Internationalism in a Dangerous World

...Separately and together, these three theories are without foundation in the law of the Charter or in the customary international law which is the matrix of the Charter...

...From the point of view of the Charter, no more blatant aggression could be imagined--an open conventional-force invasion of South Vietnam in violation not only of Article 2(4), but of confirmatory international agreements on which the ink was hardly dry...

...World order" and the "balance of power" are not antonyms...

...When the Security Council is unable to function, the vindication of the Charter is left to the recommendatory powers of the General Assembly, and the efficacy of individual or collective self-defense: that is, to trial by defensive battle, supplemented by the persuasive and mediating influence of diplomacy and public opinion...

...But no one contends that West Germany and its NATO allies would be legally justified in unifying the German nation by force because those international promises have not been kept...

...In his Inaugural Address, President Carter declared that the goal of American foreign policy is "to help shape a just and peaceful world that is truly humane...

...The breach of the 1973 Indochina peace agreements by North Vietnam, with the full support of the Soviet Union, marked a turning point of far-reaching significance in modern world politics --an event whose full impact on the international political order has not yet been fully revealed...

...In any event, even if there had been international agreement on the point, the breach of such an agreement would not have justified the use of force by North Vietnam...

...The Korean people had been promised their unity and independence by the Soviet Union and the Western allies at Cairo and Potsdam...

...According to generally accepted standards of international law, there were two states in Vietnam, not one, certainly after the Geneva Conference of 1954 and for a good many years before--two states recognized as such by a considerable part of the world community and exercising authority after the manner of states...

...and (3) on another legal footingaltogether, that the war was a civil war within South Vietnam, and that under international law North Vietnam had a right to assist the revolutionary group but the United States had no right to assist the government of South Vietnam...

...That traumatic sequence of events caused a profound, if thus far inconclusive, disturbance of public opinion, particularly in the West, about the nature and extent of the Western commitment to the policy of collective security, and, indeed, about the viability of a policy of world order based upon the enforcement of the UN Charter rules regarding the international use of force...

...As Professor Wolfgang Friedmann wrote in 1965, "it may be conceded that North and South Vietnam are today de facto separate states, even though the Geneva Agreement of 1954 spoke of 'two zones.' " And Professor Telford Taylor concluded that "the two zones [of Vietnam] took on the attributes of separate states...

...The international community made it clear that governments could legally obtain international assistance in putting down insurrections, while open or covert assistance to the rebels under such circumstances was categorically illegal...

...The argument is that international law must acknowledge as sacred the right of self-determination of peoples who happen to live within the states which constitute the system of international politics...

...Yet the Charter can be the effective organizing principle of a peaceful world only when there are strong coalitions and alliances ready and able to insist upon general compliance with its rules governing the international use of force...

...The emotional and political intensity of the reaction of American and world opinion to Vietnam measures its significance as a protest, not only against American participation in the war, but against the nominal state of international law and the policy of collective security developed to enforce it...

...In Europe and the United States, public support for collective security had been weakening steadily since the war in Korea...

...From this perspective, foreign policies based on morality, idealism, and international law are not alternatives to foreign policies based on the balance of power...

...The political process mirrored in these legal developments reached a climax in the Indochinese war after 1967 or 1968...

...They complement each other, as ends and means...

...This allows that it is the duty of states to refrain from assisting either side in a civil war, at least when the conflict reaches the level of belligerency...

...In the final stages of the war in Indochina, the decline became precipitate...

...International law does not and cannot accept either of these precedents...

...In both cases, the Soviet Union invaded not to support, but to destroy a government...

...This essay is adapted from his most recent book, The Ideal in Law, University of Chicago Press, 9 1978 by the Unwersity of Chicago...

...The second precedent is that of the nonintervention policy adopted by Britain, France, and the United States during the Spanish Civil War...

...Legally, the paralysis of the Security Council does not suspend the binding force of the Charter...

...In the Hungarian case of 1956, and the Czech case of 1968, the argument before the United Nations was not that the Soviet Union could not legally assist a widely recognized government which asked for help in suppressing a rebellion, but that there was no such government and therefore no such request for assistance...

...A quite different General Assembly adopted the same sentiments in 1970, and again in 1974...

...The Charter of the United Nations repudiates them...

...South Vietnam was therefore entitled to defend itself against attack from North Vietnam and to receive international assistance in that defense, just as South Korea was held to be entitled to the benefits of individual and collective self-defense under parallel circumstances in 1950...

...Similarly, the unification of Germany has been promised by communiques at the end of many international conferences since 1945...

...They also required North Vietnam to refrain from interfering with the process of self-determination and political settlement in South Vietnam...

...And, in 1954, the International Law Commission defined as offenses against the peace and security of mankind the tolerance by a state of the use of its territory by armed bands or terrorists planning to make incursions into another state, or by groups intending to foment civil strife in another state...

...Yet the final conquest of South Vietnam by North Vietnam was greeted in the West by silence, or relief...

...and to the uprising in Greece in the late 1940s...

...The Charter was breached--again on a very large scale--when Egypt and Syria, with full Soviet backing, attacked Israel in October 1973...

...By treating "states" as fictions, and "peoples" as realities, the advocates of this theory claim that international law should recognize the right of states to use force in order to assist movements of secession, and other revolutionary movements, against the authority of other Eugene V. Rostow is Sterling Professor of Law and Public Affairs at Yale University...

...A sustained political attack was made against the legality of American and international assistance to the defense of South Vietnam...

...Those agreements treated North and South Vietnam as separate states, and emphasized the right of the South Vietnamese people to self-determination...

...From the point of view of world politics, the attack can be compared only with Hitler's invasion of Czechoslovakia, in violation of the Munich agreements of 1938...

...The United Nations intervention in the Congo, which ended the secession of Katanga, rested on exactly the same principle--that nations could assist a government, at its request, but not the secessionists...

...And the 1974 Definition of Aggression adopted by the assembly defined as aggression "the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state...

...As a constitution for the world community, that document restates the political, social, and moral aspirations of modern humanism, and establishes procedures of international cooperation for making progress towards their realization...

...The war was the clearest case of aggression since the attack on South Korea in 1950, a violation not only of the Charter but of Security Council resolutions which t Article 51 notes that nothing in the Charter "shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security...

...Yet the failure of the great powers to carry out these promises was not held to legitimize the North Korean attack on South Korea in 1950...

...Their true antonym is a society of uncontrolled aggression--the state of anarchy...

...The first of these legitimizes international assistance to peoples in revolt...

...Much can and should be said about American participation in the Indochinese war: that it was badly conducted and badly explained...

...The General Assembly's 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States provides that "every state has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state...

...What cannot be said is that it was illegal...

...or its substantial involvement therein...

...They do not correspond to what has until recently been the almost instinctive pattern of practice...

...And they are contrary to the necessities of peace in a political system which is and will remain a system of states...

...American withdrawal from South Vietnam was the quid pro quo for the North Vietnamese withdrawals...

...Before the First World War, the Russian government provided aid to the Slavs of Eastern Europe--a pro,'ess which contributed to the turmoil of the Balkans, and helped to bring on the war...

...That major war was a strategic thrust at NATO as well as an attempt to destroy Israel...

...to the rebellions in Tanzania, Chad, and Ceylon...

...The Charter itself anticipated the problem...

...The ill-fated agreements for peace in Indochina reached in January 1973, and guaranteed by the Act of Paris of March 1973, fully vindicate the legal position of the United States...

...This theory, much in vogue today, would revive two unhappy precedents, and make them operational principles of international law and politics...

...It was the argument Hitler invoked to justify his seizure of the Sudeten province of Czechoslovakia in 1938...

...The Charter contemplates that the political, economic, and social goals of the instrument be sought by persuasion and diplomacy, and not through the use of force...

...And in the Bangladesh war, the preponderant view of the international community, at least as expressed in votes in the Security Council and General Assembly, was that the Indian intervention in behalf of the secession of Bangladesh from Pakistan was contrary to international law...

...The American Spectator May 1979...

...The intensification of international conflict since the early seventies rests on a basic challenge to the political and legal doctrines of the Charter...

...2) that the North Vietnamese attack on South Vietnam was justified because no elections were held in 1956 for the unification of North and South Vietnam, as contemplated in the declaration issued at the end of the Geneva Conference in 1954 by Great Britain and the Soviet Union, the co-chairmen of the conference...

...What is happening in Africa is an extension of trends long manifest in the Middle East and the Far East...

...They are two sides of the same coin...

...However broadly one reads Article 51,~ it is difficult to conclude that the breach of such promises is equivalent to an armed attack...

...India did not claim its 9Article 2(4) provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations...

...The true norm of international law for conflicts of this kind is illustrated by the way in which the international community reacted to the Biafran revolt in the mid-1960s...

...That challenge is encompassed in the theory of wars of national, or indeed of ideological, liberation...

...In 1950, the General Assembly, "condemning the intervention of a state in the internal affairs of another state for the purpose of changing its legally established government by the threat or use of force," solemnly reaffirmed "that, whatever the weapons used, any aggression, whether committed openly, or by fomenting civil strife in the interest of a foreign power, or otherwise, is the gravest of all crimes against peace and security throughout the world...

...The argument for this kind of aid is made in behalf of the Palestinian Arabs today...

...yet there is no plausible way to explain that charge in terms of international law...

...Reaffirming the Laos agreements of 1962, they required North Vietnam to withdraw from Laos and Cambodia and, tacitly at least, from South Vietnam as well...

...states...

...The third argument, that North Vietnam had a legal right to assist the Viet Cong within South Vietnam but that the United States and other nations had no right to assist South Vietnam, is plainly wrong under the Charter, under preexisting international law, and under the prevailing practice of states...

...that too much effort was devoted to diplomatic probes which turned out to be deceits, and should have been perceived as such...

...action was justified on humanitarian grounds, and only the Soviet veto saved India from explicit condemnation...

...Furthermore, they claim that when revolutionary movements of this character gain sufficient momentum, no state should be allowed to provide assistance to the governments being attacked...

...They treated the war in Vietnam as an international war in every sense, not a civil war...

...Three theories have been advanced to justify the claim that international assistance to South Vietnam was illegal: (1) that the war between North and South Vietnam was a civil war, not an international war, since North and South Vietnam were not separate states but part of a single "state" or "nation...

...and, above all, that the war was not promptly and decisively won...

...The core of the Charter--the idea from which all the rest flows--is the ban of Article 2(4) against the international use of force, except for individual and collective selfdefense and enforcement actions under the direction of the Security Council...

...Secondly, the declaration about elections in the communique issued at the end of the Geneva Conference had the nominal support of only four of the nine participants, and both South Vietnam and the United States made it clear at the time through formal statements that they did not accept the proposal and were not bound by the co-chairmen's statement...

...The only possible basis for President Carter's concept of world order is the Charter of the United Nations...

...9149149149149149149149149149149149149149149149149 oo000oooooo9 Eugene V. Rostow Internationalism in a Dangerous World Has the UN Charter gone the way of the League of Nations' Covenant...