646
JURISDICTIONAL IMMUNITIES
William C. McAuliffe, Jr.
The principle of exterritoriality sets question, namely how far this immun up exemption from the operation of ity extends.2 the laws of a state or the jurisdiction of its courts on the basis of a fiction In the same vein, Briggs notes: that certain locally situated foreign per The theory of exterritoriality of am ~ons and facilities should be deemed bassadors is based upon the fiction to 1)(' "outside" 1111' slale. Thus. the that an ambassador, residing in the principle is aelually a rational!' for State to which he is accredited, should a Sl't of immunities accorded f on·ign be treated for purposes of jurisdiction hrads of state temporarily prrsent, to as if he were not present. Ogdon traces this theory to the imperfect their retinues, diplomatic agents and development in the feudal period of members of their households, to con the concept of territorial, as opposed suls, and to foreign men-of-war and to personal, jurisdiction and the inor other public vessels in port.! dinate development of diplomatic priv ileges in the sixteenth century to The principle has been keenly crit cover the ambassador, his family, his icized. Brierly says: suite, his chancellery, his dwelling and, at times, even the quarter of the TIll' h'rnl "1'xlt'ITilllriniily" is 1:11111' foreign city in which he lived, all of mllniy used to descriiJe thc st~tus of a which were presumed in legal theory person or thing physically prcsent on a to be outside the jurisdiction of the statc's territory, iJut wholly or partly receiving State .• , , Modern theory withdrawn from the state's jilrisdiction overwhelmingly rejects the theory of by a rule of international law, but for exterritoriality as an explanation of many reasons it is an objectionablc the basis of diplomatic immunitic<. term. It introduces a fiction, for the Thus, Profe~sor Diena in his Report person or thing is in fact within, and to the League 0/ Nations Committee not outside, the territory; it implies of Experts for the Progressive Codifi that jurisdiction and territory always cation of International Law, 1926 •. , coincide, whereas they do so only gen 20 AJ.I.L. (1926), Spec. Supp., 153, erally; and it is misleading because observes: "It is perfectly clear that we are tempted to forget that it is ex-territoriality is a fiction which has only a metaphor and to deduce untrue no foundation either in law. or in fact, legal consequences from it as though and no effort of legal construction will it were a literal truth. At most it ever succeed in proving that the per means nothing more than that a pcr son and the legation buildings of a son or thing has some immunity from diplomatic ap:ent situated in the capi the local jurisdiction; it does not help tal of State X are 011 territory which us to determine the only important is foreign frolll the point of vil'w IIf 647
the State in quC'stion. There arc l'ouut! cogllito ..• l'lIjoys the SlIIlIe privil,'ges practical as WllU as theoretical reasons as if travelling 1I0t illcogllito. Tlw for abandoning the term ex-territorial only difference is that many cere· ity•••• "3 monial observances . . . are not ren dered to him when travelling incog· Judge Moore said this: nito • • . • All privileges mentioned must be granted to a monarch only as The exemption of diplomatic officers long as he is reaUy the Head of a from the local jurisdiction is often State.5 described as "extraterritoriality." The word, however, is in relation pecu As to the retinue of a monarch, the liarly metaphorical and misleading. It is admitted that if the government of same treatise states: the country which the minister rep· The position of individuals who ae· resents waives his immunity he may company a monarch during his stay be tried and prosecuted, criminaUy or abroad is a matter of some dispute. civilly, in the local tribunals. His im· Several maintain that the home State munity is therefore in reality merely ('an claim the privilej!;e of C'xtC'rritorial an exemption from process so long as ity for members of his suite as wC'lI 4 he retains the diplomatic eharacter. as for the sovcrci(:n himseJ£; hut otl\('rs dl'ny this. The ollinion of the The principle of exterritoriality, of former is probahly correct, since it course, has application to a head of is difficult to see why a sovereign state when he travels outside his own abroad should, as regards the mem bers of his suite, be in an inferior territory. Lauterpacht's Oppenheim position to a diplomatic cnvoy.G discusses this situation, first, in terms of monarchs. From this consideration of mon However, as regards the consideration archs, the treatise proceeds to a con· due to a monarch, when abroad, from sideration of the position of presidents the State on whose territory he is stay· of republics. ing, in time of peace, and with the knowledge and the consent of the In contradistinction to monarchies, in Government, the foUowing may be republics the people itself, and not a noted: • • . He must be granted so· single individual, appears as the rep· caUed exterritoriality conformably with resentative of the sovereignty of the the principle par in parem non habet State, and, accordingly, the people imperium, according to which one sov· styles itself the sovcreij!;n of the Stalt' ereign cannot have any power over •... [AJ prC'sid,'nt, as ill Francl', nnt! anotlll'r sovl'reign. He must, there· the United States ..• represents the forl', in every point Ill' exclllpt from State, at any rate in the totality of its taxation, rating, and every fiscal regu international relations. He is, how lation, and likewise from civil juris· ever, not a sovereign, hut a citizen diction, except when he himsl·J£ is the and a subject of the very State of plaintiff. The house in which he has which, as president, he is Head.... taken up residence must enjoy the As to the position of a president when same exterritoriality as the official abroad, writers on the Law of Nations residence of an amhassmlllr; nil .•• do not agrl'e. Some maintain that, official must he allowed to enter it since a president is not a sovl'rcij!;n. without his permission • • .. If a for· his home State can never claim for eign sovereign has immovable prop· him the same privill'grs as for a mono erty in a country, such property is arch, and l'gprl'ially thnt of ,'xtrrri· under the jurisdiction of that country. toriality. Othl'rs distiuguish lll'twc,'n But as soon as the sovereign takes up a president staying abroad in his offi· his residence on the property, it be· cial capacity as Head of a State ~nd comes exterritorial for the time being. one who is ahroad for his privute The wife of a sovereign must likewise purposes, and tht'y maintain that his be granted exterritoriality, but not home State can only in the first' ca~r other members of a sovereign's fam· claim extC'rritoriality for him. Others i1y • • •• [AJ monarch traveling ill' al:uin will not admit any diffC'renl'e in 648 Ihe posilion of n prrsidl'nt ahroad granted to foreign representatives and, from Ilml of 1\ mnnnn'h nhrnlltl .... on the other hand, of emphasizing the As n'l!nnl~ l'xll'lTilorinlily, 1IIl'n' ~I'I'm~ sovereignty and equality of the several 10 hI' no ~notl n'a~nn fnr dislin/!uish. states. It was, however, open to the ing I)('twccn thc posilion o( a mon· disadvantage not only of hrin~ a arch and that of presidents or other fiction but of permitting inferences Heads of States.7 more comprehensive than the position of the ambassador called for. In con Thr sllhslanlh'r ('on lent of Ihis rip:hl sequence, it has been less refcrred to of recent years; and the immunities of extrrritoriality will be discussed granted to public ministers are now next, with reference to diplomatic rep generally explained as a mere exemp rrsentativ('s. tion from thn local law, hased IIpon Tlw historieal ('voltttion of the prill' the necessity of securin/t In the min ister the fullest freedom in the per· ciple of exterritoriality as the rationale formanl'e of his offi .. ial dutil'~.R for a body of traditional diplomatic immunities is not without inten'st, al· Lauterpacht's Opprnhcim presclltf' though it has passed the heyday of its a good summary of the substantiv{' accrptability. content of diplomatic privileges bound up in the principle of exterritoriality. By lon~ custom, nntcdatin~ Jlcrhnp~ nil othl'r mIt's of int('mntional lllW, This summary is prefaced ,,,ith a de till' diplomatic u/!l'nts sent hy nne fcnse of the principle itself, as fol state to another ha\'e h('cn re~ardcd lows: as posgessing a pel'uliarly sacred char acter, in conSl'!Jm'nC(' of whil'h Ihey The exterritoriality which must be havc been accorded special privile~cs granted to diplomatic envoys by the and immunities. Thl' ancient Grl'cks Municipal Laws of all the members rrgarded an attaek U)Jon the ))('r5nn of the international community is not, of an amha~sador as an orrl'nsl~ of Ilu, as in tlH' ra~c of 50\,l'rci~n Hrnds of /!rRV('st nntun'. Th,' wril('rs nf Illll'ir'nl Stalt'~, hn$".1 ,'11 til(' pri lll'i pit, par ill Hunlt' \\'('1'('" l1unnillHHIS in "Ul1si,h'rinp;, pllrt'1Il /1(171 h'lbl'l i1llJlf'Tilll7l, hut I'll un illjury to .'lI\'(IY,. u" n (1t,lilll'mlt' the nl'r.'~~it\' thnt "ll\'('\'~ lllu~t, fllr infrnl'ti(lll of thl' jlls ~1'1IIiIl1ll. Grotiu" the purpogl'" (If fulfillin/t' thl'ir (Inti.,,., wrote in 1625 that there were "two be indeprnc\rnt of the juri~llil'tion. points with regard to ambassadors control, and the like, of the receiving whieh are everywhere recognized as States. Exterritoriality, in this as in prescribed by the law of nations, first every other case, is a fiction only, for that they be admitted, and then that diplomatic envoys arc in reality not they be not violated." The basis upon without, but within, the territories of which this personal immunity'rl'stccl the rel'l'iving Statrs. The trfm "exter was . generally found in the principlc ritoriality" is llc\'crtlw\c55 \"nlnohl,' h,'· that the ambassador personified the cause it demonstratl's denrly the fact state or sovereign he represented. From that envoys must, in most rl'spccts, bl' this principle de\'eloped not only the treated as though they were not within custom of according special protection the territory of the receiving States. to the person of the amhassador hut Thc so·r.oll('d I'xll'rrilorinlity nf /'n· also a comprehensive exemption (rom voys tukt-q practicul h.nll ill u !wdy the local jurisdiction. In explanation of privileges ....0 of the privileges and immunities thus granted, writers worked out the fic The enumeration of these privileges is tion of exterritoriality, which held as follows: that the ambassador and his suite, together with his residence and the The first of these privileges is immull surrounding property, were legally ity of domicile . . . . Nowadays the outside the territory of the state. This official residences of envoys are, in a fiction obtained for a time a foothold sense and in some respects only, con in international "law, and served the sidered as though they were outside useful purpose, on the one hand, the territory of the receiving States of explaining the actual immunities ". . .. [I]mmunity of domicile granted 649 to diplomatic envoys comprises the so-called Right of Chapel. _ .. This is inaccessibility of these residences to the privilege of having a private officers of justice, police, or revenue, chapel for the practice of his own re and the like, of the receiving States ligion, which must he granted 10 an without the ~pccial consent of th,' rl' envoy by the Municipal Law of the spective envoys _ _ _ _ Thc ~econd priv .receiving State.tO ilege of envoys in reference to thl'ir exterritoriality is their exemption from A number of precedents and mUniCI criminal and civil jurisdiction _ _ _ _ pal statutes illustrate below somp of thl' rule that an envoy is exempt from these specific elemrnts of the privilege civil jurisdiction has certain excep tions: namely, (a) if an envoy enters of exterritoriality. an appearance to an action against , In the famous NikitschrnkofJ casr himself nn,1 aIlow!i Ih,: a':lion 10 pro (French Court of (assation ((rim ceed without plcndinl! his imllluuily; inal) 13 Or-tob('r lR65. Journal du nr (II) if hI' himsl']f hrin/!s an aclinn Palais (1866). p. 51) thr ar('u~rd. undl'r Ihe juri<,Ji,'lion of th,' n",,.h'inl! SIUII', wlll'reupon III(' Cllurt!! of Ih,: lilt Nikils('hpnkofT. a privatI' Russian ('it i ter have civil jurisdiction liver him to l.CIl noL a memher or Ihe h'I!aliOI1. hml till' extent, it is submitted, of enforc enterpd thr (zar's Paris Embassy al10 ing the ordinary incidents of proced assauItpo its First Srcretary ano two ure, including a set-off or counter claim by tl\(_' defendant arising out of "foreign" (?) scrvants who came to the same matter, but even then not so his assistance. A t the request of thc as to enahlc the-latter to recover from First Sccrelary, thc FrC'nch poli('p I'll thc envoy an excess over and ahove tcn'(l thl' Embassy ancI arresled Nikit the latter's claim, (c) The local courts schenkoff. It is disputed wll('ther or also have jurisdiction as regards im movahle property held within _ , . the not the Russian Government rver rl'cl'ivin/! State by an envo}'. not in his sought to try the accused by Russian offirinl characler but as a Jlrivate in law, on thc basis of the exterritoriality ,Ih'i,)unl, nnd t,l) in >,mn" "'"llItri,''' of tIl(' Emhassy. Howc\·cr. Ihe Fr!'ndl , , . n~ Tt'l!nTl)~ 1lI"""nnlil,' \"'nlun'~ in ('0111'1 did recil!' il~ j\ll'isdirlioll ill III(' II'hh'h lit' Illi~ht ,'n~n~" un th,' ""Ti· "'r)- of tIll' TI",,'h'inj! ~I:I'" , • , , Th,' folJo\\'illp: I!'nns. a~ a preliminary to third privil"l(c of "\I\'oy!' in reC,'r ils (It-cision: ence to their exterritoriality is exemp In view of the contention that the tion from subpoena as witnesses. No crime with which the accused is envoy can be compelled, or even re charged must be regarded as having quested, to appear as a 'witness in a been committed by a Russian subject civil or criminal or administrative upon another Russian subject or for court • • , • The fourth pril'i1ege of eigners on the premises of the Russian enl'0Ys in reference to their exterri Embassy in Paris, and, in consequence, toriality is exemption from the police ill a place situated outside the terri of the receiving States • . • • On the tory of France and not governed hy other hand _ •. an envoy _ •. is ex French law and to which the juri~dic pected to comply voluntarily with all lion of French courls cannot he ('X such commnnds and injunr.lilln~ "f the It'n tl,~( I : local police as, 011 the one hand, do Whereas, according to Article 3 of not restrict him ill the effective exer the Code Napoleon, all those who live cise of his duties, and, on the other in the territory [France] are subject hand, are of importance for the gen to [French] poliee and security laws; eral order and safety of the community. Whereas, admitting as exceptions to Of course, he cannot be punished if this rule of public law the immunity he acts otherwise, but the receiving which ill certain cases, international Government may request his recall law accords to the person of foreign • • .• The fifth privilege of envoys in diplomatic agents and the i .. gal fiction reference to their exterritoriality is in virtue of which the pre,,;iscs tlt!'y exemption from taxes alld the like .... oC'cupy arl' dl'l'm!'d to b,' situa,,") oul A sixth privilege of envoys in refer side the t.crrilory of the sovcreign to ence to their exterritoriality is the whom they are accredited; 650
Whereas, nevertheless, this legal fic even thou/!:h, in the interest of func· tion cannot be extended but consti tion, the local authorities must refrain tutes an exception to the rule of from the performance of certain olli tcrritorial jurisdiction _ . • and is eial acts on diplomatic premises. A strictly limited to the ambassador or request by the Afghan Government for minister whose independence it is. de the extradition of the murderer for signed to protect and to those of trial in Aghanistan had been granted his subordinates who are clothed, with by the German Government but was the same public character; subsequently -waived by the Afghan 'Vhe-reas, the accused is not attached Government •.•. In Munir Paeha II. in any sense to the Russian Embnssy Aristarehi Bey, 37 J.D.I. (1910)., 549, but, as a for('i~lll'r re-gidin~ for the the Civil Tribunal of the Seine, on time in Franc(', was snhj(,(·t to Fr(,lH"h June 26, 1909, held that it had juris law; and whl'rcns thl' I'lne-c whew tIll: diction with rcfl'mncn to a rontral:t rrime whil·h hI' is rhnrgl'd with rom signed in the Ouoman Elllha,,-~y in mittinl! rannot, in 51' far liS ht' is ron Paris by Munir, the Turkish Amhas· rt·rned, he r('l!ardl·d ns ontside thl' sador, and Aristarehi, a Turkish na lilllitH of I fore'III'h 1 tl'ITitllry: 111111 tional. The' Court denied defendant's when'us it follow,; thnt thl' 1'f(1(~1·I·d contention that, because of thE' extt'r in~s and the jurigdietinn of the Fr('nrh ritoriality of the diplomatic prcmist's, judiciary are clearly established •. _ ; the contract had been concluded in Whereas [the proceedings] were actu Turkey. In Illc Rasili.adis Cn.~e, 49 ally' initiated at the request of agents .1.1>.1. (1922), 407, tl... Cnllrl nf of the Russian Government. _ • in the Appeal of Paris on March 1, 1922, r(' lil!ht of these 'consillcrutinns, thc con versed a decision of the Civil Tri· tention advanced is without validity.ll bunal of the Seine, 48 J.D.I. (1921), 185, that a marriage contracted by Other cases have followed in [he two Greek subjects in the chapel of same veil) as the landmark Nikitschen the Greek church annexed to tht' koff decision. Greek Legation in Paris must, because of the exterritoriality of the diph The rejection in thl" NiTiitschrllko/f matic prelllil'I'l', 1)(' rC'gartll'd al' hm'illl! Cnsl' of Ihl' fi"tinn thnt dil'lolllntir ),('I'n I'I'dorllll't\ nn Gn'('k It·rrilt'ry. III I'n'lIIi,;C's arc dCI'nH"d to Ill' ('xll'rri tll·I·larin::: tIll' lIIurrin:::,· IInl\ utili vuill tnrial has been sUPl'lIrt('d in nuntefllns h""nu~,' 1I0t ill ('nnfnrlllity with Fn'lwh decisions. For cXlIlIIllle in IIII~ 7'ro law, the Courl ob5ervl'd, "thnt nl chano/f Case, 37 J.D.!. (1910), 551, though the premises of an embassy the Tribunal Correctionnel de fa Seine and of a legation must he rCl!arclcd held, on February 8, 1909, that it had as inviolable, thl" premise'S and t hC'ir jurisdiction over a Bulgarian national dependencies [e.g., chapell nl'\'crthl" who, within the Bul/!:arian Le/!:ation at less constitute an integral part of Paris, had thrNltened the Bulgarian Frcnch territory und 1\ marring.: tl ... r" Minister with death, despite defend cOlltruel('d is IInl COllI rarlt'd in a fnr· ant's plea that Ihe act rhargcd mnst rign conntry." Tn a tll'l'iginll nf Mnn'h be dl'l"nl('d to havc I)('cn rOllunitted 15, 1921, th., AII~lrinn (}bl'T.~t.., Crr on foreign territory outside the juris ichlshof held Ihat, arl'tlnlillg In II,,~ diction of France. In the Afghan Em principles of international law, lega bassy Case, 69 Entscheidungen des tion buildings of a foreign sovereign Reichsgerichts in Strafsachen 54, An State were inviolable and not suh· nual Digest, 1933-34, Case No. 166, jeet to attachment or judicial execu the German Reiehsgerieht in Criminal tion •. _ .19 Matters on November 8, l!"l4, reached a similar conclusion with reference to An assistant naval attache can eval an Afghan national who in 1933, on the premises of the Legation of Af uate his privileges and responsibililiell I!hanh,tan in Berlin, had mnrdrrrd ullc!t'r in\('rnational law all a memhl'r the Af~han Minister, th(' Court oh I,f :1 l '.S. tlil'l"IlHllie llli:<: c1o~gcd city. From Lhis difficult exam· and levies for public services as well pIp the common sense rule enwrges as as traditional fiscal levies are denomi it exists in all cases: Diplomatic per· nated "taxes." For example, the naval sons enjoying the priyilege of freedom attache may be exempt from general from police rcgulation should end· taxation on earned incomes in the eavor Lo make n'asonahle compliance state to which he has been sent, but thNI'Il"ith fl>r thl' : to recall him ... normally a serious $ccurity. Laws and regulation$ of a reflection on the conduct of the dip· country establishing so·called zones of lomat. There is one country that has I"nlry. rl'strictl'd ZlHlr$. s('('urily 7.on('$ used or abused this declaration as a and ()lllt'r~. IlIU~t II(' ,)h~('rn'(1 \l\' Iht' political tool and a means of harass· attache in the sallll' malllH'r a~ 'olh('I' ment. and that is the Soviet Union. laws. Su('h rrstrietions arc normally Whenever the United States requests applil'd on a reciprocal ba~is and arc the recall of a Russian diplomatic of natur,ally found mainly among those ficer or de('lar('s him pC'TSOlla /lOll cOllntries not having the fril'lI(lIir$t of grata for valid reasons. the Russians rrlalions. Onr would hardly ('xpl'('1 n' selcct one of Ollr diplomatic offic,'r~, $trit-lion$ of Ihis Iypr helwcen the apparently at random, and dl'clan' Uniled Slates and its frirn,i1y allicR. him persona non grata. In these cases On Ihe nlh!'r halld, mallY nf us ... 1111: ",~c1arntion i~ not n sullstilu,,' have !lI'lml nf trav('! r!'~lri"linlls illl lur puni"llIIw"t, hUI l'uJiliclI1 rt·llIlin· posrd hy thr' Soviet Union and hy tion. Needless to say, this is an the Unitrd Stale$ on diplomatic per abuse .... Usually the United States sOllm'! and visitors from IIII' olhl'r lodp;('s a strong protest against such ('ountry. Such rrstri"lioll~ are fn' unfounded action, aR it did in the quently rclax/'(I or lifted fmlll time case of Commandl'r R. O. Smith, As to time as political Il'n$inns lrs~l'n. sistant Naval Attache to Moscow, Bllt whilr thr\" are in for('r. thrv in October 1962.27 mU$t br oh~.'n·~d by thl' attache. "i~, lalions 1I"lIa1\y hm'r diplolllaliC' n'per A naval attache also has a respon (,1I,,~inn~ and may It'ad In till' n'rall of sibility to refrain from personal en th .. attadle.~p tl'rpri~l'~ for profit il~ th(' hMt COUIl Becam:(' of r('dllcrd lahor costs in try. some cOllntriC's, ('\'en an a~~istant naval Diplomatic officers arc prohihited from allaehe may he ahl<' to retain servant~. engaging for their personal profit in SlIc:h ('mploynl('nt may rai!'e an ohli any profrssional or commercial activi I!atioll ror him ttl ol'~('IT(, oJ,li:raliulI'; tit'S in Ihl' n"'('ivinp; Slnl,'. Surh n(' li\'ilit'" W01I11I hI' illl·olllpntihlt· will. 11.11 illlpn::(·.! h~ Ih., 1.-1t':1! :-('h('1I1l' nf ptlhli(' "Iaills of till' ,lipl01ll1llic 1I!-!-1'1I1 lIlIII his ~()cial s('cnrity ill1po~cd 011 employen; ,llIli,'" lowllnls his OWII rOIlIlI!'}'. l\lili g!'lIC'rally: tary attaches on diplomatic dllty in a foreign country could hardly recon For pcrsons to whom ... excmplion cile such activitirs with their primary does not apply, the djplomalie officer dlllil''' toward their service. That thcre must observc the social security provi can bc rare cases of such activities by sions of Ihe sending Statl'. For in· diplomatic agr·nts iR shown by the fact stanec, a diplomatic officer wh" hrings that the drafters of thc Vil'lllla Con. his own $I'rvants inlo Ihe host coun· vrntion ('onsidered il nrCl'ssary to try and pays social security for them include Artidrs 31 and 34- whidl hack hOl1le nrl'd not pay $odal 5('ellr provicll' for paymenl of taxc's on in ity for thrill ill Ihe n'c"ivilll! Stalt'. come from such acli,·ilirs. and for The same holds true if II() hirl's lIa ch-il jurisdil'lion for ll'gal a('1 inns d,, lionals from a Ihird counlry and pnys veloping from such activilies.2s for ~ol'ial s('curily iu that ('olllltr),. If he hirrs servants locally, hr mnst The a~sislant naval attache Illllst pay fnr Iheir sndal sl'eurily in arcord also ohs('r\'e sllch restrictions of the ance with local law. A dipillmalic officer may voluntarily participlltc in host state a~ ar!' imposed re:ranlin~ the social srcurilY systrl1l of thr host trawl within that stat~'. r(luntry for l1I'rsons otlwrwis(' I'XI'l1Ipl, providrd that Ihis parlicipalion is pl'r Diplomatic officers arc assured the milled by the receiving State.:lO right of freedom of movl'mrnt and travrl in the rccriving Stall', Each n;tion, however, has the right to illl Finally, the naval attal'hc lllay have pose certain restrictions on this free important r('spon!'ibililies with refer dom for reasons of its own national ence to a Status of Forces Agrc('mcnt. 655 The as!'istant attache may have to Subject: Exercise of criminal Juris· render aid to the attache in me('ting diction over United States th(,FI' respollsihilitil's. Personnel by Foreign Au thorities Tit,· n~n~lln fur Illl'ni innil\~ :-\lnlll~ (,f To: All United States Army, Forces Agreements ..• is 1I0t so Navy and Air Force Attaches much that thc allache may at some l. The Scrvice Attaches designated as time need the assistance of a country Executive Agent by Joint Army-Navy· representative, but that he may well Air Force Ll'lter No. Sa, dated 28 line! himsrlf ill the position whl'fl' hI' July 1961. will pl'rfonll thc dllti,'~ of a :wtmllly 1m" to lI!'"UIIII' tilt' fnll,·ti'"1!' dl'signated COlJlmandin~ Officl'r or and responsihilities of a counlry r!'p· country representative in connection n'sl'ntath'". In ,'onntri('s will. whil'h with the exercise of criminal jurisdic th" IIl1ilc,e1 Stilt'·, IIIIH l'nt"n,e1 intI) tion oVI'r U.s. 1ll'r~nl1lll'l hy forei~n ~tlltus of Vorc!'s AgrcI'ml'nt~, (lro· uutllllriti,'s, in thns,' l:olllltri"!1 wlll'rl! eedures have evolvell to handle all a Sl'rvice Auachc has been assignecl casl's in which military IlI'rsnnrll'l may these responsibilities pursuant to ap lU'ermll' suhj'~l't tn thr: juri"lil·tion of propriate Dl'partmcnt of Defense and local courts .... Orildnally, th,· pro· Theater directives. ccdurcs werc meant til apply IIuly in 2. Administrativc rl'l,ortg \'l'flllirl'd 10 rountries with whirh the United Statl's be submilll'd hy allul'heg nndt'\' BI'\" had sUl'h agn'enll'nts. hut e\'ent ually vice dirl'l'tivl's in ('oIJIll'ctinu with till' tl1l'Y w('re' ,'xpallll"d to apply world· exerciBe of criminal jurisdil'tion o\'('r wiel,' .... OIl(' pfllhh'm that hnd to. hI' U.s. personnl'j by foreign authorities ~nh"d waF to whllm til :rin' till' reo will be accomplished by the Execntivl' sponsibility of carrying out thl' pro· Agl'nt. Such reports will he forwardl'd cedurl's l'stah\islll,e! und,'r t!le$l' dircr· 10 thl' Jndgi, A,I"oc:a"~ Gl'llI'ntl of th" tivl's in those countries in whidl there g('rvice of Ihl' EXl'('ntivc Agent, nsiIJg wen' no Unitcd States commands .... the format prescribl'd hy that H'\" At first it was Iluite logically given to vicl' ....:11 thr srrvire attarhes in such a mann!'r that rarh tOllk rarc' I,f ras/,,, i!l\'nh'in:r In a fon,ign port. a U.S. nag mcr 1111'111111''''' IIf hi- 111111 -"1"\ i,"'. 'I'h1l< dlant \,I'!'!'l'l \\'ollld not l'njoy lit!' sanll' th" Na\'al Attal'h" \\llJIlel hallelle' 111<1· jllri!:'dic1ional immunities as an AllIer I,,'dun's for linilc'd Stn"'~ sailors on ican public \'esscl.:!:! At th!' outs!'! of shon' in the cnuntr}' to whil'h hl' was accredited, following Navy Depart 'a consideration of tit is subjcct, it ment instructions, provided he had !'hould bc noted that it is closely re heen given that responsibility. In such lated in onc important aspect to the cases he might have been required to Rossiya Case below_ In the 20th cen maintain liaison with the foreign gov· ernment in attempting to effect waiver tury, state-owned vessels have engaged of jurisdiction so, that the offender in commercial activities under all sorts could be tried by court·martial rather of arrangements_ The rise of Com than local civil courts; he would have munist states has given impetus to to obtain local counsel where waivcr th!' PlllploYIlll'llt of l'tate-owlI('d \'cFi'pli' of jurisdiction could not he ohtnilll'd, and hI' would pTl'parl' nil n'llllrt" of for !'tat!'-('ontrol\ed ,<:OIllIllCITl'. '('hi!'. thc incident relJllin'" . , •. !\Tallers of COllrSl', is tl\l~ topic; of the Ho!'siya have hecomc somewhat mon: comJlIi Case. However, it must also be llotpd catcd with thc establishment of the that thc United States ha~ in the past Executive Agent system under which only one military attache in each charter('d war-built. government-ownpd country is given the r!'sJlonsiiJmty for tonnage to commercial operators,:!:! administrative mallers for all three Thus, government-owned U.S. ships services .•.• The duties of the Execu have engaged in commercial entN tive Agl'nt Attache in Status of Forcrs l'ri!'e!', jus1 a!' BII!'!'ian ships Ita,,!', maUl'rs ore srt forth in Joint Army Navy-Air Forcc Attache lcttcr No. 26 Leaving the above noted complicat of 21 Sept. 1961 ing factor' for treatment in the dis· 656 cussion of the Rossiya Case, it is pos rlosely. Further. the Opinion says sible to assert that the situation is nOlhin~ abont the position of passen simpler as to tIl(' jurisdictional slatus ~ers; it docs 1101 indicate Ihe sort (lC incidents which ou~ht to be r,,~arded of a priyatrIy owned U_S. flag mer as "compromisin~ the peace of the chant vessel, operating in completely port." nor by whom the point is to privat(' commercial service, while in a be decided; it does not say by whom foreign port. (e.g., hy a consul, by the master, by the accuSl'd, or by his \'ictim) the assistance of tlie port authorities must A private ship in a forl'i~n pori i~ he invoked in order to justify their fully snbjcct 10 the local jurisdiction interference; it does not even say in civil matters, but there arc two wheth".. this int('rference may take views of its position in criminal mat the form oC as~umill~ jurisdirtion. TIll' lers. Thill Cnllll\ypt/ hy (;""111 Hrilllill F ... ·III·it ,·ollrl ... illl),·,·rI 11I·lrI. ill llI!ifJ, IISSI'rlll Ihe (:lIlIIl'lele snhjcclillll of when a ship's ollicer on hoard an the ship to the local jurisdiction, and AmPTican ship, the TempcM, had regards any derogation from it as a killed a seaman on the same ship, thnt matter of comity in the discretion of some rrimes arl' ~o seriom; that with the t~rritorial state. We n:gard the ont Te~ard to tll('ir futnrc ('on~e local jurisdiction as complete, but quenc('s, if any. Ih('ir mere rommis WI' do not re~anl it as ,'xl'lnsin': w,' sion rompromises th!' peare of the "xercise a concurrent jnri~diction ov('r port, and th"rdnre hrinp;s thrill undrr British ships in foreign ports, and arc the local jurisdiction ...30 ready to concede it over foreign ships in British ports. That nations have endeavored 10 The other doctrine is founded on an regulate th(' jurisdiction of slales ()v('r Opillion of the French Conncil of foreign ships in port by treaty is illus State in 1806, refcrrin~ to two Ameri can ships in French ports, the Sally trated by Wildrnhl1s' Case, 120 U.S. 1 and the NpI/I/Oll. 011 each of which 0111' (1887). This is a landmark deci);ioll mc:rnhcr of Ihl"! crew ha,1 assanl,,·" on Iht' subject of national juri8c1irlion allolh,·r. Bllih litl"! Alllerican ronsllis owr \'i;;ilinl! ron·ip:n ll1et"ehanlnlPn. In nil" thl' Fn'l\l'it 10l'nl IInllwrilil'H (·lttilll,·,1 jnrisdit-I iOIl. IIl1cl Ih,· CIlI\IH·j( Ihal proccedinp:, a J3t')p;ian citi7.cn held Ihat il 1lt'lnll~l'd 10 th,· rOllsnk killed anotlH'r Belp:ian aboard a Bel on the ~roulltl thai Ih,' o[(,Ill'es did gian ship moored to a dock in ]er8ey not disturb the peace of the port. The City, N.J. Local authorities boarded Opinion declared in effect that the the vessel and took custody of the ac ships were subjrcted to French juris diction in matters touching the inter cused. The Belgian Consul thcreafter rsts of the statr, in matters of police, sought a writ of haheas corpus to and for offenses committed, eVl'n on obtain relC'ase of the drfendant to hoard, by members of the crew against him. The Belgian Consul r('lied upon strangers; but that in matters of in ternal discipline, including offences lhr treaty of 9 March 1880 hetwcen by one member of the crew against Belp:ium and the Unite.c] Siaies. Arli another, the local authorities ought cle IX of that treaty provided: not to interfere, unless either their as sistance was invoked or the peace of The respective . . . consuls . • . and the port compromised. This opinion consular agents shall have exciu8ive ... although it has been followed in charge of the internal ord!'r of the many continental conntries _ .. cannot merchant vessels of their nation, nnd he regarded as an authoritative dec shall alone tak~ cognizance of all dif laration of the international law on ferences which may arise, either at the matter. It is ... full of ambigui sea or in port, between the captain, ties. If we are asked, for example; officers, and crews, without exception, what matters "touch the interests of particularly with reference to the ad a state," we should be inclined to justment of wages and the execution answer that the whole administration of contracts. The local authorities of the criminal law does so very shall not interf!'re, except when the 657 disorder ihat has arisen is of such vessel has been brought, the offenders a nature as to disturb the tranquility ha\'e nevcr hy comily or usage I1cl'n amI 11Ilhlic ort\,'r 'HI ~hon'. or in thl' ,'nlilh'd to any ,'x"lIIpli(\\1 fn'll\ Ih,' pori, or whl'n a person of lIlt! '!Olllltry o(ll'ml inn of IhI' loe!1I1 III ws fill' IIH'i .. or not helon~in~ to the crew, shall he pUllishnll'nl, if 1111' local trihunals 1"'1' concerned therein. fit to assert their aulhnrily. Such heing the general public law on this Both accused and victim in this case subject, treaties have been enten,d into by nations having commercial in· were memhers of the crew. tercourse, the purpose of which was The Supremr Court's opinion by to settle and define the rights and Chief Justice Waite first considered duties of the contracting parties with the development of state practice: respect to each other in these particu· lars, and thus prevent the inconven· II i'l (1111'1 of IIII' lllw nf l'ivili7.l'tl nn· ience thai mip;ht ari~e from at":mpls linllS tbal Whl'lI a 1111:1"1:1111111 v,'~~d "r tn cxerc:isI! cOllfliGlill1! jUl'i.liiGliulIs. one country enters the port~ of an· other for the purposl's of trade, it sub· In reaching its decision, the Court jects itsl'lf to thl' law of thl' place reyiewed the ways in which treatie~ tn which it ~O"$, IIIIII'~~ hy treaty or granting. or conceding. foreign con· oth('l'wi~e the twu countrj,'s hm'l' (,Olll,' to some different understanding or sular jurisdiction affected the jurisdic. agreemellt . , " [T]he English jud~es tion of the authoritirs of a port o\'rr have uniformly recognized the rights \'isiting foreign merchantmen. It rr· of the courls of the country of which ferred. fir~t. to thr Franco·American the port is part 10 lluni~h crimes ('om· consular cOlwenlion which rxi~trc1 at milled hy 11m' fon'ip:n,'r on annlhl'r in a foreign merchant ship ... , As the time of the 1806 opinion in the the owner has voluntarily taken his cases of Sally and Nelt'tOTl, referred vessel for his own private purposes to aboye. Then the Court proceeded io a place within the dominion of a as follows: ~ovcrnml'nt other than his own, and from which he seeks protection during Nl'xl I'ame a form of convenlion wbil'h his slay. hi' nw,'S that p:ov"rnm,'nt ... l!a\'1' Ihl' 1'0n: civilized nation considers itself bound lishecl. becanse it causE'S 511ph clru~ to provide a ~pverp )lllni"hml'nt for to product' its pernicious l'fT('cts withill wh.'n l'nmlllillt,tI within it" l'wn jnri~· our tl'uitory.'·!j;; dil,tioll . , . . It ig nnt nlHllc tl\(' PilI.· Iidty of the ad, or till' nni"" IIIHI TIH' tTniled Slnll'R '('npollnlr)'('(1 p;n':!1 clamor which altends it, .that fixes the difiieulty in this al'ea of inll'rnalional nature of the crime, but the act itself. law with Ihp advPnt of its iII-advi~('(j If that is of a character to awaken exprriment with prohibition. CUllard public interest when it becomes known, it is a "disorder" the nature St('am,~lzip Co. v. J1/f'llon. 262 F.S. 100 of which is to affect the community at (] 92~), was litigation whiph stl'mnwcl large, and consequently to invoke from nn opinion or Ihe AIlOI'I](,y (;rn the power of the local government eraJ. 011 (j Oc'loller ]922 tile Auoflll')' whose people have he en disturhed hy (;pnpral responded to a 1'('(1 II est for what wa" <10111" •••• '1'1,,· prindp\" r ",hi,,1r I!IJv("rrrs tlrn whuf,· ",atl'~r i~ ad"icl' suhmittpd In' Ihe S('eretan or this: Disorders which disturb only thp Tn'a"\II'y, TIll' 'Attornpy (;('nc'raJ's the peace of the ship or those on opininn ('onsll'\l1'd tl](' l\alional Pm· hoard are to be dealt with exclush'l'ly hihition Act and Eighteenth Amend by the sovereignty of the home of the ship, but those which distllrb the ment. and pondllded thnt 11lf'f:r lwo puhlic pf'ace may be suppressed, and, ('na('tmpnt~ mack it ilIl':rnl: (1 ) for if need be, the offenders punished by any domestic or forei:rn \'('~~1'l rilher the proper authorities of the local to hring liquor into U,S. trrritorial jurisdiction. walel's. or to cn!Ty it while in sllrh The Court conclucil'd that the circum walers, whetlll'r as sea stores or cargo; stances of each case would ha\'e to he or (2) ror any 11,S. ship to parry l'xamined to determine its jurisdic liquor 1'\,l'n nlllsidl' IT.S. 1l'!Tilory. tional quality. It concludl'd that the Arlpr this opinion was is!'lIed. lhr murdC'r in qUl'stion was such. a "dis PI'I'"illionl In.)k n\l':!: hut r('\"('l"1'l'o U1' to F.S. nu~ ve1'~('l1' l\Iexico. ami Panama. fd. 133·](il. out1'ior V.S. wall'rs. Thl' Court 1'uicl Although the protests were lar~l'ly thi=-: based upon a elaim Ihat hy inll'rna lionai comity a Slale should 1101 ('x efl'ig,' ils unqu(',,1 iOl1l'ti righl" of juri". Tht, III'CI'IIt111 II I" I i.l'.. (;IIVI'rnml'lIl diction over foreign private vessels oOil"ial"l Curlher COIII('IUI Ihal IIII' admitted to its national waters except Aml'ndm('nt rovl'r!' Corei~n m('rrhalll to restrain acts calculated to disturb ~hips whl'n wilhill Ihl' Il'rrilorial wa· public order and safety, the real ques· ters of Ihe Unitl'd Stairs. Of rour~(', tion at issue was the right of the if it werl' tru(' that a ~hip is a part United States to prohibit the cntry of of Ihe lerrilory of tl ... roulliry WhM(, foreign vessels laden with alcoholic flap; "ht, ran'il''', II ... l'ollll'lIlinll wOlllel beverages a right which seems to be fail. 11111. :1" Ih:11 i" :1 fil·litlll. WI' Ihink firmly grounded on international law. Ihe ronl('ntion is ri/!ht. A m('rrhallt ~hiJl of 011(' roulliry vol· This same author shiflt=: froll1 the suh ulliarily ('nlt'rill~ Ih .. It'rrilul'ial limil~ /If nllllll ... r ~lIhjc-rl~ hl'r~I'Ir III II ... j('ct of criminal I'nforc('mcnl to Ih(' .iuri~tli('lillll of Ihl' lalh·r. TIll' jurig· area of civillllall('r~ a~ follow=-: diclion atlache~ in virll1c of hcr pres· The governing principle in civil as rileI', jllgl ns wilh oll1('r ohjl'l'l~ wilhin in criminal jurisdiction is that Ihc fOl:' Ihn~1' Iimils. Duril1~ Ill'r slny shl' i" eign privah' vessel l'nl!'rs suhj,'rt til I'I1Iillc'd 10 Ih .. prolt'l'lioll of Ihr I:I\\,S Ihe loral law. In mailers nol alTl'clin~ nC Ihat plm'r alltl ,rorr('lalivl'ly i" loral in leresIs Ihe ('oastal Siale may hOl1nd 10 yil'ld oh .. di.. llrl' to Ih('m. d('cline to exc.rrise jurisdiclion; hul, OC rnllrgl', Ih .. 101'.11 ~Ilvrrri~n may 0111 in thc ahs('I1!'c of trealy provisilln" In of rllnf-illrnll iOl1s of JIll hlil: poli('Y the contrary, it remains the judge of c1lOosl' to forego thl' I'xl'rlion of ils whether or not its interests require jllri~r1iction or t~ I'x('rl Ihe saml' ill the exercise of jurisdiction or the en only 01 Iimill'd wny. hili Ihi~ i~ .1 mnl· forcement of its laws against foreign I('r rc'~lin~ ~oll'ly in ill' ,lisrrl'lion .... vesscls. Thus in BrolOlI v. Ducheslle, In pril ... iplc'. 11"·n·C,,rl'. il i, ~1'ltI"11 19 How. 183, 198 (1856). the U.s. Ihnl II ... :\ml'lltlml'lIl "11111.1 hi' m, .. II· Supfl'me Courl. afl!'r oh""T\'in~ Ihal In 1"'\"'1' hnlh Ilnllll',li,' :111.1 r"r,·i!.!n "Ctln~r('~~ 1l1ay un(tlu·~tit'lnal11y~ 11Ill1,'" m'· ... ·hulll ,hip, \I h"1\ \I ilhill II .....·,:d. 11$ pt\Wt'r Itl n·~ulalt· l',\1\lnU'n'l', prno I.. rial walt'r" nC Ihl' lluih'll ~III"·'. hihil any foreign ship from l'nl('rinl! :\nll \\'1' Ihink il hn, 1"'I'n malic· In our porls,.which, in its conslruction or cover both when within Ihose lim ill'. l'quipml'nt. USI'S any improvcmcnt pnl It contains no rxr('lllioll of ship" of rnlcd in Ihi" ('ounlr}":' prtlc('!'dcd 10 either class and the terms in which hnld that Ihe pall'nt laws in fort''' it is couched indicate that none is were, not intcnd,'d by Congress 10 ap· inlended •..• ply In fl'rl'il!n "hips I('mpnrarily in our pori". Sial nil''' I'nnlrolling Ih., The above decision was roundly pro· l'mploYlIlI'nl alld wagl's IIf "1':1I1I1'n ... tested by various of the major mari havc been enforccd, in relation 10 time states. Briggs tells us that: foreign vessels even to the extent of impairing the obli~ation of a forl'ign Pursuant to the decision of the United contract. See StratheaTII Steamship States Supremc Court in Gilliard v. Co. v. Dillon, 252 U.S. 348 (1920), Mellon . •. the Department of State where Dillon, a British subject whQ notified foreign govcrnments on May had shipped on a British vessel in a 3, 1923, "that it is unlawful fQr any British port under artirles stipulating vessel, either foreign or domcstie, to Ihat wages were payahll' at thl' ('\Id hrin~ wilhin the United Stat''.~ or of the vnya:::I!, was 11I'!'Inilh',1 hy Ihl' within Ihe territorial walt'rs Ihl'\"('of U.S. Supn'nll' Courl In cnllt-I"t 0111" any liquors whatever for hl'\'('rage pur half 11.1' wa~l's du,l' him when his poses." U.S. For. Ref., 1923. I, 133. vessel put inlo an American port, Diplomatic protests were made by the pursuant to ... 46 U.S.C.A. 597, Governments of Spain, Great Britain, which was made rxpressly applicahle Tlelgi,um, Italy, Sweden, Po-rtl1l!al, 10 seamcn on forei~n vcss(·ls in {I$. Denmark. the Netherlands, Norway. waters . . . . Profl'ssor Hyd'c- dnuhl" 660 whet I.. ,\" in thl' ah~I'IH'" of treaty, any of the English owners .... [H]owever rnlc of international law prohihit!' a it can hardly be said that interna 'slulf· fnlill "('x('ITi:.;.inJ,! lhrnnp:h il~ tional law requires immunity to be "will .. onrt~ jnri"dietifln "\'PI" I'ivil extcndl'd to public ships I'np:al!:cd in l'nntrnv(,I""il'~ h .. twI'I'n lIla~I<'I"" und ordinary commercial undertakinp:s; mcmlJf'rs of a crew, when' thl' judi~ial many states have never done so, and aid of its tribunals is illvokrd by in recent ycars national tradinp: .has the latter, and notably, when a lihel become so common that their exemp in rem is filed against the [foreign] tion from the jurisdiction of national ship." Hyde, I, 742. In such cases. courts sometimes works gross injus the applicable law may br the Aa~· tice. The abuse was dealt with at a law, or, by legislative mandate, it conference held in Brussels in 1926, might be the law of the coastal and a ('om'l'ntion was form I'd of Stall'.:1ll which tIll' main pro\'i!'ion!' :11'1': that \""~"I'I~ (\\\ n('d III" IIpI'mll',1 It\' ~tl\lI' •• II !'I'elll~ al'l'roprial(' Iu ('Ilnelue/c' Ihi!' :11111 rlwi .. l'ar;!IIC"!" Hlld 1':1~:-'I·I1;.!.I·I'!'4. lilt" di: The Supreme Court concluded that In The Nattcmar, 303 U.S. GS the district courts did not have such (1938), referred to above, the State jurisdiction. Department had refused to accept a Tn R"[Jllblic of M"xico v. lloffman: claim of immunity of the attached The Baja California, 32t1· U.S. 30 Spanish vessel. The Spanish Civil War (1945), the qu('stion was: was then in progress. Around the . . • whether, in the absence of the world the contending regimes w('re adoption of any guiding policy by trying to gain control of Spanish the Executive Branch of the govern flag vessds. It was aJleg('d that at ment the federal courts should recog Ill(' time she was lihelled. NU/'I'mar nize the immunity from a suit in rem had already hel'n l'xproprialt·d from a in admiralty of a Illl'l'chant v/'l'l',·1 ~"II'ly hl'I'au~I' it i~ 1I\\'I11'tI thou!!h 11111 t)pani"h nalionfll h)' Ihe' j'('('ognizl't1 (lll""""'" hr II fri"IIIII)' r" ... ·i;.\u ".11\" Spi\ll ish C;1I\,(~1'Il1I1l'1I1. 'I'h!' SII P \'('IIIl~ 1'11111"'111. Court declined to recognize immunity The Mexiran GO\'ernm('nt Iwld tille again, on the basis that tIl(' ship was In Ilaja Cali fornill, hilI a pri\'al!' !\'It'x not shown to hav!' heen in the pos ieall eorl'oralioll 0pI'raled' her. The session and public service of 1111' Span Suprl'me Court noted that: ish Sovereign. SIl!' was, presumably, a merchantman engaged in mercan It has been held below, as in The Navemar, to be decisive of the case tile pursuits. that the vessel when seized by judi· Other municipal courts around the cial process was not in the possession world have passed on comparable ques and service of the foreign govern· tions. Their answers are varied. We mcnt. Here both co urIs have found that the Republic of Ml'xico is the are tempted to hope that Military own!'r of the seized vessl'l. The Slale Sea Transportation Service vc!'sels Deparlment has cerlified thaI it recog· would everywhere be viewed as en nizes such ownerl'hip, but it has re· gaged in the public, and naval, service fraim,d (rolll I'l'rtifyillg that it allllws of the United States. But quaere: if 1111' inllllullity "I' n'I'''~lIill'~ 1I\\'11I'r"hip all foreign .rourl!' would lake this view "r 11\l' n'~~I'1 willlllut 1'11~~I·~~itln hy Ihl' l\\t'XiCIIII (;IlvI'l'nml'nl II~ II grllulld fIll' of a governml.'nt-ownl.'d ship op('rat!'d immunily. 11 l\tl('g 1101 "l'penl' thnl till' by a civilian company under a Gc-n Deparlment has ever allowed a claim eral Agency Agrr('ment. in a foreign of immunity on that ground, and we port, laden only with a cargo of ex are cited to no case in which a federal court has done so •.• , We can only change m('rchandis(', or USAFI text conclude that it is the national policy books, or the household effects of ci not to extend the immunity in the vilian technical representatives serving manner now suggested, and that it is equipment deployed overseas. the duty of the courts, in a matter so The "Tate Letter" 41 made it clear intimately associated with our foreign policy and which may profoundly af that a Mar-itime Administration-owned fect it, not to enlarge an immunity ship, chartered to a civilian operator to an extent which the government, for purely civilian pursuits, would although often asked, has not seen fit likely not be made the subject of any to recognize. claim of immunity in a foreign port The initial lettcr (29 March 1948) of by the Dl.'partment of State. It must the Soviet Emhassy in the Rossiya be borne in mind that there are all mattC'r 01l1y assrrt('d Ollt1ll'Tship of Ihl' sorls of arrang(,lll('nts involving go\'· vesseJ.40 Since the letter did not men ernment ves!'els and state trading and tion operation or control by the state, private trading combinations which the case at that stage was like the lIlay or may not produce a "puhlic Baja California. vessel," entitled to immunity. The 662 "Tate Letter" makes it clear that Ro!' Commission . . . sole truste,' or rr siya would lIot be granLed immunity ceiver and during the opl'ralion of the vessels by the Commission thl' now_ vessels shall be considered vessels of the United States within the meanin~ Government ships, foreign or do of the Suits in Admiralty Act, 46 mestic, may be used for what might U.S.C.A. Sec. 741 et seq.42 be called public purposes, such as warships, which are the most obvious Lauterpacht's Oppenheim summa- examples of public ships_ From the warships, the public purpose vessels rizes the British approach to this prob shacle off into coast ~uard vl'sst'ls, lem area as follows: lip:lllllllusl' VI'SS<'ls. cll"<'d~I' hoal$, ,'h'. Frt'lll th,' ,lin"'1 ~tl\·,'rnllwllt "wlwl'ship In Great Britain . . _ as . . . the ntlll np<,rnlioll nf 1I11'1"<·hllnl fihips, lIlt' result of a sl'ril's of decisions, of .-III." ~llIItI"!I IIII ul~1I 11I1t1 I" IVIIll'ly whkh Th!' Par/elll!'llt R,·I{!.!' ••• in oWlwd ships, which un' rt"luisilimwd 1880 may fairly he rcp:ard",1 a~ th,' or leased by Ihe ~ov!'rnlll!'lIt for ils starting-point of the mOVl'ment in use in }leaec or war and for puhlic favour of immunity: (a) a Brilish affairs. The non·etlllllllercial dag~ in court . . . will not exercise jurisdic cludes also vessels own",l or used hy tion over a ship which is the property slates and llIunicipalilies: police- boalS, of a foreign Slate, whether she is fire boats, city' dumping scows, and actually engaged in the public srrvicr such. The merchant ships of the or is bl'ing used in Ihr ordinary government also shade off from those way of a shipowner's businr~s, as, for owned and operated by the govern in~tance, being lrt out uncl .. r a char ment directly to private ships merely ter-party; nor can any maritime lirn operated by the government or more attach .. _ to surh a ship so as to frequently nowadays the government be l'nforrl'abll' ap:ainst it if and wlll'lI owned ships run by private operators. it i~ [later1 trall~fl'rr('d to prh'att' Governments have devised, also_ cor ownrrship. (b) ~hips I('hich arr /lot porations of which they own the the, property 0/ a for!'igll Statr. hut stock, while the corporation "owns" arl' chartl'rcd or rl'quisitioncd by it or and operates the vessels. Further otht'rwise in its possession and control. more, the governments have subsidized mar nllt hI' arrestt'cI by pro('('"" of the private owners heavily by se\lin~ them Atlmimhy Cnnrt whil,' snh.i,·\·t Itl ~lI..rl former government-owned ships at PMst's"inn and "tlntn>I, nnr ... will bargain prices, by "mail contracts," any action iiI' a~ainst the- fore-ij!1I by undisguised subsidies, by cheap State; nor can any maritime lirn at loans, or by all of these various de tach, to the ship in respect of d3luap:e vices, so that governments hav!'" estah done by her or salvage services ren lished a financial interest for thl'm d('red to her while she was suhject 10 selves in many "private" merchant veg slleh possession and control; hut sels. This is the fact situation a~ainst whell the g(lvcrnml'ntal posst'ssion alld which is laid the general doetr"ine of control cease to operate and she is rr. sovereign immunity, not only for the delivt'red 10 her owner, an aclion in vessels, for the injuries they do, but p'ersonam will lie against him in for supply contracts, freight contracts, respect of salvage services rendered charter parties and other obligations. to her while in governmental posses otherwise enforceable a~ainst a pri sion and control, if he has derived vate person, which the government's Iwnefit from those Rl'rvices. There am or the ship's officers may enter in bt' now only a few States whirh adhere half of the ships in the course of without qualifications to the practice their operation. . . . By an amend of conceding jurisdictional immuni ment to the Bankruptcy Act, dated ties to State-owned ships engap;ed in June 22, 1938 . . . 11 U.S.C.A. See_ commerce. This is so althon~h only 1101, if a' company in foreip:n trade a relative-Iy small number of Statl's on whose vessels the governml'nt has have so far ratified the nrus~t'l" Con mortgages gets into a proceeding in vention of 1926 which aboliRhes Ihat equity, bankruptcy, or admiralty the privilege as between the contracting court may appoint the U.S. Maritime parties.43 663 The "Tate L<'I\('r" of ]9 May 1952 with the action of the Government of the United States in subjecting itself from the Actill~ Le~al Advi!'C'r, De to suit in these same courts in both partment of StatC', to Actin~ Attorney contract and tort and with its long CC'nl'ral Perlman eontainecl a sum established policy of not claiming mary of the practicp of a number of immunity in foreign jurisdictions for states in terms of two basic theoric." its merchant vessels. Finally, the Department feels that the widespread of sovereign immunity which have and increasing practice on the part of emerged. The letter stated these governments of enp;aging in commer theories in this way: cial acliyites makes necessary a prar tice which will enable persons doing A sludy of Ih(' law of sO\'('rrip;n im business with them to have their munity rev('als Ihe ('xistence of two rights del ermined in the courls, For connictinl!: concrpts of sovereil!:n im Ihese reasons it will hereafter be the IIIl1nil)', ('llI'h whl"ly IlI'ld nnd firmly Departlllent's policy 10 follow the re· (·~luhli,h(·,J. A(;(!lInliul!; III Ih,· ..ta~.i· ~Irir.liv(' tlll'nry nf snv('rl'il!n immunily ('al or absolute Ihrory of sovereil!:n in the con~ideration of requesls of immunity, a sovereign eannol, with foreign governments for a grant of out his consent, he madr a respondent sovereign immunity. in the courts of another sovereign. According to the newcr or restrictive A recent writer has pointed out that theory of sovereign immunity, the im this letter is not the final word on munity of th(' sover('ip;n is recol!:nized wilh regard to sovereign or public this subject. His presentation empha acls (juri imperii) of a stalt', hut nnt sizes the douht of the procedural as with r('speet to privalr acts (jure [{l'S pect::: of aE'sC'rting sOYl'reign immunity. liolli,~). Them is ap;rr('n1('nt hy pro which will undoubtedly innuenC'e the )lonrnts of hOlh tlll·nri .. ". suppnrll'f\ hy prnrli('(', Ihlll SO\'('T!'ip;n immunilY furlher p\'olution of the rull's of so\' "hou1<1 not Ilt' l'laiuwd or l!TIInlt'll in ('reign immunity. arlions with rrspert to n'al prOlll'rty The Tate letter did not spell out (diplomalie' and p('rhaps consular tl... dislinClion hrtwrcn private or proprrty ('xc('pted) or with respert (·"IIIIlII· ... ·ial lind l'uh1i(! 11('11', lind il did 10 Ihl' rli~posilion of thr proprTI)" of .",1 !!" illl" II ... IIlh,'\' ""IlII'Ii,·:.lit'lI~ :1 .h'I·I'n~(·11 l'c'r",ul\ "\"l'U . 1111\\1}!h n Ihal \I'('n' IWIIIIII 10 d"\,I·I"I'. I-'o\, in· f,'n'i~n ""\'I'n'i~1I is 11\1' 1lt'.wlil'iul'~·. Man.,,,, if ill cerlain eirrulIIl'tanr('s son'reign slales w('re no longer to The "Tall' Ll'lIl'r" procl'l'ded, after be granted immunity (at least as far its summary of trends in other nations, as the State Department was con to state the newly formalized U.S. po eerned), how was a suit against a sition: sovereign to be commenced? It had always been thought that an ambas It is thus cvident that with the pos· sador or other diplomatic representa sible exception o'f the United King tive could not be personally served dom little support has been found with legal process. Similarly, con except on the part of the Soviet sular representatives are not proper Union and its satellites for continued "agents" for purposes of receiving ser full acceptance of the absolute theory vi.,e of process addressed to a for of sovereign immunity. There are evi eign government. NOI until the adop dences that British authorities are tion of so-called "long·arm slatutes" aware of its deficiencies and ready for for service of process in Slate court a change. The reasons which obvi proceedings, plus their a~similation by ously motivate slate trading countries r('fcr('n('(' illto Frdrral prarlirc ... did in adhering to Ihe theory with per the pos~jbilily arisr of cOllllllrncinl! haps inen'asinl!: ril!idily are most I"'r suilS against a soven·il!n wilhout at- suasive that the Unilcd Slall's should 1,II'hing Ihe sllvl:n:il!:lI's prolH'rly. nut change its policy. Furthrrmore, Ihe which property was subject to at granting of sovereign immunilY to la('hmenl? It soon appeaT('d that foreign goverlllll('nls in the cOUTls of regardlr!'s of Ihl' cause of arlion, crr the Uniled Slales is most inronsislrlll tain governmental property, for rx- 664 ample, a bank account held in the It·tlt'r. In 1"ictory Transport. Tnc. I'. name of the foreign government, was Comi_~aria de Abastrcimientos r immune. In other words, not only' TransfJortes [336 F. 2d 354 (2d Cir., must the cause of action appear to 1964) digested in 59 AJ.I.L. 388 relate to a "private" or "commercial" (1965); eert. denied, 381 U.S. 934 activity of the defendant government. (1%5) 1. thl' Conurt of AppC'al!l for thl' but the defendant's prOIJCrty on whh;h ~"I'lIl1tl Ci ... ·llit 1'-~p""l<~lv upl,,'I'] tl ... jurisdiction is sought to be founded '('nit' tllll'trill'" lin thl' I1.rllllll" thllt "it must be commercial in character. IIlllk,'s no sl'ns,' fllr thl' courts III Probably although this is not clear deny a litigant his day in eonrt nnd the property attarhed and till' claim to permit the disregard of legal obli sued upon need not have a- direct rela v;ations to avoid emharrassinv; the tion: A comml'rcial vessel helonging State Department if that agC'ncy indi to state A might be the hasis for a rates it will not be embarrassed." quasi in rem action not only hy the The court set forth five categories of ship'!! ehalHll,·r. hill al!lo hy the p,!rRnn acts falling within the concept of who hnd sold shllC'l< til A'!! IIrmy or "public acts": (1) internal admini· hought beC'f from A's av;ricultural I'X strative acts, such as the expulsion of Jlort agency, assuming thC' la\tl'r arc an alien: (2) legislative acts, such considered commercial claims. Would as nationalization; (3) acts concern· such claims be considered commercial ing the armed forces; (4) arts con· for the purpose of overcoming a plea crrning di"plomatic activity; and (5) of sovereign immunity . • . . Only Jlublic loans. Causes of action arising one United States court appears to out of these kinds of acts would not have addressed itself specifically to subject the sovereign to suit without the question of the distinction between its consent . . . . It may be pointed rommC'rcial and governmental acts out that the Second Circuit's attempt ~"t forth hut not d"finNI in thl' TatC' at definition is not very precise."" FOOTNOTES 1. This definitilln was synth('sizl'd fmlll Ih,' nuthoriti('s ron~ult,'d for thl' dis~ussion ",hirh follows. 2. Jamps L. BriC'rly, The Lalli 0/ Nations, 5th I'd. (Oxford, Eng.: Clnn'ndon Prl'~s. 1955), p.187. 3. Herbert W. Briggs, The Law of Nations,' 2d cd. (New York: Appleton·Century-Crofts, 1952~ , p. 762. 4. John n. Moore, A Digest 0/ Illtemational Law (Washington: U.S. Govt. Print. OIT" 1906), v. IV, p. 630. 5. L. OpPl'nheim, International Law, 8lh ed. (London: Longmans, Green, 1955), v. I, secs. 348 and 350, p. 759-761. 6. Ibid., sec. 349. 7. Ibid., sec. 354,356. 8. Charlt's G. F('nwick, Illtematiollal Law, 3d rev. ed. (New York: Appleton·Ccntury Crofts, 1952), p. 467·68. 9. Oppenheim, I, sec. 389, p. 792·93. 10. Tbid., sl'r. 390·96, p. 793·805. 11. This text of the opinion appear:; in Brigg~. OfJ. cit .. at p.. 788. In Ihe sanll' w(lrk. at p. 767·69, are l'et forth "Regulations Concl'rning Diplomatic Missions ..• of Foreiv;n States in Ih,' Tl'tTitnrr nf thl' lIniou of Soviet Sol'iali~1 H"llIthlh'!': Approvl'd hy Ihe Central EXl'culive Commill('(' and Ihl' Council of Ih(' Conllllissars of th,' I'cllph! of th,' U.S.S.R., January 14. ]1)27." Sl'l'lioli 4 of which r('("ol!nizl's Ihat pTl'll1i~rs orl'uph'd by tliplnll1ati,' ll1i~~inn~ an' ill\-inlahl,'. Ilri/!'l!~ 1)IIIt's (ul p. 7fll)·')() : AlllwlIJ!h thr rnu .... t·nl (I( th(" ('hid nf rni .... iun i!'l n'clllirrci hdurr turnl "utlmrili,. .. lORy ('lIlrl 111"111 cllilin. mali(' prcmh.es. praf'ti("c ~an("li(ln'i cx"cptions in r"~cs uf cmcn;cnry slIC"h R~ fire or imminent dnn,:rr IIf ("rime,", of vinlrnC'(' •.. Serlinn 4. of the Suvj("t H("J:lIlntion~. ahove. Rftcr (,'1tnhti~hinJ: Ihr. invinlnhilily of Ihr .. c prrmi .. r..... ndd"t that .. nr\'rrlhrl.·..... Ihr invinl:thility (If tllI"'tc Jlrcmi .. c", ~iv('lt nn ril!hl In frlnin nnynnr Ihrrr by furc'c:' 011 Orlnhrr 3. 1929. M. Bir7.('dClw! in, Parif':. nl!J"'nrl'd at n l--rcnC'h (JoliC'c f;lftlion and a:-.kcd their aid in rclca .. inr: hib- wirc and daul!htcr who ""lore hl"in~ ht"ld by the' GPU in the Sovict Emboassy. He reloorlcd that an nt:cnt of the CPU hod nrrived thnt day at th(' Em"'n~"y 10 order hi~ f("turn 10 Mos('ow 10 be jndge(t for Jlolitical dh·erf!("nd('~. Biczcdow. ~ky rc,:;,oIn"c1 10 cluit the F:rnba..:~y nnd after pa('kin~ his bngs had been prevented from le.wing the premises. He jumpc,t IlIll of n window inln n ('ullnyanl in fhr Rue" dC' CrenelJc nnd tmulC' hi~ ("S('81'<'. Thr Frcn('h polire' offidnl~ dcridcd tbat in the nb~cn('(" of th(' Hn~:5-jan Ambnc::ta·dor. M. ni(,71"dowsky had authority to w"he' thr Ucxtrrrilorinlil)" of IbC' Emha~~y I'r('rni~('s and. dC'$pitC' the' rc~i~um('(" of Emb:u:sy l'("r$I,"I\("1 dircC'lcd b)' the CPt.! nj:cnl. ~cC'urcd the rcl~n~e of hi:" wife and child. See Le Temps (Paris, 4 October 1929), p. 4. 12. Driggs, p. 790·91. 13. Oppcnhrim, I, 51'('5. 401·402, p. 809·810. ]·10. U.S. I),·pl. of Slal<', "Diplomatic Privil"I!;($ and Immunities Ahroad," Foreign Service Il/nl/llnl (Washinglon: U.s. Govt. Print. orr., n.d.) , sec. 221.12. 15. Ibid., ScI'. 221.11. S"" also OJl)ll'nlll'im, T, sec. 404. Ie.. Oppl'nlll·im. I. S'·l·. 312. p. HOI. 1 i. U.S. Dept. of Slate, "Dipillmalic Pri\'i1I'ges and immunities Abroad," sec. 221.11. 18. OpPI'nlll'im. T, srI'. 393, p. 802. 19. Briggs, p. 773. 20. U.S. Dept. of State, "Tax Exemptions Accorded United States Repre~l ntatives Abroad," Foreign Service Manual (Washington: U.S. Govt. Print. Off., n.d.), sec. 260. 21. Oppenheim, I, p. 803. 22. U.S. Dept. of State, "Tax Exemptions," sec. 261. 23. Joseph E. Davies, Mission to Moscow (New York: Simon and Schuster, 1949), p. U8- 119. Mr. Davies served as U.S. Ambassador to the Soviet Union from 1936 to 1939. At p. 129 of the book he notes that in his time there was one. clergyman living in the French Embassy, ministering to all Westerners. 24. L. B. Watson, "The Naval Attache and International Law," JAG Journal, September 1963, p. 143. 25. The responsibilities of an assistant U.S. naval attache can he contrasted wilh the remarks of Col. Oleg V. Penkovskiy, of Soviet military intelligence, and those of his editors in The Penkovskiy Papers (New York: Doubleday, 1965). (Quotations and citations here are from the 1966 Avon paperback edition.) Editor's Introduction, p. 78: Penkovl'kiy·s intelliGence experience WM • _ _ :11 nn attnC'hc. nn in8lmctor. sC'ientific nnd t('chniC'al rXllcrl. nnd forei!:" lini,.on sllecinlist .. _. [Dje:tC'fibing the Gnu. he has bccn ahle to supply n 1,cC'lIIiar insiGht into SO\'iet intclliGcnce operations. in forcign countries. os well as measures tnken nJ:!;ninqt foreis::n rr,. inside Iht" U.S.S.R. As ·he wrote Ihis seC'lion barely fonr yenrs ngo, the pcople- ht" writcs abont nrc (or the mo'u part sli1l on activc service and the numbers he uses nrc reasonably necnrnle. It is !lobering 10 contcmplale the total he givcs of 3.000 staff intclliJ:!;cnce officers out of the 5.200 Soviet representatives in the Soviet embassies and consulates in some seventy-two non-Communist countries. Add to this Penkonkiy's calculalions about the numb('r of Soviet representative! "co-opted" for \'fork with intclli gcnce organs and the nllmber of "pnre" SO\'iet diplomat! shrinks to somcthing less than 20 per ('ent or the hU"1. One is tempted to nsk, with Penkovlilkiy, ""'hrre hnve the legitimate Soviet diplomats gone?" Penkovskiy wrote: p. 84, 86, 87, 89-91, 95, 98-99. Prior tn OIy Irip to Turkt"y 1 thuuJ:ht Ihnl Ihe Ministry or ForC'ij::11 Affnirs Rml the ('mbn~~ir9 w('rr imporranl or(:onization, with 811lhority. Dut now I know there is only the Centrnl Commiuee CPSU. nnd in the embass)" two inteltigcnC'r rt!zi,l("ntllras: cnu nnd KGD. They arc the ones who hnndle everything. The Minil'llry of Forri::n Affnirs stays in Ihe l)nck::rnnnd. The GRU is or C'ourse pDrt of the Soviet G('neral slnrr. The entire work of the G('neral Starr, especially of the GnU, is supervised by the Central Comminee CPSU, whiC'h has for this purpose certnin 9JlecioI section!l . ... Orcanizalionnlty. Ihr cnu breaks down as fo1Jows: The 1st Directorate - Blegab; Chief 'Rear Admiral L. K. Dckrcne\" .•• Rear Admirnl Leonid Konstnnlinovitch Dckrencv was Chier of the Illcgals Direetornte of the GRU IInli1 hi, a~ .. iJ:nmcnt 10 the U.S. in 1962 a, the SoviN Navtil Attache. He depnrtcd for the U.S.S.H. enrly in 1963 prob"bly 0" a relilult of Kenko\"~kiy·!' arrellt autl di .. C'lo~urcs to the Sovict inter rn~nt()r:t •••• Noral Intdlil:t'nc~ DifC'ct",at~ - No 10nJ:cr cxi~ts; n smnIl s(,ction or group remnins for the co·ordin,, linn of intelligence nn the navRI forC'es •..• An IlleJ:nl r('zit/rnt i~ the head of the network and hao; hilil own communiC'ntion!'t C'hanncls to Moscow, .. rJlllr.ltc frflm the ('urnmunin.tinn rh:mneb: of an)" nlhr.r Illegal .. ' network in the ",arne C'ol1ntry and ""(lnmle (rum Ihe C'ommnnirntionq u .. cd hy officer .. uf the rezit/cntura under rover of the SUVif:t I-:rn),n .. "y or olher nnidal Suvi"t rerrcII;rntnlion. a'l in the United Nntion, in New York . . _ . Uckrcnev ha'l t10ne a fairly gflmt jnh fir nrganizins: the J11t'l!al~' wflrk. hut nppllrcntiy the results nrr not too j::oud bcC'nuse he is 666 t"on:--In1l1lr !'o('uldc'cl 'und critirizrd II)" SNCI\". At n ParlY mC('fin~ of the hI nirc'C'tumll', Srrcw Inre IJrkrf'" Ill'\' In pi ere.. , 11(" :-nili thoU Ul'J..rcn('v dill nut wnrk IInnl CIHlIICh. hrnrc tIll" 111.'/.:111 .. ' IlC'twurk Wn"4 wl'uk. ~11('('inl ("mllha~il'o in th.u rc~pc("t was Jlln("C'd tll,on our "prinC'ipal enemy" - Ih(" U.S.A. Scrov C"lnimcu that all ollr nU.u·he:; were doing wac; ('oll('C'tinl: ncw~Jlnpcrs and rubbish; c\'crylhinl; that was of value ('arne (rom the lllC'J:al~ •••• IntC'IIi;:C'nC'(" nffi("cr~ of the )("1,':011 rr:icinllurtlf nlway~ 11<:'C their official ('(I\"('r, slIC'h Rot n<:-i::.tnnt tllln('hl~ •••• KGB and GRU p~r$lmnel in Sm'ret ('mlmssi('$: ... In n Soviet ("nn~111nt('. 8lmn~1 100 )lcr ('('lit "f Iht' pcrsonnel arc KGB. with one or Iwo GHU ol1i('cr~ included. Even the r,RU hn~ nlw8)':; had n h:ud timc rryin,:: to II!'C ("on"lIlar ("O'ocr C()r it .. JlCollle; evcry opening is tnken by the KGB. In nn ('mbn~")' the KGB ~Jlil's. nn nil pcr!'olluC'l. indudinc 11" in the Gnu. The KGB mcn wntch absolutcly e\'crYlhin~ Ih:tt gill':. on. . .. In the Ila~t thc ~l'ninr military alln('hcs were nutomnti<'nlly abo the CltU ,t>=itlc"ts in their rt~:Ollc('lh'(' l'lIlba .. sic... This i .. nut trltC nny more; they were too e3f>y 10 eXJ1o~c. Nnw the job of TC'zilit'llt is a .. ",i{:ncd to another mall ",-ho tI .. nally ollcralcs l1nut'r n civilinn ('",,'cr in thc em bas'),. He may be :tII nmhas .. auor. (,llllllsrlJor. fir ... or ~c('ond s('netary. Of ('ourse, n miJilary atlne-heS iJ' ftbo 11 GHU intL"ili:':l'ne-C' officer. but nt'\'cr the Tf"ziti('nl. TlIi .. JcnJ{:;mizatinn nlso I'JU\'idcd thl" GHU with the npllUJllinily In ha\(" an exira (;nU (lffiC'(,J in IIHo ("rnhn";,..},. The rr:.it!.'nt 1I';'lIally i .. 1\ rulnn,,) IIr n a:f'l1rr011. Tilt, milil"r~ "1I.u'IIl:" \H'U' £l'li"\'I,d (If 1Iwir 111I1il'" :\"1 n'zi.t"lIt:c II)' n "IJu"dnl .lc'rH'.' nr 1111' Ce-l1unl CURl' minet' CPSU ,I.lh'd Jnnllary !!~, 19M. 26. OPJl('nheim, T, sec. 400. 27. Watson, p. 145·146. 28. Ibid., p. ltUi, citing the Vienna Convention on Diplomatic Helations of 14 April 1961, which was signed by 45 states, including the United States. 29. Ibid. 30. Ibid. 31. Ibid. 32. For an outstanding presentation on this topic, sec Note: ~'Jurisdiction over Foreign Private Vessels in National Waters," in' Briggs, p. 348·355. 33. ,Grant Gilmore and Charles L. Black, Jr., The Law 0/ Admiralty (Brooklyn: Foundation Pre~s, 1957), sec. 11·5. 3,t Bril'rly, p. 19·t·95. 35. \Villiam \'Ii'. Bi,:hop, International Law; Cases and ,llaterials tNew 'York: Prentil·c·lIall, 1953), p. 389·90. 36. Briggs, p. 352·53. 37. Gustavus H. Rohinson, Handbook 0/ Admiralty Law in the United States (St. Paul: West, 1939), sec. 31, p. 248. It is a remarkably accurate statement, considering ils vin· tage, for the law as it now ('xists in the wake of the "Tate letter." 38. Brierly, p. 192·93. The United Slales is not a party to Ihis convention. Sec llishop, p.428 39. Pesaro's lack of connection with Italian military or naval forces is the {nndam('ntal distinction bel ween Ihe typical state·owned merchant vessel, and merchant type ships owned a:nd operaled by th!" l\Iilitary Sea Transportation Service o£ the United Stall'S. 40. For text of the letter, see Naval War College Supplementary Re/erence Material, v. II, p. H·I. 41. Jack B. Tate, "Changed Policy Concerning the Granting of Sovereign Immunities to Foreign Governments," The Department 0/ State Bulletin, 23 June 1952, p. 984. 42. Robin~on. p. 2·l8·ol9. Throuv;h ~urres~h'e reor:ranizations. th!" dl"srrihed {unctions of thl' {ornwr U.S. l\Iaritime Commission ar(' today performed hy the Federal Maritinll' COlllmission. 43. Oppenheim, I, sec. 451a, p. 856·58. 44. A. F. Lowenfeld, "The Sabbatino Amendment - International Law Meets Civil Pro· cedure," The American Journal 0/ Illtellnational Law, October 1965, p. 899.