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The term "official duty" as used in this Article and Agreed Minutes is Committee of representatives of the United States and Japan to consult
not meant to include all acts by members of the United States armed on all matters requiring mutual consultation regarding the implementa-
forces and the civilian component during periods when they are on duty, tion of the Agreement; and provided that if the Committee ". . . is una-
but is meant to apply only to acts which are required to be done as func- ble to resolve any matter, it shall refer that matter to the respective
tions of those duties which the individuals are performing. governments for further consideration through appropriate channels."
The Joint Committee, af€er prolonged deliberation, was unable to
Similarly, the Agreed Official Minutes Regarding Article
agree. The issue was referred to higher authority which authorized the
XIII of the Philippines Bases Agreement as Revised 56 United States representatives on the Joint Committee to notify the ap-
contains language identical to the Korean Agreement. The propriate Japanese authorities, in accordance with paragraph 3(c) of the
Philippine Agreement, however, precedes the above Protocol, that the United States had decided not to exercise, but to
language by a provision that "[tlhe term 'official duty' . . . waive, whatever jurisdiction it might have in the case. The Secretary of
is understood to be any duty or service required or State and the Secretary of Defense decided that this determination
should be carried out. The Resident wnfiied their joint conclusion.
authorized to be done by statute, regulation, the order of a "A sovereign nation has exclusive jurisdiction to punish offenses
superior or military usage." The celebrated Girard case 57 against its laws committed within its borders, unless it expressly or im-
arose out of a dispute between the Japanese and United pliedly consents to surrender its jurrction." Schooner Exchange v.
States authorities as to whether the offense involved arose McFaddon, 7 Cranch 116, 136. Japan's cession to the United States of
out of the performance of official duty. jurisdiction to try American military pemnnel for conduct constituting
an offense against the laws of both countries was conditioned by the
(b) Wilson v. Girard. 58 covenant of Article XW, section 3, paragraph (c) of the Protocol that
. .. .. . The authorities of the State having the primary r@t shall give
A Security Treaty between Japan and the United States, signed Sep- sympathetic consideration to a request from the authorities of the
tember 8, 1951, was ratified by the Senate on March 20, 1952, and other State for a waiver of its right in cases where the other State wn-
proclaimed by the President effective April 28, 152 [TIAS24911. Article siders such waiver to be of particular importance.
III of the Treaty authorized the making of Administrative Agreements . .
between the two Governments concerning "[tlhe conditions which The issue for our decision is therefori narrowed to the question
shall govern the disposition of armed forces of the United States of whether, upon the record before us, the Constitution or legislation sub-
America in and about Japan." Expressly acting under this provision, the sequent to the Security Treaty prohibited the canying out of this provi-
two Nations, on February 28, 1952, signed an Administrative Agree- sion authorized by 'the Treaty for waiver of the quatitied jurisdiction
ment covering, among other matters, the jursidiction of the United granted by Japan. We find no constitutional or statutory barrier to the
States over offenses committed in Japan by members of the United encroachments, the wisdom of the- arrangement is exclusively for the
States armed forces, and providing that jurisdiction in any case might be determination of the Executive and Legislative Branches.
waived by the United States [TIAS 24921. This Agreement became (c) "Official Duty'' in NATO Countries. A defi-
effective on the same date as the Security Treaty (April 28, 1952) and ciency of the jurisdictional arrangements of the NATO
was considered by the Senate before consent was given to the Treaty.
Article XVII, paragraph 1 of the Administrative Agreement provided SOFA and of the Japanese Administrative Agreement
that upon the coming into effect of the "Agreement between the Parties which in Japan gave rise to the jurisdictional dispute in the
to the North Atlantic Treaty regarding the Status of their Forces," Girardcase, is the fact that the treaty does not specify who
[TIAS 28461 signed June 19, 1951, the United States would conclude may determine definitely whether a given offense arose
with Japan an agreement on aimhal jurisdiction similar to the corre- out of the performance of official duty. The authorities,
sponding provisions of the NATO Agreement. The NATO Agreement
became effective August 23, 1953, and the United States and Japan both official and unofficial, are divided on this point. In
signed on September 29, 1953, effective October 29, 1953, a Protocol spite of the absence of definitive provisions in the NATO
Agreement [TIAS 28981 pursuant to the covenant in paragraph 1 of Ar- SOFA, serious disputes regarding official duty determina-
ticle XVII. tions have been avoided by means of the acceptance by
Girard, a Specialist Third Class in the United States Army, was the receiving State of the certZcate of the United States
engaged on January 30, 1957, with members of his cavalry regiment in
a small unit exercise at Camp Weir range area, Japan. Japanese civilians authorities as to performance of official duty, and by the
were present in the area, retrieving expended cartridge cases. Guard and judicious use of the waiver provisions of the Agreement.
another Specialist Third Class were ordered to guard a machine gun and Thus, a Turkish statute makes the United States certificate
some items of clothing that had been left nearby. Girard had a grenade determinative.59 In France, a circular of the French Min-
launcher on his rifle. He placed an expended 30 caliber cartridge case in istry of Justice provides that the determination of the
the grenade launcher and projected it by firing a blank. The expended
cartridge case penetrated the back of a Japanese women gathering ex- sending State will be accepted as conclusive if it is ren-
pended cartridge cases and caused her death. dered by a staff judge advocate or legal officer. 60 This,
The United States claimed the right to try Gid upon the ground however, has not been the practice in the United
that his act, as certified by his commanding officer, was "done in the Kingdom. The Supplementary Agreement (Article 18)
performance of offcial duty" and therefore the United States had pri- with the Federal Republic of Germany provides that this
mary jurisdiction. Japan inisted that it had proof that Girard's action was determination shall be made in accordance with sending
without the scope of hi official duty and therefore that Japan had the
'primary right to try him. State law and that the German court or authority "shall
'
Article XXVI of the Administrative Agreement established a Joint make its decision in conformity with" the certificate of the
military authorities in this respect. In effect, then, the Ger-
56. [I9651 16 U.S.T. 1090, T.I.A.S. No. 5851. man authorities do, in the first instance, accept the certifi-
57. Wilson v. Girard, 354 U.S. 524 (1957).
58. Id. See Baldwin, Foreign Jurisdiction and the American Soldier,
1958 Wis. L. Rev.52, for a review of official duty determination prob- 59. See Snee & Pye, supra note 40, at 52.
lems. 60. Id. at 51.