Therefore I have come to the conclusion that it is better to have the treaty, with what the Committee on Foreign Relations now states as the interpretation of the consent and ratification, than it is to have our personnel in foreign lands, as at present, subject to no jurisdiction except the will of a foreign nation.

Mr. KNOWLAND. Mr. President, will the Senator from Michigan yield? Mr. FERGUSON. I yield. Mr. KNOWLAND. In view of the fact that in his previous letter to me the Secretary of Defense referred to his letter to the senior Senator from Ohio [Mr. TAFT), I should like to read the letter from the Secretary of Defense to the senior Senator from Ohio, as follows: THE SECRETARY OF DEFENSE, Washington, June 23, 1953.

Hon. ROBERT A. TAFT,

United States Senate.

DEAR SENATOR TAFT: As you know, the Senate Foreign Relations Committee is now conducting hearings on the treaty to regulate the status of our forces stationed in the

NATO countries. Ratification of this treaty is important to this Department from the purely military point of view. It will provide a modus vivendi for our soldiers in Europe, since it clearly establishes and safeguards their rights and duties. It makes the problem of adjustment to living in a foreign country on good terms with its population much easier.

Recent cables on the subject from General Ridgway, Admiral Carney, and General Norstad urged immediate ratification. These cables (copies of which are attached) indicate that failure to ratify the agreement at this session of Congress would

(a) Have an adverse effect on the entire United States military position in Europe;

(b) Impede present negotiations for United States operating rights in NATO countries; (c) Undermine existing good interim arrangements concerning status of forces;

(d) Show United States lack of confidence in the good faith and intelligence of its allies;

(e) Seriously impair the effectiveness of American leadership; and

(f) Set the United States back considerably in providing for our operating effectiveness and for the well-being of American forces overseas.

I also wish to point out that failure of ratification at this session would require the negotiation of further interim arrangements. For example, we have no formal arrangements covering United States forces which are or might be stationed in Norway, Denmark, Italy, (except for the line of communications), Greece, Turkey, Belgium, the Netherlands, and Portugal.

Negotiation of interim arrangements that are as advantageous as the NATO Status of Forces Agreement will be very difficult. A number of countries have already stated that they cannot legally guarantee as many of the benefits of the Status of Forces Agreement, prior to its ratification, without separate legislation, which would be very difficult to obtain.

I believe that your strong support of this treaty is essential to guarantee favorable action. I am prepared to make available any additional witnesses necessary to assure Senate support of the aims and objectives of this treaty and to achieve early as possible ratification.

Sincerely yours,

C. E. WILSON.

I cannot stress to strongly the urgency, as described by officials of the Department of State and the Depart

tion of the treaties without the disabling reservation which would send them back for renegotiation.

Mr. FERGUSON. I am satisfied that if the Bricker reservation, or at least a substantative change in language and in the intent of the treaty, were included, the intent of the treaty, were included, renegotiation would be required. Therefore, would it not be better to accept the treaty with the safeguards it contains, with the proceedings it requires our commanding officers to follow, in giving notice to the Department of State, and what it requires the President to do, through the Secretary of State, by giving notice to Congress, rather than to allow the matter to remain wide open, with the right of any of the nations to do as they saw fit under their criminal laws?

Each and every Senator is called upon to perform his duty. As I see my duty. today, it is to vote for this treaty. From what I have learned from our military authority, including messages I have read from several officers and the Secretary of State, I believe it would be much better for the United States to ratify the treaty without the proposed reservation.

Mr. President, I ask unanimous consent to have printed in the RECORD at the end of my remarks a statement I have prepared entitled "Immunity of Friendly Foreign Forces Under International Law."

The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.)

Mr. HENDRICKSON. will the Senator yield?

Mr. President,

Mr. FERGUSON. I am glad to yield. Mr. HENDRICKSON. I am certain the Senator from Michigan is aware of the fact that under the bilateral agreements the United States experienced some unhappy situations abroad.

Mr. FERGUSON. Under what are known as the bilateral or executive agreements.

Mr. HENDRICKSON. Executive agreements, yes.

Mr. FERGUSON. Yes, I think that is true, because there was such uncertainty that no one knew exactly what might happen.

Mr. HENDRICKSON. Does the Senator from Michigan feel that this treaty will improve the situation?

Mr. FERGUSON. I believe it will. Mr. HENDRICKSON. In other words, it is the lesser of two evils?

Mr. FERGUSON. That is how I view the situation. Our troops are now abroad without any agreements except the bilateral agreements, which are, at best, executive agreements, and are not as certain or definite as the treaties. Mr. HENDRICKSON. I thank the Senator.

EXHIBIT 1

IMMUNITY OF FRIENDLY FOREIGN FORCES UNDER INTERNATIONAL LAW

The argument in favor of the immunity of friendly forces stationed in another country usually begins with the opinion of Chief Justice Marshall in the schooner Exchange case. (The Schooner Exchange v. McFaddon and others (7 Cr. 116).) That case is largely irrelevant. It did not involve troops at all; it involved a French warship which had put

into Philadelphia under stress of weather, and the point which it decided was that the vessels of foreign sovereigns are exempt from the jurisdiction of local courts.

Obiter dictum, however, the Chief Justice took occasion to discuss other immunities, and one of those he mentioned was that of "the troops of a foreign prince." If another sovereign exercised jurisdiction over these troops, Marshal said, "the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops, during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require."

Overlooking for the moment the fact that this is dicta pure and simple and that it has been magnified out of all proportion to its original importance, let us examine exactly what it was Marshall said. He spoke of "the free passage" of troops and the "waiver of all jurisdiction over the troops, during their passage." This has to do with the movement of troops, somewhat analogous to the shipment of goods in bond from one country to another through the territory of a third. Marshall could not, in 1812, have conceived of a situation in which large numbers of troops would be stationed for long periods of time in the territory of friendly foreign powers under a multilateral agreement for mutual defense.

Friendly armed forces can enter a foreign territory only with the consent of the sovereign of the territory which they enter. Chief Justice Marshall held that the act of consent implied a waiver of jurisdiction. However, he recognized that "without doubt, the sovereign of the place is capable of destroying this implication."

In other words, the receiving state may, if it wishes, attach conditions to its consent and among these may be something less than a complete waiver of jurisdiction. The NATO countries have chosen to attach a condition.

The reason that Marshall gives for clothing the troops with immunity is that it implies "permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require."

This suggests a distinction between the jurisdiction of the foreign general, in order to maintain discipline, and the normal territorial jurisdiction of the state through whose territory the troops are passing. Ordinarily, a nation will allow only its own courts to exercise any sort of jurisdiction within its territory; but this exclusive jurisdiction is waived to the extent that a friendly foreign force is allowed to exercise jurisdiction over its own members. This privilege, however, does not preclude the receiving state from also exercising the jurisdiction inherent in its territorial sovereignty. The authorities recognize this distinction, as I shall show in a moment, and so does the Status NATO of Forces Treaty.

The Marshall dictum of the schooner Exchange case was cited with approval by Mr. Justice Field, also obiter, in two Civil War These cases decided by a divided Court. were Coleman v. Tennessee (97 U. S. 509) and Dow v. Johnson (100 U. S. 158). The first concerned the criminal jurisdiction of the courts of Tennessee over a member of the occupying Union army. The second concerned the civil jurisdiction of the courts of Louisiana over a Union officer during the occupation. Both cases arose during time of war and are obviously irrelevant to peacetime.

The Supreme Court again discussed the question of jurisdiction over foreign troopsand again it was obiter dictum-in Tucker v. Alexandroff (183 U. S. 424). This case, decided in 1901, involved the interpretation of an 1832 treaty with Russia and the question of whether or not American courts could return to the Russian authorities a deserter from the Russian Navy. This is a vastly different question from that which is involved in the reservation of the Senator from Ohio.

These four cases which I have cited are the only decisions of the United States Supreme Court which touch on the question before us. They are all irrelevant to that question, and are not at all persuasive.

Friendly foreign troops have rarely been in the United States in large numbers or for long periods; so it is not surprising that the question has not arisen directly. Let us, however, examine also the rulings of foreign courts and of international tribunals as well as the international agreements which we have heretofore entered into with other nations and which other nations have made between themselves.

The only conclusion which can logically be drawn from such an examination is that there is no general recognition of a complete immunity, under international law, of friendly foreign forces from the jurisdiction of local courts.

Without exception the cases cited by writers who argue that there is a complete immunity were limited to narrower issues. One of the cases, for example, Chung Chi Cheung v. The King, involved a crime committed on board a Chinese maritime customs cruiser in the territorial waters of Hong Kong. Another (the Casablanca case before the Permanent Court of Arbitration at the Hague) concerned the relative rights of two powers, France and Germany, both of whom enjoyed extraterritoriality, by treaty, in Morocco. A third case, Republic of Panama v. Schwartzfiger, concerned an act committed on duty. So did the cases of Amrane v. John, decided in Egypt, and In re Gilbert, decided in Brazil. Other cases arose from World War I and are not applicable.

A number of decisions were handed down by the mixed courts of Egypt during World War II which are relied upon to sustain the case for immunity but which in fact point the other way. These decisions, in general, admit the immunity of the visiting soldier or sailor from the jurisdiction of the local courts and the exclusive jurisdiction of the court-martial of his own service over him when in his camp or on his ship, but hold that when absent therefrom the immunity exists only when he is carrying out orders.

ATTITUDE OF BRITISH GOVERNMENT

The advocates of complete immunity for visiting foreign forces also frequently cite the large number of World War I agreements which provided such immunity. But the fact that the agreements were designed to handle a wartime situation makes them obviously inapplicable to our present problem. It is interesting, however, to note the position taken by the British Government even during the war. That position, as stated on September 11, 1917, was that organized bodies of United States troops in Great Britain had extraterritoriality "within the limits of the quarters occupied by them." Outside their quarters they were "liable to be dealt with by the English criminal courts for any offenses against the English criminal law but could not be apprehended for any purely military offense (such as desertion, absence without leave, etc.) either by their own or the English military police or by the civil police." This rather extreme view was later modified somewhat but not to the extent of granting complete immunity from English courts.

In the Allied Forces Act of 1940, the British Parliament expressly recognized the con

current jurisdiction of British civil courts over the personnel of visiting forces and admitted the jurisdiction of Allied military courts only "in matters concerning discipline and internal administration." Section 2 (3) of that act specifically forbade Allied courts-martial to have jurisdiction of certain cases.

It was under this act that the first American troops arrived in the British Isles during World War II. A separate British-American agreement, giving American authorities exclusive jurisdiction over American troops, was later reached and effectuated through an exchange of notes and an act of Parliament. The British note speaks of "the very considerable departure which the above arrangements will involve from the traditional system and practice of the United Kingdom." And in the debate in the House of Commons, members referred to the bill as a "striking innovation" and as being "of a completely revolutionary character."

This is the act which Parliament has recently repealed, so that we are going to lose our exclusive jurisdiction over American military personnel in the United Kingdom, whether or not we ratify this treaty and whether or not we attach the proposed reservation to it.

CANADIAN ATTITUDE

The Canadians have taken a view similar to that of the British. In the foreign forces order of 1941, Canada gave foreign courtsmartial jurisdiction over matters concerning discipline and internal administration, but forbade them to try any case of murder, manslaughter, or rape. Local criminal courts were given concurrent jurisdiction with respect to other offenses.

This order was extended to United States forces in Canada in 1942. In April 1943 it was amended to except United States courtsmartial from the prohibition against trying murder, manslaughter, or rape cases; and in December 1943 a new order was issued giving the United States exclusive jurisdiction in cases where it was requested.

In the meantime, however, the Canadian Government asked the Canadian supreme court for an advisory opinion on whether or not visiting forces possessed immunity under international law and, if they did not, the extent to which the Canadian Government could grant immunity.

Two justices of the court said international law conferred complete criminal immunity.

Two justices said that in the absence of legislation, friendly visiting forces in Canada enjoy no exemption from the criminal jurisdiction of the local courts.

One justice said that members of United States forces were exempt from Canadian criminal jurisdiction as to offenses committed in their camps or on their ships, except such offenses as were committed against Canadians or their property, and only to the extent that United States courtsmartial exercised jurisdiction over such offenses.

All justices agreed that the Canadian Government could grant such additional immunity as it desired.

In the case of Australia, an order in council of December 17, 1941, restricted the courts martial of foreign forces to "matters concerning discipline and internal administration" and contemplated the concurrent jurisdiction of local courts over foreign military personnel. This order was subsequently amended to allow the United States military authorities to exercise exclusive jurisdiction, on request, over American personnel.

In the leading Australian case on the point Wright v. Cantrell, the Supreme Court of New South Wales held that the host country must be deemed to waive in favor of the allied forces any provisions of its laws inconsistent with the purpose of their visit and to

concede to its officers all authority necessary to maintain discipline, but the Court denied the existence of complete immunity of visiting forces.

The Bustamente Code, annexed to the Convention on Private International Law adopted by the Sixth International Conference of American States in Havana in 1928, provides, in article 299:

"Nor are the penal laws of the state applicable to offenses committed within the field of military operations when it authorizes the passage of an army of another contracting state through its territory, except offenses not legally connected with said army."

The most pertinent international agreement, however, is the status of forces agreement among the Brussels Treaty powers of Europe. This multilateral agreement, designed to meet a situation much like that in NATO, recognizes the jurisdiction of the receiving state.

The preponderance of the cases, the international agreements, and the statements of authoritative writers suggest that internaional law does not provide complete immunity to members of visiting friendly forces although it does provide for some waiver of local jurisdiction. What is the extent of this waiver?

Let us answer that question by considering, first the nature and extent of territorial sovereignty and jurisdiction.

"The jurisdiction of courts," said Chief Justice Marshall in the Exchange case, “is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation, within its own territory is necessarily exclusive and absolute; it is susceptible of no limitation, not imposed by itself."

"That the service courts of a friendly foreign force on local territory are entitled as of right to exercise jurisdiction over members of those forces is undoubted. This includes the right to try a member of those forces for offenses against the local law. But it has not yet been established that this right carries with it the right to exercise exclusive jurisdiction over members of those forces who commit offenses against the local law. On the contrary, it has been shown that there exists a rule of international law according to which members of visiting forces are, in principle, subject to the exercise of criminal jurisdiction by the local courts and that any exceptions to that general and far-reaching principle must be traced to express privilege or concession." (Foreign Armed Forces: Immunity from Criminal Jurisdiction, G. P. Barton; the British Yearbook of International Law, p. 234.)

Thus, Oppenheim, perhaps the leading authority in the field of international law, wrote (International Law, pp. 759-760):

"Whenever armed forces are on foreign territory in the service of their home state, they are considered exterritorial and remain, therefore, under its jurisdiction. A crime committed on foreign territory by a member of these forces cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of their home state. This rule, however, applies only in case the crime is committed either within the place where the force is stationed or in some place where the criminal was on duty; it does not apply, if, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the fortress, not on duty but for recreation and pleasure, and then and there commit a crime. The local authorities are in that case competent to punish them."

And Lawrence says (Principles of International Law, p. 246):

"In the absence of special agreement the troops would not be amenable to the local law, but would be under the jurisdiction and control of their own commanders, as long as

they remained within their lines or were away on duty, but not otherwise."

A Brazilian work makes substantially the same point (Principios de Direito Internacional, p. 161):

"The special permission for foreign military forces to pass through the national territory or remain for a time within it includes virtually the exemption of these forces from territorial jurisdiction. * * * The exemption, however, from the territorial Sovereignty limited by their raison d'être includes only that which concerns the command, direction and discipline of the forces."

Mr. SMITH of New Jersey. Mr. President, I shall speak very briefly, and shall ask to have printed in the RECORD a number of documents relating to the subject.

I shall speak first on the Japanese situation, and endorse what the chairman of the Committee on Foreign Relations and other Senators have said in support of advising and consenting to the ratification of the three treaties.

I should like to add a few words, if I may, about the relationship of the Status of Forces Agreement to Japan. As the present chairman of the Subcommittee on Far Eastern Affairs of the Foreign Relations Committee, and as a member of that subcommittee in the last Congress, I have devoted special attention to the situation in Japan and to the problems connected with the stationing of our troops there.

Parenthetically, I may say that earlier today I attended a meeting at the Department of State in commemoration of the opening of Japan by Admiral Perry on his famous visit to that country 100 years ago. I take this occasion to commend the Japanese people on that important occasion.

American troops entered Japan as conquerors at the end of the war and remained as occupation forces until the Japanese peace settlement was consumImated last year. We gave up our occupation rights at that time, but we must keep our troops in Japan not only to support the United Nations operations in Korea but also to defend Japan against aggression, if that should become necessary.

This was provided for by the bilateral security pact with Japan, which we ratified last year, and by the administrative agreement negotiated under it.

This administrative agreement contained two provisions which are pertinent to the present discussion:

First, American military authorities for the time being were to have exclusive over American criminal jurisdiction troops.

Second, if the status of forces agreement had not become effective within 1 year, the United States, at the option of Japan, would consider criminal jurisdiction.

The administrative agreement became effective April 28, 1952, and thus the 1year period provided for ended on April 28 of this year, without the status of forces treaty having become effective. On that day, Japan exercised its option under the administrative agreement and asked the United States to renegotiate the criminal jurisdiction provisions. We have agreed to renegotiation, as we were bound to do under the terms of the

agreement. Today we are in a situation of renegotiating with Japan unless this NATO treaty goes through.

We are thus confronted with a critical problem, which I believe would be largely solved by prompt ratification of the status of forces agreement.

No nation likes to grant extraterritorial rights to another, Mr. President, and that is particularly true in the Far East were extraterritoriality was imposed upon China for so long by Western powers. We voluntarily relinquished those rights during World War II and thereby made many friends in the Orient.

After almost 7 years of an enlightened occupation of Japan, we concluded last year a treaty of peace which is unparalleled in history as an act of generosity of the victor toward the vanquished. It was truly negotiated-by the man who is now Secretary of State, John Foster Dulles-"with malice toward none; with charity for all."

satisfied with the treaties from their point of view and have asked for early ratification.

The Senator from Michigan [Mr. FERGUSON] has just pointed out the further reservations or interpretations which the Senator from Ohio [Mr. TAFT] proposed, and which have been approved by the Department, and have also been approved by the Foreign Relations Committee.

I have gone into this much detail concerning Japan, Mr. President, because of my long interest in that area and because I thought the Senate should be aware of exactly what the situation is.

Mr. President, in the remainder of the statement which is before me, I go into the other points of the treaty, so far as Europe is concerned. I ask unanimous consent that the remainder of my statement be printed in the RECORD at this point as a part of my remarks.

There being no objection, the remainder of the statement was ordered to be printed in the RECORD, as follows:

But there are equally compelling reasons for prompt ratification of the pending treaties from the point of view of our interests in Europe, and I would like now to discuss some of those reasons as they relate

The extraterritoriality which our troops enjoy in Japan, howeven, acts as a constant irritant in our relations with the Japanese people, and this is true regardless of how well-behaved our troops might be.

What the Japanese are interested in is equality of treatment in accordance with the pattern established established for NATO. From the point of view of justice and equity, it would be difficult to deny them that equality. From the point of view of our own objectives in the Far East, it would be impolitic to do so. From any point of view, the sooner we ratify the status of forces agreement the better for our relations with Japan.

It is not, however, a step to be taken lightly. Although the Japanese have westernized and democratized their government since the end of World War II, their social customs and many of their laws are unlike anything known in the Western World. We are therefore naturally anxious to provide all the safeguards possible for any American troops who might be tried in Japanese or in other foreign courts. I am satisfied, Mr. President-and the committee is satisfied-that that has been done.

As the chairman of the committee pointed out, the jurisdiction of foreign courts over American personnel is limited to offenses committed off duty and not against another another American soldier, civilian employee, or dependent. Furthermore, a number of procedural safeguards are specifically required— such as, for example, the right to a prompt trial; the right to know the charges, to be confronted with witnesses, and to subpena witnesses; and the right to counsel and an interpreter. I am sure there need be no concern on the part of the Senate or of the American people. Our military authorities are

are before the Senate. These agreements together define the legal status of the organizational entities of NATO-that is, the Organization itself, the North Atlantic Council and its subsidiary bodies, the international staff, and the international military headquarters. The agreements are supplementary to the North Atlantic Treaty and are logical outgrowths of it. They might almost be said to be in the nature of housekeeping arrangments for the North Atlantic Treaty Organization.

As such, they will make the housekeeping chores of NATO a good deal easier and will eliminate a considerable amount of the paper work that is the curse of the Organization. The agreements will standardize and simplify fit of NATO and the member countries withadministrative procedures to the great beneout interfering with the essential rights of any member.

They will make it possible for the organs of the North Atlantic Treaty Organization to function as truly international entities. The benefits flowing from this arrangement will accrue directly to NATO itself. The individual member countries of NATO will be benefited indirectly in that it is in the interest of each of them that NATO function as smoothly as possible.

Member countries will also be affected, of course, by the new relationships which the agreements establish between a headquarters or a civilian body and the country in whose territory it is located. Most of these groups are in Europe. The only ones in the United States States are the military representatives committee and the standing group, housed in the Pentagon, and the Supreme Allied Commander, Atlantic, and the commander in chief western Atlantic area, both of which use the same naval facilities in Norfolk.

The separate provisions of these agreements, taken by themselves, are largely routine and technical and require no extended discussion. It is the total effect which is important. What the agreements will do is to advance the concept of an integrated defense which is at the heart of the NATO idea, If and which Congress has insisted upon. NATO is to operate efficiently as a truly international body, it must obviously be given the status and powers that will make it possible for it to do so. It must, for example, have juridical personality, and it

must have the immunities from national interference that are commonly given to international organizations.

There are, however, two specific points in the agreements which I believe should be explained to the Senate in some detail.

The first of these is taxation of international staff members. In keeping with the international character of the NATO staff, the salaries which members of the staff receive from the Organization are made immune from taxation. There is also a provision, however, that any member state may conclude an agreement with the Organization under which that state will itself employ and pay any of its nationals assigned to NATO. The United States had made such an arrangement and is collecting taxes on the salaries of Americans on the NATO staff. We thereby avoid the creation of a special group of tax-exempt Americans.

The second point which I particularly want to bring to the attention of the Senate is the limited immunity from personal arrest which is given to experts employed on missions on behalf of NATO. The immunity is granted only "so far as necessary for the effective exercise of their functions while present in the territory of a member state for the discharge of their duties."

The question at once arises, Mr. President, as to whether this immunity will interfere with enforcement of our laws, particularly those relating to our internal security.

I can say categorically to the Senate that in my considered judgment and in the opinion of the Foreign Relations Committee the answer to this question is no.

Let me repeat and reemphasize that the experts have this immunity only "so far as necessary for the effective exercise of their functions while present in the territory of a member state for the discharge of their duties."

That phrase in itself limits the immunity to situations in which it is justified in the interests of the effective functioning of NATO. By the same token, it clearly does not extend the immunity to personal actions of the experts not connected with the discharge of their duties. As is pointed out in the report, espionage, sabotage, or subversion against the United States, by definition, could not be connected with the discharge of their duties and thus the immunity would not apply.

It is important to remember that even in cases in which the immunity does apply the Chairman of the Council Deputies has the duty to waive it if that can be done without prejudice to the interests of the Organization and if failure to do so would impede the course of justice.

It is inconceivable to me, Mr. President, that the Chairman of the Council Deputies would refuse to waive the immunity of a NATO expert in the case of serious violations of any law. But if a dispute should arise over his failure to do so, the agreement directs the North Atlantic Council to make provision for appropriate modes of settlement. And on the North Atlantic Council we have equal representation with the other NATO powers.

Mr. President, let me emphasize again that it is not any single provision of these agreements which is important; it is the sum total of all the provisions taken as a whole. Though unspectacular in themselves, the agreements will make a significant contribution to the organizational structure of European defense. The United States not only took the lead in negotiating the North Atlantic treaty, but it has also been a leading proponent of the integrated defense idea. We cannot now in good conscience ourselves fail to follow through on what we have been urging our European friends to do.

The essential rights of the United States are fully protected in these agreements, and

I submit that it is in our national interest to ratify them.

Mr. SMITH of New Jersey. It so happened that I had the privilege of presiding over the supplementary hearings on the treaty. We first heard the Senator from Ohio [Mr. BRICKER] who gave us a very fine presentation, as he has done today, of the point of view he is taking. At the same time, however, we heard from the Attorney General, Mr. Brownell, who filed a very important statement with the committee. I ask unanimous consent that that statement be incorporated in the RECORD at this point as a part of my remarks. It gives the other side of the case from the internationallaw standpoint.

There being no objection, the statement was ordered to be printed in the RECORD, as follows:

INTERNATIONAL LAW AND THE STATUS OF
FORCES AGREEMENT

SUMMARY

It has been contended that article VII of the Agreement Between the Parties to the North Atlantic Treaty regarding the status of their forces violates generally accepted rules of international law. That article deals with the jurisdiction, as between the sending and receiving states, over criminal offenses committed by the visiting forces in the receiving state. Each state has exclusive jurisdiction over violations of its security laws, which are not violations of the laws of the other state. The sending state has primary jurisdiction over offenses against the persons and property of that state and over offenses committed in the line of duty. The receiving state has primary jurisdiction over all other offenses. Either state may waive its jurisdiction at the request of the other.

The basis for the contention that this article violates the rules of international law is the argument that under those rules friendly foreign forces are immune from the criminal jurisdiction of the host state. But there is no substantial support for any such alleged rule of international law. The many agreements among the nations upon this question, which have varied considerably in the allocation of jurisdiction as between them over these offenses, cannot be said to codify any rule of international law recognizing such an immunity. Indeed, the most recent multilateral agreement, among the United Kingdom, France, Belgium, the Netherlands, and Luxembourg, completely rejects the principle of any immunity from local prosecution.

The United States Congress, in enacting the Friendly Service Courts Act of 1944, also clearly rejected the idea that friendly foreign forces on our soil would be immune from local criminal prosecution.

The schooner Exchange (decided by the Supreme Court of the United States in 1812), which is the chief reliance of those who contend that the visiting forces are entitled to absolute immunity, stands for no such proposition. That case was concerned only with the question of the immunity of a French warship from a libel by two American citizens, based upon the claim that they were the true owners of the warship. Moreover, it was decided in the absence of an agreement between France and the United States as to any immunity which would attend the presence of a warship or an armed force in this country, and cannot be determinative or even relevant in the consideration of what the terms of such an agreement should be.

In a number of cases in the tribunals in the world, claims of immunity from local prosecution have been presented by members

of foreign forces accused of local crimes. In the relatively few cases where such a claim was sustained in the absence of an agreement, the offenses charged were almost uniformly committed in the line of duty. Thus, the only immunity for which there is any substantial support is for an offense committed in the line of duty, although even this is questionable. The instant agreement force both over offenses of this nature and gives primary jurisdiction to the sending over other offenses. Accordingly, the instant agreement gives the sending force more extensive jurisdiction than it would have in the absence of an agreement.

The reservation to this agreement which has been proposed by Senator BRICKER would give exclusive jurisdiction to the United States over its forces abroad, and, upon the request of other nations, to those nations over their forces in this country. Such a grant of exclusive jurisdiction in this country would not only be inconsistent with the position which Congress has already taken on this issue, but also seems inconsistent with Senator BRICKER'S proposed constitutional amendment. This amendment would make illegal any treaty which granted jurisdiction to foreign countries in respect of matters which are essentially domestic in character. The reservation's deprivation of jurisdiction over local crimes from domestic courts would appear to fall in this category. No nation of the world has either a right or a duty to send its forces into foreign territory. There is no principle of international law which prevents nations of the world from entering into any agreement upon this issue which is mutually satisfactory. This agreement grants to the sending forces more extensive jurisdiction over offenses committed by their members than there would be in the absence of an agreement. Moreover, compared with other agreements of a similar nature, it grants the sending forces substantially more jurisdiction than do those agreements.

I. INTRODUCTION

An agreement to implement the provisions of the North Atlantic Treaty 1 is now pending before the Senate for ratification. This agreement, titled "Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces," 2 sets forth the conditions and terms which will control the status of forces which are sent by one state, party to the agreement, within the territory of another state, party to the agreement.

Article VII of this agreement, treats, inter lia, the question of jurisdiction, as between the sending state and the receiving state, over criminal offenses committed by the members of the forces of the sending state ticle provides that the military authorities within the receiving state. Briefly, this arof the sending state shall have the right to exercise all criminal and disciplinary jurisdiction conferred by the sending state's laws and that the authorities of the receiving state shall have jurisdiction over offenses committed by the members of the force of the sending state. It analyzes this possible conflict of jurisdiction as follows: Each state has exclusive jurisdiction over all security (treason, sabotage) offenses which are punishable by its law, but not by the law of the other state. The sending state has the primary right to exercise jurisdiction over a member of its forces wherever the offense is solely against its property or security, or solely against the person or property of another member of that force or a

1 63 Stat. 2241.

* Hearings, Senate Foreign Relations Committee, 83d Cong., 1st sess., p. 97 et seq. (hereinafter, hearings).

3 Id. at 99-100. The complete text of this article is set forth in the appendix, infra.

civilian component or dependent, or where the offense arises out of any act or omission done in the performance of official duty. In all other cases, the receiving state has the primary right to exercise jurisdiction. Either state may waive its primary right to exercis jurisdiction, and the authorities of the state having the primary right "shall give sympathetic consideration to a request from the authorities of the other state for a waiver of its right in cases where that other state considers such a waiver to be of particular importance.” 4

This article may be suspended in the event of hostilities by any of the contracting parties as to that party. In effect, then, it is operative, at the option of any party, only in the absence of hostilities. Article XVI of the agreement provides that all differences between the parties relating to the interpretation or application of the agreement shall be settled by negotiation between them or by reference to the North Atlantic Council.

This article has been attacked on the floor of the Senate as reflecting "a callous disregard of the rights of the American Armed Forces personnel.” “ The basis for this statement by Senator BRICKER was the contention that under international law, friendly armed forces on the territory of a foreign state are completely immune from the criminal jurisdiction of that state. In accordance with that contention, Senator BRICKER has proposed a reservation to the agreement, as follows: 8

"The military authorities of the United States as a sending state shall have exclusive jurisdiction over the members of its force or civilian component and their dependents with respect to all offenses committed within the territory of the receiving state and the United States as a receiving state shall, at the request of a sending state, waive any jurisdiction which it might possess over the members of a force or civilian component of a sending state and their dependents with respect to all offenses committed within the territory of the United States."

• Art. VII, sec. 3 (c).

Art. XV. 1. Subject to paragraph 2 of this article, this agreement shall remain in force in the event of hostilities to which the North Atlantic Treaty applies, except that the provisions for settling claims in paragraphs 2 and 5 of Article VIII shall not apply to war damage, and that the provisions of the agreement, and, in particular of articles III and VII, shall immediately be reviewed by the contracting parties concerned, who may agree to such modifications as they may consider desirable regarding the application of the agreement between them.

2. In the event of such hostilities, each of the contracting parties shall have the right, by giving 60 days' notice to the other contracting parties, to suspend the application of any of the provisions of this agreement so far as it is concerned. If this right is exercised, the contracting parties shall immediately consult with a view to agreeing on suitable provisions to replace the provisions suspended.

6 CONGRESSIONAL RECORD, May 7, 1953, page 4659.

It was also asserted that this article is a violation of our own Uniform Code of Mili

tary Justice. (CONGRESSIONAL RECORD, May 7, 1953, pp. 4670-4671.) But this code, while granting jurisdiction to our military authorities over our own forces does not have the extraterritorial effect of depriving foreign courts of jurisdiction on their own soil. Any such derogation of jurisdiction must flow from the consent of the foreign country, and not from our domestic legislation.

8 CONGRESSIONAL RECORD, May 7, 1953, page 4659.

This reservation obviously transforms the nature of the jurisdiction over criminal offenses committed by the members of the United States forces. According to its terms, the receiving states will have no criminal jurisdiction over the members of that force, and the United States "shall, at the request of a sending state, waive" its own jurisdiction over forces in this country. No matter what the offense, no matter how unrelated to the line of duty, no member of the sending force will be subject to the criminal jurisdiction of the receiving state. Insofar as the United States is concerned, this means that a foreign soldier stationed, for example, in Georgia could not be tried by the Georgia courts for any offense against its citizens, inas much as the agreement applies to the political subdivisions of the contracting parties.9

99 10

Senator BRICKER stated that "the crux of the matter is what rights can properly be claimed for American servicemen abroad under generally accepted rules of international law." These "generally accepted rules of international law" are said to provide that friendly foreign armed forces stationed in a state are completely immune from the jurisdiction of that state. The authorities for this proposition are to be found, according to Senator BRICKER, in an article by Colonel Archibald King,11 "the most complete review of the subject which has been made in recent years." There is no question but that in this article Colonel King expounds that thesis. The various materials upon which he relies are examined in subsequent portions of this memorandum.

99 12

10 CONGRESSIONAL RECORD, May 8, 1953, p. 4659. 11 Jurisdiction Over Friendly Foreign Armed Forces (36 Am. J. Int. L. 539 (1942) (hereinafter, King I).

12 CONGRESSIONAL RECORD, May 8, 1953, p. 4660. Colonel King's article is reprinted in the RECORD at this point.

13 King, Further Developments Concerning Jurisdiction Over Friendly Foreign Armed Forces (40 Am. J. Int. L. 257, 278 (1944) (hereinafter, King II)). For more recent and comprehensive reviews of the subject, see Barton, Foreign Armed Forces; Immunity from Supervisory Jurisdiction (26 Br. Yearbook of Int. L. 380 (1949) (hereinafter, Barton I)); Barton, Foreign Armed Forces; Immunity from Criminal Jurisdiction (27 id. 186 (1950) (hereinafter, Barton II)). this latter article the author concludes that (p. 234) "there exists a rule of international law according to which members of visiting forces are, in principle, subject to the exercise of criminal jurisdiction by the local courts and that any exceptions to that general and far-reaching principle must be traced to express privilege or concession.”

In

two or more nations to enter into agreements with different provisions, binding the two nations as between themselves.14 But it does indicate that such an agreement deviates from the norm of international practice. If, on the other hand, there is no consistency among the agreements on the subject, no "generally accepted rule of international law" can be deduced-except the obvious one that there is no such general rule of international law. As regards the immunity of friendly foreign armed forces from the criminal jurisdiction of the receiving state, the fact that so many varied agreements have been entered into establishes incontrovertibly that there is no generally recognized rule of international law which accords immunity to the forces of the visiting nation.

These international agreements have been both bilateral and multilateral. Their provisions have depended primarily upon the particular parties to the agreement, the reasons for the foreign force on the receiving State's territory, and like considerations. A great number has been negotiated among parties who were engaged in active warfare at the time and, accordingly, are not comparable to the instant agreement.15 Such wartime agreements directly reflect the in extremis status of one or more of the parties. Yet even these show no such uniformity as to indicate that the nations of the world are agreed upon one single rule which is to determine the fate of their forces abroad and of their peoples at home, insofar as local criminal jurisdiction is concerned. The peacetime agreements also run the gamut of jurisdictional possibilities, and, in like manner, reflect the relative status of the parties at the time the agreements were negotiated.

A. Wartime agreements

(1) World War I 16

A series of agreements concluded by France during the First War granted exclusive jurisdiction to the military tribunals of the Armed Forces of the Allied powers in France over the members of those forces.17 The Allied forces in France, however, were for the most part in the nature of an occupation by consent and were in complete control over the area they occupied.18 Indeed, the first such agreement found it necessary to make special provisions exempting Belgian nationals from the jurisdiction of the French military courts.19 This, of course, is a completely different state of affairs from that contemplated by the instant agreement.20 Both the United States and Great Britain entered into similar agreements with Belgium,21 but the only British court which was faced with a problem involving its criminal jurisdiction over a Belgian soldier for an offense committed in London assumed that it had such jurisdiction despite the language

14 See infra.

15 See, supra. In the event that any nation suspends the provision of article VII, its forces on foreign soil will be subject to the vagaries of the doctrines which have been developed for the status of such forces in the absence of an agreement. These doctrines provide less protection for the visiting force than does the instant agreement. See infra. 16 See, generally, Barton I, pp. 387-390; Barton II, pp. 187-194; King I, 549–553.

17 E. g., France-United States, Jan. 3, 14, 1918, Foreign Relations of the United States, 1918, Supp. 2, p. 737; France-Great Britain, Dec. 15, 1915, id., p. 735.

18 Barton I, pp. 387-388.

19 France-Belgium Agreement of August 14, 1914, Barton I, p. 388.

20 See Barton II, pp. 187–188.

21 United Kingdom-Belgium, Apr. 14, 1916; United States-Belgium, Foreign Relations of the United States, 1918, Supp. 2, pp. 747, 751.