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of the agreement. Negotiations were en giving the British civil courts concurrent To summarize wartime experience: The tered into between Great Britain and the jurisdiction over offenses against local law first war involved for the most part occupaUnited States,23 but no agreement was ever which were also infractions of American tions by consent and the agreements then reached.24
military law. This state of affairs was entered into were accordingly, not compa(2) World War II
deemed unsatisfactory and, after an ex rable to the instant agreement. During the
change of notes,32 the United States of Amer Second World War, only the United States Of great significance is the World War II
ica (Visiting Forces) Act, 1942,33 was adopted. and Great Britain were able to obtain exexperience.25
This act gave American military courts ex clusive jurisdiction over their own forces on In 1933, Great Britain adopted the Visiting
clusive jurisdiction over offenses committed friendly foreign soil. As between Great Forces (British Commonwealth) Act.26 This
by American personnel. It was termed in Britain and the United States, we obtained provided that any Dominion military court
the note from Foreign Secretary Eden as a such exclusive jurisdiction in Great Britain might exercise its jurisdiction "in relation to
"very considerable departure *
itself and in several of the Dominions, but members of the force in matters concerning
the traditional system and practice of the on the leased bases received only concurrent discipline and in matters concerning the in
United Kingdom.” 34 It is clear that this jurisdiction. Other nations on British soil ternal administration of the force." It did
grant of exclusive jurisdiction was consid did not obtain even complete concurrent not exempt any member of the Dominion
ered unprecedented. And after the act's criminal jurisdiction. These wartime agreeforce from local criminal jurisdiction.27 In
passage, it was termed "a startling departure ments, to the extent that they are relevant, 1940, the Allied Forces Act was adopted.28
from long established and jealously guarded obviously reflect the relative circumstances This act adopted in the main the provisions precedent." 35 Indeed, Great Britain has re of the parties at the time of the negotiations. of the 1933 act for the Allied forces stationed
cently adopted its Visiting Forces Act, 1952. In view of their varied terms, they cannot be in Britain. It granted jurisdiction to the
This act closely parallels the jurisdictional said to codify any rule of international law. Allied military courts in "matters of disci
provisions of the instant agreement and pline and and internal administration over
B. Agreements in time of peace vitiates the grant of exclusive jurisdiction members of the force.” It further provided to our forces in Great Britain. It is expected
The agreements which were concluded that the offenses of murder, manslaughter, to go into effect with the ratification of the
among the nations in times of peace are most. and rape could be tried only by the civil instant agreement, but in any event in the
directly relevant to the provisions of the incourts of the United Kingdom. Offenses near future.
stant agreement. They show conclusively punishable by ,local law which were at the
A similar course attended the sending of
that the nations of the world recognize no same time offenses against discipline were United States forces to Australia, and the
rule of absolute immunity in peacetime for within the concurrent jurisdiction of both United States eventually concluded similar
friendly forces on foreign soil. the civil courts and the service courts.29 Inagreements with Belgium, Canada, China,
(1) Bilateral Agreements ternational agreements of this nature were
Egypt,36 India, and New Zealand. concluded, with appropriate protocols, en
During the interwar period,43 the British On the other hand, Great Britain itself
were successful in obtaining exclusive crimabling regulations, and Orders in Council
was successful in obtaining immunity from with Czechoslovakia, the Free-French Au
inal jurisdiction over their forces in Iraq 44 thority, Norway, Netherlands, and Belgium. Belgium, China, Ethiopia, and Portugal. criminal prosecution by the local courts with
and Egypt. of particular significance, howWhen United States troops began to ar
ever, is the fact that the members of forces Also entered into during this period was a rive in Great Britain in number, an Order
of other nations stationed in Egypt were in Council was issued which made applicable First World War,37 where the visiting State series of agreements similar to those of the
not considered immune from the jurisdicto those forces the Allied Forces Act of 1940,31
tion of the Egyptian courts.46 was, in effect, an army in peaceful occupa
In 1948, Great Britain and France entered tion by consent.38
into a visiting force agreement for the Brit22 Rex v. Aughet; see infra.
The destroyer-base exchange between the
ish armed forces pending their final with23 Foreign Relations of the United States, United States and Great Britain also con
drawal from French territory.47
This gave 1918, Supp. 2, pp. 733–760. For conflicting
tained provisions for the exercise of criminal exclusive jurisdiction to the British military interpretations of these negotiations, com jurisdiction by the United States military
forces in two cases only: where the victim pare King I, pp. 551-553, with Barton I, pp. courts on the leased bases.39 As Colonel King
was a member of the British force and where 391–395, and Barton II, pp. 192–194.
concedes, this agreement cannot be read to 24 Great Britain did adopt, as domestic leg. give exclusive jurisdiction to American mili
the offense was contrary to United Kingdom Íslation, its Defense of the Realm Regula- tary courts.40 Rather, that agreement gave
military law, but not to French law. In all tion No. 45 F, which affirmatively granted to
other cases, the French authorities were only concurrent jurisdiction to the military and the Allies power to exercise jurisdiction over
to "examine with the greatest consideration local courts in all classes of offenses, except their own forces. Order of Mar. 22, 1918,
any request” 48 from the British to transfer those of a security nature, those committed S. R. & 0,, 1918 (No. 367), pp. 332–334.
the accused to a British military court. in the leased area, or those of a military na Since the war the United States has entered 25 See generally, the Status of the United
ture, in which cases the United States States Forces in English Law (38 Am. J. Int.
into a series of agreements with foreign given the absolute right in the first instance Law 50); Schwelb, the Status of Soviet Forces
countries which have dealt with this questo assume and exercise jurisdiction.41 It was tion. in British Law (39 Am. J. Int. Law 330);
In two of these the United States further provided that nothing in the agreeGoodhart, the Legal Aspect of the American
has obtained exclusive jurisdiction over ofment was to be deemed to limit the jurisdicForces in Great Britain (28 A. B. A. J. 762);
fenses committed by its forces anywhere in tion of the United States over members of the receiving countries for the interim period Schwelb, the Jurisdiction Over the Members
its forces, in matters of discipline and inof the Allied Forces in Great Britain, Czecho
which will terminate with the signing of the ternal administration.
instant agreement; namely, the agreements slovak Yearbook of International Law (1942),
with Denmark for Greenland 49 and Japan.50 p. 147; Kuratowski, International Law and the Naval, Military, and Air Force Courts of
32 See S. Rept. No. 956, 78th Cong., 2d sess.
Several provide for such exclusive jurisdic33 5 and 6 Geo. VI, ch. 31.
tion during a state of war.51 Foreign Governments in the United Kingdom
One is quite (28 Trans. Grotius Soc. 1 (1942)); the U. S. A.
34 See note 32, supra. Visiting Forces Act, 1942 (6 Mod. L. Rev. 68);
35 106 Just. p. 411.
43 The only agreement prior to World War Barton I, pp. 396–406; Barton II, pp. 197–204;
36 Compare, however, the status of Greek I which appears to have been interpreted to King I, pp. 553–559; King II, pp. 263-276
nationals in Egypt, for whom a similar agree- apply to a situation of this nature was the (85 Sol. J. 219).
ment had not been reached. Gounaris v. treaty between the United States and Pana26 23 and 24 Geo. V, ch. 6.
Ministere Public (Annual Digest and Reports ma, 1904, 33 Stat. 2234; see Republic of 27 The principal objection to the act in
of Public International Law Cases (herein Panama v. Schwartzfiger, infra. Parliament was that under sec. 1 (3) of the
after, Ann. Dig.), 1943-45, p. 152; infra; Bar 44 October 10, 1922, Great Britain Treaty act, the military courts were removed from ton II, pp. 201-2).
Series (hereinafter, G. B. T. S.) No. 17 the supervisory jurisdiction of the civil
(1925); see also id. No. 15 (1931). courts and that a member of the force con 38 United States-Denmark (E. A. S. 204 45 G. B. T. S. No. 6 (1937), 31 Am. J. Int. L. victed by a military court could get no relief (1941)); United States-Panama (6 Dept. (Supp.), p. 77. See Barton II, pp. 195–196, by habeas corpus or otherwise from the civil State Bull., 448, 449 (1942)); United King for the cases decided under this agreement. court. See Goodhart, note 25, supra. dom-Ethiopia, January 31, 1942; United
46 See infra. 28 3 and 4 Geo. Vi, ch. 51.
Kingdom-Free French Authority, December 47 G. B. T. S. No. 44 (1948). 29 Under British law, a British serviceman 14, 1942. Similar agreements were concluded 48 Id., art. 4 (1). is subject to the jurisdiction of the civil by the United Kingdom on behalf of the Al 49 TIAS 2292, June 8, 1951, art. VIII. courts for offenses against the laws of Great lied Governments with those countries whose 60 Administrative Agreement under art. III Britain in time of war. See Goodhart, note Governments were in exile for the territory of the treaty, Feb. 28, 1952, art. XVII. 25, supra.
which was occupied by the enemy, Belgium, This agreement is effective pending ratifica30 Even this act with its limited grant of France, the Netherlands, and Norway (Bar tion of the instant agreement, but in any jurisdiction to the military courts was called ton II, pp. 203–204.)
event may now be reconsidered at the rea historic measure and a practical expedient 39 E. A. S. 235. This agreement was modi quest of Japan. to meet an obvious need. (190 L. T. 175–176). fied in 1950. See infra.
51 Agreement with the Republic of the 31 United States of America (Visiting 40 King I, pp. 553-555.
Philippines, TIAS 1775, art. XII, sec. 6, Mar. Forces) Order, 1942, S, R. & O. 1942, No. 966, 41 E. A. S. 235, art. IV.
26, 1947; Modification of Leased Bases Agreep. 844.
ment, TIAS, 2105, art. IV, sec. (1) (a) (i),
37 See supra.
similar to the instant agreement.52 Another their national courts and that it be informed agreement.59 As such, the treatment acequivocally provides that "depending on of the result of the proceedings.
corded to the question of criminal jurisdicinternational authority,” the United States "If the persons accused of misdemeanor tion over the visiting forces is the most shall have exclusive jurisdiction over of or crime committed on land are on duty, revealing demonstration possible of the atfenses committed by its troops in certain whether individually or collectively, in virtue titude of those nations toward the applicable specified areas.
of à concession, express or tacit, of the local principles of international law. Article 7 In time of peace, the Philippine agree authority, they shall, after their arrest, upon (2) of that agreement provides: ment gives the United States exclusive juris the request of the commander, be delivered "Members of a foreign force who commit diction over offenses committed on its bases over to him with the proces-verbaux stating an offense in the receiving state against the (except where the two parties are Philippine the facts, and with the request, if necessary, laws in force in that state can be prosecuted nationals or the offense is against Philippine that they be brought before their competent in the courts of the receiving state. security). Otherwise, the Philippine Repub national authority, and that the local au "When the act is also an offense against lic has concurrent jurisdiction over every thority be informed of the result of the the law of the sending state, the authorities other offense. Either party may waive its proceedings." 55
of the receiving state will examine with the jurisdiction, and in cases where the offense These resolutions were reproduced by the greatest sympathy any request, received be- . is committed in the line of duty, the Philip Institute of International Law at Stockholm fore the court has declared its verdict, for pines will notify the United States so that in 1928, and, although they do not appear the transfer of the accused for trial before it may exercise its jurisdiction. The agree to have ever been officially adopted by any the courts of the sending state. ments with respect to the leased bases and nation or nations, were relied upon by the "Where a member of a foreign force comthe Bahamas Long Range Proving Ground Court of Cassation in Egypt in 1942 in the mits an offense against the security of, or both provide that the United States shall case of Ministere Public v. Triandafilou.56 involving disloyalty to, the sending state or have exclusive jurisdiction over security and The significant feature of this code is that an offense against its property, or an offense United States interest offenses within the it does not apply to the members of the against a member of the force to which he. leased areas, but that there shall be con crew of friendly foreign warships any im belongs, the authorities of the receiving current jurisdiction everywhere else. Where munity for offenses committed ashore. state where the offense was committed will there is such concurrent jurisdiction the two
(2) The Latin American countries adopted prosecute only if they consider that special authorities will designate the court where the Bustamente code in 1928.57 This code considerations require them to do so. the offender is to be tried. The agreement provides:
"The competent military authorities of with the Dominican Republic provides for
"ART. 296. Penal laws are binding upon all the foreign force shall have, within the reconcurrent jurisdiction over offenses against persons residing in the territory, without ceiving state, any jurisdiction conferred Dominican nationals or local aliens outside
other exceptions than those established in upon them by the law of the sending state the sites. A mixed commission decides who this chapter.
in relation to an offense committed by a shall exercise the jurisdiction and in making
"ART. 297. The head of each of the con
member of their own armed forces." that decision is to consider whether the act tracting states is exempt from the penal laws
Even the most cursory reading of this proor omission constituting the offense occurred of the others when he is in the territory of
vision will show that in this agreement, in the line of duty. the latter.
France, Belgium, the Netherlands, Luxem(2) Multilateral Agreements "ART. 298. The diplomatic representatives
bourg, and the United Kingdom have recogThere have been two multilaterial agreeof the contracting states in each of the oth
nized no principle of absolute immunity, or ments which have been adopted by groups
ers, together with their foreign personnel, even any concept of "primary jurisdiction."
and the members of the families of the for Every offense committed in the territory of of nations, and one code suggested by the mer who are living in his company enjoy
the receiving state-those committed within Institute of International Law which has the same exemption,
the limits of the quarters of the visiting been relied upon by courts in deciding these questions.
force, those committed at a time when the None of these recognizes any
"ART. 299. Nor are the penal laws of the state applicable to offenses committed with
offender is on duty, those committed against principle of absolute immunity. (1) In 1898, the Institute of Internation in the field of military operations when it
a member of or the property of the force of al Law, a group of the world's leading inter authorizes the passage of an army of another
the sending state-is within the jurisdiction
of the receiving state which is obliged to national jurists, promulgated a code, entitled contracting state through its territory, ex“Regulations Concerning the Legal Status of cept offenses not legally connected with said
give "the greatest sympathy" to any request
for a transfer to the courts of the sending Ships and Their Crews in Foreign Ports,” 54 army.
state. which was designed to control the status of "ART. 300. The same exemption is applied
This is the most recent and most author. warships in both peace and war. It pro
to offenses committed on board of foreign vides: war vessels or aircraft while in territorial
itative expression imaginable by the coun"ART. 16. Crimes and offenses committed on waters or in the national air."
tries, other than the United States and the board these ships or on the boats belonging
remaining signatories, most directly conThis code has particular significance be
cerned with the jurisdictional provisions of to them, whether by members of the crew, cause it follows in precise order the strucor by any others on board, shall come under ture of Chief Justice Marshall's opinion in
the instant agreement. And in the most
unequivocal terms it is established that no the jurisdiction of the courts of the nation to the Exchange.58 But the code does not pro
principle of absolute, exclusive, or even priwhich the ship belongs and shall be judged vide the absolute immunity from jurisdicaccording to the laws of that nation, what tion which that opinion has been interpreted
mary jurisdiction in the sending state is ever be the nationality of the perpetrators or as requiring. Rather, it renders local laws
recognized by those countries. the victims. inapplicable only when the offenses are
Not one of the multilateral expressions on “Whenever the commander shall deliver committed within the field of military oper
the question recognizes any kind of absolute the delinquent over to the local authorities, ations and are legally connected with the
immunity. The bilateral agreements which the latter shall regain the jurisdiction which army.
appear to recognize such a principle are under ordinary circumstances would belong (3) By far the most important interna
readily understandable in terms of the relato them. tional agreement on this question which
tive positions of the parties in the then has been reached is that negotiated and
prevailing circumstances. It may categor
ically be stated that the instant agreement "ART. 18. If people from on board shall approved by the Brussels Treaty Powers, on commit violations of the law of the country December 21, 1949. Each of these powers,
gives, as much, if not more, “exclusive” jur
isdiction over its own forces to the sending on land, they may be arrested by officers of France, Luxembourg, the Netherlands, Bel
state as do comparable international agreethe authority of the country and given up to guim, and the United Kingdom, is a signatory
ments. local justice.
of the North Atlantic Treaty, and of the in"Notice of the arrest shall be sent to the stant
C. The Service Courts of Friendly Foreign commander of the ship, who cannot require Status of Members of the Armed Forces of
Forces Act them to be given up.
the Brussels Treaty Powers, is designated to Although there have been instances of the “If the delinquents, not having been ar accomplish the same purposes as the instant
passage of foreign troops through this counrested, shall return on board, the local au
try which might have raised the question.co thority cannot take them thence, but may 55 Arts. 16 and 18 relate only to peace
the only domestic legislation to cover this require only that they be handed over to time. The part devoted to time of war has
question of the jurisdiction to try members no comparable provision.
of such forces ever enacted was the Service Aug. 1, 1950; Bahamas Long Range Prov 56 Ann. Dig. (1919-42), p. 165. Colonel
Courts of Friendly Foreign Forces Act of
1944.61 It is uniquely revealing as to the ing Ground, TIAS 2099, art. V, sec. (1) (a) King takes issue with the court's use of this (i), July 21, 1950; Dominican Republic, art. code, in part because he maintains that
refusal of Congress to recognize any rule of XV, sec. 1 (a) (i), Nov. 26, 1951. Egypt was in a virtual state of war at the
absolute immunity to be accorded to friendly 52 Iceland, TIAS 2295, May 8, 1951, art. II. time. King II, pp. 258–260. But see Brin
53 Saudi Arabia, TIAS 2290, June 18, 1951, ton, The Egyptian Mixed Courts and Foreign 59 22 Dept of State Bull., Mar, 20, 1950, art. 13 (c). Armed Forces (40 Am. J. Int. L. 737).
449. 54 Scott, Resolutions of the Institute of In 57 IV Hudson, International Legislation 60 See Tucker v. Alexandroff (183 U. S. 424, ternational Law (1916), pp. 147-148 (Oxford (1928-29), 2279, 2323.
68 See infra.
61 22 U. S. C. secs. 701 et seq., 58 Stat. 643.
foreign forces from the criminal jurisdic And Senator McFarland stated:
ment. Moreover, it is clear that if there tion of our courts.
“As I understand the argument the Sen. were no agreement controlling the issue, our This act was designed to reciprocate for ator from West Virginia now makes and the forces abroad would, again, be entitled to the grant of jurisdiction to American mili argument he made before the Committee less immunity than the instant agreement tary courts over American forces in Great on the Judiciary, he would divest our courts affords. Where there were no agreements Britain given by that country in its United of what jurisdiction they may have to try the cases which have been decided by the States of America (Visiting Forces) Act, these cases. The majority of the commit- tribunals of the world show that practically 1942.62 Both the House and Senate commit tee were unwilling to do that. The ma the only situation where a claim of immutee reports contain the notes exchanged be- jority of the committee felt that the Fed nity has been given any recognition whattween the United States and British Govern eral Government had no right to divest State soever has been for offenses committed in ment, wherein the British Government terms courts of jurisdiction.
the line of duty, a category of offenses clearly its own action-granting the exclusive jur
covered by the instant agreement. isdiction—"a very considerable depar
* If [the service courts] have not
A. The Schooner Exchange 1 ture * * * from the traditional system and
jurisdiction, we do not have to give up the The opinion of Chief Justice Marshall of practice of the United Kingdom.” 63 The
defendants, we do not have to subpena wit the Supreme Court of the United States in Senate committee report contains the state
nesses, we do not have to do anything. And The Schooner Exchange is the principal basis ments that the proposed legislation "is of a
if they do not try the defendants, we can upon which rest those who claim that an temporary and conditional nature since its
try them ourselves. That is the difference. absolute exemption or immunity for friendly operation is revocable at the pleasure of the
But the Senator from West Virginia would armed forces from the criminal jurisdiction President as agent of Congress, under sec
pass legislation which would divest our of the receiving state exists. Certainly it is tion 6. This is an important feature of the
courts of jurisdiction. That is the only the basis for the numerous textbook writers At any rate, Congress is at liberty to
difference between the majority and the who have asserted the proposition. And repeal or amend at any time. able Senator from West Virginia.” 69
it is the cornerstone of Colonel King's legal “The committee do not concede that any The careful language of the committee structure. Although it presents no support foreign military court has more than condi
reports, the rejection of the Revercomb for the protagonists of the exclusive juristional jurisdiction while on our soil.” 64 amendment, and the statements of the diction contention, the frequency of its citaDuring the course of the debate in the
managers of the bill on the Senate floor tion requires that its language, rationale, Senate, Senator Revercomb maintained that indicate that the phraseology of the act, and decision be thoroughly analyzed. the pending bill was not clear as to the juris- which contains no definition of the juris In 1811 two American citizens filed a libel diction which the foreign-service courts diction of the foreign service courts nor any in the United States District Court for the would have and that the bill should be prohibition against the exercise of juris- District of Pennsylvania against the schoonamended to define that jurisdiction more diction by American courts, either State or er Exchange, then in the port of Philadelclearly.65 He stated that that bill was not
Federal, was a deliberate rejection by the phia. In this libel they alleged that they properly reciprocal to the British legislation, Congress of the concept that there is an were the true owners of the vessel, but that which had granted exclusive jurisdiction to absolute immunity accorded foreign forces on a previous voyage the ship had been the American-service courts in Great Brit
in a friendly state from the criminal juris seized by persons acting under Napoleon's ain.66 In reply, Senators Murdock and Mc diction of that state. It may therefore
orders. They prayed for a decree restoring Farland, who were in charge of the bill, stated be stated that the only domestic legislation
the vessel to them. At the instance of the flatly that the Senate committee had con which the Congress has considered dealing executive department, the United States atsidered and rejected the proposal that United with this subject has been based upon the
torney filed a suggestion that the vessel was States courts be divested of jurisdiction.R7 premise that there is no exclusive criminal then an armed French public vessel which Senator Murdock stated:68
jurisdiction in foreign service courts over had been forced to enter the port of Phila"I ask the Senator whether he wants to foreign friendly forces stationed in this delphia out of necessity for refreshments prohibit the jurisdiction of the Federal courts country.
and repairs. Affidavits were filed in the court and the jurisdiction of the State courts, as
verifying the commission of the captain.
III. JURISDICTION IN THE ABSENCE OF AN the parliamentary act prohibits the jurisdic
The circuit court reversed the dismissal of
AGREEMENT tion of the criminal courts in England. If he
the libel by the district court, which had wants to go that far, I think he should tell The instant agreement provides that of been based upon the ground that a friendly the Senate. That is one of the questions, as fenses against the security of one state, not public armed vessel is not subject to the orthe Senator recalls, which came before the punishable by the laws of the other, are dinary judicial tribunals of the country, so Committee on the Judiciary. By a majority within the exclusive jurisdiction of the first far as regards the question of title. The vote it was decided, I think rather emphatic state. Offenses by members of the sending opinion of the Supreme Court, reinstating cally, that we did not want to prohibit juris- state against the person or property of that the judgment of the district court, was writdiction on the part of our courts, but that all state or offenses committed in the line of ten by Chief Justice John Marshall. Bewe wanted to do was to implement whatever
duty are within the primary jurisdiction cause the language he used has been quoted jurisdiction
foreign-service courts the sending state. All other offenses are by so many courts and writers since, it will brought with them to this country, first, by within the primary jurisdiction of the re be set forth in relevant part below.73 power of arrest, second, by power of dealing ceiving state.ro with witnesses, and stop there.
The discussion in part II shows that in 11 The Schooner Exchange v. McFaddon (11
international agreements the nations have Cr. 116). “As I understand the Senator from West
not acted upon any hypothesis that visiting 72 The authorities are collected in King I, Virginia [Senator Revercomb], he wants to forces are entitled to immunity as a matter
544-546; Bathurst, American Jurisdiction deny criminal jurisdiction to the Federal and of right and that the most directly parallel
Over Friendly Foreign Armed Forces (23 Br. State courts of this country. The position
agreements recognize less immunity than
Yearbook of Int. L. 338, 339. (1946)). Two I take is that it is not necessary to go that
of the most eminent authorities quoted by far, nor do I want to go that far, nor do
Colonel King, however, expressly limit the I think Congress has the right to prohibit 69 And see remarks of Senator Connally, immunity to offenses committed in the line jurisdiction on the part of the State courts id., at 6497.
of duty or within the lines of the visiting over criminal matters.".
70 This use of "primary" and "exclusive" is forces. Lawrence, Principles of International quite correct. An offense against the secu Law (6th ed.) sec. 107, p. 246; Oppenheim,
rity of one state which is not an offense 1 International Law (4th ed.), sec. 445. 62 3 and 4 Geo. VI, ch. 51. See supra. against the laws of the other must neces 73 “The jurisdiction of courts is a branch
3 S. Rep. No. 956, 78th Cong., 2d sess.; H. sarily be within the sole jurisdiction of the of that which is possessed by the Nation as Rept. No. 936, 78th Cong., 1st sess.
first, that is, if any state has jurisdiction. an independent sovereign power. The juris64 S. Rept., supra, note 63, pp. 11–12. This jurisdiction, accordingly, is "exclusive." diction of the Nation, within its own terri
65 CONGRESSIONAL RECORD, volume 90, part 5, On the other hand, offenses against the laws tory, is necessarily exclusive and absolute; pages 6490, 6492. The Senator prefaced his of both states are within the concurrent it is susceptible of no limitation not imposed remarks by stating that under international jurisdiction of those states. See note 83, by itself. Any restriction upon it, deriving law, as recognized, as he thought by Ameri infra. Priority of this jurisdiction is, in validity from an external source, would im-. can law, but not by British law, the foreign turn, appropriately, termed "primary.” It ply a diminution of its sovereignty, to the service courts were entitled to exclusive should further be pointed out that under extent of the restriction, and an investment jurisdiction over their members. Ibid.
article VII, 8, an accused who has been of that sovereignty, to the same extent, in However, he later stated that his proposed tried by one state and acquitted, convicted that power which could impose such restricamendment had been carefully phrased so as or pardoned cannot be tried again for the tion. All exceptions, therefore, to the full not to use the words “exclusive jurisdiction.". same offense within the same territory. and complete power of a nation within its Id. at 6496-6497. Despite this explanation But nothing prevents the military authori own territories, must be traced up to the the amendment was rejected. Id. at 6498. ties of the sending state from trying a mem consent of the nation itself. They can flow & Id, at 6495-6498 passim.
ber of its force for breach of discipline, even from no other legitimate source. 67 Id. at 6491-6492.
though he has been tried for the same of “This consent may be either express or 68 Id. at 6492. fense by another state.
implied. In the latter case, it is less deter
(1) It is obvious that all the Court was criminal prosecution by the local authorities supports the rule that at least in times of called upon to decide was whether a friendly for rape or burglary. The proper soldier com peace, members of the crews of friendly forforeign warship was immune from attach- parison is rather to a member of the crew eign warships who commit offduty offenses ment from one claiming to be its owner. ashore who has committed an offense outside against the local law ashore are subject to This issue is quite different from that of his line of duty. And even Colonel King con the local criminal jurisdiction.14 As the the immunity of an individual soldier from cedes that the great weight of authority chief justice of New South Wales recently
stated in regard to the opinion: 15 minate, exposed more to the uncertainties doubt, a military force can never gain im "What the learned judge had in mind was of construction; but, if understood, not less munities of any other description than those
exercise of a jurisdiction which would preobligatory. The world being composed of which war gives, by entering a foreign terri vent the troops from acting as a force-somedistinct sovereignties, possessing equal rights tory against the will of its sovereign. thing analogous to preventing a ship of war and equal independence, whose mutual bene-' if his consent, instead of being expressed by from being in a position to act as such, infit is promoted by intercourse with each a particular license, be expressed by a general cluding interference by local courts with the other, and by an interchange of those good declaration, that foreign troops may pass
maintenance of discipline—not exercise of ofices which humanity dictates and its
through a specified tract of country, a dis jurisdiction over individual soldiers in rewants require, all sovereigns have consented tinction between such general permit and a spect of liabilities incurred or wrongs done to a relaxation, in practice, in cases under particular license is not perceived. It would perhaps out of all connection with their certain peculiar circumstances, of that abso seem reasonable, that every immunity which
Further, it would seem that the Chief Juslute and complete jurisdiction within their would be conferred by a special license, would respective territories which sovereignty conbe in like manner conferred by such general
tice, in speaking of the "waiver of all jurisfers. This consent may, in some instances, permit.
diction over the troops, during their passage" be tested by common usage, and by common
“We have seen, that a license to pass was referring to the waiver of the right of the opinion, growing out of that usage. A na through a territory implies immunities not territorial sovereign to exercise his own distion would justly be considered as violating expressed, and it is material to inquire, why
ciplinary jurisdiction, for the passage conits faith, although that faith might not be the license itself may not be presumed? It
tinues, "and permits the foreign general to expressly plighted, which should suddenly is obvious that the passage of an army
use that discipline, and to inflict those and without previous notice, exercise its through a foreign territory will probably be at punishments which the government of his territorial powers in a manner not consonant all times inconvenient and injurious, and army may require." 76 to the usages and received obligations of the would often be imminently dangerous to the
Finally, the Chief Justice expressly limited civilized world.
sovereign through whose dominion it passed. his remarks about the exemption of the for“This full and absolute territorial juris- Such a practice would break down some of eign forces to troops in passage.77 Comdiction being alike the attribute of every the most decisive distinctions between peace
pletely different considerations determine sovereign, and being incapable of conferring and war, and would reduce a nation to the the immunity which must necessarily attend extraterritorial power, would not seem to necessity of resisting by war an act, not passing troops on, as the Chief Justice evicontemplate foreign sovereigns, nor their absolutely hostile in its character, or of ex
dently envisioned it, a mission of urgency sovereign rights, as its objects. One soy posing itself to the stratagems and frauds and immediacy, perhaps never to return via ereign being in no respect amenable to an. of a power whose integrity might be doubt
that country, and troops stationed in a other; and being bound by obligations of the ed, and who might enter the country under friendly state in time of peace for an inde
terminate period. The path of troops en highest character not to degrade the dignity deceitful pretexts. It is for reasons like these that the general license to foreigners
route was, in Marshall's day, a narrow, clearly of his nation, by placing himself or its sovereign rights within the jurisdiction of to enter the dominions of a friendly power
defined avenue. Presumably, the path of the another, can be supposed to enter a foreign is never understood to extend to a military
march was completely within the control of territory only under an express license, or in force; and an army marching into the do
the troop commander. It might very well the confidence that the immunities belong minions of another sovereign may justly be
have been considered that such troops, in ing to his independent sovereign station, considered as committing an act of hostility;
transit, were constantly on duty. On the though not expressly stipulated, are reserved and, if not opposed by force, acquires no
other hand, today's troop locations are disby implication, and will be extended to him. privilege by its irregular and improper con
persed throughout the receiving state and “This perfect equality and absolute inde duct. It may, however, well be questioned pendence of sovereigns, and this common whether any other than the sovereign power 74 King, II, pp. 261-262; see infra. interest impelling them to mutual inter of the state be capable of deciding that such 75 Wright v. Cantrell (44 New South Wales course, and an interchange of good offices military commander is without a license."
State Reports, 45, 49 (1943), Ann. Dig., 1943with each other, have given rise to a class of (Pp. 138-140.)
45, pp. 133, 136). cases in which every sovereign is understood The Chief Justice then went on to point 76 11 Cranch. at 138. In Tucker V. Alexto waive the exercise of a part of that com out that, unlike armies, there was no prohibi androff (183 U. S. 424), the Court, in discussplete exclusive territorial jurisdictin, which tion against foreign armed war vessels en
ing the Exchange, appears to agree with this has been stated to be the attribute of every tering a friendly port without the express interpretation. It stated (p. 433): nation." (P. 135, et seq.)
consent of the sovereign. Further, a public “While we have no doubt that, under [the The first class of cases related to the armed ship constituted a part of the military Exchange), the foreign officer may exercise exemption of the person of the sovereign force of her nation, acting under the im
his accustomed authority for maintenance himself; the second to the immunity of for
mediate and direct command of the sovereign of discipline, and perhaps arrest a deserter eign ministers. and was employed by him on national ob
dum fercet opus, and to that extent this “Third. A third case in which a sovereign jects. Consequently
country waives its jurisdiction over the foris understood to cede a portion of his terri
“The implied license, therefore, under
eign crew or command, yet if a member of torial jurisdictions, where he allows the which such vessel enters a friendly port,
that crew actually escapes from the custody troops of a foreign prince to pass through his may reasonably be construed, and it seems
of his officers, he commits no crime against, dominions. In such case, without any exto the court, ought to be construed, as con
the local government, and it is a grave quespress declaration waiving. jurisdiction over taining an exemption from the jurisdiction
tion whether the local courts can be called the army to which this right of passage has of the sovereign, within whose territory she
upon to enforce what is in reality the law of been granted, the sovereign who should at claims the rites of hospitality. (P. 143.)
a foreign sovereign." tempt to exercise it, would certainly be con
And the four dissenting Justices stated sidered as violating his faith. By exercising "Without doubt, the sovereign of the place (183 U. S. at 459): it, the purpose for which the free passage was is capable of destroying this implication. He "That rule, waiving the jurisdiction of the granted would be defeated, and a portion of may claim and exercise jurisdiction, either United States over a body of men, and allowthe military force of a foreign independent by employing force, or by subjecting such ing them to be governed, disciplined and nation would be diverted from those national vessels to the ordinary tribunals. But until punished by their own officers, applies only objects and duties to which it was applicable, such power be exerted in a manner not to to an armed force, segregated from the genand would be withdrawn from the control of be misunderstood, the sovereign cannot be eral population of the country, and lawfully the sovereign whose power and whose safety considered as having imparted to the ordi.. passing through or stopping in the country might greatly depend on retaining the exclu nary tribunals a jurisdiction, which it would for some definite purpose connected with sive command and disposition of this force. be a breach of faith to exercise. Those gen military operations." The grant of a free passage, therefore, im eral statutory provisions, therefore, which 77 This language was repeated in a gratuiplies a waiver of all jurisdiction over the are descriptive of the ordinary jurisdiction of tous dictum in Coleman v. Tennessee (97 troops, during their passage, and permits the the judicial tribunals, which give an indi U. S. 509, 516) and was uncritically expanded foreign general to use that discipline, and to vidual whose property has been wrested from by Justice Field to include troops stationed inflict those punishments which the govern him, a right to claim that property in the in a friendly country in Dow v. Johnson (100 ment of his army may require.
courts of the country in which it is found, U. S. 158, 165). Both Coleman and Dow “But if, without such express permit, an ought not, in the opinion of this court, to be were concerned with the completely differarmy should be led through the territories of so construed, as to give them jurisdiction ent issue whether a hostile occupying force a foreign prince, might the jurisdiction of in a case, in which the sovereign power has was immune from the jurisdiction of the the territory be rightfully exercised over the impliedly consented to waive its jurisdic local courts. See also Hamilton v. Mc-, individuals composing this army? Without tion." (P. 144.).
Laughry (136 Fed. 445 (D. Kans., 1905)). XCIX -551
place the individual soldiers in necessary diction over offenses committed by its mem ing American Armed Forces would be endaily contact with the local residents. The bers that it is a violation of international titled to immunity from the local criminal control which the commanding officer has law for states to attempt to agree otherwise, jurisdiction in the absence of an express over every individual action of the troops is In the first place, as has been shown, there agreement covering the issue. The Chief naturally far less than that exercised over is no such uniformity in the agreements Justice and Mr. Justice Hudson answered troops on the march, or quartered in a tem reached among the nations. In the second, that there was no principle in Canadian law porary camp for the night. Completely dif it is an unquestioned principle of interna which deprived the Canadian courts of jurisferent problems pertaining to criminal jur tional law that this jurisdiction, whatever diction in respect of offenses against local isdiction over the members of the forces it may be, can be waived.82 What may be law committed by the foreign forces against necessarily arise out of these different waived by a state on a case-by-cases basis, local law, although Canadian courts in fact circumstances.
a fortiori may be waived in negotiating an did not exercise jurisdiction in respect of acts The rule of absolute immunity which, it agreement to cover any case which will committed within the lines of such forces or is contended, flows from the Marshall opin arise.83
of offenses against discipline generally comion, was summarily rejected in the only re Whatever may be the limitation to be mitted by one member of the forces against ported American case which research has found in international law upon the im
another in cases in which the act or offense disclosed was squarely concerned with such munity which visiting forces may have where did not affect the person or property of a a claim of immunity. In United States v. there is no agreement regulating the re Canadian subject. Mr. Justice Rand held Thierichens,78 a German war vessel had been spective jurisdictions to try criminal offenses that members of the United States forces interned during but prior to our entry into. committed by those forces, it is clear that were exempt from Canadian criminal prothe First World War in Philadelphia. The this immunity and its qualifications have no
ceedings for offenses committed in their master of the vessel was indicted on two bearing upon the terms of an express agree camps or on their warships except against counts of smuggling and one of violating the ment between the states concerned to define persons not subject to United States service Mann Act. He claimed that as a member those jurisdiction. Reliance upon the EC law or their property, or for offenses under of a friendly foreign war vessel he was en change for any guiding rule of international local law wherever committed, against memtitled to full immunity from local criminal
bers of their own forces, their property and law is misplaced, where the question is what prosecution, and moved to quash the indict. the terms of an international agreement
the property of their Government, but the ments. The district court, apparently asshould be.
exemption was only to the extent that United
States forces exercised jurisdiction over such similating the defendant to the status of a B. Cases in the tribunals of the world
offenses. Two Justices, Kerwin and Taschemember of a crew of a friendly foreign war
Since the decision in the schooner Exship, completely rejected the claim. On the
reau, thought that the American forces change, the tribunals of the world have con would be completely immune from local smuggling counts the court held that there
sidered claims of immunity from local crim criminal jurisdiction. was nothing to show that the defendant was
inal jurisdiction in a variety of situations, The Mixed Courts of Egypt have faced this acting in the line of duty, and as to the
including case which arose where there was Mann Act count, "even a discussion of the
problem in a long series of cases.86
It was application of the rule would be lending dealing with this issue.
no agreement between the nations concerned the definite and unequivocal conclusion of
In this class of that court, after careful consideration of dignity to an absurdity." cases, not one of any significance resulted
the arguments on both sides of the question, (2) More important, however, than the
in the grant to a member of a visiting force that there is no principle of international distinctions which can be drawn and the of immunity from the local jurisdiction law which accords absolute immunity. 87 qualifications upon the immunity which
where the same result would not obtain In Wright v. Cantrell,88 the Supreme Court must be read to give the opinion meaning under the instant agreement. And several of New South Wales was faced with the quesis its rationale. Those who make the claim
denied the claim where it would have been tion whether a British naval officer could be that there is a rule of international law of
granted had this agreement been effective. sued for slander by a master mariner in the exclusive jurisdiction 79 in the sending state's At least the Supreme Court of Canada, the employ of the United States Army.
In reauthority over criminal offenses committed
Court of Cassation of the Mixed Courts of jecting the defense of immunity from suit, by its members have failed to note that the
Egypt, the Supreme Court of New South the court analyzed substantially all the ma-, Exchange was decided upon implications
Wales, the British High Court of Justice, terials dealing with the subject and the court and presumptions in the absence of a treaty
and the United States District Court for the concluded that the doctrine of complete im. or agreement between the sovereigns upon
Eastern District of Pennsylvania have con munity is not only completely lacking in the issue. The opinion makes quite clear
sidered and expressly rejected the contention what has been described [as] the hallmarks that the immunity may be waived by mu
that, absent an agreement among the na of general assent and reciprocity, but is also tual consent, or even by unilateral action of
tions concerned, visiting friendly forces are inconsistent with the implications of local the receiving country.80 The entire opinion
entitled to absolute immunity from the legislation. is built upon a structure of implications
criminal jurisdiction of the host state. which are effective only where there are no
The British High Court was faced with the
In Reference Re Exemption of U. S. Forces same contention in 1942. A Czech soldier express agreements to the contrary. As the
From Canadian Criminal Law,85 this pre stationed in Britain with the Czech forces, Chief Justice stated : 81
cise question was referred by the Governor after being reprimanded by a superior offi"The preceding reasoning, has maintained
General of Canada in Council to the Supreme cer, attempted to commit suicide in his the propositions that all exemptions from
Court of Canada: the extent to which visit barrack room. He succeeded in wounding territorial jurisdiction, must be derived from
himself and another, and killing a third the consent of the sovereign or the territory; that this consent may be implied or ex
82 See e. g., The Exchange, supra, passim;
Czech subject.89 The defense contended that pressed; and that when implied, its extent Chung Chi Cheung v. The King  A. C.
as the offense was committed in the bar. must be regulated by the nature of the case, 160; French State v. Pratt (Ann. Dig., 1919
rack room and involved matters concerning and the views under which the parties re22, p. 332).
discipline, the offense was one over which
British courts had no jurisdiction. quiring and conceding it, must be supposed
83 The use of the term "primary jurisdicto act." tion" in the instant agreement is a more ac
court rejected even this limited statement curate way to describe the power of the
of the principle, saying that the claim was Accordingly, the receiving state may derespective states than the term "exclusive
“much wider than * * mand any conditions it wishes before it will
was real law upon permit the friendly troops upon its soil. If jurisdiction.” "Exclusive jurisdiction" im
the subject.” It then held that the offense these conditions are not satisfactory to the
plies that the offender can be tried by one sending state, it need not send the troops
state and one state only. Yet, it is clear 86 These cases are discussed by Judge Brinat all. This is a function of bargain and ne
that the jurisdiction of any state can be ton, president of the court of appeals, Mixed gotiation. To say that there is a rule of in
"waived." Merely "waiving” jurisdiction Courts of Egypt, in two articles, The Egyptian ternational law that friendly foreign forces
could not of itself confer jurisdiction upon Courts and Foreign Armed Forces (40 Am. J. have exclusive jurisdiction over their own
another state. That state must have had Int. L. 737 (1946)), and Jurisdiction Over forces does no more than to state what the
jurisdiction, which, by virtue of the agree Members of Allied Forces in Egypt (38 Am, situation might be were there only an un
ment, it was restrained from exercising. J. Int. L. 375 (1944)). The second article qualified assent to the admission of those
Language which places the two states on a effectively answers the criticisms of the detroops to the receiving state. It plays no part
relative, rather than an absolute basis, is, cisions in those cases by Colonel King (King
accordingly more apt. in determining what the status of those
II). forces is where an agreement has been
84 The cases must of course be read in the 87 See Malero Manual v. Ministere Public reached on that question. For that is the
light of which court it is which is consider (39 Am. J. Int. L. 349 (1943)); Gaitanos v. very function of the agreement.
ing the claim. A military court which Ministere Public (Ann, Dig., 1919-42, p. Nor can it be maintained that there exists
states that a defendant before it is com 169); Ministere Public v. Tsoukharis (Ann. such a firm understanding among the states
pletely immune from local criminal jurisdic Dig., 1943-45, p. 150); Anne and Others v. that friendly forces will have exclusive juris
tion is obviously deciding a vastly different Ministere Public (Ann. Dig., 1943-45, p. 115). question than a civil court which is de The remaining cases will be found in the ar
termining whether a member of a foreign ticles cited n. 86, supra, and in Barton II. 78 243 Fed. 419 (E. D. Pa., 1917).
force before it may be prosecuted for viola 88 44 New So’ith Wales State Reports 45, 79 See Bricker reservation, supra.
tion of the laws of the host state. Cf. In re (Ann. Dig., 1943-45, p. 133). 80 11 Cranch at 144. Poliment, infra.
89 Rex v. Navatril (Ann. Dig., 1919-42 81 Id. at 143.
$(1943) S. C. R. 483, (1943) 4 DLR 11. (Supp.), p. 161).