Without delving further into the sources of international law, we must briefly analyze international law as a legal system. First, let us deal briefly with the one school of thought that international law is not a legal system and then turn our attention to the analysis of international law as a legal system. The first school would say: "No, international law is not law. It is nothing more than international morality. It is a set of rules of morality which apply only to the conscience. There is no sovereign political authority above the sovereign states which could enforce such rules, so it is not law." 13

Those who insist that international law is not a legal system are principally followers of the text-writers who regard nothing as law which is not the will of a political superior, i.e., law is command issued by a legislature, dictator, or other lawmaking body and backed by superior force. This is not a correct definition because it covers only written or statutory law and ignores the unwritten or customary law. If we subscribed to such definition we could not account for the existence of the English Common Law or account for the existence of customary law, which does exist everywhere. Further, such a theory is historically unsound. Most of the characteristics which are thought to throw doubt on the legal character of international law, such as its basis in custom, voluntary submission to the jurisdiction of the court, absence of regular processes either for creating or enforcing it, are similar features of early legal systems, and it is only in modern times that we have come to regard it as natural that the state should enact new laws and the procedure for enforcing them.15

Turning to the analysis of international law as a legal system, most writers agree that the only essential conditions for the existence of law are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity.16 It appears that international law on the whole seems to satisfy the conditions. Clearly there is an international community of nations and questions of international law are invariably treated as legal questions by the foreign offices which conduct our international business; in the courts, national or international, before which these questions are brought; and authorities and precedents are cited as a matter of course."7

13. Von Schuschnigg, International Law, 31–39 (1959). 14. Lauterpacht, supra note 4 at 7.

15. Brierly, supra note 5 at 68-71.

16. Lauterpacht, supra note 4 at 10; Brierly, supra note 5 at 71. 17. Brierly, supra note 5 at 69.

To examine thoroughly the Law of Nations as a legal system, let us break down the essential conditions for the existence of law and look for the true basis of international law. As previously indicated, the existence at the present time of an international political community of one hundred twenty nations cannot be denied, even if we so desired. We need not further concern ourselves with that condition. The second condition, recognition of settled rules as binding on the members of the political community, boils down to nothing more than common consent. Stated simply, law is law because an overwhelming majority of the members of a community consent that it is law. Thus, the basis of all law is common consent.18 This consent may be either tacit or express.

Applying this basis of all law to the international community, we find that the customary rules of international law have grown from the common consent of the states of the international community. Although common consent to the customary rules of conduct was tacit in the beginning, as the needs of the international community of states increased, the common consent became express in many instances by virtue of law-making treaties, e.g., the 1958 Law of the Sea Convention, etc. Thus, what has gradually developed as the Law of Nations is a system of customary rules augmented by conventional, or treaty-made, rules which by common consent we determine the rights and regulate the intercourse of independent states in peace and war.

One further explanation should be made. What has been discussed has been public international law as opposed to private international law. As a general rule private international law is not international law.19 It takes on the international character because it concerns mainly matters between individuals of different states in the international community. Public international law regulates the conduct of independent states in their relations with each other while private international law regulates mainly private rights between individuals which involve a diversity of municipal laws and jurisdictions applicable to the persons, facts, or things in dispute.20 For example, private international law deals with such questions as whether a person owes allegiance to a particular state where he is domiciled, or whether his property, status, rights, and duties are governed by the law of the place where the property is situated, the law of the place where the rights were 18. Lauterpacht, supra note 4 at 15.

19. Id. at 6.

20. Black, supra note 3.

acquired, the law of the court where suit is brought, or the law of the domicile of the party.

WHY STUDY INTERNATIONAL LAW?

With this explanation in hand one may ask: "What is its significance to the naval officer?" With uniformed lawyers available in the military services, political advisors assigned to major commands, and ready access to departmental headquarters and the State Department in Washington through modern communications, why should naval officers study or concern themselves with the study of international law?

In answer to this question three principal reasons may be advanced. First, all military men are naturally interested in increasing the understanding of international law and in improving it so that it may better meet the needs of the modern world. The military is a fertile field in working toward an increased understanding of international law.

Secondly, the more a military commander knows about the subject the better his position to discharge his duties and responsibilities as a military officer and commander. A commander would be hard pressed to request instructions concerning an international law situation unless he understood it and could analyze and evaluate the facts. Without some understanding of international law the commander will not recognize the salient facts much less analyze and evaluate them.

Military officers as a class deal in the arena of international law and international relations more than any governmental group with the exception of State Department personnel. Our commanders on foreign soil do so daily. The commander in Korea is operating under an international organization, the United Nations, carrying out or enforcing an armistice or truce. If he is unfamiliar with its provisions, its implications, and its legal significance in the international community, he will be hard pressed to fulfill the responsibilities reposed upon his shoulders. The commander in Berlin must know the terms of the agreement under which he is garrisoned in Berlin, where the North Atlantic Treaty Organization fits into the scheme of things, how far he can go to stay within the agreement, how far may he permit the East Germans to go before they violate the terms of the agreement, and the legal implications of each of these situations. The commander at Guantanamo Bay, Cuba, must know the terms of the two treaties and the lease agreement between

the U.S. and Cuba which govern our rights to the Naval Base at Guantanamo in order not to give Castro any basis for abrogating these agreements. The commanding officer of any naval activity stationed in a foreign country must be familiar with the agreements under which he is operating, e.g., base rights and Status of Forces Agreements.21 The commander at sea must know the rights and obligations with respect to international waters, territorial sea, the international rules of the road, the rights of a Man-of-War in foreign territorial seas and many others. 22 The air commander must realize the legal significance of foreign boundaries, over-flying foreign territory, base rights, and other rights obtained from foreign governments. These are all matters of international law and international relations. It is imperative that the commander understand his position in the international scheme.

The third reason addresses itself to the obligations of officers of the Armed Forces of the United States to observe international law. This particular area requires a more detailed discussion than the first two inasmuch as it is well for all of us to dwell on the subject from time to time.

OBLIGATIONS OF NAVAL OFFICERS WITH RESPECT TO INTERNATIONAL LAW

At a very early age we are taught to abide by the law. To the child the parent is the "law." The child is soon impressed with the fact that when he does "wrong" he is punished in some fashion, whether it be by admonition or the razor strap. From this the child is made to realize what is right and wrong and the significance of doing right. Thus, our moral sense of values leads us in adulthood to observe the law. In addition, there are the ever present sanctions for securing obedience. The discussion which follows extends to a development of other sources and binding forces of the obligations to observe international law in both the national and international community. The term "national community" is used in contradistinction to "international community" and relates to those obligations emanating from the office held (Continued on page 81)

21. On Status of Forces see Watson, NATO Status of Forces Agreement-The Navy's Experience in Italy, JAG Journal Aug. 1958, p. 9; Hutchins, Criminal Jurisdiction Under the NATO Status of Forces Agreement, JAG Journal, Oct. 1963, p. 165; Stambuk, American Military Forces Abroad (1963).

22. On law of the sea see Colombos, International Law of the Sea, (5th ed. 1962); McDougal and Burke, The Public Order of the Oceans (1962).

Ο

ROLE OF INVESTIGATING OFFICER

NE OF THE least cherished assignments which is the lot of the line officer is that of investigating officer, either in the capacity of a one man investigation or as a member of a court of inquiry or board of investigation.1 Fifteen thousand and thirty-five JAG Manual investigations were received by the Judge Advocate General in fiscal year 1964.2 For the same period, the naval service listed ninety-three thousand, two hundred and seventy-seven active duty officers. It thus appears that close to twenty per cent of active duty naval service officers were investigating officers during fiscal year 1964. It therefore is likely that the line officer will assume this role early in his career.

Once appointed to a court of inquiry or formal board, the duties incumbent on such an assignment become the member's primary duties,* thereby taking precedence over his regular duties. The same rule applies to one-officer investigations except that the convening authority may specifically direct him to engage in the performance of his usual duties as well.5

Because incidents requiring investigations occur dramatically with no prior warning, investigating officers are designated as soon after the fact as practicable and rarely have sufficient opportunity to complete the many tasks and projects required by their regular duties. Frequently, the officer and his command can ill af*Lieutenant William R. Klein, USNR, is presently assigned to the Investigations Division, Office of the Judge Advocate General. He received an A.B. degree from Columbia College and an LL.B. degree from the Yale Law School. A member of the New York and Massachusetts Bars, LT Klein holds membership in the New York State, Massachusetts, American and Federal Bar Associations. He is admitted to practice before the U.S. Court of Military Appeals, U.S. Court of Claims and the U.S. Tax Court. 1. The distinction between them is set out in section 0204 of the JAG Manual.

2. No figures are available as to how many of these investigations involved more than one investigating officer or how many officers were involved in more than one investigation.

3. U.S. Bureau of the Census, Statistical Abstract of the United States, 1964 (Eighty-fifth Edition). Washington, D.C., p. 261. The breakdown is: Navy-76,446 officers; Marine Corps-16,831 officers.

4. JAG Manual, secs. 0404a, 0504a.

5. JAG Manual, sec. 0607d.

ford this new assignment because of personnel shortages, impending inspections, ship schedule commitments or any combination thereof. As a result, unless the investigation involves a subject of unusual interest, the officer may view his appointment as an unwelcome interruption of his regular duties. He knows that his regular work will continue to accumulate and thus his natural reaction often is to complete his task in an acceptable fashion as quickly and expeditiously as possible. As a result investigations are not always initially as complete as they should be.

Normally a board or court has the services of counsel and the task of the members is that much easier, as counsel, by preliminary investigation, can determine what evidence is pertinent and material and thus facilitate the board's work. In a one officer investigation, the investigating officer must do this himself. If he is fortunate, there may be a law specialist available with whom he can consult. Otherwise, he will have to ascertain what is required of him from the Manual of the Judge Advocate General and copies of prior investigations.

The importance of the investigating officer cannot be overemphasized. Regardless of the subject matter under investigation, the investigating officer has an essential role in furthering the efficiency and morale of the naval service. The thoroughness and perspicacity of his efforts will determine whether or not a permanently disabled seaman will be entitled to disability benefits or whether a fellow officer's career potential will be terminated.

JAG Manual investigations fall into two broad categories when viewed in terms of personnel conduct:

1. Personnel injuries requiring line of duty-conduct determinations.

2. Investigations involving incidents wherein a member's conduct may subject him to disciplinary or administrative action.

6. The term investigating officer as used in this article refers equally to court of inquiry and board members as well as the one man investigating officer unless otherwise indicated in the body of the article.

Both situations frequently occur in the same investigative incident."

PARTY DESIGNATION

A person subject to the Uniform Code of Military Justice or an employee of the Department of Defense whose conduct or performance of duty is "subject to inquiry" or who has a "direct interest" in the subject under investigation may properly be designated a party to an investigation.R

Only a member of the naval service subject to the Uniform Code of Military Justice whose conduct is subject to inquiry or a person subject to the Uniform Code of Military Justice who has a direct interest in the subject of inquiry and who requests to be made a party must be designated."

Any civilian employed by the Department of Defense who has a direct interest in the subject of inquiry and requests party designation, or any member of the Naval or Marine Corps Reserve not subject to the Uniform Code of Military Justice by virtue of his status whose conduct is subject to inquiry or who has a direct interest in the subject of inquiry may be designated a party upon his own request.10 Any member of the armed forces subject to the Uniform Code of Military Justice whose conduct is subject to inquiry or who has a direct interest in the subject of inquiry may be designated a party when it is considered advisable and practicable.11 No other persons may be designated parties.12

The convening authority in his appointing order should designate parties if they are apparent at the time. He may designate parties

7. Occasionally, a member of the naval service's conduct may be so obviously suspect that charges are preferred against him prior to the investigation. If such is the case and if a General CourtMartial appears warranted, were the charges substantiated, an Article 32, Uniform Code of Military Justice investigation must be conducted or the charges may not be referred to trial by General Court-Martial. (See paragraph 34, MCM 1951.)

8. JAG Manual, sec. 0301a. JAG Manual, sec. 0301b provides that a person's conduct or performance of duty is "subject to inquiry" when the person is involved in the incident or event under investigation in such a way that disciplinary action may follow; or which may affect his rights or privileges; or jeopardize his personal reputation or professional standing. JAG Manual, sec. 0301c states that a person has a "direct interest" in the subject of inquiry (1) when the findings, opinions, or recommendations of the fact-finding body may, in view of his relation to the incident or circumstances under investigation, reflect questionable or unsatisfactory conduct or performance of duty; or (2) when the findings, opinions, or recommendations may relate to a matter over which the person has a duty or right to exercise official control.

9. JAG Manual, sec. 0302.

10. Subject to the requirements of JAG Manual, sec. 0302b (3). 11. If the convening authority considers it necessary to designate

such a person a party without his consent, then application to do so must be made to the Secretary of the Navy (Judge Advocate General) stating the reasons therefor, the subject of inquiry and a brief summary of the known facts.

12. JAG Manual, sec. 0302a (5).

at any subsequent time during the proceedings.1 The investigating officer also may designate parties during the course of the investigation if the circumstances so warrant.14

Difficulty is often encountered by the investigating officer in determining who should be designated a party. What guidelines are available to the investigating officer? It is apparent that in line of duty-conduct determinations, the injured parties and the individual (s) whose acts or omissions may have caused or contributed to the injuries should be designated parties where an adverse finding may result. In investigations involving casualties, such as collisions, the problem increases in complexity. Where is the line drawn between "subject to inquiry" and "direct interest"? Is an accurate distinction possible or necessary? Normally, the commanding officer of a ship involved in an incident which is the subject of inquiry should be designated a party as should those personnel whose conduct or omissions may have had a direct bearing on the incident (e.g., the OOD or CIC officer in a collision situation). However, in situations such as an engineering casualty which may have resulted from the extended inattention to duty by many personnel, the possibility of multiple party designation arises. Assuming it can be determined that the circumstances attending the casualty occurred between a specified time period, should all watchstanders and supervisory personnel for this period as well as those responsible for their training be designated parties? Section 0303 of the Manual of the Judge Advocate General provides that party designations may be withdrawn when it appears that certain parties no longer are involved in a material degree. What is meant by material degree? Should this section be used as a means of circumventing the problem of proper party designation? Can it not be argued that it is better initially to designate all who may technically fall within sections 0301 and 0302 of the Manual of the Judge Advocate General parties and then withdraw the designations of those not involved in a material degree?

Investigations often disclose negligence in areas unrelated to the subject matter under investigation. Although those personnel responsible fall within the technical language of sections 0301 and 0302 of the JAG Manual, practical considerations indicate that unless their omissions are of a serious nature, warranting possible disciplinary action, their designation

13. JAG Manual, sec. 0302b(1). 14. JAG Manual, sec. 0302b (2).

as parties would only serve to divert the investigation from its purpose. Improved training programs can be initiated subsequently as corrective measures in such circumstances.

It is therefore advisable for the investigating officer to avoid designating non-material parties, thereby avoiding needless complications and work. Normally it is readily apparent to the investigating officer who, of necessity, should be named parties, and a thorough investigation subsequently will disclose whether additional parties should be designated.

Careful scrutiny of the instructions in the appointing order and a constant re-examination of the "purpose" of the investigation are invaluable guides in assuring that the investigation is confined to its proper limits.

CIVILIAN PARTIES

Unusual difficulties may develop when a civilian Department of Defense employee is accorded party status. Although civilian parties are entitled to all the benefits and rights of military parties and are technically entitled to the same treatment as naval personnel, it must be emphasized that they nevertheless are civilian personnel and are not subject to military control or authority and thus are not bound by military laws and regulations. A civilian party cannot be compelled to testify as a witness before a Navy investigating body unless subpoenaed by a court of inquiry.15

Where it appears that disciplinary action as to a civilian party may be appropriate, the investigating officer or board should not hesitate to recommend that such action be taken by proper authority. However, before any disciplinary action may be initiated against a civilian employee, he must be given certain rights as set forth in the Naval Civilian Personnel Instructions, section 750. These rights are not related to JAG Manual party rights and must be accorded the party by appropriate authority regardless whether he has been accorded all JAG Manual party rights. Although compliance with the Naval Civilian Personnel Instructions is not the responsibility of the military investigating officer, he nevertheless should familiarize himself with them so as to insure that no prejudicial action is taken during the military investigation which may subsequently provide the basis for the preclusion of any effective disciplinary action.

15. MCM 1951, par. 115; UCMJ, art. 135; JAG Manual, sec. 0417. See JAG Manual, sec. 0130, regarding payment of nonmilitary witnesses.

INVESTIGATING OFFICER'S RESPONSIBILITY TO

PARTY

It is essential that parties be accorded their rights immediately after they are so designated or as soon as their status is apparent to the investigating officer. Nevertheless, it is not always practical or possible to do this. The investigating officer should fully explain the reasons for such delays in the preliminary statement of his report.

It is the duty of the investigating officer or board counsel to insure that the party fully understands his rights. A verbatim reading of the pertinent JAG Manual sections, though technically correct, may prove to be inadequate and can create considerable difficulty if the party subsequently claims he lacked comprehension. If the party is represented by qualified legal military counsel, the responsibility of determining whether the party understands his JAG Manual party rights shifts to party counsel. In those situations where the party may not have the benefits of qualified counsel, the situation is more difficult, especially as a junior investigating officer may not fully understand all the implications associated with party rights.

It happens far too frequently that an overzealous investigating officer, eager to complete the investigation as quickly as possible, visits a hospital patient who is under heavy medication or in a semicomatose state, advises him of his rights, obtains an incriminating statement, and a waiver of rights only to have the party subsequently claim he never received his rights or that he was incapable of understanding them at that time. Similarly, investigating officers fail to realize that many enlisted personnel are too scared to admit noncomprehension. If a party can prove that he did not understand his rights, and thus did not properly exercise them, he will subsequently be afforded the opportunity to do so and portions of the initial investigation may be invalidated.

In those cases where parties are physically incapacitated or are geographically separated, the investigating officer must determine whether he can afford to wait until the parties are assembled and physically capable of participating in the proceedings or whether pending current factors as personnel orders or the necessity of removing pertinent physical evidence (such as damaged property) would demand immediate action. Photographs or affidavits often may simplify matters. However, common sense may well be the best criteria.