the oft-stated earlier rule that where similarity of proof exists in regard to a single act, the offenses are not to be considered as separate.27

It can fairly be stated that a concept as pliable and adaptable as is the concept of multiplicity cannot and should not be restricted to easily discernible limits of application. The application of the concept can and should vary as the facts of any given case may vary. A consideration of the recent cases does suggest, however, that a fairly reliable working rule can be formulated: where there exists similarity of proof in regard to two or more offenses committed by an accused acting under a single impulse or intent, the offenses may be multiplicious (note that this rule is one of liberal construction in that it requires neither identical elements of proof nor the commission of but one single act).

THE DRAFTING OF SPECIFICATIONS

The Government is allowed to exercise wide latitude in the area of pleading. It is specifically permitted to charge the identical criminal act in a variety of ways in order to meet the exigencies of proof, generally without regard to whether the charges are multiplicious.28 The latitude is not, however, without some limitation. It is, for example, improper to allege numerous specifications for the purpose of exaggerating the seriousness of the accused's wrong, and thereby mislead the convening authority.29 Further, if an unreasonable number of specifications has the effect of creating the impression in the minds of the members of the court-martial that the accused is a "bad character," the specifications may be deemed to have affected the finding of the case.30 On the other hand, and equally noteworthy, the Government may not allege, within the boundaries of a single specification, more than one separate offense either conjunctively or in the alternative.31

Generally, however, the drafter of specifications should feel relatively free to allege an offense in any and all ways in which it is felt necessary to meet all possible avenues of proof.32 As long as the multiplication is neither unreasonable nor activated by improper motives, the allegations will not be considered irregular or prejudicial.33

27. Id. at 498, 34 CMR at 278; compare United States v. Ompad, 15 USCMA 593, 36 CMR 91 (1966).

28. United States v. Smith, 13 USCMA 553, 33 CMR 85 (1963). 29. United States v. Middleton, 12 USCMA 54, 30 CMR 54 (1960). 30. Id. at 58, 30 CMR 58; see United States v. Maynazarian, 12 USCMA 484, 31 CMR 70 (1961).

31. United States v. Paulk, 13 USCMA 456, 32 CMR 456 (1963). 32. United States v. Smith, supra note 28.

33. United States v. Middleton, supra note 29.

THE RESPONSIBILITIES OF THE LAW OFFICER OR THE PRESIDENT

34

Since it is not generally improper for the Government to allege multiplicious specifications, it is of course not improper for the courtmartial to return findings thereon. It has long been recognized by the Court that it is ordinarily not prejudicial to an accused to allow a courtmartial to return findings on each of several multiplicious specifications, if the specifications are not thereafter made the basis for separate punishment. Multiplicity raises a question affecting the sentence, and not the findings.35 Once findings of guilty on multiplicious specifications have been announced by the courtmartial, the law officer or the president thereof is obligated to instruct the court members that such allegations are in fact multiplicious and are to be considered by them as constituting but one crime for sentencing purposes.36 Furthermore, the instructions of the law officer or the president relative to the maximum permissible punishment which may be awarded must be considerate of such multiplicity as may be present.37 It is only the latter obligation, however, which is mandatory. In a recent series of cases the Court has held that an accused is not prejudiced by a failure to advise the court-martial as to the number of offenses upon which the maximum sentence is predicated, if the court-martial is properly advised as to the maximum punishment which may be adjudged; 38 and although the cases have in each instance involved general courts-martial, the rationale of the holdings is such that it would appear that the rulings would be as readily applicable in special courtsmartial.39

It may thus be concluded that a law officer or a president has three primary duties relative to multiplicity:

(1) he should be satisfied that the multiplicious specifications are neither unreasonable nor exaggerated;

(2) subsequent to the announcement of findings, he should apprise the court-martial of the multiplicity and of its effect upon sentence deliberations; and

(3) he must give proper instructions relative to the maximum permissible punishment which may be awarded.

34. Ibid.

35. United States v. Green, 9 USCMA 585, 26 CMR 365 (1958).
36. Ibid.; United States v. Posnick, supra note 11.
37. Ibid.

38. E.g., United States v. Giordano, 15 USCMA 163, 35 CMR 135 (1964).

39. United States v. Deshazor, 14 USCMA 667, 34 CMR 447 (1964); United States v. Searles, 14 USCMA 643, 34 CMR 423 (1964).

THE RESPONSIBILITIES OF TRIAL AND DEFENSE

COUNSEL

Since it is usually beneficial to an accused to have the court-martial informed that certain of the offenses with which he has been charged are multiplicious, it is the defense counsel who must assume the primary responsibility for insuring that the members are apprised thereof.

The defense counsel should utilize his earliest opportunity to inform the court-martial of the multiplicious nature of the charges. Therefore, in appropriate instances, he should request in open court that the law officer or the president dismiss what he considers to be unreasonable or improperly motivated multiplicious specifications. Even if no relief is thereby obtained, the court-martial has nonetheless been made aware of the presence of multiplicity.

Once findings of guilty have been returned on multiplicious specifications, it becomes the responsibility of the defense counsel to request that the law officer or the president instruct the court-martial thereon. This responsibility is particularly important, for, as has previously been noted, a failure on the part of the law officer or the president so to instruct the courtmartial will not be held upon review to have resulted in prejudicial error.40 In this regard, a mere explanation that offenses X and Y are multiplicious does not adequately apprise the court-martial of the effect of multiplicious offenses upon its sentence deliberations, and is, therefore, not adequate to protect the accused against all adversity arising therefrom. It is recommended that the following instructions be requested and given in all instances where multiplicity is involved:

The court is advised that the specification of Charge I, alleging the offense of and the specification of Charge II, alleging the offense of are multiplicious for sentencing purposes. That is, for sentencing purposes these two offenses are to be considered as but one offense and the accused cannot be separately punished for each of them, but only one, that is, the offense of [the one which carries the greater punishment]. The court may, however, consider the offense of [the lesser offense] as matter in aggravation of the offense of [the greater offense]. Accordingly, the maximum punishment that may be awarded in this case for all of the offenses of which the accused stands convicted is: [give the maximum permissible punishment]. Finally, the defense counsel should insure that the law officer or president has properly computed the maximum permissible punishment which may be awarded, and has advised the

40. United States v. Giordano, supra note 38.

court-martial accordingly.

The trial counsel, whose primary duty it is to see that justice is done, and who is responsible for insuring that the accused receives a fair and impartial trial conducted in accordance with proper legal procedures," is subject to the identical obligations relative to multiplicity as is the defense counsel.

BOARDS OF REVIEW AND STAFF LEGAL OFFICERS

In an effort to ascertain the position of the Navy Boards of Review 42 on the question of multiplicity, a review was made of all Board opinions dealing with the concept which have arisen during the preceding twelve months.

The results of this review indicate that the Boards have generally adhered to a liberal construction of the doctrine of multiplicity, placing emphasis upon the question of whether the offenses of which an accused has been found guilty in effect constitute but one continuous act or transaction.13 A number of cases have, however, applied a relatively strict interpretation to the concept, thereby rendering impracticable a conclusive judgment regarding the Boards' position.11

Two recent Board cases are of particular interest, since they reveal the willingness of the Boards to extend the concept of presumption to the problem of multiplicity. In one instance, the Board presumed the possibility of the continuous and simultaneous action of two related offenses, and thereupon concluded that multiplicity was present.45 In a second instance, however, the Board noted that there was nothing to indicate that two related acts occurred either at the same time or place, and therefore presumed the offenses to have been separate.46 Both the Government and the defense should therefore be wary of specifications which may tend to indicate the possibility of multiplicious offenses, and should attempt to clarify on the record whether the specifications allege separate or multiplicious acts.

In regard to the instructional duties of the presidents of special courts-martial, the Boards have adopted the USCMA rationale relative to general courts-martial in holding that prejudicial error does not result from a failure to in(Continued on page 28)

41. United States v. Valencia, 1 USCMA 415, 4 CMR 7 (1952). 42. Hereinafter referred to as the Boards.

43. NCM 65-1575, Maloon, 7 Dec 1965; NCM 65–1083, Hipp & RamosRamos, 23 Aug 1965; NCM 65-0905, Fields, 10 June 1965; NCM 65-0297, Caputo, 13 May 1965; NCM 65-0099, Bolster, 11 Mar 1965. 44. NCM 65-1367, Ryan, 1 Nov 1965; NCM 65-1287, Rowlette, 1 Sep 1965; NCM 65-0301, Alcorcha, 16 Apr 1965.

45. NCM 65-1287, Rowlette, 1 Sep 1965. 46. NCM 65–1987, Curry, 10 Feb 1966.

T IS A time-honored principle that it is the right

which justifies the freedom of navigation of the

seas.

Early writers on international law gave considerable support to the doctrine that there was an inherent right of free passage over an international river.1

Commander Looby received the LL.B. degree from DePaul University Law School. He served on active duty from 1942 to 1946 in a variety of line and legal billets. Presently, he is engaged in the general private practice of law in Evanston, Illinois. He is active in Naval Reserve matters and is currently serving as Commanding Officer, Naval Reserve Law Company 9-1, Chicago, Illinois. 1. "Grotius, for example, expresses the opinion that 'rivers, and any part of the sea that has become subject to the ownership of people, ought to be open to those who, for legitimate reasons, have need to cross over them' and cites as one of these legitimate reasons the carrying on of commerce through a waterway. This theme is adopted and elaborated by Vattel, who shows an awareness of the technical as well as the legal basis of free transit." But it is quite clear that this principle of free transit of international rivers was a reflection of a wider right of free passage which these authorities believed should have application to the seas, to rivers, and to the land. The fact that no such general right of free passage was recognized in practice at the time and the denial of any such right to unimpeded transit on land in the international law of the nineteenth and twentieth centuries justifiably weakened the force of these contentions about a right of free usage of international rivers. Nevertheless, as late as the controversy between the United States and Great Britain over free passage of the St. Lawrence River in the 1820's and in the Faber case at the turn of the century, the venerable authorities were appealed to in support of the right of nationals of a riparian state to navigate the portion of an international river falling within the territory of another riparian.

"3. De Jure Belli Ac Pacis, Book II, ch. II, §§ xii and xiii (Kelsey transl. 1925).

"4. Le Droit Des Gens, Book II, ch. ix, §§ 126, 129, ch. x, § 132, Book I, ch. xxii, §§ 272 and 273 (1758).

"5. H. A. Smith, The Danube, (1950) Year Book of World Affairs 191, 196.

"6. American State Papers, 6 Foreign Relations, 2d ser. 76975 (1859), 19 British and Foreign State Papers 1067-83 (1834), incorporating the Argument of the American Plenipotentiary, annexed to the Protocol of the 18th Conference between the British and American Plenipotentiaries, London, June 19, 1824.

"7. First Opinion of Commissioner Goetsch (the German Commissioner), in Faber Case (Germany v. Venezuela), Ralston, Venezuelan Arbitrations of 1903, 600 at 606 (1904)." Baxter, the Law of International Waterways 149-50 (1964).

It is the purpose of this article to examine briefly the law as it is applied today to four widely dispersed International Rivers:

1. The St. Lawrence River between the U.S. and Canada,

2. The Mekong River in Southeast Asia, 3. The Danube River in Europe, and the 4. The Shatt-al-Arab between Iraq and Iran. Before proceeding, let us first examine two definitions:

A. A RIVER

(1) A natural surface stream of water of considerable volume and permanent or seasonal flow.2

(2) *** bodies of water of considerable size flowing with perceptible currents in definite channels, and usually without cessation during the year *** Rivers obeying the laws of gravity, seek the lowest level and eventually reach the ocean.3

B. AN INTERNATIONAL RIVER

(1) International rivers possess importance for navigation, fisheries, the generation of hydroelectric power, the carrying away of wastes and consumptive use for irrigation and domestic purposes.*

(2) (An) International* * * river * is (one) used to a substantial extent by the commercial shipping or warships belonging to states other than the riparian nation or nations * * * (when the river) run (s) through or between two or more states and ***the stretch of river lying within the territory of any one state or bordering there

2. Webster's Third New International Dictionary (Unabridged) (1963).

3. 23 Encyclopedia Americana 550 (1953).

4. 23 Encyclopedia Britannica 434 (1960).

on is subject to a substantial amount of use by the vessels of other states."

THE ST. LAWRENCE RIVER

One of North America's great rivers has a course of about 750 miles and stretches from Lake Ontario to the Atlantic Ocean. Its northern shores are wholly within Canadian territory, while its southern shores up to the point at which the northern boundary impinges on the river (Latitude 45° N) are within the territory of the United States. The southern banks of the rest of the river, as well as its mouth, are also within Canadian territory."

In 1826, on the ground that its inhabitants enjoyed "the natural right to have free communication with the sea", the United States claimed free navigation of the river throughout its whole course. Temporarily with the "Reciprocity Treaty" in 1854, and permanently with the Washington Treaty of 1871, free navigation to United States citizens was assured, subject to regulation not inconsistent therewith. The treaty between the United States and Great Britain of 1909 confirmed this."

The question of the diversion of the waters between the St. Lawrence and Mississippi basins provoked friction between Canada and the United States. In 1900, certain works were executed in Illinois having the effect of diverting an increasing body of water from Lake Michigan into the Mississippi basin and also of reversing the flow of the minor streams debouching into that lake. In the Great Lakes diversion case of 1930, the U.S. Supreme Court enjoined the State of Illinois and the Chicago Sanitary District from diverting any of the waters of the Great Lakes-St. Lawrence system or watershed through the Chicago Drainage Canal and its auxiliary channels or otherwise in excess of certain specified figures. The court based its decision on the "rule of comity" under which there ought to be an equitable "division of benefits" or apportionment among the states through which a stream flows of the use of its waters. The 1909 Convention referred to above was another instance of regulation by express agreement of some of these principles. After providing that

each contracting party reserves to itself the exclusive jurisdiction and control over the use and diversion whether temporary or permanent, of all waters on its

5. Baxter, op. cit. supra note 1 at 3.

6. Rand McNally Cosmopolitan World Atlas 67 (1962).

7. Treaty between the United States and Great Britain relative to Boundary Waters between the United States and Canada, signed at Washington, January 11, 1909, 36 Stat. 2448, T.S. No. 548.

own side of the line which in their natural channels would flow across the boundary or into boundary water (Article 2), it lays down the fundamental rule that

any interference or diversion on either side of the boundary, resulting in injury on the other side thereof, shall give rise to the same rights and entitle the parties to the same legal remedies as if such injury took place in the country where the diversion or interference occurred.

This rule is in accordance with the general principle that a state owes at all times a duty to protect other states against any injurious acts committed by itself or by individuals within its jurisdiction. No further uses, obstructions or diversions affecting the natural level or flow of waters were to be made except by authority of Canada or of the United States "within their respective jurisdiction" and with the approval of the Commission set up by the Convention and known as the "International Joint Commission" (Article 2).

There has been a series of agreements between Canada and the United States providing for the development of water power, navigation, and the general usefulness of the boundary river; construction of dams and power works, and finally the completion of a deep water connection between the Great Lakes and the Atlantic Ocean.8

Pursuant to these principles a stream of ships of foreign states constantly navigates this river delivering cargo to and from Canadian and American ports. However, the St. Lawrence Seaway, a major artificial international waterway in the sense that it was in fact nonnavigable in its natural state, has not been formally opened to use by the entire international community. It is probably the circumstance that it constitutes a boundary river and offers access, not to another section of the high seas, but to inland

8. Arrangement relating to the early development of certain portions of the Great Lakes-St. Lawrence Basin project (Long LacOgoki Works). Exchange of notes at Washington October 14 and 31 and November 7, 1940; entered into force November 7, 1940. 54 Stat. 2426; EAS 187; 203 LNTS 267.

Agreement relating to the St. Lawrence seaway project for the construction of certain navigation facilities. Exchange of notes at Washington June 30, 1952; entered into force June 30, 1952. 5 UST 1784; TIAS 3053; 234 UNTS 199.

Agreement establishing the St. Lawrence River Joint Board of Engineers. Exchange of notes at Washington November 12, 1953; entered into force November 12, 1953. 5 UST 2538; TIAS 3116; 234 UNTS 97.

Agreement relating to the St. Lawrence seaway project for the construction of certain navigation facilities. Exchange of notes at Ottawa August 17, 1954; entered into force August 17, 1954. 5 UST 1784; TIAS 3053; 234 UNTS 210.

Agreement governing tolls on the St. Lawrence Seaway. Exchange of notes at Ottawa March 9, 1959; entered into force March 9, 1959. 10 UST 383; TIAS 4192; 340 UNTS 295.

lakes, that accounts for the fact that it is by treaty open as a matter of right only to nationals of the United States and of Canada."

THE MEKONG RIVER

On

Tenth in size of the rivers of the world, the Mekong flows almost 3,000 miles from its source in Tibet to its mouth in South Vietnam. its way it passes through southwest China, divides Burma from Laos and Laos from Thailand, bisects Cambodia, and finally veers southeast to form the great southern delta of Vietnam. At its source and as it courses through China, Thailand, and Laos, it is narrow and swift, full of rapids and largely unnavigable. Reaching the Cambodian Plain it becomes broad and quiet. Two hundred miles from the sea it is three miles wide and deep enough to accommodate ocean steamers. Its hydroelectric potential, the fact that it drains large areas of the region, and its international character give it special significance in economic planning for China, Thailand and Laos.

It is the most important inland waterway in Cambodia, with a total navigable length, in that country, of about 900 miles accommodating ships of 8,000 tons during the rainy season, while only 370 miles and accommodating ships of 5,000 tons during the dry season. Cambodia connects directly with the outside world by way of the Mekong. There has been no overt act against shipping via South Vietnam, but the Cambodian Government, in order to lessen its dependence upon Vietnam, has constructed a new port off the Gulf of Siam.10

Both Vietnam and Thailand have opposed Cambodia's advocacy of the internationalization of the Mekong. The fishing cooperative monopoly over the catch of Cambodian fishermen officially ceased in 1955. Difficulties had been encountered in moving fish to Vietnam, a major market, because Vietnam was taking steps to protect its own fishing industry.11

Several years ago as France applied itself to the prosecution of the Indo-China War, Cambodia, undaunted by French and Vietnamese pressures, stood firm on its major point of internationalization of river traffic on the Mekong and of one section of the Port of Saigon.

The Convention on the Regime for Maritime and River Navigation on the Mekong and for River Navigation approaching the Port of Saigon was signed in 1950. It provided, generally speaking, for navigation on the Mekong, from Phnom-Penh to the sea via the Cua-Tieu to be 9. Baxter, op. cit. supra note 1 at 156, 174.

10. U.S. Army Area Handbook for Thailand 38 (1963). 11. U.S. Army Area Handbook for Cambodia 16 (1963).

freely open to Cambodia, Laos and Vietnam, the parties thereto and to other countries of the French Union, on equal terms, subject, however, to regular policing measures, maintenance of general security, and stipulations contained in the convention. This agreement was terminated by the contracting parties, Cambodia, Laos and Vietnam on December 29, 1954.

The Committee for the Coordination of Investigation of the Lower Mekong Basin was created in 1951 by invitation of the Economic Commission for Asia and the Far East (ESCAFE) sponsored by the United Nations. Surveys have led to plans for dams, irrigation canals, dikes, power plants and improved navigation. The harnessing of the Mekong system would end the subjection of the Northeast to the annual cycle of drought which has inhibited the development of the region and kept many of its people in poverty.

A Convention Regulating Maritime and Inland Navigation on the Mekong and Inland Navigation of the Approach to the Port of Saigon was signed December 29, 1954 by Cambodia, Laos and Vietnam. Article 1 provided that on the basis of equality of treatment, navigation shall be free throughout the course of the Mekong, its tributaries, effluents, and navigable mouths located in the territories of Cambodia, Laos, and Vietnam, as well as on the waterways giving access to the Port of Saigon and to the sea. Such freedom is automatically granted to States which have recognized the high contracting parties diplomatically. As to States which have not recognized the high contracting parties diplomatically, freedom of navigation shall be subject to their consent. Each contracting party reserved the right to utilize the Mekong waters for industrial or agricultural purposes. Concerted action through a commission of representatives of the parties is to be taken on questions of police and navigation regulations, waterway improvements, work projects affecting navigation, costs of maintenance, and questions relating to duties, fees and taxes levied by the parties by reason of navigation, and all other questions recognized to be of common interest. Article 11, Page 5 of the "Annexed Protocol" provides that navigation must conform to the requirements prescribed by the riparian States, particularly in sanitary, police, and customs matters and with respect to the maintenance of general security. Article III gives each riparian State the right to subject the transportation of persons and goods to certain conditions, provided they are applied with equality. Article IV provides freedom of navi