396.1 GE/7–2754

Memorandum by the Legal Adviser (Phleger) to the Secretary of State1

secret

Subject:

  • Geneva Armistice Agreement Restrictions on Cambodia, Laos, and Vietnam

This memorandum is designed to give an analysis2 of the restrictions placed on Cambodia, Laos, and Vietnam in the Armistice Agreements and Declarations made at the recent Geneva Conference.3 This analysis is based on the instruments executed at the Conference, and must necessarily be regarded as tentative because much depends on the views which will be taken of those instruments by France and the Associated States, by other Conference members, and by the international commissions to be established under the Armistice Agreements. The memorandum will consider, in turn, a number of different respects in which restrictions are imposed, and under each heading will deal with the status of Cambodia, then of Laos, and then of Vietnam.

1. Membership in collective security arrangement

(a)

Cambodia would be permitted to participate as a member of a Southeast Asia collective security arrangement. Article 7 of the Armistice Agreement with Cambodia provides, in part:

“In accordance with the Declaration made by the Delegation of Cambodia at 2400 hours on 20 July 1954 at the Geneva Conference of [Page 1553] Foreign Ministers: ‘The Royal Government of Cambodia will not join in any agreement with other States, if this agreement carries for Cambodia the obligation to enter into a military alliance not in conformity with the principles of the Charter of the United Nations or with the principles of the Agreements on the cessation of hostilities, …”’

Assuming that a Southeast Asia collective security arrangement would constitute a “military alliance” within the meaning of Article 7, such an arrangement would not be precluded by the provisions just quoted. A Southeast Asia collective security agreement would be “in conformity with the principles of the Charter of the United Nations”. Similarly, such an arrangement would be compatible “with the principles of the Agreements on the cessation of hostilities”. There is nothing in the Armistice Agreement with Cambodia which would make Cambodia’s membership in the arrangement inconsistent, nor would it seem that such membership would be inconsistent with the “principles” of the Armistice Agreements relating to Laos and Vietnam; it is possible that the Conference text of Article 7 in the Cambodian Agreement contains a typographical error in giving “Agreements” as plural.

The international commission provided for in the Armistice Agreement with Cambodia—composed of Canada, India, and Poland—might be called upon to express its view whether a Southeast Asia collective security arrangement conformed to the principles of the United Nations and of the Indochina Armistice Agreements. Articles 19, 20 and 21 of the Cambodian Agreement contain the following provisions:

Article 19.

“When the Joint Commission is unable to reach agreement on the interpretation of a provision or on the appraisal of a fact, the International Commission shall be informed of the disputed question. Its recommendations shall be sent directly to the parties and shall be notified to the Joint Commission.

Article 20.

“The recommendations of the International Commission shall be adopted by a majority vote, subject to the provisions of article 21. If the votes are equally divided, the Chairman’s vote shall be decisive.

“The International Commission may make recommendations concerning amendments and additions which should be made to the provisions of the Agreement on the cessation of hostilities in Cambodia, in order to ensure more effective execution of the said Agreement. These recommendations shall be adopted unanimously.

Article 21.

“On questions concerning violations, or threats of violations, which might lead to a resumption of hostilities, and in particular,

(a)
refusal by foreign armed forces to effect the movements provided for in the withdrawal plan,
(b)
violation or threat of violation of the country’s integrity by foreign armed forces,

the decisions of the International Commission must be unanimous.”

It is not clear whether the cases enumerated in subparagraphs (a) and (b) of Article 21 are exclusive, since they are introduced by the words “and in particular”. In the Armistice Agreement with Vietnam, the expression “namely” is used instead of these words. It may or may not have been intended that the cases referred to in (a) and (b) would be exclusive for all three Armistice Agreements. In any event, it would seem that a recommendation of the international commission concerning Cambodian membership in a Southeast Asia collective security arrangement should be considered subject to majority voting rather than unanimity under Article 21 of the Armistice Agreement.

Consideration by the international commission of problems under the Armistice Agreement could only result in recommendations by the commission. The Parties to the Armistice Agreement have not bound themselves to accept any such recommendations. Article 22 of the Agreement provides, in part:

“If one of the Parties refuses to put a recommendation of the International Commission into effect, the Parties concerned or the Commission itself shall inform the members of the Geneva Conference.

“If the International Commission does not reach unanimity in the cases provided for in Article 21, it shall transmit a majority report and one or more minority reports to members of the Conference.”

(b)

Laos would be permitted to participate as a member of a Southeast Asia collective security arrangement. The Armistice Agreement with Laos contains no provision prohibiting such membership, and no provision comparable to Article 7 of the Cambodian Agreement. Laos, however, made a Declaration on July 21, 1954, containing the following statement:

“The Royal Government of Laos will never join in any agreement with other States if this agreement includes the obligation for the Royal Government of Laos to participate in a military alliance not in conformity with the principles of the Charter of the United Nations or with the principles of the Agreement on the cessation of hostilities …”

Membership by Laos in a Southeast Asia collective security arrangement would not be inconsistent with this Declaration.

This Declaration is noted in paragraph 5 of the Final Declaration of the Geneva Coherence. However, since the terms of the Declaration are not incorporated in the Armistice Agreement with Laos, it would seem that the international commission established under the Agreement [Page 1555] would not be called upon to express a view as to whether or not Laotian membership in a collective security arrangement was in conformity with the principles of the United Nations and of the Laotian Armistice Agreement.

(c)
The zone of Vietnam south of the demarcation line would, apparently, be precluded from membership in a Southeast Asia collective security arrangement. Article 19 of the Armistice Agreement with Vietnam provides, in part:

“The two Parties shall ensure that the zones assigned to them do not adhere to any military alliance and are not used for the resumption of hostilities or to further an aggressive policy.”

An argument might be made that the projected Southeast Asia collective security arrangement would not be a “military alliance” since it would be entirely defensive in character and would not commit the Parties to come to the assistance of any Party which became involved in an armed conflict regardless of the origin of that conflict. However, as a practical matter, such a narrow and now perhaps obsolete definition of the term “military alliance” would be difficult to sustain. It seems not unlikely that the Parties to the Armistice Agreement covering Vietnam understood the term as including a defensive treaty like the proposed Southeast Asia collective security arrangement.

2. Other coverage by collective security arrangement

(a)
If Cambodia were not itself a Party to a Southeast Asia collective security arrangement, Cambodia could, consistently with its Armistice Agreement, be protected by the undertakings of Parties to such an arrangement to defend Cambodia against attack. This follows a fortiori from the conclusion that Cambodia could be a member of a Southeast Asia collective security arrangement. There is nothing in the Cambodian Armistice Agreement to prohibit defensive treaty guaranties by other powers in favor of Cambodia. It seems clear that Cambodia could at any time request or consent to the protection afforded by such guaranties.
(b)
Laos, similarly, could be protected by a collective security arrangement to which it was not a Party.
(c)
While the two zones of Vietnam are precluded by Article 19 of the Vietnamese Agreement from adhering “to any military alliance”, either zone, presumably, could be protected against attack by a defensive security treaty concluded among other powers. The Armistice Agreement covering Vietnam contains no provision prohibiting such protection of the two zones. Because of the provisions in Article 19 quoted above, it is problematical whether retained Vietnam could request [Page 1556] or consent to the extension of SEATO protection prior to actual military attack. Its giving of consent or making a request in advance might be considered as a degree of participation which constituted adherence to a military alliance.

3. Bases

(a)

Article 7 of the Armistice Agreement with Cambodia, in incorporating the Cambodian Declaration at the Geneva Conference, contains the following provision:

“‘The Royal Government of Cambodia will not join in any agreement with other States, if this agreement carries for Cambodia …, as long as its security is not threatened, the obligation to establish bases on Cambodian territory for the military forces of foreign powers’”.

Under this provision, the United States, in implementing the proposed Southeast Asia collective security arrangement, would not be able to have military bases in Cambodia in the absence of a threat to Cambodia’s security. The international commission provided for in Article 11 of the Cambodian Agreement might be called upon to express its view as to whether such a threat existed. Probably a recommendation on this score by the international commission would be through majority vote.

It is not clear whether the reference to “foreign powers” in Article 7 includes France. Inferentially, from various indications scattered through the Indochina Armistice Agreements, the term “foreign” would not seem to apply to France. However, in connection with the matter of bases, this issue may be academic because of the provision (Article 4(1)(a)) for the withdrawal of French military forces from Cambodia and the implication that new French combatant units may not be introduced (except perhaps in the event of a threat to Cambodia’s security within the meaning of Article 7). Article 4(1)(a) will be discussed below.

(b)

The Laotian Declaration referred to in paragraph 5 of the Final Declaration of the Geneva Conference contains a provision on foreign military bases which has the same wording as the corresponding portion of Article 7 in the Armistice Agreement with Cambodia. This Declaration by Laos may not have the force of an international commitment, since it is cast as a statement of policy and is not incorporated in the Laotian Armistice Agreement.

Article 7 of the Laotian Agreement provides:

“Upon the entry into force of the present Agreement, the establishment of new military bases is prohibited throughout the territory of Laos.”

[Page 1557]

Article 8 limits France to the maintenance of two bases in Laos. The first paragraph of that Article reads:

“The High Command of the French forces shall maintain in the territory of Laos the personnel required for the maintenance of the two French military establishments, the first at Seno and the second in the Mekong valley, either in the province of Vientiane or downstream from Vientiane.”

While Article 7 does not in terms prohibit the use of any existing Laotian bases by foreign forces such as United States forces, the restrictions placed by Article 6 of the Laotian Agreement on the introduction of military personnel into Laos may render this issue academic in the absence of a threat to Laotian security such as is mentioned in the Laotian Declaration. In the event of such a threat, perhaps both French and foreign military bases could be established on Laotian territory despite the provisions of the Armistice Agreement. The international commission might be called into play here since effectuation of the Laotian Declaration would involve departure from the Armistice terms.

(c)

Article 19 of the Armistice Agreement covering Vietnam provides, in part:

“With effect from the date of entry into force of the present Agreement, no military base under the control of a foreign State may be established in the regrouping zone of either Party;”

This provision would apparently preclude the United States from having a military base in retained Vietnam. It would not seem to preclude France from maintaining military bases in the zone south of the demarcation line. Article 18, however, provides:

“With effect from the date of entry into force of the present Agreement, the establishment of new military bases is prohibited throughout Viet-Nam territory.”

4. Local forces

There are no provisions in the Armistice Agreements covering Cambodia, Laos, and Vietnam prohibiting or limiting the numbers or types of local armed forces which Cambodia, Laos, and retained Vietnam may keep or create.

5. French forces

(a)

Paragraph (1) of Article 4 of the Armistice Agreement with Cambodia provides, in part:

“The withdrawal outside the territory of Cambodia shall apply to: (a) the armed forces and military combatant personnel of the French Union”.

[Page 1558]

It might be inferred from this provision that, when the relatively small number of French forces now in Cambodia have been withdrawn, other such French personnel could not be introduced—except, presumably, to man bases which might be established under Article 7 in the event of a threat to Cambodia’s security. In any event, it could be argued that Article 4(1)(a) means simply that French fighting units must be withdrawn during the withdrawal period; and that despatch of a French military advisory mission would not be prohibited by the Cambodian Agreement.

(b)

The Armistice Agreement with Laos appears to place a numerical ceiling on the number of French military personnel who may be in Laos. Article 6 provides:

“With effect from the proclamation of the cease-fire the introduction into Laos of any reinforcements of troops or military personnel from outside Laotian territory is prohibited.

“Nevertheless, the French High Command may leave a specified number of French military personnel required for the training of the Laotian National Army in the territory of Laos; the strength of such personnel shall not exceed one thousand five hundred (1,500) officers and non-commissioned officers.”

Article 8 provides:

“The High Command of the French forces shall maintain in the territory of Laos the personnel required for the maintenance of the two French military establishments, the first at Seno and the second in the Mekong valley, either in the province of Vientiane or downstream from Vientiane.

“The effectives maintained in these military establishments shall not exceed a total of three thousand five hundred (3,500) men.”

It is possible that French forces over and above these 5,000 could be brought into Laos to man bases established in the event of a threat to Laotian security, if French forces were considered to be foreign forces for purposes of the Laotian Declaration provision relating to bases.

(c)

Additional French military personnel may not be introduced into the Southern zone of Vietnam except through rotation as provided in the Armistice Agreement and through the French withdrawals from the Northern zone. Article 16 of the Vietnamese Armistice Agreement begins with the following general statement:

“With effect from the date of entry into force of the present Agreement, the introduction into Viet-Nam of any troop reinforcements and additional military personnel is prohibited.”

The Article then goes on to make provision for rotation.

(d)

At the Geneva Conference France made the following Declaration, which is referred to in paragraph 10 of the Final Declaration of the Conference:

“The Government of the French Republic declares that it is ready to withdraw its troops from the territory of Cambodia, Laos and VietNam, at the request of the Governments concerned and within a period which shall be fixed by agreement between the parties, except in the cases where, by agreement between the two parties, a certain number of French troops shall remain at specified points and for a specified time.”

This statement of policy constitutes an additional element to be considered in assessing the position of France in regard to the stationing of troops in Indochina.

6. Foreign forces

(a)

Article 7 of the Armistice Agreement with Cambodia incorporates the following provision contained in a Declaration by the Government of Cambodia:

“During the period which will elapse between the date of the cessation of hostilities in Viet-Nam and that of the final settlement of political problems in this country, the Royal Government of Cambodia will not solicit foreign aid in war material, personnel or instructors except for the purpose of the effective defense of the territory.”

The international commission might be called upon to express its view as to whether foreign aid in the form of a military advisory mission or other military personnel were “for the purpose of the effective defense of the territory”. Presumably, if foreign military bases were established on Cambodian territory in the event of a threat to Cambodia’s security (Article 7), such bases could be manned by foreign forces.

(b)

Laos appears to be prohibited from the introduction of any additional military personnel from outside the country, except for specified numbers of French personnel. These restrictions are contained in Articles 6 and 8 of the Armistice Agreement with Laos, quoted above.

At the Geneva Conference Laos made a Declaration containing the following statement (referred to in paragraph 4 of the Final Declaration):

“During the period between the cessation of hostilities in Viet-Nam and the final settlement of that country’s political problems, the Royal Government of Laos will not request foreign aid, whether in war material, in personnel or in instructors, except for the purpose of its effective territorial defense and to the extent defined by the Agreement on the cessation of hostilities.”

[Page 1560]

Under the terms of this Declaration, the ability of Laos to secure foreign aid in the form of a military mission or other military personnel would seem to be limited to what is allowed by Articles 6 and 8 of the Laotian Armistice Agreement.

In an earlier paragraph of this same Declaration (noted in paragraph 5 of the Final Declaration of the Geneva Conference), Laos stated that it would “never join in an agreement with other States if this agreement includes the obligation for the Royal Government of Laos …, unless its security is threatened,… to establish bases on Laotian territory for military forces of foreign powers.” By implication, this statement envisages the possibility of foreign forces being introduced into Laos, despite the provisions of the Armistice Agreement, in the event that Laotian security is threatened. The international commission might be called into play if foreign military forces were introduced into Laos to man bases established in the event of a threat to Laotian security, since such introduction would involve departure from the Armistice terms.

(c)
Article 16 of the Vietnamese Armistice Agreement prohibits the introduction “of any troop reinforcements and additional military personnel”. This would apparently preclude the assignment of new United States Air Force technicians or military advisory group personnel, except in rotation for such technicians or personnel who were being replaced. It is understood that approximately 100 Air Force mechanics remain in Vietnam, and that the United States military advisory mission to the three Indochinese countries (now concentrated in Vietnam) comprises approximately 200 members of the U.S. armed forces.

7. Armaments from abroad

(a)
Cambodia has agreed, in Article 7 of its Armistice Agreement, not to solicit foreign aid in war material, pending a final political settlement in Vietnam, “except for the purpose of the effective defense of the territory”. Presumably, this provision covers receipt as well as solicitation. The international commission may have a role in determining what imports of armaments are “for the purpose of the effective defense of the territory”.
(b)

Laos has agreed as follows in Article 9 of its Armistice Agreement:

“Upon the entry into force of the present Agreement and in accordance with the declaration made at the Geneva Conference by the Royal Government of Laos on 20 July 1954, the introduction into Laos of armaments, munitions and military equipment of all kinds is prohibited, with the exception of a specified quantity of armaments in categories specified as necessary for the defence of Laos.”

[Page 1561]

There is no indication elsewhere in the Agreement how the quantity and categories referred to are to be specified. Presumably, this is to be done by agreement in the joint commission. If agreement is not reached there, the matter might then be referred to the international commission.

Laos has also stated (in its Declaration noted in paragraph 4 of the Geneva Conference Final Declaration) that the Royal Government of Laos will not request foreign aid “except for the purpose of its effective territorial defense and to the extent defined by the Agreement on the cessation of hostilities”. This provision indicates that it remains subordinate to the effect of Article 9 in the Armistice Agreement. However, if a foreign military base were established on Laotian territory as contemplated by paragraph 2 of the Laotian Declaration (mentioned in paragraph 5 of the Geneva Conference Final Declaration), the forces maintaining such a base would presumably be entitled to import arms and equipment for their use.

(c)
Article 17 of the Armistice Agreement covering Vietnam begins with the following provision:

“With effect from the date of entry into force of the present Agreement, the introduction into Viet-Nam of any reinforcements in the form of all types of arms, munitions and other war material, such as combat aircraft, naval craft, pieces of ordinance, jet engines and jet weapons and armored vehicles, is prohibited.”

Subsequent paragraphs of this Article make provision for a piece-for-piece replacement of material destroyed, damaged, worn out or used up after the cessation of hostilities.

8. Locally produced armaments

Cambodia, Laos and Vietnam are not limited as to the armaments they possess or produce within their territories. The Armistice Agreements covering these countries place no restrictions on economic aid which may be given to them. In fact, it would be possible under the Armistice Agreements to supply Cambodia, Laos and retained Vietnam with machinery and plants to manufacture all kinds of products including war materials.

9. Traffic and commerce between the zones of Vietnam

Traffic of persons and commerce of goods between the Northern and Southern zones of Vietnam is not precluded by the Geneva instruments. Paragraphs 6 and 8 of the Final Declaration of the Geneva Conference state that “the military demarcation line should not in any way be interpreted as constituting a political or territorial boundary”, and “the provisions of the Agreements on the cessation of hostilities [Page 1562] intended to ensure the protection of individuals and of property must be most strictly applied and must, in particular, allow everyone in Viet-Nam to decide freely in which zone he will live.” Article 13 (d) of the Vietnamese Armistice Agreement states:

“From the date of entry into force of the present Agreement until the movement of troops is completed, any civilians residing in a district controlled by one Party who wish to go and live in the zone controlled by the other Party shall be permitted and helped to do so by the authorities in that district.”

Articles 3 and 6 of the Agreement provide for control by the Joint Commission at the demarcation line and in its immediate area. Article 3 provides:

“When the provisional military demarcation line coincides with a waterway, the waters of such waterway shall be open to civil navigation by both parties wherever one bank is controlled by one party and the other bank by the other party. The Joint Commission shall establish rules of navigation for the stretch of waterway in question. The merchant shipping and other civilian craft of each party shall have unrestricted access to the land under its military control.”

Article 6 provides:

“No person, military or civilian, shall be permitted to cross the provisional military demarcation line unless specifically authorized to do so by the Joint Commission.”

The Agreement contains no provisions restricting traffic by air or sea between the two zones.

  1. Drafted by Meeker of L/UNA and approved by Phleger. A handwritten notation on the source text indicates that the Secretary of State saw it.

    A copy of this memorandum in a slightly different form is filed in Conference files, lot 60 D 627, OF 329.

  2. Meeker drafted a briefer analysis of the armistice agreement restrictions, dated July 22, and it is filed in Conference files, lot 60 D 627, CF 329. A handwritten notation on the July 22 document indicates that the Secretary of State also saw this document.
  3. For all of the armistice agreements and final declarations, see pp. 1505 ff.