NND Project Number: NND 63316. By: NWD Date: 2011
It was further agree that the term "Hot Pursuit" as employed in NSC 5429/5, paragraph 5-g, and NSC 5064 must be regarded as merely descriptive of the policy established by those papers rather than the legal justification for such policy. The international law doctrine of "Hot Pursuit" cannot, alone, be relied on to justify the action required and reliance on that legal doctrine would not appear to be essential to the purpose of the documents. Because of those considerations, and because the development of a certain amount of confusion between the non-legal descriptive qualities and the juridical implications of the term "Hot Pursuit" cannot be avoided, it was felt that its usage in the NSC papers under discussion is undesirable. At least on representative (Navy) indicated that his service has experienced certain operational difficulties in preparing for implementing NSC policy, simply because Navy personnel are accustomed to using the term "Hot Pursuit" in strict international law sense.
The meeting considered whether it would be advisable to adopt the term "Defensive Pursuit" in lieu of "Hot Pursuit", as suggested in the JCS paper. This solution, however, was objected to on the ground that it would amount to the creation of a new term of art in international law and that furthermore it was, on its face, somewhat misleading. it was apparent that agreement could not be readily obtained among the lawyers in the Government on the coining of this new term.
In view of the foregoing, it was the consensus of the meeting that confusion could best be avoided by eliminating altogether the use of legal terminology in describing the policy set forth in the two NSC papers. In other words, no terms of art were necessary to describe the policy obviously intended. Moreover, it was the unanimous view of the meeting that the legal terminology could be eliminated from the two NSC papers in question without any change whatever in substantive meaning of these papers. Accordingly, it was agreed to recommend that the ambiguous words "Hot Pursuit" be stricken from NSC 5429/5 (paragraph 5-g) and NSC 5604 and that in their place should be substituted the words "Immediate Pursuit" which have no specialized connotations in law.
Thus, NSC 5429/5, paragraph 5-g, should be redrafted to read as follows:
- (1) Issue a directive to its armed forces that, in the event of unprovoked Communist armed attack against U. S. military or non-military personnel, aircraft, or vessels outside Communist territory, U. S. forces in the area will take against the Communist attacking during the course of the attack [immediate and] aggressive protective measures, including if necessary and feasible [hot] immediate pursuit of the Communist attacking force into hostile airspace or waters.
