Law and the Indo-China War

Law and the Indo-China War

JOHN NORTON MOORE
Copyright Date: 1972
Pages: 830
https://www.jstor.org/stable/j.ctt13x1bvs
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  • Book Info
    Law and the Indo-China War
    Book Description:

    John Norton Moore, the most prominent legal scholar to defend a position basically in agreement with the present Administration, presents a coherent, well-argued interpretation of the specific legal issues raised by U.S. involvement in Vietnam and their implications for international and constitutional law.

    Originally published in 1972.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-7037-0
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Foreword
    (pp. vii-xvi)
    Myres S. McDougal

    The securing and maintenance of minimum public order in the sense of the prevention and control of unauthorized violence and other coercion, long recognized as a problem of first priority in all of man’s communities, is today commonly perceived as having acquired, because of our contemporary weapons of catastrophic destructiveness, a unique urgency in the larger global community. In this distinguished book Professor Moore brings high craftsmanship and creative imagination to bear upon exploring the potentialities of law in the management of this problem. The conviction that inspires the book is that, despite past failures and the gravity of the...

  3. Introduction
    (pp. xvii-xxii)
    John Norton Moore

    Development of the law, as well as other areas of human endeavor, seems frequently to result from cataclysmic events. The Great Depression was a significant contributing factor to the legal realist movement which revolutionized the way lawyers think and which transformed law from a brooding omnipresence in the sky to a tool for social engineering grasped firmly by the hand of man. In international law, the tragedy of war has frequently served as such an event. World War I gave impetus to the League of Nations with its procedural checks on resort to war and the Kellogg-Briand Pact with its...

  4. A Postscript on “The Pentagon Papers”
    (pp. xxiii-xxx)
    John Norton Moore

    The chapters in Part III dealing with the specifics of the Indo-China conflict were completed prior to the publication by theNew York Timesof a summary of the classified Pentagon study on American participation in the Vietnam War.¹ The published record of these “Pentagon Papers,” however, strikingly confirms the major factual assumptions made relevant to the legal aspects of the conflict. In fact, the degree of congruence suggests that the public record of United States involvement is so nearly complete that further disclosures which will alter the major topography of the record are unlikely. The record of North Vietnamese...

  5. Acknowledgments
    (pp. xxxi-xxxiii)
  6. Table of Contents
    (pp. xxxiv-xxxv)
  7. Part One: Observational Standpoint
    • Introduction
      (pp. 3-7)

      There is continuing confusion about the role of law in major world order disputes such as the Indo-China conflict. Popular opinion is skeptical that law is relevant to such issues, and in the last several decades George Kennan, Hans Morgenthau and other highly regarded internationalists have even warned that the legal tradition may be dangerous for objective assessment of the national interest.¹ Chapter I, “The Role of Law in the Management of International Conflict,” attempts to demonstrate why this anti-legalist tradition, though expressing some valid insights, is dangerously simplistic.

      It would be naive to believe that, in the present revolutionary...

    • CHAPTER I The Role of Law in the Management of International Conflict
      (pp. 8-46)

      A threshold problem in consideration of the legal aspects of world order issues such as the Indo-China War is the frequently encountered skepticism about the usefulness of an international-legal approach. Sometimes this skepticism is taken to the point of warning of the dangers of legal approaches to international affairs. In an editorial on the occasion of President Nixon’s appointment of William Rogers (a lawyer but not an international law specialist) as Secretary of State,The New York Timeswarned:

      Law functions within a structure of shared assumptions; its starting point is the acceptance, by all parties, of the legitimacy of...

    • CHAPTER II Prolegomenon to the Jurisprudence of Myres McDougal and Harold Lasswell
      (pp. 47-76)

      If a Benjamin Cardozo or a Jerome Frank were to spend a few weeks browsing in any of today’s good law schools, he would be enthusiastic about the rising tide of “social consciousness.” The trend in legal education and student interest is toward involvement with such major social problems as the inequality of treatment accorded the black man, poverty, war and revolution, urban blight, crime and reform of the criminal process, and the challenges to human dignity presented by an exploding technology.¹ Law has begun unmistakably, even if erratically, a fundamental transition from a self-contained and sometimes irrelevant discipline to...

  8. Part Two: World Order Perspectives
    • Introduction
      (pp. 79-82)

      From the perspective of the future of world order, the problem of intervention in internal conflict is potentially one of the most serious in the present international system. Although the Indo-China conflict cannot be accurately generalized solely in terms of internal conflict (the North Vietnamese invasion of Cambodia is more meaningfully characterized as an armed attack than as intervention), to some extent the fighting within Laos, Cambodia, South Vietnam, and between North and South Vietnam has overtones of the internal conflict problem. In fact, a major portion of the public order disputes since World War II have had at least...

    • CHAPTER III Intervention: A Monochromatic Term for a Polychromatic Reality
      (pp. 83-114)

      It has become increasingly evident over the last few years that the control of international involvement in real or pretended domestic upheaval is one of the central problems of peace in our time. Since World War Il the world has witnessed major international involvement in conflicts within Greece, Korea, and now Vietnam, and numerous lesser involvements in such conflicts as Laos, Malaysia, Cyprus, Guatemala, Hungary, Yemen, Cuba, Lebanon, Venezuela, Bolivia, the Dominican Republic, Thailand, Czechoslovakia, Nigeria, Pakistan, Northern Ireland, and the Congo. This development, while never wholly absent from the international scene, seems to have been stimulated after World War...

    • CHAPTER IV The Control of Foreign Intervention in Internal Conflict
      (pp. 115-286)

      The nuclear arms race, the economic gap between the have and have not nations, and the weakness of international organization have long been recognized as major public order concerns. During the last few years it has become increasingly evident that intervention in internal conflict is also a major concern. The recent events in the Congo, Cyprus, Czechoslovakia, the Dominican Republic, Hungary, Israel, Laos, Lebanon, Nigeria, Northern Ireland, Pakistan, Vietnam, and Yemen make this concern self-evident. The problem, though, may be more pervasive than these dramatic incidents suggest, for our world is both increasingly revolutionary and increasingly interdependent.

      Professor C. E....

    • CHAPTER V The Elephant Misperceived: Intervention and American Foreign Policy
      (pp. 287-295)

      The vigorous reexamination of American foreign policy triggered by the Vietnam War has thrust forward two competing models of American intervention since World War II. The first model pictures American intervention as a necessary response to an expansionist and centrally directed communist drive for control of the third world. According to this model, American counter-intervention has served to contain aggressive communist regimes, to prevent the domino-like fall of third world countries, and to meet the newest strategy of communist aggression—the war of national liberation. The second model is radically different. It pictures American intervention as part of a global...

    • CHAPTER VI The Role of Regional Arrangements in the Maintenance of World Order
      (pp. 296-350)

      As the United Nations ends its first quarter-century, two flaws in its normative structure have become increasingly apparent. The first and perhaps more important of these is the unresponsiveness of the Charter to the problem of control of foreign intervention in internal conflict.¹ The second is the ambiguity surrounding the role of regional arrangements in the maintenance of world order. Unlike the problem of control of unauthorized intervention, the framers of the Charter were largely aware of the problems in the interrelation of regional arrangements and the United Nations. The clash of competing regional and universal interests, however, resulted in...

  9. Part Three: International Law and the Indo-China War
    • Introduction
      (pp. 353-357)

      The debate within the United States on the legal issues presented by the Indo-China War has been as insistent as that on other aspects of the conflict. A principal choice point in the debate has been whether the United States participation in the Vietnam War should be viewed as a response to an armed attack or as intervention in an internal conflict. If the United States participation is properly characterized as collective defense against a prior armed attack, as it is characterized by the State Department memorandum, then the action would be lawful pursuant to Article 51 of the Charter....

    • CHAPTER VII The Lawfulness of Military Assistance to the Republic of Vietnam
      (pp. 358-402)

      The major thrust of contemporary international law is to restrict coercion in international relations as a modality of major change. The use of force as an instrument of change has always been wasteful, disruptive, and tragic. In the nuclear era the renunciation of force as a method of settlement of disputes has become an imperative. These necessities have resulted in a widely accepted distinction between lawful and unlawful uses of force in international relations which is embodied in the United Nations Charter. Force pursuant to the right of individual or collective defense or expressly authorized by the centralized peacekeeping machinery...

    • CHAPTER VIII International Law and the United States Role in Vietnam: A Reply to Professor Falk
      (pp. 403-457)

      In an article published in theYale Law JournalProfessor Richard Falk raises a number of questions about the lawfulness of the United States role in Vietnam.¹ The importance of some of these questions for the direction of contemporary international law as well as for the appraisal of the United States role in Vietnam calls for continuing dialogue.

      In analyzing the United States role in Vietnam, Professor Falk focuses on the problem of the international law of “internal war.”² He indicates that “the central issue is whether an externally abetted internal war belongs in either of the traditional legal categories...

    • CHAPTER IX Law and Politics in the Vietnamese War: A Response to Professor Friedmann
      (pp. 458-478)

      In a recent issue of theAmerican Journal of International Law¹ Professor Wolfgang Friedmann published a critique of my article on the lawfulness of military assistance to South Vietnam which appeared in the January, 1967, issue of theJournal.² His reply was welcome both because continuing dialogue has proven a helpful method for clarification of the legal issues on Vietnam and because it was particularly gratifying, following our debate at the 1966 Annual Meeting of the Society, to have an opportunity to clarify the issues separating us. Nevertheless, Professor Friedmann’s reply was disappointing: disappointing partly because of his misunderstanding of...

    • CHAPTER X Legal Dimensions of the Decision to Intercede in Cambodia
      (pp. 479-530)

      In appraising national security decisions, such as the recent decision to send United States combat forces into the North Vietnamese and Vietcong border sanctuaries in Cambodia, it is useful to focus on three interrelated questions. First, is the decision consistent with national and international law? Second, is the decision consistent with the national interest? And third, are there other alternatives which are likely to be more satisfactory in implementing the national interest? Each of these questions represents an important perspective for appraisal. Though the answer to the first question is important for answering the second and third questions, international lawyers...

  10. Part Four: The Indo-China War and the Structure of the National Security Process
    • Introduction
      (pp. 533-537)

      The proper role of Congress and the President in the commitment of the nation to war has been recurrently controversial since the administration of Jefferson. In the Indo-China debate this controversy has taken on an intensity not equaled since the Mexican war. Characteristically, participants in the debate have tended to take a position either pro-Congress or pro-Executive, much in the fashion of the famous clash between Hamilton, writing as Pacificus, and Madison, writing as Helvidius. Lacking has been any attempt to particularize the range of issues and to relate answers on each to the functional differences between the two branches....

    • CHAPTER XI The National Executive and the Use of the Armed Forces Abroad
      (pp. 538-553)

      Historically, the controversies about the war power and the treaty power seem to have been the most important constitutional issues in the scope of the President’s foreign affairs power. Of these, the treaty power controversy has been in at least a state of temporary quiescence since the heated controversy in 1954 over the Bricker amendment. With the defeat by a narrow margin of the Bricker amendment, which had been aimed at restricting the President’s power to make international agreements, this controversy was resolved in favor of a continuing broad view of Executive authority. In contrast, the debate on Vietnam has...

    • CHAPTER XII Congress and the Use of the Armed Forces Abroad
      (pp. 554-569)

      The constitutional issues surrounding the use of the armed forces abroad have been a subject of controversy throughout our history. One reason for this continuing controversy is the vagueness and complementarity of the constitutional grants of power to Congress and the President. Another reason is that for the most part the constitutional issues surrounding use of the armed forces abroad have not been suitable for judicial determination.¹ As a result, resolution of the issues has been left largely to the wisdom and restraint of Congress and the President. It is important that both branches continue to exercise that wisdom and...

    • CHAPTER XIII The Justiciability of Challenges to the Use of Military Forces Abroad
      (pp. 570-598)

      To his colleagues from abroad, the American lawyer seems to have an extraordinary preoccupation with the judicial process. Whether because of the major role of the Supreme Court in the American system, the strength of the common law tradition, or the dominance of the Langdell-Ames case method of instruction in American law schools, it is second nature for the American lawyer to turn to the courts for solution of major issues. It is not surprising, then, that the controversy surrounding the Vietnam war has given rise to a multitude of cases in American courts. These cases have arisen in a...

  11. Documentary Appendices
    • Appendix A Memorandum by the State Department Legal Adviser, Leonard C. Meeker, on the Legal Aspects of the Vietnam Situation (March 4, 1966).
      (pp. 603-632)
    • Appendix B Memorandum by the State Department Assistant Legal Adviser for Far Eastern Affairs, George Aldrich, on the Applicability of the Geneva Convention of 1949 Relative to the Treatment of Prisoners of War to American Military Personnel Held by North Vietnam (July 13, 1966).
      (pp. 635-640)
    • Appendix C Address by the State Department Legal Adviser, John R. Stevenson, on the International-Legal Aspects of the Cambodian Incursion (May 28, 1970).
      (pp. 643-654)
    • Appendix D The 1954 Geneva Agreements for Cambodia, Laos, and Vietnam
      (pp. 657-708)
    • Appendix E The 1962 Geneva Agreement for Laos
      (pp. 711-724)
    • Appendix F The Southeast Asia Collective Defense Treaty and Protocol
      (pp. 727-736)
    • Appendix G The Southeast Asia Resolution (Tonkin Gulf Resolution)
      (pp. 739-740)
  12. A SELECTED BIBLIOGRAPHY OF WRITINGS ON INDO-CHINA AND THE LEGAL ORDER
    (pp. 743-762)
  13. Index
    (pp. 763-794)