No CrossRef data available.
Article contents
Some recent developments of international law in respect of the conflicts of jurisdiction resulting from the presence of foreign armed forces in the territory of a state
Published online by Cambridge University Press: 21 May 2009
Extract
The presence of foreign troops in the territory of a sovereign State (referred to hereinafter as the receiving State) involves a conflict of jurisdiction between the States concerned and consequently poses a question which is per definitionem one of international law. The question has been discussed by many writers, but there have been some recent developments in this field which render it useful to consider the problem again.
- Type
- Articles
- Information
- Copyright
- Copyright © T.M.C. Asser Press 1955
References
page 254 note 1 Cf. inter alia: King, Archibald, Jurisdiction over friendly foreign armed forces, American Journal of International Law (1942), Vol. 36, p. 39et seq.CrossRefGoogle Scholar; the same author, Further developments concerning jurisdiction over friendly foreign armed forces, ibidem, (1946), Vol. 40, p. 257 et seq. Barton, G. P., Foreign armed forces: immunity from supervisory jurisdiction, The British Yearbook of International Law, Vol. XXVI (1949), p. 380et seq.Google Scholar; the same author, Foreign armed forces: immunity from criminal jurisdiction, ibidem, Vol. XXVII (1950), p. 186 et seq. Van Praag, , Juridiction et droit international public, 1915, p. 492et seq.Google Scholar and the Supplement thereto (1935), p. 265 et seq.
page 254 note 2 Cf. King, , loc. cit.Google Scholar, Manual for Courts-Martial, United States, 1951, § 12; there are however some recent tendencies in the United States pointing in a contrary direction, cf. Schwartz, Murray L., International Law and the NATO Status of Forces Agreement, Columbia Law Review, Vol. 53 (1953), no. 8, p. 1091CrossRefGoogle Scholaret seq.; and Hermann Phleger, Some recent developments in international law of interest to the United States, The Department of State Bulletin, Vol. XXX, No. 763 (02 8, 1954), p. 198.Google Scholar
page 254 note 3 Cf. Barton, , loc. cit. (A. J., Vol. 36), p. 234Google Scholar, who takes a different view himself.
page 254 note 4 Cf. King, , loc. cit., (A. J. Vol. 36), p. 547.Google Scholar
page 255 note 1 Cf. King, , loc. cit., p. 544et seq.Google Scholar
page 255 note 2 Cf. Barton, , loc. cit., p. 232/233.Google Scholar
page 255 note 3 King, , loc. cit., p. 559.Google Scholar
page 256 note 1 Cf. Art. 7, para. 1, B.P.F.A.; Art. II N.S.F.A.; Art. 2, para. 1, Bonn Convention II.
page 256 note 2 Cmd. 7868.
page 257 note 1 (U.K.) Treaty series no. 1 (1949), Cmd. 7599.
page 258 note 1 Cmd. 8279 Misc. no. 5 (1951); (US) Treaties and other International Acts, series no. 2846; Tractatenblad 1951, no. 114.
page 258 note 2 In many cases dealt with in the Agreements discussed in the present article the status of the civilian components of a visiting force and of the dependents of its members has been assimilated to the status of these members. The term “members of a force” as used in the present paper often has this more extensive meaning.
page 260 note 1 Annexes to the Proceedings of the Staten-Generaal, Session 1952–1953, Bill no. 2881 (Second Chamber).
page 260 note 2 Cf. a statement of the Netherlands Government, “Memorie van Toelichting”, p. 3Google Scholar; for reference see preceding note.
page 260 note 3 Cf. King, , loc. cit., p. 561et seq.Google Scholar
page 260 note 4 Even in that case a right to sue is not wholly valueless, cf. King, , loc. cit. p. 565.Google Scholar
page 261 note 1 Cf. van Praag, , op. cit., no. 245.Google Scholar
page 261 note 2 Barton, , loc. cit. (vol. XXVII), p. 193.Google Scholar
page 261 note 3 Paragraph 2(e) (Cmd. 7677 (Germany no. 1, (1949)) p. 6 and Cmd. 8252 (Germany no. 2 (1951)), p. 12) Cf. also Charter of the Allied High Commission, Part. 5, para. 2 (b).
page 261 note 4 Cf. inter alia Allied High Commission Law no. 13, A.H.C. Official Gazette, no. 6, p. 54 et seq. For the status of the forces of other Powers, assimilated to the forces of the occupying Powers A.A.C. Law no. 69, ibidem no. 72, p. 1365 (Canada).
page 262 note 1 Cf. on the new status of Germany the Convention on relations between the three Powers and the Federal Republic of Germany, Bonn, May 26, 1952, Cmd. 8571 (Germany no. 6 (1952)). We shall refer to that Convention as Convention of Bonn no. I. As to the character of the mission of the armed forces stationed in the territory of the Federal Republic, see art. 4 of that Convention. The other Conventions of Bonn referred to in the present article (i.e. the Convention no. II, on the rights and obligations of the forces, and the Finance Convention (III)) are linked to Convention no. I (cf. art. 8 of the latter). Their text has been published in the Cmd. paper referred to above. For the revision of the text of these Conventions in connexion with the so-called Paris Agreements, see Post Scriptum.
page 263 note 1 Cf. Art. 2 (a) of the A.H.C. Law no. 13 referred to in note 4, p. 261.
page 263 note 2 Oppenheim, International Law, Vol. I, 7th ed., p. 241/242.Google Scholar
page 263 note 3 One might differ of opinion on the desirability of this trend, but it cannot be denied that it exists. Cf. the interesting lecture of Dr. Jean-Flavien Lalive, held before the Hague Academy of International Law in the summer of 1953.
page 264 note 1 Cf. Dr. Lalive in his lecture referred to in the preceding note and some of the authors quoted by him.
page 266 note 1 Cf. in the same sense a statement by the Netherlands Government, “Memorie van Antwoord” Second Chamber, p. 3 (for reference see note 1 p. 260).Google Scholar
page 267 note 1 Cf. note 1, p. 10.
page 267 note 2 Under special agreements, concluded between the Federal Republic and the United Kingdom, respectively the United States, on the occasion of the revision of the convention in 1954 and annexed thereto, a different procedure was adopted, the main feature of which is that the function referred to in the text has been delegated to the Federal Republic. The text of the agreements is to be found in Cmd. 9368, p. 64 et seq.
The procedure provided in the German-British agreement also applies to the Forces of Belgium, Denmark and Norway.
page 268 note 1 Such agreement is to be found in Art. 7 of the special agreements referred to in the preceding note.
page 268 note 2 For the length of this period see para. 1 and 2 of Art. 4 of the Finance Convention as amended in 1954.
page 268 note 3 Cf. p, 275 below.
page 268 note 4 See, however, the special agreements referred to in note 2, page 15.
page 269 note 1 Harvard Law School research in International Law (Draft Convention on competence of courts in regard to foreign States), American Journal of International Law (Vol. 26 (1932)), Suppl. p. 690.Google Scholar
page 269 note 2 Cf. François, , “Handboek van het Volkenrecht”, Vol. 2, p. 84Google Scholar, Van Praag, , loc. cit., no. 131.Google Scholar
page 269 note 3 The statement in the text is controversial, but we share the opinion of Van Praag, , op. cit., no. 158Google Scholar, in particular p. 384, and no. 258 (chiefly dealing with ships).
page 269 note 4 Cf. Art. 438a Netherlands Code of Civil Procedure.
page 270 note 1 Cf. “Memorie van Toelichting” (p. 4)Google Scholar, referred to in note 2 p. 260.
page 270 note 2 Cf. on State ships in foreign waters inier alia Oppenheim, , loc. cit., p. 762et seq.Google Scholar
page 270 note 3 Cf. on the distinction to be drawn between the two concepts: Van Praag, , op. cit. inter alia no. 258.Google Scholar
page 271 note 1 “Rechtsgeleerd Magazijn Themis” 1953, p. 217Google Scholaret seq. Cf. on this topic also Mann, , The Law Quarterly Review, Vol. LIX (01 1943), pp. 42–57 and 155–171Google Scholar, and Van Praag, , loc. cit., no. 113Google Scholaret seq.
page 271 note 2 The question has arisen in cases where the local courts had to decide whether the local authorities were competent to order the arrest or the handing over of members or deserters of the visiting forces, cf. Amand, Re (1951) 2 K.B. 239Google Scholar, a decision which we have analysed elsewhere (loc. cit., p. 231).
page 271 note 3 Cf. on this principle Barton, , loc. cit. (B.Y. 1949)Google Scholar. We do not agree with that writer as to the scientific foundation of that principle. Contrary to the opinion expressed on page 412 of the cited Yearbook, we hold the view that the fact that a local court entertains an action for false imprisonment for instance, brought by a soldier against his superior officer constitutes a violation of the sovereign right of a foreign State, provided that the imprisonment occurred within the general limits of the power of the officer and was not disavowed by the central organs of the sending State. To declare the local courts competent to entertain actions in such cases would be tantamount to allowing interference in the administration of a foreign State or, in other words, an encroachment upon the latter's sovereignty. Cf. van Praag, , op. cit., nos. 117, 120 and 121.Google Scholar
page 272 note 1 Cf. in this connexion the very clear text of sub-section 3 of section 1 of the British Visiting Forces (British Commonwealth) Act 1933, 23 Geo. V, c. 6, as made applicable to visiting allied forces in the course of World War II, cited by Barton, loc. cit., pp. 397 and 403. We quote the text of that provision at full length:
“(3) Where any sentence has, whether within or without the United Kingdom, been passed upon a member of a visiting force by a service Court of that part of the Commonwealth to which the force belongs, then for the purpose of any legal proceedings within the United Kingdom the court shall be deemed to have been properly constituted, and its proceedings shall be deemed to have been regularly conducted, and the sentence shall be deemed to be within the jurisdiction of the Court and in accordance with the law of that part of the Commonwealth, and if executed according to the tenor thereof shall be deemed to have been lawfully executed, and any member of a visiting force who is detained in custody in pursuance of any such sentence, or pending the determination by such a service court as aforesaid of a charge brought against him, shall for the purposes of any such proceedings as aforesaid be deemed to be in legal custody”.
page 274 note 1 Cf. François, , loc. cit., Vol. 1, 1949, p. 207 and the authors there cited.Google Scholar
page 274 note 2 Cf. Niboyet, , “Immunités de juridiction et incompétence d'attribution”, Revue critique de droit international privé, Vol. 39 (1950), p. 139et seq., in particular, p. 150 et seq.Google Scholar