The Seizure and Recovery of the S.S. Mayaguez: A Legal Analysis of United States Claims: Parr 2

• Author: Major Thomas E. Behuniak
• Pages: 03

I n part I of this two-part article, Major Behuniak began his examination ofthe legal baszsfor Cnited States actions taken in response to the 1975 s e m m by the Cam-bodian government of the Amerieanflag merchant wssel Mayaguez.

The first part, which appeared in volume 8e, set forth the facts of the ease and analyzed three of four malor. legal claims OI arguments advanced by the United States.

In the fzrst claim, the seizure of the ship is charac. terized as an act of pzraey. 1Ma3or Behuniak eoneludes that this claim is invalid because the seizure icas an ae-tion ofrepresentatiws ofa national government acting i n

'This artieie is the eeeand part of an adaptation of a them ivbmitied i o the feeulty of the National Lsu Center of George Washmgtan Unlrersity m pa~.tial satisfadon of the wqwements for the degree Master af Laws The first pmt appeared ~n volume 62 of the Milifsry Law Review. The opinions and conelu~ions expresaed in this article are tho88 of rhe author and do not neeeaanrlly represent the view of The Judge Adiscate Generalla School, the Department of the Army. or any orher garernmental agency.

their officzal capacity, and not an action of iiidiciduals for privote gain

The second eioim, closely reiated to the first, assert8 that the semue contraceaed znte~natmial la= because it took place an the high seas, not zn Cambodian temtoi.ia! watars. This elaim aim i s considered to be tnvnlzd. A!. though the seizuie took place many miles froin t k Cani-bodian mainland, tt happened near islands ow? rhich Carnbodm asserts socrretgnty. Thus, this Cmted States argument is i,scon.ect on the facts.

The third clam asserts that the ship u-as entrtled lo enjoy the itght of, and ?cas engaging in irinoeent passage. Major Behunzak considers that this c l a m is naiid on the growids that the ship was making n routine voyage over a heactly tra~elled seo lane to deliser fkight to a post zn Thailavd. The ship had no capability foor espionfige. sab-otage. "7 combat.

In part 9, belob, Mqo? Behnniak discusses the fourth and last major elom, that of se!f-defense. Zn this claim the Gnited Stoles asserts the nght to protect its nntzonnls and their property abroad. Dependent upon ihzs elninz isa furlhe? assertion by the L'ntted States, that the speclfic measure8 employed xere legally acceptable in tams of both types and amounts of force used

Con~eintng the self-defense cluim, Major Behuntak notes that there is some authority for the proposition that protection of nationals abroad 1s no longer on acceptable legal rationale The United Sattons Charter generally prohibtts use of force and tntemntion. Certainly there is danger that the self-defense argument can be abused. However. Mapr Behuniak coscludes that, despite these problems, this nght of protection continues to be needed in the absence of effective internattonal machinery to protect human rights.

Major Behumair considers also that the speezfte meas-ures employed by the Grziftd States are legally defensible. The only exception eonceins the aenal bombing opera- 60

tzons on the Canibodzan mainland, which, under the eirezcnistanees. were eieessive ia relation to the amount and types of foxe needed to iecoi'e1( the shzp and cl-e%.

As mentioned in the headnote to part 1 of this wtiele in volume 82, although the Mayaguez incident occurred in1975, it eonttnnes to have importance as a precedent far use in other situations which haw ansen subsequently. Further, it raises signifiieant questtans coneeraing the legal regime of the seas, questions which will have to be considered by international laaiyers and statesmen for years to come

TABLEOFCOXTENTS

sret*oii Page Introduction .......................................... 62Self-Defense Claim to Proteer United

Stares Nationals and Their Property: Related Claimthat Specific ivlea8ures Employed Were Proper, Under International La\>-. .................................. 63

1. The Claims ........................................ 63

   B Trends in Decision ............................ 67

   1. Self-Defense in General , . , . , , , , , , , , , , , , , , , , , 68 2. The Protection of Nationals and Their Propert?. Abroad As Self-Defense ......................... 86

3. Validity and Appraisal ........................... 103Concluding Remarks .............................. 114

   APPEXDICES.

   APPENDIX .i.

   Map of Location of the Seizure and Recovery

   of the Mayaguez ................................. 118

   APPENDIX B. United States Letter to United Nations Secretary General and Security Council ............... 119

   APPENDIX C. Cambodian Communique Offering to Releasethe Mlayaguez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

   APPEXDIX D. President Ford's Letter to the Congress, %lay 11 Statement bi LVhite House Press Secretaiy: May 14 Message to the Cambodian Authorities from the United States Government, May 15 Statement by President Ford 126

   In the spring of 1975. the United States-supported Government of the Khmer Republic surrendered to Khmer Rouge rebel forcer, who quickly farmed the Government of the National Union of Cambodia. Less than a month after its installation, this new government attempted ta assert it8 sovereignty by seizing a United States merchant vessel, the S.S. Mayaguez, which was sailing through the Gulf of Siam. After failure af diplomatic efforts to obtain the release of this ship and its crew, the United States retook the ship by armed force, and the crew was released by the Cambodians.'

   In the first part of this article, the factual histor) of the Magaguez incident vas set forth. and three arguments justifying United States action in that incident wse discussed. The first tiio claims, that of piracy and that of unlaofui seizure on the high seas, were dismissed as invalid The third claim. of nght to and engage-ment in innocent passage, UBE found to be ialid, hoaever

   This second part discuszes the claim that the United States isas acting in self-defense to protect its nationals and their property abroad. Considered in conjunction aith this claim is the closely re-lated one that the specific selEdefense measures employed were proper under international Ian.

   LA detailed factual description of the Mayaguez Incident map be found in part 1 of this article, 82 Mil. L. Rei. 41, 46 (1978)

   It 1s concluded in this part that such a self-defenze effort naz proper. In drawmg this conclusion, the author recognizes that clama of self-defense are peculiarly subject to abuse, and that efforts hare been made to limit 8% narrowly as possible the right of states to use force under any circumstances. Houever, in the absence of effective international machinery to make self-help un-necessary, it cannot he concluded that the self-defense rationale used in this case is unsound.

   A3 for the specific measures used, it will he shoun that there also were legally justifiable, with the exception of aerial bombardment of the Cambodian mainland.

   11. SELF-DEFENSE CLAIM TO PROTECT UNITED STATES NATIONALS AND THEIR PROPERTY: RELATED CLAIM THAT SPECIFIC MEASURES EMPLOYED \$'ERE PROPER UNDER

   INTERNATIOSAL LAW

   4 THE CLAIMS

   The United States asserted two claims under this heading: the ciaim of self-defense, in protecting its nationals and their property abroad; and the claim that the specific measures of forcible self-help employed in this regard were in all particulars valid under international law Because the second claim cannot he valid if the first is not also valid, they ail1 be considered together in this section. Though mutually related, the former claim is broader in scope than the latter. As such, it will be considered first.

   The claim of self-defense in protecting United States nationals and property can he found in three major statements of the United States government. In the May 14th letter to the United Nations Secretarb- General, United States Representative John Scali

   ii arned: In the absence of a positi\e response to our appeals through diplomatic channels for early action by the Cambodian authorities, my Government reaerres the nght to take such measured as may be necessary to protect the

   MILITPlRY LAW REVIEW IVOL. 83

   hves of American citizens and property. including appropriate measures of self-defense under Article 51 of the United Nations Charter.l

   In the letter informing the Vnited Nations Security Council President of actions in the Gulf of Thailand. Scali explained that. "In the circumstances the United States Gorernment has taken cer-tain appropriate measurea under Article 51 of the U.K. Charter whose purpose It is to achieve the release of the vessel and ita cred'3

   In his report to the United States Congress on the matter, Preei-dent Ford stated: "Our continued objective in this operation \\as the rescue of the captured American crew along with the retaking of the ship hlayague~."~

   This objective also w.s referred IO frequently by Secretary of State Xiasmger during a ?/lay 16th news conferenceS and again at a news conference on May 24th.6 Reference to the claim also can be found in statements by the White House Press Secretary.' Secretary of Defense Sehleeinger,B and again by the President during an interview on May 20th

   In regard to the narrower claim that the specific measures employed in self-defense were \,did, Secretary of State Kissinger. at his news conference of May 16th. defended the interdiction operation against the Cambodian gunboats as an attempt to force the boats back to the island of Koh Tang and prevent movement of any of the crew to the mainland. where rescue would become extremely difficult.Lo He defended the boarding and island operations as esaential far the recovery of the ship and rescue of its crew.

   Aith respect to the troop landing on Kah Tang, the Secretary stated: "We genuinely thought, or at least rve suspected, that a number of rhem might have been brought to the mainland. Ke

   M

   PART 2

   thought that a substantial number of them mould probably be an the island. Had we not thought this, there vas no...