1 For texts, see American Foreign Policy, 1950-1955; Basic Documents, vol. I, Department of State publication 6446, p. 750.

2 See, e.g., Jessup, A Modern Law of Nations, 163 ff. (1948); Oppenheim, International Law, 297 ff. (8th ed., Lauterpacht, 1955). and see, generally, Bowett, Self-Defense in International Law (1958). [Footnote in original.]

3 While nonmembers, such as South Viet-Nam, have not formally undertaken the obligations of the United Nations Charter as their own treaty obligations, it should be recognized that much of the substantive law of the charter has become part of the general law of nations through a very wide acceptance by nations the world over. This is particularly true of the charter provisions bearing on the use of force. Moreover, in the case of South Viet-Nam, the South Vietnamese Government has expressed its ability and willingness to abide by the charter, in applying for United Nations membership. Thus it seems entirely appropriate to appraise the actions of South Viet-Nam in relation to the legal standards set forth in the United Nations Charter. [Footnote in original.]

4 See 6 UNCIO Documents 459. [Footnote in original.]

5 In particular, the statement of the first purpose: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal, of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. . . . [Footnote in original.]

6 Bowett, Self-Defense in International Law, 193-195 (1958); Goodhart, “The North Atlantic Treaty of 1949,” 79 Recueil Des Cours, 183, 202-204 (1951, vol. II), quoted in 5 Whiteman’s Digest of International Law, 1067-1068 (1965); Kelsen, The Law of the United Nations, 793 (1950); see Stone, Aggression and World Order, 44 (1958). [Footnote in original.]

7 UNCIO Documents 288. [Footnote in original.]

8 An argument has been made by some that the United States, by joining in the collective defense of South Viet-Nam, has violated the peaceful settlement obligation of article 33 in the charter. This argument overlooks the obvious proposition that a victim of armed aggression is not required to sustain the attack undefended while efforts are made to find a political solution with the aggressor. Article 51 of the charter illustrates this by making perfectly clear that the inherent right of self-defense is impaired by “Nothing in the present Charter,” including the provisions of article 33. [Footnote in original.]

9 For a statement made by U.S. Representative Adlai E. Stevenson in the Security Council on Aug. 6, 1964, see BULLETIN of Aug. 24, 1964, p. 272.

10 For texts, see ibid., Feb. 22, 1965, p. 240, and Mar. 22, 1965, p. 419.

11 For background and text of draft resolution, see ibid., Feb. 14, 1966, p. 231.

12 For a statement made by President Eisenhower on June 21, 1954, see ibid., Aug. 2, 1954, p. 163.

13 For text, see ibid., p. 162.

14 For text, see ibid., Sept. 20, 1954, p. 393.

15 For text, see ibid., Nov. 29, 1954, p. 820.

16 For text, see ibid., Mar. 26, 1962, p. 498.

17 For text of a message from President Eisenhower to President Ngo Dinh Diem, see ibid., Nov. 15, 1954, p. 735.

18 For text, see ibid., May 27, 1957, p. 851.

19 For text of a joint communique issued by President Kennedy and Vice President Chen Cheng of the Republic of China, see ibid., Aug. 28, 1961, p. 372.

20 For text of an exchange of messages between President Kennedy and President Diem, see ibid., Jan. 1, 1962, p. 13.

21 These accords were composed of a bilateral cease-fire agreement between the “Commander-in- Chief of the People’s Army of Viet Nam” and the “Commander-in-Chief of the French Union forces in Indo-China,” together with a Final Declaration of the Conference, to which France adhered. However, it is to be noted that the South Vietnamese Government was not a signatory of the cease-fire agreement and did not adhere to the Final Declaration. South Viet-Nam entered a series of reservations in a statement to the conference. This statement was noted by the conference, but by decision of the conference chairman it was not included or referred to in the Final Declaration. [Footnote in original.]

22 This principle of law and the circumstances in which it may be invoked are most fully discussed in the Fourth Report on the Law of Treaties by Sir Gerald Fitzmaurice, articles 18, 20 (U.N. doc. A/CN.4/120U959)) II Yearbook of the International Law Commission 37 (U.N. doc. A/CN.4/SER.A/1959/Add.l) and in the later report by Sir Humphrey Waldock, article 20 (U.N. doc. A/CN.4/156 and Add. 1-3 (1963)) II Yearbook of the International Law Commission 36 (U.N. doc. A/CN.4/ SER.A/1963/Add.l). Among the authorities cited by the fourth report for this proposition are: II Oppenheim, International Law 136, 137 (7th ed. Lauterpacht 1955); I Rousseau, Principes généraux du droit international public 365 (1944); II Hyde, International Law 1660 et seq. (2d ed. 1947); II Guggenheim, Traité de droit international public 84, 85 (1935); Spiropoulos, Traié théorique et pratique de droit international public 289 (1933); Verdross, Völkerrecht, 328 (1950); Hall, Treatise 21 (8th ed. Higgins 1924); 3 Accioly, Tratado de Direito International Publico 82 (1956-57). See also draft articles 42 and 46 of the Law of Treaties by the International Law Commission, contained in the report on the work of its 15th session (General Assembly, Official Records, 18th Session, Supplement No. 9 (A/5809)). [Footnote in original.]

23 In 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 cochairmen 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. [Footnote in original.]

24 For text, see BULLETIN of Aug. 24,1964, p. 268.

25 110 Cong. Rec. 18459 (Aug. 7, 1964). [Footnote in original.]

26 Ibid.

27 110 Cong. Rec. 18409 (Aug. 6, 1964). Senator [Wayne] Morse, who opposed the joint resolution, expressed the following view on August 6, 1964, concerning the scope of the proposed resolution:

Another Senator thought, in the early part of the debate, that this course would not broaden the power of the President to engage in a land war if he decided that he wanted to apply the resolution in that way.

That Senator was taking great consolation in the then held belief that, if he voted for the resolution, it would give no authority to the President to send many troops into Asia. I am sure he was quite disappointed to finally learn, because it took a little time to get the matter cleared, that the resolution places no restriction on the President in that respect. If he is still in doubt, let him read the language on page 2, lines 3 to 6, and page 2, lines 11 to 17. The first reads:

The Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.

It does not say he is limited in regard to the sending of ground forces. It does not limit that authority. That is why I have called it a predated declaration of war, in clear violation of article I, section 8, of the Constitution, which vests the power to declare war in the Congress, and not in the President.

What is proposed is to authorize the President of the United States, without a declaration of war, to commit acts of war. (110 Cong. Rec. 18426-7 (Aug. 6, 1964)). [Footnote in original.]

28 On March 1, 1966, the Senate voted, 92-5, to table an amendment that would have repealed the joint resolution. [Footnote in original.]

29 For text, see BULLETIN of May 24, 1965, p. 822.