Immunity of the United States From Suits Abroad

• Author: By Edmund H. Schwenk
• Pages: 02

Th$ article emmines the doctrine of soasreign immunitg as it applie~ to l'nited States agerzoies, particnlarlll those related to the militarv ond thei. activities in other countries. Various theories of sodereign immunitu, and how they 5re interpreted by cowts around the world, are discussed. The autha con-eliLdes that these theories are unsatisfactory, end that a flnel solutmn to the problem may reqlrire an international eonvention. I. ISTRODL'CTIOX

Ere" in normal times, the United States Government extends its governmental and "on-governmental activities beyond its territorial limits. Its embassies and consulates must purchase or ]esse real estate. employ local personnel and buy goods and mate-rials in local markets. In addition, the Cnited States Government carries on such additional activities as attendance at fairs, establishment of "America Houses," maintenance of travel information bureaus, foreign lending, disposal of surplus commodities, distribution of foreign aid. operations of the merchant marine, and others. Unfortunately, we do not live in normal times. The cold war has brought about an enormous expansion of United States Government activities abroad. United States farces are stationed in many countries of the world. In order to accomplish their mission, they must obtain accommodations, employ local workers and emplayees, buy goads and materials. sell surplus property, maintain clubs. messes, radio and television stations, entertain troops, and establish recreation centers. That the num-ber of disputes arising aut of United States Government activities abroad is comparatively small' speaks for the efficiency and

.The opinions and condu~ioni presented herein are those of the author and do not neces~arily represent the viers of The Judge Advocate General's School OT any other gwemmental agency.

'"Attorney-AdYlior, Oflee af the Judge Advocate. U.S. Army, Europe and Seventh Army; Member of the Distnet of Columbia, U.S. Supreme Court, and German Bar: Member of the Bar of the U.S. Court a i Military Appeala: Lecturer at the Emversity of Heidelbeig/Germany and Eniveraity of Maryland (European Dmsion) : LL.D., 1929, Brealau~Germany: LL.M., 1941, Tulane L'niverlity, LL.M., 1042, Hsrvard University.

'Leonard, The Lnitcd Statas as e Litigant %n Foreign Courts, 1958 PROC. Ax. Sac. Is?'? L. 96 states: "At the present time, the Vnlted Staten is ~ u m g or being sued !n 13 countner. There are 74 fareign suits. 68 af which are against the Umted State8 and 16 of which the United States has Instituted in YB~IOYS foreign courts.''

AGO iW08

high quality of the United States personnel, particularly for that of the judge advocates of the military services. Severtheless, from time to time. disputes are unavoidable. If they cannot be disposed of by amicable settlement, they result in litigation. In such litigation, the United States Government IS more often than not the defendant.'

Many times, suit IS brought against an agency or instrumentality of the United States Government, rather than the United States itself. Whether the defendant has judicial personality is a matter of procedure snd, therefore, resolved by the lex ,fori8 Whether the question pertains to foreign judicial personalities, however, pertinent principles of conflict of laws refer the matter to the law af the country in which the personality has been established. Consequently. whether an agency or instrumentality of the U.S. Government, ruch as Army, Navy, and Air Force bases, missions and units. post and naval exchanges, clubs and messes, embassies, consulates, and the like, may be used in a foreign country depends on whether they are suable in the Vnited States. They are not legal persons under United States law, and thus such suits are in reality against the U.S. Government.'

Likewise, the question of service of process upon the U.S. Government, being a matter of procedure. is governed by the lex ion'.' Unfortunately, the local la^ of most countries makes no provision for service upon a foreign government. Rule 4 of the Federal Rules af Civil Procedure is likewise silent on this p0int.l The lack of specific provisions gives rise to much speculation.. Thus, in actions against the United States in foreign courts, B ~ I -

rice of process has been made upon the Department af Justice, the Department of State. U.S. embassy. consulate, local office of

'Douh, Eoparienoaa a i the Cnited States in foroign Courts. 48 A.B A.J.63 (19621 states: "In June 1960, the United Stater had 288 eiwl C ~ S ~ S , mvaiving mare than $18.000 00, pending I" the mun~of thirty-two countries throughout the world Of theBe, fifty-nine me eisirna on behalf ai the United States and 228 are suits against the United States and Ita agencies:' Thus,It would appear that the number a i suits in foreipn courta by or against

'Dep't of State Instruction 60. CAI10822 (16 Jun 18611. app. to Army

' GWDRICH. sepro note 3: RESTATEMEIT

OF C ~ F L I C T

OF LAWS S 589

Reg. Pia. 27-40 (25 May 18671, a8 noted m 5s AM J. IST'I L 532 (19621

(19161

,.._. .

'Pnrdy Co. V. Argentina, 333 F.2d 85 (7th Cir. 1964).

'Griffin, Adiecrzsr Law and Praetier in Swis Agatnst Foreign Govern-ments, 36 TEMP. L. Q. 1 11862) : late, Sorweign lmmiinity, 74 YALE L. J. 902 (19SS)24 A00 ,1008

IMMUNITY FROM SUITS

the USagency concerned, or local U.S. officers or employees.' In

the case of Oster u. Dminion of Cenada: it was heid that service of process by the delivery of a copy of the summons and complaint to the Consul General of Canada or someone connected with his office in Xew York City was insufficient to obtain iuris-diction in personam over the State of Canada. In the absence of specific provisions, the question arises whether service of process could be made upon the foreign state's diplomatic representative.Io In this connection, however, Judge Lauterpacht inquired: "If the diplomatic representative is to be the proper recipient of the writ in his capacity as the representative of the state, how can any such innovation be reconciled with the existing law prohibiting the service of a writ upon a foreign minister7"" Moreover, the question arises whether diplomatic representatives of foreign governments are generally authorized to accept service of process on behalf of their government. Both questions have been answered by the Department of State in the negative.'>

If service of process has been properly made, two questions arise: (a) whet'ner the US is immune from the jurisdiction of foreign courts, and (b) how this immunity should be asserted. Question (a) must be Considered in the light of pertinent treaty provisions and, in the absence af treaty provisions, in the frame. work of general prineipies of international law; question (b) under the law of the farum (ler fori).

'Doub, B U ~ O note 2 at 65, stating: "The courts of Italy have held that

nenm of pmcenn upan almost any omeisi ai a foreign governmental agency

is B valid one and on ~everal ~ e f s ~ i o n ~ the French courts have met the

iegsiiatie difficulty in the same way. In Greece service on a foreign sovereignid assimilated to its requirement for proper aerviee upon the loeal sovereign. In other vuordi. the method of sewice oi omces~ in the United States or

proee3.s was effected upm ita C&ul General and there was pending before the Court an application for holding that the purported eervice of process was ineffectme.

"In the ea~eof Prs. J. I. V. Republic of Latvia, 4 ReCht8prechung sum Wiedergrlmaohungs7echt 568 (1968), as noted in 48 AM. J. IIT'L L. 161 (10541, it was held that service on the Ambassador 07 his representative in

"Lauterpacht, The Pmbism at Jwiadictmnei Immunitlea at Foreign States, 1061 BRIT. Y.B. IaT'L L. 246.

"Letter from the Acting Legal Advisor, Leonard C. Meeker, to the Assistant Attorney General, John W. Douglas, 10 Aumst 1061, 50 AM. J.IXT'L L. 110 (1066).

man^ rumeient.

11. TREATY PROVISIOSS

In the 1948-1968 decade, the Department of State negotiated 14 treaties containing a prarijion obligating each contracting party to waive sorereign immunity for state-controlled enterprises engaged in business activities within the territories of the other.ls A typcal immunity provision appears in paragraph 2 of article XVIII of the Treaty of €riendship. Commerce and Navigation between the Federal Republic of Germany and the United States of America, providing:

No enterprise of either Party, including corporations, aisoeiatmns. and gorernmeir agencies and mfrumentalitiei, which is publicly awned or controlled %hail. if It engages I" commercial. industrial, Shipping OT other businerr aetirit.ei within the territories of the ather Party, claim or enjoy. either for itself OT far its property, im-munity from taxation, rut. execution of judgment or ather liability to vhich pr~varely owned and controlled enterprim are subject therein

To apply the above-quoted waiver provision properly, it must be understood that "Party" within the meaning of the quoted provision is the United States on the one hand, and the Federal Republic of Germany (or any other counutry, with which the Treaty of Friendship, Commerce, and Sarigation has been concluded) on the ather. It has been suggested that the quoted provision is not identical with the "restrictive theory" adopted in the Tate letter." but has a more limited and specific objective than the letter:' In support of this proposition, it has been submitted that the term "enterprise" in the quoted provision applies only to "entities of the character of enterpriser in a free-enterprise economic system": that the work "including" IS equivalent to "in the form of"; and that the quoted waker provision is applicable only in the event an "enterprise" is engaged in business activities, i.e., activities for profit or gain." While this interpretation may be ac-cepted by American courts. it is doubtful whether it will be

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Setner. The Immiinity Wairer ,or State-Contmlled Biisznt~a Bntrr~ w2Bes in Uinztrd States...