Foreign Relations of the United States, 1961–1963, Volume II, Vietnam, 1962

55. Telegram From the Department of State to the Embassy in Vietnam¹

Washington, February 9, 1962—4:28 p.m.

974. Saigon 999.²

1. In connection with points made reftel, Department has examined question notification personnel and equipment in light of position taken by GVN in note sent ICC Dec. 9, 1961. (Saigon 769.³)

As Department views Accords, two obligations are involved: (a) One involves the obligation to notify ICC of any arrivals or departures of personnel or equipment; (b) the other relates to the obligation not to introduce foreign troops, military personnel, arms and munitions, other than as authorized by the Accords.

2. Department now inclined to view that December 9 note from GVN to ICC may be considered as a notification within meaning Accords, since ICC thereby informed of intended USG increased support in men and material over and above that which authorized by Accords. We do not believe specific numbers, figures, amounts, and quantities need be notified as envisaged by Accords, since purpose Dec. 9 notification not to stay within limits provided for in Accords, but rather to place on record fact limits would be exceeded in view existing situation.

3. Second question is whether introduction fresh troops, military personnel, arms and munitions, beyond limits authorized by Accords, can be justified to ICC. On this point, under clearly recognized principle of international law, non-observance of a treaty obligation by one party to that treaty justifies an equivalent corresponding or related non-observance by the other party. This principle is subject to the limitation that aggrieved party may only continue non-observance of its treaty obligations until resumption of observance by other party.

Therefore, in replying to ICCʼs letter of Jan. 6⁴ regarding USG increased support in men and material,GVN might base its answer on foregoing principle. In fact, this point already made in GVNʼs December 9 note which stated, among other things, that “in view aggression being waged by so-called DRV against GVN in flagrant violation Geneva Accords, GVN has requested USG increase support in men and material which it has accorded in past. Right of self-defense being inherent and legitimate attribute of sovereignty, GVN obliged by NVNʼs contempt for life and property of free people of VN and by its breaches of GA to exercise this right and appeal for increased assistance.” At same time December 9 note recognized limitation on this principle by stating that “As soon as authorities in NVN end their aggressive acts and begin observe Geneva Accords, these measures of support can be terminated.”

4. In view of foregoing, it would appear that question of notification has already been dealt with by December 9 note, and that further notifications are unnecessary, since, as noted above, purpose of notification is to permit ICC verify that amounts not exceeded and December 9 notification clearly indicated intention to break ceiling for reasons stated therein. Only question left for ICC to consider is whether action taken can be justified on grounds noted above. This point raises issue of subversion. Subversion then will clearly become issue with which ICC will have to deal and which it cannot ignore.

5. Believe that case on subversion can persuasively be made to Canadians and Indians by using above legal argument and by also setting problem in its broader context as follows:

(a) What is at stake in Viet-Nam is question of world-wide concern: how can community of nations identify nature of subversive warfare as a violation of world peace just as flagrant, just as violent and just as dangerous as overt war of Korean style? DRV has trained troops on its own territory and infiltrated them over period time into South Viet-Nam instead of using them in overt and massive attack. Its agents have directed the present insurgency in South Viet-Nam, using newly infiltrated troops, personnel left in place when country was divided and local recruits. Its own General Giap has described the type of war it is waging, placing the world on notice. It cannot be dismissed as not being aggression because the pattern of aggression it presents is new and novel.

(b) The ICC has so far avoided central issue and, months after GVNʼs complaints of DRV subversion, matter is still being sifted through legal committee. US considers ICC must lift its sights to face this issue which is at heart of insecurity in SEA. US believes ICC can fulfill important role in beginning to formulate body of legal doctrine to control subversion.

(c) US policy toward Viet-Nam is clear: US does not menace NVN nor seek its reconquest. US does intend to provide GVN, with all means necessary to preserve its independence. US will cease its exceptional aid once DRV ceases its attempts to destroy GVN.

(d) US appreciates difficulties of Indians and Canadians but considers it would be damaging if ICC cited GVN and US in violation Geneva Agreements without citing DRV for its responsibility for situation in SVN. Record is clear that increased US aid has been answer to increased subversion, regardless of present attempts of DRV to obscure facts. We would hope therefore that ICC would first consider GVN complaints on subversion before considering those of DRV. If this absolutely not feasible we would nevertheless consider two issues linked since GVN in responding to ICC citation would be expected inject issue of subversion by way of defense.

6. For Saigon: Unless you have objections suggest GVN answer ICC letter January 6 in accordance para 3.⁵ You should also present our views as set forth above to Indians and Canadians.

For New Delhi and Ottawa: Unless Saigon expresses objections you should similarly discuss matter with appropriate officials at high level.

Rusk

1. Source: Department of State, Central Files, 751G.00/2-162. Secret. Drafted on February 8 by Czyzak and Chapman, cleared with Cottrell, Rice, Chayes, Carlson, and Bamard, and approved by Harriman. Also sent to New Delhi and Ottawa. Repeated to Geneva (FECON), London, Vientiane, Bangkok, Phnom Penh, and CINCPAC.
2. Dated February 1, it recounted a conversation with Canadian ICC Commissioner Hooten in which he expressed the view that the ICC at best would cite both North and South Vietnam for violations of the 1954 Geneva Accords and offered several alternatives to the then-current U.S. practice of not notifying the ICC but overtly introducing men and equipment into South Vietnam. Nolting recommended continuing the current policy, but asked for the opinion of the Department of State. (Ibid.)
3. Dated December 7, 1961, not printed. (Ibid., 751G.00/12-761)
4. Not found.
5. See Document 91.