Proposed codification of governmental immunities and its effect on economic prnileges extended united states forces abroad

• Author: Major Gerald C. Coleman
• Pages: 03

I. INTRODUCTION

In the past two and a half decades, a profound reevaluation of the role of the United States in foreign affairs has resulted in the projection of the nation and its citizens into the world. American interests have expanded in many spheres of influences, but most noticeably in political economic and military matters, In the military sphere, the United States spends approximately thirteen billion dollars annually inpaying, training, and supporting United States forces deployed aboard under our mutual security commitments to NATO and our six multilateral and bilateral security treaties in Asia.' Over 400,000 United States military members are stationed overseas2' and hundreds of thousands of civilian employees and dependents accompany these. forces.

It should be immediately apparent that the status of ow forces abroad is a matter ofutmostimportance, not only in terms of our in.ternational relations with the host nations, but also with respectto the impact that maintaining such forces has on the nation's economy. It is for these reasons that the United States has endeavored to conclude agreements with thoeenationswherelarge numbers of UnitedStatestroops arestationedinordertoregularize

' In%ersoll, Emmmie Interdopendoneeand Common Defense, 71 DEPTSTATE BULL.473, 475 (1974).

Id.

their statu and ~ecure economic privileges which decrease the financial burden of maintaining such forces overseas. The enarmow cost of maintaining troops abroad has also been lessened to some degree by the principle of sovereign immunity before foreign courts.

This article will first examine the development of the concept of governmental immunity as well as the nature of the economic privileges extended United States forces abroad. It will then analyze prospective trends in the application of theimmunity doc. trine, including the proposed codification of immunity standards which will serve to jeopardize the benefits which the economic privileges presently provide. In conclusion, an addition to the proposed codification of immunity standards will he suggested which recognizes recent developments in the area of governmental immunities, but still protects the legal position of American forces abroad.

11. GOVERNMENTAL IMMUNITIES UNDER LAW A. DEVELOPMENT OF THE CONCEPT

Thedevelopment of legal immunities enjoyed by a government inits contactswithather governments can betracedtoRoman1aw.It isinteresting to note that, according toRomanlaw,therelationsofthe Romans with a foreign state depended upon whether or not a treaty offriendship existed betweenRomeand that~tate.~Whenno such treaty existed, persons or goods coming from a foreign land into the land of the Romans and likewise persons and goods going from Rome into a foreign land, enjoyed no legal protection. With the development of the Roman Empire, the number of foreigners entering Rome was so numerous that a system of law developed regarding these individuals and their relations with Roman citizens. This system was known as the jus gentium, or law of nations.' Within the framework of precise legal rules, certain un. friendly acts by foreign statel, such as the violation of am-bassadors or the violation of treaties, would give lise to a causu belli in the event that satisfaction was not given by the foreign state.s

State immunities as recognized today began to broaden during the Medieval period with the rise of thenation states. Throughout history most societies have considered the state and its govern-

I

1 L OPPENHEIM, IznmATlo\AL LAW PEACE 76 (8th Lauferpsehl ed 1956)[hereinafter nred 81 OPPENHEIM].

* Id.

5 Id. at 11 94

ment,thesourceoflaw andofjustice,asndproperlysubjffttothe same liabilities, procedures, and penalties as private persons. This theory has particular appeal when the governmental functions in. volve military affairs. police matters, and the administration of justice.eLikewise, theview that nations arenat subjecttothesame judicial exposure as individuals also applies to foreign nations in their dealings in another country. The justification forthis treat. ment springs from the concept that all states are equal and in. dependent consequently. submission of one state to the jurisdic. tion of another would be derogatory of the former's dignity and in. dependence: additionally, foreign relations could not be properly conducted by the executive authorities if the judiciary could im.pinge upon the practice of diplomacy by entertaining suits.'Thus,a theory of absolute sovereign immunitydeveloped which provided that a sovereign cannot, without its consent, be made respondent in the courts of another sovereign.

This theory was satisfactory prior to the twentieth century because most of the sovereign states of the world concerned themselves more or less exclusively with the government of their own territories and the protection of their sovereign interests. With the great increase in foreign tradeand worldeconomicactivityduring the twentieth century, and the increasing participation by states themselves in economic and commeraal activities, a restricted theory of governmental immunity developed. This restrictive theory, as opposed to the absolute theory of governmental immunity,recognizes asimmunefrom suit only thoseactsofthe state which are sovereign or public acts, jure imperii. but not private acts of the state, jure gestwnis.8

2. THE COMMON LAW APPROACH TO GOVERNMENTAL IMMUNITY

   British and American courts have traditionally adhered to'a rigid interpretation of the principle of jurisdictional immunity, prompting one commentator to eloquently exclaim:

   Only in democratic Engiand and repubixan America can we find the sb-soiutist metaphysres of divine nghf and sovereignimmunity arrayed m thefull 18881m of their fh~~lagicalvestments. reincarnating for B twentieth cenfuly scaety the ancient aedo of Bodm and Hobbes'a Setser. ThrImmvnitasof thaltateand Government EmnomieAdiuzties, 24 LAW & COI7EMP PROB. 191, 293 (1959) [heremsfter cited 88 Setser]-Id. at 295'Statement by Vice Adrnlrai Colclough. Member. Umted States Deieganon, Law of the Sea Conference. Geneva, 1968, reported zn 6 M WH~EM.UI,

   D~GEBTOFI~FTER

   NATIONAL LAW 663 (1968).

   SOD Setser, supra note 6, st 294. 85

   The British courts have long followed the absolute theory of governmental immunity holding that the principle is a rule of customary law rather than one of mere comity and that a foreign sovereign state, its public property and its official agents are in generalimmune from local jurisdiction unless the foreign state consents to its exercise.1° A number ofreasons have been advanced as the basis of the immunity from jurisdiction of a foreign state, including:

   1 Smce all slates are Independent and equsll) saverelgn no state IS amenable to the courts of another atate

   2 Ta implead B foreign atate would tend to vex the peace of nations3 Such immunity 1% a h based an the pmciple of comiti--1n return for a ~on~edsmnofmmunity, other statesmakemutual concessionrof ~mmumt) within their terrifow, 4. To attempt fo enforce a Judgment w a m t a foreign arete uould be ~n

   unfriendh act

   5 The vel). fact that B stare 8 1 1 0 ~

   B foreign stak to fundion within its terntory signifies a eonce~mnof mmunrty, adno foreign state~odd enter

   such stace on any other basls

   Professors Oppenheim and H. Lauterpacht describe the modem Britiah position on immunities as "fluid," adhering to the doctrine of immunity less in cases involving public vessels engagedin commerce than in other situations.1z

   The United States has generally recognized the absolute theory of sovereign immunity since Chief Justice Marshall's opinion in the case of Schooner Exchange v. McFaddonl3 which found American courts to have no jurisdiction over a public vessel of a foreign power. Recognizing, however, the developing world trend toward the restrictive theory of immunity and noting that the Government of the United States has subjected itselfto suit in Uni. ted States courts in both contract and tort, the United States Department of State announced a new policy in a letter dated 19 May 1952 addressed to the Acting Attorney General and signed by the Acting Legal Advisor to the Department of State, Jack B.Tate." In the Tate Letter, the Department set forth as United States government policy its intention to recognize only claims made in connection with the public or sovereign acts of foreign

   J BRIERLY. THE LA* or 64TIObS 243 (8th d 1%3) These pmciplea have been conaiatenrly arsted I" CBIDB before British Commonwealth courts lncludingrhe Porlsmrnt Bsige,EPD 19if188Q1:ThePoitoAlernndr~,i19201P

   36,TheCrirtina.

   L.R. 1 Mehrv The

   Csael, Eremliiion iiom the Juiiadietion oiCanadron Covris 11ANNUURE CAM

   DEN DE DROIT IITERYATIOIAL 159 11971)

   2 See OPPENHEIM, Supro note 3. sf 273

   'A 11 US I7 Cranchm 118 11812)

   I 26 DEPT STATE BUI L 984-85 119621 96

   Republic of China. WS1 Onr B X 218

   [1938]A.C 485Dessaulledv TheR~pubiieofPoland.Il94414D

   19761 GOVERNMENTAL IMMUNITIES statesandnotthoseclaimsconnectedwith theirprivateor commer.

3. DEVELOPMENT OF THE RESTRICTNE THEORY UNDER AMERICAN LAW

   . cia1 acts.15

   The executive having decided that the United States would follow suchapolicy,itremainedforthejudiciary togivethepolicy practical application. In Victory Transport, Znc. u. Cornisarb General,'e the United States Court of Appeals for the Second Circuit maintained that in the absence ofStateDepartment advice to the court that immunity should be.granted, sovereign immunity should be granted only in clear cases involving strictly political or public acts about which sovereigns have traditionally been quite sensitive." These acts are:

   1 lntemsl administrative BCY, such a@expulsion of an alien;

   2 Legidatwe nets, such 88 nationaliiatian:

   3. Acts concerning the anned farces: 4. Acts concerning diplomatic activity: and 6. Public loans 6

   Because sovereign immunity is intended to avoid possible em. barrassment in the conduct offoreign relations, thecourtindicated that the delimitation of the...