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temporaneous with the framing of the Constitution, for Constitutional obligations it assumed under the treaty. It would seem
adjudication." . . . that other signatory states would expect to be bound
In the consideration of the constitutional question here we believe it finally by the dete~mination of each subdivision in such
should be pointed out that, in addition to the alternative types of
procedure available to the Government in the prosecution of civilian matters as requests for waivers, etc. 45 See in this respect
dependents and mentioned in Kinsella v. Singleton, supra, additional the Supplementary Agreement with Germany 46 wherein
practical alternatives have been suggested in the case of employees of the the initial determinations with respect to exercise of crirni-
armed service. One solution might possibly be to follow a procedure nal jurisdiction are made by the German States
along the line of that provided for paymasters' clerks as approved in Ex (Laender).
parte Reed, supra. Another would incorporate those civilian employees
who are to be stationed outside of the United States directly into the c. Personal Obligation to Respect Local Law (Article
armed services, either by compulsory induction or by voluntary enlist- II). Ifa member of the force of the sending State violate*
ment. If a doctor or dentist may be "drafted" into the armed services, law of the receiving State, Article VII of the NATO SOFA
50 U.S.C. Appendix section 454(i), extended, 73 Stat. 13,50 U.S.C.A. will be the guide in determining if the receiving State will
Appendix section 454 (i); Orloff v. Wioughby, 1953, 345, U.S. 83, 84;
73 S.Ct. 534, 97 L.Ed. 842, there should be no legal objection to the try the member. The question still arises, however,
organization and recruitment of other civilian specialists needed by the whether a violation of the local law under Article 11is ipso
armed services. facto an offense under Article 134 of the UCMJ so that he
I
Moreover, the armed services presently have suRicient authority to may be tried by the sendii State. If the receiving State
set up a system for the voluntary enlistment of "specialists." This was
done with much success during the Second World War. "The Navy's tries him, the problem of double jeopardy arises in any at-
Construction Battalions, popularly known as the Seabees, were estab- tempt by the sending State also to exercise jurisdiction. 47
lished to meet the wartime need for uniformed men to perform con- If the receiving State does not try the individual then the
struction work in combat areas." 1 Building the Nally's Bases in World problem is twofold. (1) Every violation of one of U.S.
War I1 (1947) 133.-Just as electricians, clerks, draftsmen, and sur- local State laws is not in itself an offense under the
veyors were enlisted as "specialists" in the Seabees, id., at 136, provi- Uniform Code; there must be some service discrediting
sions can be made for the voluntary enlistment of an electrician
(Guagliardo), an auditor (Wilson), or an accountant (Grisharn). It facts and circumstances attendant to the violation. 48
likewise appears entirely possible that the present "Specialist" program Therefore, reasoning by analogy, if the individual is not
conducted by the Deparmtent of the Army could be utilized to replace triable under any other article of the Code, the foreign in-
civilian employees if disciplinary problems required military control. fraction does not automatically cause him to violate Arti-
Although some workers might hesitate to give up their civilian status for cle 134. (2) If, however, the charge is based not on a
government employment overseas, it is unlikely that the armed forces
would be unable to obtain a sufficient number of volunteers to meet violation of the law of the receiving State, but upon a
their requirements. The increased cost to maintain these employees in a violation by an individual of Article 11of the treaty then
military status is the price the Government must pay to comply with the question is whether a violation of a treaty, which is the
constitutional requirements. supreme law of the land under our Constitution, is in itself
The judgment in No. 21 [Guagliardo] is affmned and the judgment in
No. 37 [Win] is reversed. a federal criminal offense. One aspect of this question
came before the Court of Military Appeals in United
An attempt to exercise jurisdiction over a civilian accom- States v. Ekenstam. 49 In that case the accused was
panying the U.S. forces in Vietnam under Article 2(10), charged with a violation of Article 134 under a specifica-
UCMJ, was rejected in United States v. Averette 44 which tion which alleged that he had violated a provision of the
held that the phase "in time of war" means a "declared Administrative Agreement with Japan by selling nonap-
war." propriated fund merchandise to a Japanese national. The
b. Application to Political Subdivisions. Article 1(2) is court acquitted him on the ground that the specification
applicable to those states which are organized along did not state an offense under the Code. One judge held
Federal lines, such as the United States and Canada. Nor- that the Admininstrative Agreement with Japan bound
mally the powers of such a state are divided between the
Federal Government and the political subdivisions. Such the signatory governments and not individuals, and that
is not the case in unitary statessuch as Denmark and Ire-
land. Article 1(2) was inserted in order to make it clear 45. 1 L. Oppenheim, International Law 175-79 (8th ed. Lauter-
that all subdivisions of each state are bound by the treaty, pacht 1955) analyzes the problems in international law presented by a
not merely the Federal Government. Article 1(2) is clear Federal State whose Federal Government sometimes does not speak in
international affairs for all of its component parts. See, e.g., The At-
as to that objective. However, it raises certain other prob- torney General of Canada v. The Attorney General of Ontario and
lems. Does it purport to give each subdivision that has Others, 53 T.L.R. 325 (1937) wherein the limited power of The
autonomy within the Federal structure a direct voice in Government in International Affairs is clearly illustrated.
the administration of the treaty; Normally in a Federal 46. Agreement to Supplement the Agreement between the Parties
State the Federal Government alone represents the State to the North Atlantic Treaty regarding the Status of their Forces with
respect to Foreign Forces stationed in the Federal Republic of Ger-
in foreign relations. It alone has signed the NATO SOFA. many, [I9631 14 U.S.T. 531, T.I.A.S. No. 535.
It alone is responsible to the other signatory states for the 47. Art. VII, 8 8.
48. United States v. Grosso, 7 U.S.C.M.A. 566, 20 C.M.R. 30
44. 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970); accord, U.S. v. (1957); United States v. Hughes, 7 C.M.R. 803 (1953).
Zamora & Wiiams, 19 U.S.C.M.A. 403, 42 C.M.R. 5 (1970). 49. 7 U.S.C.M.A. 168, 21 C.M.R. 294 (1956).