Seeing as there is a lot going on in the history wars right now, I’ve found myself on various threads being sidetracked to the subject war of Vietnam, which also appears to be the subject of revisionism as well, so time for the subject to be elevated to a post, especially also given recent Anzac celebrations, and our troops in Vietnam at the time suffering some 500 deaths.
There were two belligerent parties that sought an agreement at the Geneva Conference in 1954, after the loss by the French of the battle of Dien Ben Phu. Ho Chi Minh’s Viet Minh and the French were the prime parties. France had by international law as occupiers the authority to negotiate and realised then its colonial ambitions in Vietnam were in complete ruins. An honourable way out was sought by the aged old method of peace agreements. A little known person called Diem, later leader of South Vietnam, was not involved with the battle of Dien Ben Phu and was not a legitimate party to the Geneva Accords, obviously never signed it, as he had no standing. Bao Dai, on the other hand was there in his capacity as the puppet creation of France of “The State of Vietnam” He didn’t sign the Accord either, being (as a puppet) essentially represented by France, despite the fact he was given status at the Conference. The French and the North were making peace; the puppets and the latent usurper Diem were not, but the latter was planning doubtlessly to get rid of Bao Dai at the earliest opportunity with a very cunning plan.
was created through co-operation between anti-communist Vietnamese and the French government on June 14, 1949 during the First Indochina War, and the Emperor Bao Dai took up the position of Chief of State (Quoc Truong). This was known as the ‘Bao Dai Solution’, and was an attempt by the French to grant partial independence to Vietnam, while still retaining substantial control over the country, and keeping it from communist rule. Such a formulation was rejected by the communist Viet Minh, led by Ho Chi Minh, who were fighting the French for full independence for Vietnam.
The State of Vietnam then was a puppet entity set up by France for the whole of Vietnam, but had life breathed into it, by the Accord, to be applied now below the 17th parallel, for a two year period, and then unifying elections were to be held. So a French puppet entity became a legal entity within the Accord, and the leader of that former puppet entity Bao Dai, who never signed the Accord, but used it as a contract of legitimacy suddenly was ousted by Diem the usurper using massive referendum fraud, who claimed in effect the legal and moral rights not to fulfill the main obligation of the Accord ie to hold unifying elections within two years, using as an excuse, “we never signed it” and “we can’t trust the North to hold fair elections,” but also sending a message “thanks for letting us fool you into thinking we were going to allow the elections here”.
This occurrence is possibly the best example of the law of estoppel operating, such as in the Australian case of Waltons Stores v Maher (1988) 164 CLR 387. Most call it cheating or fraud. The law of privity of contract normally says those who are not party to a contract cannot seek rights or remedies under it, but having been given control as a third party beneficiary, from the Accord for a short while, they were “estopped” from denying that a “contract” (the Accord) had been made inclusive of the unifying elections.
It’s a simple observation that if Ho was going to be cheated in a peace agreement with the French at Geneva, he would have been within his rights to just continue to occupy the whole country. But he didn’t, he thought he would win the South politically, a big mistake because he didn’t know what the US had planned, or was about to plan further down the track. He could probably blame China and Russia for persuading him not to upset the French and Americans too much, but he acceded to a plan that he hoped would ultimately give political victory in the South with minimal bloodshed.
No wonder the North Vietnamese felt cheated of a political victory in the South, which I assert most historians agree, (but we’ll never know for sure) would likely have accrued in an internationally supervised election. They launched attacks later on. Meantime many in the South, not all Communists, ie Buddhists, students and the like rebelled against Diem, for being the bloody tyrant that he was. Diem’s position was this: “I never signed the Accords—but I got here on the backs of dead Northerners at Dien Ben Phu, and Bao Dai–but now I am so clever I’ve got the US killing my political enemies”)
As for the referendum Diem held in the South, this is what happened according to Wikipedia:
In 1955 a republican referendum, which was largely rigged due to the active presence of pro-republican military forces at voting booths and the 98% vote in favour of the movement, abolished the monarchy and made Prime Minister Ngo Dinh Diem the country’s first president. Despite successes in politics, economics, and social change in the first 5 years, Diem quickly became a dictatorial leader. With the acquiescence of the United States government, ARVN officers staged a coup and killed him in 1963. The military held a brief interim government until a civilian administration was installed in 1964.
on 21 July, [it]… produced a declaration which supported the territorial integrity and sovereignty of the Indochina which gained independence, the cessation of hostilities and foreign involvement (or troops) in internal affairs. Vietnam was partitioned into northern and southern zones pending unification on the basis of internationally supervised free elections to be held in July 1956 (Article 3) (N. Tarling, The Cambridge History of Southeast Asia, Volume Two Part Two: From World War II to the present, Cambridge University Press, p45)….
In 1954 it was determined by the Geneva Conference that the State of Vietnam would rule the territory of Vietnam south of the 17th parallel, of which the former colony of Cochin-China formed the heartland, pending unification on the basis of supervised elections (see Geneva Conference (1954)) in 1956. The elections and unification did not take place as planned (see below)…. The Republic of Vietnam was proclaimed in Saigon by Ngo Dinh Diem on October 22, 1955, after the Emperor Bao Dai was deposed….
The history of the relationship with the United States is controversial. Some historians say the founding of South Vietnam was based on the United State’s need to create an “anti-communist” base in Southeast Asia. Opponents argue that it was based on popular support of the South Vietnamese people. The U.S. and the Diem government agreed that elections mandated by the Geneva Conference (1954) should not occur, claiming that the communists could not be trusted to conduct a fair election in the North. The dominant political rationale for supporting the South Vietnamese government was America’s containment policy, which was designed to hold back the spread of communism during the Cold War.
Going by the rigged referendum, arguments that the Republic of South Vietnam was formed by popular will has to be a fallacy. If Bao Dai had not been overthrown, the revisionists may have been able to mount an arguable case only: that he was overthrown by Diem removes all doubt.
Conclusion: By interfering, the USA was responsible in causation for the deaths of (correction 3)–5.1 million Vietnamese, give or take a few.
5.1 million…God, I had no idea it was so many.
I don’t know why you would drag a commercial contract case like Walton Stores v Maher into your thesis. This doesn’t sound anything like a promissary estoppel, assuming the principle translates to International Law, much less ‘the best example of [it] operating’. It didn’t operate and in fact that whole paragraph makes no sense.
The figure Peter gives is one I am not familar with. Wikipedia says:
“Vietnam’s Ministry of Labor, War Invalids and Social Affairs released figures on April 3, 1995, reporting that 1.1 million fighters—Viet Cong guerrillas and North Vietnamese soldiers—and nearly 2 million civilians in the north and the south were killed between 1954 and 1975.”
Nonetheless 3.1 million is still a lot of deaths.
Anyone who thinks the South Vietnam regime was unpopular should start up a conversation with local members of the Vietnamese community or go to South Vietnam today. The fall of the South was an enormous tragedy. 300,000 South Vietnamese drowned while attempting to flee the Hanoi occupiers.
Anyone who told my SVN partner or his family that they thought Ho Chi Minh was a good bloke would risk having their throats slashed. Such attitudes, from my experience, are the norm and explain the very visible annual April commemoration of the fall of the South in VN communities throughout the world.
Nabakov’s short history of Vietnam is good reading. Perhaps he’ll redux here.
I lived in Westminster,CA, USA during the time many settled there in the early 80’s.
Politicians, hookers and those who defy description. Meaning average family folk.
Twenty to a house. Warm bed shifts.
Own the town now. They deserve it.
The humble and the proud adapted.
Forgetting politics for a moment, I have to say I see the spirit nd heart of the South Vietnamese. Wish I had half of it.
Peter, the logic in your last paragraph is also opaque, at least to me.
I have mixed feelings on this too. The suburb that I live in has all the ‘hard slog’ type of businesses (deli’s, bakeries etc) run by Vietnamese migrants that came out here in the 70s. When I tell them of my travels through Vietnam they always ask me politely where I travelled to and how I enjoyed it. Never have they once condemned me for travelling back to the land they fled from. I have much empathy for them.
On the other hand the people I have met in Vietnam have given me the impression that life in the south was not all that rosy for non Catholics. Thich Quang Duc, a buddhist monk, who burned himself in Saigon as a protest at the policies of the Diem govt, is but one example.
Bismarck, when you take into account that Waltons maintained that as they hadn’t signed the contract, it was unenforceable, and the Mahers relied (to their detriment) on Waltons to sign; putting the Mahers as Ho, and Waltons as Bao Dai/Diem (as a “subsidiary” of the French who did sign); with a modicum of imagination I think the principle of promissory estoppel is well made out.
I agree it’s not part of international law, but for example Lord Golding in his 7/03/03 advice to the Blair government argued parliamentary second reading speeches in domestic law, in statutory interpretation (ie I think codified in s15AA Acts Interpretation Act Cth) could be applied to arguments of interpretation of UNSC Resolution 1441, it infers at the least, that legal principles of domestic law can be argued in international law.
Well, there’s a fair bit of legal imagination at work there Peter. You could always just say that the Diem regime reneged. Promissory estoppel is a rule that attempts to avoid unfairness arising from the privity doctrine. I think shoehorning it into international law is forensically inelegant.
This is a contemptible piece of moral disequivalence which is on a par with totalitarian communist apologetics.
The VN war was a clash of competing rights, marred by wrongs on both sides.
The NV could claim the legitimacy of nationalism, but this was marred by its totalitarian association with communists (Bolsheviks). But the SV could claim the legitimacy of populism, but this was marred by its colonial associations with imperialists (FRA/USA).
The North Vietnamese government was a totalitarian dictatorship in which no competing social groups, let alone parties, were allowed autonomy. The South Vietnamese government was an authoritarian democracy which at least held elections and allowed some forms of moderate dissent.
It is absurd to blame the US for “5.1 million deaths” associated with the VN war. This figure is grotesquely inflated. And it takes two wrong-headed sides to make a long war.
Both sides were wrong. The US finally realised that VN could be unified into a national government without disastrous political consequences. And the NVA realised that VN could have a capitalistic economy without disastrous social consequences.
There is no excuse for imperialist state war. But there is no excuse for communist class war either. Ask a SV how much they like to live under communist tyranny. There are plenty here and around the world who have fled it.
Thanks Bismarck for you comments. “Unjust, unconscionable or inequitable action”, fundamentals of estoppel just sprang to my mind in seeking to express what the South did.
Perhaps my “imagination” helps me to remember stuff I’m in danger of forgetting (to my “detriment.”)
The 1.1 million dead Viet Cong & North Vietnamese soldiers killed are hardly a tragedy.
Being killed fighting FOR communism rates as a non-mouranable death. Those 1.1 million are now where all good communists should be. They are the non-living proof that not all ammunition used in Vietnam was wasted.
Hi Jack. The figures on casualties come from here, a French translation of a 1995 Vietnamese release :
http://www.chss.montclair.edu/english/furr/casualty.html
The fact that communists were involved and the brutality on both sides, does not form any substantial part of my argument. I’m arguing an Accord, how it was broken and by inference, international law.
How you could be arguing for South Vietnam “the legitimacy of populism” under Diem simply astounds me, but you’re most welcome to express it, and hopefully you could substantiate that claim with facts.
“Both sides were wrong” –but in popular Western thought these days “might is right” so the NV were wrong in winning?
Peter, Walton Stores v Maher is a simple case involving two parties and creates no precedent, as you claim, of creating an estoppel on a third party. There was no third party in the case, which you could have worked out just by reading the citation. Your use of it to advance your argument is a nonsense which reveals a complete lack of understanding of the elementary principles of contract law.
Your argument that the State of Vietnam was a creation of the Geneva Accord of 1954 is equally a nonsense. Your own quotation from Wikipedia above indicates that it existed from 1949. It had de facto and de jure control over the south of Vietnam and representing the status quo ante of the condition of Vietnam prior the French colonial rule, that there were three separate States, Tonkin, Annam and Cochichina, it had legitimacy. Once France recoginised it as a separate legal entity then France lost any right to represent it, without its consent, in any subsequent negotiations with any third party. It is an irrelevance that you view it as a puppet of France and your view is contradicted by the very fact that it did not sign the Geneva Accord, while France did. If it was France’s puppet it would have done its bidding.
It was, as you noted, independently represented at the Geneva negotiations. Therefore France had no agency rights to act for it and could not bind it, without its agreement, to any agreement France made with North. Vietnam. Since it did not agree to sign the agreement between France and North Vietnam it was not bound by it. That is all there is to it in international law.
At international law the right of a State to exist does not depend on popular will but rather whether there is a government with control over territory so your argument about rigged referendums is a red herring. However to apply your red herring consistently, please tell us when North Vietnam ever conducted any form of democratic election to determine popular will prior to 1975 and when the goverment of the Socialist Republic of Vietnam has ever held a democratic election since 1975.
Peter Kemp on 28 April 2006 at 5:54 pm
These figures are communist propaganda and you are being duped. The best estimates for total mortalities during the American phase of the Vietnamese civil war is given by Mathew White, an expert on these things:
Since the war involved wrong on both sides this puts US culpability for VN mortality at ~ 1 million. You are out by a (grotesque) factor of five.
Relatively speaking, SV had a much more populist polity than NV. In 1967 the SV govt held more or less free and fair elections. NV banned them throughout its whole internal history, and still does.
In the absence of greater evil (eg Nazism) opposing Bolshevik communism is always and everywhere a moral duty. The fact that many commmunists were also nationalists reduces, but does not extinguish, their culpability.
It is all very well to rely on legal formalism when dealing with civilized states. But totalitarians (and the Bush admin.) dont respect the civilized laws governing relations between proper states.
Recall the NV breaking the Paris Peace Accord in 1973. Did that bit of flouting of international law get flushed down a memory hole?
And we saw how the communist North immediately went about extinguishing all autonomous political groups in the non-communist South as soon as it won victory on the battlefield. This is exactly what would have happened in 1956.
Which explains the reason why VN and First World non-communist forces chose to resist VN and Second World communist aggression in the first place.
All this revionism stuff, dont you kids have anything else to do?
Ordinary people are thrust into extraordinary situations by forces out of their control and are later criticised by the idle chatterers for not acting ethically?
Give me a break, they did the best they could do under the circumstances and if that is not good enough for you, you do better.
..as an addition…what role does your average worker play in these lofty arguments….answer, none, its intellectual vanity -vs- intellectual vanity.
GregM
The third party status claimed by SV, I’ve already corrected above (to Bismarck) as allied with France, keeping the Waltons case and estoppel valid. In any event, 3rd party status as an assignee–analagously SVs position–can negate the privity doctrine. (Tito v Waddell [1977] Ch 106; GIO (NSW) v KA Reed [1998] VR 829.)
You’re still ignoring what happened at Geneva and the status of ‘The State of Vietnam’ prior to the Conference. It did not have de facto and de jure control over the north and/or south of Vietnam during French rule, it was a puppet, and what there may have been before the French ie your “de facto and de jure control over the south of Vietnam and representing the status quo ante of the condition of Vietnam prior the French colonial rule” is totally irrelevant to an argument of a colonial power making a new deal with the nationalist forces that defeated them.
Repetition of historical entities prior to the French and conflating them with a French instituted puppet entity in 1949 does not prove your point.
I repeat from Wikipedia:
Puppetry.
It had no legitimacy UNTIL the Accord gave it one. France was an agent for SV in securing the deal, trying to prevent or delay a NV takeover of the South. To deny that is being obtuse.
I’m not denying the SV had control of the territory, they were given it by the Accord, but refused through Diem to hold the Accord’s election. If Bao Dai had held an election and a popular vote had approved partition, you would have an arguable case (for partition), as I said.
They did not have a popular vote, so Diem’s “rigging” is highly relevant to my argument that his “rigged” non-representational power, that repudiated the Accord gave every right of redress to the North, given their military victory over the French at Dien Ben Phu, to pick up where they left off and get rid of the former French puppets.
People who surrender and then have their preferred proxies renege on the surrender terms cannot be surprised when they (the proxies) get hammered in return. Justifiable, surrender means obey the terms or else, including proxies. To say they didn’t sign it is self serving and a nonsense excuse.
Whether the NV “conducted any form of democratic election” is also irrelevant. The NV were not the ones breaking an agreement–the SV were considering it and obviously decided they would most likely lose ie Ho would most likely have won hands down under International scrutiny. That he didn’t get the chance was due to Diem and the USA. Ergo 5.1 million dead.
Jack, many seemed to know then the 1973 agreement was the kiss of death to SV, but it’s not relevant to my thread on immediate post colonial Vietnam.
I appreciate your sentiments about uncivilised states, but international law cannot or should not have double standards. It’s a jungle, but in important matters the presumption always has to be “good faith”
(ie talk a lot but keep the gunpowder dry)
Works well in trade because of reciprocity advantages, renege and there are easy to predict consequences. Foreign policy much more complicated as Vietnam proved.
Every single verified, authentic source you can find puts the total of deaths at somewhere around 3 million. Horrible enough on it’s own that it doesn’t need to be inflated.
But apparently, an English translation of a French translation of an obscure Communist Vietnamese document released 12 years and found on part-time lecturer Grover Furr’s Montclair State University personal website is good enough for Peter Kemp.
Our new friend Grover Furr’s website is littered with links to Counterpunch, Indymedia and assorted Stalinist delusions. I’d encourage everyone to read through his wonderland of links and writings. [link]
Also keep in mind that Grover never provided a translation, but rather his own little reading of the AFP release. In his own words – “The AFP release, which I’m not going to translate word for word”.
I’ll just take your word for it shall I Grover.
Oh, my mistake. Grover is a tenured English professor. Somehow I trust his numbers less then I did earlier.
Please enjoy Grovers unmasking of Stalin as a democratic advocate.
link
link
link
Agreed Michael, put it at 3 million with a possibility of up to 5. Still too many. What prompted me was its appearance in the first google search page, and the statement the Vietnamese lied to their own people during the war, meaning they had less reason to lie in 1995. I should have looked further.
Peter, if you are mounting a legal argument, as you are attempting to do, then to hold your argument together you have to stick to the legal realities and not seek to overlook them or avoid them. In creating the State Of Vietnam in 1949 France created a separate legal entity. It is irrelevant at law whether or not that separate legal entity was at the time of its creation a puppet of France or not. Without the State of Vietnam’s consent France could not legally enter into any agreement binding on it. France could purport to do so and clearly did purport to do so, but the legal effect of doing so is null. All that France achieved was to dud the North, so it could find a face-saving way out of Indochina. Just another chapter in the glorious annals of French diplomacy.
When you say I am ignoring what happened in Geneva, you are ignoring the fact that the State of Vietnam was a party to the negotiations there, giving it a status independent of France. That being so it could only be bound to any agreement if it signed it. It did not sign the agreement between France and North Vietnam and so it was not bound to it. That is the legal reality. It is logically untenable to admit that the State of Vietnam was independently represented at the Geneva negotiations, which necessarily implies prior and independent legal existence and then say it was a creation of the Geneva Accord.
You are also ignoring (and, I think, just simply don’t understand)the historical reality that Vietnam has existed as independent states since 1620. Ho and co only defeated the French in Tonkin, not in Annam or Cochinchina. As independent states the Annamese and the Cochinese were perfectly at liberty to make whatever arrangements they cared to for their post-colonial independence, and if they decided to treat with France, as they clearly did in establishing the State of Vietnam in 1949, well historically that would be perfectly understandable as, from an Annamese and Cochinese perspective, Tonkin (North Vietnam) is every bit as much an imperial power as France was. Once France departed the scene, the whole point of the Geneva negotiations, they were perfectly at liberty to go their own way on whatever terms they saw fit.
I know that you desparately want to find a legal justification for position regarding Vietnam but unfortunately for you the law just does not support you.
Give it up, Mr Kemp.
For Pete’s sake.
Very interesting discussion for me. I’ve seen or taken part in discussions that focused on the economic, political and military aspects; this is the first I’ve seen with a legal focus.
Peter:
It was not just the North Vietnamese who felt cheated …. and not just in 1954~1955 but in 1945 too. There were those in the South Vietnamese Army (ARVN or LQVNCH) who were very bitter indeed after having struggled for Independence first against the French, then the Japanese, then the French again only to be cheated at every turn …. and more often than not cheated by people who pretended to be their friends or to have their best interests at heart.
The Viet-Nam War was a very complex civil war – in which the superpowers were involved – and although the South Vietnamese soldiers I came across killed Viet-Cong and North Vietnamese soldiers, they trusted their fellow Vietnmese enemy more than they trusted their foreign allies. ((I was lucky, I myself always got on well with the South Vietnamese)).
We’ll have to agree to differ on a lot of points GregM, and you have demonstrated no points in law that refute NV’s right to redress a welshed deal. We didn’t sign it doesn’t wash. This is the distilled point of the argument:
So that means France could not legally negotiate a surrender of sovereignty to the Viet Mihn for the North without the State of Vietnam’s consent and it could not likewise surrender sovereignty of the South to the “State of Vietnam” also without S of V’s consent? Interesting interpretation, it was all a nullity.
Reality was, the “State of Vietnam” consented by acquiescence, by accepting “consideration”, namely South Vietnam. Contract law again. Having done so they were obliged to honour the rest of the “contract.” Trying to argue they were not one of two promisees won’t wash. Ditto there was “no offer.”
Three parties, consideration (NV, SV), two contracts (Fr NV, Fr SV), and one collateral contract between North and South, the unifying election, with repudiation meaning damages, big big time.
Peter -
You said to GregM “you have demonstrated no points in law that refute NV’s right to redress a welshed deal”. Let’s say legally you’re right. I don’t actually believe you are, for the reasons set out well by GregM, but just for argument’s sake …
So, NV could “redress a welshed deal” — BUT NOT BY USING ARMED FORCE AGAINST THE SOUTH. You don’t have the right in international law to attack another country because they broke an agreement with you. That’s a fundamental point, which you overlook with all the rubbish about promissory estoppel.
The North could go to the UN, or apply sanctions, or do whatever it liked — short of attacking the South. When it did attack the South, the South was perfectly justified in defending itself with the aid of its allies.
P.S. Peter wrote about the “contract” between SV and NV: “… repudiation meaning damages, big big time”.
Yes, 3-5 million lives worth of damages. NV is at least as responsible for the deaths of the Vietnam War as is SV and the US. It takes two to tango, you know.
While the discussion of historical minutiae on this thread is certainly educational in its way, I have to say I find the entire framework of argument to be a little, uh, off in the next room. So, it seems the global struggle against the encroachments and horrors of Communism comes down to contract law and something called “estoppel”? Who knew? One can only shrug, and say along with that puzzled Frenchman, “C’est magnifique, monsieur — mais ce n’est pas la guerre.”
Peter, you admit yourself that Ho and his comrades thought they could win the South “by political means alone.” Where you choose to focus on the word ‘political,’ what I see in the statement is that *they wanted to win the South.* Being communists, they weren’t content to sit on their winnings; they wanted the whole enchilada, and it didn’t matter to them exactly how they got it. Surely you’ve heard the old motto ‘Talk, talk; fight, fight.’ But I guess, mysteriously, Ho hadn’t.
No matter how you want to construe the casualty numbers, to blithely attribute 5 million deaths directly to the US alone, is, in any universe I’m familiar with, morally, geo-politically, and intellectually… well, zany. As we all know from experience, a world in which the US takes no action is a world in which no action would ever otherwise be taken by anyone else. The US is and has always been the sole mover of world events, yes? We *do* know that, don’t we? I’m sure a triumphant, unopposed Vietnamese Communism, taking power in the early 60s and flush with the vigor of not having fought a damaging war, would have been content to sit on its winnings and leave the rest of the world alone. To say nothing of how its masters woulda read those tea leaves. That is how the world works, after all, yes?
As appalling as such a figure is, it is still less than one-quarter the total casualties of only one side in, say, Operation Barbarossa alone, to say nothing of the many other theatres in which the last known World War was fought. A framework which would have been far more painfully visible to the folks of that time, who were faced with making all those ugly, unknowable decisions, than it would be to ourselves, who of course now know all. Thank God for omniscience; like the internet, what did people do before we all had it?
Peter, I appreciate that you don’t understand contract law but to make it simple, the only deal the North had was with France so under contract law the only party from whom it could have sought legal redress was from France.
Of course France could have entered an agreement with North Vietnam to give up sovereignty in the North and it would not have required the State of Vietnam’s agreement to do that as the State of Vietnam was restricted in territorial jurisdiction to the south of Vietnam and had no territorial claims on jurisdiction in the north. That is what France should have done, or otherwise just evacuated the North without an agreement. Naturally they wanted to retrieve their soldiers captured at Dien Bien Phu so they were prepared to sell out the South to achieve this. Legally however it was beyond their power to do this without the State of Vietnam’s agreement which, despite whatever pressure the French may have put upon it, it never gave.
The very fact that France had interests of its own separate from and in conflict with the State of Vietnam’s would in equity invalidate any argument that could be advanced as to France having an agency role on behalf of the State of Vietnam and would for that reason alone invalidate any argument that France could enter an agreement binding on the State of Vietnam without the State of Vietnam’s express written agreement.
Your argument on the State of Vietnam’s acquiescence to the Geneva Accord between France and North Vietnam, would be considered by judges to be “novel”, a term used by those who occupy the Bench to describe legally ill-conceived arguments in a kind way.
Its legal flaws are these; -
1. By being created by the French in 1949 and being given legal status as the lawful authority in southern Vietnam, the State of Vietnam already had southern Vietnam gifted to it by France so what it already legally had could not be later given to it as consideration. What you already have can’t be offered to you later as consideration in a contract.
2. There was no separate contract between France and the State of Vietnam at the Geneva talks and no contract, collateral or otherwise between North Vietnam and South Vietnam. You’ll find that judges and lawyers like to see contracts in writing with signatures on them, and tend to guffaw at novel arguments about unwritten contracts and implied agreements especially when the evidence is that a party which had an opportunity to sign a contract has not done so and vehemently denies that it ever had an intention to do so.
3. There is no doctrine of consent by acquiescence in contract law. Acquiescence is just a synonym for consent. In the case of the Geneva negotiations the only way that the State of Vietnam could have been bound to the agreement between France and North Vietnam would have been if it signed it. It’s refusal to do so is proof that it neither consented nor acquiesced to France’s dirty little deal.
On your comment “We didn’t sign it doesn’t wash.” if you knew the basics of contract law you’d know that that is legally the best argument there is for someone who says that they are not bound to an agreement. It may not wash with you but under the doctrine of privity of contract the fact that you haven’t signed a contract is pretty conclusive that you are not bound by it.
I’m the one guffawing GregM.
Really. If you “understand contract law,” as you put it, you should know contracts can be accepted by conduct.
I’ll give some common law to you straight from a text book, Contract Law in Australia 3rd ed, JW Carter, DJ Harland.p.47
While I believed the case related to equitable doctrine, I now agree with Bismarck that it was “inelegant” although still arguable as estoppel per Waltons on a claim of “no signature.” The common law of contractural consent by conduct, even by silent conduct is very simple and elegant. Unbelievably elegant.
Everything else flows as an agreement from the “State of Vietnam” accepting possession of South Vietnam, (the conduct) with responsibility to honour the whole agreement.
BTW
1)The State of Vietnam never had sovereignty over all of Vietnam. Only France had that, and gave it up at Geneva. To argue otherwise is to say France’s presence was non-existent.
2) Yes there was–consent by deed.
3) See Carter and Harland above.
PS Last para: privity of contract and assent to a contract are two unrelated concepts.
You can find a lot of things GregM, about judges’ and lawyers’ decision making, what is novel or not, in a text book on contract law. I recommend Carter and Harland.
I’ve got work to do.
Paulus re
Good point. But the North would argue it was “another country” founded on the illegality of not holding unifying elections, therefore making it an internal civil war. Compared to the justification for WW1 for example, I think the NV would have a stronger argument. Nations by and large have gone to war for the most abominable non-reasons. NV had an arguable case in my opinion.
j_p_z re
I revised that to 3 to 5.1. In a legal sense, if you apply principles of causation from criminal law, what caused the deaths, there was US interference which armed (accessory before) and assisted (accessory during) and directly killed people. (in the 1st degree). Diem, Thieu and Ky also co-responsible as direct participants/accessories which escalated with US involvement what was essentially a civil war, beyond belief.
As I said on another thread, a bankrobber who sprays bullets around has a monumental task in defence asserting that some of the victims were other unknown ruffians who would have fallen out and killed each other anyway.
Now I really must get to the daily bread exertions.
Peter Kemp on 28 April 2006 at 8:59 pm
No doubt communists in NVN, throughout the Second World and in the US anti-war movement were privy to communist duplicity. But many others on the non-communist side believed that the VN cease-fire of 1973 was an Armistice comparable to the Korean Armistice in 1953.
The word “dupe” was invented to describe people who take communists at their legal word or believe their propaganda. These people believed they had a historic mission and the ends justifies the means. (The capitalisation of communist states shortly thereafter only proves they duped themselves.)
So the non-communists should have kept “good faith” with the communists in the 1956 Accords. But the communists had every right to plant the “kiss of death” on the non-communists after the 1973 Accords.
So much for your much-vaunted abhorrence of “double standards” in international law.
j_p_z:
Legal focus is fascinating. But really, who won, who lost …. and who made the money? (my guess is Hong Kong and Japan).
I don’t think the U.S. got involved with the intention of killing anyone …. okay, maybe a few guys did want to kill a few million G-d m-f commie gooks after drinking a fifth or two of bad likker …. but they’re not the U.S. Government.
Alas, “The road to hell is paved with good intentions”.
Peter, one of the problems for those like you who don’t have legal training is that when you dabble in legal matters you pluck out bits and pieces to suit your argument but are ignorant of the framework in which they operate. Therefore you make egregious errors.
The concept of consent by acquiescence is an evidentiary one. ie can the Court conclude by a party’s conduct that they have consented to something. The Court must look at all the evidence and not just concoct some contrived use of an evidentiary principle in the face of all contrary evidence to reach its conclusion.
The fact that the State of Vietnam was a party to the Geneva negotiations, had the opportunity to sign the Geneva Accord and refused to do so is conclusive proof that they did not have the intent to be bound to that agreement. Your argument that by failing to sign the agreement they had silently agreed to it is therefore ludicrous. As I have had to point out to you once before you cannot logically argue, as you would like, in the face of the facts and the law, that a thing is not as it is because it is not as you would want it to be.
Since you are unfamiliar with whatever legal documents were signed by the State of Vietnam and France in 1949 your assertions as to the legal state of French sovereignty are mere speculation. However the fact that the State of Vietnam had independent status at the Geneva negotiations is prima facie evidence that it had independent legal existence and rights and as it was recognised by France as the governing body of Southern Vietnam within the French colonial system it had de jure and de facto control over southern Vietnam, and therefore met the test of sovereignty.
Peter your argument stinks to high heaven. It make no sense. It is as arbitrary as it is childish.
Make an accounting for yourself.
Yep, Jason’s right. The Bird has landed!
This is a classic Bird comment structure: argument-free assertion; demand for retraction.
‘the filthy viscious North Vietnamese communists ”
Filthy *and* viscous – a smelly jelly?
Peter K.: “…if you apply principles of causation from criminal law…”
Okay. Now we’ve moved from contract law, to criminal law. But why stop there? Let’s demand that the US be tried under the Laws of Thermodynamics. The important thing is that the US be guilty of *something*, n’importe quoi. Why not the immutable, irrefutible Law of History and Class Struggle, as codified by glorious and infallible Marxism-Leninism-Mao Zedong Thought? What… aren’t you being force-fed that stuff on a daily basis? (And if not, why not?)
Correct me if I’m mistaken, but I don’t think the US made its traditional wartime demand of Complete Unconditional Surrender on the North Vietnamese. In other words, the NV chose to continue the fight, even though their ’survival’ was not, strictly speaking, at stake. They coulda made a deal, as in North Korea (lovely company they keep); but they thought they could *win*. (It’s worth remembering that the US didn’t want NV real estate, but the NV very much wanted South Vietnam real estate.) So, why not move on to insurance liability law. How do we ‘apportion’ the claims, in light of NV intransigence?
If the NV were communists, then they were going to be fought. If they were a crypto-national independence movement, which I doubt, well, then they shoulda chosen their allegiances a bit more wisely. As a certain melancholy prince reminds us,
‘Tis dangerous when the baser nature comes
Between the pass and fell incensed points
Of mighty opposites.
I’d have thought a political analysis of the events would have made more sense than one in terms of law. I also can’t see the relevance of contract or criminal law to all this. I think it makes your argument weaker rather than stronger, Peter.
Check out this bunch of letters and other writings by a bloke desperate to have the US Empire take his country under its big eagle’s wing and keep the Frogs at bay.
If only some Foggy Bottom apparatchik hadn’t dropped the correspondence behind the heater.
Of course political & legal analysis are well & truly trumped by a military analysis.
We went away & left the commos in charge. Ergo, the commos were right. Or at least, they ended up with the might!
Ho Chi Minh clearly took Roosevelt at his word about “de-colonisation” – that does not necessarily imply that he was “pro-American”.
Ho also allegedly stated his preference for a couple of hundred years of French colonialism over 1,000 years of Chinese tyranny, despite the fact he would go on to work with Mao.
Kim; j-p_z
I said the NVA had an “arguable” case in breaking the 73 Accord. Arguable in legal parlance is often code for weak, and often, very weak. I should have expressed myself more clearly and elaborated. (Lord Golding used that expression somewhere in his advice to Blair over Iraq for example re Res 1441 or reactivation of 678 as I recall)
On the face of it, by itself, breaking that agreement was a clear violation and I personally condemn it as I do SV breaking the 1954 Accord. But that doesn’t mean I can’t say that NV still had an “arguable case” in 73. One could say NV’s arguable case in 73 was as weak as SV’s arguable case in 1954.
Contract law principles j_p_z have evolved and are the backbone of international trade agreements, and by inference international peace agreements. The Treaty of Rome which founded the ICC, in its codification, (for war crimes for example, committed by entities and/or individuals) is stuffed full of criminal law principles. The Australian Criminal Code which enshrined the ICC code into domestic law, repeats the phrase “aids and abets” numerous times, which beyond any shadow of doubt, is “accessory”.
re “crypto-national independence movement” –Ho was a nationalist a long way before he was ever a communist. As Nabs (I think) said on another thread Ho begged the USA to make Vietnam a US protectorate, hardly an act that shows blind fanatical allegiance to communism I submit.
Jack S, you left out the end of that quote: “(ie talk a lot but keep the gunpowder dry)”
See para 2 this comment above. The NV cynically signed an agreement which they knew they were going to break. From their point of view, politically, they’d sign anything to get the USA out of SV. Saying they had an arguable case does not mean I necessarily support it. OTOH, what I am asserting is that in 1954 they had a very strong arguable case, the point of the whole article.
GregM re “conclusive proof that they did not have the intent to be bound” Absolute nonsense. I have demonstrated convincingly from a text with case law, the documented, fundamental principle of intent by conduct.
“…concoct some contrived use of an evidentiary principle” You are clearly confused in terminology and in law, the principle of law, not concocted, “intent by conduct”, has nothing directly to do with “evidentiary principles” ie rules of evidence, being another body of law entirely removed. Rules of evidence cover admissability issues and alleged facts presented as evidence subjected to burdens and standards of proof. I recommend S Odgers, “Uniform Evidence Law” in the evidentiary field. Your concepts of sovereignty are likewise fanciful.
——————————————————————————————————-
In any event what NV did from 1973 on does not invalidate the argument they had in 1954, that’s conflating the issues and imposing retrospective wrongdoing, from a political viewpoint.
Peter: “…Ho was a nationalist a long way before he was ever a communist…”
Possibly so. I seem to recall a bit from Ho’s letters, to the effect of something like… “the last time the Chinese came, they stayed for a thousand years. I’d rather eat French shit for a century, than eat Chinese shit for a millenium.”
But you know what? I don’t really give a flying fuck about what Ho Chi Minh (pbuh) thought about *anything.* You accused my country of being (mindlessly, and criminally, as it were), solely and directly accountable for the deaths of between 3 and 5 million people; and you implied that there was no good reason for this, that it was a species of criminal perversity. In the process, as it were, you ignored a tremendous amount of historical complexity. Do you see why that’s unwise, both for the past, and for the present and future?
Now I’m sure you’re a nice guy in person, but when you say dopey things like that and it goes uncontested, it creates problems for actual human beings whom you do not and cannot know. Your countrymen – God bless ‘em! — are not, at this moment, dug in on the north coast of your continent against an evil world power whose stated goal was to control the entire planet. Why aren’t they? The question ‘tumbles’ through the air. Your bill would be in the mail, except that we’re cool like that.
All over this site, recently, I have read childish nonsense like ‘the US is the most hated and feared country in the world.’ Please: do grow TF up, and grow a pair while you’re at it. In the meantime we’ll sit back and keep exporting the internet, some arguably laughable foreign policy, and a lot of really bad hip-hop, because we’re nice people who don’t mind being taken for granted every once in a while… or even for a century at a time. We’ve got pretty good self-esteem that way — Faulkner and Pollock and Coltrane and what-not. But it’s sort of a mistake to read our really big policy efforts simplistically.
Peter while you are understandably desperate to win an argument in an area, contract law, that you have scant understanding of, even your argument about acceptance by conduct doesn’t fit the facts of the Geneva Accord.
First, the State of Vietnam specifically and openly said that it would not sign the Geneva Accord, leaving it, under the doctrine of privity of contract not a party to it. It did nothing to implement the Accord, so it does not meet the test you have cited for acceptance of a contract by conduct which you highlighted as through performance ..of some act clearly indicating an intention to accept would suffice to bind him or her….
The State of Vietnam already had de facto and de jure control over the territory below the 17th parallel. Its continued occupation of that territory after the signing of the agreement between France and North Vietnam was simply a continuation of the status quo before the agreement was signed and therefore was not an act clearly indicating an intention to be bound by the agreement. Your earlier gymnastics in arguing otherwise were a marvel in muddle-headedness. The terms of the agreement between France and North Vietnam required the State of Vietnam to cooperate in the holding of national elections leading to the unification of Vietnam. It did the opposite, refusing to cooperate with the International Commission set up under the agreement to co-ordinate the elections. That is clear evidence of repudiation, not acceptance, by conduct.
So thus far we find you wrong on the doctrine of privity of contract, wrong on the issue of legal identity and capacity to enter into legal relations, wrong on the principles on intention to enter into binding legal relations and wrong on the application of the law on acceptance of a contract through conduct.
One has to wonder if there is any area of contract law that you do understand.
Meanwhile you have mounted an impressive case that North Vietnam is, according to the criteria you have laid out, culpable under international law for all the 3.1 to 5.1 million deaths in the Vietnam War, France getting a geurnsey too for its deceptive and dishonourable conduct towards both North and South Vietnam.
Peter: “…Ho was a nationalist a long way before he was ever a communist…�
This is not true. Ho was a founding member of the French Communist Party in the 1920’s, and an active agent of the Comintern. He spent most of the 30’s in Stalinist USSR. He modelled himself on the Soviet leadership, even taking, like them, a new name — Ho Chi Minh apparently means ‘enlightened one’, or similar.
GregM
http://www.yale.edu/lawweb/avalon/intdip/indoch/inch022.htm
Having fullsovereignty without independence is somewhat of an oxymoron to me. Sovereignty was held in trust by the French, as trustees for all Vietnamese people. Trustees don’t own sovereignty, they hold it in their possession like property, (as occupying powers in this case), on trust for the beneficiaries, the people. To argue the S of V had full sovereignty leading up to Geneva is to argue likewise that the Iraqi “government” has full sovereignty now, which is a nonsense.
Sovereignty from Wikipedia
http://en.wikipedia.org/wiki/Sovereignty
Sovereignty is the exclusive right to exercise supreme political (e.g. legislative, judicial, and/or executive) authority over a geographic region, group of people, or oneself….
In constitutional and international law, the concept of sovereignty also pertains to a government possessing full control over its own affairs within a territorial or geographical area or limit, and in certain context to various organs (such as courts of law) possessing legal jurisdiction in their own chief, rather than by mandate or under supervision. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute.
This one’s for you j_p_z
http://www.yale.edu/lawweb/avalon/intdip/indoch/inch006.htm
BTW, I for one will never forget that the battles of Midway and Coral Sea saved our bacon. Your implied suggestion, a old hoary justification often trotted out, for those wonderful deeds, that I should then accept the USA can do no wrong everafter; is your delusion not mine.
Well, patriotism instead Rob.
http://www.time.com/time/time100/leaders/profile/hochiminh2.html
Yes, Peter, he so loved his country that he spent 30 years away from it (1911 to 1941), returning only as Stalin’s agent.
He had no choice, at the time the Commies were the only people who even pretended to give a crap about decolonisation.
Yes he did have a choice. You are saying that your only choice is to join up with a mass-murdering philosophy that advocates total enslavement via the greatest possible theft. And that his lack of choices forced him (being a patriot) to murder great numbers of his own people? And that his hatred for colonialism forced him into the role of agent for communist imperialism?
Attempt not to be an idiot Leinad.
There was a strong non-communist nationalist movement in Vietnam from early in the 20th century. Phan Boi Chau was one of them (he died in 1940).
During all this time, Ho remained in France, England, China and Thailand as a Comintern agent.
Peter, thanks for the link. To clear up that little quibble, on the 4th of June 1954, France declared the State of Vietnam to be a “fully independent and sovereign state”. http://www.globalsecurity.org/military/world/war/vietnam1.htm
This was prior to France signing its agreement with North Vietnam.
It seems that the French heeded the Secretary of State’s words and of course, by recognising the full independence and sovereignty of the State of Vietnam, in contract law the French repudiated any right they may have otherwise had to sign any agreement on behalf of the State of Vietnam without its express agreement to do so, which was not forthcoming.
All you’ve got in contract law is a party, France, making fraudulent representations to a second party, North Vietnam about a third party, the State of Vietnam. Since the State of Vietnam is not a party to the agreement it is not bound by the fraudulent representations and they cannot cause it to be bound to the agreement. The North’s rights of action are against France alone. It has no rights against South Vietnam on the basis of the fraudulent misrepresentation and you’ll find that as the State of Vietnam had made clear its repudiation of the deal at the time it was made North Vietnam, being on notice of the fraud, would get short shrift in any court if it tried to enforce its agreement on the State of Vietnam.
A clear case for North Vietnam of caveat emptor.
And the Soviet Union, of course, where he learned the lessons he put into effect after 1954. My bad.
I also forgot to add — some patriot.
Rob, you make it sound like Ho just mooched around in Paris with the Comintern for kicks. From 1911 to the mid-twenties he slaved as kitchenhand. He had to rent a suit when he lobbied for Vietnamese independence at the Versailles conference. At that time the US was isolationist and Britiain and France still held on to their vast colonial posessions. Of all the world powers only the USSR was willing to train him and support his cause, so he threw his lot in with them. If he was their puppet, why did he send telegrams to Truman?
As a ploy to stave off the French.
Would these commies be the same ones who invaded Finland in 1939 and occupied Latvia, Estonia and Lithuana and divided up Poland with Hitler in 1940 or would it be the ones who installed puppet governments in post-war Poland, East Germany, Czechoslovakia, Romania, Bulgaria, Hungary and North Korea?
I guess you’re right. They only pretended to give a crap about decolonisation.
Meanwhile the evil US entered into an agreement with the Philippines in 1935 creating a self-governing commonwealth with a promise of full independence within ten years, a promise honoured in 1946, the delay of one year caused by Japanese occupation of the country.
Sorry guys but I agree with Kim here. Arguing about what should have been done in the Hobbesian world of geopolitics on the basis of genteel notions of contract law that are upheld in civilised societies like Australia and the UK is, I fear, somewhat ludicrous. Much as we would like the world of international relations to be tamed by such considerations, the parties that behave consistently decently on this basis get nowhere. Which is why none of them do.
Jason I agree with you that the idea of applying the principles of contract law to apportion blame in the Vietnam War is ludicrous. However since Peter wants to advance that argument in order to make a case that the US is entirely responsible for all deaths in the Vietnam War then it’s worth scrutinizing to see how sound his argument is.
Unfortunately for him, analysis applying the principles of contract law correctly does not support his argument. Quite the opposite.
What we are left with is a mess created by France’s desperate and deceptive conduct at the Geneva negotiations leaving the North with an agreement that was legally worthless, except as to France, and (since France’s whole intention in concluding the agreement was to retrieve its prisoners of war held by the North after the fall of Dien Bien Phu and leave Indochina) worthless with them, and the South compromised by undertakings France had given to the North which it had no right to give, and which it had no intention of honouring or capacity to deliver on.
I don’t think that this will shake Peter from his belief though. If you want to believe that the US is the source of all of the woes in the world you will continue to do so in the face of all evidence and argument, legal or otherwise. Sad, really.
Greg, very good application there. If France gave away sovereignty earlier, (no other links I can find on that but never mind, and I’ll assume its true for the moment) and as you argue (as with the S of V) they were not a party, then France and NV were the only parties, right?
Only one big flaw.
France promises by the Accord unifying elections and to leave. (Elections a critical condition of the agreement.) NV promises to not engage in further hostilities subject to election condition. Parties, consideration, agreement.
Election promise not realised and NV realises a bum steer (eg sovereignty given away earlier equals breach of Accord–sovereignty was promised by way of elections to a unified Vietnam) but in any case the condition is broken.
NV legitimately repudiates the agreement for “breach”, or terminates for “frustration” and goes for damages. Which is what they did, in a manner of speaking.
Neat and tidy. You can’t promise what you don’t have (sovereignty), other party goes for immediate breach and terminates/repudiates. Alternatively if you have promised something which doesn’t materialise, the other party has the right to terminate/repudiate.
I’ll condense that all into one simple principle GregM that applies both morally and in law. If what France did by agreement was a fraud, which you have consistently stated it was, then North Vietnam had every right to repudiate it.
End of story.
Lost cause, Peter. Leave it.
Peter there is no flaw. The Geneva accord was based on French fraud. The North Vietnamese were quite entitled to repudiate it once they realised that the French had dudded them, just as the South was entitled to go its own way and seek help from any quarter it chose, including the United States, when it realised the French deceit. That is entirely a legal argument and not a moral one.
In resuming the war in 1959, however, the North Vietnamese bear moral responsibility for its consequences in doing so. They could have just left things alone.
So your claim:
has just been demolished.
End of story.
So GregM, Americans recognising French fraud when they paid around 80% of the French bills in Vietnam, and taking over where the French left off.
The South recognising French deceit when they said thank you to France for the opportunity to benefit from fraud.
What twisted factual gymnastics.
Shorter GregM: (In the corner with a paintbrush) To hell with your argument, the end justifies the means.
Diabolical, lets get GregM’s story straight. The French didn’t have sovereignty to give and deceived the NV in the Accord by giving sovereignty they didn’t have, they also deceived the US in deceiving NV; the US deceived the French in replacing the French; SV deceived NV by not holding elections, but that was ok because they were not a party to the Accords even though they were a party present at the Accord meeting, and there’s no such thing as consent to an agreement by conduct because that guy knows nothing about contract law, and when he produced that text and cases, I shot that one down in flames by bringing points of law into rules of evidence.
In the meantime, French deceit of SV had SV thanking the French for giving them the opportunity to deceive the NV, while again Diem was deceiving the people of SV by holding rigged elections to deceive Bao Dai and get him out of the road. The NV then deceived everybody else by invading the South which they can’t do cos they’re commies, but they can repudiate the Accord because they were deceived but mustn’t do anything about it again because they’re commies, and everybody knows commies can’t be trusted. Meantime the US deceived NV by breaking the declaration by the Secretary of state not to militarily interfere in the internal affairs militarily, but that’s ok with us, and it was a long time ago. And all of this conclusively proves the US was not responsible for the deaths of 3-5 million people.
Gee I could still go on, but all this round robin deception makes me wonder who is trying to deceive who?
Rob, what do you mean, “lost cause”. We’ve only just begun, and I’d like you to to stick around and help me decipher a new electrifying principle in International Property Law I discovered just now.
“When an American gangster helps a French whore and her Vietnamese pimp commit forgery, changing the title deeds from joint tenants to tenants in common, it’s best for the American not to become the mortgagee of that property.”
Interesting how these people who stick up for communism don’t go to a communist country (say North Korea) and live there….. Just a thought………
Sue at the Pub: “Interesting how these people who stick up for communism don’t go to a communist country (say North Korea) and live there….. Just a thought………”
Interesting how these people who stick up for capitalism don’t go to a communist country (say Upper Volta) and live there….. Just a thought………
Peter, you would have found if you had studied and practiced law that to be effective you have to maintain your objectivity and not let emotion sway you. You advanced the argument of American wrongdoing by applying Australian domestic contract law, bizarre though that is.
I have merely responded to your argument by correctly applying the tools of legal analysis to your argument and have demonstrated that the elements necessary for the formation of a contract binding the State of Vietnam to the Geneva Accord were not present, and that therefore your argument had foundered at the first hurdle.
That is not a matter of the end justifies the means. It is just a salutary lesson for you that when you want to pursue a legal argument you must get the basics right or you will find that your argument becomes unhinged and the opposite outcome to the one you would like is revealed as the legally correct one,
As to you getting my story straight, the facts are as I set them out, with links and there are plenty of sites on the internet that will provide you with documentation from the period, However your account of what I have written is a self serving one that willfully misrepresents what I have said. In my analysis I made no comment on whether or not the North could or could not do anything because they are commies because, whatever my views on the political complexion of that government, it was irrelevant to a legal analysis in contract law, and yet you have falsely imputed that argument to me.
My argument was that:
That means that the status quo ante applied and that as that status quo ante was a state of civil war in a divided country, the North was under no contractual restraint from the Accord from resuming civil war.
However the North was under other legal impediments. Its claim was to the territory of the whole of Vietnam, its argument being based on national self-determination. However two other countries, Laos and Cambodia had achieved internationally recognized self-determination from the French decolonization and at international law they had borders that North Vietnam was legally bound to respect. It did not do so. It illegally invaded and occupied their territory, ignoring their neutrality, based on the principle of “Might is Right� in order to build the supply line it needed to prosecute its war in the South. Further, even in pursuing its war against the South the North was bound, under international law, to observe the usages of war and not to attack civilians, or to engage in reprisal attacks. There are many instances where it did so, and it is no answer to reply “well so did the South, or so did the Americans.�
I appreciate that you have a strong commitment to the legitimacy of the unified Vietnam, no doubt born of activism in opposing the American involvement in that war in the 1960s. However you are allowing your commitment to deny you objectivity and to cause you to operate from the premise that morally the Northern side had the right to occupy the whole of Vietnam and to do what they pleased with it without let or hindrance, on the basis of that they were the popularly legitimate heirs of the French colonialists and that therefore everything and anything they did had to be legally as well as morally justified. A case of the end justifies the means, if ever there was one. Well good luck to you in holding that view but sensible people realise that the world is a whole lot more complicated than that.
In your final, bolded, comment your complete lack of objectivity is shown by your use of pejoratives. It just demonstrates that old legal axiom:
As I said above, sad really.
Peter Kemp on 30 April 2006 at 9:44 pm
It is silly enough to apply the principles of contract law to relations between states. THese have always been understood as being half-way to the law of the jungle. (Hobbesian state of nature ruled by Machiavellian culture.)
To apply such cocepts to relations with communist states, whose very existence is based on rejection of contract law, is brazen lunacy.
To those who have properly rejected Peter’s case, as it were. Peter should consider not only the lies told by journos who, at the least sympathetic to Ho Chi Minh’s mass murdering thugs.
Journalists did not report for example:
“There was, fore example, the Tay Loc massacre where scores of men, women and children were murdered by the Viet Cong in an act of calculated butchery. Then there was a bus carrying 22 peasants that the Viet Cong stopped. They murdered everyone of them.
These atrocities were part of a calculated reign of terror planned and authorised by Hanoi and ruthlessly waged against South.
These atrocities were part of a calculated reign of terror planned and authorised by Hanoi and ruthlessly waged against South. And yet Pilger did not report one of them The Hue massacre is probably the most shocking example of the North’s barbaric policy. On January 30, 1968, the Vietcong, on instructions from Hanoi, broke the Tet truce by launching an offensive against the South.
Hue, an administrative centre just south of the border, was over run by communist forces who quickly set about their cold-blooded business of calculated mass murder. Thousands of were thrown into trenches and then buried, even though some were still alive
Fortunately some journalist came to realise the immorality of not reporting the systematic carnage that the North was carrying out against the South, understanding that by not reporting it they were making themselves a party to these crimes. One of those reporters was Uwe Siemon-Netto and the following is his mea culpa to the English magazine Encounter, 1979:
Having covered the Viet Nam war over a period of five years for West German publications, I am now haunted by the role we journalists have played over there. Those of us who had wanted to find out knew of the evil nature of the Hanoi regime. We knew that, in 1956, close to 50,000 peasants were executed in North Vietnam. [As Nguyen Manh Tuong stated at the 1956 National Congress in Hanoi: ‘It is better to kill 10 innocent people then let one enemy escape.’] We knew that after the division of the country nearly 1 million North Vietnamese had fled to the South.
Many of us have seen the tortured and carved-up bodies of men, women and children executed by the Viet Cong in the early phases of the war. And many of us saw, in 1968, the mass graves of Hue, saw [take note, Mr Pilger] the corpses of thousands of civilians still festively dressed for Tet, the Vietnamese New Year. Why, for Heavens sake, did we not report these expressions of deliberate North Vietnamese strategy at least as extensively as of the Mai Lai massacre and other such isolated incidents that were definitely not part of the U.S. policy in Viet Nam?
What prompted us to make our readers believe that the Communists, once in power in all of Viet Nam, would behave benignly? What made us, first and foremost Anthony Lewis, belittle warnings by U.S. officials that a Communist victory would result in a massacre? Why did we ignore the fact that the man responsible for the executions of 50,000 peasants, Truong Chinh, was — and still is — one of the most powerful figures in Hanoi?
What made us think that he and his comrades would have mercy for the vanquished South Vietnamese? What compelled, for example… ”
Read the rest here:
http://www.brookesnews.com/061704pilger.html
Would Peter care to reconsider what he wrote? Or, will he, like so many journalists have, and too many do still, along with story writers pretending to be historians, ignore what the commie butchers were really on about and did?
My guess is that Peter Kemp is effectively a commie apologist and will continue to blame it all on the US.
(Back from nearly two days of legal exertions in other pastures.)
GregM.
I really appreciate the tone of that last comment. Leave out aspersions on my legal training (which I never respond to for reasons of privacy) and future debate will even more fruitful.
In response, re ” applying Australian domestic contract law” I would point out it’s the contract law of common law countries such as US, the UK, the USA, NZ, Canada etc. The cases I mentioned above, for example in respect of acceptance of a contract by conduct had an English precedent case mentioned. (You wouldn’t want me to quote English cases only, which are difficult to find, would you?
We clearly disagree on this point, but that’s not the end of it, by the next point—
Repudiation of an agreement with France is also a legal argument that predates any argument of what SV did in seeking help. Without that agreement SV would have never been allowed to occupy SV without NV resistance. Even if “the equities were equal”, which they are most definitely not, as the maxim goes, “the first in time prevails.”
This is not relevant to the legitimacy of repudiating the Accord and flowing from that, invading the South.
Clearly I am not making a moral argument. I’m arguing that NV had a legal right to repudiate the Accord for fundamental breach and pick up exactly where they left off after Dien Ben Phu.
Jack S
If a peace agreement is not a contract, I’m the Queen of Sheeba.
Douglas
Which I absolutely deplore and wish never happened. But it’s got nothing to do with my argument.
Nguyen~Van Nigel, Pham.Thi Norah and I are all fascinated by the legal and ethical issues being raised here ….. do tell us more.
Douglas, Peter’s whole position has been weird on this. GregM has trumped him on the legal issue — which, as Kim pointed out way back, is largely irrelevant anyway. It’s the political and military dimensions that are important, historically speaking. And there your post and link were spot on.
Remember the picture of the SV general shooting a ‘cowed, captured, unarmed VC prisoner’ in cold blood, and the wave of anti-war revlusion that followed? I’ve heard (can’t verify) that the journo who took the picture later said if he’d known what its impact would be, he would never have published it. What had happened was that a SV company had been out on patrol, and when they got back to barracks they found the VC had been there while they were away. The SV soliders lived in the barrcks with their families — and on this occasion every man, woman and child of them had been killed by the VC. So they went looking for the killers, and found one. He got his pretty quick.
Maybe this is folklore, but that’s the way I heard it from veterans.
Speaking of whom, I know many who swear it was the media lost them the war, not the battlefield enemy, and they’ll go to their graves believing it.
And whatever the context, Rob, that’s at the least a lynching and at best a war crime.
Well, a summary execution, certainly. Given the circumstances, I don’t have big a problem with it.
That’s what war is like. Abolish war, then? Great idea, but while you have a war, and you’re fighting it, this kind of thing is going to happen. And the SV commander’s offence was miniscule compared with what the Viet Cong did to the families of his soldiers.
One thing for sure in human life, in the interactions between individuals, is that so many of our human relationships are governed by laws. Whether it’s the negligence law (“tort law”) which tells you not to leave banana skins on the doorstep of your house to avoid the old lady (who comes around to say hello) slipping on it and suing you for what is an eminently foreseeable event, or in contract law and state law where you instinctively know what your rights are when some shyster rips you off.
International law mirrors domestic law in governing relationships between nations, and international legal agreements are a logical extension of domestic law. Trade agreements in the WTO for example are governed by rules written into a special statute that all the participants agree to with special arrangements made to resolve disputes. International case law on disputes between individuals across national boundaries can create some vexing problems for nation state jurisdictions, but by the development of the common law, judge made law, for centuries we have coped well in situations like that where statutory law was inapplicable or non-existent.
Common law judges in England for example decided in 1800 or thereabouts, that mentally ill people are “not fit” to plead in a court, that there WAS such a thing as rape in marriage, (later codified) against earlier common law that said a woman automatically contracted to consent for the duration of the marriage. Common law also said and still does, that contracts involving fraud from the beginning, are void “ab initio” –from the beginning. Parties go back to square one, money, whatever, returned. And so it is that the principle applies in international law, but with one flaw, in one area that I will get to at the end.
To say that fraud is OK in an international arena, allowing a party to profit by fraud, is egregiously at odds with what we ALL accept among ourselves as individuals. But, to my way of thinking, that principle is absolute, and it is wholly untenable morally to argue that for political reasons and ideology that we can make exceptions, just because it suits us to do so.
Most of the commenters above do not accept my arguments saying North Vietnam had a legal right to repudiate an agreement and invade the South. I respect the right of people to express that disagreement, but I don’t respect and am utterly contemptuous of any argument that immediately replies by avoiding the issue and labelling me as a “communist ideologue” for example. It is much more honest and rational to express disagreement and leave it at that.
The North Vietnamese committed horrendous atrocities that by the Geneva Conventions were banned. The US dropped bombs and napalm on men, women and children. Both sides were morally and legally wrong on that score.
To use an argument advanced here that because you never signed something you are not bound by it, is a fallacy. Because, I can reverse that argument and say “Nation X didn’t sign the Geneva Convention so they are not bound by it”
That’s the moral mess that results from disregarding immutable human values crafted aeons ago.
Deals are deals, contracts are contracts and peace agreements are contracts and deals as well. Killing innocent civilians is both morally and legally wrong. Committing fraud and cheating is likewise morally and legally wrong. No exceptions.
What I mentioned earlier: the problem of course in peace agreements internationally, which differentiates it from domestic “peace agreements” is lack of enforcement. A sovereign state has the monopoly on use of force, but internationally there is no elected body with a single authority and police force to enforce infringements impartially. Infringements have always been handled by nations in union who have a common cause but act for political reasons and rarely impartially.
That was the tragedy of Vietnam.
One question that I have, redolent of my argument. If overnight we returned to a state of anarchy, would it then be OK to commit fraud and cheat?
Sorry for drawing the stoush even more off-topic, and commenting heavily under the influence of alcohol.
…
Rob,
Now, Rob, given your position on a summary execution which you acknowledge to be illegal and unjustified, how can you object to summary acts of ‘justice’ outside the legal system anywhere in the world? To purges, pogroms, riots, acts of terrorism? How dare you not have a problem with summary executions?
I’m going to fucking quote you on that the next time you show your morally equivalent gravatar around here next time.
I don’t have a ‘big problem’ with the commander of a company who have just discovered the murdered bodies of their fathers, mothers and children being overcome with rage and grief to the point of executing on the spot an enemy combatant who was one of the ones responsible for the massacre. Regrettable, but understandable.
The commander should have been reminded of the rules of war and the treatment of prisoners, court-martialed, and likely demoted. I don’t think the offence merited worse than that.
These were specific circumstances that evoked a specific response. It’s ridiculous to extrapolate from that position to non- or extra-judicial killings generally.
At international law, Liam, it was probably a lawful killing and neither a lynching (which implies that someone is chosen at random to avenge a crime) nor a war crime. Under the international law that covers crimes in a time of war if an active participant in an act of war is found not wearing an open insignia declaring his allegiance and commits an act of war then he is guilty of “perfidy” and can be legally shot out of hand.
As I recall the video the person shot was in caught in civilian clothing and had engaged in an act of deception in getting access to the police barracks to murder women and children. Under international law he had no rights at all and the person who shot him was quite entitled to do so and guilty of no crime at all (except for idiocy in being filmed doing it).
I am not writing this to justify what his killer did but to point out the way the law works. It is not a subtle instument that always favours one side (naturally the one you favour) as David has tried to contrive.
It is a blunt instrument which, in this instance, falls in favour of the killer.
GregM says:
http://www.fed-soc.org/pdf/ABARespID.pdf
`No wonder the North Vietnamese felt cheated of a political victory in the South, which I assert most historians agree, (but we’ll never know for sure) would likely have accrued in an internationally supervised election. They launched attacks later on. Meantime many in the South…’
We can play with what if scenarios:
What if the British had not let the French resume in Vietnam at the end of WWII, to help the French feel good about themselves. They didn’t, it was a blunder.
So, sure “…we’ll never know for sure..” but, it was possible to make a v. good guess of what a another brutal regime entails for the Vietnamese, and geo-politically.
Ho Chi Minh exploited resentment of the French, and any sentiment for independence, in the pursuit of his ugly aims.
The problem of international law is, it is totally divorced from the grounds of common law, which is uncompromised property rights including in oneself and through all its applications inlcusive of freedom of contract. So, the basis is property rights and economically free action. Whatever `International law’ is supposed to mean, it certainly has no bearing on the liberty of individuals.
It is all the more absurd since it seems to assume, therefore, say, a common law country and, say, a theocracy, are observing the same tradition of law. It is just nonsense.
So, there are two completely different matters, voluntary commerce between individuals, and restricted treaties between governments which serve only very limited purposes.
What does it mean, then to apply common law terms to examining such matters, other than nonsense. More so, in view of the ramifications some of which you, Peter, stated:
`arguments saying North Vietnam had a legal right to repudiate an agreement and invade the South.’
A `legal right’ to do what, exactly? Invade not just the South, but so that Ho Chi Minh could to subjugate and tyrannise and do worse to the South Vietnamese, treat them as hsi personal property and throw them into rubbish dumps when it suits them.
Invade the South becuase poor little Ho couldn’t get his way. To visit war and destruction upon the South because of, what, silly little agreements turning on the rot of international law.
Look at the date again, Peter,
“1956, close to 50,000 peasants were executed in North Vietnam. [As Nguyen Manh Tuong stated at the 1956 National Congress in Hanoi: ‘It is better to kill 10 innocent people then let one enemy escape.’] We knew that after the division of the country nearly 1 million North Vietnamese had fled to the South. ”
1956, Peter, just two years after that Geneva Conference, Ho Chi Minh and his band of mass murderers had ordered the massacre of 50,000 peasants in the North, not the South. It begs the question, what was already the reality of the Communist tyranny over the North, before the War, since that massacre suggests the regime was already a hideously evil regime, as Tuong’s declaration makes plain enough.
But, as greg M stated, the first post,has precisely to do with your argument because of your conclusion, when the
the massacres, systematic massacres committed as a deliberate and systematic policy of the Communist terrorist regime,were not due to the U.S., the slaughter of Vietnamese was the act of Ho Chi Minh and his butchers, and the commenced butchering Vietanmese before the War, as the massacre of 1956 is evidence and as Tuong declared, for that lot, mass murder was a matter of policy.
As for the French –
`The French and the North were making peace; the puppets and the latent usurper Diem were not, but the latter was planning doubtlessly to get rid of Bao Dai at the earliest opportunity with a very cunning plan.’
Right, they made friends with Saddam Hussein and built him a nuclear weapons production plant. They have made friends with the fat savage of the jungle, Mugabe of Zimbwabe, and supply him with weaponry. They protected that vile primitive butcher, the Ayatollah. They have a habit of making peace and propping up, and sheltering butchers. Don’t bring the French into it Peter, they are a joke, the sort of joke which runs: oh on, they’re at it again.
This makes the whole rubbish of `international law’ look far more stupid than it is, one will go further, it’s the refuge of those who would play at being dictators and bullies, when faced by those with spine,and those types are gutless, cowards. My betting is, if Ho got his just deserts as Gueverra did, he too would, as did the gutless mass murderer Che was, would have screamed and cried and whined for his life.
Peter, Ho’s bunch of savages were into the butchering business well before the U.S. and Australia took them on. North Vietnamese did not flee South, before the War, because he was the nice uncle the French and lefty journos depicted him as. He was a nasty mass murdering, intent on imposing the savagery of communism in the making early on.
Amnd you know the funny thing,Peter, the Vietnamese wanted the English to stay after WII because what they most desired was economic freedom, and not exchange of repressive French colonial rule and not that echanged for the terrifying rule of communists.
And you say, Peter, while Ho was making life on earth hell for North Vietnamese, he had a `right’ to roll into the South and do the same to the Southern Vietnamese population.
You do realise what you are actually attempting to justify, Peter, for I ask the question again:
Would Peter care to reconsider what he wrote? Or, will he, like so many journalists have, and too many do still, along with story writers pretending to be historians, ignore what the commie butchers were really on about and did?
Bye the bye, some journos, Peter, didn’t simply ignore the realities of Ho Chi Minh’s commie regime, they served it.Those who did, told deliberate lies. They aided and abetted and worked mass murdering butchers, and told lies in the west to serve those evil bastards. Sod the French Peter, they have a habit of adiding and abetting monsters and they are still at it.
His name may be Douglas, but I hear a voice from the south. Too full of fire for it not to be personal on some level.
Where do you get this stuff? Go to a Magistrate’s Court some day. You’ll find that a large percentage of the defendants there are mentally ill and you won’t find any Magistrates (Pat O’Shane may be an exception) deciding that because they have a mental illness they are not fit to plead. What the English Courts decided to adopt in 1843 were the M’Naghten Rules, which are about insanity specifically, and not mental illness generally. The Rules have very narrow application.
http://www.lawrence.edu/fast/BOARDMAW/mcntn_rules.html
The common law until the late twentieth century was that there could not be rape in marriage for the reason that the marriage vows implied consent which could not be retracted. The English courts did not change the law in the 1800s or thereabouts. They changed it in 1991. In Australia the common law was overturned by statute.
http://www.rjerrard.co.uk/law/articles/rape.htm
Does this mean that you are now retracting your baseless claim that
ie that the US, and the US alone, was responsible for all of the deaths in Vietnam?
No it is not a fallacy. You are the person who advanced an analysis of the issue of culpability for deaths in Vietnam using domestic contract law. At contract law a person is not bound to a contract if they are not a party to it. You may think that is immoral, but that is the law and has been for several centuries. The same thing applies with international treaties.
And your point is? The State of Vietnam did not commit a fraud or cheat by not signing the Geneva Accord. It was up-front in saying that it would not. And it stuck with that position. There is no fraud or cheating in doing that.
No, the tragedy of Vietnam was that the North Vietnamese had adopted a Stalinist brand of Marxism/Leninism which, at its very core, divided society into class enemies and then, as a policy, persecuted and murdered its class enemies, and anyone who was a threat to its absolute monopoly on power, including a lot of anti-French but non-communist nationalist leaders. Is it any wonder then that a million people moved out of north Vietnam into the south to avoid persecution and murder and that the government of South Vietnam fought to oppose the imposition of the communist ideology in the south. I really think you know nothing about Vietnamese history.
However you are right in your later post. I had thought that there was an exception for acts of perfidy but apparently not.
Rob:
==”I know many who swear it was the media lost them the war, not the battlefield enemy, and they’ll go to their graves believing it”.
Well, there are still whole battalions of experts running around trying to equate the First World War German soldiers’ belief that they lost the war because of a perceived Socialist Stab-In-The-Back …. with …. Viet-nam War veterans’ belief that their war was not lost in-country but it was lost by the news media back home in America.
Most of those on the Communists side with whom I have talked since the end of that war are still amazed at how readily America and its allies gave up the ghost in response to pressure at home.
Now, back to the discussion on law ……
Um guys, the war’s over. Nixon lost and IndoChina won.
GregM
Criminal Law, Text and Cases, L Waller and CR Williams, Butterworths 2001.
Clearly not by using google as a primary source.
The other issues raised have been well and truly coverered and I’m sorry that you don’t seem to understand that where consideration in a contract does not materialise, a party has the right to repudiate, and the consequences of that.
I’ll close this off now as it has gone well off thread and into point scoring on side issues, and I have no more patience nor time, to rebut more erroneous statements of law.