With regard to the Security Council, of course, we do have the reserve power of the veto there. Senator Morse's resolution would call upon the executive branch in advance to announce, in effect, renounce its intention to use the veto.

Personally, with all respect to Senator Morse, I doubt that that would be a wise move for us to make in a situation in which we are engaged in mortal combat, where we have hundreds of thousands of troops involved. It seems to me we might very well find ourselves in a position of having to use that reserve power of the veto, reluctant as we would be to do so.

LIMITED RECOURSE TO THE GENERAL ASSEMBLY

Senator PELL. And yet you recommend that we go to the General Assembly where the veto would not apply?

Mr. GROSS. My proposal of limited recourse to the General Assembly when bombing has been simultaneously ceased, reduces the risk to a bare minimum, it seems to me; and, as I said before, I would have sufficient confidence that more than a two-thirds majority of the General Assembly would respond to our cessation of bombing by calling upon all parties to cease fire and throw their weight behind efforts of peace.

I would think that the possible irresponsibility of the General Assembly would not be so serious a risk that we should not accept it, because of the greater risk which continued lonely and unilateral exposure places the United States in our own high national interest.

Senator PELL. I thank you very much because what you have done here is, as have the other witnesses, to add to the reasons of counterproductivity and the possibility of entering into negotiations, the third factor, and the very important one, that without cessation of bombing there is no practicable chance of the U.N. really becoming productively seized of the problem.

I thank you very much.

Senator MORSE. Mr. Chairman.

Senator SPARKMAN. Senator Morse.

HAS THE UNITED STATES VIOLATED THE U.N. CHARTER?

Senator MORSE. I want to file a caveat in my own self-protection as far as my record is concerned. I would not want it said that Wayne Morse sat here and remained silent in this colloquy between Senator Pell and one distinguished international lawyer, Mr. Gross, in connection with whether or not we have or have not violated the United Nations charter?

I have, of course, submitted at great length legal documentation to the contrary. I think we have been in open violation of article after article of the charter from the beginning and, of course, the differences, as I am sure Mr. Gross recognizes, are agreement on the operative facts.

After all, you apply legal doctrine to facts, and you can have honest differences of opinion as to what the facts are. If you have those differences then you get a different application of legal principles. I have great respect for the brilliance of our witness. If I agreed with him on the finding of the facts we would come out to the same legal conclusions. But our difficulties, as my brief showed, and they are shared by

many international lawyers in this country who hold the opposite point of view from what has been expressed here this morning. I will not engage in argument; I just wanted the record to show that I filed my caveat, to wit, as to such points as this: that our military intervention in the first place was aggression. We had no right under the charter, article 37, 51 or 52 or several others, to take the unilateral action that we took.

It goes back, of course, to the very disputed premise about a commitment to a puppet government that we created in the first place, in open violation of the literal prohibitions of the Geneva treaty which our Secretary of State and President said that we would respect as tenets of international law. We never have.

When you move in in violation of those principles you, of course, automatically move in in violation of the principles of the charter of the United Nations.

So it is this original finding of fact in which international lawyers find themselves disagreeing and, therefore, reach different conclusion as to the justification of the U.S. intervention.

USE OF SEATO AS RATIONALIZATION FOR U.S. INTERVENTION

We not only have that original aggression which we cannot justify and which is causing us a great deal of trouble with other nations because of our unilateral course of action, but you also have SEATO which does not, as a matter of law, justify to any degree whatsoever what the U.S. position is in South Vietnam.

Don't forget the Secretary of State grabbed that as an afterthought, after the State Department put out their first white paper which was supposed to rationalize our intervention in South Vietnam and had never even a whisper about SEATO. But subsequently the Secretary of State came up with the remarkable finding that SEATO justifies our intervention.

But, as has been pointed out even by this brilliant testimony this morning, if you go back to the statements of Secretary Dulles when the treaty was before this committee for ratification-and don't forget his statements become a part of that treaty as far as its meaning is concerned through American ratification-you cannot separate his statement as to what this treaty means from what we approved. We did not approve something else than what he said it meant, for he spoke for the President of the United States. Don't forget in that cross-examination, Secretary Dulles made perfectly clear that SEATO is not NATO. He made perfectly clear that the military commitments of NATO were not involved in SEATO. If he had not made it clear, why, he could not have gotten that treaty through this committee.

It was perfectly clear that that was the issue that this committee drew with the Secretary of State at that time. So even on that score alone, if he had no other points that were involved, you could not justify using SEATO for rationalization of our unilateral course of action in South Vietnam.

But even under SEATO we could not have received approval on a military course of action, which we never had. Why? Because three nations made clear there was a standing dissent-Pakistan, Great Britain, and France. So you cannot justify it on that basis.

You cannot justify it on the basis of self-defense under article 1 because we were not attacked. We did the attacking. We violated the rights of the conflicting parties in a civil war in South Vietnam.

I just wanted to get this caveat into the record because this is a general point of view of counsel on this issue on the other side of the table.

U.S. UNILATERAL COURSE OF ACTION IN VIETNAM

When you get to the Security Council you are going to get the acrimonious debate that I alluded to earlier this morning. The sooner we get that debate behind us and then move on either through further action in the Security Council or, as the witness says--and I think he is probably right to the General Assembly, the better. But you have to get the atmosphere cleared in regard to this.

What the American people do not like to face up to is that we have followed a unilateral course of action in Vietnam to our everlasting historic discredit. We had better face up to it and not try to continue to perpetuate this unilateral military action in Vietnam where already the lives of over 13,000 American troops and thousands and thousands of Asians have been sacrificed.

You hear little talk by those who want to continue to escalate this war about what we are doing to the lives of others. It is as though just because we are in a combat we have to go along indefinitely inflicting this killing and suffering upon mankind and think we are going to make friends by doing it.

What we are doing is alienating ourselves around the world. This is bound up in this great international law debate. We must settle it— and we are never going to settle it until we stop our unilateral course of action, and make perfectly clear that the other nations have a duty to come in and take over. We ought to keep them on the spot until they do.

That is the caveat that I wanted to say, and I speak most respectfully to the witness. I never speak in a situation like this as a member of a committee without giving the person at the witness table an opportunity to make any comment he wants.

LEGAL COMMITMENT VERSUS A LEGAL RIGHT

Mr. GROSS. Mr. Chairman, I really will use self-restraint because of the hour, and I think the committee is entitled to the exercise of that quality on my part.

I would only like to say that the Southeast Asia Treaty, as I view it, gives the United States in terms a right. It does not, however, impose a commitment from a legal point of view. It seems to me that there has been some confusion by some statements on the part of certain of our officials which fail to distinguish clearly between the very important question of legal commitment versus a legal right. Sometimes the commitment under the SEATO is talked about as if it were a legal commitment when what is really meant is a moral commitment as to which there might be differences of view, and I do not go into that.

RELATIONSHIP OF U.N. TO NATO TREATY

The only other comment I would like to make is with regard to the United Nations. Reference has been made to the North Atlantic Treaty, Senator Sparkman, and I would like, if I may, to refer to the fact that in the unanimous report of the Senate Foreign Relations Committee on the North Atlantic Treaty, which obviously imposed no essentially different obligation upon the United States than SEATO-if anything, it imposed a more direct and compelling one-that the report of this committee makes the statement explicitly of the relationship of the United Nations to the North Atlantic Treaty in terms which I believe apply to the Southeast Asia Treaty as well. The Senate Foreign Relations Committee said in its report:

Lest there be any misunderstanding about the relative position of the Treaty and the United Nations Charter, Article 7 makes clear the overriding character of the Charter with respect to the obligations of the signatories, who are also members of the United Nations.

Then the report goes on with one more sentence, if I may :

In the opinion of the Committee, the Treaty rightly recognizes the primary responsibility of the Security Council in this field—

Meaning peace and security

and makes clear the intent of the signatories not to compete with this responsibility or interfere with it in any way.

Although the reference is to the Security Council, in order to support my point with regard to the General Assembly, if I may read just one more sentence from the report of this Committee:

This desire not to compete with or impair the authority of the United Nations is applicable not only to the Security Council but to other organs of the United Nations which the Committee understands the parties intend to use wherever appropriate.

It is my respectful submission that this express statement with regard to what was headed the paramount authority of the United Nations with regard to NATO, must also by every standard of reason and logic apply to SEATO as well.

Thank you, Mr. Chairman.

Senator SPARKMAN. Thank you, Mr. Gross.

We are supposed to be in the Senate by 12:15 for the joint session. (In connection with Mr. Gross' testimony, the following letter was subsequently received:)

NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A., DEPARTMENT OF INTERNATIONAL AFFAIRS, Washington, D.C., November 2, 1967.

Hon. J. WILLIAM FULBRIGHT,

Chairman, Senate Foreign Relations Committee,
New Senate Office Building, Washington, D.C.

DEAR SENATOR FULBRIGHT: The General Board of the National Council of Churches at its meeting on September 15, 1967, adopted the enclosed "Resolution on Vietnam." A major operative paragraph in that resolution asks for a shift in U.S. policy concerning Vietnam at two points, as follows: "The first is to stop the bombing of North Vietnam for an unspecified period of time. The second is, simultaneously with the first, to request the UN (preferably the General Assembly) or other international agency to take up the question: What steps should be taken and procedures adopted to secure a peaceful settlement in Vietnam? The newly introduced Senate resolution concerning reference of the Vietnam issue to the UN deserves popular support." The resolution referred to, as is later specified, is S. Con. Res. 44 of September 11, 1967, introduced by Senator Wayne Morse.

The Senate Foreign Relations Committee is now conducting hearings on the Morse resolution, as well as on S. Res. 180 of October 25, 1967, which was cosponsored by 57 members of the Senate. Both of these deal with the question of the possible role of the UN in bringing about an honorable settlement to the Vietnam conflict. The Honorable Ernest A. Gross, in his testimony before your Committee, has correctly stated the challenge here as one of finding "the most effective and practicable way of engaging the responsibilities of the U.N. membership and of bringing to bear their collective weight on the side of a just settlement." Mr. Gross, in addition to being an eminent international lawyer and former delegate to the UN, is also Chairman of the Advisory Committee of the National Council of Churches' Department of International Affairs.

As the NCC resolution indicates, the initiative in this matter should be taken by the United States. Both resolutions before your Committee are in accord with this position. It is our further conviction, however, that this should be done in conjunction with a cessation of the bombing of North Vietnam. Here again we would concur with Mr. Gross's testimony on this point in which he questioned both the prudence and the profitability of doing the first without the second. By combining these two initiatives, however, those UN members who see the bombing as the chief obstacle to peace would be afforded an opportunity to use their combined influence to bring about negotiations. There is also, of course, some evidence to support the view that the bombing has not achieved its objectives militarily while producing side effects which are both detrimental to our national interest and of questionable morality. For both reasons, then, this dual initiative has much to commend it.

I would appreciate it if you would make this letter and the accompanying resolution of the National Council of Churches a part of the record of the hearings on S. Con Res. 44 and S. Res. 180.

Thank you.
Sincerely,

ARTHUR S. FLEMMING.

RESOLUTION ON VIETNAM, ADOPTED BY THE GENERAL BOARD, SEPTEMBER 15,

1967, ATLANTA, GA.

This past summer has witnessed a heavy intensification of the war in Vietnam. We cannot speak of that war without recalling that in these months also there have occurred, among other things, riots in our cities, the emasculation of a once proud commitment to foreign aid for development, and an unresolved crisis in the Middle East. In each of these, there is much to suggest that a profound re-evaluation of the moral basis of U.S. life is overdue. Urgent issues are at stake:-among them, U.S. attachment to security and the status quo, as contrasted with U.S. commitment to justice and to freedom. There is urgent need to re-examine and to reaffirm the requirement of God for justice and freedom, upon which alone are based any security and order worth having.

In regard to Vietnam, recent developments suggest various courses of action that the U.S.A. might take.

One is greatly increased escalation of the military effort to secure defeat of North Vietnam and, therefore, the Viet Cong. This policy will involve vast destruction. It will greatly increase the danger of war with China and perhaps Russia. It will, in our judgment, employ means that will defeat our objectives in Vietnam. We therefore vigorously oppose escalation of the U.S. military effort there. We believe there is a better way to end the conflict.

Another course of action is to continue the military operation at generally the present level. Although this is high, it is still the level of limited and not all-out war. This course of action will almost certainly involve a long war. We do not believe this policy to be morally justified. In our judgment the destruction it would entail, both in meeting major military engagements and in a hamlet-by-hamlet operation, would defeat the U.S. objectives of helping to achieve a free and just society in Vietnam.

A further course of action is to de-escalate the U.S. military effort, e.g., by revising U.S. concepts of military strategy, and adopting a strategy of the defense of those areas now controlled by Government of Vietnam and U.S.A. forces. If accompanied by steps designed to secure a peaceful settlement of the war, such a policy of de-escalation offers greater hope of a just settlement than a policy which envisages either a long war or an escalated military effort.

We believe that measures designed to set in motion a process of peaceful settlement should be inaugurated at once. We fully recognize that heavy responsibility