Table of Contents

Introduction ........................................................................................................... 2
Background ........................................................................................................... 3
The Geneva Agreements of 1954 ...................................................................... 4
The dilemma ......................................................................................................... 5
Aftermath .............................................................................................................. 8
The Paris Agreement of 27 January 1973 ......................................................... 9
Analysis ............................................................................................................... 10
Conclusion .......................................................................................................... 11
Bibliography........................................................................................................ 12

1
 Introduction
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.1

With the end of the World War II, the capitalist U.S.A and the communist U.S.S.R started
competing for global domination of their respective ideology. For that purpose U.S.A chose
Vietnam as the ground to stop the spread of Communism. This put the International Law at a
huge stress to accommodate the concepts such as self-determination and collective action
against a belligerent.

The Vietnam War was a dramatic and radical challenge to the realist consensus on how the
world works, continuing a pattern already evident in nationalist victories in several earlier
colonial wars, which were won – against expectations – by anti-colonial forces.

The legal aspects of the Vietnam War explores various crimes committed by the United States
against North Vietnam: war of aggression; war crimes in bombing civilian targets such as
schools and hospitals and using napalm, cluster bombs, and Agent Orange; crimes against
humanity in moving large parts of the population to so-called strategic hamlets; and alleged
genocide and ecocide2.

Until the military victory in the First Gulf War of 1991, the policy community in the United
States bemoaned what it described as “the Vietnam Syndrome,” which was a shorthand
designation for the supposedly unfortunate antipathy among the American citizenry to uses of
hard power by the United States to uphold American geopolitical primacy throughout the
world. The quick and decisive desert victory against the imprudently exposed Iraqi armed
forces massed on the desert frontier compelled Iraq to withdraw from Kuwait, which it had
recently conquered and annexed. This result of war making was construed to vindicate and thus
‘restored realist confidence in American war making as a crucial instrument of world order’.
On closer examination, this enthusiasm for war generated by the almost costless victory in the
desert terrain of the First Gulf War involved a category mistake on the part of American leaders,
or so it seems. It confused the continuing relevance of military capabilities in conventional war
encounters between sovereign states with the declining utility of military supremacy in wars of
intervention or counterinsurgency wars, that is, violent conflicts between a foreign adversary

1
Charter of the United Nations Chapter I: Purposes and Principles, Article 2(4), 26 June 1945
2
Major General George S. Prugh.(1975). Law At War: Vietnam (1964-1973). Washington, D.C: Department of
The Army Washington, D.C.

2
and a national resistance movement. “It should have been clear to expert commentators that
the Vietnam War was an example of a massive foreign intervention being defeated by a
skillfully mobilized and efficiently led national movement, and in this respect totally different
from the First Gulf War with respect to terrain of battle and what was at stake politically for
the two sides.”3

Background
Nguyen Ai Quoc, alias Ho Chi Minh, was born in 1890 in Nghe An and spent most of his
youth abroad. In France, he was very much influenced by international communism, especially
the Soviet model. Ho Chi Minh founded the Viet Minh (Vietnam Independence League) in
1940. The Viet Minh tried to unite different nationalist groups towards its goal of liberation
from France. It formed guerrilla groups4 and underground organizations in Tonkin. During the
Japanese occupation (1940–1945), the French were forced to retreat. The Viet Minh took
advantage of the absence of the colonial authority to expand its influence in the country, at first
in the north, and three provinces of Tonkin were occupied by the Viet Minh during this period.
In 1945, Ho Chi Minh declared Vietnam’s independence and the establishment of the
Democratic Republic of Vietnam. The first Constitution was enacted in 19465.

After the capitulation of Japan in 1945, French authorities returned to Vietnam once again.
Ho Chi Minh tried to negotiate with France and also to seek recognition from the United States
of America (‘US’), but both countries rejected his pleas. Guerrilla warfare and open battlefields
marked the First Indochina War (1946–1954). With help from the communist bloc, China, and
the Soviet Union, the Viet Minh forces, led by General Vo Nguyen Giap, gradually gained
ground. The defeat of French troops at the battle of Dien Bien Phu ended the French-Viet Minh
war in 19546.

3
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.
4
Guerrilla warfare is a form of irregular warfare in which a small group of combatants, such
as paramilitary personnel, armed civilians, or irregulars, use military
tactics including ambushes, sabotage, raids, petty warfare, hit-and-run tactics, and mobility to fight a larger and
less-mobile traditional military.
5
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.
6
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.

3
 The Geneva Agreements of 1954

After the disaster of Dien Bien Phu, an international conference to discuss Indochinese issues
took place in Geneva7. The conference was attended by the US, Great Britain, China, the Soviet
Union, France, and Vietnam, the Viet Minh and representatives of King Bao Dai, the last king
of the Nguyen dynasty. Political questions concerning Cambodia and Laos were also put on
the agenda. ‘The Agreement on the Cessation of Hostilities in Viet-Nam’ (‘Geneva Accords’)
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 was signed on 20 July 1954 by all parties. The
Final Declaration of the Geneva Conference of 21 July 1954 was also signed by all except the
US and South Vietnam (representatives of King Bao Dai) on the following day.

The Final Declaration of the Geneva Conference aimed at the full recognition of the two
independent States in Vietnam: North Vietnam (the Democratic Republic of Vietnam) and
South Vietnam (later the Republic of Vietnam). The unification of the two parts was planned
to take place in 1956 through a general election. The US and South Vietnam did not accept this
political settlement8.

The Democratic Republic of Vietnam and the Republic of Vietnam quickly claimed
sovereignty of their own territory and were recognized by other States from their respective
ideological blocs. The general election foreseen by the Final Declaration of the Geneva
Conference in 1956 did not take place. The 17th parallel served as the de facto frontier between
the two parts, and the Second Indochina War began with North and South Vietnam accusing
each other of military violations in their respective territories.

7
The Geneva Accords set up a military demarcation line at the 17th parallel and a five km demilitarized zone on
either side of the demarcation line. All hostile forces had to retreat behind this line within three hundred days of
the date of entry into force of the agreement. An international commission, with Canada, India, and Poland as
members, was to supervise fulfilment of the terms of the agreement.
8
David P. Forsythe. (2006). The United States and International Humanitarian Law. Cambridge, UK :
Cambridge University Press.

4
 The dilemma
The focus of American attention on Southeast Asia and its involvement in the region, especially
in Vietnam, began after World War II. Initially, it was motivated by a combination of interest
in the natural resources of the country, a desire to prevent the domination of China and the
Soviets in the region and support for the national movement in its fight to gain independence
from colonial power, ie from France. Later, in the light of the Cold War, the interest of the US
shifted towards a worldwide policy of containment and counter-insurgency against
communism9. President Truman and subsequent presidents of the US supported South Vietnam
in order to prevent the expansion of subversive insurgency of communism in Southeast Asia.

The American claims with respect to its presence in Vietnam were essentially ideological and
geopolitical: the importance of avoiding the spread of communism and thus containing the
expansionist challenge being allegedly mounted by the Soviet Union and China. In opposition
to such reasoning were the historically more influential claims in support of nationalism and
the right of self-determination, especially in contexts involving struggles of a colonized people
against their colonial masters10.

Most fundamentally, governmental geopolitical calculations relating to world order continue

to be based on attributing a decisive causal influence to relative military capabilities, an
understanding at the core of “realist” thinking and behaviour. Within this paradigm, military
superiority is regarded as the main driver of conflict resolution, and the winners in wars are
thought to reflect the advantages of hard-power differentials11.

We can also interpret this historical turn as reflecting the disparities between the political will
of a people fighting for self-determination and a foreign government linked to private-sector
interests that are trying to retain the benefits of control over a distant country for the sake of
resources, prestige, settler pressures, geopolitical rivalry, or a combination of these factors12.

The US government justified its involvement and participation in the war in South Vietnam
using the principle of collective self-defence under Art. 51 Charter of the United Nations13 . In
addition to this, the US, as a member of the Southeast Asia Treaty Organization, defended

9
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.
10
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.
11
Ibid.
12
David P. Forsythe. (2006). The United States and International Humanitarian Law. Cambridge, UK :
Cambridge University Press.
13
(‘UN Charter’; Self-Defence, Collective security).

5
South Vietnam against North Vietnam. Because South Vietnam was subjected to ‘armed
attack’ by communist North Vietnam, the US, as ally of South Vietnam and at its request,
claimed to be engaged in collective self-defence.

In the Protocol to the Southeast Asia Collective Defense Treaty14(in which Pakistan was also
a member), the parties unanimously agreed that the States of Cambodia and Laos, as well as
‘the free territory under the jurisdiction of the State of Vietnam’ (ie South Vietnam), were to
be included in the territory to be defended under the treaty15.

Most difficult however, was to determine applicable international law, for much depended
upon the legal characterization of the conflict and the American role in it. The traditional tests
of internal conflict in contrast to an international conflict were clearly too imprecise in this
situation where the country of Vietnam had been divided, purportedly temporarily, by the
Geneva Accords of 1954, and both portions of the country claimed sovereignty and had
received some supporting recognition16. There were aspects of a civil war within South
Vietnam and equally valid aspects of invasion by regular troops from North Vietnam; Free
World forces were present at the invitation of the government, asserting the sovereignty of
South Vietnam17. The South Vietnamese government considered itself to be the successor to
the French colonial power. Bao Dai, the last king of the Nguyen dynasty, guaranteed the
continuation of French power until his abdication in 1954, when the Republic of Vietnam was
established. South Vietnam did not sign the Final Declaration of the Geneva Conference, in
which it was agreed that a general election should be held in 1956. Regarding itself as a
sovereign State being attacked by North Vietnam, South Vietnam asked for US military support
to fight against external aggression (ie North Vietnam), as well as to enable internal
suppression of the National Liberation Front (‘NLF’). Attacks on the Free World forces were
made by "indigenous" Viet Cong and "foreign" North Vietnamese troops; the line between
civilian terrorists and the military insurgents was so blurred as to be indistinguishable; and
almost all of the traditional measures -uniform, organization, carrying of arms openly-failed to
identify the combatants18.

14
A treaty is an official, express written agreement that states use to legally bind themselves.
15
Southeast Asia Collective Defense Treaty of 8 September 1954, which entered into force regarding the US on
19 February 1955, aimed at responding to the threat of the expansion of communism in Southeast Asia.
16
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.
17
Major General George S. Prugh.(1975). Law At War: Vietnam (1964-1973). Washington, D.C: Department of
The Army Washington, D.C.
18
Idib.

6
From the beginning, North Vietnam considered the NLF to be a genuine representative of the
people in South Vietnam and gave it its support. In contrast, the South Vietnamese government,
as well as the US, considered the NLF to be an insurgent movement against a constituted
government and believed that it should be suppressed so that order could be restored in South
Vietnam19. The massive support by North Vietnam in terms of troops and arms violated the
Geneva Accords. China and the Soviets recognized the NLF as a belligerent movement in
South Vietnam and claimed that it should therefore be given assistance.

However, for the north, the Democratic Republic of Vietnam, proclaimed in 1945, was
recognized as a ‘free state’ based on the self-determination20 principle. Based on this
presumption, Vietnam was one single State under the leadership of Ho Chi Minh. King Bao
Dai and the South Vietnamese government had succeeded France in its obligations to fulfil the
agreements established by the Geneva Accords. Accordingly, by not implementing the
provisions regarding the general elections in 1956 and by accepting the military support of the
US, South Vietnam had violated the ceasefire agreements of the Geneva Accords and the US
had violated general international law and the UN Charter. In this light, the military conflict
between North and South Vietnam should then be considered as an internal conflict within the
domestic jurisdiction of Vietnam. The same reasoning also justified North Vietnam’s military
support of the NLF, which acted as a belligerent force in South Vietnam.

19
Kissinger, Henry. (1994). Diplomacy. New York : Simon & Schuster.
20
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.

7
 Aftermath
In the 1960s, as the numbers of US troops increased and ground operations in South Vietnam
faced difficulties as a result of the guerrilla tactics of the Viet Cong, the US Army first
employed the ‘Rome plow’, a huge tractor with big blades designed to clear acres of land.
Chemical herbicide bombs—the so-called Agent Orange, Agent White, and Agent Blue
depending on the colour resulting from their explosions—defoliated forests and crops to protect
US and allied ground troops during their operations. These ecocidal weapons of mass
destruction caused enormous damage in South Vietnam, not only during the war itself but also
up to the present day. The lasting effects include contamination of the soil and ground water
and various serious diseases and birth defects21.

The world was made aware of the visible consequences of environmental destruction through
the widespread media presence in Vietnam both during and after the war. Ever since, there
have been continuous efforts on the part of the international community to maintain a healthy
environment even in wartime and to make States responsible for the environmental destruction
they cause. This has led to the United Nations Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques (ENMOD)22 and
the Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction23.

The war in Vietnam was the subject of a highly controversial discussion among international
law scholars around the world, especially in the US. The legal position of the US, based on the
principle of collective self-defence under Art. 51 UN Charter and the US obligations under
the Southeast Asia Collective Defense Treaty, was questioned.

With reference to the Geneva Accords, the question was also raised as to whether North
Vietnam and South Vietnam should be considered as two separate States or rather as two parts
of one single State awaiting a political solution. Once the position of two separate States had
been taken with regard to ius in bello, the question was then raised as to whether the violations
by North Vietnam in the South should have been regarded as an ‘armed attack’ by a sovereign
State, which called for the engagement of the US. Under the contrary position, it was instead
seen as an ‘internal conflict’ within one single State. The role of the NLF was also the subject

21
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.
22
((Adopted 10 December 1976, entered into force 5 October 1978) 1108 UNTS 151)
23
((Opened for signature 13 January 1993, entered into force 29 April 1997) 1974 UNTS 45).

8
of a lengthy discussion regarding its status as a ‘belligerent’ or an ‘insurgent’ force. There the
question was whether the bombing of North Vietnam in 1965 as a reprisal for the incidents of
the Gulf of Tonkin and the attacks on the US bases in South Vietnam violated the rule
of proportionality24 in the customary law of self-defence.

The Paris Agreement of 27 January 1973

While peace talks were being held in Paris, the war went on. Bombardments continued in North
Vietnam, in the South and over the Ho Chi Minh Trails in Cambodia and Laos—major supply
roads for Hanoi’s armed forces operating in South Vietnam. Due to the pressure at home, the
US made major concessions to the NLF/North Vietnamese side25. The South Vietnamese
government kept rejecting the peace proposals. The Paris Agreement, after long debates and
negotiations that were accompanied by heavy bombardments, was finally arrived at on 27
January 1973. It was signed by the US and the government of the Republic of Vietnam (South
Vietnam) on the one side, and the government of the Democratic Republic of Vietnam (North
Vietnam) and the Provisional Revolutionary Government of South Vietnam (the new name of
the NLF) on the other.

The 1973 Paris Agreement provided for an immediate ceasefire and withdrawal of all combat
troops. The South Vietnamese people were given the right of self-determination under
international supervision. The reunification of the two Vietnams was planned to take place
according to the Geneva Accords of 1954. A Four-Party Joint Military Commission enforced
the ceasefire and the withdrawal of all troops. A Two-Party Joint Military Commission
supervised the ceasefire in South Vietnam26. These two commissions, which were constituted
immediately after the signing of the Paris Agreement, were controlled by the International
Commission of Control and Supervision. Canada, Hungary, Indonesia, and Poland were the
members of these commissions.

The Paris Agreement called for an international conference to guarantee the outcome of the
treaty within thirty days. Members of this international conference consisted of China, France,
the Soviet Union, the United Kingdom, and the four parties to the Paris Agreement.

24
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.
25
Major General George S. Prugh. (1975). Law At War: Vietnam (1964-1973). Washington, D.C: Department
of The Army Washington, D.C.
26
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.

9
 Analysis
The United States has continued to pursue a dubious diplomacy punctuated by military
interventions in distant countries27, fighting a series of losing counterinsurgency wars after
Vietnam, remaining unresponsive to the constraints on recourse to war and war fighting
embodied in international law and the UN Charter. The realist consensus, regarding law and
morality as dispensable and marginal impediments to sustaining geopolitical effectiveness in
world politics, continues to govern the policymaking entourage that shapes war/peace
decisions, and has produced a string of costly defeats (especially, Afghanistan and Iraq) as well
as badly damaging the United States’ reputation as a global leader, which in the end depends
far more on its legitimacy credentials than on its battlefield prowess, but suffers most when it
both loses on the battlefield and should further lose if law and morality are taken into account.

“I was struck by the degree to which the geopolitical status of the United States marginalized
the United Nations and limited the relevance of international law to a domestic debate within
the United States between the government and its critics in Congress and throughout American
society”- Richard Falk in his book ‘Revisiting the Vietnam War and Interantional Law’.

In the Second Indochina War (1954–1975), the United Nations (UN) played a marginal role.
Unlike in World War II, when all great powers acted together to restore peace,
the peacekeeping potential of the UN was based only on the voluntary contributions of its
Member States, especially the five permanent members of the UN Security Council. Following
the Geneva Accords in 1954, the Soviet Union called for the simultaneous admission of North
Vietnam and South Vietnam as members, but this proposition could not be realized.

Whether articulated as the rise of “soft power” or explained by reference to the imbalance
between imperial commitments and nationalist perseverance plus local knowledge, the
storyline is the same28. The intervening foreign or alien power has lower stakes in such
struggles than does an indigenous population effectively mobilized as a movement of national
resistance29. Colonial powers were slow to recognize that moral and political resistance to their
presence was growing more formidable as the ideology of nationalism spread around the world.
Resistance became more credible and withstood a series of prodigious colonial efforts to retain

27
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.
28
Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-1975. Boston: McGraw-
Hill.
29
Richard Falk. (1969). The Vietnam War and International Law volumes 1–4. Princeton: Princeton University
Press.

10
control over colonized peoples, and mostly decided that it was better to give up their colonial
claims and withdraw militarily than further commit to what had become a lost cause30.

Conclusion
The lesson that most needed to be learned in the Vietnam era, and remains unlearned forty
years after the ending of war, is the practical and principled desirability of adherence to
international law in war/peace situations. Systemic violations of international law lead to
geopolitical disappointment, human suffering, societal devastation, and a nihilistic atmosphere
of international lawlessness. In contrast, habits and policies of adherence to international law,
especially with respect to war/peace issues and matters of national and global security,
privilege an emphasis on diplomacy, international cooperation, law enforcement, and UN
authority, as well as generating the self-confidence of political communities to be respectful of
prudent restraint and develop greater reliance in pursuit of national goals on international
procedures, norms, and institutions. Such a shift away from lawlessness is, of course, by no
means a guaranty of peace and justice, but it provides the crucial foundation for creating better
prospects for human wellbeing in the twenty-first century.

The international law debates that took place during the Vietnam War remains critically
relevant to any reform of American foreign policy relating to these war/peace issues. As in
Vietnam, adherence to international law would have been consistently beneficial normatively
(upholding law, protecting the vulnerable, avoiding casualties), geopolitically (respecting
support for the ethos of self-determination and human rights as evidenced by the low of history
since 1945), and ideologically (recognizing that “terrorism” is a law enforcement issue, not an
occasion for war making; realizing that nationalist ideology does not translate into neighbours
becoming “falling dominos”).

30
Kissinger, Henry. (1994). Diplomacy. New York : Simon & Schuster.

11
 Bibliography
 Richard Falk. (1969). The Vietnam War and International Law volumes 1–4.
Princeton: Prinston University Press.

 Herring, G. C. (2002). America's longest war: The United States and Vietnam, 1950-
1975. Boston: McGraw-Hill.
 Major General George S. Prugh.(1975). Law At War: Vietnam (1964-1973).
Washington, D.C: Department of The Army Washington, D.C.
 Kissinger, Henry. (1994). Diplomacy. New York : Simon & Schuster.
 David P. Forsythe. (2006). The United States and International Humanitarian Law.
Cambridge, UK : Cambridge University Press,

12