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in any event an individual could not commit a military sending State there would be no exclusive jurisdiction in
offense by violating a treaty. The court cited Over the the receiving State. The Grosso and Ekenstam cases dis-
Top, 50 which held that the Federal criminal code cannot cussed above in regard to Article I1 also have reference to
be enlarged by treaty. If it could then a Federal criminal Article VII. They indicate the formulation of a rule that
law can be made without the participation of the House of would prevent the expansion of Article 134, UCMJ, in a
Representatives. Two years later in United States v. Cur- way that would change the effect of the exclusive jurisdic-
tin, 51 the Court of Military Appeals again held that the tion provisions of Article W.It is doubtful if the exclusive
Japanese Administrative Agreement did not bind in- jurisdiction of the receiving State can be reduced through
dividuals. The exact point has not been raised in regard to the application of Article 134, UCMJ. On the other hand,
the NATO SOFA. Ifit is raised and it is determined that however, the practical result of the loss of court-martial
Article II, NATO SOFA, does bind individuals then the jurisdiction over accompanying dependents and civilian
Court will be faced with its dictum in Ekenstam that such a employees is to expand the scope of the exclusive jurisdic-
violation of a treaty is not a violation of a Federal criminal tion of the receiving State.
law. (2) Concurrent Jurisdiction.
d. The Division of Jurisdictional Competence Between (a) Primary Right in the Sending State or Receiv-
the Sending and the Receiving State. The right to exercise ing State. Having determined that an offense is subject to
jurisdiction as between the receiving State and the sending concurrent jurisdiction (i.e., that it is punishable both
State is governed by the jurisdictional formula of Article under the law of the receiving State and under the
W of the NATO SOFA. This formula characterizes
UCMJ), the question arises as to which State has the pri-
offenses as being subject to the exclusive jurisdiction of mary right to exercise jurisdiction. This determination is
the sending State, to the exclusive jurisdiction of the governed by the jurisdictional formula of Article VII,
receiving State, and to concurrent jurisdiction.
NATO SOFA, which provides that the receiving State has
(I) Exclusive Jurisdiction. the primary right to exercise jurisdiction over all concur-
(a) Exclusive Jurisdiction in the Sending State. rent jurisdiction offenses except those solely against the
Most offenses over which the United States would have properly or security of the sending State or solely against
exclusive jurisdiction would be purely military type the person or property of another member of the force or
offenses, such as AWOL, desertion, disrespect, etc. civilian component or of a dependent or those arising out of
Offenses relating to security are treason, sabotage, and es- any act or omission done in the performance of official
pionage against the United States, offenses with which the duty. Problems which frequently arise in connection with
receiving State is nor particularly concerned. The Krueger concurrent jurisdiction are concerned with that portion of
and Covert, 52 the Guaglirado and Bohlender, 53 and the Article W which provides that the sending State has the
Singleton 54 cases have restricted the exclusive jurisdiction primary right in cases involving "offenses arising out of
of the United States as a sending State by eliminating any act or omission done in the performance of official
dependents and U.S. civilian employees from the category duty." These problems fall generally into two groups.
of "persons subject to the military law" of the United First, there is the question as to whether the particular
States. offense arose out of the performance of official duty, and,
(b) Exclusive Jurisdiction in the Receiving State. If second, the question as to who has the right to make the
Article 134, UCMJ, and Article 11, NATO SOFA, were final determination of whether or not it arose out of the
construed to make any act which is punishable by the performance of official duty. Initially, it should be noted
receiving State also punishable by the United States as a that the phrase "performance of official duty" is not in-
tended to refer to a legal concept which is peculiar to one
particular nation. Consistent with United States policy of
50. 5 F.2d 838 @.Corm. 1925).
51. 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). Judge Ferguson, asserting jurisdiction over its personnel whenever possi-
speaking for the majority stated: ble, the United States military authorities construe this
[w]e held in that case [EKENSTAM], that the Adminsitrative was phrase broadly. In France, the United States successfully
intended to defme the rights and obligations of the signatory govern- maintained that travelmg to and from work is the per-
ments rather than to prescribe the conduct of individuals or organiza- formance of official duty. On the other hand, Franqe
tions subject to their authority and thus the specification failed to state
the offense. maintained that offenses requiring specific intent could not
For other cases on the application of treaties directly to individuals, see arise out of the performance of official duty. The Korean
Jurisdiction Over the Courts of Danzig, [I9281 P.C.I.J. ser. B, No. 15 Status of Forces Agreement 55 has attempted to delineate
digested in 5 G. Hackworth, Digest of International Law 171; United more precisely the concept of "official duty" as it is used
States v. Rauscher, 119 U.S. 407 (1886); The Over the Top, 5 F.2d 838 in its jurisdictional formula. The Agreed Minutes Re Arti-
(1925); United States v. Smigar, 6 U.S.C.M.A. 330, 29 C.M.R. 46
(1955). cle 22 provide:
52. 354 U.S. 1 (1957).
53. 361 U.S. 281 (1960).
54. KinseUa v. Singleton, 361 U.S. 234 (1960). 55. [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127.