Foreign Relations of the United States, 1964–1968, Volume XXVII, Mainland Southeast Asia; Regional Affairs

86. Information Memorandum From the Legal Adviser (Meeker) to Secretary of State Rusk¹

Washington, January 20, 1967.

SUBJECT

• Viet Nam: Departmentʼs Legal Memorandum of March 8, 1965²

Ernest Lindley has relayed your request for an indication of reasons why the Viet Nam legal memorandum of March 8, 1965 did not rely upon the Southeast Asia Collective Defense Treaty as a basis for United States actions in the bombing of North Viet Nam. We are now clearing a draft public position on this. Meanwhile, the present memorandum outlines the background of the 1965 memorandum and sets forth the reasons for its non-reliance on SEATO. To summarize, those reasons may be stated briefly as follows:

(1) After the start of continuing U.S. air strikes against North Viet Nam in February 1965, the first criticism of these actions was rested on two grounds: (a) the bombing was inconsistent with U.S. obligations under the United Nations Charter; and (b) the bombing violated the Geneva Accords. Thus, in preparing a memorandum in support of U.S. actions, we addressed our arguments to the issues of Charter obligations and the bearing of the 1954 Geneva Agreements. Of course, the issue of law involved in a reliance on Article IV, paragraph 1 of the SEATO Treaty is precisely the same as that involved in a consideration of the United Nations Charter provisions: i.e., whether there has been an armed attack by North Viet Nam against the South, Accordingly, reliance on the SEATO Treaty would not have provided an independent legal justification.

(2) More to the point, in March 1965 it was the judgment of the Department that reliance on the Southeast Asia Treaty would not strengthen our case. On the contrary, such reliance would have been vulnerable to the criticism that our SEATO partners did not agree with us. There had been no collective action by SEATO under Article IV, paragraph 1. While we could have relied on the individual obligation set forth in Article IV(1), the Department was concerned that we would be alone in asserting that the treaty provision was applicable.

Discussion:

Our first determination that there had been an “aggression by means of armed attack” against South Viet Nam was made following the Pleiku attacks early in 1965 and in connection with the decision to launch air strikes against the North. This determination laid the basis for asserting that the air strikes were justified in the light of Article 51 of the United Nations Charter (“inherent right of individual or collective self-defense if an armed attack occurs”). This determination also laid the basis for an invocation of Article IV(1) of the Southeast Asia Treaty.

The United States has long taken the view that Article IV(1) sets forth an individual as well as a collective obligation to “act to meet the common danger” in the event of aggression by means of armed attack. There has not at any time been a collective decision by the SEATO Council to act under Article IV(1) in defense of South Viet Nam, which is a protocol state covered by the Treaty.³ In the absence of such collective action, individual members of SEATO could have relied on Article IV(1) as stating an obligation to assist South Viet Nam in meeting the armed attack from the North. As of March 1965 none of our partners in SEATO had taken this position, and at least some of them seemed likely to disagree. If the United States had asserted a treaty commitment under Article IV(1), we would have been exposed to the argument that our position was very weak since the other SEATO members were unwilling to give a corresponding interpretation.

On March 10, 1965 the Office of the Legal Adviser sent a memorandum to the Bureau of Far Eastern Affairs⁴ pointing out that, since the United States now characterized the aggression in Viet Nam as an armed attack by the North on the South, there was a legal basis for invoking Article IV(1) of the Southeast Asia Treaty. Some days later FE replied that it saw no particular advantage in “bringing SEATO into the Viet Nam picture via the Rusk-Thanat route, since this would simply put a SEATO label on our individual action.” The FE memorandum went on to discuss the difficulties of invoking collective action by SEATO.

At the time of the Gulf of Tonkin incident in August 1964 the Administration did not rely on the SEATO Treaty as a basis for U.S. air strikes against vessels and facilities of North Viet Nam. Your testimony before the Senate Foreign Relations Committee on August 6 included the following statement:

“We do believe that the obligations of the SEATO Treaty are both joint and several, and that the SEATO Treaty is a substantiating basis for our presence there and our effort there, although, however, [we are]⁵ not acting specifically under the SEATO Treaty.”

On the same day you gave similar testimony before the House Committee:

“Our view is that the obligations of the SEATO Treaty are both joint and several. But we are not in Southeast Asia at the present time precisely under the SEATO Treaty.”

On January 14, 1965 you made a statement as follows at a briefing of the House Foreign Affairs Committee:

“There is no formal commitment by the allies at this point to South Viet Nam. We are now considering—and this I hope the Committee will keep very privately—we are considering now whether it would not be a good idea for South Viet Nam formally to request assistance from the members of SEATO under the terms of the SEATO Treaty.”

In preparing for the tenth SEATO Council meeting scheduled for May 1965 in London, the United States proposed to some of our SEATO allies that the GVN should make a formal request to the members of SEATO that they take action under the Treaty to meet aggression from North Viet Nam. Relying on the Rusk-Thanat interpretation of Article IV, paragraph 1 of the Treaty, we proposed that those SEATO members willing to act should state their readiness to do so at the Council meeting. The United Kingdom and New Zealand both opposed this proposal, and Australia was cool toward it. We therefore did not press the proposal.

On April 29, 1965 Australia announced its intention to place ground forces in South Viet Nam. A month later, New Zealand announced that it too would send combat forces.

It was in May 1965 that the United States first stated a direct reliance on the Southeast Asia Treaty for our actions in Viet Nam. The President, in a message to Congress requesting additional appropriations to meet military requirements in Viet Nam, stated:

“…we are directly committed to the defense of South Viet Nam. In 1954 we signed the Southeast Asia Collective Defense Treaty. That treaty committed us to act to meet aggression against South Viet Nam. The United States Senate ratified that treaty and that obligation by a vote of 82 to 1.”

Prior to this time the United States had made clear, in the Tonkin Gulf resolution and various statements, that we would live up to our obligations under the Southeast Asia Treaty, but had not asserted that there existed already a state of facts in which the obligations of Article IV(1) had been brought into operation. We had referred to the Southeast Asia Treaty as a “substantiating basis” for the U.S. presence in Viet Nam and our assistance in preserving the independence of that country, but this reference to the Treaty as a whole, as an expression of the United States interest in Southeast Asia, should not be confused with a reliance on Article IV(1).

1. Source: Department of State, Central Files, POL 27 VIET S. Secret.
2. This memorandum, prepared by Carl F. Salans and entitled “Legal Basis for United States Actions Against North Vietnam,” was sent to all diplomatic posts and the Senate Foreign Relations Committee. (Ibid.) Carl Marcy, Chief of Staff of the Committee, told Senator Wayne Morse that it was “about the sloppiest piece of legal work I have ever seen.” Marcy reported that it sounded “like it was put together by a high school student.” (National Archives and Records Administration, RG 46, Marcy Chron File, Marcy memorandum to Morse, March 17 as quoted in Gibbons, U.S. Government and the Vietnam War, Part III, p. 79, footnote 97)
3. The closest SEATO has come to collective decision was the 1966 Council communiqué which characterized North Viet Namʼs aggression against the South as an “armed attack.” [Footnote in the source text.]
4. Not printed. (Department of State, Central Files, POL 27 VIET S)
5. Brackets in the source text.