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Jurisdiction Over Friendly Foreign Armed Forces

Published online by Cambridge University Press:  12 April 2017

Archibald King
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Extract

There are at present armed forces of the United States in England, Northern Ireland, Egypt, Australia, New Zealand, New Guinea, China, India, Iceland, in British possessions in the Western Hemisphere from Newfoundland to British Guiana, and in other friendly countries. There are troops of Great Britain or her dominions in Egypt, Iraq, Iran, and a few of them in the United States. English forces were a few months ago in Greece, and ours in the Dutch East Indies and Burma. There are troops of various exiled governments in England. The armed forces of Germany are in Italy, Libya, Hungary, and Rumania; and those of Japan in French Indo-China and Thailand. In every case mentioned, the visiting forces are in the foreign country by invitation, or at least with the consent, of its sovereign or government.

Type
Research Article
Information
American Journal of International Law , Volume 36 , Issue 4 , October 1942 , pp. 539 - 567
Copyright
Copyright © American Society of International Law 1942

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References

2 King George A., “French Spoliation Claims,” Vol. 6 (1912), pp. 359, 629, 830.

3 7 Cranch 116.

4 P. 137 et seq.

5 p. 144.

6 Chief Justice Marshall’s opinion in the case of The Exchange has often been praised. In a letter to the late Albert J. Beveridge, Dr. John Bassett Moore—and surely there is no one better qualified to judge in such a matter—said that that opinion is Marshall’s greatest in the realm of international law. (Private letter, Moore to Beveridge, cited by Beveridge, Life of Marshall, IV, p. 121.) Elsewhere Judge Moore called it the basis of international law on the subject with which it deals. (Moore in Dillon, John Marshall: Life, Character and Judicial Services, as portrayed in the Centenary Proceedings throughout the United States on Marshall Day, 1901,I, 521.)

In England, Brett, L. J., said, in The Parlement Beige, L. R. 5 P. D.197, 208: “The first case to be carefully considered is, and always will be, The Exchange.”

More recently in Chung Chi Cheung v. The King, 1939 A. C. 160, 168, a case discussed in detail hereafter, Lord Atkin, speaking for the Judicial Committee of the Privy Council,called Chief Justice Marshall’s opinion in the case of The Exchange “a judgment which has illumined the jurisprudence of the world.”

7 97 U. S. 509, 515.

8 100 U. S. 158, 165.

9 183 U. S. 424.

10 p. 433.

11 1939 A. C. 160.

12 1876, Cmd. 1516.

13 This Journal, Vol. 3 (1909), p. 756; Martens, Nouveau Recueil Général,3rd Series, II,19; Wilson, Hague Arbitration Cases, p. 86

14 This Journal, ibid., p. 698; Oppenheim, International Law (4th ed.), I, 672, n. 1.

15 Elements of International Law, Sec. 95.

16 International Law, I, Sec. 247.

17 Military Government and Martial Law, Sec. 114.

18 Westlake, International Law (1910 ed.), Part I, p. 265.

19 7th ed., Sec. 56.

20 Principles of International Law (6th ed.), Sec. 107, p. 246.

21 International Law (4th ed.), Vol. I, Sec. 445.

22 Journal du Droit International, Vol. 45, pp. 514, 516. An earlier note to the same effect by the same learned author is found in the same journal, Vol. 9, pp. 511, 520.

23 Le Statut Juridique des Troupes Alliées pendant la Guerre 1914–1918, p. 45.

24 Juridiction et Droit International Public, Sec. 246.

25 Militäirstrafgesetsbuch filr das Deutsche Reich, June 20, 1872, Sec. 7, republished June 16, 1926, in Reichsgesetzblatt, Part I, p. 275 et seq.; Militärstrafgerichtsordnung, Dec. 1, 1898, Sec. 1. I am indebted for these citations to Dr. George M. Wunderlich.

26 “Die Gerichtsbarkeit der Heeresgrwppe Yildirim,” by Dr. Georg Wunderlich, Mitteilungen der Deutschen Gesellschaft für Völkerrecht, Heft II, 1932, pp. 79, 87–89.

27 This Journal, Vol. 21 (1927), p. 182. The headnote quoted was prepared by the present writer’s learned colleague, Colonel William C. Rigby, U. S. Army, Retired.

28 Final Act of the Sixth International Conference of American States, p. 16.

29 Journal du Droit International, Vol. 62, p. 194.

30 Broom’s Legal Maxims, 8th ed., p. 367. For the benefit of him whose recollection of Latin pronouns has been dimmed by the lapse of years, the foregoing may be translated,

“whoever grants a thing to any one is deemed also to grant that without which the grant itself would be of no effect.”

31 243 U. S. 521, 537.

32 Another and older application of this broad principle is a way by necessity. Blackstone says (2 Commentaries 36):“A right of way may also arise by act and operation of law; for if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same.”

To the same effect is 19 Corpus Juris:“Easements,” Sec. 117.

Among the many English cases recognizing and applying the maxim are Kielley v. Carson,4 Moore, P. C, 63, 87; and Clarence Railway Company v. Great North Railway Company,13 Meeson and Welsby 706, 719. In the latter case it was held that when an Act of Parliament empowered one railway company to carry its line across that of another by a bridge, the former might place temporary scaffolding on the land of the latter without its permission, if that were necessary for constructing the bridge.

33 Chalufour, op. cit., p. 47.

34 London Gazette, Dec. 15, 1915; Foreign Relations of the United States, 1918, Supp. 2,p. 735.

35 Op. cit., p. 51. These conventions were published in the Journal Officiel on the dates mentioned, respectively.

36 p. 12.

37 It is published in Foreign Relations of the United States, 1918, Supp. 2, pp. 735–737.

38 Final Report of the Judge Advocate, American Expeditionary Forces, p. 13; Foreign Relations of the United States, 1918, Supp. 2, pp. 745–747; Sec. I, Bulletin 86, General Headquarters, A.E.F., Oct. 31, 1918; Chalufour, op. cit., p. 57.

39 Cour de Cassation, Chambre Criminelle, Aug. 13, 1920; 48 Journal du Droit International, p. 970.

40 Foreign Relations of the United States, 1918, Supp. 2, pp. 747, 751.

41 Ibid., pp. 733–760.

42 Foreign Relations of the United States, 1918, Supp. 2, p. 742; Final Report of the Judge Advocate, A.E.F., p. 12.

43 Foreign Relations, ibid., p. 745.

44 Ibid., p. 748.

45 Foreign Kelations of the United States, 1918, Supp. 2, pp. 751–2.

46 Ibid., p. 754.

47 Ibid., p. 760.

48 Great Britain, Treaty Series No. 17 (1925), Cmd. 2370.

49 Ibid., No. 15 (1931).

50 Ibid., No. 6 (1937), Cmd. 5360; this Journal, Supplement, Vol. 31 (1937), p. 77.

51 Article IV. Jurisdiction

(1) In any case in which

(A) A member of the United States forces, a national of the United States or a person who is not a British subject shall be charged with having committed, either within or without the leased areas, an offence of a military nature, punishable under the law of the United States, including, but not restricted to, treason, an offence relating to sabotage or espionage, or any other offence relating to the security and protection of United States naval and air bases, establishments, equipment or other property or to operations of the Government of the United States in the territory; or

(B) A British subject shall be charged with having committed any such offence within a leased area and shall be apprehended therein; or

(C) A person other than a British subject shall be charged with having committed an offence of any other nature within a leased area, the United States shall have the absolute right in the first instance to assume and exercise jurisdiction with respect to such offence.(2)If the United States shall elect not to assume and exercise such jurisdiction the United States authorities shall, where such offence is punishable in virtue of legislation enacted pursuant to Article V or otherwise under the law of the territory, so inform the Government of the territory and shall, if it shall be agreed between the Government of the territory and the United States authorities that the alleged offender should be brought to trial, surrender him to the appropriate authority in the territory for that purpose.

(3)If a British subject shall be charged with having committed within a leased area an offence of the nature described in paragraph (1) (A) of this article, and shall not be apprehended therein, he shall, if in the territory outside the leased areas, be brought to trial before the courts of the territory; or, if the offence is not punishable under the law of the territory, he shall, on the request of the United States authorities, be apprehended and surrendered to the United States authorities and the United States shall have the right to exercise jurisdiction with respect to the alleged offence.

(4)When the United States exercises jurisdiction under this article and the person charged is a British subject, he shall be tried by a United States court sitting in a leased area in the territory.

(5)Nothing in this agreement shall be construed to affect, prejudice or restrict the full exercise at all times of jurisdiction and control by the United States in matters of discipline and internal administration over members of the United States forces, as conferred by the law of the United States and any regulations made thereunder. (H. Rep. Doc. 158, 77th Cong., 1st Sees.; this Journal, Supp., Vol. 35 (1941), p. 136.)

52 Articles of War, introductory sentence, Art. 2, 93, and others; 10 U. S. Code, 1471,1473,1565; Digest of Opinions of the Judge Advocate General, U. S. Army, 1912, p. 511, par.VIII B; this author,“The Army CourHVIartial System,” 1941 Wisconsin Law Review, 311,320; Articles for the Government of the Navy, introductory sentence, 34 U. S. Code, 1200.

53 No. 302, 1941.

54 Statutory Rule No. 241, 1942.

55 Evening Star, Washington, D. C, May 27, 1942.

56 3 & 4 Geo. 6, c. 51.

57 5 & 6 Geo. 6, c. 31.

58 Parliamentary Debates, House of Commons, Official Report, Aug. 4, 1942, Vol. 382,pp. 902, 910.

59 Foreign Relations of the United States, 1918, Supp. 2, p. 733.

60 Washington News, Aug. 6, 1942.

61 Winthrop, Military Law and Precedents, original p. 49, reprint p. 46; this author,“The Army Court-Martial System,” loe. cit., p. 318.

62 10 U. S. Code, 1568; Manual for Courts-Martial, U. 8. Army, 1928, par. 1525.

63 10 U. S. Code, 1567, Manual for Courts-Martial, U. S. Army, 1928, par. 151.

64 Manual for Courts-Martial, TJ. S. Army, par. 1526; Digest of Opinions of The Judge Advocate General, U. S. Army, 1912, p. 510, pare. VIIIA 1 and 2.

65 Tarble’s Case, 13 Wall. 397.

66 Vavasseur v. Krupp, L. R. 9 Ch. D. 351; The Parlement Belge, L. R. 5 P. D. 197; Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341; Mason v. Intercolonial Ry. Co., 197 Mass. 349, 83 N. E. 876.

67 Buchanan v. Alexander, 4 How. 20.

68 See Kingdom of Roumania v. Guaranty Trust Co. and Mason v. Intercolonial Railway Co., supra.

69 Acts of Apr. 18, 1918, 5 U. S. Code, 210; July 1, 1918, 34 U. 8. Code, 600; Jan. 2,1942, 55 Stat. 880.

70 Act of Oct. 17, 1940, 54 Stat. 1178, 50 U. S. Code 501 et seq.

71 Dig. Op. J.A.G., 1912, p. 879, par. V; ibid., 1912–40, par. 454 (46).

72 Ware v. Hylton, 3 Dallas, 199, 236; Worcester v. Georgia, 6 Peters 515, 561; Hauenstein v. Lynham, 100 U. S. 483.

73 The Paquete Habana, 175 U. S. 677, 700.