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INTERNATIONAL LAW IS the step-child of

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

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

Secondly, we must realize that uniformity in the interpretation of laws does not exist. What may be repugnant to us as citizens of the United States may be an acceptable principle of law in other countries. For example, the principle of double jeopardy as we know it is sacred to us, •Commander Larry G. Parks, USN, is currently assigned to the International Law Division, Office of the Judge Advocate General. A graduate of the Armed Forces Staff College, he holds the B.A. degree from Illinois College and the LL.B. degree from St. Louis University. Commander Parks is a member of the Missouri bar, the American Bar Association, the Federal Bar Association and the Bar of the Court of Military Appeals.

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

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

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


To commence an explanation of international law we must first define international law. A dictionary definition of international law is: “the law which regulates the intercourse of nations.” 3 Such a definition sounds simple, but is apt to be misleading. If we stopped with a simple dictionary definition and looked no further, we might well believe that international law is a nice, neat, legal package made up of codes, codicils, covenants, and courts, by which civilized nations of the world deal with each other. Nothing could be further from the truth. If international law is not a neat little package available at the whim of a sovereign, what is it? Of necessity one must look to the sources of international law. The two principal sources of international law are custom and treaties. Other sources include general principles of law recognized by nations, judicial precedents, i.e., court decisions, and as previously indicated, textwriters."


1. 19 F.R.D. 309 (1956). 2. Brittin and Watson, International Law for Seagoing Officers,

2d ed. (1960). 3. Black, Law Dictionary (4th ed., 1951).

JANUARY-FEBRUARY 1965 10. Black, supra note 3. 11. See Brittin and Watson, supra note 2 at 16-18 for a discussion of

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

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

The technical advancements in the launching and operation of space objects is resulting in the development of new principles of international space law. Also, the coming of the nuclear-powered ship must necessarily result in the development of new principles of international maritime law by custom as well as by international agreements, particularly rules and regulations for promoting safety of life at sea. The Interna4. 1 Lauterpacht, Oppenheim's International Law, 25 (8th ed. 1955). 5. Brierly, The Law of Nations, 6th ed. 62-66 (1963). 6. The Winston Dictionary (1946). 7. Kelsen, General Theory of Law and State, 369 (1945). 8. Brierly, supra note 5 at 59-62. 9. Fenwick, International Law, 3rd ed., 408-413 (1952).

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

As mentioned before, the second principal source of international law is treaties. A treaty in international law is an agreement or contract between two or more independent nations with a view to public welfare.10 These international agreements are ofttimes called by many other names, such as conventions, pacts, acts, declarations, and protocols and in modern times are used interchangeably. In substance they serve the same purpose, and we need not concern ourselves with the task of distinguishing the labels that are attached.11 Certainly not every treaty between two or more nations is a source of international law. They may well be a source of law for the parties to the agreement, but only in rare instances may we describe them as a source of "general” international law. About the only treaties that would qualify under the principle of general international law would be those which a large group of nations signed for the purpose of declaring their understanding of what the law is on a given subject, or of laying down new rules of conduct, or creating some international institution.2 Obviously, the law created will not be international law for every nation inasmuch as the law will not bind nations which are not parties to the treaty.

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

the terms. 12. Brierly, supra noto 5 at 57–59.

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.14 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.17 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.1 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.

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.

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



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 Agree

mentThe 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).





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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. 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

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 6 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 mem

ber's conduct may subject him to disciplinary or administrative action.

*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 Mandal. 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

4. JAG Manual, secs. 0404a, 0504a.
5. JAG Manual, sec. 0607d.

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.

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