(1) The investigating officer should examine the charges for due form and review the evidence included in the preliminary inquiry report to be sure that the matters set forth in the charges are probably true. If he is not satisfied with either the form or substance, he should take appropriate action. Once satisfied, he should call in the accused and explain his rights, including the right to counsel and the right to cross-examine available witnesses. After making known to the accused the substance of the testimony of the witnesses against him, he should ascertain from the accused which of the available witnesses the latter desires to have called for cross-examination.

(2) When the desired witnesses are called for cross-examination, they should be sworn and the accused permitted to cross-examine them. The investigating officer should take notes during the cross-examination, so that he may reduce the substance of that testimony to writing for signature by the witness before the latter leaves the vicinity of the hearing room.

(3) The accused should then be afforded the opportunity to present anything he may desire in his own behalf.

(4) At the conclusion of the investigation, the investigating officer may commence the preparation of his report without awaiting any transcription of testimony, and should be able to submit a prompt and timely report.

CONCLUSION

It is not beyond the realm of possibility, if apparently unnecessary delays in processing court-martial cases continue to be called to the attention of appellate forums, that more stringent rules will be announced. This is particularly true if such delays are accompanied by violations of Articles 10 and 33. It is thus incumbent upon all concerned with the processing of cases to comply with the provisions of the Code and to get the cases to trial expeditiously. Also, as the Chief of Naval Operations has directed, a renewed effort must be made to avoid pretrial confinement except where no other acceptable alternative is available.

29. As pointed out in the Samuels case, supra note 25, the accused is not precluded from questioning absent witnesses; he may do this by deposition.

30. Although the accused may exercise his right to examine available witnesses, no verbatim transcript of the examination need be made. It is sufficient if the substance of the testimony is reduced to writing and sworn to and signed by the witness. Feld, CourtsMartial Practice and Appeal, § 23, page 40 (1957). In cases in which the preservation of verbatim testimony is considered necessary or desirable, the use of a tape recorder, not a reporter, is suggested.

31. See paragraph 34, MCM, 1951, for detailed procedural requirements.

COMP. GEN. DECISIONS

(Continued from page 94)

MEXICAN DIVORCES-Recognition by the Navy where the parties are New York domiciliaries (B-159846)

The Comptroller General has consistently held that the so-called Mexican divorce, where one party establishes a one-day residence in Mexico and then obtains a consent divorce there, places a serviceman's marital status in doubt. BAQ payments may be stopped, yet if the man remarries he cannot draw BAQ because of the doubtful validity of the prior divorce (the same will be true if he marries a woman who previously obtained a Mexican divorce). In a case in which a retired member whose retired pay is being reduced for a Family Protection Plan annuity obtains such a divorce, deductions from his retired pay for the annuity must continue since the validity of the divorce is in doubt, yet if he were to die it is questionable whether the "divorced" spouse could qualify for the annuity.

In a recent case, however, the New York Court of Appeals has given unqualified recognition to this type

of Mexican divorce where the parties are New York domiciliaries. (Rosenstiel v. Rosenstiel, 262 N.Y.S. 2d 86, 209 N.E. 2d 709 (1965)). In B-159846 of December 16, 1966, a retired officer, relying on the Rosenstiel case, sought a determination from the Comptroller General that reductions from his retired pay for a Family Protection Plan annuity be discontinued on the ground that his wife had obtained a valid Mexican divorce against him. It appeared that the member had maintained a New York mailing address for the past 13 years, but no information was received as to the wife's domicile. Following the Rosenstiel decision, the Comptroller General seemed to indicate that if it could be clearly established that both parties to the divorce were New York domiciliaries, the divorce would be recognized as valid for all purposes. In this case, however, there was no evidence of the wife's domicile and the maintenance of a New York mailing residence for 13 years by the officer was considered insufficient evidence that he was a New York domiciliary. Accordingly it was held that the reductions in the officer's retired pay must continue absent further evidence of the domicile of the parties to the divorce.

(Continued on page 118)

It is widely recognized, for instance, that warships of a foreign power are not subject to the jurisdiction of the State whose port they are visiting.1 In expressing this general rule of international law, United States Navy Regulations provide that the commanding officer of a United States warship cannot permit his command to be searched by any person representing a foreign State, nor permit any of the personnel under his command to be removed from the command by such person, "as long as he has the power to resist." 2

*Lieutenant Kallay is presently serving in the International Law Division, Office of the Judge Advocate General. He received the A.B. and LL.B. degrees from the University of California at Los Angeles and is admitted to practice before courts of the State of California and the U.S. District Court for the Southern District of California. Lieutenant Kallay studied under a Fulbright Fellowship in International Law at the University of Heidelberg, West Germany. He is a member of the American Society of International Law.

1. Article 8 of the Convention on the High Seas, entered into force for the United States on 30 September 1962, defines a warship as “a ship belonging to the naval forces of state and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government whose name appears in the Navy List, and manned by a crew who are under regular naval discipline."

2. Navy Reg., art. 0730.

HISTORY

Very early in its history, the United States followed a contrary rule. In 1794, the Attorney General of the United States held that the removal of six American citizens from a British sloop-of-war, which was then lying in the harbor of Newport, Rhode Island, was legal inasmuch as the "law of nations invests the commander of a foreign ship-of-war with no exemption from the jurisdiction of the country into which he came." Again in 1794, Congress authorized the President to employ force to compel the obedience of foreign warships to the process of the courts of the United States.*

Very possibly in response to the recurring impressment of American sailors by the British Navy, the 1794 law was extended in 1805 to include arrests aboard foreign armed vessels, not only for more serious crimes, but even for simple breaches of the peace, if the offenses had been committed in the United States. Only in the instance that the service of the arrest warrant was physically opposed by the commanding officer of the foreign vessel did the United States marshal have to await the direction of the President before taking any further action."

Under the pressure of the Napoleonic wars, the readiness of the British Navy to take highhanded action to alleviate the shortage of personnel in the fleet led to a mounting disregard

3. Lawrence, The Principles of International Law 226 (7th ed. 1923).

4. Act 5 June 1794, 1 Stat. 384.

5. II Moore, International Law Digest 575 (Citing Circulars, Dept. of State 1, 3, 4).

of the rights of the United States and its citizens. One of the most flagrant British acts in ignoring the prerogatives flowing from the fact of American sovereignty occurred when HMS Leopard halted the USS Chesapeake while the latter was unable to resist, searched her, and removed four members of her crew as British deserters."

THE SCHOONER EXCHANGE

These developments, which were to be instrumental in bringing about the War of 1812, may well have been in Chief Justice Marshall's mind when he reversed the earlier American view and formulated the now-prevailing rule concerning the immunity of foreign warships. The occasion was a lawsuit which had been appealed to the Supreme Court of the United States by the former owners of the American schooner Exchange."

In 1810, the Exchange had been seized on the high seas by a French vessel, converted into a man-of-war, and re-christened the Balaou. As the Balaou, she had entered an American port under the French flag. The former owners sought to recover the vessel, contending that its seizure and confiscation had been illegal.

In upholding the immunity of the Balaou from the judicial process of United States courts, Chief Justice Marshall drew an interesting parallel to the practical, functional basis for the immunity of an ambassador. Marshall quoted the observation of an early writer in international law that an ambassador can hardly be intended to be subject to the jurisdiction of the state to which he is accredited since, in that event, his whole usefulness would be destroyed. Subjected to possible interference by agents of the receiving state, he would no longer be free to fulfill the mission with which he was charged.

Marshall then went on to characterize the mission of a warship in these words:

She constitutes a part of the military force of the nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State.

8

Similar to an ambassador, a warship serves national objectives in a very immediate sense. In granting foreign warships the right to enter its ports, Marshall argues, the host State has impliedly agreed to exempt the visiting vessel from its jurisdiction. The parallel to the ancient

6. Bemis, Diplomatic History of the United States 146 (1965).

7. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 112 (1812).

8. Ibid.

right of an ambassador to immunity, granted in the expectation that the host State's envoys receive similar treatment, is obvious. There is a strong reciprocal interest of States in assuring that their naval vessels can serve peaceful national objectives in foreign ports.

The consent of a State to the visit of a United States naval vessel remains basic to any call that may be paid to a foreign port. The procedures required for obtaining consent are found in OPNAVINST 3128.3F.

case.

It is important to note a recurring qualification to the broad rule of The Schooner Exchange Only a few years after The Schooner Exchange decision, Justice Story of the Supreme Court pointed out that the exemption of public vessels from local jurisdiction was not an absolute right but rather a privilege granted by the host state to foreign public vessels as long "as they demeaned themselves according to law, and in a friendly manner."

This qualification flows quite naturally from Marshall's basic thesis in The Schooner Exchange. States have no mutual interest in consenting to the visit of warships in peacetime if those visits are not law-abiding. The exemption from local jurisdiction cannot be intended to endow a visiting warship with license to break local laws and regulations.

THE BASIS FOR IMMUNITY

A certain theory of the immunity of warships has done much to confuse the understanding of this important rule. That is the so-called "floating island" theory which holds that the warship is, in a legal sense, a piece of the territory of the state whose flag it flies. Just as Canadian courts have no jurisdiction in the State of New York, so, this argument runs, they have no jurisdiction over a visiting United States warship since that vessel is just as much a portion of American territory as the State of New York.10

The practical consequences of this theory were highlighted in a British case which arose when a member of the crew of the Cheung Keng, a Chinese Maritime Customs cruiser, killed the ship's Captain while the vessel was in Hong Kong harbor. The suspect, a British national, was wounded and taken for treatment to a Hong Kong hospital. He was subsequently tried in a Hong Kong court, convicted of murder, and sentenced to death.

He appealed his conviction on the grounds that the act of which he had been convicted had

9. The Santissima Trinidad, 20 U.S. (7 Wheat.) 238 (1822). 10. 1 Oppenheim, International Law 764 (7th ed. 1948).

taken place, in effect, on Chinese soil. Lord Atkin, in dismissing this argument, illustrated the consequences of the "floating island" theory in the following way:

* if a resident in the receiving State visited the public ship and committed theft, and returned to shore, is it conceivable that, when he was arrested on shore, and shore witnesses were necessary to prove dealings with the stolen goods and identify the offender, the local Courts would have no jurisdiction? What is the captain of the public ship to do? He would have no claim to the witnesses, or to compel their testimony in advance, or otherwise. He naturally would leave the case to the local Courts. But on this hypothesis the crime has been committed on a portion of foreign territory. The local Court then has no jurisdiction, and this fiction dismisses the offender untried and untriable."

The consequences of following the legal fiction of the "floating island" to its logical conclusion are clear. A more modest and accurate characterization of the legal status of a visiting warship and one which is supported by the majority of the authorities in the field-is that the host State's laws are applicable to and aboard the foreign vessel but that the foreign vessel is exempt from the enforcement of the host State's laws.

The American Law Institute has formulated the rule this way: "Immunity from the exercise of jurisdiction to enforce a rule of law does not provide immunity from the exercise of jurisdiction to prescribe the rule." 12

According to this view of the basis of a public ship's immunity, the thief of Lord Atkin's example can be arrested and tried by local authorities as soon as he leaves the ship. The host State was merely prevented from enforcing, aboard the visiting vessel, laws that were otherwise applicable from the moment the foreign vessel entered the territorial waters of the host State.

CONSEQUENCES OF IMMUNITY

The practical extent of the visiting warship's immunity from the host State's enforcement jurisdiction is far-reaching. Not only are local authorities prohibited from enforcing the host State's laws aboard the foreign warship, the vessel itself cannot be subjected to libel or other legal processes in local courts. In a case involving the famous USS Constitution, a tugboat owner was prevented from asserting his claim for services against the Constitution through arrest of ship and cargo, since, in the words of

11. Chung Chi Cheung v. The King, (1939) A.C. 160.

12. Restatement (Second), Foreign Relations Law of the United States, 64 (1965).

A different approach was tried by the owners of a Chinese junk which had been lost in Hong Kong harbor as the result of a collision with the USS Alexander. A suit brought against the person of the commanding officer was dismissed by the British court on the grounds that the Alexander was a public vessel and, together with its commanding officer, was immune from the jurisdiction of the court.14

It stands to reason that, since the immunity of a foreign vessel is a right conferred upon the sending State, that State may, if it so desires, waive the immunity in a given case.15

LAWS TO BE OBSERVED

It is important to remember that the exemption of the visiting warship extends only to the enforcement of the host State's laws on board the vessel. The warship itself remains obligated to observe local laws and regulations relating to quarantine,16 anchorage, sanitation and the like.17 These, of course, are the regulations essential to the safe operation of any port. It is evident that a State would not consent to the entry of a foreign public vessel if there were no assurance that local regulations would be observed. It has also been said that such regulations govern acts which take effect external to the ship and hence are properly governed by the laws of the host State.18

Exemption from local jurisdiction does not imply exemption from financial obligations officially incurred by the visiting vessel. In the event that there is no supply officer aboard a ship leaving a foreign port, the commanding officer is directly responsible for forwarding outstanding bills for settlement to the appropriate authorities.19

If the visiting warship is exempt from the exercise of the host State's jurisdiction but nevertheless remains bound to obey certain local laws, the question suggests itself in what way these laws can be given effect by the host State.

First, of course, the visiting warship can be given an opportunity to correct its conduct. Very often the disregard of breach of a local

regulation is the result of simple oversight. Second, protests may be lodged through diplomatic channels. Third, the ship may be expelled, through force, if the circumstances warrant. Finally, future visits by other vessels of the offending State's navy may be curtailed. It is clear, however, that ordinary remedies, such as might apply to a merchantman, cannot be called upon by the host State.

ASYLUM

The broad similarity between the status of an ambassador and a warship already noted by Marshall in The Schooner Exchange case has been the basis for a recurring problem shared by diplomatic missions and visiting warships. The problem is caused by what is often referred to as the "exterritorial" nature of embassies and warships.20 Time and again persons have attempted to find, and succeeded in finding, sanctuary within the walls of an embassy or aboard a naval vessel of the United States.

The United States has never recognized diplomatic asylum as a matter of international law.21 Asylum has repeatedly been granted, however, from considerations of humanity and international policy.

The present regulations governing the conduct of a commanding officer when faced with the problem of granting refuge to a foreign national in a foreign port are found in Article 0621 of Navy Regulations:

The right of asylum for political and other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of refugees by a mob. Officers shall neither directly nor indirectly invite the refugees to accept asylum.

Article 0621 was promulgated in its present form as the result of an incident in 1894 when the USS Bennington gave refuge to members of an overthrown Central American government whose lives had been in immediate danger from rebel forces. The refugees were conveyed by the Bennington to San Francisco, where a United States District Court refused to extradite all but

20. "Exterritoriality" refers to nothing more than the exemption of the premises of the diplomatic mission or visiting public vessel from the enforcement jurisdiction of the host state.

21. Restatement, op. cit. supra note 12, 77, Reporter note 2.

one on the grounds that they were "political criminals" and therefore not extraditable.22

Previous regulations and instructions issued to the Navy were generally in accord with the present Article 0621. All of them emphasized that the "right" to asylum was not absolute, i.e., that it is based fundamentally on considerations of humanity when the refugee is in imminent danger of physical harm.23

Article 0732 of Navy Regulations deals more generally with the situation when a person, not a member of the armed services of the United States, is found aboard the vessel under "incriminating or irregular circumstances." If it is determined by the commanding officer that the person in question is a fugitive from justice or has committed or attempted to commit an offense requiring action beyond the authority of the commanding officer, such person must be delivered to the proper civil authorities.24

Both common criminals and political refugees may be "found," of course, aboard a warship under "irregular" circumstances. The person seeking asylum, however, will be more likely to openly request that privilege than the common criminal. In the instances of a request for political asylum, the circumstances attendant to the request-revolution or civil unrest in the host country-should guide the commanding officer in applying the provisions of Article 0621 to the request. Both the history and wording of Article 0621 indicate that it is to be applied to special situations "extreme or exceptional" in the words of the Article-and under circumstances of political unrest and danger of immediate physical harm to the person seeking asylum. In other words, recourse should be had to Article 0732 in most cases while reserving Article 0621 for the exceptional instance.

CONCLUSION

Entry into a foreign port by a warship of the United States is a privilege granted by the host State. Principles of long standing in international law endow the visiting warship with far-reaching exemptions from local jurisdiction. While the rights enjoyed by the visiting warship flow from the recognition and respect paid to the instrumentalities of a sovereign State, the dignity of a sovereign makes it incumbent upon its representatives never to abuse the privileges conferred upon them by international custom and law.

22. II Moore, op. cit. supra note 5, at 853. 23. Id. at 852.

24. Navy Regs., art. 0732.