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Since foreign agencies, like American ones, investigate the home life of couples applying for adoptive parenthood, it is advisable to notify a local child placement agency in the United States that an overseas adoption is contemplated. The local agency can thus initiate the home study before the couple leave for their overseas tour and can forward the results to the foreign agency. If the couple is already overseas when they decide to adopt a child, the appropriate foreign agency will contact an American agency for a background investigation. Couples who are not departing the United States on an overseas tour may also arrange for a foreign adoption by notifying a local agency. After initial investigation the local agency will contact a foreign agency and arrange to have a child brought to the United States for adoption.

Contrary to popular misconception, agency studies are not undertaken solely to determine the monetary ability of the prospective adoptive parents. Although agencies are interested in the ability to support and educate a child, they are more anxious to find a home in which a child will be able to develop normally and happily. Foreign agencies are aware of and consider the salary levels of American servicemen but are far more concerned with the atmosphere of the home. They want to avoid situations where a marriage is unstable and a child is sought to "save" it. They are concerned with the best interests of the child at all times. For this reason, agencies in the United States should be contacted by couples who are not going overseas but desire to adopt a foreign child, rather than relying on friends to bring a child back with them for adoption. Although adoption "by proxy" is possible in some countries such as Greece, where adoptive laws are fluid enough to allow non-agency placement, there are recent indications that even the Greek authorities are discouraging the practice because of abuses in the system.15

SPECIAL PROBLEMS OF FOREIGN ADOPTION One problem facing service couples wherever they seek to adopt children is shortage of time. Since the normal tour of duty is relatively brief, and since there is a great deal of "legal" and "paper" work involved, the couple who wishes to adopt a child should start proceedings well in

If stationed in Italy: Servizio Sociale Internazionale, Ufficio per l'Italia Via Vittorio Veneto 96, Roma. The Catholic Committee for Refugees, 265 West 14th Street, New York 11, N.Y., may be contacted for assistance in the placement of Catholic children; the United Hias Service, 425 Lafayette Street, New York 3, N.Y., is a Jewish migration agency which may also be contacted for assistance.

15. N.Y. Times, December 6, 1964, p. 7, col. 1.

advance of transfer. If the couple is already overseas when they decide to adopt a child, they can bring the child back with them and proceed under the adoption law of one of the states in this country, rather than under foreign law. Visas under the Eligible Orphans Act can be obtained for children not yet formally adopted, however, service benefits and allowances will not be available until adoption is completed.16 Once adoption is completed, an amended birth certificate as well as United States citizenship (after two years' residence in the U.S.), may be obtained for the youngster.17

Often a couple stationed abroad will adopt a child who is of a different racial background than their own. Foreign children whose characteristics reveal mixed parentage are frequently rejected in their communities for just that reason. Many Eurasian children in Japan and Korea are the children of American servicemen and local girls. They are often considered "unadoptable" by the local authorities and are particularly endearing to American service couples. They may adopt such a child however, without considering the impact on the youngster of being brought back to an environment in the United States which may be as hostile to the Asiatic blood in him as the Caucasian heritage was distasteful in the homeland.18

Another consideration with older children is the impact that removal from the country of birth and transfer to another environment will have upon the child. Prospective parents should recognize that their new son or daughter will not want to, or may not be able to, forget his "other home" entirely.19 Service couples must also consider the impact of their particular way of life upon a child. Many couples find that their own children have problems adjusting to the con(Continued on page 149)

16. Manual on Intercountry Adoptions 5.

17. "After the final decree of adoption is entered, a certified copy of the final decree is furnished to the Bureau of Vital Statistics, together with a certificate which has been signed by the clerk of the court. Thereupon the bureau prepares a revised birth certificate which contains the original date of birth with the place of birth being shown as the residence of the parents at the time the child was born, but with the names of the adopting parents and the new name of the child. . . . To all intents and purposes, the revised certificate shall be, and it is, the birth certificate of the child." What To Do About Adoption, at 7.

18. Children (March-April 1958), Placing Children of Minority Groups for Adoption, rep. of Children's Bureau, U.S. Dep't of Health, Education and Welfare 2.

19. Children (May-June 1957), Placing the Older Child In Adoption, rep. of Children's Bureau, U.S. Dep't of Health, Education and Welfare 108.

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AM

LIEUTENANT THOMAS KALLAY, USNR*

Having previously examined, in an article appearing in the last issue of the JAG JOURNAL, the jurisdictional status of a U.S. warship in a foreign port with respect to criminal acts committed aboard, Lieutenant Kallay now considers jurisdictional problems which arise, in a foreign country, when the warship's crew goes ashore.

MIDSHIPMAN FROM the USS Mohican, while ashore in the port of St. Louis, Maranham, Brazil, fired several shots after one of his boatmen who was attempting to desert. As might be expected, local authorities thought the midshipman's zeal had been excessive. He was arrested and brought before the Chief of Police who, upon learning of the midshipman's official status, remarked that "he had acted very roughly in attempting to shoot a man in the streets of Maranham, showing a disregard for the laws of the country, and he (the Chief of Police) trusted it would not occur again." The midshipman's troubles were not over, however. The Department of State, in commenting upon the incident, termed the midshipman's actions a "breach of the peace, offensive to the dignity of Brazil, which the Government of that country may well expect the United States to disallow and censure." The Secretary of the Navy conveyed these views to the commanding officer of the Mohican.1

*Lieutenant Kallay is presently serving in the International Law Division, Office of the Judge Advocate General. He received the A.B. and LL.B. degrees from the University of California at Los Angeles and is admitted to practice before courts of the State of California and U.S. District Court for the Southern District of California. Lieutenant Kallay studied under a Fulbright Fellowship in International Law at the University of Heidelberg, West Germany. He is a member of the American Society of International Law.

1. II Moore, International Law Digest 590.

While this incident is now safely history, it serves to highlight one of the many problems which may arise during the visit of a warship to a foreign port. Misconduct ashore by members of the warship's crew is a relatively more frequent occurrence, as are questions arising from the presence of U.S. Navy shore patrols in the foreign port. These, and other related matters, will be examined in this article.

MISCONDUCT ASHORE

Problems arising in connection with the stationing of United States land forces in foreign territory are, in many cases, governed by status of forces agreements which have made it largely unnecessary to deal with specific problems in terms of customary international law.2

In the absence of specific international agreements, however, it is necessary to have recourse to general principles of international law in order to resolve a given problem. Unfortunately, neither authorities nor precedents are agreed on all the legal principles defining the crew's status ashore.

On one important issue, however, there is general agreement. Members of a warship's crew are subject to the jurisdiction of the host State

2. Customary international law may be defined as that general practice of States which is accepted as law.

3

while they are ashore and not on duty. They may be arrested and tried in local courts for violations of the law of the host State. While aboard the warship they remain, of course, exempt from the enforcement jurisdiction of the host State.*

Visits of United States warships and their crews to foreign ports, however, may or may not be governed by international agreements. If an agreement is applicable to the visit of the warship and crew to the foreign port, the provisions of that agreement will govern. Accordingly, the first step in any specific instance should be to determine whether there is an agreement which applies to the visit. Agreements which may, but do not necessarily, govern the visit are status of forces agreements, bilateral defense agreements and, on occasion, so-called homeporting agreements.

Difficulties arise, however, when the offense is said to have occurred while the crew member was "on duty": first, there is considerable divergence of views as to whether crewmen "on duty" are exempt from the host State's laws; second, assuming that "on duty" crewmen are exempt, it is difficult to determine what the scope of the "on duty" concept is.

Despite early precedents to the contrary," the majority of modern authorities are now of the opinion that members of a warship's crew are exempt from the host State's jurisdiction while ashore and on duty. Thus, it has been said that: The commander and members of the crew ashore in an official capacity in the service of their vessel, to buy provisions or to make other arrangements respecting the vessel, remain under the exclusive jurisdiction of their home State, even in respect of crimes committed ashore.6

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This principle was followed in the case of a sailor attached to a Greek warship who had been detailed to purchase supplies in the city of Alexandria, Egypt, with orders to return to the ship by midnight. The sailor stopped at a local bar, where, shortly before midnight, he assaulted a policeman with a knife. The court held that the accused was still "on duty" when he committed the assault and therefore immune from the jurisdiction of the local court.10

The difficulty of defining the "on duty" concept may have prevented the general acceptance of the view that on-duty-personnel ashore are exempt from the host State's jurisdiction." It may be that "on duty" is equivalent to being in a duty status. Contemporary international practice under status of forces agreements has limited this concept, however, to acts in the performance of official duty. A recent article in the JAG JOURNAL discusses in considerable detail the standards used in determining when, under status of forces agreements, an act qualifies for an "official duty certificate." 12 Under this standard, the Greek sailor's act would not have been exempt from local jurisdiction since brawling in a public bar can hardly be said to be an act in the performance of official duty.

Another approach taken to justify the immunity of a warship's crew in a foreign port has been to accord an organized landing party, under the command of an officer, exemption from local jurisdiction on the theory that they "constitute an organized force of a foreign State permitted to enter the national domain." 13 Under this view, the landing party is analogized to land forces transiting through or stationed in foreign territory which are accorded exemption from local jurisdiction.

The United States has upheld the immunity of such landing forces.14 Moreover, the case for immunity of a landing force is particularly strong since the members of an organized force are normally on duty and acting in the performance of official duties.

It is important to note, however, that there is opposition to the recognition of immunity for acts committed ashore whether the crew member acts in the performance of official duty or merely in a duty status. Thus, one writer states that "officers and crews of foreign vessels of

10. Triandafilou v. Ministere Public, Mixed Courts in Egypt Court of Cassation (1942), cited in 39 Am. J. Int'l L. 345.

11. 2 Gidel, Droit International Public de la Mer 295 (1934). 12. 20 JAG J. 95.

13. II Hyde, op. cit. supra note 8, at 830.

14. II Hackworth, Digest of International Law 420, citing the Tampico Incident.

war, who commit offenses while ashore, are generally subject to local prosecution." 15 The Supreme Court of Canada has supported this principle, with the interesting qualification that offenses by one crew member against another would not be subject to the jurisdiction of Canadian courts, unless the commanding officer so requested.16

Thus, while there is general agreement on the applicability of local laws to the crewman on liberty, there is no clear consensus on the legal status of warship's crew whether ashore "on duty" or acting "in the performance of official duties." The most that can be said is that the weight of authority favors immunity and that, if this view is followed, it is preferable, in consonance with contemporary international practice, to claim immunity only when the act itself was in the performance of an official duty.

THE COMMANDING OFFICER

A number of cases involving the commanding officers of warships have raised the question whether the ship's captain enjoys any special status while ashore in a foreign port.

In a case involving the commanding officer of the German cruiser Prinz Eitel Friedrich, a United States District Court voiced the opinion that the commanding officer of a warship, "while acting in conformance with his employment upon national objectives," is exempt from the jurisdiction of the courts of the host State.17 In a similar vein, a British court held the commanding officer of a United States warship exempt from its jurisdiction, but only as long as the officer "forms part of the machine known as a vessel of war." 18 Thus, both cases indicate that it is the close connection of the commanding officer to the performance of the warship's mission which accords him such special status as he may enjoy. According to this view, the commanding officer who is ashore on matters directly connected with the warship mission is exempt from the jurisdiction of the host State. 19

In view of the limited precedents, however, it is not possible to conclude that, as a matter of established international law, the commanding officer enjoys special status while ashore.20 What the cited precedents show is that the exemption accorded by the majority of authorities

to acts in the performance of duty may be particularly applicable to the commanding officer.

SHORE PATROL

As long ago as 1847, Mr. Buchanan, then United States Secretary of State, spoke of the custom which permitted ship's officers to apprehend unruly sailors ashore and bring them aboard the vessel, unless the local police had already arrested the offenders.21 The fact that this is a custom of long standing may obscure the extraordinary nature of this grant of right to the visiting warship. In consenting to the landing of a shore patrol, the host State is assenting to the exercise of police power by agents of a foreign State within its territory.

The jurisdiction of the shore patrol is, of course, sharply limited to members of the warship's crew and is concurrent with the jurisdiction of local authorities.22 Nevertheless, the maintenance of law and order in its own territory is one of the fundamental prerogatives of the sovereign State. It is, accordingly, only logical that the consent of the host State is required before the shore patrol may be landed to police the warship's crew ashore.23

The basis and permissible extent of the operation of the shore patrol in a foreign port has been characterized in the following way:

For reasons of courtesy and expediency, a usage has arisen permitting foreign officers to seize and take aboard their ships, without obstruction, members of crews who have become intoxicated and whose offenses have not been directed against persons or property ashore; likewise, to exercise the customary authority for the maintenance of discipline over seamen, remaining ostensibly within the foreign naval service, and subject to its de facto control."

Thus, the institution of the shore patrol in a foreign port is founded on the mutuality of interest between the host State and the visiting warship. It is apparent that each party has much to gain by respecting the legitimate interests of the other. Article 0622 of Navy Regulations implicitly recognizes the importance of this when it provides that: "The senior officer present shall, in the exercise of his command, scrupulously respect the territorial authority of nations in amity with the United States." The same Article goes on to prohibit the landing of any armed force without the permission of local authorities first having been obtained.

15. II Hyde, op. cit. supra note 8 at 830.

16. Reference re Exemption of U.S. Forces from Canadian Criminal Law (1943), 4 D.L.R. 11, 25.

17. United States v. Thierichens, 243 Fed. 419 (1917).

18. The Alexander, I Hong Kong L.R. 122 (1906).

19. II Hyde, op. cit. supra note 8 at 830.

20. U.S. Naval War College, op. cit. supra note 3, at 69 n. 22.

21. II Moore, op. cit. supra note 1, at 589.

22. U.S. Naval War College, op. cit. supra note 3, at 75. 23. Ibid.

24. II Hyde, op. cit. supra note 8 at 831.

Article 0625 directs its attention specifically to the shore patrol. The basic function of the shore patrol is to maintain order and "suppress any unseemly conduct on the part of any member of the liberty party." 25 Further, the senior patrol officer is required to communicate with the appropriate local officials and make such arrangements as may be practicable to aid the patrol in properly carrying out its duties. 26 Then follows what is perhaps the most important principle governing the landing of U.S. Navy shore patrols:

A patrol shall not be landed in any foreign port without first obtaining the consent of the proper local officials. Tact must be used in requesting this permission, and unless it is willingly and cordially given, the patrol shall not be landed.27

Landing a shore patrol in a foreign port is a privilege and not a right. Each member of the shore patrol should be guided by this principle in the performance of his duties.

DESERTERS

The essence of the military crime of desertion is the intent, on part of the offender, to remain away permanently from his organization or place of duty.28 Thus, the successful deserter will have removed himself from the actual control of his military superiors. In the case of desertions from warships lying in foreign ports, the reimposition of military control over the deserter, i.e., his recapture, is the critical problem of host-visitor State relations.

One method of dealing with the problem of desertions in foreign ports was followed in 1905 by the commanding officer of the German gunboat Panther when he sent a search party of twelve petty officers in uniform and three officers in plain clothes after a member of his crew thought to have deserted in the Brazilian port of Itajay. The search party entered several houses and compelled local inhabitants to aid it in what turned out to be an unsuccessful effort at recapture. The result of the commanding officer's decision was a strong Brazilian protest, the captain's removal from command, and a subsequent German apology. In the meantime, the sailor had returned voluntarily to his ship.29

The assertion of the enforcement jurisdiction of the warship's flag State in the foreign port by means of the shore patrol is a privilege con

ferred by the host State. Whatever jurisdiction the shore patrol exercises over crew members ashore terminates when a crew member has deserted and is no longer under the actual control of his military superiors.30 Thus, the capture and apprehension of a deserter is a matter for the appropriate authorities of the host State and may not be accomplished by forces from the visiting warship, except with permission of the host state.31 Article 0622C.1 (c) of Navy Regulations also contains a prohibition in this regard.32

The shore patrol, however, retains its jurisdiction over crew members ashore who are merely unauthorized absentees. The host State may be expected to cooperate in the return of such a crew member, especially if the senior shore patrol officer has followed the guidelines set forth in Article 0625 of Navy Regulations and made appropriate arrangements with local authorities. There is, additionally, some support for the view that ship's forces ashore may act to prevent an attempt at desertion 33 before the "link to the warship" is broken.34

CONCLUSION

For the successful conduct of a visit to a foreign port, the interests of the host State and the visiting warship must be brought into balance. The former has a continuing obligation to enforce its laws and to maintain order; the latter has a fundamental interest in keeping the crew intact and ready for service aboard the warship. The long history of maritime relations provides precedents illustrating the legal principles which serve to balance these competing interests. Fundamental to these principles, however, is the recognition of the legitimate needs and claims of both the visiting and the host State. The realization, on part of the warship's crew, that its very presence in the foreign port is a privilege is tantamount to the recognition of the rights of the host state and its citizens.

30. II Hyde, op. cit. supra note 8 at 831; also, Tucker v. Alexandroff, 183 U.S. 424 (1902).

31. Colombos, op. cit. supra note 7, at 237. 32. Navy Reg., art. 0622.

33. Tucker v. Alexandroff, op. cit. supra note 30.

34. U.S. Naval War College, op. cit. supra note 3 at 76.

25. Navy Reg., art. 0625, section 1.

26. Ibid.

27. Navy Reg. art 0625.

28. Manual for Courts-Martial, U.S. 1951, par. 164. 29. Colombos, op. cit. supra note 7, at 237.

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