of govern

Replying to reports published November 3, 1959, that Cuban exiles Establishment were attempting to set up a government-in-exile in the United States, ment-in-exile the Department of State said:

"Establishment of a foreign government within the territory

of the United States without the consent of the United States would violate the sovereignty of the United States and run counter to international law. No such consent, implied or otherwise, has been given by the United States."

Assistant Legal Adviser Whiteman, memorandum, "Reported Plans to Form Cuban Government-in-exile in the United States", Nov. 3, 1959; cf. New York Times, Nov. 4, 1959, p. 1.

by occupying

power

When an opinion was requested by the U.S. High Commissioner Enlistments for Germany in November 1952, as to whether the recruiting by an occupying power (France) for the French Foreign Legion of nationals of occupied territory (Germany) was incompatible with principles of international law, the Office of the Legal Adviser of the Department of State advised:

"There appears to be no question but that, as between fully sovereign States, no State has a right to recruit troops in another State without its consent. (VII Hackworth, p. 405; II Oppenheim, p. 564; II Moore, p. 446; V Hague Conventions, Art. IV, Malloy, Vol. 2, p. 2298...).

"The only other clause of the Occupation Statute [XX Bulletin, Department of State, No. 511, Apr. 17, 1949, pp. 499, 500-501] that might be involved is the one relating to foreign affairs, including international agreements made by or on behalf of Germany'. Prior to March 7, 1951, it might have been contended that the Occupying Powers, under this clause, had the power to consent to such recruiting. However, the 1951 amendment made it clear that this power would be exercised in such a way as to permit the Federal Republic to conduct its own foreign affairs to the full extent compatible with the requirements of security, other reserved powers, and obligations of the Occupying Powers relating to Germany'. [XXIV op. cit., No. 611, Mar. 19, 1951, pp. 443, 447-448.] It has already been demonstrated that there are no other reserved powers involved. I can see no basis for saying such recruiting has any connection with security requirements or with obligations of the Occupying Powers relating to Germany. It would therefore appear that under this clause of the Occupation Statute as it now reads the Federal Republic is the proper party to give or withhold the requisite consent to such recruiting.

"Therefore, it is my opinion that there is no right reserved under the Occupation Statute that would affect the general rule of international law on this point, and that, without the consent

of the Federal Republic, the recruitment of German nationals in the Federal Republic by one of the Occupying Powers is incompatible with the established principles of international law."

Col. John M. Raymond, Assistant to the Legal Adviser for German Affairs, memorandum dated Nov. 28, 1952, MS. Department of State, file FW 751.551/ 11-2252. It was reported in the incoming telegram that Federal Chancellor Adenauer had called to the attention of the Allied High Commission that recruiting by an occupying power of nationals of the occupied country for military assignments was incompatible with the principles of international law. Telegram from Bonn to the Department of State, No. 2359, Nov. 22, 1952, ibid. On February 13, 1953, the Director of the Bureau of German Affairs (Riddleberger) handed an aide memoire to Minister de Juniac of the French Embassy on the subject. It appears from the aide memoire that the French authorities had emphasized the absence of formal recruiting agents in the territory of the Federal Republic for obtaining enlistments in the Foreign Legion. It was stated in the aide memoire that

"The misgiving of this Government is reinforced by the absence of any clear legal basis, so far as it can ascertain, for the recruitment of French forces from German nationals in Germany against the expressed opposition of the German authorities. Neither the Occupation Statute now in effect nor the Contractual Agreements awaiting ratification at Paris and Bonn contains, in the Department's opinion, a clause to justify Occupying Power recruitment of German nationals in, or removal of such recruits from, Federal Republic territory without the same consent from the Federal Republic Government that would be called for between fully sovereign states under generally applicable rules of international law.

Restriction by unilateral act

Under the circumstances, this Government hopes that the Government of France may be disposed to modify the existing recruitment practice in Germany and may be in a position so to inform the German authorities in the near future. The United States authorities would be pleased to associate themselves with a reply of this nature." Ibid./2-1853.

In holding that the Federal Tort Claims Act of the United States, inapplicable by its terms to "any claim arising in a foreign country", did not authorize a suit against the United States for an allegedly wrongful death of a flight engineer at a Newfoundland air base, which the United States held under a long-term lease from Great Britain, the Supreme Court of the United States (Mr. Justice Reed delivering the opinion of the Court) stated:

"In brief, though Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power. The legislative will must be respected."

United States v. Spelar, Administratrix, 338 U.S. 217, 221 (1949). Federal Tort Claims Act, 62 Stat. 984, 985; 28 U.S.C. § 2680(k).

"When a State assumes a treaty obligation, those of its rights Restriction which are directly in conflict with this obligation are, to that by agreement extent, restricted or renounced. . . .

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) 123.

Wilhelm Grewe, writing in his capacity as Chief of the German Delegation for the Replacement of the Occupation Statute, commented on the effect of the "Convention on Relations between the Three Powers and the Federal Republic of Germany and Related Conventions" (referred to as "Deutschlandvertrag") on the element of sovereignty inherent in the exercise of "supreme authority" by the Allied occupation powers as follows:

“... Certainly, it is a moot point, whether sovereignty is conceivable which does not contain the full measure of state authority, but is subject to certain restrictions as those imposed in Art. 1, para. 1 and Art. 2, para. 1 of the Deutschlandvertrag for the benefit of the Three Powers. In the text of the Convention the word 'sovereignty' was deliberately avoided, in order not to add fuel to the flame of academic discussions. If the thesis that there can be no curtailed sovereignty is correct in its core, it would be equally right to maintain at least that 'supreme authority', restricted to certain functional fields, has ceased to be 'supreme authority'. This consideration alone would make it evident that the former occupation regime has ceased to exist in its juridical quintessence. For it was the very assumption of this 'Supreme Authority' which endowed the Allied occupation regime after 1945 with its special character of unlimited sovereignty.

"In the future we shall often hear of the words coined by Carl Schmitt: 'Sovereign is he who decides on the state of emergency' (Ausnahmezustand). We hope that then the following statement made by the same author in connection with the same topic will also occasionally be quoted: 'Not every extraordinary power, every emergency measure taken by the police, every emergency decree constitutes already a state of emergency." In Schmitt's opinion the state of emergency is rather characterized by 'power, fundamentally unlimited, i.e. suspense of the entire hitherto existing order' (Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (Political Theology. Four Chapters on the Doctrine of Sovereignty), 1922, p. 13). One must be very biased to read such sweeping powers into Article 5 of the Deutschlandvertrag-the 'emergency article' which has given rise to many arguments. If under item 3 of the Occupation Statute the Occupying Authorities had reserved the right, "acting under instructions of their Governments, to resume, in whole or in part, the exercise of full authority, if they consider that to do so is essential to security or to preserve democratic government in Germany or in pursuance of the international obligations of their Governments, it is significant that Art. 5 of the Deutschlandvertrag does not provide for such possibility of re

suming 'supreme authority'. On the contrary, the powers of the Three Western Allies, upon the proclamation of a state of emergency, are restricted to the taking of such measures 'as are necessary to maintain or restore order and to ensure the security of the forces' (Art. 5, para 3)."

Wilhelm Grewe, "Von Der Kapitulation Zum Deutschlandvertrag" (From the Capitulation to the General Agreement), Aussenpolitik (July 1952) 414-427 (translation).

"International relations in a relatively highly integrated world society would be at a standstill if the sovereign States of the world had no means of arriving at understandings regarding matters within their exclusive domestic control. Apart from rules of customary law, growing only imperceptibly over prolonged periods, international conventions are the means by which such adjustments are achieved. The fact that any arrangement of this kind emphasises the relativity of State independence is made more bearable for the jealous guardians of the rights of sovereign States by the reciprocity of rights and obligations inherent in the conception of a treaty. As the Permanent Court of International Justice pointed out in its Advisory Opinion on the Exchange of Greek and Turkish Populations (1928), the Convention of January 30, 1923, between the two countries created obligations for both States on a footing of absolute equality and reciprocity: 'It is therefore impossible to admit that a convention which creates obligations of this kind, construed according to its natural meaning, infringes the sovereign rights of the High Contracting Parties.' [Series B 10, p. 21.] Yet, as the Court observed in the Anschluss case (1931), reciprocity in form and law does not necessarily mean reciprocity in fact [Series A/B 41, p. 52], a position which is only too apparent to any student of the functions of the principle of freedom of contract within the realm of municipal law. In this respect, States are their own masters and can dispose of their sovereign rights as they please. [Ibid. p. 48.] In doing so, they exercise their rights as independent States, and by the very treaty by which they limit their rights manifest the status which entitles them to do so. Right from the start, in the Wimbledon case (1923) [Series A 1, p. 25], the Permanent Court of International Justice took this position and strongly affirmed it in two subsequent Advisory Opinions: [Series B 10, p. 21; Series B 14, p. 36] 'The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.' It cannot be denied that at a certain point it becomes sheer formalism to argue that a restriction on the exercise of sovereign rights accepted by treaty cannot be considered as an infringement of sovereignty.

Then, a position may have been created in which-to use Judge Hudson's apt description in his Separate Opinion in the case of the Lighthouses in Crete and Samos (1937)-the theoretical sovereignty remaining in the State consenting to such limitation of its independence is 'shorn of the last vestige of power,' and in which 'a ghost of a hollow sovereignty cannot be permitted to obscure the realities of this situation.' [Series A/B 71, p. 127.] Yet even if such a 'realistic' interpretation of the law should lead to the conclusion that, in a case of this kind, a State may have ceased to be a sovereign State or to exercise sovereignty in a certain territory, it still remains true that any independent State is entitled to sign away sovereign rights to this extent."

I Schwarzenberger, International Law (1949) 58-59.

แ Sovereignty cannot be absolute. A state, in fact, exercises sovereignty when it joins with other states in policies and agrees to mutual limitations upon individual freedom of action in order to accommodate for the good of its own people to the facts of interdependence. The United Nations Charter, which cuts deeply into the older absolute ideas of independence and sovereignty, bears witness to this fact. . . .”

William Sanders, "Multilateral Diplomacy", XXI Bulletin, Department of State, No. 527, Aug. 8, 1949, pp. 163, 169.

"The difference between the United Nations and the Soviet plans [for an international control system for atomic energy] reflects a fundamental cleavage between the aims of the majority and the minority. Representatives of Canada, China, France, the United Kingdom, and the United States reported as follows to the General Assembly in 1949:

"All the Sponsoring Powers other than the U.S.S.R. put world security first and are prepared to accept innovations in traditional concepts of international cooperation, national sovereignty and economic organization where these are necessary for security. The Government of the U.S.S.R. puts its sovereignty first and is unwilling to accept measures which may impinge upon or interfere with its rigid exercise of unimpeded state sovereignty.'

"The willingness to accept some restrictions on sovereignty is one of the great and hopeful attitudes in the world today. The Schuman proposal with respect to the European coal and steel industries is the most recent example of this progressive spirit."

Philip C. Jessup, Ambassador at Large, address delivered at Hamilton College, Clinton, N.Y., June 11, 1950, XXIII Bulletin, Department of State. No. 574, July 3, 1950, pp. 26, 28.

"Passionately devoted to the realization of a European federation which will put an end to secular antagonisms, France has put aside her legitimate resentment against the enemy of yesterday, demanding of it only that it bring to the cause of coop