legality. A similar analysis could be made with respect to mining harbors, contraband, neutrality, and the right of visit and search on the high seas.

Instead of naval actions incident to a state of war, we are involved as part of a collective self-defense effort in an attempt to control infiltration by sea of communist forces and supplies into the Republic of South Viet-Nam. This action is called "Operation Market Time." There were many problems involved in setting up this operation. The most expeditious methods such as blockade or mining were barred for the reasons I have mentioned. However, there was a perfectly legal method of exercising some control over this illegal infiltration. It flows from the right of a state to suspend the right of innocent passage through its territorial waters for security reasons and from its further right to prevent violations of its immigration, customs, fiscal and sanitary regulations within a contiguous control zone extending up to 12 miles. These rights are recognized by the 1958 Law of the Sea Conventions.

On April 27, 1965, Prime Minister Ky issued a decree establishing maritime control measures to counter infiltration by sea into the Republic of Viet-Nam. The decree provided for the following control measures:

First, a Defensive Sea Area was established in the three-mile territorial sea of South VietNam. Vessels transiting the territorial sea which are not clearly in innocent passage are subject to visit and search and possible arrest and disposition.

Second, control procedures in a contiguous zone of 12 miles (9 miles beyond the territorial sea limit) were established in order that South Viet-Nam could exercise the control necessary to prevent and punish infringements of customs, fiscal, immigration and sanitary regulations of South Viet-Nam. The decree stipulated that vessels suspected of violating the contiguous zone regulations were subject to visit and search and possible arrest and disposition.

Third, the decree declared the intention of the Republic of South Viet-Nam to act on the high seas beyond the 12-mile zone against vessels flying the flag of the Republic of South Viet-Nam or reasonably believed to be South Vietnamese, such action to include stopping, visiting and searching.

Finally, the decree declared the intention to exercise the right of hot pursuit against vessels suspected of violating territorial sea or contiguous zone regulations of South Viet-Nam and

noted that South Viet-Nam had requested and been granted the assistance of the United States Navy and Coast Guard forces in enforcing these security and defense measures.

This decree and the operations which carry out its provisions are examples of the measures the 1958 Conventions on the Law of the Sea authorize a state to take in the furtherance of its defense and in the enforcement of its laws.

Involved in the measures undertaken by the Republic of South Viet-Nam are the legal concepts of a territorial sea, a contiguous zone, innocent passage, a defensive sea area, the right of approach, and hot pursuit.

The territorial sea is a narrow belt of coastal water which, subject to the right of innocent passage, is under the complete sovereignty and control of the coastal state. Thus, in the territorial sea out to three miles from the coast, South Viet-Nam has the right to prohibit all but innocent passage of foreign ships. Ships clearly exercising the right of innocent passage cannot be, and are not, interfered with.

In its proclamation South Viet-Nam has said. that certain cargoes (e.g., arms, ammunition components, etc.), are suspect unless it can be clearly established that they are destined for a port outside South Viet-Nam or to a legitimate recipient in South Viet-Nam. South VietNam/United States forces have the authority, under the principles of international law which I have discussed, to determine whether or not a particular ship is in innocent passage through the territorial sea.

Actions taken in the contiguous zone, on the other hand, are subject to more restraining rules. In the area of 3 to 12 miles from the coast, South Viet-Nam is authorized under international law to exercise only the control necessary to prevent and punish infringement of its customs, fiscal, immigration and sanitary regulations. This provision of law may be found in Article 24 of the Convention on the Territorial Sea and the Contiguous Zone. Under the regulations of South Viet-Nam, entry of materials, merchandise and persons other than through recognized routes and ports of entry is forbidden. When strong suspicions exist that a ship transiting the contiguous zone is violating or intends to violate the regulations, South Viet-Nam/United States forces are authorized under international law to require her to identify herself and give her destination and cargo. Should she give a false report or otherwise exhibit valid grounds for suspicion that all or part of her cargo or passengers is to be illegally intro

duced into the Republic of South Viet-Nam, they may stop, visit and search her. Since this is an area of the high seas, it should be emphasized that the intention of a ship to violate the customs or immigration regulations must be clearly evident before a valid basis exists for stopping, visiting or searching her. Mere transit through the contiguous zone, even though close to the territorial sea limit, is not a sufficient basis for this action.

With respect to the exercise of jurisdiction on the high seas outside the contiguous zone, remember that as a general proposition ships sail under the flag of one state only and are subject to its exclusive jurisdiction on the high seas and to the jurisdiction of no other state. The legal basis for action by United States forces is found in this principle and the South Vietnamese request for United States assistance. Without the South Vietnamese request we would have no authority to board her ships. If we board a South Vietnamese vessel on the high seas, the only state that could complain would be South Viet-Nam. A South Vietnamese ship would have no cause to complain since United States forces would be acting at the request of South Viet-Nam.

In summary, I would like to emphasize two points concerning this joint United States/South Viet-Nam effort. First, there is nothing new or dramatic in the legal concepts outlined. Control in the Defensive Sea Area involves no more than a temporary suspension of the right of innocent passage through the territorial sea. This suspension is authorized by the Convention on the Territorial Sea and Contiguous Zone and is similar to the defensive sea areas that the United States has established from time to time. Secondly, control in the contiguous zone is similar in concept to controls the United States has enforced for 175 years.

Finally, to give you some idea of the extent of this operation, during the first seven months United States ships have detected 73,000 junks, with about 15,000 inspected and 6,000 boarded. The Republic of South Viet-Nam Navy has inspected more than 204,000 since January 1, 1965.

In addition to the question of our naval operations at sea there is a second important area in which naval operations in Southeast Asia interact with international law. This is the treatment of prisoners of war.

There has been a continuing debate over this problem and so far no satisfactory resolution of the problem has taken place.

In the spring of 1962, the Viet Cong murdered two captured United States soldiers. On June 24, 1965, Radio Hanoi announced the execution of United States Army Sergeant Harold George Bennett in reprisal for the execution of several Viet Cong terrorists by the Republic of South Viet-Nam.

Barbaric treatment of prisoners has been common on both sides. This treatment is completely contrary to the humanitarian principles for the treatment of prisoners of war which have evolved over the years and which were codified in the 1949 Geneva Conventions.

Some interesting legal questions are posed by this situation.

Initially, the question is whether North VietNam is bound by the Geneva Conventions. The answer is a simple "yes." The People's Democratic Republic of North Viet-Nam is a party to the Geneva Conventions.

The Republic of South Viet-Nam is also a party to the Conventions. Therefore, it would seem that the debate going on over the treatment of prisoners of war is pointless. Theoretically, at least, if both parties are bound, the Conventions apply.

However, the Republic of South Viet-Nam has consistently maintained that the Viet Cong are nothing more than insurgents, and not entitled to the humanitarian treatment provided by the Convention. Similarly the North Vietnamese have considered all personnel captured in North Viet-Nam as murderers not entitled to POW treatment.

Although some argument might be made that the absence of a recognized state of war or armed conflict between the North and South suspends the operation of the Conventions as between the two High Contracting Parties, the fact is that Article 3 of the Convention would seem to apply regardless of the technicalities involved.

Even if we assume that this conflict in VietNam is a revolutionary uprising of dissident citizens of the Republic of South Viet-Nam, which it is not, there is still ample legal basis for application of at least part of the Convention.

First, it is important to note that the contracting parties at Geneva used the term "armed conflict" for the first time. The Conventions recognized that a formal declaration of war should not be necessary to bring the provisions of the Conventions into operation. They went even further and recognized that the rules should be applicable even though a state of war

was not recognized by one of the parties to the conflict.

Secondly, Article 3 of the POW Convention provides that "in case of an armed conflict not of an international character" certain minimum standards of humane treatment should be applied to those who become prisoners.

It provides for the collection and care of the wounded and sick.

It authorizes impartial bodies such as the International Committee of the Red Cross to offer their services to the parties to the conflict.

It encourages the parties to make special agreements bringing other provisions of the Convention into effect between them.

It prohibits reprisals and maltreatment of prisoners.

Finally, and very importantly, it provides that application of the preceding provisions should not alter the legal status of the parties to the conflict.

Because of the wording of this article and the fact that it addressed itself to purely humanitarian procedures, which could hardly be objected to by any party to a conflict, it would seem that the Government of South Viet-Nam could scarcely object to applying Article 3 to its conflict with the Viet Cong. However, it appears that this Government retains the fear that its recognition of the applicability of Article 3 would give the Viet Cong undeserved status in world affairs.

The Republic of South Viet-Nam's attitude is not as unreasonable as it appears at first. The fact is that this particular article caused hours of discussion among the delegates because it was a new idea to establish rules governing the conduct of parties to a revolution. Most delegates felt that the rules their governments should apply in putting down a revolution should be theirs alone although they recognized that some rules of humanitarian treatment should apply. Most of them feared giving revolutionaries legal recognition.

You should note that this article stands by itself and is specifically designed for armed conflicts not of an international nature.

Article 3 has become known as a convention in miniature and was specifically designed for intranational as opposed to international conflicts.

In my opinion, regardless of how the conflict in Viet-Nam is characterized, the humanitarian principles of the Convention should be applied by both sides-if not the entire Convention as

required by international conflicts, at least Article 3.

The United States is making every effort to apply these principles and to see that they are applied by the others involved.

PRETRIAL AGREEMENTS

43

(Continued from page 7)

A pretrial agreement in which an accused promises not to raise certain issues at trial is also treading on dangerous grounds. There is one instance where an accused agreed to refrain from presenting any matter in extenuation and mitigation. As we have already seen a pretrial agreement cannot be used to reduce a trial into an empty gesture. In another case, a pretrial agreement contained a condition that precluded the accused from litigating the issue of jurisdiction at the trial." An Army Board of Review denounced the agreement as constituting a denial of military due process.

We believe that in the usual case involving the issue of jurisdiction, neither law nor policy could condone the imposition by a convening authority of such condition in return for a commitment as to the maximum sentence which would be approved. We are of the opinion that, just as the submission of matters of mitigation should not be precluded by pretrial agreements (citing authorities), the litigation of issues of jurisdiction should not be hampered.45

The dim view which appellate courts have taken of agreements which involve the accused's right to litigate issues at trial should serve as a forewarning to avoid bargains of this nature.

CONCLUSION

Pretrial agreements, negotiated in accordance with the procedures set forth in the JAG Manual, have contributed greatly to the efficient administration and expeditious processing of military criminal justice and have provided countless accused with advantageous results. The problems resulting from the negotiation of pretrial agreements can be largely avoided when they are thoughtfully and deliberately drafted by experienced counsel who are aware of the hidden dangers and pitfalls. Only in this way can the full value of pretrial agreements be realized.

43. United States v. Callahan, 22 CMR 443 (1956). 44. United States v. Banner, 22 CMR 510 (1956). 45. Id. at 519.

RESIDENTS OF SPECIAL courts-martial have, since the creation of that role, been faced with serious conflicts and bothersome problems in the execution of their duties. This is so by the very nature of their assignment. On the one hand, the president is responsible for the fair and orderly conduct of the proceedings, in accordance with law, and must apply the rules which govern the procedure of the court-martial.1 At the same time, he is one of the factfinders and must maintain that impartiality which keeps him beyond reproach.2 The conflict which can result from these tasks may in turn result in inadequate performance of one or both roles. The non-lawyer president is often required to rule on involved legal questions and properly instruct the court members. Consequently, he also faces difficulty in these areas. This article is intended to answer some pertinent questions

*Lieutenant Steven A. Weidner, USNR, is currently assigned to the Military Justice Division in the Office of the Judge Advocate General as a Review Branch Attorney. He received his BBA degree in accounting in 1962 and his LLB degree in 1965 from the University of Notre Dame. Lieutenant Weidner is a member of the Iowa State Bar and admitted to practice before the Court of Military Appeals. ** This article was written as a response to correspondence received from Lieutenant Commander Francis B. Shemanski, USN, Commanding Officer, USS ENDURANCE. In his letter which is extensively quoted in the text of the article, Lieutenant Commander Shemanski very articulately describes the awesomeness of the task confronting the non-lawyer special court-martial president and asks several searching questions concerning the preparation for and the execution of this demanding assignment.

1. MCM, 1951, par. 40b.

2. MCM, 1951, pars. 40b, 114 (oath administered to the members of courts-martial).

concerning the duties of presidents of special courts-martial, which recently were submitted to the Office of the Judge Advocate General by the Commanding Officer of the USS ENDURANCE (MSO 435). The introductory remarks and the specific questions raised in this inquiry will be reprinted herein, with the answers of the author-lawyer inserted after each question.

With very little notice, and typically with no foreknowledge of the kind of case, or the nature of the issues to be raised, any Naval officer of the rank of Lieutenant or above is likely to find himself assigned as president of a special court-martial.

With disconcerting regularity the officer so assigned finds himself behind a long green table, nervously fingering a battered Manual for Courts-Martial in which all pertinent changes may or may not have been made.

He is provided with a trial guide designed to take him and the trial and defense counsel through the labyrinthine ways of the niceties of the law in an orderly manner. The dialogue is there, but so is, for most trials, a wealth of extraneous material designed to cover such infrequent eventualities as challenges for cause, motions to dismiss or amend charges and specifications, and alternate procedures for guilty plea and not guilty plea cases, during which evidence will be received, witnesses will be heard, and rulings on evidentiary or procedural matters will be required. The likelihood of the assigned trial counsel being truly qualified is remote. The probability of an incoherent and disorderly defense is high. The responsibilities of the president are many and varied, and the prospects of conducting a trial in a solemn, dignified, orderly and efficient manner are not promising.

Efforts have been made in the past to define and refine the duties of trial counsel. Type commanders have prepared check-off lists providing guide lines for preparing for trial and additional check-off lists which make errors in the preparation of the record of trial virtually impossible if followed closely.

No one, to my knowledge, has compiled for presidents of courts-martial anything that approximates a proper training aid, as the Navy is seemingly willing to trust that mature officers follow the evolution and permutation of military law with interest and dedication, so that by virtue of their rank and experience, they are automatically qualified to act as president of a courtmartial. Would it were only so.

Having acted as trial counsel in over 50 special courtsmartial and as president in approximately 12, I remain disturbed at the number of unanswered questions which plague prospective presidents. As trial counsel, I found it necessary to guide the officer acting as president on numerous occasions, even to the extent of proposing to the defense the appropriate objection to improper unsolicited testimony of a prosecution witness, and then proposing to the president his proper ruling on the objection thus raised. These actions were taken to protect the record and to safeguard the rights of the accused when the defense counsel and the president were either incapable of so acting or unaware of their responsibility to so act.

Such mental gymnastics and verbal pyrotechnics are an unconscionable burden to place on a trial counsel and should not be necessary. Unless diplomatically handled, they degrade the dignity of the court and have a less than salutary effect on the spectators who may be present, to say nothing of the effect on the accused who may wonder, after such an exchange, who is on whose side.

I believe the prospective president of a special courtmartial would prepare for the proper discharge of his duties if he knew how, but how to do it remains an enigma. It is unlikely that he can or will reread the Manual for Courts-Martial prior to trial. He may or may not have reviewed the trial guide currently in use at the command in which he serves. He may be a cover-to-cover reader of the JAG JOURNAL and be blessed with total recall, but it is not likely. He may vaguely recall that manuals and trial guides and legal references must be removed from the court while it is in closed session, and he probably anticipates with some apprehension the questions which will be asked of him by junior court members in closed session. He should be aware that he goes naked to his enemies armed only with his recollection of the law, but not so much as one written word of expertise to back him up. If he has read the leading article in the Sept-Oct-Nov 1966 issue of the JAG JOURNAL, entitled: Sua Sponte Instructions by the President of a Special Court-Martial, he may well be struck with forebodings of inadequacy and anticipation of decisions which will affect the proper conduct of a trial outside the range

of his experience and competence. Since it has been accurately observed that, "It is the necessity of making decisions that drives men mad," the unprepared president cannot go to his trial as well as the trial of the accused with anything other than a feeling of discontent and a suspicion that he is somehow being put upon to no lesser degree than the accused who appears before him.

I believe that if the following questions were answered in layman's terms, presidents would fumble less and justice would be better served, and I propose to ask them in this article leaving space for JAG's answers. I think I know the answers to all of them, but request some reassurance. So on to the interrogation:

PREPARATION

QUESTION (1): Is the president of a special courtmartial allowed to procure from trial counsel advance copies of charges and specifications before the court convenes so that he can research in advance the Manual and the Uniform Code of Military Justice itself, familiarizing himself with the elements of the offenses charged and the possibility of having to instruct on such matters as attempts under Article 80, or lesser included offenses, or other issues inherent in certain of the more complicated and subtle offenses chargeable under the Code?

ANSWER: In my opinion, yes. However, some remarks concerning pretrial preparation in general, as well as a caveat, are in order. Of course, the president is urged to familiarize himself before trial with as much legal and procedural information as possible from the Manual for Courts-Martial, United States, 1951, and such publications as Special Courts-Martial Trial Guide for Presidents and Members, NAVPERS 10096, Special Court-Martial Instructional Guide for Presidents, NAVPERS 10090, and Court-Martial Instructions Guide, AFM 1110-5, 1967. However, it is well recognized that most presidents, because of the press of other duties, do not have time for exhaustive preparations. Consequently, a more practical approach is suggested. In addition to general familiarization with a trial guide, a president is advised to obtain a copy of the charges and specifications from either the convening authority or the trial counsel to use as a beginning for specific preparation. This will allow him to focus his attention on the pertinent areas of law and best use his limited time for preparation. Examination of the charges and specifications will suggest possible rulings and instructions that may be required at trial and allow for advance preparation. This will involve a thorough study of the elements of the offenses charged as well as of potential lesser included offenses. The peculiarities of these offenses as to proof re