Chapter 14

LEGAL REGULATION OF USE OF FORCE

§ 1

Resort to War and Armed Force

The Viet-Nam Peace Agreements

On March 14, 1974, the Department of State distributed a note to the non-Vietnamese participants in the International Conference on Viet-Nam and to members of the International Commission of Control and Supervision (ICCS), with respect to violations of the 1973 Agreement on Ending the War and Restoring Peace in Viet-Nam (TIAS 7542; 24 UST 1; entered into force for the United States January 27, 1973) and of the Act of the International Conference on Viet-Nam (TIAS 7568; 24 UST 485; entered into force for the United States March 2, 1973) by the Democratic Republic of Viet-Nam.

The Department noted that the Democratic Republic of Viet-Nam (D.R.V.), on March 1, 1974, sent to the participants of the International Conference on Viet-Nam and to the members of the ICCS a note marking the first anniversary of the Conference. The Department said that in the note the D.R.V. "seeks to shift the blame for the lack of a true cease-fire in south Viet-Nam from its own aggressive policies to alleged truce violations by the United States and the Government of Viet-Nam." The U.S. note continued, in part:

The United States has implemented the Viet-Nam Peace Agreement in good faith. There are no U.S. military advisers, nor is there U.S. intervention in South Viet-Nam; our present activities there are in strict accord with the Agreement. Our assistance to the South Vietnamese has been open and in keeping with the provisions of the Agreement dealing with military resupply, in contrast to the clandestine activities of the other side. Our inability to carry out Article 21 regarding aid to North Viet-Nam follows from Hanoi's unwillingness to fulfill its cease-fire commitments.

With regard to the true nature of the continuing conflict in South Viet-Nam, it should be recalled that the Democratic Republic of Viet-Nam (D.R.V.) did not wait until the ink on the January 27 Peace Agreement was dry before undertaking major violations of that Agreement. On the first day of the cease-fire, North Vietnamese

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troops pressed heavy offensives to capture Government of Viet-Nam (G.V.N.) territory in wide-ranging parts of the country. Hanoi's cease-fire violations, resulting in tens of thousands of battlefield fatalities and the totally needless deaths of nearly three thousand innocent civilians, have continued from that day. Of the numerous cease-fire violations committed by Hanoi, the following are especially flagrant:

(a) The D.R.V. has infiltrated into South Viet-Nam over 100,000 troops since January 27, 1973, through Laos and Cambodia and through the Demilitarized Zone, in contravention of Articles 7, 15 and 20.

(b) Hanoi has shipped vast quantities of military equipment, including SA-2 missiles, tanks and heavy artillery into the South, also in violation of Article 7.

(c) In violation of Article 8(b), the D.R.V. has refused to provide the United States with information on our missing in action. (d) The D.R.V. has shown its disdain for international peacekeeping efforts by firing at ICCS aircraft, kidnapping ICCS personnel and blocking deployment of ICCS teams to areas under its control. The D.R.V. seeks further to undermine the ICCS by refusing to pay its and the Provisional Revolutionary Government's (P.R.G.) legitimate share of Commission expenses.

(e) The D.R.V. has continued its campaign of terrorism directed against the South Vietnamese people. A recent example of these wanton acts was the shelling of an elementary school in Cai Lay on March 9 which brought death to 32 school children and injuries to 55 more.

Dept. of State Press Release, No. 100, Mar. 15, 1974; Dept. of State Bulletin, Vol. LXX, No. 1815, Apr. 8, 1974, pp. 361-362.

Section 34 of the Foreign Assistance Act of 1974 (P.L. 93-559; approved December 30, 1974) sets forth a policy statement by Congress with respect to continued military conflict in Indochina. Section 34 provides:

(a) The Congress finds that the cease-fire provided for in the Paris Agreement on Ending the War and Restoring Peace in VietNam has not been observed by any of the Vietnamese parties to the conflict. Military operations of an offensive and defensive nature continue throughout South Viet-Nam. In Cambodia, the civil war between insurgent forces and the Lon Nol government has intensified, resulting in widespread human suffering and the virtual destruction of the Cambodian economy.

(b) The Congress further finds that continuation of the military struggles in South Viet-Nam and Cambodia are not in the interest of the parties directly engaged in the conflicts, the people of Indochina or world peace. In order to lessen the human suffering in Indochina and to bring about a genuine peace there, the Congress urges and requests the President and the Secretary of State to undertake the following measures:

(1) to initiate negotiations with representatives of the Soviet Union and the People's Republic of China to arrange a mutually agreed-upon and rapid deescalation of military assistance on the part of the three principal suppliers of arms and material to all Vietnamese and Cambodian parties engaged in conflict;

(2) to urge by all available means that the Government of the Khmer Republic enter in negotiations with representatives of the Khmer Government of National Union for the purpose of arranging an immediate cease-fire and political settlement of the conflict; and to use all available means to establish contact with the Khmer Government of National Union, and to urge them to participate in such negotiations. The United States should urge all Cambodian parties to use the good offices of the United Nations or a respected third country for the purpose of bringing an end to hostilities and reaching a political settlement;

(3) to utilize any public or private form to negotiate directly with representatives of the Democratic Republic of Viet-Nam, the Provisional Revolutionary Government, and the Republic of Viet-Nam to seek a new cease-fire in Viet-Nam and full compliance with the provisions of the Paris Agreement on Ending the War and restoring Peace in Viet-Nam, including a full accounting for Americans missing in Indochina;

(4) to reconvene the Paris Conference to seek full implementation of the provisions of the Agreement of January 27, 1973, on the part of all Vietnamese parties to the conflict; and

(5) to maintain regular and full consultation with the appropriate committees of the Congress and report to the Congress and the Nation at regular intervals on the progress toward obtaining a total cessation of hostilities in Indochina and a mutual reduction of military assistance to that area.

Regional Security Systems

On June 19, 1974, the North Atlantic Council, meeting in ministerial session in Ottawa, adopted a Declaration on Atlantic Relations which essentially reaffirmed the commitment of all the members to the North Atlantic Alliance. Following is the text of the Declaration:

1. The members of the North Atlantic Alliance declare that the Treaty signed 25 years ago to protect their freedom and independence has confirmed their common destiny. Under the shield of the Treaty, the Allies have maintained their security, permitting them to preserve the values which are the heritage of their civilization and enabling Western Europe to rebuild from its ruins and lay the foundations of its unity.

2. The members of the Alliance reaffirm their conviction that the North Atlantic Treaty provides the indispensable basis for their security, thus making possible the pursuit of detente. They welcome the progress that has been achieved on the road towards detente and harmony among nations, and the fact that a conference of 35 coun

tries of Europe and North America is now seeking to lay down guidelines designed to increase security and cooperation in Europe. They believe that until circumstances permit the introduction of general, complete and controlled disarmament, which alone could provide genuine security for all, the ties uniting them must be maintained. The Allies share a common desire to reduce the burden of arms expenditure on their peoples. But states that wish to preserve peace have never achieved this aim by neglecting their own security.

3. The members of the Alliance reaffirm that their common defense is one and indivisible. An attack on one or more of them in the area of application of the Treaty shall be considered an attack against them all. The common aim is to prevent any attempt by a foreign power to threaten the independence or integrity of a member of the Alliance. Such an attempt would not only put in jeopardy the security of all members of the Alliance but also threaten the foundations of world peace.

4. At the same time they realize that the circumstances affecting their common defense have profoundly changed in the last ten years: the strategic relationship between the United States and the Soviet Union has reached a point of near equilibrium. Consequently, although all the countries of the Alliance remain vulnerable to attack, the nature of the danger to which they are exposed has changed. The Alliance's problems in the defense of Europe have thus assumed a different and more distinct character.

5. However, the essential elements in the situation which gave rise to the Treaty have not changed. While the Commitment of all the Allies to the common defense reduces the risk of external aggression, the contribution to the security of the entire Alliance provided by the nuclear forces of the United States based in the United States as well as in Europe and by the presence of North American forces in Europe remains indispensable.

6. Nevertheless, the Alliance must pay careful attention to the dangers to which it is exposed in the European region, and must adopt all measures necessary to avert them. The European members who provide three-quarters of the conventional strength of the Alliance in Europe, and two of whom possess nuclear forces capable of playing a deterrent role of their own contributing to the overall strengthening of the deterrence of the Alliance, undertake to make the necessary contribution to maintain the common defense at a level capable of deterring and if necessary repelling all actions directed against the independence and territorial integrity of the members of the Alliance.

7. The United States, for its part, reaffirms its determination not to accept any situation which would expose its Allies to external political or military pressure likely to deprive them of their freedom, and states its resolve, together with its Allies, to maintain forces in Europe at the level required to sustain the credibility of the strategy of deterrence and to maintain the capacity to defend the North Atlantic area should deterrence fail,