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Sitting in Judgment on the Acts of Another Government

Published online by Cambridge University Press:  20 April 2017

Archibald King
Archibald King*
Affiliation:
Judge Advocate General's Department, United States Army
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Extract

In the October, 1947, number of this Journal there was printed the judgment, or as we should say in the United States, the opinion, of the Court of Appeal of England in Szalatnay-Stacho v. Fink. In the following number, that for January, 1948, there appeared an editorial comment on that case by Mr. Arthur K. Kuhn. The present writer begs leave to present certain additional reasons and precedents bearing upon the problem arising in the Fink case, namely, whether and to what degree an official of, or person working under, a government in exile, or an officer or employee of any foreign government, exercising his functions in another country with its consent, is liable to prosecution or suit in the courts of that country on account of his official acts. Though the governments in exile have returned home or ceased to operate, in the event of another war the phenomenon may recur. In any event, the increasing volume and complexity of international relations and the constantly closer ties between friendly nations make probable an increase in the number of officials of one country functioning permanently or temporarily in another with the latter's permission. Among these may be economic, financial, scientific, and military representatives, and all sorts of officers conferring or working with their “opposite numbers” in the host country. A detailed examination of the subject therefore seems timely.

Type
Research Article
Information
American Journal of International Law , Volume 42 , Issue 4 , October 1948 , pp. 811 - 831
Copyright
Copyright © American Society of International Law 1948

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References

1 Vol. 41 (1947), p. 948.

2 Announced June 5, 1946; reported in [1947] K. B. 1 and 62 T. L. E. 573. For convenience this ease will hereafter be called the Fink case.

3 Vol. 42 (1948), p. 108.

4 Among the authorities supporting the learned justice's statement are Dawkins v. Lord Paulet, L. B. [1869] 5 Q. B. 94; Chatterton v. Secretary of State, [1895] 2 Q. B. 189; and Fraser on Libel and Slander, p. 95. The writer naturally holds a high opinion of the service in which he has spent thirty of the best years of his life, but even he can see no logical reason why the armed forces should be so preferred over the civil branches of the government.

5 See note 3 supra.

6 [1942] 1 K. B. 445, and [1942] 1 All. Eng. Rep. 236. This case is reported on appeal in the Court o f Appeal in [1942] 2 K. B. 26, and in the House of Lords in [1943] A. C. 147; but the opinions delivered in those tribunals dealt with the right to appeal and denied it, and mentioned only incidentally the question of international law involved in the case. An earlier application for habeas corpus by the same petitioner is reported in [1941] 2 K. B. 239. The Amand case is analyzed and discussed in Sir McNair, Arnold D. , Legal Effects of War (Cambridge, University Press, 1944), p. 372 Google Scholar et seq.

7 44 State Reports N.S.W. 45, 61 Weekly Notes N.S.W 38. This case is discussed in some detail by the present writer in this Journal , Vol. 40 (1946), p. 266 et seq.

8 7 Cranch 116. This case is discussed later in this article, and more fully by the present author in “Jurisdiction over Friendly Foreign Armed Forces,” this Journal, Vol. 36 (1942), p. 539.

9 7 Cranch 137.

10 Marshall's third case is considered in detail in two articles by this author in this Journal, one in Vol. 36 (1942), p. 539, and the other in Vol. 40 (1946), p. 257. The immunity o f a visiting sovereign and o f an ambassador to the local jurisdiction is too well settled to require the citation o f authority. It should not be supposed that the doctrine laid down by Marshall as to the third case rests on his authority alone, high . as that is. The same position is taken by the leading writers on international law of many nations and by the Judicial Committee of the Privy Council, the highest tribunal1 of the British Empire, in Chung Chi Cheung v. The King, [1939] A. C. 160. The authorities are collected in the article cited in note 8, supra. To those there mentioned may be added an 18th-century Italian writer, Casaregis, Discursus Legates de Commereio, Discursus 136, par. 9.

11 7 Cranch 139.

12 Formerly Legal Adviser to the British Foreign Office and President of the Permanent Court of International Justice.

13 “Diplomatic Immunities—Modern Developments,” in British Tear Booh o f International Law, 1929, pp. 1, 6 .

14 Hague Convention for the Pacific Settlement o f International Disputes (1899), Art. 24; Malloy, , Treaties and Other International Acts, Vol. II, p. 2025;Google Scholar 32 Stat. 1791.

15 Hague Convention No. I for the Pacific Settlement of International Disputes (1907), Art. 46; Malloy, op. cit., Vol. II, p. 2236; 36 Stat. 2224.

16 Art. 19.

17 Hurst, op. cit., pp. 7 and 8 .

18 Vollenhoven, C. Van , “ Diplomatic Prerogatives of Non-Diplomats,” this Journal, Vol. 19 (1925), pp. 469, 470 Google Scholar; Bay Stannard Baker, Woodrow Wilson and the World Settlement, Vol. III , p. 134.

19 Statute of the International Court of Justice, Art. 19.

20 International Law ( 6th ed.), p. 65. See also Eagleton, “ Protection of Foreign Officials,”this Journal , Vol. 19 (1925), pp. 293, 312.

21 Art. 7, sec. 4.

22 Art. 105, see. 2. There is a voluminous literature on this subject. See Kunz, Josef L. , “ Privileges and Immunities o f International Organizations,” this Journal , Vol. 41 (1947), p. 828,Google Scholar especially note 13, p. 830.

23 Treaties of Peace (Status o f the International Labour Office) Order, Aug. 14, 1941. For this citation, that in the following note, and much other information on this topic, the present author is indebted to Professor Preuss, Lawrence , “ The International Organizations Immunities Act,”this Journal, Vol. 40 (1946), p. 332 Google Scholaret seq.

24 Official Gazette of the Executive Yuan, Vol. VI, No. 3, Feb. 19, 1943.

25 Diplomatic Privileges (Extension) Acts, 1944, 7 and 8 Geo. 6 , c. 44, this Journal , Vol. 39 (1945), Supp., p. 163; and 1946, 9 and 10 Geo. 6, c. 6 6 ; Statutory Rules and Orders, 1945, Nos. 79, 84, 1211, 1539, 1638, 1639; S. R. & O., 1946, 895 and 1202; S. R. & O., 1947, 1772. See also Egon Schwelb, in Modern Law Review, Vol. 8, p. 50.

26 Act of Dec. 29, 1945, 59 Stat. 669, 22 IT. S. Code 288 et seq., this Journal , Vol. 40 (1946), Supp., p. 85; Executive Orders 9698, 9751, 9823, 9863, 9887.

27 Statutory Rules and Orders, 1947, No. 1772.

28 7 Cranch 137.

29 It wag expressly so stated at the trial o f both the Amand and the Fink cases by the Attorney General of England.

30 7 Cranch 137.

31 Westlake, International Law (2d ed.), Vol. I, p. 273; Oppenheim, , International Law ( 6th ed.), Vol. I, p. 714;Google Scholar Sir Satow, Ernest , Diplomatic Practice (3d ed., 1932)Google Scholar, Ch. XVII ; Foster, John W. , The Practice of Diplomacy, Ch. VIII.Google Scholar

32 7 Cranch 139.

33 7 Cranch 137.

34 Gordon,, Marshall v. 243 U. S. 521, 537;Google Scholar Maryland,, McCullooh v.4 Wheaton 316. For recognition of the doctrine of implied powers by English authorities, see Kielley v. Carson, 4 Moore P. C. 63, 8 8 ; Clarence My. Co. v. Great North By. Co., 13 Meeson and Welsby 706, 719; 2 Blackstone's Commentaries 36; Broom's Legal Maxims (10th ed.), p. 309. These authorities are discussed on p. 548 o f this author's article cited in note 8, supra.Google Scholar

35 7 Cranch 137 et seq.

36 4 and 5 Geo. 6, c. 7, enacted March 6, 1941.

37 168 U. S. 250; Moore's Digest of International Law, Vol. II, p. 30.

38 168 U. S. 252.

39 246 U. S. 297.

40 246 U. S . 303, 304.

41 The decision is the more noteworthy because, if they had felt any doubt about the law, the judges might have unconsciously been led by their feelings to decide it the other way. It must have been a painful duty to uphold the act of Villa, the man who, in 1916, after the seizure of Martinez&Co.'s leather, but before the hearing o f this case, attacked Columbus, New Mexico, killed several civilians and soldiers, and touched off General Pershing's punitive expedition and the calling out o f the entire National Guard of the United States, including this writer as a non-commissioned officer, to guard the Mexican border.

42 1 Ops. Atty. Gen. 45; Moore's Digest o f International Law, Vol. II , p. 23.

43 Ops. Atty. Gen. 81; Moore's Digest o f International Law, Vol. II, p. 24.

44 4 Cranch 293.

45 Ibid., p. 294.

46 250 Fed. 367, 371 (C.C.A. 2, 1918) ; Hackworth, Digest o f International Law, Vol.II, p. 18.

47 1 63 Fed. 2d 246 (C.C.A. 2, 1947) ; certiorari denied Oct. 13, 1947, 332 U. S. 772.

48 163 Fed. 2d 246, at p. 249.

49 American Banana Company v. United Fruit Co., 213, TJ. S. 347, 357, per Holmes, J. Google Scholar.; Sicaud, V. American Metal Co., 246 U. S. 304 Google Scholar; Texas Co. v. Hogarth Shipping Co., 256 U. S. 619; TJ. S. v. Belmont, 301 TJ. S. 324, 327; V. S. v. Pink, 315 U. 8 . 203, 233; The Adriatic, 258 Ted. 902, 904 (C.C.A. 3, 1919); The Claveresk, 264 Fed. 276, 281 (C.C.A. 2, 1920); Heine, v. New York Life Insurance Co., 50 Fed. 2d 382, 386 (C.C.A. 9, 1931);Google Scholar Banco de Espana v. Fed. Beserve Bank, 114 Fed. 2d 438, 443 (C.C.A. 2, 1940); TJ. S. ex rel. Steinvorth v. Watkins, 159 Fed. 2d 50 (C.C.A. 2, 1947) ; TJ. S. ex rel. von Heymann v. Watkins, 159 Fed. 2d 650 (C.C.A. 2, 1947) ; Eastern States Petroleum Co. v. Asiatic Petroleum Co., 28 Fed. Supp. 279, 281 (S. D. N. Y. 1939); Medvedieff v. Cities Service Oil Co., 35 Fed. Supp. 999, 1001 (S. D. N. Y. 1940) ; The Manuel Arnus, 51 Fed. Supp. 577, 578 (S. D. Texas 1943); Anderson v. N. V. Transandime Handelmaatschappij, 28 N. Y. Supp. 2d 547 (validity of decree of Dutch Government in exile recognized); Hyde, International Law (2d ed.), Vol. I, p. 734; Boitchenko v. Parker, Hackworth, Digest o f International Law, Vol. II, p. 472.

50 3 Swanston 604

51 Ibid., p. 607.

52 [1921] 3 K. B. 532.

53 Ibid., p. 548.

54 168 XT. S. 250, 252; ante, p. 822.

55 Ante, p. 822.

56 246 U. S. 297.

57 168 U. S. 250, 252.

58 [1927] P. 122, 141.

59 In Underhill v. Hernandez, 168 U. S. 250, 252.

60 [1947] Ch. 629.

61 [1929] 1 K. B. 718.

62 246 U. S. 297, 303.

63 168 U. 8 . 250, 252.

64 [1941] 2 K. B. 239, 253; [1942] 1 K. B. 445, 449, 451.

65 246 U. S. 297, 303.

66 168 U. 8 . 250, 252.

67 [1942] 1 K. B. 453.

68 In Underhill v. Hernandez, 168 IT. S. 250, 252.

69 Dobree v. Napier, 2 Bing, N. C. 781; 'Republic o f Peru v. Dreyfus, 38 Ch. D. 348; Carr v. Fraeis Times Sr Co., [1902] A. C. 176; Compania Naviera Vaseongada v. The Cristina, [1938] A. C. 485; Lorentzen v. Lydden and Company, [1942] 2 K. B. 202; Pollock on Torts (14th ed.), p. 92.

70 [1941] 2 K. B. 239; [1942] 1 K. B. 445.

71 So distinguished an English lawyer as Sir Arnold McNair has said [Legal Effects of War (Cambridge, England, 1944), p. 357]: “ Unless the laws of the allied country limit the validity o f governmental acts to those done upon the territory of that country or a particular portion of it, it is submitted that it is immaterial in an English Court where the official act is done– be it in the home territory, or be it on British territory whereon his Majesty has consented to the establishment of the allied Government and the exercise of its governmental functions.”

72 See also the preceding note.

73 See the passage quoted from Attorney General Bradford' s opinion, ante, p. 823.

74 The statement in the text is inapplicable to the centuries-old immunity to the local jurisdiction of a foreign sovereign and a foreign ambassador. The truth of the statement in the text, subject to the qualification just mentioned, is also shown by certain statements in the British Parliament. In the debate on the Allied Forces Act, 1940, Sir Donald Somervell, then the Attorney General of England, who as a judge later decided the Firik case, admitted that that Act did not concede to Allied Governments as much immunity to the local jurisdiction as they were entitled to enjoy under international law (Hansard's Debates, Vol. 364, No. 106, Aug. 21, 1940, col. 1405).

The truth of the statement in the text is also shown by the debate in the House of Commons on the United States o f America (Visiting Forces) Act, 1942, conceding exemption from local jurisdiction to members o f United States armed forces in the United Kingdom. In that debate the bill then pending was described as a “ striking innovation,” and as being “ of a completely revolutionary character” {Pari. Debates, H. o f C., Aug. 4, 1942, Vol. 382, pp. 902, 910), not withstanding the fact that British forces demanded and received such immunity in France in the first World War and that the principle was supported by eminent British writers on international law and by the Judicial Committee o f the British Privy Council ( Chung Chi Cheung v. The King, [1939] A. C. 160). This matter is further discussed in the two articles in this Journal by the present writer, cited in notes 8 and 10, supra.

75 [1925] 2 K. B. 391.

76 State Reports N. S. W. 45; 61 Weekly Notes N. S. W. 38.

77 [1941] 2 K. B. 239; [1942] 1 K. B. 445.

78 [1947] K. B. 1.

79 State Reports N. S. W. 45; 61 Weekly Notes N. S. W. 38.