any United Nations organ. In cases of aggression that fall short of armed attack, however, it would not be consistent with the purposes of the United Nations for the United States as a UN member to proceed to the use of armed force to defeat acts which it considers aggressive. In such cases, it would be incumbent upon a UN member to bring the matter first to the attention of the United Nations organization for its consideration and judgment.

  1. Source: Department of State, Central Files, 751K.00/11-1661. Top Secret. Drafted by Chayes and sent to the Secretary through S/S and Johnson (U). Initialed by both Chayes and Johnson. Attached to the source text is the following note of November 16 from Chayes to the Secretary: “This preparation of this memorandum and its attachments was undertaken before yesterday’s NSC decisions. I believe that the analysis and observations given below will continue to be relevant, both in the carrying out of those decisions and in deliberations on further steps in the future.”
  2. Document 210.
  3. Drafts of telegram 619 to Saigon (see footnote 2, Document 257) and the letter quoted in Document 257.
  4. Not printed.
  5. Apparently a reference to Document 239.
  6. Not printed.
  7. [Tab A]
  8. Top Secret. No drafting or clearance information is given on the source text.