designate another officer to conduct this review, but because of the maturity of judgment required, the Executive Officer is probably the best choice.

The Executive Officer must first decide whether or not to continue or impose restraint to insure the presence of the accused at Mast. Although such restraint may be by arrest, restriction to the limits of the ship or station is almost invariably used if a guarantee of appearance is considered necessary. While many commanding officers prefer to personally rule on each pre-Mast restraint, there appears to be little reason why such authority may not be delegated by the C.O. In exercising this discretion, the Executive Officer should consider whether the accused was involuntarily returned to the ship, threatened to jump ship, has a propensity for flight, or would be dangerous if at liberty.

The principal purpose of the review is to ascertain that the matter is ready for Mast. Available to the Executive Officer are the preliminary inquiry report and the option of reconsidering the evidence. If a hearing, or screening mast as it is sometimes called, is held in the presence of the accused, his rights must again be safeguarded by an Article 31 warning. Thus, the Executive Officer may direct further investigation; dismiss or excuse very minor or frivolous offenses, subject to confirmation by the C.O.; or approve the case for Captain's Mast.

If not "attached to or embarked in a vessel", the accused may demand trial by court-martial in lieu of non-judicial punishment. Although this option may be exercised at any time before punishment is imposed, the Executive Officer's review appears to be an opportune time for the accused to make such a demand, as the Exec is well situated to explain the consequences of a court-martial trial as contrasted to non-judicial punishment. It has been observed recently that the relatively few demands for trial by courtmartial in lieu of mast are a tribute to our commanding officers because they indicate that our men have confidence that they will be treated fairly by their commanding officers.

The Executive Officer then confers with his Captain in order to recommend disposition of the case. This conference is a very valuable adjunct to every commanding officer's program of discipline and morale, permitting the Exec to glean his Captain's philosophy on the treatment

of offenders, assuring that the Captain is well prepared to conduct the Mast, and encouraging both officers to seek for underlying causes of disciplinary infractions. The Captain has the opportunity to read the report slip, the preliminary inquiry report, and the service record of the accused-in the privacy of his cabin and with his Exec standing by to provide information and advice. It is here that the accused and the offense may be evaluated in terms of the individual, the crew, and the command. Successively resolving final alternatives to a Mast, that of referring the case directly to a court-martial for trial or to a superior commander for disposition, the Captain concludes by setting a date and time for the conduct of the Mast. The availability of witnesses, preemption of the Captain's attention by operations at sea, or other unavoidable reasons may delay the holding of a Mast; but, otherwise, the commanding officer must zealously insist that the accused be brought before Mast as soon after being reported for the commission of an offense as possible. It is an axiom of justice that punishment (or exoneration) be swift. The commanding officer may prefer to hold Mast immediately following his conference with the Exec while the circumstances are fresh in his mind. If so, it is incumbent upon the Exec to obtain the Captain's desires as to the time of the Mast sufficiently in advance in order to assemble all required persons.

The Mast should be formalized as to place, time, uniforms, military etiquette, and procedure in order to lend dignity and impressiveness to the proceedings. Many a captain of a ship whose sides are badly in need of repainting has been faced with the rueful necessity of knocking off the chipping hammers so that he could hear what was being said at Mast. Intrusions and distractions should not be tolerated, and the Mast space should be large enough to accommodate all the persons needed.

The commanding officer should require the attendance of certain persons at Mast, among whom should always be the Executive Officer, Legal Officer, Chief Master-At-Arms, and Legal Yeoman. In addition to the accused, his division officer and all witnesses should be present. Although the commanding officer can appoint an officer to conduct the hearing for him, if there are a great number of witnesses, by invoking

the extraordinary circumstances of paragraph 133b. of the Manual for Courts-Martial, it is strongly recommended that if at all practicable, the C.O. himself hear all witnesses.

When the permanent party to the Mast is present and the accused and all witnesses are standing by outside of the Mast area, the Chief Master-At-Arms reports to the Captain that the Mast reports are assembled and escorts the Captain to the Mast. The C.M.A.A. then presents the accused who is informed of the offenses for which he has been reported and of his rights under Article 31. It is here that the commanding officer's homework first begins to manifest itself, for he should be able to explain in words which are readily understandable to the accused how the alleged facts of the accused's act (or omission) comprised an offense under the U.C.M.J. Or, in other words, the accused is entitled to know with what he is charged. In advising the accused of his rights under Article 31, the Captain will make the best impression if he memorizes the elements of each of the rights and then extemporizes them in simple words.

A few thoughts on the Captain's own image may be in order here. Above all he must remain calm, cool and collected at Mast. There are times when a C.O. is provoked beyond exasperation when the accused before him has flagrantly disregarded previous admonitions and indifferently dishonored himself and the Naval service. But the Captain epitomizes fairness and justice, so he must speak in a firmly modulated voice, listen attentively, and encourage frank admissions and understanding.

After the charge and warning, the accused should be permitted to plead whether or not he is guilty. This can be handled by the Captain's asking the accused whether he was in fact absent at the time stated, whether he did speak the words in question, whether he failed to observe reveille on the particular day, etc. If the accused admits the offense, technically all that remains is to award punishment; however, many C.O.s continue the examination in order to determine the reason for the offense.

When the accused denies committing the offense for which he was reported, the Captain should first call on the reporting officer or petty officer to relate the happening of the offense, and then the accused's version should be requested. Additional witnesses are called as necessary to support or deny essential elements of previous testimony until the Captain is satisfied that he

has elicited the truth or that further testimony would prove nothing. Careful questioning by the Captain will help to bring out the knowledge which the witness has of the facts in dispute. Other evidence, such as a note from a conductor stating that a train was delayed, or another man's jumper which had been found in the accused's locker, should be likewise admitted for consideration by the Captain. Sometimes the accused will testify freely only if he can speak privately to his Captain, who should be inclined to grant the request and temporarily excuse all other persons from the Mast. The Commanding Officer is not required to follow any rules of evidence, and he is well advised to avoid becoming unnecessarily technical in this area; however, in deciding whether the charge was proved, he should at least in his mind distinguish between fact and opinion, recognize that there are variations in the competency of witnesses, and allow for the weakness of hearsay evidence.

In developing the proof or seeking the motive for the offense, the Captain must also be receptive to any mitigating or extenuating aspects.

After hearing all the evidence, the C.O. should request the division officer of the accused to state his opinion of the character and reputation of the accused. This not only permits the Captain to account for all of the circumstances of the offense before awarding punishment, much as a judge in a criminal court would require a report from probation authorities, but it reinforces the authority of the division officer.

The Captain may now dispose of the case. He may dismiss the charges because of insufficient evidence, excuse the offense because of mitigation or extenuation, refer the case to a summary or special court-martial (if he has the authority to convene), order an Article 32 investigation to determine appropriateness of referral to a general court-martial, refer to a superior, or award punishment.

Nonjudicial punishment, under Article 15 and SecNav regulation, which may be imposed upon officers comprises admonition or reprimand and restriction to limits for 30 days, or for 15 days if the C.O. is below the grade of LCDR. The following table shows the nonjudicial punishments which the U.C.M.J. and Presidential and SecNav regulations authorize for award to enlisted personnel.

(1) One or more of the authorized punishments, subject to apportionment when applicable, in addition to or in lieu of admonition or reprimand.

(2) Normally should not be imposed for more than two hours per day.

(3) Imposable only on personnel below pay grade E-4. (4) Imposable only on shipboard personnel below pay grade E-4.

(5) If within the promotion authority of the officer imposing the punishment. Pay grades E-7 (permanent) and above in the Marine Corps may be reduced only by the Commandant.

It is in the measure of punishment that the discretion of the commanding officer finds its greatest outlet. He is provided with a wide variety of punishments from which to select the particular combination which in his judgment best applies to the offense, the offender, and the circumstances of the offense. The judicious commanding officer reflects long and hard on these relationships. Of course he also takes into account practical limitations on particular punishments, such as the lack of accessible detention facilities or the relatively nonpunitive effect of forfeiture or detention of pay in a ship at sea.

Rather than just pronouncing sentence, the Captain should explain to the accused why the particular punishment was awarded. Here the Captain can comment on repeated offenses, extenuation and mitigation, and character and reputation as they influenced the punishment selected. At this time also, the Captain has a wonderful opportunity to slant a few words toward the prevention of recurrence of the offense and for the benefit of the crew. In addition, this explains to the crew why apparently identical offenses receive different punishments.

One more formality, that of informing the

accused of the right of appeal permitted by Article 15 (e) as expanded by the JAG Manual, is required before conclusion of the Mast. As in the earlier step of the Article 31 warning, the C.O. should set the right forth in his own words, if possible. Parenthetically, it may be noted that there have been relatively few appeals, which observers consider a tribute to the fairness of the C.O. Now the Mast is ended and the C.O. is escorted out.

After the Mast the disposition should be published immediately and the punishment executed. Publication to the crew should not be overlooked and may take the form of a note in the plan of the day, a notice on bulletin boards, or announcement at morning quarters.

The Commanding Officer and superior authority on appeal are authorized to suspend, remit, mitigate or set aside nonjudicial punishments, whether executed or not. The imposing officer or his successor in command may:

1. Remit or mitigate any part or amount of the punishment which is unexecuted.

2. Set aside all or some part of the punishment, executed or not, and restore all rights privileges and property affected.

3. Mitigate reduction, executed or not, to forfeiture or detention of pay.

4. Suspend on probation any unexecuted part or amount of the punishment.

5. Suspend a reduction or forfeiture, whether executed or not. A forfeiture or detention of pay is considered to be unexecuted as long as it remains uncollected.

Additional regulations on suspension, remission, mitigation, and setting aside may be found in the Manual for Courts-Martial and the JAG Manual. The Captain may utilize these options at the time of awarding punishment, as, for example, imposing a reduction in grade but susNot pending it on probation for six months. only is the flexibility of punishments available to the C.O. enlarged, but the advantage of the Mast over a court-martial is apparent.

This article is an attempt to suggest some ideas which have characterized the effective use of the Captain's Mast as a tool of discipline, morale, and justice. Some of the less commonly applied features of Article 15, such as the peculiar authority of a flag officer, have been omitted, and although the setting described for the Captain's Mast is usually imagined to be a ship the ideas have application to a shore station or Marine Corps "Office Hours" as well.

NTERNATIONAL LAW IS the step-child of the family of law. Its very existence is denied by some while others recognize its existence but still question its parentage. Resort to the scholars will reveal innumerable volumes written on the subject, its changes, and its development through the years. Yet, some men say: "How can you explain or define something that does not exist?" Some may ask: "How can one say that there is international law when war exists; the communist crush of the 1956 Hungarian revolt goes unpunished; and Castro has been permitted by civilized nations to direct the second trial of Cubans acquitted by military tribunal and to confiscate property without compensation?" These are difficult questions to answer. But they are important and once we have an explanation of international law we will see some answers to these questions, and reach the conclusion that international law does exist as a legal system.

First, we must not underestimate or overestimate the potential of international law. It must be understood that international law is not as exact a science as mathematics, physics, or even other branches of the law. Certainly it is not a cure-all for the ills of the international community. International law has been most successful in minor matters and with the lesser causes of international friction. But it has been successful, and its best results have been in insuring stability in the dealings of the nations of the world with one another and the adoption of schemes for avoidance and solution of conflicts or disputes, e.g., The League of Nations, the United Nations, and the Organization of American States.

Secondly, we must realize that uniformity in the interpretation of laws does not exist. What may be repugnant to us as citizens of the United States may be an acceptable principle of law in other countries. For example, the principle of double jeopardy as we know it is sacred to us,

*Commander Larry G. Parks, USN, is currently assigned to the International Law Division, Office of the Judge Advocate General. A graduate of the Armed Forces Staff College, he holds the B.A. degree from Illinois College and the LL.B. degree from St. Louis University. Commander Parks is a member of the Missouri bar, the American Bar Association, the Federal Bar Association and the Bar of the Court of Military Appeals.

yet in Cuba that is not so at the present time. In Cuba at present it is an acceptable principle of law to try a person a second time for the same offense, or at least it was during the time of the Castro takeover. Those who enjoy pointing the accusing finger at the deficiencies of law are reminded that this lack of unanimity in the interpretation of law has not been restricted to law, as so aptly stated by Mr. Justice Tom Clark of the Supreme Court:

Differences of opinion must be expected on legal questions as on other subjects. Every newspaper that is published reflects differences not only in reporting but in editorials. Clergymen differ on theology, professors argue over philosophy, physicists tangle on physical phenomena and doctors are at variance not only on diagnosis but on cure. The history of progress is filled with many pages of disagreement.1

From the historical viewpoint international law has been developed and recorded in the writings of a few great writers. Research will reveal that following each great conflict a man has stepped to the forefront with writings on international law, or the Law of Nations, as it is sometimes known, and has been accepted as the authority for his time. In this category are Vitoria, Grotius, Vattel, Pufendorf, van Bynkershoek, Oppenheim, Brierly, etc. For those who want to become students of international law, a study of the writings of these men will be advantageous. A working knowledge of international law may be obtained from any one of the texts referenced herein. A particularly good primer is Brittin and Watson's International Law for Seagoing Officers.2

INTERNATIONAL LAW DEFINED

To commence an explanation of international law we must first define international law. A dictionary definition of international law is: "the law which regulates the intercourse of nations." Such a definition sounds simple, but is apt to be misleading. If we stopped with a simple dictionary definition and looked no further, we might well believe that international law is a

1. 19 F.R.D. 309 (1956).

2. Brittin and Watson, International Law for Seagoing Officers, 2d ed. (1960).

3. Black, Law Dictionary (4th ed., 1951).

nice, neat, legal package made up of codes, codicils, covenants, and courts, by which civilized nations of the world deal with each other. Nothing could be further from the truth. If international law is not a neat little package available at the whim of a sovereign, what is it? Of necessity one must look to the sources of international law. The two principal sources of international law are custom and treaties. Other sources include general principles of law recognized by nations, judicial precedents, i.e., court decisions, and as previously indicated, textwriters."

The first source of international law that we shall discuss, custom, is defined as established or recognized usage." Hans Kelsen, a well known publicist of our time, uses the term "basic norm" as descriptive of that upon which all international law and all national legal systems depend. He states his basic principle upon which all else depends as: "The States ought to behave as they have customarily behaved." But, custom in its legal sense means something more than mere habit and usage. It is obligatory usage for those who follow it. We follow because we feel obligated to do so.

The growth of new custom is always a slow process and the character of international society makes it particularly slow in the international community. It is possible, however, for new custom to develop and be accepted as law. A recent example of this is in the air. With the coming of the Air Age, territorial sovereignty in the air space reared its head. It was soon firmly established in international law that each nation's territorial jurisdiction extends at least to the air space above its geographical boundaries. However, not all problems of international law inherent with the coming of the Air Age have been solved and in some respects international law concerning the subject is not firmly established.

The technical advancements in the launching and operation of space objects is resulting in the development of new principles of international space law. Also, the coming of the nuclear-powered ship must necessarily result in the development of new principles of international maritime law by custom as well as by international agreements, particularly rules and regulations for promoting safety of life at sea. The Interna4. 1 Lauterpacht, Oppenheim's International Law, 25 (8th ed. 1955). 5. Brierly, The Law of Nations, 6th ed. 62–66 (1963).

6. The Winston Dictionary (1946).

7. Kelsen, General Theory of Law and State, 369 (1945).

8. Brierly, supra note 5 at 59-62.

9. Fenwick, International Law, 3rd ed., 408–413 (1952).

tional Regulations for Preventing Collisions at Sea must be brought continuously under the strong light of close scrutiny with the addition to our fleet of increasing numbers of nuclearpowered submarines and surface vessels, as well as the inevitable addition of nuclear-powered shipping to the commercial fleet and to foreign navies.

As mentioned before, the second principal source of international law is treaties. A treaty in international law is an agreement or contract between two or more independent nations with a view to public welfare.10 These international agreements are ofttimes called by many other names, such as conventions, pacts, acts, declarations, and protocols and in modern times are used interchangeably. In substance they serve the same purpose, and we need not concern ourselves with the task of distinguishing the labels that are attached." Certainly not every treaty between two or more nations is a source of international law. They may well be a source of law for the parties to the agreement, but only in rare instances may we describe them as a source of "general" international law. About the only treaties that would qualify under the principle of general international law would be those which a large group of nations signed for the purpose of declaring their understanding of what the law is on a given subject, or of laying down new rules of conduct, or creating some international institution.12 Obviously, the law created will not be international law for every nation inasmuch as the law will not bind nations which are not parties to the treaty.

One might distinguish the two principal sources of international law with this illustration. From custom and long usage comes our customary or unwritten law, and from treaties our treaty or written law. Customary law in the internationl community is analagous to our municipal common law. It is not a creature of proper breeding, but like Topsy, "it just growed." On the other hand, treaty law in the international community is analogous to statutory law which our state legislatures enact to govern the people of the state. There being no international legislature, in the sense of a body having power to enact new international law binding on the states of the world and their peoples, treaties are utilized in the efforts to fulfill the legislative needs of the international community.

10. Black, supra note 3.

11. See Brittin and Watson, supra note 2 at 16-18 for a discussion of the terms.

12. Brierly, supra note 5 at 57-59.