DEPARTMENT OF TIE ARMY PAMPHLET
LAW OF PEACE
Volume I
HEAD(1UARTERS, DEPARTMENT OF THE ARMY
SEPTEMBER 1979
Empty page.
INTRODUCTION
The purpose of this DA Pamphlet is not to make each of its readers an expert in the
field of international law. This publication.has been written with the expectation that the
military attorneys making use of it will be provided with a basic understanding of the
legal .system governing the international community. International law is an area of jurisprudence which challenges. It quite often fails to provide concise "textbook answers" to problems which reach a degree of complexity far greater than that found in any other legal system. Entrusted with the task of regulating the conduct of intema- tional sovereign entities, it is a legal framework which develops on a daily basis. Its suc- cesses go largely unnoticed, while its failures gain almost instantaneous notoriety and condemnation. It is a jurisprudential system particularly unsuited for complacent per- sonalities and regimented minds. Hopefully, military attorneys will not view the often evident imprecision of international law as a fatal weakness but as an opportunity afforded its practitioner to develop an efficient and viable legal system. Constructive criticism and the abiity to apply concepts and rules to practical international legal prob- lems 'must be based on a working knowledge of the subject matter. The achievement of this end underlies the purpose of this publication.
The term "he" (and its derivatives) usedhithispamphlet is generic and,'except where contraindicated, should be considered asapplying to both male and female.
CHAPTER 2. Section I. Pmaph
CHAPTER 3.
Paragraph
I. PaWTaph
I1.
Paragraph
HEADQUARTERS
DEPARTMENT OF THE ARMY
WASHINGTON.DC. 1 September 1979
INTERNATIONAL LAW
Volume 1
THE LAW OF PEACE
NATURE. SOURCES AND EVIDENCE OF INTERNATIONAL LAW-THE TRADITIONAL AND
CONTEMPORARY MEWS …………………………………………………………………
The Traditional View of the Nature of International Law ……………………………………………….
1.1 . A multifaceted jurisprudence ……………………………………………………………
1.2 . The original development of international law ………………………………………………..
1.3 . The theories and schools of international law in the state system ……………………………………
1.4 . Schools…………………………………………………………………………….
Sources and Evidences of International Law ………………………………………………………..
1.5 . General ……………………………………………………………………………
1.6 . Sources of international law ……………………………………………………………..
1.7 . Evidences of international law ……………………………………………………………
1.8 . Municipal courts ……………………………………………………………………..
1.9 . Text writers …………………………………………………………………………
1.10 . Cases decided ex aequo el bono ………………………………………………………….
Contemporary Views of International Law ………………………………………………………….
1-1 1 . General ……………………………………………………………………………
1.12. The Soviet view ………………………………………………………………………
1.13 . Universality …………………………………………………………………………
1.14 . Soviet sources of international law …………………………………………………………
1.15 . The evolving states' view toward international law ……………………………………………..
1.16 . Inequitable features of the traditional system of international law …………………………………..
1.17 . Legal basis of the evolving states' approach ………………………………………………….
1.18 . Sources and evidences of international law ….:………………………………………………
1.19 . Future objectives of the evolving states …………………………………………………….
1.20 . Summary …………………………………………………………………………..
1.21 . Conclusion………………………………………………………………………….
THE RELATIONSHIP BETWEEN INTERNATIONAL AND STATE LAW …………………;……………
On the National Level ………………………………………………………………………..
2.1 . Dualism versus monism ………………………………………………………………..
2.2 . The U.S. approach …………………………………………………………………….
On the International Level …………………………………………………………………….
2.3 . Introduction…………………………………………………………………………
2.4 . Summary …………………………………………………………………………..
SUBJECTS OF INTERNATIONAL LAW …………………………………………………………
3.1 . Introduction…………………………………………………………………………
The Basic Nature of States and Governments ……………………………………………………….
3.2 . Necessary qW~cations for statehood ……………………………………………………….
3.3 . Sovereignty: The key to statehood …………………………………………………………
3.4 . Legal consequences of statehood …………………………………………………………..
3.5 . Statehood and U.N. membership ………………………………………………………….
3.6 . Statehood distinguished from government …………………………………………………..
Recognition of States and Governments …………………………………………………………..
3.7 . Nature of recognition ………………………………………………………………….
3.8 . International legal aspects of recognition …………………………………………………….
3.9 . Practice of the United States ……………………………………………………………..
3.10 . De facto and de jure recognition ………………………………………………………….
3-1 1 . Actions constituting remgnition ………………………………………………………….
3.12 . Existence or nonexistence of duty to recognize ……………………………………………….
3.13 . Recognition and diplomatic relations ……………………………………………………….
3.14 . The status of recognized and unrecognized statesand governments under municipal law …………………
3.15 . Termination or withdrawal of recognition ……….:………………………………………….
3.16 . Continuity of states and change of government ……………………………………………….
This pamphlet supersedes DA Pam 27.161.1. 30 June 1964.
Page .
Section International Legal Personality ………………………………………………………………….3-11
Paragraph 3.17 . The concept of "International Legal Personality" …………………………………………….. 3-11
3.18 . International organizations ……………………………………………………………….3-11
3.19 . Corporations ………………………………………………………………………..3-12
3.20 . Individuals ………………………………………………………………………….3-12
3.21 . Internationallawandhumanrights ………………………………………………………..3-13
3-22. The legal responsibility of individuals in international law ……………………………………….. 3-14
CHAPTER JURISDI(JTI0N ……………………………………………………………………………4-1
Section Bases of Jurisdiction Under International Law ………………………………………………………. 4-1
Paragraph 4.1 . General …………………………………………………………………………… 4-1
4.2 . Jurisdiction based on territory …………………………………………………………… 4-2
4.3 . Acquisition of sovereignty over territory ……………………..:……………………………. 4-2
4.4 . Extent of territory …………………………………………………………………….4-10
4.5 . Scope of territorial jurisdiction ……………………………………………………………4-11
4.6 . Extradition………………………………………………………………………….4-11
4.7 . Jurisdiction based on nationality …………………………………………………………. 4-15
4.8 . ~urisdiction based on agreement with the territorial state ……………………………………….. 4-17
4.9 . Jurisdiction based on protection of certain state, universal, and other interests ………………………… 4-18
Cases of Multiple Jurisdiction …………………………………………………………………..4-21
Paragraph 4.10 . General ……………………………………………………………………………4-21
JurisdictionoverAiraaftandSpaceVehicles……………………………………………………….. 4-21
Paragraph 4-1 1 . Jurisdiction over national aircraft and space vehicles …………………………………………… 4-21
4-12. Jurisdiction over foreign airaaft and space vehicles ……………………………………………. 4-22
4-13. Offenses aboard or against aircraft ………………………………………………………… 4-24
4-14. Jurisdiction over vessels and individuals thereon ……………………………………………… 4-26
4- 15 . Nationality of vessels ………………………………………………………………….4-27
4-16. Scope ofjurisdiction over national vessels and persons thereon …………………………………… 4-27
4-17. Exercise ofjurisdiction in particular situations ……………………………………………….. 4-29
4.18 . Foreign vessels in the territorial sea: The right of innocent passage ………………………………… 4-31
4.19 . Foreign vessels on the high seas (contiguous zone and beyond) ………………………………… 4-33
4.20 . Comment on materials presented ………………………………………………………… 4-34
CHAPTER JURISDICTIONALIMMUNITIES……………………………………………………………… 5-1
Paragraph 5.1 . General …………………………………………………………………………… 5-1
Section Jurisdictional Immunities of Foreign States ………………………………………………………… 5-1
Paragraph 5.2 . The current importance of jurisdictional immunities …………………………………………… 5-1
5.3 . The two theories of sovereign immunity ……………………………………………………. 5-1
5.4 . The restrictive theory …………………………………………………………………. 5-4
5.5 . Procedures for asserting immunity ……………………………………………………….. 5-6
5.6 . The evolving status of sovereign foreign litigants in U.S. courts…………………………………… 5-6
Immunities of state representatives ……………………………………………………………… 5-9
Paragraph 5.7 . Diplomatic representatives and theories of diplomatic immunity ………………………………….. 5-9
5-9
. The Vienna Convention on Diplomatic Relations …………………………………………….. 5.8
5.9 . The International Law Commission's Convention on the Protection of Diplomats …………………… 5-11
5.10 . U.S. legislation for the protection of diplomats ……………………………………………….. 5-11
5-1 1 . Applicability of domestic law …………………………………………………………….5-13
5.12 . Proving diplomatic status ……………………………………………………………….5-14
5.13 . The reach of diplomatic immunity …………………………………………………………5-15
5.14 . Protection of diplomatic personnel in transit ………………………………………………….5-16
5-1 5 . The inviolability of diplomatic premises …………………………………………………….5-16
5.16 . Consular immunity ……………………………………………………………………5-17
5.17 . The Vienna Convention on Consular Relations ………………………………………………. 5-18
5- 18 . The scope of consular immunities …………………………………………………………5-19
5.19 . Applicable U.S. law ……………………………………………………………………5-19
5.20 . Special missions and persons assimilated to diplomatic status …………………………………….. 5-19
5.21 . Representatives to international organizations ………………………………………………..5-20
Immunities of International Organizations, Their Agents. Officials and Invitees ……………………………… 5-21
Paragraph 5.22 . General ……………………………………………………………………………5-21
The Granting of Diplomatic Asylum. Political Asylum. or Temporary Refuge ………………………………. 5-21
Paragraph 5.23 . General ……………………………………………………………………………5-21
5.24 . Applicable international law …………………………………………………………….. 5-21
5.25 . Controlling State Department guidelines ……………………………………………………5-22
5.26 . Controlling DA Regulation ……………………………………………………………..5-22
NATIONALITY ……………………………………………………………………………6-1
6.1 . Introduction…………………………………………………………………………6-1
6.2 . Nationality as a concept of municipal law ……………………………………………………. 6-1
6.3 . Acquisition of nationality ……………………………………………………………….6-2
Pam 27-161-1
Paragraph
CHAPTER
Section
Paragraph
Paragraph
CHAPTER
Section Paragraph
Paragraph
Paragraph
6.4 . Loss of nationality …………………………………………………………………….
6.5 . Statelessness ………………………………………………………………………..
6.6 . Nationality asa concept of international law ………………………………………………….
6.7 . Dual nationality ………………………………………………………………………
6.8 . Obligations of nationality or allegiance ………………………………………………………
6.9 . Taxation……………………………………………………………………………
6.10 . Compulsorymilitaryservice……………………………………………………………..
6-1 1 . Multilateral agreements on nationality ……………………………………………………..
6.12 . Role of nationality in state responsibility …………………………………………………….
STATE RESPONSIBILITY ……………………………………………………………………
General Concepts of State Responsibility …………………………………………………………..
7.1 . Introduction…………………………………………………………………………
7.2 . What constitutes a violation ……………………………………………………………..
State Responsibility for Injuries to Aliens ………………………………………………………….
7.3 . Injury to aliens ……………………………………………………………………….
7.4 . The status of aliens under international law ………………………………………………….
7.5 . Degree of state responsibility to aliens -conflicting views ……………………………………….
7.6 . The international standard ofjustice ……………………………………………………….
7.7 . Procedural aspects of the assertion of a claim based on injuryto a national ……………………………
7.8 . Nationality of the individual claimant ………………………………………………………
7.9 . Substantive bases for international claims ……………………………………………………
7.10 . Responsibility of a state for acts of its militaryforces ……………………………………………
7-1 1 . Failure to protect aliens and to apprehend and prosecute those who wrongfully inflict injuryon aliens ………..
7.12 . Denial of procedural justice ……………………………………………………………..
7.13 . Injury to economic interests of aliens ………………………………………………………
7.14 . Expropriation and nationalization of alien-owned property ……………………………………….
7- 15 . Adequacy of compensation ……………………………………………………………..
7.16 . Presidential statement on expropriation …………………………………………………….
7.17 . State breach of its undertaking to an alien ……………………………………………………
7-1 8 . Choice and effect of governing law ………………………………………………………..
7.19 . State breach as a violation of international law ………………………………………………..
7.20 . Waiver by individual claimant (Calvo Clause) ………………………………………………..
7.21 . Justification for otherwise unlawful conduct ………………………………………………….
7.22 . Reparation …………………………………………………………………………..
7.23 . Succession to obligations and international responsibility ………………………………………..
The Act of State Doctrine ……………………………………………………………………..
7.24 . The conceptual framework ………………………………………………………………
7.25 . The court-made doctrine in the U.S. ……………………………………………………….
7.26 . Legislative reaction to Banco National v.Sabbatino-The Hickenlooper amendments ………………….
7.27 . Judicial reaction to the Hickenlooper amendments …………………………………………….
7.28 . The Executive Branch view of the Act of State doctrine …………………………………………
7.29 . Practical effects of the Hickenlooper amendment ………………………………………………
7.30 . Conclusion………………………………………………………………………….
INTERNATIONAL AGREEMENTS …………………………………………………………….
General…………………………………………………………………………………..
8.1 . Introduction…………………………………………………………………………
8.2 . International agreements defied …………………………………………………………
The Form and Structure of International Agreements …………………………………………………
8.3 . "Treaty Law" -The law of international agreements ………………………………………….
8.4 . Defining the international agreement ………………………………………………………
8.5 . The capacity of parties ………………………………………………………………….
The Conclusion of International Agreements ……………………………………………………….
8.6 . Formal requirements ………………………………………………………………….
8.7 . Authority to negotiate and sign …………………………………………………………..
8.8 . Consent to be bound by an international agreement ……………………………………………
8.9 . Entry into force of an international agreement ……………………………………:………….
8.10 . Depositaries…………………………………………………………………………
8-1 1 . Resewations to international agreements ……………………………………………………
The Validity and Effect of International Agreements ………………………………………………….
8.12 . The biding force of international agreements ………………………………………………..
8.13 . Pacta sunt servanda …………………………………………………………………….
8.14 . Validity and invalidity of international agreements ……………………………………………..
8-15. Jus cogens ………………………………………………………………………….
8- 16 .. Coercion and duress …………………………………………………………………..
8.17 . Registration and effect of nonregistration ……………………………………………………
8.18 . International agreements in internal law …………………………………………………….
Pam 27-161-1
Paragraph Agreement making power in the United States ……………………………………………….
The executive agreement making power …………………………………………………….
Constitutional authority ………………………………………………………………..
Modern development ………………………………………………………………….
"Self-executing" agreements ……………………………………………………………
Conflict of agreement with internal law ……………………………………………………..
Effect of international agreements for states not parties ………………………………………….
Retroactive and successive treaties ………………………………………………………..
General -de of interpretation …………………………………………………………….
8.28 . Supplementary means of interpretation ……………………………………………………..
8.29 . Treaties authenticated in two or more languages ………………………………………………
8.30 . Summary ……………………………………………………………………………
Section. Termination and Modification of International Agreements …………………………………………….
Paragraph 8.31 . Denunciation or withdrawal from a treaty ……………………………………………………
8.32 . Termination or suspension of treaty due to breach or impossibility of performance ……………………..
8.33 . Fundamental change of circumstance ………………………………………………………
8.34 . War between contracting parties ………………………………………………………….
State Succession …………………………………………………………………………….
Paragraph 8.35 . General principles …………………………………………………………………….
8.36 . S~mmw…………………………………………………………………………..
CHAPTER INTERNATIONAL ORGANIZATIONS ………………………………………………………….
Section The United Nations ………………………………………………………………………….
Paragraph 9.1 . The beginnings of the United Nations ………………………………………………………
9.2 . The structure of the United Nations ……………………………………………………….
9.3 . The settlement of disputes by the United Nations ……………………………………………..
The International Court of Justice ……………………………………………………………….
Paragraph 9.4 . The Judges of the court ………………………………………………………………..
9.5 . The law applied in the court ……………………………………………………………..
9.6 . The jurisdiction of the court ……………………………………………………………..
9.7 . Casesbefore the court …………………………………………………………………
9.8 . Conclusion………………………………………………………………………….
CHAPTER STATUS OF VISITING FORCES IN INTERNATIONAL LAW ………………………………………..
Section Collective Security Systems …………………………………………………………………….
Paragraph 10.1 . Collective self-defense under the United Nations Charter ………………………………………..
10.2 . The United States mutual defense system …………………………………………………..
10.3 . Jurisdictional immunity of visiting forces ……………………………………………………
Criminal Jurisdiction Under Status of Forces Agreements ………………………………………………
Paragraph 10.4 . The NATO status of forces agreement ……………………………………………………..
10.5 . Other status of forces agreements …………………………………………………………
10.6
. Conclusion………………………………………………………………………….
THE CTVILLAW SYSTEM ……………………………………………………………………
11-1. Introduction…………………………………………………………………………
11.2
. The early European models ……………………………………………………………..
1 1.3 . Modem civil practice …………………………………………………………………..
11 .4 . The working civil model ………………………………………………………………..
1 1.5 . The civil process ……………………………………………………………………..
11.6 . Pretrial procedures ……………………………………………………………………
11.7 . The decisionmaking process ……………………………………………………………..
11.8 . C&cation …………………………………………………………………………
1 1.9 . Conclusion………………………………………………………………………….
APPENDIX
Section Criminal Procedures In France …………………………………………………………………
A.1 . General ……………………………………………………………………………
A4. The prosecutor in France ……………………………………………………………….
A.3 . Charging …………………………………………………………………………..
A-4. Role of counsel ………………………………………………………………………
A.5 . Burden of proof ………………………………………………………………………
A.6 . Search and seizure …………………………………………………………………….
A.7 . Pretrial confiiement …………………………………………………………………..
A.8 . Bail ……………………………………………………………………………….
A.9 . The judicial process ……………………………………………………………………
A.10 . Appeals ……………………………………………………………………………
-1. Sourcesofthelaw …………………………………………………………………….
criminal ~aw ………………………………………….
Procedures in The Federal Republic of Germany A-12. General …………………………………………………………………………… A-13. The prosecutor ……………………………………………………………………… A-14. Rightsofavictim …………………………………………………………………….
Pam 27-161-1
APPENDIX A.15 . Supervision of the prosecutional function ……………………………………………………
A- 16 . The code of criminalprocedure …………………………………………………………..
A.17 . The German Court System ……………………………………………………………..
A- 18 . Duties of the prosecutor ………………………………………………………………..
A.19 . Rights of the accused …………………………………………………………………..
A.20 . Pretrial confinement …………………………………………………………………..
A.21 . The defense counsel ……………………………………………………………………
A.22 . Indicting……………………………………………………………………………
A.23 . Charges ……………………………………………………………………………
A.24 . Composition of the courts ………………………………………………………………
A.25 . The exclusionary rule in Germany ………………………………………………………..
A.26 . Conduct of the trial ………………………. ;………………………………………….
A.27 . Conviction and sentencing ………………………………………………………………
A.28 . Sources of law …………………………………………………………………………
A.29 . The penal order ……………………………………………………………………….
A.30 . Conclusion………………………………………………………………………….
Section III. Other Civil LawJurisdictions …………………………………………………………………..
A-3 1 . Republic of Korea …………………………………… ,………………………………
A-32. Japan ……………………………………………………………………………..
Pam 27-161-1
CHAPTER 1
NATURE, SOURCES AND EVIDENCE OF INTERNATIONAL LAW:
THE TRADITIONAL AND CONTEMPORARY VIEWS
Section I. THE TRADITIONAL VIEW OF THE NATURE OF INTERNATIONAL LAW
1-1. A Multifaceted Jurisprudence. a. If asked to "define" international law, a law professor would most probably articulate this classic definition: "International law consists of those rules and regulations which bind na-
tion states in their relations with each other." 1 Although academically and theoretically correct, this definition nevertheless fails to provide the military attorney with any practical insight into the distinctive areas of international jurisprudence, the interrelationship of these areas, and the sources and evidences of these rules and regulations. The purpose of this chapter will be to provide this insiit. Ad- ditionally, the views of evolving and socialist states on in- ternational law will be examined in some detail.
b. Far from being simply an amorphous collection of
International Law Private I public
vague concepts and principles, international law is com- prised of distinct component parts. As such, it is a body of law which has evolved out of the experiences and the necessities of situations that have involved members of the world community over the years. International law ex- ists because it is to the benefit of all states that some sort of order govern their international dealings. There may be disagreement among them as to what law applies to a given situation, but there is no disagreement as to the fact that some set of rules is necessary. In the absence of a world government, these rules are made by the states themselves. States are, therefore, the ultimate drafters of international law. The composition of this law can best be explained by a careful analysis of the following chart.
Law of Peace / Lawofwar
-Nature, Sources, Evidences -The State System Conflict Management Rules of Hostilities -Jurisdiction -Self Defense -Hague Regulations (1907)
-Jurisdictional Immunities -Intervention -Geneva Conventions (1 949) -Nationality -U.N. Charter -Customary Law of War -State Responsibility -International Agreements -International Organizations -Jurisdictional Arrangements Overseas
Figure I.
c. Initially, it is important to distinguish between the private and public sectors of international law. In the former, private practitioners will be direct participants in legal matters of a primarily commercial nature. Private in- ternational law thus consists of subject matter generally found in law school courses dealing with Conflict of Laws, International Business Transactions, and other related areas. Typical items of private international law concern would be questions of international tax, franchisii, pa-tents, and incorporation. Interesting in nature, this is not, however, the area of international law of principal concern to the military attorney. 2 It is the public sector of interna- tional law in which the military lawyer may often find him-
1. G. Hackworth, Digest of International Law 1 (1940). See also
W. Bishop, International Law 3 (3d ed. 1971); H. Kelsen, Principles of Internutiom/ Law 201 (1952).
2. As a legal adviser to one of the armed services, the military at-torney will be primarily concerned with providing legal advice to an in- tegral element of the United States Government. Accordingly, intema- tional legal problems which arise will seldom be matters of a purely pri- vate nature. There does exist, however, a growing feeling that the tradi-tional distinction between private and public international law must be eliminated, due to the ever increasing interrelationship between these two areas of jurisprudence. See W. Friedmann, The Changing Structure of International Law 70 (1964).
self an active participant. Accordingly, it is essential that the various elements of this aspect of international jurisprudence be fully understood. Traditionally, public international law has been viewed as operative only among nation states. That is, only states are to be con- sidered true subjects of the law. Private citizens and cor- porate personalities are simply objects of international norms, with the former generally becoming involved in international legal matters only by serving as representa- tives of nation states. 3
d. For purposes of study and analysis, public interna- tional law has generally been divided into two distinct areas-The Law of Peace and The Law of War (Use of
(1) The Law of War. It is helpfd to divide this latter area of jurisprudence into distinct portions: Conflict Man-
3. C. Fenwick, International Law 32-33 (4th ed. 1965). The reader should be aware, however, that many jurists now question the ap- plicability of this traditional view of international law to the legal realities of the latter twentieth century. These individuals argue that private citizens, some international organizations, and even various corporate entities should be considered subjects of public international law. This contention has gathered strong support, especially in the rapidly developing area of human rights.
Pam 27-161-1
agement and the Rules of Hostilities. The Conflict Man- agement aspects of the Law of Warconsist of those legal concepts and principles developed for the purpose of eliminating or substantially reducing conflict within the in- ternational community. Of primary concern here are specific provisions of the U.N. Charter and the concepts of self-defense and intervention. 4 If these norms, for one reason or another, fail to prevent the occurrence of con- flict, the other aspect of the Law of Warthen comes into play-the Rules of Hostilities. Of major importance here are the 1907 Hague Regulations and the 1949 Geneva Conventions, those treaty rules and regulations applicable to the actual conduct of combat and the concurrent humanitarian safeguards. 5 The customary Law of War
may sometimes be looked to in areas where no &led
concepts have been formulated. Publications dealing with the Law of War available to the military attorney include DA Pam 27-161-2, International Law, Volume II (1962);DA Pam 27-1, Treaties Governing Land War-
fare (1956) ;and FM 27-10, The Law of Land Warfare (1956). 6
(2) The Law of Peace. As the second major areaof public international law, thisgenerally comprises 75 to 90 percent of the content of most intemational law courses taught in law and graduate schools. Often viewed by many military attorneys as a "nice to know–but hardly rele- vant" aspect of their professional responsibilities, the various elements of this area of intemational jurispm- dence provide the basic framework upon which both the Law of War and international jurisdictional arrangements are based. 7 It is this framework of the law with which this publication deals. Each of the chapters contained herein will focus on one of the elements of the Law of Peace
4.
For a brief but well reasoned discussion of these basic Conflict management concepts, see J. McHugh, Forcible Ser-He@ in Interna- tional Law, Naval War College Review, Nov-Dec, 1972,at 61.
5.
Annex to Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,1907.36 Stat, 2277,T.S. No. 539,2 Malloy, Treaties 2269;Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, [I9551 3 U.S.T. 3114,T.I.A.S. No. 3362, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, (19551 3 U.S.T. 3217, T.I.A.S. No. 3363, 75
U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [I9551 3 U.S.T. 3316,T.I.A.S. No. 3364,75U.N.T.S. 135and Geneva Convention Relative to the Protec- tion of Civilian Persons in Time of War,Aug. 12,1949, [I9551 3 U.S.T. 3516,T.I.A.S. No. 3365, 75 U.N.T.S. 287.
6.
These are only a few of the publications dealing with the Law of War available to the military attorney. Materials sWtcally designed to assist in the teaching of the Hague and Geneva Conventions are also available.
7.
International jurisdictional arrangements are an aspect of public international law of particular importance to the militaryattorney. These arrangements speak to the jurisdiction to be exercised over military forces stationed overseas and generally occur in the fonn of Status of Forces Agreements, Military Assistance Advisory Group (MAAG) Agreements, and Military Miion Agreements. This subject will be dealt with in detail in chapters 4 and 5, idm.
shown in faure 1 above. 8
e.
The purpose of this brief analysis of the interrelation- ship of the various aspects of international law has been to alert the reader to the fact that sound legal advice on inter- national legal matters is dependent on the attorney's ap- preciation of the broad range of international legal norms. A working knowledge of the Law of Peace is the first step in thislearning process. 1-2. The Original Development of International Law.
a.
The Peace of Westphalia. International law is basically a product of Western European civilization. 9 Beii a law between sovereign states, international jurisprudence did not, indeed could not, arise until the modem nation-state system came into existence. The birth of this system is convenientlyascribed to the Peace of Westphalia of 1648, by which the Thirty Years' War was concluded. 10 It was, in a sense, the constitution for the states that, almost to this day, comprise the map of Europe. 11
6. International law did not develop gradually. It arose rather suddenly to fill a definite need created by the fairly abrupt change in the composition of European political society which resulted from the Thirty Years' War. 'Ihis is not to say, however, that earlier ages did not contribute significantly to the formulation of international law. Early jurists in the field drew heavily on the practice of prior civilizations where rules regulated the existing intercom- munity relations. 12 Major contributions toward establish- ing a viable system of international norms were made by the Hebrews, Greeks, Romans, and several individuals in the Middle Ages. 13 1-3. The Theories and Schools of International Law in the State System. a. Theories. Following the disintegra- tion of the Holy Roman Empire, but prior to the Peace of Westphalia, the Renaissance widened man's intellectual horizon and the discovery of the New World stimulated the imagination of philosophers as well as of explorers. Vitoria, a Spanish theologian whose lectures were published in 1557 after his death, sought to apply the prin- ciples of international morality to the problems of the na- tive races of the Western Hemisphere. In another and earlier treatise he formulated, in clearer terms than had
8. See page 1-1,supra.
9. Thisfact has had a great impact on the contemporary view of the socialist and evolving states toward international law. See section III,
p. 1-13,irlfra.
lo. The Thirty Years' War, beginning in 1618, was a confused struggle of religious and political objectives. Beginnii as a domestic struggle between over 350 individual German states, the war rapidly engulfed, for a variety of reasons, the m Jor states of Europe. Emally, when the participants had exhausted their resources, the war was termi-nated by the Peace of Westphalia of 1648.This agreement consisted of the two treaties of Osnabruck and Munster, to which all of the leading Christian states of Europe were parties.
11.
C. Eagleton, International Government5 (3d ed. 1957); C. Fen-wick, International Law 14-15(4th ed. 1965).
12.
J. Brierly. The Law of Nations 1-2(6th ed. 1963).
13. For an excellent analysis of the influence of earlier civilizations on the development of international law, see A. Nussbaum, A Concise History of The Law of Nations (2d ed. 1954).
Pam 27-161-1
yet been done, the principle that the nations of the world constituted a community, based both upon natural rea- son and upon social intercourse. 14 The Spanish Jesuit, Suarez, in a classic passage of his treatise published in 161 2, insisted clearly that the states of the world, although independent in their national life, were nevertheless members of the human race and as such subject to a law of conduct: a law based, he maintained, chiefly upon natural reason, but also in part upon human custom. 15 The Italian jurist Gentili, professor of civil law at Oxford, published in 1598 a treatise, De Jure belli libri tres, in which, without discarding natural reason and natural law, he sought to frnd historical and legal precedents to regulate the conduct of nations. 16 The honor was reserved, however, to Hugo van Groot, better known as Grotius, to publish in 1625 a more formal treatise, De jure belli et pacis, which was the fust to obtain a hearing outside the schools and which won for its author the accolade of "Father of International Law." 17 Grotius followed the classical tradition in making the natural law the basis of his system. The "natural law," as he defined it, was "the dic- tate of right reason which points out that a given act, because of its opposition to or conformity with man's ra- tional nature, is either morally wrong or morally neces- sary, and accordingly forbidden or commanded by God, the author of nature." 18 Since nations formed a society similar in its nature to the community of citizens, they too were bound by the dictates of the natural law.
b. In addition to the natural law, Grotius recognized a "voluntary" law of nations based upon their free consent, either explicitly expressed in treaties and conyentions or implicitly manifested by usages arid customs. To this law he gave, the name jus gentium. 19 In so far as it conformed
14. Francisco De Vitoria, De Indis Et De Iure Belli Relictiones (text of 1696), in The Classics of International Law (J. Scott ed. 1917). For an appraisal of Vitoria's contribution, see J. Scon, The Spanish Origin of International Law, pt. I: Francisco de Vitoria and his Law of Nations (1934); J. Scott, The Catholic Conception of International Law, chap. 1 (1934); H. Wright, Catholic Founders of Modern International Law (1933); Trelles, Francisco de Viloria et I'ecole moderne du droit inferm- tional, 17 Recueil Des Cours 113-342 (1 927).
15. The passage is quoted, in Latin, by T. Walker, A History of The Law of Nations 155-56 (1 899); and in English by Eppstein, The Catholic Tradition of The Law of Nations 265 (1934). For a study of the in-fluence of Suarez upon the development of international law, see C. Trelles, 43 RECUEIL DES COURS 389 (1933).
16.
Gentili, De Juri Belli Libri Tres (1598), in Classics of Interna- tional Law (1933). Other predecessors of Grotius include Legnano, De Bello, De Represaliis Et De Duello, (circa 1390); Belli, De Re Militari Et Bello Tractatus, (1563); Ayala, De Jure Et Officiis Bellicis Et Disciplina Militari (1582). For a recent critical study, see L. Erlich, The Develop- ment of International Law as a Science, 1 Recueil Des Cours 177 (1 962).
17.
A modern translation by F. Kelsey, The Law of War and Peace, appeared in the Classics of International Law series in 1925.
18.
Id., chap. I, 5 X. For an analysis of the work, see T. Walker, History of the Law of Nations 285 (1899).
19. Id, 5 XIV.Vitoria appears to have used the tern in the same sense a century earlier. The new usage was destined to become the ac-cepted one, and in due time "law of nations" and "international law" came to be interchangeable.
to the dictates of right reason, the voluntary law might be said to blend with the natural law and be the expression of it. Should there be a conflict between the two, the law of nature was tq prevail as the fundamental law, the authority of which could not be contravened by the prac- tice of nations. 20
1-4. Schools. a. Largely under the influence of the great
treatise of Grotius and stimulated by the growing inter-
course between nations and the need for more specific
rules of international conduct, the science of international
law developed rapidly during the succeeding centuries.
Three main tendencies (sometimes described as schools
of thought) may be observed, which have led historians to
classify the various writers into separate groups. The term
"schools," however, suggests a greater unity than has ac-
tually existed within any of the several traditions. Some writers have sought to build up the theory of the law while others have laid chief stress upon the actual conduct of na- tions. A great middle group has insisted that the most practical approach to the law involved, of necessity, some theory of international ethics, thereby following in the footsteps of Grotius.
b. The Naturalists. The peculiar conception of the law of nature developed by the English philosopher Hobbes in his treatise on the Great Leviathan, published in 1651, had a far-reaching effect upon the science of international law. Man is antisocial, not social as in the Stoic and Chris- tian tradition. Living in a state of nature in which he is "nasty and brutish," man is at war with every other man until at last, driven by the instinct of self-preservation, man is led to form a compact with other men and sur- render his natural rights., The law of nature was thus divorced from theology. The divorce made it possible for states to assert their sovereignty in more absolute form; but at the same time it destroyed the conception of a high- er law and made their conduct a matter to be determined by their own free agreement. While following in the tradi- tion of Hobbes in divorcing the natural law from theology, Samuel Pufendorf, a university professor first at Heidelberg and l'ater at Lund in Sweden, conceived a new natural law of his own. In a work published in 1672, De
jure naturae et gentium, Pufendorf conceived of a state of nature whose fundamental law was the obligation of man to promote socialability with his fellow men; 21 whatever acts had that effect were laws of nature. The standard of international conduct was to be determined not by custom and treaty but by the natural law evidenced by the applica- tion of reason to international relations. Historians have placed Pufendorf at the head of the Philosophic or Pure Law of Nature School. However, others who have placed
20. Id., Prolegomena, 5 9.
21. S. Pyfendorf; De Jure Naturae Et Gentium (1672), in Classics of International Law (J. Scott ed. 1934). An abridged edition of the larger work wasprepared by Pufendorf himself under the title De Officio Horninis Et Civis Jurta Legem Naturalem Libri Duo (1682), in Classics of Intermtional Law (J. Scott ed. 1927).
Pam 27-161-1
chief emphasis upon the philosophical basis of interna- tional law, such as James Lorimer in his Institutes of the Law of Nations, have had ideas of their own as to the higher law from which international obligations aie derived. 22
c. The Grotians. Another group of writers, designated as "Grotians," have been said to "stand midway" be-tween the Naturalists and the later group known as Positivists. However, Vattel, the leading writer of this school, was far from being true to Grotius either with respect to his concept of the natural law or to the conclu- sions which might be drawn from the natural law.
(1)
Owing to the practical use made of his treatise by statesmen, the name of Emer de Vattel came to be better known in the world of international relations than that of Grotius himself. Recognizing the need of a new treatise on the law of nations, Vattel believed it more expedient to popularize a volume entitled Jus gentium which was published in 1749 by the German philosopher Wolff. However, in doing so, Vattel expressly rejected the con- cept which Wolff had advanced of a great republic or com- monwealth of the nations, a world-state having authority over its component members. Instead, he preferred to relate international obligations to the theory of primitive society which had become the popular source of the rights and duties of individual men.
(2)
Vattel began with a recognition of the state as a corporate person having an understanding and will of its own as well as obligations and rights. He then argued that: . . . . as men are subject to the law of nature, and as their union in civil
society cannot exempt them from the obligation of observing those laws, the whole nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all its undertakings . . . .23
However, the law of nature could not be applied to na- tions without taking into account the changes called for by the fact that nations, not individuals, were the subjects of the law. It was this adaptation of the law of nature to na- tions which constituted what Vattel believed to be WOWS contribution to a system of international law, and which constituted in turn Vattel's own contribution. 24
(3)
The system proposed by Vattel is elaborate and complex, but it is important because of the great influence exercised by him upon the subsequent development of in- ternational law. Few of the statesmen and jurists who quoted his authority in later years foresaw the conse- quences of his enthronement of the sovereignty and inde- pendence of states. Vattel marked the demise of the long- established distinction between a just and an unjust war. Each prince was to be allowed to be the judge of his own case, and the community was to accept his decision on the assumption that he knew what was best for his own in- terests. Thus,a liberty denied by the law of nature to in- dividual citizens was reserved by Vattel to states, by taking into account the changes in the natural law when applied to them.
d.
The Positivists. A third group of writers has been classified as Positivists, or the Positive School. It was to be expected that with the growing intercourse of states and the greater stability in international relations that followed the Peace of Westphalia there should be increased interest in the substantive body of international law. Bynkershoek, a Dutch publicist, writing between 1702 and 1737, sub- stituted reason for the law of nature, and held that reason and usage constituted the two sources of international law. Permanent usage would appear to embody the dictates of reason, representing as it does the collective reason of suc- cessive generations and of various nations. In this way Bynkershoek was able to appeal directly to custom in sup- port of certain claims, and he went so far as to assert that there was no law of nations except between those who voluntarily submitted to it by tacit agreement. 25 John Jacob Moser, a prolific German writer of the middle of the eighteenth century, pointed the way to the more modem concept of international law by concerning him-self solely with the accumulation of treaties and usages which, in the form of precedents, gave a positive character to international law. This Positivist approach has become the predominant school of thought in the twentieth cen- tury.
Section 11. SOURCES AND EVIDENCES OF INTERNATIONAL LAW
1-5. General. a. A brief examination of the various theo- ries and schools generally associated with the jurispruden- tial development of international law is essential to its study. Though such an analysis will reveal a widespread
22. The influence of Lorimer was significant. He was one of the few writers to foresee the need of international legislative, judicial, and ex- ecutive institutions as essential conditions for the maintenance of peace. His conception of the moral basis of international law was in line with -… present-day conceptions of the inadequacy of the appeal to utilitarian
motives.
23. E. Vatrel, Le Droit Des Gens L 5 (1758).
24. The reader will note that ~atkl's law if nature differs funda- mentally from the Christian concept of natural law, founded not upon contract but upon the application of the law of God to human relations. See supra note 14.
agreement among states that rules are necessary in order to control and govern international conduct, a difference opinion often results when attempts are made to a-
ticdate these rules and defme the process through which they are formulated. Accordingly, it is essential that atten- tion be focused on the very core of this controversy-the
and evidences of international law'
b. When the Permanent Court of International Justice was established pursuant to Article 14 of the League of
2s. C. Bynkershoek, Quaestionum Juris Publici Libri Duo, Lib. I, Cap 10 (1737), in Classics of International Law (1930); Bynkershoek, De Foro Legatomm, Cap. III, 5 10, and Cap. XDL, 5 6, in Classics of In- ternational Law (1946).
Pam 27-161-1
Nations Covenant in 1920,~ a major question for resolu- tion was the law to be applied by the court in deciding mat- ters that came before it and the authorities to be consulted in determining that law. This problem was answered in Article 38 of the statute creating the court. When this body was recognized as an organ of the United Nations, Article 38 of its statute was made an integral part of the statute of the International Court of Justice. 27 Article 38 in its present form provides as follows:
1. The court, whose function is to decide in accordance with intema- tional law such disputes as are submitted to it, shall apply:
The general principles of law recognized by civilized nations; a.
International conventions, whether general or particular, estab- lishing rules expressly recognized by the contesting states;
b.
International custom, as evidence of a general practice accepted as law;
c.
d.
Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualitled publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
By the inclusion of subparagraph Id, Article 38 has in-troduced and combined in paragraph 1 the evidences of international law, together with the three sources listed in subparagraphs la, b, and c. A proper analysis of the law requires that a distinction be made between the former and the latter. 1-6. Sources of International Law. a. In general, inter- national law is based on the common consent of states in the international community. Determination as to whether such consent exists in a particular case or situa- tion is a question of fact. Thus,the three primary sources of international law are those channels through which a state might give its expressed or implied consent. These sources are international agreements (treaties), customary norms, and general principles of law common to all "civilized" states. Consent with regard to this latter source is more implied than expressed and is said to exist because states, having incorporated these principles into their domestic law, are deemed to have consented to their use as principles of international law. 28 Each of these sources merits separate discussion.
b. International agreements. Without question, inter- national agreements now stand as the primary source of international law. 29 The subject of treaties is extensively dealt with in chapter 8. Thus, for tl;e present discussion, it is ~~cient
to simply ddbe the role such agreements play as a source of international jurisprudence. A treaty
26. For a brief account of its establishment see 6Hackworth, Digest of International Law 67-68 (1943).
27.
59 Stat. 1031, T.S. No. 993. For a synopsis comparing the language of each of these statutes, see I. Schwanenberger, International Law 573-588 (2d ed. 1949). The organization and activities of the Inter- national Court of Justice are discussed more fully in chapter 9, irlfia.
28.
This consent is particularly evident in Article 38 of the Statute of the International Court of Justice. This authorizes the Court to resort to "general principles" in deciding disputes placed before it.
29. W. Friedmann, 0.Lissi~yn,& R. Pugh, International Law 64-68 (1969), [hereinafter cited as Friedmann].
may (1) declare, expand, or modify an existing rule of customary international law; (2) abrogate such a rule as between parties; or (3) provide a rule of law where none previously existed. Accordingly, treaties may take prece- dence over all other sources of international law in deter- mining the international obligations of all signatory states. An often stated rule is that only states party to the agree- ment are bound by its terms; treaties cannot control the actions of nonparties. Many modem jurists and publicists contend that international agreements may also establish rules for nonparties in two ways. First, many treaties con- tain provisions that purport to merely codify existing rules of customary international law. These rules are followed by the contracting parties, not only because the rules are part of the treaty, but also because they would be con- sidered as binding international law even in the absence of any treaty. Naturally, the greater the number of states par- ty to the treaty, the more often the agreement will be recognized as binding and the more likely it will be universally accepted as declaratory of a rule of customary international law. 30 Secondly, nonparty states may have a strong incentive to follow the treaty practice of the states party to the agreement. There has been a substantial in-crease in the frequency and importance of agreements made not by two or three states as a matter of private busi- ness, but by a considerable proportion of states at large for the regulation of matters of general and permanent in- terest. Such acts are often the result of congresses or con- ferences held for that purpose, and they are framed to per- mit the subsequent concurrence of states not originally parties to the proceedings. 31 When all or most of the ma-
jor powers have deliberately agreed to these rules, they will have a very great influence among even those states which have never expressly adopted them.
c. Custom. Until fairly recently, custom had been, quantitatively, the primary source of international law, a position now assumed by international agreements. Not- withstanding this fact, however, custom still exists as an important and vital source of international jurisprudence. This results partially from the fact that it is through custom that treaties are interpreted. Of greater importance, however, is the fact that many of the legal concepts con- tained in such treaties can be considered as binding on even nonparties, if these agreements are deemed to be merely a codification of already existing customary inter- national law. Given this fact, the lawmaking process of
30.
For recent references to international agreements as evidencing the state of customary intemational law see Letter from Secretary of State Rusk to Attorney General Kennedy (Jan. 15, 1963), reprinted in Int'l Leg. Mat'ls 527-528 (1963). For instance it is stated that the 1958 Convention on the Territorial Sea and the Contiguous Zone ". . .must be regarded in view of its adoption by a large majority of the States of the world asthe best evidence of intemational law of the subject at the pres- ent time." Id. at 528.
31.
The 1949 Geneva Conventions resulted from an international conference of this nature. Similar diplomatic conferences are currently being held in order to supplement these international agreements.
Pam 27-161-1
custom remains a particularly significant source of interna- tional norms.
(1)
Though custom is often viewed as a somewhat nebulous legal source, this need not be the case. Custom arises when a clear and continuous habit of doing certain actions has grown up under the conviction that these ac- tions are, according to international law, obligatory. It is state practice accepted as law between states. 32 The two great diffculties with respect to the concept are generally considered to be difficulty of proof and the difficulty of determining at what stage custom can be said to have truly become authoritative law. Accordingly, it is helpful to view such a determination as a factual one. As in the case of most factual determinations, there are a number of cri- teria to be studied in order to resolve the issue. Judge Manley 0.Hudson, former U.S. member of the Interna- tional Court of Justice, has suggested the consideration of the following in determining the existence of customary rules of international law:
(a)
Concordant practice by a number of states with reference to a type of situation falling within the do- main of international relations;
(b)
Continuation or repetition of the practice over a considerable period of time;
(c)
Conception that the practice is required by, or consistent with, prevailing international law;
(d)
General acquiescence in the practice by other states. 33
(2)
As can be seen, the essence of customary inter- national law lies not only in the existence and universal application of the custom but likewise in the fact that it is accepted as obligatory by the nation states of the world, or at least a substantial number of these states. Thus, it is the a view of most international jurists that when a custom satisfying the definition in Article 38 of the I.C.J. Statute is established, it constitutes a general rule of international law which, with a single exception, applies to every state. This exception concerns the case of a state which, while the custom is in the process of formation, clearly and con- sistently registers its objection to the recognition of the practice as law. 34 In the Anglo-Norwegian Fisheries case, the Court, in rejecting the so-calledten-mile rule for bays, said: "In any event, the ten mile rule would appear to be inapplicable as against Norway, inasmuch as she has al- ways opposed any attempt to apply it to the Norwegian coast." 35 Even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru, which, far from having by its attitude adhered to it, has on the contrary repudiated it. 36
32.
H. Kelsen, supra note 1, at 307.
33.
Quoted in Friedmann, supra note 29, at 36.
34. C. Waldock, General Course in Public International Law 49
(1 962). 3? Anglo-Norwegian Fisheries Case, [I9511 I.C.J. 131.
36. Colombian -Peruvian Asylum Case, [I9501 I.C.J. 277.
(3) These pronouncements seem to indicate clearly that a customary rule may arise, notwithstanding the op- position of one state, or perhaps even a few states, pro- vided that the necessary degree of acceptance is otherwise reached. Moreover, they also seem to indicate that the rule so created will not bind those states objecting to it. In other words, there appears to be no majority rule with respect to the formation of customary international law. Conversely, it clearly appears that if a custom becomes es-
tablished as a general rule of international law, it will bind all states which have not opposed it whether or not these
. .
states played an active role in its formation. This means that in order to invoke a custom against a state, it is not necessary to spedically show the acceptance of the custom as law by the state. Acceptance of the custom will be presumed, thereby binding the state, unless it can show evidence of its actual opposition to the practice in question.
(4) In applying a customary rule, the Court may well
refer to the practice, if any, of the parties to the litigation in regard to the custom. However, it has never treated evi- dence of their acceptance of the practice as a sine qua non when applying the custom to them. 37
(5)
One aspect of the legal basis of custom which is currently of particular importance is the position of the new states, with regard to existing customary rules of in- ternational jurisprudence. As will be shown in chapter 8, new states generally begin with a clean slate apropos treaties, although they very often assume many of the treaty obligations formerly applicable to them as territo- ries. The suggestion has been made that this same ap- proach should be taken with relation to customary inter- national norms. 38 This suggestion has, quite naturally, proven to be most attractive to states evolving from colo- nial regimes. 39
(6)
An examination of several cases is helpful in demonstrating some factors which various courts con-sidered in ruling upon the existence of customary rules of international jurisprudence.
(a) THE PAQUETE HABANA THE LOLA United States Supreme Court, 1900. 175 U.S. 677, 20 S. Ct. 290. Mr. Justice Gray delivered the opinion of the court. These are two appeals from decrees of the District Court of the United States for the Southern District of Florida, condemning two fish- ing vessels and their cargoes as prize of war. Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Spain, also residing in
Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two-thuds of her catch, the other
37. C. Waldock, supra note 34, at 50.
3s. Socialist publicists are the primary proponents of this sugges- tion. They are most critical of European and Western states attempting to "impose" norms of general international law upon the evolving states of Asia and Africa.
39. A more complete explanation of this Soviet approach toward customary international law occurs idra at paras. 1-12 et seq.
third belonging to her owner. Her cargo consisted of fresh fsh, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockadins squadron, she had no knowledge of the existence of the war, or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture.
*.**
Both the fshing vessels were brought by their captors into Key West.
A libel for the condemnation of each vessel and her cargo as prize of war
was there fded on April 27, 1898; a claim was interposed by her master,
on behalf of himself and the other members of the crew, and her owner;
evidence was taken, showing the facts above stated, and on May 30,
1898, a fmal decree of condemnation and sale was entered, "the court
not beii satisfied that as a matter of law, without any ordinance, treaty
or proclamation, fishing vessels of this class are exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for
the sum of $490; and the Lola for the sum of $800. *
1 1.
We are then brought to the consideration of the question whether,
upon the facts appearing in these records, the fishing smacks were sub-
ject to capture by the med vessels of the United States during the re-
cent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago,
and gradually ripening into a rule of international law, coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish,
have been remgnized as exempt, with their cargoes and crews, from
capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and
no complete collection of the instances illustrating it is to be found, so
far as we are aware, in a single published work, although many are refer-
red to yd discussed by the writers on international law notably in 2 Or-
tolan, Regles Internationales et Diplomatie de la Mer, (4th ed.) lib. 3, c.
2, pp. 51-56; in 4 Calvo, Droit International, (5th ed.) 54 2367-2373; in
De Boeck, ~opridt6 ~iv& Ennemie sous Pavillon Ennemi, $8
191-196; and in Hall,International Law, (4th ed.) $ 148. It is therefore
worth the while to trace the history of the rule, from the earliest accessi-
ble sources, through the increasing recognition of it, with occasional set-
backs, to what we may now justly consider as its fmal establishment in
our country and generally throughout the civilized world.
me Court then proceeds to "trace the history of the rule" through an extensive examination of state practice, beginning with the issuance of orders by Henry IV to his admirals in 1403 and 1406.1
Since the English orders in council of 1806 and 18 10, before quoted, in favor of fshing vessels employed in catching and bringing to market fresh f&, no instance has been found in which the exemption from cap ture of private coast fshing vessels, honestly pursuing their peaceful in- dustry, has been denied by England, or by any other nation. And the Empire of Japan, (the last State admitted into the rank of civilized na- tions,) by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that "the following enemy's vessels are exempt from detention"-including in the exemption "tpats engaged in coast fisheries," as well as "ships engaged exclusively on a voyage of scientif~c discovery, philanthropy or religious mission." Takahashi, International Law, 11, 178.
International law is part of our law, and must be ascertained and ad-ministered by the courts of justice of appropriate jwisdiction, as often as questions of right depending upon it are duly presented for their deter- mination. For thispurpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, resexch and experience, have made themselves pediarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215.
..**
This review of the precedents and authorities on the subject appears
to us abundantly to demonstrate that at the present day, by the general
consent of the civilized nations of the world, and independently of any
express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and industrious
order of men, and of the mutual convenience of belligerent States, that
coast fishing vessels, with their implements and supplies, cargoes and
crews, unam~ed, and honestly pursuing their peaceful calling of catching
and bringing in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels, if employed for a warlike purpose, or in such a way as to give aid
or information to the enemy; nor when military or naval operations
create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed
on the high sea in taking whales or seals or cod or other fish which are
brought fresh to market, but are salted or otherwise cured and made a
regular article of commerce.
This rule of international law is one which prize courts, administering
the law of nations, are bound to take judicial notice of, and to give effect
to, in the absence of any treaty or other public act of their own govem-
ment in relation to the matter.
.*.*
The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels.
On April 21,1898, the Secretary of the Navy gave instructions to Ad- miral Sampson commanding the North Atlantic Squadron, to "im-mediately institute a blockade of the north Coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west." Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22, the President issued a proclamation, declaring that the United States had instituted and would maintain that blockade, "in pursuance of the law of the United States, and the law of nations applicable to such case." 30 Stat. 1769. And by the act of Con- gressof April 25,1898, c. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21. 30 Stat. 364.
On April 26,1898, the President issued another proclamation, which after reciting the existence of the war, as declared by Congress, con-tained this further recital: "It beii desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice." This recital was followed by
declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclama- tion clearly manifests the general policy of the Government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations.
..I.
Upon the facts proved in either case,it is the duty of thiscourt, sitting as the highest prizecourt of the United States, and administering the law of nations, to declare and acjjudge that the capture was unlawful, and without probable cause; and it is therefore, in each case,Ordered, that the decree of the District Court be reversed, and the prweeds of any sale of her cargo, be restored to the claimant, with damages and costs.
[Dissenting opinion of Mr. Chief Justice Fuller, with whom concur- red Mr. Justice Harlan and Mr. Justice McKe~a, omitted.] 40
(b) In The Scoria, 41 the cot& dealt with the ques- tion whether international law required sailing vessels to carry colored lights instead of white ones. In thisparticular case, the court based its determination that such a rule did exist on the fact that numerous maritime states had imple-
40. The reader's attention is directed toward the fact that this case
will also be referred to in connection with the discussion in chapter 2 the relationship between international and U.S. law.
41. The Scofia (18011 81 US 822 (14 Wallace 170).
mented domestic legislation to this effect and that other states had accepted this rule asbinding customary interna- tional law. The court explained its decision as follows:
.. . .Undoubtedly, no single nation can change the law of the sea.That
law is of universal obligation, and no statute of one or two nations can
create obligations for the world. Like all the laws of nations, it rests upon
the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has been
generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation or in the ordinances of
maritime states, or in both, it has become the law of the sea only by the
concurrent sanction of those nations who may be said to constitute the
commercial world. Many of the usages which prevail, and which have
the force of law, doubtless originated in the positive prescriptions of
some single state, which were at fmt of limited effect, but which when
generally accepted became of universal obligation. The Rhodian law is
supposed to have been the earliest system of maritime rules. It was a
code for Rhodians only, but it soon became of general authority because
accepted and assented to as a wise and desirable system by other
maritime nations .. . . And it is evident that unless general assent is
efficacious to give sanction to international law, there never can be that
growth and development of maritime rules which the constant changes
in the instruments and necessities of navigation require. Changes in
nautical rules have taken place. How have they been accomplished, if
not by the concurrent assent, expressed or understood, of maritime na-
tions? When, therefore, we fmd such rules of navigation as are men-
tioned in the British orders in council of January 9,1863, and in our act
of Congress of 1864, accepted as obligatory rules by more than thirty of
the principal commercial states of the world, including about all which
have any shipping on the Atlantic Ocean, we are constrained to regard
them as in part as least, and so far as relates to these vessels, the law of
the sea, and as having been the law at the time when the collision of
which the libellants complain took place.
This isnot giving to the statutes of any nation extraterritorial effect. It
is not treating them as general maritime laws, but it isrecognition of the
historical fact that by common consent of mankind, these rules have
been acquiesced in as of general obligation. . . .
(c) NORTH SEA CONTINENTAL SHELF CASES (Federal Republic of Germany v. Demark) (Federal Republic of Germany v. Netherlands) International Court of Justice, 1969. 119691 I.C.J. Rep. 3, 8 Int'l Leg.Mat'ls 340 (1969).
[Denmark and the Netherlands contended that the boundaries be- tween their respective areas of the continental shelf in the North Sea, on the one hand, and the area claimed by the Federal Republic of Ger- many, on the other, should be determined by the application of the principle of equidistance set forth in Article 6(1) of the Geneva Con- vention of 1958 on the Continental Shelf, 15 U.S.T. 471,499 U.N.T.S. 311, which by January 1, 1969, had been ratified or ded to by 39 states, but to which Germany was not a party. Article 6(1) of the Con- vention reads as follows:
Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the bound- ary of the continental shelf appertaining to such States shall be deter- mined by agreement between them. In the absence of agreement, and unlessanother boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselinesfrom which the breadth of the temtorial sea of each State is measured.
Holding, by a vote of 11 to 6, that Germany wasnot bound by the
principle of equidistance, the Court said in part:]
****
70. … [Denmark and the Netherlands argue] that even if there was at the date of the Geneva Convention no rule of customary interna-tional law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its om impact, partly on the basii of subsequent State practice.
71.
In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, de-scribed, it clearly involves treating that Article asa norm-creating provi- sion which has constituted the foundation of, or has generated a rule which, only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become biding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not likely to be regarded as having been at- tained.
72.
It would in the fmt be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto, the equidistance principle might be said to fulfffl this requirement. Yet, in the particular fom in which it is em-bodied in Article 6 of the Geneva Convention, and having regard to the relationship of that Article to other provisions of the Convention, this must be open to some doubt. In the fmt place, Article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. . . .
Secondly the part played by the notion of special circumstances relative
to the principle of equidistance as embodied in Article 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reser- vations to Article 6, while it might not of itself prevent the equidistance principlebeing eventually received asgeneral law, does add considerably to the difliculty of regarding this result ashaving been brought about (or beiig potentially possible) on the basii of the Convention: for solong as this faculty continues to exist, .. . it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess.
73.
With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it in- duded that ofStates whose in-were spedly afeded In the pres-ent case,however, the court notes that, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respecta- ble, hardly sufficient. That no~atifcation may sometimes be due to fac- tors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied. The reasons are speculative, but the facts remain.
74.
As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964. .. .Although the pasage of only a short period of time is not necessarily, or of itself, a bar to the for- mation of a new rule of customary international law on the basii of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have. been both extensive and virtually uniform in the
Pam 27-161-1
sense of the provision invoked;-d should moreover have occurred in such a way as to show a general recognition that a rule or legal obligation is involved.
75.
The Court must now consider whether State practice in the mat- ter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. . .. [Slome ffteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principlein the majority of the cases by agreement, in a few others unilaterally–or else the delimitation was foreshadowed but has not yet been canied out. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds, which deprive them of weight as prece-dents in the present context. . . .
76.
The essential point in this connection-d it seems necessary to stress itis that even if these instances of action by nonparties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris–for, in order to achieve this result, two conditions must be fulfiffled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be canied out in such a way, as to be evi- dence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sine necessitatis. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are moti- vated only by considerations of courtesy convenience or tradition, and not by any sense of legal duty.
77.
In this respect the Court follows the view adopted by the Perma- nent Court of International Justice in the Loms case. . . . mhe position is simply that in certain cases-not a great number-the States con- cerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors. 42
*
(7)
These three cases serve to demonstrate the role customary international law may play in international ad- judication and several of the ways in which courts have relied upon this source of jurisprudence as a basis for their decisions. Its current importance and value must not be dismissed.
d.
General principles of law. Where neither treaty, nor customary norms furnish a satisfactory rule of law, the ap- plicable legal concepts must be deduced from the general principles of law recognized by "civilized" states. These general principles of law refer to the use of national law principles, common to all nations, in deciding questions of international law. This is comparable in scope to the use of the "law of peoples" by Roman authorities or the subse- quent use of municipal Roman Law by medieval writers in developing the basic principles of international law. The principles of Roman law, even today, furnish the founda- tion for the national laws of most major world powers.
42. North Sea Continental Shelf Cases, [I9691I.C.J. 27.
General principles of law have performed a very necessary function by giving norms to international law which have matured in a more organized local society and which may furnish the means to resolve disputes submitted to inter- national arbitration or adjudication. If there is no treaty or sWc custom in point, a solution can be reached by the use of general principles. A court or commission cannot say "non liquet." 43
(1)
What are these "general principles of law"? Conceivably, they may be general principles of private law 44 or concepts derived from natural law. 45 A listing of some of these observations applied by international courts and tribunals substantiates these observations. Such prin- ciples would include self-preservation, good faith, concept of responsibility, and those general principles of law that govern judicial proceedings, such as res judicata, burden of proof, and jurisdiction. 46
(2)
International arbitral tribunals have frequently employed general principles of law in deciding disputes be- tween states. In a number of cases, for example, arbitra- tors found support in the municipal law principles of ex- tinctive prescription, laches, and statutes of limitation for their rejection of claims on the basis that they had not been presented or pressed for an extended period of time. 47 In the Russian Indemnity Case, decided by a tri- bunal of the Permanent Court of Arbitration in 1912, Russia claimed interest on amounts due under a treaty of 1879 with the Ottoman Empire, which the latter had paid with considerable delay. The tribunal, invoking principles concerning the payment of interest on overdue debts which it found in the private law of European states, was of the opinion that the Ottoman Empire was under a duty to pay interest but held, also on the basis of analogies from private law, that Russia, by its previous failure to demand interest while pressing the Ottoman government for, and receiving payments of, the principal amount, had re-nounced its rights to claim interest. 48
(3)
Several post World War II war crimes trials, such as In re List and Others, indicate that a search of national laws will provide guidance in determining general princi- ples of law. In the List case, the ten accused were high ran@ officers in the German armed forces. They were charged with, inter alia, the responsibility for the execu- tion and ill treatment without trial of a large number of hostages and prisoners in Greece, Yugoslavia, and Albania in reprisal for attacks by unknown persons against
43. Schwarzenberger, Foreword to B. Cheng, General Principles of Zn&ernatiomI Law us Applied by Znter~tioml Courts and Tribunals
(1953).
44. H. Lauterpacht, Priwte Law Sources and Analogies of Interna- tional Law 71 (1927).
45. "They [general principles] opened a new channel through which concepts of natural law could be received into international law.'' Schwanenberger, supra note 43.
46. B. Cheng, supra note 43,at 44.
47. The Gentini Case (Italy v. Venezuela), Mixed Claims Commis- sion of 1903, 10 U.N.R.I.A.A. 551.
48. Russian Indemnity Case, 11 U.N.R.I.A.A.421.
German troops and installations. The tribunal said: 11235)The tendency has been to apply the term "customs and prac- tices accepted by civilized nations generally," as it is used in Interna- tional Law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of Justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule ofjustice is entitled to be declared a principle of International Law, an examination of the munici- pal laws of states in the family of nations wiU reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of Inter- national Law would seem to be fully justified. There is convincing evi-dence that this not only is but has been the rule. …If the rights of na- tions and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of [I2361 justice and rights which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a fmd- ing that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such. . . .49
e. The addition of a third source of law to article 38 was deliberate. Moreover, the debate in the course of drafting clearly indicates that the purpose of the third source of law was to give the Court a certain degree of flexibility in deciding disputes and to allow it to avoid, so far as possi- ble, the problems of non liquet. The scope of the Court's authorization to apply "general principles" is still, however, the object of debate. 50 The rejection of "general principles of law" as a source of international jurisprudence by Soviet jurists has resulted in one of the most basic conflicts in the contemporary interpretation of international law. 51
$ A study of the decisions rendered by the two World Courts indicates that the use by these tribunals of "general principles of law" has been limited. The main sphere in which these principles have been held to apply has been either the general principles of legal liability and of reparation for breaches of kternational obligations or the admimistration of international justice. For example, in the Chonow Factory case, 52 the Permanent Court de- scribed the principle that a party cannot take advantage of its own wrong, as one ". . . generally accepted in the jurisprudence of international arbitration, as well as by municipal courts. . . ." Moreover, at a later stage in this same case, 53 the Court said that ". . . it is a general con- ception of law that every violation of an engagement in- volves an obligation to make reparation . . .," and it went on to speak in terms of restitution and damages. These pronouncements concern general principles of legal liability and of reparation for infkingements of the rights of other states. The same is true of the Court's reference to
49.
United States v. Lit, XI Trials of War Criminals Before The Nuernberg Military Tribunals 1230- 13 17 (1 950).This caseis digested in VIII Law Reports of Trials of War Criminals 34-92 (1949). See also DA Pam 27-161-2,11 Internotiom1 Low 232 (1962).
50.
See C. Waldock, supra note 34,at 55-57 and M. Srenson, Les Sources Du Droit International 126-136 (1946).
51.
An analysis of the Soviet approach toward "general principles of law" as a source of international law occurs infraat paras. 1-12et seq.
52.
Chonow Factory Case,119281 P.C.I.J. 31.
53. Id. at 29.
"good faith" and "abuse of rights," 54 as it is also of the Court's frequent reliance on the principle of "estoppel" (preclusion)which played a particularly prominent part in the cases of the Arbitral Award of the King of Spain 55 and the Temple of Preah Vihear. 56 In the latter case the Court invoked still another general principle of liability, stating that ". .. it is an established rule of law that a plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error." 57
g. As to the administration ofjustice, there are a num-ber of references to "general principles of law" in connec- tion with questions of jurisdiction, procedure, evidence or other aspects of the judicial process. Thus,.speakhg in the Corfu Channel Case 58 of circumstantial evidence, the In-ternational Court stated ". . . this indirect evidence is ad- mitted in all systems of law, and its use is recognized by international decisions. . . ." The principle known as res judicata, which was actually mentioned by the authors of Article 38 of the Statute as an illustration of what they meant by a "general principle of law recognized by civilized nations," has more than once been referred to by the Court. A recent occasion was in the United Nations Administrative Tribunal Case 59 where the Court, in hold-ing the U.N. General Assembly to be bound by the deci- sions of the Tribunal said "[AJccording to a well-estab- lished and generally recognized principle of law, a judg- ment rendered by a judicial body is res judicata and has biding force between the parties to the dispute." Again
, in the I.L.0.Administrative Tribunal Case, 60 the Court referred to the principle of the equality of the parties as a "generally accepted practice" and as a principle which "follows from the requirements of good administration of justice."
h. Other than in the two spheres of the law mentioned above, the Court has shown little interest in attempting to delineate and apply "general principles of law" to ques- tions of international adjudication. Thus, this source of jurisprudence is generally looked to only as a last resort. 1-7. Evidences of International Law. a. Article 38(l)(d) of the Statute of the International Court of Justice states that the Court shall apply ". . .subject to the provisions of Article 59, 61 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determina- tion of rules of law. .. ." These, then, are the evidences of
54. E.g., Certain Gem Interests in Polish Upper Siesia, [I9261
P.C.I.J. 30;The FreeZones Case [I9301P.C.I.J. 12;and Conditions of
Admission to Membership in the United Nations, [I9511I.C.J. 142. $5. Arbitral Award of the King of Spain, [I9601I.C.J. 209, 213.
56.
Temple of Preah Viear Case,[I9621I.C.J. 23, 31-32. See the individual opinion of Judge Alfaro for a general account of the principle of estoppel in international law, id. at 39-51.
57.
Id. at 26.
$8. Corfu Channel Case, [I9491I.C.J. 18.
59.
United Nations Administrative Tribunal Case,I19541I.C.J. 53.
60.
LL.0. Administrative Tribunal Case, [I9561I.C.J. 85-86.
61. Statute c2f The International Court of Justice, Art. 38.
.international jurispruden-the means used to deter- mine the content and extent of the law created by treaties, customs, and general principles. As previously noted, it is essential that they be distinguished from the latter in terms of form and purpose.
6. Judicial decisions. No rule requires that judicial pre- lcedent be followed in dealing with questions of interna- 4onal law. In other words, the principle of stare decisis .does not apply to the International Court of Justice
(I.C.J.), which is comprised of judges of many different nationalities–a majority of them representing civil law systems in which the principle, as such, is not recognized.
7A deeper reason for the inapplicability of any strict *doctrine of #ecedent to international legal decisions is, however, th$+far more individual character of interna- tional judicial decisions. To a much greater extent than in 'municipal law, where the great majority of decisions con- >tern typical situations, such as contracts for property, each ;dispute between states tends to have an individual character. Historical and political peculiarities and diplo- matic actions often prevail over the generality of a legal principle. Moreover, the balance between various national outlooks and approaches is hardly ever the same in any 60cases before the I.C.J., with its 15judges of as many different nationalities.
(1) The strongly political character of many interna- tional issues accounts for the relatively small number of judicial decisions in comtemporary international law. Many issues that could be dealt with as legal matters, such as the status of Berlin, Kashrnir, or the Suez Canel, are handled on a political basis. Nevertheless, in the great ma- jority of international cases, there are legal issues of abid- ing significance, often intermingled with the particular facts and circumstances of the case but contributing to the gradual development of legal principles. Because the inter- national community has no permanent legislative organs, and given the strongly individual characer of many inter- national disputes, each international decision tends to have strong "law-making elements." Any decision by the
I.C.J. or other international tribunal on such matters as boundary disputes or territorial waters "makes" law. This, then, is a further reason why it was necessary to restrict the binding force of the judgments of the Court, as Article 59 does, to the individual case. Any other ap- proach would tend to be resented as an indirect restriction of state sovereignty. 62
(2) Despite these restrictions and reservations, however, the persuasive authority of judgments rendered by the I.C.J. can be substantial. Judgments of the I.C.J.'s predecessor or, depending on the status of the arbitrators as well as the weight of the issue and the reasoning in- volved, of international arbitral tribunals and international commissions may also carry signif~cant weight. Decisions of the courts play an important role in the development of customary law. They help to form international custom
62. Friedmann, supra note 29, at 82-84.
Pam 27-161-1
and show what the courts, national or international, have accepted as international law. The customary side of inter- national jurisprudence has, like the common law, largely developed from case to case, and an increasing number of these cases have been submitted to international tribunals or have come before the "municipal" courts of various states.
(3) As noted, the decision of even an international tribunal, such as the International Court of Justice, with respect to an international law question is binding, tech- nically, only on the parties to the dispute. 63 However, the decisions of such tribunals as the Permanent Court of Ar- bitration, the Permanent Court of International Justice, and the International Court of Justice do have a decided impact on the international community. The opinions of the latter two courts, if considered as mere evidence of the law, are almost conclusive evidence. Departures by the World Court from its prior holdings constitute an excep-tion to the general rule. 64 Thus, a considerable body of "case law" is developing and international tribunals are giving more and more weight to their prior decisions. 1-8. Municipal Courts. The decisions of municipal courts on questions of international law are of great im-portance as precedents to the judges, lawyers, and stu- dents of the particular state of the court concerned. This is true even in those states where the principle of stare decisis technically has no legal application. Normally, the decision of a national court on a question of international law is binding in common law jurisdictions on the other courts subject to judicial review by the court rendering the decision. Moreover, a fairly unanimous body of cases from various national courts will usually furnish compell- ing criteria for the ascertainment of a "customary" rule of international law. This is particularly true of courts in the major countries. Such decisions are even more compelling when the decisions are against the interests of the country in which the court is sitting. The importance of the judicial opinions of national courts as compared to international tribunals should not be overlooked. Such decisions are entitled to much weight in determining the law in areas not decided by tribunals such as the I.C.J. As noted above, the cumulative effort of uniform decisions of mu-nicipal courts is the establishment of evidence of custom- ary norms of international law. 1-9. Text Writers. a. Because of the relative paucity and vagueness of international legal rules, the place of the writer in international law has always been more impor- tant than in municipal legal systems. The basic systemiza- tion of international law is largely the work of publicists, from Grotius and Gentili onwards. In many cases of first
63. "The decision of the court has no binding force except between the parties and in respect of that particular case.'' Statute of The Internu- tional Court of Justrce, Art. 59. See also U.N. CharterArt. 94, para. 1, which sets forth the established principle of international law that the decision of an international court is binding upon the parties.
64. H. Lauterpacht, Development of Internatronal Law by The Inter- national Court 20 (1958).
impression, only the opinions of writers can be referred to in support of one or the other of the opposing contentions of the parties. The extent to which writers are referred to as "subsidiary" authorities often varies according to the tradition of the court and the individual judge.
b. There has traditionally been judicial reluctance, more marked in the British jurisdictions than in the United States, to refer to writers. In the civilian system, reference to textbook writers and commentators is a nor- mal practice, as a perusal of any collection of decisions of the German, Swiss, or other European Supreme Courts will show. A prominent example of reliance on writers in a common law court is the decision of the U.S. Supreme Court in the Paquete Habana case. Here, Justice Gray, in looking toward writers in an attempt to find a customary rule of international law, observed that since there was no treaty on the question before him,
. . . [Rlesort must be had to the customs and usages of civilized nations; and as evidence of these, to the works ofjurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculation of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. 65
c. The courts have, however, been most careful not to confuse the writings of publicists with the law itself. In West Rand Central Gold Mining Company v. The King, the court commented on the role of text writers in developing international law. In speaking ror tne tribunal,
C.J. Lord Alverstone stated: The views expressed by learned writers on international law have done in the past, and will do in the future, valuable service in helping to create the opinion by which the range of the consensus of civilized na- tions is enlarged. But in many instances their pronouncements must be regarded rather as the embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly termed, even in the qualified sense in which that word can
be understood in reference to the relations between independent politi- cal communities, law. 66
d. In the final analysis, the opinions of writers are only as authoritative as the evidence upon which they are based. However, such a conclusion does not adequately measure the influence exerted by publicists throughout the years. They have played a most significant role in the development of international law. Recently, it has been noted that the I.C.J. has had little occasion to rely upon the opinions of text writers, referring to them only in the most general of terms. One noted publicist has suggested a reason for this development:
There is no doubt that the availability of official records of the practice of Strites and of collections of treaties has substantially reduced the necessity for recourse to writings of publicists as evidence of custom. Moreover, the divergence of view among writers on many subjects as well as apparent national bias may often render citations from them unhelpful. On the other hand, in cases–admittedly rare-in which it is
65.
The Paquete Habana, 175 U.S. 677 (1900).
66.
West Rand Central Gold Miniig Company v. The King, [I9051 2 K. B. 391.
possible to establish the existence of a unanimous or practically unanimous interpretation, on the part of writers, of governmental or judicial practice, reliance on such evidence may add to the weight of the Judgments and Opinions of the Court. 67
It should be noted that municipal courts, arbitration tri- bunals, and civilian and military attorneys confronted with international legal problems still make frequent reference to the works of publicists. 1-10. Cases Decided ExAequo et Bono. a. There had been considerable discussion in international law as to whether "equity" is distinct from the law in the sense in which ex aequo et bono is used in Article 38, paragraph 2, of the Statute of the International Court of Justice. 68 This paragraph gives the court the power to decide a case ex ae-quo et bono (according to justice and fairne8) if the parties agree thereto. In addition, the paragraph sets up a statuto! ry and equitable standard which, although never used by the International Court of Justice in deciding a case, has been occasionally utilized by other international tri- bunals. 69
b. The difference between equity and decisions made' ex aequo et bono is not clear in the present state of interna- tional law. A license to render a decision ex aequo et bono permits a judge to decide a case in accordance with his conscience, uncontrolled by law or by equity. The term "equity" refers to general abstract principles ofjustice and fairness of universal validity (i.e., one should not be allowed to profit by one's own wrongful act). On the other hand, the term ex aequo et bono does not refer to any body of general rules and has meaning only with regard to a particular factual situation-that which would be a fair disposition of a particular case according to the judge. Ac- cordingly, an international court, using either the sources of international law set forth in article 38 of the Statute of the International Court of Justice or general principles of international jurisprudence, cannot easily determine the exact role equity should play in its decisions. Neverthe- less, even with these limitations, equity is still a possible source of international law and, as several cases demon- strates, 70 it is misleading to make a very sharp distinction between the concept of ex aequo et bono and equity, each of which is designed to achieve justice. Moreover, a deci- sion rendered ex aequo et bono cannot be cited as evi- dence of international law, in that it was never intended that this law be the basis of such a decision. The fact that the I.C.J. has never turned to this concept is an indication of the minimal role it has played in the development of in- ternational legal norms.
67. H. Lauterpacht, supra note 64, at 24. , 68. W. Friedmann, The Changing Structure of Infernational Law
197 (1964).
69.
The Chaw Conflict (Bolivia v. Paraguay), 3 R. Int'l Arb. Awards. 1817 (1938), 33 AM.J. INT'LL. 180 (1939); Case of James Pugh, 3 R. Int'l Arb. Awards 1307; ANNUALDIGEST, case 46 (1933-34).
70.
Diversion of Water from the River Meuse, [I9371 P.C.I.J. 70; Cayuga Indians Claim, 6 R. Int'l Arb. Awards 173 (1926).
c. These, then, are the sources and evidence of public emphasized. It serves as the foundation upon which all of international law. The importance of a proper appreciation the various legal norms to be discussed are built and sus- and understanding of this subject matter cannot be over- tained.
Section 111. CONTEMPORARY VIEWS OF INTERNATIONAL LAW
1-11. General. a. Discussion throughout this chapter has centered around what is often called the "traditional" ap- proach toward international law. The basic concepts of iuch an approach are rooted in the ideas that states are the on&true subjects of public international law and that ex- $-international norms, as formulated through the y,ears on the basis of the recognized sources and evidences of this jurispr$ence, must be accepted as binding on all states in the prld community. As are most of the funda- mental princi 'bles of existing international law, these are concepts that are basically Western European and North American in origin and nature. They have been developed through the years by states possessed of a com- mon heritage, economic goal, and political outlook. These shared characteristics have thus produced similar views on the part of these states as to what the law should be, the manner in which it should be developed, the problems with which it should deal, and those to whom it should be applied.
Primarily during the past three decades, the Soviet b.
With the advent of the many newly evolved and socialist states on the world scene, this traditional view of international jurisprudence has been challenged. Discon- tented with many of the existing legal norms and con- vinced of the necessity for new approaches toward issues unfamiliar to states of the "old world," these states have tended to formulate their own views toward the various aspects of international law. Their views have had and will undoubtedly continue to have a significant impact on the international community and its jurisprudence. For this reason, it is imperative that the most important aspects of these views be briefly analyzed. 1-12. The Soviet View. a. The Soviet Union, principally as a consequence of further "nationalization" of its revolution, the normalization of its relations with other states, and its increasingly status quo orientation, has reconsidered its earlier refutation of international law and now manifests an intense interest in the propriety and legality of international relations. 71 Indeed, since 1956, the Soviet Union has made a concerted effort to demon- strate its dedication to the progressive development of in- ternational law and the strengthening of its role in interna- tional relations 72 and to winsupport for its formulation of peaceful coexistence as the progressive general interna- tional law of the present age. 73
b.
71. E. MC Whinney, Peaceful Coexistence and Soviet- Western Inter- national Law 52, 118 (1964).
72. The Soviets contend that the socialist and neutralist states of Asia, Africa, and Latin America are the prime movers and most active in this endeavor.
73. See B. Ramundo, The (Sovier) Socialist Theory of International Law, chs. 3-4 (1964).
Union has developed a "new" international law-the law of peaceful coexistence-designed to provide legal support and maximum flexibility in formulating its foreign polity. As an aspect of Stalin's nationalization of the Revolution in the thirties, the Soviets discarded revolutionary ap- proaches to the problems of international law and order and began to operate within the framework of conven- tional international law. 74 Soviet international legal spe-cialists were thus called upon to provide a rationale of flex- ibility for policy makers caught between the demands of Soviet national objectives and the constraints of a capitalist international legal order. The technique for achieving flex- ibility was simple. The Soviet Union firmly supported the doctrine of positivism 75 and, in addition, claimed ". . . the right to reject or modify rules of law followed by the noncommunist states by the touchstone of the avowedly objective principles of peace, equality, justice, and liber- ty." 76 The rules of law acceptable to the Soviet Union on the latter basis were characterized as progressive. Thus, consent and unilateral characterizations of the progressive were the foundation of the Soviet attempt to deal with what was viewed as a hostile legal order. 77
c.
The Soviet Union now contends that the interna- tional legal order is no longer hostile, in that it has been influenced and shaped by the forces of world socialism. Nevertheless, consent and unilateral characterization (which are said to be the basic defenses against a hostile order) remain the essential elements of the new law of peaceful coexistence. The apparently new ingredient, "peaceful coexistence," is intended as a formulation of all that is progressive (i.e., socialist-inspired) in international law. The effort to secure its acceptance as the basic legal principle is an attempt to gain acquiescence in an "objec-tive" standard that will actually facilitate unilateral charac- terization by the Soviet Union by providing a universally accepted "legal" basis for it. 78 Only in this way, it is said, can world order be achieved.
d.
This desired world order, in the Soviet view, has two principal planes of operation and two contexts-relations with capitalist states, and relations within the socialist camp. The former, reflecting the Marxist teaching of class struggle, involves conflict between capitalist and socialist
74. T. Taracouzio, The Soviet Union and International Law
350-351 (1935).
75. Shapiro, The Soviet Concept of International Low, Il Y.B. of World Affoirs 272-310 (1948). See id. at 273, where it is said: "Soviet theorists accept as an axiom consent as the sole basis of the validity of international law . . . ."
76. Lissitzyn, International Law in a Divided World, 542 Int? Con- ciliation 22, 23 (March 1963).
77. Shapiro, supra note 75, at 287.
70. Lissitzyn, supra note 76, at 19.
Pam 27-161-1
states. In this plane, the degree of world order desired would appear to be only that amount necessary to prevent mutual annihilation by a thermonuclear exchange. 79 In dealing with members of the socialist camp, however, a maximum of order is sought to achieve integration and the reduced importance of national boundaries which will produce a single socialist state, and, following that, a world communist society. Accordingly, the Soviet Union now considers the two fundamental principles of contem- porary interrational law as being "peaceful coexistence" and "socialist internationalism." The former is said to be the basic principle regulating the international class strug- gle and relations between the capitalist and socialist camps, while the latter is viewed as the basis upon which members of the socialist "commonwealth of nations" achieve the fullest measure of cooperation and collabora- tion.
e. The current and spec& task of Soviet international legal specialists is to achieve acceptance by the interna- tional community of this new law of peaceful coexistence and its basic component principles. 80 With this task in mind, Soviet jurists contend that the principles of peaceful coexistence are embodied in the Charter of the United Nations and have, therefore, become generally accepted principles of international law: for members of the United Nations, through their acceptance of the Charter, for non- members as a customary principle. 81 Moreover, to en- sure the codification of the general principles of peaceful coexistence, these individuals insist that the Charter of the . United Nations must serve as the general legislative framework:
. . . every mcation of the principles of international law, in whole or in part, is possible only on the basis of the Charter of the U.N. The further progressive development of contemporary international law at variance with the Charter of the U.N. as desired by Representatives of the imperialist states is unthinkable. 82
J The need for codif~cation is rationalized on the general basis that the new international law ". .. is far from perfect and needs to be further developed …" in order to ". .. bring the content of the principles and rules of international law in line with contemporary social development . . ." (i.e., along the lines of consolidating peaceful coexistence). 83 Codif~cation, whether of treaty
79. The conclusion of the Limited Test Ban Treaty in 1963 and the recent participation by the Soviet Union in SALT talks reflect the depth of Soviet concern in this area.
80. Tunkin, The Twenw-Second Congress of the CPSU and the Tasks of the Soviet Science of International Law, I Soviet Law and Government 10. (1963). See also Trukhanousky, Proletarian Interna- tionalism and Peaceful Coexistence, 8 INTZ AFF. 54-59 (1966).
81. B. Ramundo, supra note 73, at 30.
82. Chkhikvadze, Voprosy Mezhdunarodnovo Prava Na XX Sessii General' noi Assamblei [Problems of International Law at the 20th Ses- sion of the General Assembly], 3 Sowtrkoe Gosudarstvo 1 Pravo [Soviet State and Law] [hereinafter cited as SGIPJ 67-78 (1966).
83. Movchan, 0 Znachenii Kodifikatsii Printsipov Mezhdunarod- novo Prava [On the Importance of the Codification of International La4 1 SGIP 46-55 (1965).
or customary law, is considered beneficial, as it provides an opportunity for socialist and neutralist states to com- bine their efforts in furtherance of the development of in- ternational jurisprudence. 84
g.
In addition to the Charter of the United Nations, Resolutions of the General Assembly and multilateral declarations, agreements, and practices are offered as further evidence of the general acceptance of the principles of peaceful coexistence. 8s Similarly, the binding character of the principle of socialist internationalism is said to be based upon treaty as well as customary law. 86 Soviet com- mentaries note that multilateral declarations of tfie socialist states 87 have affirmed socialist internationalism to be the guiding principle in relations beheen socialist states, and the principle of socialist inteinationalism is reflected in all such relations, bilateral as well & multilateral. 88
h.
A recent commentary summarizes all of the forego- ing discussion in a single terse statement: "Peaceful coex- istence is an historical fact, an objective reality, the natural process of social development and the basic internatiod legal norm." 89 Thus, peaceful coexistence is said to be ". . . the political basis of general international law, the development of which determines the possibilities of the development of general international law." 90 In essence, although the objective laws of social development are in-voked, the focal point is the impermissibility of nuclear warfare. This produces the rather non-Marxist result that interdependence based upon technological advances in weaponry, rather than Marxism-Leninism, has dictated both the policy and law of coexistence. 1-13. Universality. a. Soviet international legal spe- cialists formally recognize the universality of international law, that is, the concept of a single general international law binding on all states. 91 These specialists are con- fronted, however, with a dilemma in coping with the problem their acceptance of universality presents. The law of peaceful coexistence must be universal in the sense of binding all states to meet Soviet foreign policy needs in dealing with both capitalist and socialist states. However, it must also allow for different operational norms within the socialist camp. Given the difference in the nature of
84.
Movchan, Kodifikatsiia Mezhdunarodnopravovykh Printripov Mirnovo Sosushchestovovaniia [Codification of the International Legal Principles of Peaceful Coexistence] Sovetskii Ezhegodnik 15-30 (1965).
85.
Mezhdunarodnoe Pravo [International Law] 58-60 @. Levin &
G. Kaliuzhnaia ed. 1964).
86. G. Tunkin, Voprosy Teorii Mezhdunarodnovo Prava [Problems of The Theory of International Lad 313 (1962).
8'. See Declaration of the Twelve Communist Parties in Power (November 1957) and Declaration of Representatives of the Eighw-One Communist Parties (November-December, 1960) in The New Com- munirt Manifesto 169-182; 11-47 (D.Jacobs ed. 1962).
88.
Mezhdunarodnoe Pravo, supra note 85, at 62-78.
89.
Zadorozhnyi, Mirnoe Sosushchestvownie I Mezhdunarodnoe Pravo [Peaceful Coexistence and International Law] 7 (1964).
90.
G. Tunkin, supra note 86, at 7.
91.
E. Mc Whinney, supra note 71, at 32.
Pam 27-161-1
the relationships desired among socialist states and be- tween socialist and capitalist states, the Soviets feel a prac- tical and ideological need to distinguish between these relationships. This desire to differentiate generates con- cern over whether such a fragmentation of the interna- tional legal order may result in a reduced area of operation for the law of peaceful coexistence. In short, this law must be fragmented in the Soviet interest without destroying .the overall claim of universality. 92
b. Confronted with a task of this nature, the Soviets have "amended" the concept of universality of the law of ppacefid coexistence by stating that it is composed ". . .of socially different components, . . . general international law, the princ$les and norms which have a general demo- cratic nature9+d socialist principles and norms that have come into being or are coming into being in the relations between the countries of the world system of social- Qm." 93 Thus, in the Soviet view, contemporary interna- tibnal law is comprised of two basic principles which are mutually exclusive in their operation. These concepts, peaceful coexistence and socialist internationalism, regu-late international relations between socialist and non-socialist states and among socialist states inter se, respec-tively. 94 Such a departure from universality is rationalized as. follows:
Socialist international law does not contradict general international
law: rather, in reflecting the special nature of the relations between
socialist states, it broadens and deepens the democratic character of
general' international law. 95
Socialist principles and norms relate to the principles and norms of
general international law as a new and higher quality does to an older
quality. While they incorporate positive factors and go further than the
principles and norms of general international law is assuring friendly
relations among states, the socialist principles and norms do not conflict
with general international law. 96
.. . [Tlhe existence of principles of socialist internationalism and other socialist principles and norms in the relations between countries of the socialist system in no way contradict the needs of a general intema- tional law. 97
c. Tunkin, the foremost Soviet international legal spe- cialist, has introduced a changed concept of universality designed to meet the needs of the Soviets in this area.
.. .mhe basic principles of contemporary international law are bid- ing and states cannot establish in their bilateral or regional multilateral relationships norms which would conflict with the basic principles.
Nevertheless, states can create principles and norms biding upon a limited number of states, if these principles and norms do not conflict with the mentioned basic principles, especially if they go further than these principles of general international law in furthering friendly rela- tions and securing the peace. Such are the international legal principles of socialist internationalism. 98
92. B. Ramundo, Peaceful Coexistence 19 (1 967).
93.
Lissitzyn, supra note 76, at 21-22.
94.
Id.
95. Mahdunarodnoe Pravo, supra note 85, at 9.
9-5. Tunkin, supra note 80, at 26. Tunkin's rationale reflects the dialectical approach to the process of legal development.
97. Ushakov and Meleshko, Novyi Uchebnyi Kurs Mahdumrod- novo Praw [The New Text on Inler~tiomlhuj, 10 SGIP 154 (1964).
98. G. TUNKIN, supra note 86, at 325.
1-14. Soviet Sources of International Law. a. The basic
concepts of the Soviet view of international law having
been reviewed, attention will now be focused on what the
Soviet Union considers to be the true sources of this
jurisprudence. The Soviet Union is a party to the Statute
of the International Court of Justice and presumably is
bound by the traditional sources of international law
enumerated in Article 38: treaties, international custom,
and general principles of law. Notwithstanding Article 38,
however, there is, under the Soviet view, a single source
of all international legal norms: the agreement of states.
Thisview limits the formal sources of international law to
treaties, where agreement of the parties is expressed, and
to those customary principles which have been agreed to
and, then, only as to states which have agreed and so long
as they continue to agree. 99 Treaties are considered the
principal source of international law, favored over
customary norms because of the unambiguous character
of the consent of the party states. 100 The broader
coverage of Article 38 of the Statute of the I.C.J. is ex-
plained on the ground that it enumerates legal principles
to be applied by the Court, and not the sources of interna-
tional law. 101
b. Treaties: The Charter of the United Nations. In the Soviet view, all treaties establish norms in the sense that biding obligations are created by the parties. If valid as international legal enactments, treaties may confi exist-ing law, develop it further, create new norms, or eliminate outdated ones. 102
(1)
The Soviets single out the Charter of the United Nations as the most important piece of international legis- lation because it embodies the principles of peaceful coex- istence. This document is described as ". . . the charter of contemporary international law, its most important source." 103 Using the Charter as a point of departure, the Soviets are active proponents of codification asa means of implementing and developing the law of peaceful coex- istence. The United Nations is expected to assist in and serve as the forum in this struggle for codification. 104
(2)
Bilateral agreements still appear to be preferred over multilateral treaties, presumably due to the greater influence and situational control inherent in the negotia- tion of the former. 105 There is, however, a growing ap- preciation of the compensating advantages of multilateral agreements, both within the socialist commonwealth and in dealing with capitalist states. As a result, Soviet treaty
Id. at 19 and 79. 99.
Mahdumrodnoe Pravo, supra note 8'5, at 19. It is said that the key element in the biding nature of international custom is the consent of the state concerned.
100.
101. P. Lukin, Istochniki Mahdunarodnovo Praw [Sources of In- It?r~ti0~/
hd 52-55 (1960).
102. G. Tunkin, supra note 86, at 66-72.
103. Chkhikvadze, supra note 82, at 71.
E. Mc Whinney, supra note 71, at 66-68. 104.
Mezhdumrodnoe Pravo [Inlernatioml Lad 41 (F. Kozher-nikov ed. 1964).
105.
practice has become more diversified and places greater emphasis upon multilateral agreements.
(3)
In the Soviet view, contemporary international law is basically treaty law. 106 Preference for treaties as the principal formal source of international law reflects the Soviet Union's basic positivist approach and is an impor- tant element in its bid for Western acceptance of the law of peaceful coexistence. 107 The Soviets consider "law by treaty" as an extremely flexible and useful device for achieving minimum and maximum international legal goals; defending against a hostile order, in the first in- stance, or transforming the international order, in the sec- ond. For the former purposes, a claim of lack of consent constitutes a universally accepted, traditional bar to the enforcement of a challenged norm; for the latter, accept- ance of the principles of peaceful coexistence in treaty form would provide a universally recognized legal basis for the new law. Thus, the Soviets claim, the Charter of the United Nations embodies the principles of coex- istence.
(4)
Soviet treaty practice generally follows that of the West, principally because the Soviet state had to accept the institution as a condition of membership in the interna- tional community. Indeed, the law of treaties was ex- pected to serve as the "bridge between the traditional and revolutionary systems." 108 Where differences in the Soviet approach to treaties exist, they appear to be politi- cally oriented and marked by purposeful ideology. 109
c.
Custom. In Soviet literature on international law, there is a conscious depreciation of the role of custom as a source of international law. Soviet writers reject as out- dated the proposition that custom, rather than treaties, represents true international law. 110 This view is simply reflective of a decided preference for treaties as the prin- cipal source of international law.
(1)
The objectionable feature of customary law from the Soviet point of view is the potential for loss of control in the creation of binding norms. For many years after the formation of the Soviet state, custom was rejected as a source of international law due to the need to protect itself against "hostile" customary law. However, the later recognition that custom can be useful as a source of inter- national law, if properly controlled, has resulted in a Soviet acceptance of customary law, with qualifications designed to meet specific foreign policy needs.
(2)
The Soviets have rejected the Western-sup- ported doctrine that customary norms recognized as such by a considerable number of states are binding upon all as to do so would pose a danger to peaceful coexistence. To
106.
Mezhdunarodnoe Pravo, supra note 85, at 80.
107.
J. Triska and R. SIusser, The Theory, Law and Policy of Soviet Treaties 9-29 (1962).
108. Id. at 28.
109. Id. at 172. See "The Soviet Law of Treaties," id. 34-172 for a detailed statement of Soviet treaty law. See also Romundo, supra note 92, at 53-60.
110. G. Tunkin, supra note 86, at 104-105.
be effective, it is said that custom must be in accord with thejus cogens 111 and be accepted by the state which is to be bound. 112 As in the case of treaties, a departure from the jus cogens in customary law requires acceptance ". . . by the states of both systems . . . to be regarded as a universal customary rule of international law." 113 Moreover, the contention is made that the applicability of a customary rule is subject to continuing review to deter- mine the extent to which it meets present-day require- ments.
(3) The Soviet position on consent is based upon tacit agreement (i.e., that one state's acceptance or recog- nition of an international custom is deemed to constitute a tacit proposal to other states to regard the custom as a norm of international law). This acceptance by other states can be expressed or simply indicated by a course of conduct. Once accepted, the custom becomes a customary norm of international law, with the same force, effect, and weight as a treaty norm. 114 The extreme positivism of the Soviet position on this point is evidenced in the following:
Customary international law may be changed or abolished either by treaty or by a new customary rule. In either case there is a new agree- ment between states. 115
Customary norms of international law Wig a result of agreement among states, the sphere of action ofrsuch norms is Sited to the rela- tions between the states which accepted these nonns as nonns of inter- national law, i.e., the states participating in this tacit agreement. . . .As for the newly emerging states, they have the juridical right not to recog- nize this or that customary norm of international law. . . . The concept that customary norms of international law recognized as such by a large number of states are biding upon all states not only has no foundation in modem international law but is fraught with great danger. 116
(4) Soviet commentaries reject the position of many Western jurists that the principle of "majority rule" ap- plies in the formulation of customary norms as a ". . . cry-ing contradiction to the basic generally recognized princi- ple of modem international law, the principle of the equality of states. . . ." 117 In making this argument, the Soviets depict the socialist states and newly emerging countries of Asia and Africa as victims of Western at-
11'. The concept of jus cogens continues to present problems in in- ternational law. There is no all-encompassing defhtion which is univer-sally acceptable to the various member states of the international com- munity. This problem of defhtion arises from the basic differences ex- isting among the various state systems of jurisprudence. There can, of course, be no true consensus of the proper scope or application of jus cogens absent a working defhtion. For an informative discussion of the various meanings given to jus cogens, see The Concept of Jus Cogens in Public International Law: Popers and Proceedings, Geneva, 1967 (Re-port of a conference organized by the Carnegie Endowment for Inter- national Peace, Lagonissi [Greece], April 1966).
112. Tunkin, Remarks on the Juridic01 Nature of Customary Norms of International Law, 49 Calif: L. Rev. 428 (1961).
113.
E. Mc Whinney, supra note 71, at 63-64, quoting Tunkin. It is said that the jus cogens of customary law cannot be rejected by in- dividual states.
114.
Tunkin, supro note 112, at 422-423.
115. G. Tunkin, supra note 86, at 103-104.
116. Tunkin, supra note 112, at 428-429.
117. Id. at 427.
Pam 27-161-1
tempts to impose international norms under the guise of customary law. 118 Accordingly, the Soviet approach toward customary law has had great appeal to African and Asian states.
d. General principles. Paragraph 1 (c) of article 38 of the Statute of the I.C.J. authorizes the Court to apply "the general principles of law recognized by civilized nations" in deciding, in accordance with international law, the dis- putes submitted to it. Various meanings have been at- tributed to this article, with the Western view being that "general principles'' are a true, if subsidiary, source of in-ternational law. 119 The general reluctance on the part of the Soviet Union to expand the competence and impor- tance of international tribunals has resulted in its rejection of general priiciples as an independent source of interna- tional law.
(1) In the Soviet view, article 38 does not purport to establish general principles as a source of international law, nor to empower the I.C.J. to create law on the basis of such principles:
In [Article 381 it is clearly stated that the Court decides disputes "on the basis of international law. . . ." The Court does not create interna- tional law, it applies it. 120
The majority of Soviet authors are of the view that paragraph 1 (c) of Article 38 of the Statute of the International Court does not contemplate a special source of international law or a special method of creating norms of international law. The "general principles of law" can only be principles of international law. 121
(2) The requirement that the court decide disputes "on the basis of international law" is viewed as support for the view that paragraph 1 (c) of article 38 does not con- template the application of domestic law, but only interna- tional law: 122
The International Court of Justice can in addition to international conventions and international customs apply "the general principles of law recognized by civilized nations" [Article 38(c), Statute of Intema- tional Court]. Many of these principles are still of great importance for the development and affiation of democratic rules of international law. They are realized either through the appropriate international treaties or through international custom and are in fact their generaliza- tion. Principles reflected neither in international treaties nor in interna- tional custom cannot be considered "general principles." 123
(3) Additionally, the Soviets claim that general prin- ciples of domestic law 124 do not exist, despite formal similarities in the various legal systems; the laws of socialist and capitalist states have a different class basis and, as a consequence, potentially different substantive content:
In the world there are states with two [different] social-economic systems and, as a consequence, two types of legal systems. The majority
118. G. Tunkin, supra note 86, at 103.
H. Briggs, The Law of Nations 48 (2d ed. 1952). 119.
120.
G. Tunkin, supra note 86, at 147-148. See also Kozhevnikov, Inter~tional Court at the Crossroads, 36 New Times 3 (Sept. 7, 1966).
121.
Id. at 152.
122.
Id. at 15.5.
123. MOSCOW:
Foreign Languages Publishing House, Intermtio~l Law 12 (n. d.).
124. G. Tunkin, supra note 86, at 155.
of the legal principles, despite their formal similarity, have, in some in- stances, different meanings in the legal systems of socialist and capitalist states. Therefore, it can be said with full justification that paragraph "c" of Article 38 of the Statute of the International Court of the U.N. was and remains for all intents and purposes a dead letter. 125
(4)
The Western interpretation that general princi- ples include domestic legislation is dismissed by the Soviet Union as simply a Western attempt to impose the bourgeois system of law upon socialist states and the newly evolved countries of Africa and Asia. 126
e.
Soviet auxiliary "sources" of international law. Rather than speaking in terms of "evidences" of interna- tional law, Soviet jurists recognize the existence of auxil- iary "sources" of international jurisprudence (e.g., resolu- tions of international organizations, decisions of interna- tional courts, and domestic legislation). These are more precisely described as auxiliary processes for the manifestation of the agreement of states (i.e., other than through treaties or the acceptance of custom): 127
There are also auxiliary processes (resolutions and decisions of inter- national organizations, international courts, and courts of arbitration; national legislation; and the decisions of domestic courts) which are a definite stage in the process of the formation of norms but do not ac- tually result in their formation. With rare exception, the process of norm formation in general international law takes the form of a treaty or an in-ternational custom. 128
(1) With regard to resolutions of international organizations, it is said that ". . . resolutions of the General Assembly, adopted unanimously or by a two-thirds majority where that majority includes socialist and capitalist states . . . are binding on the members of the
U.N. and, therefore, have juridical force." 129 This, it is argued, does not conflict with the view that the agreement of states is the sole source of international law, as such a resolution constitutes, at the very least, an oral agree- ment. 130
(2) Soviet commentaries treat domestic law as an auxiliary source in the context of the general view that, to become normative as "general principles," domestic law must be agreed to by states:
National legislation (for example, laws regarding state monopolies of foreign trade, etc.) exerts a great influence on the formation of Rules of International Law. But national legislation acquires the status of a source of International Law only when it is recognized as a Rule of Interna- tional Law either through international treaty or through international custom. National legislation cannot therefore be considered as an inde-pendent source of International Law. 131
The agreement of states is considered the key to the juridi- cal effectiveness of international judicial decisions and legal treaties, i.e., "[albsent the agreement of states, deci-
125.
P.Lukin, supra note 101, at 100.
126.
G. Tunkin, supra note 86, at 154.
127.
Id. at 157.
128.
Id. at 157-158.
129. Shurshalov, review of N.M. Minasian, Sushchnost' Sovremen- novo Mezhdunarodnovo Prava [The Essence of Contemporay Inlerna- tional Lad, 5 SGIP 159 (1964).
130. Id.
131. International Law, supra note 123, at 12-13.
Pam 27-161-1
sions of international courts, opinions of public organiza- tions, and scientific writings cannot be sources of interna- tional law, although they may influence its application and interpretation." 132 This position is said to be confirmed by paragraph 1(d) of Article 38 of the Statute of the I.C.J.:
Article 38(d) of the Statute of the International Court of Justice in- cludes legal decisions as auxiliary means of determining Rules of Inter- national Law. A court, in particular the International Court, does not make law, but applies existing law. . . . mhe International Court's ap- plication and interpretation of a legal Rule are biding only upon the parties to the given dispute and only concern the particular case in ques- tion. 133
Nevertheless, it is conceded that decisions of the Court and treatises ". . . have a very great importance in stating the existence or lack at a given period of Rules of Interna- tional Law." 134
f.
Central to the general Soviet approach to the sources of international law are the positivist insistence upon the agreement of states as the sole means of formulating inter- national legal norms, and the concept of the law of peaceful coexistence as jus cogens. This approach permits resistance to "hostile" international legal principles on the basis of either the lack of Soviet, or, in the peaceful coex- istence context, socialist consent, or of conflict with the principles of peaceful coexistence. The "agreement theo- ry" is principally relied upon in defending against Western views that the "general principles" referred to in para-graph 1(c) of Article 38 of the Statute of the I.C.J. are, in addition to treaties and custom, a source of international law.
g.
The purpose of the preceding discussion has been to give the reader a brief analysis of the Soviet view of inter- national law. As each of the chapters which follow is dis-cussed, it will be essential to bear in miid the different Soviet approach toward many of the legal concepts con- tained therein. Although largely self-serving, this ap- proach is currently of primary importance, and, for reasons spoken to above, it has proven to be most attrac- tive to, although not completely accepted by, evolving states throughout the world. 1-15. The Evolving States' View Toward International Law. a. The basic attitude of evolving states has been summarized as follows:
Most African States tend to view present rules of international law pri-marily as a product of the practice of Western States and not necessarily reflecting the common interest of all states. They are unwilling to have their disputes settled by these standards but are prepared to have them settled by standards to which they have themselves agreed in new con- ventions. In this connection they regard the International Court of Justice as an institution so predominately fffled with European judges that they cannot expect to receive a fair deal. 135
This statement accurately reflects the prevailing attitude of most evolving states toward the great majority of currently
132.
Mezhdunarodnoe Pravo, supra note 85, at 82.
133.
International Law, supra note 123, at 13.
'34. Id.
"5. Z. Cervenka, The Organization of African Unity and its
Charter 91 (1968).
existing international norms. For many years, these states have urged that public international law, in its present form, is a product of Western European and North Arner- ican states and thus formulated on the concepts of co- lonialism, capitalism, and Christianity. Several reasons have been offered as the underlying basis for the above stated view. Some have suggested that such an attitude merely reflects the difference in the values associated with distinctive cultural traditions. However, this view has met with vigorous opposition, typified in this statement by Friedmann:
An inflation of cultural distinctiveness in the field of interna-
artitkid tional relations and law is more than just a harmless exercise in hy- pocrisy and narcissism .. . It does no real service to the development of international law. 136
b.
As evidence of the fact that cultural differences play a minimal role in the evolving states' approach toward in- ternational law, attention is called to the impact European concepts have had on the judicial systems of these coun- tries. It has been observed that, as most evolving states existed as part of a colonial Europe prior to the ascendancy of their own inherent cultures, there was little or no cultural resistance to European teachings and concepts. Accordingly, the cultures of the various evolving states currently reflect a significant number of European values. These countries still retain European educators, utilize European texts and employ European administrative techniques and procedures. Moreover, most of these states' municipal judicial systems are based almost entirely on either Franco-German (Civil Law) or Anglo-Ameri- can (Common Law) systems of jurisprudence. 137
c.
Rather than cultural differences, the reason most generally 138 cited as the substantive basis for the current attitude of the evolving states toward international law is the sigdicant degree of disparity which exists between the economic and social development of these states and that of the more developed and industrialized countries. There do exist, in fact, other factors which contribute to the at- titude of evolving states toward current international norms. There is an inherent suspicion of developed states and "their law" as a result of long colonial experiences. Additionally, the generally united front shown by developed states when a challenge is posed to a "tradi- tional concept of international law" tends to generate a uniformly adverse reaction on the part of the evolving countries. 139 However, it is the fact that these states are, more or less, at the same stage of economic development and consequent political weakness that brings most Latin . American, Asian, and African states together in collective . opposition to many of the current international legal
136.
Friedmann, supra note 68, at 324. .:
137.
T.Elias, Africa and The Development of International Law 23 (1968).
138. It would be imprudent to identify a single cad& for the current attitude of evolving states toward existing internationdiaw.
139. 0.Lissitzyn, International Law Today and Tomorrow 102-105 (1965).
norms. In the words of L.C.Green:
. . . the economically underdeveloped countries may indeed modify cer- tain parts of the law of nations drastically. Rinciples of state respon- sibility, compensation for interference with the property and economic interests of foreign investors may undergo profound transformation as a result of this horizontal widening and the inclusion of groups of nations in different phases of development. This, however, is not caused by any inherently uniaue characteristic of Asian or African civilition as much as it is a product of a phrase of development through which many, if not all, nations pass at some time or another. 140
d. As evidenced by the preceding discussion, a growing number of evolving states are of the belief that present rules and concepts of international law do not meet the needs of developing countries. Yet, these same states are quick to urge that their intent is not to reject international law as a whole:
The underdeveloped nations today by no means reject the entire body of international law. On the contrary, they take a most active part in the work of many international organizations, including that of the Interna- tional Law Commission. . . . The fact that they should strive to alter as many of the existing rules of international law that are deterirnental to their state of development as possible is natural and in no way different from the entire history of international law. 141
This basic conflict of interests between developed and
evolving states presents one of the most diff~cult problems
currently confronting the international community. Thus,
in order to more fully appreciate the above stated attitude
and interests of the latter countries, it is essential to focus
attention on their views toward specik aspects of tradi-
tional international law.
1-16. Inequitable Features of the Traditional System of International Law. a. As noted above, the evolving states demand that traditional international norms be revised in order to respond to the needs of the entire in-ternational community, i.e., to be responsive to the new factual situation in which they must be applied:
It is not the primary function of international law in the second half of the twentieth century to protect vested interests arising out of an inter- national distribution of political and economic power which have ir-revocably changed, but to adjust conflicting interests on a basis which contemporary opiion regards as sufficiently reasonable to be entitled to the organized support of a universal community. 142
Evolving states maintain that the currently existing ineq-uitable rules of international law should be revised in light of their present needs and thereby given a much more definable and objective legal character. If, they con- tend, this is not done, then they should be permitted to pick and choose among legal rules which were developed before they became fully independent states.
b. No attempt is made by evolving states to specifically identifl each and every rule of traditional international law
C. Jenks, The Common Law of Mankind 85 (1958). Friedmann, supra note 68, at 324. 140.
Green, ,I$w States, Regionalism and International Law, 5 CAN. Y. B. INT~L. 119 (1967).
141.
142.
which they are reluctant to accept. 143 However, these countries are generally critical of three characteristic features of this law. 144
(1)
The traditional system of international law has been concerned primarily with creating immunities and establishing limits upon territorial authority. These con- cerns were simply a consequence of the increasing depend- ence of the world's developed states upon international trade and investment. Accordingly, the traditional rules of international law were designed to regulate the respon- sibility of the territorial sovereign toward alien interests and were formulated solely by those states which had common interests to be protected around the world. These rules of law are no longer applicable to the current world situation, as emerging states have a completely different set of interests to be protected and advanced.
(2)
The traditional system of international law sanc- tioned the use of force as a legitimate means of achieving national policy goals. Thus, the powerful and developed states could legitimately resort to war in order to force their wiU and policies on weaker countries. Evolving states, unable to function as equal sovereigns in this en- vironment, thus demand a sped~c and complete prohibi- tion on all forms of unilateral use of force and the development of a more equitable legal procedure by which to settle international disputes. 145
(3)
The traditional system of international law was developed in the context of the 1885 Congress of Berlin, which sanctioned the division and colonialization of Africa, and the Congress of Vienna, which sanctioned the concept of "balance of power" and recognized the supremacy of the states which formed the Concert of Europe. 146 Accordingly, this system of law ignores the in- terests of the less developed, and therefore politically weak states of the world, and endorses the colonial system of domination. 147 This particular feature of the traditional international legal system has, quite naturally, aroused the hostility of former colonial states which have now
143. The task of identifying each and every rule of traditional inter- national law which evolving states are reluctant to accept would be ar-duous, if not impossible, for a number of reasons. These states prefer to reject rules as they arise in spedic cases of controversy, rather than creatinga list of rules they fmd unacceptable. Secondly, it would be most dficult to specifically identify the traditional legal norms considered to be currently in force and universally biding. Finally, some evolving states may choose to accept certain traditional norms which other emerging countries reject out of hand. Acceptance or rejection is largely dependent upon the national interests of the state concerned.
144. Falk, The InternationalLegal Order, 8 HOW.L. J. 145 (1962).
145. This demand has been met for the most part by the U.N. Charter and the S ~ C
I prohibition against the unauthorized use of force contained therein. Evolving states are, nevertheless, sensitive to the traditional right of intervention, i.e., intervening to either protect and evacuate one's nationals or in response to a request by a state engaged in a legitimate right of self-defense against external aggression.
146.
Castaneda, The Underdeveloped Nations and the Development of International Law, 15 INT'L ORG.38 (1961).
147.
B. Roling, International Law in an Expanded World 69-74 (1 960).
Pam 27-161-1
achieved an independent status.
c. As evidenced by these criticisms leveled at a large portion of current international norms, evolving states consider the continued existence and enforcement of the present international legal system to be a denial of the emergence of former colonial countries. As a result, developed states are said to still be able to impose their will upon weaker members of the world community. In the words of one spokesman, ". . . the rules now in force were established, not merely without reference to small states but against them, and were based almost entirely on the unequal relations between great powers and small states." 148 1-17. Legal Basis of the Evolving States' Approach. a. Thus far, attention has been focused primarily on the policy objections of the evolving states toward traditional international law. These states also offer a legal basis for their claimed right to pick and choose among the tradi- tional concepts of international law which most affect them. Initially, emerging countries contend that they had no opportunity to participate in the formulation of the cur- rently existing traditional international norms. Under the colonial rule of European states from the 18th to the mid- dle of the 20th century, they were unable either to oppose or to support traditional rules of international jurispru- dence. With this in mind, these states call attention to the fact that international law is generally regarded to be con- sensual in nature, with its authority dependent upon its recognition and acceptance by those international entities which it seeks to bind and control. 149 This position regarding the necessity for consent is said to be specifically support by the Permanent Court of International Justice in the S.S. Lotus Case. In this decision, the tribunal declared:
International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as ex- pressing principles of law and established in order to regulate the rela- tions between these two coexisting independent communities or with a view to the achievement of common aims. Restrictions upon the inde- pendence of states cannot therefore be presumed. 150
b.
In further support of this consent doctrine, George
M.
Abi Saab contends that the sociological school of thought which bases international obligations on the will of the community best accommodates the views and in- terests of the evolving states. As these states now form a large part of the international community, he urges that through their cooperative will they can make a substantial contribution to international law and that this is the moral basis upon which the current demands of these countries
148. Statement of Luis Padilla Nervo, Mexican member of the I.L.C., before the International Law Commission, I INT'L L. COMM.
Y.B. 155 (1956).
149. Saab, The Newly Independent Smtes and the Rules of Interna- tional Law, 8 HOW. L. J. 102 (1962). See also, Castaneda, supra note 146, at 38.
150. Case of the S. S. "Lotus," [I9271 P.C.I.J., ser A, No. 9.
are made. 151 Additional support for the consensual basis
of international law is found in the writings of several con-
temporary publicists. The views of these individuals are
typified by the following:
In doctrine, the retreat, since the latter part of the 19th century, from the law of nature ideas and the increasing acceptance, especially in this country, of theories basing the law upon consent of States, though in one way retrogressive and calculated to enhance the importance of State sovereignty, did, in another way, help to release the forces of change and development. 152
1-18. Sources and Evidences of International Law: the Evolving States' View. a. Sources.
(1)
Treaties. As does the Soviet Union, evolving states view international agreements as the most viable and acceptable source of international jurisprudence. Reasons given for such a view are the immediate avail- ability of the texts of treaties for examination and the fact that these agreements are binding only upon those states which expressly consent to them. 153 Upon gaining their independence, colonial states generally assert the right to pick and choose those treaties to which they will suc- ceed. 154 For the most part, these countries have chosen to succeed to the vast majority of treaty obligations incur- red by their former colonial masters. 155 However, many of these states urge that the voluntary nature of their con- sent to assume these obligations, an element essential to the validity of such assumptions, is subject to debate. These countries contend that, in order to gain their final independence, they were forced to grant exclusive eco-nomic privileges and to sign unequal treaties of military alliance with their former colonial rulers. This, they con- tend, is the underlying basis for their strong support for the doctrine of Rebus sic stantibus. 156
(2)
Custom. Evolving states generally view custom- ary international law as too vague and inadequate for the purposes of the expanded international community and focus attention on the fact that there exists considerable disagreement between publicists and courts as to the mah- ner in which customary norms are formulated and defined. Nevertheless, the contention is made that the
151. Saab, supra note 149, at 102-103.
'
152. R. Jennings, The Progress of International Law 91 (1960).
153. This view conflicts, of course, with the Western European and: North American states' approach toward the relationship between treaties and customary international law, Le., that treaties simply codify- ing customary norms are binding on even nonsignatory states. See iqfra, chap. 8.
1-54. Involved here is a specific aspect of international law known as "state sumssion." This generally refers to the transfer of tenitory from one state to another and may be viewed in terms of a change in sovereignty or in international status. See irlfra, chap. 7. State succes-+ sion with regard to international agreements is analyzed in detail in in-fra, chap. 8.
155. F. Okoye, International Law and The New qfrican States
46-48 (1972).
156. Saab, supra note 149, at 108. Rebus sic stanlr$us (changed cir- cumstances) is a principle of treaty law which may seM as a legal basis for terminating or withdrawing from an international agreement. For a more complete analysis of this concept, see irlfra, chap. 8.
1:C.J. has consistently required that a party against whom a customary rule of law is invoked must both recognize and accept this international concept. In support of this assertion, reference is made to I.C.J. decisions: …when a custom satisfying the defmition in Article 38 is established, it
constitutes a general rule of international law which, subject to one reservation, applies to every state. The reservation concerns the case of a state which, while the custom is in the process of formation unam- biguously and persistently registers its objection to the recognition of the practice as law. 157
Drawing support from such decisions, the evolving states are firm in their contention that they are not bound by customary rules of international law to which they had no opportunity to object. 158
(3) General principles of law. The evolving states are united in their opposition to "general principles of law" as a legitimate source of international law. These countries contend that in addition to being vague and undefinable, these principles of law cannot be reasonably distinguished from customary rules of law. A spokesman of this view urges:
While conventions can be easily distinguished from the two other sources of international law, the line of demarcation between custom and general principles of law recognized by civilized nations is often not very clear, since international custom or customary international law, understood in a broad sense, may include all that is unwritten in interna- tional law, i.e., both custom and general principles of law. 159
(4)
In addition to their charge of ambiguity leveled against general principles of law, the evolving states challenge this source of jurisprudence on several other grounds. First, they contend that the utilization of these "general principles" as a source of a universal system of law vests constructive legislative power in a small number of developed states. This argument is based on the fact that the "general principles" spoken to in Article 38(l) (c) of the Statute of the I.C.J. have generally been interpreted as those municipal law concepts common to the Anglo-American and continental European legal systems. 160 Secondly, the phrase "recognized by civilized nations" contained in Article 38(l) (c) is uniformly re- sented by evolving states because of the implication con- tained therein they are, in fact, "uncivilized." Apart from the si&~cant psychological harm done, these countries submit that this phrase discrirninatorily excludes many sovereign states from full and effective participation in developing legal norms that will accommodate the in- terests of the entire international community. 161
b.
Evidences. The emerging countries contend that, though it would appear to be evident that the courts and publicists spoken to in Article 38(l) (d) of the Statute of the I.C.J. have no authority to make law but simply to
IS7. "Anglo-Nomegian Fisheries Case," [I9511 I.C.J. 131.
See supra, 8 1-6 c. 158.
159.
B. Chehg, General Principles of Law as Applied by Interna-tional Courts and\.rTribunals 23 (1953).
160. Id. at 24.
161. T.Elias, supra note 137, at 52.
Pam 27-161-1
identify and assert legal rules which have already acquired this status, this point is often overlooked. As a result, these "evidences" of existing international law are often viewed and cited as "law-making" authorities. 162 With this in mind, attention must be focused on the attitude of the evolving states toward both the I.C.J. and publicists.
(1) The International Court of Justice. 163 Of the more than sixty Asian and African member states of the United Nations, less than twenty have accepted the com- pulsory jurisdiction of the I.C.J. under the optional clause of its statute. 164 This would seemingly indicate a some- what less than positive attitude toward the Court by these countries. Several reasons for this posture have been ar- ticulated. Some have viewed it in terms of inadequate, evolving state representation on the Court. 165 Some wri- ters urge that emerging countries are simply not psy- chologically prepared to waive any of their newly won sovereignty by an acceptance of the Court's jurisdic- tion. 166 Still other publicists attribute the evolving states' attitude toward the I.C.J. to the existing status of substan- tive international law, contending that these states reject the Court's jurisdiction and authority because of the fact that this tribunal would merely apply "rules of law'' which the former refuse to accept as either representative of their interests or binding. In the words of a leading spokesman, ". .. without the progressive development and the clear statement of the rules of international law, it is extremely difficult for the newly independent states to adhere to a system of compulsory jurisdiction." 167 In a reaffirmation of this view, Jorge Castaneda writes:
. . . [Wlillingness to arbitrate controversies signifies a willingness to sub- mit to the application of the intemational rules that govern the subject matter of the dispute at any given time. It implies acceptance of the ap- plicable substantive law. It would be valid to conclude the reason for their refusal lies in the fact that such countries are not willing to accept the application, in general, of a great many provisions of present interna- tional law, in the formulation of which their needs and interests were not taken into account, but rather on the contrary, were created by prac- tice and in response to the needs of their probable adversaries. 168
(2) Publicists. Evolving states generally tend to minimize the works of publicists as authoritative evi- dences of international law. Initially, these countries point
162. G. Damte, The Attitude of Emergent States Toward The Exist- ing System of International Law 34 (1974) [unpublished thesis pre- sented to The Judge Advocate General's School, U.S. Army].
163. As noted in preceding pages, judicial decisions other than those of the I.C.J. are to be considered as evidence of existing interna- tional law. Emerging countries, however, generally refer to only I.C.J. decisions when speaking in terms of "Evidences" of international norms.
'64. Anand, Role of New Asian-4frcan Countries in the Present In- ternational Legal Order, 56 AM. J. INTZ L. 393 (1962). This refers to the Court's "compulsory jurisdiction" spoken to in Article 38(2) of the STATUTE OF THE I.C.J. A discussion of this and other aspects of the
I.C.J. is found in irlfra,chap. 9.
165.
Id.
166.
Id. at 404.
167.
Saab, supra note 149, at 116.
168.
Castaneda, supra note 146, at 39.
Pam 27-161-1
out that the vast majority of publicists in the area of inter- national law are nationals of developed European or North American states. Accordingly, these individuals seldom articulate the interests or attitudes of emerging states. 169 This assertion is often explained in terms of the fact that, as these writers obviously owe their allegiance to particular states of the world community, they will conse- quentially be deprived of true scholarly independence and objectivity.
c. As evidenced by the preceding discussion, evolving countries generally tend to regard international agree- ments as the only viable source of international jurispru- dence and view evidences of this law as reflective solely of the developed states' interests. Moreover, even in terms of the authoritativeness of treaties, the former countries reserve the right to pick and choose among those treaty commitments entered into by their prior colonial rulers before they will agree to be bound. Although many regard this to be a "totally negative" approach demonstrated by emerging states toward currently existing principles of in- ternational law, these countries do have future goals to achieve in the international legal sector. 1-19. Future Objectives of the Evolving States. a. To-day's emerging countries maintain that their aim is not to reject or to revise existing international legal norms simply for the sake of doing so. These states insist that current in- ternational law, far from being structured and rule pro- ductive, is anarchical in nature and fails to provide an ade- quate forum for equal and effective cooperation and com- petition among all states. This desire for a strengthened, but balanced, system of international jurisprudence professed by evolving countries has been summarized:
[I]t would be a mistake to discount the often expressed concern of the less-developed nations for the strengthening and development of inter- national law. Weak in material power, these nations must seek protec- tion and assistance in international law and organization. .. .[Tlhe less developed countries will insist on having their voices heard in the for- mulation and development of the law. 170
b. Having expressed a desire to participate in the development of a workable, responsible, and egalitarian system of international jurisprudence, evolving states have begun to seek the means and methods by which this goal might be achieved. In recent years, this search has centered on international organizations, particularly the United Nations General Assembly and its subsidiaries. 171
(1) The General Assembly. The evolving countries are generally unanimous in their belief that the United Nations General Assembly provides the most appropriate forum for the expression of their views and desires. Ac- cordingly, these countries urge that this organ be imbued with more responsibility and that the great weight of power be shifted from the Security Council to the General Assembly. This former body has long been charged with frustrating the development of the international com-
169.
T.Elias, supra note 137,at 43.
170.
0. Lissirzyn, supra note 139,at 102-105.
17'. Friedmann, supra note 29,at 87.
munity and negating the will of the majority by means of the veto power exercised by its five permanent mem- bers. 172 The increasing number of General Assembly resolutions are cited as clear evidence of the fact that the Assembly is, in reality, the legitimate and authoritative spokesman of the world community. 173 Moreover, a strong argument is made that, for want of better sub- stitutes, these resolutions should be considered the most authoritative pronouncements of international legal norms. In the words of one spokesman:
'
The United Nations is a very appropriate body to look to for indica- tions of developments in international law, for international custom is to be deduced from the practice of states. .. . The existence of the United Nations, especially in light of its accelerated trend towards universality of membership since 1955,thus provides a very clear, very concentrated focal point of state practice. 174
In support of this contention, emerging countries also call attention to the fact that past resolutions of the General Assembly have been accepted as having the force of law. A listing of such resolutions generally includes the 1950 Uniting for Peace Resolution, the 1945 GA Resolution on the Affiation of the Nuernberg Tribunal, the 1945 GA Resolution concerning the Crime of Genocide, and the 1948 Universal Declaration of Human Rights. 175 There exists little doubt that the evolving states will continue to argue the "law making" power of the General Assembly.
(2) The International Law Commission. 176 Since the increase in the number of its member states from fif-teen to twenty-one in 1961, the I.L.C., established under Article 13 of the United Nations Charter, has been viewed by the emerging countries as a most effective forum for the formulation of modem rules of interna- tional law. Seven Afro-Asian states now have representa- tives on the Commission, and the argument is in- creasingly made that the work of the I.L.C. is much more reflective of universally accepted legal norms than are decisions of the I.C.J. or the works of publicists:
It must be remembered that in providing an opportunity for change and growth of the law, the Commission is in fact providing just those procedures of legislation of which the international community is so much in need. . .. Further, there is a great value in a procedure by which the rival interests of states must be expressed in a scientific framework and made to speak the language of law. 177
1-20. Summary. Convinced that the major portion of
172.
Saab, supra note 149,at 105.See also, Elias, supra note 137, at 58.
173.
See generally, Friedmann, supra note 29,at 86-99.
174.
R. Jennings, supra note 152,at 3 1-32.
175.
C.Waldock, supra note 34,at 49-53.
176. The I.L.C. is now comprised of twenty-five members "of recognized competence" in international law, elected by the General Assembly for a 5-year term. The Commission is tasked with studying the methods by which the General Assembly should encourage the progressive development of international law and its eventual codifica- tion. The members do not serve as representatives of their governments but as experts on international law. The Commission holds an annual 8-to 11-week session in Geneva. For a concise explanation of the I.L.C. and its work, See C. Rhyne, International Law 140-141 (1971).
R. Jennings, supra note 152,at 31-32.
currently existing international legal norms reflects only the interests of the developed Western European and North American states which formulated these rules, evolving states contend that they are justified in refuting most of these concepts. Unable to participate in the for- mulation of these rules and fm in their belief that their voluntary consent to these principles is essential to their valid application, these countries regard treaties as the only legitimate source of international jurisprudence. Yet, even with regard to this source of legal norms, the emerg- ing countries reserve the right to pick and choose the treaty commitments undertaken by their former colonial rulers to which they must adhere. Buoyed by their vastly increased representation and resultant voting strength in the United Nations and its subsidiary commissions and agencies, evolving states are increasingly insistent that the
Pam 27-161-1
U&ted Nations General Assembly become the authorita- .rive source of modem legal norms. The emerging coun- tries will continue to become, on an ever increasing basis, a viable force in the formulation of public international
law.
1-21. Conclusion. It has been the purpose of this chapter to acquaint the reader with the overall structure of inter- national jurisprudence and the sources and evidences of its norms. A working knowledge of this subject matter, as well as some of the more contemporary views toward its content, serves asthe nexus between all of the legal con- cepts and principles contained in the following chapters. Before proceeding to any discussion of the various areasof international law that follow, however, it is essential that the relationship between international and state (munici- pal) law be examined in some detail.
Pam 27-161-1
CHAPTER 2
THE RELATIONSHIP BETWEEN
INTERNATIONAL AND STATE LAW
Section I. ON THE NATIONAL LEVEL
271. Dualism versus Monism. a. The relationship of in- which, and the degree to which, states have incorporated ternational law to state (municipal) law, and particularly international norms into their domestic legal systems. In the fact that state courts often apply international law, has that this varies from state to state, the relationship be- long troubled adherents of analytical jurisprudence. tween international and state laws, at the state level, will Moreover, the notion that only states, rather than in- also vary. 2 Conversely, international tribunals, dividuals, are "subjects of international law" has been unrestricted by state laws, find it much easier to achieve a distasteful to jurists who have sought the vindication and generally uniform application and interpretation of inter- protection of human rights in international law. Ac- national law. Accordingly, it is essential that the military cordingly, there have developed two principal "schools" attorney be fully aware of the legal relationship which ex- or approaches seeking to explain, in terms of traditional ists between his state's system of jurisprudence and public legal analysis, the relationship between international and international law. With this in mind, attention will be state law: the dualist (or pluralist) and the monist. There focused on the currently existing relationship between are several versions of both approaches. U.S. law and international norms.
(1)
In simplest terms, the dualists regard interna- 2-2. The U.S. Approach. a. The U.S.Constitution tional law and state law as entirely separate legal systems sets forth three sources of the supreme law of the land: the which operate on different levels. They contend that inter- Constitution itself, legislation enacted by Congress in ac- national law can be applied by state courts only when it has cordance with the Constitution, and all treaties constitu- been "transformed" or "incorporated" into state law and tionally entered into by the United States. 3 As a result, it emphasize the international legal personality of states would appear to be self-evident that all treaties, the pri- rather than individuals or other entities. mary source of international law, of which the U.S. is a
(2)
The monists, on the other hand, regard interna- party are an integral part of the American system of tional and state law as parts of a single legal system and jurisprudence. Specifically, the U. S. Constitution, Article
' find it easier to maintain that individuals have interna- VI, Clause 2, provides: tional legal personality. Ina prevalent version of monism, This constitution and the laws of the United States which shall be state law is seen as ultimately deriving its validity from in- made in pursuance thereof, and all treaties made, or which shall be ternational law, which stan& "higher" in a hierarchy of made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, legal norms. 1 any Thing in the Constitution or Lawsof any State to the Contrary not-
b. Any attempt to explain the relationship between in- ~thstanding.ternational and state law on the basis of either the dualistic or monist theory becomes somewhat theoretical and b. Given the validity of the preceding statements
generally proves to be highly unsatisfactory to the military regarding treaties, it is essential to examine the re~dts of a attorney. First, there is no complete agreement as to the possible contradiction between American domestic legis- definitive content of either theory. Secondly, the relation- lation and international agreements entered into by the ship of these two jurisprudential formsis of immediate in- U.S. A conflict of this nature may, hfact, arise in either of terest to the practicing attorney only when a conflict be- two ways. First, the agreement may be in conflict with a tween a rule of international and state law occurs. ~nthis rule of domestic law already in effect at the time the inter- situation, a decision must be made as to which particular national agreement becomes binding. Secondly, a rule of rule to apply. Viewed in realistic terns, the nature of this d~mestic law may come into effect after the agreement type of decision will generally depend upon whether the has become binding and be in coact with it. Where the
court the decision is a state tribunal or an inter- conflict is between an international agreement and an- teri0r legislation, Courts have ~~lly
national body, l-his result flows from the fact that state not found it difficult courts must render decisions, even on questions of inter-to resolve a conflict in favor of the ihternationd agree- national law, in accordance with the laws of the countries ment; but in doing SO, courts usually do not take the posi- in which they sit. ~ ~ , tion that the agreement is intrinsically superior to existing
h~
state court decisions on matters of
international jurisprudence will reflect the manner in legislation. Instead, they treat it as equal in rank with the
1. See generally J. Starke, an Introduction to International Law 2. In national legal systems, constitutional provisions may provide 68-90 (6th ed. 1967); I. Brownlie, Principles of Public International Law a legal basis for the application by the courts of rules of customary inter- 29-31, 50-51 (1966); H. Kelsen, Principles of International Law national law. See N. Leech, C.Oliver and J. Sweeney, The International 551-588 (2d ed. 1966); P. Jessup, Transnational Law (1956); and LegalSystem 12 (1973). For purposes of discussion in this publication, Ginsburg, The Validity of Treaties in the Municipal Law of the attention will be focused on the U.S. legal system. "Socialist" States, 59 AM. J. INT'L L. 523 (1965). 3. U.S. CONST. art. VI, cl. 2.
Pam 27-161-1
legislation and apply the rule of construction that as be- tween anterior and posterior laws in conflict, the one later in time prevails.
c.
In the United States, the equality in rank of treaties and acts of Congress is provided by Article VI, Clause 2, of the Constitution. Since neither is superior to the other, the one later in time is held to prevail. Hence a self-ex- ecuting treaty, i.e., one whose provisions are directly ap- plicable as rules of domestic law without the need of im- plementation by an act of Congress, supersedes the provi- sions of prior and inconsistent Federal legislation. Should the treaty not be self-executing, its provisions, once enacted into rules of domestic law by act of Congress, also supersede (because they are later in time) the provisions of prior and inconsistent Federal legislation.
d.
National courts are presented with a more difficult issue when, absent an applicable constitutional provision, they must resolve a conflict between an international agreement and domestic legislation that becomes effective at a later date. The rule of construction that the law later in time prevails operates to deprive of internaleffect the con- flicting provisions of the prior agreement.
The U.S. Supreme Court, in the 1870 Cherokee Tobacco case, 4 had an opportunity to comment upon the effect of just such a conflict. The question before the court con- cerned the effect to be given to, respectively, an 1868 Act of Congress 5 and the tenth article of an 1866 treaty be- tween the U.S. and the Cherokee Indian nation. If terms of the 1868 act were adjudged by the court to be applicable to the Cherokee territory in question, the earlier treaty would be contravened. In noting the obvious inconsisten-
cy, the court declared:
…it is insisted that the section [of the act of Congress] cannot apply to
The Cherokee nation because it is in conflict with the treaty. Undoub- tedly, one or the other must yield. The repugnancy is clear and they can-not stand together.
The [second paragraph] of the [sixth article] of the Constitution of the United States declares that "this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties which shall be made under the authority of the United States, shall be the supreme law of the land."
It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Con- stitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress (Foster v. Neilson, 2 Pet. 314), and an act of Congress may supersede a prior treaty (Taylor v. Morton, 2 Curt. 454; The Clinton Bridge, 1 Woolw. 155). In the cases referred to, these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. They have no higher sanctity; and no greater in- violability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under considera-
4.
The Cherokee Tobacco, 78 U.S. 616 (1870).
5.
15 Stat. 167 (1868).
tion the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief. 6
The "last-in-he" doctrine enunciated by the court in Cherokee Tobacco has been consistently adhered to in subsequent decisions, as shown by The Over the Topdeci-sion of 1925:
THEOVERTHETOP
SCHROEDER v. BISSELL
United States District Court, D.Conn., 1925.
5 F.2d 838.
Three Libels by the United States, one against the schooner Over the
Top, and two against its cargo, with application by A. L. Schroeder,
owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
Libels dismissed.
THOMAS, DISTRICT JUDGE.
****
From the evidence I fmd the following facts established: On August 27, 1924, the schooner Over the Top, carrying a cargoof whisky and operating under the British flag and under British registry, cleared for Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks prior to October 19, 1924.
****
On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the direction of the Captain, unloaded these cases of whisky and transferred the same to a sea sled employed in the government service. . . . The transaction occurred at a point approx- imately 19 miles distant from the shore, or 115 degrees true from the southeast light of Block Island, * * *
On the following day, Over the Top was seized by officers of the United States coast guard, and the captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New Lon- don and turned over to the collector of customs and are now in his custody. .. .
The government bases its claim of forfeiture upon the alleged viola- tion of sections 447,448,450,453,585,586,593, and 594 of the Tariff Act of 1922 * as well as upon the provisions of the American-British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as follows:
Sec. 447. Unlading-Place.-It shall be unlawful to make entry of
any vessel or to unlade the cargo or any part thereof of any vessel
elsewhere than at a port of entry ***.
Sec. 586. Unlawful Unlading-Exception.-The master of any
vessel from a foreign port or place who allows any merchandise (in-
cluding sea stores) to be unladen from such vessel at any time after its
arrival within four leagues of the coast of the United States and before
such vessel has come to the proper place for the discharge of such
merchandise, and before he has received a permit to unlade, shall be
liable to a penalty equal to twice the value of the merchandise but not
less than $1,000, and such vessel and the merchandise shall be sub-
ject to seizure and forfeiture: ***
But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may be well to dispose of one of the contentions made by counsel in behalf of the cargo and schooner.
The proposition is advanced that, regardless of our municipal legis- lation, the acts complained of could not constitute offenses against the United States when committed by foreign nationals, on foreign bot- toms, on the high seas at a point beyond the territorial jurisdiction of the country. Well-known principles of international practice are invoked in support of this contention accompanied with the citation of authority.
6. 78 U.S. 616, 620-21.
Pam 27-161-1
Upon careful consideration, however, I am led to conclude that a mis-
conception exists here as to the status, in a federal forum, of so-called
international law when that law encounters a municipal enactment.
If we assume for the present that the national legislation has, by its
terms, made the acts complained of a crime against the United States
even when committed on the high seas by foreign nationals upon a ship
of foreign registry, then there is no discretion vested in the federal
court,.once it obtains jurisdiction, to decline enforcement. International
.practici.is law only in so far as we adopt it, and lie all common or
statute law it bends to the will of the Congress. It is not the function of
courts to annul legislation; it is their duty to interpret and by their
judicial decrees to enforce it–and even when an act of Congress is
declared invalid, it is only because the basic law is being enforced in that
declaration. There is one ground only upon which a federal court may
refuse to enforce an act of Congress and that is when the act is held to be
unconstitutional. The act may contravene recognized principles of inter-
national comity, but that affords no more basis for judicial disregard of it
than it does for executive disregard of it. These libels, therefore, cannot
be attacked upon the ground that the territorial jurisdiction of the
United States cannot be extended beyond the three-mile sea zone under
international law.
If, however, the court has no option to refuse the enforcement of leg-
islation in contravention of principles of international law, it does not
follow that in construing the terms and provisions of a statute it may not
assume that such principles were on the national conscience and that the
congressional act did not deliberately intend to infringe them. In other
words, unless it unmistakably appears that a congressional act was in-
tended to be in disregard of a principle of international comity, the
presumption is that it was intended to be in conformity with it. It is with
such a principle in mind that we now proceed to an examination of the
legislation upon which the government relies.
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top was unloaded on the high seas, and the government contends that the statute was thereby violated. To me it seems that the statute was in- tended to prevent entry or unlading at a port or place in the country other than a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost all criminal statutes, or statutes prohibiting defmed con- duct, are phrased in general language without mention of territorial limitation. But they are all to be read in the light of the principle that ju- risdiction is not extraterritorial and that the municipal legislation is not attempting to regulate or to punish conduct performed outside of the national domain. For exainple, the statutes of Connecticut do not forbid larceny in Connecticut-they forbid larceny. The statutes of the United States do not forbid counterfeiting in the United States-they forbid counterfeiting. That the Congress may, in disregard of the law of na- tions, prohibit acts by foreign nationals not committed within our do- main, has already been conceded; but unless such intent clearly appears from the language of the statute such intent is not to be presumed.
****
The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts therein denounced be accomplished within the territory of the United States. No attempt is there discernible to extend the legislative jurisdiction of the United States beyond its boundaries.
****
Here we have a distinct extension of our sea jurisdiction to a point 12 miles from the &–an assertion of authority which may perhaps clash with international practice, but which, whether challenged or not, is un-mistakable, and which, therefore, it is the business of ow courts to en- force. Had the master and super cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that we would have had no dficulty in sustaining the libels.
**I*
My conclusion, then, is that as no statute embracing the subject-mat.
ter of sections 447,448,450, 453, 585, 586, 593, and 594 of the Tariff
Act of 1922 has extended our territorial jurisdiction to a point on the
high seas distant 19 miles from our coast, conduct which would have
been in violation of these sections if performed lthin our territory can-
not constitute an offense against the United States when performed at
such a distance by foreign nationals on ships of foreign registry. If, for
the purpose of our treasury, we canextend our sea jurisdiction to a point
four leagues from the coast, I see no reason why we cannot extend it
four leagues more. I merely observe that we have not done so yet.
1 now come to the provisions of the American-British Treaty, which
was obviously contracted for the purpose of preventing hovering ships
from supplying intoxicating liquor to carriers running between the ships
and the shore. * * '*
****
Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the device of a mere treaty is a question which fortunately we need not discuss. It is suficient to conclude that the American-British Treaty did not in fact enact new criminal legis- lation.
****
The considerations as above expressed therefore impel the conclusion that there is no legal basis for these libels, and it follows that they must be and the same are dismissed. **'
In Tag v. Rogers 7, the appellant argued that international practice, formalized in a rule of law, forbids the seizure or confiscation of the property of enemy nationals during time of war, at least where that property had been ac- quired by enemy nationals before the war and in reliance upon international agreements. In rejecting this argument the court said in part:
Once a policy has been declared in a treaty or statute, it is the duty of the federal courts to accept as law the latest expression of policy made by the constitutionally authorized policy-making authority. If Congress adopts a policy that conflicts with the Constitution of the United States, Congress is then acting beyond its authority and the courts must declare the resulting statute to be null and void. When, however, a constitu- tional agency adopts a policy contrary to a trend in international law or to a treaty or prior statute, the courts must accept the latest act of that agency. 8
e. The preceding cases clearly demonstrate the fact that treaties are indeed an integral part of U.S. law. Just as clearly evidenced, however, is the fact that Congress may denounce previous treaties if it see fit to do so and pass superseding and contravening legislation to this effect. 9 Though a Congressional decision to contravene prior treaty commitments does have the effect of law within the
7.
Tag v. Rogers, 267 F.2d 664, cert. denied, 362 U.S. 904 (1959).
8.
Id. at 668.
9.
In a 1972 case, Diggs v. Schultz, 470 F.2d 461, cert. denied, 411
U.S. 931, 93 S. Ct. 1897, a group of black Congressmen attempted, inter alia, to challenge the validity of a 1971 law sponsored by Senator Byrd of Virginia which had set the stage for importing chrome from Rhodesia in derogation of the United Nations embargo previously adopted with the affiative vote of the United States. See Executive Order Nos. 11322, 11419, 22 USCA 5 287c. See also Strategic and Critical Materials Stock Piling Act, 55 1-10, 50 U.S.C.A. 55 98-98h-1. The D.C.Court of Ap- peals held that ". . . under our constitutional scheme, Congress can de-nounce treaties if it sees fit to do so, and there is nothing the other branches can do about it." 470 F.2d at 466.
Pam 27-161-1
United States, it cannot absolve the U.S. of its previously
incurred international obligations and responsibilities. 10
The same is true of any state in the international com-
munity.
j As noted, the Constitution specifically mentions
treaties as a primary source of "the supreme law of the
land." This document is silent, however, as to the role
that customary international law is to play in the American
legal system. The U.S. Supreme Court was not long in fill-
ing this apparent void. In the case of The Paquete
Habana, 11 previously discussed in chapter 1, 12 the court
referred to customary international law in this manner:
International law is part of our law, and must be ascertained and ad- ministered by the courts ofjustice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their deter- mination. For this purpose, where there is no treaty and no controlling executive or legislative act orjudicial decision, resort must be had to the customs and usages of civilized nations. . . . [emphasis supplied] 13
g. It is evident, therefore, that customary international law, like treaties, is a vital part of U.S. law. Notwithstand- ing this fact, however, as in the case of international agreements, courts often prefer to yield to other branches of the government in certain matters of international legal concern.
UNITED STATES v. BERRIGAN
United States District Court, D.Md., 1968.
283 F.Supp. 336.
NORTHROP, DISTRICT JUDGE. The defendants before this court are charged in three counts that they did willfully
1.
injure property of the United States;
2.
mutilate records filed in a public office of the United States; and
3.
hinder the administration of the Military Selective Service Act.
Defendants wish to proffer an opening statement to the jury as to what they would present for their defense. Specifically, they contend that, by virtue of what they have read, heard, and seen, the war in Viet- nam is immoral and illegal; and that the United States, in carrying on the war in Vietnam, is violating certain precepts of international law, constitutional law, and judgments which were handed down at Nurnberg.
To serve as a foundation and a basis for their beliefs, defendants wish to produce in court, among other evidence, "the outstanding experts" on international law who would testify that the acts of the United States government in Vietnam are illegal. Their conduct, they say, was prompted by their belief that the United States is acting illegally and was intended to prevent criminal acts from being committed. Because this belief prompted their acts, they argue that the necessary mens rea is lacking.
Initially, it must be pointed out that in law once the commission of a crime is established-the doing of a prohibited act with the necessary in- tent-proof of a good motive will not save the accused from conviction.
****
Counsel also contends that the defendants' acts are symbolic expres- sions of speech which are protected by the Fist Amendment of the United States Constitution and thus he is entitled to offer this defense
10.
The inability of a state to absolve itself of international obliga- tions and responsibilities is addressed at chapters 7 & 8, irlfra.Means by which to legitimately terminate or suspend treaties do exist under inter- national law. This subject will be examined in detail chapter 8.
11.
The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290 (1900).
12. Seep. 1-6, supra.
13. 175 U.S. 677, 700.
before the jury.
****
This court finds that under the circumstances of this case the conduct which is charged in the indictment is not afforded the protections of the Fist Amendment and a conviction under these criminal statutes would not deny to these defendants any of the guarantees of that Amendment.
Finally, counsel contends that these defendants should be allowed to present to the jury what is popularly known as the "Nurnberg Defense." The trial of the Nazi war criminals at Nurnberg was premised on the generally accepted view that there are, as a part of international law, certain crimes against peace and humaiiity which are punishable. The Numberg Trial, 6 F.R.D. 69 (1946). It is urged here that the belief of these defendants that the United States was waging a war of aggres- sion, and thus committing a crime against peace, justified the acts charged.
It is not clear what standing these defendants have to raise the legality of this country's involvement in Vietnam when they have not been called to serve in the armed forces, are not directly affected by our government's actions in that country, and are not even directly affected by the Selective Service apparatus. As pointed out by Judge Charles E. Wyzanski in an article in the February 1968 issue of the Atlantic Monthly:
As the Nuremberg verdicts show, merely to fight in an aggressive war is no crime. What is a crime is personally to fight by foul means. [Emphasis supplied.]
The important element in this defense, assuming its applicability in an American court, is the individual responsibility which is necessary before it can be raised. These defendants do not have standing to raise the validity of governmental actions, either under international law or constitutional law, on the grounds that the rights of parties not before this court are violated. Courts "must deal with the case in hand, and not with imaginary ones." Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 218, 33 S.Ct. 40, 41, 57 L.E.. 193 (1912).
I refer again to the opinions expressed by Judge Wyzanski because they are timely articulations of ancient principles found in scores of cases. In our disturbed times, modem expressions seem to have more persuasion than the authority of antiquity.
For men of conscience there remains a less risky but not a less wor- thy moral choice. Each of us may bide his time until he personally is faced with an order requiring him as an individual to do a wrongful act. Such patience, fortitude, and resolution find illustration in the career of Sir Thomas More. He did not rush in to protest the Act of Henry VIII's Parliament requiring Enghshmen to take an oath of supremacy attesting to the King's instead of the Pope's headship of the English Church. Only when attempt was made to force hito subscribe to the oath did he resist. * * *
This waiting until an issue is squarely presented to an individual and cannot further be avoided will not be a course appealing to those who have a buming desire to intervene affmatively to save his na- tion's honor and the lives of its citizens and citizens of other lands. It seems at fist blush a not very heroic attitude. But heroism sometimes lies in withholding action until it is compelled, and using the interval to discern competing interests, to ascertain their values, and to seek to strike a balance that marshals the claims not only of the accountant and of others in his society, but of men of distant lands and times.
But irrespective of the lack of standing of these defendants to raise the issue of the legality of the government's actions as they relate to the Vietnam situation, the proffered defense suffers from a more funda- mental bar. It is clear that there are certain questions of substantive law, that is, "political questions," which are not cognizable in our courts because of the nature of our governmental system which is based upon a separation of functions among different branches of the government. The doctrine
"is one of 'political question,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional
Pam 27-161-1
authority. Baker v. Cam, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962)."
Certain clearly defmed areas have traditionally and necessarily been
left to other departments of the government, free from interference by
the judiciary. One such area is foreign relations. Baker v. Cam, supra, at
211, 82 S.Ct. at 691.
It is true that not every case which touches the foreign-relations power of the country is necessarily a "political question." Courts have usually decided the constitutional questions concerning international agreements, Reid v. Covert, 354 U.S. 1,77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), but the corresponding question of international law has been treated as a "political question."
The activities of these defendants were directed towards the Selective Service System, which system counsel has admitted is not criminal or il- legal in and of itself. What is called into question here in the utilization of the armed forces by the executive and legislative branches. It cannot be disputed that the recognition of belligerency abroad, and the measures necessary to meet a crisis to preserve the peace and safety of this country, is uniquely an executive and a legislative responsibility. Whether the actions by the executive and the legislative branches in utilizing our armed forces are in accord with international law is a ques- tion which necessarily must be left to the elected representatives of the people and not to the judiciary. This is so even if the government's ac- tions are contrary to valid treaties to which the government is a signato- ry. And the Supreme Court has held that Congress may constitutionally override treaties by later enactment of an inconsistent statute, even though the subsequent statute is in violation of international law.
The categorization of this defense as a "political question" is not an abdication of responsibility by the judiciary. Rather, it is a recognition that the reswnsibilitv is assumed bv that level of aovernment which
–
under the Constitution and international law is authorized to commit the nation.
The "Numberg Defense" is premised on a finding that the govern- ment is acting in violation of international law in waging an aggressive war, and, as such, cannot be raised here because the question of viola- tions of international law by the government is uniquely a "political" question.
Counsel will govern themselves accordingly, and the court's instruc- tions to the jury will reflect this decision if any transgression makes it necessary.
h. The purpose of the preceding discussion has been to demonstrate the manner in which and degree to which in-ternational law, in the form of treaties and customary norms, has been integrated into the American legal system. As noted, international jurisprudence is con- sidered a part of U.S. law. 14 The role it plays, however, is largely dependent on whether it is considered by courts to be in contlict with existing U.S. law or practice. In speak- ing to this point, Restatement, Second, Foreign Relations Law of the United States urges accommodation:
5 3. Effect of Violation of International Law . . .
(3)
If a domestic law of the United States may be interpreted either in a manner consistent with international law or in a manner that is in contlict with international law, a court in the United States will in- terpret it in a manner that is consistent with international law.
Comment:
J. Application of international law in courts in the UnitedSiates. Inter-national law is applied by courts in the United States without the necessity (i) of pleading and proving it; or (i) of showing an affirmative acceptance by legislative or other national authority of the rule of inter- national law applied. However, if there is domestic legislation contrary to international law that is also pertinent, courts in the United States will normally apply the legislation. But courts in the United States interpret general or ambiguous words in statutes in a manner consistent with in- ternational law as understood by them.
i. This examination of the relationship between inter- national and state law has, until this point, limited itself to the national level, i.e., to an interpretation of international norms by state courts in light of domestic legislation. At- tention must now be focused on the relationship between these two forms of jurisprudence on the international plane.
Section 11. ON THE INTERNATIONAL LEVEL
2-3. Introduction. a. A former legal adviser to the Department of State was discussing with the late Mr. Justice Frankfiuter the position of national courts in the international legal system and said:
Mr. Justice, with all due deference, I would say that from the stand- point of international law, your court is but another municipal court and a decision of your court does not have any more effect internationally than a decision by a bureaucrat. 15
6. The principle that a state cannot plead its own law as an excuse for noncompliance with international law has been long established and generally recognized. In 1887, for example, U.S. Secretary of State Bayard declared:
[It is only necessary to say, that ifa Government wuld set up its own municipal laws as the fmal test of its international rights and obligations, then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals It has been wnstantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfhent of international duties. Such regulations may either exceed or fall short of the require- ments of international law, and in either case that law furnishes the test of the nation's liability and not its own municipal rules. . . . 16
c. Article 13 of the Declaration of Rights and Duties of
States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke p6vT sions in its constitution or its laws as an excuse for failure to perform this duty.'' There is an abundance of decisions of international courts and tribunals recognizing this prin- ciple. 17 The principle is also recognized by Soviet jurists: Proceeding from one and the same supreme authority, both the rules
14. The United States Supreme Court, like the courts of other federations, often refers to rules of international law in settling disputes between the states of the Union. See, e.g., New Jersey v. Delaware, 291
U.S. 361,54S.Ct. 40,78 L.Ed.847 (1934); Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 27 L.Ed.55 (1893); Handly's Lessee v. Anthony, 18 U.S. (5 Wheat.) 374, 5 L.Ed.113 (1820).
1s. Leech, supra note 2, at 2.
U.S. For. Rel. 751, 753 (1887). 16.
17.
Seecase Conceming Certain German Interests in Polish Upper Silesia, [I9261 P.C.I.J. 19, 22, 42; Chorzow Factory Case, [I9281
P.C.I.J. 33-34; Free Zones Case, [I9321 P.C.I.J. 167; Treatment of Polish Nationals in Danzig, (19321 P.C.I.J. 24; and Case Conceming Rights of Nationals of the United States of America in Morocco, (19521
I.C.J. 176.
Pam 27-161-1
of International Law and those of domestic origin should have the same
biding force for all organs and nationals of the countries concerned. By
concluding an international agreement a governing authority under-
takes, if necessary, to bring its domestic legislation into line with the in-
ternational commitments it has assumed. On the other hand, by pro-
mulgating a law clearly contrary to International Law, the government
concerned commits a violation of International Law, for which the State
concerned is responsible under International Law. . . .
Therefore, International Law and National Law must not in their very
nature either contradict 'each other or have primacy one over the
other. 18
d.
In many cases, international tribunals have awarded damages because a state's courts have disregarded or misapplied international law. For example, after the American Civil War, an arbitral tribunal awarded damages to Great Britain for the detention or condemna- tion in the United States of six British vessels as prizes during the Civil War. It held that, in these cases, the con- demnation or detention was contrary to international law, although it had been upheld by the Supreme Court as law- ful. 19 It should be further noted that, in such cases, the international tribunal normally has no power to reverse or set aside the judgment of the municipal court, which may continue to have legal effect (e.g., with respect to passage of title to property). The international tribunal, however, will award damages to the aggrieved state.
e.
Although international law is normally controlling on the international level, questions of municipal law may arise in disputes between states, and international tri- bunals may find it necessary to interpret such law. This may happen, for example, in disputes arising out of alleged breaches of state contracts. In the Serbian Loans and Brazilian Loans cases, 20 the Permanent Court of In-ternational Justice had to determine the meaning and effect of French legislation governing payments of debts in gold or at gold value. In construing this legislation, the Court attached controlling weight to the manner in which it had been applied by the French courts, saying in the lat- ter case:
Though bound to apply municipal law when circumstances so require, the Court, which is a tribunal of international law, and which, in this capacity, is deemed itself to know what this law is, is not obliged also to know the municipal law of the various countries. All that can be said in this respect is that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied. And thls it must do, either by means of evidence furnished it by the Parties or by means of any researches which the Court may think fit to under- take or to cause to be undertaken.
18. Academy of Sciences of The U.S.S.R., Institute of State and Law, International Law 15 (Ogden trans]. 1961).
19.
Alabama Claims (United States v. Great Britain), 3 J. Moore, International Arbitralions 3209-10 (1898); 4 J. Moore, at 3902, 3911, 3928, 3935, 3950 (1898).
20.
Serbian Loans and Brazilian Loans Cases, [I9291 P.C.I.J. 5, 40-47, 93, 120-125.
Once the Court has arrived at the conclusion that it is necessary to ap-
ply the municipal law of a particular country,'there seems no doubt that
it must seek to apply it as it would be applied in that country. It would
not be applying the municipal law of a country if it were to apply it in a
manner different,from that in which that law would be applied in the
country in which it is in force.
It follows that the Court must pay the utmost regard to the decisions
of the municipal courts of a country, for it is with the aid of their
jurisprudence that it will be enabled to decide what are the rules which,
in actual fact, are applied in the country the law of which is recognized as
applicable in a given case. If the Court were obliged to disregard the
decisions of municipal courts, the result would be that it might in certain
circumstances apply rules other than those actually applied; this would
seem to be contrary to the whole theory on which the application of mu-
nicipal law is based.
Of course, the Court will endeavour to make a just appreciation of the jurisprudence of municipal courts. If this is uncertain or divided, it will rest with the Court to select the interpretation which it considers most in conformity with the law. But to compel the Court to disregard that jurisprudence would not be in conformity with its function when apply- ing municipal law. As the Court has already observed in the judgment in the case of the Serbian loans, it would be a most delicate matter to do so, in a,caseconcerning public policy-+ conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself–and in a case where no relevant provisions directly relate to the question at issue. Such are the reasons according to which the Court considers that it must construe Article VI of the Special Agreement to mean that, while the Court is authorized to depart from the jurisprudence of the municipal courts, it remains en- tirely free to decide that there is no ground for attributing to the munici- pal law a meaning other than that attributed to it by that jurisprudence.
Exceptionally, however, an international tribunal may reject an in- terpretation of a state's law by a court of that state if it is obviously fraudulent or erroneous. 21
2-4. Summary. a. The place of international law within a particular municipal legal system, though both giving rise to intricate domestic legal problems and adding to or sub- tracting from the effectiveness of international law, does not affect the international rights and obligations of the state. These rights and responsibilities are founded in in-ternational law. Domestic constitutions and other state laws are, alone, incapable of adding to or subtracting from the existing norms of international jurisprudence. This is both logical and just. International law is not foreign law. Far more being a legal system imposed upon states against their will, it consists of rules and regulations designed both to protect and to promote the interests of all members of the world community.
b. It is upon the question of membership in the interna- tional community that attention must now be focused. If, in fact, states are the only true subjects of public interna- tional law, it is essential that the military attorney fully un-derstand the characteristic~ of these principal participants in the international legal system.
21. Id. at 121, 22. See generally A. Freeman, The International Responsibility of States for Denial of Justice 342-354 (1938); C. Jenks, The Prospects of International Adjudication 547-603 (1 964).
Pam 27-161-1
CHAPTER 3
SUBJECTS OF INTERNATIONAL LAW
3-1. Introduction. a. As mentioned in chapter 1, inter- national law has been thought to apply only to states. The notion has been that only states may claim rights under in- ternational law and, consequently, only states are bur- dened with the duties imposed by this jurisprudence. A large body of law has developed dealing with the charac-
teristics of states for purposes of international law, the
recognition of states and their government by other states, and the legal consequences of such recognition or non- recognition. This chapter will survey this body of law.
b. In recent years, the historical view that only states have rights and duties under international law has given way to a less restrictive view regarding the subjects of in-
Section I. THE BASIC NATURE OF 3-2. Necessary Qualifications for Statehood. a. Public international law has been, and remains, primarily a law applicable to the conduct of sovereign states in their in- terstate relationships. Although there are many definitions of a state, one widely accepted definition stipulates that a state is an entity possessing the following qualifications:
As a practical matter, every treaty entered into be- (1)
a permanent population; (2) a defined territory; (3) a government; and (4) capacity to enter into relations with other states. 2
b.
Certain nation states, such as the United States, are recognized by all as "states" having full rights and duties under international law. Likewise, it is clear that a state within a federal system, such as the State of New York, is not a "person" for purposes of international law, i.e., it is not a "state" in the international law sense inasmuch as it does not carry on international relations. 3 The same is true of municipalities, (e.g., Boston) and territories (e.g., Puerto Rico), neither of which are "states." 3-3. Sovereignty: The Key to Statehood. a. The basic test of statehood and the thrust of the traditional require- ments mentioned above is sovereignty, which may be defined as legal (as distinguished from actual) self-suffi- ciency. A sovereign state does not rely for its juridical ex- istence on anything foreign to itself. 4 Subject to its treaties and other international legal obligations, it is independent of other states both within its territory and in its interna- tional. affairs. 5 International organizations, on the other hand, rely for their existence upon the states that create them. For example, the United Nations and the European Economic Community came into being by the act of their member-states. Their existence can be terminated simply by the member-states withdrawing from them. By con- trast, the existence of a state cannot be terminated by the action of other states. This lack of reliance upon the will of other states is the core meaning of the phrase "States are sovereign."
b.
ternational law. For example, international organizations, such as the United Nations, have been held to have inter- national personality. Similarly, it is gradually becoming ac- cepted that individuals and corporations may also have rights and duties under international law in certain cir- cumstances.
c. Although only states were formerly regarded as pro-
per subjects of international law, for many years groups recognized as belligerents have been treated as having certain rights and duties under international law. On the
other hand, insurgents (groups not yet accorded belliger- ent rights with respect to neutrals) have a less sharply defined status as "persons" subject to international law. 1
STATES AND GOVERNMENTS
tween sovereign states restricts, to some extent, the exer- cise of the power incidental to sovereignty. Likewise, the norms of international law tend to restrict the exercise of the individual state's sovereign power. Such restrictions on a state's freedom of action do not, however, affect its status as a sovereign state. As long as a state is not under the legal authority of another state, it remains a sovereign state, regardless of how extensive or burdensome its in- ternational legal obligations may be. 6
c. Although the concept of sovereignty implies a cer- tain amount of independence, it is apparent from what already has been said that the two terms are not syn- onymous. A state can be sovereign without being com- pletely independent in either a legal or a practical sense. For analytical purposes, states may be classified as either independent or dependent. There are, or have been, many types of dependent states, each largely governed by the facts of the particular situation. They may be called vassal states, protected states, protectorates, suzerainties, or by other names. These terms do not have precise juristic meaning, and do not necessarily imply that the dependent state lacks international legal personality. Rather, each de-
1.
This topic is dealt with extensively in International Law, Volume II, DA Pam 27-161-2.
2.
Art. 1, Convention on Rights and Duties of States, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19. For other defmitions, see Restate-ment (Second) Foreign Relations Law of The United States § 54 (1965) [hereinafter cited as RESTATEMENa; J. Brierly, The Law of Nations 137 (6th ed. 1963) [hereinafter cited as Brier&]; I. Hyde, International Law 22-23 (2d rev. ed. 1945); 1. Oppenheim, International Law 118 (8th ed. Lauterpacht 1955) [hereinafter cited as Oppenheim.]
3.
Article 2 of the Convention on Rights and Duties of States, supra note 2, expressly provides that ''Vlhe federal state shd constitute a sole person in the eyes of international law."
4.
See Korowicz, Introduction to International Law 274 (1959).
5.
Id. See Chief Justice Marshall's statements in The Antelope, 23
U.S. (10 Wheat.) 66 (1825).
6. See Advisory Opinion on Customs Regime between Germany and Austria, [I9311 P.C.I.J., ser. NB, No. 41, at 37,4546, 57-58, 77.
pendent state has individual legal characteristics resulting from its origins, the treaties it has entered, and the stage of its development. 7
d. A well-known British case, Dyff Development Co. Ltd. v. Government of Kelantan, 8 illustrates this point. The House of Lords affirmed an order staying proceedings against the Government of Kelantan (a princely Malay State under British protection) on the ground that Kelan- tan was a sovereign state over which the court had no ju- risdiction. This result was reached even though, by agree- ment between the two states, the British government had assumed the conduct of Kelantan's foreign affairs, and even though the agreement severely limited the control of the Sultan of Kelantan over his country's internal affairs. Kelantan had contracted away to a great deal of its independ- ence, but it had not forfeited its status as a sovereign power. Similarly, the states that have joined the European Economic Community have obviously contracted away, for so long as they remain members of the Community, a substantial degree of their independence. Yet they remain sovereign states in their dealings with one another and with other states. 3-4. Legal Consequences of Statehood. Once the neces- sary qualifications for statehood are present (i.e., there ex- ist the elements of territory, people, government, and engagement in foreign relations), the question arises as to what legal consequences normally follow from this. The potential ramifications are myriad; it is feasible here to refer only to a few of the more basic legal consequences of statehood.
First, all states are legally equal, i.e., all states have equality before the law. 9 This principle is expressly recog- nized in Article 2(1) of the Charter of the United Nations: "[Tlhe Organization is based on the priniciple of the sovereign equality of all its members." Yet, although ev- ery state is juristically equal in the sense that no state has greater sovereignty or greater right to equal protection of law than any other, it is not empirically true that all states have equal rights and duties. The rights and duties of a state that has a seacoast are necessarily different than
7. See Advisory Opinion on Nationality Decrees in Tunis and Morocco, [I9231 P.C.I.J., ser. B, No. 4, at 27. Examples of protectorates and of other kinds of openly-avowed dependent states are few at pres- ent. Andorra is under the joint protectorate of France and Spain, San Marino under the protectorate of Italy, and Monaco under that of France. As Brierly points out, the "growth of national sentiment in all parts of the world makes any extension of the status unlikely." Brierly, supra note 2, at 136. Of course, a relation of dependency sometimes ex- ists between two states hi fact, but for political reasons is not avowed. For example, the U.S. at one time exercised extensive control over some of the nominally independent states of Central America. Id. at
134. The Soviet Union today exercises far-reaching control over some of the nominally independent states of Eastern Ewope. The American Indian nations or tribes are generally considered to be "domestic dependent nations." W.Bishop, International Law Cases and Materials 315 (3d ed. 1971) [hereinafter cited as Bishop].
8.
[I9241 A.C. 797.
9.
See Convention on Rights and Duties of States, supra note 2, art. 4.
those of a state that is landlocked. The rights of a state that
is a member of an international organization, such as the
United Nations, are different in some ways from those of
nonmembers. Every state to some extent either cir-
cumscribes or increases its rights and duties by the treaty
commitments into which it has entered. 10 Thus, it has
been contended that the principle of equality simply
means application of the law in conformity with the law,
i.e., that in applying the law only those differences shall be
regarded which are recognized in the law itself. 11
Second, only states may be parties in cases before the
International Court of Justice. 12 This rule, however, does
not bar the United Nations from seeking advisory opin-
ions of the Court. 13
Third, every state, whatever its other duties may be, has the duty to respect the rights enjoyed by every other state in accordance with international law. 14 The right of each state to exercise its sovereign power does not author- ize it to commit unlawful acts against another state. 15
Fourth, sovereignty entails the power to exclude states from exercising their sovereign functions within the ter- ritory of another state. This is a universally accepted core principle of international law. Thus, for example, in 1957 the U.S. Department of State instructed the American
10.
See Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States (memorandum submitted by the Secretary- General) U.N. Doc. AICN 4/2, at 66 (1948).
11.
See Kelsen, The Drqft Declaration on Rights and Duties of States, 44 Am. J. Int'l L. 259, 269 (1950). The considerations men- tioned in the text above detract from the plausibility of the Draft Recommendations on Equality of States, adopted on April 22, 1966, by the 1966 Special Committee on Principles of International Law Con- cerning Friendly Relations and Cooperation Among States, U.N. Doc. A/6230, at 176, 183 (1966), Article 1 of which states, inter alia, that all states "have equal rights and duties." This document nevertheless rep- resents a useful attempt to flesh out the meaning of "sovereign equality." Articles 1 and 2 thereof read as follows:
1.
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political, or other nature.
2.
In particular, sovereign equality includes the following ele- ments:
(a)
States are juridically equal.
(b)
Each State enjoys the rights inherent in full sovereignty.
(c)
Each State has the duty to respect the personality of other States.
(4The territorial integrity and political independence of the State are inviolable.
(e)
Each State has the right freely to choose and develop its political, social, economic and cultural systems.
(t)
Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.
12. Statute of The International Court of Justice, Art. 38-1.
13. See, e.g., Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, [I9491 I.C.J. 174.
14. See Charter of the Organization of American States, Art. 10, 2
U.S.T. 2394, 119 U.N.T.S. 3, as amended21 U.S.T. 607 (1967).
1s. This principle is expressed in article 14 of the Charter of the Organization of American States, supra note 14.
Pam 27-161-1
Embassy in Spain that the conduct of public hearings by a
Corigressional committee is an exercise of a sovereign
function by a branch of the United States Government.
Accordingly, if such hearings were conducted in another
country (Spain) without its consent, this would constitute
an infringement of that country's sovereignty. 16
Fifth, every state is entitled to represent its nationals in
claims proceedings against another state for injury caused
by the latter's violation of international law. 17 Although
the actual injury is to the person or property of nationals of
the state asserting the claim, international law treats the
injury as having been suffered by that state. Therefore,
only the-state of which the aggrieved persons are nationals
has standing to bring claims against another state for viola-
tions of international law. 18 Except as otherwise provided
in the municipal law of the offending state, the aggrieved
persons do not have standing to prosecute such claims
against that state. Their normal recourse, municipal law
remedies having been exhausted, is to request that the
proper authorities of their national state intercede on their
behalf. 19
3-5. Statehood and U.N. Membership. Article 4 of the
Charter of the United Nations opens membership in the
U.N. to "all . . . peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." It is arguable whether or not mem- bers of the U.N. are required to admit as additional mem- bers only those entities meeting the standard minimurn qualifications for statehood as defined by international law. 20 In any event, Article 4 makes membership availa- ble to "states" that also meet other criteria ("peace-lov- ing," etc.) besides statehood. Thus, denial of U.N. mem- bership to a political entity is not necessarily (and usually would not be) a denial of statehood. Major political en- tities that are not members of the U.N. are Switzerland, the two Koreas, and the two Germanies. 3-6. State Distinguished from Government. a. A government is (1) a small group of people (2) who are in effective control of the state. 21 Many defmitions of a state include a government as an essential part of the defini- tion. 22 A distinction, however, between the two is useful for several reasons. First, it assists in understanding the historical instances of a state continuing to exist for short periods without a government: for example, China, dur- ing periods of interim anarchy in the 19th century, Austria from 1938 to 1945,23 and Germany from 1945 to 1949. 24 Certainly, a state cannot exist very long without a government, as its independence would soon be in jeopar- dy. Nevertheless, the fact that it can exist shows that the two are distinct concepts. Second, the recognition of governments often entails the selection of one faction over another by the recognizing government. These fac- tions are always groups of people vying for control of the already-existing state. It has been the practice of govern- knents to treat these groups as distinct from the state itself,
which remains internationally unchanged by the change of governments. Third, a government may bind a state in- ternationally. The state thereafter remains bound by many of the acts of its government regardless of the changes in administration. 25 Likewise, the rights of a state remain unaffected by changes in government. 26
b. The essential ingredient of a government in interna- tional law is that it must be in control. The manner in
16. 1 M. Whiteman, Digest of International Law 256 [hereinafter cited as Whiteman]. See generally I. Hyde, supra note 2, at 641-44.
17.
The subject of international claims is treated more fully in chapter 7, iqfra.
18.
See Mavrommatis Palestine Concessions (Jurisdiction), [I9241 P.C.I.J., ser. A, No. 2. See also note 177, idra.
19.
See Bishop, supra note 7, at 742; chapter 7, idra.
20.
Byelorussia and the Ukraine have separate memberships in the United Nations, even though they are but parts of the Soviet Union and do not conduct international relations. This strongly suggests that ad- mission into the United Nations depends largely upon political, rather than legal, considerations.
In 1948, during debate over the admission of Israel to the United Na- tions, Professor Jessup, then United States representative to the Security Council, observed that "the term 'State,' as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term 'State' as it is used and defined in classic text- books of international law." See W. Friedmann, 0.Lissikyn. & R. Pugh, International Law Cases and Materials 154 (1969) [hereinafter cited as Friedmann].The basic issue regarding Israel's statehood con- cerned her lack of a precisely defined territory. Besides arguing that classical international law does not necessarily govern the meaning of the term "State" for article 4 purposes, Professor Jessup also contended that "the concept of territory does not necessarily include precise delimitation of the boundaries of that territory." Id, at 155. Israel was admitted to United Nations membership, but because of the political nature of this action it cannot be presumed that either of Professor Jessup's arguments necessarily was accepted. For purposes of the ad- mission of former colonial tenitories to the United Nations, the tradi- tional requirement of a stable and effective government in a territory claiming statehood has been deemphasized. It has been argued that this traditional requirement runs counter to developments in international law regarding a legal right of self-determination, and that it is often at variance with the political reality (anti-colonial pressures and unaccepta- ble economic costs) that has caused Western European states in several cases to withdraw from their former colonies before any adequate in- digenous system of government has been established. See Higgins, The Development of International Law Through The Political Organs of The United Nations 22 (1963), discussing the admission of Ruanda and Burundi to United Nations membership.
21. Control is the quality stressed in judicial decisions as well as in practice. See Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372, 138 N.E. 24 (1923), and Salimoff v. Standard Oil Co. of New York, 262 N.Y. 220, 186 N.E. 679 (1933).
See note 2, supra. 22.
23.
Marek, Identi@ and Continui~ of Stabs in Public International Law ch. 7 (1954).
24.
See Yon GIahn The Occupation of Enemy Territory ch. 21 (1957) and citations therein. See also The Sfahrs of Germany, I World Polity 177 (1957).
25.
Oppenheim, supra note 2, at 925, 949; Tinoco Claims Arbitra- tion (Great Britain-Costa Rica) 1 U.N.R.I.A.A. 369; Hopkins Claims (United States-Mexico) 21 Am. J. Int'l L. 160 (1927).
26.
See The Sapphire, 78 U.S. (1 1 Wall.) 164 (1871), where a suit by France in a U.S. court was unaKected by a revolutionary change in France.
which the government gains control is not of primary im- portance. However, it may be of the utmost importance in
Section 11. RECOGNITION OF
3-7. Nature of Recognition. a. Recognition is essentially a political act, taken by the government of a state in the conduct of foreign affairs. It may be extended to another state, to the government of another state, or to a belligerency. Generally, the need for recognition arises only when there has been some extraordinary political change, such as the creation of a new state by separation from an existing state 27 or the formation by coup d'etat (or some other departure from orderly transition) of a new government of an existing state. As a practical mat- ter, most recognition problems involve recognition of new governments of already-recognized states. 28
b.
Recognition of belligerency rarely occurs. It arises only in cases of armed conflict-rebellion or civil war- within a particular state. This type of recognition means the recognition by one state that a revolt or insurrection within another state has attained such a magnitude as to constitute a state of war, entitling the revolutionaries (or insurgents) to the benefits, and imposing upon them the obligations, of the laws of war. 29 The state granting such recognition demands for itself all the legal consequences that flow from the existence of a war; it claims the rights of a neutral, and accords the rights of belligerents to the war- ring factions. 30 If a state is unwilling to accord the rights of a belligerent to an insurgent group within another state, it may nevertheless accord them a more limited status, i.e., a recognition of insurgency. 31 Although the status of belligerency gives rise to definite rights and duties, the status of insurgency does not. At least, however, recogni- tion of insurgency indicates a desire to treat the insurgents as something more than outlaws. 32
c.
In the case of a new state or government, recognition is evidenced by an act acknowledging the existence of such state or government and indicating a readiness on the part of the recognizing state to enter into formal (but not necessarily diplomatic) relations with it. 33 Recognition is fundamentally a matter of intention, and may be express or implied. The mode by which it is accomplished is of no special signif~cance. 34 An act that would normally have the effect of recognition may be deprived of that effect if the government performing it indicates that it is not in-
27. A recent example of extraordinary political change resulting in recognition of a new state is the case of Bengladesh.
28.
Leech, Oliver, & Sweeney, The International Legal System 768 (1973) Fereinafter cited as Leech].
29.
1 G. Hackwork, Digest of International Law 161 (1940) bereinafter cited as Hackworth].
30.
Brierb, supra note 2, at 142.
31.
See Friedmann, supra note 20, at 163.
32.
Id. DA Pam 27-161-2 deals comprehensively with the recogni- tion of belligerency and insurgency. Accordingly, these topics are given only passing mention here.
33. Hackworth, supra note 29, at 161.
34. Id. at 166-67.
international politics and may be a decisive factor in the decision by other states to grant or withhold recognition.
STATES AND GOVERNMENTS
tended to coktitute recognition. 35 Recognition of a new state usually carries with it recognition of the government of that state, as states can speak and act only through their governments. 36
3-8. International Legal Aspects of Recognition. a. Theories of Recognition. The two principal theories pro- posed to explain the legal effect of recognition are the con- stitutive and the declaratory.
(1)
The Constitutive Theory. 37 According to this theory, recognition has a "constitutive" effect, i.e., it is through recognition (and only through recognition) that a state becomes an international person and a subject of in- ternational law. This view has two si@icant weaknesses. First, if a state is recognized by some states but not by others, then under the constitutive theory that state is both an international person and not an international per- son at the same time. Second, and perhaps more irnpor- tant, it follows from the constitutive theory that an unrecognized state has neither rights nor duties under in- ternational law. Although nonrecognition may make the enforcement of rights and duties more difficult than it would otherwise be, international practice does not sup- port the view that a state has no legal existence before recognition. 38
(2)
The Declaratory Theory. 39 This theory main- tains that both states and governments are facts. Once the objective criteria mentioned earlier are met, international legal personality exists. Recognition merely declares the existence of the state or government, which existence has preceded the recognition in time. A state may exist with- out being recognized, and if it does exist in fact, then it is an entity having rights and duties under international law,
whether or not it has been formally recognized by other states. 40 Under this view, the granting of recognition merely enables the recognized state to exercise its interna- tional legal personality with the state that extends recogni-
35. For example, the conclusion of a bilateral treaty ordinarily im- plies recognition, but that implication may be negatived by appropriate language or conduct. Thus, during 1919 and 1920 the British, French, Danish, and Belgian governments entered into bilateral agreements with the Soviet Union (which had not yet been recognized by those con- tracting governments) for the repatriation of prisoners of war, without those agreements beiig considered as constituting recognition. See 2 Whiteman, supra note 16, at 52. See also Restatement, supra note 2, at 5
104. Although recognition by implication can occur, a disclaimer is sufli- cient to negate it.
36. See Hackworth, supra note 29, at 167.
37. For a comprehensive treatment of the constitutive theory, see
H. Lauterpacht, Recognition in International Law (1 948).
38.
Brierly, supra note 2, at 138-39.
39.
For a detailed analysis of the declaratory theory, see I. Chen, The International Law of Recognition (195 1).
40.
Brierly, supra note 2, at 138-39.
Pam 27-161-1
tion. 41 An unrecognized state or government, however, does not depend upon recognition from anyone for its in- ternational legal personality. Rather, its juridical existence is complete when the objective criteria of statehood or government are satisfied.
b. Criteria for Recognition. (1) The Objective Criteria. If the four elements of a state (i.e., people, territory, inde- pendence, and governmental structure) or the two ele- ments of a government (i.e., (a) a group which is (b) in effective control) exist, formal recognition may follow by other states. If formal recognition is not extended it would be difficult in practice for the withholding government to ignore entirely the factual existence of the other state or government. This it seldom attempts to do. The withhold- ing government merely attempts to keep its international deals with the other to a minimum. The result is that the withholding of recognition from a factually existing state or government is often very similar to the breaking off of diplomatic relations between two governments that have previously extended recognition to one another. 42
(A)
If a foreign government extends recognition when all the objective criteria of a state or government are not present, particularly those of independence and con- trol, then it may be viewed as interfering in the internal affairs of another state. 43 The government of the latter state may consider the recognition a hostile act. For exam- ple, if Group A attempts to unseat Group B, which is and has been in control of State X, any recognition of Group A before it has actually gained control may work to the disadvantage of Group B. 44 Similarly, if a portion of State X attempted to separate itself from State X, any recogni- tion of the separatists before they had achieved their inde- pendence would be detrimental to State X. 45
(B)
Some governments have, from time to time, adopted the practice of following only the objective cri- teria. However, it is dacult to prevent additional subjec- tive criteria from entering the considerations of govern- ments. criteria, other than the objective facts of people, territory, independence, and a group in actual control,
41. see convention on Rights and Duties of States, supra note 2, art. 6. Article 3 of this Convention,which appears expressly to adopt the declaratory theory of recognition, states in part: "[Tlhe political exist- ence of the state is independent of recognition by other states."
42. Jaffe, Judicial Aspects of Foreign Relations 148 (1 933).
43.
Brierly, supra note 2, at 138. Such recognition is termed "pre- cipitate recognition." Oppenheim, supra note 2, at 128. An example was the recognition of the Provisional Government of the Algerian Republic by seventeen states as of 1959 while France was still actively seeking to retain Algeria. Algerian Of&, White Paper on the Application of the Geneva Convention of 1949 lo the French Algerian Coqflict 9 (1960).
44.
The newly recognized group may request aid from the recogniz- ing state. Such took place shortly before the Soviet-Finnish War when the U.S.S.R. was alleged to have recognized a faction which did not con- trol the Finnish State.
45.
Usual examples given are the recognition of the American States by France in 1778, and the recognition of Panama by the U.S.A. in 1903. Oppenheim, supra note 2, at 129. More recently, Egypt took offense at the recognition of Syria by Turkey and Jordan in September 1961, and France at the recognition of Algeria by the U.S.S.R. in 1962.
may come into play as a result of the fact that international law, according to most authorities, does not require for- mal recognition once the objective criteria have been met. 46 The more common of these subjective criteria will now be considered.
The Subjective Criteria. It should be made clear at the outset that the subjective criteria are not a substitute for the objective criteria discussed above. Subjective cri- teria are considered only after the objective criteria have been met. Moreover, the various subjective considera- tions usually come into play in conjunction with the recog- nition of governments rather than with the recognition of states. They may be grouped under three major headings. (2)
(A)
Willingness to abide by international law. The peaceful intentions of the new government and its respect for the prior international obligations of the state are generally considered by governments before recognition is extended. This is particularly true if the government con- sidering recognition suspects that the new government may not intend to honor bilateral treaties existing between the two states. For example, treaties of alliance or of friend-. ship and cooperation ,nonaggression pacts, trade agree- ments, and treaties concerning the protection of foreign assets are among the many that a new government, particularly a revolutionary one, may be reluctant to fulfi.
@) Lawfulness of the control assumed by the new group. This lawfulness may be tested in three ways.
(i)
By the municipal laws of the state. If a new group comes into power by revolution the constitution of the state has usually been broken in the process. If a foreign government has a policy of discouraging revolu- tions and of promoting free democratic elections in neigh- boring states it may withhold recognition until the revolu- tionary group has agreed to elections and other constitu- tional processes.
(ii)
By international law. If an aggressor invades a foreign state and annexes it contrary to international law, other states may wish to discourage such unlawfulness by withholding recognition of the fruits of the conquest. 47
(ii)
By means of the will of the nation substan- tially declared. This is the Jeffersonian principle that a government derives its power to govern from the consent
46.
J. Moore, Digest of Inlernational Law 72 (1906). Professor Lauterpacht's contrary view that states are under a legal duty to recog- nize new states that meet the objective criteria is criticized by Kunz, Cri-tical Remarks on Louterpacht's Recognition in International Law, 44 Am. J. Int'l L. 713-719 (1950).
47.
This was the primary purpose of the Stirnson Doctrine. On Jan. 7, 1932, the United States sent the following message to both China and Japan: "The American Govemment . . . does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which both China and Japan, as well as the United States, are parties. . . ." 26 Am. J. Int7 L. 342 (1932); 119321 Docu-ments on Foreign Affairs 262; see also Oppenheim, supra note 2, at 143. Moreover, there may well be an affumative duty under Article l(1) of the U.N. Charter to withhold recognition of territorial gains resulting from acts of aggression.
of the people. This principle has a deeper meaning than mere compliance by the group in power with the munici- pal laws of the state. These laws may not even provide for a means whereby the will of the nation may be substan- tially declared.
(C)
Gain or loss to the state extending recogni- tion. This third subjective criterion places the extention of or the withholding of formal recognition upon the basis of national self-interest. 48 3-9. Practice of the United States. a. Since its inception, the United States generally has followed the declaratory theory of recognition. But in recognizing or not recogniz- ing new states and governments, our government has not been guided solely by the objective criteria mentioned above. Rather, the United States has tended to regard recognition as an act of policy signifying something more than the recognition of a situation of fact and law. Subjec- tive criteria, the content of which has varied from time to time, have been used. Jefferson, for example, in instruct- ing the United States Minister to France regarding recog- nition of the new government produced by the French Revolution, expressed the view that the essential test for recognition of a new government is whether or not that government has been formed by "the will of the nation, substantially declared. . . ." 49 Later, Chief Justice Taft referred to "illegitimacy or irregularity of origin" of the Tinoco government of Costa Rica as a basis for nonrecog- nition by the United States of that government. 50 Another subjective criterion sometimes used is that of willingness of the new government to fulfill the interna- tional commitments of the state it represents. 51 Still another is whether or not the new government has been created by formal constitutional process. 52
b.
Although the United States has, at times, granted recognition upon a straightforward application of the ob-
40. As mentioned at the beginning of this discussion of recogni- tion, for one govemment to extend recognition to another government or to a state is essentially a political act. De Visscher emphasizes this aspect of recognition. He sees a tendency for recognition to be used as a weapon of power politics, especially in periods of high tensions in inter- national relations. See De Visscher, Theory and Realiw in Public Interna- tional Law 239 (rev. ed. Corbett trans]. 1968).
49.
Moore, supra note 46, at 120.
50.
Tinoco Claims (Great Britainxosta Rica), 1 U.N.R.I.A.A. 369; see also 18 Am. J. Int'l L. 147 (1934).
51.
For example, the United States refused to recognize the Soviet Govemment in 1919 because, among other things, it was not willing to abide by the international obligations of the Russian State. See I. Hyde, supra note 2, at 169-70.
52.
Use of this criterion was initiated in 1913 by President Wilson. See I. Hyde, supra note 2, at 166. In 1915 its application resulted in the denial of dejure recognition to the Carranza Government in Mexico. Id. at 168. Abandonment of this criterion was announced by Secretary of State Stirnson in 1931. See Bishop, supra note 7, at 342. Meanwhile Mexico, reacting against the United States practice of withholding recog- nition from revolutionary govenunents in Latin America, in 1930 pro- nounced the so-called "Estrada Doctrine," which declares there is no more reason for new recognition following a revolution or a coup d'etat than for new recognition following a constitutional change of govem- ment. See Jessup, The Estrada Doctrine, 25 Am. J. Int'l L. 719 (1930).
jective criteria, subjective criteria continue to play an im- portant role in particular cases. 53 That fact is demon-strated by the nonrecognition of the Communist govern- ment of China, a policy clearly based more upon political and national security considerations than upon legal ones. 54 Since recognition is a political act and a tool in the conduct of foreign relations, it is hardly surprising that ex- tra-legal factors may be decisive. Recognition is a discre- tionary matter; international law does not require any government to extend recognition to any other state or government. 55 Ultimately, then, all states, including the United States, formulate their policies on recognition in accordance with their perceptions of national self-in- terest. 56
c. Although the United States has asserted that non- recognition denies to an aspiring state or government cer- tain international rights, 57 it also has insisted upon com- pliance with international law by regimes it has refused to
53. The period 1823-1855 probably saw the high-water mark of use of solely objective criteria by the United States in extending recognition. The Monroe Doctrine includes the statement: "Our policy in regard to Europe [is] . .. to consider the government 'de facto' as the legitimate government for us. . .." 4 Moore, supra note 46, at 401. Secretary of State Van Buren elaborated on that theme in 1830 when explaining why the United States was one of only three states that had recognized the Dom Miguel Government in Portugal. 1 Moore, supra note 46, at 137. And Secretary of State Buchanan reiterated the policy of adherence to objective criteria in 1848: "It is sufficient for us to know that a govem- ment exists, capable of maintaining itself, and then its recognition on our part inevitably follows." Id. at 124. But consistent application of that policy lasted no longer than 1855, when recognition was denied the Walker-Rivas Government in Nicaragua because it "was as yet unsanc- tioned by the will or acquiescence of the people." Id. at 140.
More recently, during the 1960's coup after coup in sub-Sahara Africa and southeast Asia resulted in routine recognition of the new regimes, apparently by reason of application of the objective criteria. Yet in 1962, President Kennedy delayed for nearly a month in recognizing a coup in Peru, on the grounds that the new government had not come to power by democratic means. See Leech, supra note 28, at 813.
54. In 1958, the Department of State sent a memorandum to its missions abroad outlining U.S. policy with regard to the nonrecognition of Communist China. This document states in part:
Basically the United States policy of not extending diplomatic recognition to the Communist regime in China proceeds from the conviction that such recognition would produce no tangible benefits to the United States or to the free world as a whole and would be of material assistance to Chinese Communist attempts to extend Communist dominion throughout Asia. It is not an "inflex-ible" policy which cannot be altered to meet changed conditions. If the situation in the Far East were so to change in its basic elements as to call for a radically different evaluation of the threat Chinese Communist policies pose to United States and free-world security interests, the United States would of course readjust its present policies. .. .
55.
See note 46, supra. See also Restatement, supra note 2, at 5 99(1): "[A] state is not required by international law to recognize an en- tity as a state or a regime as the government of a state."
56.
A state's perception of its self-interest may lead it to adopt a policy of granting recognition to any state or government that meets the objective criteria. An apparent example is the United Kingdom. See Leech, supra note 28, at 810-12.
57. See Friedmann, supra note 20, at 175-77.
recognize. 58 The United States also has taken the position that the adherence of nonrecognized states to a multilateral treaty is without legal significance. 59
d. United States policy in recent years has tended to de- emphasize the importance of recognition. Indeed, it has been suggested that the United States may have virtually abandoned the act of recognition altogether. 60 That perhaps is an overstatement, yet recent developments in this country's relations with the Peoples' Republic of China at least demonstrate that extensive dealings can take place even in the absence of recognition. Moreover, in the Panamanian and Peruvian coups of 1968, the United States took the position that the occurrence of a coup did not necessarily mean that a new act of recogni- tion would be essential to ongoing relations. Instead, the government adjusted relations according to the stage of the coup, the stability of the regime, and the national in- terests of the United States. The ambassadors to these countries were not withdrawn, and "full" relations were resumed without any formal acts, such as presentations of credentials. 61 3-10. De Facto and De Jure Recognition. a. When used in connection with problems of recognition, the terms de
facto and de jure may have several different meanings. The context in which they are used must be noted carefully to determine precisely what is meant. They are used principally in the following four meanings: 62
(1)
The Prospects for Permanency of the State or Government Recognized. De facto recognition is some- times extended to a government whose control is still tenuous, or to a state whose independence is not yet en- tirely secure. De jure recognition would follow this type of de facto recognition once the precariousness of the situa- tion implied in the de facto recognition had passed. 63
(2)
The Legitimacy of the State or Government. De facto recognition is sometimes extended to states or governments where a question of legitimacy exists under either international or municipal law. 64 De jure recogni-
tion is withheld from the usurper until it has legally vali- dated its position, usually by conducting free elections. An example of the use of such recognition occurred in the
58.' For examples of this practice, see id. at 176-77.
59. See Id. at 177-78, giving examples but indicating this practice lacks consistent application.
60. See Leech, supra note 28, at 810.
61.
ThiS shift toward a "modified Estrada Doctrine" is referred to in Leech, supra note 28, at 813. For a concise statement of the Estrada Doctrine, see note 52 supra. The Department of State's approach in the Panamanian and Peruvian cases seems entirely consistent with the later announcement by President Nixon, pursuant to his "Low Posture" doctrine, that the United States will deal with governments as it fmds them.
62.
As to varying uses of the term de facto, see Restatement, supra note 2, at 8 96, Reporter's Note 2.
63. Oppenheim, supra note 2, at 135.
64. This type of de facto recognition is criticized in Brierly, supra note 2, at 139, and by Moore, Fifty Years of International Law, 50 Harv. L. Rev. 395 (1937).
Italian-Ethiopian War when the United Kingdom recog- nized the King of Italy as the de facto sovereign of Ethiopia but still extended de jure recognition to the Government of Haile Selassie. 65 The United States prac- tice has sought to avoid such questions of legitimacy at the time of recognition by considefig the government de fac- to to be the government de jure. 66 Therefore, except on two occasions, 67 the United States has not distinguished between the kinds of recognition it extends.
As a Substitute for Formal Recognition. The de facto recognitions described above are intentional recog- nitions by one government or another. 68 However, one government may withhold recognition from another, yet conduct transactions with that government.. The govern- ment which is withholding recognition is sometimes said under the circumstances to have recognized de facto the other government. It has been contended that such con- duct is an implied recognition, with as much weight in in- ternational politics as any express recognition. 69 However, governments in practice do not stumble into recognition; it is a deliberate political act. Thus, they see nothing inconsistent in withholding recognition due to the failure of the other government to meet some subjective criterion, and at the same time conducting a minimum of transactions with that government. (3)
(4)
By Courts in Deciding the Effect to be Given the Acts of Nonrecognized Regimes. The term de facto has been used by national courts and international tribunals in deciding the legal effect to be given the acts of nonrecog- nized regimes that are in actual control of that state. For example, in the Tinoco claims arbitration Chief Justice Taft, serving as arbitrator of a dispute involving Great Bri- tain and Costa Rica, characterized the Tinoco regime as the de facto government of Costa Rica, with the result that the acts of that regime were given binding effect. The con- clusion that the Tinoco regime was the de facto govern-ment of Costa Rica was not altered by the fact that the United States, Great Britain, and other leading countries had not recognized that regime. 70 Other decisions dealing with the effect given to acts of states and governments
65. SeeHaile Selassie v. Cable and Wireless, Ltd. (19391 chap. 182.
subsequent!^, the United hgdom granted retroactive de jure recogni-tion to the King of Italy while the aforementioned case in the course of being appealed.
66.
For early American practice in this regard, see Hyde, supra note 2, at 148-97, particularly the citations contained therein; Goebel, The Recognition Policy of The United States (1 91 5);'and Newman, Recogni- tion of Governments in The Americas (1947).
67.
De fact0 recognition was extended to the Carranza Govem-ment of Mexico in 1915. De jurerecognition did not follow until 1917. Similarly, in 1948 de facto recognition was extended to the Provisional Government of the new state of Israel. De jure recognition followed in 1949.
68.
Brierly correctly points out that de facto and dejure describe the thing recognized, and not the act of recognition. Brierly, supra note 2, at
139.
69.
Moore, supra note 46, at 166.
70.
Tinoco Claims, supra note 50.
(recognized and unrecognized) are summarized in para- graph 3-15, infra.
6. Although the terms de facto and de jure frequently are used in one or more of the senses mentioned above when recognition is discussed, it appears there is little if any difference in legal effect between recognition that is labeled "de jure recognition" and recognition that is labeled "de facto recognition." 71 In current United States practice, when the Government extends recogni- tion it is recognition per se, not de facto recognition. 72 3-11. Actions Constituting Recognition. a. As men- tioned earlier, 73 recognition is fundamentally a matter of intent, and may be either expressed or implied. Thus far, the discussion has dealt primarily with express recogni- tion. Under what circumstances may recognition be im- plied? The general test is that recognition can be implied only from acts that unequivocally show the intention of a government to recognize a state or a regime. 74 More specifically, it has been said that recognition of a state or government may be implied legitimately only on three oc- casions: (1) the conclusion of a bilateral treaty between the recognizing state and the unrecognized state, such as a treaty of commerce and navigation, regulating more or less permanently relations of a general character between the two states; (2) the formal initiation of diplomatic rela- tions; and (3) the issue by the recognizing state of a certifi- cate to a consul of the unrecognized state, accepting his of- ficial character and authorizing him to fulfill his consular duties. 75
6. As previously mentioned, the implication of recog- nition arising from a bilateral treaty can be negated by an appropriate disclaimer. 76 The overriding question is al- ways whether recognition was intended. In a case of asserted implied recognition based upon entry into a bilateral treaty, the answer to this question of intention will depend largely upon the subject matter of the treaty (or other agreement) and the circumstances under which it was concluded. In general, the more formal the agree- ment, the more comprehensive its subject matter, the more it involves the establishment of political relations, and the longer its intended duration, then the greater the presumption of recognition to which it would give rise. 77
c. Participation in a multilateral treaty does not give rise
71. See Cochran, De Facto and De Jure Recognition: Is There a Difference?,62 Am. J. Int'lL. 457,459-60 (1968). Butsee Lauterpach~, supra note 37, at 343-46, suggesting that (1) a government recognized dejure is entitled, as against the de facto government, to property of the state located abroad, and (2) representatives of a government recog- nized only de facto may not be entitled to full diplomatic immunities.
72. 2 Whiteman, supra note 16, at 3.
73. See text at notes 33-36, supra.
See Chen, supra note 39, at 192-94. See note 35, supra. See Oppenheim, supra note 2, at 147-48. 74.
See Opinion of the Legal Adviser, U.S. Dep't of State, Hearings on the Nuclear Test Ban Treaty before the Senate Committee on Foreign Relations, 88th Cong., 1st Sess., at 15-17 (1963) [hereinafter cited as Hearings].
75.
76.
77.
to recognition by implication. 78 Although the application of this rule is clearest when the 'treaty is open for adherence by any state, the rule appears to apply regard- less of whether the treaty is open for general adherence. However, in the case of a closed multilateral treaty negoti- ated with a small number of known parties, a cogent argu- ment for implied recognition could be made by analogy to implied recognition in the case of bilateral treaties.
The practice of the United States has consistently afliumed that participation in a multilateral treaty does not accord recognition to entities that the U.S. has not other- wise recognized. 79 The United States has also taken the position that in such cases no disclaimer is necessary in order to avoid recognition. 80 Further, the United States contends that, within the framework of a general multilateral treaty, it can have dealings with a nonrecog- nized regime without thereby recognizing that regime, and that any possible implication canbe negated by an ap- propriate disclaimer. 81 When acting as depositary for a multilateral treaty, the United States submits that it can receive and circulate communications from regimes it does not recognize without thereby extending implied recognition. 82 d.
e.
It is apparent that entering into diplomatic discus- sions (even at a very high level) does not imply recogni- tion. The current relations of the United States and the Peoples' Republic of China afford and excellent example of this principle in operation. 83 3-12. Existence or Nonexistence of Duty to Recognize.
a.
Authority exists for the proposition that international law requires the recognition of new states and new governments that meet the necessary objective criteria. 84 Some states have purported to carry out this requirement in their policies concerning recognition. 85 It appears, however, that there has been in~~cient
state practice of this asserted requirement to establish it as a rule of customary international law. Indeed, the Restatement flatly concludes that no such requirement exists. 86 The practice of the United States has been to view recognition as being within the sound discretion of the recognizing government, i.e., as being a privilege and not a right of the unrecognized state or regime. 87
6. There may, however, be a duty imposed by interna- tional law to not recognize a state or regime when the minimum criteria for recognition are not satisfied. The
78.
See Lauterpacht, supra note 37, at 374.
79.
Hearings, supra note 74, at 16.
80. Id.
8'. Id.
82. Id. at 16-17.
83. See Schwebel, Is the "Recognition" of Governments Obsolete?, Washington Post, Feb. 23, 1972, 5 A, at 16, col. 3.
84. See Lauterpacht, supra note 37, at 32-33, 50-51, 62-63, 73. 8s. See notes 43-48, supra, and accompanying text.
See Dep't of State memorandum cited supra note 54. 86.
Restatement, supra note 2, at 5 99(1). For other authorities supporting the Restatement position, see note 46 supra.
87.
Pam 27-161-1
Restatement takes the position that there is such a duty and that unwarranted recognition violates the rights of any state adversely affected thereby, although the recognition is nevertheless effective. 88 3-13. Recognition and Diplomatic Relations. a. Recog-nition of a government implies a willingness to carry on diplomatic relations with that government. However, recognition does not require the initiation or resumption of diplomatic relations between the government of the recognizing state and the recognized government. 89. Thus, it is possible for a government to be recognized and for the establishment of a diplomatic mission to be delayed or postponed, or not maintained, for a variety of reasons. 90
b. Likewise, diplomatic relations can be broken with- out effect upon a previous recognition of a state or its government. 91 The severance of diplomatic relations with a state recognized by the United States does not deny that state access to courts of the United States under principles of comity which allow sovereign states to sue in those courts. 92
3-14.The Status of Recognized and Unrecognized States and Governments Under Municipal Law. a. General. Legal problems concerning recognition and non- recognition frequently have arisen in the domestic courts of the United States, Great Britain, and other states. Typically, the problem is whether or not a court may treat a state or regime as having juridical existence in the ab- sence of recognition of that state or regime by the govern- ment of the forum state. In other words, does recognition or nonrecognition have any effect upon the ability of a state to maintain suit and to have its acts represented in the courts of other states? The following is a summary of selected judicial responses (mainly by United States courts) to this question and other related ones.
b. Standing to Sue. (1) Generally, friendly foreign states are permitted, as a matter of comity, to bring proceedings in the courts of another state. 93 But access to domestic courts is usually denied to foreign powers that have not been recognized by the forum state. 94 The recognition of a state or government before a decision denying it access to the courts becomes final gives rise retroactively to its capacity to maintain the action. 95 With-drawal of recognition prevents the state or government
88. Restatement, supra note 2, at 5 99(2).
89. Id. at 5 98(1).
90. See 2 Whiteman, supra note 16, at 29.
91. Id.; Restatement, supra note 2, at 5 98(2).
92. Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12 (1964).
93. The Sapphire, 78 U.S. (11 Wall.) 164 (1871).
94. See Russian Socialist Federated Soviet Republic v. Cibrario, 235
N.Y. 255, 139 N.E. (1923). See also decisions in other legal systems noted in Leech, supra note 28, at 791-92.
95. Republic of China v. Merchants' Fire Assurance Co., 30 F.2d 278 (9th.Cn. 1929).
from maintaining an action already commenced. 96
(2) Although a foreign government not recognized by the political arm of the United States may not maintain suit in American courts, if the foreign government is not the suitor its lack ofjuridical status is not determinative of whether transactions with it or within its territory will be denied enforcement. 97 The acts of a de facto government (even though the government is not recognized) may affect private rights and obligations arising either as a result of activity within, or with persons or corporations within, the territory controlled by the de facto govern-ment. The private rights and obligations thus arising are
judicially cognizable, unless to permit suit thereon would violate United States law or public policy. 98 Even a creature corporation of the nonrecognized regime could perhaps maintain suit in a United States court to enforce such rights and obligations. 99 As stated in a widely-noted New York decision:
There are many things which may occur within the purview of an unrecognized government which are not evil and which will be given customary legal significance in the courts of nations which do not recog- nize the prevailing de facto government. In a time in which govern- ments with established control over territories may be denied recogni- tion for many reasons, it does not mean that the denizens of such ter- ritories or the corporate creatures of such powers do not have the juridi- cal capacity to trade, transfer title, or collect the price for the merchan- dise they sell to outsiders, even in the courts of nonrecognizing nations.
.. . 100
c.
Sovereign Immunity from Suit. Under the doctrine of sovereign immunity, it is the traditional rule that a foreign state may not be sued without its consent in the courts of another state. 101 Thus, United States courts may not bring a foreign sovereign before the U.S. bar, not because of comity, but because that state has not submitted itself to U.S. laws. 102 This result depends not upon recognition or nonrecognition by the United States, but upon funda- mental considerations regarding the nature of sovereignty. 103 Moreover, sovereign immunity is not limited to the foreign state or its government, but may ex- tend to its property, its agents, and its instrumen-talities. 104
d.
Law-Making Authority of Foreign Governments. (1) The courts of the United States generally will not question the validity of acts of another government done within its own territory. 105 This result obtains even though diplo- matic relations between the United States and the foreign
96. Gov't of France v. Lobrandtsen-Moller Co., 48 F. Supp. 631
(S.D.N.Y. 1943).
g7. See Upright v. Mercury Business ~a'chines Co., 13 A.2d 36, 213 N.Y.S. 2d 417 (1st Dep't 1961).
98.
Id.
99.
Id.
100. Id. at 41, 213 N.Y.S. 2d at 422.
101.
See ch. 5, irlfra.
102.
See Wulfsohn v. Russian Socialist Federated Soviet Republic,
234 N.Y. 372, 138 N.E. 24 (1923).
103.
Id.
104.
Friedmann, supra note 20, at 642.
105.
Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
government have been severed, 106 and this apparently is the rule even in cases in which the foreign government has not been recognized by the United States. 107 However, if the act of the unrecognized foreign govern- ment purports to destroy title to either real or personal property located outside its territorial jurisdiction, then the courts of a nonrecognizing state will probably not give effect to such an act, especially if the property involved is within the territorial jurisdiction of the nonrecognizing state. 108
(2)
It has been held that the recognition of a revolu- tionary government is retroactive and validates all acts of that government from the commencement of its exist- ence. 109 Such recognition binds conclusively the courts of the recognizing state. 110 However, when the executive branch of the Government has adopted a policy of non- recognition of a specific foreign decree (including those of a recognized government) regarding property that was not within the territory of the foreign state at the time of the decree in question, U.S. courts have refused to give effect to such a decree. 111 Likewise, the courts have refused to give extraterritorial effect to the decrees of subsequently recognized governments, when those decrees are contrary to the public policy of the United States. 112
(3)
The retroactivity principle has generated con- siderable confusion in both American and British courts. 113 Basically, however, retroactivity of recognition operates to validate acts of a de facto government that subsequently has become a de jure government, and not to invalidate acts of a previous de jure government. 114 3-15. Termination or Withdrawal of Recognition. a. The Restatement declares that the binding effect of the recognition of a state can be terminated by withdrawal of
106. Id.
107.
See Salinofl& Co. v. Standard Oil Co. of New York, 262 N.Y. 220, 186 N.E. 679 (1933), giving effect to confiscatory decrees of the then unrecognized Soviet government and the seizure of oil lands thereunder.
108.
See Petrogradsky M.K. Bank v. National Ciw Bank of New York, 253 N.Y. 23, 170 N.E. 479 (1930), wherein the court refused to give effect to decrees of the then unrecognized Soviet government na- tionalizing Russian banks, where the result of giving effect to such decrees would have been to divest plaintiff Russian bank of funds on deposit with defendant New York bank.
109.
Oepn v. Central Leather Co., 246 U.S. 297 (1918); U.S. v. Pink, 315 U.S. 203 (1942).
110. US. v. Pink, supra note 109.
11 1. See Latvian Stale Cargo and Passenger S.S. Line v. McGrath, 188 F.2d 1000 @.C. Cir. 1951); Estonian State Cargo and Passenger
S.8. Liner v. U.S., 116 F. Supp. 447 (1953) (both cases dealing with Soviet nationalization decrees).
112, See Republic of Iraq v. First National City Bank, 353 F.2d (2d Cir.1965), cert. denied, 382 U.S. 1027 (1966).
113.
See Leech, supra note 28, at 789-90.
114.
Guaran@ Trust Co. v. U,S., 304 U.S. 126 (1938) (rejecting argument that valid judgments obtained in United States by Provisional Government of Russia, rewgnizedby United States as the dejure repre-sentative of the Russian State, became invalid upon subsequent recog- nition of Soviet Government as the successor of prior governments of Russia).
the recognition only if the recognized state no longer meets the minimum criteria necessary for recognition. 115 Similarly, the Restatement sharply limits the ability or right of the recognizing state to withdraw its recognition of a government, permitting such withdrawal only Zone of three tests is satisfied: (1) the withdrawal involves recog- nition of a successor government; (2) the previously recognized government is no longer functioning; or (3) the recognizing state announced that the recognition of the government in question was tentative. 116
b. Withdrawal of recognition by any state is a concept not known to have been used in modem times. 117 There being a dearth of state practice to support any asserted rule regarding withdrawal, there is doubt as to the authority of the rules set forth in the Restatement. Moreover, the limitations imposed by those rules appear to conflict with the admittedly political nature of the decision to extend recognition to a state or government. 118 In any event, it seems likely that national courts would give effect to a decision by the political branches of government to with- draw recognition. 119
3-16. Continuity of States and Change of Government.
a.
In much the same sense in which corporations have perpetual duration, states also have perpetual exist- ence. 120 Once a state has come into beii, it continues until extinguished through absorption by another state or by dissolution. 121 A government, on the other hand, is simply the instrumentality through which a state func- tions. 122 Changes of government, whether in the form of the government (as from a monarchy to a republic) or in the head of the government, do not affect the continuity or identity of the state as an international person. 123
b.
Traditionally, a mere change of government in an existing state has no legal effect upon the treaty and other international obligations of state; it remains bound by all such obligations. 124 The rule to be applied when there is a change in the state itself, i.e., a change of sovereignty, is less clearly established, two conflicting theories having been advanced.
(1) The Theory of "Universal" Succession. This theory is based on the Roman law concept of succession after death, and its application results in the view that the successor state inherits all the treaties, debts, and con- tracts of its predecessor. 125
115. Restatement, supra note 2, at 5 96(1).
116.
Id. at 8 96(2).
117.
Leech, supra note 28, at 825.
116. Friedmann, supra note 20, at 199.
119.
See Meeker, Recognition and the Restatement, 41 N. Y.U.L. Rev. 83, 90 (1966).
120.
See The Sapphire, 78 U.S. (11 Wall.) 164 (1871); Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396 (2d Cir. 1927), cert denied, 275 U.S. 571 (1927).
121.
1 Hackworth, supra note 29, at 127.
'22. Id.
123. Id.
124. Friedmann, supra note 20, at 200.
125. Id. at 432.
Pam 27-161-1
(2) The "Clean Slate" Theory. The more recent theory, favored by many writers and governments during the nineteenth and early twentieth century, is the "clean slate" theory. Under this approach, a new or successor state does not inherit any of the rights or obligations of the predecessor state. 126
Neither theory appears to accord with present state prac- tice, which is admittedly inconsistent regarding questions of state succession. 127 Since World War I1 most new states, without adhering to any general doctrine, have tended to opt for flexible techniques that give them freedom to pick and choose the treaty rights and obliga- tions they wish to retain. Most of the older states have tolerated this approach by the evolving countries. 128
c. The distinction between changes in government and the creation of a new state may be dmcult to draw in par- ticular situations, there being no clear criteria applicable to all cases. 129 For example, Italy regards itself as being, and has been accepted as being, not a new state formed by the union of the several formerly independent states of the Italian Peninsula, but a continuation of the kingdom of Piedmont territorially enlarged by the annexation of other Italian states. 130 However, a Federal district court in California saw the closely analogous case of Yugoslavia in a different light, and held that Yugoslavia is not the old kingdom of Serbia enlarged, but a new state that came into existence after World War I. 131
d. In recent years, the distinction between changes of government and the creation of new states has become blurred, and its utility has been questioned. 132 The prob- lems engendered by the transition of former colonial ter- ritories in Africa and Asia to independent status have con- tributed largely to this reevaluation. 133
Section 111. INTERNATIONAL LEGAL PERSONALITY
3-17. The Concept of "International Legal Per- sonality." a. One of the more significant developments of contemporary international law is the extension of inter- national legal personality to entities other than states. 134 This is, of course, merely another way of saying that cer- tain entities other than states have come to be regarded as having rights and duties under international law and as being endowed with capacity to act. As a result of this gradual (and ongoing) development, international organizations, corporations, and even individuals may now be said to possess international legal personality in varying degrees.
b. It is important to note not only the extension of in- ternational legal personality but also its relativity. In neither a theoretical nor a pragmatic sense can the scope of legal personality accorded to states, public international organizations, corporations, and individuals be the same. 135 The state is still, and doubtless will continue to be, the basic and most complete subject of international law. 136 Yet it is clear that the traditional view-that only states can be subjects of international law-is changing. The following discussion will suggest some of the ways, and the extent to which, this change has occurred. 3-18. International Organizations. a. In 1949, the In-ternational Court of Justice held that the United Nations, as an international organization, has the capacity to bring an international claim against the responsible government for injury suffered by an agent of the United Nations in the performance of his duties. 137 This was a signifcant extension of international personality, for theretofore only states had been regarded as being competent to advance such international claims. 138 The Court was careful to
sovereign organizations performing acts in international law, and thus implicitly being recognized as having inter- national personality. 140 The growth of international capacity as a result of practice and interpretation continues today. This point can be illustrated by reference to the for- mation and administration of United Nations peacekeep- ing forces, which have entailed various agreements be- tween the United Nations and the "host" states and also between the Secretary-General and the states providing
126. With the possible exception of "dispositive" or "localized" treaties. Id. at 432,439. A "dispositive" or "localized" treaty is defined by Brierly as one "regarded as impressing a special character on the ter- ritory" to which it relates, and which creates "somethiig analogous to the servitudes or easements of private law." Brierly, supra note 2, at
154.
127. Friedmann, supra note 20, at 432.
Brierly, supra note 2, at 151. Id. at 200. 128.
Id. at 439. A more detailed discussion of succession to treaties appears in chapter 8, irlfra.
129.
130.
131.
That decision was reversed by the Nith Circuit Court of Ap-peals. See Certupovic v. Boyle, 107 F.Supp. 11 (S.D.Cali.1953), rev2 sub nom. Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954), cert. denied, 348 U.S. 818 (1954).
132. Friedmann, supra note 20, at 200.
133. See, e.g., O'Connell, Independence and Problems of State Suc- cession in The New Nations in International Law and Diplomacy 7 (O'Brien ed. 1965). The author argues that because the problems of co-lonial independence raise new, important and urgent social questions, a "new look" is in order, and a "new breakdown in the process of ex- amination is necessary if the peculiar problems of the contemporary breakup of colonial empires are to be handled in a juristically satisfying way." Id. at 8-9.
134.
See Friedmann, supra note 20, at 201.
135.
Id.
'36. Id.
point out, however, that to conclude' that the United Na- 137. Adviso~y Opinion on Reparations for Injuries Suffered in the tions is an international is not equivalentto saying Semce of the United Nations 119491 I.C.J. 174.
.TO
la…
that its legal personality and accompanying rights and 139. StiU less is it the same thing as saying the Organization is a duties are the same as those of a state. 139 "su~erstate." whatever that expression may mean. Id.
Law 105-06 (1965).
b. Surprisingly, there is actually a long history of non- '140. see 1 OSConneII, ~nteinationa~
Pam 27-161-1
personnel for the forces. 141 The de facto acquisition of in- ternational capacity by nonsovereign organizations has resulted in widespread acknowledgment of the extension of international legal personality to such entities. 142
c.
Generally, international organizations have treaty- making capacity only insofar as this power is necessary in order to effite clearly defined purposes of the organ- ization. 143 The agreements concluded by an international organization may be governed by a municipal law system, but they are more often governed by international law. 144
d.
The mere fact that states have created an interna- tional organization is insufficient to establish its interna- tional personality. It may be merely a mechanism by which the states carry out their interstate relations, in which case it would have no independent role and thus no need for international personality. 145 On the other hand, if the organization has the capacity for independent action in carrying out its purposes, it may then be said to have in- ternational legal personality. 146 A further criterion is the extent to which the organization operates autonomously rather than under the control of its members. 147 AC-cordingly, it would seem that the proper approach toward determining the existence of international legal per- sonality is a functional one centering on the capacities necessary for adequate performance by the international organization of the responsibilities that states have confer- red upon it. 148 3-19. Corporations. a. Intergovernmental corporations and consortiums. Many international corporations and consortiums, public in purpose, but private or mixed public and private in legal form, have been organized since World War 11. 149 They exist for the fulfillment of certain joint purposes of the participating governments or of governments and private enterprises. 150 Their reach generally extends to matters that are beyond the scope of any one state or of any corporation created by one state. 151 These transnational organizations are governed in the first instance by the international agreement pur- suant to which they are established. 152 If the venture takes the form of a corporation, it will be subject in its
141.
See Friedmann, supra note 20, at 213.
142.
See, e.g., 1 Whiteman, supra note 16, at 38-58; P. Jessup, A Modern Law of Nations 8-9, 15-19 (1949).
143.
See Friedmann, supra note 20, at 212.
144. Id.
145. Id. at 213.
146.
Id.
147.
Id.
148. Id.; 1 O'Connell, supra note 140, at 109.
Friedmann, supra note 20, at 213-15. 149.
Friedmann, supra note 20, at 213. Examples of such transna- tional organizations include the European Company for Financing Rail-way Equipment (Eurofma), established by a 1955 agreement among 16 European states for the purpose of standardizing and improving the con- struction and performance of railway rolling stock; and, in the field of river navigation, the International Moselle Company formed by France, Luxembourg, and the Federal Republic of Germany in 1956.
150.
151. Id. at 214.
l52. Id.
organizational and operational aspects to the law of the state in which the corporation ischartered or has its head- quarters. 153 Because these entities are to some extent governed by international agreements, and because they perform transnational public functions, they may be regarded as having international personality.
b. Private corporations. (1) As a result of the increased participation by governments in business and commercial ventures and due to the increased participation by private corporations in the economic development plans of many newly emerged states, there are a growing number of transactions and projects involving governments on the one side and foreign private corporations on the other. 154 Private corporations also are becoming involved in publicly important international ventures. 155
(2)
International law does not govern the contrac- tual relations between a private corporation and a foreign state in transactions of this kind unless the parties so in- tend. 156 But the parties, expressly or by implication, may select public international law, rather than any national system of law, to govern the transaction. 157 For that reason, and also because private corporations may per- form transnational public or quasi-public functions, such corporations may be regarded as having a measure of in- ternational personality. 158
(3)
In addition, there is a growing number of ar- bitrations arising from transactions of this kind; these decisions form the basis of a developing public interna- tional commercial law. 159 It should be noted, however, that for most purposes international law treats private cor- porations as nationals of a particular state. 160 Like in- dividuals, corporations in most instances must rely on their governments to protect them from unredressed in-jury by foreign states and do not have access to interna- tional legal proceedings to protect their rights. 161 3-20. Individuals. a. It has been historically true, and it remains true today, that international law is made by states or by international bodies deriving their authority from states. Thus states, not individuals, are the creators of international legal norms. 162 These norms, however,
153. Id.
154.
Id. at 215.
155.
Id. at 216.
156.
McNair, The General Principles of Law Recognized by Civilized Nations, [I9571 Brit. Y.B. Int'l L. 1.
157.
See W. Friedmann, The Changing Structure of International Law 221-231 (1964).
158.
Friedmann, supra note 20, at 216.
159. Id. For an example of this kind of arbitration, see Sapphire-
N.I.O.C.Arbitration, 13 Int7 & Comp. L.Q. 987 (1964).
160.
See McNair, The National Character and Status of Corpora-tions, [1923-241 Brit. Y. B. In17 L. 44.
161.
See Friedmann, supra note 20, at 217.
162. It may, of course, be argued that states operate by virtue of the will of individuals and that the individual is thus the ultimate source of authority. Although this view accords with modem theories 04 repre-sentative government, the international state system is firmly entrenched in both the theory and practice of public international law. See, e.g., Jessup, A Modern Law of Nations 17-18 (1948).
Pam 27-161-1
may apply not only to states in their mutual relations, but also to individuals in their relations with states and even to
) interrelationships among individuals. 163 For example, a treaty may create rights and obligations for individuals that are enforceable in the national courts of the contract- ing states. 164 Similarly, a treaty may confer upon in- dividuals direct rights of international action. 165 Thus, it is clear that individuals may have both rights and duties arising from international law, and that they may properly be regarded in certain contexts as subjects of international law. Lauterpacht sums up the point: The question whether individuals in any given case are subjects of inter- national law and whether that quality extends to the capacity of enforce- ment must be answered pragmatically by reference to the given situation and to the relevant international instrument. That instrument may make them subjects of the law without conferring upon them procedural capacity; it may aim at, and achieve, both these objects. 166
b. An individual who suffers an international legal wrong at the hands of a state other than his own usually will not have access to an international adjudicatory body. In the absence of a treaty authorizing the individual to take independent steps in his own name to enforce his rights, he must look to his national state for the espousal of his claim in the international arena. His national state is not required to take up his claim, but may do so if it wishes. It is a basic principle of international law that a state is entitled to protect its subjects when they have been injured by acts contrary to international law committed by another state from whom they have been unable to obtain satisfaction. 167 In doing so, the protecting state makes the case its own and becomes, in the eyes of the international tribunal that hears the case, the sole claimant. 168 3-21. International Law and Human Rights. a. As in- dicated in the preceding paragraph, the violation of the human rights of an alien can be redressed at the interna- tional level through processes initiated by the injured in- dividual's national state. Options available to the injured individual's state include diplomatic protest, international arbitration, and international adjudication. Recent developments in human rights law under the aegis of the
163. Id.
164.
See Advisory Opinion on the Jurisdiction of the Courts of Danzig, [I9281 P.C.I.J., ser. B., No. 15, at 17-21. This case establishes, in effect, that the traditional state system concept of international law does not prevent the individual from becoming the subject of interna- tional rights if states so wish.
165.
For example, the Convention for the Establishment of a Central American Court of Justice, art. II, [I9071 2 For. Rel. U.S. 697, 2 Am. J. Int'l L. Supp. 231 (1908), gave individuals access to an interna- tional court to bring claims against any contracting government except their own, providing that certain conditions were met. This iight was available regardless of whether the individual's own government was willing to press the claim.
166. H. Lauterpacht, International Law and Human Rights 27-28 (1950).
167.
See Mavromrnatis Palestine Concessions (Jurisdiction), [I9241 P.C.I.J.
168.
Id. The topic of protection of nationals is treated in greater detail in chap. 6, idra.
United Nations suggest that, either by the growth of inter- national law or by convention, internationally-recognized human rights may be asserted by an individual even against his own state. 169 A comprehensive survey of these recent developments is beyond the scope of this chapter. 170 The principal documents involved in the emerging law of international human rights are certain ar- ticles of the U.N. Charter, 171 the Universal Declaration of Human Rights, 172 and the so-called Human Rights Covenants. 173 Although the Charter provisions and the Declaration are not directly binding on U.N. member- states, municipal courts may nevertheless treat them as indicative of public policy or even as part of the law of the land, and thus give them effect in adjudicated cases. 174 Moreover, international tribunals may treat these provi- sions, or at least some of them, asbeing part of customary international law and hence binding on all states. 175 As for the various Human Rights Covenants, they are, of course, intended to operate as treaties. Oncein force, such conventions would legally obligate states that become par- ties to them to accord specific rights to all individuals. 176 It is not apparent, however, what means are available to
Leech, supa note 28, at 629. 169.
170.
For a useful collection of basic materials on international human rights, see id., at 606-655; Friedmann, supra note 20, at 217-235.
171.
The Charter refers generally to fundamental human rights in articles 1(3), 55(c), 62(2), 68, and 76(c). It does not, however, defme these rights in any detail.
172.
G.A. Res. 217, U.N. Doc. A1810 at 71. The Declaration proclaims the rights listed therein as a "common standard of achieve- ment for all peoples and all nations." It includes such rights as equal protection of the law, the right to a fair hearing, to freedom from torture or degrading punishment, to freedom of movement and asylum,to mar-ry and found a family, to work, and to form and join trade unions. These and the other rights set forth in the Declaration apply to "all human beings," to "everyone." In the words of the U.S. representative in the General Assembly, "It [the Declaration] is not a treaty; it is not an international agreement. It is not and does not purport to be a state- ment of law or of legal obligations. 19 Dep't State Bull. 751 (1948).
173.
International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, 21 U.N. Gaor Supp 16, at 49, U.N. Doc. A/6316 (1966); International Covenant on Civil and Political Rights, id. at 52. Neither is yet in force. There are many other conventions already in force dealing with human rights but the U.S. is party to very few of them. Leech, supra note 28, at 626. The aforementioned two covenants carry into detailed treaty form most of the provisions of the Universal Declaration of Human Rights, but they do not entirely parallel the Declaration. Id.
174.
See Re Drummond Wren [I9451 O.R. 778, [I9451 4 D.L.R. 674 (Ontario High Ct.), in which the court declared a racially restrictive covenant void, inter alia, as against public policy, citing the Charter pro- visions on human rights as indicative of public policy. See also Oyama v. California, 332 U.S. 633, 649-50, 673 (1948), holding a section of the California Alien Land Law unconstitutional as violative of the Four- teenth Amendment. In concurring opinions Justices Black, Douglas, Rutledge, and Murphy referred to the section's inconsistency with the
U.N. Charter.
175. See the separate opinion of Vice President Ammoun in the Advisory Opinion on the Continued Presence of South Ajrica in Namibia
(South West Africa), [I9711 I.C.J. 16, 76.
176. Friedmann, supra note 20, at 222.
vindicate such rights at the international level if the in- dividual's state fails or refuses to accord them to him. In-deed, in today's world it is obvious that a great many human rights are being grossly violated in a great many countries. No effective international machinery for deal- ing with this problem has yet been forthcoming. 177
b. Aside from U.N. efforts in the field of human rights, there are noteworthy programs in this field at the regional level.
(1) Particularly significant is the European Conven- tion for the Protection of Human Rights and Fundamental Freedoms. 178 The substance of this convention is com- parable in scope and purpose to that of the U.N. Covenant on Civil and Political Rights. 179 But unlike the U.N. document, the European Convention provides a working system for the international protection of individuals whose rights (as defined in the Convention) have been violated by the state of which they are nationals. The in- ternational organs of enforcement are the European Com- mission on Human Rights and the European Court of Human Rights. These organs have developed a substan-
213 U.N.T.S.221. This convention, which became effective in 1953, was sponsored by the Council of Europe. It is open to accession by all members of the Council; all the major states of Western Europe, ex- cept France and Switzerland, have ratified it. A number of possible procedures for international implemen- tation of the law of human rights are explored in Leech, supra note 28, at 629-47. International adjudication (state versus state) is a possibility, but presents a serious question as to the "standing" or "interest" of a state to take up the cause of an individual who is not one of its nationals. See Nottebohm Case (Lichtenstein v. Guatemala), [I9551 I.C.J. 4, dis- cussed and cited in chap. 4, irlfra. 177.
178.
179.
Basically, the substantive provisions of the Convention prohibit unlawful arrest or detention and establish a minimum standard of due process that must be accorded individuals by each ratifying state. For example, the Convention provides, inter alia, that "no one shall be deprived of his liberty [except in several broadly defmed classes of cases encompassing the normal criminal and civil spectrum] and in accordance with a procedure prescribed by law" (Art. 5a)); that "In the determina- tion of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" (art. 6(1)); that "Everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law" (art. 6(2)); and that everyone charged with a criminal offense has spedic minimum rights (art. 6(3)).
tial body of precedent under the Convention. 180
(2) In the Western Hemisphere, the Inter-American Commission on Human Rights, established in 1959 by the Organization of American States, is empowered to receive and examine individual communications charging the violation of fundamental human rights and to make recommendations to governments with respect thereto. In 1969, a Conference of the American States approved the American Convention on Human Rights, 181 which widens the earlier American Declaration of the Rights and Duties of Man and establishes the Inter-American Court of Human Rights. 182
3-22. The Legal Responsibility of Individuals in Inter-national Law. The development of rights enforceable by individuals at the international level is in an embryonic stage. It has long been held, however, that individuals are capable of violatinginternational law. For example, piracy has been deemed an offense "against the law of nations" and the offender has been subject to punishment by any state that captures him. 183 More recently, there has been widespread acceptance of the principle that individual members of belligerent armed forces are criminally responsible for violations of the laws of war, and may be punished by enemy or international authorities. 184 A dis- cussion of war crimes and related offenses is beyond the scope of this chapter. These matters are mentioned here merely to make the point that individuals may incur penal sanctions under international law and thus are, to that ex- tent, subjects of international law. 18s
180. For a description of the work of the Commission and the Court, see Friedmann, supra note 20, at 230-31; Leech, supra note 28, at 649-51.
181.
See 65 Am. J. Intl L. 679 (1971).
182.
See generally Fox, The Protection of Human RighB in the Americas, 7 Colum. J. Transnat'l L. 222 (1968).
183. See, e.g., U.S. v. Smith, 18 U.S.(5 Wheat.) 153, 161-62
(1820). Cf: Respublica v. DeLongchamps, 1 U.S. (1 Dall.) 11 1 (assault on a foreign diplomat held an infraction of the law of nations).
184. See Ex Parte Quirin, 317 U.S. 1 (1942). See also Attorney General of Israel v. Eichmann, 36 Int'l L. Rep. 277 (1968) (Israel Sup. Ct. 1962).
185. For a collection of materials dealing with individual respon- sibility for war crimes, see Leech, supra note 28, at 656-724; see also Parks, Command Responsibili@ for War Crimes, 62 Mil. L. Rev. 1 (1973).
Pam 27-161-1
CHAPTER 4 JURISDICTION
Section I. BASES OF JURISDICTION UNDER INTERNATIONAL LAW
4-1. General. a. Having examined the essential charac- teristics of states, the primary actors in the framework of public international law, attention must now be focused on the manner in which these entities might exercise juris- diction over territory, individuals and events. In doing so, it is important to note that the term "jurisdiction," or its equivalent in other languages, expresses a concept which is common to municipal legal systems.
b.
In the United States, for example, reference is made to "Federal jurisdiction," as opposed to the jurisdiction of the States of the Union. This is true in that under U. S. do- mestic law-the Constitution in this instance–certain categories of persons, events or places are subject to Federal law and others to the law of the several States. Whenever it is said that a matter is one of "Federal juris- diction," this means that the Federal Government is em- powered under the domestic law of the United States to act-by way of legislation, juridical decision or executive action-with respect to the particular category of persons, events, or places involved in the matter at hand. The same concept applies when one speaks of the jurisdiction of the states.
c.
In the international legal system, the term "jurisdic- tion" expresses a concept similar to the concept it ex- presses in municipal legal systems. When reference is made to the "jurisdiction" of a state in the international system, this means the state is entitled under international law to subject certain categories of persons, events, or places to its rules of law. It does not follow, however, that the rules of international law determining whether a state has jurisdiction over a particular person, event, or place are the same as those used in a State legal system in deter- mining, for example, whether this court or that court has jurisdiction over a particular person, event, or place.
d.
Jurisdiction may also refer to the jurisdiction of the state as a whole and not of its constituent units or political subdivisions. The United States is a federation, while France, for example, is not. The question as to whether an alien is to be tried by a court of New York State or a U. S. Federal court or whether he is to be tried by a court in Paris or Marseilles does not create an international issue of jurisdiction. The jurisdictional question in the interna- tional system is whether the United States or France is en- titled to try the alien.
e.
Moreover, the international legal system is not con- cerned with a state's allocation of its jurisdiction among its branches of government. In a legal system,-the making of legal rules might be vested in a legislature and their enforcement vested in the executive Or judicial branch. However, this division of functions is not always SO distinctive. The House of Lords in the United Kingdom
has legislative functions and also functions as a law court. In turn, a court of law in a municipal legal system may not have been instructed by its legislature to apply a particular rule and may thus have to articulate one of its own devis- ing before it can proceed to give it effect. Additionally, the executive may be empowered to make legal rules. Inter- national law does not determine which branch of govern- ment should perform various legislative and judicial func- tions. Accordmgly, it is advisable, if not necessary, to dis- cuss the jurisdiction of states under international law in terms which are neutral so far as the organs of govern- ment exercising the jurisdiction are concerned.
J The term jurisdiction is all too often used im-precisely. A sharp distinction between rule-making and rule-enforcing jurisdiction is essential to effective analysis. First, the state "prescribes" a rule, which is to say that either by act of the legislature, decree of the executive or decision of a court, it declares a generalized principle or legal norm. Second, the state "enforces" the rule. That is, it arrests, subpoenas witnesses and documents, and tries and punishes for violation of the rule. Any one of these actions-and of course all of them together-is enforce-ment. Hence, jurisdiction is discussed in terms of the ju- risdiction of a state "to prescribe" rules of domestic law and its jurisdiction "to enforce" them.
g. A state normally has jurisdiction to prescribe rules of domestic law governing conduct taking place physically within its territory. At the other extreme, no state has ju- risdiction to prescribe rules of domestic law governing the conduct of everyone everywhere in the world. Normally, a state also has jurisdiction to enforce within its own ter- ritory the rules of law it has properly prescribed. Yet, a state may not normally send its police and courts outside its borders to arrest and punish people even for murders committed within its territory. Accordingly, the following provisions are contained in Restatement, Second, Foreign Relations Law of the United States.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
8 6. Jurisdiction Defined
"Jurisdiction," as used in the Restatement of this Subject, means the capacity of a state under international law to prescribe or to enforce a rule of law.
Comment:
a. Prescriptive and enforcement jurisdiction distinguished. Jurisdic- tion to "prescribe" refers to the capacity of a state under international law to make a rule of law, whether this capacity be exercised by the legis- lative branch or by some other branch of government. Jurisdiction to "enforce" refers to the capacity of a state under international law to en- force a rule of law, whether this capacity be exercised by the judicial or the executive branch . . . or by some other branch of government. . . .
The action taken by a branch of the government of a state may be an exercise of both jurisdiction to prescribe and jurisdiction to enforce, rather than the exercise of only one of them.
Jurisdiction to prescribe in Subsection (2) includes jurisdic- tion to prescribe the applicable rule of conflict of laws. … A state does not have jurisdiction to enforce a mle of law prescribed by it unless it had jurisdiction to prescribe the rule. A state having jurisdiction to prescribe a rule of law does not necessarily have jurisdiction to enforce it in all cases. 5 7. Relationship between Jurisdiction to hescribe and Jurisdiction to Edorce
(1)
(2)
(3)
5 8. Effect of Lack of Jurisdiction
Action by a state in prescribing or enforcing a rule that is does not have jurisdiction to prescribe or jurisdiction to enforce, is a violation of international law. …
h.
This chapter will examine some of the factual bases of jurisdiction generally accepted in the international legal system as adequate foundation for a state's prescription and enforcement of rules of municipal law. Thus, atten-tion will be focused on state jurisdiction based on territo- ry, the nationality of the accused, agreement with the ter- ritorial state, the protection of certain state interests, and the concept of universality. 4-2. Jurisdiction Based on Territory. a. A state has ju- risdiction over everything within its territorial boundaries. A derogation from territorial sovereignty cannot be recog- nized unless its legal basis is established in each particular case. 1 The United States Supreme Court, as early as 1812, observed this general principle when Justice Marshall stated, "It is an admitted principle of interna- tional law that a nation possesses and exercises within its own territory an absolute and exclusive jurisdiction, and that any exception to this right must be traced to the con- sent of the nation, either express or implied." 2 Thus,no state may exercise its police powers in another state, even against its own citizens, without the consent of this state. The jurisdiction to perform any governmental acts within a state's borders belongs exclusively to that state, unless and until it consents to the exercise of jurisdiction by a foreign state. 3 The territorial basis of jurisdiction is universally accepted throughout the world, and it is the basic system adopted in the law of the United States, Eng- land, and many other countries. 4
b.
What are the areas where the United States exercises its jurisdiction without valid international objection? Clearly, they include all the land area of the United States and its
Colombian-Peruvian Asylum Case, [I9501 I.C.J. 226. 1.
2.
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, at 136 (1812).
3.
For ample, the British government properly protested the seizure of Sun Yet Sen in London in 1896 by the Chinese legation with the intended purpose of forceably taking him back to China. 1 L. Op- penheim, International Law 796 (8th ed. Lauterpacht 1955). Serbia showed a similar sensitivity to its jurisdiction when it rejected that por- tion of the Austrian ultimatum of 1914 which demanded that Austria be allowed to conduct an investigation in Serbian territory independent of the Serbian government. Serbia maintained that such a demand was not "in accordance with international law" and asked that it be referred to the Hague for adjudication." 1 Halsey, Literary Digest History of World
War I 70-72 (1919).
4. J. Brierly, The Law of Nations 232 (5th ed. 1955).
islands, its inland waters, lakes, and rivers within its fron-
tiers; the territorial waters along its coast; and the air space '
above this land and these waters. Similarly, by a special ar-
rangement, the United States exercises jurisdiction over
the trust territories which have been placed under its con-
trol s and bases or zones over which it exercises personal
or, to some extent, territorial jurisdiction unde; certain
treaties. 6 Finally, by means of a fiction, international law
accepts the idea that every state exercises "territorial
jurisdication" over its ships, wherever these may be.
4-3. Acquisition of Sovereignty over Temtory. Quite naturally, in order to legitimately exercise jurisdiction based on territory, a state must have sovereignty over this territory. Thus, it is imperative that attention be focused on the means by which sovereignty over territory can be acquired. Given the interrelationship of several of these ,methods of territorial acquisition 7 with many of the basic concepts of conflict management, they should be of sig-
nificant interest to the military attorney.
a. Discovery and contiguity.
THE ISLAND OF PALMAS CASE WED STATES
AND THE NETHERLANDS)
Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. Arb. 1928)
2 U.N. Rep. Intl. Arb. Awards 829
[Palmas, an island about two miles long by three fourths of a mile wide, with a population of 750, having at the time little strategic or eco-nomic value, lies about 48 miles southeast of Midanao in the Philip pines (then part of the United States territory) and about 51 miles from Nanusa in the Netherlands Indies. Situated at about 5" 35' N., 126" 36' E., it lies within the boundaries of the Philippines as ceded by Spain to the United States in 1898. At the time of a visit by General Leonard Wood in 1906, United States authorities learned that The Netherlands also claimed sovereignty over Palmas (or Miangas, as it was often called). By a "Special Agreement" signed January 23, 1925, the two states submitted to the Swiss jurist Max Huber, as arbitrator acting for the Permanent Court of Arbitration, the question "whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory."]
HUBER,Arbitrator: The United States, as successor to the rights of Spain over the Philippines, bases its title in the fmt place on discovery. The existence of sovereignty thus acquired is, in the American view, confied not merely by the most reliable cartographers and authors, but also by treaty, in particular by the Treaty of Munster, of 1648, to which Spain and the Netherlands are themselves Contracting Parties. As, according to the same argument, nothing has occurred of a nature, in international law, to cause the acquired title to disappear, this latter ti- tle was intact at the moment when, by the Treaty of December loth, 1898, Spain ceded the Philippines to the United States. In these circum- stances, it is, in the American view, unnecessary to establish facts show- ing the actual display of sovereignty precisely over the Island of Palmas
5. These are the former Japanese mandated islands (Micronesia) in the Pacific, held by the U.S. under Articles 77, 82, and 83 of the U.N. Charter. In 1975, a segment of Micronesia, the Commonwealth of the Northern Mariana Islands, entered into a commonwealth status with the
U.S. The future status of other elements of this island chain, the Marshalls, the Carolines, and the Palau Islands, was in the process of negotiations.
6.
The many Status of Forces Agreements entered into by the United States around the world are examples of this type of special ar- rangement. See chap. 10, irtfra.
7.
Most notably, the concepts of prescription and conquest. See paras. 4-3 6and e, irtfra.
Pam 27-161-1
(or Miangas). The United States Government fmally maintains that
Palmas (or Miangas) forms a geographical part of the Philippine group
and in virtue of the principle of contiguity belongs to the Power having
the sovereignty over the Philippines. .. .
Sovereignty in the relation between States signities independence. In-
dependence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State. The
development of the national organization of States during the last few
centuries and, as a corollary, the development of international law, have
established this principle of the exclusive competence of the State in
regard to its own territory in such a way as to make it the point of depar-
ture in settling most questions that concern intemational relations. . . .
Titles of acquisition of territorial sovereignty in present-day interna-
tional law are either based on an act of effective apprehension, such as
occupation or conquest, or, like cession, presuppose that the ceding and
the cessionary Power or at least one of them, have the faculty of effec-
tively disposing of the ceded territory. In the same way natural accretion
can only be conceived of as an accretion to a portion of territory where
there exists an actual sovereignty capable of extending to a spot which
falls within its sphere of activity. It seems therefore natural that an ele-
ment which is essential for the constitution of sovereignty should not be
lacking in its continuation. So true is this, that practice, as well as
doctrine, recognizes-though under different legal formulae and with
certain differences as to the conditions required-that the continuous
and peaceful display of temtorial sovereignty (peaceful in relation to
other States) is as good as a title. The growing insistence with which in-
ternational law, ever since the middle of the 18th century, has de-
manded that the occupation shall be effective would be inconceivable, if
effectiveness were required only for the act of acquisition and not
equally for the maintenance of the right. . . .
Territorial sovereignty, as has already been said, involves the ex- clusive right to display the activities of a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights which each state may claim for its na- tionals in foreign temtory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the state can- not fulfil this duty. Territorial sovereignty cannot limit itself to its nega- tive side, i.e., to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protec- tion of which international law is the guardian. . . .
The principle that continuous and peaceful display of the functions of state within a given region is a constituent element of temtorial sovereignty is not only based on the conditions of the formation of inde- pendent states and their boundaries (as shown by the experience of po'i litical history) as well as on an intemational jurisprudence and doctrine widely accepted; this principle has further been recognized in more than one federal state, where a jurisdiction is established in order to apply, as need arises, rules of intemational law to the interstate relations of the states members. . . . 8
Manifestations of temtorial sovereignty assume, it is true, different fom, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible
'with the maintenance of the right necessarily differ according as in- habited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the hlgh seas. It is true that neighbouring states may by convention fuc limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way each may prevent the other from any penetration of its territory. qe deliitation of hinterland may also be mentioned in this connec-tion. .. .
8. The arbitrator cited Rhode Island v. Massachusetts, 4 How. 591
(U.S. 1845), and Indiana v. Kentucky, 136 U.S. 479 (1890).
The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Article 111 of the said Treaty and therefore also those concerning the Island of Palmas (or Miangas).
It is evident that Spain could not transfer more rights than she herself
possessed. . . .
It is recognized that the United States communicated, on February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no reserva- tions were made by the latter in respect of the delimitation of the Philip- pines in Article 111. The question whether the silence of a thud Power, in regard to a treaty notified to it, can exercise any influence on the rights of this Power, or on those of the Powers signatories of the treaty, is a question the answer to which may depend on the nature of such rights. Whilst it is conceivable that a conventional delimitation duly notifed to third Powers and left without contestation on their part may have some be. on an inchoate title not supported by any actual dis- play of sovereignty, it would be entirely contrary to the principles laid down above as to territorial sovereignty to suppose that such sovereignty could be affected by the mere silence of the temtorial sovereign as regards a treaty which has been notified to him and which seems to dispose of a part of his territory. .. .
…In any case for the purpose of the present affair it may be admitted that the original title derived from discovery belonged to Spain. . . .
If the view most favourable to the American arguments is adopted- with every reservation as to the soundness of such view-that is to say, if we consider as positive law at the period in question the rule that dis- covery assuch, i.e., the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an "inchoate title," a jus adrem, to be com- pleted eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e., the moment of conclusion and coming into force of the Treaty of Paris.
As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called in- tertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act aeative of a right to the law in force at the time the right arises, de- mands that the existence of the right, in other words its continued madestation, shall follow the conditions required by the evolution of law. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of states members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to temtorial sovereignty, must be effective, that is, offer certain guarantees to other states and their nationals. It seems therefore incompatible with this rule of positive law that there should be regions which are neither under the effective sovereignty of a state, nor without a master, but which are reserved for the exclusive influence of one state, in virtue solely of a ti- tle of acquisition which is no longer recognized by existing law, even if such a title ever conferred territorial sovereignty. For these reasons, dis- covery alone, without any subsequent act, cannot at the present time suflice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment prop dy speakhg of sovereignty by one state in order that the sovereignty of mther may take its place dognot arise.
. . . Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered asincludedin the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the con- tinuous and peaceful display of authority by another state; for such dis- play may even over H prior, defitive title put forward by another state. Thispoint will be considered, when the Netherlands argument has been examined and the allegations of either party as to the display of
Pam 27-161-1
their authority can be compared. . . .
In the last place there remains to be considered title arising out of con-
tiguity. Although states have in certain circumstances maintained that
islands relatively close to their shores belonged to them in virtue of their
geographical situation, it is impossible to show the existence of a rule of
positive international law to the effect that islands situated outside ter-
ritorial waters should belong to a state from the mere fact that its territo-
ry forms the terra fma (nearest continent or island of considerable
size). Not only would it seem that there are no precedents sufficiently
frequent and sufficiently precise in their bearing to establish such a rule
of international law, but the alleged principle itself is by its very nature
so uncertain and contested that even governments of the same state
have on different occasions maintained contradictory opinions as to its
soundness. The principle of contiguity, in regard to islands, may not be
out of place when it is a question of allotting them to one state rather
than another, either by agreement between the parties, or by a decision
not necessarily based on law; but as a rule establishing ips0 jure the
presumption of sovereignty in favour of a particular state, this principle
would be in conflict with what has been said as to territorial sovereignty
and as to the necessary relation between the right to exclude other states
from a region and the duty to display therein the activities of a state. Nor
is this principle of contiguity admissible as a legal method of deciding
questions of territorial sovereignty; for it is wholly lacking in precision
and would in its application lead to arbitrary results. This would be
especially true in a case such as that of the island in question, which is
not relatively close to one single continent, but forms part of a large
archipelago in which strict delimitations between the different parts are
not naturally obvious. .. .
It is, however, to be observed that international arbitral jurisprudence
in disputes on territorial sovereignty (e.g., the award in the arbitration
between Italy and Switzerland concerning the Alpe Craivarola; Lafon-
taine, Pasicrisie international, p. 201-209) would seem to attribute
greater weight to-even isolated+cts of display of sovereignty than to
continuity of territory, even if such continuity is combined with the ex-
istence of natural boundaries. . . .
In the opinion of the Arbitrator the Netherlands have succeeded in
establishing the following facts:
The Island of Palmas (or Miangas) is identical with an island desig- nated by this or a similar name, which has formed, at least since 1700, successively a part of two of the native States of the Island of Sangi (Talautse Isles). a.
b.
These native States were from 1677 onwards connected with the East India Company, and thereby with the Netherlands, by contracts of suzerainty, which conferred upon the suzerain such powers as would justify his considering the vassal state as a part of his territory.
c.
Acts characteristic of state authority exercised either by the vassal state or by the suzerain Power in regard precisely to the Island of Palrnas (or Miangas) have been established as occurring at different epochs be- tween 1700 and 1898, as well as in the period between 1898 and 1906. The acts of indirect or direct display of Netherlands sovereignty at
Palrnas (or Miangas), especially in the 18th and early 19th centuries are
not numerous, and there are considerable gaps in the evidence of con-
tinuous display. But apart from the consideration that the manifestations
of sovereignty over a small and distant island, inhabited only by natives,
cannot be expected to be frequent, it is not necessary that the display of
sovereignty should go back to a very far distant period. It may suffice
that such display existed in 1898, and had already existed as continuous
and peaceful before that date long enough to enable any Power who
might have considered herself as possessing sovereignty over the island,
or having a claim to sovereignty, to have, according to local conditions, a
reasonable possibility for ascertainiing the existence of a state of things
contrary to her real or alleged rights. .. .
There is moreover no evidence which would establish any act of dis-
,play of sovereignty over the island by Spain or another Power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty.As to third Powers, the evidence submitted to the Tribunal does not disclose any trace of such action, at least from the middle of the
17th century onwards. These circumstances, together with the absence
of any evidence of a conflict between Spanish and Netherlands
authorities during more than two centuries as regards Palmas (or
Miangas), are an indirect proof of the exclusive display of Netherlands
sovereignty. . . .
The conditions of acquisition of sovereignty by the Netherlands are
therefore to be considered as fulfied. It remains now to be seen
whether the United States as successors of Spain are in a position to
bring forward an equivalent or stronger title. This is to be answered in
the negative.
The title of discovery, if it had not already been disposed of by the
Treaties of Munster and Utrecht, would, under the most favourable and .
most extensive interpretation, exist only ai an inchoate title, as a claim
to establish sovereignty by effective occupation. An inchoate title
however cannot prevail over a defhte title founded on continuous and
peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial sovereignty,
has no foundation in international law. . . .
The Netherlands title of sovereignty, acquired by continuous and
peaceful display of state authority during a long period of time going
probably back beyond the year 1700, therefore holds good. . . .
For these reasons the Arbitrator .. . decides that: The Island of
Palmas (or Miangas) forms in its entirety a part of Netherlands temto-
ry.
(1)
Discovery. In reaching his decision in this case,
M.
Huber spoke to both discovery and contiguity as methods of acquiring sovereignty over territory. With reference to the former, primary importance was placed on the "effectiveness" of the occupation of the temtory in question. This concept has been dealt with in several other cases. In the ClMperton Island arbitration, 10 involving a dispute between France and Mexico over territorial rights to a small and unpopulated Guano Island situated in the Pacific Ocean about 670 miles southwest of Mexico, the Arbitration, in holding for France, declared that, although the exercise of effective, exclusive authority ordinarily re- quired the establishment of an administration capable of securing respect for the sovereign's rights, this was not necessary in the case of uninhabited territory which is at the occupying state's absolute and undisputed disposition from the latter's fist appearance. In the Eastern Green- land case,11 an adjudication between Norway and Den- mark resulting from a Norwegian attempt to place por- tions of Eastern Greenland under its sovereignty, the Per- manent Court of International Justice declared: . .. a claim to sovereignty based not upon some particular act or title
such as a treaty of cession but merely upon continued display of authority, involves two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. 12
The Court then went on to say, however, that in the case of conflicting claims to sovereignty over areas in thinly
9. On this case, see Jessup, The Palmas Island Arbitration, 22 Am.
J. Int7 L. 735 (1928) Seegenerally, Y. Blum, Historic Titles in Interna- tional Law (1965).
Clipperton Island Arbitration, 2 U.N.R.I.A.A. 1105,26 Am. J. Int'l L. 390 (1931). 10.
11.
Legal Status of Eastern Greenland, [I9331 P.C.I.J., ser. A/B, No. 53.
12. Id.
populated or unsettled countries, the requirement of effective occupation is satisfied with very little in the way of an actual exercise of sovereign rights, provided that the other state cannot establish a superior claim. 13 Third state recognition of Danish sovereignty over the territory in question, by means of treaties, was also cited as a factor in the Court's decision in favor of Denmark. Thus,it would appear that in cases of conflicting territorial claims based on discovery, the arbitrator or Court will look most favorably on that state most "effectively occupying" the territory in question. Moreover, in thinly populated or un- settled areas, this degree of occupation may be minimal. 14
(2) Contiguity. As was noted, the arbitrator in the Island of Palmas case 1s also spoke to contiguity as a means by which to acquire sovereignty over territory. In doing so, however, he declared it was impossible to show the existence of a rule of positive international law which stood for the proposition that islands situated outside the territorial waters of any state should be considered to be a part of the territory of the state whose land mass con- stitutes the terraflrma (nearest continent or island of con- siderable size). 16 Thus, the title of contiguity, understood as a basis of territorial sovereignty, had, in his opinion, no foundation in international law. This rejection of the con- cept of contiguity is generally accepted and acknowledged by international publicists. However, there are those who contend the principle does possess some validity as an in- ternational norm. Lauterpacht submits that the Island of Palmas award:
…related only to islands; that, in a sense, it was obiler inasmuch as the claim of the United States wasnot based mainly on contiguity; that the arbitrator admitted that a group of islands may form 'in law a unit, and that the fate of the principal part may involve the rest'; and that he held in effect, with regard to occupation of territories which form a geographical unit, that the appropriation must be presumed, in the in- itial stages, to extend to the whole unit (a rule which is one of the main aspects of the doctrine of contiguity) and that the only consideration to which contiguity must cede is that of actual adverse display of sovereignty by the competing state. l7
Even in light of Lauterpacht's favorable comments regarding contiguity, however, it would appear that the concept is generally viewed, at best, as a minimally effec- tive means of territorial acquisition.
b. Prescription. Prescription, as a title to territory, is ill-defined, and some writers deny its recognition altogether. International law does appear, however, to admit that, by a process analogous to the prescription of municipal law, long possession may operate either to confm the exist-
For &le, a claim in the form of a valid treaty of cession. 13.
14.
Territorial conflicts of this nature still occur, as evidenced by the controversy between the former Republic of Viet Nam and the Peo- ples' Republic of China in 1974 regarding the Spratley Islands in the South China Sea.
1s. See page 4-2, supra.
16.
See Page 4-4, supra.
17.
Lauterpacht, Sovereign& over Submarine Areas, (19501 Brit.
Y.B. Int7 L. 376, 428-29 (footnotes omitted).
ence of a title the precise origin of which cannot be shown or to extinguish the prior title of another sovereign. In the absence of definite evidence that the possession began as a wrongful assumption of a sovereignty already belonging to another state, peaceful and continuous possession raises a presumption that the original assumption of sovereignty was in conformity with international law and has the effect of consolidating the claimant's title. Possession of territory consists in the exercise or display of state authority in or in regard to the territory in question. In the Island of Palmas Arbitration, M. Huber spoke of the acquisition of sovereignty by way of continuous and peaceful display of state authority as 'so-called prescription' and also said that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is as good as a title. Again, even in the Eastern Greenland case, which is commonly referred to as the leading case on 'oc-cupation,' the Court emphasized that Denmark did not
,found her claim upon any 'particular act of occupation' but alleged a title 'founded on the peaceful and continuous display of state authority,' and it awarded sovereignty to Denmark on the basis of the latter's display of state authority with regard to the whole of Greenland during successive periods of history. In fact, it is neither very easy nor very necessary to draw a precise line between an an-cient title derived from an original 'occupation' and one founded simply on long and peaceful possession.
(1)
In the Island of Palmas case, M. Huber emphasized that proof of an original taking of possession is not enough and that possession must be maintained by display of state authority. On the other hand, both he in that case and the Court in the Eastern Greenland case pointed out that proof of peaceful possession in the most recent period before the rival claimant attempts to assume the sovereignty is sufficient by itself to establish a title to the territory-without proof of a long historic possession. The truth seems to be that peaceful display of state authority is in itself a valid title to sovereignty and that proof either of an original act of occupation or of the long duration of a display of state authority is important pri- marily as confirming the peaceful and nonadverse character of the possession. Peaceful display of state authority over a long period excludes the existence of any valid prior title in another state and makes it unnecessary to rely upon the principle of extinctive prescription by long adverse possession.
(2)
The principle of extinctive. prescription, under which the passage of time operates ultimately to bar the right of a prior owner to pursue his claim against one who, having wrongfully displaced him, has continued for a long time in adverse possession, is recognized in almost all systems of municipal law, and it appears equally to be ad- mitted by international law. It is debatable as to exactly how far diplomatic and other paper forms of protest by the dispossessed state sateto 'disturb' the possession of the occupying state, so as to prevent the latter from acquiring
Pam 27-161-1
a title by prescription. Paper protests may undoubtedly be effective for a certain length of time to preserve the claim of the dispossessed state. lf,however, the latter makes no effort to carry its protests further, by referring the case to the United Nations or by using other remedies that may be open to it, paper protests will ultimately be of no avail to stop the operation of prescription. 18 Thus, it was largely for the purpose of avoiding any risk of the ex- tinguishment of its claims by prescription that in 1955 the United Kmgdom filed a unilateral application with the
Cession. Cession of temtory involves the transfer of sovereignty by means of an agreement between the ceding and acquiring states. It is a derivative mode of territorial acquisition. The cession may comprise a portion only of the territory of the ceding state, or it may comprise the totality of its territory. In this latter situation, as for exam- ple, in the treaty of August 22, 1910, between Japan and Korea, the ceding state disappears and becomes merged into the acquiring state. The consent of the population of ceded territory has generally not been considered essential to the validity of the cession; however, it should be noted that the last instances of cession were frequently condi- tioned upon the will of the people as expressed in a plebiscite. 21 Moreover, acquisition of territorial sovereignty by means of cession is now generally con- sidered to be a thing of the past, a concept no long applica- ble to today's international community. Accretion. Accretion is the expansion of a state's ter- ritory by operation of nature; that is, by the gradual shift- ing of the course of a river, the recession of the sea, or the building up of river deltas. This concept is generally free of controversy and is mostly spoken to in terms of land, river, and lake boundaries. 20 J., challenging alleged encroachment by Argentina and Chile on the Falkland Islands Dependencies. 19 I.C.
c.
d.
e.
Conquest. With the formation of the U.N.and the specific prohibitions against the use of force contained within its Charter, 22 war has been outlawed as a legiti- mate instrument of national policy. Consequentially, logic would dictate that a state can no longer acquire sovereignty over territory by conquering an enemy and declaring an intent to annex this state. Reality, however, does not allow for such legal simplicity. Despite the universally accepted prohibition against the use of force, conflict still occurs and often results in a change in ter-ritorial sovereignty of an undefined nature. Moreover, this shift in territorial control may occur as a result of
'8. J. Brierly. The Law of Nations 167-71 (6th ed. Waldock 1963).
19. The dispute between the U.K.and Argentina over the Falkland Islands continues to exist. See The Washiiton Post, Dec. 10, 1972, 4 G, at 1, col. 1. Likewise, Arab states continue to lodge official protects in the U.N. with regard to the Israeli occupation of certain Arab territo-
ry.
1 G.Hackworth, Digest of In&?rMHoMI Law 421-22 (1940). 20.
See 2 M. Whiteman, Digest of International Law, 1084-85 (1963) (hereinafter cited as 2 M. Whireman).
21.
22. Specifically, U.N.Charter Art. 2, paras 3 and 4.
either an overt invasion of another state's territory or from what might perhaps be regarded as a legitimate act of self-defense. Two examples suffice to illustrate these points.
(1) The status of Goa. On December 18, 1961, In- dian troops invaded the territories of Goa, Damao, and Diu, comprising the Portuguese State of India. In a letter to the President of the Security Council, the Permanent Representative of Portugal requested him ". . . to con- vene the Security Councii immediately to put a stop to the condemnable act of aggression of the Indian Union, or- dering an immediate cease-frre and the withdrawal forth- with . . . of all the invading forces of the Indian Union. " 23 The following excerpts are from the Security Council's debate.
Mr. ha [India]: . . . I have already said that this is a colonial question, in the sense that part of our country is illegally occupied by right of con- quest by the Portuguese. The fact that they have occupied it for 450 years is of no consequence because, during nearly 425 or 430 years of that period we really had no chance to do anything bemuse we were under colonial domination ourselves. But during the last fourteen years, from the very day when we became independent, we have not ceased to demand the return of the peoples under illegal domination to their own countrymen, to share their independence, their march forward to their destiny. I would like to put this matter very clearly before the Council: that Portugal has no sovereign right over this territory. There is no legal frontier-there can be no legal frontierdetween India and Goa. And since the whole occupation is illegal as an issue–it started in an illegal
manner, it continues to be illegal today and it is even more illegal in the
light of resolution 1514 0[I5 GAOR, Supp. 16(A/4684), at 66
@ec. 14, 1960), entitled "Declaration on the Granting of Independ-
ence to Colonial Countries and Peoples"]-there can be no question
of aggression against your own frontier, pl against your own people,
whom you want to liberale.
That is the situation that we have to face. If any narrow-minded legalistic considerations-considerations arising from international law as written by European law writers–should arise, these writers were, after all, brought up in the atmosphere of colonialism. I pay all respect due to Grotius, who is supposed to be the father of international law, and we accept many tenets of international law. They are certainly regulating international life today. But the tenet which . . . is quoted in support of colonial Powers having sovereign rights over territories which they won by conquest in Asia and Africa is no longer acceptable. It is the European concept and it must die. It is time, in the twentieth century, that it died. . . .
Mr. Garin [Portugal]: . . . Indian attempts to annex the territories of the other sovereignties in the neighbourhood cannot fmd any legal justif~cation. Such attempts could be legitimized only by the other sovereignties concerned, if they agreed to a formal transfer of their ter- ritories, but only if the transfer coqld be voluntary, never compulsory, much less by means of an armed aggression. It matters little whether those other sovereignties are held by whites or coloured people or, as in the case of the Portuguese State of India, by both whites and coloured people together. It likewise matters little if the temtories belonging to those other sovereignties are large or small in size. The principle of sovereignty ought to be respected. The Indian Union has not done this in respect of the Portuguese State of India and is, therefore, guilty 0f.a base breach of international law.
It has been said here that international law in its present form was made by Europeans. I submit that, so long as it is not replaced, it must be accepted and followed by civilized nations, and I am not aware that international law relating to sovereignty has been changed so far . . .
Mr. Stevenson [United States]: . . . [Wlhat is at stake today is not co-
23. U.N. Doc. S/5030 (1961).
Pam 27-161-1
lonialism; it is a bold violation of one of the most basic principles in the United Nations Charter, stated in these words from Article 2, paragraph
4:
AU Members shall refrain in their international relations from the threat or use of force against the temtorial integrity or political inde- pendence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
We realize fully the depths of the differences between India and Por- tugal concerning the future of Goa. We realize that India maintains that Goa by right should belong to India. Doubtless India would hold, therefore, that its action is aimed at a just end. But, if our Charter means anything, it means that States are obligated to renounce the use of force, are obligated to seek a solution of their differences by peaceful means, are obligated to utilize the procedures of the United Nations when other peaceful means have failed. .. . 24
At the end of the Security Council debate on December 18, 1961, Ceylon, Liberia, and the United Arab Republic submitted a draft resolution which cited G.A. Res. 1514, "Declaration on the Granting of Independence to Co- lonial Countries and Peoples," 25 rejected the Portuguese complaint of Indian aggression, and called upon Portugal to terminate hostile action and to cooperate with India in the liquidation of her colonial possessions in India. 26 This resolution was defeated by a vote of 4 in favor and 7 against. France, Turkey, the United Kingdom, and the United States then introduced a draft resolution which recalled the obligation of members under Article 2 of the Charter to settle disputes by peaceful means, called for an immediate cessation of hostilities, called upon India to withdraw its forces, urged the parties to work out a perma- nent solution of the problem by peaceful means, and re- quested the Secretary-General to provide appropriate assistance. 27 Although a majority of the Council voted in favor of this resolution, it was vetoed by the Soviet Union. The territory in question remains in Indian hands. 28
(2) The 1967 Middle East War. International publicists disagree as to whether the military action under- taken by Israel in 1967 constituted a "legitimate" act of self-defense in terms of the currently existing international norms. 29 For purposes of this chapter, however, this question is not the primary point of concern. Instead, it focuses attention on the issue of whether a state may ex- tend its sovereignty over territory through the use of force which is "lawful" under the U.N. Charter; that is, armed measures taken in "self-defense." Israel's success in the Six Day War of 1967 resulted in its military occupation of substantial territory: the Sinai, the Gaza Strip, parts of
See U.N. Doc. S/5033 (1961). See U.N. Doc. S/5032 (1961). 15 U.N. GAOR, Supp. 16 at 66, U.N. Doc. N4684 (1961). 24.
16 U.N. SCOR, 987 meeting, 10-11, 16, 988th meeting 7-8 (1961).
25.
26.
27.
Wright, The Goo Incident, 56 Am. J. Int'l L. 617 (1962). 28.
29.
See J. Stone, Legal Controls of International Corlflct, 244, n. 8 (1955); Wright, The Cuban Quarantine, 57 Am. J. Int'l L. 546, 559 (1963); McDougal, The Soviet-Cuban Quarantine and Sev-Defense, 57
Am. J. Int'l L. 597-98 (1963); and Henkin, Force, Intervention and Neutrali~ in Contemporaty International Law, Proc., Am. Soc. Int'l L.
147, 150 (1963).
Jerusalem, portions of Jordan on the West Bank of the
Jordan River, and the Syrian Golan Heights. In Security
Council Resolution 242, adopted November 22, 1967,
the Council called for the withdrawal of Israel armed
forces from these territories. 30 For a number of reasons,
political as well as military, this withdrawal did not occur.
Moreover, following the 1967 war, Israel took certain
measures to accomplish the "administrative unification"
of Jerusalem. Reacting quickly to this development, the
Genera Assembly, by a vote of 99-0-20, adopted the
following resolution:
The General Assembly, Deeply concernedat the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City,
Considers that these measures are invalid; 1.
2.
Calls upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem;
3.
Requests the Secretary-General to report to the General Assembly and the Security Council on the situation and the implementation of the present resolution not later than one week from its adoption. 31
As of 1977, Israel continues to both occupy most of the territory taken by its military forces in 1967 and to ad- minister the City of Jerusalem.
(3) The purpose of the discussion of these two events, is not to assess blame or to adjudge the legality of events examined. They are offered only as topical exam- ples of what might be viewed as territorial acquisition by conquest. The legal status of the territory in question will be dependent upon whether other states agree or refuse to recognize "title" to the land occupied by India and Israel. Moreover, these actions serve to demonstrate to the mili- tary attorney the interdependent nature of the two major components of public international law, the Law of Peace and Use of Force. That is, the legality of acquisition of sovereignty over territory by conquest can be fully dis-cussed only if currently existing conflict management norms are taken into consideration.
J: The Polar Regions. Although various states have at- tempted to claim sovereignty over portions of the polar regions, 32 the United States refuses to recognize these claims. In a note dated June 16, 1955, to the Secretary of State, the Australian Ambassador at Washington stated:
I have the honour to refer to my letter of 1 lth March, 1949, deposit- ing with the Government of the United States the Australian Instru- ment of Ratification of the Convention of the World Meteorological Organization signed at Washington, D.C. on 11th October, 1947.
I wish to inform you that the Australian Government has now decided, by virtue of its membership of the World Meteorological
30.
S.C. Res. 242, SCOR, Resolutions and Decisions of the ,Security Council at 8 (22 Nov. 1967).
31.
G.A. Res. 2253, U.N. GAOR, 5th Emergency Special Session, Annexes and Resolutions, Supp 1, at 4, U.N. Doc. M6798 (1967); 57 Dep't State Bull. 113 (1967).
32.
States have attempted to claim sovereignty over portions of the polar regions on the basis of discovery, contiguity, and the polar sector theory. For a discussion of these claims and a concise explanation of the polar sector theory, See W. Friedmann, 0.Lissitzyn, & R. Pugh, Inter- national Law 458-63 (1969) (hereinafter cited as 2 W. Friedman).
Pam 27-161-1
Organization, to apply the Convention to the Australian Antarctic Ter- ritory which does not maintain its own meteorological service.
In his reply dated January 30, 1956, the Secretary of
State, after acknowledging receipt of the Australian Am-
bassador's note and summarizing its contents, stated:
My Government wishes to point out, as it has on previous occasions, that it does not recognize any claims so far advanced in the Antarctic and reserves all nghts accruipg to the United States out of activities of na- tionals of the United States in the area.
The American Embassy in Santiago delivered the follow-
ing aide-memoire to the Foreign Minister of Chile on
August 2, 1955:
The Government of the United States of America notes Chilean law 11,846 was promulgated on June 17, 1955. That law purports to incor- porate into Chilean provincial administration those areas claimed by Chile in the Antarctic. The Government of the United States wishes to reiterate that it has recognized no claims advanced with respect to the Antarctic by other countries and that it reserves all rights of the United States with respect to the area.
The Department of State replied in like manner on November 5, 1956, to a Chilean memorandum transmit- ting a copy of a Decree implementing the above law. On May 14, 1958, the Legal Advisor of the Department of State, Loftus Becker, said in the course of testimony before the Special Committee on Space and Astronautics of the United States Senate:
.. .There [in Antarctica], for many, many years, the United States has been engaged in activities which under established principles of in- ternational law, without any question whatsoever, created rights upon which the United States would be justified in asserting territorial claims. I mean by that, claims to sovereignty over one or more areas of the Ant- arctic.
Notwithstanding this fact, the United States has not asserted any claim of sovereignty over any portion of Antarctica, although the United States has, at the same time, made it perfectly plain that it did not recog- nize any such claims made by other States.
It is the position of the United States Government, and one well founded in international law, that the fact that the United States has not based a claim of sovereignty over one or more areas of Antarctica, upon the basis of the activities it has engaged in there, in no way derogates from the rights that were established by its activities. 33
Influenced perhaps by the momentum generated during the International Geophysical Year of 1957-58, during which scientific expeditions from many countries con- ducted research and experiments in Antarctica without regard to questions of territorial sovereignty, a conference called by the United States of those states having substan- tial interests in that continent succeeded in producing the Antarctic Treaty, signed on December 1, 1959. 34 The most important provision of the treaty states that Ant- arctica "shall be used for peaceful purposes only" (Art. I), and to that end, the treaty prohibits military installa- tions, maneuvers, and weapons tests, including nuclear explosions of all kinds. The free exchange of scientific in- formation and personnel is provided for (Art. ID),and provision is made for the meeting at suitable intervals of
33.
2 ~T~hiteman,
supra, note 20 at 1250-53.
34.
[I9591 12 U.S.T. 794, 402 U.N.T.S. 71.
representatives of contracting states in order to formulate and recommend measures in furtherance of the objectives of the treaty (Art. M). In addition to other articles deal- ing with mutual inspection of Antarctic activities and in- stallations by the contracting parties and with the exercise of jurisdiction over certain Antarctic personnel, the treaty provides in Article IV:
1. Nothing contained in the present Treaty shall be interpreted as:
(a)
a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;
(b)
a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
(c)
prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.
2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in
-Antarctica. No new claim, nor enlargement of an existing claim, to ter- ritorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.
The Treaty contains no general provision governing juris- diction over persons in Antarctica. 35 It entered into force on June 23,196 1. As of the beginning of 1975, the parties to the treaty were: Argentina, Australia, Belgium, Chile, Czechoslovakia, Denmark, France, Japan, Netherlands, New Zealand, Norway, Poland, Romania, South Africa, Union of Soviet Socialist Republics, United Kingdom, and the United States. The Treaty may be amended at any time by unanimous vote of the contracting parties. At the expiration of thirty years from the date of entry into force, any of the original contracting parties may call for a con- ference of all contracting parties. The conference may amend the Treaty by majority vote. Failure to ratify any amendment constitutes withdrawal from the Treaty.
g, The Moon and Other Celestial Bodies. With the ad- vent of space travel and exploration, still another area of potential jurisdictional dispute has evolved. In an attempt to prevent such conflicts, early efforts have been made to
regulate state activities in this area. Of primary importance is the 1967 Outer Space Treaty 36 of which the most im-portant articles are the following:
Art. 1. The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the
3s. The failure of the treaty to include general jurisdictional provi- sions has produced interesting results. In July of 1970, Mario Escamilla shot and killed a fellow U.S. government researcher on Arctic ice island T-3, a 28-mile-square ice slab floating in the Arctic. Defense attorneys argued the U.S. had no jurisdiction to try Escarnilla, while the Justice Department asserted the crime was covered by U.S. maritime jurisdic- tion, 18 U.S.C.A. 8 7(1) (see n. 174, irlfra). The Fourth Circuit, in overturning Escamilla's original conviction, decided the case without speaking to the issue of jurisdiction. The proposed Federal Criminal Code now under consideration deals with this type of situation, Criminal Justice Reform Act of 1975, 8 204.
36. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205.
Pam 27-161-1
interests of all countries, irrespective of their degree of economic
or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be
free for exploration and use by all States without discrimination of any
kind, on a basis of equality and in accordance with international law, and
there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, in-
cluding the moon and other celestial bodies, and States shall facilitate
and encourage international co-operation in such investigation.
Art. 2. Outer space, including the moon and other celestial bodies, is
not subject to national appropriation by claim of sovereignty, by means
of use or occupation, or by any other means.
Art. 3. States Parties to the Treaty shall carry on activities in the ex-
ploration and use of outer space, including the moon and other celestial
bodies, in accordance with international law, including the Charter of
the United Nations, in the interest of maintaining international peace
and security and promoting international co-operation and understand-
&.
Art. 4. States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear wapons or any other kinds
of weapons of mass destruction, install such weapons on celestial bodies,
or station such weapons in outer space in any other manner.
The moon and other celestial bodies shall be used by all States Parties
to the Treaty exclusively for peaceful purposes. The establishment of
military bases, installations, and fortifications, the testing of any type of
weapons and the conduct of military maneuvers on celestial bodies shall
be forbidden. The use of military personnel for scientific research or for
any other peaceful purposes shall not be prohibited. The use of any
equipment or facility necessary for peaceful exploration of the moon and
other celestial bodies shall also not be prohibited.
Art. 5. States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle.
In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties.
States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the lie or health of astronauts.
Art. 6. States Parties to the Treaty shall bear international respon- sibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by govern- mental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall re- quire authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, includ- ing the moon and other celestial bodies, by an international organiza- tion, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organhtion.
Art. 7. Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally Liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, includ- ing the moon and other celestial bodies.
Art. 8. A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space
or on a celestial body. Ownership of objects launched into outer space,
including objects landed or constructed on a celestial body, and of their
component parts, is not affected by their presence in outer space or on a
celestial body or by their return to the Earth. Such objects or component
parts found beyond the limits of the State Party to the Treaty on whose
registry they are carried shall be returned to that State Party, which
shall, upon request, furnish identifying data prior to their return.
Art. 12. AU stations, installations, equipment and space vehicles on
the moon and other celestial bodies shall be open to representatives of
other States Parties to the Treaty on a basis of reciprocity. Such repre-
sentatives shall give reasonable advance notice of a projected visit, in
order that appropriate consultations may be held and that maximum
precautions may be taken to assure safety and to avoid interference with
normal operations in the facility to be visited.
Art. 13. The provisions of this Treaty shall apply to the activities of
States Parties to the Treaty in the exploration and use of outer space, in-
cluding the moon and other celestial bodies, whether such activities are
carried on by a single State Party to the Treaty or jointly with other
States, including cases where they are carried on within the framework
of internationalintergovernmental organizations.
Any practical questions arising in connection with activities carried on
by international intergovernmental organizations in the exploration and
use of outer space, including the moon and other celestial bodies, shall
be resolved by the States Parties to the Treaty either with the appropri-
ate international organization or with one or more States members of
that international organization, which are Parties to this Treaty.
The Treaty incorporates the principles enunciated in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space. 37 The major difference between the Treaty and the Declara- tion is the inclusion in the Treaty of articles concerning the military uses of space and providing for mutual inspection of facilities on the moon and other celestial bodies. 38
(1)
There is no generally accepted boundary be- tween air space and outer space. Although the U.N. Com- mittee on the Peaceful Uses of Outer Space placed the problem of such a boundary on its agenda, it has done lit- tle work on it. Scholars and commentators have discussed a wide variety of possible boundaries. The physical charac- teristics of space and the atmosphere offer no sure guid- ance, but there is a tendency to agree that the boundary, if one is necessary, should be somewhere between the highest altitude at which aircraft dependent on the reac- tions of the air for lift and control can operate and the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air, roughly between 40 and 90 miles above the surface of the earth. 39
(2)
A more recent treaty, of considerable impor- tance to the United States, is The Agreement on the
37. G.A. Res. 1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515 (1963).
38.
See general!^, Demblig and Arons, The Evolution of the Outer Space Treaty, 33 J. Air L. & Corn. 419 (1967).
39.
See M. McDougal, H. Laswell & I. Vlasio, Law and Public Order in Space 323-59 (1963) (hereinafter cited as M. McDougal, Space Law), and J. Fawcett, International Law and the Uses of Outer Space 20-24 (1968). For a Soviet view, see Zhukov, Space Flights and the Problem of the Altitude Frontier of Sovereign&, [I9661 Y.B. of Air and Space L. 485.
Pam 27-161-1
Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space. 40 4-4. Extent of Territory. a. Having examined the various means by which states may acquire territory over which to exercise jurisdiction, attention must next be directed toward the extent of this territory. Such an analysis generally entails an examination of land, river, and lake boundaries. In this regard, spedic provisions of Restatement, Second, serve as pronouncements of the relevant international legal norms.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
4 12. Land, River, and Lake Boundaries
(1)
The boundary separating the land areas of two states is deter- mined by acts of the states expressing their consent to its location.
(2)
Unless consent to a different rule has been expressed,
(a)
when the boundary between two states is a navigable river, its location is the middle of the channel of navigation;
(b)
when the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake.
Comment
a.
Land boundaries. . . . Many boundary disputes have been settled by peaceful means including, in particular, boundary conventions and arbitration, as in the case of the continental land boundaries of the United States. Because, in a dority of cases,the location of land bound- aries between states is defmed by agreement (frequently as interpreted by arbitration) almost no smc principles of international law have developed in this field.
b.
Thalweg doctrine. The rule locating the boundary in the middle of the channel of navigation rather than the middle of the stream is called the "thalweg" doctrine. See Louisiana v. Miissippi, 202 U.S. 1, 26 S.Ct. 408,50 L.Ed.913 (1906); New Jersey v. Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed.847 (1934).
c.
Effect of nanrral shifr. In disputes between the states of the United States, the Supreme Court has applied the distinction between accretion and avulsion, under which the boundary between two states shifts with the gradual shifting of the channel caused by erosion and deposit of alluvium (accretion) but does not shift when the river is suddenly diverted from the previous channel (avulsion). See Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396,36 L.Ed.186; Arkansasv. Tennessee, 246
U.S. 158, 38 S.Ct. 301, 62 L.Ed.638 (1918); 12 Am.J. Int'l L. 648 (1918). . . .
Although, as noted in the Comment to Q 12, the majority of land boundaries are defined by srnic agreement be- tween the states concerned, disputes still arise concerning the proper interpretation or application of such agree- ments. 41 One such boundary dispute of long standing in- volved the U.S. and Mexico. Inasmuch as this dispute in- volves several of the concepts spoken to in § 12 of the Restatement, it is of particular interest.
b. In the Treaty of Guadalupe Hidalgo of 1848 and the Gadsden Treaty of 1953, the United States and Mex- ico attempted to fix the boundary line between their respective territories. Because the Colorado and Rio Grande Rivers constantly shifted their channels, the two countries agreed in 1884 that the dividingline should con- tinue to "follow the center of the normal channel" of
40.
19 U.S.T. 7570; T.I.A.S. 6599; 672 U.N.T.S. 119.
41.
Seecase Concerning the Temple of Preah Vihear, (19621 I.C.J.
6.
each river, "notwithstanding any alterations in the banks
or in the course of those rivers, provided that such altera-
tions be effected by natural causes through the slow and
gradual erosion and deposit of alluvium. .. ." Other
changes brought about by the force of the current, such as
the sudden abandonment of an existing river bed and the
opening of a new one ("avulsion"), were to produce no
change in the dividmg line, which would continue to
follow the middle of the original channel bed, even
though this should become wholly dry or obstructed by
deposits. 42 In 1889, an International Boundary Commis-
sion was created by agreements between the United States
and Mexico and charged with the task of deciding whether
changes in the course of the Colorado River and the Rio
Grande had occurred "through avulsion or erosion" for
the purposes of the 1884 treaty. 43 In 1895 a dispute arose
over a tract of land in El Paso, Texas, known as "El
Charnixal." Each country claimed the entire tract. The
Boundary Commission was unable to agree on the bound-
ary line, and a convention was signed by the two govern-
ments on June 24, 1910, establishing a commission to
"decide solely and exclusively as to whether the interna-
tional title to the Chamizal tract is in the United States of
America or Mexico." 44 In rendering the award, the
Presiding Commissioner of the arbitral tribunal, with the
Mexican Commissioner concurring in part, said:
. .. [Tlhe Presiding Commissioner and the Mexican Commissioner are
of the opinion that the accretions which occurred in the Chamizal tract
up to the time of the great flood in 1864 should be awarded to the
United States of America, and that inasmuch as the changes which oc-
curred in that year did not constitute slow and gradual erosion within the
meaning of the Convention of 1884, the balance of the tract should be
awarded to Mexico. 45
The American Commissioner dissented. At the session of the Commission in which the award was read, the agent for the United States protested against the decision and award, inter alia, on the following grounds:
1. Because it departs from the terms of submission in the following particulars:
a.
Because in dividing the Chamizal tract is assumes to decide a question not submitted to the commission by the convention of 1910 and a question the commission was not asked to decide by either party at any stage of the proceedings;
b.
Because it fails to apply the standard prescribed by the Treaty of 1884;
c.
Because it applied to the determination of the issue of erosion or avulsion a ruling or principle not authorized by the terms of the submis- sion or by the principles of international law or embraced in any of the treaties or conventions existing between the United States and Mexico;
d.
Because it departs from the jurisdictional provision of the Treaty of 1889 creating the International Boundary Commission. 46
Shortly after the Commission had adjourned, the United States notified Mexico ". . . [fJor the reasons set forth by
42.
24 Stat. 101 1, 1 Malloy 1159.
43.
26 Stat. 1512, 1 Malloy 1167.
44.
36 Stat. 2481, 2483.
45.
Charnizal Arbitration (tTnited States v. Mexico), [I91 1) For Re1 U.S. 572, 586 (Int'l Boundary Commission 191 1).
46.
Id. at 597-98.
Pam 27-161-1
the American commissioner in his dissenting opinion, and by the American agent in his suggestion of protest, [it did] not accept this award as valid or binding." 47 The United States suggested the negotiation of a new boundary con- vention to settle the matter, but Mexico declined on the ground that the matter had been fully adjudicated and that there remained only the admittedly difficult task of relocating the line of 1864. Discussion of the matter was terminated because of disturbed conditions in Mexico, and no further action was taken until the conclusion in 1963 of a treaty by which the disputed territory was divided between the two countries. 48 The agreement en- tered into force on January 14, 1964.49 4-5. Scope of Territorial Jurisdiction. a. As was noted earlier in this chapter, jurisdiction is dependent upon the capacity to both prescribe and enforce rules of law. 50 It is essential to keep this fact in mind when examining the scope of territorial jurisdiction. With the increasing facility of communication and transportation, the opportunity for committing crimes, the constituent elements of which oc-cur in more than one state, have grown apace. Ac- cordingly, the jurisdiction of crime founded upon the ter- ritorial principle has been expanded in several ways. First, national legislation and jurisprudence have developed the subjective territorial principle, which establishes the juris- diction of the state to prosecute and punish for crime com- menced within the state but completed or consummated abroad. Secondly, there has, over the years, evolved the so-called objective territorial principle, which establishes the jurisdiction of the state to prosecute and punish for crime commenced outside of the state but consummated within its territory. 51 These concepts are reflected in the following provisions of the Restatement.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
517. Jurisdiction to Prescribe with Respect to Conduct, Thing, Status, or Other Interest within Territory
A state has jurisdiction to prescribe a rule of law
(a)
attaching legal consequences to conduct that occurs within its territory, whether or not such consequences are determined by the effects of the conduct outside the temtory, and
(b)
relating to a thing located, or a status or other interest localized, in its territory.
518. Jurisdiction to Prescribe with Rapt to Effect within Territory
A state has jurisdiction to prescribe a rule of law attaching legal conse- quences to conduct that occurs outside its territory and causes an effect within its territory, if either
' 47. Id.
15 U.S.T. 21, T.I.A.S. 5515, 505 U.N.T.S. 185. 48.
49.
See generally, 3 M. Whiteman, Digest of International Law 680-99 (1973) (hereinafter cited as 3 M. Whiteman). (1964). For a dis-cussion of the controversy from a Mexican point of view, see Antonio Gomez Robledo, Mexico y el Arbitrqje Inter~cio~I,
161-293 (1965). On international boundaries, see generally 3 M. Whiteman, supra. at 1-871.
50. See Page 4-1, supra.
51. See, Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am. J. Int'l L. Supp. 435, 484, 487-88 (1935) (hereinafter cited as Harvard Research, Criminal Jurisdiction).
(i) the conduct and its effect are constituent elements of ac-tivity to which the rule applies; (i) the effect within the territory is substantial; (iii) it occurs as a direct and foreseeable result of the con- duct outside the temtory; and (iv) the rule is not inconsistent with the principles of justice generally remgnized by states that have reasonably developed legal systems. the conduct and its effect are generally recognized as consti- tuent elements of a crime or tort under the law of states that have reasonably developed legal systems, or (a)
(b)
b.
The subjective territorial principle, embodied in Q 17 of Restatement, Second, has generated very little con- troversy. The objective territorial concept of Q 18, however, has consistently been criticized as an invalid ex- tension of the territorial base of jurisdiction. Nearly all European publicists have been critical of the Restate- ment's notion of extraterritorial application of a state's laws to its citizens. The European Advisory Committee on the Restatement criticized the Restatement rule of ex- traterritorial jurisdiction in the following manner:
In our view, the exercise of jurisdiction based on territory is not justified in cases where all that has occurred within the territory is the effects of certain conduct and not at least part of the conduct itself. 52
c.
As noted, the objective territorial principle is often said to apply where the offense "takes effect" or "pro- duces its effects" in the territory. In relations to elemen- tary cases of direct physical injury, such as homicide, this is only natural, for here the "effect" is an essential ingre- dient of the crime. Once out of the sphere of direct physi- cal consequences, however, the "effects" formula is most difficult to apply. Here, the effects within the territory may be fairly remote. Thus, the extension of the notion of effects, without qualification, from the simple cases of direct physical injury to cases such as defamation and sedi- tion, introduces a certain degree of ambiguity into the basis of the doctrine.
d.
Most of the major problems regarding the scope of territorial jurisdiction and conflicts between the territorial jurisdiction of several states have occurred in commercial and antitrust matters, i.e., basically concerns of private in- ternational law. 53 The reader should also be alert to the fact that though a state may prescribe rules against conduct which occurs outside of its territory, it is, due to the widespread opposition to the objective territorial concept, most mcult to enforce these norms on the basis of ter- ritorial jurisdiction. Effective enforcement thus depends generally on whether the state actually has custody of the individual or property in question. 4-6. Extradition. a. Basic Principles. Extradition is the surrender of an individual accused or convicted of a crime by the state within whose territory he is found to the state under whose laws he is alleged to have committed or to
52. Riedweg, The Exrra-Territorial Application of Restrictive Trade Legislatio~urisdiction and International Law, oNAL
INTERNATI LAW A~~OC~ATION,
Report of the FYw-First Cogerence, 357, 372-73, (1 964).
53. SeeU.S. v. Aluminum Co. of America, 148 F.2d 416 (1945), and the cases cites therein. See also, Pacific Seafarers, Inc. v. Pacific Far East Lie, Inc., 404 F.2d 804 (1968), cert. denied, 89 S.Ct. 872 (1969).
have been convicted of the crime. Until the nineteenth century, the extradition of fugitives was rare and was a matter of sovereign discretion rather than of obligation. With the dramatic improvements in transportation in the nineteenth century, however, the number of criminals fleeing to foreign states increased, and states began to con- clude bilateral treaties providing for their extradition. In Factor v. Laubenheimer, 54 the court noted that
. . . the principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its om con- stitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled . . .the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.
In fact, the municipal law of many states prevents arrest and extradition of a fugitive except pursuant to a treaty operating as internal law or a statute providing for extradi- tion. 55 In the United States, international extradition is governed by Federal law. 56 The States have no power to extradite fUgitives to foreign countries.
(1)
Since most instances of extradition arise under bilateral or multilateral treaties, many of the problems raised by extradition are questions of treaty interpretation. Most bilateral treaties contain a list of acts for which a fugi-tive may be extradited. Multilateral and some bilateral treaties merely stipulate that the act for which extradition is sought be a crime in both the asylum and requisitioning states, punishable by a certain minimum penalty, usually imprisonment for at least one year.
(2)
Difficult problems arise under the treaties that list extraditable crimes when the act committed by the fbgitive is punishable in the requisitioning state and listed in the treaty, but not punishable in the asylum state because the law of the latter defines the crime differently. 57 In such a situation, if the asylum state ap- plies its own law to define the crime, it may violate its obligations under the treaty. If the asylum state applies the law of the requisitioning state, it would be extraditing the fugitive for an act that was not an offense under its own law. The solution to the problem may be found in the re- quirement of "double criminality,"i.e., that extradition is available only when the act is punishable under the law of both states. The name of the offense and the elements that make it criminal need not be precisely the same, pro- viding that the fugitive could be punished for the act in both states. 58 Under the requirement of "double crimi- nality," the act must be characterized as a crime by the law of the asylum state. However, in Factor v.
54.
290 U.S. 276, 287, 54 S.Ct. 191, 193 78 L.Ed. 315 (1933).
55.
See 2 D. O'Connell, International Law 793-94 (2d ed. 1970) (hereinafter cited as 2 D. O'Connell). Valentine v. U.S. ex re]. Neidecker, 299 U.S. 5, 9, 57 S.Ct. 100, 102, 81 L.Ed.5 (1936).
56.
18 U.S.C.A.58 3184-3195.
57. See Note, The Eisler Extradition Case, 43 Am. J. Int'l L. 487 (1 949).
$8. See Harvard Research in International Law, Drqft Convention on Extradition, 29 Am. J. In17 L. Spec. Supp. 81-86 (1935).
Laubenheimer, 59 the Court approved extradition to Great Britain for the crime of receiving money, knowing it to have been fraudulently obtained, although the law of Il-linois, where the fugitive was found, did not make such an act criminal. The Court felt that the extradition treaty be-tween the United States and Great Britain did not require "double criminality" for the particular offense and stressed the fact that the offense was criminal under the laws of several of the States. 60 The principle of "double criminality" would also require that the act be criminal in both states when it was committed. 61
(3)
Treaties frequently provide that extradition shall not take place if the prosecution of the fugitive is barred by a statute of limitations in either the asylum state or requisi- tioning state. 62 Moreover, according to the principle of specialty, the requisitioning state may not, without the permission of the asylum state, try or punish the fugitive for any crimes committed before the extradition except the crimes for which he was extradited. The permission of the asylum state is also required for the requisitioning state to re-extradite the fugitive to a third state. 63
(4)
The majority of extradition treaties contain pro- visions exempting nationals of the asylum state from ex- tradition. The usual provision is that neither party shall be obligatedto surrender its nationals, thusleaving the matterin the discretion of the asylum state. The policy, which is most commonly reflected in civil law jurisdictions, ap-parently stems from a feeling that individuals should not be withdrawn from the jurisdiction of their own courts. 64 However, the courts in many civil law countries have broad jurisdiction to try and punish their nationals for crimes committed in other countries. 65 Most common law states, including the U.S., limit their jurisdiction over a crime to the location of the offense. 66 The United States has not adopted a criminal code that generally provides for punishment of its own nationals for ordinary crimes com- mitted in other states. 67 me U.C.M.J. is, of course, an
59. 290 U.S. 276, 54 S.Q. 191, 78 L.Ed. 315 (1933).
60. For a critical analysis of this case, see Hudson, The Factor Case andDouble Criminaliw in Extradition, 28 Am. J. Int'l L. 274 (1934); c$, Borchard, The Factor Extradition Case, 28 Am. J. Int'l L. 742 (1934).
61.
But see U.S. ex rel. Oppenheirn v. Hecht, 16 F.2d 955 (1927), granting extradition for an act which was made criminal in the United States after it had been committed.
62.
See, e.g., Extradition Treaty between the United States and Great Britain, Dec. 22, 1931, art. 5, 47 Stat. 2122, T.S. 849, 163
L.N.T.S. 59.
63.
U.S. ex rel. Domefly v. Mulligan, 74 F.2d 220 (1934). See also, U.S. v. Rauscher, 119 U.S. 407,7 S.Ct. 234,30L.Ed. 425 (1886).
64.
See Havard Research, Criminal Jurisdiction, supra, note 51 at
125.
65. I. Shearer, Extradition in International Law 15-16 (1971) (hereinafter cited as I. Shearer).
66.
See, e.g., U.S. Const., Art. m,5 2, cl. 3.
67.
If criminal conduct by American citizens abroad were con- sidered an offense against the law of nations, Congress could defme and provide for the punishment thereof. U.S. Const., Art. I, 5 8, cl. 10. See Blackmer v. U.S., 284 U.S. 421,436-37 (1931); Steelev. Bulova Watch Co., 344 U.S. 280, 285-86 (1952); c$ herican kana Co. v. United Fruit Co., 213 U.S. 347, 353-57 (1909).
Pam 27-161-1
important exception to this rule. It is, however, limited to individuals on active duty in the Armed Forces.) 68 AC-cordingly, the U.S. enters into extradition treaties provid- ing only limited requirements for extradition of nationals to civil law countries. 69
(5)
In order to avoid creating absolute immunity for citizens who have committed crimes outside of its territo- ry, the United States is generally willing to allow extradi- tion of its nationals on a reciprocal basis. 70 Civil law coun- tries are reluctant to agree to this, however. 71 The U.S. also generally includes a clause in its extradition agree- ments which permits both states to deliver fugitive citizens when, in their discretion, they decide to do so. 72 The U.S. Supreme Court has upheld the validity of the refusal to extradite an American citizen who proved that the re- questing state, in clear violation of its bilateral treaty com- mitments, had refused to extradite its own nationals to the United States. 73 Multilateral extradition conventions which recognize the principle of nonextradition of na- tionals generally provide that if the asylum state refuses to extradite a national, it shall itself prosecute the person re- quested. 74
b.
The U.S.Extradition Process. Depending on munic- ipal law, extradition may be exclusively an executive func- tion or may require a judicial hearing. The United States requires a judicial hearing of the evidence against the fugi- tive. 75 Article 9 of the 1931 Extradition Treaty between the United States and Great Britain provides: "The ex- tradition shall take place only if the evidence be found sufficient, according to the laws of the High Contracting Party applied . . . to justify the committal of the prisoner for trial, in case the crime or offense had been committed in the territory of such High Contracting Party. . .." 76 If, on such hearing, [the judge] deems the evidence ~~cient to sustain the charge under the provisions of the proper treaty or convention, he shall cem the same, together with a copy of all the testimony taken before him, to the Secretary of State. The Secretary of State then may grant or refuse extradition. 77 The function of the judicial hear- ing is to permit the fugitive to insure that the proceedings comply with the applicable statutes and treaties. He may produce evidence that he did not commit the offense or object that the offense was political. The decision of the committing magistrate on the sufficiency of the evidence is not subject to correction by appeal. 78 The fugitive may, however, petition for a writ of habeas corpus to challenge the legality of his detention and may urge upon the Secre- tary of State that his extradition not be granted. 79
c.
Normtradition for Political Offenses. In the eight- eenth century, extradition was most frequently sought and canted for what are now termed political offenses. By the nineteenth century, public opinion in Western Europe turned against the extradition of fugitives accused of only political offenses. Belgium, which enacted the first ex- tradition law in 1833, incorporated the principle of nonex- tradition for political offenses into the law. Today, most
6s. See Art. 5, U.C.M.J., 10 U.S.C. 805 (1970); Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Kruger, 361 U.S. 234 (1960); McElroy v. U.S. ex re]. Gungliardo, 361
U.S. 281 (1960); U.S. v. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363 (1970). The Supreme Court casesheld unconstitutional a Congressional grant of limited authority for the exercise of court-martial jurisdiction over discharged servicemen (Art. 3(a), UCMJ, 10 U.S.C. 5 803(A) (1970)), and civilian employees and other persons accompanying the Armed Forces outside the United States (Art. 2(11), UCMJ, 10 U.S.C. 5 802(11) (1970)). The Court of Military Appeals in the Averette case decided that a provision of the Code (Art. 2(10), UCMJ, 10 U.S.C. 5 802(10) (1970)), purporting to grant jurisdiction over civilians amm- panying the Armed Forces oversees in wartime was not operative is an undeclared war such as the Vietnam conflict. For an excellent discussion of whether existing Status of Forces Agreements might be used as a substitute for extradition proceedings, see W. Norton, United States Obligation. Under Status of Forces Agreements: A new Method of Ex-tradition?, 1973 (unpublished thesis, The Judge Advocate General's School of the Army).
69.
I. Shearer, supra, note 65 at 68-72. Under the doctrine of, Charlton v. Kelly, 229 U.S. 447 (1913), extradition treaties containing no mention of the nationality of the fugitive compel the United States to surrender American citizens if all the other requirements of the treaty are satisfied.
70.
1. Shearer, supra, note 65 at 110. See, e.g., Extradition Treaty with Bavaria, Preamble, Sept. 12, 1853 [I8541 10 Stat. 1022, T.S. No.
17.
71.
See, e.g., Grundgesetz, Art. 16(2) (1949) w.Ger.). At least one miter from a civil law country considers that nonextradition of na- tionals is almost a principle of international law. S. Lazareff; Status of Military Forces under Current International Law, 232, 266 (1971).
72.
The extradition treaties with the following countries came into effect after the November 9, 1936, Supreme Court decision in United States ex rel. Valentine v. Niedecker, 299 U.S.5. Five contain provisions permitting extradition of the requested state's nationals when that state's appropriate authorities deem it proper: Liberia, Nov. 1, 1937, [I9391 54 Stat. 1733, T.S. No. 955; Sweden, Oct. 24, 1961 [I9631 14
U.S.T. 1845, T.I.A.S. No. 5496; Brazil, Jan. 16, 1961, [I9641 15 U.S.T. 2093, T.I.A.S. No. 5691; New Zealand, Jan. 12,1970, [I9701 22 U.S.T. 1, T.I.A.S. No. 7035; France, Feb. 12, 1970, [I9711 22 U.S.T. 407,
T.I.A.S. No. 7075; Spain, May 19,1970, [I9711 22 U.S.T. 737, T.I.A.S. No. 7136; Argentina, Jan. 21, 1972, [I9721 23 U.S.T. 3501, T.I.A.S. No. 7310. The only presently effective United States extradition treaty which precludes surrender of nationals and which was signed after the Valentine decision is the Extradition Treaty with Monaco. Older United States extradition treaties permitting discretionary sur- render of nationals and in effect on January 1, 1976, were with the following countries: Japan, Apr. 29, 1886, [I8861 24 Stat. 1015, T.S. No. 191; Mexico, Feb. 22, 1899, [I8991 31 Stat. 1818, T.S. No. 242; Argentina, Sep. 26, 1896, [I9001 31 Stat. 1883, T.S. No. 6; Guatamala, Feb. 27, 1903, [I9031 33 Stat. 2147, T.S. No. 425; Nicaragua, Mar. 1, 1905, [I9071 35 Stat. 1869, T.S. No. 462; Uruguay, Mar. 11, 1905, [I9081 35 Stat. 2023, T.S. No. 501. U.S. Dep't of State, Treaties in Force (1972).
73.
Charlton v. Kelly, 229 U.S. 447 (1913); see also, Neely v. Henkel, 180 U.S. 109 at 123 (1901).
74.
See, e.g., Convention on Extradition, signed at Montevideo, Dec. 26, 1933, Art. 2, 49 Stat. 3111, T.S. 882, 165 L.N.T.S. 45.
18 U.S.C.A. 5 3184. 47 Stat. 2125. 18 U.S.C.A. 5 3184. 75.
76.
77.
78.
Collins V. Mier, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920).
79. As has been noted, the U.S. extradition process is governed by Federal law, 18 U.S.C.A. 5 3184-3195. A complete treatment of U.S. extradition procedures is found in 6 M.Whiteman, Digest of lnternu- tional hw 905-1 117 (1968).
treaties exempt fugitives accused of political offenses from extradition. Though the principle has been almost univer- sally accepted, "political offenses" have never been pre- cisely defmed. The fvst attempt to delineate the principle was the "attentat" clause in many treaties, which pro- vides that the murder of the head of a foreign government or a member of his family is not to be considered a politi-cal offense. 80 Some treaties extend the exclusion to any murder or attempt, on life in general. 81 However, in 1934, in the absence of such a clause in the applicable treaty, the Turin Court of Appeal refused to extradite the assassins of King Alexander of Yugoslavia to France on the ground that the crime was political. 82
(1)
In 1892, Switzerland adopted a law which pro- vided that a crime was not to be considered political if it was primarily a common offense, even though it had a po- litical motivation or purpose. The decision on extradition was left to the highest Swiss Court. 83 Some treaties pro- vide that ". . . [clriminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations" shall not be con- sidered political offenses. 84 British and American courts have held that for an offense to be political, it must be committed in furtherance of a political movement or in the course of a struggle to control the government of a state. 85 However, this strict rule has been relaxed recently to provide refuge for private individuals fleeing totalitarian states. 86 Treaties also frequently prohibit extradition for purely military offenses. 87
(2)
The inability to define "political offense" con-tinues to be of primary concern to the international com- munity. Most treaties which speak to the extradition of in- dividuals who fall within the context of the agreements continue to grant states the right to unilaterally determine whether the offense of which the accused is charged is, in fact, political in nature. Accordingly, individuals who hi- jack aircraft or engage in other terrorist activities are, for
80. See, e.g., Treaty of Extradition Between the U.S. and, Venezuela, Jan. 19, 1922, Art. 3,43 Stat. 1698, T.S. 675,49 L.N.T.S.
435.
81.
See. e.g., Extradition Treaty Between Italy and Finland, 1928, Art. 3(3), 111 L.N.T.S. 295.
82.
In re Pavelie, [1933-341 Ann.Dig. No. 158 (Italy).
83. See 2 D. 0'Connell, supra, note 55 at 802.
84. Treaty of Extradition Between the U.S. and Brazil, Jan. 13, 1961, Art. V(6), 15 U.S.T. 2093, T.I.A.S. 5691, 532 U.N.T.S. 177.
85. In re Castioni, 1 Q.B. 149, 156, 166 (1891); In re Ezeta, 62 F. 972, 999 (1894).
86. See Reg, v. Governor of Brixton Rison, Ex parte Kolczynski, 1
Q.B. 540 (1954). For a discussion of political offenses, see Reg. v. Governor of Brixton Prison, Ex parte Schtraks, A.C. 556, 581-84, 587-92 (H.L.) (1964); Garcia Mora, Crimes Against Humanity and the Principle of Nonatradition of Political Offenders, 62 Mich. L. Rev. 927 (1964); Harvard Research, Criminal Jurisdiction, supra, note 51, at 107-19; Spanish-German Extradition Treaty case, Ann. Dig. No. 234 ' (Germany 1926).
87. See Convention on Extradition between the United States and Sweden, Oct. 24, 1961, Art. V(4), 14 U.S.T. 1845, T.I.A.S. 5496,494
U.N.T.S. 141.
the most part, able to find refuge in states which are sym- pathetic to their particular "political" cause. 88
d. Nonextradition for Military Offenses. Strictly mili- tary offenses such as desertion and absence without leave are as a general rule nonextraditable offenses. 89 a A miii-tary offense for purposes of extradition is one which is punishable only under military law. It does not constitute primarily an infraction of the ordinary penal law. Treaties usually use phrases such as "purely," "strictly," or "es-sentially" military offenses to delimit the type of offense which is nonextraditable. To fall within the exception of a "military offense," it must be shown that" . . . the acts charged do not con- stitute a crime under the ordinary laws of the requesting state." 89 b The crime of murder, for example, would not be considered a strictly military offense. As a Swiss Court stated in granting a French request for extradition, ". .. murder has never been regarded as a 'purely military' offense, because it affects human life and does not relate to military organization or military duties." 89 c Among the other crimes that would be punishable by military courts but which are not deemed to be "strictly military" are violations of the laws of war.
88. The U.N. has failed to take action on the recommendation of several of its members that aircraft hijacking and temorist activities be considered as crimes resulting in automatic extradition.
89 a. See, e.g., M. Bassiouni, International Exlradition and World Public Order 430-33 (1974); S. Bedi, Extradition in International Law and Practice 196 (1966); 4 G. Hackworth, Digest of International Law 192-93 (1942); 6 M. Whiteman, Digest of International Law 858-59 (1968); Shamgar, Extradition for Military Offenses, in 2 L'fitradition Pour Deli& Militaires 201, 205 (1969); I. Shearer, Extradition in Inter- national Law 9 (1971). A case illustrating this principle is In Re Girar- din,[1933-19341 Annual Digest of International Law Cases 357 (No. 153) (Camara Federal De La Plata, Argentina 1933). An example in a treaty is the Convention on Extradition Between the United States of America and Sweden, Oct. 24, 1961, 14 U.S.T. 1845, T.I.A.S. No. 5496, 494 U.N.T.S. 141. Article V states that extradition shall not be granted "[wlhen the offense is purely military." See York, Ektradition
for Militaty Offenses, in 2 L'Extradition Pour Deli& Militaires 273, 275-76 (1969). The principle stated above applies to formal extradition requests. It should be noted that serviceman stationed in countries with which the United States has a status of forces agreement can under certain circum- stance be transferred to the foreign country concerned for trial for cer- tain limited offenses. This does not involve an extradition procedure since the transfer is basically made pursuant to the custody provisons of the status of forces agreement. Seee.g., Holmes v. Laird, 459 F.2d 121 1 @.C. Ci. 1972), cert. denied, 409 U.S. 869 (1972); United States ex. re]. Stone v. Robinson, 309 F.Supp. (W.P.D.
Pa. 1970), qffd, 431 F.2d 548 (3d Ci. 1970); and William v. Rogers, 449 F.2d 513 (8th Ci. 1971); cert. denied, 405 U.S. 926 (1972).
89 b. M. Bassioni, supra note 89, at 433. The distinction between strictly military offenses that are not extraditable and ordinary crimes that are extraditable is made in the European Convention on Extradi- tion, Dec. 13, 1957, Art. 4. E.T.S. No. 24,359 U.N.T.S. 273; The Inter American Convention on Extradition, Dec. 26, 1933, Art. 3, 165
L.N.T.S. 45; and the Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. In17 L. Supp. 21, 119-122 (1935).
89 =.Ktu v. Ministere Public Federal, 34 International Law Reports 143, 145 Federal Tribunal, Switzerland 1961).
treaties exempt fugitives accused of political offenses from extradition. Though the principle has been almost univer- sally accepted, "political offenses" have never been pre- cisely defined. The first attempt to delineate the principle was the "attentat" clause in many treaties, which pro- vides that the murder of the head of a foreign government or a member of his family is not to be considered a politi- cal offense. 80 Some treaties extend the exclusion to any murder or attempt on life in general. 81 However, in 1934, in the absence of such a clause in the applicable treaty, the Turin Court of Appeal refused to extradite the assassins of King Alexander of Yugoslavia to France on the ground that the crime was political. 82
(1)
In 1892, Switzerland adopted a law which pro- vided that a crime was not to be considered political if it was primarily a common offense, even though it had a po- litical motivation or purpose. The decision on extradition was left to the highest Swiss Court. 83 Some treaties pro- vide that ". . . [clriminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations" shall not be con- sidered political offenses. 84 British and American courts have held that for an offense to be political, it must be committed in furtherance of a political movement or in the course of a struggle to control the government of a state. 85 However, this strict rule has been relaxed recently to provide refuge for private individuals fleeing totalitarian states. 86 Treaties also frequently prohibit extradition for purely military offenses. 87
(2)
The inability to define "political offense" con-tinues to be of primary concern to the international com- munity. Most treaties which speak to the extradition of in- dividuals who fall within the context of the agreements continue to grant states the right to unilaterally determine whether the offense of which the accused is charged is, in fact, political in nature. Accordingly, individuals who hi- jack aircraft or engage in other terrorist activities are, for
80. See, e.g., Treaty of Extradition Between the U.S. and, Venezuela, Jan. 19, 1922, Art. 3,43 Stat. 1698, T.S. 675,49 L.N.T.S.
435.
81.
See. e.g., Extradition Treaty Between Italy and Finland, 1928, Art. 3(3), Ill L.N.T.S. 295.
82.
In re Pavelie, [1933-341 Ann. Dig. No. 158 (Italy).
83. See 2 D. O'Connell, supra, note 55 at 802.
84. Treaty of Extradition Between the U.S. and Brazil, Jan. 13, 1961, Art. V(6), 15 U.S.T. 2093, T.I.A.S. 5691, 532 U.N.T.S. 177.
85. In re Castioni, 1 Q.B. 149, 156, 166 (1891); In re Ezeta, 62 F. 972, 999 (1894).
86. See Reg. v. Governor of Brixton Prison, Ex parte Kolczynski, 1
Q.B. 540 (1954). For a discussion of political offenses, see Reg. v. Governor of Brixton Prison, Ex parte Schtraks, A.C. 556, 581-84, 587-92 (H.L.) (1964); Garcia Mom, Crimes Against Humanity and the Principle of Nonextradition of Political Offenders, 62 Mich. L. Rev. 927 (1964); Harvard Research, Criminal Jurisdiction, supra, note 51, at 107-19; Spanish-German Extradition Treaty case, Ann.Dig. No. 234 , (Germany 1926).
87. See Convention on Extradition between the United States and Sweden, Oct. 24, 1961, Art. V(4), 14 U.S.T. 1845, T.I.A.S. 5496,494
U.N.T.S. 141.
the most part, able to find refuge in states which are sym- pathetic to their particular "political" cause. 88
d. Nonextradition for Military Offenses. Strictly mili- tary offenses such as desertion and absence without leave are as a general rule nonextraditable offenses. 89 a A mili- tary offense for purposes of extradition is one which is punishable only under military law. It does not constitute primarily an infraction of the ordinary penal law. Treaties usually use phrases such as "purely," "strictly," or "es- sentially" military offenses to delimit the type of offense which is nonextraditable. To fall within the exception of a "military offense," it must be shown that" . . . the acts charged do not con- stitute a crime under the ordinary laws of the requesting state." 89 b The crime of murder, for example, would not be considered a strictly military offense. As a Swiss Court stated in granting a French request for extradition, ". . . murder has never been regarded as a 'purely military' offense, because it affects human life and does not relate to military organization or military duties." 89 c Among the other crimes that would be punishable by military courts but which are not deemed to be "strictly military" are violations of the laws of war.
88. The U.N. has failed to take action on the recommendation of several of its members that aircraft hijaclung and terrorist activities be considered as crimes resulting in automatic extradition.
89 a .See, e.g., M. Bassiouni, International Extradition and World Public Order 430-33 (1974); S. Bedi, Extradition in International Law and Practice 196 (1966); 4 G. Hackworth, Digest of International Law 192-93 (1942); 6 M. Whiteman, Digest of International Law 858-59 (1968); Shamgar, Extradition for Military Offenses, in 2 L'Extradition Pour Delits Militaires 201, 205 (1969); 1. Shearer, Extradition in Inter- national Law 9 (1971). A case illustrating this principle is In Re Girar- din,[1933-19341 Annual Digest of Intemational Law Cases 357 (No. 153) (Camara Federal De La Plata, Argentina 1933). An example in a treaty is the Convention on Extradition Between the United States of America and Sweden, Oct. 24, 1961, 14 U.S.T. 1845, T.I.A.S. No. 5496, 494 U.N.T.S. 141. Article V states that extradition shall not be granted "[wlhen the offense is purely military." See York, Extradition
for Militaty Offenses, in 2 L'fitradition Pour Delits Militaires 273, 275-76 (1969).
The principle stated above applies to fonnal extradition requests. It should be noted that serviceman stationed in countries with which the United States has a status of forces agreement canunder certain circum- stance be transferred to the foreign country concerned for trial for cer- tain limited offenses. This does not involve an extradition procedure since the transfer is basically made pursuant to the custody provisons of the status of forces agreement. Seee.g., Holmes v. Laird, 459 F.2d 121 1 @.C. Cir. 1972), cert. denied, 409 U.S. 869 (1972); United States ex. rel. Stone v. Robinson, 309 F.Supp. (W.P.D. Pa. 1970), qffd, 431 F.2d 548 (3d Ci.1970); and William v. Rogers, 449 F.2d 513 (8th Cir. 1971); cert. denied, 405 U.S. 926 (1972).
89 b. M. Bassioni, supra note 89, at 433. The distinction between strictly military offenses that are not extraditable and ordinary crimes that are extraditable is made in the European Convention on Extradi- tion, Dec. 13, 1957, Art. 4. E.T.S. No. 24,359 U.N.T.S. 273; The Inter American Convention on Extradition, Dec. 26, 1933, Art. 3, 165
L.N.T.S. 45; and the Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. lntl L. Supp. 21, 119-122 (1935).
89 c .Ktir v. Ministere Public Federal, 34 Intemational Law Reports 143, 145 (Federal Tribunal, Switzerland 1961).
Pam 27-161-1
The concept of nonextradition for military offenses is illustrated in an extradition case decided in 1977. 89 d An Irish national in the United States armed forces was con- victed by a general court-martial in Vietnam for several offenses, including murder and absence without leave. He escaped from confinement and was subsequently irn-prisoned for a different offense in Canada. At the request of the Secretary of the Army, the Secretary of State for- mally asked for the serviceman's extradition to the United States for the murder offense only. Canada granted the extradition request and the serviceman was returned.
e. Methods Other Than Extradition. Where extradition is not possible because of the lack of a treaty or for some other reason, or where extradition is not feasible because of the time and expense involved, states may resort to other methods of surrendering or recovering fugitives. If the fugitive is not a national of the asylum state, it may deport him as an undesirable alien or exclude him (i.e., deny him permission to enter the country). In either case, the fugitive may be turned over directly to the state that desired to prosecute him, or may be sent to a third state from which his extradition is possible. The United States and Mexico and the United States and Canada have fre- quently resorted to exclusion or deportation in order to deliver fugitives to each other without going through the process of extradition. 89 e States may also acquire custody of fugitives by kidnapping or through the failure of police officials to observe the procedures governing extradition, deportation, or exclu- sion. In these situations, the United States courts have assumed jurisdiction over the fugitive in spite of the illegal manner in which he may have been brought into the country. 90 These methods of acquiring custody do, nevertheless, constitute violations of municipal or inter- national law. 91 4-7. Jurisdition Based on Nationality. a. A state has ju- risdiction to prescribe rules governing the conduct of its nationals outside its territory. As a result, it may use its enforcement jurisdiction to give effect to such rules by ac- tions taken against its nationals if they are found in the ter- ritory or, if they are not, by action taken against their property in the territory. Upholding a judgment for con- tempt against an American citizen who refused to return from France to testifl when ordered to do so, the
89 *. See DAJA-IA 1977/1064, dated 31 August 1977, Subject: Extradition of Servicemen from Canada; DAJA-IA 1977/1084, dated 20 December 1977, Subject: Extradition Case.
89 e. See Evans, Acquisition of Custody over the International Fugitive Offender-Alternatives to Extradition: A Survey of United States Practice, [I9641 Brit. Y.B. Int7 L. 77.
90.
SeeU.S. v. Insull, 8 F. Supp. 310 (1934); Ex parte Lopez, 6 F. Supp. 342 (1934); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Evans, supra at 89-93.
91.
The most celebrated case of illegally acquired jurisdiction is that of the Israeli kidnapping of Adolf Eichmann from Argentina. For the in- ternational issues raised by this act, see W. Friedmann, supra, note 32 at 495-97. A bibliography on the Eichmann trial is included in G. Mueller & E. Wise, International Criminal Law, 370-71 (1965).
Supreme Court said, in Blackmer v. United States, 92 "With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his government." 93 Hall writes:
Its laws travel with them [its nationals] wherever they go, both in places within and without the jurisdiction of other powers. A state can-not enforce its laws within the territory of another state, but its subjects remain under an obligation not to disregard them, their social relations for all purposes as within its territory are determined by them, and it preserves the power of compelling observance by punishment if a per- son who has broken them returns within its jurisdiction. 94
6. States exercise their jurisdiction to prescribe rules governing the conduct of their nationals in various degrees. In the United States, a number of statutory pro- visions, in addition to that under which Blackmer was convicted, specifically apply to the conduct or income of United States nationals abroad. 95 The U.S. does not, however, use extensively its prescriptive jurisdiction based on nationality. Generally, the use of this jurisdic- tional theory is the exception, rather than the rule, in common law states. Civil law countries usually make much more use of this concept, sometimes going so far as to provide that all, or nearly all, offenses committed by their nationals abroad are punishable if these citizens are ever found in the national territory. Some examples follow.
(1) In the United Kingdom, statutes provide for the punishment of not only treason, but also homicide, bigamy, perjury, and other crimes, when committed abroad by a British subject. 96 India has provided that its criminal law applies to Indian nationals everywhere, no
284 U.S. 421, (1932). 92.
93.
Id. at 437. The statute involved in Blackmer v. United States is now as 28 U.S.C.A. 5 1783 (1964), and is incorporated by reference into Fed.R.Civ.P. 45(e)(2) and Fed.R.Crim.P. 17(e) (2). It provides in relevant part that a United States court may order the is- suance of a subpoena requiring the appearance as a witness of a "na- tional or resident of the United States who is in a foreign country" if such testimony is "necessary in the interest of justice." For another case upholding jurisdiction over nationals abroad, see United States v. Bowman, 260 U.S. 94 (1922) (Prosecution for acts committed abroad to defraud the United States): "[Tlhe three defendants who were found in New York were citizens of the United States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance." 260 U.S. at 102.
94. W. Hall, International Law 56-57 (8th ed. 1924).
95. See 18 U.S.C.A. 8 2381 (1964), proscribing treason by anyone "owing allegiance to the United States within the United States or elsewhere"; 18 U.S.C. 5 953 (1964), punishing unauthorized attempts by "any citizen of the United States, wherever he may be," to influence a foreign government in its relations with the United States; Internal Revenue Code 8 1, imposing an income tax on "all citizens of the United States, wherever resident"; and 50 U.S.C.A. app. 5 435 (1964), requiring "every male citizen of the United States," inter alia, to register for military service.
96. 10 Halsbuty's Laws of England 322-24 (Simonds ed. 1955). See also, 2 D. O'Connell, supra, note 55 at 898-99.
matter how minor the offense. 97 In France, a citizen can be prosecuted for any crime (roughly equivalent to felony) and many delits (misdemeanors) committed abroad. 98
(2)
In the case of In re Guttierez, 99 the defendant was a Mexican national charged with stealing a truck in Texas. The Mexican court dismissed his challenge to its jurisdiction on the broad ground, apparently, that a crime committed abroad by a Mexican national is punishable in Mexico.
(3)
A Dutch national ". .. is liable to prosecution in Holland for an offense committed abroad, which is punishable under Netherlands law and which is also punishable under the law of the country where the offense was committed. . . ." 100
(4)
In the case of In re Roquain, 101 Belgium, Court of Cassation, 1958, the defendant, while lawfiiy mar- ried, committed adultery in Paris. The court held the de- fendant could not be prosecuted because under "the law governing criminal proceedings in respect of offenses committed outside Belgian territory," the offense of adul- tery may be prosecuted only if it was committed against a Belgian national.
(5)
As to offenses generally, Spain apparently will not prosecute a Spanish national for an offense committed abroad unless the victim is also of Spanish na-tionality. 102
(6)
In X. v. Prosecutor, Netherland. 103 District Court of Middleburg, 1952, Court of Appeal of the Hague, 1952, the defendant was a national of the Netherlands. She lost her nationality by marriage, then committed outside the Netherlands a criminal offense for which she was prosecuted and convicted in the state where it was committed. Upon the dissolution of her marriage, she recovered her former Dutch nationality. She was then prosecuted for the same offense in the Netherlands. It was held that the previous prosecution abroad did not preclude a new prosecution in Holland, though it might mitigate the punishment, and moreover, she could not object to the prosecution on the ground that she had lost her na- tionality at the time the offense was committed. Any alien committing an offense abroad could be prosecuted if and when such person subsequently became a citizen of the
X v. Prosecutor (Netherlands), 19 Int'l L. Rep. 226 (1957). 26 Int'l L. Rep. 209, (1963). Public Prosecutor v. Y., 24 Int7 L. Rep. 264-265 (1961). 24 Int7 L. Rep. 265 (1961). Indian Penal Code, 5 4 (3d ed. 1965). 97.
98.
Code de Procedure Penale, Art. 689 (Dalloz ed. 1966); see Delaume, Jurisdiction over Crimes Committed Abroad: French and American Law, 21 Geo. Wash. L. Rev. 173 (1952); 1 Travers, Le Droit Penal International 584-631 (1920). See also, German Penal Code (Strafgesetzbuch) 5 3 (German criminal law applicable to Germans whether act committed in Germany or abroad), 5 4 (German criminal law applicable to persons acquiring German citizenship after criminal act has been committed).
99.
100.
101.
102.
Forgery Committed in Venezuela by a Spaniard, 89 Journal du Droit International 189 (1962).
103.
Netherlands.
c.
In United States v. Bowman, 104 the Supreme Court spoke to the circumstances under which a U. S. statute will be held to apply to conduct occurring outside United States territory, where the statute does not expressly so provide. In this decision, the Court held that a statute punishing conspiracy to defraud a United States-owned corporation was applicable to conduct taking place on the high seas. The Court stated that to limit the statute's scope to "the strictly territorial jurisdiction" would be greatly to curtail its usefulness and to leave open "a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home." In such cases, the Court continued, Congress had not "thought it necessary to make specific provision in the law that the locus shall in- clude the high seas and foreign countries, but allows it to be inferred from the nature of the offense." 10s The con- viction of three United States nationals was accordingly affimed on the ground that they were "certainty subject to such laws as [the United States] might pass to protect it- self and its property." 106 The Court expressly reserved the question whether there was jurisdiction to try to a fourth conspirator, a British subject, who had not been ap- prehended. 107
d.
Difficult questions arise when there is a conflict be- tween the demands of the state of which the individual is a national and those of the state in which he is residing. It has been held, however, that a state has jurisdiction to try and punish one of its nationals for an offense committed against its laws while he is residing abroad. 108
e.
The problem of civil jurisdiction is one in which in- ternational law leaves to each state a very wide choice. For instance, U. S. courts may deal with contracts made be- tween two French citizens in France with regard to con- duct performed in that state. Although applying French law, the court will nevertheless take jurisdiction, because, under U. S. law, the question of civil jurisdiction depends usually on the service of a summons or the attachment of property within U. S. territorial jurisdiction. 109 Under ex- isiting admiralty law, an individual may bring civil suit against a vessel, regardless of the location of the port in which it is located and "arrested." 110
Id. at 102. Id. at 98. 260 U.S. 94 (1922). 104.
105.
106.
107.
AS noted in n. 35, supra, the proposed Federal Criminal Code deals with extraterritorial jurisdiction in 5 204 of the Criminal Justice Reform Act of 1975.
108.
It has been held that a state has jurisdiction to try and punish one of its nationals for an offense committed abroad, even though he is also a national of the state in which the offense was committed. Coumas
v. Superior Court, 31 Cal.2d 682, 192 P.2d 449 (1948); Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952).
109.
McDonald v. Mabee, 243 U.S. 90 (1917); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
110.
Suits against vessels are in rem proceedings. For that reasor). the cases generally contain only the name of the ship which has been libeled.
f. In summary, then, jurisdiction based on nationality operates on the principle that a state may prescribe rules for the conduct of its own citizens, even when these in- dividuals are outside its territory. It is a theory universally recognized in international law as a proper basis for the exercise of jurisdiction. However, it is important to note that, although some U.S. laws apply to American citizens abroad, the U. S. views jurisdiction based on nationality as a secondary jurisdiction concept. On the other hand, civil law states generally regard it as the primary basis upon which to exercise jurisdiction over nationals outside these countries' territorial confines.
4-8. Jurisdiction Based on Agreement with the Ter-
ritorial State. a. As has been noted, a state " . ..
possesses and exercises within its own territory an ab-
solute and exclusive jurisdiction and . . . any exception to
this right must be traced to the consent of the nation,
either express or implied." 111 Accordingly, no state may
exercise its police powers in another state, even against its
own subjects, without the agreement of this state. An
analysis of several such agreements follows. These juris-
dictional arrangements should be of particular interest to
the military attorney.
6. After World War 11 the United States continued to control islands captured from Japan, including Okinawa and the other Ryukyu Islands. Article 3 of the 1951 Treaty of Peace with Japan gave to the United States, pending the creation, at the option of the United States, of a United Nations trusteeship administered by the United States, "the right to exercise all and any powers of admin- istration, legislation and jurisdiction, over the territory and inhabitants of these islands, including the territorial waters." 112 At the time the United States denied any in- tent of acquiring permanent possession of the islands and stated that Japan retained "residual sovereignty." 113 Sovereignty over the Ryukyu Islands did, in fact, revert to Japan on May 15, 1972. 114
c. The basis for United States jurisdiction in the Panama Canal Zone is a treaty of November 18, 1903, @tween the United States and Panama, by which the United States is granted "in perpetuity" the use, occupa- tion, and control of the ten-mile wide Canal Zone. Article III of the agreement provides that the United States may exercise all the rights, power, and authority " . .. which the United States would possess and exercise, if it were the sovereign of the territory within which said lands and water [i.e., of the Canal Zone] are located, to the entire exclusion of the exercise by the Republic of Panama of
25 Dep't State Bull. 455, 463 (1951). [I9511 3 U.S.T. 3169, T.I.A.S. 2490, 136 U.N.T.S. 45 (1951). 111.
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).
112.
113.
114.
For an excellent discussion of the Okinawan reversion, see Albertson, The Reversion of Okinawa: Its Effect on the International Law of Sovereignty over Territoty, 1973 (unpublished thesis, The Judge Advocate General's School of the Army).
any such sovereign rights, power or authority." 11s By an agreement of February 23, 1903, Cuba leased to the United States certain territory in Guantanamo for use by the latter as a naval station. Article III of the agreement recited the United States' recognition of Cuba's continu- ing "ultimate sovereignty" over the leased territory and Cuba's consent that the United States should exercise "complete jurisdiction and control over and within" the leased areas. 116 A later agreement of the same year fixed the conditions of the lease and also provided for the mutual extradition of persons committing offenses against the law of Cuba or the United States in areas under their respective control. 117 A signif~cant revision of jurisdic- tional arrangements in the Canal Zone is now under active consideration and negotiation.
d.
Another example ofjurisdiction based on agreement arises out of the trusteeship arrangements under chapter XII of the 'United Nations Charter and the mandate system under the Covenant of the League of Nations. The trustee state, while not sovereign of the trust territory, has the power to prescribe and enforce rules of law. Under the Trusteeship Agreement for the former Japanese Man- dated Islands, the United States was given full powers of administration, legislation and jurisdiction. 118 The powers of the trustee state are exercised under the super- vision of the Trusteeship Council of the United Nations.
e.
The territory of South West Africa, of which the Re- public of South Africa is the mandatory, is the only League of Nations mandate in which the mandatory still exercises jurisdiction. The International Court of Justice decided in 1950 that the supervisory functions provided for in the mandate were to be exercised by the United Na- tions. 119 The Court subsequently held that the mandate was still in existence and that charges of violations of the mandate and Charter were justiciable before the Court. 120 However, the Court, in effect, reversed its 1962 decision by holding, in 1966, that Liberia and Ethiopia lacked a legal right or interest in South Africa's administration of South West Africa and dismissed their action against South Africa. 121 Thereafter, the General Assembly passed a resolution declaring that South Africa's mandate over South West Africa was terminated, and that ". . . South West Africa comes under the direct
responsibility of the United Nations." 122 The Republic of South Africa, however, continues to exercise jurisdiction
South West Africa Cases, Preliiary Objections, [I9621 61 Stat. 3302, T.I.A.S. 1665, 8 U.N.T.S. 189. Id. at 360. 1 Malloy 358. 33 Stat. 2234. 115.
116.
117.
118.
119.
Advisory Opinion on the International Status of South West Africa, [I9501 I.C.J. 128.
120.
I.C.J. 319.
South West Africa Cases, Second Phase, [I9661 I.C.J. 6. 121.
122.
G.A. Res. 2145, 21 U.N. GAOR Supp. 16, at 2, U.N. Doc. A/63 16 (1966).
over South West Africa. 123
j States may also agree to exercise jurisdiction jointly over a territory. The resulting arrangement, the so-called condominium, may call for a joint or some form of divided administration of the conjoint sovereignty of the parties. Under one such agreement the United Kingdom and France govern the New Hebrides. 124 Neither party may exercise separate authority over the New Hebrides; however, each retah sovereignty over its nationals. De- pending on t!le subject matter, a resident may be subject to one of several courts. The Joint Court administers law binding on all residents. National Courts, of which there are two, administer the pertinent laws of either the United Kingdom or France. Each has jurisdiction over the na- tionals of the state whose laws it administers. Nationals of other states must opt for the legal system of one of the parties.
g. The types of jurisdictional arrangements based on agreement with the territorial state of most interest and relevance to the military attorney are those concerning
U.S. military forces stationed overseas. These agree-
ments-the Military Assistance Advisory Group
(MAAG) Agreement, the Military Mission Agreement,
and the Status of Forces Agreement (SOFA) will be ex-
amined fully in chapter 10.
4-9. Jurisdiction Based on Protection of Certain State,
Universal, and Other Interests. a. Protective Principles.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THEUNITED STATES (1965)
5 33. Protective Principle
(1)
A state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, pro- vided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.
(2)
Conduct referred to in Subsection (1) includes in particular the counterfeiting of the state's seals and currency, and the falsification of its official documents.
Section 33 of Restatement, Second, accurately reflects an extraterritorial theory of jurisdiction known as the protec- tive principle. An accepted, but ill-defined jurisdictional concept, this theory stands for the proposition that a state may exercise its jurisdiction over a national of another country who commits a particular act in his or a third state. The necessary jurisdictional linklies in the fact that the act is one directed against and adversely affecting particular interests of the state exercising this form of jurisdic- tion. 125
(1) A concise explanation of the U. S. view of the protective principle, as well as a clearly articulated distinc- tion between this concept and the objective territorial principle, is found in the following case.
123.
The U.N. and many other states now refer to South West Africa as Namibia.
124.
Protocol respecting the New Herbrides, Aug. 6, 1914, [I9221
Gr. Brit. T.S. 7, Cmd. 1681, 10 L.N.T.S. 333. 12'. C. Hyde, Znternational Law, 804-07 (2d rev. ed. 1945).
UNITED STATES v. PIZZARUSSO
United States Court of Appeals, Second Circuit, 1968.
388 F.2d 8 126
MEDINA, JUDGE. This case is of interest because it brings
CIRCUIT
before this Court for the fist time the question of the jurisdiction of the District Court to indict and convict a foreign citizen of the crime of knowingly making a false statement under oath in a visa application to an American consular official located in a foreign country, in violation of 18 U.S.C. Section 1546.1 Supreme Court cases give some guidance but none of them passes on this question directly. 2 A Ninth Circuit deci- sion, Rocha v. United States, 288 F.2d. 545 (9th Cu.),cert.denied 366
U.S. 948, 81 S.Ct. 1902,6 L.Ed.2d 1241 (1961), is in point but we sus- tain jurisdiction on the basis of somewhat different reasons.
The indictment charges that on March 4, 1965 Jean Philomena
PizzanrssowilfuUy made under oath a number of false statements in her
"Application for Immigrant Visa and Alien Registration" at the Ameri-
can Consulate, Montreal, Canada. Each of these false statements was
patently material to the matter in hand. For example: she falsely swore
that since her sixteenth birthday her only places of residence for six
months or more had been London, England and Montreal, Canada; she
falsely swore that she had been in the United States only for short visits
for pleasure; she falsely swore that she had never been arrested, and so
on. Although at all times pertinent to this case she was a citizen of
Canada, she was taken into custody in the Southern District of New
York on April 18, 1966.
Upon the issuance of the visa and by its use Mrs. Pizzarusso im-
mediately entered the territory of the United States, but this fact is not
alleged in the indictment nor required by the tern of the statue, nor is
it material, as we find the crime wascomplete when the false statements
were made to an American consular official in Montreal. We shall return
later to this feature of the case.
The evidence to sustain the charge is so ovewhelming that we shall not pause to discuss it. Indeed, the only contention made on this appeal is that the District Court lacked jurisdiction to indict appellant and con- vict her of the crime alleged. 3 As we fid no lack of jurisdiction, we affi the judgment. Our reasons follow.
…
International law has recognized, in varying degrees, five bases of ju- risdiction with respect to the enforcement of the criminal law. See Har- vard Research In International Law, Jurisdiction with Respect to Crime, 29 Am.J.Int'l L.Spec.Supp. 435, 445 (1935) (hereinafter cited as Har- vard Research). Thus both the territoriality and nationality principles under which jurisdiction is determined by either the situs of the crime or the nationality of the accused, are universally accepted. The thud basis, the protective principle, covers the instant case. By virtue of this theory a state "has jurisdiction to prescribe a rule of law attaching legal conse- quences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the con- duct is generally recognized as a crime under the law of states that have reasonably developed legal systems." Restatement (Second), Foreign Relations, Section 33 (1965). See also Harvard Research Section 7.5
Traditionally, the United States has relied primarily upon the ter- ritoriality and nationality principles, Harvard Research at p. 543, and judges have often been reluctant to ascribe extraterritorial effect to
1 . Fraud and misuse of visas, permils and other entry documents: "Whoever knowingly mnkes under oath my false statement with respect to a material fact in my application, allidavit, or other document roquind by the immigration laws or regulations pr&W thereunder, or knowingly presenls any such application, allidavit, or other document containing any such false slatement–shall be fied not more than S2,000 or imprisoned not more than live years, or both." '
2.
UnlredSIotes v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). cited by sp pllbeasauthority for upholding jurisdiction in the instant case is distinguishable, as thnt easein-volved imposition of crimii lisbility on United Slntes citizens for acts committed abroad.
3.
Appellant wived a one-year suspended sentenoe and was placed on probation for two Y-.
5 .The other two principles anuniversality, where jurisdiction is determined by the custody of the person committing the olTense and passive personality, where jurisdidon is determined by reference tothe nationality of the person ~ured.Harvard Research at p. 445.
126. Cert. denied, 392 U.S. 936, 88 S.Ct. 2306 (1968).
Pam 27-161-1
statutes. See, e.g., American Banana Co. v. United Emit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). Nonetheless, our courts have developed what has come to be termed the objective territorial principle as a means of expanding the power to control activities detrimental to the state. This principle has been aptly defmed by Mr. Justice Holmes in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560,55 L.Ed.735 (191 1). "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect * * * ." See also Judge Learned Hand's opinion in United States v. Aluminum Co. of America, 148 F.2d. 416 (2d Cir. 1945). Underlying this principle is the theory that the ''detrimental effects" constitute an element of the offense and since they occur within the country, jurisdiction is properly invoked under the territorial principle. See also Restatement (Second), Foreign Relations Law Section 18.
However, the objective territorial principle is quite distinct from the protective theory. Under the latter, all the elements of the crime occur in the foreign country and jurisdiction exists because these actions have a "potentially adverse effect" upon security or governmental functions, Restatement (Second) Foreign Relations Law, Comment to Section 33 at p. 93, and there need not be any actual effect in the country as would be required under the objective temtorial principle. Courts have often failed to perceive this distinction.
Thus, the Nmth Circuit, 6 in upholding a conviction under a factual situation similar to the one in the instant case, relied on the protective theory, but still felt constrained to say that jurisdiction rested partially on the adverse effect produced as a result of the alien's entry into the United States. The Ninth Cucuit also cited Strassheim and Aluminum Company of America as support for its deckion. W~th all due reference to our brothers of the Ninth Cucuit, however, we think this reliance is unwarranted. A violation of 18 U.S.C.A. Section 1546 is completeas the time the alien pe jures himself in the foreign criminal sanctions of Sec-tion 1546 will never be enforced unless the defendant enters the coun- try, but entry is not an element of the statutory offense. Were the statute re-drafted and entry made a part of the crime we would then be presented with a clear case of jurisdiction under the objective territorial principle.
Statutes imposing criminal liability on aliens for committing pe jury in United States Consulates in foreign countries have been in existence for over one hundred years, see, e.g., 22 U.S.C. Section 1203, which was derived from an act of 1856, and oftentimes courts have routinely sus- tained convictions without even considering the jurisdictional question. See, e.g., United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cu. 1956).7 Only one court has ever held that the United States did not have jurisdiction to proceed against an alien under the legislation governing this case. United States v. Baker, 136 F. Supp. 546 (S.D.N.Y. 1955). In Baker it was conceded that there was authority for deporting an alien for making perjurious statements to a United States Consul, United States ex re]. Majka v. Palmer, 67 F.2d 146 (7th Cu. 1933), but the court thought the imposition of criminal sanctions was "far different" from deportation and dismkd the indictment. We would have sustained jurisdiction in Baker had the case been before us, and in this view we are apparently joined by the judge who decided Baker, since he presided over the instant case in the court below. Affumed.
(2) In United States v. Rodriguez, 127 the defendant
6. Roeha v. UnifedSfufes,288 F.2d 545 (9th Cu.),cerf. denied. 366 U.S. 948, 81 S.Ct. 1902; 6 L.Ed.2d 1241 (1961).
7 .One other court has upheldjurisdiction under a statute comparable to 18U.S.C. -on 1546on an alternativeground. The District court for the Southern District of California, relying in pan on the lerrilorialprinciple, sustained the convictionof an.alienfor falseswearingin a visa application, on the somewhat novel theory that the United StatesConsulate was pan of United States territory. United Sfufes v. Archer, 51 F. Supp. 708 (1943).
127. 182 F. Supp 479(1960). Affumed sub nom. Rocha v. United States, 288 F.2d 545 (1961), with respect to the substantive counts of the indictment, reversed as to conspiracy counts not at issue in Rodriguez, cert. denied, 366 U.S. 948, 81 S.Ct. 1902 (1961).
aliens were charged with making false statements in im-migration applications while they were outside the United States. The court discussed the territorial and the protec- tive principles in the following terms:
Acts committed outside the territorial limits of the State but intended to produce, or producing, effects withim the boundaries of the State are subject to penal sanctions; . . .Where the effect is felt by private persons within the State, penal sanctions rest on the "objective," or "subjec- tive," territorial principle . . .Where the effect of the acts committed outside the United States is felt by the government, the protective theo- ry affords the basis by which the state is empowered to punish all those offenses which impinge upon its sovereignty, wherever these actions take place and by whomever they may be committed. The results of such a theory are, in many ways, similar to those reached in the Strassheim case …where the court directed its attention to the objec- tive results of the criminal act and the location of its effect. Any act which would offend the sovereignty of a nation must, of necessity, have some effect within the territorial limits of that state or there would be no adverse effect upon the government justifying a penal sanction. 128
(3)
The court in Pizzarusso holds the principle to be applicable because the conduct of the aliens abroad had a "potentially adverse effect" upon the governmental func- tion. The Court in Rodriguez holds the principle applicable because the conduct of the aliens abroad of necessity had "some effect" upon the governmental function in the United States. It may be that the difference between the two formulations is metaphysical. What is important, however, is the wiJlingness of both courts to use the pro- tective principle. The alternative in both cases would have been to hold that an effect in the territory had taken place when the aliens entered the United States. Had the courts involved adopted this position, they would have reflected a traditional attitude towards the protective principle, for little use has been made of it in the United States in the past. A manifestation of this traditional attitude can be found in legislation concerning counterfeiting: it is a Federal offense to counterfeit foreign currency in the United States, but not a Federal offense to counterfeit United States currency abroad.
(4)
It is beyond doubt that the protective principle applies to crimes such as the counterfeiting of state seals, currency, stamps, passports or other public documents. Most states punish these offenses wheresoever and by whomever committed. The danger, however, is that the principle can be abused due to its susceptibility to prac- tically unlimited expansion. The danger is particularly great when the principle is formulated in broad terms, as it often is, and made to cover any crime against the security, temtorial integrity, or political indept3ndence of the state.
b.
Nationality of the Victim. This so-called "passive personality" theory has failed to gain universal acceptance and has always been challenged by the United States. The concept is based on the proposition that a state may exer- cise its jurisdiction on the basis of the nationality of the victim. Two cases serve to demonstrate this principle.
128. 182 F. Supp. 488-89.
(1) In the Lotus Case 129 Turkey tried and convicted a French national on the basis of a Turkish criminal statute which provided that Turkey might try and punish any individual who injured a Turkish citizen. This particu- lar case involved a collision between a French vessel, the Lotus, and a Turkish ship, the Boz-Kourt, five to six miles off the coast of Turkey. Upon the docking of the Lotus in Turkey, a Lt. Demons, officer of the watch on the Lotus on the day of the crash, was arrested and con- victed of manslaughter on the basis, partially, of the above-mentioned Turkish statute. As a result of strong French protests, Turkey agreed to submit the question of the legality of Lt. Demons' conviction to the Permanent Court of International Justice. The Court, in upholding the conviction, decided the case on other grounds, one of which was the fact that, as the Turkish citizens killed in the collision were abroad a Turkish vessel, Turkey had ter- ritorial jurisdiction. The majority of the Court did not, however, hold the Turkish statute in question to be in- valid. 130 In his dissenting opinion in the Lotuscase, Judge Moore stated that basing jurisdiction on the nationality of the victim meant that:
.. . . the citizen of one country, when he visits another country, takes with him for his "protection" the law of his own country and subjects those with whom he comes into contact to the operation of that law. . .. It is evident that this claim is at variance not only with the principle of exclusive jurisdiction of a State over its own territory, but also with the equally well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his own country, falls under the dominion of the local law. .. . 131
(2) The Cutting incident of 1886-88 arose out of the Mexican prosecution of an American citizen who had allegedly libeled a Mexican by means of a statement published in a Texas newspaper. Judge Moore, then a State Department Officer, had prepared the Report on Ex-traterritorial Crime and the Cutting Case, 132 on which subsequent United States protests were based. The Mex- ican Government relied on Article 186 of the Mexican Penal Code, which provided, in part, that "[plenal offenses committed in a foreign country . . . by a foreigner against Mexicans, may be punished . . . [in Mexico] ac- cording to its laws," if the accused was present in Mexico, if he had not been "definitively tried in the country where the offense was committed," and if the offense was a "penal offense" by the laws of both states. Secretary of
[I8871 U.S. For. Rel. 757. "Lotus" Case, supra, note 129 at 92. Case of the S.S. "Lotus," [I9271 P.C.I.J., ser. A, No. 9 (hereinafter cited as "Lotus" Case). 129.
130.
The Geneva Convention on the High Seas, 13 U.S.T. 2312 (1958) (hereinafter cited as High Seas Convention) provides in Article 11 that penal or disciplinary action arising out of collision or other inci- dent of navigation may be instituted only before judicial or administra- tive authorities either of the state of which the individual proceeded against is a national, or the flag state of the vessel on which he sewed. Ships may be arrested or detained, even as a measure to aid investiga- tion, only by authorities of the flag state. Only the state which issued a master's certificate or other license may revoke the certificate.
131.
132.
State Bayard stated in an instruction dated November 1, 1887, to the United States Charge d'Affaires in Mexico: [Tlhe assumption of the Mexican tribunal, under the law of Mexico, to punish a citizen of the United States for an offense wholly committed and consummated in his.orm country against its laws was an invasion of the independence of this Government. . . . .. .It is not now, and has not been contended, by this Government . ..that if Mr. Cutting had actually circulated in Mexico a libel printed in Texas, in such a manner as to constitute a publication of the libel in Mexico within the terms of Mexican law, he could not have been tried and punished for this offense in Mexico. . . . As to the question of international law, 1 am unable to discover any principle upon which the assumption of jurisdiction made in Article 186 of the Mexican penal code can be justified. . . . It has constantly been laid down in the United States as a rule of ac- tion, that citizens of the United States cannot be held answerable in foreign countries for offenses which were wholly committed and con- summated either in their own country or in other countries not subject to the jurisdiction of the punishing state. When a citizen of the United States commits in his own country a violation of its laws, it is his right to be tried under and in accordance with those laws, and in accordance with the fundamental guaranties of the Federal Constitution in respect to criminal trials in every part of the United States. To say that he may be tried in another country for his offense, simply because its object happens to be a citizen of that country, would be to assert that foreigners coming to the United States bring hither the penal laws of the country from which they come, and thus subject citizens of the United States in their own country to an indefinte criminal respon- sibility. .. .133
c. Universal Jurisdiction. The last basis of jurisdiction to merit discussion is the "universality" theory. As in the case of "passive personality," this jurisdictional concept enjoys limited acceptance. The only crime to which its ap- plicability appears to be wisely recognized is that of piracy. In this regard, Hackworth writes:
It has long been remgnked and well settled that persons and vessels engaged in piratical operations on the high seas are entitled to the pro- tection of no nation and may be punished by any nation that may ap prehend or capture them. This stem rule of international law refers to piracy in its intemational law sense and not to a variety of lesser maritime offenses so designated by municipal law. 134
The 1958 Geneva Convention on the High Seas 135 con-tainsspecific articles pertaining to piracy and the universal right of states to apprehend and punish those guilty of this crime.
Art. 14.AU States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the ju- risdiction of any state.
Art. 19. On the high seas, or in any other place outside the jurisdic- tion of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
Art. 21. A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government sentice authorized to that effect.
(1) The characteristic of piracy as a crime of univer-
133. Id. at 751.
'34. 2 G. Hackworth, Dkest of International Law 681 (1941).
135. Geneva Convention on the High Seas, supra, note 130.
Pam 27-161-1
sal interest is that any state apprehending the alleged pirate outside the territory of any other state, that is, upon the high seas, may exercise prescriptive and enforcement ju- risdiction over him. 136
(2) Certain other crimes are universally, or almost universally, condemned and made the subject of multilateral international conventions aimed at their elimination. Theseinclude the slave trade, to which Arti- cle 13 of the Convention on the High Seas 137 makes reference. This particular provision commits the parties to this Agreement to adopt effective measures to prevent and punish the transport of slaves in vessels authorized to fly their flags and to prevent the unlawful use of their flags for this purpose. Under Article 22(1) (b) of this Conven- tion, a warship may board a foreign merchant vessel on the high seas ifthere is reasonable grounds for suspecting that the latter is engaged in the slave trade.
(3) In addition to slave trade, traffic in women for prostitution, traffic in narcotic drugs, and war crimes have been the subject of similar universal condemnation. However, with the possible exception of war crimes, universal interest in the suppression of slavery and these other crimes has not as yet been carried to the point of recognition either in customary law or in international agreements, of the principle of universal jurisdiction that obtains in the instance of piracy. 138
Section 11. CASES OF MULTIPLE JURISDICTION
4-10. General. As indicated by the preceding discussion of the various jurisdictional theories, there do arise cases of dual or multiple jurisdiction. For example, if an Italian citizen commits murder in the United States, the U.S. may exercise jurisdiction on the basis of the territorial theory, while Italy may claim jurisdiction on the basis of either the nationality or universalityconcept. The jurisdic- tional complexities can be even further multiplied if the accused has dual nationality, that is, if he has both Italian and Greek citizenship. Finally, still another state may seek
to exercise jurisdiction on the basis of the passive per- sonality theory. In most instances of dual jurisdiction, the state having the accused in custody will exercise jurisdic- tion over him. This, as noted above, results from the fact that, subject to specific agreement, the police of one state may not legally exercise their authority in the territory of another. This general rule is, of course, subject to treaties of extradition and other agreements arrived at between states on the diplomatic level.
Section 111. JURISDICTION OVER AIRCRAFT AND SPACE VEHICLES
4-11. Jurisdiction Over National Aircraft and Space Vehicles. a. General. When the twentieth century began, the techniques of fight and space exploration were drnost all in the future. Little in the way of positive law existed for the regulation of the technology that exploded in the fust decade of the century. It is instructive to ob- serve the ways in which international.law has been created by a process that either anticipated changes or reacted to events that have not been foreseen.
b. Nationality of aircraft and space vehicles.
CONVENTION ON INTERNATIONAL CNIL AVIATION
Signed at Chicago, December 7, 1944
61 Stat. 1180,T.I.A.S. 1591, 15 U.N.T.S. 295
Art. 17.Aircraft have the nationality of the State in which they are registered. Art. 18.An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another.
Art.19.The registration or transfer of registration of aircraft in any contracting State shall be made in accordance with its laws and regula- tions.
l7 and l9 of the Chiago Convention are as that law regards &Ich state's of its nationality to aircraft as con-chive. 139 Earlier aviation agreements had contained similar provisions. Whether articles 17 and 19 of the chicaso convention and COTTesponding provisions of earlier agreements merely codify rules that would be bind- ing as customary international law in the absence of agree- ment is a question still under debate. 140
c. Scope of Jurisdiction Over National Aircraft, Space Vehicles, and Persons Thereon.
CONVENTION ON INTERNATIONAL CIVIL AVIATION
Sied at Chicago, December 7, 1944
61 Stat. 1180,T.I.A.S. 1591, 15 U.N.T.S. 295
Art.12.Each contracting State undertakes to adopt measures to in- sure that every aircraft flying over or maneuvering within its territory and that every aircraft canying its nationality mark, wherever such aircraft may be, shall comply with the rules and the regulations relating to the flight and maneuver of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible dxtent, withthose established from time to time
136. On piracy, see generally. Harvard Research in International Law,Piracy, 26 Am. J. Int'l L. Supp. 739 (1932); Lenior, Piracy Cases in the Supreme Court, 25 J. Crim. L. and Crimir 532 (1934); Johnson, Piracy in ~odern International Law, 43 ~rans.-Grot. Soc j, 63 (1 957);
the municipal law of a number of states provides for the punishment of so-called delicta juris gentium other than piracy on the same basis as the latter. See Harvard Research, Criminal Jurisdiction, supra, note 51 at 569-72.
Hi Seas Convention, supra, note 130. 137.
138.
A strong argument exists that S@IC provisions of each of the four 1949 Geneva Conventions, to which reference was made in chapter I, establish a "universal" jurisdiction on the part of signatories over "grave breaches" of the Conventions. Each Convention contains similar articles to this effect. In the Geneva Convention Relative to the Treatment of Prisoners of War, these articles 129-131.See D.A. Pam 27-1,Treaties Governing Land WaLre (Decembn 195b).
139.
See, e.g., M. McDougal, Space Law, supra, note 39at 552-54 (1963).
140.
Compare, e.g., id. at 553-54,with B. Cheng, The Law of In- ternational Air Transport 130-31 (1962).
under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State under- takes to insure the prosecution of all persons violating the regulations applicable.
d. The International Civil Aviation Organization. The Convention on International Civil Aviation created the International Civil Aviation Organization U.C.A.O.), an intergovernmental organization, the objectives of which are to "develop the principles and techniques of interna- tional air navigation and to foster the planning and development of international air transport." The conven- tion entered into force for the United States on April 4, 1947. As of January 1, 1975, 119 states were parties to the convention, including the United States and the USSR. In 1945 the United States became a party to the International Air Services Transit Agreement. 141 Article 1, section 1, provides the so-called "two freedoms" for scheduled air services:
Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled intemational air services:
(1)
The privilege to fly across its temtory without landing;
(2)
The privilege to land for nontraffic purposes.
The privileges of this section shall not be applicable with respect to air- ports utilized for military purposes to the exclusion of any scheduled in- ternational air services. In areas of active hostilities or of military occupa-tion, and in time of war along the supply routes leading to such areas, the exercise of such privileges shall be subject to the approval of the competent military authorities.
As of January 1, 1975, 86 states were parties to the Tran- sit Agreement.
(1)
There is no widely accepted multilateral treaty which provides for the granting of trafKc rights to foreign airlines. Consequently, the operation of international scheduled airlines depends on the consent of the states to or through the territory of which they fly.
(2)
The possession of these privileges by a foreign airline depends either on a unilateral grant by a state, or on a bilateral agreement between the state of the airline and the other state. Since World War 11, close to a thou- sand bilateral agreements concerning these privileges have been made between the states of the world. Before World War 11, the United States government generally permitted its airlines to obtain operating rights abroad through their own arrangements with the foreign governments con- cerned. In that period, few governments outside North America desired reciprocal rights in the United States for their airlines. During the war, however, the policy of the United States was changed in favor of operating rights abroad being obtained by inter-governmental agree- ments, whenever feasible, and the United States has bilateral air transport agreements with some ffty nations. Such agreements are concluded as "executive agree-ments" rather than "treaties," and are negotiated by teams composed of officials of the Department of State and Civil Aeronautics Board, with the Department of
141. 49 Stat. 1693; 84 U.N.T.S. 389.
State having the primary responsibility. A representative of the United States air carriers sits in during the negotia- tions as an observer. 142 4-12. Jurisdiction Over Foreign Aircraft and Space Vehicles. a. Sovereign0 Over Airspace.
CONVENTION ON INTERNATIONAL CIVIL AVIATION
Signed at Chicago, December 7, 1944
61 Stat. 1180, T.I.A.S. 1591, 15 U.N.T.S. 295
Art. 1.The contracting States recognize that every State has complete
and exclusive sovereignty over the airspace above its territory.
Art. 2. For the purposes of this Convention the temtory of a State
shall be deemed to be the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection, or mandate of
such State.
Art. 5. Each contracting State agrees that all aircraft of the other con-
tracting States, being aircraft not engaged in scheduled intemational air
services shall have the right, subject to the observance of the terms of
this Convention, to make flights into or in transit nonstop across its ter-
ritory and to make stops for non-traffic purposes without the necessity
of obtaining prior permission, and subject to the right of the State flown
over to require landing. Each contracting State nevertheless reserves the
right, for reasons of safety of flight, to require aircraft desiring to
proceed over regions which are inaccessible or without adequate air
navigation facilities to follow prescribed routes, or to obtain special per-
mission for such flights.
Such aircraft, if engaged in the carriage of passengers, cargo, or mail
for remuneration or hue on other than scheduled intemational air ser-
vices, shall also, subject to the provisions of Article 7, have the privilege
of taking on or discharging passengers, cargo, or mail, subject to the
right of any State where such embarkation or discharges takes place to
impose such regulations, conditions, or limitations as it may consider
desirable.
Art. 6. No scheduled international air service may be operated over or
into the territory of a contracting State, except with the special permis-
sion or other authorization of that State, and in accordance with the
terms of such permission or authorization.
(1)
The Convention goes on to provide a legal framework regulating flights of civil aircraft (excluding state aircraft. which include aircraft used in military, customs, and police services). Under Article 3, state aircraft are not permitted to fly over or land in the territory of a state without authorization by special agreement or otherwise.
(2)
The question is often raised as to whether aircraft enjoy a right of "innocent passage" through the air space of a foreign state in the absence of the latter's express agreement. 143 The International Air Services Transit Agreement 144 grants limited transit and landing rights to scheduled aircraft. As a matter of practice, no state con- cedes or claims a right of innocent passage for aircraft in the air space of another state, absent international agree- ment. Statements made by delegates to the Geneva Con- ference on the Law of the Sea (1958) indicate a widespread conviction that aircraft enjoy no right of inno- cent passage, such comparable privileges as exist being
142. Lissitzyn, Bila~eral Agreements on Air Transport, 30 J. Air L. & Corn. 248 (1 964). See also chap. 8, infra.
143. On the tight of innocent passage of vessels through a foreign state's territorial waters, see pages 4-31 thru 4-33, iqfra.
144. Dec. 7, 1944, 59 Stat. 1693, 84 U.N.T.S. 389, E.A.S. 487.
Pam 27-161-1
solely the result of international agreement. 145
(3) Another question often posed is whether a right
) of "entry in distress' exists for aircraft. Article 25 of the Convention on International Civil Aviation provides: "Each contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable. . . ." Whether the foregoing provision imposes any obligation with respect to state aircraft, or whether states not parties to the Chicago Con- vention are under any similar obligation with respect to aircraft of any type, are still open questions. The ad hoe committee of the General Assembly on the peaceful uses of outer space, however, "considered that certain sub- stantive rules of international law already exist concerning rights and duties with respect to aircraft and airmen land- ing on foreign territory through accident, mistake or dis- tress. The opinion was expressed that such rules might be applied in the event of similar landings of space vehi- cles." 146
(4) A problem related to that of landing rights is raised when an aircraft enters another state's air space because of either navigational error or because it is forced by bad weather to do so. In 1946 five United States air- men were killed when their unarmed transport was shot down over Yugoslavia. The United States claimed that the plane had been forced by bad weather to deviate from its course. Yugoslavia, however, denied that there was bad weather in the vicinity of the incident and alleged that the aircraft had ignored landing signals. In paying an indem- nity, "inspired by human feelings," to the United States on behalf of the families of the airmen, Yugoslavia reserved its position on the facts. 147 Numerous subse- quent disputes involving a number of Western and Soviet-bloc states were characterized by disagreement over factual issues, such as the location of aircraft, the reason for their presence in foreign territory, and whether they had been warned to land. 148 The conclusion has been offered, however, that:
. . . there is a right of entry for all foreign aircraft, state or civil, when such entry is due to distress not deliberately caused by persons in control of the aircraft and there is no reasonably safe alternative. . . . Foreign aircraft and their occupants may not be subjected to penalties or to un- necessary detention by the territorial sovereign for entry under. such cir-cumstances or for entry caused by a mistake, at least when the distress or mistake has not been due to negligence chargeable to the persons in control of the aircraft. 149
6. Sanctions Against Aircraft Entering Airspace. Does the fact that a state has jurisdiction to prescribe law governing the airspace above it mean that it has freedom of choice in the methods used to exercise that jurisdic-
145. See, e.g.,3 U.N.Conf. on the Law of the Sea, Of$ Rec. 8, 104 (United Kingdom), 26 (United States), 90-91 (Canada) (1958); 1 Id. 336 (comments by International Civil Aviation Organization) (1958).
14-5. U.N.Doc.A/4141, at 67 (1959). 14'. See Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and International Law, 47 Am. J. Int7 L. 559, 569-73 (1953).
148.
Id. at 573-85.
149.
Id. at 588-89.
tion? Does a state have a right to shoot down any plane that enters its airspace? In 1955 an El A1 Israel Airlines Ltd. commercial airplane, with passengers aboard, en- tered the airspace of Bulgaria for "some unknown reason." Bulgarian fighter aircraft frred at the plane; it ex- ploded in flight and crashed in Bulgarian territory. All 58 persons aboard were killed, including American and Brit- ish passengers. Proceedings were instituted against Bulgaria in the International Court of Justice by Israel, the United States and the United Kingdom, protesting the in- human and excessive use of force by the Bulgarians, the lack of adequate warning, the failure of Bulgaria to recog- nize the right of entry in distress. The cases did not proceed to the merits because of Bulgaria's having failed to consent to the jurisdiction of the Court. 150
(1)
In May 1960 a United States U-2 reconnaissance plane was shot do* while flying over the Soviet Union at an altitude of approximately 60,000 to 68,000 feet. The United States did not protest the Soviet action; nor did it protest the trial, conviction and imprisonment for es-pionage of the American pilot. However, issues other than "technical" trespass of Soviet airspace were involved in the U-2 incident. The criminal charge against the American pilot in the Soviet Union was espionage, as defined in the domestic law of that state. In the tradition of the international spy, fictional and real, the espionage agent is " out in the cold." 151 When Soviet fire brought down a United States RB-47 two months later, however, the United States made vigorous protests on the ground that the aircraft had been over the high seas at the time of its interception. The Soviet Union claimed that the Amer- ican plane had deliberately intruded into Soviet airspace and had disobeyed an order to land. 152
(2)
It is an accepted principle of international law that aircraft of one nation are not permitted to fly over another without the other's consent and that they may be obliged to land if' they stray. But, the degree of force which a country may use to enforce an order to land would de- pend on the facts of any s@~c incident and the reasonableness of the belief that the intruder aircraft con- stituted a threat. Subsequent to the 1967 conflict in the Middle East, Israel claimed sovereignty over the Sinai and the airspace above it. On February 21, 1973, a Libyan Arab Airlines passenger plane flying from Tripoli to Cairo apparently experienced navigational diff~culties, wandered 100 miles east of its normal track and was intercepted by two F-4 fighters of the Israeli Air Force over the Sinai. The Libyan airliner was visually signaled by the intercep- tors to follow them and the airliner lowered its landing gear but shortly thereafter retracted the landing gear and continued straight ahead. The lead interceptor then fired a
150.
9 k Whiteman, Digest of International Law 326-340 (1968).
151.
See Wright, Legal Aspects of the U-2Incident, 54 Am. J. Int7
L. 836, 838 (1960).
152. See Liitzyn, Some Legal Implications of the U-2and RB-47 Incidents, 56 Am. J. Int7 L. 135 (1962).
burst of tracer ammunition across the flight path of the Lib- yan craft and again gave the visual signal to "follow me." The airliner did not comply with this command. The final result of the incident was that after several attempts to compel the airliner to land, the Israeli pilot fired at the starboard wing roof of the plane. The airliner then at- tempted a forced landing in the desert but was unsuc- cessful, the ensuing crash killing over 100 passengers and crew. 153 While publicly regretting the tragedy, the Israelis maintained that their actions were motivated by self- defense and were a legitimate exercise of their sovereign power. The Israeli government characterized the incident as the result of a "tragic series of mistakes" and stated that it would not have forced the plane down ifit knew the true circumstance but that, at the time, it had reason to fear a possible "suicide bombing mission" on an Israeli town or military installation by an airliner loaded with ex- plosives. 154
c. Security Zones. To what extent may security con- siderations justify the extension by a state of its jurisdic- tion into zones of airspace contiguous to those in which it enjoys sovereignty? The United States (since 1950) and Canada (since 195 1) have promulgated regulations estab- lishing Air Defense Ident5cation Zones (ADIZ) ,extend-ing out some points several hundred miles over the high seas. Foreign aircraft entering such zones are required to file fight plans and to make periodic position reports. The United States regulations appear to be normally applicable to foreign aircraft only if they are bound for the United States, but there is no comparable limitation in the Cana- dian regulations. During the Algerian conflict, France es- tablished a "zone of special responsibility," extending some eighty miles from the coast of Algeria, within which aircraft were required to file detailed information regard- ing their flight, to stay within assigned corridors, and to maintain contact with ground identification stations. 155 4-13. Offenses Aboard or Against Aircraft. a. The spe- cial maritime and territorial jurisdiction of the United States is defined in 1 8 U.S.C. 7. In United States v. Cor-dova, 156 it was held that an aircraft was not a "vessel" within the meaning of 18 U.S.C.A. 7(1) and that a United States court therefore had no jurisdiction to try and punish a defendant accused of assaulting certain persons (including the pilot) on a United States aircraft flying over the high seas between Puerto Rico and New York. Con- gress thereupon amended 18 U.S.C. § 7 by an act of July
153. For an in-depth factual account of this incident, see Aviation
Week and Space Technology, July 9, 1973, at 51; July 16, 1973,85; and July 23, 1973, at 83.
154. N.Y. Times, Mar. 2, 1973, 5 1, at 4, col. 1.
155. See M. McDougal, Space Law, supra, note 39 at 307-1 1; Mac-Chesney, Situation Documents and Commentary on Recent Develop- ments in the International Law of the Sea 577-600 in Naval War College, International Law Situation and Documents 1956; J. Murchison, The Contiguous Air Space Zone in International Law (1957); Martial, Smte Control of the Air Space Over the Territorial Sea and the Contiguous Zone, 30 Can. Bar Rev. 245 (1952).
156. 89 F. Supp 298 (1950).
12, 1952 (69 Stat. 589), adding a new subsection (5) ,so
that the "special maritime and territorial jurisdiction of
the United States" now includes:
Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Tenitory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
Note that sec. 501 (b) of the Federal Aviation Act of 1958 157 permits the registration in the United States only of aircraft owned by citizens of the United States and not registered in any foreign country. United States citizens are not forbidden, however, to own or otherwise hold in- terests in aircraft that are registered in a foreign country.
b. Hijacking. A passenger in a commercial airplane threatens to explode a bomb which, he asserts, is in a handbag he is carrying. The pilot diverts the flight of the plane to a destination demanded by the passenger. The passenger leaves the plane at that destination and the plane is flown to its original destination. Even in this sim- ple example there may be a number of problems of domestic and international law. The plane may be registered in the United States or in some other country. The passenger may hijack the plane on the ground in New York, while it is over the Atlantic on its way to London, or while it is on the ground in London. The hijacker may be a U.S. national or the national of another state. He may or may not eventually return to the United States and thus be subject to its enforcement jurisdiction. The United States may ask the government of the foreign state in which the hijacker is located to return him to the United States by extradition proceedings. Additionally, the government of a state to which the hijacker has fled may decide to try him, even though that state has had no con- nection with the event other than having become a place of refuge.
(1) The 1963 Tokyo Convention. 158 This conven- tion was drafted under the auspices of the International Civil Aviation Organization and signed in 1963. It entered into force for the United States on December 4, 1969. Sev- enty-four states were parties to the Convention on Janu- ary 1, 1975. The Convention is concerned broadly with the question of crimes on board aircraft in flight, on the surface of the high seas, or any other area outside the ju- risdiction of a nation state. A special purpose of the Con- vention is to provide that there be no lapse of jurisdiction with respect to such crimes. To that end, Article 3 pro-vides that at least one state shall have jurisdiction:
Article 3
1.
The State of registration of the aircraft is competent to exercise ju- risdiction over offenses and acts committed on board.
2.
Each Contracting State shall take such measures as may be neces- sary to establish its jurisdiction as the State of registration over offenses
157.
49us.c.~.5 1401(b).
158.
Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 20 U.S.T. 2941 (Documentary Supplement) (1969).
committed on board aircraft registered in such State.
3. This Convention does not exclude any criminal jurisdiction exer- cised in accordance with national law.
Article 4
A Contracting State which is not the State of registration may not in- terfere with an aircraft in flight in order to exercise its criminal jurisdic- tion over an offence committed on board except in the following cases:
(a)
the offence has effect on the temtory of such State;
(b)
the offence has been committed by or against a national or per- manent resident of such State;
(c)
the offence is against the security of such State;
(d)
the offence consists of a breach of any rules or regulations relat- ing to the flight or manoeuvre of aircraft in force in such State;
(e)
the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.
The Convention deals in detail with the powers of the aircraft commander to "off-load" and to restrain offend- ers or suspected offenders. Article 11 deals specifically with hijacking:
Article 11
1.
When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or when such an act is about to be com- mitted, Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft.
2.
In the cases contemplated in the preceding paragraph, the Con- tracting State in which the aircraft lands shall permit its passengers and crew to continue their journey as soon as practicable, and shall return the aircraft and its cargo to the persons lawfully entitled to possession. The provision on extradition (Article 16) is relatively weak:
1.
Offences committed on aircraft registered in a Contracting State shall be treated, for the purpose of extradition, as if they had been com- mitted not only in the place in which they have occurred but also in the temtory of the State of registration of the aircraft.
2.
Without prejudice to the provisions of the preceding paragraph, nothing in this Convention shall be deemed to create an obligation to grant extradition.
(2) The 1970 Hague Convention. 159 The Hague Convention was a product of the work of the ICAO. It was approved at a diplomatic conference at The Hague in 1970 and entered into force for the United States on Octo- ber 14, 1971. Fifty-nine states were parties to the Con- vention on January 1, 1975. In contrast to the Tokyo Convention, the Hague Convention is directed narrowly to the question of hijaclung. Its major provisions create universal jurisdiction for the prosecution of hijackers and impose an obligation on the states either to prosecute the hijacker or to extradite him:
Article 1
Any person who on board an aircraft in flight:
(a)
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or at- tempts to perform any such act, or
(b)
is an accomplice of a person who performs or attempts to per-
form any such act commits an offence (hereinafter referred to as "the offence").
Article 4
1. Each Contracting State shall take such measures as may be neces-
159. Convention for the Suppression of Unlawful Seizure of Aircraft, T.I.A.S. 7192 (Documentary Supplement).
sary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:
(a)
when the offence is committed on board an aircraft registered in that State;
(b)
when the aircraft on board which the offence is committed lands in its temtory with the alleged offender still on board;
(c)
when the offence is committed on board an aircraft leased with- out crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.
2.
Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its temtory and it does not ex- tradite him pursuant to Article 8 to any of the States mentioned in para- graph 1 of this Article.
3.
This Convention does not exclude any criminal jurisdiction exer- cised in accordance with national law.
Article 7
The Contracting State in the territory of which the alleged offender is
found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its temto-
ry, to submit the case to its competent authorities for the purpose of
prosecution.
Those authorities shall take their decision in the same manner as in
the case of any ordinary offence of a serious nature under the law of that
State.
Article 8
1.
The offence shall be deemed to be included as an extraditable of- fence in any extradition treaty existing between Contracting States. Contracting States undertake to include the offence as an extraditable offense in every extradition treaty to be concluded between them.
2.
Ifa Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may as its op- tion consider this Convention as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions pro- vided by the law of the requested State.
3.
Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offence as an extraditable of- fence between themselves subject to the conditions provided by the law of the requested State.
4.
The offence shall be treated, for the purpose of extradition be-tween Contracting States, as if it had been committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 4, paragraph 1.
(3) U. S. legislation relevant to the 1970 Hague Convention follows:
U.S. FEDERAL A VIA TION ACT OF 1958 (AS AMENDED), SECTION 902
75 Stat. 466 (1961), 49 U.S.C.A. 5 1472
Title 49, Section 1301.
As used in this chapter, unless the context otherwise requires-
.. . .
outside the United States which has its next scheduled destination or last point of departure in the United States provided that in either case it next actually lands in the United States. For the purpose of this def~tion,an aircraft is considered to be in flight from the moment when power is applied for the purpose within the United States, or any other aircraft- aircraft of the national defense forces of the United States; and civil aircraft of the United States; (32)
The term "special aircraft jurisdiction of the United States" in-cludes the following aircraft while in flight-
(a)
(b)
(c)
(i)
(ii)
of takeoff until the moment when the landing run ends.
Title 49, Section 1472.
(i)
(1) Whoever commits or attempts to commit aircraft piracy, as herein defined, shall be punished-
(A)
by death if the verdict of the jury shall so recommend, or, in the case of a plea of guilty, or a plea of not guilty where the defendant has waived a trial by jury, if the court in its discretion shall so order; or
(B)
by imprisonment for not less than twenty years, if the death penalty is not imposed.
(2)
As used in this subsection, the term "aircraft piracy" means any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft within the special aircraft jurisdiction of the United States.
6) Whoever, while aboard an aircraft within the special aircraft ju- risdiction of the United States, assaults, intimidates, or threatens any Mt crew member or hght attendant (iiluding any steward or steward- ess) of such aircraft, so as to interfere with the performance of such member or attendant of his duties or lessen the ability of such member or attendant to perform his duties, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be imprisoned for any term of years or for life.
(k)
(1) Whoever, while aboard an aircraft withiin the special aircraft jurisdiction of the United States, commits an act which, if committed within the special maritime and territorial jurisdiction of the United States, as defmed in section 7 of Title 18, would be in violation of [sec-tions defming, inter alia, murder, robbery, assault] shall be punished as provided therein.
(2)
Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, commits an act, which, ifcommitted in the District of Columbia would be in violation of section 9 of the Act en- titled "An Act for the preservation of the public peace and the protec- tion of property within the District of Columbia," approved July 29, 1892, as amended (D.C. Code, sec. 22-1 112), shall be punished as pro- vided therein.
c.
Sabotage. The Sabotage Convention 160 was adopted by a Conference on International Air Law at Montreal in 1971. It entered into force on January 26, 1973, and as of January 1,1975, had 59 signatories. The scope of the con- vention is described by the head of the U.S. delegation to the conference as follows:
Although this convention is similar to the Hijacking Convention in many respects, it is significantly distinct: It does not, basically, require states to define any new offenseeit covers acts which already are com- mon crimes; it does not, for the most part, establish new crimes to fall within the extradition process-most of the acts already are extraditable crimes. These were important elements of the Hijacking Convention. It might be said that states could punish offenders or extradite them with- out this convention.
What this convention does is to impose an obligation on states requir-ing them to prosecute or extradite offenders. It serves as a waning to any person who contemplates such acts that the intemational com- munity has responded with unanimity to condemn such acts. In this respect it is like the Hijacking Convention.
And in an important respect this convention does more than the Hi- jacking Convention. It covers acts against aircraft in a state's domestic service, even when the acts take place wholly withiin that same state, if the offender escapes to another state. While this element is not critical for the Hijacking Convention, it is crucial for the effectiveness of the convention we have concluded, because of the possibility that offenders may escape before they are discovered. This convention declares that no one who sabotages a civil aircraft-whether in domestic or intemational service-no one who places a bomb on board such an aircraft, no evil-
160. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, T.I.A.S. 7570 (Documentary Supplement).
doer who commits violence aboard such an aircraft in flight, no criminal of this character shall ever find sanctuary anywhere- in the world, no matter how deviously he may seek to evade retribution for his deeds., The parties to this convention have declared that this despicable criminal shall be pursued without respite. 161
4-14. Jurisdiction Over Vessels and Individuals Thereon. a. The importance of international norms com- prising the Law of the Sea becomes increasingly apparent, as there is now under way a signif~cant struggle over the control and use of the world's oceans. There exists an ongoing debate over whether navigation, fishing, and the extraction of minerals can be engaged in freely by all states in all parts of the oceans, or whether countries can carve out areas of the sea for their exclusive use and control. There is agreement that a state has jurisdiction over its "internal waters" and an area of the sea adjoining the coastline, the "territorial sea." There is no agreement, however, as to how wide an area may be lawfully claimed as territorial sea. The United States, though claiming a ter- ritorial sea of three miles, has indicated it might accept a twelve-mile limit. In contrast, while the claims of most states do not exceed twelve miles, a few countries claim an area as extensive as 200 miles. Beyond the territorial sea, there are claims to more limited use of the oceans, with respect to so-called contiguous zones, and beyond these zones, with respect to portions of the seabed such as the continental shelf. Moreover, though an older body of law governs many of the uses of the high seas, new law is being formulated with respect to the bed of the deep sea.
(1)
The 1958 Geneva Conference on the Law of the Sea has had 'a significant impact on the development of legal norms in this area. The conventions emanating from that conference variously codified portions of the custom- ary law or created new law. Not all of the problems that were then perceived were solved by the conventions, however, The conference was unable, for example, to agree on the breadth of the territorial sea. Moreover, technological developments have created new problems about the exploitation of the seabed. 162
(2)
In 1970, the General Assembly of the United Nations decided to convene a third conference on the law of the sea in 1973. Accordingly, the taskof preparing draft articles was assigned to the Assembly's Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction. The conference, scheduled for 1973, actually convened in 1974 in Caracas, Venezuela. As a result of little substantive progress, further sessions were held in 1975 and 1976. In 1976 the conference issued a Revised Single Negotiating Text and recommended that another session be held in
65 Dep't State Bull. 464 (1971). 161.
162.
The conventions are: Convention on the Territorial Sea and the Contiguous Zone, 516 U.N.T.S. 205, 15 U.S.T. 1606; Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312; Convention on the Continental Shelf, 49 U.N.T.S. 31 1, 15 U.S.T. 471; and Convention on Fishing and Conservation of the Living Resources of the High Seas, 17
U.S.T. 138. 559 U.N.T.S. 285.
Pam 27-161-1
1977. 163 The Revised Single Negotiating Text may prove to be the single most important document regarding the law of the sea since the 1958Geneva Convention in terms of its influence on state practice, whether by way of an ulti- mate treaty produced by the conference or by the effect it will have on how the law is regarded by states even with- out a treaty.
4-15. Nationality of Vessels.
CONVENTION ON THE HIGH SEAS
Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82
.Art. 4. Every State, whether coastal or not, has the right to sail ships
under its flag on the high seas.
Art. 5. (1) Each State shall fix the conditions for the grant of its na-
tionality to ships, for the registration of ships in its territory, and for the
right to fly its flag. Ships have the nationality of the State whose flag they
are entitled to fly. There must exist a genuine link between the State
and the ship; in particular, the State must effectively exercise its jurisdic-
tion and control in administrative, technical and social matters over
ships flying its flag.
(2)
Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
Art. 6. (1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high ?as. A ship may not change its flag during a voyage or whiie in a port of call, save in the case of a real transfer of ownership or change of registry.
(2)
A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in
163. For a concise discussion of the third Conference and the unresolved issues, see Stevenson and Oxman, The Third United Nations Corlference on the Law of the Sea: The 1974Caracas Session, 69 Am. J. Int7 L. 1 (1975); The Third United Nations Co@rence on the Law of the Sea: The 1975 Geneva Session, 69 Am. J. Int'l L. 763 (1975); The Third United Nations Corlference on the Law of the Sea: The New York Sessions, 71 Am. J. Int7 L. 247 (1977). For the 1976 Revised Single Negotiating Text, see U.N. Doc. AICONF. 62/WP.8/REV 1, May 6, 1976. The negotiations at the Third Conference are basically deadlocked over three critical issues: a regime for exploiting the resources of the deep seabed, the rights of landlocked and geographically disadvantaged states, and the legal status of the agreed 200-mile economic zone. Regarding the latter issue, the Revised Single Negotiating Text, id., in providmg for a 200-mile zone, reflects what had essentially become a fait accompli as a result of the tide of state claims in recent years running to approximately this extent. In March of 1977, the United States began to roll with this tide by claiming such a zone in order to control foreign fishing within 200 miles of U.S. coasts. See Fishery Conservation and Management Act, P. L. 94-265, 90 STAT 331 (1 March 1977). Since then, states, such as Canada, Denmark, the Federal Republic of Ger- many, France, India, Norway, Pakistan, South Africa, the U.K., and the
U.S.S.R. have declared their intent to claim such zones regardless of the outcome of the Thud Conference. Unresolved, however, is the issue concerning the scope of "national jurisdiction" in the zone. One group of states, mostly South American, contend that such jurisdiction should be total, making the zone in effect a territorial sea in which other coun-tries only enjoy such rights as navigation, overtlight, and cormnunica- tion. Another group, mostly maritime nations, want to lit coastal state jurisdiction to a right to exploit the natural resources in the zone. They would limit the territorial sea to 12 miles and would defme the re- mainder of the 200-mile zone as part of the high seas, subject only to certain economic rights of the coastal state. Still another position, perhaps a popular middle ground, would classify this area as neither high seas nor territorial sea but subject to "national jurisdiction," except for the freedoms of navigation and overflight and the right to lay cables.
question with respect to any other State, and may be assimilated to a ship without nationality.
The report of the Senate Committee on Foreign Relations explained the final version of Article 5 as follows: The International Law Commission did not decide upon a definition of the term "genuine link." This article as originally drafted by the Commission would have authorized other states to determine whether there was a "genuine link" between a ship and the flag state for pur- poses of recognition of the nationality of the ship. It was felt by some states attending the Conference on the Law of the Sea that the term "genuine link" could, depending upon how it were defined, limit the discretion of a state to decide which ships it would per- mit to fly its flag. Some states, which felt their flag vessels were at a com- petitive disadvantage with vessels sailing under the flags of other states, such as Panama and Liberia, were anxious to adopt a definition which states like Panama and Liberia could not meet. By a vote of 30 states, including the United States, against, 15 states for, and 17 states abstaining, the provision was eliminated which would have enabled states other than the flag state to withhold recognition of the national charter of a ship if they considered that there was no "genuine link" between the state and the ship. Thus, under the Convention on the High Seas, it is for each state to determine how it shall exercise jurisdiction and control in adrniinistra- tive, technical and social matters over ships flying its flag. The "genuine link" requirement need not have any effect upon the practice of registering American built or owned vessels in such countries as Panama or Liberia. The existence of a "genuine link" between the state and the ship is not a condition of recognition of the nationality of a ship; that is, no state can claim the right to determine unilaterally that no gen- uine link exists between a ship and the flag state. Nevertheless, there is a possibility that a state, with respect to a particular ship, may assert before an agreed tribunal, such as the International Court of Justice, that no genuine link exists. In such event, it would be for the Court to decide whether or not a "genuine lii" existed. 164
4-16. Scope of Jurisdiction Over National Vessels and Persons Thereon. a. Control over the movements and activities of national vessels. It is generally recognized that it is ". . . unquestioned practice that the state which is responsible for a ship's conformity with international law has a competence equal to its responsibility and may con- trol the movement and activities of its ships as its in-terpretation of community obligations and its national .policies require." 165 An example of this authority, as ex-ercised by the United States, follows.
U.S. DEP'T OF COMMERCE, TRANSPORTATION ORDER
T-2 (AMENDED)
Section 1. Prohibition of movement of American carriers to Communist
China; North Korea, or to the Communist-controlled area of Viet
Nam.
No person shall sail, fly, navigate, or otherwise take any ship docu-
mented under the laws of the United States or any aircraft registered under the laws of the United States to any Chinese Communist port; North Korea, any other place under the control of the Chinese Com- munist, or to the Communist-controlled area of Viet Nam. Section 2. Prohibition on transportation of goods destined for Com-
164. Executive Report No. 5-Law of the Sea Convention, 106 Cong. Rec. 11189, 90, 86th Cong., 2d Sess., 1960. See generally, M. McDougal & W. Burke, The Public Order of the Oceans 1013-15, 1033-35, 1073-75, 1080-82, 1087-88, 1137-39 (1962) (hereinafter cited as M. McDougal, Oceans Law), and B. Bonek, Flags of Conven- ience 2766-3 (1 962).
165. M. McDougal, Oceans Law, at 1066.
munist China; North Korea, or the Communistcontrolled area of
Viet Narn.
No person shall transport, in any ship documented under the laws of
the United States or in any aircraft registered under the laws of the
United States, to Chinese Communist ports, North Korea, any other
place under the control of the Chinese Communists, or to the Com-
munist-controlled area of Viet Nam, any material, commodity, or cargo
of any kind. . . .
b. Acts committed aboard national vessels.
m D STATES v. mm
Supreme Court of the United States, 1933
289 U.S. 137, 53 S.Ct. 580, 77 L.Ed.1086
JUSTICE STONE:By indictment found in the District Court for
Eastern Pennsylvania it was charged that appellee, a citizen of the
United States, murdered another citizen of the United States upon the
Steamship Padnsay, an American vessel, while at anchor in the Port of
Matadi, in the Belgian Congo, a place subject to the sovereignty of the
Kingdom of Belgium, and that appellee, after the commission of the
crime, was fmt brought into the Port of Philadelphia, a place within the
territorial jurisdiction of the District Court. . . . mhe Padnsay, at the
time of the offense charged, was unloading, beii attached to the shore
by cables, at a point 250 miles inland from the mouth of the Congo
River.
The District Court . .. sustained a demurrer to the indictment and
discharged the prisoner on the ground that the court was without juris-
diction to try the offense charged. 3F. Supp. 134.The case comes here
by direct appeal. . . .
Sections 273 and 275 of the Criminal Code, 18 U.S.C. 55 452, 454 (18USCA $8 452,454),define murder and fix its punishment. Section 272,upon the construction of which the court below rested its decision, makes punishable offenses defmed by other sections of the Criminal Code, among other cases, "when.committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States" or any of its nationals. And by section 41 of the Judicial Code, 28 U.S.C. 5 102 (28 USCA 5 102),venue to try offenses "committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district," is "in the district where the offender is found, or into which he is fmt brought." As the offense charged here was committed on board a vessel lying outside the territorial jurisdiction of a state . . ., and within that of a foreign sovereignty, the court below was without jurisdiction to try and punish the offense unless it was with- in the admiralty and maritime jurisdiction of the United States.
Two questions are presented on this appeal, fmt, whether the exten- sion of the judicial power of the federal government "to all Cases of ad-miralty and maritime Jurisdiction," by article 3,§ 3,of the Constitution confers on Congress power to define and punish offenses perpetrated by a citizen of the United States on board one of its merchant vessels lying in navigable waters within the territorial limits of another sovereignty; and, second, whether Congress has exercised that power by the enact- ment of section 272of the Criminal Code under which the indictment was found.
me Court held that Congress had the constitutional power to define and punish crimes on American vessels in foreign waters, and that the language of the statute making it applicable to offenses committed on an American vessel outside the jurisdiction of a state "within the admiralty and maritime jurisdiction of the United States" was broad enough to in- clude crimes in the "territorial waters" of a foreign country. Mr. Justice Stone continued:]
It is true that the criminal jurisdiction of the United States is in general based on the territorial principle, and criminalstatutes of the United States are not by implication given an extraterritorial effect. United States v. Bowman,260U.S. 94,98,43S.Ct. 39,67 L.Ed. 149; compare Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. But that principle has never been thought to be applicable to a merchant vessel which, for purposes of the jurisdiction of the courts of the sovereignty whose flag it flies to punish crimes committed upon it, is
deemed to be a part of the territory of that sovereignty, and not to lose
that character when in navigable waters within the territorial limits of
another sovereignty. .. . Subject to the right of the territorial sov-
ereignty to assert jurisdiction over offenses disturbing the peace of
the port, it has been supported by writers on international law, and has
been recognized by France, Belgium, and other continental countries,
as well as by England and the United States. . ..
A related but different question, not presented here, may arise when
jurisdiction over an offense committed on a foreign vessel is asserted by
the sovereignty in whose waters it was lying at the time of its commis-
sion, since for some purposes, the jurisdiction may be regarded as con-
current, in that the courts of either sovereignty may try the offense.
There is not entire agreement among nations or the writers on inter-
national law as to which sovereignty should yield to the other when the
jurisdiction is asserted by both. See Jessup, The Law of Territorial
Waters, 144-193.The position of the United States exemplified in
Widenhus's Case,120U.S. 1,7S.Ct. 385,30L.Ed.565,has been that
at least in the case of major crimes, affecting the peace and tranquility of
the port, the jurisdiction asserted by the sovereignty of the port must
prevail over that of the vessel. . . .
This doctrine does not impinge on that laid down in United States v. Rodgers [I50U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893)], that the United States may defme and punish offenses committed by its own citizens on its own vessels while within foreign waters where the local sovereign has not asserted its jurisdiction. In the absence of any controll- ing treaty provision, and any assertion of jurisdiction by the territorial sovereign, it is the duty of the courts of the United States to apply to offenses committed by its citizens on vessels flying its flag, its own statutes, interpreted in the light of recognized principles of international law. So applied the indictment here sufficiently charges an offense with- in the admiralty and maritime jurisdiction of the United States and the judgment below must be
Reversed.
c.
In Regina v. James Anderson, 166 an American crewman serving on a British vessel had been convicted of murder committed on board the vessel while the latter was in the Garome River in France, about 45 miles from the sea and about 300 yards from the nearest bank. The court upheld the conviction despite defendant's argument that the court had no jurisdiction, pointing out that although "the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offense within the territo- ry of France, yet he must also be considered as subject to the jurisdiction of British law, which extends to the protec- tion of British vessels, though in ports belonging to another country." 167
d.
Pertinent provisions applicable to jurisdiction over national vessels follow.
166. 11 Cox Crim. Cas. 198.
167. Id. at 204.Bi on an American vessel on the high seas is not, under the law of the United States, equivalent to bii "in the United States," and a child born on such a vessel of alien parents does not ac- quire United States nationality. 3 G. Hackworth, Digest of International Law, 11-12 (1942).
Pam 27-161-1
CONVENTION ON THE HIGH SEAS Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200,450 U.N.T.S. 82
. Article 11
1.
In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2.
In disciplinary matters, the State which has issued a master's cer- tificate or a certificate of competence or license shall alone be compe-tent, after due legal process, to pronounce the withdrawal of such certifi-
. cates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investiga- tion, shall be ordered by any authorities other than those of the flag State.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965)
against a member of its military service. 4 31. A state has jurisdiction to prescribe rules attaching legal conse- quences to
(a)
conduct of any person aboard a vessel or aircraft having its na- tionality while the vessel is under the control of its commanding offcer, and
(b)
conduct of any person who is a member of its national military se~ces.
5 32. (1) A state having jurisdiction to prescribe a rule of law has juris- diction to enforce the rule outside of its territory:
(a)
aboard a vessel or aircraft having its nationality while under the control of its commanding officer,
(b)
(2)
The exercise of the jurisdiction to enforce a rule of law stated in this Section is subject to the rights of the territorial state as indicated in Q
44.
5 44.(1) A state may not exercise in the territory of another state the ju- risdiction to enforce rules of law that it has under the rule stated in Q 32, except to the extent that
(a)
the exercise of the right of innocent passage or entry in distress into the territory of the other state permits it to exercise such jurisdic- tion on board a vessel under the rules stated in QQ 46-48;
(b)
consent from the other state to the visit of one of its vessels or consent to the presence of its military force impliedly permits the exer- cise of such jurisdiction with respect to such vessel or force under the rules stated in 85 49 and 50 and QQ 51-62;
(c)
the other state otherwise permits its exercise of such jurisdic- tion.
(2)
A state that exercises its enforcement jurisdiction when, under the rules stated in Subsection (I), it may not do so, violates the other
168. The effect of Article 11 is to overrule in part the holding of the Permanent Court of International Justice in the "Lotus" Case, supra, note 129. To some extent, this result has already been achieved as among the parties to the International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions and .Other Incidents of Navigation, signed at Brussels on May 10, 1952. [I9601 Gr.Brit.T.S. No. 47, at 14, Cmnd. 1128 (entered into force Nov. 20, 1955).
state's rights under international law. 169
4-17. Exercise of Jurisdiction in Particular Situations.
a. Foreign vessels in internal waters; resolution of con- flicts of jurisdiction.
WILDENHUS' CASE
Supreme Court of the United States, 1887
120U.S. 1,7S.Ct.385,3OL.Ed.565
[Wddenhus, a Belgian national, killed another Belgian national below
the deck of the Belgian vessel of which they were both crew members,
which was at the time of the slaying moored to a dock in Jersey City.
The local police authorities arrested Widenhus, charging him with the
killing, and held two other crew members as witnesses. The Belgian
consul applied for a writ of habeas corpus, citing Article 11 of the treaty
of March 9, 1880 (21 Stat. 776) between Belgium and the United
States, which provided: "The respective consuls-general, consuls, vice-
consuls, and consular agents shall have exclusive charge of the internal
order of the merchant vessels of their nation, and shall alone take cog-
nizance of all differences which may arise, either at sea or in port, be-
tween the captains, officers and crews, without exception, particularly
with reference to the adjustment of wages and the execution of con-
tracts. The local authorities shall not interfere except when the disorder
that has arisen is of such a nature as to disturb tranquillity and public
order on shore, or in the port, or when a person of the country or not
belonging to the crew shall be concerned therein." The Circuit Court
refused to order the release of the prisoners, and the consul appealed to
the Supreme Court.]
WAITE,C.J.. ..By sections 751 and 753 of the Revised Statutes, the courts of the United States have power to issue writs of habeas cor- pus which shall extend to prisoners in jail when they are in "custody in violation of the constitution or a law or treaty of the United States," and the question we have to consider is whether these prisoners are held in violation of the provisions of the existing treaty between the United States and Belgium.
It is part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it sub- jects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understand- ing or agreement; for, as was said by Chief Justice Marshall in The Ex- change, 7 Cranch. 144: "It would be obviously inconvenient and dan-gerous to society, and would subject the laws to-continual infraction, and the government to degradation, if such . . . merchants did not owe tem- porary and local allegiance, and were not amenable to the jurisdiction of
169. For discussion regarding the extent to which a state may exer- cise aboard a vessel having its nationality the enforcement jurisdiction recognized by the Restatement, 54 32,44, when the vessel is subject to another skte's territorial jurisdiction, see Reslatement Q 46(3) (permit- ting "detention or such other interim enforcement measures as the in- ternal management or discipline of the vessel requires" when the vessel is in innocent passage through territorial waters of another state), and 5 50(a) (permitting enforcement measures to the "extent necessary to detain on board the vessel a person with respect to whom the coastal state does not exercise its jurisdiction" when the vessel is in internal waters of another state). See also Arts. 19 and 20 of the Geneva Con- vention on the TerrirLiial Sea and the Contiguous Zone. Compare the extent of United States jurisdiction asserted in 18 U.S.C.A. 5 7(1), pro- viding that the "special maritime and territorial jurisdiction of the United States" includes:
The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdic- tion of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corpora- tion created by or under the laws of the United States, or of any State, Territory, District or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
Pam 27-161-1
the country." . . . And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cmningham, Bell, Cr.Cas. 72; S.C. 8 Cox, Crim.Cas. 104; Regina v. Anderson, 11 Cox, Crim.Cas. 198, 204; S.C.L.R. 1 Cr.Cas. 161, 165; Regina v. Keyn, 13 Cox, Crirn.Cas. 403,486, 525;
S.C. 2 Exch.Div. 63, 161, 21 3. As the owner has voluntarily taken his vessel, for his own private purposes, to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes'that government such allegiance, for the time being, as is due for the protection to which he becomes entitled.
From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from in- terfering with the internal discipline of the ship, and the general regula- tion of the rights and duties of the officers and crew towards the vessel, or among themselves. And so by comity it came to be generally under- stood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tran- quillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. But, if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the of- fenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tri- bunals see fit to assert their authority. Such beimg the general public law on this subject, treaties and conventions have been entered into by na- tions having commercial intercourse, the purpose of which was to settle and defme the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions.
. . . .
[The Court then analyzed a number of treaties subsequently entered into by the United States, and concluded that these treaties either im- pliedly, or as in the case of the Belgian treaty under consideration ex- plicitly] gave the consuls authority to cause proper order to be main- tained on board, and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is substantially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the con- duct of the United States and Belgium towards each other in this particu- lar. Each nation has granted to the other such local jurisdiction within its own dominion as may be necessary to maintain order on board a merchant vessel, but has reserved to inself the right to interfere if the disorder on board is of a nature to disturb the public tranquillity.
. . . [T]he only important question left for our determination is whether the thing which has been done–the disorder that has arisen- on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the "public repose," of the people who look to the state of New Jersey for their protection. If the thing done-"the dis-order," as it is called in the treaty-4s of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done, is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they, as a rule, care for anything done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Not so, however, with crimes which from their gra-vity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers it- self bound to provide a severe punishment for when committed within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular ex- citement rises or falls as the news spreads, and the facts become known. It is not alone the publicity of the act, or the noise and clamor which at-
tends it, that fixes the nature of the crime, but the act, itself. If that is of
a character to awaken public interest when it becomes known, it is a
"disorder," the nature of which is to affect the community at large, and
consequently to invoke the power of the local government whose people
have been disturbed by what wasdone. The very nature of such an act is
to disturb the quiet of a peaceful community, and to create, in the
language of the treaty, a "disorder" which will "disturb tranquillity and
public order on shore or in the port." The principle which governs the
whole matter is this: Disorders which disturb only the peace of the ship
or those on board are to be dealt with exclusively by the sovereignty of
the home of the ship, but those which disturb the public peace may be
suppressed, and, if need be, the offenders punished, by the proper
authorities of the local jurisdiction. It may not be easy at all times to
determine to which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending circumstances
of the particular case, but all must concede that felonious homicide is a
subject for the local jurisdiction; and that, if the proper authorities are
proceeding with the case in a regular way the consul has no right to in-
terfere to prevent it. . . .
….
The judgment of the circuit court is aff~rmed.
As the Chief Justice indicated in Wildenhus' Case, states customarily resort to international agreements in order to reconcile potential conflicts of jurisdiction that might arise from the presence of merchantmen in foreign ports. 170 The Consular Convention of 1951 between the United States and the United Kingdom provides in Article 22(2) :
Without prejudice to the right of the administrative and judicial authorities of the territory to take cognizance of crimes or offenses com- mitted on board the vessel when she is in the ports or in the territorial waters of the territory and which are cognizable under the local law or to enforce local laws applicable to vessels in ports and territorial waters or persons and property thereon, it is the common intention of the High Contracting Parties that the administrative and police authorities of the territory should not, except at the request or with the consent of the consular officer,
(a)
concern themselves with any matter taking place on board the vessel unless for the preservation of peace and order or in the interests of public health or safety, or
(b)
institute prosecutions in respect of crimes or offenses commit- ted on board the vessel unlessthey are of a serious character or involve the tranquillity of the port or unless they are committed by or against persons other than the crew. 171
It may be doubted whether in the absence of a concession by treaty, the territorial sovereign is deterred by the operation of any rule of inter- national law from exercising through its local courts jurisdiction over civil controversies between masters and members of a crew, when the judicial aid of its tribunals is invoked by the latter, and notably when a libel in rem is fded against the ship. It is to be observed, however, that ; American courts exercise discretion in taking or withholding jurisdiction
3 U.S.T. 3426, T.I.A.S. 2494, 165 U.N.T.S. 121. 170.
The British view regarding the exercise of jurisdiction in a foreign port is that "the subjection of the ship to the local criminal juris- diction is . . . complete and that any derogation from it is a matter of comity in the discretion of the coastal state." J. Brierly, The Law of Na- tions 223 (6th ed. Waldock 1963). When the United States prohibition laws were held in Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923) to be applicable to foreign vessels temporarily in United States ports, the protests of foreign governments were based almost entirely on appeals to comity. P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 221-28 (1927). For general discus- sions of criminal jurisdiction over visiting foreign vessels, see id at 144-94; R. Stanger, Criminal Jurisdiction Over Visiting Armed Forces, [1957-581 Naval War College International Law Studies, 43-54.
171.
according to the circumstances of the particular case.Their action in so
'
doing is not to be regarded as indicative of any requirement of public in- ternational law. 172
b. After the court has decided to retain a case for deci- sion, whether in the exercise of its sound discretion or in compliance with legislative mandate, it must decide whether the forum's jurisdiction to prescribe shall be deemed to have been exercised so that United States law applies to the issue presented. 173 In the Kate A. Hoff claim, the General Claims Commission 174 hearing this claim spoke to the degree of jurisdiction to be exercised over a merchant vessel forced into internal waters by a superior force.
The enlightened principle of comity which exempts a merchant vessel, at least to a certain extent, from the operation of local laws has been generally stated to apply to vessels forced into port by storm, or compelled to seek refuge for vital repairs or for provisioning, or carried into port by mutineers. It has also been asserted in defense of a charge of attempted [breach] of blockade. It was asserted by as early a writer as Vattel.
4-18. Foreign Vessels in the Territorial Sea: The Right of Innocent Passage. a. General.
The right of innocent passage seems to be the result of an attempt to reconcile the freedom of ocean navigation with the theory of territorial waters. While recognizing the necessity of granting to littoral states a zone of waters along the coast, the family of nations was unwilling to prejudice the newly gained freedom of the seas. As a general principle, the right of innocent passage requires no supporting argument or cita- tion of authority; it is firmly established in international law. 175
Codified norms applicable to foreign vessels in the ter- ritorial sea and the right of innocent passage follow.
b. Convention on the territorial sea and the contiguous zone.
Geneva, April 28, 1958 15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205 SECTION111. RIGHT OF INNOCENT
PASSAGE
Sub-section A. Rules applicable to all ships
Art. 14. (1) Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
(2)
Passage means navigation through the territorial sea for the pur- pose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from inter- nal waters.
(3)
Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force mqieure or by distress.
172.
I. Hyde, International Law 742-43 (2d rev. ed. 1945). On the application of the doctrine of forum non conveniens in litigation involv- ing foreign merchant vessels and seamen, see The Estes, 109 F. 216 (191 1); Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 Cornel L. Q. 12 (1949).
173.
See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10,83 S.Ct. 671,9 L.Ed.2d 547 (1963); Lauritzen
v. Larson, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953).
174. United States v. Mexico, 4 U.N. R.I.A.A. 444.
175. P. Jessup, The Law of Territorial Waters and Maritime Juris- diction 120 (1927) (hereinafter cited as P. Jessup, Territorial Waters). See also Franklin, The Law of the Sea: Some Recent Developmen&, [1959-601 NAVAL WAR COLLEGE LAW STUDIES
INTERNATIONAL 127-56.
(4)
Passgeis innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.
(5)
Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.
(6)
Submarines are required to navigate on the surface and to show their flag.
Art. 15. (1) The costal State must not hamper innocent passage through the territorial sea.
(2)
The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial
sea.
Art. 16. (1) The coastal State may take the necessary steps in its ter- ritorial sea to prevent passage which is not innocent.
(2)
In the caseof ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to those waters is subject.
(3)
Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in sWed areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published.
(4)
There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation be- tween one part of the high seas and another part of the high seas or the territorial sea of a foreign State.
Art. 17. Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in con- formity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation. 176
Sub-section B. Rules applicable to merchant ships
Art. 18. (1) No charge may be levied upon foreign ships by reason only of their passage through the temtorial sea. . . .
Art. 19. (1) The criminal j-ction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in comexion with any crime committed on board the ship during its passage, save only the following cases:
If it is neceswy for the suppression of illicit traffic in narcotic If the consequences of the-crime extend to the coastal State; or (a)
(b)
If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or
(c)
If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or
(d)
dm3.
(2)
The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or in- vestigation on board a foreign ship passing through the territorial sea after leaving internal waters.
(3)
In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, if the captain so requests, advise the consular authority of the flag State before taking any steps, and shall facilitate contact between such authority and the ship's crew. In cases of emergency this notification may be communicated whiie the measures are beii taken. . . .
(5)
The coastal State may not take any steps on board a foreign ship passing through the temtorial sea to arrest any person or to conduct any investigation in comexion with any crime committed before the ship
176. On the question of the coastal state's duty to publicize dangers to navigation, compare the Conventions requirement of actual knowledge of such dangers with the conditions laid down in the Corfu Channel case, [I9491 I.C.J. 4.
entered the territorial sea, if the ship, proceeding from a foreign port, is
only passing through the territorial sea without entering internal waters.
Art. 20. (1) The coastal State should not stop or divert a foreign ship
passing through the territorial sea for the purpose of exercising civil ju-
risdiction in relation to a person on board the ship.
(2)The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obliga- tions or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.
(3)The provisions of the previous paragraph are without prejudice to the right of the coastal Siate, in accordance with its laws, to levy execu- tion against or to arrest, for the purpose of any civil proceedings, a foregin ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.
Sub-section C. Rules applicable to government ships other than warships Art. 21. The rules contained in sub-sections A and B shall also apply to govenunent ships operated for commercial purposes. 177
Sub-section D. Rule applicable to warships
Art. 23.If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and dis-regards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea. 178
A warship's right of innocent passage under customary law is unclear. Jessup concluded, in 1927, that ". . . the sound rule seems to be that they [warships] should not en- joy an absolute legal right to pass through a state's ter- ritorial waters any more than an army may cross the land territory." 179 The Hague Codification Conference con- fined itself to observing that states ordinarily "will not for- bid the passage of foreign warships" and "will not require a previous authorization or notification." 180
c. Innocent passage through straits. In the Corfu Chan- nel Case, 181 the United Ktngdom sought to hold Albania responsible for damage caused to British warships by mines moored in the Corfu Channel in Albanian ter- ritorial waters. Albania contended that the British war- ships had violated Albanian sovereignty by passing through its territorial waters without previous authoriza- tion. In deciding that the Corfu Channel belonged to "the class of international highways through which a right of passage exists," the Court held that the "decisive cri- terion" was "its geographical situation as connecting two parts of the high seas and the fact of its being used for in- ternational navigation.'' The Court rejected as immaterial Albanian arguments that the Channel was not a neces- sary, but only an alternative, passage between two parts of the high seas, holding that it was sufficient that the Chan-
177.
Reservations have been entered by the Communist states to the articles permitting coastal states to exercise civil jurisdiction over state trading vessels.
179. P. JESSUP, TERRITORIAL supra, note 175 at 120.96 (1966). 178.
Many states have, on ratifying the Convention, made reserva- tions asserting the coastal state's right to require warships to seek pre- vious authorization before passing through the territorial sea. See Slonim, The Right ofInnocent Passage and the 1958 Geneva Corlference on the Law of the Sea, 5 COLUM.J. TRANSNAT'L
L.
WATERS,
180. 24 AM.J. INT'L SUPP. 246 (1930). For a collection of view, see 4 M. WHITEMAN,DIGESTOF LAW404-17
INTERNATIONAL (1965) (hereinafter cited as 4 M. WHITEMAN).
181. Corfu Channel case, [I9491I.C.J. 4.
nel had been "a useful route for international maritime traKic." 182 The decision has been criticized as giving in- suffcient weight to functional considerations; i.e., as fail- ing to balance "the interest which the coastal state has in its own territorial sea against that which the international maritime community has in traversing that passage." 183
The International Law Commission, in its final version of the predecessor of Article 16 (4), limited the right of passage through straits to those which are "nor- mally used for international navigation between two part of the high seas." 184 In the First Committee, however, the word "normally" was deleted and the article was further amended to its present form by a vote of 31-30-10, over vigorous objection by the Arab states. (Prior to the occupation of the Sinai Peninsula by Israeli forces in 1967, Egypt and Saudi Arabia controlled the Straits of Tiran which provided the sole access to the Gulf of Aqaba, on which Israel has several miles of front- age.) 185 In the Plenary Meeting, a motion by the U.A.R. for a separate vote on paragraph 4 of Article 16 was de- feated by a vote of 34-32-6; the Article was then approved in full. Several Arab states, however, have entered reser- vations to this provision. (1)
(2)
By the terms of the Treaty of Lausanne, 186 the Dardanelles and the Bosphorus came under the supervi- sion of an international commission, the only one of its type ever to function. Vessels of commerce were to be allowed free passage in time of war and in peace, but limits were placed on the number of naval vessels permitted to transit the Straits into the Black Sea. Turkey was permitted to take defensive measures against enemy ships in time of war. 187 But the Straits were demilitarized (Art. 4). The Straits Commission functioned as a supervisor of transit, assuring that warships could pass through the Straits with- out undue hindrance, upon occasion making representa- tions to Turkey on this subject. The Commission was ter- minated upon conclusion of the Montreux Convention of 1936. 188 The Convention transferred the functions of the Straits Commission to Turkey, the littoral state, which thus reasserted its sovereignty. Restrictions on the num- ber of warships transiting the Straits into the Black Sea were maintained, and Turkey assumed responsibility for assuring free passage. Free and unlimited navigation for merchant vessels was retained, but Turkey was granted the right to remilitarize the Straits. The Montreux Con- vention was to remain in force for twenty years from the
182. Id. at 28.
183. 1.D. O'CONNELL, LAW563 (2d ed. 1970)
INTERNATIONAL (hereinafter cited as 1 D. O'CONNELL).
184. 2 Y.B.INT'L L. C. 273 (1956).
Convention Relating to the Regime of the Straits (1928), 28 185.
3 U.N. Conf. on the Law of the Sea, OFF. REC. 93-96, 100 (1958).
186.
L.N.T.S. 115.
187.
Annex to Art. 2 of the Treaty of Lausanne.
188.
Convention Concerning the Regime of the Straits (1936), 173
L.N.T.S. 213.
date of its entry into force and was subject to denunciation upon two years' notice after 1956. The right of free transit for merchant vessels, however, is to continue without time limitation. As of January 1,1976, none of the parties had sought to denounce the Convention. 189
d. Innocent passage through international canals. The right of free passage through international straits is a product of state practice hardening into customary international law and thence into treaty. The right of free passage through interoceanic canals is a conse- quence of the opening of each waterway to usage by the international community. It is the origin of the right in a series of individual grants which distinguishes the law relating to canals from the law of straits. The privilege of free passage through the three major interoceanic canals, Suez, Panama, and Kiel, has been created in each case by a treaty to
which the territorial sovereign, acting freely or under the pressure of other powers, has been a party. 190
(1)
The right of free passage through the Suez Canal is usually said to be founded on the Convention of Con- stantinople of 1888, 191 although some writers maintain that the international character of the canal had already been established by concessions of 1854 and 1866. The Convention was signed by Great Britain, Germany, France, Austria-Hungary, Italy, the Netherlands, Russia, Spain, and the Ottoman Empire (then holding sovereignty over Egypt). After the Canal's nationalization in 1956, Egypt rediimed its obligations under the Convention. 192 The Convention provides in Article I that the Canal ". . . shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without dis- tinction of flag," and in Article IV that ". .. no right of war, no act of hostility, nor any act having for its object the obstruction of the free navigation of the Canal, shall be committed in the Canal and its ports of access, as well as within a radius of three marine miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers." The Convention also includes restrictions on warships and fortifications. In practice, rights under Article I have usually been regarded as granted to all states whether or not they adhere to the Convention. 193 During the two World Wars, the United Kingdom justified measures inconsistent with the Con- vention as necessary to prevent the Canal's destruction. Since 1948, Egypt has justified anti-Israeli restrictions on the basis of its "inherent" right of self-defense. 194
(2)
The regime of the Panama Canal is governed by the Hay-Pauncefote Treaty of 1901 between the United
189. 4 M. WHITEMAN,supra, note 180 at 417-47; see also R. BAXTER, THE LAW OF INTERNATIONAL 159-68
WATERWAYS (1964) (hereinafter cited as R. BAXTER).For materials on the problem of the Gulf of Aqaba, see 4 M. WHITEMAN,supra at 465-80.
265 U.N.T.S. 299; 272 U.N.T:S. 225. R. BAXTER,supra at 168-69. 190.
191.
79 BRIT. & FOR. STATE PAPERS 18, Reprinted in 3 AM. J. INT'LL. SUPP. 123 (1909).
192.
193.
See 1 D. O'CONNELL,supra, note 183 at 643-48; R. BAX-TER,supra, note 189 at 89-91, 169-70, 183 n. 162.
194. See 1 D.O'CONNELL,Supra at 647-48 and Gross, Passage Through the Suez Canal of Israel-bound Cargo and Israel Ships, 51 AM.
J. INT'L L. 530 (1957).
States and Great Britain, 195 the rules of which are ex- pressly stated to be "substantially as embodied in the Convention of Constantinople." The agreement provides in Article I11 that ". . .the canal shall be free and open to the vessels of commerce and of war of all nations observ- ing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or changes of traffc, or otherwise." The foregoing language was sub- stantially reproduced in the 1903 treaty by which the United States acquired the Canal Zone from Panama. 196
(3)
The Kiel Canal had not, prior to the Treaty of Versailles of 19 19, been considered by Germany as an in- ternational waterway, open without restriction to all states. Article 380 of the Treaty of Versailles, however, provided that ". . .the Kiel Canal and its approaches shall be main- tained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of en- tire equality." 197 The Permanent Court of International Justice, in the Case of the S.S. Wimbledon,198 referred to the Canal as "an international waterway . . . for the benefit of all nations of the world," even though only 28 states were parties to Article 380. In 1936 Germany de- nounced Article 380 without effective protest from other states.
(4)
The legal position of states that are not parties to treaties guaranteeing passage through international canals has been rationalized by the doctrine of "international servitudes"; by the "third-party beneficiary" concepts drawn from municipal law; by the theory that certain treaties are "dispositive" in nature in the sense that they create "real rights" that attach to a territory and are therefore not dependent on the treaty which created them; and by analogy to treaties, such as the United Na- tions Charter, that have an objective, legislative character, in that they create international status that must be recog- nized by all states, whether contracting parties or not. Baxter states that: .. .the preferable theory concerning the rights of nonsignatories is that a
state may, in whole or in part, dedicate a waterway to international use, which dedication, if relied upon, creates legally enforceable rights in favor of the shipping of the international community. A treaty, a unilateral declaration–perhaps even a concession-may be the instru- ment whereby the dedication is effected. Its form is not important; what is important is that it speaks to the entire world or to a group of states who are to be the beneficiaries of the right of free passage. 199
4-19. Foreign Vessels On the High Seas (Contiguous Zone and Beyond).
CONVENTION ON THE HlGH SEAS
Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82
Art. 1. The term "high seas" means all parts of the seas that are not
195.
32 Stat. 1903.
196.
R. BAXTER,supra, note 189 at 170-71.
'97, 112 BRIT. & FOR. STATE PAPERS 1, 189.
198.
119231 P.C.I.J., ser. A, No. 1.
199.
R.BAXTER,supra, note 189, at 182-83.
included in the territorial sea or in the internal waters of a State.
Art. 2. The high seas being open to all nations, no State may validly
purport to subject any part of them its sovereignty. Freedom of the high
seas is exercised udder the conditions laid down by this article and
by the other rules of international law. It comprises, inter
alia, both for coastal and non-coastal States:
(1)
Freedom of navigation;
(2)
Freedom of fishing;
(3)
Freedom to lay submarine cables and pipelines;
(4)
Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general prin- ciples of international law, shall be exercised by all States with reasona- ble regard to the interests of other States in their exercise of the freedom of the high seas.
Art. 22. (1) Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasona-ble ground for suspecting:
If the suspicions prove to be unfounded, and provided that the ship That the ship is engaged in the slave trade; or That the ship is engaged in piracy; or (a)
(b)
(c)
That, though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
(2)
In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have ben checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
(3)
boarded has not committed any act justifying them, it shall be compen- sated for any loss or damage that may have been sustained.
CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE
Geneva, April 28, 1958
15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205
Art.24. (1) In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to:
(a)
Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;
(b)
Punish infringement of the above regulations committed within its temtory or territorial sea.
(2)
The contiguous zone may not extend beyond twelve miles from the base lie from which the breadth of the territorial sea is measured.
(3) Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.
The exercise of jurisdiction in contiguous zones of the high seas becomes necessary in view of the inadequacy under modem conditions of any reasonable breadth of territorial waters; whatever we may regard as the breadth of marginal sea now accepted under international law, there are occasions and purposes for which jurisdiction must be exer- cised farther out from shore. This differs from an attempt to declare such areas temtorial waters subject to the full sovereignty of the coastal state. 200
4-20. Comment on Materials Presented. As indicated in
the opening paragraph of this section, no attempt has been
made to examine fully the vast and rather complex area of
the Law of the Sea. Instead, attention has been focused on
those concepts which the &tary attorney is most likely to have. occasion to apply in the field: jurisdictional norms applicable to vessels and persons thereon. This chapter has dealt with one of the most significant, as well as substan- tive, aspects of public international .law: the various juris- dictional theories by which states exercise control over territory, individuals, and events. The necessity for a thorough analysis and comprehension of this area of the law is evident. While emphasis has been placed throughout this chapter on the right of state to control in- dividuals and activities under its jurisdiction, there do ex- ist instances where a state, its agents, and instrumentalities have an international right to immunity from the exercise ofjurisdiction over both their actions and property. An in- creasingly important aspect of international jurisprudence, these jurisdictional immunities are the subject of chapter 5, irlfra.
200. Bishop, The Exercise of Jurisdiction for Special Purposes in High Seas Beyond the Outer Limit of Territorial Waters, reprinted in 99 CONC.REC.2493 (1953).
Pam 27-161-1
CHAPTER 5
JURISDICTIONAL IMMUNITIES
5-1. General. Having examined the various means by which a state may exercise its jurisdiction in the interna- tional community, attention must now be focused on those instances when a state generally refrains from exer- cising this jurisdiction over certain individuals and proper- ty. In dealing with this somewhat technical subject ofjuris- dictional immunities, four specific areas will be analyzed. 1 Although discussed as distinctive elements of the total subject matter, each aspect of jurisdictional immunity re- lates to the other. Accordingly, it is imperative that the at- torney understand fully one area of this chapter before directing his attention to the next.
Section I. JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
5-2. The Current Importance of Jurisdictional Im- munities. a. Under international law, states enjoy certain immunities from the exercis'e by another state of jurisdic- tion to enforce rules of law. The primary impact of these immunities, which in some cases extend not only to the foreign state itself, but also to its property, its agents, and its instrumentalities, is felt when a private party finds it necessary to press a claim against a foreign government or the latter's agent or instrumentality in judicial or arbitral proceedings. Often, the major obstacle faced by the pri- vate party will be the immunity the foreign government enjoys under applicable principles of international law or under the law of the state in which the proceeding is to be brought. Under United States law, a broader measure of immunity is sometimes accorded to foreign states than is required by international jurisprudence.
b.
During the last thirty years, governments throughout the world have become increasingly involved in international commercial dealings with private parties. The most obvious manifestations of this trend have been the state foreign trade monopolies of the Communist states and the pervasive role that the governments of many developing countries have chosen or have been compelled by circumstances to play in international com- merce. An increased participation of government in com-mercial dealings has been a phenomenon clearly discerni- ble even in those industrialized countries that most vigorously champion private enterprise. A continuing in- crease in governmental participation in commerce, possi- bly accelerated by a growth in East-West trade and in trade between the industrialized countries and the developing countries suggests that problems of state immunities may well become more frequent and pressing in the years ahead.
c.
Any claimant bringing an action against a foreign state in a court within the United States must face prob- lems raised by the special status of the defendant at three key procedural stages. First, steps must be taken to give a court jurisdiction so that it may entertain the action. If the foreign state has no property within the territory of the forum that can provide the basis for in rem or quasi in rem jurisdiction, jurisdiction in personam must be sought. Sec- ond, even if jurisdiction can be acquired, a claim of im- munity by the foreign state may prevent the court from proceeding to decide the claim on the merits. Finally,
even if the claimant obtains a judgment against the foreign state, his victory will be a false one if he is unable to secure payment by the defendant state. The effect of a validly in- terposed plea of state immunity is to bar consideration of the merits of the claim presented by the claimant. 2 Ac-cordingly, as a general rule, it is only after the court ac- quires jurisdiction that a claim of immunity becomes im-portant. Thiswill be the case both when the claim is raised after the court has obtained in personam jurisdiction over the foreign state, and when a plea or suggestion of im-munity seeksto vacate an attachment of property effected in connection with acquiring in rem or quasi in rem juris- diction. If, moreover, the claimant should obtain a judg- ment against the foreign state, a claim of immunity may still be interposed to prevent execution of that judgment against the foreign state's property. Thus,assuming that the claimant can frnd a basis on which the court's jurisdic- tion can be founded, state immunity may deny the claimant his day in court, and even if he has, and carries, that day, immunity may make it impossible for him to en- force his judgment if voluntary satisfaction by the defen- dant is not forthcoming. 3
5-3. The Two Theories of Sovereign Immunity. a.
There have evolved through the years, two basic theories of jurisdictional immunity–the absolute and the restric- tive. There exists no universal approach toward the grant- ing of this very special form of protection to a sovereign, his agents, and instrumentalities. Often, states employ a combination of the two theories of immunity. Moreover, some countries, such as the United States, generally grant greater immunity than international law would seem to
1. These areas are: Jurisdictional Immunities of Foreign States, Im-munities of State Representatives, Immunities of International Organizations, and the Granting of Political Asylum or Temporary Refuge.
2. Restatement (Second) Foreign Relations Law of the United Stares. 5 65, comment c (1965).
3. It is important, at this point, to direct the reader's attention to the distinction between the concepts of jurisdictional immunity and the Act of State doctrine. Jurisdictional immunity stands for the proposition that a sovereign, his agents, and property will not be made the subject of a suit in another state, regardlessof where the activity giving rise to the cause of action occurred. The Act of State doctrine, discussed exten- sively in chapter 7, idra, declares that the actions of a state, taken solely within its territorial boundaries, will not be subjected to judicial review by U.S. courts.
require. Accordingly, it is necessary to examine closely both the manner in which these two basic theories of im-munity are employed and the problems often encountered in their utilization.
b. The Absolute Theory.
(1) The U.S.View.
THE SCHOONER EXCHANGE v. M'FADDON
Supreme Court of the United States, 1812 11 U.S. (7 Cranch) 116, 3 L.Ed. 287
[A libel was brought against the schooner Exchange by two American citizens who claimed that they owned and were entitled to possession of the ship. They alleged that the vessel had been seized on the high seas in 1810 by forces acting on behalf of the Emperor of France and that no prize court of competent jurisdiction had pronounced judgment against the vessel. No one appeared for the vessel, but the United States At- torney for Pennsylvania appeared on behalf of the United States Government to state that the United States and France were at peace, that a public ship (known as the Balaou) of the Emperor of France had been compelled by bad weather to enter the port of Philadel- phia, and was prevented from leaving by the process of the court. The United States Attorney stated that, even if the vessel had in fact been wrongfully seized from the libellants, property therein had passed to the Emperor of France. It was therefore requested that the libel be dis- missed with costs and the vessel released. The District Court dismissed the libel, the Circuit Court reversed (4 Hall's L.J. 232), and the United States Attorney appealed to the Supreme Court.]
MARSHALL,C.J.: . . . The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. . . .
This full and absolute territorial jurisdiction being alike the attribute of
every sovereign . . . would not seem to contemplate foreign sovereigns
nor their sovereign rights as its objects. One sovereign being in no RSW
amenable to another; and beiing bound by obligations of the highest
character not to degrade the dignity of his nation, by placing himself or
its sovereign tights within the jurisdiction of another, can be supposed
to enter a foreign territory only under an express license, or in the cod-
-. –
dence that the immunities belonging to his independent sovereign sta- tion, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an in- terchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.
1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory.. . . 2d. A second case, standing on the same principles with the fmt, is the immunity which all civilized nations allow to foreign ministers.
3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. . . .
phe Court concluded that the territorial sovereign's license to foreign armies must be express, and not merely implied, but that a different rule applied in the case of foreign ships.] . . . If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are sup- posed to enter such ports and to remain in them while allowed to re- main, under the protection of the government of the place. . . .
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the
government to degradation, if such individuals or merchants did not
owe temporary and local allegiance, and were not amenable to the juris-
diction of the country. . . .
But in all respects different is the situation of a public armed ship. She
constitutes a part of the military force of her nation; acts under the im-
mediate and direct command of the sovereign; is employed by him in
national objects. He has many and powerful motives for preventing
those objects from beiig defeated by the interference of a foreign state.
Such interference cannot take without affecting his power and his dig-
nity. The implied license therefore under which such vessel enters a
friendly port, may reasonably be construed, and it seems to the Court,
ought to be construed, as containing an exemption from the jurisdiction
of the sovereign, within those territory she claims the rights of hospi-
tality.
Upon these principles, by the unanimous consent of nations, a
foreigner is amenable to the laws of the place; but certainly in practice,
nations have not yet asserted their jurisdiction over the public armed
ships of a foreign sovereign entering a port open for their reception.
Bynkershoek, a jurist of great reputation, has indeed maintained that
the property of a foreign sovereign is not distinguishable by any legal ex-
emption from the property of an ordinary individual, and has quoted
several cases in which courts have exercised jurisdiction over causes in
which a foreign sovereign was made a party defendant.
Without indicating any opinion on this question, it may safely be affumed, that there is a manifest distinction between the private proper- ty of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is entrusted to govern. . . .
It seems then to the Court, to be a principle of public law, that na- tional ships of war,entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.
Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tri- bunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that proper- ty in the courts of the country, in which it is found, ought not, in the opinion of this Court, to be so construed as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to waive its jurisdiction.
The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length, which forbids a particular examination of these points. . . .
If the preceding reasoning be correct, the Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an im- plied promise, that while necessarily within it, and demeaning herselfin
a friendly manner, she should be exempt from the jurisdiction of the country.. . . [Judgment of the Cucuit Court reversed, and judgment of the Dis- trict Court, dismissing the libel, afliied.]
BERIZZI BROS. CO. v. S.S. PESARO
Supreme Court of the United States, 1926 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088
[A libel in rem was brought against the Pesaro, a merchant vessel owned and operated by the Italian Government and engaged in carrying cargo and passengers for hue, to enforce a claim for cargo damage. The vessel was released on the direct suggestion by the Italian Ambassador that the ship was owned and in the possession of the Italian Govern- ment, but the Supreme Court reversed, holding that inasmuch as the Ambassador had not appeared as a party, the suggestion must come through the official channels of the United States. The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592 (1921). Remanded to the District Court, the case was considered on an agreed statement of facts showing, inter alia, that the vessel would not be immune from suit in Italy, and that in Italy merchant vessels owned by the United States Government would not be immune. The State Department declined to take a position on the vessel's immunity, but a claim and plea in abatement was en- tered by the ship's master. Judge Mack ovemled objections to the juris- diction of the Court, The Pesaro, 277 Fed. 473 (S.D.N.Y.1921), stat- ing, at 481-83:
. . . To deprive parties injured in the ordinary course of trade of their common and well-established legal remedies would not only work great hardship on them, but in the long run it would operate to the disadvantage and detriment of those in whose favor the im- munity might be granted. Shippers would hesitate to trade with government ships, and salvors would run few risks to save the property of friendly sovereigns, if they were denied recourse to our own courts and left to prosecute their claims in foreign tribunals in distant lands. . .. The attachment of public trading vessels, in my judgment, is not incompatible with the public interests of any na- tion or with the respect and deference due a foregin power. .. .
[In] my opinion, a government ship should not be immune from seizure as such, but only by reason of the nature of the service in which she is engaged.
And as the Pesaro was employed as an ordinary merchant vessel for commercial purposes at a time when no emergency existed or was declared, she should not be immune from arrest in admiralty, especially as no exemption has been claimed for her, by reason of her sovereign or political character, through the official channels of the United States.
But if I err in believing that the accepted law of this country does not require a holding that merchant vessels owned and operated as such by a foreign sovereign state are, therefore, exempt from seizure, the Pesaro would, nevertheless, not be entitled to immunity.
I do not base this upon the fact that ships owned and operated for commercial purposes by the United States would not be exempt from ordinary process under Italian law, for retaliation and reprisal are for the executive branches of our government and not for the courts. . ..
But the fact that the steamship Pesaro itself is subject to the ordinary processes of the Italian court would seem to be vital and decisive. There is no reason of international comity or courtesy which requires that Italian property not deemed extra commercium in Italy should be treated as res publica and extra commercium in the United States. . . .
[Following the decision, however, of the Supreme Court in The Gul Djernal, 264 U.S. 90, 44 S.Ct. 244, 68 L.Ed. 574 (1924), that a ship's master was not a proper person to "vindicate the owner's sovereignty," the order of Judge Mack in The Pesaro was vacated by consent of the parties. The Italian Ambassador then fded a claim and answer. The court upheld the immunity of the Pesaro, finding the weight of authority against the position adopted by Judge Mack. 13 F.2d 468 (S.D.N.Y.1926). Libellant appealed to the Supreme Court.]
VAN DEVANTER, J.: . . . The single question presented for decision
by us is whether a ship owned and possessed by a foreign government,
and operated by it in the carriage of merchandise for hire, is immune
from arrest under process based on a libel in rem by a private suitor in a
federal district court exercising admiralty jurisdiction.
This precise question never has been considered by this Court before. Several efforts to present it have been made in recent years, but always in circumstances which did not require its consideration. The nearest ap- proach to it in this Court's decisions is found in The Exchange, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287.. ..
It will be perceived that the opinion, although dealing comprehen- sively with the general subject, contains no reference to merchant ships owned and operated by a government. But the omission is not of special significance, for in 1812, when the decision was given, merchant ships were operated only by private owners, and there was little thought of governments engaging in such operations. That came much later.
The decision in The Exchange therefore cannot be taken as excluding merchant ships held and used by a government from the principles there announced. On the contrary, if such ships come within those principles, they must be held to have the same immunity as warships, in the ab- sence of a treaty or statute of the United States evincing a different pur- pose. No such treaty or statute has been brought to our attention.
We think the principles are applicable alike to all ships held and used by a government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans and operates ships in the carrying trade, they are public ships in the same sense that warships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force. . . .
Decree afhned.
These early American opinions accurately reflect the basic concept of the absolute theory of jurisdictional im- munity, i.e., that a sovereign and its property are total& immune to suit and seizure. As will be discussed at a later point in this chapter, the U.S.approach has now become more restrictive in nature. 4
(2) The U.K.View. The case of the Parlement Belges involved proceedings in rem brought by the owners of a ship damaged by a collision with the Parle- ment Belge. No appearance was entered on behalf of the Parlement Belge, but the British Attorney General filed an information and protest asserting that the court had no ju- risdiction, inasmuch as the Parlement Belge was a mail packet in the possession, control, and employ of the King of the Belgians, and a public vessel of that sovereign and his state. It was not disputed that the Parlement Belge, besides carrying the mail between Ostend and Dover, car- ried merchandise and passengers for hire. The Admiralty Division overruled the Attorney General's protest, and the latter appealed. In allowing the appeal Brett, L. J., stated:
[Tlhe real principle on which the exemption of every sovereign from the jursidiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity-that is to say, with his absolute independence of every superior authority. . . .
[Wle are of the opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of every sovereign authority and of the international comity which in-
4.
Idra note 1 1.
5.
5 P.D. 197 (Court of Appeal 1880).
Pam 27-161-1
duces every sovereign state to respect the independence of every other sovereign state, each and everyone declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, sub- ject to its jurisdiction.
The adherence of English courts to the absolute theory of sovereign immunity may well result from a rigid applica- tion of the rule of precedent rather than from a conviction that international law requires them to continue applying the theory.
In The Porto Alexandre, 6 the immunity of foreign states, previously established with respect to litigation aris-ing from an activity which was not commercial, was granted in litigation involving a ship owned by a foreign state and used for trading. In The Cristina, 7 several of the Law Lords indicated they doubted the immunity should have been granted with respect to a commercial activity in The Porto Alexandre and suggested the extension of irn-munity in the case was not required by the previous deci- sion in point. However, the facts in The Cristina did not afford them the opportunity of passing anew on the issue. Thus, the theory of absolute immunity remains the rule of law in English courts. The precedents established in the United Kingdom with respect to sovereign immunity have been followed generally by courts in the British Common- wealth, though with occasional indications of doubt about the soundness of the absolute theory.
(3)
The Socialist States' View.
(a)
Socialist states are committed to the "absolute theory" of sovereign immunity and claim international law requires that it be granted even in cases where the litigation arises from commercial activities. In many states in western Europe and elsewhere, however, the courts ap- ply "the restrictive theory" and deny immunity to socialist states- and other states- in litigation arising from such activities. Socialist states look upon the denial of immunity in these cases as unwarranted interference with the conduct of their trade abroad through state monopolies.
(b)
In the Soviet system, foreign trade is a state monopoly, normally carried on through trade delegations in foreign countries.
Under Soviet law, these delegations . . . are an integral part of the diplo- matic missions of the U.S.S.R. abroad and enjoy the same privileges as the latter. Trade missions fulfil three main functions: a) the representa- tion of the interests of the U.S.S.R. in the field of foreign trade and the promotion of the commercial and other economic relations between the
U.S.S.R. and the country in which the mission is resident; b) the regula- tion of the trade between the U.S.S.R. and the country in which they are resident; c) the implementation of the trade between the U.S.S.R. and the country in which they are resident.. . .
Trade missions enjoy all the powers necessary for the fulfiient of these functions. They can conclude all kinds of agreements and con- tracts on behalf of the U.S.S.R., enter into commitments, including
6. [I9201 P. 30 (C.A.).
119381 A.C. 485.
through the use of promissory notes, give guarantees, conclude agree- ments regarding the submission of disputes to arbitration courts and in general undertake all legal actions necessary to carry out the respon- sibilities with which they are vested, including appearing in foreign courts as a plaint8. Trade missions can be defendants only in cases aris- ing out of contracts concluded or guaranteed by them in the country concerned, and only in countries in relation to which the Government of the U.S.S.R. has by means of an international treaty or unilateral declaration clearly and precisely expressd its consent to the trade mission being subject to local courts in disputes of the character concerned. a
(c) Although the Soviet view is that, inasmuch as the wrying on of foreign trade is a sovereign activity of the Soviet Union, trade delegations and their property en- joy immunities in foreign countries derived directly from the sovereignty of the Soviet state itself, the Soviet Union has concluded a large number of bilateral treaties which contain provisions subjecting its trade delegations to the local jurisdiction in respect of their commercial activities. 9
(4 Since 1924, the Soviet Union has had legis- lation requiring the permission of the "Council of Peo- ple's Commissars" before property belonging to a foreign state could be attached or levied upon in satisfaction of a judgment. The immunity of foreign states receives more extensive regulation in the new Soviet legislation on civil procedure. While the Soviet Council of Ministers or other authorized organs may provide for retaliation against foreign states that do not respect Soviet immunity the new law, unlike the earlier, does not contain a reciprocity pro- vision. 10 Though the absolute theory still frnds favor in the courts of the United Kingdom and the socialist states, the majority of the international community has now moved toward the application of some form of the restric- tive concept of jurisdictional immunity. Thus, attention must now be focused in this direction. 5-4. The Restrictive Theory. a. The Tate Letter. The first major step in the U.S. shift toward the restrictive theory and an explanation of the conceptual basis of this approach were best set forth in 1952, in what has since come to be known as "the Tate Letter."
UNITED STATES: LETTER FROM THE ACTING LEGAL
ADVISER OF THE DEPARTMENT OF STATE TO THE
DEPARTMENT OF JUSTICE, MAY 19,1952.
26 United States Department of State Bulletin 984 (1952). MY DEAR MR. ATTORNEY GENERAL: The Department of State has for some time had under consideration the question whether the practice of the Government in granting im- munity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the ob- vious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department's deci-sion.
8. Academy of Sciences of the U.S.S.R., International Law 305-07 (Ogden transl. 1961).
9. For details, see J. Triska and R. Slusser, The Theory, Law, and Policy of Soviet Treaties 342-33 (1962), and S. Sucharitkul, State Im-munities and Trading Activities in International Law 152-61 (1959).
'0. See Soviet Civil Legislation and Procedure (Foreign Languages Publishing House, Moscow, 1965).
Pam 27-161-1
A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and fiy established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respond- ent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agree- ment by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property ex- cepted) or with respect to the disposition of the property of a deceased person even though a foreign sovereign is the beneficiary.
The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland.
The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sum- cient on which to base a conclusion.
The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restric- tive theory of immunity if and when the occasion presents itself.
A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory.
The German courts, after a period of hesitation at the end of the nine- teenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive theory since that time the German courts might take a different view today.
The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20's to embrace the restrictive theory. Rumania, Peru, and possibly Denmark also appear to follow this theory.
Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favor- ing the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the law. Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory.
Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which im- munity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming im- munity for its public owned or operated merchant vessels. Keeping in mind the importance placed by cases involving public vessels in the field of sovereign immunity, it is thus noteworthy that these ten countries (Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Po- land,Portugal, Sweden) and the United States have already relinquished by treaty or in practice an important part of the immunity which they claim under the classical theory.
It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. There are evidences that British authorities are aware of its deficiencies and ready for a change. The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming im-munity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.
It is realized that a shift in policy by the executive eannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so. There have been indications that at least some Justices of the Supreme Court feel that in this matter courts should follow the branch of the Govern- ment charged with responsibility for the conduct of foreign relations.
In order that your Department, which is charged with representing the interests of the Government before the courts, may be adequately informed it will be the Department's practice to advise you of all re- quests by foreign governments for the grant of immunity from suit and of the Department's action thereon.
Sincerely yours,
For the Secretary of State:
JACK B. TATE
Acting Legal Adviser
The purpose of the Tate Letter was, of course, to explain future U.S. policy with regard to jurisdictional immunity and to offer guidelines as to how the State Department would act upon requests for such protection. It soon became evident, however, that despite the guidance con- tained in this letter, uncertainty, as well as legal and politi- cal problems, continued to surround this jurisdictional concept. These issues will be discussed in the pages that follow. In order to appreciate the need for the recent shift away from executive to full judicial primacy in determina- tion of state immunity, 11 an examination of U.S. practice under and a critque of the Tate approach follows. It is of importance to note that the Tate Letter was simply tangi-ble evidence to continuing American movement toward the majority view of jurisdictional immunity.
b. Evolution of the Restrictive Theory.
(1) Prior to 1952, there had been a consistent turn away from the absolute to the restrictive theory ofjurisdic- tional immunity by the majority of the world community. The Supreme Court of Belgium adopted the Restrictive theory in 1903. In Egypt, the Court of Appeals of the Mixed Courts-then the highest court with jurisdiction
11. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891 (1976), 28 U.S.C. 1602.
Pam 27-161-1
over sovereign immunity cases–sanctioned in 1920 the Restrictive theory in a litigation involving the United Kingdom. By 19 18, the Supreme Court of Switzerland was applying the Restrictive theory, and in 1925, the Supreme Court of Italy adopted this approach when a trade mission of the USSR became involved in litigation before the Italian courts which arose from the mission's commercial activities. By 1928, the lower courts in Greece were declining to grant immunity to the USSR in a suit involving a commercial act, and in 1929, the Supreme Court of France sanctioned the Restrictive theo- ry, previously applied in the lower French courts, when a trade mission of the USSR was sued in connection with its commercial activities in France. Additionally, though refusing to apply the restrictive approach in 1921, the courts of the German Federal Republic have since become committed to this theory. Finally, both the Netherlands and Austria have become exponents of the restrictive view of jurisdictional immunity.
(2) In addition to these unilateral decisions to adopt the Restrictive theory, various states, in 1926, entered into the frrst multilateral convention embodying this con- cept-The Brussels Convention on the Unification of Cer- tain Rules Relating to Immunity of State-owned Vessels. 12 Article 1 (g) of this agreement provides that:
Seagoing vessels owned or operated by States, cargoes owned by them, and cargoes and passengers carried on Government vessels, and the States owning or operating such vessels, or owning such cargoes, are subject in respect of claims relating to the operation of such vessels or the carriage of such cargoes to the same rules of liability and to the same obligations as those applicable to private vessels, cargoes and equip- ments.
An essential element of the convention rests in the fact that when such vessels are involved in controversies relat- ing to collision, salvage, general average, repairs, supplies, or other contracts relating to the vessel, the claimant is en- titled to institute proceedings in the courts of the state owning or operating the vessel, without the state being permitted to avail itself of its immunity. 13
(3) This brief synopsis of the evolution of the restric- tive theory has a dual purpose. First, it evidences the fact that a major shift toward the restrictive approach has oc- curred throughout the international community. Addi- tionally, however, it is designed to alert the reader to the fact that, though many states do currently favor the restrictive theory, there still exists no universal approach toward the question of jurisdictional immunity. Even among those countries which favor the restrictive form of protection, the methods of implementation and in-terpretation vary. A clear understanding of this lack of uniformity is essential to an informed analysis of the sub- ject in question. 5-5. Procedures for Asserting Immunity. A foreign state may be required to follow certain procedures in asserting its immunity, provided that these procedures do
r
12. 176 L.N.T.S. 199 (1926).
13. The United States is not a party to this convention.
not unreasonably restrict its opportunity effectively to do so. Before the 1976 congressional change instituting the present practice, the procedures required of foreign states before United States courts and agencies were surn- marized in Restatement (Second), 14 as follows:
5 71. Assertion of Immunity: Law of the United States
(1)
In a federal court or other enforcing agency of the United States, an objection to its exercise of enforcement jurisdiction with respect to a foreign state, based on the rule stated in 5 65, is ineffective if made after the merits of the controversy have been placed in issue by the foreign state and unless made to the court or other enforcing agency either:
(a)
by the United States by means of a suggestion originating in the Department of State and communicated to the court or other en- forcing agency by the Department of Justice, or
@) by the government of the foreign state or its accredited diplo- matic representative upon an appearance before the court or other en- forcing agency that does not place the merits of the controversy in issue.
(2)
In a court of a state of the United States, the procedure for assert- ing immunity is determined by the law of that state. Such procedure is normally similar to that indicated in Subsection (1) but may permit assertion of immunity later or in a different manner than required by the rule stated in Subsection (1). A state may not prescribe more stringent requirements other than assertion before the merits of the controversy are placed in issue.
(3)
Failure to assert immunity as indicated in Subsections (1) and (2) does not affect immunity from execution unless the circumstances in- dicate a waiver of such immunity. . ..
5-6. The Evolving Status of Sovereign Foreign Lit- igants in U.S. Courts. a. Previous Role of the U.S. Executive Branch in Questions of Jurisdictional Immunity.
The suggestion by the State Department, as set forth in the Tate Letter, that the courts defer to the former's sug- gestions regarding various requests for jurisdictional im- munity was not a novel concept of the function of the American judiciary. U.S. Courts, both State and Federal, and prior to and after the Tate Letter, often deferred to suggestions from the Executive Branch in cases involving the Nation's foreign relations. For example, suggestions of the State Department 1s have played a role in connec- tion with recognition of foreign states and gover&ents and the Act of State Doctrine. 16 While this deference did provoke charges that the courts are abdicating their responsibility and that the State Department was intruding into the judicial sphere, 17 the constitutional supremacy'of the Executive Branch 18 in the conduct of foreign relations was generally seen before the recent statutory changes as requiring courts to defer to the Executive judgment with
14. Restatement (Second), supra note 2 at 5 71.
1s. The reader's attention is called to the fact that, as the State Department acts as the official spokesman for the Executive Branch on matters of sovereign immunity, these two terms are very often used in- terchangeably.
16. See chapter 6, irlfra.
17. See Jessup, Has the Supreme Court Abdicated One of Irs Func- tions? 40 Am. J. Int'l L. 168 (1946); Note, Sovereign ImmunipThe Last Straw in Judicial Abdication, 46 TUL. L. REV. 841 (1972).
18. This supremacy has often been confied by the Supreme Court, the most cited decision being United Stotes v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
Pam 27-161-1
respect to certain issues involving foreign states and their property.
6. The Present Status of Jurisdictional Immunity Before United States Courts. To relieve this sometime awkward division of executive and judicial competencies, the Secre- tary of State and the Attorney General in January, 1973, promoted for consideration a draft bill which would place within exclusive judicial competence the function of deter- mining questions of jurisdictional immunity and the amenability to attachment of the property of a foreign sovereign. 19
Public Law 94-583, effective 19 January 1977, brought this scheme into law. 20 The Department of State Legal Advisor in a 10 November 1976 letter to the Attorney General assessed the effect and the mechanics of the shift from the Tate Letter era of judicial deference to that of judicial primacy. 21
DEAR MR. ATTORNEY GENERAL: Since the Tate Letter of 1952,26 Dept. State Bull. 984, my predecessors and I have endeavored to keep your Department apprised of Department of State policy and practice with respect to the sovereign immunity of foreign states from the jurisdiction of United States courts. On October 21, 1976, the Presi- dent signed into law the Foreign Sovereign Immunities Act of 1976,
P.L.
94-583. This legislation, which was drafted by both of our Depart- ments, has as one of its objectives the elimination of the State Depart- ment's current responsibility in making sovereign immunity determina- tions. In accordance with the practice in most other countries, the statute places the responsibility for deciding sovereign immunity issues exclusively with the courts.
P.L.
94-583 is to go into effect 90 days from the date it was approved by the President, or on January 19, 1977. We wish to advise you . . . what the Department of State's interests will be after that date.
….
P.L. 94-583 will make two important and related changes in the Department's sovereign immunity practice with respect to attachment. First, the statute will prescribe a means for commencing a suit against a foreign state and its entities by service of a summons and complaint, thus making jurisdictional attachments of foreign government property unnecessary.
Second, Section 1609 of the statute will provide an absolute immunity of foreigkgovernment property from jurisdictional attachment. Such ju- risdictional attachments have given rise to diplomatic irritants in the past and, in recent years, have been the principal impetus for a Department of State role in sovereign immunity determinations. It appears that after January 19, 1977, any jurisdictional attachment of foreign government property could, under Section 1609 of P.L. 94-583, be promptly vacated upon motion to the appropriate court by the foreign state defendant.
Immunily from execution. The Department of State has in the past recognized an absolute immunity of foreign government property from execution to satisfy a final judgment. The Department does not contem- plate changing this policy in the period before January 19, 1977. On or after that date, execution may be obtained against foreign government property only upon court order and in conformity with the other re- quirements of Section 1610 of P.L. 94-583.
Future Department of State interests. The Department of State will not make any sovereign immunity determinations after the effective date of
P.L. 94-583. Indeed, it would be inconsistent with the legislative intent of that Act for the Executive Branch to fde any suggestion of immunity on or after January 19, 1977.
19. Senate Bii 566. See Cong. Rec. 1297 (daily ed. Jan. 26, 1973).
20. Supra note 11.
21. Federal Register, V. 41, NO. 224, November 18, 1976, p. 50883.
After P.L. 94-583 takes effect, the Executive Branch will, of course,
play the same role in sovereign immunity cases that it does in other
types of litigation–e.g., appearing as amicus curiae in cases of significant
interest to the Government. Judicial construction of the new statute will
be of general interest to the Department of State, since the statute, like
the Tate Letter, endeavors to incorporate international law on sovereign
immunity into domestic United States law and practice. If a court should
misconstrue the new statute, the United States may well have an in-
terest in making its views on the legal issues known to an appellate
court.
Finally, we wish to express appreciation for the continuous advice and
support which your Department has provided during the ten years of
work and consultation that led to the enactment of P.L. 94-583. We
believe that the new statute will be a significant step in the growth of in-
ternational order under law, to which the United States has always been
committed.
Sincerely,
MONROELEIGH,
Legal Adviser.
The restrictive doctrine of jurisdictional immunity stated by Congress in section 1602 of new chapter 97 of the U.S. Code is an accurate statement of developed case law to this date.
8 1602. The Congress fmds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judg- ments rendered against them in connection with their commercial ac- tivities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.
The restrictive scope of immunity and the broad amenability of foreign states to suit flowing from "com- mercial" activity and from other cases, fairly states the developed U.S. case law.
5 1604. Immunity of a Foreign State From Jurisdiction
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. 5 1605. General Exceptions to the Jurisdictional Immunity of a
Foreign State
(a) A foreign state shall not be immune from the jurisdiction courts of the United States or of the States in any case-
"(1) in which the foreign state has waived its immunity either ex- plicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in ac-cordance with the terms of the waiver;
(2)
in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;
(3)
in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commer- cial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that
Pam 27-161-1
agency or instrumentality is engaged in a commercial activity in the United States;
(4)
in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; or
(5)
not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to-
(A)
any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or
(B)
any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
(b)
A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state. . . .
Beyond the threshold question of amenability to suit, the new legislation breaks some new ground in describing the ultimate status of states with regard to judgment. 5 1606. Extent of Liability
As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state ex- cept for an agency or instrumentality thereof shall not be liable for puni- tive damages; if, however, in any case wherein death wascaused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought. 5 1607. Counterclaims
In any action brought by a foreign state, or in which a foreign state in- tervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim-
(a)
for which a foreign state would not be entitled to immunity under section 1605 of this chapter had such claim been brought in a separate action against the foreign state; or
(b)
arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or
(c)
to the extent that the counterclaim does not seek relief exceed- ing in amount or differing in kind from that sought by the foreign state.
4 1609. Immunity From Attachment and Execution of Property of a Foreign State
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter. 5 1610. Exceptions to the Immunity From Attachment or Execution
(a)
The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execu- tion, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if-
(1)
the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may
purport to effect except in accordance with the terms of the waiver, or
(2)
the property is or was used for the commercial activity upon which the claim is based, or
(3)
the execution relates to a judgment establishing rights in prop- erty which has been taken in violation of international law or which has been exchanged for property taken in violation of international law, or
(4)
the execution relates to a judgment establishing rights in prop- erty-
(A)
which is acquired by succession or gift, or
(B)
which is immovable and situated in the United States: Pro-vided. That such property is not used for purposes of maintaining a diplomatic or consular mission of the residence of the Chief of such mission, or
(5)
the property consists of any mntractual obhgation or any proceeds from such a contractual obligation to idemntify or hold harmless the foreign state or its employees under a policy of automobile or other liability or casualty insurancecovering the claim which merged into the judgment.
(b)
In addition to subsection (a), any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activitv in the United States shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if-
(1)
the agency or instrumentality has waived its immunity from at- tachment in aid of execution or from execution either explicitly or irn-plicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport to effect except in accordance with the terms of the waiver, or
(2)
the judgment relates to a claim for which the agency or instru- mentality is not immune by virtue of section 1605 (a) (2), (3), or (5), or 1605(b) of this chapter, regardless of whether the property is or was used for the activity upon which the claim is based.
(c)
No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attach- ment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter.
(d)
The property of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment prior to the entry of judgment in any action brought in a court of the United States or of a State, or prior to the elapse of the period of time provided in subsection (c) of this sec- tion, if-
(1)
the foreign state has explicitly waived its immunity from at- tachment prior to judgment, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and
(2)
the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.
5 1611. Certain Types of Property Immune From Execution
(a) Notwithstanding the provisions of section 1610 of this chapter, the property of those organizations designated by the President as being entitled to eqjoy the privileges, exemptions, and immunities provided
:by the International Organizations Immunities Act shall not be subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the States.
(b)
Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution, if-
(1)
the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or from execution notwith- standing any withdrawal of the waiver which the bank, authority, or government may purport to effect except in accordance with the
terms of the waiver; or (A) is of a military character, or
(2) the property is, or is intended to be, used in connection with a (B) is under the control of a military authority or defense agen- military activity and cy."
Section 11. IMMUNITIES OF STATE REPRESENTATIVES
5-7. Diplomatic Representatives and Theories of Dip- lomatic Immunity. a. In a letter of March 16, 1906, to the Secretary of Commerce and Labor, Secretary of State Elihu Root said:
There are many and various reasons why diplomatic agents, whether accredited or not to the United States, should be exempt from the operation of the municipal law at [sic] this country. The fmt and funda- mental reason is the fact that diplomatic agents are universally exempt by well recognized usage incorporated into the Cornman law of nations, and this nation, bound as it is to observe Intemational Law in its munici- pal as well as its foreign policy, cannot, if it would, vary a law common to all….
The reason of the immunity of diplomatic agents is clear, namely: that Governments may not be hampered in their foreign relations by the ar- rest or forcible prevention of the exercise of a.duty in the person of a governmental agent or representative. If such agent be offensive and his conduct is unacceptable to the accredited nation it is proper to request his recall; if the request be not honored he may be in extreme cases escorted to the boundary and thus removed from the country. And nghtly, because self-preservation is a matter peculiarly within the pro- vince of the injured state, without which its existence is insecure. Of this fact it must be the sole judge: it cannot delegate this discretion or right to any nation however friendly or competent. It likewise follows from the necessity of the case, that the diplomatic agent must have full access to the accrediting state, else he cannot enter upon the performance of his smc duty, and it is equally clear that he must be permitted to return to the home country in the fuIfient of offcial duty. As to the means best fitted to fuUii these duties the agent must necessarily judge: and of the time required in entering and departing, as well as in the delay necessary to wind up the duties of office after recall, he must likewise judge. 22
b. In its 1958 articles on diplomatic privileges and im- munities, which served as the basis for the Vienna Con- vention on Diplomatic Relations, the International Law Commission noted that diplomatic privileges and irn-munities had in the past been jusaed on the basis of the "extemtoriality" theory or on the basis of the "repre- sentative character" theory. According to the former, the premises of the mission represented a sort of extension of the territory of the sending state; according to the latter, privileges and immunities were based on the idea that the diplomatic mission personified the sending state. The commission then observed that a -third theory" ap-peared to be gaining ground in modem times; i.e., the "functional necessity" theory, "which justifies privileges and immunities as b*ng necessary the mission
to perform its functions." The stated that it had been guided bv this third theow ". . . in SO~V~IU!-prob-
" –
lems on which practice gave no clear pointers, while also bearingin the representative character the head the mission and of the mission itself." 23
22. 4 G. Hackworth, Digest of Intermtioml bw 513-14 (1942).
23. 2 Y. B. I.L.C. 95 (1958).
5-8. The Vienna Convention on Diplomatic Relations.
a. The Vienna Convention on Diplomatic Relations 24 was signed on April 18, 1964; as of January 1, 1975, 1 14 states were parties to the convention. The convention en- tered into force for the United States on December 13, 1972. The long delay between the signature of the con- vention and its ratiflation bv the United States was caused by efforts of the ~epartrnent of State to obtain, before ratiliation, the enactment of new legislation to resolve in-consistencies between the present legislation and the con- vention. As of January 1, 1977, the proposed legislation had not been enacted with the exception of measures supra codifjing the restrictive approach to foreign state immunity.
6. Prior to the drafting of the convention, the practice of states in the matter of diplomatic immunity was not uniform. There was a great degree of uniformity in some areas and in respect to those the convention sets up a uniform standard for states to follow. In some instances the convention introduces new rules. Some of the more important provisions follow: 2s
VIENNA CONVENTlON ON DIPLOMATIC RELATIONS Article 22
1.
The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2.
The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3.
The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the performance of the functionsof the mission.
Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement
24. 22 U.S.T. 3227; T.I.A.S. 7502; 500 U.N.T.S. 95.
25. Among the substantive articles omitted, supra, are those deal-ing with definitions (Art. 1); the functions of a diplomatic mission (art. 3); the establishment of diplomatic missions (arts. 2, 4-8, 10-13); the declaration by a receiving state that a representative is persona non grata (~rt. 9); protocol matters (arts. 14-18); the interim administration of missions temporarily without a "head of mission" (art. 19); the obliga- tion of the receiving state to assist in accommodating the mission and its staR (art. 21): and the exemotion from taxes on the remises of the
mission (art.'23). For a full akount and analysis of the proceedings in the Conference that led to the adoption of the Convention, see Kerley, Some Aspects of the Vienna Corlference on Diplomatic Intercourse and
Immunities, 56 Am. J. Int'l L. 5 8 (1962).
and travel in its territory.
Article 27
1.
The receiving State shall permit and protect free communication on the part of the mission for all officid purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropri- ate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2.
The official correspondence of the mission shall be inviolable. Offi- cial correspondence means all correspondence relating to the mission and its functions.
3.
The diplomatic bag shall not be opened or detained.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1.
The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2.
Hispapers, correspondence and, except asprovided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolabity.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminaljuris-diction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a)
a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b)
an action relating to succession in which the diplomatic agent is in- volved as executor, administrator, heir or legatee as a private per- son and not on behalf of the sending State;
(c)
an action relating to any professional or commercial activity exer- cised by the diplomatic agent in the receiving State outside his offi- cial functions.
2.
A diplomatic agent is not obliged to give evidence as a witness.
3.
No measures of execution may be taken in respect of a diplomatic agent except in the cases comingunder sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Article 32
1.
The immunity from jurisdiction of diplomatic agents and of per- sons enjoying immunity under Article 37 may be waived by the sending State.
2.
Waiver must always be express.
3.
The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
4.
Waiver of immunity from jurisdiction in respect of civil or admin- istrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.
Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
(a)
indirect taxes of a kind which are normally incorporated in the prim of goods or services;
(b)
dues and taxes on private immovable property situated in the ter- ritory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c)
estate, succession or inheritance duties levied by the receiving
State, subject to the provisions of paragraph 4 of Article 39;
(4 dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial under- takings in the receiving State;
(e) charges levied for specific services rendered;
@ registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Ar-ticle 23.
Article 36
1, The receiving State shall, in accordance with such laws and regula- tions as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a)
articles for the official use of the mission;
(b)
articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. .. .
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it con- tains articles. not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
Article 3 7
1.
The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, en- joy the privileges and immunities smed in Articles 29 to 36.
2.
Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities sWed in Ar-ticles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges smed in Article 36, paragraph 1, in respect of articles imported at the time of fmt installation.
3.
Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.
4.
Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and im- munities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 38
1.
Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from juris-diction, and inviolability, in respect of official acts performed in the ex- ercise of his functions.
2.
Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdic- tion over those persons in such a manner asnot to interfere unduly with the performance of the functions of the mission.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the mo- ment when his appointment is notified to the Ministry for Foreign
Pam 27-161-1
Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and im- munities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mis- sion, immunity shall continue to subsist.
Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
5-9. The International Law Commission's Convention on the Protection of Diplomats. Motivated by a substan- tial increase in violent crimes committed against diplo- matic personnel by various terrorist organizations, the In- ternational Law Commission drafted, in 1973, the Con- vention on The Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Dip- lomatic Agents. 26 The wide scope of protection afforded by this convention is evidenced by its first three articles.
Article 1
For the purpose of this Convention:
1. "Internationally protected person" means:
(a)
A Head of State, including any member of a collegial body per- forming the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Miter for Foreign Affairs, whenever any such person is in a foreign State, as well as mem- bers of his family who accompany him;
(b)
Any representative or official of a State.or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household;
2. "Alleged offender" means a person as to whom there is sufficient evidence to determine prima facie that he has committed or participated
An Act
in one or more of the crimes set forth in article 2.
Article 2
1. The intentional commission of:
(a)
A murder, kidnapping or other attack upon the person or liber- ty of an internationally protected person;
(b)
A violent attack upon the official premises, the private accom- modation or the means of transport of an internationally protected per- son likely to endanger his person or liberty;
(c)
A threat to commit any such attack;
(d)
An attempt to commit any such attack; and
(e)
An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.
2.
Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.
3.
Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropri- ate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.
Article 3
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set forth in article 2 in the following cases:
When the alleged offender is a national of that State; When the crime is committed in the temtory of that State or on board a ship or aircraft registered in that State; (a)
(b)
(c)
When the crime is committed against an internationally pro- tected person as defmed in article 1 who enjoys his status as such by vir- tue of functions which he exercises on behalf of that State.
2.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over these crimes in cases where the alleged offender is present in its temtory and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3.
This Convention does not exclude any criminal jurisdiction exer- cised in accordance with internal law.
5-10. U.S.Legislation for the Protection of Diplomats. At the request of the Department of State, legislation was enacted in 1972 to supplement that already designed to safeguard protected persons. Applicable provisions of this
U.S. Protection of Diplomats Act 27 appear below.
To amend title 18, United States Code, to provide for expanded protection of foreign officials, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress as- AC~for the ~oleetion of Foreign Oflicialsand Offi-sembled,That this Act may be cited as the "Act for the Protection of Foreign mcials and Offical Guests of Guests ofthe United Slam, the United States".
STATEMENT OF FTNDINGS AND DECLARATION OF POLICY
SEC.2. The Congress recognizes that from the beginning of our history as a nation, the police power to investigate, prosecute, and punish common crimes such as murder, kidnaping, and assault has resided in the several States, and that such power should re- main with the States.
The Congress finds, however, that harassment, intimidation, obstruction, coercion, 86 STAT.1070 and acts of violence committed against foreign officials or their family members in the sa STAT.1071 United States or against official guests of the United States adversely affect the foreign relations of the United States.
Accordingly, this legislation is intended to afford the United States jurisdiction con- Jurisdiction. current with that of the several States to proceed against those who by such acts inter- fere with its conduct of foreign afFairs.
26. 13 Int'l Legal Mat. 41-49 (Jan 1974). 27. 86 Stat. 1070 (1972).
TITLE I-MURDER OR MANSLAUGHTER OF FOREIGN
OFFICIALS AND OFFICIAL GUESTS 62 Stat. 756. SEC.101. Chapter 51 of title 18, United States Code, is amended by adding at the 18 USC 1111. end thereof the following new sections:
"8 1116. Murder or Manslaughter of Foreign Officials or Official Guests
"(a) Whoever kills a foreign official or official guest shall be punished as provided under sections 1 1 1 1 and 1 1 12 of this title, except that any such person who is found guilty of murder in the fust degree shall be sentenced to imprisonment for life.
Defnitions. "(b) For the purpose of this section 'foreign official' means-
"(1) a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, while in the United States; and
"(2) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such of- ficer or employee.
"(c) For the purpose of this section: "(1) 'Foreign government' means the government of a foreign country, ir- respective of recognition by the United States. "(2) 'International organization' means a public international organization designated as such pursuant to section 1 of the International Organizations Im-59 Stat.669. munities Act (22 U.S.C. 288).
"(3) 'Family' includes (a) a spouse, parent, brother or sister, child, or person to whom the foreign official stands in loco parentis, or (b) any other person living in his household and related to the foreign official by blood or marriage.
"(4) 'Official guest' means a citizen or national of a foreign country present in the United States asan official guest of the government of the United States purl suant to designation as such by the Secretary of State.
"8 1117. Conspiracy to Murder
62 Stat. 756; "If two or more persons conspire to violate section 11 11, 11 14, or 1 116 of this title, 65 Stat.721; and one or more such persons do any overt act to effect the object of the conspiracy,
Ante, p. 1071.
each shall be punished by imprisonment for any term of years or for life." SEC.102. The analysis of chapter 5 1 of title 18, United States Code, is amended by adding at the end thereof the following new items:
"1 116. Murder or manslaughter of foreign officials or official guest." "1 11 7. Conspiracy to murder."
86 STAT. 1071
86 STAT. 1072 TITLE 11-KIDNAPING
62 Stat. 760; SEC.201. Section 1201 of title 18, United States Code, is amended to read as 70 Stat. 1043.
follows:
"8 1201. Kidnaping
"(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:
"(1) the person is willfully transported in interstate or foreign commerce; "(2) any such act against the person is done within the special maritime and ter- ritorial jurisdiction of the United States; "(3) any such act against the person is done within the special aircraftjurisdiction of the United States as defined in section 101 (32) of the Federal Aviation Act of 84 Stat. 921. 1958, as amended (49 U.S.C. 1301 (32)); or "(4) the person is a foreign official as defined in section 11 16 (b) or an official guest as defined in section 11 16 (c) (4) of this title, Penalty shall be punished by imprisonment for any term of years or for life. ,A
"(b) With respect to subsection (a) (1) ,above, the failure to release the victim with- in twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce.
"(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life."
SEC.202. The analysis of chapter 55 of title 18, United States Code, is amended by deleting
"1201. Transportation",
and substituting the following:
"1201. Kidnaping."
TITLEID-PROTECTION OF FOREIGN OFFICIALS
AND OFFICIAL GUESTS
SEC.301. Section 112 of title 18, United States Code, is amended to read as follows: 7s stat. 610. ''9 112. Protection of Foreign Officials and Official Guests
"(a) Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign me-md pnalhes official or official guest shall be fined not more than $5,000, or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be fined not more than $10,000, or imprisoned not more than ten years, or both.
"(b) Whoever willfully intimidates, coerces, threatens, or harasses a foreign official or an official guest, or willfully obstructs a foreign official in the performance of his duties, shall be fined not more than $500, or imprisoned not more than six months, or both.
"(c) Whoever within the United States but outside the District of Columbia and Demonsb-ahoos. within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreigi official for diplomitic or consular purposes, or sa SAT. 1072 as a mission to an international organization, or as a residence of a foreign official, or sa STAT. 1073 belonging to or used or occupied by an international organization for official business or residential purposes, publicly-
"(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters
any word, phrase, sound, or noise, for the purpose of intimidating, coercing,
threatening, or harassing any foreign official or obstructing him in the performance of
his duties, or
"(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months, or both.
"(d) For the purpose of this section 'foreign official', 'foreign government', 'inter- Dehitioos. national organization', and 'official guest' shall have the same meanings as those pro- vided in sections 1 116 (b) and (c) of this title. Anre, p. 1071.
"(e) Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States." usc p.
SEC.302. The analysis of chapter 7 of title 18, United States Code, is amended by hue 1. deleting
"112. Assaulting certain foreign diplomats and other official personnel."
and adding at the beginning thereof the following new item:
"1 12. Protection of foreign officials and official guests."
5-11. Applicability of Domestic Law. a. Applicability of already on the temtory of the receiving state. 28 In the case Domestic Law Before Obtaining Diplomatic Status. The of the head of a diplomatic mission, the sending state
appointment by a foreign state of a diplomatic agent does mwt inquire before nomination whether the proposed en- not automatically bring him diplomatic immunity. The receiving state must give its consent and, until it does, the voy is "persona grata," and the receiving state must also diplomatic agent may be sued or prosecuted if he is 28. In Re Vitianu,[I9491 Ann.Dig. 281.
express its "agreement," before the nomination. As to other members of the diplomatic staff, "agreement" is not required and the consent to their appointment may be either express or implied. However, they are entitled to immunity from the time they enter the territory of the receiving state if such consent has been given previously.
b.
Applicability of Domestic Law to Private Acts of Dip- lomatic Agent. Domestic law may be enforced against a diplomatic agent with respect to such of his acts as are pri- vate and not covered by immunity. Under Article 31 of the Vienna Convention, it may also be enforced when his act is private and entitled to immunity, but the immunity is waived. 29 Moreover, it may be enforced as well when the act is private and entitled to immunity, but the func- tion of the diplomatic agent has come to an end. In this later me, the immunity ceases from the moment he leaves the territory of the receiving state, or on expiration of a reasonable period of time to do so. 30
c.
Nonapplicability of Domestic Law to Official Acts of a Diplomatic Agent. Suppose a diplomatic agent performs an oficial act such as the preparation of a report on highly sensitive political matter in the receiving state, at the re- quest of his chief of mission. The report is made public in the sending state and is eventually reprinted in a newspa- per in the receiving state. The diplomatic agent then retires from the diplomatic service of the sendingstate and remains in the state where he formerly exercised his func- tion. Thereupon he is sued for libel in the rannrt he pre- pared as an oficial act. He is entitled to immunity. 31
d.
Waiving the Immunity of a Diplomatic Agent. Article 32 of the Vienna Convention provides that diplomatic im- munity may be waived by the sending state. If the diplo- matic agent is the head of the mission, the waiver must come from the ministry of foreign affairs of the sending state. If the individual involved in junior in rank, presumably the head of the mission, i.e., the person authorized to speak for the sending state in the receiving state, may waive the immunity. In either case, the waiver must be unambiguously expressed.
e. Waiver of Immunity by Initiation of Proceedings. This form of waiver is also provided for in Article 32 of the Vienna Convention. There is no requirement that a diplomatic agent obtain authorization from his state prior to initiating the proceeding.
J Applicable U.S.Law. Sections 252, 253 and 254 of Title 22 of the United States Code, Annotated, which have to do with the diplomatic immunity of ambassadors and public ministers, are as follows:
5 252. Suits against ministers and their domestics prohibited. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by the President, or any
29.
See, with respect to waiver, Article 32 of the Vienna Conven- tion, at p.10, supra.
30.
See Article 39 of the Vienna Convention, at p. 10, supra.
31.
See Restatement (Second), supra note 2 at 5 73.
domestic or domestic servant of any such minister, is arrested or im-
prisoned, or his goods or chattels are distrained, seized, or attached,
such writ or process shall be deemed void.
5 253. Penalty for wrongful suit. Whenever any writ or process is sued out in violation of section 252 of this title, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it shall be deemed a violator of the laws of nations and a disturber of the public repose, and shall be imprisoned for not more than three years, and fied at the dis- cretion of the court.
4 254. Exceptions as to such against servants, etc., of minister; listing servants. Sections 252 and 253 of this title shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of an ambassador or a public minister, and the process if founded upon a debt contracted before he entered upon such service; nor shall section 253 of this title apply to any case where the person against whom the process is issued is a domestic servant of the ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the District of Columbia, who shall upon receipt thereof, post the same in some public place in his office. AU persons shall have resort to the list of names so posted in the marshal's office, and may take copies without fee.
It is important to note that ambassadors and ministers are totally immune from suit in U.S. Courts, even though the cause of action might be based on purely personal trans- actions. 32 Thus, section 1251 of title 28 stipulates that:
(a) The Supreme Court shall have original and exclusive jurisdiction of:
***
(2)
All actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants, not inconsistent with the law of nations. (Emphasis added.)
(b)
The Supreme Court shall have original but not exclusive jurisdic- tion of:
(1)
All actions or proceedings brought by ambassadors or other public ministers of foreign states or to which consuls or vice consuls of foreign states are parties. …
5-12. Proving Diplomatic Status. a. Comment i to Sec- tion 73 of the Restatement as to proof of diplomatic status declares:
Diplomatic status is established by its recognition as such by the Department of State, on request of the foreign government, and com- munication of this recognition to the court. Mere inclusion in the Diplo- matic List maintained by the Department of State (the "Blue List") is not alone sufficient to foreclose judicial inqujr. Preparation of this list is only a ministerial act and not a determination by the executive branch of a right to diplomatic immunity. Where the Secretary or his designee cer- tifies an individual's name as a person accepted as a diplomatic agent, the certification is conclusive on the court.
Comment b to Section 74 of the Restatement states as to proof of status in United States practice for persons other than diplomatic agents.
The Department of State maintains a List of Employees of Diplomatic Missions (the "White List") which is comparable to the "Blue List" * * .The same procedural and legal questions arise with respect to proof of immunity of persons on the "White List" as apply in the case of persons on the "Blue List."
b. Decisions in matters of diplomatic immunity by the
32. See Arcaya v. Paez, 145 ESupp. 464, qffd per curium, 244. F.2d 958 (2d Ci. 1957).
national courts of other states often mention that the min-
istry of foreign affairs has certified the diplomatic status of the person involved in the case, thus suggesting that deci- sion-making by the executive with respect to diplomatic status is widespread. 5-13. The Reach of Diplomatic Immunity. a. The Vien- na Convention divides the personnel of a diplomatic mis- sion into four categories and assignes different privileges and immunities to each. In assessing the difference in treatment of each of these categories, it is useful to know who the persons are in each and what they do. The infor- mation below is a simplified table of organization of a dip- lomatic mission.
(1)
The first category is the diplomatic staff. Its members have diplomatic rank. They are the individuals engaged in the performance of the diplomatic function in the strict senbe of the term. These diplomatic agents, as they are called in the Vienna Convention, include the chief of mission (ambassador, or minister or charge d'affaires) ,counsellor or deputy chief of mission, the first, second and third secretaries (of embassy), the military at- taches (air, army, navy) and such other attaches (for com- merce, labor, treasury and other matters) as the receiving state may agree to recognize as diplomatic agents.
(2)
The next two categories-which may be looked upon as part of the "official" family of the diplomatic agent–are the administrative and technical staff on the one hand and the service staff on the other. The adminis- trative staff includes administrative officers, persons in charge of communications (code and mail), secretary- typists and file clerks. The service staff includes drivers of the mission cars, butlers, cooks, maids and gardeners. The last category-which may be looked upon as part of the "personal" family of the diplomatic agent-nsists of private servants.
b.
No immunity is required for private servants un-der the Vienna Convention. Before the Convention, the United Kingdom, like the United States, granted com- plete immunity to the private servants of diplomatic agents. Many other states did not. Under Article 37(4) of the Convention, private servants of members of the mis- sion are entitled to immunity only to the extent the receiv- ing state wishes to grant it. The statutes by which the United States gives complete immunity to private servants are derived from the Act of April 30, 1790, chap. 9, 55 25-27, 1 Stat. 117. Thus,as noted above, Section 252 of Title 22 of the U.S. Code expressly bars suits against any "domestic" or "domestic servant" of diplomtaic agents.
c.
Immunity of family members and dependents of diplomatic agents under the Vienna Convention. Under Article 37 (1) of the Vienna Convention, the members of the family of a diplomatic agent forming part of his house- hold are entitled to the immunity he personally has. Who the "members of the family" are, however, is left unclear and so is the notion of "household." There was a great diversity of views on the meaning of these terms at the
Pam 27-161-1
Vienna Conference on Diplomatic Relations. In a letter quoted in 7 Whiteman, Digest of International Law 260 (1970), an Assistant Legal Adviser in the Department of State of the United States maintained:
* * * The Governments represented at the Vienna Conference were unable to agree on a defmition of family, for purposes of privileges and immunities. All governrnents are in general agreement that the wife of a diplomatic agent, his minor children, and perhaps his children who are full-time college students or who are totally dependent on him, are en- titled to diplomatic immunity. All governments tend to agree that other relatives forming part of his household who are gainfully employed are not entitled to diplomatic immunity. Other cases, e.g. unmarried adult daughters, dependent parents, and sisters acting as official hostesses, are decided on the basis of the facts in the particular situation and the prac- tice in the receiving state. Under the Vienna Convention, members of the family of a diplomatic agent who are nationals of the receiving state are not entitled to diplomatic immunity.
d. U.S. practice with respect to the immunity of service hasbeen to grant service staff the same immunity as diplo- matic agents. In one incident, the driver of the Minister of Iran was arrested in Maryland for speeding and both he and the minister taken to the police station. A justice of the peace dismissed the driver's fine. Upon protest from Iran, the police officers were prosecuted, fined, and removed from duty. 33
(1)
While neither diplomatic representatives nor their drivers are subject to arrest or detention for parking violations, they are expected to pay the charges involved. If they fail to do so, the Department of State will not authorize the issuance to them of DPL plates. 34
(2)
Under Article 37 (3) of the Vienna Convention, the members of the service staff have no immunity from criminal jurisdiction and have immunity from civil juris- diction only for acts performed in the course of their duties. However, the article does not bar the United States from granting the broader immunity given them under its present law and practice.
e.
U.S. practice with respect to administrative and tech- nical staff. The practice of the United States has been to give members of the administrative and technical staff the same immunity as is given diplomatic agents. Under Arti- cle 37(2) of the Vienna Convention, the U.S. is not re- quired to give these individuals immunity from civil juris- diction for acts performed outside the course of their offi- cial duties. However, neither is it barred from granting them the broader immunity given them under present law and practice. Article 37 of the Vienna Convention does, however, grant to families of the members of the adrninis- trative and technical staff the same immunity as is granted the members of that staff themselves. Until the Vienna Convention came into force for the United States, it has been its practice not to grant any immunity to their families.
See Reeves, The Elkton Incident, 30 Am. J. Int'l L. 95 (1936). 33.
34.
Announcement of April 1, 1964, 58 Am. J. Int'l L. 1001 (1 964).
Pam 27-161-1
5-14. Protection of Diplomatic Personnel in Transit. The immunities of diplomats while in transit through the territory of a third state have long been the subject of con-siderable controversy. 35 However, much of the debate surrounding this topic has ceased as a result of Article 40 of the Vienna Convention.
Art. 40 (1) If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, whiie proceeding to take up or to return to his post, or when returning to hi? own country, the third State shall accord him in-violability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the dip- lomatic agent, or travelling separately to join him or to return to their country.
(2)
In circumstances similar to those s@~ed in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of mem- bers of their families, through their territories.
(3)
Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.
(4)
The obligations of third States under paragraphs 1, 2 and 3 of this Article shd also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the temtory of the third State is due to force
5-15. The Inviolability of Diplomatic Premises. a. The concept of jurisdictional immunity as it relates to diplo- matic premises is very often misunderstood and misap- plied. The case which follows serves the dual purpose of setting forth the law as it exists and dispelling many of the myths surrounding this particular principle.
FATEMI v. UNITED STATES
United States Court of Appeals, District of Columbia, 1963.
192 A.2d 525.
MYERS, ASSOCIATE
JUDGE.These are consolidated appeals of four- teen Iranian nationals from convictions for "unlawful entrv" under Ti- tle 22 D.C. Code 5 3102, 1961 Ed.
Appellants, Iranian students studying in this country, entered the Ira- nian Embassy to deliver a petition protesting an Iranian land reform referendum. After they had staged an overnight "sleep-in," embassy officiak requested the Metropolitan police to come to the embassy. Several police officers, headed by a captain, entered the embassy and talked with the Minister who gave the captain a formal, written request addressed to the Metropolitan Police Department asking the police to enter the embassy, eject the students from the premises and arrest them because, after a lawful entry on the previous day, they had refused to leave upon demand of the person lawfully in charge. The Minister then, in the presence of the police, again asked the students to leave within five minutes, addressing them in both Iranian and English. When they refused to depart they were placed under arrest and bodily carried from the embassy.
Following trial on January 22, 1963, the defendants, having refused a continuance and having chosen not to testify, but at all times fully repre- sented by counsel, were found guilty.
Appellants complain numerous errors were comrnited below. We are
3s. For a concise summary, see Harvard Research in Inrernational Law, Diplomatic Privileges and Immunities, 26 Am. J. Int'l L. Supp. IS, 85-88 (Art. 15) (1932).
of the opinion that only two alleged errors are worthy of consideration:
(1) that the District of Columbia police had no authority to enter the Ira-nian Embassy and arrest Iranian nationals for a crime committed within the confines of the Embassy; and (2) even if the inviolability of the Em- bassy could be waived, the Minister had no authority to waive it. Ap- pellants contend that a foreign embassy, protected by the doctrine of in-violability, which extends to diplomatic dwellings, is not subject to the jurisdiction of the local police and courts of the receiving state or to its body of criminal law. We fid scant authority to support this contention; indeed the weight of authority is to the contrary.
Since our decision must rest in part upon principles of intemational law, which is part of the law of the land, we have examined custom, case decisions and the works of the treatise writers to aid in ascertaining the nature of the particular questions here involved. Although case law is not controlling in determining issues of international law, recorded deci- sions help in analyzing the custom or trend of the law in a given area. We believe that the weight of international case law as reinforced by the treatise writers 5 establishes as a modem rule of international law that
(1) a foreign embassy is not to be considered the territory of the sending state; and (2) local police have the authority and responsibility to enter a foreign embassy if the privilege of diplomatic inviolability is not invoked when an offense is committed thereon in violation of local law.
Representatives of a foreign sovereign are given immunity from the operation of the laws of the receiving nation, and the premises and buildings occupied by the diplomatic mission usually are regarded as in- violable by the authorities of the receiving state. This is grounded upon the international law concept that all sovereigns are equal and that the representatives of a particular sovereign serve in the place of the one sending them. "No act of jurisdiction or administration of the receiving Government can take place within [the confines of an embassy] except by special permission of the envoys. "(Emphasis added.)
That the diplomatic premises are a part of the temtory of the sending state and therefore always exempt from local laws does not follow as a matter of course, however. "The modem tendency among writers is toward rejecting the fiction of extraterritoriality * * * ." Numerous case decisions bear out this trend. As early as 1867, the doctrine of extrater- ritoriality was abandoned by European nations. Recently, in the case of
R. v. Kent, the British courts held that "A crime committed in a foreign embassy is a crime committed in the United Kingdom and the offender, ifnot protected by diplomatic immuniw, is liable to prosecution in British courts." (Emphasis added.)
Appellants have failed to distinguish cases in which the privilege of diplomatic immunity is invoked from those in which it is not. If a mem- ber of the diplomatic community asserts his claim to immunity, then the local police are powerless to act. Only if the criminal act beiig committed by the diplomat is such as to endanger the public may the police dis-regard the inviolability of an embassy and enter to seize the offender. Even in this situation the police may only hold the accused to prevent injury to the public, and only until the Department of State can request his recall, but the law enforcement officers are powerless to prosecute the offender. Such is not the instant case, involving an embassy to which the police had been invited in order to arrest and remove Iranian students who have no claim to the privilege of immunity and were violating local law.
Appellants' next contention-that even if the inviolability of the dip- lomatic dwellings can be waived, the Mister of the embassy had no authority to do so-that the waiver must come only from the Am-bassadoris equally without merit.
We do not think it unreasonable to hold that a police captain can enter the Iranian embassy and make an arrest for a misdemeanor com- mitted in his presence when he has been called by one who purports to
5. A few sclections fmm the uealk disclose:
(a) ' ' Kacrime iscommitted insidethe house of nn envoy by nn individual who da not enjoy personsUy the privilege of extraterritoriality, the criminal must be surrendered to the I d Government. 1 Oppenbeim, International Law (8th Ed. Lauterpafht Edilor 1955) 8 390.
@) The inviolability ofdiplomatic premisesdoes not mean Ulat they are lo be consideredas altogether outside the application of the law of the receiving statbe foreign enclave within ie territory. Brierly. The Law of Nations (6th Ed. 1963). .>.
Pam 27-161-1
be the Minister of the embassy and is given a letter on official Iranian there Wig no error concerning the trial, the convictions are
stationery asking the local police to disregard, for this one instance, the Affied.
diplomatic rule of inviolability of the embassy and to lend aid in the ejec-
tion of violators. * * b. Title IV of the 1972 U.S. Protection of Diplomats
+ I Act 36 provides specific protection to the property of Accordingly, we rule that the arrest of the appellants was neither ar- foreign governments and in~~rnational
organizations in bitrary nor illegal but orderly and proper under the circumstances, and the United States.
TITLEIV-PROTECTION OF PROPERTY OF FOREIGN GOVERNMENTSAND INTERNATIONAL ORGANIZATIONS
SEC.401. Chapter 45of title 18, United States Code, is amended by adding at the 62 stat 743 end thereof the following new section: 18 USC 951 ''5 970. Protection of Property Occupied by Foreign Governments
"(a) Whoever willfully injures, damages, or destroys, or attempts to injure, OlTensesmd damage, or destroy, any property, real or personal, located within the United States and w*uw belonging to or utilized or occupied by any foreign government or international organization, by a foreign official or official guest, shall be fined not more than $10,000, or imprisoned not more than five years, or both. 86 STAT 1073
"(b) For the purpose of this section 'foreign official', 'foreign government', 'inter- Defiiu,, national organization', and 'official guest' shall have the same meanings as those pro- vided in sections 11 16 @) and (c) of this title." Ante, P. 1071.
SEC.402. The analysis of chapter 45 of title 18, United States Code, is amended by
addii at the end thereof the following new item:
"970. Protection of property occupied by foreign governments."
SEC.3.Nothing contained in this Act shall be construed to indicate an intent on the
part of Congress to occupy the field in which its provisions operate to the exclusion of
the laws of any State, Commonwealth, territory, possession, or the District of Colum-
bia on the same subject matter, nor to relieve any person of any obligation imposed by
any law of any State, Commonwealth, territory, possession, or the District of Colum-
bia.
5-16. Counsular Immunity. a. The consular function. munities. Despite the growing similarity of oficial func- The institution of the consul derives from the practice in tions, however, the distinction between these two catego- medieval Italy of electing a representative from among the ries of state representatives continues to exist. This fact iS foreign merchants resident in a city. Thus, until very re- demonstrated by the following case. cently, consular functions were principally commercial ANDERSON v. VILLELA and not diplomatic, though judicial jurisdiction over na-United States District Court, D. Massachusetts, 1962. tionals of the consul's state was sometimes vested in con- 210 F.Supp. 791. suls, especially in undeveloped countries. Today, FORD, DISTRICT JUDGE. This is an action for damages for personal
however, the distinction between commercial and diplo- injuries in which one of the two defendants moves for judgment dis-matic activity is difXcult to maintain. Much formal diplo- missing the action asto him on the ground that the court is without ju-
matic negotiation is in fact trade promotion, and much risdiction as to him.
The sole basis for jurisdiction set forth in the complaint is 28 U.S.C.A. trade promotion leads to diplomatic overtures. This fusion 5 1351, which provides: "The district courts shall have original jurisdic- of functions has led inevitably to a fusion of the diplomatic tion, exclusive of the courts of the States, of all actions and proceedings and consular services, so that a career officer may be against consuls or vice consuls of foreign states." The defendants here
are Vasco A. Villela, the owner of the motor vehicle alleged to have posted on one tour to an embassy secretariat, on the next caused plaintWs injuries, and his son Ruy Viela, who is alleged to to a trade mission, and on the next to a consulate proper. have been the driver of the vehicle. The complaint alleges that Vasco is Some embassies make no pretence of keeping the consul- a consul, and he does not appear to challenge the court's jurisdiction as ar service distinct and house it in the same building, and to to the action against him.The sole issue raised by Ruy Viela's motion
to dismiss is whether 5 1351 gives this court jurisdiction over the action some extent, with the same personnel. as against him, since no other basis of jurisdiction is alleged in the com-
b. In recent times, consuls have come to represent all plaint. manner of governmental activity, such as supervising Ruy Viela is not hiilf a consul or vice consul. However, plaintiff
contends that 5 1351 should be interpreted as applying to members of treaty and performing duties with the family of a consul as weU asto the consul personally. He atgues that to government-owned ITErchant ships. T~~ functions just as the diplomatic immunity from suit of ambassadors and other en-
are not very distinguishable from those of diplomats. 37 voys extends to members of their families, so the immunity of a consul
Accordingly, some consuls and diplomatic representatives 36. 86 Stat. 1070 (1972).
should be accorded the same degree of jurisdictional irn-37. 2 D. O'Comell, InternationaI Law, 914 (1965).
from suit in a state court should be extended to members of the consul's family. The analogy is not persuasive. The diplomatic immunity of am- bassadors and other envoys and the members of their suites rests on a principle of international law which has been recognized and applied by our courts. Under international law a consul does not enjoy any such im- munity, at least as to suits not based on his official acts within the scope of his duties as consul. Coppell v. Hall, 7 Wall (74 U.S.) 542, 553, 19 L.Ed. 244; The Anne, 3 Wheat. (16 US.) 435, 445, 446, 4 L.Ed.428; Arcaya v. Paez, D.C., 145 F. Supp. 464, flied 2 Ci.,244 F.2d 958. Such immunity as a consul enjoys from suit in a state court is not one based on international law but is conferred solely by statute, and in fact Congress has not always expressly provided for exclusive federal juris- diction over actions against consuls. Bors v. Preston, 111U.S. 252, 261, 4 S.Ct. 407, 41 1, 28 L.Ed.419. Hence there is no basis for concluding that the scope of any immunity conferred by 5 1351should be co-exten- sive with the scope of diplomatic immunity under international law.
* * *
Note that under international law, a consul does not enjoy
immunity as to suits not based on his official acts within
the scope of his duties.
5-17. The 1963 Vienna Convention on Consular Rela-
tions. 38 a. Personal functions and immunities. Article 5
of the agreement contains a list of consular functions.
These cover a wide spectrum and include, among others,
protecting in the receiving state the interests of the send- ing state and its nationals; furthering the development of commercial, economic, cultural and scientifc relations; ascertaining conditions and developments in the commer- cial, economic, cultural and scientific life of the receiving state; issuing passports, visas, and travel documents; helping and assisting nationals of the sending state; serv- ing as a notary or civil registrar; assisting nationals in con- nection with decedents' estates, guardianships for persons lacking legal capacity and representation and preservation of rights before local tribunals; transitting documents or executing letters rogatory or commissions to take evi- dence for courts of the sending state; exercising rights of supervision and inspection of vessels and aircraft of the sending state; and extending assistance to such vessels and aircraft and their crews, including conducting investiga- tions and settlii disputes. The provisions of the conven- tion most relevant to a discussion of jurisdictional irn-munities follow.
Art. 41. (1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a deci- sion by the competent judicial authority.
(2) Except in the case sw~ed
in paragraph 1 of this Article,, consul- ar officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of ajudicial deci- sion of fmal effect.
(3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case smed in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1.of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.
Art. 43. (1) Consular officers and consular employees shall not be
38. 21 U.S.T. 325; U.N.T.S. 261.
amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of con- sular functions.
(2)
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
(a)
arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b)
by a thud party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
Art. 44. (1) Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evi- dence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
(2)
The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. . . .
(3)
Members of a consular post are under no obligation to give evi- dence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.
Art. 45. (1) The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in Articles 41,43 and 44.
(2)
The waiver shall in all cases be express, except as provided in paragraph 3 of this Article, and shall be communicated to the receiving State in writing.
(3)
The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking immunity from juris- diction in respect of any counter-claim directly connected with the prin- cipal claim.
(4)
The waiver of immunity from jurisdiction for the purposes of civil or administrative promedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be neces-
sary. Art. 53. (1) Every member of the consular post shall enjoy the privi- leges and immunities provided in the present Convefition from the mo- ment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he en- ters on his duties with the consular post.
Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1of this Article or from the date of their entry into the territo- ry of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest. (2)
(3)
When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so, whichever is the sooner, but shall subsist until that time, even in case of armed conflict. In the case of the persons referred to in paragraph 2 of this Article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons in- tend leaving the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.
(4)
However, with respect to actsperformed by a consular officer or a consular employee in the exercise of his functions, immunity from juris-
diction shall continue to subsist without limitation of time. . . . Art. 54. (1) If a consular officer passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, while proceeding to take up or return to his post or when returning to the sending state, the thud State shall accord to him all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such privi- leges and immunities who are accompanying the consular officer or trav- elling separately to join him or to return to the sending State.
(2)
In circumstances similar to those spedied in paragraph 1 of this Article, third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households.
(3)
Third States shall accord to official correspondence and to other official communications in transit, including messages in code or cipher, the same freedom and protection as the receiving State is bound to ac- cord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.
(4)
The obligations of third States under paragraphs 1,2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and to consular bags, whose presence in the territory of the third State is due to force mqieure.
Art. 55. (1) Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.. . .
b.
Article 17 of the convention provides that a consular officer may be authorized to perform diplomatic acts with- out affecting his consular status. Articles 3 and 70 deal with the performance of consular functions by diplomatic personnel. Other omitted articles deal, inter alia, with the appointment and admission of consular officers, the exe-quatar (authorization from the receiving state admitting the head of a consular post to the exercise of his func- tions), miscellaneous facilities and privileges to be granted by the receiving state, protocol matters, and the termina- tion of consular functions.
c.
Inviolability of the consular premises is specifically spoken to in Article 31 of the Vienna Convention.
Article 31
Inviolability of the Consular Premises
The authorities of the receiving State shall not enter that part of 1.
Consular premises shall be inviolable to the extent provided in this Article.
2.
.the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fie or other disaster requiring prompt protective action.
3.
Subject to the provisions of paragraph 2 of this Article, the receiv- ing State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.
4.
The consular premises, their furnishings, the property of the con- sular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If ex-propriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and
prompt, adequate and effective compensation shall be paid to the send- ing State.
It has been stated that the trend before 1948 was to grant absolute consular immunity from military requisition and expropriation, irrespective of considerations of military defense or public utility. However, since World War 11, there have been indications that expropriation or requisi- tion of consular property may be permissible under condi- tions similar to those stated in Article 31. 39
5-18. The Scope of Consular Immunities. The scope of consular immunities is defined in the great majority of cases by bilateral agreement between the sending and receiving states. The Restatement, moreover, notes that limited immunities ". . . appear to have been accepted in the customary practice that has developed in connection with the performance of consular functions and in the limited number of cases that have arisen." 40 Section 81(1) accordingly lays down the rule that . . . "[a] consul- ar officer or employee is immune from the exercise of ju- risdiction by the receiving state to prescribe and enforce any rule of conduct to the extent that it interferes with the performance of his official functions." In elaborating upon the concept of "official functions," the Restatement in-vokes the analogy of diplomatic immunities, noting that while such functions are "determined in part by the law of the receiving state,'' subject to the limitation that essential functions such as communication with the sending state must not be hampered, the "permissible scope of official functions tends [in the absence of international agree- ment] to be settled on a basis of reciprocity." 41 5-19. Applicable U.S. Law. As noted in Anderson v. Villela,42 all proceedings brought in the United States against consuls or vice consuls of foreign states must be
(brought in the Federal District Courts. 43 The Supreme Court has held, however, that divorce proceedings may be brought against consuls in the state courts. 44 AS a result of the fact that the federal courts cannot enforce state criminal law, consuls enjoy a de facto immunity from criminal prosecution for violations of state law. 45 5-20. Special Missions and Persons Assimilated to Diplomatic Status. a. With reference to personnel of spe- cial missions, Restatement, section 82, states:
An official representative of a foreign state, who has been received in a capacity that does not entitle him to the immunity of the state . . . or to diplomatic or consular immunity . . ., is immune from the exercise of jurisdiction by the receiving state to prescribe or enforce any rule of con- duct to the extent that it interferes with the performance of his official functions.
39.
L. Lee, Consular Law and Practice 283-84 (1961).
40.
Restatement (Second), supra note 2 at 5 81, Comment a.
41. Id. at 5 81, Comment b.
42. Page 5-17, supra.
See 4 G. Hackworth, supra note 78 at 746-53. 28 U.S.C.A., 5 1351. 43.
44.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154 (1930).
45.
b.
The International Law Commission has prepared a set of Draft Articles on Special Missions. 46 In doing so, the I.L.C. observed that the Convention on Diplomatic Relations dealt only with permanent diplomatic missions and that ". . . diplomatic relations between states also assumed other forms that might be placed under the heading of 'ad hoc diplomacy,' covering a state for limited purposes." 47 Article 29 of the Draft Articles provides for personal inviolability of the persons of the sending state's representatives in the special mission and of the members of its diplomatic staff (as in Article 29 of the Vienna Con- vention on Diplomatic Relations). Article 31 of the Draft Articles reproduces Article 31 of the Vienna Convention, with the exception that immunity is not granted to mem- bers of special missions with respect to "an action for damages arising out of an accident caused by a vehicle used outside the official functions of the person in ques- tion." 5-21. Representatives to International Organizations.
a.
In examining the jurisdictional immunities accorded representatives to international organizations, primary at- tention is focused on those individuals attached to the United Nations. An analysis of the protection afforded these representatives will, in turn, give the reader an over- all understanding of this particular aspect of jurisdictional immunity. The basic law governing the relationships be- tween the U.N. and its employees is, of course, the U.N. Charter. Articles of special signif~cance to the question of the status of the employees of the organization (interna- tional civil servants) are Articles 97 through 101, defining the powers and duties of the Secretary-General and his staff, and Articles 104 and 105, dealing with questions of capacity, privileges, and immunities.
b.
In addition to the Charter, there are basic interna- tional agreements detailing in more specifk form the broad provisions of the Charter. A major document is the Convention on the Privileges and Immunities of the United Nations, 48 which came into force early in the life of the organization but was not ratified by the United States until April 27, 1970. 49 The organization has also entered into conventions with states in which it has lo- cated its principal offices. The agreement governing the United Nations premises in New York City is the Head- quarters Agreement with the United Nations. 50
c.
Beyond agreements of general applicability are those the organization has entered into with states on whose ter- ritory it is carrying on a specific, temporary project. For example, the Secretary-General of the United Nations concluded an agreement with the Government of Egypt in 1957 on the status of the United Nations Emergency
46.
See the Report of the Commission in 62 Am. J. Int'l L. 244 (1968).
47.
Id. at 246.
48.
21 U.S.T. 1418; 1 U.N.T.S. 15.
49.
The U.S. resewed its acceptance with respect to the immunity of United States nationals from military service and taxation.
50.
61 Stat. 756; 11 U.N.T.S. 11.
Forces in that country, dealing with such matters as civil and criminaljurisdiction over members of the force, privi- leges and immunities. 51
d. It is important to note that in determining what law governs a particular situation arising in the United Stata; it is of course necessary to analyze the several possibly ap- plicable treaties and legislation, not only &terms of their substantive provisions but also, in caseiof conflict, in terms of the chronology of their enactment or coming into force. 52 The more relevant provisions of the two most important agreements in this area appear below.
(1) CONVENTION ON THE PRIVILEGES AND IM-MUNITIES OF THE UNITED NATIONS
Art. IV. 8 11. Representatives of Members to the principal and sub- sidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privi- leges and immunities:
(a)
Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;
(b)
Inviolability for all papers and documents;
(c)
The right to use codes and to receive papers or correspondence by courier or in sealed bags;
(d)
Exemption in respect of themselves and their spouses from im-migration restrictions, aliens registration or national service obligations in the state they are visiting or through which they are passing in the ex- ercise of their functions;
(e)
The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;
(f)
The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also;
(g)
Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods im-ported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.
8 12. In order to secure, for the representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, complete freedom of speech and inde- pendence in the discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstand- ing that the persons concerned are no longer the representatives of Members.
8 14. Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in con- nection with the United Nations. Consequently a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.
8 15. The provisions of Sections 11, 12 … are not applicable as be- tween a representative and the authorities of the state of which he is a national or of which he is or has been the representative.
8 16. In this article the expression "representatives" shall be deemed
51, 11 U.N. GAOR, Annexes, Agenda Item No. 66, at 52-57,
U.N. Doc. A/3526 (1957); John, Recent Cases on United Nations Law 225 (1963).
52. See chap 2, supra.
Pam 27-161-1
to include all delegates, deputy delegates, advisers, technical experts and secretaries of delegations. 53
(2)
Section 15 of Article V of the agreement be-tween the United Nations and the United States Regard- ing the Headquarters of the United Nations provides as follows:
(1)
Every person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary,
(2)
such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned,
(3)
every person designated by a Member of a specialized agency, as defmed in Article 57, paragraph 2, of the Charter, as its principal resi- dent representative, with the rank of ambassador or minister plenipo- tentiary, at the headquarters of such agency in the United States, and
(4)
such other principal resident representatives of Members to a specialized agency and such resident members of the staffs of repre- sentatives of a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of
the United States and the Government of the Member concerned, shall, whether residing inside or outside the headquarters district, be en- titled inthe territory if the United States to the same privileges and im- munities, subject to corresponding conditions and obligations, as it ac- cords to diplomatic envoys accredited to it. In the case of Members whose governments are not recognized by the United States, such privi- leges and immunities need be extended to such representatives, or per- sons on the staffs of such representatives, only within the headquarters district, at their residences and offices outside the district, in transit be- tween the district and such residences and offices, and in transit on offi- cial business to or from foreign countries.
(3) Section 7(b) of the International Organizations Immunities Act, 54 accords representatives to interna- tional organizations, as well as oficers and employees of such organizations, immunity ". . . from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such repre- sentatives, officers, or employees." 55
Section 111. IMMUNITIES OF INTERNATIONAL ORGANIZATIONS, THEIR AGENTS,
OFFICIALS AND INVITEES
5-22. General. a. The modem law relating to the im- munities of international organizations has developed principally from the experience of the League of Nations and the International Labor Organization, although some aspects of its origin can be traced back to the nineteenth century. This body of law began as little more than "a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations." 56 As the scope and importance of the activities of international organizations have in-creased in the postwar world, so have the extent and sig- nificance of their immunities and those of their officials. The bases for these immunities diier in important respects from those for the granting of jurisdictional im- munities to foreign states. Like states, international
organizations require jurisdictional immunities in order to carry on their functions without interference from munici-pal courts and administrators. Unlike states, however, in- ternational organizations do not enjoy a long history of respect for their authority or the means of taking recipro- cal reprisals against infringements of that authority.
b. The fact that no attempt will be made in this publica- tion to fully analyze this particular aspect of jurisdictional immunity is not to be viewed as an attempt to minimize its increasing importance in public international law. A detailed examination of this area of jurisprudence is, however, better suited to an advanced study of interna- tional organization. For purposes of the military attorney, several references provide a concise and informative over- view of this topic. 57
Section IY. THE GRANTING OF DIPLOMATIC ASYLUM, POLITICAL ASYLUM OR
TEMPORARY REFUGE
5-23. General. Military attorneys may very likely en- counter requests for diplomatic asyl~, politid asyl~ or temporary refuge, either overseas or within the ter- ritorial juri~ctio~
df the United States. Moreover, a mishandling of such requests may lead to serious diplo- matic and consequences. it is necessary to examine the legal norms and DOD regula- tions applicable to those jurisdictional concepts. 5-24. ~~~li~~bl~a. Initially, it is
~~t~~~~ti~~al
L~~.
nvto distinguish between politi* Or
and Or asylum is the term appropriately to be employed where a political refugees finds refuge within the borders of a
53. As of January 1, 1975, 110 states had acceded to this Conven- tion.
54. 59 Stat. 669; 22 U.S.C.A. g 288d(b).
55. On the immunities of representatives to international organiza- tions, see generally Resmtement (Second), supra note 2 at 8 86 and Gross, Immunities and Privileges of Delegations to the United Nations,
l6 483
56. C. Jenks, International Immunities XXXV (1961).
57.
See W. Friedman, 0.Lissitzyn & B. Pugh,International Law at 725-44 (1969), and N. Leech, C. Oliver & J. Sweeney, The Interna- tional Legal System (1973) 883-928.
58.
A classic example of the serious consequences that can occur arose of a U.S. refusal to grant asylum to a Lithunian seaman in U.S. ter- ritorial waters in November 1970.Thii refusal, now popularly known as The vi@ant Incident, resulted in a complete Of Depart-ment of State and Department of Defense guidelines on requests for immunity. These are examined in the following pages. For an excellent discussion of the practical and legal problem involved in this incident, see Mann, Asylum Denied: The Vigilant Incident, 23 Naval War Coll. Rev. 4 (May, 1971) and Goldie, LegalAspects of the Refusal of Asylum by U.S. Coast Guard on 23 Nowmber 197423 Naval War Coll. Rev. 32 (May, 1971).
foreign state. On the other hand, diplomatic asylum is the term used where an individual, to evade local jurisdiction for a political offense, or to esc& from imminent danger, finds protection in certain places that enjoy well-recog- nized immunities from the local jurisdiction. It is used particularly with reference to asylum in embassies and legations. 59
b. In the Asylum Case, 60 the International Court of Justice observed: ' A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively withi the competence of that State. Such a derogation
horn territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.
In keeping with this I.C.J. opinion, the United States has consistently refused to recognize the right to grant diplo- matic asylum. 61 Derogations from this practice have oc- curred only in instances of serious humanitarian concern. One such instance is described below.
c. In a letter to the American Consulate General in Toronto in 1961, Acting Secretary of State Bowles stated: The United States, whiie not recognizing the doctrine of political [diplomatic]62 asylum in United States Missions abroad, has in excep- tional cases granted refuges on humanitarian grounds to an individual in immediate and grave personal danger. With special reference to the case of Cardinal Midszenty, you will recall that he appealed to the American Legation in Budapest for refuge on November 4, 1956, when Soviet armed forces renewed their attack upon the Hungarian people. The decision to grant refuge to the cardinal was taken by the United States Govemment under highly exceptional and most unusual circumstances and on urgent humanitarian grounds at a time of foreign aggression against Hungary. It was clear in the circum- stances of the renewed Soviet attack that Cardinal Mindszenty . .. faced certain death or imprisonment should he fall into the hands of Soviet or Soviet-controlled Hungarian Communist Forces. The American Lega-
tion in Budapest was accordingly authorized in this situation of emergency to afford him the refuge which he had requested. 63
5-25. Controlling State Department Guidelines. Due to the general confusion surrounding the concepts of "politi- cal" and "diplomatic" asylum, the Department of State and the Department of the Army have recently developed guidelines and regulations setting forth definitions relating to asylum and the specific actions to be taken when re- quests for such are made. 64
59. See 6 M. Whiteman, Digest of International Law 428 (1968) and 8 M. Whiteman, Digest of International Law 660 (1967).
60. Colombian-Peruvian Asylum Case, [I9501 I.C.J. 266.
61. 2 G. Hackworth, Digest of International Law 622 (1941).
62.
The necessity of inserting the word "diplomatic" here is indica- tive of the confusion surrounding the concept of asylum. The terms "political" and "diplomatic" asylum are consistently used in-terchangeably, although, as indicated above, these principles are legally and politically different in nature.
63.
Letter from C. Bowles, Acting Secretary of State to the Ameri- can Consulate General in Toronto, April 28, 1961, Instruction No. A-22, Dept of State fde 211 0012/4-2861.
64. U.S. Department of State, New Guidance Reirlforces U.S. Policy on Right of Asylum, 66 State Dep't. Bull. 124-27 (January 31, 1972); Department of the Army, Procedures for Handling Requests for Political Asylum and Temporary Refuge, AR 550-1 (August, 1973).
a. In the preface to its 1972 guidelines on the granting of asylum and "temporary refuge," 65 the State Depart- ment makes the following policy statement.
Both within the United States and abroad, foreign nationals who te- quest asylum of the United States Govemment owing to persecution should be given full opportunity to have their requests considered on their merits. The request of a person for asylum or temporary refuge shall not be arbitrarily of summarily refused by U.S. personnel. Because of the wide variety of circumstances which may be involved, each re- quest must be dealt with on an individual basis, taking into account humanitarian principles, applicable laws and other factors.
In cases of such requests occurring within foreign jurisdiction, the ability of the United States Government to give assistance will vary with location and circumstances of the request. 66
These guidelines then proceed to set forth detailed procedures to follow and information to provide with regard to requests for asylum in the United States in other area outside any foreign jurisdiction.
b. In speaking to requests for asylum by individuals at
U.S. installations, vessels or aircraft in foreign jurisdic- tions, this State Department document declares that while it is policy of the U.S. not to grant asylum at these units or installations within the territorial jurisdiction of a foreign state, any requests for U.S. asylum should nevertheless be reported in accordance with these newly established procedura1,guidelines. Moreover, attention is called to the fact that U.S. installations overseas may grant "temporary refuges" 67 for humanitarian reasons, i.e., in exceptional circumstances where the life or safety of a person is put in danger, such as pursuit by a mob. 68
5-26. Controlling DA Regulation. In response to the State Department guidelines discussed above, the Depart- ment of the Army has formulated AR 550-1, Procedures For Handling Requests for Political Asylum an Tempo- rary Refuge. 69 This regulation provides specific guidelines to Army installations and units that receive requests for political asylum or temporary refuge both within and out- side of the territorial jurisdiction of the United States. 70
The end of this chapter marks the termination of an ex- amination of one of the most critical areas of public inter- national law–state jurisdiction. Due to its importance, it
65. Reference here and in AR-550-1 is made to political asylum and "temporary refuge," a term used to describe temporary grants of "diplomatic" asylum. The term is used in deference to the above noted
U.S. refusal to recognize the validity of the granting of diplomatic asylum.
66.
U.S. Department of State, supra note 64.
67.
"Temporary refuge" must not be confused with political or diplomatic asylum.
68.
U.S. Department of State, supra note 64. This section also con- tains the procedures to be followed in such situations and the degree of force that can be used in order to protect the individual(s) involved.
69.
Department of the Army, supra note 64. This AR implements DOD Directive 2000.11 of the same title.
70.
The analogous U.S. Navy Regulation is SECNAVTNST 5710.22 (7 October 1972); change 1 (IS August 1973).
Pam 27-161-1
is essential that the attorney be completely familiar with within their territorial boundaries. Essential to such an both the means by which jurisdiction might be exercised analysis is an understanding of the manner in which both and the immunities to the enforcement of such. Attention private and juristic persons acquire and lose a state's na- must now be directed toward the responsibilities which tionality and concomitant protection. The following states bear as a result of being endowed with the concur- chapter provides this insight. rent rights to exercise jurisdiction and to control activities
I
'4
4
Pam 27-161-1
CHAPTER 6
NATIONALITY
6-1. Introduction. a. A basic feature of today's system of nation states is the relative helplessness of the individual. At birth he finds himself a member of some political in- stitution (typically a "state" in the international system) which, more or less, protects him from the violence of other individuals and groups of individuals. In the domestic legal system of that state, its police and courts may offer protection from harm inflicted within the state; while its army may protect him from harm caused by ag- gression from outside the state. If the individual steps out- side "his" state and is injured by someone in another state, he is largely on his own. He must look for redress, if any, in the courts of that other state. Doctrines of sovereign immunity may bar him from redress for injuries caused by that state. However, as a last resort, the in- dividual must appeal to his own state's government to help him. If it chooses, it may come to his aid by espous- ing a claim against the wrongdoing state through diplo- matic channels (or possibly through arbitration or through judicial means such as the International Court of Justice).
b.
For the protection it offers him at home and the pro- tection it may afford him against foreign injuries, the state demands obligations of the individual in return: to obey its laws, to pay its taxes, to help to defend it against aggres- sion. The physical fact of an individual's presence within a state has been the major basis from which the state exerts its power to protect the individual and to demand his allegiance. However, the processes of history have developed legal relationships between the state and the in-dividual that do not depend solely upon his physical pres- ence in the territory of the state. The state has a special relationship to those it designates as its "nationals." In broad and inexact terms, the state's nationals are entitled to greater rights than nonnationals (e.g., in states with voting systems, the national is permitted to vote, the non- national is not); the state is more ready to demand that the national perform obligations (e.g., the national may be subject to laws prescribed by his state even though he is not physically present in its territory). 1
c.
The practices of states in creating the class of people upon whom they confer nationality vary widely. Some states accord nationality to individuals born within the ter- ritory; this right of nationality is referred to as jus soli. Some states accord nationality at birth only to individuals born of parents who are already nationals; this right of na- tionality is referred to as jus sanguinis. An increasing number of states recognize both bases. In addition to ac- cording nationality based upon facts associated with birth, states afford "naturalization" processes by which in- dividuals may apply for and be granted nationality. As a result of such a variety of bases for nationality existing in
1. See the discussion on jurisdiction, chapter 4, supra.
the international system, it is possible for an individual to be designated a national and thus have "dual nationality" or even "multiple nationality." Indeed, there are circum- stances under which he may have no nationality at all and thus be "stateless."
d. From the perspective of the international legal system, several important questions arise:
(1)
Is a state free to set its own standards for confer- ring its nationality upon an individual, or does interna- tional law set some minimum standard?
(2)
What is the significance of nationality as a base for the state's requiring the performance of obligations by an individual? For example, can the state draft into its army someone who is not its national?
This chapter will explore these and other related ques- tions. 6-2. Nationality as a Concept of Municipal Law. a. The law of conflicts in nationality matters. Many municipal statutes and court decisions fall obviously into the catego- ry of "municipal law of nationality," for no consideration of any law other than that imposed by a sovereign in its unilateral dealings with individuals is involved. In other instances, the municipal character of the legal considera- tion is not so obvious, for the consideration may involve principles of nationality belonging to foreign states and contrary to the generally applicable law of the forum. This situation results not from municipal application of interna- tional law, but rather, from application of the rules of con- flicts of the law, whereby the law of the forum embraces a principle of foreign municipal law. There is a special branch of conflict of laws, dealing with nationality, con- cerned with determining whether certain rules of foreign law, on which the existence, acquisition or loss of na- tionality may depend, will be given effect. For instance, the acquisition or loss of the nationality of a particular country may be dependent on the absence or presence, loss or acquisition of a foreign nationality. 2 In this situa- tion the municipal law of the forum is not applied. Instead, a substantive principle of foreign law is applied by the forum. This process does not involve any concept of inter- national law. It is the result of ordinary conflicts of law rules, as the foreign law applied has become the law of the forum in the case at hand.
b. There is a second situation in which a casual ob- server might mistake the operation of municipal law of na- tionality for that of international law. This is when resort has been made to international law as a guide in formulat- ing municipal law. For example, the International Claims Settlement Act of 1949 3 provides:
64 Stat. 13, as amended, 22 U.S.C. 4 1621 (1958). 2.
Silving, Nationality in Comparative Low, 5 Am. J. Comp. L. 410, 416 (1956).
3.
Pam 27-161-1
A claim . . . shall not be allowed unless the property upon which the claim is based was owned by a national of the United States on the date of. . . taking thereof and .. . continuously thereafter until the date of fd-ing. . . .4
With reference to this statutory provision, the House Committee which formulated it commented: This section gives statutory recopnition to the basic requirement of in- ternational law governing espousable international claims, which is that no claim can be so regaded unless the claim was continuously owned by a national of the claiming state .. .from the date of loss to the date the claim is filed. 5
Thus, the United States, in its municipal law, has given formal effect to "one of the best established principles of international law." 6 However, . . ."it is erroneous to at- tempt to establish rules of international law by methods of comparative law, or even to declare that rules of munici- pal law of different states which show a certain degree of uniformity are rules of international law." 7 Thus, these legal concepts which bear the label "nationality" and which concern the law of more than one nation fail on close inspection to involve considerations of international law. 6-3. Acquisition of Nationality. a. An individual may acquire nationality either originally, that is through the cir-cumstances of this birth, or derivatively, by some action after birth.
(1)
Original acquisition of nationality. Two princi- ples serve as the basis for the original acquisition of na- tionality: jus soli and jus sanguinis. 8 Just soli may be defined as the acquisition of a particular state's nationality by virtue of being born within the territory of that state. The principle of jus sanguinis may be defrned as the ac- quisition of a particular state's nationality by virtue of the possession of the nationality by one's parents. Nationality, under this principle, may be said to be acquired by de- scent.
(2)
Derivative acquisition of nationality. The deriva- tive acquisition of nationality has been referred to as naturalization ipso facto. As such, it deals with the process of naturalization in its broadest sense. Naturalization derivatively acquired generally flows from some action of the person naturalized after birth. Several methods of ac- quiring nationality fall within the broad category of naturalization: by marriage; by legitimation; by acquisition of domicile; by entry into the service of a foreign state; by resumption of a lost nationality; and by the familiar naturalization process of a formal act on the application of the individual concerned. 9 In all of these areas substantial
72 Stat. 528 (1958), 22 U.S.C. 5 1642d (1958). 4.
5.
H. R. Rep. No. 2227,85th Cong., 2d Sess.(1958), 2 U.S. Code Cong. & Admin. News, 3304 (1958).
P. Weis, Nationality and Statelessness in International Law 3 (1955). 6.
Preselj, The Rule of the Nationali@ of Claimant, Due Process of Law and the United Slotes Congress, 53 Am. J. Int'l L. 144-151 (1959).
7.
Id. at 660-63. 8.
1 L. Oppenheim, International Law 650-660 (8th ed. Lauter- pacht 1955).
9.
differences exist in the particular practices of individual states. These multifarious practices are consonant with the principles of international law in that it is well recognized that one of the aspects of territorial sovereignty is the power to determine who, by what method and according to which standards an alien may acquire nationality.
b. The most important and commonly encountered method of acquiring nationality is that process known as "naturalization." The extent to which a state may deliine- ate the requirements placed upon aliens seeking its na- tionality is illustrated by the comprehensive and complex provisions covering this subject in the United States Code. 10 This formal process of naturalization by means of a voluntary petition may be accomplished in proceedings that are either judicial in nature, as in the United States, or that are purely administrative. 6-4. Loss of Nationality. a. As nationality may be gained, so may it be lost. The two primary methods by which the loss of nationality occurs are expatriation and denationalization. Expatriation consists of a formal renun- ciation of the possessed nationality by an individual who has left the state whose nationality he possesses and has or is in a position to acquire another nationality. The renun- ciation is the explicit announcement by the individual by which he sheds his possessed nationality. The formal con- sent of the state, whose nationality is renounced, to the in- dividual's renunciation is known as a release.
Denationalization, on the other hand, may be defined as an act by a state by which it deprives one of its nationals of his nationality. Denationalization may occur either by operation of law-certain conduct resulting in @so facto loss-or after an administrative or judicial proceeding in- stituted by the state.
b. Expatriation. A difficult question arises from the act of renunciation by 'an individual, as it is not entirely clear whether expatriation is unilateral or bilateral in nature. May an individual legally terminate his allegiance to the state of his nationality by unilaterally renouncing his na- tionality, or must a release by the state follow the renun- ciation for the renunciation to be "good against the world?" At common law a subject's allegiance persisted. This theory was known as the "doctrine of indelible allegiance" and was a part of the English law until 1870. It was, of course, a source of friction and bitterness between Great Britain and the United States, particularly in the later 18th and 19th centuries. Between 1870 and 1948, the English reversed this doctrine. In 1948, pursuant to the British Nationality Act, a middle ground was taken: a British subject may now either retain or renounce his allegiance to the Crown, as he chooses, upon acquisition of a new nationality. The doctrine of indelible allegiance was also a part of the law of the United States in early times. Gradually, however, the doctrine was abandoned as it did not comport with the position of the United States
10. Immigration and Nationality Act, 66 Stat. 163 (1952), as amended 8 U.S.C. 45 1421-59 (1958).
Pam 27-161-1
as a state receiving a heavy flow of immigration. 11
c. Denationalization. The practice of states with respect to the application of denationalization varies greatly. Some states have no provision in their domestic law for dena- tionalization, while others, like Great Britain and some of the Commonwealth countries, have provisions which relate only to naturalized nationals. Still others, like the United States, 12 have statutory provisions relating to the denationalization of both native born and naturalized na- tionals.
(1) In the U.S., Congress has provided that an American national shall lose his nationality for a variety of reasons. 13 The meaning of the statutory phrase "lose his nationality" has, however, generated a certain degree of controversy. In Kennedy v. Mendoza-Martinez,14 the court said:
We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship-particularly American citizenship, which is "one of the most valuable rights in the world to- day," Report of the Resident's Commission on Immigration and Naturalization (1953), 235-has grave practical consequences. An ex-patriate who, like Cort, had no other nationality becomes a stateless per- son-+ person who not only has no rights as an Americancitizen, but no membership in any national entity whatsoever. "Such individuals as do not pmess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty * * no restriction whatever to cause a State to abstain from maltreating to any extent such stateless
1 individuals." I Oppenheim, International Law (8th ed., Lauterpacht, 1955), 5 291, at 640. The calamity is "[nlot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever *"
In holding that denationalization as a punishment is bar-red by the Eiith Amendment, the court, in Troy v. Dulles, 15 said:
There may be involved no physical mistreatment, no primitive tor- ture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than tor- ture for it destroys for the individual the political existence that was cen- turies in the development. The punishment strips the citizen of his status in the national and international political community. His very ex- istence is at the sufferance of the country in which he happens to fmd himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have nghts.
(2) It is not only in Troy v. Dulles that the dena- tionalization provisions have suffered badly at the hands of the U.S. Supreme Court. Although in Perez v.
11. See generally, Boudin, Involuntary Loss of American Na- tionality, 73 Harv. L. Rev. 1510, 1511-1516 (1960).
12. Immigration and Nationality Act, 68 Stat. 267 (1952), as amended 8 U.S.C. 55 1481-1489 (1958).
13.
8 U.S.C. 5 1481.
14.
372 U.S. 144, 160; 83 S.Ct. 554, 563 (1963).
15.
356 U.S. 86, 101; 78 S.Ct. 590, 598 (1958).
Brownell16 the court had held that it was within the foreign relations power of Congress to provide for loss of citizenship by one who votes in a foreign election, this par- ticular case was overruled in Afroyim v. Rusk. 17 Moreover, in the Mendoza-Martinez case, the court held that the provision for loss of nationality by remaining out- side the United States to avoid military service was puni- tive in nature and could not stand constitutionally in that it lacked due process safeguards guaranteed by the Constitu- tion. Finally, in Schneider v. Rusk, 18 the court struck down the provision for loss of nationality by a naturalized citizen who had continuously resided for 3 years in the country of his origin.
6-5. Statelessness. a. Although, as noted above, inter- national law does not generally prohibit the use by states of denationalization, the undesirable result, i.e., stateless- ness, is a matter of great concern. In Staniszewski v.
Watkins,19 a "stateless" seaman was released after being detained at Ellis Island for about 7 months at the expense of his employer. The court observed that the government was ". . .willing that he go back to the ship, but if he were sent back aboard ship and sailed to the port . . . from which he last sailed to the United States, he would prob- ably be denied permission to land. … There is no other country that would take him without proper documents." The court sustained the seaman's writ of habeas corpus and ordered his release: "He will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where he is employed and where he can be reached by mail. If the government does suc- ceed in arranging for petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the petitioner to that effect and arrange for his deportation in the manner provided by law."
b. Similarly, in Public Prosecutor v. Zinger, 20 the court ordered the release of a stateless person who had been im- prisoned for failure to obey expulsion orders. The court weighed the alternatives of releasing the man or imprison- ing him "at the cost of the French taxpayer" for an offense which he could not help committing, since he was unable to leave French territory. The court concluded that "release is the best solution from the legal point of view." In the past, statelessness has resulted from a state's decree that members of a whole class of persons are no longer to be considered citizens of the state. During World War 11, Germany withdrew German nationality from Jews per- manently resident abroad. In France, this loss of na- tionality relieved an individual from the strictures applied by French law to enemy [German] subjects, even though the denationalization law was repealed by the Allies at the
16.
356 U.S. 44; 78 s.c~.
568 (1958).
17.
387 U.S. 253; 87 S.Ct. 1660 (1967).
18.
377 U.S. 163; 84 S.Ct. 1187 (1964).
19. 80 F.Supp. 132 (S.D.N.Y. 1948).
20. 11935-371Ann. Dig. 307 (No. 138).
end of the war. 21 6-6. Nationality as a Concept of International Law. a. General concepts. The preceding discussion has been directed toward an appreciation of the inherent semantic difficulties involved in the study of nationality and to not- ing those problems which appear to be, but are not, within the ambit of the international law of nationality. For the purposes of a study of substantive principles, the content of the international law of nationality may be said to be those rules of law which define the relative rights of states regarding the relationship between themselves and foreign persons, a relationship which is governed, at least in part, by rules of international law. 22 The international law of nationality is not concerned with all the rights and duties of states, but only those which concern the relationship between one or more states [the subjects of international law] and foreign persons [the objects of international law]. 23
It is through the medium of their nationality that individuals can nor-mally enjoy benefits from the existence of the Law of Nations. This is a fact which has consequence over the whole area of International Law. 24
It is obvious that while mental segregation of municipal and international law of nationality is essential to clarity of thought, physical segregation of the two in discussion is impossible. This results from the fact that it isnecessary to consider simultaneously the rules which the sovereigns have imposed upon their subjects and the effect these rules have upon the relative rights of various sovereigns; and conversely, the effect the rights of various sovereigns as to one another has had upon the rules which each en- forces on its own subjects. In the words of a United States Court of Appeals: "Each country determines for itself who are its nationals, subject to certain limitations on ex- pansive claims imposed by international law." 25
b. Determination of nationality under International Law.
(1) Limitations imposed by International Law.
NATIONALITY DECREES IN TUNIS AND MOROCCO
(GREAT BRITAIN v. FRANCE)
Permanent Court of International Justice, 1923
P.C.I.J., Ser. B, No. 4; 1 Hudson, World Ct.Rep. 143
[Decrees promulgated in Tunis and Morocco on November 8, 1921, declared every person born in Tunis or the French zone of Morocco of parents at least one of whom was a foreigner who had also been born there to be, subject to certain conditions of proof, a French national. The British government objected to the enforcement of the demes (par-ticularly with respect to forcible induction into military service) against persons who were the descendants of British subjects and therefore, under British law, themselves British subjects. France having refused to
United States ex re/.Schwarzkopf v. Uhl, 137 F.2d 898 (1943). 1 L. hpenheim, supra, note 8 at 640. 21.
Terhoch v. Daudin et Assistance Publique France, [I9471 Ann.Dig. 121 (No. 64).
22.
See P. Weis, supra, note 7, at 34-35 for the complexities that may arise in attempting to outline clearly the scope of such a law.
23.
As noted in chapter 1 and throughout this publication, the above subject-object distinction is still generally observed in nationality matters. See generally, H. Briggs, TheLaw of Nations, 64, 93-98 (2d ed. 1952).
24.
25.
submit the dispute to arbitration, the British government placed the
matter before the Council of the League of Nations. France there
argued that the dispute arose out of a matter solely within its domestic
jurisdiction, and the Council requested an advisory opinion of the Per-
manent Court of International Justice on the preliminary question
whether the dispute between France and Great Britain was "by interna-
tional law solely a matter of domestic jurisdiction (article 15, paragraph 8
of the Covenant). . . ."I
The question whether a certain matter is or is not solely within the ju-
risdiction of a State is an essentially relative question; it depends upon
the development of international relations. Thus, in the present state of
international law, questions of nationality are, in the opinion of the
Court, in principle within this reserved domain.
For the purpose of the present opinion, it is enough to observe that it
may well happen that, in a matter which, like that of nationality, is not,
in principle, regulated by international law, the right of a State to use its
discretion is nevertheless restricted by obligations which it may have un-
dertaken towards other States. In such a case,jurisdiction which, in prin-
ciple, belongs solely to the State, is limited by rules of international law.
…
[The Court held that the nationality decrees had to be considered in the light of a number of international agreements invoked by France and Great Britain; for that reason, the dispute did not arise out of a mat- ter solely within France's domestic jurisdiction.]
*
CONVENTION ON CERTAIN QUESTIONS RELATING TO
THE CONFLICT OF NATIONALITY LAWS
%gned at The Hague, April 12, 1930
179 L.N.T.S. 89, 5 Hudson, Int'l Legislation 359
Art. 1. It is for each State to determine under its own law who are its
nationals. This law shall be recognized by other States in so far as it is
consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality.
Art. 2. Any question as to whether a person possesses the nationality
of a particular State shall be determined in accordance with the law of
that State.
Art. 3. Subject to the provisions of the present Convention, a person
having two or more nationalities may be regarded as its national by each
of the States whose nationality he possesses.
(2)
What limits does international law, particularly "international custom" and "the principles of law generally recognized with regard to nationality," impose on the power of states to legislate on matters of na- tionality? Harvard Research in hternational Law sug- gested in 1929 that the power of a state to confer its na- tionality was "not unlimited," observing that although it may be dficult to specifjr the limitation imposed by inter- , national law on the power of a state to confer its na- tionality, "it is obvious that some limitations do exist." 26
(3)
The Hague Codification Conference of 1930 was unable to agree upon a more precise formulation than that adopted in Article 1of the Convention on Conflict of Na- tionality Laws quoted above. However, a number of par- ticipating governments asserted that states were not obli- gated under international law to recognize nationality con- ferred upon a person in the absence of some generally recognized relationships or co~ection between the per- son and the state claiming him as its national. The Ger- man Government, for example, stated:
26. Harvard Research in International Law, The Law of Na- tionaliry, Art. 2, 23 Am. J. Int7Spec. Supp. 11, 24-27 (1929).
Pam 27-161-1
The general principle that all questions relating to the acquisition or loss of a sWc nationality shall be governed by the laws of the State whose nationality is claimed or contested should be admitted. The ap- plication of this principle, however, should not go beyond the limits at which the legislation of one State encroaches on the sovereignty of another. For example, a State has no power, by means of a law or ad- ministrative act, to confer its nationality on all the inhabitants of another State or on all foreigners entering its territory. Further, if the State con- fers its nationality on the subjects of other States without their request, when the persons in question are not attached to it by any particular bond, as, for instance, origin, domicile or birth, the States concerned will not be bound to recognize such naturalization. 27
(4) The United States was of the opinion that there were: . . . certain grounds generally recognized by civilized States upon which a
State may properly clothe individuals with its nationality at or after bi, but . . . no State is free to extend the application of its laws of nationality in such a way as to reach out and claim the allegiance of whomever it pleases. The scope of municipal laws governing nationality must be regarded as limited by consideration of the rights and obligations of in- dividuals and of the States. 28
Although certain governments participating in the con- ference questioned the existence of rules of international law, other than those laid down in treaties, that limit a state's freedom in matters of nationality, the text of Arti- cle 1 of the Convention on Contlict of Nationality Law was adopted by a vast majority. 29
c. Consent to the Conference of Nationality. May a state confer its nationality upon another state's national without the latter's consent? Provisions of Peru's 1839 constitution, purporting to confer effective Peruvian na- tionality upon foreigners who had either resided in Peru for four years and married a Peruvian, or who had ac- quired real property, drew strong British protests in which it was asserted that "an incontrovertible principle of the law of nations" stipulated that . . . "the consent of a foreigner is necessary to legalize his naturalization in another State whatever may be the provisions of the civil law of the State on the subject." 30
(1) In 1886 the United States protested Mexican legislation under which foreigners who had acquired real estate or had children born to them in Mexico were to be considered Mexican citizens unless they officially declared
27. 1 League of Nations Docs. 13 (1929).
28. Id. at 145-46.
29. 37 states signed the Convention. However, as of 1 January 1976, only 14 states had ratifled or acceeded to this agreement. The U.S. has not ratified the Convention. A study published in 1929 revealed that while a significant number of states conferred nationality at birth ex- clusively on the basis of descent from nationals (jure sanguinis) and a smaller number on the basis of birth within the territory of the state cure soli), the great majority had enacted legislation that combined ele- ments of both systems, with one or the other serving as a principal standard. See R. Floumoy & M. Hudson, A Collection of Nationality Laws (1929); Harvard Research in Intemational Law, supra, note 26 at 11, 80-82. See also, U.N. Secretariat, Laws Concerning Nationality,
U.N. Doc. ST/LEG/SER.B/4 (1954), supplemented by ST/LEG/SER.B/9 (1 959).
30. P. Weis, supra, note 7 at 105. For a U.S. protest and conse- quent Peruvian concessions, see 3 J. Moore, Digesr of International Law 302-03 (1906).
their intention to retain their own nationality. Secretary of State Bayard observed that it was "the generally recog- nized rule of international law" that "the transfer of allegiance must be by a distinctly voluntary act." 31 The United States acquiesced in 1895 in Mexico's refusal to extradite a United States national on the ground he had become a Mexican national by purchase of real estate. 32 The British Government found the Mexican legislation to be "within the competence of the Mexican Govern- ment." 33
(2)
A Brazilian decree of 1889 declared that all foreigners residing in Brazil would be considered Brazilian citizens unless they should, within six months from the publication of the decree, make an express declaration of contrary intention. A number of European states entered joint protests against the decree, which was characterized by Italy as "contrary to generally accepted principles of in- ternational law." 34 The British Foreign Ofice requested an opinion of the Law Officers of the Crown, who main- tained that a person having notice of the Brazilian decree and an opportunity to make the declaration therein men- tioned should be considered as having voluntarily become a Brazilian national if he failed to act. 35 On receiving state- ments from the Brazilian government relating to the in- terpretation and enforcement of the 1889 decree, the United States declined to protest and advised its nationals in Brazil to make appropriate declarations of their inten- tion to retain United States nationality. 36 A French court, however, held that the Brazilian legislation was incompati- ble with international law. 37
d.
Some publicists contend that it is "contrary to law" for a state to impose compulsory nationality on aliens by reason either of their acquisition of real property 6r of their residence of the country. 38 The Harvard Research considered it to be "generally recognized" that a state might not acquire the allegiance of natural persons without their consent, except under certain special circum-stances. 39 In a memorandum to the Hague Codification Conference of 1930, the United States observed that it had taken the position that ". . . as a general rule, no per- son should have the nationality of a foreign country upon
31. Id. at 304-06.
32. 3 J. Moore, supra, note 30 at 307.
33. 5 Brit. Dig. Int'l L. 28 (1965).
3 J. Moore, supra, note 30 at 307-10. 5 Brit. Dig. Int'l L. 250 (1965). P. Weis, supra, note 7 at 105-07. 34.
,
35.
36.
37.
Ulmann v. Mi. Pub., 11-12 Rev. de Droit International Prive 67, 77 (Trib. Civ. de la Seiie, July 13, 1915). For a discussion of the Argentine legislation of 1954, under which foreigners must state their intention to seek or to refuse Argentine nationality after five years' con- tinuous residence, see P. Weis, supra, note 7 at 11 1-13.
38. De Viher, Theory and Reality in Public International Law 185 (Rev. ed. Corbett trans.1968).
39. Harvard Research in International Law, supra, note 26 at Art.
5, 11, 53-55.
Pam 27-161-1
or after birth without his consent, express or implied." 40
e. As noted above, one of the most controversial topics in the areas of nationality is the manner in which a state may legitimately confer its citizenship. The most impor- tant decision pertaining to this matter appears below. It is generally regarded as the definitive statement of the effect of nationalization decrees on an international level.
NOTTEBOHM CASE (LIECHTENSTEIN v. GUATEMALA)
International Court of Justice, 1955 [I9551 I.C.J. 4
[Nottebohm had been a German national from his birth in Germany in 1881 until his naturalization in Liechtenstein in 1939, shortly after the outbreak of war in Europe. In 1905 he had taken up residence in Guatemala and engaged in substantial business dealings in that country. Thereafter he sometimes went to Germany on business, to other coun- tries on holidays, and to Liechtenstein in order to visit a brother who lived there after 1931. In early 1939, Nottebohm went to Europe and eventually applied for naturalization in Liechtenstein on October 9, 1939. Nottebohm sought and received dispensation from residence re- quirements, paid his fees and gave security for the payment of taxes, and completed the naturaliition process by taking an oath of allegiance on October 20, 1939. He obtained a Liechtenstein passport, had it visaed by the Guatemalan consul in Zurich, and returned to Guatemala to resume his business activities. At his request, Guatemalan authorities made appropriate changes regarding Nottebohm's nationality in the Register of Aliens and in his identity document.
[On July 17, 1941 the United States blacklisted Nottebohm and froze his assets in the United States. War broke out between the United States and Germany, and between Guatemala and Germany, on December 11, 1941. Nottebohm was arrested by Guatemalan authorities in 1943 and deported to the United States, where he was interned until 1946 as an enemy alien. He applied upon his release for readmission to Guatemala, but his application was refused. Nottebohm then took up residence in Liechtenstein, but Guatemala had in the meantime taken measures against his properties in that country, culminating in wn- fiscatory legislation of 1949.
[Liechtenstein instituted proceedings against Guatemala in the Inter- national Court of Justice, alleging the foregoing facts and asking the Court to declare that Guatemala had violated international law "in ar-resting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property" and consequently was bound to pay compensation. Guatemala's principal argument in reply was that the Liechtenstein claim was inadmissible on grounds of the claimant's
–
nationality.
[The Court stated the facts and rejected Liechtenstein's argument that Guatemala was precluded from contesting Nottebohm's nationality because it had on several occasions acknowledged Nottebohm's claim of Liechtenstein nationality. It then continued:]
Since no proof has been adduced that Guatemala has recognized the title to the exercise of protection relied upon by Liechtenstein as being derived from the naturalization which it granted to Nottebohm, the Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on the part of Guatemala to recognize its effect, namely, Liechtenstein's right to exercise its protec- tion. In other words, it must be determined whether that unilateral act by Liechtenstein is one which can be relied upon against Gua.temala in regard to the exercise of protection. The Court will deal with this ques- tion without considering that of the validity of Nottebohm's naturaliza- tion according to the law of Liechtenstein.
40. League of Notions Docs., supra, note 27 at 146. But see J. Jones, British Nationality Law 15, 27,31 (1956), in whose opinion state practice shows that ". . .in the present state of international law the sole limitation appears to be the existence of a genuine connection with the state .. .," whether or not there is consent.
It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any litations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or im- poses on its nationals. This is implied in the wider concept that na- tionality is within the domestic jurisdiction of the State.
But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court, is to place oneself on the plane of international law. It is international law which determines whether a State is entitled to exer- cise protection and to seise the Court.
The naturaliition of Nottebohm was an act performed by Liechten-
stein in the exercise of its domestic jurisdiction. The question to be
decided is whether that act has the international effect here under con-
sideration. .. .
When one State has conferred its nationality upon an individual and another State has conferred its own nationality on the same person, it may occur that each of these States, considering itself to have acted in the exercise of its domestic jurisdiction, adheres to its own view and bases itself thereon in so far as its own actions are concerned. In so doing, each State remains within the limits of its domestic jurisdiction.
This situation may arise on the international plane and fall to be con- sidered by international arbitrators or by the courts of a thud State. If the arbitrators or the courts of such a State should confine themselves to the view that nationality is exclusively within the domestic jurisdiction of the State, it would be necessary for them to find that they were con- fronted by two contradictory assertions made by two sovereign States, assertions which they would consequently have to regard as of equal weight, which would oblige them to allow the contradiction to subsist and thus fail to resolve the conflict submitted to them.
In most cases arbitrators have not strictly speaking had to decide a conflict of nationality as between States, but rather to determine whether the nationality invoked by the applicant State was one which could be relied upon as against the respondent State, that is to say, whether it entitled the applicant State to exercise protection. Interna- tional arbitrators, having before them allegations of nationality by the applicant State which were contested by the respondent State, have sought to ascertain whether nationality had been conferred by the appli- cant State in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. In order to decide this question arbitrators have evolved certain principles for determining whether full international effect was to be attributed to the nationality invoked. The same issue is now before the Court: it must be resolved by applying the same principles.
The courts of thud States, when confronted by a similar situation, have dealt with it in the same way. They have done so not in connection with the exercise of protection, which did not arise before them, but where two different nationalities have been invoked before them they have had, not indeed to decide such a dispute as between the two States wncerned, but to determine whether a given foreign nationality which had been invoked before them was one which they ought to recognize.
International arbitrators have decided in the same way numerous cases of dual nationality, where the question arose with regard to the ex- ercise of protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person wncerned and one of the States whose nationality is involved. Different factors are taken into considera- tion, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor,
Pam 27-161-1
but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.
Similarly, the courts of third States, when they have before them an individual whom two other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality.
The same tendency prevails in the writings of publicists and in prac- tice. This notion is inherent in the provisions of Article 3, paragraph 2, of the Statute of the Court. National laws reflect this tendency when, in-ter alia, they make naturalization dependent on conditions indicating the existence of a link, which may vary in their purpose or in their nature but which are essentially concerned with this idea. The Liechtenstein Law of January 4th, 1934, is a good example.
The practice of certain States which refrain from exercising protection in favour of a naturalized person when the latter has in fact, by his prolonged absence, severed his links with what is no longer for him any- thing but his nominal country, manifests the view of these States that, in order to be capable of being invoked against another State, nationality must correspond with the factual situation. A similar view is manifested in the relevant provisions of the bilateral nationality treaties concluded between the United States of America and other States since 1868, such as those sometimes referred to as the Bancroft Treaties, and in the Pan- American Convention, signed at Rio de Janeiro on August 13th, 1906, on the status of naturalized citizens who resume residence in their coun- try of origin.
The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fucing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity kith this general aim of making the legal bond of nationality accord with the individual's genuine con- nection with the State which assumes the defence of its citizens by means of protection as against other States.
The requirement that such a concordance must $xist is to be found in the studies canied on in the course of the last thirty years upon the in- itiative and under the auspices of the League of Nations and the United Nations. It explains the provision which the Conference for the Codification of International Law, held at The Hague in 1930, inserted in Article 1 of the Convention relating to the Conflict of Nationality Laws. . . . In the same spirit, Article 5 of the Convention refers to cri-teria of the individual's genuine connections for the purpose of resolv- ing questions of dual nationality which arise in third States.
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, in- terests and sentiments, together with the existence of reciprocal nghts and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-2-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national.
Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State. As the Permanent Court of International Justice has said and has repeated, "by taking up the case of one of its subjects and by resort- ing to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights-its right to ensure, in
the person of its subjects, respect for the rules of international law"
(P.C.I.J., Series A, No. 2, p. 12, and Series MB, Nos. 20-21, p. 17).
Since this is the character which nationality must present when it is in-
voked to furnish the State which has granted it with a title to the exer-
cise of protection and to the institution of international judicial proceed-
ings, the Court must ascertain whether the nationality granted to Not-
tebohm by means of naturalization is of this character or, in other
words, whether the factual connection between Nottebohm and
Liechtenstein in the period preceding, contemporaneous with and
following his naturalization appears to be sufficiently close, so prepon-
derant in relation to any connection which may have existed between
him and any other State, that it is possible to regard the nationality con-
ferred upon him as real and effective, as the exact juridical expression of
a social fact of a connection which existed previously or came into exist-
ence thereafter.
Naturalization is not a matter to be taken lightly. To seek and to ob-
tain it is not something that happens frequently in the life of a human
being. It involves his breaking of a bond of allegiance and his establish-
ment of a new bond of allegiance. It may have far-reaching conse-
quences and involve profound changes in the destiny of the individual
who obtains it. It concerns him personally, and to consider it only from
the point of view of its repercussions with regard to his property would
be to misunderstand its profound ~i~cance.
In order to appraise its in-
ternational effect, it is impossible to disregard the circumstances in
which it was conferred, the serious character which attaches to it, the
real and effective, and not merely the verbal preference of the individual
seeking it for the country which grants it to him.
At the time of his naturalization does Nottebohm appear to have been
more closely attached by his tradition, his kstablishment, his interests,
his activities, his family ties, his intentions for the near future to
Liechtenstein than to any other State? . . .
At the date when he applied for naturalization Nottebohm had been a German national from the time of his birth. He had always retained his connections with members of his family who had remained in Germany and he had always had business connections with that country. His country had been at war for more than a month, and there is nothing to indicate that the application for naturalition then made by ~otte~h was motivated by any desire to dissociate himself from the Government of his country.
He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the centre of his in- terests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests.
In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization: the application indicates that he was paying a visit there and confis the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or y-n the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there., If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of hi interests and his business activities to Liechtenstein. It is unnecessary in this connection to attribute much im- portance to the promise to pay the taxes levied at the time of his naturalization. The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the pres- ence in Vaduz of one of his brothers: but his brother's presence is refer- .red to in his application for naturalization only as a reference to his good conduct. Furthermore other members of his family have asserted Not- tebohm's desire to spend his old age in Guatemala.
These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection be- tween hi and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connec- tion with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the gen- uineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international rela- tions.
Naturalization was asked for not so much for the purpose of obtainii a legal recognition of Nottebohrn's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a beligerent State that of a national of a neutral State, with the sole aim of thus corning within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations-other than fiscal obligations-and exercising the rights pertaining to the status thus acquired.
Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein cons,equently is not entitled to ex- tend its protection to Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be inadmissible. . . .
For these reasons, the court, by eleven votes to three, holds that the claim submitted by the Government of the Principality of Liechtenstein is inadmissible.
[Dissenting opinions of Judges Klaestad and Read, and of Judge ad hoc Guggenheim, are omitted.] 6-7. Dual Nationality. a. As noted throughout this chapter, the determination of who are nationals of a par- ticular state and who are not is generally the prerogative of the state concerned. Within certain limits international law does not attempt to impose criteria which htes must follow in determining who its nationals are. With this power left to the various states, it is not unusual that two states may claim the same individual, since he has fulfied the requirements of each. 41 This dual nationality has been encountered quite frequently among nationals of the United States. It arose primarily from the fact that many immigrants assumed U.S. nationality and also remained nationals of their homelands after coming to the United States. Their children, under the principle of jus sanguinis, were considered as nationals of their father's native coun- try and nationals of the local state under jus soli.
b. Conflicts arising from dual nationality have occurred when the dual national returned to the country of origin. On occasion he has either been unable to leave or has been liable to military service. In order to protect its citizens who are also nationals of other states. the United States, beginning in 1868, entered into bilateral agree- ments with many European and Latin American states which permitted the immigrant to voluntarily renounce his nationality upon becoming an American citizen. 42 Such treaties solve the problem of dual nationality by
41. See generally, Rode, Dual Nationals and the Doctrine of Domi- nate Nationali& 53 Am. J. Int'l L. 139 (1959).
eliminating one nationality. When, however, both na-
tionalities remain, other solutions have been reached. The
first is that of "dominant nationality," initially invoked in
the claim of James Louis Drurnrnond. During the
Napoleonic wars, France seized the property of British
subjects located in France. The Treaty of Paris of 1814
clearly provided for the settlement of British claims arising
out of such seizure. Though Drumrnond was both a
French and a British national, he resided in France. He
put forward a claim, however, on the basis of his British
nationality. It was refused by the British Council in the
following language:
Drummond was technically a British subject but in substance, a French subject, domiciled in France, with all the attributes of French character. . . . The act of violence that was done toward him was done by the French Government in the exercise of its municipal authority over its own subjects. 43
c.
Still another solution is to deny the right of one state to espouse a claim of its dual national against a state which also claims the claimant as its citizen. This rule is termed the "doctrine of nonresponsibility of states for claims of dual nationals." It was first invoked by the Arnerican- British Claims Commission in 1871 in the Claim of the Executors of R.S.C.A. Alexander 44 and repeated as a rule of international law by the British-Mexican Claims Commission in 193 1.
d.
It is an accepted rule of international law that such a person (a dual-national) cannot make one of the countries to which he owes allegiance a defendant before an interna- tional tribunal. 45 On June 10, 1955, the Italian-United States Conciliation Commission, established by article 83 of the Peace Treaty with Italy, decided the claim of U.S.ex re1 Florence Strungsky Merge v. Italian Republic. 46 The claimant was a national of both the U.S.A. and Italy. In this decision, the Commission based its ruling on what are considered to be the two most important international principles associated with the concept of dual nationality.
UNITED STATES EX REL. MERGE v. ITALIAN REPUBLIC
Italian-United States Conciliation Commission, 1955
3 Collection of Decisions No. 55
14 U.N. Rep. Int'l Arbitral Awards 236
me claimant had acquired United States nationality upon her birth in New York in 1909. At the age of 24, she mked an Italian national in Rome and thereby acquired, according to Italian law, Italian nationality as well. She lived in Italy with her husband until 1937, at which time she accompanied her husband to Japan, where the latter had been sent as a translator and interpreter for the Italian Embassy in Tokyo. The United States Consulate General there registered the claimant, at her request, as a United States national. The claimant remained with her husband in Japan until 1946, at which time she returned to the United States for a period of nine months on a passport issued to her by the United States consulate in Yokohama. She then returned to Italy to rejoin her hus-
42. III G. Hackworth, Digest of International Law 377 (1942).
3 J, Moore, International Arbitration 2529 (1898). 2 Knapp, P.C. Rep. 295, 12 Eng. Rep. 492. 43.
44.
45.
Oldenbourg and Honey cases before the British-Mexican Claims Commission under the convention of 1926 cited in Rode, supra, note 41 at 141.
46. Reported in 50 Am. J. Int'l L. 150-57 (1956).
Pam 27-161-1
band. Immediately upon her arrival, she registered as a United States
national at the American Embassy in Rome. In 1948, the United States
) submitted to Italy a claim based on Article 78 of the Italian Peace Treaty (February 10, 1947, T.I.A.S. 1648) for compensation for the loss, as a * result of the war, of a grand piano and other personal property located in Italy and owned by the claimant. Italy rejected the claim on the ground that the claimant was an Italian national, and the dispute relating to the claimant's double nationality was submitted to the Conciliation Com- mission. (The fmt sub-paragraph of Article 78,s 9(a), of the peace treaty pro- vided that the term "United Nations nationals" was to mean "in-dividuals who are nationals of any of the United Nations." The Com- mission fmt considered whether this def~tion had been intended to avoid the double nationality problem, by allowing claims by all United Nations nationals whether or not they were also Italian nationals. After concluding that the treaty did not resolve the issue, the Commission considered the applicable general principles of international law:] In this connection two solutions are possible: a) the principle mrd- ing to which a State may not afford diplomatic protection to one of its nationals against the State whose nationality such person also possesses; b) the principle of effective or dominant nationality. The two principles just mentioned are defmed in (The Hague Con- vention of 19301: the fmt (Art. 4) within the system of public interna- tional law; the second (Art. 5) within the system of private international law. Art. 4 … is as follows: "A State may not afford diplomatic protection to one of its na- tionals against a State whose nationality such person also possesses."
The same Convention, in Art. 5, indicates effective nationality as the criterion to be applied by a third State in order to resolve the conflicts of laws raised by dual nationality cases. Such State
"shall, of the nationalities which any such person possesses, recog-nize exdusively in its territory either the nationality of the counby in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be most closely connected."
This rule, although referring to the domestic jurisdiction of a State, nevertheless constitutes a guiding principle also in the international system. . . .
The Hague Convention, although not ratified by all the Nations, ex- presses a communis opinio juris, by reason of the near-unanimity with which the principles referring to dual nationality were accepted. . . .
It is not a question of adopting one nationality to the exclusion of the other. Even less when it is recognized by both Parties that the claimant possesses the two nationalities. The problem to be explained is, simply, that of determining whether diplomatic protection can be exercised in such cases.
A prior question requires a solution: are the two principles which have just been set forth incompatible with each other, so that the acceptance of one of them necessarily implies the exclusion of the other? If the reply is in the affiative, the problem presented is that of a choice; if it is in the negative, one must determine the sphere of application of each one of the two principles.
The Commission is of the opinion that no irreconcilable opposition between the two principles exists; in fact, to the contrary, it believes that they complement each other reciprocally. The principle according to which a State cannot protect one of its nationals against a State which alsoconsiders hiits national and the principle of effective, in the sense of dominant, nationality, have both been accepted by the Hague Con- vention (Articles 4 and 5) and by the International Courtof Justice (Ad- visory Opiion of April 11, 1949 and the Nottebohm Decision of April 6, 1955). If these two principles were irreconcilable, the acceptance of both by the Hague Convention and by the International Court of Justice would be incomprehensible. . . .
The principle, based on the sovereign equality of States, which ex- cludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is
that of the claiming State. But it must not yield when such predomi-
nance is not proved, because the fmt of these two principles is generally
recognized and may constitute a criterion of practical application for the
elimination of any possible uncertainty.
.. . In view of the principles accepted, it is considered that the
Government ofthe United States of America shall be entitled to protect
its nationals before this Commission in cases of dual nationality, UnitedA
States and Italian, whenever the United States nationality is the effective
nationality.
In order to establish the prevalence of the United States nationality in
individual cases, habitual residence can be one of the criteria of evalua-
tion, but not the only one. The conduct of the individual in his econom-
ic, social, political, civic and family life, as well as the closer and more
effective bond with one of the two States must also be considered.
It is considered that in this connection the following principles may
serve as guides:
a) The United States nationality shall be prevalent in cases of
children born in the United States of an Italian father and who have
habitually lived there.
b) The United States nationality shall also be prevalent in cases in- volving Italians who, after having acquired United States nationality by naturalization and having thus lost Italian nationality, have reacquired their nationality of origin as a matter of law as a result of having so- journed in Italy for more than two years, without the intention of retransferring their residence permanently to Italy.
C) With respect to cases of dual nationality involving American
women married to Italian nationals, the United States nationality shall
be prevalent in casesin which the family has had habitual residence in
the United States and the interests and the permanent professional lie
of the head of the family were established in the United States.
d) In case of dissolution of marriage, if the family was established in Italy and the widow transfers her residence to the United States of America, whether or not the new residence is of an habitual nature must be evaluated, case by case, bearing in mind also the widow's con- duct, especially with regard to the raising of her children, for the purpose of deciding which is the prevalent nationality.
United States nationals who did not possess Italian nationality but the nationality of a third State can be considered "United Nations na- tionals" under the Treaty, even if their prevalent nationality was the na- tionality of the third State.
In all other cases of dual nationality, Italian and United States, when, that is, the United States nationality is not prevalent in accordance with the above, the principle of internationallaw, according to which a claim is not admissible against a State, Italy in our case, when this State also considers the claimant as its national and such bestowal of nationality is, as in the case of Italian law, in harmony . . . with international custom and generally recognized principles of law in the matter of nationality, will reacquire its force.
Ex-the facts of the case in bar, . . . the Commission holds that Mrs. Merge can in no way be considered to be dominantly a United States national within the meaning of Article 78 of the Treaty of Peace, because the family did not have its habitual residence in the United States and the interests and the permanent professional life of,the head of the family were not established there. In fact, Mrs. Merge has not lived in the United States since her rnaniage, she used an Italian passport in traveling to Japan from Italy in 1937, she stayed in Japan from 1937 until 1946 with her husband, an official of the Italian Em- bassy in Tokyo, and it does not appear that she was ever interned as a national of a country enemy to Japan.
Inasmuch as Mrs. erg;, for the foregoing reasons, cannot be con- sidered to be dominantly a United States national within the meaning of Article 78 of the Treaty of Peace, the Commission is of the opinion that the Government of the United States of America is not entitled to pre- sent a claim against the Italian Government in her behalf. . . .
[Petition of the United States rejected.]
Pam 27-161-1
6-8. Obligations of Nationality or Allegiance. It is not uncommon for a state to apply its laws to acts performed by its nationals beyond the territorial limits of the state. As stated by Mr. Chief Justice Hughes in Blackmer v. United States. 47
While it appears that the petitioner removed his residence to France in the year 1924, it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus although resident abroad, the petitioner remained subject to the taxing power of the United States. For disobedience to its laws through conduct abroad he was subject to punishment in the courts of the United States. With respect to such an exercise of authority, there is no question of interna- tional law, but solely of the purport of the municipal law which estab- lishes the duties of the citizen in relation to his own government. *
6-9. Taxation. a. Should the reach of a state's laws based upon the relationship of the individual with the state be confied to those who have the state's nationality? The question is posed below in comection with laws relating to taxation and compulsory military service.
(1)
International law has recognized a number of bases for the imposition of taxes. Here as elsewhere it is essential to distinguish between a state's jurisdiction to prescribe a rule imposing a tax and its jurisdiction to en- force such a rule. The practical dficulties of enforcing taxes upon persons not physically within its territory and not owning property within its territory realistically limit the tax collecting state. International controversy as to ju- risdiction to tax has been relatively infrequent. Conse- quently, the only evidence of the international law on the subject is state practice.
(2)
The territorial base supports state taxation measured by property located and income produced with- in the state. States impose such taxes on the individuals owning such property, or producing or claiming such in- come, even though the individuals do not have a personal relationship with the taxing state such as that of na- tionality. At the other extreme, states impose taxes upon their own nationals, even though the nationals are physically located outside the state and their property is lo- cated and income produced outside the state. Will interna- tional law permit taxation measured by property located outside the state or income produced outside the state when the individual to be taxed is not its national? The United States, for example, imposes income tax upon aliens who are resident within the United States. "Resi- dent aliens are, in general, taxable the same as citizens of the United States; that is, a resident alien is taxable on in- come derived from all sources, including sources without the United States," 48 Residence is defined in the regula- tions as follows:
An alien actually present in the United States who is not a mere tran- sient or sojourner is a resident of the United States for purposes of the
47. 284 U.S. 421, 436; 52 S.Ct. 252, 254 (1932).
4s. 26 C.F.R. Part I, 5 1,871-1.
income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating inten- tion, indefmite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no defdte intention as to his stay, he is a resident. One who comes to the United States for a defmite purpose which in its nature may be promptly accomplishedis a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes hihome temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consum- mated or abandoned. An alien whose stay in the United States is limited to a defdte period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of ex- ceptional circumstances. 49
b. Consider the following more general definition of "residence": It appears that most governments consider that an alien who remains
in its territory for a certain period of time, six months or more, is resi-dent in such territory for purposes of income taxation. so
If, then, nationality is not a necessary prerequisite to tax-ability, is there some minimum personal comection that must exist before a state can lawfully prescribe a tax based on events that occur outside the state? "On the one hand it is agreed that a state cannot tax a transient on the whole of his year's income as if he were a resident, but on the other it is equally agreed that his presence may render him subject to poll tax, and sojourn tax, which, indeed, could be of an equivalent amount." 51 Thus, it can only be said that no specific international norms control taxation. The liability of individuals to taxes in both their states of na- tionality and others depends largely upon the tax laws of the countries concerned. 6-10. Compulsory Military Service. a. U.S. legislation on the draft'i of aliens. During World War I, citizens and "male persons not alien enemies who have declared their intention to become citizens" were subject to the draft. 52 The Selective Training and Service Act of 194053 con-tained simiiar provisions until amended in 1941. 54 This World War I1 amendment made liable for training and service every male citizen and every other male person "residing in the United States," with the proviso that a citizen or subject of a neutral country could apply for and be granted relief, "but any person who makes such ap- plication shall thereafter be debarred from becoming a citizen of the United States." The Selective Service Act of 1948 55 broadened the category of resident aliens able to apply for relief to include "any citizen of a foreign coun- try," retaining the provision for debarring such an appli- cant from citizenship. The dramatic change in policy in the
62 Stat. 604, chapter 625, 5 4(a). 55 Stat. 844, chapter 602, 8 2. 54 Stat. 885, chapter 720, 5 3(a). Act of May 18, 1917, chapter 15, 5 2, 40 Stat. 76. 2 D. O'ConneU, International Law 717 (2d ed 1970). 26 C.F.R. Part I, $ 1.871-2(b). 49.
50.
Letter from Assistant Secretary of State Macomber to U.S. Senator Carl Hayden, quoted in 8 M. Whiteman, Digest of International Law 536 (1967).
51.
52.
53.
54.
55.
Pam 27-161-1
1951 Universal Military Training and Service Act 56 was to apply the draft even-handedly to United States citizens and aliens admitted for permanent residence, with no pro- visions for relief. Nonresident aliens were also subject to the draft, but only if they had remained in the United States for a period exceeding one year. The provisions for application for relief (and debarring from citizenship) were retained as to those nonresident aliens. 57 Thus, nonresident aliens might remain in the United States for up to one year without being subject to the draft; while selected groups of nonresident aliens might remain for longer periods under exemptions provided by law and regulations. 58
b.
By amendments in 197 1, which changed the title of the draft statute to "Military Selective Service Act," a wider exclusion of aliens from the draft was provided. The draft now applies to every male citizen and "every other male person residing in the United States" but not to any alien lawfully admitted as a "nonimmigrant" as defined in a long list of categories in the Immigration and Nationality Act. 59 In addition, induction of an alien who is draftable is not to take place until "such alien shall have resided in the United States for one year." Thus,the statute applies to aliens admitted for permanent residence, who can be drafted only after a year's residence. There is no authorization for drafting any other class of aliens and no provision for application for relief or debarring from citizenship. 60 Notwithstanding these changes in the draft statute, the Immigration and Nationality Act continues to provide: "[Alny alien who applies or has applied for ex- emption or discharge from training or service in the Armed Forces * * * on the ground that he is an alien, and is or was relieved or discharged from such training * * * on such ground, shall be permanently ineligible to become a citizen of the United States." 61 There is some question as to whether this provision is still viable. In McGrath v. Kristensen, 62 in which the court was in- terpreting the provisions of the Selective Training and Ser- vice Act of 1940 debarring aliens from citizenship, the court stated: "As there was no 'liability' for service, his act in applying for relief from a non-existent duty could not create the bar against naturalization. By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved."
c.
International law on the draftii of aliens. "[Aln alien does not fall under the personal supremacy of the local State; therefore he cannot, unless his own state con-
340 U.S. 162, 71 S.Ct. 224 (1950). Title 18, U.S.C. 8 1426(a). 85 Stat. 348. 8 U.S.C. 8 1101(a)(15). 65 Stat. 75, chapter 144, § l(d). 56.
57.
In addition, the act provided for exemption of certain nonirn- migrant aliens holding diplomatic positions and of other nonimmigrant aliens as determined by the President.
58.
For the test of the relevant statutes referred to above, see 8 M. Whiteman, Digest of International Law 549 (1967).
59.
60.
61.
62.
sents, be made to serve in its Army or Navy, and cannot, like a citizen, be treated according to discretion." 63 Doubt exists as to whether this statement represents cur- rently existing law. However, in 1967, Rousseau, a noted French publicist, commented upon certainAustralian leg- islation which subjected immigrant aliens to compulsory military service and thus to duty in South Vietnam. In referring to Greek and Italian protests of this legislation, Rousseau states: "The most surprising aspect of the situa- tion is that only two governments seem to have protested an act which constitutes a clear violation of the traditional status of aliens." 64 Thus, as in the case of taxation, no specific international norms dictate the degree to which aliens may be required to serve in the military forces of states other than their own. The United States is a party to a Protocol Relating to Military Obligations in Certain Cases of Double Nationality which was concluded at the Hague April 12, 1930 and entered into force for the United States May 25, 1937.65 Only 25 states were par- ties to this international agreement as of January 1, 1977. Article 1 provides: "A person possessing two or more na- tionalities who habitually resides in one of the countries whose nationality he possesses, and who is in fact most closely connected with that country, shall be exempt from all military obligations in the other country or countries. This exemption may involve the loss of the nationality of the other country or countries." 66 6-11. Multilateral Agreements on Nationality. a. Status of Naturalized Citizens Who Again Take Up Their Resi- dence in the Country of Their Origin. 67 Parties to this convention are Argentina, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras, Nicaragua, Panama, and the United States. The convention provides as follows:
Art. I. If a citizen, a native of any of the countries signing the present convention, and naturalized in another, shall again take up his residence in his native country without the intention of returning to the country in which he has been naturalized he will be considered as having reassumed his original citizenship, and as having renounced the citizen- ship acquired by the said naturalization.
Art. 11.The intention not to return will be presumed to exist when the naturalized person shall have resided in his native country for more than two years. But this presumption may be destroyed by evidence to the contrary.
6. Convention on Conflict of Nationality Laws. 68 This
63. 1-~~ppenheim,
supra, note 8 at 681.
50 Stat. 1317; T.S. 913; 178 L.N.T.S. 227. 64.
Rousseau, Chronique des Faits Internationaux, 71 Revue de Droit International bblic 143, 174 (1967). ,
65.
66.
For bilateral agreements to which the United States is a party, dealing not only with the drafting of dual nationals but also with the drafting of aliens, see 8 M. Whiteman, supra, note 58 at 561-73.
67.
Convention between the United States and other powers estab- lishing status of returning naturalized citizens. Sied at Rio De Janeiro Aug. 13, 1906; ratification advised by the Senate, Jan. 13, 1908, ratified Jan. 16, 1909; ratification deposited with draft Jan. 25, 1908; proclaimed, Jan. 28, 1913. 37 Stat. 1653 (1911-1913).
68.
Sied at the Hague Conference for Codif~cation of Intema- tional Law. 5 M. Hudson, International Legislation 359 (1936).
Pam 27-161-1
convention entered into force on 1July 1937. It has been ratified or acceeded to by thirteen states: Belgium,Brazil, Great Britain, Canada, Australia, India, China, Monaco, the Netherlands, Norway, Poland, Sweden, and Pakistan. The principle articles of the convention are as follows:
Art. 1.It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generaiiy recognized with regard to nationality.
Art. 2. Any question as to whether a person possessesthe nationality of a particular State shall be determined in accordance with the law of that State.
Art. 3. Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.
Art. 4. A State may not afford diplomatic protection to one of its na- tionals against a State whose nationality such person also possesses.
Art. 5. Within a thud State, a person having more than one na- tionality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the na- tionality of the country with which in the circumstanceshe appears to be in fact most closely connected.
Art. 6. Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing two nationalities acquired without any voluntary act on his part may renounce one af them with the authorization of the State whose nationality he desires to surrender.
This authorization may not be refused in the caseof a person who has his habitual and principal residence abroad, if the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied.
c. Convention on the Nationality of Women. 69 States which are parties are Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Honduras, Mex- ico, Nicaragua, Panama, Uruguay, and the United States. The Convention provides as follows:
Art. 1. There shall be no distinction based on sex as regards na- tionality, in their legislation or in their practice.
U.S.Reservation. The agreement on the part of the United States is,
69. Signed at Montevideo, Dec. 26, 1933; ratified by U.S., June. 30, 1921; proclaimed, Oct. 11, 1934. 49 Stat. 2957 (1935-1936).
of course, and of necessity, subject to congressional action.
d. Convention on the Nationality of Married Women. 70 Among the States who have either signed, ratified, or acceded to this convention are Canada, Chile, Ceylon, China, Colombia, Cuba, Czechoslovakia, Den- mark, Dominican Republic, Ireland, Israel, Norway, Pakistan, Portugal, Sweden, U.S.S.R., and Yugoslavia. The treaty, in part, is as follows:
Art. 1. Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall au- tomatically affect the nationality of the wife.
Art. 2. Each Contracting State agrees that neither the voluntary ac- quisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its na- tionality by the wife of such national.
Article 3
1.
Each Contracting State agrees that the alien wife of one of its na- tionals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.
2.
Each Contracting State agrees that the present Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband's nationality as a matter of right.
6-12.Role of Nationality in State Responsibility. Hav- ing examined the various aspects of nationality of special relevance to the military attorney, attention must now be focused on one of the most controversial and topical areas of intemational law–state responsibility. In doing so, note should be taken of the important role the various concepts of nationality play in the determination of state respon- sibility and the espousal of claims on an international level.
70. Resolution 1040 (XI) adopted by the General Assembly of the United Nations on 29 January 1957. Twenty-five states are parties to this Convention. For the historical background and commentary on the Convention, see U.N. Department of Economic and Social Affairs publication No. E/CN. 6/389 (1962), entitled Convention on the Na- tionality of Married Women.
Pam 27-161-1
CHAPTER 7
STATE RESPONSIBILITY
Section I. GENERAL CONCEPTS OF STATE RESPONSIBILITY
7-1.Introduction. a. As emphasized throughout the pre- ceding chapters of this publication, states are considered the primary, if not exclusive, subjects of international jurisprudence. Consequently, it is the state that is ac- corded international rights and privileges, and, concomi- tantly, it is the state that must bear international respon- sibility for those violations of international law attributable to it. The purpose of this chapter is to examine the ways in which states incur such international responsibilities. No area of international law has generated greater controversy during the last few decades than the law of state respon- sibility. Even the most basic principles upon which this concept is founded have not been immune from attack.
b.
It is essential to begin any discussion of state respon- sibility with an answer to a basic question: How and in what ways may a state incur responsibiity on an interna- tional level? The answer, in which every word has irnpor- tance, is: A state may be held internationally responsible for any act or omission attributable to the state which results in a violation of substantive international law and which iMures another state. Conjunctively, if an act or omission attributable to a state violates any of the substan- tive international norms discussed throughout this and other DA publications and the consequence of such act is injury to another state, the delinquent state is responsible for making reparation or giving satisfaction to the injured state. Moreover, a delinquency may also give rise to puni- tive individual or collective sanctions being taken by the affected state or states. 1 7-2.What Constitutes a Violation. The reparation aspect of state responsibility will be dealt with in the latter portion of this chapter. Initially, however, attention must be focused on the question, "How may a state be in- jured?"
a.
Direct Iw'ury to the State. The most easily explained and understood form of injury to a state is that which is called direct injury. Since any violation of a substantive principle of international law by a state resulting in injury to another gives rise to state responsibility, the substantive bases for direct responsibility are almost infinitely varied. For example, violation of a treaty, failure to respect the immunity of another state's ambassador, assertion of en- forcement jurisdiction within the temtory of another state without its consent, and use of force in violation of the
U.N. Charter would all give rise to state responsibility. 2 One of the best known examples of responsibility for a
direct injury arisiig out of an omission, not an act, was the
Trail Smelter Case 3 decided in 1941 by a Special Arbitral tribunal. The Convention establishing this Tribunal called for the application of the ". . .law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice." 4 The arbitration grew out of air pollution from sulphur dioxide fumes emitted by a smelter plant at Trail, British Colum- bia, owned by a Canadian corporation. In a previous deci- sion, the Special Arbitral tribunal had found that the fumes caused damage in the State of Washington during the period from 1925 to 1937. In holding Canada respon- sible and directing injunctive relief and payment of an in- demnity, the Tribunal stated:
A State owes at all times a duty to protect other States against in- jurious acts by individuals from within its jurisdiction. A great number of such general pronouncements by leading authorities concerning the duty of a State to respect other States and their temtory have been pre- sented to the Tribunal. These and many others have been carefully ex- amined. International decisions, in various matters, from the Alabama case onward, and also earlier ones, are based on the same general princi- ple, and, indeed, this principle, as such, has not been questioned by Canada. 5
b. Indirect Iqjuries to the State. As noted the ways by which one state may directly injure another, through an act or a failure to act, are fairly easily defined. The great dficulty in discussing state responsibility lies in the area of determining what constitutes an indirect injury to a state. The materials which follow do not relate to responsibility flowing from a directly inflicted injury by one state on another state, but rather deal with the circumstances under which one state may be responsible to another because of an act or omission which results in injury to a private or juristic (corporate) national of the latter. Stated succinctly, because only a state may bring a claim for reparation under existing international law, the state itself must suffer an injury. Injuries to private citizens or cor- porations must be litigated by the state. Thus,the state is said to suffer indirect injury as a result of internationally il- legal actions taken against its nationals. It is only by the use of such a fiction that aptate is able to comport with the still predominant theory that only states may participate in the public international law system. Accordingly, a careful examination of state responsibility for injuries to aliens is the key to a thorough understanding of the total concept of "state responsibility."
1.
These sanctions must, of course, be canied out in accordance 3. Trail Smelter Case (United States v. Canada) 3 U.N.R.I.A.A. with the U.N. Charter and other applicable norms of international law. 1905, 1908 (1941).
2.
See generally KeIsen, General Theogv of Low and State, 328-41, 4. Id. at 1963-64. 357-58 (Wedberg transl. 1945). 5. Id.
Pam 27-161-1
Section 11. STATE RESPONSIBII JTY FOR INJURIES TO ALIENS
7-3. Injury to Aliens. What acts or omissions committed by a state or its citizens against private or corporate aliens located within its territory constitute a violation of interna- tional law resulting in an indirect injury to the aliens' state of nationality? As a result of the several different ap- proaches toward international law discussed in chapter 1, there exists a diversity of opinion regarding the proper response to this question. Before focusing on these differ- ing views, it is necessary to examine briefly the status of aliens under current international norms. 7-4. The Status of Aliens Under International Law. a.
General. Under ordinary circumstances and in the ab- sence of an international agreement to the contrary, a state is under no duty to admit nationals of another state into its territory and incurs no international responsibility if it deports them. 6 If aliens are admitted, they may be subjected to restrictions on the duration of their stay, where they may travel, and in what activities they may engage. Moreover, a national of one state who comes within the territorial jurisdiction of another, whether as a transient or as a permanent resident, becomes subject generally to the legal regime applicable to nationals of that state. For example, aliens can be excluded from engag- ing in various commercial or other gainful activity, from owning real property, from such civil and political rights as the right to vote or to hold public office, and from such duties as fulfiing military service obligation. The admis- sion of aliens into a state likewise gives rise to certain cor- relative rights and duties. The alien has a right to the pro- tection of the local law. He owes a duty to observe that law and assumes a relationship toward the state of his resi- dence sometimes referred to as "temporary allegiance." While the state has the right to expect the alien to observe its laws, it also has an obligation to give him the degree of protection for his person and property which he and his state have the right to expect under local law, under inter- national law, and under treaties and conventions between his state and the state of residence. 7
b. It is precisely the question of exactly what rights and protections are afforded aliens under international law that is the most controversial aspect of state responsibility. As noted above, conflicting views exist with regard to the legally imposed degree of responsibility which a state must bear as a member of the international community. To what extent must it guarantee the rights of aliens? To what degree must it "protect" resident aliens? 7-5. Degree of State Responsibility to Aliens: Conflict- ing Views. Inherent in the controversy surrounding the subject of state responsibility is the disparity of views regarding the rights and protections that must be accorded private and corporate aliens. These views are generally
6.
A recent example of this was the deportation of Asians from Uganda in 1972.
7.
5 G. Hackworth, Digest of International Law, 471-72 (1943) [hereinafter cited as 5 Hackworth].
discussed in terms of both an international standard of justice and the principle of equality of treatment. 7-6. The International Standard of Justice. a. The arguments set forth by those who insist upon the existence of an international standard of justice applicable to aliens are best represented in a statement by former Secretary of State, Elihu Root: . . .Each country is bound to give to the nationals of another country in
its tenitory the benefit of the same laws, the same administration, the
same protection, and the same redress for injury which it gives to its
own citizens, and neither more nor less: provided the protection which
the country gives to its own citizens conforms to the established stand-
ard of civilization.
There is a standard of justice, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall con- form to this general standard. If any country's system of law and admin- istration does not conform to that standard, although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens. .. .
. . .The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights, and may be content with lax administration which fails to secure them to him, furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him. 8
Mr. Root's statement, though issued in 1910, still reflects the U.S. and Western European view toward the interna- tionally imposed standard of treatment for aliens. These proponents of an international standard argue that some form of uniform protection must exist if private and cor+ porate citizens are to be safe in their travel and business activities.
b. The Harry Roberts Claim. One of the decisions most widely cited by advocates of the international standard of justice is The Harry Roberts Claim. 9 This particular ar- bitrational award involved a claim presented by the United States on behalf of an American citizen who was arbitrarily and illegally arrested by Mexican authorities and held prisoner for an excessively long period in viola- tion of the Mexican Constitution. The evidence showed that the jail in which Roberts was kept was a room 35 feet long and 20 feet wide with stone walls, earthen floor, straw roof, a single window, a single door, and no sanitary accommodations. Thirty to forty men were placed in this single room and were not provided with facilities to clean themselves. The prisoners were afforded no opportunity to take physical exercise and the food given them was scarce, unclean, and coarse. On behalf of Mexico it was argued that Roberts was accorded the same treatment as
8. Proceedings of the American Sociew of International Law 20-22 (1910).
9. The Hany Roberts Claim (United States v. Mexico), United States and Mexico General Claims Commission 1926, 4 U.N.R.I.A.A. 77 (1927).
Pam 27-161-1
that given to all other incarcerated individuals. 10 The Tri-
bunal, however, held that
. . .such equality is not the ultimate test of the propriety of the acts of
authorities in the light of international law. That test, is broadly speak-
ing, whether aliens are treated in accordance with ordinary standards of
civilization. We do not hesitate to say that the treatment of Roberts was
such as to warrant an indemnity on the ground of cruel and inhuman
imprisonment. 11
c. In sharp contrast to the view espoused by Western European and North American states and in keeping with their basic approach toward international jurisprudence discussed in chapter 1, the third world and lesser- developed states deny the existence of any international standard of justice. These countries submit that private and corporate aliens are entitled only to treatment equal to that afforded citizens of the state through which these aliens may be traveling or in which they may be resident. From the point of view of those states advocating equality of treatment, an "international standard of justice" is subject to five swc objections:
First, a national of one state, going out to another in search of wealth or for any other purpose entirely at his risk, may well be left to the con- sequences of his own ventures, even in countries known to be danger- ous. For international law to concern itself with his protection in a state without that state's consent amounts to an infringement of that state's sovereignty. Secondly, a standard open only to aliens but denied to a state's own citizens inevitably widens the gulf between citizens qnd aliens and thus hampers, rather than helps, free intercourse among peo- ples of different states. Thirdly, the standard is rather vague and in- definite. Fourthly, the very introduction of an external yardstick for the internal machinery ofjustice is apt to be looked upon as an affront to the national system, whether or not it is below the international standard. Fifthly, a different standard of justice for aliens results in a two-fold differentiation in a state where the internal standard is below the inter- national standard. Its citizens as aliens in other states are entitled to a higher standard than their fellow citizens at home. Again the citizens of other states as aliens in it are also entitled to a better standard than its own citizens. 12
d. Controversy continues to surround the issue of state responsibility to aliens, and the issue becomes increasingly important as third world and lesser developed countries increase in number and importance. Viewed realistically, the standard of treatment to be afforded aliens most prob- ably lies somewhere between the two positions spoken to above. This fact can best be demonstrated by an analysis of what acts have generally been viewed as violations of basic concepts constituting an international standard of justice, substantive violations enabling a state to espouse the claim of one of its private or corporate citizens. Before initiating such an analysis, however, it is essential to closely examine the manner in which a state may espouse
10. -Mexicoas a developing state advocated an "equal treatment" standard for aliens.
11.
The HarryRoberts Claim, supra, note 9 at 8 1. See also Restate-ment (Second); Foreign Relations Law of the United States § 165 (hereinafter cited as Restatemenfl.
12.
Roy, Is the Law of Responsibility of States for IMuries to Aliens a Part of Universal International Law? 55 Am. J. Int'l L. 888, 890 (1961).
a claim on the international level.
7-7. Procedural Aspects of the Assertion of a Claim Based on Injury to a National. a. Espousal of Claims by States; General Considerations. International law imposes no duty on a state to press a claim based on injury caused by a foreign state to one of the former's nationals. Under the law of the United States, as well as most other states, the injured national has no legally enforceable right to compel his government to espouse his claim. 13 Moreover, if the claim is espoused, the Government en- joys exclusive control over the handling and disposition of the claim. In Administrative Decision V (United States v. Germany), Umpire Parker stated:
In exercising such control [the nation] is governed not only by the in- terest of the particular claimant but by the larger interests of the whole people of the nation and must exercise an untrammelled discretion in determining when and how the claim will be presented and pressed, or withdrawn or compromised, and the private owner will be bound by the action taken. Even if made to the espousing nation in pursuance of an award, it has complete control over the fund so paid to and held by it and may, to prevent fraud, correct a mistake, or protect the national honor, as its election return the fund to the nation paying it or otherwise dis- pose of it. 14
Thus, it is most clear that the President may waive or set- tle a claim against a foreign state based on its responsibility for an injury to a United States citizen, despite the latter's objection. 15 Claim settlements by the United States have often involved lump sum settlements of claims based on injuries to a number of claimants. Most have been in the form of executive agreement 16 and have called for the determination of awards to claimants either by mixed claims commissions or by agencies in the executive branch. The Foreign Claims Settlement Commission has been engaged in such determination. 17
b. Exhaustion of Local Remedies. Prior to requesting his government to espouse a claim, an alien must exhaust local judicial remedies in the state where the alleged wrong occurred. The requirement to do so is mandatory, however, only if these remedies are both "available" and "effective." Although the determination as to whether local remedies are available is a fairly easy one, it is often more difficult to determine whether the available remedies are effective judicial measures. Thus, it is helpful . to examine several decisions dealing with this determina- tive issue.
(1) In Claim of Finnish Shipowners, 18 13 privately
13. Restatement, supra, note 11 at 212.
14. Administrative Decision V (United' States v. Germany), 11923-251 Administrative Decisions and Opinions 145, 190, 7
U.N.R.I.A.A. 119, 152.
15. Resutement, supra, note 11 at 213, 214.
16. See United States v. Pi, 315 U.S. 203 (1942) for a discussion of the Executive Branch's right to enter into claims settlements on behalf of the United States and its private citizens.
17. See R. Lillich, International Claims: The Aajudication by Na- tional Commissions (1 962).
18. Claim of Fish Shipowners (Finland v. Great Britain) 3 IJ.N.R.1.A.A. 1479 (1934).
Pam 27-161-1
owned Finnish ships were used by the British government in wartime service during 1916 and 1917. Following the war, the Finnish government, on behalf of its citizens, sought compensation from Great Britain for the use of these vessels. This claim was rejected by the British government, and the shipowners brought proceedings against the Crown before the Admiralty Transport Ar- bitration Board. The Board also denied compensation. Although an appeal was available to the shipowners at this point, they chose not to pursue the appellate process. In- stead, Finland again took up the claims of its citizens and brought the matter to the attention of the Council of the League of Nations. On the Council's recommendation, the two states agreed to submit to arbitration the question of whether the Finnish shipowners had exhausted "the means of recourse placed at their disposal by British law." In arguments before a sole arbitrator, Great Britain con- tended that the Finnish shipowners had not exhausted the local judicial remedies available to them and, as a result, the Finnish government had no standing to espouse the claim of its citizens at an international level. Finland asserted that further appellate action by its citizens in the British courts would be pointless. As there could be no de novo appeal, any appellate decision would be controlled by the Admiralty Board's original adverse fmding of facts. The arbitrator agreed that, due to the lack of de novo ap-peal, further appellate procedure was useless and would provide no effective remedy for relief. Accordiiy, Fin- land was justified in asserting the claim on behalf of its citizens.
(2) In the Interhandel Case, 19 Interhandel, a Swiss corporation, brought an action in the U.S. District Court to recover shares of an American corporation that the
U.S. had vested in 1942 as German assets. The District Court dismissed the complaint, and Court of Appeals affirmed. While Interhandel's petition for certiorari was pending before the Supreme Court, the Swiss govern- ment commenced proceedings against the U.S. in the In- ternational Court of Justice on behalf of Interhandel. The Supreme Court subsequently reversed the Court of Ap- peals and remanded the case to the District Court. 20 The International Court found that local remedies in the U.S. had not been exhausted.
(3) If an alien claimant loses on a point of law before a court of first instance, is he obliged to appeal even if the appellate courts regard the applicable point of law as well settled? In the Panevezys-Saldutiskis Ry. Case21 the Court stated that if it could be substantiated that the high- est Lithuanian court had already given a decision in a pre- vious case adverse to the Estonian company's claim, there would be no need to appeal in order to satisfy the local remedies rule.
19.
Interhandel Case [I9591 I.C.J.6.
20.
interhandel-1959.
21.
Panevzys-Saldutiskis Ry. Case 119391 P.C.I.J., ser. A/B, No.
76. 9
(4) With regard to yet another aspect of the exist- ence of "effective" local remedies, it is generally ac- cepted that a state may waive the requirement of exhaus- tion of local remedies, thus allowing claims against it to be brought by another state directly to an international tri- bunal. 22 Moreover, an additional exception to the local remedies rule may be applicable if ". .. the state of the alien's nationality, which has espoused his claim, is assert- ing on its own behalf a separate and preponderant claim for direct injury to it arising o~t
of the same wrongful con-
duct." 23
7-8. Nationality of the Individual Claimant. a. General. As previously noted, a state is imbued with the authority to espouse the claim of a private or corporate claimant on an international level on the basis that the state itself has suffered an "indirect injury." That is, because its citizen has been the victim of a substantive breach of internation law, the state itself has suffered injury. Accordingly, it is essential to the validity of the legal fiction upon which state representation is based that the nationality of the pri- vate claimant be clearly established.
b. Individuals. The nationality of private individuals has been dealt with in chapter 6 of this publication. Thus, the factors bearing on the determination of the nationality of these individuals will not be discussed. Several related issues do, however, merit brief analysis. Restatement, Second, 5 17 1, defines an alien as follows:
A person is an alien for purposes of the responsibility of a state for in- jury to an alien, if (a) he is not a national of the respondent state, (b) he is a national of the respondent state and of another state, and the re- spondent state, for purposes of the conduct causing injury, treats him as a national of the other state, or (c) he is a national of the respondent state and of another state, provided (i) his dominant nationality, by reason of residence or other association subject to his control (or the control of a member of his family whose nationality determines his na- tionality) is that of the other state and (i) he (or such member of his family) has manifested an intention to be a national of the other state and has taken all reasonably practicable steps to avoid or terminate his status as a national of the respondent state. 24
In those cases where a claimant changes his nationality after the injury on which his claim is based has occurred, or assigns his claim to a person of another nationality, or dies and leaves heirs of a different nationality, the in- dividual's claim may or may not be espoused by the state of which he is a citizen. The position of the U.S. Depart- ment of State on this matter was formulated as follows by an Assistant Legal Adviser in 1960:
Under generally accepted principles of international law and practice, a claim may properly be espoused by one government against another government only on behalf of a national of the government espousing the claim, who had that status at the time the claim arose and con- tinuously thereafter to the date of presentation of the claim. It has been the long-standing practice of the Department to decline to espouse claims which have not been continuously owned by United States na-
22.
H. Freeman, The International Responsibili& of Srates for Denial of Justice 435-36 (1938) [hereinafter cited as H. FreemanC
23.
Resratement, supra, note 11 at 5 208(c).
24. Id. at 8 171.
Pam 27-161-1
tionals. 25
A position similar to this has been taken by the U.S.
Foreign Claims Settlement Commission. 26 This rule
may, of course, be by agreement between the governments of the claimant and the respondent states. The British position on this issue is generally similar, sub- ject to a significant qualification:
[Modem] British practice still insists that the claimant should be a British national both at the time when the injury was sdered and at the time when the claim is presented. In practice, the adoption of the rule that claims may be taken up in concert with the state whose nationality the claimant has acquired subsequent to the date of injury mitigates the hardship of the general rule. . . .27
c. Juristic Persons (Corporation).The increase in inter- national trade and investment during the past several decades has seen an increase in the importance of deter- mining the nationality of various corporate enterprises. The law regarding this subject, after a period of some un- certainty, is now fairly clearly defined. It has long been es- tablished that a state might espouse the claim of a corpora- tion incorporated within the state, even though its stock is, in fact, totally owned by foreign nationals. 28 Moreover, until 1970 it was generally accepted that a state might espouse an international claim of its citizen stockholders in a foreign corporation if their stock in- terests amounted to a substantial portion of the total shareholdii. In 1970, the International Court of Justice spoke to this issue and, in so doing, clarif~ed a question of corporate representation on an international level that had long been a subject of uncertainty.
BARCELONA TRACTION, LIGHT AND POWER CO., LTD. (BELGIUM V. SPAIN)
International Court of Justice, 1970
I19701 1.C.J.Rep. 3.
[In this case,the parent company in the corporate complex involved was incorporated in 1911 in Canada; but after the First World War ap proximately 85% of its shares came to be held by Belgian nationals, largely through complicated arrangements involving some very large Belgian holding companies. Belgium wished to be allowed to show that its nationals as shareholders had been seriously hmed by actions of the Spanish state after the Spanish Civil War. These included, according to the Belgian memorials in an earlier ICI case dropped in 1961 in expecta-tion of a diplomatic settlement: denial from 1940 on of foreign exchange licenses to the Traction Company and some of its Spanish subsidiaries to permit service on bonds payable in pounds sterling; a 1948 bankruptcy proceeding in Spain brought by Spanish purchmrs of "defaulted" ster- ling bonds of which the Traction Company itself had not received fair notice; an unfair time limit on appeal in the bankruptcy case; and the eventual passage of very substantial influence over the corporate struc- ture in Spain to one Juan March.
Although the memorials do not mention the matter in just this way, March, known widely as the "Match King" of Spain, was often reported to have been a significant fmancial supporter of Franco's insurgency against the Spanish Republic and known as a highly skilled and secretive
Agency of Canadian Car and Foundry Co. Case (United States Id. at 1245-47. 8 M. Whiteman, Digest of International Law, 1243 (1967). 25.
26.
27.
Sinclair, Nationali@ of Chim: Britirh Practice [1950] Brit. Y.B. Int'l L. 125, 144.
28.
v. Germany) 5 G. Hackworth, supra, note 7 at 833-37.
fmancial operator. The essence of the Belgian claim on the merits in the casethat follows would have been that Belgians had been the victims of foreign exchange, bankruptcy, and related official actions that squeezed out the Belgian equity investment in the Barcelona Traction corporate complex. In the jargon of international claims practice the case as seen by Belgium involved "creeping expropriation" and "denial of justice."
A portion of the opimion of the court appears below.]
For the sake of clarity, the Court willbriefly recapitulate the claim and identify the entities concerned in it. The claim is presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in the Barcelona Traction, Light and Power Company, Limited. The submissions of the Belgian Government make it clear that the object of its Application is reparation for damage allegedly caused to these persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company and various other companies in the same group. 28.
29.
In the fmt of its submissions, more specikally in the Counter- Memorial, the Spanish Government contends that the Belgian Applica- tion of 1962 seeks, though disguisedly, the same object as the Applica- tion of 1958, i.e., the protection of the Barcelona Traction company as such, as a separate corporate entity, and that the claim should in conse- quence be dismissed. However, in making its new Application, as it was chosen to frame it, the Belgian Government was only exercising the freedom of action of any State to formulate its claims in its own way. The Court is therefore bound to examine the claim in accordance with the explicit content imparted to it by the Belgian Government.
30.
The States which the present case principally concerns are Belgium, the national State of the alleged shareholders, Spain, the State whose organs are alleged to have committed the unlawful acts corn- plained of, and Canada, the State under whose laws Barcelona Traction was incorporated and in whose temtory it has its registered office ("head office" in the terms of the by-laws of Barcelona Traction).
31.
Thus. the Court has to deal with a series of problems arising out of a triangJlar relationship. involving the State whose nationals are shareholders in a company incorporated under the laws of another State, in whose tenitory it has its registered office; the State whose organs are alleged to have committed against the company unlawful acts prejudicial to both it and its shareholders; and the State under whose laws the corn- pany is incorporated, and in whose temtory it has its registered ofice.
32.
In these circumstances it is logical that the Court should fust ad- dress itself to what was originally presented as the subject matter of the third preliminary objection: namely the question of the right of Belgium to exercise diplomatic protection of Belgian shareholders in a company which is a juristic entity incorporated in Canada, the measures corn- plained of having been taken in relation not to any Belgian national but to the company itself.
***
35. * In order to bring a claim in respect of the breach of such an obligation, a State must fmt establish its right to do so, for the rules on the subject rest on two suppositions:
The fmt is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Re-ports 1949, pp. 181-182.)
In the present case it is therefore essential to establish whether the losses allegedly suffered by Belgian shareholders in Barcelona Traction were the consequence of the violation of obligations of which they were the beneficiaries. In other words: has a right of Belgium been violated on account of its nationals' having suffered infringement of their rights as shareholders in a company not of Belgian nationality?
36. Thus it is the existence of absence of a right, belonging to Belgium and recognized as such as international law, which is decisive for the problem of Belgium's capacity.
This right is necessarily limited to intervention [by a State] on behalf of its own nationals because, in the absence of a special agree-
Pam 27-161-1
ment, it is the bond of nationality between the State and the in- dividual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. (Paneyezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16.)
It follows that the same question is determinant in respect of Spain's responsibility towards Belgium. Responsibility is the necessary corollary of a right. In the absence of any treaty on the subject between the Par- ties, this essential issue has to be decided in the light of the general rules of diplomatic protection.
* * *
39. Seen in historical perspective, the corporate personality repre- sents a development brought about by new and expanding requirements in the economic field, an entity which in particular allows of operation in circumstances which exceed the normal capacity of individuals. As such it has become a powerful factor in the economic life of nations. Of this, municipal law has had to take due account, whence the increasing volume of mles governing the creation and operation of corporate en- tities, endowed with a specific status. These entities have rights and obligations peculiar to themselves.
**
46. It has also been contended that the measures complained of, although taken with respect to Barcelona Traction and causing it direct damage, constituted an unlawful act vis-a-vis Belgium, because they also, though indirectly, caused damage to the Belgian shareholders in Barcelona Traction. This again is merely a different way of presenting the distinction between injury in respect of a right and injury to a simple interest. But, as the Court has indicated, evidence that damage was suffered does not ispo facto justify a diplomatic claim. Persons sufFer damage or harm in most varied circumstances. This in itself does not in- volve the obligation to make reparation. Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the company's rights does not involve responsibility towards the shareholders, even if their interests are affected.
*
50.
In turning now to the international legal aspects of the case, the Court must. as already indicated. start from the fact that the vresent case essentially involves factors derived from municipal law–the distinction and the community between the company and the shareholder-which the Parties, however widely their interpretations may differ, each take as the point of departure of their reasoning. If the Court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there are no corresponding institutions of international law to which the Court could resort. Thus the Court has, as indicated, not only to take cognizance of municipal law but also to refer to it. It is to rules generally accepted by municipal legal systems which recognize the limited company whose capital is represented by share, and not to the municipal law of a particular State, that international law refers. In refer- ring to such mles, the Court cannot modify, still less deform them.
51.
On the international plane, the Belgian Government has ad- vanced the proposition that it is inadmissible to deny the shareholders' national State a right of diplomatic protection merely on the ground that another State possesses a corresponding right in respect of the company itself. In strict logic and law this formulation of the Belgian claim to jus standi assumes the existence of the very right that requires demon- stration. In fact the Belgian Government has repeatedly stressed that there exists no rule of international law which would deny the national State of the shareholders the right of diplomatic protection for the pur- pose of seeking redress pursuant to unlawful acts committed by another State against the company in which they hold shares. Thi, by emphasiz- ing the absence of any express denial of the right, conversely implies the admission that there is no rule of international law which expressly con- fers such a right on the shareholders' national State.
* * ** mhe process of lifting the veil, being an exceptional one admit-
ted by municipal law in respect of an institution of its own making, is equally admissible to play a similar role in international law. It follows that on the international plane also there may in principle be special cir- cumstances which justify the lifting of the veil in the interest of shareholders.
85. The Court will now examine the Belgian claim from a different point of view, disregarding municipal law and relying on the rule that in inter-State relations, whether claims are made on behalf of a State's na- tional or on behalf of the State itself, they are always the claims of the State. As the Permanent Court said,
"The question, therefore, whether the …dispute originates in an in- jury to a private interest, which in point of fact is the case in many in- ternational disputes, is irrelevant from this standpoint." (Mawommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12. See also Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 24.)
86. Hence the Belgian Government would be entitled to bring a claim if it could show that one of its rights had been infringed and that the acts complained of involved the breach of an international obligation arising out of a treaty or a general rule of law. The opinion has been ex- pressed that a claim can accordingly be made when investments by a State's nationals abroad are thus prejudicially affected, and that since such investments are part of a State's national economic resources, any prejudice to them directly involves the economic interest of the State.
***
89.
Considering the important developments of the last halfcentury, the growth of foreign investments and the expansion of the intema- tional activities of corporations, in particular of holding companies, which are often multinational, and considering the way in which the economic interests of States have proliferated, it may at fit sight appear surprising that the evolution of law has not gone further and that no generally accepted rules in the matter have crystallized on the intema- tional plane. Nevertheless, a more thorough examination of the facts shows that the law on the subject has been formed in a period charac- terized by an intense conflict of systems and interests. It is essentially bilateral relations which have been concerned, relations in which the rights of both the State exercising diplomatic protection and the State in respect of which protection is sought have had to be safeguarded. Here as elsewhere, a body of rules could only have developed with the con- sent of those concerned. The diff~culties encountered have been reflected in the evolution of the law on the subject.
90.
Thus, in the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or spe- cial agreements directly concluded between the private investor and the State in which the investment is placed. States ever more frequently pro- vide for such protection, in both bilateral and multilateral relations, either by means of special instruments or within the framework of wider economic arrangements. Indeed, whether in the form of multilateral or biateral treaties between States, or in that of agreements between States and companies, there has since the Second World War been wnsidera- ble development in the protection of foreign investments. The instru- ments in question contain provisions as to jurisdiction and procedure in case of disputes concerning the treatment of investing companies by the States in which they invest capital. Sometimes companies are them- selves vested with a direct right to defend their interests against States through prescribed procedures. No such instrument is in force between the Parties to the present case.
***
92. Since the general rule on the subject does not entitle the Belgian Government to put forward a claim in this case,the question remains to be considered whether nonetheless, as the Belgian Government has contended during the proceedings, considerations of equity do not re- quire that it be held to possess a right of protection. It is quite true that it has been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which has been the victim of a violation of international law. Thus a theory has been developed to the effect that the State of the shareholders has a right of diplomatic protection when the State whose
Pam 27-161-1
responsibility is invoked is the national State of the company. Whatever the validity of this theory may be, it is certainly not applicable to the pres-ent case, since Spain is not the national State of Barcelona Traction.
On the other hand, the Court considers that, in the field of diplo- matic protection as in all other fields of international law, it is necewuy that the law be applied reasonably. It has been suggested that if in a given case it is not possible to apply the general rule that the right of dip- lomatic protection of a company belongs to its national State, considera- tions of equity might call for the possibility of protection of the shareholders in question by their own national State. This hypothesis does not correspond to the circumstances of the present case. 93.
94.
In view, however, of the discretionary nature of diplomatic pro- tection, considerations of equity cannot require more than the possibility for some protector State to intervene, whether it be the national State of the company, by virtue of the general rule mentioned above, or, in a secondary capacity, the national State of the shareholders who claim pro- tection. In this connection, account should also be taken of the practical effects of deducing from considerations of equity any broader right of protection for the national State of the shareholders. It must fmt of all be observed that it would be difficult on an equitable basis to make dis-tinctions according to any quantitative test: it would seem that the owner of 1 per cent, and the owner of 90 per cent. of the share-capital should have the same possibility of enjoying the benefit of diplomatic protec- tion. The protector State may, of course, be disinclined to take up the case of the single small shareholder, but it could scarcely be denied the right to do so in the name of equitable considerations. In that field, pro- tection by the national State of the shareholders canhardly be graduated according to the absolute or relative size of the shareholding involved.
95.
The Belgian Government, it is true, has also contended that as high a proportion as 88 per cent. of the shares in Barcelona Traction belonged to natural or juristic persons of Belgian nationality, and it has used this as an argument for the purpose not only of determining the amount of the damages which it claims, but also of establishing its right of action on behalf of the Belgian shareholders. Nevertheless, this does not alter the Belgian Government's position, as expounded in the course of the proceedings, which implies, in the last analysis, that it might be sufficient for one single share to belong to a national of a given State for the latter to be entitled to exercise its diplomatic protection.
96.
The Court considers that the adoption of the theory of diplomatic protection of shareholders as such, by opening the door to competing diplomatic claims, could create an atmosphere of confusion and in- security in international economic relations. The danger would be all the greater inasmuch as the shares of companies whose activity is interna- tional are widely scattered and frequently change hands. It might perhaps be claimed that, if the right of protection belonging to the na- tional States of the shareholders were considered as only secondary to that of the national State of the company, there would be less danger of difficulties of the kind contemplated. However, the Court must state that the essence-oh secondary right is that it only comes into existence at the time when the original right ceases to exist. As the right of protec- tion vested in the national State of the company cannot be regarded as extinguished because it is not exercised, it is not possible to accept the proposition that in case of its non-exercise the national States of the shareholders have a right of protection secondary to that of the national State of the company. Furthermore, study of factual situations in which this theory might possibly be applied gives rise to the following 0bSe~a- tions.
100. In the present case,it is clear from what has been said above that Barceiona Traction was never reduced to a position of impotence such that it could not have approached its national State, Canada, to ask for its diplomatic protection, and that, as far as appeared to the Court, there was nothing to prevent Canada from continuing to grant its diplo- matic protection to Barcelona Traction if it had considered that it should do so.
1'01. For the above reasons, the Court is not of the opinion that, in the particular circumstances of the present case, jus standi is conferred on the Belgian Government by considerations of equity.
103. Accordingly, THE COURT rejects the Belgian Government's claim by ffiteen votes to one, twelve votes of the majority being based on the reasons set out in the present Judgment.
8
[Declarations, separate opinions and dissenting opinion omitted.]
On the basis of this opinion, it now appears certain that
only the state of incorporation may represent a corporate
entity on the international level.
7-9.Substantive Bases for International Claims. a. At-
tribution of Conduct to the State. Having examined the
manner in which a state may espouse a claim of one of its
citizens, attention must now be focused on those acts
which have generally been viewed as substantive bases for
international claims. Stated concisely, what acts attributa-
ble to a state are wrongful under international law when
they result in injuries to aliens?
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 8 165. When Conduct Causing Injury to Men is Wrongful under In- ternational Law
(1)
Conduct attributable to a state and causing iqjury to an alien is wrongful under intemational law if it
(a)
departs from the international standard of justice, or
(b)
constitutes a violation of an international agreement.
(2)
The international standard ofjustice spedled in Subsection (1) is the standard required for the treatment of aliens by
(a)
the applicable principles of international law as established by international custom, judicial and arbitral decisions, and other recog- nized sources or, in the absence of such applicable principles,
(b)
analagous principles of justice generally recognized by states that have reasonably developed legal systems. …
In order to identify the substantive bases for international claims, it is necessary to analyze-c violations of the international standard of justice. 29
b. Wrongful Conduct by State Agents Attributed to the State. In the William T. Way Claim (United States v. Mexico), 30 a U.S.citizen, while beii arrested, was shot and killed by Mexican arresting officers. The warrant for Way's arrest, void on its face under Mexican law for failure to state a charge, had been issued by a local Alcalde who had been motivated by personal grievances. Moreover, the arresting officers had been supplied with arms, and the warrant had directed them "to use such means as may be suitable" to seize the accused. In ren-dering its decision on behalf of the claim for monetary damages brought by the U.S. on behalf of relatives of Way, the Claims Commission stated:
29.
Treaties often refer to the obligation of either party to accord such treatment to the other's nationals as is required by international law. See, e.g., Treaty of Friendship, Commerce and Navigation between the United States and Italy, Feb. 2, 1948, Art.V. 63 Stat. 2225; Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, Oct. 29, 1954, Art. 111, T.I.A.S. No. 3593, 273 U.N.T.S.; Treaty of Friendship, Commerce and Navigation with Pakistan, Nov. 12,1959, ~rt.rn, 12 U.S.T. 110,404 U.N.T.S. 259.
30.
Wiam T. Way Claim (United States v. Mexico), United States and Mexico General Claims Commission, [1928-291 Opinion of Com- missioners 94,4 U.N.R.I.A.A. 391 [hereinafter cited as William T. Way Claim].
It is believed to be a sound principle that, when misconduct on the
part of persons concerned with the discharge of government functions,
whatever their precise status may be under domestic law, results in a
failure of a nation to live up to its obligations under intemational law,
the delinquency on the part of such persons is a misfortune for which
the nation must bear the responsibility.
. . .Under intemational law a nation has responsibility for the conduct of judicial oficers. However, there are certain other broad principles with respect to personal rights which appear applicable to the instant case. These principles a? recognized by the laws of Mexico, the laws of the United States and under the laws of civilized countries generally, and also under international law. . . . Gross mistreatment in connection with arrest and imprisonment is not tolerated, and it has been con- demned by international tribunals. . . . For this tragic violation of per- sonal rights secured by Mexican law and by international law, it is proper to award an indemnity in favor of the claimants. 31
The Way claim clearly demonstrates wrongful conduct by states agents. Just as importantly, however, this decision also reflects conduct that was attributable to the state it- self, a factor imperative to the espousal of a claim by a state on behalf of one of its citizens. Attention is called to this fact as a preface to the consideration of the various ac- tions that may be attributed to a state under international law.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 5 169. General Rule as to Attribution
Conduct of any organ or other agency of a state, or of any official,
employee, or other individual agent of the state or of such agency,
that causes injury to an alien, is attributable to the state . . . if it is
within the actual or apparent authority, or within the scope of the
function, of such agency or individual agent.
Comment:
a.
Staleagency, in general. The term "agency" as used in this Section includes the head of a state and any legislative, executive, administra- tive or judicial organ, or other authority of the state.
b.
Commercial enterprise. The term "agency" as used in this Section includes any commercial enterprise owned by a state unless, under the law of the state, such enterprise is a scparate legal entity to which the state does not accord sovereign immunity in its own courts and for which it does not claim the immunity of a foreign state in the courts of other states. . . .
c.
Individual agent. The term "individual agent" as used in this Sec-tion includes any official, employee, member of the armed forces, or other individual employed by or authorized to act on behalf of the state or any agency of the state. . . .
8 170. Conduct of LoePl Authorities If conduct of an agency or agent of a political unit that is included in a state causes injury to an alien, such conduct is attributable to the state to the same extent as conduct of an agency or agent of the state. . . .
Comment:
a. Federal State. Conduct of local authorities is attributable to the central govenunent of a state without regard to the nature of the state's constitution. Although component units of a federal state have certain attributes of sovereignty for domestic purposes, and may, as in the case of the United States, be known as "states," they are not treated assepa-rate states under international law. . . .
7-10. Responsibility of a State for Acts of Its Military Forces. a. General. Military operations offer the largest single factual phenomenon productive of injury to persons or property. Yet, customary international law and the
31. Id. at 97.
fund of general principles relied on by states in pressing in- ternational claims arising from such operations are of little value where posthostilities agreements form the basis of decisions or where the question of liability is likely to be avoided by reciprocal waivers of claims by the states con- cerned. 32 A line does appear to be drawn between claims arising from military operations incident to combat and those not involving contact with an opposing militae force. In the former category are included what may be described as war losses.
6. War Losses. A nation is responsible for the acts of the oflicers and men of its armed forces. Liability exten& to personal injuries, deaths, thefts, wanton destruction of property, and requisitions. There is no liability for losses that, within the meaning of intemational law, are wai losses, in the sense that they are incident to the proper conduct of military operations. I
(1) Hague Convention No. IV Resmting the Laws and Customs of Land 33 provides in Articl~(3 as follows: A belligerent party which violates the provisions o'F'[he said Regula- tions shall, if the case demands, be liable to pay comfknsation. It shall
be responsible for all acts committed by persons forming part of its armed forces.
(2) Max Huber, appointed pursuant to an agree? ment of May 29, 1923, between Great Britain and Spain to examine and report on certain claims out of disturb- ances in the Spanish Zone of Morocco, said in his report (Oct. 23, 1924) :34
It seems that a rule generally well recognized exists: the state is not responsible for damages caused by the military operations of its own troops. However, it is not possible to include in this rule every measure having a certain connection with military operations; neither is it possi- ble to include every act committed by soldiers. According to the thesis of the representative of His Catholic Mr\jesty, the evaluation of every act not justified by military necessity would always and exclusively rest with military chiefs, and in every case, national authorities.
The Reporter cannot agree that the acts committed by troops or by isolated soldiers could in no case involve the international responsibility of the state. Article 3of the Convention of October 18,1907,relating to the laws of war on land established the principle of such responsibility precisely in the most important contingency. Doubtless this Convention is not directly applicable to any of the facts with which this report must be concerned, but the principle which it establishes merits beiig re- tained equally in the event of military action outside of war, properly speaking. This beiig admitted, it must be remembered, on the other hand, that the rule to which the above-mentioned clause relates gives a large place to military necessity. The determination of this necessity must be left in large measure to the persons themselves who are called upon to act in mcult situations, as well as to their military chief. A nonmilitary jurisdiction, and above all, an intemational jurisdiction could only intervene in this field in case of manifest abuse of this freedom of judgment. This having been said, it must equally be recog- nized that the state must be considered as obliged to exercise vigilance of a superior order in order to prevent crimes committed in violation of military discipline and law by persons belonging to the army. The de-
32.
W.Bishop, International Law: Cases and Materials 696 (1962 4.). On the general subject of state responsibility for the acts of their forces see Freeman, Responsibili@ of States for Unlawful Acts of Their Armed Forces, [I9551Receuil Des Cours 267-401.
33.
36 Stat. 2277,T.S. No. 539.
34.
5 G.Hackworth, supra, note 7at 699.
Pam 27-161-1
mand for this qualified vigilance is the only complement of the powers of the commander and of the discipline of the military hierarchy. 35
(3) The British Government presented a claim to the Anglo-American Tribunal established under the agreement of 1 9 10 for reimbursement for losses of per- sonal property by a British subject in Cuba when Ameri- can Forces, during the Spanish American War, burned certain houses as a health measure. The British Govern- ment admitted that losses resulting from necessary war measures do not give rise to a legal right to compensation. However, they contended that this was not a war loss, as it was not a necessity of war but was rather a measure for better securing the health and comfort of troops. The tri- bunal dismissed the claim, stating:
In law, an act of war is an act of defense or attack against the enemy,
and a necessity of war is an act which is made necessary by the defense
or attack and assumes the character of vis mqior.
In the present case, the necessity of war was the occupation of Siboney, and th&kaupation, which is not criticized in any way by the British Gove-snt, involved the necessity, according to the medical authorities above referred to, of taking the said sanitary measures. i.e., the destruction of the houses and their contents.
In the opinion of this Tribunal, therefore, the destruction of Hard- man's personal property was a necessity of war, and according to the ptinciple accepted by the two Governments, it does not give rise to a legal right of compensation. 36
(4)
Before the Hague Convention of 1907 concern-ing the laws and customs of war on land, the great ma- jority of cases held that the state was not responsible for the wrongful acts of unofficered soldiers, whether incident to a belligerent operation or merely wanton and unauthorized acts of robbery and pillage. Proof generally has been required that the soldiers had acted under the command of officers. 37
(5)
By Article 3 of the Hague Convention of 1907, the state is made liable "for all acts committed by persons forming part of its armed forces." This abolished the restriction of the former rule requiring that officers shall be in command of such wrong doing soldiers. 38
(6)
Article 29 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) 39 provides:
The Party of the conflict in whose lands protected persons may be is responsible for the treatment accorded to them by its agents, irrespec- tive of any individual responsibility which may be incurred.
(7) The International Committee of the Red Cross,
3s; The reader's attention is directed toward the interrelationship of state responsibility and the Law of War aspects of "military necessity and command responsibility" discussed in FM 27-10,The Law of Land Warfare,chap. 1 5 I (1956).
36. Wiiam Hardman Claim (Great Britain v. United States) re- ported in 5 G. Hackworth, supra, note 7 at 700.See also Juragua Iron Company, Ltd. v. United States, 212 U.S. 297 (1909).
5 Hackworth, supra, note 7 at 709. 37.
38.
Harvard Research, The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, 23 Am. J. Int'l L. Spec. Supp. 167 (1929).
39.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War [I9551 6 U.S.T. 3516,T.I.A.S. No. 3365.
in their Commentary to the Geneva Civilian Convention made the following observation: The principle of the responsibility of States implies an obligation on the Parties to the conflict to instruct their agents in their duties and their rights. They must take the greatest pains to ensure that the State ser- vices in contact with the protected persons are in actual fact capable of applying the provisions of the Convention. In that respect, Article 29 is similar to Article 1, which, as has been seen, bids the Contracting Par- ties to respect and "ensure respect for" the Convention in all circum- stances, and to Article 144,which stipulates that the text of the Con- vention is to be disseminated as widely as possible both in time of peace and in time of war. The principle of State responsibility further demands that a State whose agent has been guilty of an act in violation of the Convention should be required to make reparation. This already followed from Arti- cle 3 of the Fourth Hague Convention of 1907respecting the Laws and Customs of War on Land, which states that "a belligerent Party which violates the provisions of the said Regulations (The Hague Regulations) shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."
….
The term "agent" must be understood as embracing everyone who is in the service of a Contracting Party, no matter in what way or in what capacity. It includes civil servants, judges, members of the armed forces, members of para-military police organizations, etc., and so covers a wider circle than the defdtion in the Fourth Hague Convention, ac- cording to which the responsibility of the State could only be involved by "persons forming part of its armed forces."
. . ..
The nationality dthe agents does not affect the issue. This is of par- ticular importance in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally recruited agents of the nationality of the occupied country. The position is the same, regardless of whether an agent has disregarded the Convention's provisions on the orders or with the approval of his superiors, or has, on the contrary, exceeded his powers and made use of his official standing in order to carry out an unlawful act. In both instances, the State bears responsibility internationally in accordance with the general principles of law. 40
c. United States practice.
(1) General. The United States has long followed the policy of making prompt settlement of meritorious claims for damages caused by United States military per- sonnel. Three statutes implement this policy: the Federal Tort Claims Act, 41 The Military Claims Act, 42 and the Foreign Claims Act. 43 Of these, the Foreign Claims Act is of primary relevancy to this problem. Claimants under this statute must be inhabitants of a foreign country 44 who are friendly to the United States. 45 The claim must be in tort rather than in contract, 46 but the act complained
40. Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 210 (Pictet ed. 1958). Reproduced with the permission of the International Committee of the Red Cross.
41.
28 U.S.C. 1346(b).
42.
10 U.S.C. 2733.
43.
10 U.S.C. 2734.
44.
A foreign state or its political subdivision may be a claimant. See 10 U.S.C. 2734(a).
45.
An enemy alien, if found to be "friendly to the United States," can be a claimant. 10 U.S.C. 2734(b). DA Pam 27-162,Claims, 282 (1961).
46. Id. at 284.
Pam 27-161-1
of need not be within the scope of employment of the in- dividual soldier or civilian employee. 47 Claims for damages caused by employees of the United States who are not citizens thereof must be within the scope of their employment. Finally, claims incident to combat opera- tions are not payable under the Foreign Claims Act. 48
(2)
It should be noted that these statutory provisions are quite independent of any diplomatic overtures that may be made by a foreign government as a result of viola- tions of international law by the United States. The United States is willing to accept responsibility for the conduct of members of its military services and United States citizens employed by the military departments while they are in foreign countries. 49
(3)
The Foreign Claims Act does not apply where there is an agreement establishing a specific procedure for claims adjudication and settlement. However, such agree- ments may contemplate recourse to this statute in certain classes of claims, such as claims for injuries caused by acts not done within the scope of employment of the in- dividual wrongdoer. 50
(4)
Applicable treaties and agreements may include those with the country where the incident occurred or with the country of which the claimant is an inhabitant or national. If a claim against the United States is waived or assumed by a foreign government or if the foreign government has agreed to hold the UrLA 2:zs harm-less from such a claim, the foreign claims commission should not consider and settle the claim but should refer the claimant to the foreign government.
(5)
During and after World War II, the United States entered into treaties and agreement with the governments of some foreign nations providing for the mutual waiver of certain classes of claims arising out of ac- tivities of the forces of the two countries.
(6)
In return for a lump sumpayment by the United States, the government of Korea discharged and agreed to hold harmless the United States, its officials, employees, agencies or instrumentalities, nationals, and organizations from claims arising as a result of occupation of Korea by the unit& States Army during the period prior to 1 July 1948. 51 In return for economic and military assistance provided by the United States during and after World War II, France agreed to process and pay unpaid claims of French residents arising out of acts or omissions in France and French overseas territories prior to 1 July 1946 of members of United States' armed forces and civilian
Id. at 286. Id. at 289. Id. at 287. 47.
48.
49.
50.
Id. at 289. For a complete discussion of claims of this nature, see DA Pam 27-162, Claims (1974).
51.
62 Stat. 3242 (1948), T.I.A.S. No. 1851. The release here ex- tended beyond claims of a tort nature.
employees attached to such forces. 52 Many of the peace treaties concluded after World War I1 contained provi- sions for the release of the United States and other allied nations from responsibility for settlement of spedied classes of claims. 53
(7)
Some treaties and agreements provide that the United States willpay just and reasonable compensation in settlement of civil claims arising out of acts or omissions of members of the United States forces, with claims to be processed and settled in accordance with applicable provi- sions of United States law. 54 Under such agreements, claims would be settled under the "Foreign Claims Act" or, if the claimant was not an inhabitant of a foreign coun- try, the "Military Claims Act."
d.
Claims Under NATO SOFA. 55 Article Vm of the Status of Forces Agreement of the North Atlantic Treaty Organization covers the claims formula. The formula es- tablished may be divided into three parts: :
(1)
Damages to foreign government;pkoperty in the performance of official duty. Claims waived entirely in- clude damage caused to military property of one state by the armed forces of the other state in comection with the operation of the North Atlantic Treaty; injury or death suffered by any member of the armed service while engaged in the performance of official duties. Claims are waived, if under $1,400, for damage caused to government property, other than military, of one state by the armed forces of the other in comection with the operation of the North Atlantic Treaty.
(2)
Damage or idury to third parties in the perform- ance of official duties. In such cases, the "official duty" determination is usually made by the sending State and the claim forwarded to the receiving State for the ad- judication of liability. If the claim is allowed, payment is made by the receiving State, and thereafter the receiving State is reimbursed in the amount of 75 percent of its costs by the sending State.
(3)
Damages or iqjuries not caused in the perform- ance of official duties. The authorities of the receiving State assess the damages in such a case and forward their report to the sending State. The sending State then decides if it will offer an ex gratia payment to the claimant in full satisfaction of the claim. This procedure does not prevent the claimant from suing the member of the force in a civil proceeding or in a combination civil-criminal proceeding.
Agreement with Federation of the West Indies, Feb. 10, 1961, 12 U.S.T. 408 (1961), T.I.A.S. No. 4734. 61 Stat. 1245 (1947), T.I.A.S. No. 1648. See also 61 Stat. 4168 (1947), T.I.A.S. No. 1920and 61 Stat. 4171 (1947), T.I.A.S. No. 1921. 52.
61 Stat. 417 5 (1947), T.I.A.S. No. 1928. The accepting of responsibility for unpaid tort type claims was only a small consideration involved in this agreement. See JAGD/D-5419638 (Nov. 24, 1954) wherein it was held that a claim of an inhabitant of Tunisia for the death of his daughter during World War I1 may be presented by claimant to the French Government.
53.
54.
55.
For a comprehensive discussion of NATO SOFA claims, see chapter 10.
Pam 27-161-1
Such suit need only be terminated by the claimant if he ac-
cepts the ex gratia payment in full satisfaction of his claim.
Investigation of incidents and claims is conducted by
authorities of the receiving State, with the sending State
cooperating by furnishing evidence from sending State
sources.
7-11. Failure to Protect Aliens and to Apprehend and
Prosecute Those Who Wrongfully Inflict Injury on
Aliens. a. Failure to protect. In the William E. Chapman
Claim, 56 a claim was made by the United States on behalf
of William Chapman, who was shot and seriously
wounded at Puerto Mexico, Mexico. At the time of the
shooting, Chapman was serving in Puerto Mexico as Con-
sul of the United States. The Claim was predicated on
allegations that the Mexican authorities failed to provide
proper protection to the claimant, even though he had ap-
prised them of a threat made on his life, and subsequently
failed to take the proper steps to apprehend and punish the
person who did the shooting. In awarding compensation
to Mr. Chapman, the Commission issued these com-
ments:
This Commission and other international tribunals have often given application to the general principles invoked in the instant case that a government is required to take appropriate steps to prevent injuries to aliens and to employ prompt and effective measures to apprehend and punish offenders who have committed such injuries. The Commission has also considered the subject of the special protection due to a consul- ar officer. . . . Citation is made by the American Agency to statements found in numerous works on international law and in diplomatic corre- spondence to the effect that consular officials are entitled to special pro- tection. . . . Of course a request for protection k a aof threatened danger may be appropriate in any case involving the safety of an alien having no official status, and compliance with such a request will be prompted by the desire of authorities of a government to take notice with a view to avoiding any just grounds for complaint by the govern- ment to which the alien belongs. . . .
Writers on international law have repeatedly [however] stated that consular officers are entitled, to use the language of Phillimore, to a "more special protection of international law than uncommissioned in- dividuals." 57
6. Failure to apprehend and prosecute. In the Laura B. Janes Claim 58 it was alleged that claimant's husband was shot and killed in view of many witnesses. It was further alleged that the Mexican authorities did not take the proper steps to apprehend and punish the assailant. In finding that, based on all available evidence, the efforts of the Mexican authorities were inefficient and dilatory, the Commission asserted:
. . . At times intemational awards have held that, if a State shows serious lack of diligence in apprehending and punishing culprits, its liability is a derivative liability, assuming the character of some kind of complicity with the perpetrator himself and rendering the State responsi- ble for the very consequences of the individual's misdemeanor. . . . The
Id. at 127. 56.
William E. Chapman Claim (United States v. Mexico), United States and Mexico General Claims Commission, [1930-311 Opinions of Commissioners 121, 4 U.N.R.I.A.A. 632.
57.
58.
Laura B. Janes Claim (United States v. Mexico), United S@es and Mexico General Claims Commission, 1926, [I9271 Opinions of Commissioners 108, 4 U.N.R.I.A.A. 82.
reason is that the nonpunishment must be deemed to disclose some
kind of approval of what has occurred, especially so if the Government
has permitted the guilty parties to escape or has remitted the punish-
ment by granting either pardon or amnesty.
A reasoning based on presumed complicity may have some sound
foundation in cases of nonprevention where a Government knows of an
intended injurious crime, might have averted it, but for some reason
constituting its liability did not do so. The present case is different; it is
one of nomepression. Nobody contends either that the Mexican
Government might have prevented the murder of Janes, or that it acted
in any other form of connivance with the murderer. The international
delinquency in this case is one of its own specific type, separate from the
private delinquency of the culprit. The culprit is liable for having killed
or murdered an American national; the Government is liable for not
having measured up to its duty of diligently prosecuting and properly
punishing the offender.
c. An often cited example of a governmental failure to protect or apprehend and punish is an incident that oc-curred in 1918. In that year, the U.S.S. Monocacy, while lawfully navigating the Yangtze River, was fired upon. One seaman was killed, and two others were wounded. I. an instruction addressed to the Legation at Peking, the
U.S. Department of State maintained: Official reports that this deplorable incident was the result of a state of lawlessness which the Chinese Government, though well aware of its existence, took no action to abate; that these casualties were attributable to the inactivity and apparent indifference of the responsible authorities of the Chinese Government; and that no adequate or effective steps have been taken to punish the perpetrators of the outrage. In view of the obligation of the Chinese government to accord protection to American citizens engaged in lawful pursuits in China and of the failure of the Chinese authorities to adopt measures calculated to avert incidents such as the attack on the U.S.S. Monocacy and to adequately punish the guilty parties, and considering that the victims of the attack were Ameri- can citizens employed in the naval service of the United States, and that
O'Brien was the support of a dependent wife and two children, the Department deems it appropriate to ask an indemnity. . . .59
In a note of March 1 4, 1 9 1 9, the Chinese Vice Minister of Foreign Affairs accepted the proposed settlement "as just and acceptable in every particular." 60 In speaking to this specific substantive basis for an intemational claim, Restatement, Second, 4 183 provides:
A state is responsible under international law for injury to the person or property of an alien caused by conduct that is not itself attributable to the state, if
(a)
the conduct is either (i) criminal under the law of the state, (i) generally recognized as criminal under the laws of states that have resonably developed legal systems, or (i) an offense against public order, and
(b)
either (i) the injury results from the failure of the state to take reasonable measures to prevent the conduct causing the injury, or (ii) the state fails to take reasonable steps to detect, prosecute, and impose an appropriate penalty on the person or persons'responsible for the con- duct if it falls within clause (a) (i).
7-12. Denial of Procedural Justice. a. DeBnition. As in other areas of state responsibility, considerable controver- sy has been generated by the shifting meaning of the con-cept, "denial ofjustice." It is frequently said that a state is responsible under international law for a "denial of
59. 5 G. Hackworth, supra, note 7 at 655-66.
60. Id.
justice" to an alien. However, the term has been employed in a variety of meanings. These include: (1) any treatment of an alien that violates international law, (2) treatment of an alien that departs from generally accepted standards of substantive law, (3) treatment of an alien that departs from generally accepted standards for the conduct of legal proceedings, (4) failure to afford an alien an ade- quate remedy or protection in the administration of justice, (5) failure to prosecute the perpetrator of a crime causing injury to an alien, or (6) failure to provide an ade- quate domestic remedy for an injury to an alien for which the state has international responsibility. The rules in Restatement, Second, on this subject deal with these different types of injury to an alien but use the term "denial of justice" only in the modified form, "denial of procedural justice," which is confied to the third and fourth meanings indicated above. 61 The sixth meaning referred to is related to the procedural requirement that an injured alien must exhaust his domestic remedies in the foreign state before the state of which he is a national may assert a claim on the international plane. 62
6. Arrest and Detention. Restatement, Second, 8 179 deals with arrest and detention in the following manner:
(1)
The mest of an alien is a denial of procedural justice if
(a)
he is not informed of the cause of the arrest, or
(b)
the arrest is for a cause not recognized as justifying arrest under the international standard of justice.
(2)
The detention of an alien constitutes a denial of procedural- justice if he is not, without unreasonable delay,
(a)
informed of the charges against him,
(b)
afforded access to a tribunal or other authority having juris- diction to determine the lawfulness of his detention and to order his release if such detention is unlawful,
(c)
permitted during detention to communicate with a repre- sentative of his government,
(d)
afforded aaxssto counsel, or
(e)
granted a trial.
(3)
Mistreatment of an alien in the course dmest or during de- tention is a denial of procedural justice.
hest and detention are also covered in the U.N. Cove- nant of Civil and Political Rights. 63 Additionally, certain rights of an accused are specifically guaranteed in U.S. Treaties of Friendship, Commerce and Negotiation. 64
c. Denial of Trial. Denial of a trial for the determina- tion of an alien's right is an obvious form of denial of procedural justice. Indeed, this is viewed by the great ma- jority of those states which deny the existence of an inter- national standard of justice as the only possible denial of procedural justice. Accordingly, intemational agreements commonly guarantee reasonable access to a court or other
61. Resutement, supra, note 11 at 4 165, comment c.
62. Id.
63.
21 U.N. GAOR Supp. 16, at 52-58, U.N. Doc. A/6316 (1966).
64.
See, e.g., Treaty with Greece, August 3, 1951, art. IV(2). [I9521 5 U.S.T. 1829, T.I.A.S. No. 3057.
tribunal on the same basis as nationals. 65
d.
Erroneous Decisions. It appears to be well settled that mere error in a decision does not constitute a denial of procedural justice. The injustice in question must be egregious. Indeed, the decision must be "so obviously wrong that it cannot have been made in good faith and with reasonable care," or "a serious miscarriage of justice." 66 7-13. Injury to Economic Interests of Aliens. a. Scope. The subject matter of this secion deals primarily with the "nationalization problems;" that is, state action affecting aliens' property or economic interests. Prior to the First World War, expropriations involving foreign property holders were infrequent. In 1917 the Russian revolution ushered in the problem of nationalization of all private property by Communist states. The Mexican land and oil expropriations ushered in the problem of underdeveloped nations seeking to change the status quo in regard to foreign control of important segments of the economy. The patterns of diplomatic action in theevent of ex- propriation were also set during this period. Diplomatic protests and representations were fust made. If local remedies proved insufficient, claims were referred to ar- bitrators or special commissions or held for further negotiation. Since the end of the Second World War, ex- propriations have increased, with the most widespread ex- propriations occurring in countries which adopted com- munism. Agreements on lump sums to settle claims aris- ing from expropriations have been reached with Yugoslavia, Poland, Bulgaria, and Rumania. Some of the claims against Czechoslovakia and Hungary have been, paid out of funds established from assets of those coun- tries in the United States. The problem of obtaining com- pensation from Cuba and the Peoples' Republic of China is being held in abeyance.
b.
Current Practice. The existing international jurispru- dencial system is under great stress in this particular area. As can be seen, the nationalization problem is an old one. However, it has become more acute as states, particularly new and developing ones, embark upon various types of social experimentation. 7-14. Expropriation and Nationalization of Alien- Owned Property. a. General Principles. As Mr. Justice Harlan observed in Bance Nacional De Cuba v. Sab-batino:67
65.
The concept of procedural due process would seem to require the grant of a trial to determine what rights an alien has. Aliens are usually guaranteed access to a court or other tribunal on the same basis as nationals by international agreements. See, e.g., Friendship, Com- merce and Navigation Treaty with the Netherlands, March 27, 1956, Art. V(1), 8 U.S.T. 2043, T.I.A.S. No. 3942; American Declaration of the Rights and Duties of Man; Art. XVIII (1948), 43 Am. J. Int'l L. Supp. 133, 136 (1949).
66.
Resutemenr, supra, note 11 at 4 182, comment a. See also Her-rera v. Canevaro and Co. [1927-281 Ann.Dig. 219 (Sup. Ct. Peru).
67.
Banco Nacional de Cuba v. Sabbantino, 376 U.S 398, 428-29 (1 964).
Pam 27-161-1
There are few if any issues in international law today on which opin-
ion seems to be so divided as the limitations on a State's power to ex-
propriate the property of aliens. There is, of course, authority, in inter-
national judicial and arbitral decisions, in the expressions of national
governments, and among commentators for the view that a taking is im-
proper under international law if it is not for a public purpose, is dis-
criminatory, or is without provision for prompt, adequate, and effective
compensation. However, Communist countries, although they have in
fact provided a degree of compensation after diplomatic efforts, com-
monly recognize no obligation on the part of the taking country. Certain
representatives of the newly independent and underdeveloped countries
Have questioned whether rules of state responsibility toward aliens can
bind nations that have not consented to them, and it is argued that the
traditionally articulated standards governing expropriation of property
reflect "imperialist" interests and are inappropriate to the circum-
stances of emergent states.
?he disagreement as to relevant international law standards reflects
an even more basic divergence between the national interests of capital
importing and capital exporting nations and between the social
!deologies of those countries that favor state control of a considerable
portion of the meLans of production and those that adhere to a free en-
ierprise system. r 'P
The disparitiesof views on the basic principles of state responsibility, examined previously in this chapter, are tgflected in, and to a considerable extent are focused on, differing views of the international law principles applica- b.k,to the taking of alien-owned property. Together with many other capital exporting countries, the United States has consistently maintained that a taking of property for public purposes is contrary to international law unless it is accompanied by prompt, adequate, and effective compen- sation. In sharp contrast, the traditional Latin American view, now espoused by many developing countries in Africa and Asia as well, is that the international legal obligation of the state to pay compensation to an alien whpse property has been taken involves no more than a duty to compensate the alien to the extent that its own na-tionals are compensated. 68 Others would deny any inter- national legal responsibility on the part of a state to pay compensation to an alien whose property has been taken.
b. Limitations. At this point, it should be noted that, .under certain circumstances, the taking of property is wrongful mder international law, with the result that a duty to make reparation will arise quite independently of whether compensation has been paid. The specific case about which there appears to exist no room for dispute is when the taking is in violation of a treaty. In the Case Concerning the Factory at Chonow, 69 the Permanent Court held the taking to be in violation of the German- Polish Convention Concerning Upper Silesia and that, ac- cordingly, compensation equivalent to restitution of the property in kind was called for. It has also been urged that a,taking not for a public purpose would violate interna- tional law. 70 Finally, there is broad support for the view
68.
This is a logical extension of the "equal treatment" theory pre- viously discussed.
69.
Case Concerning the Factory at Chonow (Claim for Indem- nity) [I9281 P.C.I.J., ser. A, No. 17 [hereinafter cited as Chorzow Fac- tory Case].
70. Restatement, supra, note 11 at 8 185.
that a taking involving discrimination against aliens is wrongful under international jurispurdence. 71 The heart of the problem, however, is to what extent does interna- tional law impose a duty to pay compensation in the event of a taking of alien property by a state when the taking is for a public purpose, is nondiscriminatory, and is not violative of a treaty. To what extent must compensation be paid of a takingislawful under internation law? In can-nection with this question, attention is called to the Resolution on Permanent Sovereignty over National Resources. 72
RESOLUION ON PERMANENT SOVEREIGNTY OVER
NATURAL RESOURCES
The General Assembly
Consideringthat nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to complete sovereignty of coun- tries formerly under colonial rule, …
Declares that:
1.
The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.
2.
The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.
3.
In cases where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon, in each case, between the investors and the recipient State, due care beiig taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.
4.
Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid ap- propriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in ac- cordance with international law. In any case where the question of com- pensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agree- ment by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudica- tion.
5.
The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered bv the mutual respect of States based on their sovereign equality.
6.
International co-operation for the economic development of developing countries, whether in the form of public or private captial in- vestments, exchange of goods and services, technical assistance, or ex- change of scientific information, shall be such as to further their inde- pendent national development and shall be based upon respect for their sovereignty over their natural wealth and resources.
7.
Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles
71.
Id. at 8 166. See also Fatouros, Government Guarantees to Foreign Investors 249-51 (1962) [hereinafter cited as Fatouros]; S. Friedmann, &propriation in International Law 189-93 (1953).
72.
This resolution wasadopted by the U.N. General Assembly by 87-2 with 12 abstentions.
Pam 27-161-1
of the Charter of the United Nations and hinders the development of in- ternational co-operation and the maintenance of peace.
8. Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in ac-cordance with the Charter and the principles set forth in the present resolution.. .. 73
c. New Developments. Many publicists continue to in- sist that adequate, prompt, and effective compensation be made for expropriated property. 74 However, considera- ble opinion seeks to modify the orthodox compensation "rule" in the modem foreign wealth deprivation context. A large number of Eastern European publicists suggest that compensation for claims be fmed by "new criteria," and many Western writers are similarly persuaded. 75 Sir Hersch Lauterpacht has made the following observation:
The rule is clearly established that a State is bound to respect the property of aliens. This rule is qualified, but not abolished . . . [A] modification must be recognized in cases in which fundamental changes in the political system and economic structure of the State or far-reach- ing reforms entail interference, on a large scale, with private property. In such cases, neither the principle of absolute respect for alien private property nor rigid equality with the dispowssed nationals offer a satisfactory solution of the difficulty. It is probable that, consistent with legal principle, such solution must be sought in the granting of partial compensation.76
7-15. Adequacy of Compensation. In essence, the pri- mary focus of the controversy with respect to the duty to pay compensation has not been whether there exists a duty under international law to pay some compensation-a proposition for which there is broad support-but rather the amount and form of the compensation. The key in-quiry is what is "just" or "appropriate" or "adequate" compensation under the circumstances. Even accepting the proposition that compensation must be adequate, prompt, and effective, there exists substantial room for disagreement concerning the precise meaning of these terms. Moreover, it is clear that "adequate," "prompt," and "effective" are interrelated. For example, undue delay in payment or payment that cannot be translated into a usable economic benefit to the dispossessed alien can have an impact on the "adequacy" of the compensa- tion arrangements. Finally, it has been urged that the re- quirement for adequate, prompt, and effective compensa- tion should be mitigated when the taking is pursuant to a broad program of economic and social reform as opposed to an individual expropriation. Failure to do so would deny to poorer states, which could not afford to make full
73. G.A. Res. 1803, 17 U.N. GAOR, Supp. 17, Doc. No. A15217 at 15-16 (1962).
74.
See, e.g., Cheng, Expropriation in International Law, 21 Solici- tor 98 (1954), and Brandon, Legal Aspects of Private Foreign Invest- ment, 18 Fed. B.J. 298 (1958).
75.
See, for example, Katzarov, The Validiv of the Act of Na- tionalization in International Law, 22 Mod. L. Rev. 639, 647 (1959).
76. 1 L. Oppenheim, International Low 318 (H.Lauterpacht ed. 1948) [hereinafter cited as 1 Oppenheim].
and immediate payment, the right to effect the programs of reform they desire. 77
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
5 187. Just Compensation Defined
Just compensation as required by 8 186 must be
(a)
adequate in amount, as indicated in 5 188,
(b)
paid with reasonable promptness, as indicated in 5 189, and
(c)
paid in a form that is effectively realizable by the alien, to the fullest extent that the circumstances permit, as indicated in 5 190.
5 188. Adequacy of Compensation
(1)
Compensation, to be adequate in amount within the meaning of 5 187, must be in an amount that is reasonable under the circum- stances, as measured by the international standard ofjustice indicated in 5 165. Under ordinary conditions, including the following, the amount must be equivalent to the full value of the property taken, together with interest to the date of payment
(a)
if the property was acquired or brought into the jurisdiction of the state by the alien for use in a business enterprise that the alien was speci!ically authorized to establish or acquire by a concession, con- tract, license, or other authorization of the state, or that the alien es-tablished or acquired in reasonable reliance on conduct of the state designed to encourage investment by aliens in the economy of the state,
(b)
if the property is an operating enterprise that is taken for opera- tion by the state as a going concern,
(c)
if the taking is pursuant to a program under which property held under similar circumstances by nationals of the state is not taken, or
(d)
if the taking is mongful under international law as stated in 5
185.
(2) In the absence of the conditions specified in Subsection (I), com- pensation must nevertheless be equivalent to full value unless special circumstances make such requirement unreasonable.
Comment .. .
b. Meaning of full value. The full value swed in this Section means fair market value if ascertainable. Iffair market value is not ascer- tainable, it means the fair value as reasonably determined in the light of the international standard ofjustice sWed in 5 165. So far as practica-ble, full value must be determined as of the time of taking, unaffected by the taking, by other related takings, or by conduct attributable to the taking state and having the effect of depressing the value of the property in anticipation of the taking. This does not require, however, disregard of the effect on market values of the state's general power to regulate the use of property or the conduct of business operations.
5 189. Promptness of Compensation Payment with reasonable promptness, within the meaning of 5 187, means payment as soon as is reasonable under the circumstances in the light of the international standard of justice smed in 5 165.
5 190. Effectiveness of Compensation
(1)
Compensation, to be in'effectively realizable form, within the meaning of 5 187, must be in the form of cash or property readily convertible into cash. If not in the currency of the state of which the alien was a national at the time of the taking, the cash paid must be convertible into such currency and withdrawable, either before or after conversion, to the temtory of the state of the alien's nationality, except as indicated in Subsection (2).
(2)
Such conversion and withdrawal may be delayed to the minimum extent necessary to assure the availability of foreign exchange for goods and services essential to the health and welfare of the people of the taking state.
77. See Garcia-Amador, International Respomibiliry: Fourth Re- port, [I9591 2 Y.B. Int7 L. Comm. 1, 7, 23-24, U.N. Doc. No. A/CN 4/119 (1959).
Pam 27-161-1
7-16. Presidential Statement on Expropriation.
STATEMENT OF POLICY BY THE PRESIDENT OF THE UNITED STATES CONCERNING THE INTERNA-
TIONAL MINIMUM STANDARD
5 Weekly Compilation of Presidential Documents, 64 (1972)
We live in an age that rightly attaches very high importance to eco- nomic development. The people of the developing societies in particular see in their own economic development the path to fulfillment of a whole range of national and human aspiration. The United States con- tinues to support wholeheartedly, as we have done for decades, the efforts of those societies to grow economically–out of our deep convic- tion that, as I said in my Inaugural Address, "To go forward at all is to go forward together"; that the well-being of mankind is in the fmal analysis indivisible; and that a better-fed, better-clothed, healthier, and more literate world will be a more peaceful world as well.
0.0
I also wish to make clear the approach of this administration to the role of private investment in developing countries, and in particular to one of the major problems affecting such private investment: upholding accepted principles of international law in the face of expropriations without adequate compensation.
The wisdom of any expropriation is questionable, even when ade- quate compensation is paid. The resources diverted to compensate invest-ments that are already producing employment and taxes often could be used more productively to finance new investment in the domestic economy, particularly in areas of high social priority to which foreign capital does not always flow. Consequently, countries that expropriate often postpone the attainment of their own development goals. Still more unfairly, expropriations in one developing country can and do im- pair the investment climate in other developing countries.
In light of all this, it seems to be imperative to state-to our citizens and to other nations-the policy of this Government in future situations involving expropriatory acts.
1. Under international law, the United States has a right to expect: -That any taking of American private property will be non-discriminatory; -that it wiU be for a public purpose; and -that its citizen will receive prompt, adequate, and effective con- pensation from the expropriating country.
Thus, when a country expropriates a significant U. S. interest without making reasonable provision for such compensation to U. S. citizens, we will presume that the U. S. will not extend new bilateral economic benefits to the expropriating country unless and until it is determined that the country is taking reasonable steps to provide adequate compen- sation or that there are dor factors affecting U. S. interests which re- quire continuance of all or part of these benefits.
2.
In the face of the expropriatory circumstancesjust described we will presume that the United States Government will withhold its sup- port from loans under consideration in multilateral development banks.
3.
Humanitarian assistance will, of course, continue to receive special consideration under such circumstances.
4.
In order to carry out this policy effectively, I have directed that each potential expropriation case be followed closely. A special inter- agency group will be established under the Council on International Economic Policy to review such cases and to recommend courses of ac- tion for the U. S. Government.
Thisexplicit Presidential statement concerning an interna- tional minimum standard of compensation clearly details the U.S.view toward expropriation.
7-17. State Breach of Its Undertaking to an Alien. a. General. Contractual arrangements between states and 'aliens are a common phenomenon in today's world and cover a variety of matters. A private supplier may sell goods or services to a foreign government or grant it rights to patents or technology under a licensing arrange- ment. A private company may enter into a concession agreement with a foreign government calling for the ex- ploitation, development and marketing of mineral resources. A private investor may enter into a contractual arrangement with a foreign government pursuant to an in- vestment incentive program under which an investment in productive facilities is made in exchange for various guarantees and incentives afforded by the foreign govern- ment. The undertakings made by the state under such varied arrangements differ widely, and these differences may be relevant to the question of whether state respon- sibility under international law attaches as a result of a breach of a particular undertaking.
b. Breach. When does a breach of an undertaking by a state to an alien constitute a violation of international law? At one extreme, there exists the position that, as only states have rights and obligations under international law, a state canlimit its exercise of sovereignty only by interna- tional agreement with another state or international organization and not by an agreement with an alien. At the other extreme, it has been argued that the doctrine of pacta sunt servanda as a rule of international law applies in the case of any agreement between a state and an alien. 78 Consider both of these views as the following material is examined. 7-18. Choice and Effect of Governing Law. a. Unless the repudiation of a contractual obligation is manifest, a necessary step in determining whether a breach has oc-curred will be to ascertain, in accordance with the princi- ples of the conflict of laws (private international law), what body of law (or bodies of law) govern questions in interpretation, validity, and performance of the contract. As pointed out in the Saudi Arabia v. Arabian American OilCompany (Aramco) Arbitration Award: 79
It is obvious that no contract can exist in vacuo, i.e., without bei based on a legal system. The conclusion of a contract is not left to the unfettered discretion of the Parties. It is necessarily related to some posi- tive law which gives legal effect to the reciprocal and concordant manifestations of intent made by the parties. The contract cannot even be conceived without a system of law under which it is created. Human will can only create a contractual relationship if the applicable system of law has just recognized its power to do so.
6.It should be noted that the choice of governing law problem canbe quite complex in relation to an agreement between a state and an alien. If the parties make an explicit choice as to governing law, this will usually be controlling. However, if the agreement is silent, the choice of law prob- lems are complicated by questions such as whether there should be a presumption in favor of the municipal law of the contracting state or whether referral of disputes to an
I
78. See Domke, Foreign Nationalirations, 55 Am. J. Int'l L. 585, 597 (1961); Kissam and Leach, Sovereign Expropriation of Property and Abrogation of Concession Contracts,28 Fordham L.Rev. 177, 194-214 (1 959).
79. 27 Int'l L. Rep. 117, 165 (1958).
international court or arbitral tribunal implies a choice as to governing law, or, at least, a rejection of municipal law of the contracting state as controlling. In speaking to the body of law which regulates the performance of state con- tracts, a noted publicits has observed:
It is today becoming increasingly accepted that a new body of law,
differing from both international and municipal law, is in the process of
developing.. . . This body of law, variously named "extranational" or
.. . "transnational," governs those situations where neither municipal
law nor the traditional public international law would be wholly appropri-
ate. .. .
It is not yet quite clear under what conditions transnational law is ap- plicable to particular state contracts. There is little doubt as to its ap- plicability when the parties include in the contract itself a provision to the effect that the "proper law of the contmct" is transnational law or the general principles of law recognized by civilized nations. Apart from such express statements, a similar intent of the parties may be inferred when the parties provide that any dispute is to be adjudged by an inter- national court. Provision for arbitration may also be an indication of the existence of such intent, though probably not in all cases. Fially, transnational law may sometimes be applied when no other system of law may be said to govern the contract, or in order to supplement other applicable rules of law. 80
7-19. State Breach as a Violation of International Law.
a. Choice of law. As indicated by the foregoing, under the applicable principles of conflict of laws, the law governing the interpretation, validity, and performance of the con- tract may be determined to be the municipal law of the contracting state, principles of law applied in common by two or more municipal law systems, public international law, general principles of law applied in common by two or more municipal law systems, public international law, general principles of law, some other body of law, custom, or some combination of all of these. Indeed, various aspects of the contractual relationship may be governed by different bodies of law. Once having determined the governing law, the problem shifts to seekingthe content of that law as applied to the particular contractual under- taking involved. To what extent under the governing prin- ciples are contracting parties held absolutely to their under- takings under an inflexible application of pacta sunt ser-vanda? To what extent, if at all, is either party afforded some leeway in meeting its obligations? What is the rele- vance of traditional principles of private and public law when applied to various agreements between states and aliens? Then, assuming that a breach of contractual obligation is established under the law governing the agreement, when, in the absence of a treaty violation or a denial of procedural justice, will a breach by the contract- ing state constitute a violation of international law provid- ing the substantive basis for a claim of state responsibility? Restatement, Second, 4 193 offers this answer:
(1)
The breach by a state of a contract with an alien, except as indicated in Subsection (2) and (3), is w~ongful under international law if either
(a)
the breach is effected in an arbitrary manner without bona fide claim of excuse,
(b)
the law and practice of the state in effect at the time of the breach do not make reasonable provision for reparation for the breach,
80. Fatouros, supra, note 71 at 283-94.
(c)
the state entered into the contract with the alien (or an alien assignor of the contract) in his capacity as an alien, or
(d)
the circumstances indicate that, when the alien became a party to the contract, the parties contemplated that performance of the contract would involve to a substantial degree foreign commerce, use of foreign resources, or activity outside the territory of the state.
(2)
Subsection (1) (a) and (1) (b) are not applicable to a contract for the repayment of money borrowed on the domestic market of the state.
(3)
Breach by a political subdivision of a state, whether or not it is a federal state, of a contract to which the central government or an agency of that government isnot a party, does not, as such, give rise to respon- sibility on the part of the state under international law. 81
b.
There exist differing opinions whether one govern- ment of a state may restrict the state's future legislative freedom. The following appears to reflect the generally held view.
While it may be said that a State is unable to restrict its future legis-
lative freedom for an indeffite period, there is neither principle nor
authority to prevent it from so doing for a limited number of years. If a
State violates such a promise made to a foreign concessionaire, its action
may be valid on a municipal level within its own territory, but on the in-
ternational level it is sufficient ground for interposition by the alien's na-
tional State. The nationalismg state in these circumstances has infringed
a limitation of its sovereignty voluntarily assumed by it. 82
c. The Department of State has often maintained that it would not espouse cases of breach of contract except when the breach is of a "tortious nature" or when there has been a denial of justice. However, both of these ex- pressions have been rather flexibly interpreted, and the only typesof claims that seem to be generally deemed un- qualified for espousal are those wherein the breach does not constitute a violation of international law or the action is for default in payment of public debt. The general un- wihgness of the Department to serve as "a collection agency" also appears to be a factor in minor commercial , transactions. Contract claims are often included in lump-sum settlements negotiated by the United States.
7-20.Waiver by Individual Claimant (Calvo Clause) .,,
a. Background. It is generally agreed that if an alien in- jured by a state in such a way as to constitute a violation of [a typewrongful under] international law, waives or settles" the claim prior to diplomatic intervention by the state of which he is a national, then the waiver of settlement ". . , is effective as a defense on behalf of the respondent state, provided the waiver or settlement is not under duress." 83 More troublesome problems have been raised, however, , by the efforts of Latin American states to avoid foreign, diplomatic intervention through various devices, includ- ing waivers required of aliens in advance, which limit their ; rights to those available under domestic law and secured ' by domestic legal remedies. These ~tates,~,by
means qf their constitutions, statutes, and executive gction, make it, a condition precedent to the entry of a foreign contractor or direct investor that the alien undertakes at the time of.: entry and in consideration therefor not to invoke the dip:"
I
81.
Restatement, supra, note 11 at 8 193. –
82.
H. White, Nationalization of Foreign Property. 178 (1961).
83.
Restatement, supra, note 11 at 8 203. \
Pam 27-161-1
lomatic protection of the state of his nationality and to ac- cept nondiscriminatory national treatment as his sole basis
' of right. Contractually, this is an anticipatory waiver of claims. The former foreign minister of Argentina who gave his name in the latter part of the nineteenth century to the "Calvo Doctrine," which these waiver clauses seek to implement, grounded the doctrine fvmly on a negation of any right of diplomatic protection inhering in states of nationality and on a denial of the existence of an interna- tional minimum standard of justice. Inevitably, "Calvo Clauses" raise these questions:
(1)
May the private party bind or bar the state of his nationality?
(2)
If the promisor, again the private party, breaches his promise and seeks the representation of his govern- ment, what happens as to:
(a)
The investor vis-a-vis the state to which he gave his promise, and
(b)
Any independent right of actions that the state of nationality otherwise might have had? The questions posed do not have clear and satisfactory answers in either doctrinal writings or in international arbitrations. There have been no International Court of Justice decisions on these matters. Analytically, these questions raise the issue whether a nationalization claim is an injury to the state of espousal, (that is, an expression of a fundamental concept of customary international law), or whether it is merely a doctrine of logical convenience (i.e., a means by which to circumvent the lack of individuals' rights in this particular area of the international legal system).
b.
Current practice. Capital exporting states other than the U.S. seem to have been only rarely troubled by Calvo clauses. To date, this device for subjecting the foreign in-
,vestor to greater host state control has not spread throughout the developing nations of the world. In diplo- matic correspondence, the U.S. has rejected the notion that its international cause of action can be compromised by an agreement between a foreign state and a U.S. citizen. Often cited in support of this view is the leading decision in this area, North American Dredging. 84 In ren- dering its opinion in this case, the Commission hearing the dispute stated:
Reading this article [Article 18 contained a Calvo clause] as a whole, it is evident that its purpose was to bid the claimant to be governed by the laws of Mexico and to use the remedies existing under such laws. . . .But this provision did not, and could not, deprive the claimant of his American citizenship and all that that implies. It did not take from him his undoubted right to apply to his own Govemment for protection if his resort to the Mexican tribunals or other authorities available to him resulted in a denial or delay of justice as that term is used in interna- tional law. In such:&case the claimant's complaint would be not that his contract was violatkd but that he had been denied justice. The basis of his appeal would be not a construction of his contract, save perchance in an incidental way, but rather an internationally illegal act.
What, therefore, are the rights which claimant waived and those which he did not waive in subscribing to article 18 of the contract? (a)
u.North American Dredging Co. Case (United States v. Mexico), United States and Mexico General Claims Arbitration 21 (1926).
He waived his right to conduct himself as if no competent authorities existed in Mexico; as if he were engaged in fulfulling a contract in an in- ferior country subject to a system of capitulations; and as if the only real remedies available to him in the fulfillment, construction, and enforce- ment of this contract were international remedies. All these he waived and had a right to waive. (b) He did not waive any right which he possessed as an American citizen as to any matter not connected with the fuIfdlment, execution, or enforcement of this contract as such. (c) He did not waive his undoubted right as an American citizen to apply to his Govemment for protection against the violation of international law (internationally illegal acts) whether growing out of this contract or out of other situations. (d) He did not and could not affect the right of his Govemment to extend to him its protection in general or to extend to him its protection against breaches of international law. 8s
c. Restatement, Second, though somewhat restrictive in its approach, does appear to grant a greater degree of validity to the Calvo clause. Section 202 provides:
(1) Ifan alien, as a condition of engaging in economic activity in the territory of a state, agrees with the state that he is to be treated as if he were a national in respect to such activity, and that his only remedy for injury in this respect is that available under the law of the state, such agreement, commonly called a "Calvo Clause," relieves the state of responsibility for injury to the economic interests of the alien in respect to such activity, if (a) the alien is in fact treated as favorably as if he were a national, (b) the violation of an international agreement under the rule stated in 8 165 (1) (b), and (c) the law of the state affords the alien a bona fide remedy for such injury that satisfies the requirements of
.procedural justice stated in 88 180-182.
(2)
A Calvo Clause does not relieve a state of responsibility for injury to an alien except as stated in Subsection (1).
d.
Thus, though the Calvo clause has not been as widely accepted as its proponents would like, both arbitral decision and state practice seem to negate the view that the clause is a complete nullity in international claims law and practice. Moreover, there is some evidence that, in
U.S. diplomatic practice, the presence of a Calvo clause is a factor in determining either espousal itself, or the degree and intensity with which the normal diplomatic protection hction of the Department of State is discharged. 86 7-21. Justification for Otherwise Unlawful Conduct. a. The Restatement position.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965)
Circumstances may justify conduct causing damage to an alien that would otherwise be wrongful under international law. The rules stated in this Chapter, 58 197-201, are not exceptions to the general rule of responsibility of a state for conduct departing from the international standard of justice as indicated in Q 165, but specify situations in which certain types of conduct do not depart from the standard. . . . mhe rules in this Chapter do not constitute justification for conduct that discrimi- nates against an alien or constitutes a violation of an international agree- ment. . . .
8 197. Police Power and Law Enforcement
(1)
Conduct attributable to a state and causing damage to an alien does not depart from the international standard of justice indicated in 8 165 if it is reasonably necessary for
(a)
the maintenance of public order, safety, or health, or
(b)
the enforcement of any law of the state (including any revenue
85. Id. at 26.
86. For a thorough and well-reasoned analysis of the Calvo clause, see Graham, The Calvo Clause: Its Current Status as a Contractual Re-nunciation of Diplomatic Protection, 6 Tex.Int7 L. Forum 289 (1974).
law) that does not itself depart from the international standard.
(2) The rule in Subsection (1) does not justify failure to comply with the requirements of procedural justice stated in 55 179-182 except as stated in 5 199 with respect to emergencies.
Comment:
a. General.The essential criterion in determining whether exercise of police power, or enforcement of a law of a state, that causes damage to an alien is consistent with the international standard, is whether the con- duct, in each me, is reasonably necessary to achieve the indicated ob- jective, and whether that objective is consistent with the international standard.
Illustrations:
1. State A enacts a law requiring periodical inspection of livestock and destruction of animals that are found to have certain communicable dis-eases. The law provides for compensation only in cases where more than five percent of a herd is destroyed. Pursuant to such inspection, the state destroys two percent of a herd belonging to X, an alien. The destruction does not violate the rule stated in 5 185 regarding the taking of an alien's property without just compensation.
3. State A makes an agreement with X, an alien corporation, granting it the right to extract minerals in designated areas of A's territory for a period of five years and providing for payment by X of a spec5ed royalty. Thereafter, A enacts a law imposing a reasonable income tax on all corporations operating in its temtory with respect to income earned there. Collection of the tax from X, in addition to collection of the royalty, does not violate the rule stated in 5 185.
5 198. Currency Control
Conduct attributable to a state and causing damage to an alien does not depart from the international standard ofjustice indicated in 5 165 if it is reasonably necessary in order to control the value of the curren- cy or to protect the foreign exchange resources of the state.
Comment:
a.
Control of value of currency. It is generally recognized that devalua- tion of currency does not give rise to state responsibility by reason of its effect on an alien.
b.
Foreign exchange. Likewise, the application to an alien of a re- quirement that foreign funds held within the temtory of the state be surrendered against payment in local currency at the official rate of ex- change is not wrongful under international law, even though the local currency is less valuable on the free market than the foreign funds sur- rendered.
Illustration:
2. State A grants a concession to X, a national of state B, for mining operations in the territory of A. To meet local expenses of the project, X opens an account in a bank in A with a deposit in currency of B. A needs currency of B to pay for food and fuel imports from B. It adopts a
. .
foreign &change control system requiring all &edits in the currency of B to be surrendered in exchange for local currency at the official rate of ex- change, which is the same rate at which X could have withdrawn local currency from his account, but substantially less favorable to him than the free market rate. Enforcement of the requirement against X, that converts his account into local currency, is not a violation of the rule stated in 5 188 with respect to the payment of full value for the taking of an alien's property. 5 199. Emergencies
Conduct attributable to a state and causing damage to an alien does not depart from the international standard ofjustice indicated in 8 165 if it is reasonably necessary to conserve life or property in the case of disaster or other serious emergency.
b. There is authority for the principle that if an alien's property within the territory of a belligerent is requisi- tioned or destroyed under pressure of urgent necessity, compensation must be paid. Article 21 of the Harvard Research Draft Convention on the Rights and Duties of
Neutral States in Naval and Aerial War 87 states: A belligerent may, within its territory or within territory held in mili-tary occupation, in case of urgent necessity, requisition a neutral vessel privately owned and operated, or cargo owned by nationals of a neutral State, if the vessel or the cargo was brought into such temtory volun- tarily and not as the result of compulsion or pressure exercised by the belligerent or by an allied belligerent; provided that this privilege may be exercised by a belligerent only if it pays the fair market value, under pre- vailing conditions, of the vessel or cargo requisitioned.
The authorities dealing with cases of destruction are dis-
cussed in an accompanying comment. Article 22 provides that: A belligerent has no duty to pay compensation for damage to a neutral vessel or other neutral property or persons, when such damage is inci- dental to a belligerent's act of war against the armed forces of its enemy and not in violation of the provisions of this Convention or of the law of war. 88
7-22. Reparation. a. General. The violation of interna- tional law creates an obligation on the part of the delin- quent to give satisfaction or reparation for the wrong to the state injured by the violation. The violation may result in either a material injury or what might be called a "moral" injury. 89 The former is an injury to property or to an individual, while the latter is an injury to the dignity or sovereignty of a state. Since an international delict in- volving a material injury, whether to state property or the property or person of a private individual, is an injury to the state itself, a moral injury will always accompany a material injury. However, a moral injury need not neces- sarily result in a material injury. For instance, the violation. of a treaty may cause no actual damage, but would still constitute a moral injury, obligating the violating state to make appropriate reparation to the injured state.
6.
Reparation or satisfaction for a moral injury may consist of a formal apology or a monetary payment, or both. 90 Moreover, the mere fact that a state is adjudged to have violated international law may be sufficient, reparation to the injured state. 91 If the reparation for a- moral injury consists of a monetary payment, the amount will depend on the nature and magnitude of the injury to the dignity or sovereignty of the wronged state. When the moral injury is accompanied by or results from a material injury, the reparation often takes the form of a monetary payment measured by the damages of the individual claimant, even though, in theory, the injury has been suffered by the claimant state. I
c.
As the Permanent Court of International Justice ob- served in the Case Concerning the Factory at Chonow: 92
I
Chorzow Factory Case, supra, note 69 at 28. The Corfu Channel Case [I9491 I.C.J. 4, 35. 1 Oppenheim, supra, note 71 at 352. 33 Am. J. Intl L. Supp. 167, 359 (1939). 87.
hk
88.
For a more detailed discussion of the conqpt of "military necessity," see DA Pam 27-10.
89.
90.
The "I'm Alone" Case (Canada v. United States) Department ofstate Arbitration, Ser. No. 2, at 4, 3 U.N.R.I.A.A. 1609, 1618 (1935) [hereinafter cited as the "I'm Alone" Case].
91.
92.
.. . Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identid in kind with that which will be suffered by a State; it canonly afford a convenient scale for the calculation of the reparation due to the State.
In appropriate circumstances, reparation might also in- clude additional monetary damages for the moral injury to the claimant state. 93 The entire reparation is paid to the claimant state and disbursed to its national claimants at its discretion. 94 In the Chonow Factory case, the Permanent Court of International Justice also indicated that:
The essential principle contained in the actual notion of an illegal act-a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals-is that reparatibn must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitu- tion in kind would bear; the award, if need be, of damages for loss sus- tained which would not be covered by restitution in kind or payment in place of it–such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. 95
d.
In the majority of cases, restitution is impossible because of changed circumstances, and the reparation must consist of monetary compensation. The Permanent Court also distinguished between the case in which the payment of "fair compensation" can render lawful under international law an expropriation or other taking of prop- erty and the case in which the taking is wrongful under in- ternational law, even if such compensation if paid. 96 In the former case, the Court indicated that the measure of compensation was the value of the property at the time of the taking, plus interest to the date of payment. The Chonow Factory case itself involved the latter, since the taking there was in violation of a specific treaty prohibition against expropriation (even if compensation were paid). The Court stated that in this situation the measure of damages was the value that the undertaking would have had at the time of indedtcation had the expropriation not taken place, plus any losses sustained as a result of the expropriation. 97 Thus, the court allowed damages for loss of profits realized between the seizure and the indem- nification.
e.
Personal injuries. In claims for personal injuries the measure of reparation for the injury to the individual is the loss to the individual claimant. Damages have included
Id. at 48. Id. at 46. Chorzow Factory Case, supra, note 69 at 47. 93.
For a discussion of determining the measure of reparations, see the opinions in the Laura M.B. Janes Claim (United States v. Mexico), [I9271 Opinions of Commissioners 108, 4 U.N.R.I.A.A. 82.
94.
On the legal status of reparation received by the United States, see Wiam v. Hksd, 140 U.S. 529 (1891); Opinion of J. Reuben Clark, Solicitor for the Department of State, 7 Am. J. Int'l L. 382 (1913). See generally 1 M. Whiteman, Damages in International Law 2035-59 (1943) [hereinafter cited as 1 M. Whiteman, Damages]; 5 G. Hack- worth, supra, note 7 at 763-901.
95.
96.
97.
medical expenses, loss of earnings, 98 pain and suffer-
ing, 99 and mental anguish. 100 Damages may be reduced
where the claimant has contributed to the injury. 101 Prob-
lems sometimes arise in attributing responsibility to the
delinquent state for the damages suffered by an individual
claimant. A state is ordinarily responsible only for the
damages caused by its delinquency. There the delinquency
if a failure to apprehend and punish a private person who
has injured an alien or his property, the offending state has
not damaged the claimant except is so far as the state's
delinquency prevents the claimant from bringing a
damage action against the responsible person. If, as is
often the case, an action against the private wrongdoer
would be fruitless, the delinquent state has not caused any
damage to the claimant. International tribunals have
generally avoided such a result by finding that the delin-
quent state's lack of diligence in apprehending or punish-
ing the private wrongdoer amounted to condoning the in- jury and imposed derivative liability on the state, 102 or by finding that the claimant suffered "grief," "mistrust and lack of safety" resulting from the state's failure to ap- prehend or punish the wrongdoer. Under either theory, damages have usually been measured by the loss suffered by the individual claimant rather than by the gravity of the state's delinquency. 103
7-23. Succession to Obligations and International Responsibility. a. Although the problem of state succes- sion arises in other contexts, especially in connection with determining whether a successor state succeeds to rights and duties embodied in international agreements, it also arises with some frequency in the context of state respon- sibility. Particularly significant is the problem of the extent to which a successor state is bound by public debts and by other contractual obligations of the predecessor regime and responsible for international wrongs of that regime. With respect generally to the question of succession to the internal legal system of a territory, a distinction has tradi- tionally been drawn between public law and private law. Public law, broadly, is that body of laws promulgated by
98. George Henry Clapham Claim (Great Britain v. Mexico) 5
U.N.R.I.A.A. 201, 203-04 (1931).
1 M. Whiteman, Damages, supra, note 94 at 588, 89 (1943). 99.
100.
Opinion in the Lusitania Case (United States v. Germany), [1923-251 Administrative Decisions and Opinions 17, 21-22, 7
U.N.R.I.A.A. 32, 36-37 (1923).
101. Lillie S. Kling Claim (United States v. Mexico), General Claims Commission, [1930-31) Opinions of Comqisioners 36, 49-50, 4 U.N.R.I.A.A. 575, 585 (1930).
'02. Paggioli Case (Italy v. Venezuela), 10 U.N.R.I.A.A. 669, 689 (1903); Laura B. Janes Claim (United States v. Mexico), General Claims Commission, 119271 Opinions of Commissioners 108, 120, 4
U.N.R.I.A.A. 82, 90 (separate opinion of Commissioner Nielsen).
'03. 1 M. Whiteman, Damages, supra. note 94 at 39; Brierly, The Theoty of Implied State Complicity in International Claims, [I9281 Brit.
Y.B.
Int'l L. 42; M. Freeman, supra, note 22 at 367-69. But see Wiam
T.
Way Claim (United States v. Mexico), supra, note 30; the "I'm Alone" Case (Canada v. United States), supra, note 90; 1 M. White- man, Damages, note 94 at 721-44, 788.
the government for the effective administration of the country; it is political in character, concerns the relation of the population to the state, and pertains to the preroga- tives of sovereignty. Private law, on the other hand, governs the relations between individual citizens and only indirectly concerns the administration of the country. 104
b. The traditional view held that private law survives change in sovereignty, legal control, or international status, but that public law does not. 10s This view, however, does not accord with state practice. An alterna- tive approach, which seems closer to actual practice, is that if the laws of the new state and the predecessor state are consistent, succession takes place, but that if the laws are inconsistent, no succession occurs. In this view, suc- cession is a presumption, which can be rebutted by posi- tive legislation of the new state. 106 Recent practice indi- cates that new states generally make legislative provision for continuity of the internal legal order, with the qualification that continuity must be consistent with the change in sovereignty. 107 Sometimes, both the pre- decessor state and the new state make legislative provision for succession to the legal system. For instance, in the case of India, Britain provided for continuity of the legal system in the India Independence Act, 108 while India provided for continuity in the Indian Constitution. 109
Section 111. THE ACT OF STATE DOCTRINE
7-24. The Conceptual Framework. a. Definition. In the Anglo-American legal world, a legal consequence deriv- ing from high-level state action> legal result outside the ordinary field of private law-is labeled an "Act of State." As are many of the aspects of state responsibility, this par-ticular concept is currently in a state of fluxand is some- what controversial in nature. This doctrine must not be confused with the concept of jurisdictional immunity. Although interrelated in many ways, it is essential to differentiate between these two principles if both are to be understood and correctly applied. As noted earlier, juris- dictional immunity stands for the proposition that an agent or agency of a state government, when acting on behalf of that government, may not be subjected to the ju- risdiction of another state's courts, regardless of where the alleged cause of action occurred. In short, jurisdictional immunity has no territorial limitation. 110 On the other hand, the act of state doctrine stands for the proposition that the courts of one state will not judicially review the acts of another state, when these acts are taken within the territorial boundaries of the latter.
b. An unresolved question exists as to whether the widely-shared disinclination to declare invalid the act of governance of another state is merely a recognized princi- ple of international relations or a rule of international law. In the U.S., the earlier cases on the act of state doctrine usuallv involved cases where the plaintiff and the defen- dant were both private parties and the plaintiff mounted the attack. The major cases in recent years, however, have involved a foreign state as plaints, and the defendant has attacked the legitimacy of the foreign law on which the plaintiff relies. In the older cases, the immunity of a state was never involved; in later cases, with the foreign state as plaintiff, interrelationships between immunity to counter claims and act of state may be involved. In the most recent development, a private party is generally suing a state engaged in trade for an alleged invalid act of nationaliza- tion/and before the act of state is reached, and issue of irn-
104. 1 O'Connell, State Succession in Municipal Law and Interna- tional Law 101-41 (1967).
105. Id. at 104.
munity from suit has to be resolved. 7-25. The Court-Made Doctrine in the U.S. Analysis of the act of state doctrine as applied in the United States must begin with the decision most often cited in comec- tion with the concept, Banco Nacional De Cuba v. Sab-batino, Receiver.
BANCO NACIONAL DE CUBA V. SABBATINO,
RECEIVER
United States Supreme Court, 1964.
376 U.S. 398, 84 S.Ct. 923.
MR.JUSTICE HARLAN
delivered the opinion of the Court.
The question which brought this case here, and is now found to be the dispositive issue, is whether the so-called act of state doctrine serves to sustain petitioner's claims in this litigation. Such claims are ultimately founded on a decree of the Government of Cuba expropriating certain property, the right to the proceeds of which is here in controversy. The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recog- nized foreign sovereign power committed within its own territory.
In February and July of 1960, respondent Fan, Whitlock & Co., an American commodity broker, contracted to purchase Cuban sugar, free alongside the steamer, from a wholly owned subsidiary of Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a corporation organized under Cuban law whose capital stock wasowned principally by United States residents. Farr, Whitlock agreed to pay for the sugar in New York upon presentation of the shipping documents and a sight ' draft.
On July 6, 1960, the Congress of the United States amended the Sugar Act of 1948 to permit a presidentially directed reduction of the. sugar quota for Cuba. On the same day President Eisenhower exercised the granted power. The day of the congressional enactment, the Cuban Council of Ministers adopted "Law No. 851," which characterized this reduction in the Cuban sugar quota as an act of "aggression, for political' purposes" on the part of the United States, justifying the taking of countermeasures by Cuba. The law gave the Cuban President and' Rirne Minkter btionary pow to nationalize by forced expropriation property or enterprises in which American nationals had an interest. Although a system of compensation was formally provided, the possibility of payment under it may well be deemed illssory. Our State Department has described the Cuban law as "manifestly in violation of
106.
Id. at 107.
107.
Id. at 118.
See para. 5-2, chap. 5. Constitution of India, art. 372(2). 108.
India Independence Act, 10 and 11 Geo. 6, chap. 30, 8 118 (1 947).
109.
110.
Pam 27-161-1
those principles of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbi-
) trary and contiit~ry.~ Between August 6 and August 9,1960, the sugar covered by the con- tract between Farr, Whitlock and C. A. V. was loaded, destined for Morocco, onto the S. S. Homfels, which was standing offshore at the Cuban port of Jucaro (Santa Maria). On the day loading commenced, the Cuban President and Prime Minister, acting pursuant to Law No. 851, issued Executive Power Resolution No. 1. It provided for the com- pulsory expropriation of all property and enterprises, and of rights and interests arising therefrom, of certain listed companies, including C. A. V., wholly or principally owned by American nationals. The preamble reiterated the alleged injustice of the American reduction of the Cuban sugar quota and emphasized the importance of Cuba's serving as an ex- ample for other countries to follow "in their struggle to free themselves from the brutal claws of Imperialism." In consequence of the resolu- tion, the consent of the Cuban Government was necessary before a ship canying sugar of a named company could leave Cuban waters. In order to obtain this consent, Farr, Whitlock, on August 11, entered into con- tracts, identical to those it had made with C. A. V., with the Banco Para el Comercio Exterior de Cuba, an instrumentality of the Cuban Government. The S. S. Homfels sailed for Morocco on August 12. Banco Exterior assigned the bills of lading to petitioner, also an instru-mentality of the Cuban Government which instructed its agent in New York, Societe Generale, to deliver the bills and a sight draft in the sum of $175,250.69 to Farr, Whitlock in return for payment. Societe Generale's initial tender of the documents was refused by Farr, Whitlock, which on the same day was notified of C. A. V.'s claim that as rightful owner of the sugar it was entitled to the proceeds. In return for a promise not to turn the funds over to petitioner or its agent, C. A. V. agreed to indemnify Farr, Whitlock for any loss. Farr, Whitlock subse- quently accepted the shipping documents, negotiated the bi of lading to its customer, and received payment for the sugar. It refused, however, to hand over the proceeds to Societe Generale. Shortly thereafter, Farr, Whitlock was sewed with an order of the New York Supreme Court, which had appointed Sabbatino as Temporary Receiver of C. A. V.'s New York assets, enjoining it from taking any action in regard to the money claimed by C. A. V. that might result in its removal from the State. Following this, Farr, Whitlock, pursuant to court order, transferred the funds to Sabbatino, to abide the event of a judicial deter- mination as to their ownership.
IV.
The classic American statement of the act of state doctrine, which ap- pears to have taken root in England as early as 1674, Blad v. Bamf~eld, 3 Swans. 604,36 Eng.Rep. 992, and began to emerge in the jurisprudence of this country in the late eighteenth and early nineteenth centuries, see, e.g., Ware v. Hylton, f~all. 199, 230; Hudson v. Guestier, 4 Cranch 293,294; The Schooner Exchange v. M'Faddon, 7 Cranch 116, 135, 136; L'Invincible, 1 Wheat. 238, 253; The Santissiia Trinidad, 7 Wheat. 283,336, is found in Underhill v. Hernandez, 168 U.S. 250, p. 252, 18 S.Ct. 83, at p. 84, where Chief Justice Fuller said for 2 unanimous Court:
Every sovereign State is bound to respect the independence of ev- ery other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign .powers as betypien themselves.
Following this pr&pt the Court in that case refused to inquire into acts of Hernandez, a revolutionary Venezuelan military commander whose government had been later recognized by the United States, which were made the basis of a damage action in this country by Underhill, an American citizen, who claimed that he had been unlawfully assaulted, coerced, and detained in Venezuela by Hernandez.
None of this Court's subsequent cases in which the act of state doctrine was directly or peripherally involved manifest any retreat from
Underhill.See American Banana&. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 51 1; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309; Ricaud v. American Metal Co., 246 U.S. 304; Shapleigh v. Mier, 299 U.S. 468, 57 S.Ct. 261; United States v. Belmont, 301 U.S. 324,57 S.Ct. 758; United States v. Pink,315 U.S. 203, 62 S.Ct 552. On the contrary in two of these cases, Oe&ien and Ricaud, the doctrine as an- nounced in Underhill was reaffmed in unequivocal terms.
1
Petitioner then instituted this action in the Federal District Court for
the Southern District of New York. Alleging conversion of the bids of
lading, it sought to recover the proceeds thereof from Farr, Whitlock
and to enjoin the receiver from exercising any dominion over such
proceeds. Upon motions to dismiss and for summary judgment, the
District Court, 193 F.Supp. 375, sustained federal in personal jurisdic-
tion despite state control of the funds. It found that the sugar was lo-
cated within Cuban territory at the time of expropriation and determined
that under merchant law common to civilized countries Farr, Whitlock
could not have asserted ownership of the sugar against C. A. V. before
making payment. It concluded that C. A. V. had a property interest in
the sugar subject to the territorial jurisdiction of Cuba. The court then
dealt with the question of Cuba's title to the sugar, on which rested peti-
tioner's claim of conversion. While acknowledging the continuing
vitality of the act of state doctrine, the court believed it inapplicable
when the questioned foreign act is in violation of international law.
Proceeding on the basis that a taking invalid under international law
does not convey good title, the District Court found the Cuban ex-
propriation decree to violate such law in three separate respects: it was
motivated by a retaliatory and not a public purpose; it discriminated
against American nationals; and it failed to provide adequate compensa-
tion. Summary judgment againt petitioner was accordingly granted.
The Court of Appeals, 307 F.2d 846, affig the decision on similar
grounds, relied on two letters (not before the District Court) written by
State Department officers which it took as evidence that the Executive
Branch had no objection to a judicial testing of the Cuban decree's
validity. The court was unwilling to declare that any use of the infir-
mities found by the District Court rendered the taking invalid under in-
ternational law, but was satisfied that in combination they had that
effect. We granted certiorari because the issues involved bear impor-
tantly on the conduct of the country's foreign relations and more partic-
ularly on the proper role of the Judicial Branch in this sensitive area. 372
U.S. 905, 83 S.Ct. 717. For reasons to follow we decide that the judg- ment below must be reversed.
In deciding the present case the Court of Appeals relied in part upon an exception to the unqualif~ed teachings of Underhill, Oe&ien, and Ricaud which that court had earlier indicated. In Bernstein v. Van Heyghen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, suit was brought to recover from an assignee property allegedly taken, in effect, by the Nazi Government because plaintiff was Jewish. Recognizing the odious nature of this act of state, the court, through Judge Learned Hand, nonetheless refused to consider it invalid on that ground. Rather, it looked to see if the Executive had acted in any manner that would in- dicate that United States Courts should refuse to give effect to such a foreign decree. Finding no such evidence, the court sustained dismissal of the complaint. In a later case involving similar-facts the she court again assumed examination of the German acts improper. Bernstein v.
N. V. Nederlandsche-AmerikaanscheStoomvaart-Maatschappij,2 Cir., 173 F.2d 71, but, quite evidently following the implications of Judge Hand's opinion in the earlier case, amended its mandate to permit evi- dence of alleged invalidity, 210 F.2d 375, subsequent to receipt by plain- tiffs attorney of a letter from the Acting Legal Adviser to the State Department written for the purpose of relieving the court from any con- straint upon the exercise of its jurisdiction to pass on that question. 18
This Court has never had occasion to pass upon the so-called Bern-skin exception, nor need it do so now. For whatever ambiguity may be thought to exist in the two letters from State Department officials on which the Court of Appeals relied, 19 307 F.2d, at 858, is now removed by the position which the Executive has taken in this Court on the act of state claim; respondents do not indeed contest the view that these .let- ters were intended to reflect no more than the Department's then wish not to make any statement bearing on this litigation.
The outcome of this he, therefore, turns upon whether any of the contentions urged by respondents against the application of the act of state doctrine in the premises is acceptable: (1) that the doctrine does not apply to acts of state which violate international law, as is claimed to be the case here; (2) that the doctrine is inapplicable unless the Execu- tive spenf~cally interposes it in a particular case; and (3) that, in any event, the doctrine may not be invoked by a foreign govemment plain- tiff in our courts.
Preliminarily, we discuss the foundations on which we deem the act of state doctrine to rest, and more particularly the question of whether state or federal law governs its application in a federal diversity case. 20
We do not believe that -thisdoctrine is compelled either by the in- herent nature of sovereign authority, as some of the earlier decisions seem to imply, see Underhill, supra; American Banana, supra; Oebien, supra, 246 U.S. at 303,38 S.Ct. at 311, or by some principle of interna- tional law. If a transaction takes place in one jurisdiction and the forum is in another, the forum does not by dismissingan action or by applying its own law purport to divest the fmt jurisdiction of its territorial sovereignty; it merely declines to adjudicate or makes applicable its own law to parties or property before it. The refusal of one country to enforce the penal laws of another (supra, pp. 932-933) is a typical example of an instance when a court will not entertain a cause of action arising in another jurisdiction. While historic notions of sovereign authority do bear upon the wisdom of employing the act of state doctrine, they do not dictate its existence.
That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject fail to follow the rule rigidly. No international arbitral or judicial decision discovered suggests that international law prescribes recognition of sovereign acts of foreign govements, see 1 Oppenheim's International Low, 8 115aa (Lauterpacht, 8th ed. 1955), and apparently no claim has ever been raised before an international tri- bunal that failure to apply the act of state doctrine constitutes a breach of
la. The letter stated:
I. 'Ibis government has consistently o m the forcible am of dispass&on of a dk-criminatory and confiscatory nature praniced by the Gennans on the countries or peoples subject to their controls.
…
3. The policy of the Executive, with respect to claims asserted in the United Slates for the restitution of identiliable property (or compensation in lien themi) lost Ulrough force, coercion. or duress as a result of Nazi pexcution in Germany, is to relieve American courts from any remain1 upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi oRi-nals. Slate Department ResRelease, April 27, 1949,20 Dept. Slate Bull. 592.
19. Abram Chayea. the LegalAdvisor to theStaIe Department. wrote onOctober 18.1961. in answer to an inquiry regarding the position of the Department by Mr. John Laylin, attorney for amici:
The Department of Slate Wnot, in the Bahia de Nipe case or eke where, done anything in- consistent with the position laken on the Cubannationalizations by Secretary Herter. Whether or no1 these nationalitions will in the fufure be given eITm in the United Stam is, of course, for the couns to determine. Sicethe Sabbatino case and other similarc49esare at present before the courts, any comments on this question by the Department of SIatewould be out of place at this time. As you yourself point out, statements by the executive branch are h@hly suxeptible of misconslruction.
A letter &led November 14,1961,from George Ball, Under Ssretary for Emnomic AfTirs, responded to a similar inquiry by the same attorney:
I have carefully considered your letter and have discusd it with the Legal Adviser. Ourcon-clusion. in which the Secretary concurs, is that the Department should not comment on matters pendin# before the courts.
10. Although the complaint in this~89~ both diversity and fcdd question jwisdiri
all&
tion. the Court of Appeels reachedjurisdidion only on Ibe former ground, 307 F.2d at 852. We need not dedde. for reasons apparine hereafter, whether fedsral pueation jutididion also ex-isted.
international obligation. If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. See United States v. Diekelman, 92 U.S. 520, 524. Although it is, of course, true that United States courts apply international law as part of our own in ap- propriate circumstances, Ware v. Hylton, 3 Dall. 199, 281; The Nereide, 9 Cranch 388, 423; The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, the public law of nations can hardly dictate to a country which is in theory wronged how to treat that wrong within its domestic borders.
Despite the broad statement in Oegen that "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative * * Departments," 246 U.S., at 302, 38 S.Ct. at 311, it cannot of course be thought that "every case or wn- troversy which touches foreign relations lies beyond judicial cog-nizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691. The text of the Constitution does not require the act of state doctrine; it does not ir- revocably remove from the judiciary the capacity to review the validity of foreign acts of state.
The act of state doctrine does, however, have "constitutional" un-derpinnings. It arises out of the basic relationships between branches of govemment in a system of separation of powers. It concerns the wmpe- tency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as for- mulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pur- suit of goals both for itself and for the community of nations as a whole in the international sphere. Many commentators disagree with this view; they have striven by means of distinguishing and limiting past decisions and by advancing various considerations of policy to stimulate a narrow- ing of the apparent scope of the rule. Whatever considerations are thought to predominate, it is plain that the problems involved are u- niquely federal in nature. If federal authority, in this instance this Court, orders the field of judicial competence in this area for the federal courts, and the state courts are left free to formulate their own rules, the pur- poses behind the doctrine could be as effectively underminded as if there had been no federal pronouncement on the subject.
. . . [Wle are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with the other members of the international community must be treated exclusively as an aspect of federal law. 23
If the act of state doctrine is a principle of decision biding on federal and state courts alike but compelled by neither international law nor the Constitution, its continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs. It should be apparent that the greater the degree of dcation or consen- sus concerning a particular area of international law, the more appropri- ate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not in- consistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the im-
23. At least this is me when the Courl Limits the smpe ofjudicial inquiry. Wenezd not now consider whether a state cow mmt, in certaincircumstances,adhere to a more restrictive view concerning the smpe of examination of foreign ans Ulan that required by thisCourt.
Pam 27-161-1
plications of an issue are for our foreign relations, the weaker the justif~cationfor exclusivity in the political branches. The balance of rele-
, vant considerations may also be shifted if the government which per- petrated the challenged act of state is no longer in existence, as in the Bemstein case, for the political interest of this country may, as a result, be measurably altered. Therefore, rather than laying down or reaffi- ing an inflexible and all-encompassing rule in this case,we decide only that the Judicial Branch will not examine the validity of a taking of prop- erty within its own territory by a foreign sovereign government, extant and remgnized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal prin- ciples, even if the complaint alleges that the taking violates customary international law. There are few if any issues in international law today on which opin- ion seemsto be so divided as the limitations on a state's power to ex- propriate the property of aliens. 26 There is, of course, authority, in in- ternational judicial 27 and arbitral28 decisions, in the expressions of na- tional governments, 29 and among commentators 30 for the view that a taking is improper under international law if it is not for a public pur- pose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. 31 Certain representatives of the newly independent and under- developed countries have questioned whether rules of state respon- sibility toward aliens can bind nations that have not consented to them 32 and it is argued that the traditionally articulated standards governing expropriation of property reflect "imperialist" interests and are inappropriate to the circumstances of emergent states. 33 The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free en- terprise system. It is difficult to imagine the courts of this country em- barking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. 34 When we consider the prospect of the courts characterizing foreign expropriations, however justifiably, as invalid under international law
26.
Coqre, e.g.. Frkdman, &mprhHon In Inrernatlo~lLuw 206 21 l (1953); Damn and Weston, "Pmmpr. Adequate and &EecHw'? A Unlwml Stanclclrd afCompen?uHon ? 30 Fordham L.Rev. 727 (1%2), with Note from Se~etmyof State Hull to Mexican Ambassador, Auuusl22, 1938, V Fomign Relations of the United States 685 (1938); Doman, Postwar Na- tionallrotion afforeign Proper(v In Europe, 48 Col.L.Rev. 1125, 1127 (1948). We do not, of mwse, meanto say that there is no international standard in this area;we mnclude only that the matler is not met for adjudication by domestic tribuhals.
27.
SeeOscarChinn Case, P.C.I.J., ser. A/B, No. 63, at 87 (1934); Chorrow Factory Case, P.C.I.J., str. A,, No.17, at 46, 47 (1928).
28.
See, e.g.. Norwegian Shipowners' Case (NomyNnited States) (Perm. Ct.Arb.) (1922), 1 U.N.Rep.Int'l Arb. Awards 307, 334, 339 (1948). Hague Court Reports, 2d Series,
39.69.74 (1932); Marguerite de Ioly de SaMa, Ameh and PanSmanianGenersl Claims Ar- bitration 379, 447, 6 U.N.Rep.ht'1 Arb. Awards 358, 336 (1955).
29.
See. e.g., Dispatch from Lord Palmerston to British Envoy at Athens, Aug. 7, 1846.39 Britishand Foreign State Papers 1849-1850.431-432. NotefmmSccrcrary ofstate Hull to Mex-ican Amhsador, July 21, 1938, V Foreign Relations of the Unical States 674 (1938); Note to the CubanGovernment, July 16, 1960.43 Dept. State Bull. 171 (1960).
30.
Sec. e.8.. McNsir, The Sekure afProper(v and EnlerprLres In Indonesh, 6 Netherlands ht'l L.Rev. 218, 243-253 (1959); Restatement, Foreign Rebnons Luw afthe Unlted Smtes (ROW Offi Draft 1962), 55 190-195.
31.
See Doman, supra, note 26, at 1143-1158: Fleming,States,Contracts and R-, 62-63 (1960); Bystridry. Notes on Certain Inter~do~I Na-
LegalProbIemRehnng to Sochll~t ti~~kaH~n,
In InlernationaIAssn. afDemocraflc Lawyers, Roawhgs of the CommiPsion on Rivstc laternational Law, Sixth Co-(1956). IS.
32.
See Anand, Role qf the "New" Ashn-Nrlcan Countries ln the Pwnt 1nlernaHo~l &I Order, 56 Am.J.ht'l L. 383 (1962); Roy, Is the hw qfResponslblH@ afStateafor I&-rks to Akm a Part qf Un~wncrl Inler~HonalL.aw7 55 Am.J.lnt'1 L. 863 (1961).
33.
See 1957 Yb.U.N.lnt'l L. Comm'n (Vol.1) 155,158 (statements of Mr. PsdillaNmo (Mexico) and Mr. Pal (India)).
w. Then arc, of mum, areas of international law in which mmm as to s~~~dards
is €aw~terand which do not represent a battleground for wnIlic@ ideologies Tbis de&on in no 'my intimatesthat the mum of Ulismunw arc broadly foredosed from considering queslions of intemationsl law.
and ineffective to pass title, the wisdom of the precedents is confied.
While each of the leading cases in this Court may be argued to be dis-
tinguishable on its facts from thisone-Underhillbecause sovereign im-
munity provided an independent ground and Oetien, Ricaud, and
Shapleigh bemuse there was actually no violation of international law-
the plain implication of all these opinions, and the import of express
statements in Oegien, 246 U.S., at 304, 38 S.Ct. at 311, and Shapleigh,
299 U.S., at 471, 57 S.Ct. at 262, is that the act of state doctrine is ap-
plicable even if international law has been violated. In Ricaud, the one
case of the three most plausibly involving all international law violation,
the possibility of an exception to the act of state doctrine was not dis-
cussed. Some commentators have concluded that it wasnot brought to
the Court's attention, 35 but Justice Clarke delivered both the OeQen
and Ricaudopinions, on the same day, so we can assume that principles
stated in the former were applicable to the latter case.
The possible adverse consequences of a conclusion to the contrary of
that implicit in these cases is highli&ted by contrasting the practices of
the political branch with the limitations of the judicial process in matters
of this kind. Following an expropriation of any sigd~cance, the Execu-
tive engages in diplomacy aimed to assure that United States citizens
who are harmed are compensated fairly. Representing all claimants of
thiscountry, it will often be able, either by bilateral or mulitlateral talks,
by submission to the United Nations, or by the employment of econom-
ic and political sanctions, to achieve some degree of general redress.
Judicial determinations of invalidity of title can, on the other hand, have
only an occasional impact, since they depend on the fortuitous circum-
stance of the property in question being brought into this country. 36
Such decisions would, if the acts involved were declared invalid, often
be likely to give offense to the expropriating country; since the concept
of temtorial sovereignty is so deep seated, any state may resent the
refusal of the courts of another sovereign to accord validity to acts within
its territorial borders. Piecemeal dispositions of this sort involving the
probability of affront to another state could seriously interfere with
negotiations being canied on by the Executive Branch and might pre-
vent or render less favorable the terms of an agreement that could
othenvise be reached. Relations with third countries which have
engaged in similar expropriations would not be immune from effect.
The dangers of such adjudication are present regardless of whether the State Department has, as it did in this case,asserted that the rele- vant act violated international law. If the Executive Branch has under-taken negotiations with an expropriating country, but has refrained from claims of violation of the law of nations, a determination to that effect by a court might be regarded as a serious insult, while a finding of com- pliance with international law, would greatly strengthen the bargaining hand of the other state with consequent detriment to American in- terests.
Even if the State Department has proclaimed the impropriety of the expropriation, the stamp of approval of its view by a judicial tribunal, however impartial, might increase any affront and the judicial decision might occur at a time, almost always well after the taking, when such an impact would be contrary to our national interest. Considerably more serious and farreaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary. When articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of na- tions and protective of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial and Execu- tive Branches could hardly be avoided.
Respondents contend that, even if there is not agreement regarding
I
35. See Restac~menr. Foreign RebHons Luw Jthe United States, Reporters' Notes (Pro-pcscd OflicislDraft 1962). § 43, note 3.
M. It in, of mwse, true that such detenninations mi@ innumcc others not to bring ex- proprialed property into the munw, * * * so their indirut impad might exlend beyond the ac-lud invalidations of title.
Pam 27-161-1
general standards for determining the validity of expropriations, the
alleged combination of retaliation, discrimination, and inadequate com-
pensation makes it patently clear that thisparticular expropriation was in
violation of international law. Ifthis view is accurate, it would still be un-
wise for the courts so to determine. Such a decision now would require
the drawing of more difficult lines in subsequent cases and these would
involve the possibility of conflict with the Executive view. Even if the
courts avoided this course, either by presuming the validity of an act of
state whenever the international law standard was thought unclear or by
following the State Department declaration in such a situation, the very
expression of judicial uncertainty might provide embarrassment to the
Executive Branch.
Another serious consequence of the exception pressed by respond-
ents would be to render uncertain titles in foreign commerce, with the
possible consequence of altering the flow of international trade. If the at-
titude of the United States courts were unclear, one buying expropriated
goods would not know if he could safely import them into this country.
Even were takings known to be invalid, one would have difficulty deter-
mining after goods had changed hands several times whether the partic-
ular articles in question were the product of an ineffective state act.
Against the force of such considerations, we find respondents' wun- tervailing arguments quite unpersuasive. Their basic contention is that United States wurts could make a sigdkmt contribution to the growth of international law, a contribution whose importance, it is said, would be magnitied by the relative paucity of decisional law by international bodies. But given the fluidity of present world conditions, the effective- ness of such a patchwork approach toward the formulation of an accepta- ble body of law concerning state responsibility for expropriations is, to say the least, highly conjectural. Moreover, it rests upon the sanguine presupposition that the decisions of the courts of the world's m;(ior capital exporting country and principal exponent of the free enterprise system would be accepted as disinterested expressions of sound legal principle by those adhering to widely different ideologies.
It is contended that regardless of the fortuitous circunrstances neces-sary for United States jurisdiction over a case involving a foreign act of state and the resultant isolated application to any expropriation program taken as a whole, it is the function of the courts to justly decide in- dividual disputes before them. Perhaps the most typical act of state case involves the original owner or his assignee suing one not in association with the expropriating state who has had "title" transferred to him. But it is diicult to regard the claim of the original owner, who otherwise may be recompensed through diplomatic channels, as more demanding of judicial cognizance than the claim of title by the innocent thud party purchaser, who, if the property is taken from him, is without any remedy.
Respondents claim that the economic pressure resulting from the proposed exception to the act of state doctrine will materially add to the protection of United States investors. We are not convinced, even assuming the relevance of this contention. Expropriations take place for a variety of reasons, political and ideological as well as economic. When one considers the variety of means possessed by this country to make secure foreign investment, the persuasive or coercive effect of judicial invalidation of acts of expropriation dwindles in comparison. The newly independent states are in need of continuing foreign investment; the creation of a climate unfavorable to such investment by wholesale con- fmtions may well work to their long-run economic disadvantage. Foreign aid given to many of these countries provides a powerful lever in the hands of the oolitical branches to ensure fair treatmentof United States nationals. ul&tely the sanctions of economic embargo and the freezing of assets in this country may be employed. Any country willing to brave any or all of these consequences is unlikely to be deterred by sporadic judicial decisions directly affectingonly property brought to our shores. If the political branches are unwilling to exercise their ample powers to effect compensation, this reflects a judgment of the national interest which the judiciary would be ill-advised to undermine indirectly.
It is suggested that if the actof state doctrine is applicable to violations of international law, it should only be so when the Executive Branch ex-
pressly stipulates that it does not wish the wurts to pass on the question of validity. SeeAssociation of the Bar of the City of New York, Commit- tee on International Law, A Reconsideration of the Act of State Doctrine in United States Courts (1959). We should be slow to reject the representations of the Government that such a reversal of the Bernstein principle would work serious inroads on the maximum effec- tiveness of United States diplomacy. Often the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the developing of private litigation but might be inopportune diplomatically. Adverse domestic consequences might flow from an official stand which could be assuaged, if at all, only by revealing matters best kept secret. Of course, a relevant consideration for the State Department would be the position contemplated in the court to hear the case. It ishighly questionable whether the examination of validity by the judiciary should depend on an educated guess by the Executive as to probable result and, at any rate, should a prediction be wrong, the Executive might be embarrassed in its dealings with other countries. We do not now pass on the Bermgin exception, but even if it were deemed valid, its suggested extension is unwarranted.
However offensive to the public policy of this country and its consti-tuent States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.
***
The judgment of the Court of Appeals is reversed and the case is re-
manded to the District Court for proceedings consistent with this opin-
ion. It is so ordered. MR. JUSTICE WHITE, dissenting. I am dismayed that the Court has, with one broad stroke, declared the
ascertainment and application of international law beyond the compe- tence of the courts of the United States in a large and important category of cases. I am also disappointed in the Court's declaration that the acts of a sovereign state with regard to the property of aliens within its borders are beyond the reach of international law in the courts of this country. However clearly established that law may be, a sovereign may violate it with impunity, except insofar as the political branches of the govern- ment may provide a remedy. This backward-looking doctrine, never before declared in this Court, is canied a diswnceming step further: not only are the courts powerless to question acts of state proscribed by in- ternational law but they are likewise powerless to refuse to adjudicate the claim founded upon a foreign law; they must render judgment and thereby validate the lawless act.Si the Court expressly extends its ruling to all acts of state expropriating property, however clearly inwn- sistent with the international community, all discriminatory expropria- tions of the property of aliens, as for example the taking of properties of persons belonging to certain races, religions or nationalities, are entitled to automatic validation in the courts of the United States. No other civilized country has found such a rigid rule necessary for the survival of the executive branch of its government; the executive of no other government seems to require such insulation from international law ad-
judications in its wurts; and no other judiciary is apparently so incompe-
Pam 27-161-1
tent to ascertain and apply international law. I
I do not believe that the act of state doctrine as judicially fashioned in this Court, and the reasons underlying it, require American courts to decide cases in disregard of international law and of the rights of litigants to a full determination on the merits.
[The remaining text of MR. JUSTICE WHITE'S extensive dissenting opinion is omitted.]
7-26. Legislative Reaction to Banco National v. Stab-
batino -The Hickenlooper Amendments. In reaction to
the 1964 Sabbatino decision to close the door of U.S.
courts to American claimants affected by expropriations
abroad, the Congress quickly passed "remedial" legis-
lation, the Hickenlooper Amendments to the Foreign
Assistance Act.
UNITED STATES: THE "H1CKENU)OPER AMENDMENTS" TO THE FOREIGN ASSISTANCE ACT
22 U.S.C. 5 2370.
Prohibitions against furnishing assistance
***
(e)(1) The President shall suspend assistance to the government of any country to which assistance is provided under this chapter or any other Act when the govemment of such country or any government agency or subdivision within such country on or after January 1,1962-
(A) has nationalized or expropriated or seized ownership or con- trol of property owned by any United States citizen or by any corpora- tion, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
(B)has taken steps to repudiate or nullify existing contracts or agreements with any United States citizen or any corporation, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
(C)has imposed or enforced discriminatory taxes or other exac- tions, or restrictive maintenance or operational conditions, or has taken other actions, which have the effect of nationalizing, ex-
–
1. The cow of the following counkies, among others, and their territories have examined a fully "exmted" foreign act of state expropriating property: England:Anglo-Iranian Oil Co. v. IefTrate, 119531 Int'l L.Rep. 316 (Adensup. Ct.); N. V. de
Baldshe Petroleum Maamhappij v:The War Damnge Comm'n, I19561 Int'l L.Rep. 810 Winsapore ~APP.).
Netherlands: Senembsh Mastxhappij N. V. v. Republiek Indonesie Bmk Indonesia, NederlandseJursipmdentie 1959, No. 73, p. 218 (AmsterdamCt.App.), excerpts reprioted in Domke, Indonesian Nationahtion Mess= Before Foreign Courts, 54 Am.l.Int'l L. 305, 307-315 (1960).
Germany: N. V. Verenigde Deli-Maatschapijen v. Deutsch-lndonesische Tabak-Han- dekgesekhntl m. b. H. (Bremen Ct.App.), excerpts reprinted in Domke, supra, at 313-314 (1960); Confiscationof Property of Sudeten GermansCase.1119483AM.D~
24.25 (No. 12) (Ammerkht of Diiolfii). lawn: Anglo-Iranian Oil Co. v. ldemitsu Kosan Kabushiki Kaisha, I19531 Int'l L.Rep. 305 Vist.Ct. of Tokyo), ad, 119531 Int'l L.Rep. 312 (HighCt. of Tokyo). Italy: Anglo-Iranian Oil Co. v. S.U.P.O.R. Co.. I19551 Int'l L.Rep. 19 (Ct. of Venice); Anglo- lranianOil Co. v. S.U.P.O.R. Co., [I9551 Int'l L.Rep. 23 (Civ.Ct. of Rome). Franffi: Volatron v. Moulin, 11938-19403 h.Dii.24 (Ct. of App. of Aix); Polam Iberieao v. Nathan Bloeh, I1938-19401 h.Dig.150 (Ct. of Cassation).
The Court does not refer to any country which has applied the aet of state doctrine in a ease where a subsmtinl international law he is sought to be raisedby an alien whose propeny has been expropriated. Thismuntry and thisCourt stand alone among the civilizednations of the world in rulingthat such an kue is not cognizable in a court of law.
The Cowt noles that the courts of both New York and Great Britain have articulated the aet of state doctrine in broad laneuage similar to that mdby this Court in Underhill v. Hernandez, 168 US. 250.18 S.Ct. 83, and from thisit infers that these courts reoognizeno international law exceptionto theanof state dwthe. The cawrelied on by the Cowl involved no intern- tional law issue. For in these ~arasthe party objecting to the validity of the foreign sct was a ahn of the foreign state. It is sigoihnt that courts of both New York and Gat Britain, in apparently the fvstcawin which an international law issue was squarely posed, ruled that the act of state doctrine was no bPT to examination of the validity of the foreign act. Anglo-lranian Oil Co. v. Infhate, 119531 Int'l L.Rep. 316 (Aden Sup.Ct.): "mhe lranian Laws of 1951 were invalid by international law, for, by them, the property of the company wasexpropriatedwith-out any compensation." Sulyok v. Penzintweti Kozpont Budapest, 279 App.Div. 528, 11 1 N.Y.S.2d 75, ad, 304 N.Y. 704, 107 N.E.2d 604 (foreign expropriation of inlangible prop em denied effect as contrary to New York public poky.)
propriating, or otherwise seizing ownership or control of property so
owned,
and such country, government agency, or govemment su~vision fails
within a reasonable time (not more than six months after such action.
or, in the event of a referrh to the Foreign ClaimsSettlement Commis-
sion of the United States within such period as provided herein, not
more than twenty days after the report of the Commission is received)
to take appropriate steps, which may include arbitration, to discharge its
obligations under international law toward such citizen or entity, includ-
ing speedy compensation for such property in convertible foreign ex-
change, equivalent to the full value thereof, as required by international
law, or fails to take steps designed to provide relief from such taxes, ex-
actions, or conditions, as the case may be; and such suspension shall
continue until the President is satisfied that appropriate steps are beiig
taken, and no other provision of this chapter shall be construed to
authorize the Resident to waive the provisions of this subsection.
Upon request of the President (within seventy days after such action
referred to in subparagraphs (A), (B), or (C) of this paragraph), the
Foreign Claims Settlement Commission of the United States (estab-
lished pursuant to Reorganization Plan No. 1 of 1954,68 Stat. 1279) is
hereby authorized to evaluate expropriated property, determining the
full value of any property nationalized, expropriated, or seized, or sub-
jected to discriminatory or other actions as aforesaid, for purposes of this
subsection and to render an advisory report to the President within
ninety days after such request. Unless authorized by the President, the
Commission shallnot publish its advisory report except to the citizen or
entity owning such property. There is hereby authorized to be appropri-
ated such amount, to remain available until expended, as may be neces-
sary from time to time to enable the Commission to carry out ex-
peditiously its functions under this subsection.
(2) Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the prin- ciples of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confii- tion or other takingafter January 1, 1959, by an act of state in violation of the principles of international law, including the principles of compen- sation and the other srnndards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any me in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevoca- ble letter of credit of not more than 180 days duration issued in good faith prior to the time of the confition or other taking, or (2) in any casewith respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that care with the court. [Emphasis supplied.]
***
7-27. Judicial Reaction to the Hickenlooper Amend- ments. a.Following passage of the Hickenlooper Amend- ments, the courts were called upon to rule on a number of issues resulting from the passage of this legislation. In Banco Nacional De Cuba v. Farr, 111 the U.S.Second Circuit Court of Appeals &ied the constitutionality of the Hickenlooper Amendments. The 1968case of French
v. Banco Nacional De Cuba 112 involved a Cuban law controlling currency in that state. The New York Court of Appeals ruled that the Hickenlooper Amendments not- withstanding, the Act of State doctrine applied to this par-ticular factual situation. The Amendments were said to ap
Pam 27-161-1
ply only in those cases where the claim of the right of title or some other right in specifrc property expropriated abroad were involved.
b. The most recent Supreme Court decision concern- ing the Act of State doctrine is that of First National City Bank v. Banco Nacional de Cuba. 113 It has done little toward resolving the confusion surrounding the doctrine and the applicability of the Hickenlooper Amendments. The issue involved was whether the Act of State doctrine should be applied to prevent a set-off to recover damages for the expropriation of First National City Bank's proper- ty in Cuba. Banco Nacional's predecessor had borrowed $15 million from First National City Bank in 1958. The loan was secured by a pledge of U.S. Government bonds. In 1960, $5 million was repaid, the $10 million balance renewed and collateral equal to the value of the repaid portion was released. On September 16,1960, the Castro government in Cuba seized all of First National City Bank's branches in Cuba. In retaliation, the bank sold the collateral that secured the $10 million loan and applied the proceeds to the principal and unpaid interest. This sale resulted in an excess of at least $1.8 million. Banco Na- cional then sued in the Federal district court to recover the excess, the First National City by way of set-off and coun- terclaim asserted the right to recover damages for the ex- propriation of its branches in Cuba. The district court dis-missed Banco Nacional's suit. The court recognized that the Sabbatino case, holding that courts of one state would generally not sit in judgment on the acts of another state taken within the latter's territory, barred the assertion of First National City's counterclaim. It held, however, that Sabbatino has been overruled, for all practical purposes, by Congress. The U.S. Second Circuit Court of Appeals reversed, holding that the acts of Congress relied upon (the Hickenlooper Amendments) by the district court did not govern and that Sabbatino barred the assertion of the counterclaim. 114 The Supreme Court's judgment, reversing and remanding the Circuit Court's decision, 115 took the position that the Act of State doctrine was based primarily on the premise that judicial review of acts of a foreign power might embarrass the conduct of foreign relations by the political branches of the Government. In this case, however, the Legal Adviser of the Department of State had advised the Court that the doctrine need not be applied. Noting this, the court asserted
We conclude that where the Executive Branch, charged as it is with pri- mary responsibility for the conduct of foreign affairs, expressly repre- sents to the Court that the Act of State doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts. In so doing, we of course adopt and approve the so-called Bernstein exception to the Act of State doctrine. 116
113.
406-U.S. 759 (1972).
114.
442 F.2d 530 (1971).
115.
406 U.S. 759, 764 (1972).
1 16. Berstein v. Nederlandsche-Amerikoansche, 210 F.2d 375 (1 954).
Concurrences in the final result of this casewere based on two theories differing from each other and from that above quoted. The dissent-argued that this case was governed by Sabbatino, stating that the holding in Sab-batino was that the validity of a foreign act of state in cer- tain circumstancesis a political question, not cognizable in
U.S. courts, and that the executive branch cannot by "simple stipulation change a political question into a cog- nizable claim." In light of these most recent decisions, and the State Department's latest pronouncement on this matter, it is extremely dficult to speak of the Act of State doctrine, as interpreted by U.S. courts, in defintive terms. Its current status as an element of particular inter- national law is uncertain.
7-28.The Executive Branch View of the Act of State Doctrine. The full text of the latest executive branch viewpoint on the act of state doctrine, referred to by the Supreme Court in the First National City Bank case, is carried as an appendix to the second consideration of this case by the Court of Appeals for the Second Circuit. 117 The Legal Adviser of the Department of State referred to the fust decision by the court of appeals in the First Na-
tional City Bank Case (i.e., Section 2370 (e) (2) of ~itle 22 of the United States Code did not apply to the claim and hence the act of state doctrine as laid down by the Supreme Court in the Sabbatino case did apply) and stated that the decision involved matters of importance to the foreign policy of the United States, called attention to the Bernstein exception, disagreed with the nonapplication of it in the first opinion by the court of appeals, and con- tinued as follows:
While the Department of State in the past has generally supported the applicability of the act of state doctrine, it has never argued or implied that there should be no exceptions to the doctrine. In its Sabbatino brief, for example, it did not argue for or against the Bernstein principle; rather it assumed that judicial consideration of an act of state would be permissible when the Executive so indicated, and argued simply that the exchange of letters relied on by the lower courts in Sabbatino con-stituted "no such expression in this case." Brief of the United States, page 1 1.
Recent events, in our view, make appropriate a determination by the Department of State that the act of state doctrine need not be applied when it is raised to bar adjudication of a counterclaim or setoff when (a) the foreign state's claim arises from a relationship between the parties existing when the act of state occurred; (b) the amount of relief to be granted is limited to the amount of the foreign state's claim; and (c) the foreign policy interests of the United States do not require application of the doctrine.
The 1960's have seen a great increase in expropriations by foreign governments of property belonging to United States citizens. Many cor- porations whose properties are expropriated, fmancial institutions for example, are vulnerable to suits in our courts by foreign governments as plaintiff, for the purpose of recovering deposits or sums owed them in the United States without taking into account the institutions' coun- terclaims for their assets expropriated in the foreign country.
The basic considerations of fairness and equity suggesting that the act of state doctrine not be applied in this class of cases, unless the foreign policy interests of the United States so require in a particular case,were reflected in National City Bank [of New York] v. Republic of China, 348
Pam 27-161-1
U.S. 356 [75 S.Ct. 423, 99 L.U. 3891 (1956), in which the Supreme Court held that the protection of sovereign immunity is waived when a foreign sovereign enters a U.S. court as plaintiff. While the Court did
' not deal with the act of state doctrine, the basic premise of that case-that a sovereign entering court as plaintiff opens itself to counterclaims, up to the amount of the original claim, which could be brought against it by that defendant were the sovereign an ordinary plaintiff–is applicable by analogy to the situation presented in the present case. In this case, the Cuban government's claim arose from a banking relationship with the defendant existing at the time the act of state-ex- propriation of defendant's Cuban property-occurred, and defendant's counterclaim is limited to the amount of the Cuban government's claim. We fmd, moreover, that the foreign policy interests of the United States do not require the application of the act of state doctrine to bar adjudica- tion of the validity of a defendant's counterclaim or set-off against the Government of Cuba in these circumstances.
The Department of State believes that the act of state doctrine should not be applied to bar consideration of a defendant's counterclaim or set- off against the Government of Cuba in this or like cases.
7-29. Practical Effects of the Hickenlooper Amend-ment. a. Legislative constraints. The Hickenlooper Amendment's requirement that the President be satisfied within 6 months of an assured solution to a nationalization problem has created foreign affairs problems under sub- section (e) (1), which requires the President to cut off foreign assistance to the developing country concerned. Under some other provisions of Section 2370, which lists a number of instances in which foreign assistance shall be suspended, the President has authority to waive suspen- sion when he frnds that it is in the foreign policy interests of the United States to do so. However, such is not the case with regard to subsection (e) (1).
b. Examples. In 1968, a military regime in Peru na- tionalized the properties of the International Petroleum Company, entitled in its own right or through its parent, the Standard Oil Company of New Jersey, to United States diplomatic protection. Peru set off against any com- pensation that otherwise might have been payable a much larger claim for "unjust enrichment," based upon a con- tention that the company and its predecessors never had the legal right to take out oil. All legal remedies in Peru were exhausted, and the offset was not acceptable to the claimant or to the United States, on ground that seem, at the very least, reasonably arguable. However, subsection
(e)
(1) was not formally applied. Within the first 6 months after the taking, while efforts at diplomatic settlement were still in progress, the executive branch consulted with key congressional figures and obtained their tacit agree- ment for nonapplication. A major reason for this informal amendment in the law is that subsection (e) (1), if used, would have serious adverse effects on United States foreign policy and possibly on private interests of other Americans in Peru and elsewhere. Subsection (e) (1) has, as a matter of fact, been used only once, with indifferent results as to its investment-protection objective. 118
c.
Although the amendment has not been invoked, both Peru and Chile have complained that the United States has not in fact entered into new bilateral aid ar- rangements with them and has opposed international lending agency development assistance to them. The con- duct was labeled as "illicit intervention."
7-30. Conclusion. As noted in the introductory para- graphs of this chapter, the concept of state responsibility is currently undergoing substantial rnocl%cation in response to vary pressures emanating from a number of different sources. New approaches toward old problems have resulted in the realization that some degree of com- promise must be reached among those states advocating widely divergent views in this area. As solutions to cur- rently existing differences are found, however, the rules of law associated with this aspect of international jurispru- dence will become even more important to the judicial and economic development of the world community.
118.. Thiiwas invoked against Ceylon.
Pam 27-161-1
CHAPTER 8
INTERNATIONAL AGREEMENTS
Section I.
8-1. Introduction. As noted in chapter 1, formal agree- ments between states, or between states and international orgainzations such as the United Nations, have become the major source of international jurisprudence. Custom- ary law has tended to be too slow and uncertain a process, often falling behind the needs and expectations of the in- ternational community. Technological developments have become so rapid that frequently only express agree- ments between states are capable of introducing change into international law. Moreover, the ~ig~cance
of customary international law has also been weakened by the Soviet belief that an international agreement is the principal means of expressing assent to an international obligation. 1 8-2. International Agreements Defined. a. General. In-ternational agreements are undertakings between states, or between states and international organizations, which give rise to legal rights and duties. Although the law ap- plicable to such agreements has a number of similarities to contract law, the purpose and effect of international agree- ments are somewhat different than those of commercial contracts between private parties. Thus, if a state con- cludes an agreement, not with another state or interna- tional organization but with a foreign commercial en- terprise, the agreement is not looked upon as an interna- tional agreement and is not subject to "treaty law." 2 Not-withstanding this fact, such an agreement may indirectly produce legal consequences on the international plane if, for example, the state of which the private foreign com- mercial enterprise is a national intercedes on the latter's behalf. 3 As noted in chapter 1, international agreements affect international law in a variety of ways. They may cod@ existing customary law, mm or abridge existing customary law, or create new international law norms. Agreements cover a wide range of subjects. Some, such as the conventions on the laws of war or use of the seas, are "law-making treaties" and create standards of substantive law binding on states (perhaps including even nonsignato- ries).Others are basically contractual agreements between states-such as military alliances and trade pact-with many of the elements of a private contract. Some are es- sentially conveyances of real property–such as boundary agreements and leases or cessions of territory. Finally, some, such as the United Nations Charter, are constitu- tive agreements creating new international legal entities
1. Waldwk, General Course on Public International Luw, [I9621 2 Renreil des Cours 1, 50. See chap. 1, supra.
2.
Customary and cdikd rules of public international law which apply specifically to the formulations, interpretation, modif~cation, and termination of international agreements.
3.
For a discussion of these legal consequences, see chap. 7,State Responsibility, supra.
GENERAL
which may themselves acquire legal personality so as to be able to enter into treaties. The 1957 Treaty of Rome, which created the European Economic Community,is a special kind of constitutive agreement establishing a confederation binding European states to abide by common rules and re- quirements in order to further the objectives of the Treaty. 4 Similarly, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms requires its signatoriesto accept the decisions of the European Court on Human Rights in cases over which it has jurisdiction. 5
b.
Agreements are generally classified as either bilateral or multilateral, depending on the nurnber of parties to the agreement. Multilateral agreements are usually kept open for adherence for a protracted period. It is, therefore, possible for a state that was not in existence at the time the agreement was negotiated to announce its assent several years later.
c.
International agreements, be they bilateral or multilateral, are generally given different titles depending on the subject matter or the formality with which they were executed. These titles, however, are not used iden- tically in all cases. Thus, it is the substance of each agree- ment which is important and not its descriptive title. 6
(1) The term treaty, perhaps the most common word in international contractual parlance, is used in a broad sense to mean any international agreement, or in a restricted sense to mean a particularly formal type of inter- national agreement. 7
ments. (2)* The term protocol refers to supplementary agree-
(3)
A concordat is an agreement by a State with the Holy See; 9 however, agreements between the Vatican and other states need not be called concordats.
(4)
A process verbal is an official record of a meeting or conference. 10
(5)
A memoire or aide memoire is a diplomatic note summarizing the diplomat's understanding of a conven-
4. 298 U.N.T.S. 11.
See I. Brownlie, Basic Documents on Human Rights 339 (1971). 5.
6.
Kelsen, Principles of International Law 318 (1952). Myers, Names and Scope of Treaties, 51 Am. J. lnr'l L. 574 (1957).
7. "Treaty" has a special meaning under United States municipal law. Article II, section 2, of the U.S. Constitution delegates the power to the President ". . . by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur," and Article VI, paragraph 2, provides that ". .. all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land."
8. I. Oppenhkim, International Luw 878 (8th ed., Lauterpacht
1955).
9. 1. Hyde, I~nter~tio~l
Law 25-26 (1 945).
lo. I. Oppenheim, supra, note 8 at 878.
Pam 27-161-1
tion. fl A note verbal is hardly distinguishable from a memoire except that it is unsigned and summarizes diplo- matic discussions.
(6) Sometimes especially formal agreements are de- scribed as Acts, General Acts, Statutes, or Declarations. 12 On the other hand, the term Congressor Co&rence may be substituted for these terms. This practice is, however, a loose use of the terms in question. 13
A modus vivendi is usually a temporary or provi- sional arrangement. 14 (7)
(8)
A compromise may signify an agreement generally of a conciliatory nature. It is also used to describe the agreed terms under which an arbitrator is empowered to decide a dispute between two states. 15
Section 11. THE FORM AND STRUCTURE OF INTERNATIONAL AGREEMENTS
8-3. 'Treaty Law" -The Law of International Agree- ments. After years of effort, the International Law Com- mission 16 finalized the most extensive agreement ever formulated dealing with treaty law. The Vienna Conven- tion on the Law of Treaties 17 (The Treaty on Treaties) es-tablishes definite rules, procedures, and standards governing the formation, interpretation, and application of international agreements. Large portions of this Con- vention are considered to be declaratory of existing inter- national law and custom. 18 Thus, even though its prearn- ble provides that ". . .the rules of customary international law will continue to govern questions not regulated by the provision of the present Convention," and Article 4 limits its application to ". . . treaties which are concluded by the States, after the entry into force of the present Convention with regard to such States . . .," this chapter's examina- tion of international agreements will occur largely within the framework of the Convention's basic provisions. 8-4. Defdng the International Agreement. Article 2(1) (a) of the Vienna Convention defines a treaty as
. . . an international agreement concluded between two states in wit- ten form and governed by international law, whether embodied in a single instrument or in two or more related instnunents, and whatever its particular designation.
Similar language used in the earlier Harvard Draft Con- vention on the Law of Treaties 19 was said to exclude from the scope of the Convention instruments which are not governed by the rules or principles of public international law. 20 Accordingly, some writers have maintained that agreements relating to commercial transactions of states, such asfor the purchase of goods, are acts jure gestionis, 21 i.e., nongovernmental acts, not falling within a state's sovereign powers and thus governed by the municipal law of contracts. 22 Other writers have rejected this distinction, however, arguing that all agreements between states are governed by the rules of public international law. 23 The comment by the Harvard Draft Convention took no posi- tion on this dispute, stating instead that the critical point is whether an agreement creates an obligation intendedto be governed by public international norms. 24 For example, certain agreements states, such as a bill of lading issued to a state by a vessel owned and operated by another state, may by their own terms be controlled by the municipal law of one or both of the states. In the ab- sence of an express statement in a treaty as to whether in- ternational or municipal law is intended to govern, the in- tention of the parties has to be determined from the totality of the language and the drafting history.
Very clear evidence will have to be required before it can be assumed that sovereign states have contracted on the basis of private law. . . . On the other hand, it would probably not be justified to speak of a presump- tion that public international law applies. 2s
8-5. The Capacity of Parties. a. International organiza- tions. The Vienna Convention limits its application to treaties "between states" 26 and provides that "every state has the capacity to conclude treaties." 27 This is hardly surprising for, as noted in chapter 1, states have traditionally been considered to be the sole subjects of in-
11. Id.
12.
E.g., The General Act of Berlin of 1885; the Statute of the Per- manent Court of International Justice; the Declaration of Paris of 1856, and the Declaration of St. Petersburg of 1868.
13.
Thus the phrase, "Congress of Vienna" is loosely used to refer to the Fial Act or the actual agreement recorded by the principal powers in 1815 after the downfall of Napoleon. For the text of the Fial Act, see N.R.Martens, Recueil de Traitks 2, 379.
14. For example, see 5 G. Hackworth, Digest of International Low
392, 414 (1943).
1s. W. Bishop, International Law 61 (2d ed., 1962).
16. The International Law Commission is a creation of the United Nations. See, W. Bishop, International Law. 61 (3rd ed. 1971) (hereinafter cited as Bishop).
1'. See, The Vienna Convention on the Law of Treaties, 63 Am. J. Int7 L. 875 (1969). The Vienna Convention was the culmination of many years of effort to codify international standards governing treaties. It was drafted by the International Law Commission and a United Na- tions conference on the Law of Treaties held in Vienna in 1969 [hereafter cited as Vienna Convention].
1s. On the question of the extent to which the Vienna Convention is declaratory of existing international law, see Roseme, The Temporal Application of the Vienna Convention on the Law of Treaties, 4 Cornell Int'l L.J. 1 (1970).
Harvard Research, supra, note 19, at 693-95. F. Liszt, Le Droit International I69 (Gidel trans]. 1928). Id. at Article 1. 19.
Harvard Research in International Law, Drqft Convention of the Law of Treaties, 29 Am. J. Int'l L. Supp. 686 (1935) [hereinafter cited as Harvard Research].
20.
21.
The distinction between acts jure imperii and jure gestionis has long been signiftcant with regard to the issue of sovereign immunity, but, like a number of other rigid either/or categories, it has gradually fallen into disfavor. See J. Brierly, The Law of Nations, 245-51 (6th ed. 1963). See also chap. 5, supra.
22.
23.
Delouter, Droit International Public Positif 468 (1 920). 1 D. Anzilotti, Cours de Droit International 341 (Gidel trans]. 1926). See generally W. Friedmann, 0.Lissitzyn & R. Pugh,Cases and Materials On International Law 301-04 (1969) [hereinafter referred to as Fried- mannl.
24.
2s. Mann, The Low Governing State Contracts, 1944 BRlT. Y.B. mL L. 28.
26.
Vienna Convention, kt. 1.
27.
Id. at ~rt.6.
Pam 27-161-1
ternational law. The creation of international organiza-
tions and agencies and the growth of the idea that in-
dividuals can be subjects of international law raises the
possibility, however, that international organizations, and
perhaps even individuals, can be parties to international
agreements. International organizations, particularly
agencies of the U.N., have entered into treaties with
states. 28 The 1949 decision of the International Court of
Justice in the Reparations for Iqjuries Syffered in the Ser-
vice of the United Nations 29 case established the fact that the U.N. possesses legal capacity to bring a claim against a state for failing adequately to protect a U.N. employee. In this opinion, the Court stated that ". . . the Organization must be deemed to have those powers which, though not expressly provided for in the Charter, are conferred upon it by necessary implication as being essential to the per- formance of its duties." 30 The question as to the ability of international organizations to enter into treaties is still not fully settled, and the Vienna Convention makes no at- tempt to resolve this issue. However, Article 5 of the Con- vention provides that it applies to ". . . any treaty which is the constituent instrument of an international organi- zation and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization." Moreover, Article 3 states that the fact that the Convention does not apply to international agree- ments between states and other subjects of international law will not affect the legal force of such agreements and will not prevent the application to these agreements of the rules of the Convention to which they would be subjected in the Convention's absence; i.e., customary treaty law. 31
b. States. The Vienna Convention also does not deal expressly with the issue of the capacity of states within a federal system to enter into treaties, leaving this question to existing law. Essentially, such capacity depends initially upon the constitutional law of the state in question. Some constituent states, such as those of the Federal Republic of Germany and Switzerland, may conclude treaties among themselves without the consent of the government. 32 Some, like those of the Soviet Union, are recognized as subjects of international law by the Constitution and are permitted to become members of the U.N. and parties to multilateral international agreements. 33 Others, like the
28. Some 20percent of the multilateral treaties new in force include international organizations as parties. See S. Rosenne, The Law of Treaties:A Guide to the Legislative Hhtory ofthe Vienna Convention 105
(1 970).
29.
119491 I.C.J. 174.
30.
Id. at 179.
I. Oppenheim, supra, note 8 at 176-77. 31.
The U.N. General Assembly, by resolution on November 12, 1969,recommended that the International Law Commission continue its study on relations between states and international organizations, in conjunction with the related issues of state succession and respon- sibility, and prepare a draft of suitable articles to supplement the Vie~a Convention.
32.
33. See V. Aspaturian, The Union Republics in Soviet Diplomacy 40, 173-77 (1960); M. Whiternan, Digest of IntermtionalLuw 406-13 (1963).
United States, are forbidden to enter into "any agreement or compact" without the approval of Congress. 34 If a state in a federal union concludes a treaty in violation of its municipal law, its legitimacy under international jurispru- dence is uncertain. If another state reasonably relies on the state's representations, an estoppel might arise, as when a head of state falsely represents that he has constitutional authority to bind his state. 35
c. Other entities. Protectorate or dependent states nor- mally lack the capacity to enter into international agree- ments. However, the terms of the protectorate may admit an international capacity to make treaties, as did that of France over Algeria and Tunisia after World War 11. 36 Where territories have not yet achieved statehood, as with colonial states engaged in the process of decolonization or in wars of "national liberation," international capacity is sometimes recognized by other states. 37 Self-goveming ter- ritories are generally considered to have less treaty-making capacity than protected states, although realistically,
. . . blerhaps the only limitation on the possession and exercise of treaty-making capacity by a political subdivision is lack of consent to the exercise of such capacity by the dominant (or 'sovereign') entity to which the subdivision is subordinate. 3s
d.
Private entities. There is an increasing trend for cor- porations, both public and private, to enter into interna- tional agreements. The Island of Palmas Arbitration case of 1928 involved a challenge to the validity of political contracts between the Dutch East India Company and na- tive rulers. The arbitrator held that the company's acts should be "assimilated to acts of the Netherlands," and thus it was "entitled to create situations recognized by in- ternational law." 39 However, the fact that the company was entitled, as agent for a state, to enter into such agree- ments, did not necessarily determine its capacity to make treaties on its own.
e.
The capacity of individuals to make international agreements is doubtful, although the peculiar interests of individuals in agreements involving, for example, human rights or individual property rights, might properly lead to recognition of their capacity to enter such agreements.
See Friedmann, supra, note 23 at 310. 5G.Hackworth, supra, note 34 at 153. 34.
U.S. Const., Art. I, 5 10;Art.11,s 3.U.S. states do sometimes enter into agreement with foreign states, such as agreements with the bordering states of Canada or Mexico concerning joint construction or maintenance of international highways or bridges. See Friedmann, supra, note 23 at 309.Although Congress has generally approved these agreements, there have been cases in which sanction was withheld on the ground that the proposed agreements would infringe federal treaty making powers. See e.g., 5 G. Hackworth, Digest of International Law 24-5 (1940) (hereinafter cited as G. Hackworth).
35.
See Legal Status of Eastern Greenland Case Denmark v. Nor- way), [I9331P.C.I.J., ser. Am, No. 53.
36.
37.
3s. Lissitzyn, @forts to Codify or Restate the Law of Treaties, 62 Colum. L. Rev. 1166, 1183 (1962).
39. Island of Palmas Case (United States v. The Netherlands), 2
U.N.R.I.A.A. 829 (1928).
Pam 27-161-1
Section 111. THE CONCLUSION OF INTERNATIONAL AGREEMENTS
8-6. Formal Requirements. a. Traditional methods. The
traditional procedure for the conclusion of an international
agreement was for the parties to record their common in-
tention, arrived at after negotiation through diplomatic or
other channels or at a conference of interested states, in a
single formal instrument. This is still the normal
procedure for those agreements, especially multilateral ar-
rangements, that regulate matters of political or economic
importance. One of the conspicuous modern develop-
ments in treaty-making procedure, however, has been the
rapid increase in the number and frequency of agreements
recorded in simplified form. Probably a majority of the
agreements currently concluded are effected by the simple
exchange of diplomatic notes recording the terms of the
proposed agreement and the consent of each state con-
cerned to be bound thereby. The chief advantages of
agreements effected by an exchange of notes are the speed
with which they may be concluded, as we1 as the
possibility that under the law of some states, legislative ap-
proval may be unnecesary. 40 A treaty relationship may
also be created by indirect manifestations of consent, as
when states consent to the compulsory jurisdiction of the
International Court of Justice by means of unilateral
declarations deposited with common reference to Article
36(2) of the Court's statute. The exchange or deposit of
notes verbales may also give rise to a treaty relationship.
b.
Oral agreements. The validity of oral agreements is widely admitted, whether they are later reduced to writing or not. Although Article 2 of the Convention requires that treaties be "in written form," Article 3 provides that the fact that a treaty is not in written form shall not affect the legal force of the agreement. Thus,under existing interna- tional law, there is nothing to prevent an international agreement from beii made orally, although difticulties of proof make it a less desirable method. In the Eastern Greenland Case, the Norwegian Miter for Foreign Affairs orally informed a Danish minister that the Nor- wegian government ". . . would not make any mculties in settlement of this question. . .." in reply to Sweden's request for recognition of Denmark's claim of sovereignty over Greenland. The Permanent Court of International Justice found the oral statement to be unconditional and definitive, therefore bindii upon Norway. 41
c.
The generally favored view is that the written instru-ment alone should be regarded as "the treaty." Thus, akin to the "parole evidence" rule in municipal law, working papers and other evidence of the drafters' intent may not be used to modifl the clear words of the written document. 42 However, when there are ambiguities in a
40. Weinstein, Exchange of Noes, Brit. Y.B. In17 L. 205 (1952).
Eastern Greenland Case, supra note 35. 41.
42.
See Haward Research, supra, note 19; Jurisdiction of the Com-mission of the Oder 119291 P.C.I.J., ser. A, No. 23, at 42. But see H. Lauterpacht, The Development of Inter~tional Law by the ~nternatio~l Court 136-37 (1958).
treaty, working papers and other guides to interpretation may be consulted. 43 8-7. Authority to Negotiate and Sign. a. Historical. At a time when travel and communications were slower and less dependable than they are today, states often found it convenient to furnish their plenipotentiaries with docu- ments known as "full powers" for the purpose of ac- crediting them as competent to negotiate and express the state's final consent to be bound by a treaty. As years passed and communications improved, such an instru-ment came to signify only authority to negotiate and to authenticate the test of a treaty-not authority to bind the state. Today, there are important exceptions to the re- quirement of full powers. Certain classes of international agreements, e.g., those effected by an informal exchange of notes or in some other manner not requiring ratifica- tion, are usually concluded in practice without a demand for the production by each plenipotentiary of an instru-ment of full powers. 44
b. Modem practice. Article 7 of the Vienna Conven- tion governs the authority of a representative to adopt a treaty on behalf of his state. A person is considered as rep-resenting a state if:
(a) he produces appropriate full powers; or (b) it appears from the prac- tice of the states concerned or from other circumstances that their inten- tion was to consider that person as representing the state for such pur- poses and to dispense with full powers."
Certain officials need not produce evidence of their full powers: Heads of State and of Government and Ministers for Foreign Affairs for acts concluding a treaty; heads of diplomatic missions for adopting the text of a treaty with the state to which they are accredited; and representatives accredited by states to an international conference or organization for adopting the text of a treaty in that. con- ference or organization. 45
8-8. Consent to Be Bound by an International Agree-ment. a. Generally. The text of a treaty is considered to be adopted upon the consent of all states participating in its drafting or, at an international conference, by the vote of two-thirds of the states present and voting, unless, by the same mqjority, they shall decide to apply a different rule. 46
Consent may be expressed by signature, exchange of in-struments constituting a treaty, ratification, acceptance, approval or accession, or any other means if the treaty so provides or it is agreed upon by the states involved. 47 In-itialing of a test is a sufficient signature if so agreed, and the signature ad referendum of a treaty by a representa- tive, if confied by his state, constitutes a full sig-
43.
See H. Briggs, The Law of Nations 838 (1952).
44.
See Blk, Treaw-Making Power 49-50 (1960).
45.
Vienna Convention, Art. 7(2).
46.
Id. at Art. 9.
47.
Id. at Arts. 11-15.
Pam 27-161-1
nature. 48 Once a state has signed or exchanged instru- ments subject to ratiiication, acceptance, or approval, or has expressed its consent to be bound pending entry into force of the treaty, it must refiain from acts which would defeat the object and purpose of the agreement. 49
b. Increasing numbers of treaties provide for "accep- tance" or "approval" as a substitute for one or more of the other procedures-signature, ratification, acces- sion,-by which a state consents to be bound by a multilateral treaty. The significance of a provision requir- ing "acceptance" or "approval" is that the latter terms imply less formality than "ratification." Additionally, they may allow a government
. . . a further opportunity to examine the treaty when it is not necessarily obliged to submit it to the State's constitutional procedure for obtaining ratification.50
c.
"Ratifcation" is the process by which the Head of State asserts that this is the agreement to which the State assents. As previously noted, prior to the modem period of rapid communication and travel, representatives of the Head of State, "plenipotentiaries," frequently signed treaties without the final concurrence of their Heads of State, thereafter going home and obtaining ratification. Today, this is generally not necessary. However, further steps at home may be required when the treaty-making power is not possessed solely by the executive oficer. In the U.S., for example, the Senate's "advice and consent" must be obtained before the President can ratify a treaty.
d.
Deposit of instruments of consent. The initial step after ratification is usually the deposit of the ratifcation at a predesignated depositary. Prior to the Convention, a state was not considered bound by an agreement until deposit was made. 51 After the creation of the League of Nations, registration of treaties in the archives of desig- nated agencies or organizations assumed special legal im-portance. Under League practice, a treaty was not regarded as binding unless so registered. 52 The United Nations Charter adopted a less drastic formula, however, forbidding a party to an unregistered treaty from invoking it before any organ of the U.N. 53 The Vienna Convention provides that, unless otherwise stated in a treaty, instru- ments of ramcation, acceptance, approval, or accession establish the consent of a state to be bound upon their ex- change between the contracting states, their deposit with the depositary, or their notification to the contracting
2 Y.B.Int'l L.C.198 (1966). Id. at Art. 18. Id. at .Art. 12. 48.
49.
50.
51.
An example of this fact can be seen in a U.S. Department of State decision that a treaty approved by the Senate, but never deposited as required in the American Embassy in Parisdue to the intervention of World War I, was not completed and thus could be revoked by the President without action by the Senate. 5 G. Hackworth, supra, note 14 at 54.
U.N. charter, Art. 102. 52.
See Hudson, Legal meet of Unregistered Treaties in Practice under am'cle 18 of the Covenant, 28 Am J. In17 L. 564 (1934).
53.
states or depositary. 54
8-9. Entry into Force of an International Agreement. a.
Modern international agreements, especially general multilateral conventions, commonly provide, in some detail, for the time and manner in which the agreement shall enter into force for those states which have con- sented to be bound. Such an agreement typically becomes effective when a specified number or proportion of states has deposited ratification or transmitted acts of approval or acceptance. 55 In the absence of this form of arrange- ment, the Convention provides that a treaty becomes effective as soon as consent to be bound has been estab- lished for a1 of the negotiating states. 56 If a state's con- sent to be bound is established on a date after the treaty has come into force, it becomes effective for that state on that date. 57
b.
The provisions of a treaty regulating matters neces- sarily arising before the entry into force of the treaty, such as authentication of text and the functions of the deposi- tary, apply from the time of the adoption of its text. As previously stated, 58 signature or initialing of the text can be the agreed-upon method of adoption, and thus these kindsof provisions would apply fiom the time of signature if this were the agreed-upon method of adoption.
c.
A treaty may be applied provisionally, pending its entry into force, if this is provided for in the treaty or agreed upon by the negotiating states, but provisional ap- plication is terminated if a state notifies the other states of its intention not to become a party. 59 8-10. Depositaries. In keeping with Articles 76 and 77 of the Convention, multilateral treaties often provide that the government of a state or an organ of an international organization shall act as the depositary of the treaty. Such depositaries are charged with a number of tasksrelating to the -tion of the treaty, many of which must be per-formed before the treaty has entered into force. Ratifica- tions and other instruments of acceptance or approval, for example, are typically communicated to the depositary, which then informs the contracting states of the deposit of such instruments and their effect on the treaty's status. 60
8-11. Reservations to International Agreements. a.
General. A reservation is
. . . a unilateral statement, however phrased or named, made by a State, when signing, ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or to vary the legal effect of certain provi-sions of the treaty in their application to that State. 61
In the context of bilateral agreements, a reservation is closely analogous to a counteroffer by the reserving state,
S4. Vienna Convention, Art. 16.
Id. at Art. 24(3).
$8. See para 8-9a, supra.
Vienna Convention, Art. 24(1) and (2). 55.
See, e.g., the Provisions collected in Office of Legal Affairs, Handbook of Eial Clauses 21-38, U.N. Doc.ST/LEG/6 (1957).
56.
57.
59.
Vienna Convention, Art. 25.
60.
Vienna Convention, Arts. 76-78.
61.
Id. at Art. 2(d).
Pam 27-161-1
and the legal situation is clear as to whether the reserva- tion is accepted or rejected by the other state. 62The most dficult problems concerning reservations, however, have arisen when one or more of the parties to a multilateral treaty objects to another state's attempt to become a party subject to one or more reservations. With the increased use of multilateral treaties in the 20th cen- tury, states have sometimes found themselves in essential agreement on a treaty, but in disagreement on particular provisions. This results from the fact that multilateral treaties are often the product of a complex negotiation process in which the views of all parties may not be ac- commodated. The ratification process can also encourage the imposition of reservations, particularly when, as in the U.S., the legislative branch has a role in ratification. A leg- islature may take a "second look" at a treaty entered into by the executive and refuse to give its consent to certain provisions.
b. The traditional rule in international law was that a reservation was possible only if all parties to a treaty ac- cepted it. 63 However, in 1932 the Pan American Union adopted a modified rule as to reservations. The Dominican Republic had entered reservations to a nurn- ber of provisions in a Pan American Treaty on Consuls. Some parties claimed that this amounted to a rejection of the treaty. Others found no objection to it, contending that the power to make reservations was inherent in sovereignty. The governing board of the Union adopted a resolution providing that a treaty was to be considered in force in the form in which it was signed as between the states which ratified it without reservations; in force as modified by the reservations between states which made reservations and those which accepted them; and not in force between a state which made reservations and those which did not accept them. 64 In 1951, the International Court of Justice issued an Advisory Opinion concerning reservations made by states to the 1948 Genocide Con- vention. After some 43 states had signed the Convention, a dispute arose among the parties regarding certain reser- vations made by some of the states. The Secretary- General asked the General Assembly for guidance, and this body referred the matter to the I.C.J. The Court declared that ". . . a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded asbeiia party to the Convention if the reserva- tion is compatible with the object and purpose of the Con- vention. "(Emphasis added.) It further stated that ". . . ifa party to the Convention objects to a reservation which is considered to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserv-
I. Brownlie, Principles of Public Inrer~tional Law (1966). 62.
Restatement, Second, Foreign Relations Law of the United States, 5 126 (1965) [hereinafter cited as Restatement, Second.
63.
64. Reservations to Multilateral Conventions, Report of the Secre- tary-General, U.N. Doc. -4,11372, p. 11 (1950).
ing State is not a party to the Convention." 65 Finally, it advised that an objection to a reservation made by a sig- natory state which has not yet ratified the Convention can prevent the reserving state from being regarded as a party if the reservation is not compatible with the object and purpose of the Convention, but that until ratification by the reserving state, the objection merely serves as notice of its attitude.
c. The Vienna Convention follows essentially the Inter- national Court's advisory opinion. Articles 19 and 20 es- tablish the following rules:
(1)
A state may make a reservation unless the tieaty either prohibits it or provides that only spe~%ed reserva- tions, which do not include this reservation, may be made. If a reservation is expressly authorized by a treaty, subsequent acceptance by the other contracting states is not required unless the treaty so provides.
(2)
If the treaty neither prohibits reservations nor provides for smed reservations which do not include this reservation, a state may make a reservation unless it is incompatible with the object and purpose of the treaty.
(3)
When the treaty is a constituent instrument of an international organization, a reservation must be accepted by the competent organ of that organization unless the treaty provides otherwise.
(4)
In cases not falling under the prdi para- graphs, and unless the treaty otherwise provides:
(a)
Acceptance by another contracting state of a reservation constitutes the reserving state a party to the treaty in relation to that other state. Acceptance is assumed if no objection is raised by the end of twelve months after a state was notified of the reservation, or the date on which it expressed its consent to be bound by the treaty, whichever is later.
(b)
Objection by another contracting state to a reservation does not preclude the entry into force of the treaty unless a contrary intention is definitely expressed by the objecting state.
(c)
An act expressing a state's consent to be bound by the treaty and containing a reservation is effec- tive as soon as at least one other contracting state has ac- cepted the reservation.
d.
Article 21 provides that a reservation established in accordance with Articles 19 and 20 modifies the provi- sions of the treaty to which the reservation relates as be- tween the reserving state and other parties. It does not modifL the provisions of the treaty for the other parties to the treaty between themselves. When an objecting state does not oppose the entry into force of a treaty between it- self and the reserving state, the provisions to which the reservation relates do not apply to the extent of the reser- vation as between the two states. It is not expressly stated in the Convention whether an objecting state may declare
6s. Advisory Opinion on Reservations to the Convention on Genocide, (19511 I.C.J. 15.
Pam 27-161-1
that its objection precludes treaty relations only as to a part of the treaty. One authority believes this is possible, however, on the ground that ". . . there would appear to be no reason why an objection to a reservation may not produce this effect, provided the treaty is of such a nature that separability of its provisions is a practical proposi- tion." 66
e. Articles 22 and 23 provide procedures for making and withdrawing reservations, acceptances, and objec- tions. A reservation or objection may be withdrawn at any time and must be in writing. Withdrawal does not require consent of a state which has accepted it, and becomes operative when notice of it is received by the other con- tracting state. However, withdrawal of an objection to a reservation becomes operative only when notice of it is
Section IV. THE VALIDITY AND EFFECT 8-12. The Binding Force of International Agreements. An international agreement is basically a contract between states, and elements of obligation akin to those found in municipal contract law are present. However, as discussed in Part I, a treaty is nota contract in the common law sense of an agreement requiring consideration. It is the as-sent to be bound and not reciprocity or quid pro quo that obligates the parties. As one writer has observed, ". . . it is merely a question of fact whether, in a concrete in- stance, a subject of international law has made a declara- tion of intention, which in the circumstances, canbe con- sidered by other international persons or by international organs as meant to produce legal consequences in interna- tional law." 69 8-13. Pacta Sunt Servanda. a. Legal ordering could noi be achieved in international law if states were free to dis-regard their treaty agreements. However, due to the ab- sence deffective enforcement mechanisms within the in- ternational community, there has been some doubt as to the scope and effectiveness of the doctrine of pacta sunt servanda (treaties are to be observed). It has been said by some to require that agreements be performed "in good faith," while others, in reliance upon a differing in- terpretation of the Latin, maintain that the doctrine re- quires that performance must be "with utmost fidelity." 70 Article 26 of the Vienna Convention adopted the former interpretation, stating: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." Some delegates had wanted this arti- cle to state that only "valid treaties in force" should be biding, while others wanted to confiie it to "treaties in force in conformity with the Convention." This latter ap- proach, while perhaps desirable, would have raised a problem of retroactivity. 71 The Convention thus took a middle position, neither requiring a stricter standard of performance than good faith nor limiting the doctrine to absolute requirements of "in force" and "in conformity with the Convention." It also provides smcally that ". . . a party may not invoke the provisions of it~intemal
received by the reserving state. If a reservation was made
when signing the treaty subject to ratification, acceptance,
or approval, it must be formally confied by the reserv-
ing state when expressing its consent to be bound and
shall be considered as having been made on the date of its
confiiation.
Soviet doctrine has favored a liberal reservations rule,
holding that ". . .a signatory to a multilateral treaty has an
undeniable right to make such reservations to the treaty as
it deems necessary, and that this right, which stems from
the sovereignty of a state, can be limited only by the state
itself." 67 Notwithstanding this fact, Soviet writers have
expressed their approval of the I.C.J.'s advisory opinion
concerning the Genocide Convention. 68
OF INTERNATIONAL AGREEMENTS
law as justification for its failure to perform a treaty." 72
b. One of the most troubling aspects of the pacta sunt servanda doctrine concerns the period of time a treaty is to remain in force. A countervailing doctrine, Rebus sic stantibus (basically, change of circumstances), permits noncompliance with a treaty when a change of circum- stances has been so extreme as to violate the intentions of the parties. This will be discussed in the section of the chapter dealing with termination and modification of agreements. 73
8-14. Validity and Invalidity of International Agree-
ments. a. Agreements Concluded in Violation of Munici-
pal Law. Disagreement has existed in the past as to
whether a state could invalidate its consent to a treaty on
the grounds that it was given in violation of the state's
own municipal law. 74 Article 46 of the Vienna Conven-
tion states that
. . . a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
A violation is said to be "manifest" if it would be objec- tively evident to a negotiating state acting in accordance with normal practice and in good faith. Article 47 of the Convention further stipulates that if the authority of a rep- resentative to express the consent of his state is subject to
66. I. Sinclair, The Vienna Convention on the Law of ~reaties 49
(1973) [hereinafter cited as Siclair].
67. J. Triska and R. Slusser, The Theory, Law, and Policy of Soviet Treaties 84 (1962).
68. Id. at 87-88.
69.
G. Schwanenberger, A Manual of International Law 224 (1960).
70.
N. Leech, C. Oliver & J. Sweenty, The International Legal System: Cases and Materials 93 1-32 (1973).
71. Id. at 932.
72. Vienna Convention, art. 27.
73. Iqfra, para.
74. Sinclair, supra, note 66 at 22-23; 30-31; 64; 89-91.
a specific restriction, his failure to observe that restriction may not be invoked to invalidate consent unless it was notified to the other negotiating states prior to his express- ing consent.
b. Mistake, Fraud, and Illegality. Nearly all the recorded instances of treaties concluded with reference to an assumed state of facts later discovered to be materially different or nonexistent have concerned geographical er- rors, especially errors in maps. 75 In instances of error, Article 48 of the Convention provides that a state may only invoke error in a treaty to invalidate its consent if the error relates to a fact or situation which was assumed by it to exist at the time the treaty was concluded and which formed an essential basis of its consent to be bound. Error will not invalidate consent, however, if the state con- tributed to it by its own conduct or if the circumstances were such as to put it on notice of a possible error. Errors relating only to the wording of the text of the treaty do not affect its validity and are dealt with by Article 79 which provides procedures for notifying other states of errors in text and for their correction.
(1)
No instances of the actual use of fraud in the conclusion of treaties are known, nor are there any known cases in which one of the parties to a treaty alleged fraud on the part of the others as a basis for termination of the agreement. 76 Article 49 of the Convention permits a state to invoke fraud as invalidating its consent if it was induced to conclude the treaty by the fraudulent conduct of another negotiating state.
(2)
Although examples of corruption of state repre- sentatives are said also to be nonexistent, 77 Article SO provides that this cause may be invoked to invalidate con- sent. An objection by several states regarding the vague- ness of this standard did not prevent its adoption. 78 8-15. Jus Cogens. Treaties normally supersede, as be- tween the parties, conflicting rules of international law. However, just as the municipal law of many states declares that certain contracts are void as contrary to public policy, the question has often been raised as to whether there exists in international law rules having the character of jus cogens, i.e., norms with which all treaties must be consistent. In dealing with this issue, Article 53 of the Convention declares a treaty to be void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law Gus cogens). This article was the subject of considerable debate at the conference, earlier drafts of the article being criticized as lacking norms by whichjus cogens could be identifed. 79 Eastern European
Sinclair, supra note 66 at 126-27. [I9661 I.L.C. Reports 19, 94. 2 Y.B.Int'l L.C. 245 (1966). (19661 I.L.C. Reports 73. 75.
Reports of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session (1966), 21 U.N. GAOR Supp. 9 at 43-44, U.N. Doc; A/6309/Iiev. 1 (1966) [hereinafter cited as [I9661 I.L.C. Reports]; cf. Cukwurah, The Setrle-ment of Boundary Disputes in International Low 181 (1967).
76.
77.
78.
79.
delegations characterized it in such diverse and political terms as
. . . principles of non-aggression and non-interference in the internal affairs of States, sovereign equality, national self-determination, the maintenance of peace among peoples, the struggle against colonid domination and the sovereignty of States. 80
A limiting definition was finally adopted, defining a
peremptory norm as ". .. a norm accepted and recog-
nized by the international community of states as a whole
as a norm from which no derogation is permitted and
which can be m&ed only by a subsequent norm of
general international law having the same character." 81
8-16. Coercion and Duress. Under traditional interna- tional law doctrine, consent to a treaty could not be invali-dated on the basis of coercion of a state or its representa- tive. 82 However, the prohibition against the threat or use of force in intemational relations contained in the Cove- nant of the League of Nations, the Pact of Paris, and Arti- cle 2(4) of the U.N. Charter and the post-World War 11 war crimes trials for conduct of aggressive war have made coercion an improper method by which to acquire consent to a treaty under international law. Article 51 of the Con- vention provides that coercion of a representative through acts or threats against him which procured a state's con- sent to a treaty voids such consent. Article 52 has a much broader application, providing that
. . . a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
An amendment proposed by nineteen Afro-Asian and Latin American states which defined "force" as including "economic or political pressure" was withdrawn after in- tense opposition by many Western delegations. 83 The reference to "the principles of international law embodied in" the U.N. Charter was said by its drafters ". . . to specify the time element for the effect of the prohibition of resort to the threat or use of force," that is, at least from the date of the U.N. Charter. 84 Thus,although Article 4 provides that the Convention applies only to treaties con- cluded after entry into force of the Convention, the con- tention has been made that it would be possible to invoke the rule stated in Article 52 with respect to a treaty con- cluded since the establishment of the modem law prohibiting the threat or use of force. 85
8-17. Registration and Effect of Nonregistra-tion. Article 102 of the U.N. Charter requires that every treaty and international agreement entered into by any
U.N. member following the entry into force of the Charter must be registered as soon as possible with the
80.
Id. at 90.
81.
Id. at 91.
82.
[I9661 I.L.C. Reports 96.
83.
Id. at 75.
84.
Sinchir, supra, note 66 at-98.
8s. Id. at 100.
U.N.
Secretariat. 86 If an agreement is not so registered, no party to the agreement may invoke it before any organ of the U.N. Article 80 of the Convention simply reaffi the obligation on the part of states party to a treaty to transmit it to the U.N. Secretariat for registration and publication. 8-18. International Agreements in Internal Law. a. Approaches toward the status of treaties under internal law. Although the Vienna Convention provides that ". . . a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states," a treaty may not necessarily possess legal effect under a state's own municipal law. States take different approaches regarding the status of treaties under internal law. The two principal positions are incorporation (or adoption), an approach holding that treaties automat- ically become part of internal law without a s@~c act of acceptance, and "transformation," a theory maintaining that treaties are only part of internal law insofar as they are accepted by specific acts of the legislature and/or courts. 87 The approach taken may have an impact upon the likeli- hood of compliance with and implementation of a treaty. Moreover, it may also affect a state's interpretation of treaties, as states adhering to the transformation theory tend to maintain that once a treaty has been transformed into municipal law, its interpretation and application rest with municipal courts. 88
b.
The "transformation" approach followed in the United Kingdom makes a functional distinction between treaties and customary international jurisprudence. It has long been held in Great Britain that customary interna- tional law is part of its internal law, as stated in the 1905 case of West Rand Mining Co. v. The King: whatever has received the common consent of civilized nations must
have received that assent of our country, and that to which we have assented along with other nations in general may properly be called in- ternational law, and as such will be acknowledged and applied by our municipal tribunals to decide questions to which doctrines of interna- tional law may be relevant. 89
However, the making of treaties is a prerogative power of the Executive in England, to be exercised without the concurrence of Parliament (in contrast to the U.S. where the President must obtain the advice and consent of the Senate). In order to prevent executive tyranny, treaties are not self-executing and do not become part of munici- pal law until enabling legislation is passed by Parlia- ment. 90
c. Incorporation. By contrast, the French Constitution calls for the direct "incorporation" of treaties into French municipal law and provides that they can only be modified
See J.Brieriy, supra, note 21 at 91-93. See I. Brownlie, supra, note 63 at 106. 86.
See Brandon, Ana&sis of the Terms 'Treaw' and 'International Agreemenu'for Purposes of Registration Under Article I02 of the United Nations Charter, 47 Am J. Int'l L. 49 (1953).
87.
88.
69. [I9051 2 K.B. 391.
90. J. Brier&, supra, note 21 at 89-90.
or abrogated by an act of equal authority, i.e., an interna- tional act. The Constitution also recognizes the superior authority of treaties over conflicting legislation, prior or subsequent. 91 Another section makes the superiority of a treaty dependent on its application by the other party, however, thus importing an element of reciprocity into the incorporation process. 8-19. Agreement-Making Power in the United States. a. Generally.
UNITED STATES CONSTITUTION
Article I. Section 10
No State shall enter into any Treaty, Alliance or Confederations. . . . No State shall, without the Consent of the Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power.
Article II, Section 2
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur. . . .
Article VI
ThisConstitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary not- withstanding.
"Ratification" of treaties is not mentioned in the Con- stitution. In practice, treaties are ratified by the President after the Senate has given its advice and consent. It is in-correct, therefore, to refer to the action of the Senate as "ratification." The President is under no duty to proceed with the ratification, or exchange of ratifications, of a treaty after the Senate has given its advice and consent, since the latter is not a binding directive. As noted above, Article VI, paragraph 2 of the Constitution provides that treaties made under the authority of the U.S., together with the Constitution and laws of the U.S. made in pur- suance thereof, ". . . shall be the supreme Law of the Land." Thus, treaties are automatically a part of Ameri- can municipal law. No acts of "transformation" by the courts or Congress are necessary. Notwithstanding this fact, however, there exist several basic questions regard- ing the agreement-making power in the United States.
b. What is the status of a treaty that conflicts with a pro- vision of the Constitution? In the leading case in which this issue was raised, the Supreme Court gave recognition to a very broad treaty making power.
MISSOURI v. HOLLAND
Supreme Court of the United States, 1920
252 U.S. 416,40S.Ct. 382, 64 L.Ed.641
On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed many parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specXed closed seasons and protection in other forms, and agreed
91. K.Hollonuy, Modern Trends in Treaw Law 255 (1967).
that the two powers would take or propose to their lawmaking bodies
that necessary measures for carrying the treaty out. 39 Stat. 1702. The
above mentioned act of July 3,1918, entitled an act to give effect to the
convention, prohibited the killing, capturing or selling any of the migrat-
ing birds included in the terms of the treaty except as permitted by
regulations compatible with those terms, to be made by the Secretary of
Agriculture. Regulations were proclaimed on July 31, and October 25,
1918. 40 Stat. 1812, 1863 . . . mhe question raised is the general one
whether the treaty and statute are void as an interference with the rights
resewed to the States.
To answer this question it is not enough to refer to the Tenth
Amendment, reserving the powers not delegated to the United States,
because by Article 2, Section 2, the power to make treaties is delegated
expressly, and by Article 6 treaties made under the authority of the
United States, along with the Constitution and laws of the United States
made in pursuance thereof, are declared the supreme law of the land. If
the treaty is valid there can be no dispute about the validity of the statute
under Article 1, Section 8, as a necessary and proper means to execute
the power of the Government. The language of the Constitution as to
the supremacy of treaties beii general, the question before us is nar-
rowed to an inquiry into the ground upon which the present supposed
exception is placed.
It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a tfeaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 F.
154. United States v. McCullagh, 221 F. 288. Those decisions were sup- ported by arguments that migratory buds were owned by the States in their sovereign capacity for the benefit of their people, and that under cases like Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, this control wasone that Congress had no power to displace. The same argument is supposed to apply now with equal force.
Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitu- tion, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualif~cations to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not likely to be assumed that, in matters requiring national act, "a power which must belong to and somewhere reside in every civilized government" is not to be found. . . .
The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbid- den by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in decid- ingwhat the amendment has resewed.
The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory buds, an assertion that is em- bodied in statute. .. .If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.
As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support Missouri's claim. . . . No doubt the great body of private rela- tions usually fall within the control of the State, but a treaty may over- ride its power.
Here a national interest of very nearly the fmt magnitude is involved; It can be protected only by national action in concert with that of ariother power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by whiie a food supply is cut off and the protectors of our forests and our crops are destroyed; It is not sufficient to rely upon the States. The reliance is vain, and were it othenvise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. .. .
No treaty has ever. been held unconstitutional by the Supreme Court. 92 The Court has, however, in compan-ion cases greatly affecting certain aspects of military justice, emphatically declared that both treaties and laws enacted pursuant to them mustcomply with the provision- ing of the Constitution.
REID v. COVERT
KINSELLA v. KRUEGER
Supreme Court of the United States, 1957
354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148
[Two wives of American servicemen stationed in the United
Kingdom and Japan respectively had been convicted by United States'
military courts of the murder of their husbands. The Supreme Court
held that civilian dependents accompanying members of the armed
forces overseas in time of peace could not be constitutionally tried by
military courts.]
BLACK,J. .. . At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Bri- tain by American servicemen or their dependents. For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband. Even though a court-martial does not give an accused trial by jury and other Bii of Rights protections, the Government contends that article 2(11) of UCMJ, insofar as it pro- vides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to cany out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Con- stitution.
Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the land; .. . There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accom- panied the drafting and ratification of the Constitution which even sug- gests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the
92. But c$, Byrd, Treaties and Executive Agreements in The United States (1960).
Constitution, as well as those who were responsible for the Bii of Rights-let alone alien to ow entire constitutional history and tradi-
) tion-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitu- tional prohibitions. In effect, such construction would permit arnend- ment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be rimed by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitu- tion over a treaty. .. . This Court has also repeatedly taken the position that an Act of Con- gress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsis-tent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be ovenid-den by a statute that must conform to that instrument. There is nothing in State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed.641,which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not incon- sistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier. In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert. .. .
c. One further aspect of the incorporation of treaties into American municipal law is the inherent limitation upon the subject matter of these agreements. Former Chief Justice Charles Evans Hughes stated in 1929 that the treaty-making power ". . . is to deal with Foreign na- tions with regard to matters of international concern . . ." and is not to be exercised ". . . with respect to matters that have no relation to international concerns." 93 The U.S. Department of State has recognized this limitation, stating in 195 5, "[Tlreaties are not to be used as a device for the purpose of effecting internal social changes or to try to cir- cumvent the constitutional procedures established in rela-tion to what are essentially matters of domestic con- cern." 94 Whether the Executive branch, acting through the State Department, has, in practice, recognized the constitutional limitations placed on the agreement-making power has been and continues to be a much debated issue. The following material will hopefully provide the reader with greater insight into the Executive agreement-making power.
8-20. The Executive Agreement-Making Power. a. Historical. Although Article 11, section 2, of the Constitu- tion limits the Presidential treaty-making power by requir- ing "the Advice and Consent of the Senate … provided two thirds of the Senators present concur," it does not
93.
Remarks of Charles Evans Hughes Before the American Society of International Law, [I9291Am. Soc. Int% Proc. 194.
94.
U.S. Dept. of State Circular No. 175 (1955), reprinted in 50 Am. J. Int? L. 784 (1956). For a discussion of thiscircular and its mean- ing, see Bidder, The Offie of the Legal Adviror, Department of S~te, 56 Am. J. Int'l L. 633, 651-653 (1962).
state that no other form of international agreement is per- missible. Thus, from the earliest days of the American Republic, Presidents have entered into agreements (which fall short of treaties) with foreign governments either on their own authority or upon the authority of an act of Congress passed by majority vote in each House of Congress. Materials of particular importance to the issue of executive agreements follow.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 5 117. Scope of International Agreements
(1)
The United States has the power under the Constitution to make an international agreement if
(a)
the matter is of international concern, and
(b)
the agreement does not contravene any of the limitations of the Constitution applicable to all powers of the United States. ,
8119. Scope of Executive Agreement Pursuant to Treaty
An international agreement made as an executive agreement pur- suant to a treaty to which the United States is a party may deal with any matter that satisfies the requirements indicated in 5117 and will carry out the purposes of the treaty.
5 120. Scope of Executive Agreement Authorized by Act of Congress An international agreement made by the United States as an execu- tive agreement authorized by an act of Congress may, subject to the limitations indicated in 5117deal with any matter that falls within any of the powers of the Congress arid the Resident under the Constitu- tion, even if the matter also falls within the treaty power.
Comment:
a. Scope of agreement. An executive agreement of the kind described in this Section must be within the powers that are delegated to the Con- gress and the Resident under the Constitution. When the President makes an executive agreement pursuant to congressional authorization, the scope of the agreement is limited by the scope of the collective powers of the Congress and of the President. The occasion for the use of executive agreements of thistype arisesfrom the Resident's position as the officer of the United States who is constitutionally authorized to con- duct foreign relations. The Congress may enact legislation which for its implementation requires an agreement with a foreign state. To carryout the legislation, the agreement with the foreign state must be concluded under the authority of the President.
Reporters' Nore:
. . . Since the treaty power is an independent power under the Con- stitution and is not limited by other delegated powers, it might be argued that it is more extensive than the expressly delegated powers of Congress. See 5118of the Restatement of this Subject. However, dele- gated powers of the Congress under the Constitution are so extensive and so broadly interpreted by the courts as to suggest that Congress, act- ing under such powers (including the "necessary and proper" clause of Article I, Section 8) can authorize the President to make an executive agreement relating to any matter of international concern.
5 121. Scope of Executive Agreement Pursuant to President's Con- stitutional Authority
An international agreement made by the United States as an execu- tive agreement without reference to a treaty or act of Congress may, subject to the limitations indicated in 5117,deal with any matter that under the Constitution falls within the independent powers of the President.
Comment:
a. General.The authority of the Resident to make executive agree- ments in the field of foreign relations is based on the following provi- sions of the Constitution:
"The executive Power shall be vested in a President of the United States of America." U.S. Const. art. 11, 51;
"The President shall be Commander in Chief of the Amy and
Navy. …" U.S. Const. art. 11, 52;
"He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties . . .;and he shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls. . . ." U.S. Const. art. 11, 52;
"[we shall take Care that the Laws be faithfully executed. …"
U.S. Const. art. 11, 53. These expressed powers afford the President a broad area in which to make international agreements. Under the "executive power," the Resident has authority to conduct the foreign relations of the United States; that power provides a broad constitutional basiifor the making of executive agreements.
UNITED STATES DEPARTMENT OF STATE
CIRCULAR NUMBER 175
Procedures
On July 24, 1974, the Department of State approved a
revised Circular 175 Procedure (Foreign Affairs Manual,
Volume 1 1, Chapter 700). Circular 175 provides internal
guidelines and information to be followed to facilitate the
application of orderly procedures in the negotiation, sig-
nature, publication, and registration of treaties and other
international agreements of the United States.
The revision was initially undertaken (1) to meet re- quests by members of the Senate Committee on Foreign Relations to clarify the guidelines to be considered in determining whether a particular intemational agreement should be concluded as a treaty to be brought into force with the advice and consent of the Senate or asan interna- tional agreement to be brought into force on some other basis; (2) to clarify and strengthen provisions on consulta- tion with the Congress; and (3) to call attention to the re- quirements of the Case Act, P.L. 92-403; 86 Stat. 619; 1
U.S.C. 112b (see the 1973 Digest, Ch. 5, 5, pp. 185-188) regarding the transmission of international agreements other than treatiee to the Congress. These changes are reflected in Sections 720.2c, 720.2h, 721, 722.3, and 724.
Another change, permitting public comment on the treaty or agreement being negotiated, signed or acceded to, is reflected in Sections 720.2d, 722.3c, and 723.1g.
The only other substantive change, which in effect is in- tended to clarify more precisely the intended effect of the Circular 175 Procedure, is the disclaimer included in Sec-tion 7 11. The revisions in Section 710, at the beginning of Section 720.2, at the beginning of Section 721.3 and Sec- tion 723.1, in Section 723.10 and i, in Section 723.4, and in Section 723.5 are in conformity with this change.
The other revisions, including all those in the Sections beginning with 723.6, are of a purely editorial character, involving some rearrangement of Sections to place them in a more logical order and restructuring of language for purposes of clarity.
The new Circular 175 follow, with one asterisk indicating a revision, and two asterisks indicating new material: *710 Purpose
a. The purpose of this chapter is to facilitate the application of orderly and uniform measures and procedures in the negotiation, signature, publication, and registration of treaties and other international agree- ments of the United States. It is also designed to facilitate the mainte- nance of complete and accurate records on treaties and agreements and the publication of authoritative information regarding them.
b. The chapter is not a catalog of all the essential guidelines or infor- mation pertaining to the making and application of international agree-ments. It is limited to guidelines or information necessary for general guidance.
*7 1 1 Disclaimer
This chapter is intended solely as a general outline of measures and procedures ordinarily followed which, it is recognized, cannot anticipate all circumstances or situations that may arise. Deviation or derogation from the provisions of this chapter will not invalidate actions taken by oficers nor affect the validity of negotiations engaged in or of treaties or other agreements concluded. 720 Negotiation and Signature
720.1 Circular 175Procedure
This subchapter is a d~cation of the substance of Department Cir- cular No. 175, December 13,1955, as amended, on the negotiation and signature of treaties and other international agreements. It may be re-ferred to for convenience and qntinuity as the "Circular 175 Procedure."
720.2 General Obectiws The objectives are:
a.
That the making of Treaties and other international agreements for the United States iscarried out within constitutional and other appropri- ate limits;
b.
That the objectives to be sought in the negotiation of particular -treaties and othe; international agreements are approved by the Secre- tary or an officer specifkally authorized by him for that purpose;
**c. That timely and appropriate consultation is had with congres- sional leaders and committees on treaties and other international agree- ments;
d. That where, in the opinion of the Secretary of State or his designee, the circumstances permit, the public be given an opportunity to comment on treaties and other international agreements; *
*e. That fm positions departing from authorized positions are not undertaken without the approval of the Legal Adviser and interested assistant secretaries or their deputies;
f. That the fmal texts developed are approved by the Legal Adviser and the interested assistant secretaries or their deputies and, when re- quired, brought a reasonable time before signature to the attention of the Secretary or an officer specifically designated by him for that pur-
pose;
g. That authorization to sign the fmal text is obtair\ad and appropriate arrangements for signature are made; ij :
**h. That there is compliance with the require-@ of Public Law 92-403 on the transmission of the texts of international agreements other than treaties to the Congress (see section 724); the law on the publication of treaties and other international agreements (see section 725); and treaty provisions on registration (see section 750.3-3). **
**721 Exercise of the International Agreement Power
721.1 Determination of ope of Agreement
The following considerations will be taken into account alongf dth other relevant factors in determining whether an international a- ment shall be dealt with by the United States as a treaty to be brought into force with the advice and consent of the Senate, or as an agreement to be brought into force on some other constitutional basii.
721.2 Constitutional Requirements $1
There are two procedures under the Constitution through which he United States becomes a party to international agreements. Those procedures and the constitutional parameters of each are:
a. Treaties \
International agreements (regardless of their title, designation, or form) whose entry into force with respect to the United States takes place only after the Senate has given its advice and consent are "treaties." The Resident, with the advice and consent of two-thirds of
Pam 27-161-1
the Senators present, may enter into an international agreement on any subject genuinely of concern in foreign relations, so long as the agree- ment does not contravene the United States Constitution; and
b. International Agreements Other Than Treaties
International agreements brought into force with respect to the United States on a constitutional basiis other than with the advice and consent of the Senate are "international agreements other than treaties." (The term "executive agreement" is appropriately reserved for agreements made solely on the basiis of the constitutional authority of the President.) There are three constitutional bases for international agreements other than treaties as set forth below. An international agreement may be concluded pursuant to one or more of these constitu- tional bases:
(1) Agreements Pursuant to Treaw
The Resident may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate, whose provisions constitute authorization for the agreement by the Executive without subsequent action by the Congress;
(2) Agreements Pursuant to Legislation
The Resident may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress; and
(3) Agreements Pursuant to the Constitutional Authoriw of the President
The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exer- cise of its constitutional authority. The constitutional sources of authority for the President to conclude international agreements in- clude:
(a)
The Resident's authority as Chief Executive to represent the nation in foreign affairs;
(b)
The President's authority to receive ambassadors and other public ministers;
(c)
The President's authority as "Commander-in-Chief ';and
(d)
The Resident's authority to "take care that the laws be faithfully executed."
721.3 Considerations for Selecting Among Constitutionally Authorized Procedures
In determining a question as to the procedure which should be followed for any particular international agreement, due consideration is given to the following factors along with those in section 721.2:
a. The extent to which the agreement involves commitments or risks
affecting the nation as a whole; ** **b. Whether the agreement is intended to affect State laws;
c.
Whether tK@agreement can be given effect without the enactment of subsequent legislation by the Congress;
d.
Past United States practice with respect to similar agreements;
e.
The preference of the Congresswith respect to a particular type of agreement;
f.
The degree of formality desired for an agreement;
g.
The proposed duration of the agreement, the need for prompt con- clusion of an agreement, and the desirabity of concluding a routine or short-term agreement; and
h.
The general international practice with respect to similar agree- ments.
In determining whether any international agreement should be brought into force as a treaty or asan international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or com- promise of the constitutional powers of the Senate, the Congress as a whole, or the Resident.
721.4 Questions as to 5pe of Agreement To Be Used; Consultation With Congress
a.
AU legal memorandums accompanying Circular 175 requests (see section 722.3e) will discuss thoroughly the bases for the type of agree-ment recommended.
b.
When there is any question whether an international agreement
should be concluded as a treaty or as an international agreement other than a treaty, the matter is brought to the attention of the Legal Adviser of the Department. If the Legal Adviser considers the question to be a serious one that may warrant congressional consultation, a memoran- dum will be transmitted to the Assistant Secretary for Congressional Relations and other officers concerned. Upon receiving their views on the subject, the Legal Adviser shall, if the matter has not been resolved, transmit a memorandum thereon to the Secretary for his decision. Ev- ery practicable effort will be made to identify such questions at the earliest possible date so that consultations may be completed in suffi- cient time to avoid last-minute consideration.
c. Consultations on such questions will be held with congressional leaders and committees as may be appropriate. Arrangements for such consultations shall be made by the Assistant Secretary for Congressional Relations and shall be held with the assistance of the Office of the Legal Adviser and such other offices as may be determined. Nothing in this section shall be taken as derogating from the requirement of appropriate consultations with the Congress in accordance with section 723.1e in connection with the initiation of, and developments during, negotia- tions for international agreements, particularly where the agreements are of special interest to the Congress. ** '722 Action Required in Negotiation andfor Signature of Treaties and
Agreements
722.1 Authorization Required to Underlake Negotiations
Negotiations of treaties, or other international agreements on matters of substance, or for their extensions or revision are not to be under-taken, nor any exploratory discussions undertaken with representatives of another government, until authorized in writing by the Secretary or an officer smcally authorized by him for that purpose. Notiflation of termination of any treaty or other international agreement on matters of
substance requires similar authorization
722.2 Scow of /;uihorization
Approval of a request for authorization to negotiate a treaty or other intemational agreement does not constitute advance approval of the text nor authorization to agree upon a date for signature or to sign the treaty or agreement. Authorization to agree upon a given date for, and to ,proceed with, signature must be specif~cally requested in writing as pro-vided in section 722.3. This applies to treaties and other agreements to be signed abroad as well as those to be signed at Washington. Special in- structions may be required, because of the special circumstances in- volved, with the respect to multilateral conventions or agreements to be
signed at international conferences.
.*722.3 Request for Authorization to Negotiate andlor Sign; Action Memorandum
a.
A request for authorization to negotiate and/or sign a treaty or other international agreement takes the form of an action memorandum addressed to the Secretary and cleared with the Office of the Legal Ad- viser, the Office of the Assistant Secretary for Congressional Relations, other appropriate bureaus, and any other agency (such as Defense, Commerce, etc.) which has primary responsibility or a substantial in-terest in the subject matter. It is submitted through the Executive Secre- tariat.
b.
The action memorandum may request one of the following: (1) authority to negotiate,(2) authority to sign, or (3) authority to negotiate and sign. The request in each instance states that any substantive changes in the draR text will be cleared with the Office of the Legal Ad- viser and other specifled regional andlor functional bureaus before defhtive agreement is reached. Drafting ofices consult closely with the Office of the Legal Adviser to insure that all legal requirements are met.
c.
The action memorandum indicates what arrangements are planned with respect to (1) congressional consultation, and (2) opportunity for public comment on the treaty or agreement beinegotiated, signed, or accedd to.
d.
Where it appears that there may be obstacles to the immediate public disclosure of the text upon its entry into force, the action memorandum shall include an explanation thereof (see sections 723.2 and 723.3).
Pam 27-161-1
e. The action memorandum is accompanied by (1) the draft, ifavaila- ble, of any agreement or other instrument intended to be negotiated,
(2) the text of any agreement and related exchange of notes, agreed minutes or other document to be signed, and (3) a memorandum of law prepared in the Office of the Legal Adviser. *
722.4 Separate Authorizations
*When authorization is sought with respect to a particular treaty or other agreement, either multilateral or bilateral, the action memoran- dum for this purpose outlines briefly and clearly the principal features of the proposed treaty or other agreement, indicates any special problems which may be encountered, and, if possible, the contemplated solutions of those problems. *
722.5 Bhnket Authorizations
'In general, blanket authorizations are appropriate only in those in- stances where, in carrying out or giving effect to provisions of law or policy decisions, a series of agreements of the same general type is con- templated; that is, a number of agreements to be negotiated according to a more or less standard formula (for example, Public Law 480 Agricultural Commodities Agreements; Educational Exchanges Agree- ments; Investment Guaranty Agreements; Weather Station Agree- ments, etc.) or a number of treaties to be negotiated according to a more or less standard formula (for example, consular conventions, extradition treaties, etc.). Each request for blanket authorization shall speclfy the office or officers to whom the authority is to be delegated. The basic pre- cepts under section 722.3 and 722.4 apply equally to requests for blanket authorizations.
722.6 Certificate on Foreign-Language Tat
In exceptional circumstances the Department can authorize the certification to be made at a post. a.
Before any treaty or other agreement containing a foreign-language text is laid before the Secretary (or any person authorized by the Secre- tary) for signature, either in the Department or at a post, a signed memorandum must be obtained from a responsible language officer.of the Department certifying that the foreign-language text and the English-language text are in conformity with each other and that both texts have the same meaning in all substantive respects. A similar cer- tification must be obtained for exchanges of notes that set forth the term of an agreement in two languages.
b.
722.7 Transmission of Texts to the Secrefary
The texts of treaties and other international agreements must be corn- pleted and approved in writing by all responsible officers concerned sufficiently in advance to give the Secretary, or the person to whom authority to approve the text had been delegated, adequate time before the date of signing to examine the text and dispose of any questions that
,arise. Posts must transmit the texts to the Department as expeditiously as feasible to assure adequate time for such consideration. Except as otherwise specifically authorized by the Secretary, a complete text of a treaty or other international agreement must be delivered to the Secre- tary, or other person authorized to approve the text, before any such text is agreed upon as fmal or any date is agreed upon for its signature. **723 Responsibility of Office or Officer Conducting Negotiations*'
723.1 Conduct of Negotiations *The office or officer responsible for any negotiations keeps in mind:
a.
That during the negotiations no position is communicated to a foreign government or to an international organization as a U.S. position that goes beyond any existing authorization or instructions;
b.
That no proposal is made or position is agreed to beyond the origi- nal authorization without appropriate clearance (see section 722.3a);
c.
That all significant policy-determining memorandums and instruc- tions to the field on the subject of the negotiations have appropriate clearance (see section 722.3a);
d.
That the Secretary is kept informed in writing of important policy decisions and developments, including any particularly significant depar-tures from substantially standard drafts that have been evolved;
e.
That with the advice and assistance of the Assistant Secretary for Congressional Relations, the appropriate congressional leaders and com- mittees are advised of the intention to negotiate signif~cant new interna-
tional agreements, consulted concerning such agreements, and kept in- formed of developments affecting them, inciuding especially whether any legislation is considered necessary or desirable for the implementa- tion of the new treaty or agreement. Where the proposal for any especially important treaty or other international agreement is contem- plated, the of the Assistant Secretary for Congressional Relations will be informed as early as possible by the office responsible for the sub- ject;*
*If. That the interest of the public be taken into account and, where
in the opinion of the Secretary of State or his designee the circumstances
permit, the public be given an opportunity to comment;**
**g. That in no case, after accord has been reached on the substance
and wording of the texts to be signed, do the negotiators sign an agree-
ment or exchange notes constituting an agreement until a request under
section 722.3 for authorization to sign has been approved and, if at a
post abroad, until fmally instructed by the Depamnent to do so as stated
in section 730.3. If an agreement is to be signed in two languages, each
language text must be cleared in full with the Language Services Divi-
sion or, if at a post abroad, with the Department before signature, as
stated in section 722.6;
h. That due consideration is given also to the provisions of sections
723.2 through 723.9, 730.3, and 731 of this chapter; and **
*i. That, in any case where any other department or agency is to play a primary or significant role or has a major interest in negotiation of an international agreement, the appropriate official or officials in such department or agency are informed of the provisions of this sub- chapter. *
723.2 Avoiding Obstacles to Publication and Registration
The necessity of avoiding any commitment incompatible with the law requiring publication (1 U.S.C. 112a) and with the treaty provisions re- quiring registration (see section 750.3-3) should be borne in mind by
U.S. negotiators. Although negotiations may be conducted on a confi- dential basii, every practicable effort must be made to assure that * any definitive agreement or commitment entered into will be devoid of any aspect which would prevent the publication and registration of the agreement.
723.3 Questions on Immediate Public Disclosure
In any instam &re it appears to the * officer or office in the Deprtmnt responsible for the negotiations or to the U.S. representatives that the immediate public disclosure upon its entry into force of an agreement under negotiation would be prejudicial to the national security of the United States, the pertinent circumstances shall be re- ported to the Secretary of State and his decision awaited before any further action is taken. Where such circumstancesc,~e known before authorization to negotiate or to sign is requested, thq,~hall be included in the request for authorization. All such reports andvqquests are to be cleared with the Office of the Legal Adviser.
723.4 Public Statements
*No public statement is to be made indicating that agreement on a text has been reached, or that negotiations have been successfully com- pleted, before authorization is granted to sign the treaty or other agree- ment. If such authorization has been granted subject to a condition that no substantive change in the proposed text is made without appropriate clearance (see section 722.3a). No such public statement is to be made until definitive agreement on the text has been reached and such clearance has been received. Normally, such a public statement is made only at the time a treaty or other agreement is actually signed, inasmuch as it remains possible that last-minute changes will be made in the text. Any such statement prior to that time must have the appropriate cle&ance, and the approval of the Secretary or the ~epartm~ip&cipal who originally approved the action memorandum request under "Circu- lar 175 Procedure."
723.5 English-Language Text
Negotiators will assure that every bilateral treaty or other international agreement to be signed for the United States contains an English- language text. If the language of the other country concerned is one other than English the text is done in English and, if desired by the other country, in the language of that wuntry. A U.S. note that con-
Pam 27-161-1
stitutes part of an international agreement effected by exchange of notes is always in the English language. * If it quotes in full a foreign office note, the quotation is to be rendered in English translation. A U.S. note is not in any language in addition to English, unless spedkally authorized. * The note of the other government concerned may be in whatever language that government desires.
723.6 Transmission of Signed Texts to Assistant Legal Adviser for TreawAffairs
a. The officer responsible for the negotiation of a treaty or other agreement at any post is responsible for insuring the most expeditious transmission of the signed original text, together with all accompanying papers such as agreed minutes, exchanges of notes, plans, etc., to the Department for the attention of the Assistant Legal Adviser for Treaty Affairs: Provided, That where originals are not available accurate cer- tified copies are obtained and transmitted as in the case of the original.
*
(See sections 723.7, 723.8, and 723.9.) The transmittal is by airgram, not by transmittal slip or operations memorandum. *
b.
Any officer in the Department having possession of or receiving from any source a signed original or certif~ed copy of a treaty or agree- ment or of a note or other document constituting a part of a treaty or agreement must forward such documents immediately to the Assistant Legal Adviser for Treaty Affairs.
723.7 Transmission of Certified Copies to the Department
When an exchange of diplomatic notes between the mission and a
foreign government constitutes an agreement or has the effect of ex-
tending, modifying, or terminating an agreement to which the United
States is a party, a properly certif~ed copy of the note from the mission to
the foreign government, and the signed original of the note from the
foreign government,are sent, as soon as practiable, to the Department
for the attention of the Assistant Legal Adviser for Treaty Affairs. *The
transmittal is by airgram, not by transmittal slip or operations memoran-
dum. *
Likewise, if, in addition to the treaty or other agreement signed,
notes related thereto are exchanged (either at the same time,
beforehand, or thereafter), a properly certif~ed copy (copies) of the
note(s) from the mission to the foreign government are transmitted
with the signed original(s) of the note(s) from the foreign government.
In each instance, the mission retains for its fdes certified copies of the note exchanged. The U.S. note is prepared in accordance with the rules prescribed in the Correspondence Handbook. The note of the foreign government is prepared in accordance with the style of the foreign office and usually in the language of that country. Whenever practicable, ar- rangements are made for the notes to bear the same date.
723.8 certficah8n' of Copies
If a copy of a ndte is a part of an international agreement, such copy is certified by a dayrcommissioned and qualifled Foreign Service officer either (a) by a certification on the document itself, or (b) by a separate certification attached to the document. A certif~cation on the document itself is placed at the end of the document. It indicates, either typed or rubber stamped, that the document is a true copy of the origimal signed
,(or initialed) by (insert full name of signing offier), and it is signed by the certifying officer. If a certif~cation is typed on a separate sheet of paper, it briefly describes the document certified and states that it is a true copy of the original signed (or initialed) by (full name) and it is signed by the certifying officer. The certif~cation may be stapled to the copy of the note.
723.9 Preparation of Copies for Certification
'For purposes of accuracy of the Department's records and publication ahregistration, a certif~ed copy must be an exact copy of the signed original. It must be made either by typewriter (ribbon or carbon copy) or by facsimile reproduction on white durable paper (not by the duplimat method) and must be clearly legible. In the case of notes, the copy shows the letterhead, the date and, if signed, an indication of the sig- nature or, if merely initialed, the initials which appear on the original. It is suggested that, in the case of a note from the mission to the foreign government, the copy for certification and transmission to the Depart- ment be made at the same time the original is prepared. If the copy is made at the same time, the certificate prescribed in section 723.8 may
state that the document is a true and correct copy of the signed original.
If it is not possible to make a copy at the same time the original is pre-
pared, the certificate indicates that the document is a true and correct
copy of the copy on fde in the mission. The word "(Copy)" is not
placed on the document which is being certified; the word "(Signed) "is
not placed before the indication of signatures. Moreover, a reference to
the transmitting airgram, such as "Enclosure 1 to Airgram No. 18
(etc.)," is not placed on the certified document. The identification of
such a document as an enclosure to an *am may be typed on a sepa-
rate slip of paper and attached to the document, but in such a manner
that it may be easily removed without defacing the document.
**724 Transmission of International Agreements Other Than Treaties
to Congress; Compliance With Public Law 92-403
AU officers will be especially diligent in cooperating to assure com-
pliance with Public Law 92-403 "An Act To require that international
agreements other than treaties, hereafter entered into by the United
States, be transmitted to the Congress within sixty days after the execu-
tion thereof." That Act, approved August 22, 1972 (86 Stat. 619; 1
U.S.C. 112b), provides as follows:
"The Secretary of State shall transmit to the Congress the text of any intemational agreement other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, ahy such agreement the immediate public disclosure of which would, in the opinion of the Resident, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President." ** "725 Publication of Treaties and Other International Agreements of
the United States
The attention of all officers is directed to the requirements of the Act of September 23, 1950 (64 Stat. 979; 1 U.S.C. 112a), which provides as follows:
"The Secretary of State shall cause to be compiled, edited, index- ed, and published, beginning as of January 1, 1950, a compilation entitled 'United States Treaties and Other International Agreements,' which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other fmal formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evi- dence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States." **
b. Initially, it must be emphasized that the continuous debate regarding the legitimacy of certain executive agree- ments does not center around the issue of the interna- tional authority of executive agreements, as opposed to treaties. Under international law, treaties and executive agreements are viewed as interchangeable and are generally considered to be equally binding. The debatable issue concerns itself with the constitutional authority of the President, the President and Senate, and the President and Congress to enter into international agreements other than treaties in a manner not spediically spoken to in the Constitution. 8-21. Constitutional Authority. a. General. Article 11, Section 2, of the Constitution provides the President with the authority to enter into treaties by and with the advice
Pam 27-161-1
and consent of two-thirds of the Senate. Thus,this specific Executive-Senate procedure can be affected to conclude any international agreement concerning subject matter within the treaty-making power, which is admittedly a power difrcult to define in precise terms. The records of the Constitutional Convention clearly demonstrate that this "treaty power" is jointly entrusted to the President and the Senate. There& -however, nothing in this record that stipulates what is meant by a "treaty" or that forecloses alt-xnative Constitutional procedure for con- cluding international agreements. The Supreme Court has, in fact, consistently upheld the validity of intema- tional agreements other than treaties. 95 Thus, the key question is not whether the President, or the President and Congress, may constitutionally enter into Executive agreements with other states, but what the scope of this executive agreement-making power is.
b. The scope of this power is generally defined by means of a "subject matter test." Under this particular approach, the extent of both Presidential and Congres- sional authority to conclude an Executive agreement is dependent upon the constitutional authority of the Presi- dent and Congress to deal with the subject matter of the specific agreement in question. For example, an executive agreement concluded solely on Presidential authority, i.e., a Presidential agreement, 96 must be based on the Presi- dent's power as Chief Executive of the Nation; Com- mander-in-Chief of the Army, Navy, and Air Force; the diplomatic representatives of the state; or some other general Presidential power.
As a result of determining the scope of the Presidential or the Presidential-Congressional authority to enter into Executive agreements by means of the "subject matter test," three distinct categories of Executive agreements may be identified:
It is at once apparent that some Executive agree- (1)
Executive Agreement Pursuant to a TreapAn Executive agreement expressly or impliedly authorized by a valid treaty.
(2)
Congressional-Executive Agreemen+An Ex-ecutive agreement expressly or impliedly authorized by prior legislation or subsequently approved on any subject within Congressional legislative competence and gen- uinely a concern of foreign relations.
(3)
Presidential AgreemeneAn Executive agree- ment concluded solely on the basis of Presidential authority, on any subject within his independent authority and genuinely a concern of foreign relations.
c.
95. See U.S.v. Belmont, 301 U.S.324 (1937), and U.S.v. Pink,
3.15U.S.203 (1942). These cases also stand for the proposition that even Presidential agreements (which are one of three forms of Execu- tive agreements) are controlling law when concluded within an area of Residential authority. The various forms of Executive agreements are discussed at p. 8-1 1, supra.
96. AS noted above, the "Presidential agreement" is one of three forms of Executive agreements.
ments may be entered into by several of the methods mentioned above and that such agreements can be con-stitutionally supported as valid and binding. The President thus has a choice with regard to the method by which he concludes an Executive agreement. Several of the factors influencing the President's choice of methodology would of course be the political considerations involved, the necessity for Congressional participation in the form of implementing legislation, appropriations, and the degree of formality desired. It is important to note that there are, in fact, various constitutional modes for concluding Ex- ecutive agreements and that the Presidential Agreement is only one example. The vast majority of Executive agree- ments are concluded either pursuant to a treaty or are authorized by prior or subsequent legislation. 97
d.
Executive agreements concerning military matters are based at least in part on the President's power as Com-mander-in-Chief of the Armed Forces. 98 This includes not only purely military agreements, such as practical ar- rangements for cooperation with other nations in defense matters, but also, for example, agreements on condition of armistice, including the administration of occupied ter- ritory pending conclusion of a peace treaty. 99
e.
The President's authority to conclude Executive agreements may also derive from his treaty powers. Although treaties can be made only by and with the advice and consent of the Senate, it is the President alone who negotiates, 100 and the process of negotiation may include the conclusion of protocols which represent stages in those negotiations, or a modus vivendiin limited terms designed to serve as a temporary measure pending the conclusion of a treaty. 101 The power to "receive Ambassadors and other public Ministers" has also served as a partial basis for Executive agreements incident to the recognition of foreign governments, including such matters as the settle- ment of foreign claims. 102 Moreover, the,provision em- powering the President to "take Care thakthe Laws be faithfully executed" provides a basis for agreements designed to implement certain provisions of the Constitu- tion, statutes, and treaties, as well as other international
97. See Bishop, supra, note 16 at 110-120.
98. See Opinion of the Attorney General regarding the Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 30 Op. Any. Gen. 484, 486 (1940); Borchard, Treaties and Ekecutive Agree- ments–A Rep&, 54 YALE L. J. 616, 649 (1945).
99. McDougal and Lans, Treaties and CongressionaCEkecutiw or Presidential agree men^: Interchangeable Instruments- of National Policy, 54 Yale L. J. 246-47 (1945).
100. U.S.v. Curtis-Wright Export Corp., 299 U.S.304, 319 (1936).
101. Corwin, The Constitution of the United States of America, Anabsis and Interpretation, S. Doc. 170, 82d Cong., 1st sess., 433 (1952), repeated in 1964 ed., S. Doc. 39, 88th Cong., 1st sess., 485 (1 964) (hereinafter cited as Convln).
102. U.S.v. Belmont, 301 U.S.324 (1937); U.S.v. Pink,315 U.S. 203 (1942); McDougal and Lam, supra, note 99 at 247-48.
obligations of the United States. 103
$ More generally, and under the authority of the Ex-
ecutive power clause, the President acts as "the sole organ
of the nation in its external relations and its sole repre-
sentative with foreign nations." 104 This role is not insig-
nificant in nature, as the normal conduct of foreign rela-
tions continually requires the conclusion of agreements of
various sorts to settle differences with other governments
or regulate matters of mutual concern, thus insuring the
satisfactory continuation of diplomatic relations. 105
g. With respect to agreements concerning militarymat-ters, such as those under which rights are acquired to use defense-related facilities abroad, the agreement-making authority of the President flows at least in part from his powers as Commander-in-Chief. 106 At the same time, however, Congress also has extensive powers in the defense area. In particular, under Article I, Section 8, of the Constitution, the Congress is given the explicit powers:
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Capture on Land and Water;
To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and
naval Forces;
In addition, of course, Congress has the general power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Depart- ment or offices thereof.
Agreements relating to military and defense matters thus involve a broad area of responsibility in which certaincon-stitutional powers are shared between the Chief Executive &d Congress. This results in a rather complex legal situa- tion in which the lines of constitutional authority are somewhat unclear. Congress undoubtedly has the con- stitutional autaority to legislate on any subject which is a genuine condm of foreign affairs and which is not smcally granted to the President. Thus, this means Congress can terminate a prior delegation of Congres- sional authority to the President to conclude Executive agreements and can also terminate either treaties or Ex- ecutive agreements by enacting subsequent inconsistent legislation. 107 Finally, Congress is always in a position to substantially effect executive agreements through the ap- propriation process. As has been noted, however, the
,, ,103. 1 Op. Am. Gen. 566, 570-71 (1822); McDougal and Lans, supra, note 99 at 248; Convin, supra, note 101, 1952 ed. at 441-45, 1964 ed. at 492-97.
See 39 Op. Am. Gen. 484, 486 (1940). U.S. V. Curtiss-Wright Export Corp., supra, note 100 at 319. 104.
105.
McDougal and Lans, supra, note 99 at 247-252; CORWIN, supra, note 101, 1952 ed. at 433, 1964 ed. at 484-85.
106.
107.
This action might well run afoul of international law, of course, especially in the areas of treaty obligations and state respon- sibility.
"separation of power" doctrine prevents Congressional encroachment upon any powers exclusively reserved to the President. 8-22. Modern Developments. a. In 1972, as a result of the heightened controversy surrounding the precise con- stitutional authority of the President and Congress con- cerning Executive agreements, Congress passed the Case Act. 108 Under this Act, the Secretary of State is required to transmit to the Congress the text of any international agreement other than a treaty, to which the United States has become a party, no later than 60 days after its entry into force. As of May, 1975, the Department of State had transmitted the texts of 657 Executive agreements to the Congress. Although not required by law to do so, the Department of State had also transmitted with each agree- ment a background statement setting forth in some detail the context of the agreement, its purpose, negotiating history, and effect. 109
b.
The Case Act makes special provision for the transmittal of agreements ". . . the immediate public dis- closure of which would, in the opinion of the President, be prejudicial to the national security of the United States. . .." These agreements are transmitted to the Senate Committee on Foreign Relations and the House Cornrnit- tee on International Relations under ". . .an appropriate injunction of secrecy to be removed only upon due notice from the President." As of May, 1975, the Executive branch had entered into and the Department of State had transmitted to the Congress 29 agreements under this category. 1 10
c.
A second recent development of major importance in the area of executive agreements has been the revision of the Department of State's circular 175 procedure. 111 This revised procedure has two objectives: (1) to meet re- quests by members of the Senate Committee on Foreign Relations for clarification of the guidelines to be con- sidered in determining whether a particular international agreement should be concluded as a treaty or as another form of an international agreement; and (2) to strengthen provisions on consultation with the Congress. With respect to the consultation provisions, Section 723.1(a) of the Circular 175 procedure now requires those responsi- ble for negotiating significant new international agree- ments to advise appropriate congressional leaders and committees of the President's intention to negotiate such agreements, to consult during the course of any negotia- tions, and to keep Congress informed of developments affecting them, including whether any legislation is con- sidered necessary or desirable for the implementation of
1.U.S.C.A. 1126. 108.
109.
Testimony of Momoe Lei, Legal Adviser of the Depart- ment of State before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 13 May 1975, reprinted in 69 Am. I. Int? L. 865 (1975).
110. Id.
111. This procedure is outlined on p. 8-12, supra.
the new treaty or agreement. The procedure also requires
consultation with the Congress when there is a question
whether an agreement should be concluded as a treaty or
in some other form. Efforts at further clarification of ex-
ecutive and congressional powers regarding Executive
agreements continue. The Department of Defense estab-
lished procedures to implement the Case Act as it applies
to organizations within and personnel of that Department
in a directive dated 3 November 1976.112
8-23. "Self-Executing" Agreements. a. General. Whether a given treaty is "self-executing" or requires special implementing legislation in order to give force and effect to its provisions, through the aid of the courts, pre- sents primarily a domestic question of construction for the courts. It is diflicult, however, to extract any clear princi- ple for judicial guidance from the cases discussing this sub- ject. A careful study of the decisions dealing with this problem indicates certain recurring factors which have
been considered by the courts to be controlling.
(1)
Where a treaty is incomplete either because it expressly calls for implementing legislation or because it calls for the performance of a particular affirmative act by the contracting states, which act or acts can only be per- formed through a legislative act, such a treaty is for ob- vious reasons not self-executing, and subsequent legis- lation must be enacted before such a treaty is enforceable by the courts. Inasmuch as treatiescalling for expenditure of funds are ineffective without an accompanying ap- propriation, they are uniformly considered to not be self-executing. On the other hand, where a treaty is full and complete, it is generally considered to be self-executing by the courts, especially when the treaty is concerned with granting equal treatment to aliens in the field of commerce and trade between the signatory powers to such treaties. 113
(2)
Restatement, Second, in reference to self-ex- ecuting agreements, provides:
(1)
Whether an international agreement of the United States is or is not self-executing is fially determined as a matter of interpretation by courts in the United States if the issue arises in litigation.
(2)
When an international agreement to which the United States is a party manifests an intention that its provisions shall be effective under the domestic law of the parties at the time it comes into effect, the agreement is normally interpreted by the courts as self-executing under the law of the United States subject to the constitutional limitations indi- cated in 4 141(3). 114
b.
If mculties are expected in the process of imple- menting the provisions of an international agreement, the executive of a state may take certain precautions in order to avoid international responsibity for defaulting on the obligations imposed by the agreement. For example, Sec- tion 34 of the Convention of the Privileges and Im-
112. DOD Directive 5530.3, International Agreements (3 Nov 1976).
113. Aerovias Interamericanas de Panama, S.A. v. Board of County Commissioners of Dade County, Florida, 197 F. Supp. 230 (1961).
114. Resmtement, Second, 5 154.
munities of the United Nations 11s provides: "It is under-stood that, when an instnunent of accession is deposited on behalf of any Member, the Member will be in a posi- tion under its own law to give effect to the terms of this convention." Even more proiective in nature, section 15 of the Tracking Stations Agreement between the United States and Spain 116 states: "It is understood that, to the extent the implementation of this agreement will depend on funds appropriated by the Congress of the United States, it is subject to the availability of such funds."
8-24. Conflict of Agreement with Internal Law.
WHITNEY v. ROBERTSON
Supreme Court of the United States, 1888
124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386
[Plaintiff sued to recover amounts paid under protest to the Collector of Customs at New York in satisfaction of duties assessed upon plain- tiffs shipments of sugar from the Dominican Republic. Plaintiff alleged that sugar from the Hawaiian Islands was admitted free of duty into the United States, and claimed that a clause of the treaty between the United States and the Dominican Republic guaranteed that no higher duty would be assessed upon goods imported into the United States from the Dominican Republic than wasassessed upon goods imported from any other foreign country. Judgment wasentered for the Collector of Customs upon the latter's demurrer, and plaintiff appealed. The Supreme Court, in an opinion by Mr. Justice Field, just held that the treaty could not be interpreted to foreclose the extension by the United States of special privileges to countries such as the Hawaiian Islands which were willing in return to extend special privileges to the United States.]
But, independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs. The act of Con- gress under which the duties were collected, authorized their extraction. It is of general application, making no exception in favor of goods of any country. It was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by miters on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to cany them into effect, and such legis- lation is as much subject to mdihtion and repeal by congress as legis-lation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them opera- tive, to that extent they have the force and effect of a legislative enact- ment. Congress may modify such provision, so far as they bid the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts wiU al-ways endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are in-consistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing. If the coun- try with which the treaty is made is dissatisfied with the action of the leg- islative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essen- tial for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our
115.
1 U.N.T.S. 15 (1946).
116.
15 U.S.T. 153, 511 U.N.T.S. 61 (1964).
Pam 27-161-1
country wasjustified in its legislation, are not matters for judicial cog-nizance. . . . Judgment flied.
In a Memorandum prepared for President Harding, Sec- retary of State Charles Evan Hughes stated, "Congress [by passing inconsistent legislation] has the power to vio- late treaties, but if they are violated, the nation will be none the less exposed to all the international conse- quences of such a violation because the action is taken by the legislative branch of the Government." 117 Where a treaty and an act of Congress are wholly inconsistent with each other and the two cannot be reconciled, the courts have held that the one later in point of time must prevail. While this is necessarily true as a matter of municipal law, it does not follow that a treaty is repealed or abrogated by a later inconsistent statute. The treaty continues to subsist as an international obligation, even though it may not be en- forceable by the courts or administrative authorities. 118 However, a treaty will not be deemed to have been abro- gated or modified by a later statute unless such a purpose on the part of Congress has been clearly expressed. 119 8-25. Effect of International Agreements for States Not Parties. a. The customary rule of international law ex- pressed in the maxim pacta treatiis nee nocent necprosunl has been codified by Article 34 of the Vienna Convention, which provides that "a treaty does not create either obligations or rights for a third party." This rule must ad- mit of exceptions, however, as there are situations in which states not parties to an agreement consent to be bound by it, or are intended by the parties to derive benefits from the agreement. Articles 34 and 35 of the Convention apply to these two situations. Article 35 pro- vides that an obligation arises for a third state if the parties to a treaty intend for its provisions to establish an obliga- tion for a third state and this state expressly accepts such obligation in writing. Thus,the juridical basis of the third state's obligation is not the treaty but the collateral agree- ment by which it has accepted the obligation. Article 36 deals with the converse situation of rights in a third party derived from a treaty. It provides that a right arisesif par-ties to an agreement to accord certain rights to a third state and the third state assents thereto. The third state's assent is presumed unless the contrary is indicated or the treaty provides otherwise. However, a third state exercising such a derived right must comply with the conditions provided in the treaty for its exercise.
b. Article 37 of the Convention concerns revocation or modification of obligations or rights of third states. An obligation may be revoked or modified only with the con- sent of the parties to the treaty and the third state, unless otherwise agreed. Moreover, a right may not be revoked
117. 5 G. Hockworth, supra note 14 at 324-25.
118.
Id. at 185-86. See also, The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 20 L.Ed.227 (1871).
119.
Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 311, 77 L.Ed.641 (1933).
or modified by the parties if it was intended not to be revoked or modified without the consent of the third state. Also, Article 38 provides that ". . . [nlothing in Ar- ticle 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state asa customary rule of international law, recognized as such." This article was adopted despite differences of opinion as to the source of the biding force of rules in a treaty on third parties. 120
c. An example of rights conferred on third parties recognized by custom is the right of free passage through interoceanic canals. One writer has noted that: "[Tlhe priv- ilege of free passage through the three major interoceanic canalsSuez, Panama, and Kiel-has been created in each case by a treaty to which the territorial sovereign, act- ing freely or under the pressure of other powers, has been a party." 121 The right of third parties in such situation has been analogized to the doctrine of "international ser-vitudes" and "third-party beneficiary" concepts drawn from municipal law. 122 Baxter argues that "the preferable theory concerning the rights of nonsignatories is that a state may, in whole or in part, dedicate a waterway to in-ternational use, which dedication, if relied upon, creates legally enforceable rights in favor of the shipping of the in- ternational community. " 123
The U.N. Charter raises a special situation as to the binding force of multiparty constitutive agreements on nonmember states. Article 2, paragraph 6, of the Charter requires that the U.N. ensure that nonmember states act in conformity with the principles of the Charter in order to further international peace and security.Thus,it is argua- ble that, as a condition precedent to international dealings, states now run the risk that their actions will not escape the sanction of the U.N., 124 and that Article 2, paragraph 6, as evidence of a trend to create in the Charter a law affecting both members and nonmembers. 125 The I.C.J.'s reasoning in its Advisory Opinion Concerning Reparations for Injuries in the Service of the United Na- tions reflects this tendency, referring to the purposes of and large number of signatories to the U.N. Charter, in deciding that a claim could be pressed by the U.N. against a nonmember. 126 The Antarctic Treaty of December 1, 1959, 127 is a further example of an attempt by signatories to influence the behavior of nonsignatories, stating: "Each of the contracting parties undertakes to exert ap- propriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in
120.
Sinclair, supra note 66 at 8-10.
121.
R. Boxter, The Low of Internotional Wotewys 168-69
(1964) (hereinafter cited as Baxter).
See McNoir, The Low of Treoties 268-71 (1961). Baxter, supra, note 121 at 182. See Friedrnann, supra, note 23 at 600. 122.
123.
124.
125.
See Falk, The Authority of the United Notions to Control Non- Members, 19 Rutgers L. Rev. 591 (1966).
126. Advisory Opinion Concerning Reparations for Iqjuries in the Service of the United Nations 119491 I.C.J. 174.
127. 12 U.S.T. 794, 402 U.N.T.S. 71.
Antarctica contrary to the principles or purposes of the present treaty. " 8-26. Retroactive and Successive Treaties. When a treaty is signed, there is often a question as to whether it applies retroactively or to successive treaties on the same subject matter. Article 28 of the Vienna Convention pro- vides that, unless a different intention appears from the treaty or elsewhere, an agreement is not retroactive, that is ". . . its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty." As regards successive treaties, Article 30 pro-vides that a treaty may specify either that it is subject to or that it is not to be considered as incompatible with an earlier or a later treaty. However, if the earlier treaty does not specify the above and is not terminated or suspended, it then applies ". . . only to the extent that its provisions are compatible with those of the later treaty . . ." when the parties to the agreement are the same. When the signato- ries are different, the earlier treaty applies as between states which are parties to both, to the extent this agree- ment is compatible with the later treaty. However, as be-tween a state party to both treaties and a state party to only one of the treaties, the treaty to which both are parties governs. 8-27. General Rule of Interpretation. Article 3 1 of the Vienna Convention establishes the rule that ". . . [a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." The meaning of "context" for the purposes of this rule in- cludes the text, its preamble and annexes, as well as:
(1)
Any agreement relating to the treaty which was made between all the parties in connection with the con- clusion of the treaty, and
(2)
Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
Article 31 further provides that in addition to the context of the agreement, the following should be taken into ac- count for purposes of interpretation:
(1)
Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(2)
Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and
(3)
Any relevant rules of international law applicable in the relations between the parties. 8-28. Supplementary Means of Interpretation. a. Arti- cle 32 of the Convention permits recourse to "supple- mentary means of interpretation in order to confi the meaning resulting from the application of the general rule of interpretation articulated in article 31 ." These supple- mentary means may also be utilized when the interpreta-
tion accorded an agreement under the general rule results in an ambiguous or obscure meaning, or leads to a result which is manifestly absurd or unreasonable. Such means of interpretation include "the preparatory work of the treaty and the circumstances of its conclusion."
b. There was considerable debate at the conference draft'i the Vienna Convention over the propriety of recourse to materials concerning the preparatory work of the treaty, the travauxpr~paratoires. 128 A literal reading of the text, in referring to such materials a "supplemen- tary means of interpretation," gives the indication that they are limited to a minor role. However, under custom- ary international law, draft'i history is not subordinated to textual analysis. One authority maintains that reference to the preparatory work as a supplemental interpretative means was not intended to place such works in a subordi- nate status and that ". . . discriminating recourse to tra- vaux pr6paratoires in order to throw illumination on the meaning of terms employed in the text of a treaty is per- mitted." 129
8-29. Treaties Authenticated in Two or More Languages. Article 33 of the Convention provides that when a treaty has been authenticated in two or more languages, the text is equally authoritative in each unless, the treaty provides, or the parties agree, that a particular text will prevail when conflicts occur. The terms of the treaty are presumed to have the same meaning in each authentic text. Thus, a version of agreement ina language: other than one of those in which the text ,was authenti- cated shall be considered an authentic t&# only if the. treaty so provides or the parties so agree. ,hen a corn=, parison of the authentic texts discloses a difference OF, meaning which cannot be removed by applying the, general rule and supplementary means of interpretation, the meaning which best reconciles the texts shall be adopted, with due regard given to the object and purpose- of the treaty.
8-30. Summary. In closing this discussion of treaty in-, terpretation, it is essential to note that, as in the municipal law of contracts, there are a variety of approaches to the interpretation of an international agreement. "Black let- ter" rules of construction are frequently inadequate to solve the variety of problems and situations which call for interpretations. However, the I.C. J., in rendering its deci- sion in the Second Admissions Case, 130 reaffied the general rule of interpretation when it stated that ". .: [wlhen the Court can give effect to a provision of a treaty by giving to the words usedin it their natural and ordinary meaning, it may not interpret the words by seeking to give them some other meaning."
128. Briggs, The Travaux Prkmratoires of the Vienna Convention on the hw of Treaties, 65 Am. 3. Int7 L. 705, 709 (1971).
129. Id.at 712.
130. Second AdmissionsCase [I9501I.C.J.8.
Section V. TERMINATION AND MODIFICATION OF INTERNATIONAL AGREEMENTS
8-31. Denunciatioo of or Withdrawal From a Treaty. a. General. The Vienna Convention states that a treaty may be terminated, a party may withdraw from it, or its opera- tion in regard to a party may be suspended if this is Pro- vided for in the treaty or if all the parties consent to those terms. 131 Unless it SO provides, a multilateral treaty will not be terminated automatically when the mnber of sig- natories to it falls below the number necessary for its entry into force. 132 Parties to a multilateral treaty may agree to suspend its operation, temporarily and as between them- selves alone, if provided for by the treaty or if suspension not prohibited by the treaty and does not affect the
rights or obligations of other parties. However, a SusPen- sion of an agreement's operation must be compatible with its object and purpose. 133
b. Despite the doctrine of pacta sunt servanda, under customary international law, states have been permitted to withdraw from certain types of treaties which contain no express provision regarding termination. Treaties of political alliance and commercial arrangements are generay regarded as agreements of fype'
56 of the Convention states that a treaty provision regarding termination is not subject to denun- ciation or withdrawal unless:
A right of denunciation or withdrawal may be (1)
It is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(2)
implied by the nature of the treaty. A party must give not less than twelve months' notice of itsintent to denbun= or withdraw under these conditions. 8-32. Termination or Suspension of Treaty Due to Breach or Impossibility of Performance. a. Article 60 of the Convention provides that: ". . . [a] material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part."
A material breach of a multilateral treaty by one of the parties permits:
(1)
The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either as between themselves and the defaulting state or between all the parties;
(2)
A Party specially affected by the breach to invoke it to suspend the operation of the treaty in whole or in Part as between itself and the defaulting state;
(3)
Any party other than the defaulting state to in- voke the breach to suspend the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach by one party radically changes the position of every party with respect to the
131. Vienna Convention, Arts. 54 and 57.
132.
Id. at Art. 55.
133.
Id. at Art. 59.
134. G.l?Qmaurice, Second Report on the Law of Treaties. U.N. Doc.A/CN 4/107 (IS March 1967).
further performance of its obligations under the treaty. 135
b. The term "material breach" is defined as a repudia- tion of the treaty not sanctioned by the Convention or the violation of a provision essential to the accomplishment of th, object or purpose of the treaty. Because of concern
that the right of unilateral denunciation due to breach
wodd seriously undercut law-making treaties, a paragraph
added to Article 60 which provides that material
breach by a party does not permit termination or suspen-
sion of provisions ". . . of an agreement relating to the
protection of the human person contained in treaties of a
humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected
by such treaties." 136
Article 61 permits a party to terminate or withdraw from a treaty on the ground of impossibility of perform- ance ". . .if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty." However, if the impossibility is temporary, it justifies only suspension of the operation of the treaty. If the impossibility is the of a own breach of an obligation under the treaty or any other international obligation owed to another party to the agreement, the party may not invoke it as grounds for ter- mination, withdrawal, or
8-33. Fundamental Change of Circumstance. a. Rebus sic stantibus. The doctrine of rebus sic stantibus (change of circumstances) fell into disrepute as a result of indiscrimi- nate invocation by states prior to 1914 in order to escape from inconvenient treaty obligations. 137 Article 62 of the Vienna Convention states the doctrine in negative terms, holding that a fundamental change in circumstances not foreseen by the parties may not be invoked to terminate or withdraw from a treaty
(1)
The existence of those circumstances constituted an essential basis ofthe consent of the parties to be bound by the treaty; and
(2)
The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
b.
Even if the exceptions stated in the above paragraph are met, a fundamental change in circumstances may not be invoked for terminating or withdrawing from a treaty if the agreement establishes a boundary or if the change is the result of a breach by the party invoking it either of an obligation under the treaty or of any international obliga- tion owed to any other party to the agreement. 138
Viema Convention, ~rt.60(2). 135.
136.
Id. at Art. 60(5). Agreements of this nature would include the Hague Regulations and Geneva Conventions Regulating Armed Con-
tlict.
137. Sinchir, supra, note 66 at 106.
138. For a thorough analysis of this concept, see Friedmann, supra, note 23 at 413-21.
8-34. War Between Contracting Parties. a. No interna- tional tribunal has had occasion to decide a case involving the question of the effect of war upon treaties, and na- tional court decisions relating to the problem are con- cerned only with the effect of treaties as domestic law. It is thus dficult to draw any conclusions as to the present state of customary international law with respect to the problem under consideration. 139 An excerpt from Kar-nuth v. United States, 140 a leading case dealing with this subject, follows.
The effect of war upon treaties is a subject in respect of which there are widely divergent opinions. The doctrine sometimes asserted, especially by the older writers, that war ips0 facto annuls treaties of ev- ery kind between the warring nations, is repudiated by the great weight of modem authority; and the view now commonly accepted is that "whether the stipulations of a treaty are annulled by war depends upon their intrinsic character." 5 Moore's Digest of International Law, 5 779,
p. 383. But as to precisely what treaties fall and what survive, under this designation, there is lack of accord. The authorities, as well as the prac- tice of nations, present a great contrariety of views. The law of the sub- ject is still in the making, and, in attempting to formulate principles at all approaching generality, courts must proceed with a good deal of caution. But there seems to be fairly common agreement that, at least, the following treaty obligations remain in force; stipulations in respect of what shall be done in a state of war; treaties of cession, boundary, and the like; provisions giving the right to citizens or subjects of one of the high contracting powers to continue to hold and transmit land in the ter- ritory of the other; and, generally, provisions which represent com- pleted acts. On the other hand, treaties of amity, of alliance, and the like, having a politic. character, the object of which "is to promote rela- tions of harmony between nation and nation," are generally regarded as belonging to the class of treaty stipulations that are absolutely annulled by war. Id., p. 383, quoting Calvo, Droit Int. (4th Ed.), IV.65 5 1931.
6. Some multilateral conventions provide for their effect in time of war. For example, Article 89 of the Con- vention on International Civil Aviation 141 specifies that: "In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or neutrals. .. ." Moreover, it is important to note that treaties which regu- late the conduct of hostilities are not affected by the out- break of war.
Section VI. STAl'ESUCCESSION
8-35. General Principles. a. The transfer of territory from one state to another creates numerous legal prob- lems. These transfers, which may be thought of as a change in sovereignty or in international status, have oc- curred frequently in history, and their extent and conse- quences have often been drastic. Transfers of territory or change of sovereignty over territory, or change in interna- tional status, may come about in several ways, which fall into three main categories: (1) the attainment of independ- ence by a territory or entity which was previously under the sovereignty, suzerainty, protectorate, mandate, trusteeship, or other form of legal control exercised by another state or states, or which was in a federal or other "real" union with other international entities; (2) the loss of statehood or independence through annexation by another entity, merger with another entity or entities, or coming under the protectorate of, or some other legal control by, one or more other states; and (3) the transfer of sovereignty or other form of legal control over an area from one state to another existmg state through cession or unilateral annexation. Whatever the formal differences between these modes, the changes have one feature in common: one state ceases to rule in, or have legal control over, a territory, and another state assumes legal control. The essential issue in the "law of state succession" is to what extent the state replacing the former sovereign assumes the rights and duties of the former sovereign. Within each of the three main categories of change, the legal consequences of different types of change are not necessarily similar; for example, the establishment of a protectorate may have consequences different from those
279 U.S.231 at 236 (1929). 139.
For a comparative study, see Rank, Modern War and the Validity of Treaties, 38 Cornell L. Q. 321, 51 1 (1953).
140.
of annexation by another state.
b.
Whatever form the change of sovereignty or legal control takes, it represents a disruption of continuity, and a body of law, known as the "law of state succession," has developed to determine the extent and consequences of this discontinuity. The use of the imprecise term "state succession" may appear to beg the question, that is, to what extent the state which acquires sovereignty or con- trol over a smc territory becomes "heir':ito the juridi- cal consequences of the acts of its predecessor. The terms "successor" and "succession" designate the new-sovereign and the process of acquiring sovereignty or legal control, and do not necessarily imply a juridical substitu- ' tion of the "successor" state in all the rights and duties possessed by its predecessor. 142
c.
One dimension of the consequences of change of' sovereignty is the extent to which sovereignty over ter- ritory is affected. If the legal identity of the territory is completely changed, as in the independence of a new state, the change is denominated "total" succession. If some aspects of legal control change hands, but interna- tional legal personality remains relatively unimpaired, as in the establishment of a protectorate, the process is called "partial" succession, because the degree to which the "protected" state surrenders legal control over its internal , affairs, and its international relations, may vary, and as a consequence the extent to which the protecting state assumes legal responsibility for the consequences of acts prior to the establishment of the protectorate may vary. Similarly, when the protected state resumes full control over its internal and external affairs, the extent to which it
141. 15 U.N.T.S.295, 356.
142. See Jones, State Succession in the Matter of Treaties, 119471 Brit. Y.B. I.L. 360.
may or must succeed to international rights and obliga- tions may vary with the degree of control it retained over these matters when it was a protectorate. 143
d.
Since World War 11, state succession has most fre- quently taken place not in the context of annexation, ces-sion, or federation, but in the context of independence or secession of former colonial territories. When the classical writers of international law dealt with the problem of the effects of change of sovereignty, they introduced the Roman law concept of succession after death. 144 This became known as the theory of "universal" succession, as it resulted in the view that the successor state inherited all the treaties, debts, and contracts of its predecessor. In the nineteenth and early twentieth centuries, many writers and governments reacted strongly against this approach, and arrived at the opposite conclusion: that new, or suc- cessor, states did not, as a matter of international law, in- herit any of the rights or obligations of the predecessor state (with the possible exception of "dispositive" or "ley treaties). 145 This became known as the "clean slate" theory. 146 Neither theory appears to accord with present state practice, nor does either, in its extreme form, result in a satisfactory solution of the problems aris- ing from a change in international status. The practice of states in the matter of succession is inconsistent, and it is impossible to arrive at a general theory or set of rules ap- plicable to all categories of legal relationships.
e.
Although a "new" state generally succeeds to some international agreements, it is not charged with meeting all of the international obligations of the predecessor state unless it enterxinto a devolution agreement. Under this arrangement, the new state succeeds to all of the treaty obligations of the former. These agreements appear to have two purposes: (1) to relieve the former colonial power from the performance of treaty obligations in a ter- ritory to which it had previously applied the treaty, but over which it no longer exercises legal control, and (2) to bind the newly independent state to perform the obliga- tions imposed by the treaties and to enable it to enjoy rights under treaties. 147
Devolution agreements have had the effect of prevent- ing undesirable discontinuities. However, new states have been increasingly reluctant of late to use this device, ap- parently because they fear they may commit themselves to abiding by agreements of which they might not have been aware, or which they do not fully understand.
f. Traditionally, a special category of treaties, usually
'43. See, e.g., Nationality Decrees in Tunis and Morocco (19231 P.C.I.J., ser. B, No. 4 at 30,; Rights of Nationals of the United States of America in Morocco, (19521 I.C.J. 176.
These types of agreements are discussed in chap. 7, supra. '46. See Keith, The Theory of State Succession (1907). 144.
See H. Lauterpacht, Private Law Sources and Analogies of In- ternational Law 125 (1927).
145.
147. See Lauterpacht, State Succession and Agreementr for the Inheritance of Treaties, 7 Int? Comp. L.Q. 524-30 (1958).
denominated "dispositive" or "localized," was regarded as automatically binding on a new state. 148 A "disposi- tive" or "localized" treaty is one which imposes restric- tions of a continuing and permanent character on the ter- ritory of a state, or which is by its character related to a specific territory, or applied to a specific territory. The categorization of these treaties has not been clearly defined. Illustrations often employed include boundary treaties and treaties creating "international servitude" such as transit rights, rights with request to rivers, customs, free zones, and demilitarized zones. The tradi- tional view that automatic succession takes place with regard to "dispositive" or "localized" treaties is not com- pletely borne out by recent practice. Treaties for military bases, for example, which were thought to fall within this category, have often been renegotiated. 149 Moreover, boundary treaties, which more clearly come within this classification, have not been uniformly inherited. 150
g. Actual state practice with regard to succession to treaties since World War I1 has been neither consistent nor coherent. None of the traditional doctrines satisfac- torily explains contemporary approaches toward state suc- cession. At least two policies, however, seem to be para- mount. First, most new states (with the exception of Israel, the Philippines, South Korea, Upper Volta, and Algeria) have not applied the "clean slate" doctrine in all it. rigidity. They have sought to avoid the sudden, com- plete, and automatic discontinuity in treaty relations that would result from a total application of the doctrine. Sec- ond, most new states have not expressly rejected the "clean slate" doctrine and have not adhered to any other general rule, such as one of "universal" succession. They have tended, on the other hand, to adopt techniques which would give them the freedom to pick and choose the treaty rights and obligations they wish to retain. Most of the older states have refrained from attempting to coerce newer states into acceptance of any general doctrine and have accepted this "pick and choose" method of treaty succession.
8-36. Summary. As has been noted, international agree- ments are now the most important source of codified in-ternational jurisprudence. Military attorneys stationed overseas are responsible for providing legal advice in an environment almost completely controlled by agreements between the host and sending states. For these reasons, it is essential that the attorney possess a basic understandmg of the particular norms which comprise "treaty law." The contents of this chapter should provide this degree of familiarity.
148.
2 O'ComeU, State Succession in Municipal Law and Interna- tional Law 231-72 (1967).
149.
See Esgain, Militaty Servitudes and the New Nations, in The New Nations in International Law and Diplomacy 52-97 (O'Brien ed. 1963).
150.
International Law Association, The Ufect of Independence on Treaties 354-55, 361-62, 364-65, 371-73 (1965).
Pam 27-161-1
CHAPTER 9
INTERNATIONAL ORGANIZATIONS
Section I. THE UNITED NATIONS 1
9-1. The Beginnings of the United Nations. The United
Nations represents the second attempt on the part of the
states of the world to organize themselves into a true com-
munity of states, wherein the security of each member
would be safeguarded not by itself alone but by the whole
community. The fust attempt at such a goal was the
League of Nations. With the start of World War I1 there
was general agreement that the League experiment was a
failure. However, such a realization did not amount to an
abandonment of the idea of an international organization
to ensure world security. The reverse was true. On 12
June 1941 Great Britain, Canada, Australia, New Zea-
land, the Union of South Africa, and a number of Euro-
pean governments-in-exile issued the London Declara-
tion. The Declaration declared that:
The only true basis of enduring peace is the willing
cooperation of free peoples in a world in which, relieved of
the menace of aggression, all may enjoy economic and
social security.
The theme was repeated a few months later in the Atlantic
Charterof 14 August 1941. In it the United States and the
United Kingdom stated:
Clause C. After the frnal destruction of Nazi tyranny, we hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.
There was nothing specific in either the London Declara- tion or the Atlantic Charter about the mechanics of preserving peace among the states following the end of the war. This was left to the Moscow Declaration of Decem- ber 1943. In it China, the United States, United Kingdom and U.S.S.R. stated:
We recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of interna- tional peace and security.
This was the fust positive announcement of the intention to establish a new collective security organization after the war. It amounted to an abandonment of the League. At the time of the Moscow Declaration in 1943 the League was still in existence, though not functioning. The League, after the Moscow Declaration, had no part to play in the postwar world.
At Dumbarton Oaks, Washington DC, in 1944 the four signers of the Moscow Declaration met to draw up a detailed plan for the new organization. The first phase of
the conference was between the representatives of the
U.S.S.R., the United Kingdom, and the United States
from August 21 to September 28, 1944. The second
phase was between the representatives of China, the
United Kingdom, and the United States from September
29 to October 7. This splitting of the conference served to
respect U.S.S.R. neutrality in the war against Japan. On
February 11, 1945 the conference made the following an-
nouncement:
We have agreed that a conference of United Nations
should be called to meet at San Francisco in the United
States on the twenty-fifth April 1945, to prepare the
charter of such an organization, along the lines proposed
in the informal conversations of Dumbarton Oaks.
Fi nations answered the invitation of the Big Four to
meet at San Francisco. These nations worked on the
Dumbarton Oaks proposals from 25 April to 26 June
1945. From this conference came the Charter of the
United Nations and the Statute of the new International
Court of Justice. The United Nations Charter is a
multilateral treaty. The United Nations organization cre-
ated by the treaty is an international person, independent
of its members, possessing sufficient international per-
sonality to enable it to fulfill its purposes. *
While the United Nations started out with fifty members, its membership has increased along with the increasing number of nations which make up the world community. During the 1976 fall session of the General Assembly, membership had expanded to 145 nations, and plans were made @build facilities for a future membership of 170na-tions. The Charter has been amended two times. First, in
1963 Articles 23 and 27 were amended changing the size and membership of the Security Council. Then, in 1973 Article 61 was amended changing the size of the Econom- ic and Social Council. Both changes were made in view of the expanding membership of the United Nations. 9-2. The Structure of the United Nations. The United Nations is divided into six organs:
1.
The Secretariat
2.
The Security Council
1.
For information on the steps which led to the adoption of the United Nations Charter see Everymn's United Nations, 2-9 (7th ed. 1964), and Goodrich & Hambro, Charter of the United Nations, 3-84 (2d. ed. (1949)). The Text of The Charter may be found in DA Pamphlet 27-24, Selected International Agreements, Vol. I1 @ec. 1976), pp. 3-1 to 3-21.
2.
On the international personality of the United Nations Organiza-tion see the advisory opinion of the International Court of Justice on 11 April 1949, concerningReparations for LqiUries SufTered in the Senrice of the United Nations (1949) I.C.J. Rep. 174. The U.N. Organkation is given personality for itsactivities within member states by virtue of arti-cles 104 and 105 of the Charter.
3.
The General Assembly
4.
The Trusteeship Council
5.
The Economic and Social Council
6.
The International Court of Justice
a.
The Secretariat. The Secretariat is composed of a Secretary General and such staff as is required for him to perform his functions. 3 He is appointed by the General Assembly upon the recommendation of the Security Council. 4 His term of office is not set out in the Charter, but is usually specified at the time of his appointment. To date the Secretary Generals have been serving for five- year periods, which may be renewed. He is the chief ad- ministrative officer of the United Nations. 5 He also per- forms such other functions as are entrusted to him by the Security Council, General Assembly, Trusteeship Coun- cil, and the Economic and Social Council. 6 The office has increased in importance since 1945, principally through the use of the Secretary General by the Security Council and General Assembly in its interventions in the Middle East and in the Congo.
b.
The Security Council. The Security Council is com-posed of fifeen members, five of whom are permanent members. 7 The remaining ten are elected by a two-thirds vote of the General Assembly for a term of two years. 8 The five permanent members are the U.S. A., U.S.S.R., The People's Republic of China, France, and the United Kingdom. The Security Council has the primary respon- sibility for the maintenance of international peace. 9 Each of the five permanent members has a "veto power" over the actions of the Security Council because of the voting procedure. No action can be taken which is not procedural unless it is concurred in by seven members, five of whom must be permanent members. 10
c.
The General Assembly. The General Assembly con- sists of all the members of the United Nations. 11 Each has one vote. 12 It disc-almost all world problems that are called to its attention. In itself it does not have the power of action. Most of its resolutions are recommendations. Besides acting as a world forum, it also supervises the ac- tivity of the Economic and Social Council and the Trustee- ship Council. 13 Together with the Security Council, it is responsible for the admission and the suspension of mem-
3. U.N. Charter Art. 97.
4. Id.
5. Id
6.
U.N. Charter Art. 98.
7.
U.N. Charter Art. 23, para. 1. (1973 Text).
8.
U.N. Charter Art. 23, para. 2.
9.
U.N. Charter Art. 24, para. 1.
lo. U.N. Charter Art.27, paras. 2 and 3.
11.
U.N. Charter Art. 9, para. 1.
12.
U.N. Charter Art. 18, para. 1. Voting is either by a simple ma-jority or a two-thirds majority of those present. The latter system is reserved for "important questions." Questions considered important are those listed in Article 18 para. 2, and any other questions considered important by a majority of those present. Art. 18, para. 3.
13.
U.N. Charter Arts. 16, 60, 63, 64 and 66, para. 3.
bers. 14 Further important functions are the control of the purse strings of the United Nations, 1s and the election of members to positions on the other organs of the United Nations. 16
d. The Tmsteeship Council. Following the end of World War I, former German and Turkish colonies were turned into mandated territories under the general super- vision of the League of Nations and under the direct ad- ministration of several of the victorious powers. These territories were classified as A, B, and C mandates de- pending on their degree of advancement toward self- government. By the time the United Nations was created the A and most of the B mandated territories had achieved their independence. The mandatory powers which administered the remainder were invited to turn them into trust territories under the supervision of the
U.N. Allhave done so with the exception of the Union of South Africa in regard to Southwest Africa. The former German island possessions in the Pacific which Japan ad- ministered for the League after World War I were transferred to the administration of the United States. These islands are now held as a "strategic trust." 17 Such a trust differs from other trust territories in that it is super-vised by the Security Council rather than by the General Assembly and the Trusteeship Council. 18
The Trusteeship Council is the organ of the U.N. which supervises the administration of the trust territories. The council is composed of three different groups, (1) those members of the U.N. who administer territories, (2) those five members who have permanent seats on the Security Council, and (3) as many other members of the
U.N. as are necessary to make the membership of the council evenly divided between those members who ad- minister trust territories and those who do not. 19 This third group is elected for a three-year term by a two-thirds vote of the General Assembly. 20
The chief function of the Council is to see that the ad- ministering power looks after the welfare of the people of the trust territory in accordance with the trusteeship agree- ment under which the administering power exercises its authority. 21 The importance of the Trusteeship Council
14.
U.N. Charter Art. 5.
15.
U.N. Charter Art. 17.
16.
U.N. Charter Art. 23, para. 1 on the election of the nonperma- nent members of the Security Council; art. 97 concerning the election, in conjunction with the Security Council, of the Secretary General; STAT.INT'LJUST.art. 4 on the election of the judges of the I.C.J., in conjunction with the Security Council; art. 61 (1) concerning member- ship in the Economic and Social Council; and art. 86(l)(c) on the elec- tion of the nonpermanent members to the Trusteeship Council.
17.
U.N. Charter Art. 82 permits the designation of certain trust temtories as strategic areas. The United States is the only power which administers such a "strategic trust."
18.
U.N. Charter Art. 83, para. 1.
19.
U.N. Charter Art. 86, para. 1.
20.
U.N. Charter Art. 86, subpara. 1 (c); art. 18, para. 2.
21.
U.N.Charter Arts. 75 and 76.
has decreased due to the fact that most of the territories
1 originally supervised have gradually over the years gained
/ independence. The last important trust territory still con-
sidered as such is the Trust Territory of the Pacific Islands, which is administered by the United States. Plans are bei made for the independence of these islands, but they are hampered by the fact that some of the islands would prefer a continued relation with the United States and others would not. In 1975 a covenant to establish a commonwealth of the Northern Mariana Islands was signed at Saipan by representatives of the United States and the Northern Mariana Islands. Under the agreement, the Northern Mariana Islands will achieve self-governing commonwealth status under United States sovereignty. It will come into force at the time the United States termi- nates the Trusteeship Agreement it has with the Security Council. The United States has informed the United Na- tions Trusteeship Council that it will terminate thisagree-ment simultaneously for all parts of the Trust Territory. Siplans for the rest of the Trust Territory have not yet been settled, it may be some time before this takes place. 22
It should be noted that the problem of non-self-governing territorieshas expanded from what was originally contem- plated in the Trusteeship provisions. In 1960, the General Assembly adopted in resolution 15 14, a "Declaration on the Granting of Independence to Colonial Countries and People," and in 1961, established a 17-member special committee to make suggestions and recommendations on the programs and extent of the implementation of this 1960 Declaration. The committee was enlarged in 1962 to 24 members. It annually considers those territories which have not, in the view of the General Assembly, achieved independence. Until the independence of the Portuguese colonies, these territories in Africa were a major concern. It is still concerned with Namibia or South-West Africa and to some extent even with a state such as Rhodesia which is considered as controlled by a minority govern- ment not truly representatives of the majority of the population. United States Territories such as the Vrgin Is-lands, American Samoa, and Guam have also been con- sidered.
e. Economic and Social Council. One of the purposes of the U.N. is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character. 23 The League was successll in this endeavor, far more so than it was in the settling of serious international political disputes. 24 The way had
22. See Digest of United Sates Practice in International Law at 97. (Dept. of State 1975).
U.N. Charter Art. 1, para. 3. 23.
24.
See II Walters, A History 4the League of Nations, chap. 60 (1952) for a description of the renaissance of the economic and social agencies of the League during the period 1935-1939 which culminated in the Bruce Report of August 1939 which recommended an organ for the League closely resembling the Economic and Social Council of the
U.N.
been prepared for cooperation of thissort during the 19th
Century. Such organizations as Universal Postal Union,
the International Bureau of Weights and Measures, and
the Rhine and Danube River Cornmissions showed the
feasibility of international economic cooperation.
The Economic and Social Council consists of 54 members
elected by the General Assembly. 25 Members are elected
for a term of 3 years with one-third of the membership of
the Council beii replaced each year. Besides initiating
studies and conventions dealing with its field of interest, 26
it also brings into cooperation with the U.N. the
numerous governmental and private international eco-
nomic and socialorganizations which already exist. If the
organization is intergovernmental, it must enter into an
agreement with the Economic and Social Council defining
the terms on which the organization shall be brought into
relationship with the U.N. 27 The Council may make such
arrangements with private international organizations as
may be suitable to both parties concerned. 28
f. The International Court of Justice. The Permanent Court of International Justice was created in 1920 shortly after the League of Nations. However, it never became an organic part of the League. When the decision was made during World War I1 to create a new international organization to replace the League of Nations, it was thought best, despite the commendable reputation which the court enjoyed, also to create a new court and to make this new court an organic part of the new organization. Such was done in articles 92-96 of the Charter of the United Nations.
Article 92
The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present charter.
The Statute of the International Court referred to in article 92 was copied almost in its entirety from the Statute of its predecessor, the Permanent Court of International Justice. This was done because the Statute of the Perma- nent Court was highly regarded in international legal cir-cles. Its Statute was never subject to the same criticism as was the Covenant of the League of Nations. 29
The organization of the Court and the opinions it has rendered since its creation will be discussed in section I1 below. 9-3. The Settlementof Disputes by the UnitedNations. Article 1, paragraph 1 of the Charter declares that one of the four purposes of the United Nations is:
U.N. Charter Art. 71. U.N. Charter Arts. 57, para. 1, and 63, para. 1. U.N. Charter Art. 62. U.N. Charter Art. 61, para. 1 (1973 text). 25.
26.
27.
28.
29.
See Goodrich & Hambro, op. ci~ supm note 1, at 476-478 for a discussion of the debates surrounding the decision to discontinue the Permanent Court of International Justice.
To maintain international peace and security, and to that end [I] to take effective collective measures for the pre- vention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and [2] to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
Article 1, paragraph 1 outlines two methods for the main-tenance of peace, the fust is by collective measures when there is a threat to the peace, breach of the peace, or act of aggression; the second is by peaceful settlement of dis- putes. Chapter VI (arts. 33-38) contains the pacific settle- ment provisions of the Charter. These will be discussed before the collective peace enforcement measures are ex- amined.
a. The Pacific Settlement of Disputes. Chapter VI of the Charter (Arts. 33-38) outlines the procedure for the pacific settlement of disputes. This procedure is asfollows:
Article 33
1.
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, fust of all, seek a solution by negotia- tion, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2.
The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.
Article 33 calls upon the parties themselves to seek a solu- tion to any dispute "the continuance of which is likely to endanger the maintenance of intemational 'peace and security." This is the key to the procedure of peaceful set- tlement. 30 The primary duty is placed upon the parties themselves. The means offered are many. The first listed is negotiation. Negotiation is the direct intercourse be- tween two or more states initiated and directed for the purpose of either effecting an understanding between them or settling a dispute. Enquiry is a method of deter- mining the facts of a disputed incident, and of itself is not meant to fm any responsibility that may result from the facts. Mediation is the intervention of a third sovereign who offers his objective solution in an endeavor to bring the two disputing states to an understanding. Conciliation differs from mediation in the fact that the solution is recommended by an impartial body of experts. It is an im- provement on both enquiry and mediation. Enquiry alone offers no solution. Mediation by a sovereign may be in- fluenced by national self-interest. Conciliation also has some advantages over arbitration. Its solution is only a recommendation and therefore not binding as is an ar- bitrator's award. In addition the conciliators are not bound by the narrow legal limits that usually are made the authority of an arbitrator.
30. Eagleton, International Government 499 (3d ed. 1957).
Article 34
The Security Council may investigate any dispute, or any situation which might lead to intemational friction or give rise to a dispute, in order to determine whether the con- tinuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
Article 35
1. Any Member of the United Nations may bring any dis- pute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.
2. ….
3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.
The Security Council affiatively enters the dispute in articles 34-38. In Article 34 the Security Council may, on its own, conduct an investigation to determine if a "dis-pute" or a "situation" is one likely to endanger the main- tenance of international peace and security. Article 35, paragraph 1, fimishes another means of getting a "dis- pute" or "situation" before the General Assembly or the Security Council. Article 35, paragraph 3, was inserted in order to keep distinct the separate roles of the General As- sembly and the Security Council. Article 11 permits the General Assembly to discuss matters relating to interna- tional peace and security and to make recommendations with regard to any such question to the state or states con- cerned or to the Security Council. Article 12 prohibits the General Assembly from recommending a solution to a dispute which the Security Council is then considering, unless the Security Council requests such a recornmenda- tion.
Articles 36, 37, and 38 contain the positive peacemaker rules that can be exercised by the Security Council if such a "dispute" or "situation" exists. Under article 36 it may recommend the procedure for settlement, be it arbitra- tion, conciliation, or adjudication. For example, in the
1946 Corfu Channel dispute between Albania and the United Kingdom, the Security Council recommended that the parties go before the International Court of Justice. 31 If the parties themselves cannot settle their dis- putes they are obliged to refer it to the Security Council who may, under article 37, either recommend a procedure for settlement or recommend the actual terms of settlement. Article 38 permits the Security Council to make recommendations to the parties at any stage of a dis- pute if the parties so request. Article 36 places the Security Council in the role of a mediator. In articles 37 and 38, the Security Council is given the authority of a conciliator. Mediation and conciliation, the two nonjudicial means of settling disputes, are therefore put at the disposal of the Security Council.
31. Id. at 360, 506, 507.
Pam 27-161-1
The weakness in chapter VI is that nowhere are the par-
3
ties actually obliged to settle the dispute. 32 Article 33 only imposes upon them the burden to seek a solution. If they cannot find a solution, article 37 requires them to refer the matter to the Security Council. However, the Security Council can only recommend a solution to them. Neither party is bound to accept this recommendation.
If the procedure of padk settlement is exhausted by the stages described above the Security Council may under the enforcement action of chapter W apply sanctions if the unsolved situation constitutes a breach of the peace, a threat to the peace, or an act of aggression.
b. The Forcible Settlement of Disputes
(1)
The Charter Provisions. Chapter W (Articles 39-50) outlines measures which are to be adopted by the United Nations in the event of (1) a threat to the peace,
(2)
breach of the peace, or (3) an act of aggression. Before settingforth chapter W,it is necessary to quote three arti- cles of the Charter which precede it and which throw light upon the chapter's meaning.
Article 2(7)
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are es- sentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to set- tlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under chapter W.
Article 24(1) In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of in- ternational peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in ac- cordance with the present Charter.
CHAPTER W
ACTION WITH RESPECT TO THREATS TO
THE PEACE, BREACHES OF THE PEACE,
AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggres- sion and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42, to maintain or restore international peace and security.
Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommenda- tions or deciding upon the measures provided for in Arti-
32. Eagleton, op. cit. supra note 29, at 502.
cle 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desira- ble. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
Article 41
The Security Council may decide what measures not in- volving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic rela- tions and of rail, sea,air, postal, telegraphic, radio, and other means of communication, and the severance of dip- lomatic relations.
Article 42
Should the Security Council consider that measures pro- vided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Na- tions.
Article 43 All members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, in- cluding rights of passage, necessary for the purpose of maintaining international peace and security.
Two developments not contemplated at San Francisco in 1945 have altered somewhat the method which the drafters of the Charter outlined in chapter W. The first was the failure of all members to enter into any agree- ments which would place armed forces at the call of the Security Council. The second was the cold war and the rise of anticolonial sentiment which prevented, to a great ex- tent, the unanimity of action required of the permanent members before the Security Council could take effective action. The result has not been inaction on the part of the World Organization. It has reacted to criseswith the forces at hand, and through the organ or organs best adapted at the moment to deal with the situation. For example, the Security Council was the fust to react in Korea in 1950, followed by the General Assembly when the Security Council was no longer able to function effectively. In Suez in 1956 it was the General Assembly alone. In 1960 both the Security Council and the General Assembly played roles in this crisis. In addition, the Secretariat took over the functions originally contemplated by the Military Staff Committee established under Article 47 to advise the Security Council on all questions relating to its military re- quirements and the armed forces that were to be at its dis-
posal. A partial survey of United Nations practice in peace keeping will illustrate the actual operation of the Charter provisions.
United Nations Practice. (2)
(a)
Korea. Hostilities in Korea commenced on June 24, 1950. On June 25 the Security Council was con- vened at the request of the United States to consider the matter. The Security Council, under Article 39, deter- mined by a vote of 9-0, with one abstention, and one member absent (U.S.S.R.) ,that a breach of the peace had occurred. Under Article 40, the Security Council then called for an immediate cessation of hostilities and the withdrawal of North Korean forces to the 38th parallel. 33 On June 27, when the Security Council again met, it was evident that the North Korean forces had not complied with the provisional measures of the day before. The Security Council was then faced with a problem. It had no forces at its disposal because no agreements under article 43 to place national forces at the disposal of the Security Council had ever been entered into by any member. The Security Council therefore under Article 42, made the following recommendation on June 27:
The Security Council . . . recommends that the Mem- bers of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area. 34
Lacking any real militarycommand structure for directing the efforts of the member states who complied with the recommendation on June 27, the Security Council on July 7 further recommended that:
All members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance availa- ble to a unified command under the United States. 35
The United States, therefore, acted as the agent of the United Nations in Korea. General MacArthur was ap- pointed by the President of the United States to command this unified command. However, it was the United States which directed the unified command. The United States did so in compliance with the Security Council's recom- mendation on July 7. The died command was formed by a series of bilateral agreements between the contribut- ing members and the United States.
When the Soviet Union returned to the Security Council the Council was unable to take further effective action. The Soviet Union was absent because of its boycott of the Council over the Council's refusal to seat the Red Chinese Government. The U.S.S.R. was under the mistaken im-pression that its absence amounted to a veto of Security Council actions. The arena of UN activity then switched to
33.
5 U.N. SCOR (473rd mtg.) 7, 13-14 S/1501 (1950).
34.
5 U.N. SCOR (474 mtg) S/1511 (1950).
35.
5 U.N. GAOR Supp. (No. 2) 25 M1361, U.N. Doc.S/1583,9
U.N. Bull. No. 3, 96 (1950).
the General Assembly. Under its now famous "Uniting
for Peace Resolution" the General Assembly made the
following statement:
If the Security Council, because of lack of unanimity of
the permanent members, fails to exercise its primary
responsibility for the maintenance of international peace
and security [the General Assembly may] make appropri-
ate recommendations to Members for collective
measures, including in the case of a breach of the peace or
act of aggression the use of armed forces when necessary,
to maintain or restore international peace and security. 36
The General Assembly assumed this secondary respon- sibility for the maintenance of peace under articles 10 and 11 of the Charter which permit it to make recommenda- tions to members of the U.N. It was hotly debated at the time of the General Assembly actually had such authority. 37 However, subsequent events in the Middle East and the Congo have confumed in practice and law the existence of such authority. 38
Before examining these situations, however, it should be noted that the United Nations Command in Korea still fulfis its functions although it is the United States which carries out these functions on behalf of the United Na- tions. In 1975, the United States informed the U.N. Security Council that it was ready to terminate the U.N. Command in Korea provided that an alternative arrange- ment could be made for maintaining the 1953 armistice accord. In the same year, the U.N. General Assembly adopted two competing resolutions on Korea. Resolution 3390 A, supported by the United States, called for negotiations to find an alternative arrangement for preserving the Korean armistice by the nations directly in- volved-North and South Korea, China, and the United States. Resolution 3390 B called for a dissolution of the
U.N. Command, withdrawal of all foreign troops from South Korea, and for a peace agreement between the "real parties to the armistice." 39 The Korean situation awaits future developments and a final settlement, but this has not altered the historical fact of United Nations inter- vention and its authority to do so.
(b) The Middle East. When fighting broke out on 29 October 1956 between Egypt and Israel, the Security Council attempted to pass a resolution calling for a cease fire under article 40. 40 This resolution was vetoed by England and France. Here then was the first difference be- tween the U.N. action in the Middle East and in Korea.
36. U.N. Gen. Ass. Off. Rec. 5th Sess. Supp. No. 20, 10 (M1775) (1950).
37. See Stone, Legal Controls of International Codict 268-278
(1959) for a synopsis of the argument for and against the legality under .articles 10 and 11 of the "Uniting for Peace" Resolution.
38. Advisory Opinion on Certain Expenses of the United Nations, (1962) I.C.J. 151.
39. Digest of United Sutes Practice in International Law 820-827 (Dept. of State 1975).
40. 11 U.N. SCOR S/3710 (Oct -NOV-Dee 1956).
The Security Council could not act at all. On November 2, the General Assembly then took up the matter. It called for a cease fire. 41 None of the parties to the hostilities, which now included England and France, carried out im- mediately the terms of the General Assembly call for a ceasefire. On November 4, the General Assembly, under section A of its Uniting for Peace Resolution, called for a voluntary U.N. Force to restore peace and security in the area. 42 The General Assembly intended to call for an en- tirely new force and not to utilize the Unified Command which had been organized at the start of the Korean War and which was still in existence in Korea. England an- nounced that she would welcome such a force if Egypt agreed that such a force could enter her territory. 43 On November 7 all hostilities had ceased. Therefore, the force which the General Assembly intended to send did not have the mission of restoring peace, but of maintain- ing it. Peace had already been restored. The force could be small. Therefore, instead of working through a big power agent as was done in Korea, the General Assembly authorized the Secretary General to gather such a force entitled The United Nations Emergency Force. 44 The General Assembly formed an Advisory Committee on 7 November 1956 to assist the Secretary General. 45 The Secretary General, after consulting with the Advisory Committee, issued regulations for this United Nations Emergency Force on 20 February 1957.46 These regula- tions defined the relationship between the Force and the host state, the relationship between the contributing members and the Force, and the relationship between the Force and the United Nations.
The United Nations Emergency Force was more an emergency police force, than it was an emergency military force. It could not compare in power to the Unified Com- mand in Korea. It did serve to help maintain the peace for eleven years. In 1967, the United Arab Republic re- quested the withdrawal of UN troops from its territory. Secretary General U Thant ordered the withdrawal, and the 1967 Middle East War followed.
(c) The Congo. On 12 July 1960, the President and the Prime Minister of the Republic of the Congo ad- dressed to the Secretary General a message requesting military assistance becauseof the dispatch of troops from Belgium to the Congo. 47 There was at the same time a breakdown of internal order in the Congo. However, this fact did not prompt the request for assistance. On July 13
U.N. Doc. S/4382 (1960). Id. at Resolution 1'001 (ES-1). Id. at Resolution 998 (ES-1). 41.
U.N. GAOR (1st Emg.Sp. Sess. Supp. No. 1, Res. 997) (ES-1) (1956).
42.
43.
Reply by the British Gov't to Mr. Harnmarskjold's cable of Nov. 4, 1956, Nov. 5, 1956.
44.
U.N. GAOR (1st Emg. Sp. Sess. Supp. No. 1, Res. 1000) (ES-1) (1956).
45.
46.
ST/Smetary-General's Bulletin, United Nations Emergency Force, No. 1, dated 20 February 1957.
47.
the Congo leaders made it clear to the Secretary General
that the purpose of the request was to protect the Congo
from Belgian military intervention.
The Secretary General requested an urgent meeting of the Security Council and presented to it the requests he had received from the Congo Republic. No threat of veto stood in the way of any action the Security Council decided to order. The Security Council adopted two basic resolutions. The first on 14 July "called upon" the Government of Belgium to withdraw its troops from the territory of the Congo and authorized the Secretary General:
To take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance, as may be necessary, until, through the efforts of the Congo Government with the technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks. 48
There was an interplay at the beginning between the pres- ence of Belgian troops and the breakdown of law and order. Belgum originally intervened because law and order had broken down. Therefore, in order to hasten the withdrawal of Belgian troops, the Security Council authorized the Secretary General to use U.N. troops to assist the local authorities in restoring law and order.
The Secretary General, under authority of the Security Council Resolution of July 14, 1960, proceeded to organ- ize a force based as far as possible upon his experience in the Middle East. However, there was one basic difference. In 1956 the United Nations Emergency Force was estab- lished by the General Assembly as a subsidiary organ with a United Nations Commander appointed by the Assem- bly, who has acted under the instructions and guidance of the Secretary General. The force authorized for the Congo was exclusively under the c~rnrnand of the Secretary General as the agent of the Security Council.
On July 22, 1960, the Security Council passed a second resolution which stated that the complete restoration of law and order in the Republic of the Congo would con- tribute to the maintenance of international peace and security. 49 With the passage of this resolution, the rnis- sion of the U.N. in the Congo became twofold, (1) to hasten the withdrawal of the Belgian troops and (2) to restore law and order. The requests of the Congo on July 12 and 13 only applied to the first. However, on July 29, 1960, the Government of the Republic of the Congo agreed with the Secretary General that it "will be guided, in good faith, by the fact that it has requested military assistance from the United Nations and by its acceptance
48.
U.N. Doc. S/4387, text of which is contained in 43 Dep't State Bull. 161 (1 August 1960).
49.
U.N. Doc. S/4405, text of which is contained in 43 Dep't State Bull. 223 (8 August 1960).
of the resolutions of the Security Council of July 14 and
22, 1960." 50 On November 27, 1961 regulations somewhat similar to those for the United Nations Emergency Force in the Middle East were adopted for the United Nations Force in the Congo. The force included at its greatest extent 20,000 soldiers from a number of participating nations. It remained in the Congo from July of 1960 until June of 1964. The purpose of the force was to maintain law and order, to prevent foreign intervention, and to help unify the country. With United States support it was largely responsible for defeating the attempt of the province of Katanga to be independent. After resistance in Katanga had been eliminated, the U.N. force was withdrawn. This proved to be premature. The leader of the Katanga reces- sionist movement, Thsombe, returned. A full-scale civil war ensued. At one point, the United States supported Belgium in a paratroop operation to rescue several hundred white persons held as hostages. 51
(d) Other Situations and Future Prospects. Another situation which should be mentioned was the creation of a United Nations peace-keeping force in Cyprus in 1964. This force was never, however, made large enough to accomplish any other purpose than con- tributing to the negotiation between the rival parties. Due to negative reaction against the Congo operation, the
U.N. force in Cyprus was deliberately kept small to avoid taking any side in the conflict. Firepower was not used ex- cept for self-defense. Meanwhile, the United Nations called for negotiation and settlement. It was to no avail. Turkey intervened and partitioned the island by force. A final settlement is still awaited. The Korean situation was an example of the fact that effective action could be taken where enough of the mem- bers of the United Nations support it. While the fact that the USSR was not present in the Security Council to block initial action may be unique, the Uniting for Peace Resolution still stands as a possible means for the United Nations to take military action to keep the peace even where the members of the Security Council disagree. To what extent it will act in the future is doubtful.
In the Suez, United Nations intervention was only effec- tive while the support remained to keep the force there.
The fact that it was so quickly withdrawn indicated lack of support for its presence. The Congo operation resulted in a feeling by many states that the United Nations should not become directly involved in disputes through military intervention. It may be impossible not to support either one side or the other. Direct U.N. military intervention has since that time remained on a low level as in the Cyprus situation. And while the United Nations has ac- tively debated almost every conflict which occurs in the world, the major peace movements have taken place out- side of its control. The Vietnam war ended with an agree- ment negotiated mainly between the United States and North Vietnam. 52 The latest Arab-Israeli hostilities were with an agreement between Egypt and Israel with the United States agreeing to station a small civilian force to monitor the peace. 53 It seems that there is an increasing tendency for peace keeping to take place either as the result of the individual relations of the parties involved or through the intervention of one of the great powers. This does not mean that this tendency will continue, nor that any conflict situation should be examined without reference to United Nations settlement requirements or effort.
The fact that the United Nations may take effective action
in the future remains a definite possibility. Also, the
United Nations seems to be taking an increasingly impor- tant role in the settlement of disputes by its influence on world opinion as to when force may or may not be justified on the part of a state. After many years of study, the United Nations issued, in 1974, Resolution 3314, which defined Aggression. It has also issued many other resolutions, such as Resolution 2625 on The Principles of International Law concerning Friendly Relations and Co- Operation Among States (Adopted in 1970). The study of these resolutions involve the legality of the use of force and should be studied in detail in relation to the law of war. However, it has become a function of the United Na- tions to define and interpret rules of international law even though it cannot make law. If the member states are con- vinced of the illegality of the acts of any particular state, all of the peace keeping powers enumerated in the Charter may be utilized.
Section 11. THE INTERNATN )NAL COURT OF JUSTICE
9-4. The Judges of the Court. The Court consists of 15 judges, elected for nine-year terms no two of whom are nationals of the same state. 54 Vacancies are faed by a complicated procedure. The Secretary General of the United Nations addresses a written request to the mem- bers of the Permanent Court of Arbitration inviting them to nominate candidates for the position. 55 Each state group on the Permanent Court of Arbitration nominates not more than two persons if one seat is to be fded. If
50. U.N. Doc. S/4389, Add. 5 (1960).
Stat. Int'l Ct. Just. art. 3, para. 1. 51.
See "The Question of the Congo" in Everyman's Unigd Na-tions. supra, n. 1 at 143.
52.
Agreement on Ending the War in Vietnam, 1973, United States -North Vietnam, 24 U.S.T. 1, T.I.A.S. No. 7542.
53.
Peace Agreement and U.S. Proposal, 1975, Fgypt-Israel, in Dept. of State Bull. LXXIII, No. 1982, Sep. 29, 1975, pp. 466-470.
54.
55.
Stat. Int'l Ct. Just. art. 5, para. 1. The Permanent Court of Ar-bitration was formed in 1899. It is not a court in the institutional sense of the term, but rather a list of from 150 to 200 persons from whom a panel of arbitrators may be selected. Panels drawn from this list have handled 20 cases, many of which were extremely important. The Court, though not used since 1940, is still in existence.
Pam 27-161-1
more than one seat is to be fded, each group may nomi-
\ nate up to four, no two of whom are of its own na-tionality. 56 In making up its list, each national group is urged to consult its highest court ofjustice, schools of law, and national academies. 57 The Secretary General places all nominations on one list, a copy of which he sends to the Security Council and the General Assembly. 58 The candi- date or candidates who obtain an absolute majority of votes in the separate elections which are held in the General Assembly and in the Security Council shall be considered elected for a nine-year term. 59 The members of the Security Council and General Assembly are urged befhe the election to bear in mind that the court should represent the principal legal systems of the world. 60 In this way two Communist judges are usually elected to the Court despite the fact that Communist states will not uti-lize the Court as applicants or allow themselves to be brought before it as respondents. 9-5. The Law Applied by the Court. Article 33
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a.
international conventions, whether general or partic- ular, establishing rules expressly recognized by the con- testing states;
b.
International custom, as evidence of a general prac- tice accepted as law;
c.
the general principles of law recognized by civilized nations;
d.
subject to the provisions of article 59 [article59 pro-vides that "the decision of the Court has no binding force except between the parties and in respect of that particular case"], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as sub-sidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
9-6. The Jurisdiction of the Court. It must be born in mind at the outset that only states may be parties before the Intemational Court of Justice. 61 The Court assumes jurisdiction of a dispute or disagreement in two ways. The first is with the consent of the states concerned. These are usually called "contentious cases" because there are two parties actually in a dispute before the court. The second type of case is an "advisory opinion" requested by an
56. Stat. Int'l Ct. Just, art. 5, para. 4 and art. 14.
57. Id. art. 6. See Baxter, The Procedure Employed in Connection with the United Skates Nominations for the International Court in 1960, 55 Am. J. Int'l L. 545 (1961), for an account of the actual operation in the United States of article 6.
58.
Stat. Int'l Ct. Just. art. 7.
59.
Id. at arts. 10 and 13.
60.
Id. at arts. 10 and 13.
61.
Id. at art. 34, para. 1.
authorized international organization. 62
a. Contentious Cases. Two members of the United Nations may agree to take a certain dispute which has arisen between them before the International Court. They may do this on ad hoc basis 63 or may agree beforehand that in the future the Court willhave jurisdiction in certain cases. 64 This latter method is prohded by the so-called "optional clause" of the Statute of the Court. This clause is as follows:
Article 36(2). The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state aaxpthg the same obligation, the jurisdiction of the Court in all legal disputes concern- ing:
a.
the interpretation of a treaty;
b.
any question of international law;
c.
the existence of any fact which, if established, would constitute a breach of an international obligation;
d.
the nature or extent of the reparation to be made for the breach of an international obliga- tion.
The declarations referred to above may be made uncondi- tionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
All members of the United Nations are automatically par- ties to the International Court. 65 Thisfact, however, does not permit one U.N. member to bring another before the International Court unless that member consents, either beforehand by accepting the "optional clause", at the time by an ad hoe agreement between the parties con-
,
62. The following organs and agencies are at present authorized to request advisory opinions:
United Nations:
General Assembly,
security Council,
Economic and Social Council,
Trusteeship Council,
Interim Committee of the General Assembly,
Committee on Applications for Review of Administrative Tribunal
Judgements; International Labour Orgarhtion; Food and Agriculture Chganhtion of the united Nations; United Nations Educational, Scientific and Cultural Organization; World Health Orgmization; International Bank for Reconstruction and Development; International Fice Corporation; International Development Association; International Monetary Fund; International Civil Aviation Chganhtion; International Telecommunication Union; World Meteom1ogicel Orgarhtion; Inter-Governmental Maritime Consultative Chganhtion; International Atomic Energy Agency.
63.
Stat. Int'l Ct. Just. art. 36, para. 1.
64.
Id. at art. 36, para. 2.
65.
U.N. Charter art. 93, para. 1.
Pam 27-161-1
cerned, or beforehand by a separate agreement.
A majority of the members of the United Nations has not accepted the "optional clause". 66 Those that have, have usually done so with reservations. The United States has accepted the "optional clause" with a reservation which reserves from the jurisdiction of the court. "Dis- putes with regard to matters which are essentially within the domestic jurisdiction of the United States." 67 This reservation would, on the whole, be innocuous but for the addition to it of the now well-known "Connally Reserva- tion." To this phrase Senator Connally added the words "as determined by the United States." The legal diff~culty created by this addition is that article 36, paragraph 6, of the Statute of the International Court requires:
In the event of a dispute as to whether the court has ju- risdiction, the matter shall be settled by the decision of the Court.
The Court has not yet been required to pass upon the compatibility of the Connally Reservation with the re- quirements of article 36, paragraph 6.
b. Advisory Opinions. The rendering of advisory op@- ions by the International Court is governed by Article 96 of the Charter of the United Nations and by Articles 65-68 of the Statute of the Court. Article 96 of the Charter authorized the General Assembly or the Security Council to request the International Court of Justice to give an advisory opinion on any legal question. The General Assembly has taken advantage of this oppor- tunity twelve times. The Security Council has asked the Court for only one advisory opinion. A brief analysis of the advisory opinions rendered by the Court follows.
9-7. Cases Before the Court. The International Court, as any court, can best be understood and evaluated by analyzing and understanding the disputes with which it has dealt, and the effect it has had upon their solution. Therefore, it will be the purpose of the remainder of this chapter to present the cases upon which the court has ren- dered an opinion. The contentious cases are presented under four general headings: Disputes relating to Ter- ritorial Rights; Disputes relating to Violation of Airspace; Disputes relating to Nationals; and Disputes of a Com- mercial Nature. 68 Within each topic area the cases are generally presented chronologically according to the date the dispute was presented to the Court. The advisoryopin-ions are also generally presented in chronological order ac-
66.
As of August 15, 1960, 38 states accepted the "optional clause," U.N. OK of Public Information, The International Court of Justice, 9 (2d ed. 1960).This faure was unchanged as of Jan. 1, 1963, Dep't State, Treaties in Force 280 (1963).
67.
Res. 196,Aug. 2, 1946. Text of the United States declaration at the time of its adherence to the compulsory jurisdiction of the Int'l Ct. Just. on Aug. 26, 1946 is contained in 15 Dep't State Bull. 452-453 (1946)and in 61 Stat. 1218 (1946).
68.
Where a particular decision may have connections with several topic areas, a cross-reference has been made. Additionally, several ad-visory opinions have been cross-referenced into the contentions cases.
cording to the date the Court is requested 69 to render the opinion.
a. Contentious Cases.
(1) Disputes relating to territorial rights. 70
The Corfu Channel Case (United Kingdom v. Albania) (1947-1949). 71 In 1946 several British warships were fued upon by Albania shore batteries while proceeding through the Corfu Channel which lies within the territorial waters of Albania. Great Britain protested and announced that she was sending warships again through the Channel with instructions to fue iffued upon. No fue came from the Albanian shore batteries. However, two of the ships struck mines which caused considerable damage and loss of life. Great Britain then, against the protests of Albania, swept the Channel clear of mines.
Albania, along with all other Communist states, had not accepted the "optional clause" in any form. However, upon the urging of the Security Council both Great Britain and Albania agreed to submit the dispute to the Interna- tional Court. After agreeing to submit the case, Albania challenged the jurisdiction of the Court to award damages against it, on the ground that it had only agreed to a limited submission to the jurisdiction of the Court. This objection was overruled.
The Court considered that it could not hold a state auto- matically responsible for everything that occurs within its territory. However, the evidence of this case certainly showed that Albania had knowledge of the existence of the mines. Therefore, Albania was liable to Great Britain for the damages sustained if Great Britain had a right to use the Corfb Channel. The Court held that since it was a shipping lane connecting two open bodies of water all states had a right to it in time of peace for innocent passage. The Court refused to distinguish between major and minor shipping lanes for the purposes of the right of innocent passage. It also refused to say that Great Britain's second passage was not innocent merely because it was performed to test Albania's hostile intentions. However, Great Britain's third entry into the channel in order to sweep it of mines was not for the purpose of passage. Therefore, it amounted to an unauthorized invasion of Albanian territory. Albania was ordered to pay a total sum of 844,000 pounds for the damage caused to the ships and
See supra note 9. 69.
70.
For related "contentions" case, see Appeal Relating to the Ju- risdiction ofthe ICAO Council, idra note 63;for related advisory opin- ion, see International States of Southwest rqfrca, idra note 100;Legal Consequences for States of the Continued Presence of South Ajrica in Namibia (South West Africa) notwithstanding Securiw Council Resolu- tion 276 (1970). idra note 108 and Western Sahara, iqfra note 113.
71. The case was heard in three phases by the Court: Corfu Chan- nel Case (Preliminary Objection) [I9471I.C.J. Rep. 7, 15; Corfu Chan-nel Case (Merits) [I9471I.C.J. Rep. 4;Corfu Channel Case (Assess-ment of the Amount of Compensation) [I9491I.C.J. Rep. 237.Cases are reported in 42 Am. J. Int? L. 690 (1948); 43 Am. J. Int? 558 (1949);and in 44Am. J. Int'l L. 579 (1950).
as compensation for the deaths of the members of the
\ crews and for personal injuries. Albania refused to take part in the hearing on the amount of the damages and has ignored the order to pay Great Britain.
The Security Council played a role in this case that from subsequent cases, has been somewhat unique. It was the Security Council which recommended, pursuant to its authority under article 36, paragraph 1, of the Charter that the parties take their disputes to the International Court. It was also the Security Council to which Great Britain, under article 95, paragraph 2, of the Charter, brought its complaint of Albania's refusal to pay the assessed damages.
The Fisheries Case (United Kingdom v. Norway) (1949-1951). 72 In 1935 Norway enacted a decree by which it measured its territorial waters outward from a series of straight base lines which were drawn between points along its famous rock rampart. This rampart is formed by numerous small islands lying off almost the en- tire length of the Norwegian Coast. By such a method Norway was able to include within its territorial waters certain fishing grounds for the exclusive use of its own fishermen to the detriment of British fishemen. Great Britain challenged the validity of this system of measure- ment, contending that a time-honored rule of interna- tional law required that territorial seas be measured from the coast. The Court did not dispute the general ap- plicability of the rule contended for by Great Britain, but qualified it in this case because of the geographical peculiarities of the Norwegian Coast.
The Minquiers and Ecrehos Case (France v. United Kingdom) 73 (1 95 1 -1 953). 74 Minquiers and Ecrehos are two small groups of islets lying off the coast of France. Both were claimed by Great Britain and France. Under a special agreement between France and the United Kingdom, the Court was asked to determine which of the partieshad produced a more convincing proof of title. The decision of the Court reveals its approach to ownership of territory. It gave little weight to titles founded on docu- ments drawn up in the Middle Ages. It was more con- cerned with the direct evidence of possession and the ac- tual exercise of sovereignty. Both sides contended for cer- tain "critical dates" at which their titles became vested. They then sought to exclude evidence of the exercise of sovereignty by the other which might have occurred after their proposed "critical date." The Court avoided setting such a date, noting that Great Britain had exercised almost uninterrupted sovereignty over both islets. On that basis title in Great Britain was affied. The Court gave no
72. [I9511I.C.J. Rep. 3;reported in 46 Am J. Int? L. 348 (1952). cf, North Sea Continental SheU; idra note 39 and Fisheries Jurirdlcrion idra notes 42 and 44.
73. In proceedings instituted by means of a special agreement, the names of the parties are separated by an oblique line.
74. [I9531I.C.J. Rep. 4;reported in 48Am. J. Int7 L. 316 (1954);
weight in and of itself to the fact that the islets were
geographically closer to France than they were to England. The Antarctica Case (United Kingdom v. Argentina) (1955- 1956). 75 The government of the United Kingdom instituted this proceeding against the government of Argentina seeking a resolution of a dispute as to the sovereignty of certain islands and lands in the Antarctic. Since the government of Argentina did not consent to the jurisdiction of the court, the case was removed from the Court's list without decision. 76
The Antarctica Case (United Kingdom v. Republic of Chile) (1955-1956). 77 The government of the United Kingdom instituted this proceeding against the govern- ment of Chile seeking a resolution of a dispute as to the sovereignty of certain islands and lands in the Antarctic. Since the government of Chile did not consent to the ju- risdiction of the court, the case was removed from the Court's list without decision. 78
The Right of Passage over Indian Territory Case (Portugal
v. India) (1955-1960). 79 Portugal possessed in India, at some distance inland from the Portuguese port of Daman, the two enclaves of Dadia and Nagar-Aveli. Portugal con- tended that the right of passage to and between these enclaves suff~cient for the exercise of its sovereignty had been denied by India. Portugal based its right of passage on agreements entered into in the 18th century, local custom since that time, and on general international law concerning enclaves. The Court found that Portugal had in 1954 the right of passage claimed by it but that such right was limited to the passage of private persons, civil of- ficials, and goods in general and did not extend to armed forces, armed police, arms, and ammunition. The Court found that the control so far exercised by India did not restrict Portugal in the exercise of its legitimate limited right of passage. In deciding the case, the Court acknowledged the existence of binding custom of local ap- plication distinct from general customary international law. India contested vigorously the Court's jurisdiction in this case. On December 18,1961, seventeen months after this opinion was delivered, India seized all Portuguese ter- ritory on the subcontinent of India. 80
The Sovereignty over Certain Frontier Land Case (Belgium v. The Netherlands) (1957-1 959). 81 The Belgian commune of Baerle-Duc and the Netherlands commune of Baarle-Nassau adjoin. A Communal Minute drawn up about 1838 attributed the now disputed land to
75.
[I9561I.C.J. Rep. 12;digested in 51 Am. J. Int'IL. 11 (1957).
76.
See [1955-19561I.C.J.Y.B. 77.
77.
[I9561I.C.J. Rep. 15;digested in 51 Am J: Int'IL. 11 (1957).
78.
See [1955-19561I.C.J.Y.B.77.
79.
(19601I.C.J. Rep. 6;digested in Am. J. In17 L. 673 (1960).
80. For a legal analysis of this seizure see Wright, The GOA Inci-dent, 56 Am. J. Int? L. 617 (1962).
81. [I9581I.C.J. Rep. 209; digested in 53 Am. J. Int7 L. 937 (1959).
Baarle-Nassau. The Descriptive Minute and the Boundary Convention of 1843 attributed the land to Baerle-Duc. The Netherlands claimed that this was a clerical mistake because the Descriptive Minute was supposed to be simi- lar to the Communal Minute. The Court did not find ~~cient
evidence that a mistake had actually been made. Therefore, in 1843 the land belonged to Belgium.Since 1843 the Court did not find suff~cient exercise of sovereignty on the part of the Netherlands to replace the title already vested in Belgium.
The Court's reasoning here should be compared to that in the Minquiers and Ecrehos Case. 82 Had the Netherlands been able to put forward as strong a caseas did Great Brit- ain for the exercise of its sovereignty over the disputed land the result might have been different. It is not possible to say so with any great assurance because the extent of adverse possession in international law is not clear. In the Minquiers and Ecrehos Case the Court never concluded that France at any time had title to the islets. Therefore, Great Britain's exercise of sovereignty was not adverse to any other title holder.
The Arbitral Award Made by the King of Spain on 23 December 1906 Case (Honduras v. Nicaragua) (1958-1960). 83 On October 7, 1894, Honduras and Nicaragua signed a convention for the demarcation of the boundary between the two countries. In October 1904, the King of Spain was asked to determine that part of the frontier line on which the two countries had been unable to reach agreement. The King gave his arbitral award on December 23, 1906. Nicaragua refused to comply with it on the grounds that no reasons were given for the deter- minations made, that the King of Spain had no authority to make the award, and that the award was not clear. The Court rejected these objections, holding that Nicaragua must comply with the award. The Court was not asked to re-examine the actual basis of the award or to draw a new boundary itself.
The case illustrates the difficulties that arise when the basis of an arbiter's award is attacked. Naturally an arbitrator's powers are limited and if he exceeds them his award may be invalid. The difftculty is establishing suitable procedures for determining if the power has actually been exceeded. It was only resolved in this caseafter a resolu- tion of the Organization of American States requested the parties to take the dispute to the International Court of Justice.
The Temple of Preah Vihear Case (Cambodia v. Thai-land) (1959-1962). 84 The merits of the case involve a dispute as to territorial sovereignty over the region of the Temple of Preah Vihear and its precincts. It represents the
82. See supra note 2 1.
I19621I.C.J. Rep. 6;digested in 56 Am J. IntlL.1033 (1962). 83.
[I9601 I.C.J. Rep. 192; digested in 55 Am. J. Int? L. 478 (1961).
84.
kind of dispute the World Court is capable of solving. It awarded the disputed territory to Cambodia, and Thailand announced its wihgness to abide by the decision. In the preliminary objections Thailand argued forcefully that its adherence to the compulsory jurisdiction of the Interna- tional Court made on 26 May 1950, was ineffective because it had intended to renew its 1940 adherence to the Permanent Court. Under the reasoning of the Court in the Aerial Incident of 27 Jub 1955 between Israel and Bulgaria, 85 the Court held that adherences, such as Bulgaria's, had lapsed when the World Court was discon- tinued. Thailand maintained that hers was similar to Bulgaria's. Therefore she could not "renew" something that had lapsed five years previously. The Court refused to extend the rule to Thailand because it looked upon Thai- land's 1950 adherence as a straightforward adherence and not as a renewal. The Court then went to the merits.
According to the Treaty of 13 February 1904 between France and Siam the frontier was to follow the watershed line. In the autumn of 1907 the Thai (then Siamese) Government, which had no mapping service, requested the French to map the frontier region. The French did so. The map supplied the Siamese Govemment showed the Temple on the Cambodian side of the Frontier.
Thai officials said nothing. It was not until 1958 that they maintained that the Temple region was on the Thai side of the watershed. Therefore, under the Treaty of 1904, the territory belongs to Thailand, the map being unofficial and not part of the treaty document.
The Court agreed that it was not part of the treaty. The Court also said that it did not have to decide if the map was inconsistent with the treaty because Thailand had shown by its silence that it accepted the map as accurate. Thailand explained her silence by contending that her local officers in fact had been in possession of the Temple from the beginning.The Court rejected the effect of local Thaiacts around the Temple which appeared to be in con- flict with the view of the Thai Central Government. For example, when the Prince of Siam visited the Temple in 1930, he was welcomed there by the French President of Cambodia province. No protest of comment was made.
The case is interesting for its discussion of mistake. Again, the court, as in the Frontier Case86 was slow to say that mistake will negate consent. Also, the acts of sovereignty of local officials will not be sufficient if not clearly reflect- ing central authority. In the Minquiers and Ecrehos case, 87 the acts performed did reflect the views of the Bri- tish Government.
The South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa) (1960-1966). 88 The govern- ments of Ethiopia and Liberia filed separate actions (which
8s. See igra note 55.
86.
See supra note 28.
87.
See supra note 21.
88. [I9661I.C.J. Rep. 6;reported in 61 Am.J. Int?L. 116 (1967).
were consolidated by the Court) concerning the status of the League of Nations mandate for South West Africa and whether South Afiica had breached certain limitations of the mandate (e.g., alleged "military training of the na-tives," alleged erection of military installations in the ter- ritory, etc.), as well as certain responsibilities. After con- sidering many arguments by Ethiopia and Liberia with regard to their standing to raise issues concerning the ex- istence of the mandate and South Africa's conduct thereunder, the Court declined to decide the case on the merits fmding that (notwithstanding the nonexistence of a body, e.g., the Council of the League of Nations, that could properly bring into question the conduct of a man- datory) the applicants had not established any right to raise the issues in question to the Court. As a result, the Court rejected the claims. 89
The Northern Cameroons Case (Cameroon v. United Kingdom) (1961-1963). 90 This dispute concerned the Cameroons which were part of the territory renounced by Germany in the Treaty of Versailles and which were placed under two League of Nations mandat-ne under France and one under the United Kingdom. The United Kingdom further divided its mandate into North- ern Cameroons (administered as a part of Nigeria) and Southern Cameroons (administered separately from Nigeria). Upon the creation of the United Nations, the Cameroons mandates were included in the trusteeship system of the United Nations. In 1960, French-ad- ministered Cameroons gained its independence and became the Republic of Cameroon. On the recommenda- tion of the United Nations General Assembly, the United Kingdom held plebiscites to determine the wishes of the inhabitants of its mandated territory. In early 1961, Southern Cameroons voted to join the Republic of Cameroon, and Northern Cameroons voted to join the Federation of Nigeria. The United Nations General As-sembly approved these results (the Republic of Cameroon voting against the approving resolution) in April 1961 and ordered the trusteeships of the United Kingdom be termi- nated upon Northern Cameroons joining Nigeria and Southern Cameroons joining Cameroon. In May 196 1, the Republic of Cameroon instituted proceedings before the Court claiming that the United Kingdom had breached the provisions of its trusteeship with respect to Northern Cameroons (e.g:, alleged irregularities in hold- ing the plebiscites). Southern Cameroon joined the Re- public of Cameroon in October 1961, and Northern Cameroons became a part of the Federation of Nigeria in 1961. The opinion of the Court was handed down in December 1963. The Court stated that it was not required to hear every case in which it has jurisdiction, as a decision of the Court must have some practical impact and con- tinuing applicability. In the caseat hand, the Court found
89.
See [1965-19661I.C.J.Y.B. 83.
90.
(19631I.C.J. Rep. 15;reported in 58Am J. Int'lL. 488 (1964).
that while a dispute capable of adjudication might have been present when the proceedings were commenced (May 196 I), the dispute had been overcome by interven- ing events, i.e., Northern Cameroons had ceased to exist when it became part of the Republic of Nigeria in June 1961, thus terminating the trusteeship under the order of the United Nations General Assembly (April 1961). A declaratory judgment to the effect that prior to the ter- mination of the trusteeship of Northern Cameroons the United Kingdom had breached its obligations would, the Court declared, be without purpose. At a result, the Court determined that it would not decide the merits of the claims of the Republic of Cameroon. 91
The North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany
v. Netherlands) (1967-1969). 92 In 1967 Denmark, the Netherlands, and the Federal Republic of Germany (FRG) submitted by agreement to the Court the issue of how a portion of the North Sea Shelf should be divided among the three countries. (The claims of the United Kingdom to a portion of the North Sea Shelf had been resolved prior to these proceedings by agreement of the four parties.) Since the North Sea is relatively shallow, it lends itself to exploration for hydrocarbon deposits. Den- mark and the Netherlands argued for a division of the dis- puted Shelf area on the "equidistance principle" which would give to each country those portions of the Shelf that were nearer to its coast than to any point on the coast of any other country. Because of the nature of the Danish/Netherlands Coasts (protruding in the North Sea) and the German Coast (recessing inland), such a theory could have worked to the disadvantage of the FRG. The FRG argued that a "just and equitable share" (based on sea frontage) approach should be adopted. Article 6 of the 1958 Geneva Convention on the Continental Shelf, the Court observed, adopts the "equidistance rule" unless the parties agreed otherwise or "special circumstances" existed. The FRG argued that "special circumstances" did exist in the casei.e., the peculiar formation of the Ger- man Coast. The Court refused to apply either principle ad- vanced by the parties. The "equidistance rule," the Court found, was not binding under the 1958 Geneva Conven- tion because the FRG, although a signatory, had never formally ratified it and the FRG had not operated under it in a way that could give rise to an estoppel argument by Denmark or the Netherlands. Additionally, since the Convention allowed reservations with respect to Article 6, the "equidistance rule" could not be regarded as an emerging principle of customary international law. Likewise, the Court discarded the German proposal (the "equitable share" principle) by fmding that it would be inconsistent to the fundamental rule that "a coastal state's rights in respect of the continental shelf constituting a
9'. See [1963-19641I.C.J.Y.B. 95.
92. [I9691I.C.J. Rep. 3;reported in 63Am.J. Int? L. 591 (1969).
Pam 27-161-1
natural prolongation of its territory, exist pro facto and ab
initio by virtue of its sovereignty over the adjacent
land." 93 The Court concluded by delineating its solution:
''Vlhe boundary lines were to be drawn by agreements reached through good faith and meaningful negotiations, on the basis of equitable principles and taking into account the following particular factors; the general configuration of the parties' coastlines and any special or unusual features thereof; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelfarea involved; and the element of a reasonable degree of proportionality between the extent of the continental shelfarea appertaining to each party and the length of its coast measured in the general direction of the coastline, taking into account the actual or prospective effects of any other continental shelf delimitations in the Same region." 94
The end result, the Court said, should be that each coun- try would receive the natural prolongations of its territory, with any overlap worked out by agreement, either as by a division or by joint exploration.
The Fisheries Jurisdiction Case (United Kmgdom v. Ice- land) (1972- 1974). 95 In this proceeding the United Kingdom protested Iceland's extension of its exclusive fisheries jurisdiction from 12 miles to 50 miles. Iceland did not take part in the proceedings, even though invited to on several occasions. (The Court declined to join this case with that of the Federal Republic of Germany (FRG) against Iceland because, although the basic issues were similar, the United Kingdom and the FRG took different positions with respect to their submissions; see next case.) The Court found that it had jurisdiction to render a judg- ment, despite the absence of Iceland's participation, because it had before it the necessary facts and law: In 1961 the United Kingdom and Iceland agreed by an Ex- change of Notes (which the Court considered a treaty) that the United Kingdom would no longer contest a 12- mile f~hingzone and that Iceland, while working on an extension of its fisheries jurisdiction under the 1959 policy of its Parliament ("Recognition should be obtained of Ice- land's right to the entire Continental Shelf area"), would not extend the zone without six months notice to the United Kingdom; if a dispute were to arise, the matter would be referred to the International Court of Justice. In 1971 Iceland announced to the United Kingdom that the 1961 agreement would be terminated and that the 12- mile limit would be extended to 50 miles. The United Kingdom disputed the right of Iceland to unilaterally ter- minate the 1961 agreement. After a number of incidents, the two countries in 1973 entered into a two year agree- ment by an Exchange of Notes which provided for interim
93.
Himel, Decisions of Internationaland Foreign Tribunals, 4Int'l Lawyer 920, 922 (1970).
94.
Id.
95. [I9741I.C.J. Rep. 3;reportedin 69Am.J. Int'lL. 154 (1975).
provisions "pending a settlement of the substantive dis- pute and without prejudice to the legal position or rights of either government in relation thereto." The United Kingdom sought a determination of four issues: Was Ice- land's claim to a 50 mile exclusive fisheries zone founded in international law? Was Iceland entitled, as against the United Kingdom, to extend the zone beyond the 12 miles agreed to in the 1961 agreement? Was Iceland entitled unilaterally to exclude or impose restrictions on United Kingdom ships beyond the 12 mile zone? And were the United Kingdom and Iceland under a duty to enter into negotiations with respect to conservation of the fisheries? Before addressing these matters on the merits, the Court concluded that the existence of the interim 1973 agree- ments was not a bar to its reaching a decision since the &is-pute was still ongoing. The Court recognized several prin- ciples of customary international law: the acceptance of a 12-mile exclusive fisheries zone and preferential fishing rights for the coastal state in the water immediately con- tiguous to the exclusive zone in situations of special de- pendence. The Court also quoted Article 2 of the 1958 Convention of the High Seas which declares that the prin- ciple of freedom of fishing is to "be exercised by all states with reasonable regard to the interests of other states in their exercise of the freedom of the high seas." (Emphasis added.) Notwithstanding Iceland's preferential fishmg rights, the Court concluded that Iceland could not ex- tinguish the concurrent rights of the United Kingdom in the adjacent waters beyond the 12-mile limit agreed to in 1961. The United Kingdom had traditional fishtng rights in and a certain dependence on the same waters. The at- tempt by Iceland to extend, as against the United Kingdom, its 12-mile limit to a 50-mile limit disregarded the exchange of notes in 1961, the interests of the United Kingdom, and was an infringement on the "reasonable- ness" principle of Article 2 of the 1958 Convention of the High Seas. Therefore, the Court concluded that Iceland could not unilaterally exclude or impose restrictions on United Kingdom ships beyond the 12-mile limit; however, the United Kmgdom was under an obligation in the 12-50 mile zone to take into consideration conserva- tion of the fisheries resources. Iceland and the United Kingdom were found by the Court to be under an obliga- tion to negotiate a solution for the fishing rights in the 12 to 50 mile zone, taking into consideration five factors: Ice- land's preferential fishing rights as a specially dependent coastal state; the traditional fishing rights and dependence of the United Kingdom in these waters; the interests of conservation; the fishing rights of both Iceland and the United Kingdom should be maximized, consonant with conservation considerations; and a continuing obligation to review the resources and the appropriate conservation
measures. 96 The Fisheries Jurisdiction Case (FMeral Republic of Ger-
96. See [1973-19741I.C.J.Y.B. 109.
many v. Iceland) (1972-1974). 97 In this proceeding the Federal Republic of Germany (FRG) protested Iceland's extension of its exclusive fisheries from 12 miles to 50 miles, arising out of the same facts as the immediately pre- ceding case. The Court declined to join this case with that brought by the United Kingdom, because the FRG case had an additional element, i.e., the FRG sought a deter- mination that "the acts of interference by Icelandic coastal patrol boats with fshing vessels registered in the Federal Republic of Germany were unlawful under international law and that Iceland was under an obligation to make compensation therefore to the Federal Republic. 98 Other than for this additional item, the decision in this casemir-rored that issued in the United Kingdom case (see im-mediately preceding case). With respect to the damages issued, the Court held that because of the abstract form of the claim, it was unable to render a decision because of in- sufficient evidence.
The Nuclear Tests Case (Australia v. France) (1973-1974). 99 The Nuclear Tes~
Case (New Zealand v. France) (1973-1974). 100 In 1973 Australia and New Zealand instituted proceedings in the Court to obtain a determination that France's atmospheric nuclear testing in the South Pacific Ocean was inconsistent with interna- tional law. During 1974, the French government made various representations that it intended to cease such test- ing (e.g., Communique of the Office of the President of the French Republic, dated 8 June 1974; note from French Embassy to New Zealahd Ministry of Foreign Affairs, dated 10 June 1974; and various other statements made by French officials, President of the Republic (25 July 1974), Minister of Defense (16 August 1974) and Minister of Foreign Affairs in the United Nations General Assembly (25 Sep 74)). Considering the totality of all the French pronouncements, the Court concluded that it was France's intention to terminate the tests and that they "constituted an undertaking possessing legal effect," 101 notwithstanding they were of a unilateral nature without a quid pro quo. The Court refused to speculate whether at some future time France would not comply with its com- mitment. Such being the case, the Court found that "no further pronouncement is required in the present case. It does not enter into the adjudicatory functions of the Court to deal with issues in abstracto, once it has reached the conclusion that the merits of the case no longer are to be determined. The object of the claim having clearly disap- peared, there is nothing on which to give judgment." 102
[I9731I.C.J. 135;reported in 67 Am. J. Int'l L. 778 (1973). [I9731I.C.J. Rep. 99;reported in 67Am. J.Int'l L. 778 (1973). [1973-19741I.C.J.Y.B. 116, 117. 97.
[I9741 I.C.J. Rep. 175; reported in 69 Am. J. Intl L. 154 (1975).
98.
99.
100.
101. Nuclear Test Cases, Int'l Lawyer 563, 571 (1975), quoting
I.C.J. opinion.
102. Id. at 573.
(2) Disputes relating to Violation of Airspace. 103 The Aerial Incident of 10 March 1953 Case (United States v. Czechoslovakia) (1955-1956). 104 In 1955 the United States instituted proceedings before the Court to complain of "certain wrongful acts committed by MIG- type aircraft from Czechoslovakia within the United States zone of occupation in Germany on March 10, 19 53. " 105 Since Czechoslovakia did not consent to the jurisdiction of the Court, the case was removed from the List of the
Court without decision.
The Aerial Incident of 7 October 1952Case (United States
v. U.S.S.R.) (1955-1956). 106 In 1955 the United States
instituted proceedings before the Court to complain of
certain willful acts committed by fighter aircraft of the
Soviet government against a United States Air Force B-29
aircraft and its crew off Hokkaido, Japan, on October 7,
1952. 107 Since the U.S.S.R. did not consent to the juris-
diction of the Court, the case was removed from the List
of the Court without decision.
The Aerial Incident of 27 July 1955 Case (Israel v. Bulgaria) (1957- 1959). 108 Bulgarian fighter craft shot down an Israeli civilian commercial airliner with the loss of life of all passengers. Israel attempted to bring Bulgaria before the International Court in order to obtain a judg- ment awarding it damages for the incident. The case aroused interest because no Communist country has ac- cepted in any way the jurisdiction of the Court. However, Bulgaria had accepted for an unlimited period the jurisdic- tion of the Permanent Court before World War 11. Article 36(5) of the present Court's Statute provides:
Declarations made under Art. 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed . . . to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run. . . .
Israel contended that Bulgaria was still bound by its 1921 acceptance. The Court disagreed with this argument. It restricted the application of article 36(5) to the original members of the U.N. Since Bulgaria did not become a member until 1955 its adherence to the Permanent Court had lapsed and could not now be revived. Israel's case was
dismissed.
The Aerial Incident of 27July 1955Case (United States v. Bulgaria) (1 957- 1959). 109 The Aerial Incident of 27 July 1955 Case (United
103. For related "contentions" cases see Treatment in Hungary of Aircrqft and Crew of the United States, irlfra notes 73 and 74 and Nuclear Tests, supra notes 46 and 47.
104.
[I9561I.C.J. Rep. 6;digested in 51 Am. J. Int'l L. 11 (1957).
105.
[1955-19561I.C.J.Y.B. 73.
106.
[I9561I.C.J. Rep. 9;digested in 51 Am. J.Int'l L. 12 (1957).
107.
(1955-19561I.C.J.Y.B.75.
108. (19591 I.C.J. Rep. 127; digested in 53 Am. J. Int'l L. 923 (1959), Ct; Temple of Preah Vihear, supra note 31.
109. [I9601I.C.J. Rep. 146.
Kingdom v. Bulgaria) (1957-1959). 110 In 1957 the United States (and the United Kingdom) instituted proceedings before the Court "against the government of the Peoples Republic of Bulgaria with regard to the damage suffered by American [and United Kingdom] na- tionals, passengers on board an aircraft of El A1 Israel Airlines, Ltd., which was destroyed on 27 July 1955 by a Bulgarian fighter aircraft. 111 Several years later the United States (and the United Kingdom), after the judgment of the Court involving proceedings brought by Israel against Bulgaria out of the same incident was decided adverse to Israel (seeimmediately preceding case), requested discon- tinuance of the case(s). The request(s) were granted and the case(s) were removed from the List of the Court with- out decision.
The Aerial Incident of 4 September 1954 Case (United States v. U.S.S.R.) (1958). 112 In 1958 the United States instituted proceedings before the Court against "certain willful acts committed by military aircraft of the Soviet government on September 4, 1954, in the international air space over the Sea of Japan against a United States Navy P2-V-type aircraft, commonly known as a Neptune type, and against its crew." 113 Since the U.S.S.R. did not consent to the jurisdiction of the Court, the case was removed from the List of the Court without decision.
The Aerial Incident of 7 November 1954 Case (United States v. U.S.S.R.) (1959). 114 In 1959 the United States instituted proceedings before the Court against the Soviet government "on account of the destruction on Novem- ber 7, 1954, of a United States Air Force B-29 aircraft [by Soviet fighter planes] in the Japanese territorial air space over Hokkaido, Japan. 115 Sithe U.S.S.R. did not con- sent to the jurisdiction of the Court, the casewas removed from the List of the Court without decision.
The Appeal Relating to the Jurisdiction of the ICAO CouncilCase (India v. Pakistan) (1971-1972). 116 Under the International Civil Aviation Convention and the In- ternational Air Services Transit Agreement, both signed by Pakistan and India in 1944, civilian aircraft of Pakistan had the right to overfly Indian territory. After the hostilities of 1965 between Pakistan and India had sub- sided, the two countries agreed in 1966 that overflights should continue on the same basis as before. Pakistan took this to mean under the 1944 Convention and Treaty, while India maintained the two treaties had been sus- pended and never revived; i.e., Pakistan overflights would be permitted only after specific permission was granted by India. In 1971 an Indian aircraft was high-
110.
[I959 I.C.J. Rep. 264.
111.
[1959-19601 I.C.J.Y.B.93.
112.
[I9581 I.C.J. Rep. 158.
11'. [1958-19591 I.C.J.Y.B. 90.
114.
119591 I.C.J. Rep. 276.
115.
(1959-19601I.C.J.Y.B.85, 86.
116.
[I9721 I.C.J. Rep. 46; reported in 67 Am. J. Int? L. 127 (1 973).
jacked to Pakistan; thereafter, India refused any over- flightsby Pakistani civilian aircraft. Pakistan submitted the dispute to the International Civil Aviation Organization (ICAO) alleging that India was in breach of the two treaties. The ICAO found that it had jurisdiction to hear the dispute; India appealed from thisrulingto the Court. After discussing Pakistan's objections to the Court hear- ing the appeal and overruling the objections, the Court upheld the competence of the ICAO to hear the com- plaint. 117
(3) Disputes relating to Nationab. 118 The Protection of French Nationals and Protected Persons in Egypt Case (France v. Egypt) (1949-1950). 119 In 1948 France instituted proceedings against Egypt before the Court to complain of "certain measures [taken] against the persons and property, rights and interests of certain French nationals and protected persons in Egypt." 120 Two years later, the French government notified the Court that the dispute had been settled by Egypt ceasing to take the complained of measures and requested the Court to discontinue the proceedings. There beii no objection from Egypt, the case was removed from the List of the Court without decision.
The Asylum Case (Columbia v. Peru) (1949-1950). 121
The Request for Interpretation of the Judgment of 20
November 1950 in the Asylum Case (Columbia v. Peru)
(1950). 122
The Haya de la Torre Case (Columbia v. Peru)
(1950- 195 1). 123 The Pan-American Havana Convention
on Asylum of 1928, of which both Peru and Colombia
were parties, provided (1) that political asylum could be
granted in a foreign embassy to political offenders in an
emergency, and (2) that asylum could not be granted to
common criminals who, if found in an embassy, must be
turned over to the local authorities.
In 1949 Haya de la Torre, claiming to be a political of- fender, sought asylum in the Colombian embassy in Peru. Peru demanded his release. Colombia refused. The par-ties to the dispute asked the court very niurow questions, the answers to which failed to resolve all the problems connected with the case. The questions and answers at the fvst hearing are as follows:
11'. [1972-19731 I.C.J.Y.B. 111.
118. For related "contentions" cases, see Corjir Channel, supm note 18; South West Afrca, supra note 35; Aerial Incident of 27 July 1955, supra notes 55 to 58; and Barcelona Traction, Light and Power Company, Limited, idra notes 91 and 92. For related advisory opinions see Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, igra note 99; International Status of Southwest qfrica, idra, note 100, and Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, idra note 103.
119.
[I9501 I.C.J. Rep. 59.
120.
[1949-19501I.C.J.Y.B. 68.
121.
[I9501 I.C.J. Rep. 266; reported in 51 Am. J. Int? L. 179, 781 (1951).
122.
(19501 I.C.J. Rep.395.
123.
[I9511 I.C.J. Rep. 4.
1. Can the state granting the asylum unilaterally determine if the refugee is a political offender or a common criminal?
No, here Colombia cannot make, under the treaty, such a unilateral determination. However, Peru has not proven that de la Torre is a common
criminal.
2.
If de la Torre is a political offender lawfully in the Colombian embassy, must Peru afford the neces- sary guaranteesto enablehim to leave the country in safety?
No. The 1928 treaty only provides for asylum in an embassy, not for immunity while going from the embassy to the border of the country.
3.
If de la Tone is a political offender, was the asylum granted according to the terms of the 1928 treaty?
No, because no emergency appears to have ex- isted.
Peru then called upon Colombia to surrender the refugee. Colombia refused to do so, maintaining that the Court's judgment did not place it under an obligation to surrender de la Torre to the Peruvian authorities. A second heating was held at which the Court agreed with Colombia. The 1928 Havana Convention provided only for the surrender of common criminals. No such obligation existed in regard to political offenders. The Court reasoned that Col- ombia was under an obligation to terminate the asylum. Surrender of the refugee to the local authorities is only one method of terminating an asylum. Colombia was not restricted to that single method.
Throughout the case the Court was careful to point out that the granting of asylum in an embassy is a derogation of the sovereignty of the local state, and that such deroga- tion, if made by treaty, must be strictly construed. It found no evidence of any Latin American customary interna- tional law which would permit the granting of asylum in the absence of a treaty.
The Rights of Nationals of the United States of America in Morocco Case (France v. United States) (1950-1952). 124 In 1836 the United States and Morocco entered into a treaty which granted the United States "most favored na- tion privileges" and certain extraterritorial rights in Morocco. In 1906 Morocco became a protectorate of France. In the General Act of Algeciras, of that year, France agreed to continue foreign rights in Morocco.
By a decree of December 30, 1948, the French authorities in the Moroccan Protectorate imposed a system of license control on certain imports. The United States maintained that such controls did not apply to United States nationals in Morocco because, (1) they were discriminatory in favor of France contrary to the General Act of Algeciras, and (2) the extraterritorial
I
I
124. [I9521 I.C.J. Rep. 1975;reported in 47 Am. J. Int'l L. 136 (1 953).
rights of the United States in Morocco were such that no
Moroccan law or regulations could be applied to United
States nationals in Morocco without its previous consent.
The Court considered that the controls were dis-
criminatory and therefore contrary to U.S. treaty rights.
The second contention of the U.S. gave the Court an op-
portunity to explore the extent of U.S. consular court ju-
risdiction. Such jurisdiction was formerly very common.
Under treaties known as "Capitulations" various states in
the 19th century secured special immunities from local ju-
risdiction for their citizens living in African or Asiatic
countries. The Court here dealt with such a treaty on its
merits and by implication saw nothing contrary to interna-
tional law in them. Now practically all "capitulation"
treaties have been terminated.
The Nottebohm Case (Liechtenstein v. Guatemala) (195 1-1955). 125 By the Application filed on December 17th, 1951, the Government of Liechtenstein instituted proceedings before the Court in which it claimed restitu- tion and compensation on the ground that the Govern- ment of Guatemala had "acted toward the person and property of Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law." In its Counter-Memorial, the Government of Guatemala contended that this claim was inadmissible on a number of grounds, and one of its objections to the admissibility of the claim related to the nationality of the person for whose protection Liechtenstein had seized the Court.
Nottebohm was originally a German citizen. In 1905 he went to Guatemala, established his center of business there, and established a residency on and off, for a period of 34 years. In October, 1939, he applied for Liechten- stein citizenship and after paying certain sums of money as waivers, and receiving preferential treatment, received his citizenship in that same month. He then returned to Guatemala. In 1943 Nottebohm was removed to the United States by Guatemala in a war measure on the basis of his beiia citizen of a belligerent state. Guatemala then proceeded against his property as an enemy alien.
The case is of fundamental importance. Diplomatic pro- tection can only be exercised by a state on behalf of its own nationals. Nationality is conferred by a state under its own laws. International law does not lay down any criteria which a state must meet before it canconfer its nationality on an individual. Such is left to the domestic law of each state. However, here the real issue was not whether Not- tebohm was a national of Liechtenstein under the laws of Liechtenstein, but whether he was the typeof national for whom Liechtenstein had an international right to protect from the actions of other states. This international right requires not merely nationality, but nationality coupled with a real connection of interests.
Under the circumstances, the Court found that Guatemala was under no obligation to recognize the
125. 11955)I.C.J. Rep.4;reportedin 49 Am. J. In17L. 396 (1955).
Liechtenstein citizenship; as a consequence, Liechtenstein was not entitled to extend its protection to Nottebohm and the claim must fail.
The Treatment in Hunggry of Aircrqft and Crew of the United States Case (United States v. Hungary) (1954). 126
The Treatment in Hungary of Aircrqft and Crew of the United States of America (United States v. U.S.S.R.) (1954). 127 In 1954 the United States instituted proceed- ings before the Court "against the Hungarian People's Republic and against the U.S.S.R., on account of certain actions of the Hungarian Government in concert with the Government of the U.S.S.R." 128 Since neither Hungary nor the U.S.S.R. consented to be jurisdiction of the Court, the cases were removed fiom the list of the Court without decision.
The Certain Norwegian Loans Case (France v. Norway) (1955-1957). 129 Certain Norwegian loans had been floated in France between the years 1885 and 1909. By their terms these loans were convertible into gold as well as various national currencies. Norway then suspended the convertibility into gold. France, exercis'hg its right of diplomatic protection on behalf of its nationals, sought to compel Norway to redeem the bonds in gold. France had adhered to the Court's jurisdiction under the optional clause with a reservation similar to the U.S. Connally Reservation.
Under conditions of reciprocity, both parties are en- titled to take advantage of any reservations the other has made. Norway, therefore, maintained that the case in-volved a matter exclusively within the domestic jurisdic- tion of Norway as determined by Norway. The Court therefore dismissed the case. It was not forced to rule on the validity of France's reservation because neither party contested it. Rather both were committed to argue for its validity, France in order to be a proper plaintiff before the Court, and Norway in order to use the reservation to defeat France's claim. Since this case France has with-drawn its reservation.
The Application of the Convention of 1902 governing the Guardianship of Idants Case (Netherlands v. Sweden) (1957-1958). 130 In 1902 Sweden and the Netherlands became parties to the Hague Convention on the guardian- ship of infants. The Swedish authorities placed an infant of Netherlands nationality residing in Sweden under the regime of protective upbringing instituted by Swedish law. The Netherlands maintained that the 1902 Convention required that the child be brought up according to Dutch law. The Court held that the Swedish law was outside the
126.
(19541LC.J. Rep. 103.
127.
(19541I.C.J. Rep. 99.
128.
(1953-19541I.C.J.Y.B.92.
129.
(19571I.C.J. Rep. 9;digested in 51 Am J. Int7L. 777 (1957).
130.
[I9581 I.C.J. Rep. 55; digested in 53 Am. J. Int7 L. 436 (1959).
scope of the treaty and therefore not in violation of it.
The Interhandel Case (Switzerland v. United States) (1957-1959). 131 In 1942, the United States appropriated almost all the shares, estimated at $150,000,000, of the General Aniline and Film Corporation, an American Corporation, on the ground that these shares, though in the name of Interhandel, were in reality owned by I.G. Farben, a German corporation. Interhandel, a Swiss cor- poration, contested such a f~nding, maintaining that it was the real owner of the shares and not merely a holder in trust for I.G. Farben. White Interhandel's case was proceeding through the United States Courts, Switzer- land, exercising its right of diplomatic protection, asked the International Court of Justice to declare that the United States Government was under an obligation to restore to Interhandel its property. It also asked interim measures of protection for the seized property. The Court saw no need for interim measures and refused to impose them. 132 The United States defended on the grounds that
(1) Interhandel had not. exhausted its local remedies in the U.S. Courts and (2) that certain actions taken against the American Corporation were within the exclusive domestic jurisdiction of the U.S., as determined by the
U.S. The Court disposed of the case on the first ground, that Interhandel had not exhausted its local remedies, a prerequisite for the exercise of diplomatic protection. It passed no judgment on the controversial domestic juris- diction implications of the second defense of the United States.
In April 1964 U.S. District Judge David A. Pine lifted an iqjunction he imposed in 1963 and thereby cleared the way for the Justice Department to sell General Aniline and Film Corporation, thus ending the long litigation, both national and international, surrounding the legality of the seizure by the American government in 1942.
The Trial of Pakistani Prisoners of War Case (Pakistanv. India) (1973). 133 In 1973 Pakistan instituted proceedings before the Court against India because "India was propos- ing to hand over 195 Pakistani prisoners of war to the Government of Bangladesh, which intended to try them for acts of genocide and crimes against humanity." 134 'Before the Court could schedule arguments on the juris- diction of the Court to hear the dispute, Pakistan in- formed the Court of negotiations between India and 'Pakistanand requested that the proceeding be discon- tinued. As a result, the case was removed from the list of the Court without decision.
131.
(19591I.C.J. Rep. 6; digested in 53Am. J. InrlL.671 (1959).
132.
(19571 I.C.J. Rep. 105; digested in 52 Am J. Int7 L. 320 (1958).
133.
(19731I.C.J. Rep. 347.
134.
(1973-19741I.C.J.Y.B. 123.
(4) Disputes of a Commercial Nature. 135 The Ambatielos Case (Greece v. United Kingdom) (1951-1953). 136 In 1919, Ambatielos, a Greek shipowner, entered into a contract for the purchase of ships with the Government of the United Kingdom. Because of a delay in the delivery of the ships, Ambatielos claimed he suffered pecuniary damage. He took his case through the British courts and lost. He then maintained that the judgments of the British courts were contrary to
'international law because they amounted to a denial of justice. The Greek Government, exercising its right of diplomatic protection, took up the caseof its national and sought to compel Great Britain to arbitrate under arbitra- tion agreements between the two countries. The sole question presented to the Court was whether Great Britain must arbitrate. The Court was not called upon to decide the merits. The British position was that this was not the type of dispute included in the arbitration agreement. The question for the Court was a dficult one because to hold a dispute as to whether a case should be arbitrated a matter for arbitration would tend to make any matter subject to arbitration upon the insistence of one party to the agree- ment. The Court held that Great Britain should arbitrate. In the arbitration on the merits, which followed in 1956 the decision of the I.C.J., the Greek Government was un-sucuxsful in sustaining Ambatielos' claim. 137
The Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) (1951-1952). 138 In 1932 Iran adhered to the "optional clause" of the Permanent Court of International Justice, with the reservation that such adherence only applied to disputes based on treaties concluded by Iran after that date. In 1933 Iran entered into an agreement with the Anglo-Iranian Oil Company. Iran's 1932 limited adherence to the jurisdiction of the Permanent Court had been transferred to the International Court in 1945. In 1951Iran nationalized the properties of the Oil Company. The Company maintained that such nationalization was contrary to the 1933 agreement. Great Britain sought before the International Court of Justice to enforce the rights of the OilCompany under the 1933 agreement. Iran contested the jurisdiction of the Court. Great Britain re-
135. For related "contention" cases, see Fisheries Jurisdiction. supra notes 42 and 44; Certain Norwegian Loans, supra note 76; and Interhandel, supra note 78. For related advisory opinions, see meet of Awards of Compensation Made by the United Nations Administrative Tri- bunal, irlfm note 104; Judgments of the Administrative Tribunal of the ILO upon ComplainLs made against Unesco; irlfra note 105; Constitution of the Maritime S@iery Committee of the Inter-governmentcrl Maritime Consultative Organization, irlfra note 106; and Application for Review of Judgment [sicj No. I58 of the United Nations Administrative Tribunal, irlfm note 111.
136.
(19531 I.C.J. Rep. 10; digested in 46 Am. J. Int? L. 733 (1952).
137.
Opinion of the Arbital Commission is digested in 50 Am. J. Int'l L. 674 (1956).
138.
[I9521 I.C.J. Rep. 13; reported in 45 Am. J. Int'l L. 789 (1951).
quested that the court order Iran to cease its measures against the Company pending the outcome of the contest over jurisdiction. The Court granted this request over the protests of Iran. Iran refbed to comply with these interim measures.
The Court then dismissed the casefor lack of jurisdiction because Iran had only agreed that the Court would have jurisdiction over treaties entered into after 1932. The 1933 agreement was not a treaty between states. Anglo- Iranian Oil was a private company despite the fact that most of its shares were owned by Great Britain. The legality under international law of Iran's nationalization decrees was never decided by the Court. Since this case Iran has withdrawn entirely its submission to the com- pulsory jurisdiction of the Court.
The Monetary Gold from Rome in 1943 Case (Italy v. France, United Kingdom and United States) (1953-1954). 139 In 1943 Germany removed from Rome to Germany certain gold belonging to Albania. Both Italy and Great Britain claimed the gold, Italy for satisfaction of a claim against Albania and Great Britain for a satisfaction of the still outstanding Corfu Channel 140judgment it held against Albania. Acting under a 1946 agreement, France, U.S.A., and Great Britain decided jointly that the gold should go to Great Britain. Under a separate provision of the same treaty, Italy challenged the decision and took the matter to the International Court. The Court ruled that it had no jurisdiction to adjudge Italy's right to the gold because to do so would involve the merits of Italy's claim against Albania. Since Albania was not a party to the proceedings and could not without its consent be made a party the Court had no alternative but to dismiss the case.
The 'Electricite de Beyrouth" Company Case (France v,.
Lebanon) (1953-1954). 141 The Compagnie du Port, des Quais et des Entre pots de
Beyrouth and Societe Radio -Orient Case (France v. Lebanon (1959-1960). 142 In 1948 the Governments of France and Lebanon entered into an agreement, which purported to settle all the f~nancial problems resulting from the liquidation of the past and at the same time the monetary and fmancial relations of the two countries for the future. It included an undertaking by the Lebanese Government relating to concessions of the French com- panies and companies with French capital in Lebanon. It also contained in its Article 23 a clause granting jurisdic-, tion to the Court. 143 "Eledricite de Beyrouth Company" considered that measures taken by Lebanon were con- trary to the 1948 agreement, and it was able to persuade the Government of France in 1953 to institute proceed- ings before the Court against Lebanon. Before arguments
139.
119541 I.C.J. Rep. 4;reported in 48 Am J. Int?L. 649 (1954).
140.
See supm note 18.
141.
[I9541 I.C.J. Rep. 13.
142.
[I9601 I.C.J. Rep. 3.
143.
[1954-19551 I.C.J.Y.B. 75; seealso [1960-19611 I.C.J.Y.B. 83.
could be heard, the Government of Lebanon and "Electricite de Beyrouth Company" negotiated a settle- ment; the case was discontinued and removed from the list of the Court in 1954. In 1959 the Government of France again instituted proceedings before the Court against Lebanon with regard to the "Compagnie du Port des Quais et des Entre pots de Beyrouth and the Societe Radio -Orient," but within a year and a half it was also removed from the list of the Court by request of the par-ties.
The Barcelona Traction, Light and Power Company,
Limited Case (Belgium v. Spain) (1958-1961). 144 The Barcelona Traction, Light and Power Company, Limited (New Application) Case (Belgium v. Spain) (1962-1970). 145 In 1958 Belgium instituted proceedings before the Court against Spain with regard to the Bar- celona Traction, Light and Power Company, Limited. In 1961 the Belgian government with a view toward negotia- tion requested that the matter be discontinued and then removed from the list of the Court. This was done, but in 1962 Belgium filed a new application concerning Bar- celona Traction with the Court when negotiations failed. Barcelona Traction was incorporated in 191 1 in Canada and, primarily through subsidiaries, supplied electricity in Spain. Between WWI and WWII it was alleged that Belgian citizens acquired a large percentage of Barcelona Traction stocks/bonds. With the start of the Spanish Civil War, the company suffered fmancial dficulties and in 1948 was declared bankrupt by a Spanish Court. The claim submitted to the Court was presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in Barcelona Traction, a company incor- porated in Canada and having its head office there. The object of the Application was to obtain reparation for damage allegedly caused to those persons by conduct, said to be contrary to international law, of various organs of the Spanish State towards that company. 146 Spain object- ed to the application, inter alia, because Belgium lacked capacity to seek redress from injuries done to a Canadian company, even if the shareholders were Belgian. The Court found that where "it was a question of an unlawful act committed against a company representing foreign capital, the general ruleof international law authorized the national state of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of general international law expressly conferred such a right in the shareholder's national state." 147 After considering several situations (e.g., nonexistence of the company or protecting State lacks capacity to take action) that might be considered "special circumstances" demanding a different result and fmding no such circumstances in-
–
144.
[I9611 I.C.J. Rep. 9.
145.
[I9701 I.C.J. Rep. 3.
'46. [1969-19701 I.C.J.Y.B. 107, 109.
147. Id. at 110.
volved in the case before it, the Court rejected Belgium's claim. Likewise, the Court refused to adopt a special equity rule that would permit a State "to take up the pro- tection of its nationals, shareholders in a company, which had been the victim of a violation law. . . . [, as such a proposition] would create an atmosphere of insecurity in international economic relations." 148
b. Advisory Opinions The Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) Opinion (1947-1949). 149 Article 4(1) of the United Nations Charter contains three criteria for membership in the United Nations. The applicant states (1) must be peace- loving, (2) must accept the obligations contained in the Charter, and (3) in the judgment of the United Nations must be able and willing to carry out the Charter obliga- tions.
Since the creation of the United Nations some 12 states had unsuccessfully applied for admission. Their applica- tions were vetoed in the Security Council. A proposal was then made for the admission of all candidates at once. Such a proposal certainly implied that some states would only be admitted on the condition that others would be admitted also.The General Assembly questioned the im-position by the Security Council of conditions for admis- sion not contained in the Charter. The General Assembly asked the Court for an advisory opinion. The Court declared that conditions laid down in Article 4 for the ad- mission of states were exhaustive and that if these condi- tions were fulfied by a state which was a candidate, the Security Council ought to recommend to the General As- sembly that such a state be admitted. The Court added, however, that it was up to the subjective judgment of each member whether or not the conditions for admission had been met.
The Competence of the General Assembly for the Admis- sion of a State to the United Nations Opinion (1949- 1950). 150 The immediately preceding casedecided by the Court did not lead to a settlement of the problem of admissions in the Security Council. The General Assem- bly then sought an advisory opinion from the Court as to whether it could on its own, admit a candidate in cases where the Security Council failed to recommend the can- didate to it.
The Court refused to permit the Charter to be con- strued to permit such authority in the General Assembly. It held that Article 4(2) was clear in its requirements.
Art. 4(2). The admission of any such state to membership in the United Nations will be effected by [I] a decision of the General As-sembly 12) upon recommendation of the Security Council.
The only recommendation contemplated by the
'48. Id. at 11 1.
149.
[I9481 I.C.J. Rep. 9, 57; reported in 42 Am. J. Int7 L. 927 (1948).
150.
(19501 I.C.J. Rep. 4;digested in 44 Am. J. Int'/L.582 (1950).
Charter was a favorable recommendation. The lack of a favorable recommendation on the part of the Security Council cannot be construed by the General Assembly as an unfavorable recommendation, permitting it to proceed with its own vote on the admission. To do so would deprive the Security Council of an important function assigned to it by the Charter.
The Reparation for Iduries StGffered in the Service of the United Nations Opinion (1948-1949). 151 As a conse- quence of the assassination in Palestine of Count Ber- nadotte, the United Nations Palestine Mediator, the General Assembly asked the Court two important legal questions. (1) Does the United Nations have the interna- tional legal capacity to bring an international claim against Israel for damages caused to the United Nations by the assassination?; (2) Does the United Nations have the in- ternational legal capacity to bring an international claim against Israel on behalf of the relatives of the victim? The fust question raised not only the nature of the U.N. but further its relation to nonmember states. The Court said that the U.N. not only had sufficient legal capacity to bring an international claim against a state, but could even bring such claim against a nonmember. The U.N. had interna- tional existence not only in the eyes of its members, but even in the eyes of nonmembers because of its purposes and because of the great majority of states which make it up. The second question raised the problem of diplomatic protection. Ordinarily a state can only bring a claim on behalf of its own nationals. The Court permitted the U.N. to sponsor such a claim, reasoning that the risk of possible duplication between the U.N. and the victim's national state could be eliminated either by means of a general convention or by a particular agreement in any individual case.
The Interpretation of Peace Treaties with Bulgaria, Hun- gary and Romania Opinion (1949-1950). 152 In the 1949 peace treaties with the Allied States, Bulgaria, Hungary and Romania agreed, among other things, to respect cer- tain freedoms of individuals in their territories. In the event a dispute arose over the performance of the peace treaties each side was to appoint a representative to an ar-bitral board. The two representatives were to choose a third member.
The Allied States accused Bulgaria, Hungary and Romania of denying to some of their citizens the freedoms guaranteed by the treaties. The allegation was denied. The Allied States then asked for the appointment of commissioners to arbitrate the dispute. Bulgaria, Hun- gary and Romania refUsed to appoint a commissioner. The General Assembly asked the Court if the three Balkan countries were bound to do so. The Court, on March 30,
151.
[I9491I.C.J. Rep. 174;digested in 43 Am. J. In17 L. 589 (1949).
152.
[I9501I.C.J. Rep. 65, 121, 221; digestedin 44Am. J. Int? L. 742, 752 (1950).
Pam 27-161-1
1950, replied that they were. Upon the continued refusal
of Bulgaria, Hungary, and Romania to appoint a commis-
sioner, the General Assembly asked the Court whether
the Secretary General, who by the terms of the treaties
was authorized to appoint the third member in the ab-
sence of agreement between the commissssioners on his
selection, could proceed to make this appointment, where
one of the parties failed to appoint its commissioner. The
Court, on July 18, 1950, replied that the Secretary
General could not do so under the terms of the treaties of
peace.
The problem before the Court was one of treaty in-terpretation. By denying the Secretary the authority to ap- point the third commissioner the Court in effect construed the treaty in such a fashion that the deliberate failure of one side to appoint a commissioner could render the en- tire arbitration machinery ineffective. The Court realized that a treaty should, if possible, be so interpreted as to be effective. However, it also realized that a treaty should not
be rewritten by a court under the guise of interpretation in order to improve its operation.
The International Status of Southwest Africa Opinion (1949-1950). 153 The Court on June 11, 1950, held that South-West Africa was impressed with an international status when it became a mandate under the League of Na- tions. The death of the League did not affect that status. Therefore, the Union of South Africa, as the mandatory power, could not unilaterally cancel that international status and annex South-West Afiica. It was not under an obligation to convert the mandate into a trust territory under the U.N., but it was obligated to report to the General Assembly on South-West Africa as it had done to the League. This opinion permitted the U.N. to become an inheritor of certain prerogatives possessed by its pred-ecessor. The Court, however, stated that the United Na- tions was to exercise this prerogative subject to the same restrictions imposed upon the League of Nations. This restriction was the central issue in the two following ad- visory opinions.
The Voting Procedure on Questions to Reports and Peti- tions Concerning the Territory of Southwest Africa Opin-ion (1954-1955). 154 On June 7, 1955, the Court, at the request of the General Assembly, decided that the voting procedures adopted by the General Assembly in dealing with matters pertaining to South-West Africa were procedural in nature and therefore did not amount to supervision in excess of that performed by the League of Nations over South-West Africa.The Court was forced to reconcile the more liberal voting procedure in the General Assembly with its earlier opinion which restricted the U.N.'s supervision of South-West Afiica to that exercised by the League of Nations.
153.
(19501I.C.J. 128;digested in 44 Am. J. Int'l L. 757 (1950).
154.
[I9551I.C.J. Rep. 67; digested in 49 Am. J. In17 L. 565 (1955).
The Admissibility of Hearings of Petitioners by the Com- mittee on Southwest Africa Opinion (1955- 1956). 155 On June 1, 1956, the Court again had to reconcile the restric- tive provisions of its frrst opinion with the practice of the General Assembly in permitting oral hearings on South- West Africa. The League had only utilized written peti- tions. The Court said that nothing prevented the League from having oral hearings. Furthermore, the refusal of the Union of South Afiica to cooperate with the General As- sembly made oral hearings useful in keeping the General Assembly informed of events in South-West Africa.
The Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Opinion (1950- 195 1). 156 Reservations to multilateral treaties had long presented a problem. The Latin American nations, starting about 1926, developed the practice of permitting reservations. A reserving state was a party to the conven- tion as to those signatories which accepted the reservation, it was not a party as to those which did not. The League of Nations on the other hand pursued a policy that all sig- natories must agree to the reservation before the reserving state can become a party to the treaty.
The Genocide Convention was drafted under the auspices of the U.N. When it was opened for signature several states signed with reservations. The General As- sembly asked the Court what practice it should follow. On May 18, 1951, the Court replied that reservations are per- mitted if they do not go to the main objectives or^ the con- vention. It is up to each signatory to judge for itself if the reservation is compatible with the convention. The reserving state is a party to the treaty as to those states which consider the reservation compatible with the main objects of the treaty, it is not a party as to those states which do not think the reservation compatible. The result is almost the same as the Latin American practice. The Court rejected the League policy which required unanimity of acceptance by all signatories. This freedom to make reservations was purchased at the price of the unity and internal coherence of mulitlateral treaties.
The Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Opinion (1 953- 1954). 157 The employment contracts of several American employees of the Office of the Secretary General were terminated by the Secretary General with- out their consent. The United States was desirous of the termination because of suspected disloyalty to the United States. These employees appealed to the United Nations Administrative Tribunal, which had previously been es- tablished by the General Assembly to hear employment
155. 119561 I.C.J. Rep. 23; digested in 50 Am. J. Int7 L. 954 (1956).
1;6. [I9511 I.C.J. Rep. 15; reported in 45 Am. J. In17 L. 579 (1951).
157. [I9541 I.C.J. Rep. 46; digested in 48 Am. J. Int'l L. 655 (1954).
contract disputes. This tribunal restored the employees to their position.
The General Assembly asked the Court ifit was bound by such a decision of a tribunal it had created, or whether it could look upon such a decision as a recommendation. The Court replied that the General Assembly had created an independent and truly judicial body pronouncing final judgments without appeal and that its judgments were therefore bindii on the General Assembly.
The Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCO Opinion (1 955- 1956). 158 The ILO (International Labor Organiza- tion) had established an administrative tribunal to settle disputes between ILO and its employees. UNESCO ac- cepted the jurisdiction of this tribunal. The tribunal gave four judgments in favor of four American employees of UNESCO who had refused to answer a questionnaire form or to appear before the International Organization Employees' Loyalty Board of the U.S. Civil Service. The statute setting up the tribunal permitted its decision as to its own jurisdiction to be challenged by the using agency. In the event of such a challenge the dispute would be set- tled by the International Court. UNESCO challenged the jurisdiction of the tribunal on the ground that the employees had no legal right to a renewal of their con- tracts and hence there was no nonobservance of the terms of the contracts.
The Court held that the tribunal did have jurisdiction to hear the complaints in question because UNESCO had told its employees that fixed term contracts would be renewed.
The case is interesting because it shows an instance of the Court acting as an appellate tribunal in an actual dis- pute between an international organization and private in- dividuals. The general rule is that only states may be par- ties before the Court. Here, the practical effect of the Court's willingness to give an advisory opinion in the cir- cumstances of this case is to relax that general rule.
The Constitution of the Maritime Consultative Organiza- tion Opinion (1 959-1 960). 159 Under Article 28(a) of the Inter-Governmental Maritime Consultative Organization, a Maritime Safety Committee of 14 members was to be elected. Not less than eight of those elected were to be from "the largest ship-owning nations." When the fust election was held on January 15, 1959, neither Panama nor Liberia was elected although both were in the fust eight of the nations with the largest registered tonnage.
The Court refused to permit the Inter-Governmental Maritime Consultative Organization to look behind the registered tonnage to actual ownership. It was evident that many ships were merely registered in Liberia and Panama
158.
[I9561 1.C.J. Rep. 77; digested in 51 Am. J. Int'l L. 410 (1957).
159.
[I9601 I.C.J. Rep. 150; digested in 54 Am. J. Int'l L. 884 (1960).
as a matter of convenience. There was little or no real connection between the ships and these states. If the &urt followed the trend of its reasoning in the Nottebohm case and looked for a real connection or community of in- terests it might have ruled against Liberia and Panama. However, it based its decision on its interpretation of the intent of the drafters of Article 28 (a) of the convention. It held that the intent of the drafters was that registered ton- nage was to be the criterion. Therefore, Liberia and
'Piinama should have been elected to the Maritime Safety Committee.
The Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) Opinion (1961-1962). 160 This advisory opinion involved legal issues of fundamen- tal importance to the United Nations. The United Nations is a collective security organization. One of its primary purposes is to keep the peace. It has put three forces into the field, the Unified Command in Korea, the United Na- tions Emergency Force in Gaza, and the United Nations force in the Congo. Several members refused to pay their allotted share of the costs for the latter two operations for various reasons. Some thought that a United Nations member was only compelled to pay "regular costs" and not "special assessments." Others, including the Soviet Union, contended that since these actions were taken or implemented under the "Uniting for Peace" Resolution of the General Assembly they were contrary to the United Nations Charter which placed responsibility for the use of force solely in the Security Council. Therefore the General Assembly was without authority to pass such resolutions. The court held that these were legitimate assessments and all members are required to bear their share.
The Legal ~onsequenbes for States of the Continued Pres- ence of South Africa in Namibia (Southwest Afrca) not- withstanding Security Council Resolution 276 Opinion (1970-1971). 161 In 1970 the United Nations Security Council requested an advisory opinion of the Court on: "What are the legal consequences for States of the con- tinued presence of South Africa in Namibia, notwith- standing Security Council resolution 276 (1970)?" 162 Resolution 276 had been adopted by the Security Council in 1970 and declared that South Africa's continued pres- ence in Namibia was illegal. After refusing to grant challenges for cause against three members of the Court, the Court was of the opinion:
by 13 votes to 2,
(1) that, the continued presence of South Africa in Namibia beii illegal South Africa was under obligation to withdraw its ad- ministration from Namibia immediately and thus put an end to its occupation of the Territory;
by 11 votes to 4,
[1970-19711 1.C.J.Y.B 100. 160.
[I9621 I.C.J. Rep. 151; digested in 56 Am. J. Int7 L. 1053 (1 962).
161.
[I9711 I.C.J. Rep. 16; reported in 66 Am. J. Int'l L. 145 (1972).
162.
(2)
that States Members of the United Nations were under obliga- tion to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recog- nition of the legality of, or lending support or assistance to, such presence and administration;
(3)
that it was incumbent upon States which were not Members of the United Nations to give assistance, within the scope of sub- paragraph (2) above, in the action which had been taken by the United Nations with regard to Namibia. 163
The Application for Review of Judgment [sic] No. 158 of the United Nations Administrative Tribunal Opinion (1972-1973). 164 Mr. Mohamed Fasla, an official of the United Nations on a fixed-term contract, was not rehired at the end of his contract. He appealed this decision to the United Nations Administrative Tribunal which found against him. Mr. Fasla requested the Tribunal, which it did in 1972, to seek an advisory opinion from the Court to determine whether the Tribunal had failed to exercise proper jurisdiction or had committed a fundamental error in procedure. The Court found proper exercise of jurisdic- tion and no fundamental error in procedure. 165
The Western Sahara Opinion (1974-1975). 166 In 1974 the United States General Assembly requested an opinion from the Court on two questions:
1.
Was Western Sahara at the time of colonization by Spain (1884) a territory belonging to no one (terra nullius)?
2.
If the answer to question 1 is in the negative, what were the legal ties between this temtory and the Kingdom of Morocco and the Mauritanian En- tity? 167
After refusing to find that the General Assembly was attempting to accomplish by advisory opinion (for which no consent is required) what could not be done by a "con- tentions" case (since Spain would not consent to the juris- diction of the Court), the Court found unanimously that Western Sahara was not a territory belonging to no one at the time of Spanish Colonization, with regard to the sec- ond question before the Court, the Court advised in the penultimate paragraph of its opinion:
The materials and information presented to the Court show the exist-
ence, at the time of Spanish colonization, of legal ties of allegiance be- tween the Sultan of Morocco and some of the tribes living in the territo- ry of Western Sahara. They equally show the existence of rights, includ- ing some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the temtory of Western Sahara. On the other hand, the Court's conclusion is that the materials and information presented to it do not establish any tie of ter- ritorial sovereignty between the territory of Western Sahara and the
163. Id. at 108.
See [1972-19731 I.C.J.Y.B. 125. 164.
[I9731 I.C.J. Rep. 166; reported in 68 Am. J. Intl L. 340 (1 974).
165.
166. [1975] I.C.J. Rep. 6.
167. Questions Concerning Western Sahara, 10 Int7 Lawyer 199, 199 (1976).
Kingdom of Morocco or the Mauritanianentity.Thusthe Court has not evaluating the effectiveness of the court in settling a partic- found legal ties of such a nature as might affect the application of ular type of dispute. For example, resort to the court has
General Assembly resolution 1514 0in the decdonizstion of been more beneficialin casesdealing with titles to territory
Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the and with routine international matters than it has in dis-
Tenitorv. 168 putes growing out of the vestiges of colonialism.
,9-8. Conclusion. A great many of the cases before the International Court, along with its predecessor the Perma- nent Court, have concerned the interpretation of treaties. The International Court has resisted any interpretation which would, in effect, redraft or improve the treaty. It has left the parties with the treaties as they wrote them. This is evident in the Asylum case, the Rights of U.S. Nu- tionals in Morocco, Sovereignty over certain Frontier Land, the U.N. admission cases, Balkan Peace Treaties, and the Constitution of the Maritime Safety Committee.
The cases discussed in this chapter have not emphasized the treaties involved, but have been grouped according to the general subject matter which gave rise to the particular dispute. Such a classification is useful in
168. ~d.
An opinion of the International Court influences the future behavior of states not a party to the contention. It also establishes an interpretation of intemational law which is considered by other courts and tribunals whenever a similar question of law is presented for deter- mination. Therefore, all I.C.J. cases,no matter what their origin or their actual effect in settling the particular dis-putes which gave rise to them, makes a valuable contribu- tion to a fund of law.
In recent years the court has been called upon less fre- quently than in the fust years of its existence for advisory opinions. This decline, together with the fact that acces- sions to the optional clause have not increased with the in- crease in U.N.membership, could affect materially the workload of the court. and conseuuentlv the develo~ment of international law by this judicial body.
Pam 27-161-1
CHAPTER 10
STATUS OF VISITING FORCES IN INTERNATIONAL LAW
Section I. COLLECTIVE SECURITY SYSTEM
10-1. Collective Self-Defense Under the United Na- tions Charter. The collective security system envisaged in the United Nations Charter has been affected by the "Cold War." 1 The resulting deep ideological split among fhe, members of the United Nations has forced many staps to turn from a world-wide collective security system ahd to seek security in defense alliances and in regional ar- rangements. 2 Both of these methods are authorized by Articles 51 and 52 of the United Nations Charter. Regional arrangements have for their primary purpose the settlement among the members themselves of their local disputes. This chapter will not be devoted to this type of a local arrangement. Collective self-defense, on the other hand, has for its purpose the protection of each member of the group from outside attacks. It is Article 51 rather than Article 52 which has given rise to the defense alliances so prevalent in the world today. 3 The collective self-defense system of which the United States is a party is world-wide and is commonly termed "The United States Mutual Defense System." 10-2. The United States Mutual Defense System. a. The Inter-American Treaty of Reciprocal Assistance (The Rio Pact). By this treaty, signed by Rio de Janeiro in September 1947, the signatory nations agreed that an "armed attack by any state against an American state shall be considered as an attack against all American states" and pledged each state to assist the others in repelling such an attack. The area defined in the treaty in- cluded all of North and South America, the Aleutians and Greenland, much of the Arctic and Antarctic regions, and vast ocean areas considerably broadening the defmition of' the western hemisphere. 5 Although Canada was not a party to the treaty, she was included in the protective cor-
1.
Collective security is an often misunderstood phrase. It means that every state in the organization looks to all others in that organiza- tion for protection against the aggressive acts of a fellow member. Blocs, favoritism, etc., have no place in such a security system. See K. Organski, International Politics 378-81 (1958) for a criticism of the col- lective security concept.
2.
Dr. Stikker of the Netherlands at the signing of the North Atlan- tic Treaty in 1949 remarked: "The treaty we are about to sign marks the end of an illusion: the hope that the United Nations would by itself en- sure international peace. Suddenly, in retrospect, the signing of the Charter of San Francisco only four yean ago is seen as a charming dream from which we had awakened gradually into a grey reality." N.Y. Times, Apr. 9, 1949 commented on in J. Stone, Legal Controls Of lnter- national Coflict 279 (1959).
Inter-American Treaty of Reciprocal Assistance, art. 4. 3.
L. Goodrich& E. Hambro, Charter of the United Nations 304-08 (rev. ed. 1949); C. Eagleton, International Government548-50 (3d ed. 1957).
4.
T.I.A.S. No. 1838, 62 Stat. 1681, 17 Dep't State Bull. 565-67 (1947), commented on by Men, The Inter-American Treaty of Recipro- cal Assistance, 17 Dep't State Bull. 983-87 (1947).
5.
don thrown around the hemisphere. The treaty entered into force for the U.S. on 3 December 1948. The mem- bers were at that time:
United States Dominican Republic Peru Cuba Costa Rica Bolivia Honduras Panama Paraguay Mexico Venezuela Brazil Guatemala Ecuador Chile El Salvador Colombia Argentina Nicaragua-Haiti –
Uruguay-
b. The North Atlantic Treaty Organization (NATO Treaty). 6 The treaty, signed at Washington 4 April 1949, entered into force for the U.S. on 24 August 1949. It offi- cially acknowledges that the destinies of Western Europe are inextricably linked with those of the larger geographi- cal area, commonly termed the North Atlantic Com- munity. The treaty created an operational organization which has provided multinational armed forces deployed across Europe to oppose any act of agression emanating from the "iron curtain." The members agree to regard an attack on one as an attack on all, and are to aid the one at- tacked. The members are:
united States West Gennany
Canada Belgium
Iceland Luxembourg
Norway Italy
United Kingdom Portugal
Netherlands France
Denmark Greece
Turkey
c. Security Treaty with Australia and New Zealand (ANZUS Pact). 7 The ANZUS Pact was signed at San Francisco, 1 September 1951, and entered into force for the U.S. on 29 April 1952. This treaty acknowledges that an attack in the Pacific against any will involve all and the parties agree to "act to meet the common danger." The members are:
Australia
New Zealand
united States
d. Southeast Asia Treaty Organization (SEATO). 8 The Southeast Asia Collective Defense Treaty and Pro- tocol were signed at Manila on 8 September 1954 and en- tered into force for the U.S. on 19 February 1955. These documents set up the Southeast Asia Treaty Organization covering the "general area of Southeast Asia" and the western Pacific. In case of aggression its members are to
6. T.I.A.S. No. 1964, 62 Stat. 2241, 20 Dep't State Bull. 339 (1949), commented on by Bohler, The North Atlantic Pact: A Historic Step in the Dewlopment of American Foreign Relations, 20 Dep't State Bull. 428-30 (1949).
7.
[I9521 3 U.S.T. 3420, T.I.A.S. No. 2493.
8.
(19551 6 U.S.T. 81, T.I.A.S. No. 3170.
"consult immediately in order to agree to measures which should be taken for common defense." The members are:
Australia France
New Zealand Pakistan
Philippines Thailand
United Kingdom United States
e.
Declaration relating to the Baghdad Pact. 9 The declaration was signed at London, 28 July 1958. The Baghdad Pact was signed at Baghdad on 24 February 1955 and provided that the parties would cooperate for their security and defense. 10 Parties to the Baghdad Pact were Iran, Iraq, Pakistan, Turkey, and the United Kingdom. In the London Declaration the parties, with the exception of Iraq, reaffmed the pact made at Baghdad, and the United States agreed to cooperate with them in their mutual defense. The Baghdad Pact has been known since 1959 as the Central Treaty Organization (CENTO). 11 The United States has maintained an observer status in regard to CENTO. 12
f.
Bilateral treaties of mutual assistance. Primary exam- lples of bilateral treaties of mutual assistance in Asia are:
(1)
Republic of China. Mutual defense treaty was signed at Washington, 2 December 1954 and entered into force for the U.S. 3 March 1955. 13
(2)
Japan. Mutual cooperation and security treaty was signed at Washington, 19 January 1960 and entered into force for the U.S. 23 June 1960. 14
(3)
Korea. Mutual defense treaty was signed at Washington, 1 October 1953 and entered into force for the U.S. 17 November 1954. 15
(4)
Philippines. Mutual defense treaty was signed at Washington, 30 August 1951 and entered into force for the U.S. 27 August 1952. 16
g.
This collective self-defense system, authorized under Article 5 1, has assumed proportions not anticipated at the time of the drafting of the U.N. Charter. 17 To be effective under modem conditions of warfare this collec-tive self-defense must be established during peace. It de- mands a close peacetime cooperation including in some instances the stationing of troops in foreign, allied and friendly states. This stationing of troops in foreign coun- tries in time of peace has been the occasion of the many status of forces agreements which specitjl the rights and duties of the receiving (host) State and the sending (guest) State. The matters covered vary in scope and in detail. In addition to criminal jurisdiction, other items
9. [I9581 9 U.S.T. 1077, T.I.A.S. No. 4084.
10.
Royal Institute on International Affairs, Documents on Interna- tional &fairs, 1955, 287-89 (1958).
11.
See 41 Dep't State Bull. 487, 581 (1959).
12.
44 Dep't Sure Bull. 780 (1961).
13.
[I9551 6 U.S.T.433, T.I.A.S. No. 3178.
14.
[I9601 11 U.S.T. 1632, T.I.A.S. No. 4509.
1s. [I9541 5 U.S.T. 2368, T.I.A.S. No. 3097.
16. [I9521 3 U.S.T. 3947, T.I.A.S. No. 2529.
17. Eagleton, supra note 3, at 551.
usually regulated are civil juisdiction, claims, taxes, duties, and the procurement of local supplies and employees. The criminal jurisdiction features of many of these treaties willnow be examined. 10-3. Jurisdictional Immunity of Visiting Forces. a. Historical Concept. Although the rights and obligations of most United States military personnel per- forming duties in foreign countries are now s@ied by international agreements, some writers and courts thought that under customary international law a foreign force, invited into a State without conditions, is by im- plication immune from the jurisdiction of the receiving (host) State. Until recently writers and judges have cited in support of this rule of implied agreement the dictum of Chief Justice Marshall in the case of The Schooner Ejc-change v. McFaddon. 18
b.
Modern View. Recently, however, in the companion cases of Reid v. Covert and Kinsella v. Krueger, 19 and in the case of Wilson v. Girard, 20 the Supreme Court of the United States in effect denied the existence of a customary international rule of implied waiver of jurisdiction by the host State when such an implied waiver is sought to be based solely on an unconditional invitation from the host State. The court held, citing The Schooner Exchange v. McFaddon, 21 that "a sovereign nation has exclusive ju- risdiction to punish offenses against its laws committed within its borders unless it expressly or impliedly consents to surrender its jurisdiction," 22 and that generally the only jurisdiction which United States military authorities could exercise over its militarypersonnel in foreign coun- tries was that which was permitted by the express consent of the foreign government concerned. The United States has sought to negotiate detailed agreements with all foreign countries where its forces are to be stationed.
c.
Types of Agreements. There are three general types of agreements which are concerned with the status of United States military personnel who are stationed in foreign countries. First, there are what may be called Status of Forces Agreements (SOFA), examples of which are the NATO SOFA and the Japanese Administrative Agreement; second, Mission Agreements such as those with Nicaragua 23 and many other Latin-American coun- tries; and third, Mutual Defense Assistance Agreements under which Military Assistance Advisory Groups (MAAG) operate. 24 With the exception of military at-tach& who enjoy hll diplomatic immunity,and U.S.
18.
11 U.S. (7 CRANCH) 116 (1812). A discussion of Justice Marshall's comment appears at paragraph 4-2a, supra. See also Cole-man v. Tennessee, 97 U.S. 509 (1878); Dow v. Johnson, 100 U.S. 158 (1879). For an examination of the customary law in the absence of a status of forces treaty see Re, The NATO Status of Forces Agreement and International Law, 50 N W LI.L. Rev. 349 (1955).
19.
354 U.S. 1 (1957).
20.
354 U.S. 524 (1957).
21.
11 U.S. (CRANCH) 116 (1812).
22.
354 U.S.at 529.
23.
[I9531 4 U.S.T. 2238, T.I.A.S. No. 2876.
24.
[I9541 5 U.S.T. 852, T.I.A.S. No. 2976.
, forces in West Berlin, the rights and obligations of all United States military personnel performing duty in foreign territory are reflected in one of these three types of agreements.
d. Extent of Privileges. Generally, it may be said that those who perform duties contemplated by Mutual Defense Assistance Agreements enjoy more rights and privileges than are enjoyed by military personnel who per- form duties under status of forces agreements and under
Pam 27-161-1
mission agreements. This special status of the personnel of the various Military Assistance Advisory Groups (MAAG) is attributable to the fact that those groups generally operate as an integral part of the Embassy of the United States. However, the scope of the privileges and immunities vary from country to country. For example, MAAG personnel in Italy have little immunity from the jurisdiction of local courts.
Section 11. CRIMINAL JURISDICTION UNDER STATUS OF FORCES AGREEMENTS
10-4. The NATO Status of Forces Agreement. The NATO Status of Forces Agreement 25 (NATO SOFA) is a multilateral treaty to which the following members of the North Atlantic Treaty organization are parties:
Belgium . Canada
Denmark France
Gennany Greece
Italy Luxembourg
Netherlands Norway
Portugal Turkey
United Kinadom United States
–
Of the 15 NATO member states only Iceland is not a party to this agreement. This section of the chapter will be devoted to an article-by-article analysis of the criminalju-risdiction provisions of the treaty.
a. Persons protected by NATO SOFA. (1) Member of the 'Force" of the Sending State. Article ~(a): "Force" means the personnel belonging to the land, sea, or air armed services of one Contmcting Party when in the territory of another Contracthg Party in the North Atlantic Treaty area in connec- tion with their oflicial duties. ~rovided that the two Contractim Parties concerned may agree that &&in individuals, units or formati&s shall not be regarded as constituting or include in a "force" for the purpclses
of the present Agreement; .. . . A "force," therefore, includes that part of the armed forces of one contra- party stationed in the territory of another. However, it should be noted that the agreement is also applicable to personnel who are sent to a NATO country on temporary duty, and to personnel who may be in transit through a NATO country on oficial duty. Per- sonnel who are AWOL or who are on authorized leave alsoare covered by the agreement so long as they remain in the country in which they are stationed, for their pres- ence in that country is clearly in connection with their of- ficial duties. However, should a soldier who is AWOL or who is on authorized leave commit an offense in a NATO country other than the one m which he is stationed, a different situation is presented. The defintion of a force would not include such personnel, and they would be sub- ject to the rules of law applicable in the absence of a treaty. In practice, France hasbeen willing to apply the provisions of the SOFA to personnel who are in a leave status with-
2s. [I9531 4 U.S.T. 1792,T.I.A.S. No. 2846.It must be remem- bered that this agreement is as operativein war and in hostilities short of formal war as it is @peace. Article XV provides for a "review" in the event of hostilities.
out regard to the location of their permanent duty station. In Germany, a special agreement extends to persons on leave in European and North African countries the status of members of the force for certain purposes. 26
(a)
In contrast to the NATO SOFA, the compara- ble provision of the U.S. agreement with Japan does not contain the limiting phrase "in connection with their offi- cial duties." 27 Accordingly, the reason for the presence of particular individuals in Japan is not material to their in-clusion within the definition of a force. 28
(6)
In Germany, except in cases of military ex- igency, the sending states have agreed not to station in the territory of the Federal Republic as members of a force persons who are solely German. One of the reasons for this agreement is that, under Article 16 of the German Basic Law (Constitution), Germany may not extradite a German national to a foreign state. Exercise of criminal jurisdiction by a sending State over a German national soldier of that State within Germany is considered to be a form of extradition which is repugnant to the concept of the Basic Law.
(2)
Dependents of Members of the Force and Civilian Component. Article I(c): "Dependent" means the spouse of a member of a force
or of a civilian component, or a child of such member depending on him or her for support; .. .
(a) Definition. Under this definition, a relative other than a spouse or other than a child of a member de- pendent on him for support is excluded. Parents and other close relatives, for example, are excluded even though they may be dependent on the member for support and even though they may enjoy, under U.S. Forces military regulations, status as dependents. The definition fails to indicate at what age, if any, a child ceases to be treated as a child for the purposes of the agreement. Because of the restricted definition of a dependent contained in the NATO SOFA, the United States has encountered some practical diffculty in securing a liberal interpretation on
26. Status ofPersons on Leave, [I9591 14 U.S.T. 694,T.I.A.S. No. 5352.
27.
[I960111 U.S.T. 1652,T.I.A.S. No. 4510 (Art. I(a)).
28.
The preceding agreement, which governed the status of U.S. Forces from 1952to 1960,also did not contain the qualifying phrase "in connection with their oflicial duty." (1952) 3 U.S.T. 3341,T.I.A.S. No. 2492.
Pam 27-161-1
the part of the authorities of the receiving State. A more liberal definition of dependent is contained in the NATO Status of Forces Supplementary Agreement 29 applicable in Germany and in the Chinese, 30 Japanese, 31 Korean, 32 Spanish, 33 and Turkish 34 SOFAS.
(b) U.S.military jurisdiction over dependents abroad. Kinsella v. Singleton35 and Grisham v. Hagan 36 This direct appeal tests the constitutional validity of peacetime court- martial trials of civilian persons "accompanying the armed forces with- out the continental limits of the United States" and charged with non- capital offenses under the Uniform Code of Military Justice, 10 U.S.C. section 802,70A Stat. 37. Appellee contends that the dependent wife of
a soldier can be tried only in a court that affords her the safeguards of Article 111 and of the Fifth and Sixth Amendments to the Constitution.
'he appellee is the mother of Mrs. Joanna S. Dial, the wife of a soldier who was assigned to a tank battalion of the United States Anny. The Dials and their three children lived in government housing quarters at Baumholder, Germany. In consequences of the death of one of their children, both the Dials were charged with unpremeditated murder under Article 118(2) of the Uniform Code of Military Justice, 10
U.S.C.A. section 918(2). Upon the Dials' offer to plead guilty to in- voluntary manslaughter under Article 119 of the Code, 10 U.S.C.A. section 919, both charges were withdrawn and new ones charging them separately with the lesser offense were returned. They were then tried together before a general court-martial at Baumholder. .. .
As has been noted, the jurisdiction of the court-martial was based upon the provisions of Article 2(11) of the Code. The Congress enacted that article in an effort to extend, for disciplinary reasons, the coverage of the Uniform Code of Military Justice to the classes of persons therein enumerated. The jurisdiction of the Code only attached, however, when
361 U.S. 278 (1960). 361 U.S. 234 (1960). [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127. 29.
119631 14 U.S.T. 53, T.I.A.S. No. 535. Paragraph 2(a), article 2, provides "A close relative of a member of a force or of a civilian com- ponent not falling within the definition contained in subparagraph (c) of paragraph 1 of Article I of the NATO Status of Forces Agreement who is financially or for reasons of health dependent on, and is supported by, such member, who shares the quarters occupied by such member, and who is present in the Federal territories with the consent of the authorities of the force shall be considered to be, and treated as, a de- pendent within the meaning of that provision."
30.
[I9661 17 U.S.T. 373, T.I.A.S. No. 5986. '"Dependents' means (i) spouse and children under 21; (ii) parents, children over 21, or other relatives dependent for over half their support upon a member of the United States armed forces or civilian component." Id. at art. I(c).
31.
(19601 11 U.S.T. 1652, T.I.A.S. No. 4510. The language of arti- cle 1(c) defines 'dependents' as in note 30, supra.
32.
33.
[I9701 21 U.S.T. 2259, T.I.A.S. No. 6977. "Dependents. This term means members of the families [of military personnel and civilian employees] who depend upon such persons for their support and who are in Spain, and, in any case, the spouse and minor children in Spain of such persons." Id. at para. 2a(4).
34.
[I9541 5 U.S.T. 1465, T.I.A.S. No. 3020. "4persons whoare relatives of, and in accordance with United States law or regulations, de- pending for support upon and actually residing with any member of a United States force or the civilian component, except those who are not United States citizens, shall be considered dependents and will be treat- ed in all respects as those presons defined in Article I, paragraph 1, sub-paragraph c, of the aforesaid NATO [Status of Fom] Agreement." Id. at para. 1.
35.
36.
and if its applicability in a given foreign territory was sanctioned under
"any treaty or agreement to which the United States is or may be a par-
ty" with the foreign sovereignty, or under "any accepted rule of inter-
national law." The existence of such an agreement here is admitted.
The constitutionality of Article 2(11) as it applies in time of peace to,
civilian dependents charged with noncapital offenses under the Code is
the sole issue to be decided. .. .
In this field, United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955), cited with approval by a majority in the second Covertcase, 351
U.S. 487 is a landmark. Likewise, of course, we must consider the effect of the latter case on our problem. We therefore turn to their teachings. The Tothcase involved a discharged soldier who wastried by court-mar- tial after his discharge from the Army, for an offense committed before his discharge. It was said there that the Clause 14 "provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards," 350 U.S. at pages 21-22, and that military tribunals must be restricted "to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service," id., 350 U.S. at page 22. We brushed aside the thought that "considerations of dis-cipline" could provide an excuse for "new expansion of court-martial jurisdiction at the expense of normal and constitutionally preferable systems of trial by jury." Id., at 22-23. (Italics supplied.) We were therefore "not willing to hold that power to circumvent these safeguards should be inferred through the Necessary and Proper Clause." Id., at 22. The holding of the case may be summed up in its own words, namely, that "the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdic- tion to persons who are actually members or part of the med forces." Id., at 15. The test for jurisdiction, it follows, is one of status, namely, whether the accusedin the court-martial proceeding is a person wh~ can be regarded as falling within the term "land and naval Forces." The Court concluded that civilian dependents charged with capital offenses were not included within such authority, the concurring Justices ex- pressing the view that they did not think "that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put before us, so clearly demanded by the effective "Government and Regulation" of those forces as reasonably
to demonstrate a justification for court-martial jurisdiction over capital offenses." Concurring opinion, 354 U.S. at 46-47.
Moreover, in the critical areas of occupation other legal grounds may exist for court-martial jurisdiction as claimed by the Government in No. 37, Wilson v. Bohlender, 361 U.S. 281. See Madsen v. Kinsella, 343
U.S. 341 (1952). Another serious obstacle to permitting prosecution of noncapital offenses, while rejecting capital ones, is that it would place in the hands of the military an umeviewable discretion to exercise jurisdic- tion over civilian dependents simply by downgrading the offense, thus stripping the accused of his constitutional rights and protections. By allowingthis assumption of "the garb of mercy," we would be depriving a capital offender of hiconstitutional means of defense and in effect would nullify the second Covert case. We do know that in one case, Wilson v. Girard, 354 U.S. 524 (1957), the Government insisted and we agreed that it had the power to turn over the case of an American soldier to Japanese civil authorities for trial on an offense committed while on duty. We have no information as to the impact of that-trial on civilian dependents. Strangely, this itself might prove to be quite an effective deterrent. Moreover, the immediate return to the United States permanently of such civilian dependents, or their subsequent prosecution for the more serious offenses in the United States when authorized by the Congress, might well be the answer to the disciplinary problem. Certainly such trials would not involve as much expense nor be as diffcult of successful prosectuion as capital offenses. …
We therefore hold that Mrs. Dial is protected by the spedic provi- sions of Article III and the Faand Sixth Amendments and that her- prosecution and conviction by court-martial are not constitutionally per- missible. The judgment must therefore be AFFIRMED.
-, (3) Members of the "Civilian Component" of the Sending State.
Article I (b): "Civilian component" means the civilian perso~elac-companying a force of a Contracting Party who is in the employ of an armed service of that Contracting Party, and who are not stateless per- sons, nor nationals of any State which is not a Party to the North Atlan- tic Treaty, nor nationals of, nor ordinarily resident in, the State in which the force is located; . . .
(a) Definition. This definition does not include stapless persons, nationals of a state not a party to the NATO, nationals of the receiving State, and persons or- dinarily resident in the receiving State. It also does not in- clude Red Cross personnel, and technical representatives of contractors. This deficiency has been overcome in Turkey where, by bilateral agreement with the United States, 37 such personnel are expressly included as mem-bers of the civilian component. Further, in this connec-tion, the agreement with Japan includes within the defini- tion of the civilian component United States nationals who are ". . .in the employ of, serving with, or accompanying the United States armed forces in Japan, . . ." 38 In Ger-many, the Supplementary Agreement s~~cally
extends to certain personnel (e.g., Red Cross and technical ex- perts) the privilege of members of the civilian component (Arts. 71, 72, and 73). The exclusion of stateless persons and persons who are nationals of a state which is not a member of NATO would seem to present few practical daculties. Fist, aside from labor groups formed of state- less persons, 39 there are probably very few civilian employees who fall into either class of persons. Second, the exclusion of these two classes of persons seems to have been the result of a desire to prevent them from en- tering the receiving State. 40 If such persons are admitted, there would seem to be no compelling reason why they should be excluded from the operation of the agreement. Where a sending State employs resident nationals of the receiving State, it is obviously in the special interests of the receiving State to insure that such persons remain fully under its jurisdiction and protection. To this extent the ex- clusion of nationals of the receiving State from the defini- tion of a civilian component is based on sound reasons of public policy. However, the special interests of the receiv- ing State weaken when the nations in question had emi- grated and were returned to their native country as employees of the sending State, and completely disappear in cases where the person has also acquired the nationality of the sending State. A more realistic approach to the problem of the dual national is contained in the status of forces agreement with Japan, where it is stated: "For the purposes of this Agreement only, dual nationals, United
37.
[I9541 5 U.S.T. 1465,T.I.A.S. No. 3020.
38.
[I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@).
39. Personnel of Labor Service and Civilian Labor Guard units in Germany, composed primarily of Polish and other Eastern European stateless persons, are also not included.
40. J.Snee& A. Pye,S~tadls CrfForces Agreement Crimi~IJurisdic-tion 17 (1957).
Pam 27-161-1
States and Japanese, who are brought to Japan by the
United States shall be considered as United States Na- tionals." 41 Another potential problem area is the result of the exclusion of persons "ordinarily resident" in the receiving State from the definition of civilian component. The reasons for such exclusion are apparent in &es in-volving resident aliens generally, but some difficulty could be presented by the fact that no exception is made for those resident aliens who are nationals of the sen- State. In Germany, for example, command policy precludes the appointment to appropriated or nonap-propriated fund positions of American nationals who are normally resident in Germany. The treaty protection afforded members of the civilian component, as far as criminaljurisdiction isconcemed, has been affected by re- cent pronouncements of the United States Supreme Court. 42 These opinions settle the law somewhat but at the same time challenge the jurisdictional assumptions ac- cepted as valid when the NATO SOFA was negotiated.
(6) U.S.Military Jurisdiction Over U.S. Civilian Employees Abroad.
McElroy v. Guagliardo (No. 21) and
Wilson v. Bohlender (No. 37)43
Mr. Justice Clark delivered the opinion of the Court.
These are companion cases to No. 22,Kinsella v. Singleton, supra, p.
234,and No. 58,Grisham v. Hagan, supra, p. 278,both decided today. AU the cases involved the application of Article 2(11) of the Uniform Code of Military Justice. Here its application to noncapital offenses com- mitted by civilian employees of the armed forces while stationed over- seas is tested.
In No. 21 the respondent, a civilian employee of the Air Force per- forming the duties of an electrical Lineman, was convicted by court-m~- tial a! the Nouasseur Air Depot near Casablanca, MOROCCO,
of larceny and conspiracy to commit larceny from the supply house at the Depot. Beforebeing transferred to the United States Disciplinary Ekmacks, New Cumberland, Pennsylvania, respondent fded a petition for a writ of habeas corpus in the District Court for the Districtof Columbia alleging that the military authorities had no jurisdiction to try him by court-mar- tial. . . .
In No. 37,petitioner, a civilianauditor employed by the United States Army and stationed in Berlin, was convicted by a general court-martial on a plea of guilty to three acts of sodomy. .. .
We believe that these casesinvolving the applicabiity of Article 2(11) to employees of the armed services while serving outside the United States are controlled by our opinion in Kinsella v. Singleton, 80 S.Ct. 297, and Grisham v. Hagan, 80 S.Ct. 310, announced today. In Singleton we refused, in the light of Reid v. Covert, 1957, 354 U.S. 1, 77 S.Q. 1222,1 L.Ed.2d 1148,to apply the provisions of the article to noncapital offenses committed by dependents of soldiers in the armed serviceswhile overseas; in Grishamwe held that there was no constitu- tional distinction for p-of court-martial jurisdiction between dependents and employees insofar as application of the death penalty is concemed. The rationale of those cases applies here.
Although it is true that there are materials supporting prosecution of sutlers and other civilians by courts-martial, these materials are "too episodic, too meager, to form a solid basii in history, preceding and con-
41.
[I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@). A similar provision is contained in the Korean Stcrtus of Forces Agreement, [I9661 17 U.S.T. 1677,T.I.A.S. No. 6127.
42.
See McElroy v. Guagliardo and Wilson v. Bohlender, 361 U.S. 281 (1960).
43. Id.'
temporaneous with the framing of the Constitution, for Constitutional
adjudication." . . .
In the consideration of the constitutional question here we believe it
should be pointed out that, in addition to the alternative types of
procedure available to the Government in the prosecution of civilian
dependents and mentioned in Kinsella v. Singleton, supra, additional
practical alternatives have been suggested in the case of employees of the
armed service. One solution might possibly be to follow a procedure
along the line of that provided for paymasters' clerks as approved in Ex
parte Reed, supra. Another would incorporate those civilian employees
who are to be stationed outside of the United States directly into the
armed services, either by compulsory induction or by voluntary enlist-
ment. If a doctor or dentist may be "drafted" into the armed services,
50 U.S.C. Appendix section 454(i), extended, 73 Stat. 13,50 U.S.C.A.
Appendix section 454 (i); Orloff v. Wioughby, 1953, 345, U.S. 83, 84;
73 S.Ct. 534, 97 L.Ed. 842, there should be no legal objection to the
organization and recruitment of other civilian specialists needed by the
armed services.
I
Moreover, the armed services presently have suRicient authority to set up a system for the voluntary enlistment of "specialists." This was done with much success during the Second World War. "The Navy's Construction Battalions, popularly known as the Seabees, were estab- lished to meet the wartime need for uniformed men to perform con- struction work in combat areas." 1 Building the Nally's Bases in World War I1 (1947) 133.-Just as electricians, clerks, draftsmen, and sur- veyors were enlisted as "specialists" in the Seabees, id., at 136, provi- sions can be made for the voluntary enlistment of an electrician (Guagliardo), an auditor (Wilson), or an accountant (Grisharn). It likewise appears entirely possible that the present "Specialist" program conducted by the Deparmtent of the Army could be utilized to replace civilian employees if disciplinary problems required military control. Although some workers might hesitate to give up their civilian status for government employment overseas, it is unlikely that the armed forces would be unable to obtain a sufficient number of volunteers to meet their requirements. The increased cost to maintain these employees in a military status is the price the Government must pay to comply with constitutional requirements.
The judgment in No. 21 [Guagliardo] is affmned and the judgment in No. 37 [Win] is reversed.
An attempt to exercise jurisdiction over a civilian accom- panying the U.S. forces in Vietnam under Article 2(10), UCMJ, was rejected in United States v. Averette 44 which held that the phase "in time of war" means a "declared war."
b. Application to Political Subdivisions. Article 1(2) is applicable to those states which are organized along Federal lines, such as the United States and Canada. Nor- mally the powers of such a state are divided between the Federal Government and the political subdivisions. Such is not the case in unitary statessuch as Denmark and Ire- land. Article 1(2) was inserted in order to make it clear that all subdivisions of each state are bound by the treaty, not merely the Federal Government. Article 1(2) is clear as to that objective. However, it raises certain other prob- lems. Does it purport to give each subdivision that has autonomy within the Federal structure a direct voice in the administration of the treaty; Normally in a Federal State the Federal Government alone represents the State in foreign relations. It alone has signed the NATO SOFA. It alone is responsible to the other signatory states for the
44. 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970); accord, U.S. v. Zamora & Wiiams, 19 U.S.C.M.A. 403, 42 C.M.R. 5 (1970).
obligations it assumed under the treaty. It would seem that other signatory states would expect to be bound finally by the dete~mination of each subdivision in such matters as requests for waivers, etc. 45 See in this respect the Supplementary Agreement with Germany 46 wherein the initial determinations with respect to exercise of crirni- nal jurisdiction are made by the German States
(Laender).
c. Personal Obligation to Respect Local Law (Article II). Ifa member of the force of the sending State violate* law of the receiving State, Article VII of the NATO SOFA will be the guide in determining if the receiving State will try the member. The question still arises, however, whether a violation of the local law under Article 11is ipso facto an offense under Article 134 of the UCMJ so that he may be tried by the sendii State. If the receiving State tries him, the problem of double jeopardy arises in any at- tempt by the sending State also to exercise jurisdiction. 47 If the receiving State does not try the individual then the problem is twofold. (1) Every violation of one of U.S. local State laws is not in itself an offense under the Uniform Code; there must be some service discrediting facts and circumstances attendant to the violation. 48 Therefore, reasoning by analogy, if the individual is not triable under any other article of the Code, the foreign in- fraction does not automatically cause him to violate Arti- cle 134. (2) If, however, the charge is based not on a violation of the law of the receiving State, but upon a violation by an individual of Article 11of the treaty then the question is whether a violation of a treaty, which is the supreme law of the land under our Constitution, is in itself a federal criminal offense. One aspect of this question came before the Court of Military Appeals in United States v. Ekenstam. 49 In that case the accused was charged with a violation of Article 134 under a specifica- tion which alleged that he had violated a provision of the Administrative Agreement with Japan by selling nonap- propriated fund merchandise to a Japanese national. The court acquitted him on the ground that the specification did not state an offense under the Code. One judge held that the Admininstrative Agreement with Japan bound the signatory governments and not individuals, and that
45.
1 L. Oppenheim, International Law 175-79 (8th ed. Lauter- pacht 1955) analyzes the problems in international law presented by a Federal State whose Federal Government sometimes does not speak in international affairs for all of its component parts. See, e.g., The At- torney General of Canada v. The Attorney General of Ontario and Others, 53 T.L.R. 325 (1937) wherein the limited power of The Government in International Affairs is clearly illustrated.
46.
Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Ger- many, [I9631 14 U.S.T. 531, T.I.A.S. No. 535.
47. Art. VII, 8 8.
48.
United States v. Grosso, 7 U.S.C.M.A. 566, 20 C.M.R. 30 (1957); United States v. Hughes, 7 C.M.R. 803 (1953).
49.
7 U.S.C.M.A. 168, 21 C.M.R. 294 (1956).
Pam 27-161-1
in any event an individual could not commit a military offense by violating a treaty. The court cited Over the Top, 50 which held that the Federal criminal code cannot be enlarged by treaty. If it could then a Federal criminal law can be made without the participation of the House of Representatives. Two years later in United States v. Cur- tin, 51 the Court of Military Appeals again held that the Japanese Administrative Agreement did not bind in- dividuals. The exact point has not been raised in regard to the NATO SOFA. Ifit is raised and it is determined that Article II, NATO SOFA, does bind individuals then the Court will be faced with its dictum in Ekenstam that such a violation of a treaty is not a violation of a Federal criminal law.
d. The Division of Jurisdictional Competence Between the Sending and the Receiving State. The right to exercise jurisdiction as between the receiving State and the sending State is governed by the jurisdictional formula of Article W of the NATO SOFA. This formula characterizes offenses as being subject to the exclusive jurisdiction of the sending State, to the exclusive jurisdiction of the receiving State, and to concurrent jurisdiction.
(I) Exclusive Jurisdiction.
(a) Exclusive Jurisdiction in the Sending State. Most offenses over which the United States would have exclusive jurisdiction would be purely military type offenses, such as AWOL, desertion, disrespect, etc. Offenses relating to security are treason, sabotage, and es- pionage against the United States, offenses with which the receiving State is nor particularly concerned. The Krueger and Covert, 52 the Guaglirado and Bohlender, 53 and the Singleton 54 cases have restricted the exclusive jurisdiction of the United States as a sending State by eliminating dependents and U.S. civilian employees from the category of "persons subject to the military law" of the United States.
(b) Exclusive Jurisdiction in the Receiving State. If Article 134, UCMJ, and Article 11, NATO SOFA, were construed to make any act which is punishable by the receiving State also punishable by the United States as a
50.
5 F.2d 838 @.Corm. 1925).
51.
9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). Judge Ferguson, speaking for the majority stated:
[w]e held in that case [EKENSTAM], that the Adminsitrative was intended to defme the rights and obligations of the signatory govern- ments rather than to prescribe the conduct of individuals or organiza- tions subject to their authority and thus the specification failed to state the offense.
For other cases on the application of treaties directly to individuals, see Jurisdiction Over the Courts of Danzig, [I9281 P.C.I.J. ser. B, No. 15 digested in 5 G. Hackworth, Digest of International Law 171; United States v. Rauscher, 119 U.S. 407 (1886); The Over the Top, 5 F.2d 838 (1925); United States v. Smigar, 6 U.S.C.M.A. 330, 29 C.M.R. 46 (1955).
52.
354 U.S. 1 (1957).
53.
361 U.S. 281 (1960).
54.
KinseUa v. Singleton, 361 U.S. 234 (1960).
sending State there would be no exclusive jurisdiction in the receiving State. The Grosso and Ekenstam cases dis- cussed above in regard to Article I1 also have reference to Article VII. They indicate the formulation of a rule that would prevent the expansion of Article 134, UCMJ, in a way that would change the effect of the exclusive jurisdic- tion provisions of Article W.It is doubtful if the exclusive jurisdiction of the receiving State can be reduced through the application of Article 134, UCMJ. On the other hand, however, the practical result of the loss of court-martial jurisdiction over accompanying dependents and civilian employees is to expand the scope of the exclusive jurisdic- tion of the receiving State.
(2) Concurrent Jurisdiction.
(a) Primary Right in the Sending State or Receiv- ing State. Having determined that an offense is subject to concurrent jurisdiction (i.e., that it is punishable both under the law of the receiving State and under the UCMJ), the question arises as to which State has the pri- mary right to exercise jurisdiction. This determination is governed by the jurisdictional formula of Article VII, NATO SOFA, which provides that the receiving State has the primary right to exercise jurisdiction over all concur- rent jurisdiction offenses except those solely against the properly or security of the sending State or solely against the person or property of another member of the force or civilian component or of a dependent or those arising out of any act or omission done in the performance of official duty. Problems which frequently arise in connection with concurrent jurisdiction are concerned with that portion of Article W which provides that the sending State has the primary right in cases involving "offenses arising out of any act or omission done in the performance of official duty." These problems fall generally into two groups. First, there is the question as to whether the particular offense arose out of the performance of official duty, and, second, the question as to who has the right to make the final determination of whether or not it arose out of the performance of official duty. Initially, it should be noted that the phrase "performance of official duty" is not in- tended to refer to a legal concept which is peculiar to one particular nation. Consistent with United States policy of asserting jurisdiction over its personnel whenever possi- ble, the United States military authorities construe this phrase broadly. In France, the United States successfully maintained that travelmg to and from work is the per- formance of official duty. On the other hand, Franqe maintained that offenses requiring specific intent could not arise out of the performance of official duty. The Korean Status of Forces Agreement 55 has attempted to delineate more precisely the concept of "official duty" as it is used in its jurisdictional formula. The Agreed Minutes Re Arti- cle 22 provide:
55. [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127.
The term "official duty" as used in this Article and Agreed Minutes is not meant to include all acts by members of the United States armed forces and the civilian component during periods when they are on duty, but is meant to apply only to acts which are required to be done as func- tions of those duties which the individuals are performing.
Similarly, the Agreed Official Minutes Regarding Article XIII of the Philippines Bases Agreement as Revised 56 contains language identical to the Korean Agreement. The Philippine Agreement, however, precedes the above language by a provision that "[tlhe term 'official duty' . . . is understood to be any duty or service required or authorized to be done by statute, regulation, the order of a superior or military usage." The celebrated Girard case 57 arose out of a dispute between the Japanese and United States authorities as to whether the offense involved arose out of the performance of official duty.
(b) Wilson v. Girard. 58
. ..
A Security Treaty between Japan and the United States, signed Sep-
tember 8, 1951, was ratified by the Senate on March 20, 1952, and
proclaimed by the President effective April 28, 152 [TIAS24911. Article
III of the Treaty authorized the making of Administrative Agreements
between the two Governments concerning "[tlhe conditions which
shall govern the disposition of armed forces of the United States of
America in and about Japan." Expressly acting under this provision, the
two Nations, on February 28, 1952, signed an Administrative Agree-
ment covering, among other matters, the jursidiction of the United
States over offenses committed in Japan by members of the United
States armed forces, and providing that jurisdiction in any casemight be
waived by the United States [TIAS 24921. This Agreement became
effective on the same date as the Security Treaty (April 28, 1952) and
was considered by the Senate before consent was given to the Treaty.
Article XVII, paragraph 1 of the Administrative Agreement provided
that upon the coming into effect of the "Agreement between the Parties
to the North Atlantic Treaty regarding the Status of their Forces,"
[TIAS 28461 signed June 19, 1951, the United States would conclude
with Japan an agreement on aimhal jurisdiction similar to the corre-
sponding provisions of the NATO Agreement. The NATO Agreement
became effective August 23, 1953, and the United States and Japan
signed on September 29, 1953, effective October 29, 1953, a Protocol
Agreement [TIAS 28981 pursuant to the covenant in paragraph 1 of Ar-
ticle XVII.
Girard, a Specialist Third Class in the United States Army, was
engaged on January 30, 1957, with members of his cavalry regiment in
a small unit exercise at Camp Weir range area, Japan. Japanese civilians
were present in the area, retrieving expended cartridge cases. Guard and
another Specialist Third Class were ordered to guard a machine gun and
some items of clothing that had been left nearby. Girard had a grenade
launcher on his rifle. He placed an expended 30 caliber cartridge case in
the grenade launcher and projected it by firing a blank. The expended
cartridge case penetrated the back of a Japanese women gathering ex-
pended cartridge cases and caused her death.
The United States claimed the right to try Gid upon the ground
that his act, as certified by his commanding officer, was "done in the
performance of offcial duty" and therefore the United States had pri-
mary jurisdiction. Japan inisted that it had proof that Girard's action was
without the scope of hi official duty and therefore that Japan had the 'primary right to try him.
'
Article XXVI of the Administrative Agreement established a Joint
56.
[I9651 16 U.S.T. 1090, T.I.A.S. No. 5851.
57.
Wilson v. Girard, 354 U.S. 524 (1957).
58.
Id. See Baldwin, Foreign Jurisdiction and the American Soldier, 1958 Wis. L. Rev.52, for a review of official duty determination prob- lems.
Committee of representatives of the United States and Japan to consult
on all matters requiring mutual consultation regarding the implementa-
tion of the Agreement; and provided that if the Committee ". . . is una-
ble to resolve any matter, it shall refer that matter to the respective
governments for further consideration through appropriate channels."
The Joint Committee, af€er prolonged deliberation, was unable to
agree. The issue was referred to higher authority which authorized the
United States representatives on the Joint Committee to notify the ap-
propriate Japanese authorities, in accordance with paragraph 3(c) of the
Protocol, that the United States had decided not to exercise, but to
waive, whatever jurisdiction it might have in the case. The Secretary of
State and the Secretary of Defense decided that this determination
should be carried out. The Resident wnfiied their joint conclusion.
"A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or im- pliedly consents to surrender its jurrction." Schooner Exchange v. McFaddon, 7 Cranch 116, 136. Japan's cession to the United States of jurisdiction to try American military pemnnel for conduct constituting an offense against the laws of both countries was conditioned by the covenant of Article XW, section 3, paragraph (c) of the Protocol that
.. . The authorities of the State having the primary r@t shall give
sympathetic consideration to a request from the authorities of the
other State for a waiver of its right in cases where the other State wn-
siders such waiver to be of particular importance.
. .
The issue for our decision is therefori narrowed to the question whether, upon the record before us, the Constitution or legislation sub- sequent to the Security Treaty prohibited the canying out of this provi- sion authorized by 'the Treaty for waiver of the quatitied jurisdiction granted by Japan. We find no constitutional or statutory barrier to the encroachments, the wisdom of the- arrangement is exclusively for the determination of the Executive and Legislative Branches.
(c) "Official Duty'' in NATO Countries. A defi- ciency of the jurisdictional arrangements of the NATO SOFA and of the Japanese Administrative Agreement which in Japan gave rise to the jurisdictional dispute in the Girardcase, is the fact that the treaty does not specify who may determine definitely whether a given offense arose out of the performance of official duty. The authorities, both official and unofficial, are divided on this point. In spite of the absence of definitive provisions in the NATO SOFA, serious disputes regarding official duty determina- tions have been avoided by means of the acceptance by the receiving State of the certZcate of the United States authorities as to performance of official duty, and by the judicious use of the waiver provisions of the Agreement. Thus, a Turkish statute makes the United States certificate determinative.59 In France, a circular of the French Min- istry of Justice provides that the determination of the sending State will be accepted as conclusive if it is ren-dered by a staff judge advocate or legal officer. 60 This, however, has not been the practice in the United Kingdom. The Supplementary Agreement (Article 18) with the Federal Republic of Germany provides that this determination shall be made in accordance with sending State law and that the German court or authority "shall make its decision in conformity with" the certificate of the military authorities in this respect. In effect, then, the Ger- man authorities do, in the first instance, accept the certifi-
59.
See Snee & Pye, supra note 40, at 52.
60.
Id. at 51.
Pam 27-161-1
cate as conclusive. Another article provides, however,
that in exceptional cases the certificate may be made the
subject of review at the request of the German court or
authority, through the medium of discussions between
the Federal Republic and the United States Embassy. The
Korean Status of Forces Agreement provides that a cer-
tif~cate of official duty by competent U.S. authorities is
sufficient. Where the Chief Prosecutor disagrees with the
certificate, it will be made the subject of review by the
Government of the Republic of Korea and the U.S. Em-
bassy.
(4 Waiver of Primary Right. 1. Waiver by Failure to Prosecute. What conduct on the part of the State having the primary right amounts to a decision not to ex- ercise jurisdiction is not altogether clear. For example, suppose the sending State has primary jurisdiction and, after an Article 32 investigation, decides that a trial by court-martial is not warranted. Is such an investigation and determination an exercise of jurisdiction or a decision not to exercise jurisdiction? There is no definitive answer to the question. It is important because a determination that any action short of a trial is a decision not to exercise jurisdiction will force the State with the primary right into choosing the alternative of trial or waiver. It may for good reason wish to do neither.
2. Waiver at the Request of the Other Contract- ing Party. The U.S. Forces' policy is to request waivers in all cases subject to concurrent jurisdiction. Current mili- tary directives 61 require the designated commanding of- ficer, in each foreign country in which United States mili- tary units are regularly stationed, to assure that effective liaison is developed and maintained with appropriate ofi- cials of the foreign country concerned to the end that through the use of local procedures a maximum number of waivers of jurisdiction can be obtained. Constant effort is therefore made to establish relationships and methods
of operations which, in the light of local judicial procedures, will most likely result in waivers. In practice, these directives make the submission of informal requests for waivers at the local level a matter of routine. The response to these routine waivers has varied from country to country. It should be noted that the request for waiver need not be and in most casesis not predicated on the fact that there is a danger the accused will not receive the safeguards accorded him under the U.S. Constitution. Therefore, a denial of a waiver request is seldom the occa-sion for intervention by the Department of State.
3. The Wfect of a Waiver of Primary Right (The Whitley Case). Suppose a waiver is granted by the State with the primary right. Must the requesting State try the individual in order to prevent the State with the pri- mary right for reasserting its right? The Whitley case
answers this question as far as France is concerned. 62 In November, 1953, Major Whitley, an Air Force officer stationed in France with a NATO headquarters suffered a blowout while driving to his home from Paris where he had attended a social function. The car crashed into a tree and a passenger, a Canadian officer, attached to the same NATO headquarters, was killed. The cause of the blowout was never established. Pursuant to a request of Air Force authorities the public prosecutor agreed to waive French jurisdiction over the incident. An informal Air Force in- vestigation, not conducted under Article 32 of the Uniform Code of Military Justice, concluded that evi- dence was insufficient to warrant court-martial charges against Major Whitley for the death of the Canadian of- ficer. Whitley's insurance company refused the demand of the Canadian officer's widow for compensation on the ground that civil liability was not established. The widow, who under Canadian law could receive no pension if the husband was not killed while on duty, therefore initiated a mixed civil-criminal action against Major Whitley in the French criminal court relying upon a provision of the French Code permitting such mixed actions. 63 Among the hues considered by the French Court was the effect of the French prosecutor's initial waiver of jurisdiction. It was agrued on behalf of Major Whitley that a waiver divested the criminaljurisdiction of the French courts. The Tribunal Correctionnel of Corbeil rejected this argu- ment holding that a waiver is not irrevocable, and that since the United States did not try Major Whitley for his alleged offense the French court could try him without securing a waiver from the United States. The Tribunal Correctionnelin the Whitleycase, moreover, took a more extreme position. It held that a waiver of jurisdiction never affects the right of a civil party to initiate a mixed civil-criminal action. The decision of the Tribunal Correc- tionnel, as affumed by the Cour d2ppel of Paris, was one month's imprisonment (suspended) and a 50,000 franc fine. Major Whitley appealed to the Cour de Cassation. The Cour de Cassation annulled the judgment against Major Whitley. The basis of the decision of the Cour de Cassation was the irrevocability of waivers granted pur- suant to Article W 3(c) of the NATO SOFA holding to the effect that a waiver so granted was binding on all tri-bunals of the waiving state regardless of whether the ac- tion was brought by the public prosecutor or the partie civile. The court stated, in substance, that where the authorities of the state which has the primary right to exercise juris- diction under the NATO SOFA has waived that right at the request of the other state, the decision is final and precludes the criminalcourts of the former state from tak-ing cognizance of the facts on which the decision to waive
See appendix A, irlfm. 62.
See JALS 250 19/58, "A Chronicle of Recent Developments in Military Law of Immediate Importance to Army Judge Advocates," a letter setting forth the facts of the Whitley case.
63.
was based. The court further held that it is immaterial whether the state in whose favor the right is waived thereafter institutes criminal proceedings in its own courts against the individual involved, and that an exception to the principle of the irrevocability of waivers can ariseonly if the state in whose favor the waiver was granted ex- pressly states that it waives back the right to exercise juris- diction and returns it to the authorities of the other state. In Germany, intermediate appellate courts have held that, once the German authorities have failed to withdraw the general waiver of jurisdiction following notification under the provisions of Article 19 of the Supplementary Agree- ment, they may not subsequently exercise jurisdiction in the event that the sending State determines not to try the accused by court-martial.
(e) Trial in the Courts of the Receiving State. 1. Treaty safeguards. Article W, 9 of the NATO SOFA contains the following fair trial guarantees:
9. Whenever a member of a force or civilian component or a depen- dent is prosecuted under the jurisdiction of a receiving State he shall be entitled-
(a)
to a prompt and speedy trial;
(b)
to be informed, in advance of trial, of the spe&c charge or charges made against him;
(c)
to be confronted with the witnesses against him;
(d)
to have compulsory process for obtaining witnesses in his favor, if they are within the jurisdiction of the receiving State;
(e)
to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions pre- vailing for the time being in the receiving State;
(f)
if he considers it necessary, to have the services of a competent interpreter; and
(g)
to communicate with a representative of the Government of the sending State and, when the rules of the court permit, to have such a representative present at his trial.
2. The Safeguards in United States Senate Resolution. If the receiving State has exclusive jurisdiction or refuses to waive its primary right and proceeds to trial, the Senate Resolution of July 15, 1953,64 which accom- panied its advice and consent to ratification of the NATO SOFA comes into operation. It requires that the criminal laws of a country where U.S. servicemen are tried by such foreign courts be examined with reference to the procedural safeguards contained in the U.S. Constitu- tion. 65 If there is danger that the accused will not be pro-tected because of a denial of or absence of such a constitu- tional right the Department of State shall be requested to pr,ess for a waiver of jurisdiction. In addition, an observer will attend the trial of all servicemen in foreign courts in order to see that the treaty safeguards set forth in Article W, subparagraph 9, are observed.
(3) Implementation of the Senate Resolution by the
64. [I9531 4 U.S.T. 1828.
6s. For a listing of procedural safeguards contained in the Constitu- tion, see Memorandum of 17 November 1953 prepared by the Inter- Service Legal Committee, reproduced in Heorings on Status of Forces Agreements wore the House Comm. on Foreign .4ffoirs. 84th Cong., 1st Sess., part 1, 249 et seq. (1956).
Department of Defense. 66 The implementing Department of Defense Directive provides:
….
C. Designated Commanding Officer
Formal invocation of the Senate Resolution procedure shall be the responsibility of a single military commander in each foreign country in which United States military forces are regularly stationed (attach6 per- sonnel and other military personnel serving under the direction of a chief of a diplomatic mission will not be considered United States mili- tary forces for this purpose), i.e.,
1.
In the geographic areas for which a unified command exists, the commander thereof will designate within each country, the "Com- manding Officer" referred to in the Senate Resolution.
2.
In other areas for which a command does not exist, a commanding officer in each country shall be nominated by the military departments whose recommendations shall be forwarded by the Judge Advocate General of the hy to the Secretary of Defense, for imple- mentation through the Office of the Assistant Secretary of Defense (In-ternational Security Affairs). In designating the commanding officer to act for all the military departments, consideration should be given to the availability of legal officers and readiness of access to the seat of the foreign government. Such an officer may also be appointed by the mili- tary departments for countries where no military forces are regularly sta- tioned.
….
D. Country Law Studies
For each foreign country in which United States military forces are subject to the criminal jurisdiction of foreign authorities, the designated commanding officer for such country shall make and maintain a current study of the laws and legal procedures in effect. Studies of the laws of other countries shall be made as directed. This study shall be a general examination of the substantive and procedural criminal law of the foreign country, and shall contain a comparison thereof with the procedural safeguards of a fair trial in the State courts of the United States. Copies of these studies should be forwarded to each of the Judge Advocates General of the Se~ces. Principal emphasis is to be placed on those safeguards which are of such a fundamental nature as to be guaranteed by the Constitution of the United States in all criminal trials in State courts of the United States. (See Appendix B for enumeration of safeguards deemed particularly important.) These country law studies shall be subject to a continuing review, and whenever in any country there is a signifmnt change in its criminal law, the change shall be for-
[warded by the designated commanding officer to each of the Service 'Judge Advocates General.
E. Waivers of Local Jurisdiction -Military Personnel
1.
In cases where it appears probable that (a) release of jurisdiction over United States military personnel will not be obtained and (b) that the accused may not obtain a fair trial, the commander exercising general court-martial jurisdiction over the accused will communicate directly with the designated commanding officer, reporting the full facts of the alse and supplying his recommendation.
2.
The designated commanding officer will determine, in the light of legal procedures in effect in that country, whether there is danger that the accused will not receive a fair trial. A trial shall not be deemed unfair solely for the reason that it may not be identical with trials held in the United States. Due regard, however, should be had to those United States trial rights listed in Appendix B which are relevant to the particu- lar facts and circumstances of the trial in question.
3.
If he determines that there is such danger, he will then decide, . after consultation with the Chief of the Diplomatic Mission, whether to press a request for waiver of jurisdiction through diplomatic channels. If
66. Stotus of Forces Policies and Idormation, DoD Duective 5525.1, Jan. 22, 1966. This directive has been implemented by a tri-ser- vice regulation, AR 27-50/SECNAWNST 5820.4D/AFR 110-12, Sept. 5, 1974.
he so decides, he shall submit his recommendation through the unified commander, if any, and The Judge Advocate General of the accused's service to the Office of the Secretary of Defense. The objective in each case is to see that United States military personnel obtain a fair trial in the receiving state under all the circumstances.
….
G. Trial Observers and Trial Observer Reports
1.
The designated commanding officer shall submit to the Chief of Diplomatic Miion a list of persons qualified to serve as United States observers at trials before courts of the receiving state. Nominees will be lawyers, and shall be selected for maturity of judgment. The list will in- clude, where possible, representatives of all Services whose personnel are stationed in that country, to enable the Chief of Diplomatic Miion to appoint an observer from the same Service as the accused. The re- quirement that nominees will be lawyers may be waived in cases of minor offenses. Incidents which result in serious personal injury or ex- tensive property damage, or which would normally result in sentences to confiement, whether or not suspended, will not be considered minor offenses.
2.
Trial observers shall attend and shall prepare formal reports in all cases of trials of United States personnel by foreign courts or tribunals except minor offenses. In cases of minor offenses, the observer shall at- tend the trial, if any, at the dietion of the designated commanding of- ficer, but shall not be required to make a formal report. These reports need not be classified, but shall be treated asdocuments for OFFICIAL USE ONLY, and shall be forwarded intact to the designated command- ing officer through such agencies as the designated commanding officer may prescribe, for transmission to the Judge Advocate General of the accused's Service commander. These reports will be forwarded im- mediately upon the completion of the trial in the lower court, and will not be delayed because of the possibility of a new trial, rehearing, or ap- peal, reports of which will be forwarded in the same manner. Copies shall also be forwarded to the unified commander, if any, and to the Chief of Diplomatic Miion.
3.
The Trial Observer Report shall contain a factual description or summary of the trial proceedings. It should be prepared keeping in mind that its main purpose is to permit an informed judgment to be made regarding (1) whether there was any failure to comply with the procedural safeguards secured by a pertinent status of forces agreement, and (2) whether the accused received a fair trial under all the circum- stances. The report shall specify the conclusions of the Trial Observer with respect to (I), and shall state in detail the basis for his conclusions. Unless the designated commanding officer directs otherwise, the Report shall not contain conclusions with respect to (2).
4.
The dekignated commanding officer, upon receipt of a Trial Ob- server Report, shall have the responsibility for determining (1) whether there wasany failure to comply with the procedural safeguards secured by the pertinent status of forces agreement, and (2) whether the ac- cused received a fair trial under all the circumstances. Due regard should be had to those fair trial rights listed in Appendix B hereto which are relevant to the particular facts and circumstances of the trial in question. However, a trial shall not be deemed unfair for the sole reason that the conduct thereof was not identical with trials held in the United States. If the designated commanding officer is of the opinion that the procedural safeguards spe&ed in pertinent agreements were denied or that the trial wasotherwise unjust, he shall submit to the off~ce of the Secretary of Defense, through the unified commander and the Judge Advocate General of the service concerned, his recommendations as to appropri- ate action to rectify the trial deficiencies and otherwise to protect the rights or interests of the accused. This shall include a statement of efforts taken or to be taken at the local level to protect the rights of the accused. An information copy of the recommendation of the designated commanding officer shall be forwarded by him to the diplomatic or con- sular mission in the country concemed.
(4) ~m~lo~mentof Local Attorney for Ac-cused. (a.) . Criminal Cases. Representation by civilian
counsel at government expense of United States military personnel tried in foreign criminal courts is furnished in accordance with 10 U.S.C. 1037 when such action is deemed to be in the best interests of the United States. 67 Implementation of this statute is subject to service regula- tions. 68 The tri-service regulation provides that any per- son subject to court-martial jurisdiction who is cited to ap- pear before a foreign tribunal, civil or criminal, is eligible to submit a request for the appointment of counsel. For Army personnel, the request is to be submitted to the of- ficer exercising general court-martial jurisdiction over him. That officer may approve the request: (1) if it is an offical duty offense; (2) where the sentence which is nor- mally imposed included confinement-whether or not suspended; (3) in capital cases; (4) in appeals from proceedings which apparently denied some substantial right of the accused, and (5) where conviction of the offense alleged could later form the basis for administra- tive discharge proceedings for misconduct as a result of civil court disposition (e.g., eliminations actions pursuant to AR 635-120 and AR 635-206.) With respect to cases not meeting any of the five criteria, he may approve the request if he considers the case to have a significant impact upon our relations with the foreign country, or if he con- siders the case to involve a particular United States in- terest.
(b.) Civil Cases. In civil cases, the criteria for ap- proval of requests are two: (1) where the suit is based on an act which occurred in the performance of official duty, or (2) where the suit has a significant impact on United States relations with the foreign country, or involves a particular United States interest.
(c.) Procedures. Once his request has been ap- proved, the individual is free to select his counsel from a list furnished him of those civilian attorneys who are qualified and admitted to practice before the courts of the foreign country involved. After he has selected his at- torney, the attorney is asked to sign a contract of employ- ment with the United States in which he agrees to repre- sent the individual diligently and to pay all necessary costs and expenses, and in which the United States agrees to pay him for his services and to reimburse him for those necessary out-of-pocket costs and expenses. If a convic- tion with confinement results from the trial, the service-
67. 10 U.S.C. 1037 is in part as follows:
(a)
Under regulations to be prescribed by him, the Secretary con'- cerned may employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation, before the judicial tribunals and administrative agencies of any foreign nation, of persons subject to the Uniform Code of Military Justice. So far as practicable, these regulations shall be uniform for all armed forces.
(b)
The person on whose behalf a payment is made under the section is not liable to reimburse the United States for that payment, unless he is responsible for forfeiture of bail under subsection (a).
6s. Chapter 2, AR 27/50/SECNAVINST 5820.4D/AFR 110-12, Sept. 5, 1974.
man is not forgotten. DOD Directive 5525.1 provides in paragraph IVO as follows:
I. Treatment of United States Personnel Cortfined in Foreign Penal In- stitutions.
1.
Insofar as practicable and subject to the laws and regulations of the country concerned and the provisions of any agreement therewith, the Department of Defense seeks to assure that United States military per- sonnel (1) when in the custody of foreign authorities are fairly treated at all times and (2) when confiied (pretrial and post-trial) in foreign penal institutions are accorded the treatment and are entitled to all the rights, privileges and protections of personnel confined in United States mili-tary facitlites. Such rights, priviliges and protections are enunciated in present Service directives and regulations, and include, but are not limited to, legal assistance, visitation, medical attention, food, bedding, clothing, and other health and comfort supplies.
2.
In consonance with this policy, United States military personnel contined in foreign penal institutions shall be visited at least every thirty days, at which time the conditions of confmement as well as other mat- ter relating to their health and welfare willbe obsewed. The Services will maintain on a current basis records of these visits as reported by their respective commands. Records of each visit should contain the follow- ing information.
Information as to discharge of a prisoner from the service or ter- mination of confinement. Action taken to have any deficiencies corrected, either by the local commander or through diplomatic or consular mission. Assistance given to prisoner, i.e., legal, medical, food, bedding, clothing, and health and comfort supplies. Condition of prisoner, physical and mental. Change in status of prisoner, conditions of confinement or transfer to another institution. Conditions existing in the prison, i.e., light, heat, sanitation, food, recreation, religious activities. Treatment of the individual prisoner by prison warden and other personnel (include a short description of the rehabilitation program, if any, as applied to the prisoner). Name and location of prison. Name of each prisoner visited, serial number, and sentence for which he is serving imprisonment. Names of personnel conducting visit and date of visit. a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Designation of command responsible for prisoner's welfare and reporting of visits.
k.
3.
Should it not be practicable for the individual's commanding of- ficer or his representative to make visits, the designated commanding officer should be requested to arrange that another unit be responsible for such visits or to request that the appropriate diplomatic or consular mission assume responsibility therefor. Whenever necessary, a medical officer should participate in the visits and record the results of his ex- amination. If reasonable requests for permission to visit United States military personnel are arbitrarily denied, or it is ascertained that the in- dividual is beiig mistreated or that the conditions of his custody or con- fmement are substandard, the case should be referred to the diplomatic or consular mission concerned for appropriate action.
4.
To the extent possible, military commanders should seek to con- clude local arrangements whereby the United States military authorities may be permitted to accord United States military personnel confied in foreign institutions treatment, rights, privileges, and protection similar to those accorded such personnel confiied in United States military facilities. The details of such arrangements should be submitted to the Judge Advocates General of the Services.
5.
The military authorities shall make appropriate arrangements with foreign authorities whereby custody of individuals who are members of the armed forces shall, when they are released from confinement by foreign authorities, be turned over to the United States military authorities. In appropriate cases, diplomatic or consular officers should be requested to keep the military authorities advised as to the antici- pated date of the release of such persons by the foreign authorities.
6. In cooperation with the appropriate diplomatic or consular mission, military commanders will, insofar as possible, assure that dependents of United States military personnel, nationals of the United States serving with, employed by and accompanying the wed forces, and dependents of such nationals when in the custody of foreign authorities, or when confiied (pre-trial and post-trial) in foreign penal institutions receive the same treatment, rights and support as would be extended to United States military personnel in comparable situations pursuant to the other provisions of Section IV.1.
This paragraph of the DOD Directive is implemented by Chapter 3, AR 27-SOISECNAVINST 5820.4DlAFR 110-12, September 5, 1974.
0) Search and Seizure in the Receiving State. In the 1976 case of United States v. Jordan 69 the Court of Military Appeals extended the protection of the Fourth Amendment to American servicemen beyond that pre- viously afforded by the rationale of the DeLeo 70 decision. In Jordan the serviceman involved was questioned by Bri- tish police concerning several robberies which had occur- red in the American housing area. Jordan acquiesced in a request by British police to search his area. The subse- quent search was conducted, in the main, by the British civil authorities who were accompanied by two air police- men from Jordan's base. Theair police took no part in the actual search except to unlock a padlock on Jordan's locker and look around the room. When incriminating evidence was discovered, the British police requested a photographer and Air Force personnel complied. Judge Fletcher, writing for the majority, articulated the court's rationale as follows:
"The temptation confronting American officials to avoid the Fourth Amendment by merely delegating primary search authority to those not subject to our Constitution coupled with the unending judicial dilemma of resolving what is and is not sufficient participation to trigger the Con- stitutional guarantee leads us to conclude that the DeLeo standard no longer is satisfactory to safeguard the constitutional rights of servicemen stationed in a foreign country. .. .
We therefore hold that for trials by court-martial commencing after [March 12,19761, whenever American officials are present at the scene of a foreign search or, even though not present, provide any informa- tion or assistance, directive or request, which sets in motion, aids, or otherwise furthers the objectives of a foreign search, the search must satisfy the Fourth Amendment as applied in the military community before fruits of the search may be admitted into evidence in a trial by court-martial." 71
The court further restricted the court-martial use of evi- dence obtained from foreign officials.
If the government seeks to use evidence obtained either directly or indirectly from a search conducted solely by foreign authorities, a show- ing by the prosecution that the search by foreign officials was lawful, ap- plying the law of their sovereign, shall be a prerequisite for its admission in evidence upon motion of the defense. 72
Finally, the court stated that the trial judge had discretion to refuse to admit the evidence unlesshe was satisfied that the "foreign search does not shock the conscience of the
69, 24 U.S.C.M.A. 156, 51 C.M.R. 375 (1976).
7'3. 5 U.S.C.M.A. 148, 17 C.M.R. 148 (1954).
71.
24 U.S.C.M.A. at 158-59, 51 C.M.R. at 377-78.
72.
Id. at 159 and 378.
Pam 27-161-1
court." 73 This broadened application of the exclusionary rule would appear to be at variance with recent Supreme Court decisions. 74
(g) The United States as a Receiving State. The Service Courts of Friendly Foreign Forces Act was enacted in 1944 in order to permit the operation of allied military courts on U.S. soil. 75 The act is designed to come into operation by presidential proclamation. President Roosevelt issued the proclamation in 1944 shortly after the act was passed. The proclamation was withdrawn in 1955 inasmuch as Article W permits the establishment of such courts. However, there is much more involved than courts. Such matters as the bearing of arms, licensing of vehicles, waivers, taxes, postal privileges, the role of the state and federal authorities, etc., all must be taken into account. 76
10-5. Other Status of Forces Agreements.
a. Germany. 77 (1) Origins. Until 1 July 1963 the rights and obligations of the United States forces stationed in the Federal Republic of Germany were governed by the Bonn Conventions of 1952, as amended by the Paris Protocol of 1954. One of these Conventions, the "Convention on Relations Between the Three Powers and the Federal Republic of Germany," provided that three of the conventions, the "Finance Convention," the "Forces Convention," and the "Tax Agreement" would be replaced by the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA) and such supplementary arrangements as might be required to meet special conditions within the Federal Republic. On 11 October 1955, the negotiation of the Supplementary Agreement began. On 3 August 1959, almost four years later, the Federal Republic of Germany and the NATO countries with armed forces stationed in Germany (the United States, Belgium, Canada, France, the Nether- lands, and the United Kingdom) signed the agreement. 78 Because of delays incident to ratification, however, it did not come into force and effect until 1 July 1963. The Federal Republic of Germany became the 14th of the 15 NATO countries to be bound by the NATO SOFA. (Ice- land is the only NATO country which is not a signatory to
73. Id.
74. See, e.g., United States v. Janis, 19 Crim L. Rep 3323. The Court, in discussing the inter-sovereign applicability of the exclusionary rule stated:
It is well-established, of course, that the exclusionary rule as a deterrent sanction is not applicable where a private party or a foreign government commits the offending act. (emphasis added) Id. at 3330, n. 31.
75. 22 U.S.C.55 701-706 (1944).
76. See Ellert, The United States as a Receiving State, 63 DICK.
L.
REV.75 (1959).
77. See, Esgain & Kenyon, The North Atlantic Treaty Organization Status of Forces Agreement with the Federal Republic of Germany, 10 Fed. Bar News 291 (1963).
78. [I9631 14 U.S.T. 531, T.I.A.S. No. 535; 41 Dep't State Bull. 293 (1959).
the NATO Status of Forces Agreement.)
(2) The Supplementary Agreement. The Supplemen- tary Agreement is much more detailed and comprehen- sive than any previous or subsequent SOFA. It encom-
passes in one document matters which are generally treat- ed in a variety of agreements. Its comprehensiveness is in part attributable to the fact that a Federal system of Government exists in Germany and, as such, a detailed agreement which would bind the 10 states (Laender) of the Federal Republic of Germany on a host of local mat- ters was required. Similar arrangements have been the subject of general rather than detailed understanding in other countries where, in the absence of the Federal system, broad understandings can be centrally and uniformly administered. The Supplementary Agreement contains 83 articles which are concerned with such diverse matters as the personal status of the members of a visiting force, custody and jurisdiction (both criminal and civil), accommodations, taxation, customs, damage claims and maneuver rights, liability insurance, vehicle registration, the registration of deaths and births, social security, dri- vers' licenses, enforcement of judgments, aerial photogra- phy, procurement, and the like.
(3) The Jurisdictional Formula and Automatic Waiver. The item of greatest general interest is the ar- rangement pertaining to the exercise of criminal jurisdic- tion over members of the United States forces, the civilian component, and the dependents of both these categories of personnel. Under the superseded "Forces Conven- tion," the United States had what amounted to exclusive criminal jurisdiction over all United States service con- nected personnel in Germany. This arrangement has been replaced by the jurisdictional formula of the NATO SOFA as modified in important particulars by the Supplementary Agreement. Under the NATO SOFA, most serious offenses committed by sending State personnel are subject to the concurrent jurisdiction of both the sending and the receiving States. Article W of the NATO SOFA obligates the state having the primary right to exercise jurisdiction to give "sympathetic consideration'' to a request from the other state for a waiver of that right in cases of particular importance to the latter. In Article 19 of the Supplemen- tary Agreement, the Federal Republic of Germany has agreed to grant to a sending State, upon request, a general waiver of its primary right to exercise jurisdiction in cases under the NATO SOFA, subject, however, to the right of the German authorities to recall the waiver when they decide that, by reason of the circumstances of a specific case, major interests of German administration of justice make imperative the exercise of German jurisdiction. The ~i~cance
of the difference between this commitment and the waiver language of the NATO SOFA is obvious. In order to implement the waiver arrangement in the Federal Republic of Germany, the United States re- quested that the general waiver be granted. (The require- ment of a request for waiver was necessary because some
of the sending States, unlike the United States, were ap- parently not interested in securing any greater rights to ex- ercise criminal jurisdiction than are provided in the NATO SOFA itself, and therefore did not desire a general waiver.) When an offense is committed by a U.S. service- man over which the Federal Republic would have the primary right to exercise jurisdiction, the United States military authorities must notify the appropriate German authorities of the case. Within three weeks from receipt of the notification, the local German authorities may recall the waiver. Provision is made for discussion between the local German authorities and the local United States mili- tary authorities in cases of recall and, if there is disagree- ment on the propriety of the recall, for appeal to their counterparts at the Land (State) level. If the problem can-not be resolved at the Land level, the matter may be referred to the Mixed Commission established under Ar-ticle 30 of the Supplementary Agreement. The Ger- madAmerican Mixed Commission consists of a repre- sentative of the German Federal Ministry of Justice and the Judge Advocate, United States Army, Europe and Sev- enth Army. Final appeal is to the United States Embassy and to the Federal Republic. The Government of the Federal Republic, however, has the right to resolve the matter unilaterally and finally. However, both the United States Embassy and the German government must give "sympathetic consideration" to any joint recommenda- tion of the Mixed Commission. In an agreed minute, the Germans have indicated that the term "major interests of German administration of justice" includes such crimes as homicide, rape, and robbery. These criminal jurisdic- tion arrangements are much more favorable to the United States than are those of the NATO SOFA.
(4)
Arrest Powers. Under the Bonn Conventions, the German police possessed only a very limited authority to arrest United States servicemen. Under the new agree- ments, the German police have plenary powers of arrest over servicemen.
(5)
Custody and Trial. A United States serviceman who is to be tried for a crime by a German court may be retained in United States custody both before and during his trial. A United States serviceman who is charged by a German court may choose local defense counsel, who will be retained for him by the United States Army, which will normally pay for such counsel and for court cost, but not fines. The trial, of course, will be conducted in German but the accused is provided an interpreter. A United States trial observer (a JAGC officer or American civilian at- torney on the staff of the command Staff Judge Advocate) will attend the trial of United States service-connected personnel by German courts and will report on the fair- ness of the trial and whether the accused's treaty rights were respected during the proceedings. An accused sen- tenced to confinement in a German prison will be regularly visited by United States representatives who will report on the conditions of confinement. Once tried by a
German court, a serviceman cannot be tried again for the same offense by a court-martial in Germany.
(6)
Civilians and Dependents. Civilian employees of the United States forces in Germany and dependents have not been subject to peacetime court-martial jurisdiction since the Supreme Court decisions on this subject in Janu- ary 1960. Civilians in Germany, therefore, will continue to be fully subject to the jurisdiction of German courts for crimes committed in Germany. Trial safeguards in Ger- man courts for these civilians are the same as for United States servicemen.
(7)
Non-Criminal Jurisdiction. United States per- sonnel in Germany continue, under the new agreements as they were under the Bonn Conventions, to be subject to the non-criminal jurisdiction of German tribunals. They are not, however, subject to any proceedings for the enforcement of any judgment against them in Germany in a matter arising from their performance of official duties.
(8)
Further Implementation. Most of the 83 articles of the Supplementary Agreement contemplate the making of further and more detailed implementing arrangements and Agreements. A Protocol of Signature accompanies the basic agreement and contains Agreed Minutes and Declarations relating both to the NATO SOFA and to the Supplementary Agreement. In addition, numerous ad- ministrative agreements have been concluded between the United States and Germany at the U.S. Em-bassy/German Foreign Office level implementing or amending specific articles of the NATO SOFA, the Sup- plementary Agreement and the Protocol of Signature. The Agreement, therefore, cannot be authoritatively in- terpreted without recourse to these materials.
6. Japan. As Japan was not a member of NATO the status of U.S. forces stationed in the home islands of Japan after the conclusion of the occupation was first governed by a 1952 Administrative Agreement. 79 This Administrative Agreement was one of several agreements which were executed in implementation of a 1952 Security Treaty 80 with Japan. Both the Security Treaty and the Administrative Agreement came into force the day the Peace Treaty 81 with Japan came into effect. With respect to criminal jurisdiction, the Administrative Agree- ment provided that the U.S. was to have the primary right to exercise jurisdiction in all cases. However, the agree- ment also contained a pledge to revise this criminal juris- diction formula along the lines of the NATO SOFA when that latter agreement came into force for the United States. Therefore, when in 1953 the NATO SOFA became effective, the U.S. signed a protocol with Japan revising so much of the Administrative Agreement with Japan as pertained to the exercise of criminal jurisdic- tion-making it nearly identical with corresponding provi-
79.
[I9521 3 U.S.T. 3341, T.I.A.S. No. 2492.
80.
[I9521 3 U.S.T. 3329, T.I.A.S. No. 2491.
81.
[I9521 3 U.S.T. 3169, T.I.A.S. No. 2490.
Pam 27-161-1
sions of the NATO agreement. 82 The 1952 Security Treaty was superseded on 19 January 1960 by a Treaty of Mutual Cooperation and Security. 83 The new treaty (Ar-ticle VI) requires that the status of forces be provided by an agreement separate from the 1952 Administrative Agreement. Article VI was immediately implemented by an agreement 84 which now controls the status of U.S. forces in Japan. It is substantially similar to the NATO SOFA.
c. Republic of Korea. With the exception of MAAG personnel, the status of U.S. forces in Korea was governed, until 9 February 1967, by a wartime executive agreement entered into in July of 1950. 85 That agree- ment, actually an exchange of notes between the ROK government and our embassy at Seoul, gave the United States exclusive criminal jurisdiction over "members of the United States Military Establishment in Korea." On 9 February 1967, the Korean Status of Forces Agreement, with agreed minutes, 86 came into effect. Based largely on the NATO SOFA, it established a jurisdictional formula similar to that contained in the NATO SOFA. Members of the force are defined as personnel on active duty with the armed services of the United States when in the ter- ritory of the Republic of Korea except Embassy and MAAG personnel. MAAG personnel and their depend- ents continue to enjoy the immunities of Embassy person- nel as provided in the Mission Agreement of 26 January 1950.87 The civilian component is defined as civilians of
U.S.
nationality who are in the employ of, serving with, or accompanying the U.S. Armed Forces except persons or- dinarily resident in the Republic of Korea and "invited contractors." Invited contractors are treated as a special class and enjoy certain, but not all, of the rights accorded to members of the civilian component. For the purposes of the Agreement, dual nationals brought into Korea by the Armed Forces will be deemed to be U.S. nationals. Dependents are defined as the spouse and children under 21, as well as children over 21 and other relatives depend- ent for over one-half of their support on members of the forces or civilian component.
d.
Philippine Islands. U.S. forces in the Philippines, principally Navy and Air Force, come under a Military Bases- Agreement which has been in effect since 1947.88 In 1965, Article XIII of the Agreement governing crimi- nal jurisdiction was substantially revised. The revised Ar-
82: [I9531 4 U.S.T. 1846, T.I.A.S. No. 2848.
83.
I19601 11 U.S.T. 1632, T.I.A.S. No. 4509.
84.
[I9601 11 U.S.T. 1652, T.I.A.S. No. 4510.
8s. [I9541 5 U.S.T. 1408, T.I.A.S. No. 3012. See also [I9521 3
U.S.T.4420, T.I.A.S. No. 2593.
86.
[I9661 17 U.S.T. 1677, T.I.A.S. NO. 6127.
87.
[I9521 3 U.S.T. 2696, T.I.A.S. No. 2436.
88.
61 Stat. 4019, T.I.A.S. No. 1775. Seealso [I9581 9 U.S.T. 547,
T.I.A.S.No. 4033 establishing a Mutual Defense Board to work out problems under the base agreement.
ticle XIII, 89 like the current provisions of the Japanese and Korean agreements, contains a jurisdictional formula similar to the NATO SOFA. With respect to those offenses over which the United States has primary juris- diction, the Agreed Official Minutes Regarding Article XI11 specifies such jurisdiction will apply "only to those persons subject to the military law of the United States regularly assigned to the Philippines or present in the Philippines in connection with the presence of the U.S. bases." Further, it specifies that the term "persons sub- ject to the military law of the United States" does not ap- ply to members of the civilian component or dependents "with respect to whom there is no effective military juris- diction at the time this arrangement enters into force," thereby recognizing the recent United States court deci- sions 90 denying military jurisdiction over such personnel.
e.
Okinawa (Ryukyu Islands). Under the terms of the Peace Treaty with Japan, the United States was granted "the right to exercise all and any powers of administra- tion, legislation, and jurisdiction over the territory and in- habitants" of the Ryukyu Islands. 91 Exclusive criminal jurisdiction over all the Marines, Army, Navy, Air Force, and Coast Guard who are stationed at this defense bastion was thus vested in United States courts-martial. USCAR courts exercised jurisdiction over U.S. civilians who were either United States government employees or depend- ents. Since the entry into force of the Agreement for Reversion to Japan of the Ryukyu and Daito Islands, 92 jurisdiction over U.S. military and civilian personnel is governed by the Japanese Administrative Agreement. 93
f.
Saudi Arabia. Under earlier agreements (e.g., Dhahran Air Base Agreement 94 and the MAAG Agree- ment), 95 criminal jurisdiction was based on a geographi- cal concept, i.e., offenses committed by military personnel in certain specified areas of the nation were subject to ex- clusive U.S. jurisdiction. Offenses committed by military personnel outside those areas and all offenses committed by civilians irrespective of where committed were subject to exclusive Saudi Arabian jurisdiction. In later agreements (e.g., the Construction of Military Facilities Agree- ment), 96 the concept was changed so as to provide that "the senior representative of the Corps (of Engineers) element in Saudi Arabia shall have the sole authority to maintain discipline and good order among the members of the Corps and their dependents and to assure their full respect for the laws of Saudi Arabia by taking appropriate
[I9651 16 U.S.T. 890, T.I.A.S. No. 5830. [I9531 4 U.S.T. 1482, T.I.A.S. No. 2812. [I9511 2 U.S.T. 1466, T.I.A.S. No. 2290. [I9601 11 U.S.T. 1652, T.I.A.S. No. 4510. [I9521 3 U.S.T. 3169, T.I.A.S. No. 2490. See paras. 10-4a(2) and (3) supra. [I9651 16 U.S.T. 1090, T.I.A.S. No. 5851; 119711 22 U.S.T. 1469, T.I.A.S. No. 7160. 89.
90.
91.
92.
[I9721 23 U.S.T. 446, T.I.A.S. No. 7314, entered into force May 15, 1972.
93.
94.
95.
96.
action under United States law involving such persons." In the Agreement on Privileges and Immunities for United States Personnel Under F-5 Aircraft Maintenance and Training Program 97 and the National Guard Modern- ization Program Agreement, 98 identical treatment was extended to personnel under those programs.
g.
Other Agreements. Mentioned earlier in Part I are the Rio Pact 99 effective 3 December 1948, including all the nations of North and South America except Canada; the SEAT0 Pact 100 [Southeast Asia Collective Defense Treaty] effective 19 February 1955, between the United States, the United Kingdom, France, New Zealand, Australia, Thailand, Pakistan, and the Philippines; the ANZUS Pact 101 of 29 April 1952, involving the United States, Australia, and New Zealand; and the CENT0 Pact to which Iran, Pakistan, Turkey, and the United Kingdom are parties, and to which the United States has made a declaration. 102
h.
International Headquarters Agreements. (1) In ad-dition to the multilateral and bilateral SOFAS governing I the status of personnel assigned or attached to national military forces of a sending State within the territory of a receiving State, other agreements have been adopted governing the status of personnel assigned or attached to international organizations and international military headquarters in several states in which such international organizations or headquarters are located. Typical exam- ples of such agreements are as follows:
(a)
The Ottawa Agreement on the Status of the North Atlantic Treaty Organization, National Representa- tives, and International Staff. 103
(b)
Protocol on the Status of International Mili- tary Headquarters. 104
(c)
Agreement Regarding the Status of Personnel of Sending States Attached to an International Military Headquarters of NATO in the Federal Republic of Ger- many. 105
(4 SHAPE/Belgian Agreement 106 (to be ad-ded).
(e)
AFCENTmetherlands Agreement 107 (to be added).
(2)
The Ottawa Agreement, governing the status of the nonmilitary side of the North Atlantic Treaty
97. [I9721 23 U.S.T. 1469, T.I.A.S. No. 7425.
90. [I9731 24 U.S.T. 1106, T.I.A.S. No. 7634.
99.
62 Stat. 1681, T.I.A.S. No. 1838 (1947).
100.
[I9551 6 U.S.T. 81, T.I.A.S. No. 3170.
101.
I19521 3 U.S.T. 3420, T.I.A.S. No. 2943.
102.
[I9581 9 U.S.T. 1077, T.I.A.S. No. 4084.
103.
[I9541 5 U.S.T. 1087, T.I.A.S. No. 2992 [hereinafter referred to as Ottawa Agreement].
104.
[I9541 5 U.S.T. 870, T.I.A.S. NO. 2978 [hereinafter referred to as the I.M.H. Protocol].
10s. [1967] 20 U.S.T. 4055, T.I.A.S. No. 6792 [hereinafter referred to as I.M.H. Agreement-Germany].
106.
SHAPE/Belgium.
107.
AFCENT Netherlands.
Organization, provides that "[elvery person designated by
a Member State as its principal permanent representative
to the Organization in the territory of another Member
State, and such members of his official staff resident in
that territory as may be agreed between the State which
has designated them and the Organization and between
the Organization and the State in which they will be resi-
dent, shall enjoy the immunities and privileges accorded
to diplomatic representatives and their official staff of
comparable rank." 108 The Agreement further provides
that any other representative, including advisers and tech-
nical experts of delegations, as well as official clerical staff
accompanying a representative of a Member State shall,
while present in the territory of another Member State for
the discharge of his duties, be entitled to the same im-
munity from personal arrest or detention as that accorded
to diplomatic personnel of comparable rank. 109 However,
since the privileges and immunities accorded to these per-
sonnel are not for the personal benefit of the individuals
themselves but in order to safeguard the independent ex-
ercise of their functions in connection with the North
Atlantic Treaty, "a Member State not only has the right,
but is under a duty to waive the immunity of its repre-
sentatives and members of their staffs in any case where,
in its opinion, the immunity would impede the course of
justice and can be waived without prejudice to the pur- poses for which immunity is accorded." 110
(3) The IMH Protocol, on the other hand, governs the status of the military side of the NATO complex, specifically to Supreme Headquarters Allied Powers in Europe (SHAPE), Headquarters, Supreme AUied Com- mander Atlantic (SACLANT) , other equivalent interna- tional military headquarters set up pursuant to the North Atlantic Treaty (e.g., Allied Command Channel) and any other international military headquarters immediately subordinate to a Supreme Headquarters (the latter desig- nated as "Allied Headquarters"). 111 Examples of "Allied Headquarters" are the three major subordinate international military headquarters assigned to SHAPE: Allied Forces Northern Europe (AFNORTH) located in Kolsaas, Norway; Allied Forces Central Europe (AF- CENT) located in Brunssum, The Netherlands; and Allied Forces Southern Europe (AFSOUTH) , located in Naples, Italy. From the standpoint of criminal jurisdic- tion, the Protocol applies the provisions of Article W of NATO SOFA to the personnel of the national military ele- ments assigned to the several international military head- quarters "when such personnel are present in [the territo- ry in which the headquarters is located] in connection with their official duties." 112 The IMH Protocol establishes basic relationships in consideration of the expectation that
10s. Ottawa Agreement, supra note 105, art. MI.
"39. Id. at arts. XI11 and XIV.
110.
Id. at art. XV.
111.
I.M.H. Protocol, supra note 106, at art. I.
112.
Id. at art. 11.
international military headquarters in addition to
"Supreme Headquarters" and "Allied Headquarters" would be established, by separate agreement, in the ter- ritories of various member states. 113 Further, the IMH Protocol envisages the possibility of bilateral agreements between a receiving State and a Supreme Headquarters supplementing the IMH Protocol. 114 The agreements dis- cussed below are examples of those separate national agreements.
(4) The IMH Agreement-Germany is a multilateral agreement between the signatories to the NATO Status of Forces Supplementary Agreement 11s conferring on the personnel of the signatory sending State elements of the international military headquarters in Germany the same status as those personnel would enjoy under the Supplementary Agreement. At the present time, the international military headquarters to which this agreement applies are NATO commands subordinate to Headquarters AFCENT. 116
Id. at para. 2, art. XVI. 113.
Id. at preamble.
114.
115.
Belgium, Canada, Germany, Netherlands, United Kingdom, and United States.
116.
At the present time there are four International Military Head-quarters in Germany; Headquarters Northern Army Group (NORTHAG) located in Muenchen-Gladbach; Headquarters Central Army Group (CENTAG) located in Seckinheim; Headquarters 2d Allied Tactical Air Force (2d ATAF) located at Meunchen-Gladbach; and Headquarters, 4th Allied Tactical Air Force (4th ATAF) located at Ramstain.
Pam 27-161-1
10-6. Conclusion. As should be apparent from the foregoing, the United States is a party to a.multitude of agreements denominating the status of its military person- nel, its civilian employees, and their respective depend- ents. It is important to note that the status of American citizens may differ even within the same receiving State, depending on the official purpose for their presence. For example, American military personnel in Germany may be subject to either the NATO SOFA or to an Interna- tional Headquarters agreement and the privileges and im- munities would vary accordingly. Further complicating the issue, the treatment accorded American personnel under the same agreement may vary. Under the Ottawa Agreement, certain personnel have diplomatic immunity while others do not. Further, the liaison authorities may also differ. The "designated commanding officer" who is responsible for U.S. forces and personnel according to the NATO SOFA is not the "responsible authority" under the Ottawa Agreement.
The aforementioned examples are inserted at this point to alert the military attorney to the complexity of the prob- lems that may arise under the various agreements. Differences in result may apply not only to the jurisdic- tional status of personnel and their dependents but also to other rights and privileges.
Pam 27-161-1
CHAPTER 11
THE CIVIL LAW SYSTEM
11-1. Introduction. The legal status of members of the United States Armed Forces in foreign countries may to a great extent depend on the law of the country where the member is located. 1 The United States Supreme Court once stated that "[it] is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdic- tion of the place." 2 This proposition is no longer ac- cepted. The doctrine of "extra-territoriality," upon which the exemption of foreign troops from "territorial jurisdic- tion" was based, has been abandoned and is now ob- solete. 3 The broad waiver once thought to be implicit in the grant of permission by a receiving State to station troops in its territory is no longer recognized by modem state practice or by authoritative text writers. 4 Ac-cordingly, it is of practical importance that members of the United States Armed Forces appreciate the legal systems which they are likely to encounter outside the United States. 11-2. The Early European Models. a. In Western Europe, two prominent legal systems developed: the common law of the Anglo-Saxon contries, and the civil law of continental Europe. The effect of these two systems has been worldwide since many countries have used them as sources of their legal systems.
b. Roman origins. "Civil Law" can have several meanings. For example, it is used in contradistinction to criminal law or as a synonym for private law in general. Primarily the notation "civil law" is used to distinguish it from the common law. 5 The common law has its origins in the feudal system of England. The civil law system has a different origin and a different emphasis; the ius civile finds its bas; in legislative codif~catibns aid its brigins in Roman legal practice. Early in Roman history the jus civile applied only to citizens of Rome, while the jus gentium was developed for noncitizens. The Roman legal system contained relatively strict provisions which often resulted in excessive hardships. To resolve this harshness, the of- fice of praetor was established to temper the jus civile. 6
1. see chap. 10, supra.
2.
Coleman v. Tennessee, 97 U.S. 509, 515 (1878). "The sovereign is understood . . . to cede a portion of his territorial jurisdic- ti& when he allows troops of a foreign prince to pass through h5 do-minions." Id.
3.
See, e.g., Lauritzen v. hen, 345 U.S. 571, 584-85 (1952), and Chung Chi Cheung v. The King [1938] A.C. 1960 (H.L. 1938).
4.
For a survey of authorities and a comprehensive bibliography, see 99 CONG. REC. 9062-70 (1953) (statement of Attorney General Brownell).
5. SeeZepos, The Legacy of Civil Low, 34 Lo. L. Rev. 895 (1974);
R. Schlesinger, Comparative Law, 245, 251 (3d ed. 1970); R. David &
J. Brierly. Mqior Legal Systems in the World Today, 18-53 (1968).
6. This introduced a concept similar to "equity" which was to develop centuries later in response to the hardships of the common law.
The recent trend in the common law of combining "law" and "equity" functions in a single court closely resembles the consolidation that occurred in the civil law. 7 Through the centuries the prestige of the praetors increased and their opinions and advice were followed. Attempts to col- lect the work of the praetors culminated when Emperor Justinian caused Roman law to be compiled in Justinian's Code. In subsequent centuries the codified Roman law was alternately in and out of favor in Europe. During the 18th and 19th centuries it found increasing favor with pro- minent European jurists and the great codification move- ments of France and Germany occurred. These legislative codifications are the bases of the civil law system. 8 11-3. Modem Civil Practice. When investigating a foreign custom or a manner of doing something that is different than what one is accustomed to, the temptation is to use the familiar as a standard of excellence and to seek to determine how much deviation exists between the familiar and the practice under investigation. The obser- vations of a French jurist in the 1920's may reduce such a temptation: When a lawyer of the Continent comes for the fust time to America, he
is usually full of admiration for the administration of justice in the United States. He sees "efficiency" and "service" written and worship- ped everywhere. His imagination begins to work, and he thinks im-mediately of American courts like small Ford factories, where rights are recognized, set in motion, sanctioned in less time than is necessary to build a "fliwer." Then he enters into a courtroom. . . .Instead of look- ing at a trial conducted as a business meeting, with all the work prepared by well-trained specialists, what does he see? That nothing has been done before the trial to ascertain the facts; that oral evidence is seriously considered as reliable; nay! that such evidence is gathered not by a criti- cal and impartial inquiry, but by squeezing the witness through the theatrical scheme of cross-examination; that the inquiry is conducted by lawyers who are not interested in the discovery of truth, but, to say the least, in a certain presentation of the facts; that abstract mles, called evi- dence (!!), decide a priori what is relevant or not, what canbe proven or not; that a stenographer takes down all that is said at the trial and makes it eventually one of several volumes.9
To add to this confusion, consider the consternation of the civil lawyer who then realizes that the complicated facts must be unraveled and a decision reached by "ordinary" persons. A number of years ago, the civil law methodology was described thusly:
In the civil system the Code is central; judges and case law have a dis-tinctly inferior position, in comparison with common law jurisdictions. The controlling conceptualism of the civil law is contained within these mitten Code texts, which are authoritative because of their political
7. Dainow, The Civil Law and Common Law:Some Points of Com- parison, 15 AM. J. COMP. L. 419, 423 (1967) [hereinafter referred to as Dainow].
8. Id. at 420, 21.
9. Pugh, Cross-Observations on the Administration of Civil Justice in the United States and France, 19 U. Miami L. Rev. 345, 346 (1965) citing LePaulle, Administration of Justice in the United States, 4 West Pub. Co. Docket 3192 (1928).
Pam 27-161-1
sanction. The Codes have unity and systematic arrangements; their
texts have a logical interdependence and coherence born of careful, con-
scious legislative formulation. 10
When conflicts occur and litigation becomes neesay, the fm qdon is whether the problem is controlled by one or more Code articles. In the , great majority of cases this will be so, and an elaborate apparatus of in- terpretation will be called into play. Regard will be had to the language of the text and the sense it conveys, the influence of other articles, con- siderations of the textual arrangement of the Code as a unit, historical factors, the clarifying effect of the motifs of obscure passages, and allowable areas within which the legislator has indicated that judicial dis- cretion may be used in taking account of special factors. The whole im- port of the process is the ascertainment of the genuine signifkance of the Code text. 11
It is always the Code itself to which the judge fmt turns; in no case does he allow himself to become insulated from the Code article by the doctrinal writing or the jurisprudence (decisions), both of which, however, are additional factors which may be said to possess persuasive influence. In some fields which have developed since the drafting of the Codes, these two factors are necessarily of considerable importance, and in these instances there may be said to be something approaching case law. There is, however, no doctrine of stare decisis, of interpretation or otherwise. 12
In the absence of a controlling Code text, the civilian judge by no means discards his Code. It is realized that properly drafted Codes have what the civilian calls "organic harmony," and contain within themselves a social and legal point of view consistently maintained throughout. Legis- lative activity as expressed in Codes is deemed to be only the starting point for further bold activity on all fronts, and the basis for all the future legal development of the country, rather than as an exceptional phenomenon to be discouraged and stifled as in America. Therefore, the civilian protects and extends his legislative text to a great variety of situations not precisely within its scope by use of "analogy." This method of handling statutory material involves the decision of problems not covered in the Code, but analogous to those precisely covered, in a manner consistent with a point of view revealed in the Code's disposi- tion of the problem specifically covered. The process consists of a deter- mination of the projective value of Code articles. The contest is fought over whether the analogy should be accepted, or whether there is an argument a contrario or a competing analogy. Or the text may be jus singulare, possibly by expressed command of the legislation in which cir-cumstances it may not be projected analogically. 13
[AJsmodem civilians have freely recognized, the process is a creative one, since the judge ultimately has the power to accept or reject the analogies, or to choose between them. Thus, in resorting to analogy, the judge is free of the legislator to a certain extent, yet it must be observed that, in this field of activity as well, the civilian juridical method is a socialized one, and one utilizing legislative, and not judicial conceptual- ism. . . . This means that the civilian system is assured of a point of departure for analogy which is more consistent with the demands of cur- rent society, because the texts of the Code reveal a social attitude as to the harmonization of competing sccial interests, established by a socialized ratchet [i.e., legislative] process and are freer than cases can be, under a system of precedents, from archiac and conceptualism and historical rubbish. . . . 14 If neither the texts of the Code nor their projec- tion by use of analogy yields a solution, the civilian at least has a truly "unprovided-for case." The next step at this point will vary considera- bly. . . . 1s
10. Morrow, Louisiana Blueprint: Civilian Codification and Legal Method for State and Nation, 17 Tul. L. Rev. 351, 548 (1943).
11.
Id. at 549.
12.
Id. at 549-50.
13.
Id. at 552-53.
14.
Id. at 553-54.
1s. Id. at 554.
Thisdoes not mean complete judicial freedom from authority-even where a "standard" is imposed, it is freedom only within limits. But it involves a recognition that there are some situations, and some whole fields of law, which lend themselves to individualized, discretionary ac- tion by judges, in rather administrative capacities. Yet this still involves no formation of judicial conceptualism, for the cases are to be truly in- dividualized; since no subsequent judge will be bound to follow the in- dividualized decision, and thus it shall have little future value. 16
Of course the civil law methodology is furthered by the form of legal education in civil law countries. As might be expected, the legal education of a civil lawyer tends to focus on legislation and c~~cation,
rather than on cases as is the practice in the law schools in common law coun- tries. The methodology of a civil law training has been stated as follows:
In civil law countries, the student starts his study with codes and textbooks. He learns about the Justinian ccdGcations and their influence on his present day legal system. He is taught general principles and how to think in abstractions. It becomes part of his being to appreciate classifica- tion and coordination of subject matter, and to take for granted a com- prehensiveness of the law as systematic and a whole. It is only recently in countries like France and Belgium that the law student has been re- quired to read some decided cases, and he ususally attaches only sec- ondary importance to the judicial decisions. He concentrates on the codes, the treaties, and the notes taken during the formal lectures by his professors. 17
11-4.The Working Civil Model. a. To understand more fully how a criminal case is processed under the civil law, it is necessary to appreciate that the civil law procedure has a different perspective than that of the com- mon law. This has often been explained in terms of an ac- cusatorial system (common law) versus an inquisitorial system (civil law). 18
6.The adversary model. An accusatorial (or adver- sary) procedure starts from the premise that it is being con-ducted between two sides, i.e., it is essentially a contest between the prosecutor and the defendant. As such, the participants generally frame the extent of the dispute by the pleadugs and stipulations. The prosecutor, in partisan fashion, indicates what facts are necessary to "convict" the defendant, and attempts to prove such facts. The de- fendant, conversely, attempts to block those efforts. Under such a process the defendant cannot be forced to give evidence since to do so would destroy the "theoreti- cal equality between the contestants." 19 The role of the fmder of fact (whether judge or jury) is passive and he acts merely to determine who has prevailed in the contest. A judge is present to ensure that the parties abide by the rules applicable to the conflict. Consequently, a great number of technicalities can arise, with the result that an
16. Id. at 555.
17.
Dainow, supra, note 7, at 429.
18.
For a discussion of the historical development of these different
judicial concepts, see Damaska, Evidentiary Barriers to Conviction and Two Modes of CriminalProcedure:A Comparative Study, 121 U.Pa. L. Rev. 506 (1973) [hereinafter referred to as Damaska].
19. Id. at 563.
accusatorial process can become "over-lawyered." 20
c.
The inquisitorial model. On the other side, the civil law proceeds from a quite different perspective. In the civil law the processing of a criminal case is not viewed as a dis-pute but rather as an inquiry to find out if an offense has occurred, who committed it, and whether punishment should be imposed. Since the process is one to find out what has happened, it is inconsistent that the parties (i.e., the government and the accused) may limit the sqpe of inquiry. Determination of the facts is unfettered by rules of evidence. The factfiinder seeks out allsources of reliable information, to include questioning the accused. Under such a system fewer technicalities arise and the role of the lawyer is reduced. 21
d.
Unfortunately, the contrast between the accusatorial (adversary) and the inquisitorial (nonadversary) procedures raise in the mind of a person accustomed to the common law, visions of the unfamiliar (i.e., the civil law system) at its historical worst. The civil law system is an alternative to the common law concept of due process and it should not be assumed that it necessarily must be based on [tlhe horrors of a procedural system where charges are not S~IC,
the accused is not accorded the benefit of doubt, his confession is coerced, his detention before trial is unlimited, he has no right to counsel, and is not advised of his constitutional rights. 22
11-5. The Civil Process. a. Investigation. What occurs when there is reason to believe that an offense has taken place? An investigation, requested by an "accuser" (nor-mally the public prosecutor), is conduted by an impartial official. Some civil law countries (e.g., France and Ger- many) make a distinction between the initial investigation and the special investigation, the former being conducted by the police, and the latter by an investigating judge. In modem civil law systems, some of the inquisitorial features of investigation have been deleted from the process and the accused is aware of all evidence before the trial begins.23
b. The Role of the Prosecutor. Once the investigation has been completed and the dossier compiled, the evi- dence is forwarded to the public prosecutor for a decision whether to prosecute or not. If the decision is made to
20. Id.
21.
Id. at 564.
22.
Id. at 569. These are what Mr. Justice Frankfurter listed as the indicia of an "inquisitorial" procedure in Watts v. Indiana, 338 U.S.49, 54-55 (1949). For a response to Mr. Justice Frankfurter's characteriza- tion, see Kunert, Some Observation on the Origin and Structure of Evi- dence Rules under the Common Law System and the Civil Law System of' "Free Proof' in the German Code of Criminal Procedure, 16 Byffalo L. Rev. 122 (1966) [hereinafter referred to as Kunert].
23.
For example, some evidence is gathered in the presence of the accused; the importance of confessions has decreased, the accused is no longer required to answer questions; and the accused with counsel (if not before the investigation is completed at least at its conclusion) is en- titled to review the entire file (or dossier) that has been compiled. Damaska, supra, note 18, at 558-59.
Pam 27-161-1
proceed to trial, there is neither arraignment nor formal pleadings. The dossier is delivered to the judge who then convenes the trial in open court where the parties have an opportunity to present their arguments.
c. The Judge.
The prevailing contemporary continental system is that of a unified bench in which the professional judge or judges are flanked by lay assessors. Even in France, after the reforms of 1941, the 'jurors' deliberate and vote with the professional judges, so that the system re- mains that of 'jury trial' in name only. Adjudication solely by profes- sional judges, while not unkown . .. is usually employed in the disposi- tion of minor offenses and is deffitely not representative of the modem continental style. In sum, the continental law of evidence is most prof- itably examined against. the background of trial by a mixed tribunal. 24
In theory, the evidence produced by the investigation must be reexamined by the presiding judge who takes an active role in questioning witnesses and raising all inqu- iries relevant to the charge. He may even solicit evidence not previously requested by the parties. 25
d. Exclusionary Rules. Under the civil law system evi- dence is generally not excluded because its credibility might be in doubt. Exclusionary rules which attempt to protect the factfinding process against potentially welia- ble sources (e.g., heresay) are almost unanimously re- jected by civil law countries. Civil law factfiinders, whether lay or professional, give different weight to the evidence according to its credibility. 26 Thus, rules agairist hearsay, inflammatory, or gruesome evidence, and other rules of "auxilary probative policy" 27 are not found in most civil law systems. The defendant may also be freely ques- tioned, although he is not sworn prior to his testimony. 28 Devices do exist, however, which allow ajudge to exclude evidence from the factfiiding process "even though it ap- pears logically relevant and there is no specific exclusion- ary rule in point." 29 For example, a judge may refuse to hear evidence which he considers to be repetitious, and he may require the original source of the evidence to be brought before the court rather than re!ying on the sec- ondary source contained in the dossier. 30 Further, the judge may refuse to allow evidence of uncharged crimes or prior convictions of the defendant to be heard unless the prior criminal conduct establishes a modus operan-
24.
Id. at 510, n. 4.
25.
Id. at 559.
26.
Id. at 514.
27.
J. Wigmore, Evidence, 5 1171 (Chadboume ed. 1972).
28.
This has given rise to the observation that the defendant therefore has a "right to lie" since few, ifany, legal consequences occur if a defendant does so. See Damaska, supra, note 18, at 528, n. 4.
29.
Id. at 516.
3Q. Damaska refers to this as the "principle of immediacy" which may be viewed as a type of best evidence rule. Id. at 517. However, a precise def~tion of the concept is not possible as the principle varies from civil law system to civil law system. See H. Jescheck, Germany, in The Accused: A Comparative Study, 246, 247 (J. Coutts ed. 1966) for a discussion of the concept of the "principle of immediacy" and the prob- lems that it raises.
di. 31 On the whole, it is fair to say that a prosecutor in a civil law system has less diff~culty than his counterpart in common law countries in getting evidence before a court. One of the most important differences in this area is the ability of civil law prosecutors to get into evidence state- ments of witnesses made before trial, that is, declarations of witnesses made during the investigation, either to police or to the investigating judge. Such evidence may be used in practically all civil law jurisdictions for substantive purposes. This procedure allows a great deal of admissible evidence to be determined or "frozen" prior to trial. 32
e. Confessions.In addition to exclusion of evidence on the basis that it may interfere with determining the truth, relevant material is often excluded for other reasons. 33 Although provisions exist in continental systems for the interrogation of the defendant, such provisions generally do not address the question of what occurs if the authorized procedures are not followed. 34 The doctrine of the "fi-uit of the poisonous tree" does not generally exist in civil law countries. Therefore, as one might expect, fewer motions are made in civil law proceedings to exclude "il- legally" obtained evidence and acquittals based on exclu- sion of evidence are comparatively rare. 35
$ Witnesses. The theory behind the evidence pre- sented at a criminal proceeding differs greatly in the com- mon law and the civil law. While each side in a common law trial presents its evidence, in the civil law the evidence belongs to the court. Thus, in theory at least, the case does not "belong" to the prosecutor or to the defendant. The bulk of the questioning of witnesses is done by the presid- ing judge.
Continental systems distinguish, however, among defendants, expert witnesses and simple witnesses for the purposes of formulating procedural and evidentiary rules concerning, for example, the manner and formalities of interrogation, duty to take an oath, and so forth. Another important difference . . . concerns the continental rule of per- mitting all persons examined to give a narrative account fust, before being subjected to questioning. Thisfact, coupled with the more general preference for using 'spontaneous' rather than 'coached' witnesses, is of relevance. . . . 36
g. ~e@lncrirnination.As indicated, the defendant in a
31.
See Damaska, supra, note 18, at 519. Uncharged des and prior convictions often will be contained in the dossier which the presid- ing judge reviews before trial. Thus,it is not unreasonable to assume that in a close situation this expurte knowledge may affect the outcome. Id.
32.
This procedure, depending on the jurisdiction, can influence the conduct of witnesses, pretrial.discovery, and other aspects of a civil law trial.
33.
For example, testimonial privileges (especially those involving the defendant himself) and matters involving search and seizure may be included. See irlfra, notes.
34. A small number of civil law systems have adopted exclusionary rules under such circumstances. See e.g., German Code of Criminal Procedure, 5 136a; French Code of Civil Procedure, arts.114, 11 8, 170. See also, Pieck, The Accused's Privi!ege Against Ser-Incrimination, 11 Am. J. Comp. L. 585 (1962).
35. Damaska, supra, note 18, at 521-24.
36. Id. at 525, n. 38.
civil law criminal proceeding is also a source of evidence,
but it is incorrect to say that no privilege against self-in-
crimination exists. 37 Although in theory a defendant may
not decline to be interrogated, he may refuse to answer all
or some of the questions posed by the judge. 38 Even
though an adverse inference is not to be drawn from the
defendant's silence, most civil law defendants choose to answer the questions rather than ~isk an unfavorable h-pression, especially in situations where a refusal to answkr a particular question might raise an immediate adverse in-ference. Although the defendant is not sworn and no sanction is taken if the defendant is caught in a "con- tradiction," civil law systems believe that important infor- mation, such as demeanor and inconsistencies, can nevertheless be obtained from a defendant who testifies. In continental syterns, it is common for the defendant to be the first person interrogated. This is possible because there is no requirement that the prosecutor establish a prima facie case before the defense is called upon. There is little doubt that having the defendant appear before he has heard the other evidence is advantageous to the prosecu- tor. The defendant's story is thus placed on stage to be tested against the remainder of the evidence.
h. Corroboration.No rules exist in most civil law coun- tries requiring facts to be proved by more than one piece of evidence; corroboration is not so crucial as in common law jurisdictions. Such a requirement would be thought of as negative in nature, and has been avoided in varying degrees for several hundred years. 39 11-6.Pre-Trial Procedures: TheDossier.Probably one of the greatest differences between the civil law and the common law processes is pre-trial disclosure of evidence. As already indicated, in continental countries the defend- ant and his counsel have access to the entire investigative file (dossier) which contains, among other items, surn- rnaries of testimony, a record of all evidence obtained, the charge sheet and related documents. From the dossierthe defendant can generally discover the prosecutor's theory of the case, as well as what evidence will be submitted to the court. On the other side, the pre-trial investigation will disclose much of the defendant's case, as it is unusual for the defendant to withhold information that ultimately will be introduced at trial. Additionally, the defendant's pri- vate papers can be forcibly produced and placed in the dossier. Therefore, the dossier will contain all the facts, good and bad, that canbe ascertained before trial concern-
37. See Clapp, Privileges Against SeFIncrimination, 10 Rutgers L. Rev. 541, 548 (1956).
38. Darnaska, supra, note 18, at 427. This right of silence is of a relatively recent vintage on the Continent. The medieval inquisitorial procedure not only required the defendant to testify, but also permitted enforcement of this duty through tor- ture. After the use of torture was outlawed toward the end of the 18th century, most continental procedural systems still provided that the defendant had the 'duty to answer' and even threatened punishment . . . for failure to obey it. Id. at 427, n. 1.
39. Id. at 530-31.
Pam 27-161-1
ing the defendant's involvement in the alleged offense. When the dossier is compiled, the testimony and evidence are "frozen" for use at trial. Such ''full disclosure" before trial probably favors the prosecutor because once the material is included in the dossier, there are few, if any, obstacles in presenting the evidence to the court. 40
11-7. The Decisionmaking Process. a. The decision process in a civil law proceeding is philosophically different than that found in the common law. There is, of course, a factfinding function, but a judge must still apply the evi- dence presented against the "law." Generally speaking the "law," in a common law sense includes constitutional, provisions, statutes, and decided cases. Treatises and other secondary material also bear on the decisionmaking process. In civil law systems decisionmaking tends to go from the general to the smc, in a common law jurisdic- tion a judge often seeks initially for general guidance to govern the specific situation under consideration. Addi- tionally, the points of reference are different: a continental judge looks to legislation (often broadly written to allow great interpretive leeway) while the common law counter- part looks to individualizing cases or statutes which, ifap- plicable, provide the judge little discretionary power as to whether they should be applied. 41
b. The influence of legislation. Not only is the judicial process philosophically different, but legislation in civil law countries also serves a different function. Of course both systems seek to balance competing values in various social situations. But beyond that, a -cation in a civil law country attempts to indicate a philosophy of government "so as to furnish a legislative basis for juristic and judicial development along modem lines." 42 In some respects the codes might be considered as a counterpart to a con- stitution in a common law jurisdiction. Courts, if the ques- tion at hand is not specifically covered by one of the arti- cles of the relevant code, will reach a solution by analogy from the legislative material at hand.
A code is not a lit of special rules for particular situations; it is, rather, a body of general principles carefully arranged and closely integrated. A code achieves the highest level of generalization based upon a scientific structure of classification. A code purports to be comprehensive and to encompass the entire subject matter, not in the details but in the princi- ples, and to provide answers for questions which may arise. The nature of such a code naturally calls for a liberal interpretation in order that it may serve as the basis of decision for new situations. . . . There is a great respect and high regard for legislation as the basic source of the law. 43
In the United States the function of legislation is generally
40. Id. at 534-36. See also, Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1180-92 (1960).
41. Dainow, supra, note 7, at 431-32.
42. Pound, Sources and Forms of Law, 22 Notre Dame Law 1,71 (1 946).
43. Dainow, supra, note 7, at 424.
not thought to be either philosophical or a source of analogies. 44 11-8. Codification. a. General. Continental penal codes are often structured into a General Part and a Special Part. 45 The General Part contains provisions such as at- tempts, principals and participation, self-defense, suspen- sion of sentence, and statute of limitations, which are ap- plied uniformly to all offenses, while the Special Part deals with specific offenses.
b. In the civil law, if the judge is unable to find a provi- sion in legislative sources, he handles the "unprovided- for-case" in a manner different than a jurist in the com- mon law. When the written law is silent or insufficient on an essential issue,
. . .[the] judge cannot refuse to adjudicate under penalty of being guilty of a denial of justice. The various civil law countries have adopted different formulae to guide and instruct the judges in this respect. Arti- cle 1 of the SwissCivil Code authorized the judge to render the decision which he would make if he were [a]legislator; in France and in Belgium, he is given only the instruction to adjudicate. . . . In Germany, the tradi- tion is that the judge must fd gaps in the written law; one way of doing this is to make use of customary law as a source of law, or else to resort to general principles. Whatever the explanation given . . . or the tech- nique used . . ., the civil law judges are not always limited to a mere ap- plication of the law; in effect they are obliged to make law. 46
c. Stare Decisis. The supremacy of legislation in civil law systems does not mean, however, that there is no place for prior case decisions. While judicial decision are used from time to time in the common law to "fill the gaps" or to "make law" and can themselves become a source of law, case decisions in the civil law are generally used only as sources of legislative interpretation. No case, even though decided by a reasoned decision based on an interpretation of legislation, is bin- in future cases, nor is it precedent. Although a similar result may be achieved in a future case, it is not based on any concept of stare decisis, but rather is reached because a similar reasoning process and legislative interpretation has occurred. In some countries like France and Belgium, the practice has been con-
solidated that when a certain point has been consistently decided in the same way by an appreciable number of cases, it becomes jurisprudence constonre and is considered biding in future cases. Thi serves to stabi- lize the interpreiation of the law. . . .There is also an increasing tendency among attorneys to cite cases as well as codes and other legislative texts. 47
Thus, while a common law judge may be constrained by his awareness of the potential effect of today's decision on the future, a civil law judge does not have to consider that a decision may tomorrow be an "echo from the past." 48
44. ~ote,-~he
Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 Yale L. J. 258, 279-80 (1972). For a discussion of the role of legislation in the common law system, see Dainow, supra, note 7, at 425-26.
45. See Angel, The Collection of European Penal Codes and the Snrdy of Comparative Law, 106 U. Pa. L. Rev. 329 (1958).
46. Dainow, supra, note 7, at 433.
47. Id. at 426-27.
48. Rudden, Courts and Codes in England, France, and Soviet Russia, 48 Tul. L. Rev. 1010, 1017 (1974).
d. Legislative history. Legal research in the civil law is of necessity affected by the favored position of legislation. The legislative history, including the drafters comments, is quite important as are the "doctrinal" materials, i.e., treatises and commentaries of legal scholars. In the civil law, [Dloctrine is an inherent part of the system and is indispensible to a
systematic and analytid understanding of it. The doctrine is not a recognized source of law but it has exercised a great influence on the development of the law. It molds the minds of students, it gives direc-tion to the work of the practitioners and to the deliberations of the judges, and it guides the legislators toward consistency and systematiza- tion. 49
Thus, analysis of a legal problem in a civil law jurisdiction would begin with the codes and other legislation, progress through the doctrine, and fmally, if required, peruse the judicial decisions for a possible interpretation. In common law countries, most analyses consist of syntheses of judicial decisions, rather than what canbe called doctrine, i.e., "systematic expositions and . . . discussions about
49. Dainow, supra, note 7, at 428.
broad legal priniciples . . . [which] formulate general theo- ries about the basic codes and legislation, in relation to the evolution of the legal system as a whole." 50
11-9.Conclusion. It has been said that among . . . all the legal systems of the world, we thus distinguish between the two great families of the common law and the civil law, and within the latter the two groups of the French and German patterns. An American comparatist will thus have to acquaint himself with the legal system of France or Germany or both. He will then hold the key to any other legal system to which he may feel attracted. 51
The French and the German civil law systems, as well Bs others, are discussed in more detail in appendix A, infra. The foregoing has been a general survey of some of the
major differences between the civil law and the common law systems. The works cited explore these differences in detail should the practicing lawyer require a more thorough knowledge of a particular system.
50. Id. at 430.
51. Rheinstein, Comparative Law-Its Functions, Methods, and Usages, 22 Ark. L. Rev.415, 418 (1968).
Pam 27-161-1
APPENDIX
Section I. CRIMINAL LAW PROCEDURESIN FRANCE
A-1. General. In analyzing the criminal code of a civil ju- risdiction, one must distinguish between the penal code and the code of criminal procedure. The former deter- mines criminality while the latter indicates in what manner alleged criminal conduct will be processed. Overlap often occurs between the two. The French Penal Code has re- mained essentially unchanged since its codification in 18 10. However, in 1958, a new French Code of Criminal Procedure was enacted which codified prior decisional law. The 1958 Code "retains the essentially secret and in- quisitorial nature of the proceedings before the juge d'instruction, but places the accused, the victim, and the prosecutor upon a more equal footing in these proceed-
ings." 1
A-2. The Prosecutor in France. a. In addition to the 1958 Code of Criminal Procedure, France has passed other laws which have decriminalized certain conduct and liberalized procedures. While French civil proceedings are becoming more "adversarial" in nature, the French criminal process still maintains its "inquisitorial" nature. The prosecutor in France has discretion whether to pursue a criminal case or not.
6. As a check against abuse of discretion by the prosecutor (procureur), the French Code of Criminal Procedure also permits the victim of a crime (partie civile) to institute proceedings. 2 This may occur in several in-stances. The victim may either join in the proceeding initi- ated by the prosecutor or, if no prosecution is brought by the government, the partie civile may institute what amounts to a private prosecution. 3 The aim of this inter- vention is the same in either case, to recover damages. Thus in one proceeding, civil and criminal liability may be, and fre-
quently are, determined. Although an iqjured party may always assert his claim for civil relief in a separate civil prcceedmg, intervention in a pen-criminal proceeding may be quite advantageous. By this means, he can take full advantage of the investigatory facilities and prosecuting personnel of the state, in the inquisitorial aspects of the proceedings, and the speed, economy, and more liberal rules of evidence charac- teristic of the criminal action. In addition, he reaps the psychological benefit resulting from his adversary's position as a criminally accused. 4
Although the intervention by the victim in an ongoing
1. Pugh, Administration of Criminal Justice in France: An Introduc-
tory Analysis, 23, La. L. Rev. 1, 14 (1962) [hereinafter referred to as Pughl.
2. French Code of Criminal Procedure, art. 1 [hereinafter referred to Penal Code]. Anyone claiming to be injured by a [crime] may con- stitute himself a partie civile by lodging a complaint with a competent [court]. Id. at Art. 85. See also Arts. 2, 31.
3. Penal Code, Art. 85. For a general discussion of the action civile, see Sullivan, A Comparative Survey of Problems in Criminal Procedure, 6 St. Louis (I. L. J. 380, 340 (1961); Vouin, The Protection of the Ac- cused in French Criminal Procedure, 5 Int7 & Comp. L. Q. 1, 7-11 (1956).
4. Pugh,supra note 1, at 12. Most personal injury suits involving car accidents are handled by such a process. Id.
criminal prosecution has its advantages, instigation by the victim of a private prosecution (action civile) does present some hazards, i.e., he may become liable to the accused for damages if the prosecution is not successful. This is, of course, a deterrent to the attempted prosecution of un- founded or frivolous criminal proceedings by private in-dividuals. A-3. Charging. a. The Dossier. When a charge is brought by the prosecutor, or by the victim, or the victim joins in a proceeding brought by the prosecutor, 5 a dossier is complied. Argument is based upon the dossier. While the defendant and even the clerk of the court also prepare dossiers, the most important is that prepared by the in-vestigating magistrate 6 (juge d'instmction) . Because of
.the importance of this dossier, the juge d'instmction is re-
quired to be neutral and is "obligated to develop for the
dossier not merely facts favorable to the prosecution, but
also those favorable to the defendant." 7 Therefore, the
dossier contains among other things,
the reports prepared by both the police and the juge d'instmction detail-
ing the nature of the crime, the date and place of the hearing, and a summary of the statements of each of the witnesses. At each phase of the investigation, considerable evidence relative to the character and personality of persons involved in the incident is received and made part of the dossier. Each time a witness is heard, such things ashis age, oc-cupation, address, employer, date and place of birth, parents, and num- ber of children are summarized. Succinctly, presumably so that his declarations may be evaluated accordingly and further information con- cerning the witness may be obtained without undue difficulty. Extensive annotated photographs and maps are usually made and included. 8
6. Witnesses and Suspects. Under French law, wit- nesses and suspects may be detained in custody for 24 hours and, under some circumstances, for 48 hours in order to facilitate questioning. 9 When the police conduct the questioning, a witness normally is not sworn but state- ments given to the examining magistrate generally are given under oath. Until a suspect "officially" becomes the defendant in the proceeding (the inculp6), he may be questioned numerous times. However, once he becomes the inclupg, he must be informed of that status in the in- vestigation, 10 the nature of the charges, that he has a right to remain silent, 11 and that he has a right to counsel. 12
5.
Penal Code, art. 373.
6.
Pugh, Cross Observations on the Administration of Civil Justice in the United States and France, 19 U. Miami L. Rev. 345, 356-57 (1 965).
7. Pugh, supra note 1, at 23.
8.
Id. at 15.
9.
See Code De Procedure Penale, Arts. 77 et seq. bereinafter cited
as Proc. Code]. lo. Id. at Art. 115.
11. Id. at Art. 1 14. "The fact that such notice has been given must be recorded in the official records. This stage in the proceeding is called the fmt appearance." Pugh, supra note 1, at 16, n. 1.
'2. Id.
This information is not necessarily given to the accused at the same time. More than likely, the sequence would be as follows. A suspect is questioned by the police and the examining magistrate. Once it is officially determined to characterize the person as "the defendant," he is so in- formed by the examining magistrate. He is further told that he has a right to remain silent and the nature of the charges against him. At this point, if the defendant wishes to make a statement, it may be taken. After the statement is given, a defendant is then informed of his right to counsel.
c. Corlfessions.It has been noted that in the vast ma- jority of cases in France, defendants seem to "exhibit a quite spontaneous desire to confess all." 13 When one considers the great number of confessions in French proceedings, this statement would appear to be justified. 14 Article 428 of the French Code of Criminal Procedure provides that a confession, "like all elements of proof, shall be left to the free appraisal of the judges." As many confessions are obtained by the police, French law includes a mechanism to protect against coerced confes- sions. Fist, the law provides that a person beii detained has a right to be examined after 24 hours of detention to determine his physical condition. The prosecutor may call for the examination prior to that time. 15 Second, it is a crime under French law for a police officer to use "un-justifiable force against a citizen" and discipline for mis-conduct may be imposed by the courts. 16 A-4. Role of Counsel. After being informed of his right to counsel, a defendant is entitled to be represented at in- terrogations or confrontations. 17 To assist counsel in rep- resenting the defendant, the law provides that the attorney shall be entitled to review the dossier of the juge d'instmctionat least 24 hours before any proceeding. 18 At such hearings, however, neither counsel for the state nor the defendant has the right to present any arguments, ex- cept when the court permits questions to be asked. 19 Under French investigatory procedure the defendant may be required to reenact the crime. The philosophy behind this requirement is that even the most accomplished liar will have dficulty remaining consistent if forced to relive the event in detail. Photographs of the enactment often are taken and then placed in the dossier. 20 A-5. Burden of Wf. Although there appears to be no expressly stated standard of "presumption of innocence" with respect to a defendant, it has been noted that "the
13. Anton, L'Instrction Criminelle, 9 Am. J. Comp. L. 441, 448 (1960) (hereinafter referred to as Anton].
14. See generally hgh,supra note 1,at 15-17;Proc. Code Art. 4. 1s. Id. at 19;Proc. Code, Arts. 64 et seq.
16. See French Penal Code, art. 186,and Roc. Code, Arts. 224 et seq.
17. Proc. Code Art. 118.Such a right may,of course, be waived by the defendant.
'8. Id.
19. Id. at Art. 120.
20. Anton, supra note 13,at 452.
standard actually employed is much more defense-oriented than that used for grand jury indictment. .. . [and] if the juge d'instmction is not reasonably convinced of guilt . . .the Defendant does not go to trial. Generally, the burden of proof is clearly on the prosecution." 21 A-6. Search and Seizure. When discussing the question of search and seizure under French law, one must con- sider that done by the police force before the start of the investigation, on the one hand, and that ordered by the investigating magistrate on the other. When a crime is dis- covered in progress, a search and seizure may occur with-out authority from a court. 22 However, in other cases, French police may not search a private home without judicial authorization. 23 Once the case has reached the in- vestigatory stage, the investigating magistrate has the authority, within certain statutory limits, to conduct or have conducted compulsory searches and seizures. 24 A-7. Pretrial Confinement. Although pretrial confine- ment is considered to be an "exceptional measure," 25 it appears that at least in serious cases it is the rule, rather than the exception, to place the defendant in preventive detention. 26 The French law allows or permits pretrial de- tention for a period not to exceed four months, but the examining magistrate has authority to extend the confine- ment for additional four month periods by an order which states the reason for the continued detention. 27 Even though a defendant may spend considerable time in pretrial confinement, such detention is, as a rule, deducted from any sentence imposed at the trial. 28
A-8. Bail. Bail exists under French procedure upon giv- ing security (caution) to the court. 29 However, little use of bail is made. Ifpreventive detention is not deemed ap- propriate, the defendant is not required to use the caution system since he simply is not detained in the fust place. 30 A-9.-The Judicial Process a. General. Even with the extensive investigation by the magistrate, the judicial system in France moves with reasonable speed. Once the investigation is completed and the investigating magistrate
21. hgh, supra note 1,at 23-24.
22. Proc. Code, Arts 56 et seq. Insome instances, this is limited to cases involving dklits which are punishable by imprisonment. hgh supra note 1,at 18,n. 119.
23. Proc. Code, Arts. 23, 76.
24. Id. at Arts. 94et seq., 151 et seq. For a discussion of search and seizure in general as the issue arises in French crimiaal procedure, see
G. Stedani & G. Levasseur, Procedure Penale (2d ed., Dalloz 1962).
25. Proc. Code Art. 137.
26. Id. at Arts. 138, 714 et seq. Article 138 limits detention to 5 days for fust offenders who are charged with offenses for which punish- ment is less than 2-yearsimprisonment. See also Anton, supra note 13.
27.
Proc. Code Art. 139.
28.
Penal Code Art. 24.
29.
PTOC. Code Arts. 145 et seq.
30. Anton, supra note 13,at 454.For a discussion of bail, prob-tion, and parole in various European countries, see Glos, a study in the Treatment of Crime and Law Enforcement in the United States as Corn-pared to the European countries, 3 St. Marip L. J. 194-200 (1971) [hereinafter referred to as Glos].
Pam 27-161-1
has recommended trial, the dossier is forwarded to the ap-
propriate court. The following summarizes the next step
in the process:
Generally, there is no guilty plea in French criminal proceedings. .. .[It]
is for the judge and jury to determine guilt, not the defendant. .. .At the trial, after the charge is read, the defendant is usually the fmt party examined by the presiding judge. As is the custom for witnesses, he 'stands. In serious cases, with painstaking care, the presiding judge, who has studied the dossier, interrogates the defendant, asking him to atXm or deny the truth of the statements contained therein, both his own and those of others. The judge attempts to bring out the pertinent circum- stances, both favorable and unfavorable. Questions by counsel for the defendant and civil party may be posed through the president of the court. After the defendant has testified, other persons are heard. French procedure makes a distinction between witnesses and those who simply give information. Persons affected with an interest, such as the defen- dant, the civil party, and those closely related to them by blood or affinity, are not permitted to testify under oath–although they may give statements and be questioned as though they were witnesses. As a result, these persons are not subject to prosecution for perjury. What they say is viewed with scepticism, in light of their interest. Persons under the age of 16, and certain individuals with past criminal records, are also prohibitied from giving testimony under oath. When permitted to take an oath as a witness, one swears to "tell all the truth and nothing but the truth." Persons other than the defendant usually give their testimony in narrative form, and are permitted to say whatever they feel is pertinent, uninterrupted by the objections of counsel. . .. After all testimony has been received, counsel for the state, the civil party (if there be one), and the incube' [the defendant] deliver oral presenta- tions, which are frequently eloquent and moving. The summation (or rbquisitorie) by the procureur [the prosecutor] … is probably more restrained and judicious than its American counterpart. . . . Frequently, as a result of confessions confumed beyond serious question by the fruits of the exhaustive pretrial research reflected in the dossier, the defense counsel does not contest his client's guilt, but instead elaborates on the psychological, sociological, and economic factors which prompted the commission of the infraction. …
The judges are spedkally prohibited from basing their decision on evidence other than that available at the trial. They may consider all matters within the dossier properly acquired, for it is felt that as trained professional magistrates, they can weigh the testimony and give it the value to which it is entitled. In aniving at their decision, the test to be employed is "inner conviction" (intime conviction) [of the guilt of the defendant]. 31
Although it might seem that such a proceeding would be quite lengthy, this generally is not the case.The thorough- ness of the dossier preparation and the fact that the judge and counsel have studied it in advance of the trial combine to make a French trial move through the various stages without great delay. In some particular circumstances, a French trial may proceed without the presence of the de- fendant. 32
b. Types of Procedures. Under French law, offenses are divided according to their seriousness, and each type of offew has its own procedure and court. Contraventions, or petty offenses, are tried by a single judge without jury. 33 Delia, or intermediate crimind offenses, are tried by three judges without a jury. 34 Crimes, or serious
31. Pugh, supra note 1, at 26, 27.
32.
Proc. Code arts. 410 et seq., 487, 544, 627 et seq.
33.
Proc. Code Arts. 521 et seq.
34.
Id. at Arts. 381 et seq.
offenses are tried by three judges and nine jurors. 35 In a case involving a crime, the inculpimust be adjudged guilty by 8 of 12 votes, i.e., a majority of the lay jurors must vote to convict. 36 A-10. Appeals. Under French procedures, in those cases for which appeal or review is provided, 37 either the state or the defendant may initiate the appeal or review. Except for the most serious offenses, questions of law and fact are reconsidered by the appeals court (Cour d'Appel). After reviewing the record as a whole (i.e., the dossier), as well as any additional evidence thought necessary, the Cour d'Appel may substitute its judgment for that of the trial court. Obviously, this is a much broader review than is possible under the law as it exists in the United States. The appellate court apparently is permitted to substitute its judgment because the great part of the evidence before the trial court is written (i.e., the dossier) and hence the de- meanor of witnesses assumes less significance than it does in American courts. If the appellate court substitutes its judgment, the decision is final, i.e., it is not remanded to the trial court for it to enter judgment. 38 A-11. Sources of the Law. a. Under French law, as is the case with most civil law systems, legislation is the only source of civil law. If that is so, what position do judicial decisions play in the French legal system? It is quite clear the judicial decisions, or bbjurisprudence" as they are fre- quently designated in civil law countries, are not a source of law, but are merely an authority in the civil law. This is consistent with the concept of the separation of govern- mental powers. Even an uninterrupted line of caseswhich has decided a particular point uniformly does not establish that jurisprudence as law. 39 Precedent is only one of several factors that may be taken into consideration before a decision is reached, "an influence, of varying intensity, but never legally imposed." 40 The influence that a partic- ular jurisprudence may have upon the practicing bar and judge varies, as might be expected, according to the prestige of the rendering court.
b. Precedent. Notwithstanding the foregoing, jurispru- dence still eqjoys a privileged position because "the thesis in support of which it may be cited in litigation has the
35.
Id. d Arts. 214, 231, et seq., 240 er seq.
36.
See Patey, Recent Rdorms in French Criminal Law and Procedure, 9 Int'l and Cow. L. Q. 383 (1960).
37. E.g., Crimes, which are tried by the Cour d'Assises or by recommendation of the Chambre d'Accusation which is similar to a grand jury in the United States.
38. Proe. Code Arts. 496 et seq., 512 et seq., 546 et seq. and the penal CodeArts. 443 et seq.
39.
Article 5 of the Civil Code states that in deciding cases submit- ted to them, judges areforbidden to lay dorm general rules of conduct. Further, the French Penal Code imposes forfeiture of office as a sanc- tion against judges and judicial officers who "interfere in the exercise of legislative power." Penal Code Art. 127(1). See also Carbonnier, Authorities in Civil Low: France in The Role 4f Judicial Decisions and Doctrine in Civil Law and in Mked Jurisdictions 95-96 (J. Dainow ed. 1974) [hereinafter referred to asCarbonnier].
40.
Carbonnier, supra note 39, at 97.
greatest chance of becoming the law in fact." 41
Therefore, when speaking of the "law" of France (driot)
one should include not ony the enacted law (101) but also
the judicial decisions (jurisprudence). Since jurisprudence
does occupy a position of beii a "privileged" authority
in the civil law, practitioners and judges alike must be able
to locate relevant judicial decisions. The decisions of lower
French courts (e.g., juges d'instancesktty court judges)
are rarely published. Only selected decisions of the inter-
mediate level courts (tribunaux de grande instance) and
the Courts of Appeal are available. However, all of the
decisions of the highest court in France (the Cour de
Cassation) are published. The oficial reports of the Cour
de Cassation are published in two parts, one for the civil
chambers, the other for the criminal chambers under the
title, Bulletin des arr8ts de la Cour de Cassation. A central
index Cfichier central) is available and is based upon a
statutory system of subject headings (Service de documen-
tation et dhdes de la Cour de Cassation). Supplement-
ing the oficial reports, periodic private reports are
published. These generally contain, in addition to the
selected cases, head notes and annotations on the deci-
sions reported.
c. Doctrine. In addition to jurisprudence, doctrine,
Section 11. CRIMINAL LAW PROCEDURES IN
A-12. General. The law of Germany dealing with what
can be called "criminal" conduct is divided into a number
of separate enactments. 44
a.
Penal Code. The German Penal Code (hereinafter referred to as StGB), like other continental penal codes, is divided into two parts: the General Part and the Special Part. The former contains provisions that are applicable to all of the offenses contained in the latter. For example, sections dealing with attempts, principals, self-defense, and statutes of limitation are found in the General Part. Provisions dealing with treason, forgery, murder, manslaughter, and so forth, are found in the Special Part.
b.
Regulatory Offenses. In 1968 Germany removed from the German Penal Code certain regulatory offenses, i.e., Ordnungswidrigkeiten (OWiG). The Regulatory Offenses Act of 1968 sought to decriminalize a number of penal offenses for minor infractions unworthy of punishment, partly by removing them
from the ambit of the penal law and sanctioning them merely as so called regulatory offenses. . . .This has been put into operation mainly in the area of traffic violations, provided they did not cause or threaten life, lib, or valuable property. 45
Under the OWiG, the primary punishment is a fine. 46 In addition to reducing the possible sanctions (in comparison with the StGB), procedures for regulatory offenses have been simplified, 47 the statutes of limitation are shorter, 48 and the procedure, to include imposition of fines, is an ad- ministrative process rather than a judicial one involving a judge. 49 AS one might expect, appeals are possible but only under restricted conditions. 50 Although it would ap-
which includes "legal scholarship, the opinions of the authors of legal literature about the law such as they, as theoreticians, understand it . . . [i.e.,] the body of legal writing or literature," 42 also plays a role. During the nineteenth century, French commentators concentrated their scholarly efforts on the Code Civil by researching the legislative history of the various provisions. Modem doctrine tends to deal more with the interpretation of jurisprudence and with commenting on the civil law as a whole rather than on the specific section of the Code Civil. The commentators do not view their function as mere technicians but rather attempt to analyze jurisprudence and legislation from a critical point of view. As with jurisprudence, doctrine is not a source of civil law, but it definitely is an authority in the civil law. This means that
[a]judge is never bound either by an isolated doctrinal view . . . or by a unanimously adopted view of doctrinal writers. . . . Moreover, even ifa judge does adjudicate in a manner indicated by the doctrine, its mere citation is insufficient; he must adopt, and as his own, all the reasoning upon which it is based. . . . It is only to be expected, however, that greater weight will be given in the courts to jurisprudence than to
doctrine. . . . Doctrine, on the other hand, may be of greatest influence in those areas precisely where there is no established jurisprudence..It has, however, sometimes, happened that persistent doctrinal criticism wiU prompt the abandonment of established jurisprudential positions. 43
THE FEDERAL REPUBLIC OF GERMANY
pear that the regulatory offenses have in some respect been removed from the StGB, there is an indication that the principles embodies in the "General Part" of the StGB still apply. 51
c. Comparison. The offenses covered by the German Penal Code are, as a rule, more broadly defined than one would find in a simiiar enactment in the United States. As a result, German judges often engage in a great deal of statutory construction,
for example, when the defmition of an offense appears to be so wide as
41. Id.
42, Id. at 104, n. 119.
43. Id. at 106-07.
44. Strqfgesetzbuch, or StGB, is the penal code; Jugendgerichtgesetz or JGG, is the law for juvenile courts; and Strqfjfprozessordnung,or StPO, is the law of criminal procedure. There are, likewise, other laws which deal with regulatory and administrative offenses.
45. Eser, The Politics of Criminal Law Reform: Germany, 21 Am
J. Comp. L. 245, 251 (1975) [hereinafter referred to as Eser].
46. The fme usually ranges from DM5 to DM1000. The fme is called a Geldbusse and the administrative order imposing the fme a BUSSGELDBESCHEID. Id.
47. 0WiG Q 47 (1).
48. Id. at Q 27.
49. Id. at QQ 35(2), 35(35).
50.
Id. at QQ 79, 80. See also Eser, supra note 45, at 250, 51; Robinson, Arrest, Prosecution and Police Power in the Federal Republic of Germany, 4 Duquesne U.L. Rev. 225, 276-77 (1965-66) [hereinafter referred to as Robinson].
51.
D. LEE & T. ROBERTSON, "Moral Order" and the Criminal Law: Reform wforts for the United States and West Germany 181 (1973) [hereinafter referred to as Lee & Robertson].
Pam 27-161-1
to include conduct not regarded as criminal. Strict construction of Penal statutes was never accepted in Germany. . ..The doctrine of extensive judicial construction is also used to broaden the definition of an offense if the interests of justice so require. 52
In Germany, several levels of offenses are defmed in the StGB. The most serious offenses, similar to what might be termed felonies in the U.S., are called Verbrechenand are defined as "illegal acts punishable as a minimum by a penalty of imprisonment for one year or more." 53 Other offenses are called Vergehen (misdemeanors) and are defrned as "illegal acts which are punishable as a minimum by a lesser penalty of imprisonment [i.e., less than one year] or by a fme." 54 The concept of an illegal act under German law has been succinctly stated: According to the established method of analysis of the criminal act
(Handlungslehre),an offense under the Criminal Code [StGB] has three necessary constituent characteristics: the combination of elements con- stituting a particular crime according to a smc title of the criminal code (Tatbestand),illegality (Rechtswidrigkeit),and guilt (Schuld).This analysis is not defined in the Code (StGB), but has become established in a body of German criminal law concepts. The "General Part" of the Code defmes the lits of the respective parts of this analysis.
The Tatbestandis what would correspond in Anglo-American law to the offense described under a particular Title of the Code. Given such an offense (Tatbestand),illegality (Rechtswidrigkeit)may be assumed if not excluded by reason of a justification (Rechdertigungsgmnd)such as: self-defense, consent, etc. Guilt (Schuld), in this system, means per- sonal responsibility. Thus guilt mot be established for an otherwise il- legal act or the omission of a legally required act, where personal respon- sibility is precluded by: lack of intent, error, mental incapacity, or where the fulfillment of a required act would mean the assumption of an action above and beyond that which may be reasonably expected. 55
A-13. The Prosecutor. a. Generally. In Germany the Prosecutor has no staff to investigate and must rely upon the Police to collect the information required for prosecu- tion. For this reason, prosecutors in Germany have been described as being "a body without a head. They don't even have feet. They have to borrow the feet of the police." 56 Unlike their counterparts in the United States, German prosecutors are appointed and are organized as civil servants on the state level (Land) under the state Mitries of Justice. Within a particular Land a hierarchi- cal system is created under the Ministry of Justice and each prosecutor must give way to those higher in the heirarchy in discretionary matters. As civil servants, prosecutors often are appointed to the bench and judges occasionally are used to fapositions in the hierarchy of the Ministry of Justice.
b. Prosecutorial Discretion. Germany attempts to con- trol prosecutorial discretion through what has come to be called the Legalitaetsprinzip (legality principle) or more descriptively, "the rule of complusory prosecution."
52.
Hem, The Rule of Compukoty Prosecution and the Scope of Prosecutorial Dircretion in Germany, 41 U.Chi. L. Rev. 468, 472 (1974) [hereinafter referred to as Hem].
53.
SlBG $ 12(1).
54.
Id. at $ 12(2).
55.
Lee & Robertson, supra note 51, at 187-88.
56. Robin, supra note 50, at 297.
Except as otherwise provided by law, the prosecutor is obliged to take action in the case of all acts which may be legally punished and prosecuted, provided there is sU!licient factual evidence, 57
What the Legalitaetsprinrip requires is that all nonpetty cases 58 the prosecutor must prosecute if evidence exists to prove the occurrence of the offense by the accused. No plea bargaining is permitted and charges are not to be withdrawn after the trial begins. However, the Legalitaetsprinzip is a two-sided sword; it also prevents undue pressure on the prosecutor not to take a case to trial. In practice, when doubt exists a prosecutor normally will send the matter to trial and force the judge to make the final decision. 59 Since the German prosecutor oper- ates in a hierarchical system (i.e., one in which the Minis- try of Justice may control his discretion), such protection is necessary to maintain the integrity of process. If a Ger- man prosecutor was ordered by a superior not to prosecute a case which fell within the Legalitaetsprinzip, he would be obligated, under penalty of criminal sanction, to disregard the order and bring the case to trial. 60
c. Closing a Case. If, after reviewing the evidence which has been gathered, a prosecutor believes there is in- ~~cient
evidence to convict the accused, the case may be closed. However, to close a case he must have the ap- proval of his superior. 61 If a case is closed, both the ac- cused and the party reporting the crime are to be notified. If the reporting party is also the victim, he will be advised of his right to appeal the prosecutor's decision not to prosecute. A-14. Rights of a Victim. The victim in such cases has two options: he can file a formal complaint which is decided by the Attorney General of the state (Land);or he can file a departmental complaint objecting to the deci- sion of the prosecutor. If the formal complaint to the At- torney General is unsuccessful the victim may seek judicial review and request that the prosecutor be com- pelled to file the charge. Complaints to the prosecutor's departmental superiors are quite numerous, but the great majority are unsuccessful unless the victim can produce new evidence. If, however, the victim is successful in the court action, it is provided that he may participate in the ensuing trial as an "accusing litigant" (Nebenklaeger) to protect his case against the accused. A-15. Supervision of the Prosecutorial Func-tion. a. General. Integrity in the prosecutorial process is maintained by Close supervision and cooperation in the local prosecution office. The
head of the local office and the supervisors of its various sections control the work of their subordinates by personal contacts and review of the
57.
German Code of Criminal Procedure $1 52 (2) [hereinafter refer- red to as StPa].
58.
CJ, id. $ 153.
59.
See Cox, Discretion-A Twentieth Centuty Mutation, 28 Okla.
L. Rev. 311 (1975); see also Hermann, supra note 52, at 472.
60. Langbein, Controlling Prosecutorial Discretion in Germany, 41
U.Chi. L. Rev. 439, at 450 bereinafter cited as Langbeii].
61. Hermann, supra note 52, at 477.
Pam 27-161-1
fdes. Regular conferences are held to discuss individual cases and to work out general patterns for structuring prosecutorial discretion. 62
For one group of offenses (e.g., minor crimes of trespass, insult, and bodily injury; minor damage to property) the prosecutor may only file a charge if it is in the "public in- terest." 63 Otherwise, the victim must file a "private com- plaint" in which the process is similar to that followed when charges are filed by the prosecutors. 64 In the case of misdemeanors, a prosecutor may decline to prosecute il-legal conduct even though sufficient evidence exists to convict the offende~, if "the guilt of the perpetrator is minor and there is no public interest in prosecuting the of- fense." 6s Before taking such action, however, the prosecutor must obtain the permission of the court which would have heard the case. Since misdemeanors in Ger- many include many offenses which would be classified as felonies 66 if they were committed in the United States, it might appear that by allowing a prosecutor not to pursue prosecution when guilt in "minor" or prosecution is not in the "public interest," prosecutors operate with great discretionary latitude. Such is not the case. In addition to the necessity for judicial approval of a decision not to prosecute, German prosecutors regard complusory prosecution and restraint of discretion as over-riding
principles. They generally agree that they should bereluctant to exercise their discretionary power, and they abort proceedings only in really trivi- al cases.67
Effective check on prosecutional discre:icr, i: ;r2vided by departmental supervision. Before a prosecutor drops a case, his decision will be reviewed by a superior. The procedure is similar to that involved in reviewing a deci- sion not to prosecute for insufficient evidence.
6. Supervision of Minor Offenses. Another area of prosecutorial discretion involves appeals from fines im- posed for administrative and regulatory offenses (e.g., trafllc violations, health regulations, etc.). Such cases are prosecuted by, and the fines are imposed by, administra- tive agencies under the Ordnungswidrigkeitengesetz(Petty Infractions Code) rather than under the StBG. If the de- fendant files a complaint against the imposition of the ad- ministrative fine, the agency forwards it to the appropriate prosecutor. Before he sends it to a court for resolution, the
62.
Id. at 478.
63.
SIP0 5 376.
64. In actuality, private prosecutions play a very limited role in the German criminal system. StPO 55 373-90. It should be noted that StPO 5 377 allows the prosecutor to enter a private prosecution and to partici- pate, but he is not required to do so, unless ordered by the courts. When the prosecutor does participate, he assumes control of the case and the private party is treated as an intervenor. As an intervenor (Nebenklaeger),the victim still has the "major rights of a party: to have witnesses called, to appear by counsel, to put questions at trial, to pro- pose a judgment to the court, and to appeal against an unfavorable result." Langbein, supra note 60, at 462.
65.
StPO 8 153 (2).
66.
See Hermann, supra note 52, at 484.
67.
Id.
prosecutor is "authorized not to prosecute." 68 This is
rarely done, however, as most "prosecutors generally
agree that after a complaint is filed a judge should make
the final decision." 69
A-16. The Code of Criminal Procedure (StPO). Ac-
cording to StPO 4 403, if a prosecutor decides to file a
charge, he should notifj7 the victim, or his heirs, of the
possibility of asserting a claim against the accused for in-
demnification. If the victim decides to intervene, the
effect is the same as bringing a civil action. 70 Although
this procedure for indemnification exists, apparently little
use is made of it. One author has observed that the
[clourtcan decide the civil claim only if the decision is for the complain-
ant. (405) [referring to StPO § 4051 If the case is appealed and the con-
viction reversed, the civil judgment is reversed automatically. (405 A-
III) In addition, there are several practical considerations. At the time
the criminal trial is held, usually the extent of the injury is not clear; a
more liberal award is Iikely in a civil court; the civil action is not the main
concern of the criminal trial judge and the time that may be given to ex-
pert testimony concerning the civil claim would be limited. 71
A-17. The German Court System. When a criminal act as defined by the German Penal Code has been commit- ted, accusations may be made to the prosecutor, the police, or to a district court (Amtsgericht). The German court system, in some respects, is simpler than that in the United States. No municipal courts exist and there are no federal courts on the trial level (except for high treason and several other political type offenses). The courts are controlled by the various states (Laender). The lowest courts are the district courts (Amtsgerichte) which are col- lected under the intermediate state courts called the Land- gerichte, which are then grouped under the highest state courts (the Oberlandesgerichte). Matters tried in the Amtsgerichte are appealed to the Landgerichte and then to the Oberlandesgerichte. Matters which are tried initially in the intermediate state courts (Landgerichte) may be ap- pealed only once, i.e., to the BundesgerichtshoJ a federal court. Generally, it can be said that misdemeanors are tried before the Amtsgerichte and felonies before the Landgerichte, except for those reserved for trial before the BundesgerichtshoJ: The combined effect of the federal codes and the state laws, practically
identical from state to state, is to produce a uniform set of rules govem-
ing the prevention, repression and prosecution of offenses throughout
the Federal Republic. When this structure is combined with German
notions of service of process and venue, the state courts take on a na-
tional character. 72
A-18. Duties of the Prosecutor. As soon as knowledge of an alleged crime reaches the prosecutor, he must in-
68.
Id. at 481.
69.
Id.
70.
SIP0 8 404.
71. Robinson, supra note 50, at 274.
72. Kaplan, von Mehren, and Schaeffer, Phases of German Civil Procedure I, How. L. Rev. 1193, 1443-1461 (1958). See also W. Heyde, Administration of Justice in the Federal Republic of Germany (1971).
vestigate to determine whether charges are to be prefer- red. During the investigation the prosecutor gathers all evidence pertaining to the offense, whether incriminating or exonerating. In addition to collecting information con- cerning the crime, the prosecutor is charged with extend- ing his investigation to "circumstances which are impor- tant for the measure for punishment, for the suspension of punishment or probation, and for ordering measures of prevention and reform." 73 TO complete his investigation, the prosecutor may request assistance from all public authorities and agencies, as well as the police, to conduct the necessary inquiries. The agencies and police are re- quired by law to comply with the request of the prosecutor for assistance. 74 A-19. Rights of the Accused. a. General. The rights of the accused are set out in the Code of Criminal Procedure in great detail. He is to be interviewed by the prosecutor prior to termination of the investigation and, if the ac- cused requests that evidence be taken for his defense, the prosecutor is obligated to secure it if it is considered to be of sigmfkance. 75 At the initial interview the accused is to be advised of the offense charged, including the applicable section of the Penal Code. Additionally, he shall be advised that the law grants him the right to respond to the ac-
cusation, or not to make any statements regarding the subject matter and even prior to his examination to consult with a defense counsel of his choice. 76
b. Right to Counsel. The defendant is entitled to have a defense counsel at any state of the proceeding 77 and in certain cases, a defense counsel is maiidatory. 78 Provision is also made for appointment of defense counsel. 79 In ad-dition to the rights provided in the StPO, the Constitution of the Federal Republic of Germany, (1949) (Gnmdgesetz) guarantees certain procedural safeguards, e.g., exclusive jurisdictions of the judiciary in criminal matters, guarantee of an independent judiciary, prohibi- tion of irregular courts, right of the defendant to be heard before a court, prohibition against double jeopardy, and special rights that are applicable to judicial actions which may result in deprivation of liberty. 80 In addition to the domestic guarantees provided by the Code of Criminal Procedure and the Grundgesetz, Germans (as do other persons resident within the territory of a convention sig- natory) have the legal remedy of applying to the European Commission of Human Rights in Strassbourg or the European Court of Human Rights if they believe that basic or human rights have been violated. 81 Many of the decisions of these European organs have concerned cases
73.
SPO 5 160(3).
74.
Id. at 5 161(1).
75.
Id. at 5 136.
76.
Id. at 5 163(a).
77.
Id. at 5 137.
78.
Id. at 5 140.
79.
Id. at 5 141. : 80. Gnmdgese~,Arts. 92, 97, 101, 103, 104.
81. Id. at Art. 48.
Pam 27-161-1
of pretrial detention, in which the prisoner, who had been detained for an unreasonably long period, asserted the right to be set free during the pendency of the trial. 82
In addition, section 136 (a) of the procedural code (StPO) states that:
(1)
The freedom of decision and voluntary manifestation of the ac- cused's will shall not be impaired by ill treatment, fatigue, bodily inter- ference, drugs, torture, deception, or hypnosis. . .. Threats with measures not permitted by the procedural provision or promise of an ad- vantage not provided by the law are prohibited.
(2)
Measures which impair the memory or the capacity of judgment of the accused are not permitted. . ..
(3)
These prohibitions apply irrespective of the consent of the accused. Statements which were obtained by violation of this prohibition shall not be used, even if the accused agrees to their use.
A-20. Pretrial Confinement. During the investigation, a person may be placed in pretrial confinement if he is "strongly suspected of the act" and if the person has fled or is hiding or there is a danger the person would evade prosecution by fleeing; or if the person might destroy, alter, remove, suppress, or falsify evidence, to include im- properly influencing co-defendents, witnesses, or experts (or cause others to do so); or if the person is accused of a felony involving morality or indecency, he might commit another offense; or if the person is suspected of a felony against life. 83 If the act is punishable only by imprison- ment up to six months, pretrial detention is not permissi- ble on the grounds of the danger of obscuring evidence, but only to prevent evasion of prosecution by flight. Pretrial detention is imposed by order of a judge who is also responsible for granting bail which can be furnished by depositing cash or bonds, by pledging property, or by furnishing suitable persons as sureties. If a person is caught in the commission of a crime, anyone is authorized to apprehend him temporarily, without a judicial order, if there is reason to suspect that the person will flee or if his identity cannot be immediately ascertaned. Also, under certain circumstances, police officials or the prosecutors are authorized to temporarily detain a person if a danger of delay exists. Review of pretrial confinement may be on motion of the accused or in the discretion of the court sua sponte.
A-21. The Defense Counsel. The defense counsel has access to the prosecutor's entire fde including the material to be in- troduced into evidence upon completion of the preliminary investiga- tion. The defense counsel may even take the files to his office for study and preparation of his counter-argument. . . . But he does not have to reveal to the prosecutor the counter-proof which he plans to introduce at the trial other than the names and address of his witnesses and ex-
perts.84
A-22. Indicting. Once the prosecutor has investigated to the point where he believes that sufficient evidence exists for preferring public charges, he will do so either by mov-
82. Jescheck, Principles of German Criminal Procedure in Com- parison with American Law, 56 VA. L. Rev. 239, 242.
83. StPOfj 112.
84. Jescheck, supra note 82, at 246.
hg for a preliminary judicial investigation (Gerichtliche Vonmtersuchung), 8s or by submitting a bill of indictment to the appropriate court. In all other cases, he will termi-nate the proceedmg. If a preliminary judicial proceeding is not held, whether the case goes to trial or not is decided by the competent court upon review of the bill of indictment which contains a motion by the prosecutor to open the "main proceedings." Along with the bill of indictment, the prosecutor furnishes his investigative fde (i.e., his dossier). Thc court is to open the "main proceedings" if the evidence in the dossier indicates that the accused is "suiXciently suspected of the offense.." 86 When a preliminary judicial investigation is held, it is not to extend any further than is necessary to arrive at a decision as to whether the "main proceedings" should be opened or the charges dismissed. 87 Upon completing the preliminary in- vestigation, the examining judge (Untersuchungsrichter) returns the file to the prosecutor with his recommenda-tion. If the prosecutor believes that the matter should go to trial, the file is sent to the appropriate court with a bill of indictment for the court's decision. A-23. Charges. In ~ermany prosecutors generally charge an "entire transaction," i.e., The entire criminal transaction is presented to the court, rather than
merely those elements selected by the prosecutor. For example,, if employees of a bank were taken as hostages and a police officer killed in the course of a bank robbery, the prosecutor presents all the facts to the court and fies the charge for all possible offenses; he cannot choose to prosecute only one of the offenses and thereby bring a reduced charge. A final judgment of conviction or acquittal is res judicata as to the entire transaction described in the charge. The concept of the criminal trans-action is not limited to acts committed in one place and at one time. A transaction may include several separable acts that can be considered one episode. A series of frauds committed in several cities by a traveling salesman, the writing of numerous bad checks, or the fhg of several false tax returns have all been treated as one transaction. 88
At this stage, the charges are before the trial court for the "main proceeding" (Hauptverfahren) . Before discussing in detail the Hauptverfahren, it may be best to put the en- tie proceeding in perspective. Once a charge has been preferred, a German judge, using the fde of the
case,. . . will decide whether to authorize main proceedings (Hauptver- fahren), the question being whether there is sufficient evidence of guilt of the person charged. The latter will fust be heard. In addition the court can order supplementary judicial investigation of the case. It can also decline to open main proceedings. Furthermore., the presiding judge is responsible for the preparation of the main hearing of the case. In this way he decides whether to grant a defendant's application to obtain evi- dence. So on his own authority he may order the summoning of wit- nesses and experts, or the production of new evidence. He can also make out an order for an examination before designated or requested
A preliminary judicial investigation is required for cases going to the Bundesgerichtshof; the Oberlandesgericht, or the Schwurgericht for trial or where the prosecutor of defendant moves for such an in- vestigation. The preliminary judicial investigation is opened and carried on by a special examining judge (Untersuchungsrich&). See SffO 55 178-197.
86. StPO at 5 203.
87. Id. at 5 190.
88. Hermann, supra note 52, at 495.
8'
judges prior to the main hearing, as well as a judicial view to be taken by them. While preparing the main hearing, ajudge is even permitted to get in touch with the defendant, the defense, witnesses and experts alike, During the main hearing he is in charge of the conduct of the trial, the examination of the defendant, and the eliciting of evidence. While cross-examination is provided for in the German Code of Criminal Procedure (StPO), it is rarely applied as neither prosecuting nor defend- ing counsel are used to elicit[ing] evidence in court. . . . Where the proof of guilt of the defendant is insflicient, the prosecution will itself ask for an acquittal. Where a defendant has been wrongfully convicted, the prosecution will put forward an appeal for the restitution of his rights. This independent and impartial position of the state prosecutor is made possible by the judge bearing the responsibility for a complete and im- partial examination of the evidence. This in turn presupposes the prior knowledge of the fde [dossier] by the judge. So it is possible to claim that the prior access to the fie is closely related to the structure of German criminal procedure. 89
A-24.Composition of the Courts. if one factor could be chosen to explain the differences between the legal systems of Germany and the United States, it would have to be that in Germany there are no jury trials. Because there are no "jurors," German criminal procedure does not contain extensive exclusionary rules with respect to evidence. Although in earlier periods German trials were conducted by professional judges without the assistanceof lay judges, the system as it operates today is a middle ground between trial by judge alone and a jury trial because it is conducted before a mixed bench of profes- sional and lay judges. These lay judges are not merely "jurors" since they participate with the professional judge in deciding questions of law and fact. However, it should be noted that the lay judges have no prior knowledge of the file (dossier). They hear the evidence for the fust time at the trial. 90 A-25. The Exclusionary Rule in Germany. In addition to eliminating exclusionary rules (such as the heresay rule) which are, at least partially, based upon considera- tion of the lack of "sophistication" of jurors, the German system has also felt little urge to use exclusionary rules of evidence to discourage police and prosecutorial abuse. For example, although a confession obtained by illegal means might be excluded even if the defendant consents to its use, 91 Germany has not adopted the "fruit of the poisonous tree" doctrine. The Federal Supreme Court of Germany has held that
failure to warn the defendant about his right to remain silent and his priv-ilege to request an attorney before his interrogation does not render in- admissible the proof obtained as a result of his impermissible question- ing. 92
A-26. Conduct of the Trial. a. General. In a German criminal trial, there are no opening statements by defense counsel and prosecutor. The presiding judge calls the case and determines whether the defendant, counsel, and summoned witnesses and experts are present. If so, the
89. Jescheck, supra note 82, at 246-47.
90. Id. at 249-252.
91.
StPO 5 136(a).
92.
Jescheck, supra note 82, at 246.
Pam 27-161-1
witnesses leave the courtroom and the defendant is ex- amined by the presiding judge regarding his personal situation. Thereafter, the prosecutor reads the accusation and, under certain circumstances, is permitted to present the legal evaluation on which the order to open the trial has been based and to express his own legal opinion. The defendant is advised of his right to remain silent. If he desires to speak, he is immediately examined by the presiding judge. At the conclusion of a defendant's state- ment, if any, both defense counsel and prosecutor are given an opportunity to question the defendant in order to supplement his testimony. This is not a cross-examination in the common law sense; the defendant is not allowed to testify under oath as a witness. Once the defendant has been questioned, if he desires to speak, the presiding judge receives the evidence in the case.
b.
Introducing Evidence. In a German trial, evidence is received according to the Instruktionsmaxime, i.e., in order to determine the truth the court shall, upon its own motion, extend the taking of evidence to all facts and evi- dence which are important for the decision. The introduc- tion of proof does not proceed on direct examina- tionlcross-examination as in the United States. Rather, witnesses are allowed to testify as to what they know about the subject matter in a narrative form and only then are they questioned further. 93 After each witness, or after the introduction of each piece of written proof, the accused is asked if he has any statement to make and, upon request, the prosecutor and the defense counsel may make a state- ment. The court is not bound by the evidence presented by the prosecutor or by the defense counsel. In fact, it is fair to say that the prosecutor loses control of the case once formal charges have been filed. 94 He is not at liberty to drop the case without judicial concurrence, and the court is not bound by the prosecutor's theory of the case. It therefore follows that the prosecutor is not required to make out a prima facie case; nor is there a requirement that a particular fact be substantiated by more than one piece of evidence. In fulfiing the Instrukstionsmaxime a court is not bound by a defendant's confession and it may question as many witnesses as necessary to satisfy itself of the accused's guilt. The burden of disproving such ex- culpatory defenses as insanity, drunkenness, self-defense, or necessity is upon the government. However, the defen- dant has the burden of asserting the facts necessary to raise such a defense (Darlegungslast).If the government cannot meet its burden, the point is established by the presumption in the defendant's favor.
c.
Closing Statements. At the conclusion of the evi- dence, the prosecutor and the accused have the right to make closing statements, with a right of reply in the prosecutor and the right to close in the defendant. Even if the defense counsel has spoken for the defendant, the de-
93.
StPO $8 69(1), 72.
94.
Langbein, supra note 60, at 447.
fendant will be asked himself whether he has anything to
add in his defense. Once closing arguments have been
made, the court retires to deliberate its determination of
guilt or innocence and to fix the sentence, if appropriate.
The civil law system generally does not require a
unanimous vote for a verdict of guilty.
A-27.Conviction and Sentencing. a. Conviction. The German Code of Criminal Procedure states that a "ma- jority of two-thirds of the votes is required for any decision against an accused which concerns the question of guilt
[or] assessment of punishment." 95
b.
Sentencing. A study of sentences authorized by the German Penal Code (StGB) and those actually imposed by German courts show that they are generally less severe than those in the United States. 96 In 1969, Germany enacted two reform acts which were not merely changes in criminal law, but actually revealed ". . .a new basic orien- tation: a beginning with de-mythologizing and humaniz- ing criminal law." 97 Certain acts were made noncriminal and the concept of penal sanctions was reoriented. The law was divided into two parts, the fust of which was less controversial and became effective on I April 1970. The second part, which included the General Part of the Penal Code, as well as the new concepts with respect to penalties, did not come into effect until 1 January 1975. The penal policy as enacted in these two pieces of legis- lation provides for uniform imprisonment for all prisoners, regardless of offense, thus doing away with the former sanction of penal servitude. The reform acts also restricted the use of "short-term" imprisonment (i.e., less than six months) except in unusual cases. The rules regarding parole and suspension of sentence were liberalized, thus placing formerly ineligible persons within the zone of consideration.
c.
Fines. In these reform acts Germany also adopted the Scandinavian model of imposing fines in "daily incre- ments." Under this model, a judge is not completely at loose ends in determining the fine to be imposed. It
involves a 2-step calculation: fust the judge must determine a "dayw- multiplier appropriate for the particular offense, e.g., 30 days for burgla- ry. His next step is to calculate the amount for each day, having regard for the offender's personal and economic circumstances. Thus if our burglar's day tax is assessed at DM20, his fine would amount to DM600. 98
d. Probation. In some instances involving minor offenses, a perpetrator's record may be "wiped clean" ifa successful probation period is completed. The reform acts also introduced the concept of rehabilitating in "institutes
95. SIP0 8 63(1).
96. See generally Hennann, supra note 52, at 473. For a com- parison of criminal sanctions in various European countries see Glos, A Study in the Treatment of Crime and Law Ellforcement in the United States as Compared to the European Countries, 3 St. Mary's L. J. 177, 179-201 (1971).
97.
Eser, supra note 45, at 252.
98.
Id. at 256.
Pam 27-161-1
of socio-therapy' 'four categories of offenders: persons with severe personality disfunction, persons suffering from dan-gerous impulses, youthful offenders who have already undergone cor- rectional education without success and display a criminal inclination, and fmally persons who would qualify for psychiatric hospitalization but might respond more adequately to the special therapy and social help of the new institution. 99
These penal reforms provide German courts a wide range of sanctions to consider when deliberating and construct- ing an appropriate sentence. A-28. Sources of Law. German judges view the con- tinuity and development of the law as part of their respon- sibility. As with other civil law jurisdictions, judges are ex- pected to "fd the gaps" of legislation by extending the lkgal principles expressed in legislation. When Bruno Heusinger stepped down as President of the German Supreme Court in 1968, he placed the role of the German judge in perspective:
The highest jurisprudence, that of the Supreme Court, characterizes the law by emphasizing two special tasks:safeguarding both the uniformity and the development of the law. The Supreme Court, within its jurisdic- tion, has to provide a uniform application of the law throughout the Re- public of Germany. That can only be achieved if the Supreme Court does not, without necessity, decide a similar case differently today than it did yesterday or the day before. This continuity is not reprehensible conservatism, but simply indispensable to guaranteed stability of the law. 100
A-29. The Penal Order. Any consideration of German criminal procedure requires brief mention of the "penal order," or Strafbefehl. The penal order proCedure is a type of prosecution and is thus consistent with the Legalitaetsprinzip (the rule of compulsory prosecution). However, a penal order could be described'as a trial with- out a trial. It applies only to misdemeanors (Vergehen). When the prosecutor receives a case involving a misde- meanor, he may elect to handle the matter by applying to a district court judge (Amtsrichter) for a penal order. The application is to contain the facts of the case and a request for a smc penalty. 101 The judge may either issue the order, as requested, or deny it. He may not impose any other penalty than that requested by the prosecutor. If the order is denied, the judge may either return it to -the prosecutor or order a trial. 102 When the order is issued it is sent to the defendant who has one week from the date of service of the order to raise objections with the district court to the procedure. If the defendant does not object within the time allowed, the penal order becomes a final judgment. 103 When an objection is raised within the time limit, the case is set for trial which then proceeds like any other trial unless the prosecutor decides to drop the matter or the objections by the defendant are withdrawn prior to trial. As may be seen, the purpose of the penal order is to avoid trial only where the offense is minor and the facts are undisputed.
The similarity between the German penal order and the Anglo- American guilty plea is manifest: The prosecution invites the accused to waive any defenses and consent to the punishment propounded by the prosecution. There are, however, important differences. Fit, the penal order procedure applies only to misdemeanors, and even there only where relatively light sanctions are proposed. . . .The real parallel to the German penal order procedure is the short form American citation prac- tice for traffic offenses: 'Pay this fme or appear in court.' . . .Second, the German penal order might be said to invite a plea, but not a bargain. … [The accused] is offered the sentence on take-it-or-leave-it terms. .. . Third, and most important, the penal order does not offer a lesser sanc- tion in exchange for the guilty plea. The accused who objects to the order, demands trial, and loses is not likely to receive a stiffer sentence. . . . Hence, what the accused primarily risks in rejecting the penal order is not a greater sentence, but court costs and the notoriety of public trial. '04
A-30. Conclusion. Having examined the prototypes of a civil law system as it has evolved in both France and Ger- many, a brief discussion of other civil law systems follows.
Section 111. OTHER CIVIL L,AW JURISDICTIONS 10s
A-31. Republic of Korea. 106 a. Historical. Before World War 11, the criminal procedure of Japan was used to a large extent in Korea. After the War, Korea adopted its own law of criminal procedure.
b.
The Prosecutor. Under the Korean system the prosecutor is permitted to institute charges. The prosecu- tor directs the investigation of the case, either by conduct- ing the investigation himself or through police officials.
c.
The Defendant. Normally the defendant is not ar- rested during the investigation.
(1) Need for an arrest warrant. If a person is ar- rested, a warrant must be issued by a district judge except when the person is caught in Jagrante delicto or when there is insufficient time to obtain the warrant and it ap- pears that the person will flee or destroy evidence in a case involving an offense punishable by death, penal servitude, or three or more years of imprisonment. In such a case, a warrant must be obtained within 48 hours from the dis-
99. Eser, supra note 45, at 257.
100. Larentz, The Open Legal Development Germany in The Role of Judicial Decisions and Doctrines in Civil Law and Mired Jurisdictions
139 (Dainow ed. 1974).
101.
StPO §§ 407, 408. The only penalties that may be requested are minor in nature. Id.
102.
Id. A judge might disagree because "he believes the matter should not be disposed of by penal order, such order is not justified by the law or the facts, or he disagrees with the punishment. . . . If the prasecutor disagrees he may appeal [to a higher court]. .. .However, in practice, such disagreement is rare." Robinson, supra note 50, at 275.
1'33. StPO 5 410.
104. Langbeim, supra note 60, at 456-57.
105. For a discussion of the legal system in Italy, see Menyman, The Italian Legal System III: Interpretation in The Role of Judicial Deci- sions and Doctrine in Civil Law and in Mired Jurisdictions (Dainow ed. 1974). See also Vassali, The Reform of the Italian Penal Code, 20. Wayne L. Rev. 1031 (1974). The Spanish system is adequately dis- cussed in Murray, A Survey of Criminal Procedure in Spain and Some Comparisons with Criminal Procedures in the United States, 40 Notre Dame L. Rev. 1 (1 964).
106. The following material has been condensed from a publication entitled Korean Legal System distributed by the Supreme Court of the Republic of Korea in 1964 [hereinafter referred to as KLS].
Pam 27-161-1
trict court or the person must be released and cannot be arrested again for the same offense without a warrant.
(2)
Pretrial detention. If there is reasonable belief that a person has committed an offense and that the per- son has no "fmed dwelling place" or there is reason to believe the person may destroy evidence, or it is likely the person will try to escape, then he may be placed in pretrial confinement for a period of two months. The period of detention may be extended, if need be, for a maximum of six months. A suspect is placed in pretrial detention by a warrant of detention issued by a court at the request of the prosecutor. When the reason for detention ceases to exist, the person is to be released. If a person has been arrested under a warrant, a request may be made to an appropriate court by the person, his defense counsel, legal representa- tive, brother, sister, or head of his family for a decision as to the legality of the arrest. 107 If appropriate, the court can order the release of the suspect.
d.
Initiating Charges. There are two other ways in which a prosecution can be initiated:
(1)
Trial of the accused by summary proceedings for petit offenses, and
(2)
Where an Appellate Court overrules the deci- sion of a prosecutor not to prosecute and orders the case to trial.
e.
Petit Offenses. It would appear that for certain types of offenses, the chief of police may recommend that a summary trial procedure be used. If, however, the ac- cused informs the chief of police who originally requested the summary trial of his objection to the procedure, then the records and evidence must be forwarded to the prosecutor for a public trial. This procedure for petit offenses must not be confused with the procedure for summary judgment.
J: Appellate Court Order. If a complainant (or in- former) is dissatisfied because the prosecutor has decided not to prosecute a case, he may petition, within ten days of being notified of the decision not to prosecute, through the chief prosecutor of the district to the appropriate Ap- pellate Court for review of the decision. The chief prosecutor may reverse the local (district) prosecutor and send the case to trial or send the file on to the ofice of the higher prosecutor (i.e., to the prosecutor who operates at the Appellate Court level) within seven days of receiving the petition. At this level, the case may be sent to trial or to an Appellate Court which then must decide, within 21 days whether to send the case to trial. If the petition is not dismissed and the case is set for trial, the matter is handled just as though the charges had been filed by the public prosecutor. The main departure from an action brought by the prosecutor is that an attorney (other than the prosecutor) will be appointed to handle the case. This lawyer is said to act in an official capacity while prosecuting the
107. This would be akin to a habeas corpus action in the United States.
case; he merely steps into the shoes of the regular public prosecutor, and for this reason, he is paid by the government for his services. However, the lawyer is restricted in one respect: In directing the in- vestigation by police officials, the appointed lawyer must limit the scope of the inquiry to those matters which the presiding judge [of the trial (district) court] has approved in advance. If at any time the court feels that the lawyer is not properly performing his duties, .. .the court can withdraw the appointment and designate some other lawyer to take his place. 108
g. Bail. Under the Korean system, provision is made for bail: an accused who has been detained is [to be] released after he has been
required to deposit with the court a sum of money which will be for- feited if he does not present himself when required to do so. 109
In cases where the defendant is not entitled to bail, the court may, in its discretion, order bail. When a person is released on bail, the court may attach such conditions as it deems appropriate. 110
h. Standard of ProoJ: The prosecutor files charges when he has reasonable grounds to believe that a crime has been committed by a par-
ticular person. However, the prosecutor can choose not to prosecute because of the age of the suspect, his character, his intelligence, his background, his motive, the manner in which the offense was commit- ted, the result of the suspect's acts, and the suspect's attitude after the commission of the offense. I 11
Such "nonprosecution" is called a "suspension of indict- ment" and should be distinguished from an outright dis- missal of the charges based, for example, on insufficient evidence or a failure to follow procedural require- ments. 112
i. Indictment. If the prosecutor determines that charges should go forward, he files a written indictment with the appropriate court or moves that the matter be disposed of by "summary judgment." The latter procedure is reserved for minor cases which may involve only a fine. An
accused can request a formal trial within seven days from the receipt of notification of summary judgment. If the accused does not desire to re- quest formal trial, or if he withdraws such a request, or if the court dis-misses the request … and this decision is not appealed, the summary judgment becomes conclusive and has the same effect as a judgment by formal trial. 113
When a case is recommended for trial, a copy of the in- dictment must be sent to the accused or his attorney at least five days in advance of the first session of court.
j. Right to Defense Counsel. The accused may retain a
108. KLS, supra note 106, at 25.
109. Id. at 31.
110. For example, a court may restrict the individual to his dwelling place.
111. KLS, supra note 106, at 36.
112.
Id. "If a person is suspected of having committed more than one offense the prosecutor can try all of the alleged offenses together or can try only the most serious fmt." Id.
113.
Id. at 20. Compare this procedure with the concept of the penal order in the German system discussed supra at notes 101 through-104 and accompanying text.
defense counsel at any time, but if no counsel has been obtained by the time the case has been sent to trial, the court sua sponte must appoint counsel if the accused is:
a minor; (2) 70 years or more; (3) deaf or mute; (4) suspected of being mentally unsound; or, (5) unable to obtain counsel because of a lack of assets (or other reasons) and has requested counsel. 114 Additionally, if the offense is punishable by death, penal servitude, or im- prisonment for more than three years, the court must ap- point counsel. 11s Introducing Evidence. In Korea there are certain restrictions on the introduction of evidence at trial. For example, coerced confessions, confessions without cor- roborating evidence, or hearsay testimony may not be in- troduced. However, the prosecutor's file (dossier), in whole or in part, may be admitted, if authenticated even though it contains statements by the defendant or other persons. At the trial both the prosecutor and the accused may present evidence and the court on its own motion may call for additional information. The accused may refuse to "answer any or all questions," but "the court must give him an opportunity to make a statement favora- ble to himself." 116 (1)
k.
I.
Composition of the Court. In the trial process, there is no "provision in the constitution or in the laws for trial by jury." 117 Therefore, the trial is either before judge alone or a panel of judges. The proceedings in a Korean criminal trial may be summarized as follows: The presiding judge fixes the date for the fmt public session, although
he is limited by the requirement . . . that the accused or his counsel receive the indictment at least five days before the trial begins. On the fust day of the trial, the court summons the accused and notifies the prosecutor and the defense counsel. The court is convened in the pres- ence of the judge or judges, the court clerk, the public prosecutor, and the accused. . . . Hearings are generally open to the public; the court, however, canexclude the public by decision if the proceedings are likely to disturb public order or be harmful to the public's moral welfare. . . .If the public is excluded, the court must state the reason for its decision.
At the beginning of the trial . . . the presiding judge must confi that the apparent accused is the true defendant by asking him his name, age, address, and occupation. The prosecutor then describes the nature of the alleged offense, as set forth in the indictment. Before proceeding further, the judge must give the accused an opportunity to make an opening statement in his own behalf; the defendant need not say any- thing, however.
If the accused is willing to answer questions, the defense counsel and the prosecutor can examine him, in turn, regarding the alleged offense; then the presiding judge can interrogate him. Thereafter, an associate judge can ask questions of the defendant. . . . Even if the defendant has answered some questions, he can still refuse to answer others.
After the examination of the accused, the prosecutor, the defense counsel, and the defendant can introduce documentary evidence or other evidence and can request that certain persons be called as wit- nesses, both experts and lay. . . . me court may also investigate a par-ticular matter on its own motion.] The prosecutor, the accused, or his
114.
Id. at 26.
115.
Id.
116.
Id. at 23.
117.
Id. at 15.
counsel can object to the introduction of certain evidence; the court must then render a decision on the objection. After all the evidence hak been examined by the court, the public prosecutor makes his summa- tion in which he states his opinion of the facts proved and the applicabAe law, and suggests an appropriate punishment. The defense counsel ca;n then make a fmal argument concerning both the facts and the law; the defendant can also make a statement in his own behq. 118
d
m. Appeals. If the accused is found gdy, any appeal must be filed in writing within seven daybuter the sen- tence is adjudged. In Korea, any party to the action may appeal, not only the prosecutor, the accused, and his legal counsel, but also a legal representative, spouse, linql relation, brother, sister, or head of the family. Genera& the Appellate Court only considers matters raised by the appellant, but it is permitted to raise certain matters on its own motion. 119 The Appellate Court may not impose a heavier sentence than that imposed by the trial court. The decision of the Appellate Court may then be appealed to the Supreme Court, which generally only decides ques- tions of law. 120 A-32. Japan a. Historical Origins. The Japanese legal system is a mixture of the civil and common law systems. The fust Japanese Constitution (1889) was greatly in- fluenced by German and Austrian law because the com- mon law sytem was considered too "democratic" by the Japanese society in the latter half of the 19th century. 121 Initially, the Japanese drew heavily on the French legal system (e.g., the ofice of procurator or public prosecutor was established in 1872), but around 1880 the influence of French procedures dwindled and the German processes assumed preeminence. By the beginning of the 20th cen- tury, however, Anglo- American concepts were beginning to influence Japanese legal thinking. For example, the jury system was introduced in 1923. The common law did not make its full presence felt until after World War 11, follow-ingthe American occupation of the islands when the com- mon law influence became more pervasive. 122
Examples of such superimpositions are the guarantee of freedom from discrimination in political, economic or social relations because of race, creed, sex, social status or family origin (Art. 14); the right of life, liber- ty, and the pursuit of happiness (Art. 13); the right of all persons to be secure in their homes, papers, and effects . . . (Art. 35); and especially the fact that the judiciary is to be independent in the exercise of their conscience and shall be bound only by this constitution and the laws. The judiciary is the fmal arbiter of all legal matters (Arts. 76, 55 2 and 3). 123
b. Modern. Although the Japanese Penal Code and the Japanese Code of Criminal Procedure retain characteristic features of the civil law, several signif~cant points of the
118. Id. at 37-40.
119. For example, it can grant amnesty or abolish the penalty.
120. KLS, supra note 106, at 46, 47.
121.
Kuribayashi, The Japanese Legal System, 36 Australian L. J. 437 (1963).
122.
Note, The JudicialSystem of Japan, 6 Case Western Reserve J. Int'l L. 294, 295 (1974).
123. Id. at 397, n. 12. The citations are to the Japanese Constitu- tion of 1946.
common law have been added. The Code of Criminal Procedure incorporates such Anglo-American features as the requirement of ajudicial warrant for every kind of compulsory measure,
the proceeding for the indication of reasons for detention, restrictions on the use of evidence, . . . the increased use of the adversary party con- cept in the structure of public trial [, . . . the] abolition of the preliminary proceeding, the basic revision of the system of appeals, the prohibition against reopening the proceedings to the detriment of the accused, the restrictions placed on the system of summary proceedings, and the abolition of private actions collateral to public prosecutions. Details of procedure are provided by rule of court. 124
The Japanese Penal Code retains its basic framework even though originally enacted in 1907. It has stood the test of time because it has provided the courts with flexibility by defining offenses broadly. Further, Japanese courts are vested with a broad discretion in applying Code norms to individual
cases, and judicial interpretations by the highest court . . . are usually
124. S. Dano, Japanese Criminal Procedure 17, 18 (George ed.
1965).
Pam 27-161-1
followed by lower courts until the former changes its own previous view. Thus, the courts develop "case law" in many fields of criminal law, although law-making authority by courts has never been explicitly 'recognized in Japanese jurisprudence and judicial opinions are always based on the words of statutes and not on precedents. 12s
c. Rights of the Accused. In addition to the common law features in the Penal Code and the Code of Criminal Procedure, the Japanese Constitution of 1946 contains a number of "American-type" rights which are considered basic to defendants, e.g.: due process, arrest, search and seizure, fair and speedy trial, confronta-
tion of witnesses, right to counsel, coerced confession, and double jeopardy. 126
d. Conclusion. Japan has blended the precepts of oriental law, civil law, and the common law and has at- tained a rather unique criminal legal system.
125. Suzuki, The Politics ofCriminal Law Reform: Japan, 21 Am J. Comp. L. 287, 294 (1973).
126. Id. at 287, citing Japanese Constitution Arts. 31, 33-35, 37-39.
The proponent agency of this pamphlet is the Office of The Judge Advo- cate General. Users are invited to send comments and suggested im- provements on DA Form 2028 (Recommended Changes to Publica- tions) directly to The Judge Advocate General's School, US ARMY, ATTN: International Law Division, Charlottesville, Virginia 22901.
By Order of the Secretary of the Army:
E. C. MEYER
General, United States Army Official: Chief of Staff
J. C. PENNINGTON
Mqjor General, United States Army The A4utant General
DISTRIBUTION: To be distributed in accordance with DA Form 12-9A, Requirements for DA Pamphlets, Legal Services. Active Army: C ARNG: D USAR: C
QU.S. GOVERNMENT PRINTING OFFICE: 1979-280-9611'1353
