Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

CMO's

CONFESSIONS were held to have been errone

Co

ously admitted where there was continuous questioning by civilian police over a period of a little over a day with time out only for meals and 3 hours sleep, and a statement was made by the commanding officer that if there was a confession there would be court-martial trial, otherwise probably undesirable discharge and surrender to civilian authorities for trial.

"The threat of the commanding officer of the accused, coupled with the other circumstances surrounding the taking of their confessions renders inescapable the conclusion that the confessions were not voluntarily made."

A

MAN is not necessarily automatically released or discharged upon the expiration of his enlistment. Personnel in a disciplinary status will not be separated until disciplinary measures have been completed (ALNAV's 155-41 and 436-46). Question then arises as to when a man is in a disciplinary status. Mere commission of an offense does not per se place a man in such a status. There must be some act by competent authority. This action need not be great or need not be known to the accused himself. For example, the administrative declaration of straggler or deserter is sufficient to place a man in a disciplinary status as of the time his enlistment would otherwise have expired and consequently he is not entitled to separation until disciplinary measures have been completed.

RADM. G. L. RUSSELL, USN Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C.

Price 10 cents, $1.00 per year, $1.35 Foreign

TH

Capt. L. L. Rowe, USN

HE Administrative Division of the Office of the Judge Advocate General has "changed hands." Departing for duty at the Naval Observatory is Captain Lionel L. Rowe, USN, who has been the Director of the Division for nearly three years. During the critical period immediately following the war the task of planning for an effective legal group, Regular and Reserve, to handle the Navy's legal problems in the immediate future and in the event of future hostilities, was Captain Rowe's responsibility. As Personnel officer for the office he was entirely familiar with the personalities and abilities of the Law Specialists, and he exercised not only rare judgment in assigning them to billets but, as well, great consideration for the personal problems of the officers involved in transfers.

Commander Francis J. Bon, USN, the new Director of the Administrative Division is a native of Cheyenne, Wyoming. He was graduated from the University of Notre Dame in 1926, where, little thinking that some day it might be held against him, he played football against Navy teams, among others. Entering Harvard in the

Cdr. F. J. Bon, USN

fall of 1926 he pursued a course in law and was graduated in 1929.

Returning to Wyoming, Commander Bon was admitted to practice before State and Federal Bars, and since has been licensed to practice before the United States Supreme Court and the United States Treasury Department. He has served as counsel for the Wyoming State Senate and Associate Counsel to the Banking and Currency Committee of the United States Senate.

Commander Bon, following his commissioning as a Reserve officer, served during the war in the Office of the Judge Advocate General and with Special Air Task Force Number One, United States Fleet, in the South Pacific. Commander Bon rounded out his wartime experience as Flag Secretary to CinCLant, and after his transfer to the Regular Navy as a Law Specialist he became Legal Officer on the staff of CinCPac and Counsel to High Commissioner of the Trust Territory of the Pacific Islands.

For his wartime service Commander Bon was awarded the Bronze Star with Combat V and the Commendation ribbon.

THE THREE-MILE

LIMIT-II

By Ledr. Emory C. Smith, USN

This is the second and concluding article treating the question of whether or not the 3-mile limit of territorial waters affords sufficient protection to the United States.

The first article appeared in the March 1949 issue of the JAG Journal, and discussed the history of the 3-mile limit and its apparent exceptions. This article undertakes a discussion of the right of self-defense beyond the 3-mile limit. A treatment of the analogous problem relating to the control of the air space reservations from the standpoint of national defense will appear in an early issue of the JAG Journal.

INDER the broad principle of self-defense,

UNDER

international law recognizes that any nation may take reasonable measures to protect its national security and right of privacy, even though the measures employed take place on the high seas beyond the 3-mile limit of territorial waters. It is important to note that a State may endeavor to prevent, in times of peace or war, the commission of certain acts by foreign ships, at a distance of more than three marine miles from its coast without claiming that the place where they occur is a part of its domain. This is true in the case of so-called hovering laws, designed to prevent smuggling by interference outside of territorial waters with foreign vessels about to enter them for an illegal purpose.

When such defensive measures of prevention are applied to foreign shipping, justification rests generally upon the causal connection between the acts sought to be thwarted and the injury otherwise to be anticipated from them by the aggrieved State within its own territory. As that connection may be found to exist at varying distances from the outer limits of territorial waters, the freedom of such a State is not, on principle, dependent upon the precise location of the spot where an offender may be apprehended, or upon the possession by the State of a special right of control over that spot.

Other instances of the applicability of the same principle occur when a neutral State seeks to check the commission of belligerent acts within danger

ous proximity of its shores although outside of the marginal sea; or when a belligerent power undertakes to establish a defensive area within waters outside of, but adjacent to, that sea. Such steps, although taken with a view to safeguarding the national domain, even when confined to specific areas, are not necessarily indicative of the breadth of the maritime belt belonging to the State that has recourse to them, or of assertions of sovereignty over the waters where they are applied.

Although without a sovereign, the high seas are, nevertheless, often the scene of activities in which a State asserts the right to check or forbid the commission of a particular act. Yet that assertion does not necessarily or commonly purport to be a manifestation of dominion over waters, or of a control over them, but rather an interference with acts sought to be committed thereon.

In a word, the 3-mile limit of the marginal sea will last only as long as that limit does not prevent a coastal State from doing whatever it may really need to do on the high sea for the maintenance and defense of its normal life. (See Hyde's International Law, vol. I, pp. 460-461.)

*

"It has been suggested that the seizure of vessels on the high seas for the purpose of preventing smuggling might be justified under the so-called right of self-preservation. This right on the part of a nation, says Mr. Hershey in his work on international law, includes the right to preserve the integrity and inviolability of its territory with the corresponding duty of respecting that of other states.' * * In order to maintain that right a nation may, say the authorities, in extreme cases commit what would ordinarily be an infraction of the law of nations and violate the territorial sovereignty or the international right of another state. Operations of this kind are described by Halleck as 'imperfect war. From an examination of instances in which this principle of self-preservation has been invoked, it would appear that they are limited to efforts to thwart acts of a military character."

*

**

Another expression of this Government's position is found in the Fur Seal Arbitration of 1893 with Great Britain when Mr. Phelps for the United States asserted the right of a nation to enforce its laws beyond the marginal sea, "if they are reasonable and necessary for the defense of a national interest or right." He stated that in such cases other States would acquiesce, but if they did not, the littoral State might enforce such laws at its discretion. To this Sir Charles Russell replied, that if the enforcement were reasonable other States would acquiesce, but that by international law such enforcement could not be claimed as a right against an objecting nation. There seems, however, to be some evidence of acquiescence in reasonable claims to warrant the assertion that a customary rule of international law has grown up under which such acts may be held legal if they meet the test of reasonableness.

The American position finds support among many of the authorities on the subject. The distinguished French writer, Fauchile, has written. that "a state incontestably has the right to take all measures designed to guaranty its existence against the dangers which menace it." An English jurist of equal authority believes that "there are circumstances falling short of occasions upon which existence is immediately in question, in which through a sort of extension of the idea. of self-preservation to include self-protection against serious hurt, States are allowed to disregard certain ordinary rules of law in the same manner as if their existence were involved." (Hall, International Law, 7th Ed., 1917, p. 278.)

Of interest in this same connection is the case of the Kearsarge. In 1864 the Confederate cruiser, Alabama, was in the harbor of Cherbourg, France. The Federal ship of war, Kersarge, stood off the harbor entrance prepared to give battle. The French Government insisted that the engagement should take place far enough outside the 3-mile limit to obviate possible danger to the shore. Secretary of State Seward instructed Mr. Dayton, American Minister to France, "that the United States did not admit a right of France to interfere with their ships-of-war at any distance exceeding 3 miles." However, our Government reversed itself, and adopted the French view in 1886 when Secretary of State Bayard wrote to the Secretary of the Treasury as follows:

“And during our various fishery negotiations with Great Britain we have insisted that beyond the 3

mile line British territorial waters on the northeastern coast do not extend. Such was our position in 1783, in 1794, in 1815, in 1818. Such is our position now in our pending controversy with Great Britain on this important issue. It is true that there are qualifications to this rule, but these qualifications do not affect its application to the fisheries. We do not, in asserting this claim, deny the free right of vessels of other nations to pass on peaceful errands through this zone, provided they do not, by loitering produce uneasiness on the shore or raise a suspicion of smuggling. Nor do we hereby waive the right of the sovereign of the shore to require that armed vessels, whose projectiles if used for practice or warfare, might strike the shore, should move beyond cannon range of the shore when engaged in artillery practice or in battle as was insisted on by the French Government at the time of the fight between the Kearsarge and the Alabama, in 1864, off the harbor of Cherbourg. We claim, also, that the sovereign of the shore has the right, on the principle of self-defense, to pursue and punish marauders on the sea to the very extent to which their guns would carry their shot, and that such sovereign has jurisdiction over crimes committed by them through such shot, although at the time of the shooting they were beyond 3 miles from shore."

These same principles have been recognized in American courts, the most renowned opinion being that handed down by the Supreme Court of Louisiana in the case of Cucullu v. Louisiana Insurance Company, 16 American Decisions 199 where it was held in part:

"Strictly speaking, the authority of a nation cannot extend beyond her own territory. By the common consent of nations this authority has been enlarged, where the sea is the boundary, to the distance of a cannon shot from the shore. Within these limits foreigners are protected, and prizes cannot rightfully be made of their vessels by enemies. But the right of the nation to protect itself from injury, by preventing its laws from being evaded, is not restrained to this boundary. It may watch its coasts and seize ships that are approaching it with an intention to violate its laws. It is not obliged to wait until the offense is consummated before it can act. It may guard against injury, as well as punish it. If indeed, in the exercise of this right, an unreasonable range was taken, other nations might object. But so long as it is confined to the seizure of vessels entering the