promises and has continued to use portions of Laos quite as if there had never been any agreements at all. Indeed, the Kingdom of Laos deserves severe criticism for its failure to carry out its duties as a neutral. Under well-established principles of international law, I believe that the President would have the authority under my resolution to take the necessary protective measures within Laos, since Laos has been used as a staging area for attacks against American forces. Under my proposal, were it not for the existence of the express prohibitions in Cooper-Church, the President could take any military action in Laos. Indeed it is my understanding that Senator Cooper agrees that logistical support does not violate the Cooper-Church amendment. In this connection, I should like to call the committee's attention to an excellent article in the Columbia Law Review, volume 68, 1968, pages 1127-1148 entitled: "International Law and Military Operations Against Insurgents in Neutral Territory." With the committee's consent, I should like to append this article as a part of my testimony. The CHAIRMAN. Without objection, so ordered. (The information referred to follows:)

EXHIBIT III

International Law and Military Operations
against Insurgents in Neutral Territory

Note from Columbia Law Review

Vol. 68, 1968

INTRODUCTION

Public interest in international law probably is greatest during periods of world crisis. Thus, the debate between the United States and Cambodia concerning the right to pursue the Viet Cong into Cambodian territory has been followed quite widely. The press has styled the right claimed by the United States the right of "hot pursuit." The use of the phrase "hot pursuit" is enough to give a purist pause because the term has a definite meaning in international law. Briefly, it refers to the right of a coastal state to pursue and apprehend the vessels of another state on the high seas when those ships have violated a law of the coastal state in its territorial waters.

Obviously, actions which may be tolerated on the high seas may not necessarily be permitted in the course of land warfare. However, the ideological strife prevalent in modern international relations, as manifested in "wars of national liberation," makes it impossible to confine "hot pursuit" to the maritime problem. At a time when nations are willing to look to international law for guidance, as appears to be the case with the United States and Cambodia, an effort should be made to articulate the relevant principles.

It is well established that an infringement upon the territory of a sovereign state is an illegal violation of its territorial integrity2 unless justified by some principle of international law. The belligerent bears the burden of showing justification if it wishes to avoid the sanctions which the international

1. The doctrine of hot pursuit in maritime law cannot be extended directly to hot pursuit on land See, e.g., Le Monde, Sept. 4, 1957, at 1, col. 3; see also D. POWET, SELF-DEFENCE IN INTERNATIONAL LAW 40 (1958). In maritime law, the coastal state's interest in enforcing its laws outweighs the interest of the outlaw ship or the state whose flag it flies in maintaining the freedom of the seas. See 1 J. WESTLAKE, INTERNATIONAL LAW 177 (2d ed. 1910). This priority of interests does not necessarily hold true for neutrals and beiligerents in regard to land wariare. Furthermore, the maritime doctrine is applicable in times of peace and does not involve violating the territorial integrity c any state; the right ends when the ship enters the territorial waters of its home state cr of a third state. See Convention on the High Seas, art. 23, [1962] 2 U.S.T. 23:8-19. T.I.A.S. No. 5200; Schwarzenberger, The Fundamental Principles of International Late, 87 RECUEIL DES COURS DE L'Académie de DROIT INTERNATIONAL 191, 333 (1955).

A better analogy would be the right of a belligerent vessel to pursue ships of its enemy into neutral territorial waters. Here, however, it has been conceded that without a valid claim ci seli-defense or refusal of the neutral to remove the offending vessel from its waters, such action would constitute a violation of neutral rights. See J. Stost, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 400-01 (1954); 2 H. WHEATON, INTERNATIONAL LAW 33-403 (7th Eng. ed. 1944); see generally Borchard, Was Nory Delinquent in the Case of the Altmark!, 34 AM. J. INT'L L. 289 (1940); cf. The Vrow Anna Catharina, 165 Eng. Rep. 681 (High Ct. of Admiralty 1803).

2. See U.N. CHARTER art. 2, para. 4.

3. Sanctions which may be imposed by the Security Council as punishment for breaching the peace and committing acts of aggression may be found in Chapter VII of the United Nations Charter. Among them are the severance of diplomatic relations. "complete or partial interruption of economic relations and rail, sea, air, postal, telegraphic, radio and other means of communication" (Article 41), and collective military or quasi-military action by members of the United Nations (Article 42). Furthermore,

community imposes upon such wrongful conduct. Belligerents have sought to satisfy this burden either by claiming that hot pursuit is a matter of selfdefense or by asserting that even though a particular incursion is not selfdefensive, it is justifiable because the neutral state has violated one of its duties by allowing its territory to te used as a refuge. It is the purpose of this Note to analyze each of these arguments in depth, to determine their status under current international law, and to test their utility for the maintenance of orderly relations between states during the course of modern limited wars.

I. SELF-DEFENSE

Belligerents tend to think of the hot pursuit of insurgents into neutral territories as an exercise of "self-defense." In international law, self-defense, when properly invoked, may be employed to justify action which

if the belligerent can be brought before the International Court of Justice or an arbitration tribunal, it may be required to indemnify the aggrieved state.

Another sanction which may possess considerable deterrent value as the international community becomes more sophisticated is the sanction of non-participation, through which a delinquent state is deprived of the benefits of taking part in the activities of functional international organizations, such as the International Monetary Fund, International Labor Organization, and International Bank for Reconstruction and_Development For a thorough discussion of this sanction, see W. FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW $3-95 (1964).

4. At this point it is appropriate to question whether the laws of neutrality can logically be said to apply in the context of a civil war. Strictly speaking, neutrality is a concept which applies only to international warfare, and its status in a civil war in which the rebels have not been recognized as belligerents is highly doubtful. See Castrén, Cril Wer, 142-2 SUOMALAISEN TIEDEAKATEMIAN TOIMITUKSIA 120-23 (Ser. B 1966). This follows from the premise that such a civil war is solely an internal matter, to be conducted by the military and police forces of the established government as they deem fit. See Castrén, supra, at 97; Kunz, Die Anerkennung von Staaten und Regierungen im Völkerrecht, 2 HANDBUCH DES VOLKERRECHTS, Part 3, at 173 (1923). On the other hand, some writers have maintained that at least some of the laws of international war should be observed by the parties to a civil war, generally those relating to humanitarianism. See, e.g., Garner, Questions of International Law in the Spanish Civil Wer, 31 Am. J. INT'L L. 65 (1937). I this latter proposition is accepted, it still does not follow that third states are bound to follow the laws of neutrality.

Nevertheless, this does not affect the analysis of the problem significantly because the duties which a neutral state would be called upon to observe in an international war, in terms of permitting rebe! troops asylum on their territory or a base of operations, are hardly different from the duties of non-intervention in domestic affairs. See generally E STOWELL, INTERVENTION IN INTERNATIONAL LAW 345-55 (1921). Furthermore, the problem is less important in major “civil wars," such as those in Spain and Vietnam. In both cases, the political arm of the rebels was recognized by third countries as the legiti mate government of the country which was the theater of military operations, and in both the rebels controlled substantial portions of the national territory. This may well go beyond recognition of belligerency, and it gives the war an international character which for all practical purposes should bring the laws of neutrality into efect. Realistically, it is dificult to characterize the wars in Spain, Algeria, and Vietnam solely as domestic uprisings. Even if the belligerency of the rebeis is not formally recognized either by the established government or by third states, conditions may exist to afford the rebels a de facto belligerent status. For examples, see Castrén, supra, at 74-75, 100. A similar situation may occur when the rebels have been recognized by third powers as insurgents. For a full discussion of the legal effects of the recognition of insurgency, see id. at 207-23. For the purposes of this Note, it will be assumed that the conflict has reached sufficient proportions to make the recognition of belligerency justifiable. But see the discussion of the recognition of the Franco insurgents as the de jare government of Spain by Germany and Italy as not conferring the status of belligerent on the Nationalists, in N. PADELFORD, INTERNATIONAL LAW AND DIPLOMACY IN THE SPANISH CIVIL STRIFE 17 (1939).

otherwise would be illegal and may supersede the right of territorial integrity guaranteed by the United Nations Charter.5 However, there is no simple rule which determines what action is self-defensive and therefore permissible; proper analysis involves examining the problem in each of its several factual contexts and comparing them with the principles of law now in existence.

The claim of self-defense may be advanced in three quite distinct situations. Once warfare has broken out, a belligerent may feel that the threat posed by the presence of hostile forces in a neighboring neutral state warrants anticipatory defensive action. Such measures are anticipatory because they are motivated merely by the possibility of an attack. Of course, the belligerent may also claim self-defense in response to an actual attack. When the attack occurs from within neutral territory, he may assert the right to take necessary protective measures even though to do so involves operations on neutral soil. Several operations by France against Algerian rebels firing upon them from Tunisian territory provide a convenient example. Finally, defensive measures may be necessary where neutral territory is used as a sanctuary for tactical retreat and a base of operations for repeated raids. This is the basis on which the United States has sought the right to pursue the Viet Cong into Cambodia. This Note will examine in turn these three categories-action

5. See D. BOWETT, supra note 1, at 31; 2 L. OPPENHEIM, INTERNATIONAL LAW § 326, at 698 (7th ed. H. Lauterpacht 1952). Bowett distinguishes territorial integrity from territorial inviolability. The former is a right subject to the rights of other states; the latter is an absolute right imposing strict international liability upon a state which permitted its military forces to enter upon the territory of the aggrieved state. Oppenheim firds the terms synonymous and would subject them to the right of other states to selidefense. 2 L. OPPENHEIM, Supra, §§ 52a, 52aa, at 154-55.

6. The word "necessary" is used here in a strict sense and should not be coníused with "military necessity," self-preservation and Kriegsraison. The phrase "military necessity" is generally used to justify the expedient. It means that a nation engaged in war can take any steps it feels are warranted by the "necessity of war" or "seli-preservation," the latter term creating a subjective test for determining the danger into which the state or its armed forces is placed. See discussion at notes 85-88, infra, and accompanying text.

7. The French, in asserting this right, referred to it as the "droit de riposte." Sce, e.g, Le Monde, April 27, 1960, at 5, col. 2. In exercising this right, France oiten bombed insurgent gun emplacements inside Tunisia which allegedly were engaged in firing upon French units close to the border. The French attempted to justify the aerial attack en Sakiet-Sidi-Youssef on February 8, 1953 as an exercise of self-defense on the ground that Algerian rebels in Tunisia had been shooting at the French planes involved while they were over Algeria. See id., Feb. 11, 1958, at 3. col. 3; 38 U.S. DEPT OF STATE BULL 333 (1958) (news conierence of Secretary of State Dulles). However, the State Department did not regard this operation as an exercise of hot pursuit. The American definition of hot pursuit at that time was explained by Secretary Dulles as follows:

Id.

Hot pursuit is a situation where there has been an attack over domestic or international territory and the attacker is followed with continuity back to his base, which may be in other territory. The element of continuity is essential to any concept of hot pursuit. . . . actually following physically an attacker... But there was no elenient of hot pursuit in this case, or in most of these Tunisian cases, as far as I am aware.

If the plane responded to enemy fire emanating from neutral territory, however, this might well have been a justifiable measure of self-defense. The "continuous chase" doctrine is not a prerequisite to the exercise of self-defense by a belligerent in a neutral state as discussed in this Note.

against anticipated attack, action against tactical retreat, and action against actual attack.

A. Action Against Anticipated Attack

International law is most clearly settled with regard to action against anticipatory attack. This is because the Caroline case has established a strict definition of the necessity which will warrant defensive action. The belligerent must show a "necessity for self-defense, instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Under the Caroline test, a virtual emergency is required before anticipatory action is lawful. Senator Calhoun spoke of the requirement

laid down by all writers... that nothing short of extreme necessity can justify a belligerent in entering, with an armed force, on the territory of a neutral power.... (Emphasis in the original.)1o

Likewise, Lord Campbell, in defending the destruction of the Caroline, argued that a similar threat would be posed by the erection of guns on the American shore by Canadian insurgents in order to fire at British troops on the other side." Although the analogy refers to action against actual attack, it does reflect the imminent danger which is required to make anticipatory action. permissible. The Caroline doctrine received support from Vattel, the progenitor of the law of neutrality, whose treatise, written almost one hundred years earlier, was the foremost authority on the law of war during the Caroline period.12 Furthermore, the Nuremberg War Crimes Tribunal explicitly relied on the Caroline doctrine as authority to reject the claim that the invasion of Norway was a justifiable measure of self-defense.13

14

As its use at Nuremberg suggests, the Caroline doctrine remains a sensible balancing of the interests of belligerent and neutral states. Although some have said that its scope is unduly restrictive in an era of nuclear weapons,1 this objection does not apply to a war in which the use of even "tactical" nuclear weapons is highly unlikely. Furthermore, its strict approach to the use of anticipatory action is in accord with Professor McDougal's useful notion of "minimum world public order"15 as a basis for international law. At

8. The use of this term in the context in which it is employed in this Note can be found in Green, Armed Conflict, War, and Self-Defence, 6 ARCHIV DES VOLKERRECHTS 387, 433 (1957).

9. See 2 J. MOORE, DIGEST OF INTERNATIONAL LAW 412 (1906).

10. CONG. GLOBE, 27th Cong., 1st Sess., App.. at 82 (1841).

11. See 2 LIFE OF JOHN, LORD CAMPBELL 119 (2d ed. M. Hardcastle 1881). For a contemporary application of this argument, see note 7 supra.

12. See 2 E. DE VATTEL, LE DROIT DES GENS, § 119, at 149 (Fenwick transl. 1916); cf. id. § 120-30, at 149-52.

13. See International Military Tribuna! (Nuremberg), Judgment and Sentences, reprinted at 41 AM. J. INT'L L. 172, 205-07 (1947).

14. See McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 Ax. J. INT'L L 597, 598 (1953).

15. See generally M. MCDOUGAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961).