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tary duties.23 On the other hand, a supply officer may not take advantage of his inside knowledge of particular servicemen's financial affairs in connection with his employment as a representative of a mutual fund.24

(3) Employment relating to military

duties

A serviceman is prohibited from accepting outside compensation for the performance of normal military duties.25 Commanding officers have the responsibility of preventing personnel of their command from contracting to be paid to do work which is a part of their assigned military duties.26 Thus, Navy law specialists may not charge a fee for legal advice to those persons eligible for Navy legal assistance, 27 and Medical Corps officers are forbidden to accept compensation for care of, or for voluntary appearance as trial witnesses on behalf of, personnel entitled to Navy medical care. 28 An officer may be detailed to instruct in military law at a civilian university, but he may not receive remuneration from the university. In a similar vein, a member of the naval service is generally prohibited from accepting remuneration for the preparation of material for publication which his duties require him to provide gratuitously.29 D. CONFLICT OF

INTERESTS-OTHER

EMPLOYMENT

PUBLIC

Conflict of interests may also arise independent of considerations of private gain. State, municipal, and other public employment may place demands upon the serviceman which are not consistent with his duties as a representative of the federal government. Service personnel have, on occasion, participated in such municipal employment as volunteer police and firefighting work. State, municipal, or other public employment (not involving the holding of public office) 30 is not unlawful; but in each case it is within the discretion of the local commanding officer to determine, in accordance with local conditions within the command and the community, the existence of a conflict of interests which would militate against permission to engage in such activity.31 Certain employment

23. JAG 2nd end., JAG:II: RdeSS:en of 18 Jan 1949.
24. JAG ltr, JAG:131.4:pjh ser 103873 of 14 May 1957.
25. 18 U.S.C. 209(a); DOD Directive 5500.7.

26. JAG ltr, JAG:131.1:AMH:jb ser 85 of 7 Jan 1964.

27. SECNAVINST 5801.1B of 9 Jan 1964.

28. ManMed, article 3-26A, subpars. (7) and (8)(b); JAG memo, JAG: 131.7:SEV:acd ser 5522 of 15 Sep 1964.

29. PIO Manual, article 514 (1) (e).

30. BuPers Manual C-11103; JAG ltr, JAG:II:1:CFA:mac of 26 Apr 1955.

31. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964; JAG ltr, JAG:131.4:brc ser 7661 of 25 Nov 1959; JAG 2nd end., JAG:II:1:JRV:wln of 6 Apr 1954.

may inject a serviceman into the center of a matter of public controversy and may be inconsistent with the image of impartiality associated with public service. Thus, if municipal duties were to require a member of the Navy to participate in local law enforcement activities involving sensitive areas, such employment should be forbidden to that extent. Especially is this so when the situation threatens to result in violence. The Marine Corps Personnel Manual specifically forbids employment as a public law enforcement officer.31a

Ac

A related problem exists with respect to areas in which the Navy has officially embraced a particular point of view. Here, the difficulty lies not in the observance of strict neutrality, but in assuring a consistent attitude upon the part of the serviceman toward his military duties. ceptance of an appointment as a public relations official for a trade association may thus engender a conflict of interests where the association and the Navy espouse conflicting public positions, and should in such circumstances be forbidden.32

A highly specialized area, with an obvious potential for creation of a conflict of interests, is the acceptance of employment with a foreign government or any concern controlled by such a government. Normally, such employment is not permitted. In exceptional cases, reservists are permitted to engage in such employment if approval is obtained from the Secretary of the Navy, and failure to seek approval may result in disciplinary action.33

Even employment in a dual capacity with the Federal Government has been subjected to restrictions. The Comptroller General has stated that the holding of a civilian Federal position while in receipt of active duty pay as a member of the armed forces is incompatible with military duty, so as to require withholding of civilian pay.34

E. EMPLOYMENT ABOARD SHIP OR STATION

Special regulations have been designed to control private business activity aboard ship or station. Employment of naval personnel in such activities threatens not only to detract from their attention to their principal duties, but also to interfere with efficient function of the command in the event that no check is imposed upon multiplication of such activities. Generally, a serviceman is forbidden to engage in private

31a. MarCor PersMan, par. 9350.3.e.

32. JAG memo, JAG:131.3:MHK:jb ser 7226 of 14 Dec 1964.

33. 10 U.S.C. 1032; JAG ltr, JAG:131.4:kk ser 101077 of 14 Feb 1957.

34. Comp. Gen. opinions, B-73409 of 11 Mar 1948, 27 Comp. Gen. 510, and B-133972 of 17 Oct 1957, 37 Comp. Gen. 255.

business activity, either as principal or agent, aboard ship or station, unless authorized by the local commanding officer.35 He is absolutely

prohibited from representing any commercial company for the solicitation of business aboard ship or station.36 This prohibition applies to sale of both goods and services. It affects even businesses which are primarily directed toward a Navy clientele, such as Navy-oriented commercial publications.37

A recent policy statement emanating from the office of the Assistant Secretary of Defense (Manpower), and applicable, as well, to activities carried on outside naval units or installations contains the following pronouncement:

Military personnel on active duty are prohibited from personal commercial solicitation and sale to military personnel junior in rank or grade, at any time, on or off duty, in or out of uniform. This limitation includes, but is not limited to, the personal solicitation and sale of life and automobile insurance, stocks, mutual funds, real estate or any other commodities, goods or services.

F. PRIVATE PROFESSIONAL PRACTICE

There are special restrictions affecting offduty professional practice. This separate section is devoted to such special fields.

(1) Doctors and dentists

Medical Corps officers are permitted to engage in private practice only when emergency circumstances verging on community hardship exist. Their practice shall not interfere with the practice of medicine by local physicians, nor shall it be permitted to be offensive to medical associations or to reflect discredit to the service. It must be voluntary, at no expense to and utilizing no medical facilities of the Navy, and outside working hours. An officer shall not be granted leave or liberty for the sole purpose of engaging in private practice. Such practice must not impair the efficiency of the officer concerned; and the local commanding officer is authorized to determine whether or not it interferes with the performance of military duties.39 Dental Corps officers are absolutely prohibited from engaging In civilian practice on the theory that such activty would place upon them an additional strain which would necessarily impair performance of heir principal duties.40

5. BuPers Manual, article C-11101(c); U.S. Navy Regulations (1948), article 1260.

6. SECNAVINST 1740.1A of 4 Jun 1964.

7. JAG ltr, JAG:131,6:PG:jb ser 6069 of 13 Oct 1964.

8. AsstSecDef (Manpower) memo of 2 Feb 1965 to SecNav-Under SecNav Control No. 349.

9. ManMed, article 3-26A.

D. Ibid, article 6-35.

(2) Lawyers

Navy law specialists are under no general restraint comparable to that of the medical profession. Law specialists should, however, be aware of existing conflict of interests statutes which prohibit an officer of the Government from acting as attorney for prosecuting a claim against the Government or from acting as attorney for anyone else before a department, agency, or court in connection with any matter in which the United States is a party or has a direct and substantial interest." The Attorney General has ruled that the United States has an "interest" in patent awards, so as to preclude a Government officer from acting as a patent attorney.42 As mentioned in section II C. (3), Navy law specialists may not charge a fee for legal advice to those persons eligible for Navy legal assistance.

(3) Journalism

Writing for publication by a commercial source is generally encouraged.43 Assistance in preparation and clearance of material for publication is provided by the Office of Information.44 Members of the naval service are normally at liberty to publish books or articles for personal profit without permission from higher authority.45 Such activities, however, should not be permitted to interfere with regularly assigned duties or be conducted during normal working hours or involve the use of DOD facilities or personnel.46 The military author of an article on a professional, political, or international subject must append to his signature a disclaimer to the effect that the opinions or assertions contained therein are the private ones of the writer and are not to be construed as official or reflecting the views of the Navy Department or the naval service at large. A copy of such an article must be filed with the Office of the Secretary of the Navy.47

Military authors are placed on a par with outside professional writers insofar as accessibility of information is concerned. There is a general policy against disclosure of matter of official record or of information otherwise acquired concerning the Naval Establishment, if disclosure might be prejudicial to the interests

41. 18 U.S.C. 203, 205.

42. 41 Op.Atty. Gen. No. 4 (1949). 43. PIO Manual, article 514(1)(a). 44. Ibid, article 514 (3).

45. U.S. Navy Regulations (1948), article 1252.5; PIO Manual, article 514 (1) (i).

46. PIO Manual, article 514(1)(c). DOD Directive 5230.9 of 17 Aug 1957.

47. U.S. Navy Regulations (1948), article 1252.3. Security Manual for Classified Information, article 1009.2.

48. DOD Directive 5230.9. PIO Manual, article 514 (1) (d).

of the United States. Disclosure of material which may be of aid to a foreign power or which may assist a claim against the United States is specifically prohibited." Articles dealing with military matters are required to be submitted to the Office of Information and to the Office of Security Review (OSD) for security clearance. 50 In time of war, no person in the naval service shall act as a correspondent of a news service or other periodical or as a radio news commentator or analyst, unless assigned to duty in connection with the public relations activities of the Naval Establishment or specifically authorized by the Secretary of the Navy. In time of peace, a person in the naval service may act in such a capacity, but he must inform the Secretary of his activities. Except as authorized by the Secretary, such a person shall not accept any commission for his work.51 In general, there is no objection to the appearance of the name and rank of a serviceman as a by-line to a newspaper article. A serviceman is forbidden, however, to be a member of the editorial or administrative staff of a civilian enterprise publication, and his name and rank may not appear on the masthead of the publication.52

A specialized problem exists with respect to articles of a technical nature which may give the appearance of Navy endorsement of a commercial product. Where the purpose and general tenor of an article approximate commercial advertising, clearance for publication should be denied.53

(4) Entertainment

Active duty personnel may participate in commercial radio and TV shows, if it is in the best interests of the Defense Department, consistent with the prestige of the Navy, and if such activity does not interfere with the customary employment and regular engagement of performers. Appearance for entertainment purposes may be approved when (1) part of an Armed Forces official observance, or (2) the program originates from a military installation and is local, or (3) participation is unique in character and has no commercial counterpart, or (4) the Secretary of Defense certifies that such activity is in the national interest. There is no restriction against general appearance on an audience-participation show, so long as proper and dignified behavior is observed.

49. U.S. Navy Regulations (1948), article 1252.1, 2.
50. PIO Manual, article 514(1)(h). DOD Directive 5230.9.
51. U.S. Navy Regulations (1948), article 1252.4.

52. DOD Directive 5120.4 of 25 Sep 1960, transmitted by SECNAV-
INST 5600.5B of 10 Oct 1960. PIO Manual, article 514 (2) (b).
53. JAG memo, JAG:131.4:WRN:jb ser 466 of 27 Jan 1965.
54. DOD Directive 5430.1 of 22 Jan 1957.

III

INTERFERENCE WITH CUSTOMARY EMPLOYMENT OF LOCAL CIVILIANS

A. INTRODUCTION

Part II was concerned with the impact of offduty employment of naval personnel upon the quality of military performance. In Part III, focus shifts to the impact of such employment upon the community at large. Here, concern is with the maintenance of a satisfactory level of employment of civilians, and attention is directed toward the possibility of displacement of civilians in their jobs or usurpation of civilian job opportunities. Against the undesirability of these competitive effects must be balanced the utility of off-duty employment as an outlet for the specialized talents and the ambitions of service personnel. Policy in this area should represent an accommodation between opposing principles of freedom of pursuit, on the one hand, and an organized and coherent labor market, on the other.

B. GENERALLY

The major piece of legislation in this area is Title 10, U.S. Code, Section 6114,55 which provides:

Except as provided in section 6223 of this title, no enlisted member of the naval service on active duty may be ordered or permitted to leave his post to engage in a civilian pursuit or business, or a performance in civil life, for emolument, hire or otherwise, if the pursuit, business, or performance interferes with the customary or regular employment of local civilians in their art, trade, or profession. (Title 10, U.S. Code, Section 6223, relates to Navy bands and will be discussed presently.) DOD regulations substantially repeat the provision of the statute without implementing definitions.56 As interpreted in the BuPers Manual. this statutory provision prohibits commanding officers, either directly or indirectly, from requiring enlisted men on active duty to engage in private employment in competition with civilian labor, or permitting them to leave their posts of duty during working hours for such purpose. The statute is not, however, interpreted as imposing a requirement that commanding officers restrict personnel from engaging in civilian employment on their own volition while on leave or liberty, nor is such employment prohibited." It is not surprising that the statute and im (Continued on page 29

55. Source statute is section 35 of the Act of 3 June 1916, 39 Stat 188.

56. DoD Directive 5500.7.

57. BuPers Manual, article C-11101(1).

INTRODUCTION TO SPACE LAW

LIEUTENANT COMMANDER RICHARD L. FRUCHTERMAN, JR., USN*

In this article, Lieutenant Commander Fruchterman sets forth the beginnings of what has come to be known as space law and traces some of the conflicting views and theories of the various schools and their proponents. He also outlines the problem areas that remain to be solved.

F COSMIC TRAVELS exist in the sense that all possibilities of overcoming the tremendous distances between the planets have been carefully thought over and therefore have been lived through, nobody may find it premature, if we try to examine in the present paper the legal questions of traveling into the outer space.1

Those words, fitting today, were in fact written in 1932 by Vladimir Mandl. At that time the legal questions and the scientific accomplishments of space were at the same stage of development, viz., talking and planning. From our vantage point in the year 1965 we can look back at tremendous scientific accomplishments within the last few years and look ahead to even greater ones in the near future. Meanwhile, we look almost in vain to see any discernible progress in space law. Space law has not kept pace with scientific accomplishments.

Yet, in the thirty plus years that have passed since Mandl worried about being premature, many ideas and thoughts have been advanced. It is the intent of this article to examine those ideas and the agreements which have been reached.

WHERE DOES SPACE BEGIN

ANCIENT LAW

One of the earliest principles, if not the earliest, regarding air rights is expressed in the legal maxim "cujus est solum, eius est usque ad oelum ad inferos" (he who owns the land owns t up to the sky and to the depths). This

*Lieutenant Commander Fruchterman is presently assigned to the ternational Law Division in the Office of the Judge Advocate Genal. He received his B.S. degree from Georgetown University in 51 and the degree of LL.B. from Georgetown Law School in 1954. e is a member of the District of Columbia bar and holds memberip in the American Bar Association, the Federal Bar Association ad the American Society of International Law.

Quoted by Dr. Alex Meyer, Legal Problems of Flight into the Outer Space, address delivered before the Third International Astronautical Congress in Stuttgart, Germany, 5 September 1952. Printed in Legal Problems of Space Exploration, a Symposium prepared for the use of the Senate Committee on Aeronautical and Space Sciences, S. Doc. No. 26, 87th Cong., 1st Sess. 8 (1961). This document is hereinafter referred to as Symposium.

Roman law was incorporated to some extent into Anglo-Saxon common law. It was, however, a rule concerning the rights of one private citizen against another.

3

With the arrival of the airplane, the maxim was put to the test in court, and lost. "That doctrine has no place in the modern world" said the Supreme Court of the United States in United States v. Causby.2 In Allegheny Airlines v. Village of Cedarhurst 3 another federal court put the finishing touches on whatever private rights in air space remained. The Village complained that it didn't object to the planes flying well overhead but that when the planes took off and landed directly overhead, its air space was being violated. The court ruled that approach patterns during landings and takeoffs...constitute navigable air space within the public domain. Although the maxim of "cujus est solum" has been laid to rest as a basis for dominium under any system of private law, it has some adherents who would apply it to a state's sovereign rights over air space.

THE ADVENT OF THE BALLOON AND AIRPLANE

VIEW OF FAUCHILLE

If the conquest of air brought the demise of "cujus est solum", it in turn created its own body of law and legal thinkers. The Frenchman, Paul Fauchille was the first of these. Fauchille is well known in air law for his theory "l'aire est libre" (the air is free) modeled on Grotius' mare liberum" (the sea is free). However, Fauchille's system was not simple. The air might be free, but this freedom was limited by the right of self-preservation and the state could inspect aircraft to prevent espionage, to prevent the introduction of disease and to enforce its customs. Despite these limitations the air would be free to the aircraft of all neutrals for travel without undue prohibitions. Fauchille's position was approved by the Con

2. 328 U.S. 256 (1946).

3. 132 F. Supp. 87 (E.D. N.Y. 1955).

of the United States. Disclosure of material which may be of aid to a foreign power or which may assist a claim against the United States is specifically prohibited. 19 Articles dealing with military matters are required to be submitted to the Office of Information and to the Office of Security Review (OSD) for security clearance.50

In time of war, no person in the naval service shall act as a correspondent of a news service or other periodical or as a radio news commentator or analyst, unless assigned to duty in connection with the public relations activities of the Naval Establishment or specifically authorized by the Secretary of the Navy. In time of peace, a person in the naval service may act in such a capacity, but he must inform the Secretary of his activities. Except as authorized by the Secretary, such a person shall not accept any commission for his work.51 In general, there is no objection to the appearance of the name and rank of a serviceman as a by-line to a newspaper article. A serviceman is forbidden, however, to be a member of the editorial or administrative staff of a civilian enterprise publication, and his name and rank may not appear on the masthead of the publication.52

A specialized problem exists with respect to articles of a technical nature which may give the appearance of Navy endorsement of a commercial product. Where the purpose and general tenor of an article approximate commercial advertising, clearance for publication should be denied.53

(4) Entertainment

Active duty personnel may participate in commercial radio and TV shows, if it is in the best interests of the Defense Department, consistent with the prestige of the Navy, and if such activity does not interfere with the customary employment and regular engagement of performers. Appearance for entertainment purposes may be approved when (1) part of an Armed Forces official observance, or (2) the program originates from a military installation and is local, or (3) participation is unique in character and has no commercial counterpart, or (4) the Secretary of Defense certifies that such activity is in the national interest. There is no restriction against general appearance on an audience-participation show, so long as proper and dignified behavior is observed.

54

49. U.S. Navy Regulations (1948), article 1252.1, 2.
50. PIO Manual, article 514(1)(h). DOD Directive 5230.9.
51. U.S. Navy Regulations (1948), article 1252.4.

52. DOD Directive 5120.4 of 25 Sep 1960, transmitted by SECNAV-
INST 5600.5B of 10 Oct 1960. PIO Manual, article 514 (2) (b).
53. JAG memo, JAG:131.4:WRN:jb ser 466 of 27 Jan 1965.
54. DOD Directive 5430.1 of 22 Jan 1957.

III

INTERFERENCE WITH CUSTOMARY EMPLOYMENT OF LOCAL CIVILIANS

A. INTRODUCTION

Part II was concerned with the impact of offduty employment of naval personnel upon the quality of military performance. In Part III, focus shifts to the impact of such employment upon the community at large. Here, concern is with the maintenance of a satisfactory level of employment of civilians, and attention is directed toward the possibility of displacement of civilians in their jobs or usurpation of civilian job opportunities. Against the undesirability of these competitive effects must be balanced the utility of off-duty employment as an outlet for the specialized talents and the ambitions of service personnel. Policy in this area should represent an accommodation between opposing principles of freedom of pursuit, on the one hand, and an organized and coherent labor market, on the other.

B. GENERALLY

The major piece of legislation in this area is Title 10, U.S. Code, Section 6114,55 which provides:

Except as provided in section 6223 of this title, no enlisted member of the naval service on active duty may be ordered or permitted to leave his post to engage in a civilian pursuit or business, or a performance in civil life, for emolument, hire or otherwise, if the pursuit, business, or performance interferes with the customary or regular employment of local civilians in their art, trade, or profession. (Title 10, U.S. Code, Section 6223, relates to Navy bands and will be discussed presently.) DOD regulations substantially repeat the provision of the statute without implementing definitions.56 As interpreted in the BuPers Manual, this statutory provision prohibits commanding officers, either directly or indirectly, from requiring enlisted men on active duty to engage in private employment in competition with civilian labor, or permitting them to leave their posts of duty during working hours for such purpose. The statute is not, however, interpreted as imposing a requirement that commanding officers restrict personnel from engaging in civilian employment on their own volition while on leave or liberty, nor is such employment prohibited.57 It is not surprising that the statute and im(Continued on page 29)

55. Source statute is section 35 of the Act of 3 June 1916, 39 Stat. 188.

56. DoD Directive 5500.7.

57. BuPers Manual, article C-11101 (1).

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