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

87. Action Memorandum From the Legal Adviser (Meeker) to Secretary of State Rusk¹

Washington, January 24, 1967.

SUBJECT

• Relationship of SEATO Treaty to Viet Nam: Recommended Public Position

My memorandum of January 20, 1967,² outlined for your information the background of the Departmentʼs memorandum of March 8, 1965 entitled “Legal Basis for United States Actions Against North Viet Nam”³ and set forth the reasons for its non-reliance on SEATO. In order to answer queries from the Senate Foreign Relations Committee or elsewhere about the Departmentʼs alleged change of emphasis on whether the SEATO Treaty underlines our presence in Viet Nam and, in particular, why the 1965 memorandum did not rely on SEATO, we recommend the following response:

Our commitments in the SEATO Treaty have all along been an important basis for the United States presence in Viet Nam. But it was not until North Viet Namʼs aggression against the South had reached the proportions of an “armed attack” that our formal commitment under Article IV, paragraph 1, was engaged.⁴ At that point, action against North Viet Nam in exercise of the right of collective self-defense was justified under the United Nations Charter and under the Southeast Asia Treaty. Prior to that time, we had relied on the request of the GVN for assistance in meeting an aggression externally inspired and supported as the legal basis for our actions in South Viet Nam. There may be some question as to the exact date at which North Viet Namʼs aggression grew into an “armed attack”, but there can be no doubt that it had occurred before February 1965.

The memorandum of March 8, 1965 was addressed to specific criticism made at that time regarding the legality of United States air strikes against North Viet Nam under the United Nations Charter and the Geneva Accords of 1954. It was not, therefore, necessary in that context to discuss the question of obligations under the Southeast Asia Collective Defense Treaty.⁵

1. Source: Department of State, Central Files, POL 27 VIET S. Limited Official Use. Drafted by Salans with concurrences from Manhard, Heyward Isham, Deputy Director of the Vietnam Working Group, and Marshall H. Noble of P.
2. Document 86.
3. See footnote 2, Document 86.
4. Rusk wrote the following note next to this first two sentences in the second paragraph: “This is the point. DR.”
5. There is no indication on the source text that Rusk approved this response.