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Published online by Cambridge University Press: 28 March 2017
Little scholarly effort has been devoted to consideration of the part actually played by international law in national decision-making. Diplomatic historians have tended to neglect the legal factor. Political scientists have discussed the rôle of law largely in general terms. The effort of international lawyers has been focused on statement of what the law is supposed to be. Some of this attention might usefully be diverted to study of the place of the legal factor in the making of specific decisions. Such studies should make possible more realistic discussion of the question whether the policy-makers are assigning the degree of emphasis to the factor of international law which is best calculated to promote the national interests and values they aim to serve.
What is attempted here is one case study focusing on the legal principles of the United Nations as a restraint and as an incentive to action in the United States reaction to the 1950 Communist attack in Korea. That reaction took two parts: (1) a decision to assist Korea within the framework of the United Nations, and (2) a decision to isolate Formosa from Communist attack by individual American action. After a brief outline of the Charter principles in question, we will consider the way in which each of these decisions was made, together with the domestic and international consequences in each instance.
The author gratefully acknowledges the assistance of the University of Michigan Law School, which granted him a fellowship in 1959–60 for research on the relation between international law and foreign policy.
1 See, however, the works of Percy E. Corbett : Law and Society in the Relations of States (1951); Law in Diplomacy (1959).
2 The emphasis on national independence appears also in the Charter ‘s references to “the principle of equal rights and self-determination of peoples” as the basis of friendly relations among nations (Art. 1, par. 2; Art. 55). For dependent peoples, progress towards independence was set as a goal (Chs. XI, XII).
3 The rule was a relatively new one. For the United States the change in the legal situation came with its signature of the Kellogg-Briand Pact, in which the parties renounced the right to resort to war as an instrument of national policy and agreed to seek the settlement of disputes or conflicts only by pacific means. 63 nations, including all of the great Powers, joined in this commitment. In the Charter of the Nuremberg Military Tribunal the planning or making of aggressive war was declared to be an international criminal offense, and the principle thus proclaimed was affirmed in a unanimous resolution of the U. N. General Assembly on Dec. 11, 1946. Former Secretary of State Stimson wrote of the Nuremberg judgment : “A standard has been raised to which Americans, at least, must repair; for it is only as this standard is accepted, supported and enforced that we can move onward to a world of law and peace.” Stimson, , “The Nuremberg Trial: Landmark in Law,” 25 Foreign Affairs 179, 189 (1947)CrossRefGoogle Scholar. This new principle marked a radical departure in international law, for legal resort to war had been a safety valve which helped to make the traditional law of nations a viable system. When the safety valve was closed, the legal system was subjected to great pressures. Completely effective enforcement of the new rule was hardly to be expected. It was true, however, that the legal outlawry of war was solidly based on new political facts: the development of weapons and methods of war-making which made war destructive out of all proportion to the ends it served. Given the existing balance of power, even states as far apart as the United States and the Soviet Union now shared a vital interest in preventing the outbreak of any major war.
4 12 U. N. C. I. O. Docs. 502, 505 (1945). For a discussion of the later debates over the desirability of a more detailed definition of aggression, see McDougal, and Feliciano, , “Legal Regulation of Resort to International Coercion: Aggression and Self-Defense in Policy Perspective,” 68 Yale Law J. 1057, 1074-1083 (1959)CrossRefGoogle Scholar.
5 Art. 39 authorized the Security Council to take action to meet any “threat to the peace.” By the “Uniting for Peace” Resolution of Nov. 3, 1950, the General Assembly assumed the power to authorize collective military action in any such case where the veto prevented action by the Security Council.
6 Nor should the duty of neutrality be avoidable by the expedient of refusing to “recognize” the existence of the conflict. Jessup, , “The Spanish Rebellion and International Law,” 15 Foreign Affairs 260, 266-267 (1937)CrossRefGoogle Scholar and authorities there cited; see also Jessup, A Modern Law of Nations 56-57 (1947). Cf. pp. 63-64 below.
7 22 Dept. of State Bulletin 116, 467 (1950).
8 23 Dept. of State Bulletin 12, 13 (1950).
9 See also Hearings before a Subcommittee of the Senate Committee on Appropriations on Department of State Appropriations for 1952, 82d Cong., 1st Seas., Pt. 1, pp. 1086-1087 (1951).
10 For many of the facts concerning the week of June 24-30, 1950, the writer has relied on Glenn D. Paige, The Korean Decision (Manuscript, Department of Political Science, North-western University, 1959), a reconstruction of the decision-making events based on extensive interviews. Another valuable source is Smith, “The White House Story: Why We Went to War in Korea,” The Saturday Evening Post, Nov. 10, 1951. With President Truman’s approval, Smith interviewed the participants in the decision while their memories were fresh, and he was given access as well to memoranda of conferences between the President and his advisers and with Congressional leaders.
11 This had been brought home forcefully to Truman and Acheson in 1947, in the reaction to the President’s message to Congress calling for American military and economic assistance to Greece and Turkey. The complaint of the Greek Government that the Communist-led rebel forces were receiving assistance from the neighboring Communist states had been referred to the Security Council, and the latter had sent a fact-finding commission to Greece to investigate the charges. Criticism of the President’s message on the ground of by-passing the United Nations was widely expressed and was only partially allayed by the Vandenberg amendments to the Greek-Turkish aid bill, which provided that the American program should be terminated if ever the Security Council or the General Assembly found that action taken by the United Nations made the continuance of separate American assistance unnecessary or undesirable. The Private Papers of Senator Vandenberg 344—352 (Arthur Vandenberg, Jr., ed., 1952). Senator Vandenberg commented privately that the Administration had “made a colossal blunder in ignoring the U. N.” Ibid. 345. On the public debate over the “Truman Doctrine,” see Joseph Jones, The Fifteen Weeks 171-184 (1955). Among those who criticized the Administration in 1947 was Philip Jessup, an active participant in the decisions of June, 1950. Jessup, The International Problem of Governing Mankind 33-63 (1947).
12 Interviews with Philip C. Jessup (Jan. 15, 1960) and Dean Rusk (Jan. 19, 1960). Similarly, Acheson testified at Senate Hearings in 1951 that one reason why the United States brought the aggression in Korea before the United Nations was “because the Charter requires it.” Hearings before the Senate Committees on Armed Services and Foreign Relations on the Military Situation in the Far East, 82d Cong., 1st Sess., p. 1716 (1951). See also Acheson’s statement to the press of June 28, 1950, 23 Dept. of State Bulletin 6 (1950) ; and statements of General Collins and Secretary of Defense Johnson, Hearings, Military Situation in the Far East 1225, 2585. After the President’s decision to intervene was announced, Senators on both sides of the aisle spoke also of the obligation to the U. N. 96 Cong. Rec. 9230, 9544 (1950).
13 Attention had also been devoted to the possibility that Malik, who had been boycotting Security Council meetings in a protest against the majority’s refusal to seat the representative of Communist China, might return to veto the resolution. It was hoped that he would not receive new instructions in time to do so, and that other delegates would feel no qualms about treating absence as abstention. In the event that Security Council action was blocked by a veto, however, it was planned to appeal to the General Assembly in emergency session. Testimony of John D. Hickerson, Hearings on Department of State Appropriations for 1952, pp. 1087-1088.
14 The Commission’s report made clear the massive character of the attack, and suggested that it should be brought to the Security Council. Security Council, Official Records, 473d Meeting, June 25, 1950, p. 2.
15 Interview with Ernest Gross, Jan. 19, 1960.
16 Ibid. The resolution was adopted by a vote of 9 to 0, with the U.S.S.R. absent and Yugoslavia (which wanted to invite North Korea to send a representative to Lake Success) abstaining.
17 Hearings, Military Situation in the Far East, 242-243, 753, 943, 1110-1111. General Bradley conceded that in the hands of a hostile Power Korea would be a threat to Japan, “but you always have to stop your front line somewhere.” Ibid. 1111.
18 2 Truman, Memoirs 325-326 (1956).
19 Air Secretary Finletter later testified that the United States could not in 1950 have fought a local war of this kind at other places on the Soviet periphery. Hearings Before a Subcommittee of the House Committee on Appropriations on the Supplemental Appropriation Bill for 1951, 81st Cong., 2d Sess., p. 230 (1950).
20 Unpublished chronology of events in the first week of the Korean conflict, furnished by the Department of State.
21 Lie, In the Cause of Peace 332 (1954). Ambassador Gross flew to Washington on Monday and reported on the strength of the immediate reaction at the U. N.
22 General Assembly, 5th Sess., Official Records, Supp. No. 16, at p. 4 (1950).
23 Lie, In the Cause of Peace 332 (1954).
24 2 Truman, Memoirs 332-333 (1956).
25 Paige, op. cit. above.
26 U. S. Dept. of State Pub. No. 4178, United States Participation in the United Nations, Report by the President to the Congress for the Year 1950, pp. iv-v (1951).
27 Hearings, Military Situation in the Far East 1818-1819 ; cf. 1715-1716.
28 Smith, loc. cit. above, at 86 ; Paige, op. cit. above.
29 2 Truman, Memoirs 336. He suggested “that Security Council might call for action on behalf of the organization under Article 106 by the five powers or such of them as are willing to respond.”
30 Hearings, Military Situation in the Far East 2585.
31 Ibid. 890, 1110, 1504.
32 The challenge to the United Nations was the more serious because it came at a point where the United States possessed the capacity to respond militarily. This feature was what distinguished the Korean case from the Soviet aggression against Hungary in 1956. In the latter case there was no comparable challenge because it was obvious from the first that no outside state was physically able to send Hungary any effective military assistance.
33 For the opinion of one American official that “probably the United States would have only protested vigorously against the armed aggression and would have refused, under the Stimson doctrine, to recognize the annexation by north Korea of south Korea,” see Cohen, Benjamin V., “The Impact of the United Nations on United States Foreign Policy,” 5 International Organization 274, 279 (1951)CrossRefGoogle Scholar.
34 Hearings, Military Situation in the Far East 3373, 3380. Senator Taft expressed disagreement with this view. He noted that the Charter contemplated the negotiation of a special agreement putting American forces at the disposal of the Security Council, and none had ever been negotiated. 96 Cong. Rec. 9322-3 (1950). Cf. remarks of Senators Watkins (ibid. 9233) and H. Alexander Smith (ibid. 9230, 9334).
35 W. Scott and S. Withey, The United States and the United Nations: The Public View 78 (1958). In August 65% thought the United States had not made “a mistake in deciding to defend Korea.” After Chinese intervention, a plurality thought “going into the war in Korea” had been a mistake, but when the Chinese were stopped, supporters of the original action regained the majority position. Id.
36 Congressman Vito Marcantonio (A.L.P., N.Y.); 96 Cong. Rec. 9268-9269 (1950).
37 96 ibid. 9230, 9290, 9315, 9333, 9544.
38 This was the opinion of President Truman ‘s advisers. Hearings, Military Situation in the Far East 954, 970, 2585; Paige, op. cit. above. See also Mosely, “Soviet Policy and the “War,” 6 Journal of Int. Affairs 107 (1952).
39 Dept. of State Pub. No. 3922, United States Policy in the Korean Crisis 63-64 (1950) ; Great Britain, Foreign Office, Summary of Events relating to Korea 1950, Cmd. No. 8078, at 27-28 (1950) ; U.N. Doc. S/1517 (1950) ; Paige, op. cit. above.
40 Interview with Ernest Gross (Jan. 19, 1960). The Secretary General commented to Hickerson, who gave him the news late Saturday night, “My God, Jack, that’s a violation of the United Nations Charter!” Paige manuscript. Cf. Lie, In the Cause of Peace 327-328 (1954).
41 U. S. Ambassador Austin later testified to the reluctance of a national delegate to vote under such circumstances. Hearings, Appropriations for 1952, p. 1278.
42 Security Council, Official Records, 473d Meeting, June 25, 1950, at p. 3. Cf. Lie, In the Cause of Peace 329-330 (1954).
43 Security Council, Official Records, 474th Meeting, June 27, 1950, at p. 2. The Commission was made up of representatives of Australia, China, El Salvador, Prance, India, The Philippines and Turkey. Field observers for the Commission had returned only the day before the invasion from an inspection trip along the 38th parallel. On the basis of their report the Commission was able to deny authoritatively Communist charges that South Korea began the war. General Assembly, Official Records, Supp. No. 16 (1950).
44 474th Meeting, pp. 14-15; 475th Meeting, p. 2. Dissatisfied with past performance of the United Nations where Egypt’s interests were concerned, the Egyptian Government took the position that the fighting in Korea was merely a “new phase” in the power struggle of Western and Eastern blocs.
45 Dayal, India’s Role in the Korean Question 86-87 (1959).
46 Ibid. 82.
47 Japanese Ass’n. of Int. Law, Japan and the United Nations 65 (1958).
48 U. S. Dept. of State Pub. No. 4178, United States Participation in the United Nations 35 (1951) ; Hearings, Department of State Appropriations for 1952, p. 1283. Combat forces were contributed by Australia, Belgium, Canada, Colombia, Ethiopia, Prance, Greece, Luxembourg, The Netherlands, New Zealand, the Philippines, Thailand, Turkey, the Union of South Africa and the United Kingdom.
49 MacIver, The Nations and the United Nations 39-40, 89 (1959). American officials had been right in their assumption that the other members of the Security Council would not hesitate to act because of the absence of the Soviet representative. See Gross, Leo, “Voting in the Security Council: Abstention from Voting and Absence from Meetings,” 60 Yale Law J. 209 (1951)CrossRefGoogle Scholar ; cf. McDougal and Gardner, “The Veto and the Charter: an Interpretation for Survival,” ibid. 258. Nor was there any support outside of the Soviet bloc for Russia’s argument that the Korean struggle was a civil conflict in which the Security Council was without competence to intervene. It was easily answered by the facts that it had never been possible to unite the two Koreas in one country, that the 38th parallel had been an international boundary between Soviet and American zones, and that the Republic of Korea, created by authorization of the General Assembly, had been attacked from outside its borders. Moreover, the Security Council might intervene even in a civil war if it found that a threat to international peace was involved, since Art. 2, par. 7, specifically exempted enforcement measures from the domestic jurisdiction principle.
50 For consistency, the Japanese name “Formosa” is used rather than the Chinese name “Taiwan,” except where the latter appears in quotations.
51 Dept. of State Pub. No. 3573, United States Relations with China xiii, xv-xvi, 280-285 (1949).
52 Ibid. xvii; cf. similar statements of policy cited above, p. 48.
53 25 Dept. of State Bulletin 603 (1951).
54 Arthur Vandenberg, Jr., The Private Papers of Senator Vandenberg 537 (1952).
55 Ibid. 539.
56 96 Cong. Rec. 150-151, 154 (1950). Smith had returned from a trip to the Far East impressed with MaeArthur’s strongly-held view that Formosa was the key to the defense of the Pacific.
57 Hearings, Military Situation in the Far East 902, 1590, 1672, 1681.
58 Ibid. 1672, 1681; Hanson Baldwin, N. Y. Times, Dec. 18, 1949; James Beston, N. Y. Times, Dec. 30, 1949.
59 Information policy guidance memorandum, Dec. 23, 1949, printed in Hearings, Military Situation in the Far East 1667-1668. This memorandum, was designed to mitigate the adverse psychological consequences of the fall of the island. Senator Vandenberg also felt at this time that “any militaristic action on our part in respect to Formosa could seriously jeopardize our successful contacts with India and Indonesia and Indo-China.” Arthur Vandenberg, Jr., op. cit. above, p. 540.
60 Hearings, Military Situation in the Far East 2477-2478.
61 Interview with Philip C. Jessup, Jan. 15, 1960 ; see also correspondence between Senator Smith and Ambassador Jessup, Hearings before a Subcommittee of the Senate Committee on Foreign Relations on Nomination of Philip C. Jessup to be U. S. Representative to the Sixth General Assembly, 82d Cong., 1st Sess., at pp. 885-887 (1951).
62 Secretary Acheson explained the meaning of the phrase “at this time” by saying it was “a recognition of the fact that, in the unlikely and unhappy event that our forces might be attacked in the Par East, the United States must be completely free to take whatever action in whatever area is necessary for its own security.” 22 Dept. of State Bulletin 81 (1950).
63 22 Dept. of State Bulletin 79 (1950). This statement was timed to coincide with British recognition of the Peiping regime.
64 22 Dept. of State Bulletin 80 (1950).
65 96 Cong. Bee. 79-83, 170 (1950). Knowland, it is interesting to note, rejected the theory that Formosa could still be considered a part of Japan. Ibid. 1557.
66 Ibid. 298-301.
67 Ibid. 472.
68 Ibid. 1554-1558.
69 Ibid. 1558.
70 Security Council, Official Records, 490th Meeting, Aug. 25, 1950, pp. 6-9.
71 Ibid., 474th Meeting, June 27, 1950, p. 11.
72 It seems fruitless to argue whether it was a use of force or only a threat of force. The framers of the Charter had not defined the terms. See above, pp. 46-47. That there may be an illegal use of force, though no weapon is fired, was indicated by the International Court of Justice in the Corfu Channel Case, [1949] I.C.J. Rep. 4, 33-35.
73 This has already been indicated at pp. 46-47 above. The United States had claimed a right to aid the established government in the Greek civil war. Efforts to harmonize that U. S. action with the Charter, by giving the Security Council or the General Assembly the power to terminate the American assistance program at any time, were made by Senator Vandenberg. Arthur Vandenberg, Jr., op. cit. above, pp. 344-352. Philip Jessup (one of the decision-making group in 1950) had been critical of the decision to aid Greece directly rather than through the U.N. “A foreign policy based on the United Nations,” he wrote in 1947, “is a policy of multilateral decision and action, not a policy of unilateral decision and action.” Jessup, The International Problem of Governing Mankind 56.
[It should be noted that the considerations applying in 1950 are not necessarily de terminative of the present legal situation with respect to Formosa. A persuasive argument can be made that by their attack on the United Nations forces in Korea the Chinese Communists forfeited their legal right to object to the American protection of the island.]
74 Subsequently the United States did refer the disputed question of Formosa to the General Assembly. Below, p. 71.
75 Unpublished chronology of events in the first week of the Korean conflict, furnished by the Department of State.
76 Interview with Philip Jessup, Jan. 15, 1960.
77 The President’s advisers did not take seriously the risk that the Chinese Communists might decide to retaliate against this intervention by joining the war in Korea. As it turned out, the troops that had been concentrating for an assault on Formosa formed the core of the Chinese Communist armies which entered North Korea in October, 1950. Hearings, Military Situation in the Far East 22, 758. The Assistant Secretary of State for Far Eastern Affairs testified in May, 1951, that “the oldest person on duty in the Office of Chinese Affairs” had been there for three years. This turnover may have been a factor in the evident miscalculation of Chinese reactions and capabilities. Hearings, Dept. of State Appropriations for 1952, p. 930.
78 23 Dept. of State Bulletin 166, 463 (1950).
79 Paige, op. cit. above.
80 Ibid.
81 Cf. p. 70, below.
82 Secretary of Defense Louis Johnson considered Formosa of greater importance than Korea, as did Senators Taft and Knowland. Hearings, Military Situation in the Far East 2579-2580.
83 Above, p. 50.
84 Kennan, American Diplomacy 1900-1950, pp. 97-100 (1951). It has been reported that Kennan was the one high-level official who did not share the view that to bring the matter to the U.N. was the only reasonable course. Paige, op. cit. above. He was not in Washington at the time of the decision to make the U.N. appeal.
85 Acheson, Power and Diplomacy 41-42 (1958).
86 sein 1953, soon after he left government service, Jessnp suggested that a new term, “intermediacy,” defining a status half-way between peace and war, might be applied to such relations. Jessup, “ Intermediacy, “ 23 Nordisk Tidsskrift for Internationa Ret 16, 26 (1953); also id., The Use of International Law 26-29, 129 (1959); “Inter national Law in 1953 A.D.,” 1953 A.S.I.L. Proceedings 8, 14-15.
87 There was no direct evidence at this time of Chinese complicity in the attack in Korea. In his talks with General MacArthur on Aug. 6-8, 1950, Ambassador Harriman stressed the importance to the United States’ case of any indications of Chinese participation. 2 Truman, Memoirs 352 (1956). In his fourth report as U.N. Commander, dated Sept. 18, MacArthur reviewed evidence obtained in prisoner-of-war interrogations, on the basis of which he concluded: “To date, there has been no confirmation of direct or overt Chinese Communist participation in the Korean conflict however, they have furnished substantial if not decisive military assistance to North Korea by releasing a vast pool of combat-seasoned troops of Korean ethnic origin which provided the means of expansion of the North Korean army.” U.N. Doc. S/1796 On Sept. 23 the Peiping government admitted that Koreans who had fought for the Communists in China had returned to Korean to fight, “as it was the duty of Korean in China to do.” 1949-50 Survey of International Affairs 351.
88 Smith, loc. cit. above; 2 Truman, Memoirs 338 (1956).
89 Statements by Secretary Acheson, 23 Dept. of State Bulletin 6, 43 (1950) ; statement by Ambassador Jessup, ibid. 85.
90 French approval was explained by Chinese Communist support of the rebellion in Indo-China.
91 1949-50 Survey of International Affairs 38 n. ; Goodwin, Great Britain and the United Nations 132, 135 (1957); Pannikar, In Two Chinas 106 (1955). Cf. 2 Truman, Memoirs 398-409.
92 Dayal, India’s Role in the Korean Question 75-81, 86-87 (1959).
93 23 Dept. of State Bulletin 170-171 (1950). Stalin had welcomed the initiative. 1949-50 Documents on International Affairs 707.
94 Ibid. 633-634. It was not until Aug. 24, however, that he addressed a formal complaint to the Security Council, together with a request for action to secure withdrawal of the American fleet. Security Council, Official Records, 490th Meeting, Aug. 25, 1950, p. 9.
95 2 Truman, Memoirs 352 (1956).
96 New York Times, Aug. 29, 1950.
97 N. Y. Times, Aug. 31, 1950; Ibid., Sept. 1, 1950. The President’s statement was welcomed by the Indian Ambassador to China and by Foreign Minister Pearson of Canada. Panikkar, In Two Chinas 106 (1955) ; Canada, Department of External Affairs, Documents on the Korean Crisis 13 (1951).
98 23 Dept. of State Bulletin 463 (1950).
99 After the Chinese had intervened in Korea, the Administration’s attitude hardened, until finally, at the Senate Hearings of May-June, 1951, Acheson was forced to declare flatly that the United States would not consider surrender of Formosa to Communist China under any circumstances. Hearings, Military Situation in the Far East 1729, 1755, 1759, 2003, 2026-2028, 2101.
100 This produced an attempt by the Nationalist Chinese delegate in the Security Council, who insisted that a matter of substance was involved, to exercise a double veto. The United States and the Soviet Union both supported the ruling of the President of the Council that the question “whether [the Security Council] regards the vote taken. this morning as procedural” was not vetoable. Security Council, Official Records, 507th Meeting, Sept. 29, 1950.
101 General Assembly, 5th Sess., Official Records, Plenary Meetings, p. 133 (Sept. 27, 1950).
102 Ibid., 1st Committee, p. 389 (Nov. 27, 1950). He cited statements by General MacArthur and U. S. Senators as evidence that the American purpose was to keep Formosa as a U. S. base.
103 530th Meeting, Nov. 30, 1950 (India did not participate in the voting).
104 New York Times, Nov. 17, 1959. Herter’s phrase suggests a possibly useful analogy. International law is comparable, not so much to national legal systems as to a set of customary ground rules and private agreements affecting relationships between a group of families living outside of organized government on some wild frontier. The wise head of a family, wanting to live in peace under such conditions, pays serious attention to the ground rules and to the fulfillment of his agreements with his neighbors. This is not to say that he might not encounter individuals intent on overstepping the rules who would have to be met with force. Preservation of the rules and of faith in agreements would nevertheless be an important factor in determining his actions. Why should not the statesman have in mind similar principles of national interest?
105 Space is insufficient to permit adequate discussion of the degree of attention given to the Charter requirements in making this decision. It may be noted, however, that the decision to continue the advance was made in Washington rather than at the U.N., and this before the adoption of the General Assembly’s resolution of Oct. 7, 1950, which laid plans for holding elections under U.N. auspices in all Korea. Warnings from, the Chinese Communists that they would intervene if U.N. forces crossed the 38th parallel were dismissed as a bluff. The military occupation of North Korea was assumed rather than decided in the resolution of October 7. In formulating the resolution the General Assembly had before it only the question of adopting a new political program for Korea. Neither the General Assembly nor the Security Council was ever asked to authorize the military occupation of North Korea. The most that can be said is that the vote on Oct. 7 indicated that the majority of the Members did not disapprove of the United States’ intention to carry the campaign to the North. See Goodrich, Korea: A Study of U. S. Policy in the United Nations, Ch. VI and Appendix, pp. 223-226 (1956) ; cf. book review by Leo Gross, 52 A.J.I.L. 163-166 (1958).
106 Each of the following instances deserves serious study with respect to the consideration given to the legal factor:
A. The question of intervention in Indochina. In April, 1954, when the French in Indochina were being hard pressed by the Communist-led Vict Minh forces, Secretary of State Dulles sought unsuccessfully to secure British agreement to an American-British military intervention to aid the French. It was apparently planned to bring the situation to the U.N. only after the war had been thus “internationalized.” 1954 United States in World Affairs 220-225; 2 Eden, Memoirs 106-119 (1960).
B. The Guatemalan case. Two months after the Indochina crisis, Washington apparently contributed arms and encouragement to the Castillo-Armas force which invaded Guatemala from Honduras. It successfully prevented a hearing for Guatemala in the Security Council. 1954 United States in World Affairs 380-387; American Assembly, The United States and Latin America 161-167 (1959).
C. Treaty with Chiang Kai-shek. On Dec. 2, 1954, the United States entered into a Mutual Defense Treaty with the Republic of China which, while referring to Formosa as territory of the latter, bound the United States to come to the aid of the Nationalists if they should be attacked in that territory by the Communist Chinese. While this raised serious questions of compatibility with the Charter’s Art. 2, par. 4, the treaty went on to protest the signatories’ “faith in the purposes and principles of the Charter of the United Nations,” declared that it was not to be interpreted as affecting their rights and obligations under the Charter, and reaffirmed their undertaking to refrain from the use of force in any manner inconsistent with the purposes of the United Nations. 31 Dept. of State Bulletin 899 (1954). Chiang was “re-leashed” at this time.
D. Incidents concerning the Chinese “offshore islands.” At the end of 1954, the Chinese Communists began their assaults on these islands which still remained in possession of the Nationalists. As distinguished from Formosa, the offshore islands had always been Chinese territory. Nevertheless, in January, 1955, the President obtained from Congress authority to use U. S. forces in defense of these Nationalist possessions if he considered such a course necessary to assure the defense of Formosa. 32 Dept. of State Bulletin 211-213 (1955). American intentions were kept purposely ambiguous in 1955, but in 1958 the United States announced that it would defend the offshore islands. Secretary Dulles declared that any attempt by the Chinese Communists to seize them “would be a crude violation of the principles upon which world order is based.” Former Secretary Acheson responded: “The principles on which world order is based (whatever they may be) are not involved at all. Two Chinese forces are contending over Chinese coastal islands which quite obviously have much more effect on the security of the mainland . . . than upon that of Formosa.” 38 Foreign Policy Bulletin 20, 21 (1958).
E. Intervention in Lebanon. In 1958 the United States intervened during revolutionary disturbances in Lebanon, sending troops there at the request of the Lebanese Government, but without United Nations authorization, despite the fact that the charge of assistance to the rebels by the United Arab Republic had been brought before the Security Council and a U.N. Observation Group had been sent to Lebanon to ensure against such assistance. 1958 Yearbook of the United Nations 36-51.
F. The Suez Crisis. Although the United States recoiled from the use of force by its Allies in the Suez Crisis of 1956 and in that instance, as in Korea, acted in support of the law of the Charter, the other incidents referred to above suggest that a key to the American attitude may have been the fact that the conflict involved colonialism rather than Communism. It also seems that statements of Secretary Dulles and other American officials in the months following nationalization of the Suez Canal led the British to believe that the United States did not rule out the use of force against Nasser “as a last resort.” See 2 Eden, Memoirs 476, 484, 486-488, 497-498, 561; but cf. 517-518 (1960).
The crisis in the relations of the United States and Cuba, still developing at the time of this writing, evidently raises these issues anew.
107 The assurances to the public that all actions taken to meet the Korean attack were “under the aegis of the United Nations,” without specifically distinguishing the Formosa action, were actually misleading.
108 See Gross, , “Operation of the Legal Adviser’s Office,” 43 A.J.I.L. 122 (1949)Google Scholar. This dichotomy corresponds to that in the rôle of the state in international law. The state is, in most instances and as far as concerns its own actions, the final judge of what the law is. It is also, before the bar of the United Nations and world opinion, an advocate for national and group interests. These rôles are frequently confused—witness the common assumption that actions of the United States are always in accordance with international law and that all legal statements by the Secretary of State are equally reliable indices of what the law is.
