highest governmental authority was being formulated into operational instruction to the naval forces. A short time later the Judge Advocate General was called upon to assist in preparing the language of a note informing the Soviet government that the radar picket's actions were in accordance with international law. These two incidents form but a minor fraction of the number of occasions when our naval commanding officers must have had to understand international law and its specific applications. Further, as given emphasis by the USSR trawler incident, these occasions often happen at sea, where, despite modern communications techniques, the commander concerned is generally remote from sources of detailed legal guidance. He must be prepared to determine the best course of action under the circumstances and to implement properly his decision. It is for reasons such as these, and because of the serious international difficulties which violations of international law might entail, that the Naval War College has always included the study of international law in its curriculum. The Judge Advocate General and his staff have been closely involved in the many facets of our international law activities here at the Naval War College. The traditional relationship between these two in matters of international law has been responsive to the Navy's requirements for education, training and expertise in this acutely important field. Working together the Navy team contributes to the posture of peace and security, under law, for this nation and the world. To the continuance and further growth of this relationship and its purposes, this JAG JOURNAL symposium is dedicated. T THE ANNUAL NAVAL WAR COLLEGE HE UNITED STATES Naval War College was established in Newport, R.I., in 1884 with Commodore S. B. Luce, U.S. Navy, as its first President. It is, today, one of the five highest military educational institutions in the United States and is, by far, the oldest war college in the country. Over the years, the Naval War College has become a place of original research on all questions relating to war, to statesmanship relating to war, and to the prevention of war. In the three quarters of a century since the Naval War College was founded, the study of international law has always occupied a prominent place in the curriculum. The study of questions of maritime international law, particularly in the matter of insurgency and the respective rights and duties of neutrals and beligerents, has been accorded even greater importance. The Throughout the years, the conclusions derived from open discussions of questions of international law have been intended primarily for guidance of Naval Officers. Nonetheless, the Naval War College has taken an active interest in the formulation and codification of international law. For example, through the efforts of Captain C. H. Stockton, U.S. Navy, then President of the Naval War College, a Code of Naval Warfare was promulgated in 1900. The Code was prepared under the direction of the Secretary of the Navy, approved by the President of the United States, and published. Foreign sources quickly expressed opinions. London Times, on 5 April 1901, reported that the Code contained a great deal of matter that must surely affect the policy of other nations. Other foreign sources, both private and official, made it obvious that the remarks in the London Times represented, in essence, a consensus of opinion in the capitals of the world's leading nations. It was clear that the Code contained provisions upon which there was no current international agreement-provisions which, in the minds of many statesmen, should be studied and evaluated at the international rather than the national level. Because of this world reaction and the fact that the Code, when originally drawn, was intended for presentation to other countries as an international project, the Naval War College, in 1903, recommended that the Code be withdrawn. With the ap proval of the President of the United States, the Secretary of the Navy revoked the Code on 4 February 1904 in order that United States delegates to any future Hague conferences on this subject might be unrestrained. Upon revocation, the Code became the basis of instructions to the United States' delegation to The Hague Conference of 1907. Thus it was, near the turn of the century, that the United States Naval War College became a leader in the endeavor to formulate objective opinion on topics relating to the law of maritime warfare. THE NAVAL WAR COLLEGE "Blue Book" series is another example of leadership in the formulation of international law. This series, the first volume of which appeared in 1901, was established to provide a medium for dissemination to Naval Officers of pertinent educational and informational material in the acutely important field of international law. Fifty-one volumes of this series have now been published; two others are in the process of publication. Throughout the years, this series has grown in importance and has achieved wide recognition as a source of authoritative reference material; it is used extensively by naval decision makers at all levels and has a wide circulation among international lawyers, courts, educational institutions, and law libraries. The Naval War College is now embarked on a program designed to re-vitalize this series and to put succeeding volumes in a form more readily adaptable to the needs of the various users. This project will be the subject of a future article in the JAG JOURNAL. Today at the Naval War College, the annual International Law Study includes various readings from a carefully selected bibliography, lectures by distinguished visitors, and seminars or group discussions. The objectives of the Study, from its inception to the present, have been to anticipate the maritime legal situations that may arise; to obtain the fullest information as to the proper course of action in accordance with opinion and known precedent; and to determine the acceptability and feasibility of a given course of action by evaluating the interactions of pertinent legal and military considerations. In the seminars, each of which is presided over by a visiting international law consultant, students present their solutions to hypothetical problems and case situationsproblems and situations such as might realistically be faced by a Naval Officer in peace or war. The knowledge thus acquired during the formal study is later applied, and even extended, during the academic year by student discussion and consideration of the possible legal aspects of actions inherent in their solutions to various strategic operations problems-operations problems which, traditionally, include at least one international law problem. This educational technique permits consideration of the impact of a moral concept on military operations and thus serves to develop within the student a proper regard for the increasingly important consideration of international politics and international law in military operations-a consideration which is essential to a well-rounded, knowledgeable leader. The student thus sees clearly and unmistakably that international law-that body of arbitrary limitations upon the exercise of force in war which civilized peoples have mutually accepted-has a modifying effect on the solution to every strategical problem. To afford non-resident naval officers an opportunity to gain an understanding of basic principles of international law, the Naval War College instituted an extension course in this subject in 1924. This course develops an appreciation of those principles of international law which relate to the organization of the world community and to the relations between nations; it is limited to those aspects of the field which are of direct concern to the military officer. Under continual revision in an effort to reflect new knowledge and current conditions, this extension course extends to the non-resident officer, to the maximum degree possible, an opportunity to advance his professional training From left to right: FRONT ROW: Prof. O. J. Lissitzyn, Columbia University; RADM E. E. Colestock, USN, Chief of Staff, U.S. Naval War College; VADM B. L. Austin, USN, President, Naval War College; CAPT F. E. Hayler, USN, Head, Command and Staff Dept., Naval War College; Mr. Benjamin Forman, Assistant General Counsel, Department of Defense. SECOND ROW: Mr. Dennis O'Connor, Research Associate, Yale University; Prof. William T. Burke, Yale University; Col. John F. Hannigan, USAF, Office of the Air Force JAG; LCol. Marvin G. Krieger, USA, The JAG's School, U.S. Army; Capt. Wilfred A. Hearn, USN, Commanding Officer, Naval Justice School. THIRD ROW: Prof. M. H. Cardozo, Cornell University; Dr. Ferenc A. Váli, Center for International Affairs, Harvard University; Prof. G. B. Baldwin, University of Wisconsin; Prof. Louis B. Sohn, Harvard University; Major Donald L. Shaneyfelt, Office of the Army JAG; Prof. R. R. Baxter, Harvard University (LCOL, JAGC, USAR). FOURTH ROW: Mr. Monroe Leigh, attorney-at-law; CDR B. Amman, USN, Staff, Naval War College; Prof. Quincy Wright, University of Virginia; Major Joseph B. Kelly, USA, The JAG's School, U.S. Army; Prof. Wesley L. Gould, Purdue University; LCdr. A. J. Thompson, USN, Staff, Naval War College. FIFTH ROW: CDR M. C. Hydinger, USN, Staff, Naval War College; CDR C. R. Davis, USN, Staff, Naval War College; Prof. W. T. Mallison, Jr., Chair of International Law-U.S. Naval War College (George Washington University); CDR P. J. Rush, USN, Staff, Naval War College. Absent from photograph: Mr. John H. Pender, Depart ment State; Hon. Robert Dechert, attorney-at-law; RADM W. C. Mott, USN, Judge Advocate General of the Navy, who delivered the opening address of the International Law Study. in the vital field of international law. A complementary course, International Relations, was established in 1957, thus affording the nonresident student an opportunity for an education in international affairs that compares favorably with that provided by the resident courses. In the challenging world of 1961, achievements of technology have brought man and the nation-state respectively to the threshold of space and to the brink of self-annihilation. Since World War II, two nations have emerged to become the "Super Powers" of a rapidly changing world order. In such a world environment, the relations among nations have become more and more the concern of all men and not solely of the specialist in international affairs. The problems of security in the nuclear age have intermixed the arts of warfare and diplomacy to a degree never imagined before. And in a period in which the consequences of diplomatic failure may be catastrophic, the makers of foreign and military policy must, without question or hesitancy, work together toward their mutual objectives. Hence today's military leaders must be knowledgeable in the ways of international law and appreciative of the factors that control international politics. Thus the study of international law at the Naval War College is constantly being reexamined, reoriented, and reshaped. AS CURRENTY CONCEIVED and directed (Continued on page 167) INTERNATIONAL LAW OF PIRACY AND THE SANTA MARIA INCIDENT By BENJAMIN FORMAN, ESQ.* † ASSISTANT GENERAL COUNSEL (INTERNATIONAL AFFAIRS), DEPARTMENT OF DEFENSE Consistent with established policy, the views expressed in this article are the private views of the author and do not necessarily carry official sanction of any Department or Agency of the Government. The fact of publication by the JAG Journal does not imply endorsement of content but indicates merely that the subject treated is one which merits attention. AT T 0100 HOURS on January 22, 1961, a band of about 30 persons, acting according to what must have been a carefully prepared plan, forcibly seized control of the SS Santa Maria, a Portuguese passenger ship then on a cruise of the Caribbean with a number of holidaymakers aboard including several Americans. The band, which had boarded the Santa Maria as passengers at scheduled stops in Venezuela, was heterogeneous and included a number of South Americans as well as Portuguese nationals. The Government of Portugal and a large part of the world press immediately labeled them "pirates." They called themselves "revolutionaries" and were led by a Portuguese, Dr. Enrique Galvao, whose stated intention was to raise himself and his political party to power within the State of Portugal. Almost immediately the Government of Portugal requested the help of the United States in recovering the vessel. Whether those who seized the ship were "pirates" or insurgents, it was clearly within the legal right of the United States to aid a NATO ally-or any other State *Mr. Benjamin Forman, since 1956, has been a member of the Office of the General Counsel, Office of the Secretary of Defense. As Assistant General Counsel for International Affairs he is the ranking legal authority on all aspects of the international programs, operations and interests of the Defense Department. Additionally, he is coordinator of Defense legislative programs in the field of mutual security. Mr. Forman holds the degrees B.B.A. "cum laude" from the College of City of New York; the M.A. from the University of Nebraska and the LL.B. "cum laude" from the Harvard Law School, where he was an editor of the law review. During World War II he served with the Combat Engineers of the 75th Division. For eight years Mr. Forman was affiliated with the Department of Justice, during which time he had occasion to argue civil cases in the U.S. Courts of Appeals and before the Supreme Court of the United States. He is a member of the Massachusetts Bar, the New York Bar, and a number of Federal Bars including the Court of Military Appeals. †The author wishes to thank Alfred P. Rubin, Esq., of the Office of the Assistant General Counsel (International Affairs) of the Department of Defense for his assistance in preparing this paper. upon request.1 However, if the Portuguese had been right in classifying the captors "pirates", then international law would have permitted the United States a considerably broader scope for action. One of the most important legal results of attaching the label "pirate" to a person is the withdrawal from that person of his right to call upon his home country to protect him against the acts of a foreign sovereign. Furthermore, were "pirates" in control of a ship at sea, that ship might justly be considered a "pirate" ship, and action to seize the ship might have been taken without regard to the interests of its legal owners.s 1. H. W. Briggs, The Law of Nations, 2d ed., New York, 1952, pp. 999-1000; Lauterpacht-Oppenheim, International Law, Vol. II, 7th ed., 1952, p. 660. Should the captors of the Santa Maria have been considered entitled to the status of belligerents, however, questions as to the Constitutional power of the President to order American forces to join in a "war" might be raised. Article I, Sec. 8, Cl. 11 of the Constitution gives to Congress the power to "declare war." Acting against the seizers of the ship would have involved the loss of the legal status of a neutral by the United States. Lauterpacht-Oppenheim, op. cit., pp. 659-61. Recognition of a status of belligerency would not have obliged the United States to aid Portugal under the NATO Treaty (T.I.A.S. 1964). Article 6 of that Treaty says: "For the purpose of Article 5 an armed attack on one or more of the Parties is deemed to include an armed attack on the territory of any of the Parties ... in the North Atlantic area north of the Tropic of Cancer or on the vessels or aircraft in this area of any of the Parties." The ship was reported to have been seized near the Island of 2. This result stems from the classical view of pirates as enemies of all mankind (hostes humani generis). See Coke, C.J., in R. V. Marsh (1615), 3 Bulst. 27, 81 E.R. 23; H. Grotius, De lure Praedae Commentarius (1604), G. L. Williams and W. H. Zeydel transl., Oxford, 1950, Vol. I, p. 237; Grotius, De Jure Belli ac Pacis (1646 ed.), F. W. Kelsey et alios transl., Oxford, 1925, p. 273. If a State attempts to protect a "pirate" internationally, the State runs the risk of being considered to ratify his act of hostility. Although the practice seems to have been less sweeping than the asserted right, the Admiral's criminal jurisdiction was recognized by English common law as exercisable over any person in cases of common law piracy after 1363. See W. S. Holdsworth, A History of English Law, London, 1922-1938, Vol. I, pp. 550, 553 ftn. (6) et seq. The actual practice is the subject of comment by Cockburn, C.J., in R. V. Keyn ("The Franconia") (1876) 2 Ex. Div. 163-7. See also Anon. (1604), Moore K. B., 756, 72 E.R. 886, to the effect that there is no English common law crime of piracy on the high seas. This case should be read with the British constitutional struggles of the early 17th century in mind. 3. Cf. Convention on the High Seas, Geneva, 1958, Articles 17, 19. However, see Article 18 and discussion below. |