Imagini ale paginilor
PDF
ePub

Article XXIII

Whenever a member of the United States Personnel in Spain is arrested, detained, or otherwise prosecuted by Spanish authorities, in criminal or quasi-criminal (cases of contraband) proceedings, he will be appropriately advised, through an interpreter if required, of the specific charges against him, and of his legal rights. The military authorities of the United States will be advised immediately of his arrest. detention, or prosecution, and he will then be permitted to communicate with a representative of the United States Government, who may be present throughout the investigative and judicial phases of the entire proceedings even in the event such proceedings are held behind closed doors for reasons of public order or morality.

Article XXIV

For the purpose of Articles XXVI and XXVII of this Agreement, the term "civilian employees of the United States Forces" also includes "local labor personnel", within the meaning of Article XXXIII of this Agreement when such personnel are acting in the performance of official duty assigned to them by the United States Forces. This term does not include contractors of the United States and the employees of such contractors, nor does it include other civilian personnel of the United States Forces.

Article XXV

1. Each Government waives all its claims against the other for damages, in Spanish territory, to the properties owned or used by said Government if the damage:

a. was caused by military personnel or civilian employees of the armed forces of the other Government in the performance of official duties; or

b. was caused by use of any vehicles, ship or aircraft owned or utilized by the other Government and used by its armed forces, provided that the vehicle, ship or aircraft causing the damage was being used for official purposes. Each of the two Governments waives all its claims against the other for rescue or salvage, either maritime or aerial, provided that the rescued or salvaged ship, aircraft or cargo was owned by the other Government and used by its armed forces at the time of the incident.

2. Each Government waives all its claims against the other for injury or death suffered by military personnel or civilian employees of its armed forces while the said military personnel or civilian employees were engaged in the performance of official duties.

3. For the purpose of this Article, it is understood that "local labor personnel" shall be considered as civilian employees of the armed forces of the United States.

Article XXVI

1. Military members of the United States Personnel in Spain and civilian employees of the United States Forces shall not be subject to suit before Spanish courts or authorities for claims arising out of acts or omissions attributable to such persons done in the performance of their official duties. Such claims may be presented to the Spanish Military Administration and processed according to the provisions contained in Article XXVII of this Agreement.

2. If it should be necessary to determine the applicability of paragraph 1 of this Article, the military authorities of the United States may issue an official certificate stating that a certain act or omission of a military member of the United States Personnel in Spain or civilian employee of the United States Forces was done in the performance of his official duties. The Spanish authorities will accept such certificate as sufficient proof of the performance of official duty. When in a particular case the Spanish authorities consider that a certificate of official duty requires clarification, it shall be the subject of expeditious review by the Joint Committee for Politico-Military Administrative Affairs.

Article XXVII

Claims, other than contractual claims, for injury or damage in Spain to Spanish persons or property arising out of acts or omissions done in the performance of official duties by military members of the United States Personnel in Spain or civilian employees of the United States Forces, or out of any other act, omission or occurrence for which the United States Armed Forces are legally responsible, and not otherwise satisfied by the United States, shall be dealt with by the Spanish authorities in accordance with the following provisions:

1. Claims for damages shall be presented, processed and decided according to the

rules of Spanish law applicable to claims arising from the activities of the armed forces of Spain.

2. The appropriate Spanish authorities shall decide on the admissibility of the claim and, when the case warrants, the amount of damages to be awarded, and shall pay the amount to the claimant or claimants.

3. A determination of the amount of compensation made by the appropriate Spanish authorities under the provisions of paragraph 2 of this Article, whether decided administratively or determined by court decisions, shall be binding and conclusive upon the Governments of Spain and the United States. The military authorities of the United States, shall be informed through the Joint Committee for Politico-Military Administrative Affairs of the determination in a detailed report giving background data, the legal grounds for the decision, procedures followed, and the decision taken, accompanied by a proposal for the sharing of the sum involved in conformity with the terms of paragraph 4 of this Article.

4. The amount of compensation determined by the appropriate Spanish authorities under the provisions of paragraph 2 of this Article shall be shared between the parties as follows:

a. Where the United States alone is responsible the amount awarded or adjudged shall be shared in the proportion of 25 percent chargeable to the Government of Spain and 75 percent chargeable to the Government of the United States.

b. Where the United States and Spain are jointly responsible for the damage, the amount awarded or adjudged shall be apportioned between them according to their comparative responsibility, but, in any case, no more than 75 percent of the amount shall be chargeable to the United States. Where the damage was caused by the armed forces of the United States or Spain, or jointly, and, because of insufficient evidence, it is not possible to attribute the damage specifically to one of the forces or to apportion the damage between the forces according to their comparative responsibility, the amount awarded or adjudged shall be shared equally between Spain and the United States.

c. The proposed distribution referred to in paragraph 3 of this Article shall be regarded as having been accepted by the military authorities of the United States, unless those authorities within 60 days after receipt of the proposal, request consultations in the Joint Committee for Politico-Military Administrative Affairs. which consultations shall be undertaken expeditiously. If, within 60 days after the request by the military authorities of the United States, such consultations do not result in agreement regarding an appropriate distribution, the matter shall be referred to an arbitrator selected by agreement between the two Governments from among the nationals of Spain who hold or have held high judicial office. The arbitrator shall decide a formula of distribution in accord with the principles of subparagraphs a. and b. above, and his decision shall be binding and conclusive on the two Governments. The compensation of the arbitrator shall be fixed by agreement between the two Governments and shall, together with the necessary expenses incidental to the performance of his duties, be shared equally by them. 5. Every three months a statement of the sums determined by the Spanish authorities in the course of the three-month period in respect of every case regarding which the proposed distribution has been accepted by the military authorities of the United States shall be sent to the appropriate United States authorities together with a request for payment. Such payment shall be made in Spanish currency within the shortest possible time, but not more than 60 days from the receipt of such request for payment.

Article XXVIII

Claims for injury or damage to persons or property in Spain caused by reason of exercises or maneuvers carried out by the United States Forces with the express authorization of the Spanish Government shall be governed by the agreement reached in each case by the authorities of the two Governments.

Article XXIX

The Government of the United States shall require that insurance contracts be effected to cover civil liabilities that may be incurred in Spanish territory as a result of acts or omissions done in the performance of duty by employees of contractors and subcontractors of the United States Forces, or by those members of the United States Personnel in Spain, other than dependents, to whom the provisions of Articles XXVI and XXVII of this Agreement are not applicable. The terms and conditions of such insurance contracts shall be determined in an appropriate procedural annex.

Article XXX

1. Damage or injury caused in Spanish territory to persons or property by acts or omissions of military members of the United States Personnel in Spain or civilian employees of the United States Forces not done in the performance of official duties may, at the election of the claimant, be dealt with by:

a. the prosecution of a suit before a Spanish civil court; or

b. a claim against the Government of the United States, processed through the following procedures:

(1) The claim, addressed to the United States Foreign Claims Commission, will be submitted to the Joint Committee for Politico-Military Administrative Affairs. (2) After having obtained precise information, the Committee will issue a detailed report on the claim submitted and the damages sought;

(3) Within 60 days of receipt by the Committee, the claim, with the report of the Committee, will be transmitted to the Foreign Claims Commission for decision; (4) In making the final decision, the Foreign Claims Commission shall take into account the recommendations of the Joint Committee for Politico-Military Administrative Affairs.

2. The filing of a suit before a Spanish civil court against a military member of the United States Personnel in Spain or civilian employee of the United States Forces will be considered to be the renuniciation of any right of the Spanish Government or of the person filing the suit to compensation by the Government of the United States in accordance with this Article. However, when such a suit is terminated because of the issuance by the military authorities of the United States of the certificate of official duty referred to in paragraph 2 of Article XXVI of this Agreement, a claim may be processed according to the provisions of Article XXVII of this Agreement, if applicable, or according to the provisions of paragraph 1.b. of this Article.

Article XXXI

The compulsory insurance of official motor vehicles of the United States Government and of privately owned vehicles belonging to United States Personnel in Spain shall continue to be regulated by the Agreement of November 30, 1965, as supplemented by the rules agreed on for its implementation dated March 25, 1966, or by any other agreement that may replace it. The aforesaid Agreement and rules, or those that may replace them, shall have prior application with respect to the filing and settlement of claims arising from the operation of the said vehicles in accordance with the provisions of Articles XXVII and XXX of this Agreement.

Article XXXII

The military authorities of the United States shall render all assistance permitted by United States law to secure compliance with judgments, decisions, orders and settlements in connection with civil liabilities established by Spanish courts and authorities.

Procedural Annex XVI

Waiver of Primary Right to Exercise

Criminal Jurisdiction Over

United States Personnel in Spain

1. A request for a waiver of the primary right to exercise jurisdiction, specified in Article XVII of the Agreement in Implementation will be made in accordance with the provisions of this Annex.

2. The request for a waiver of the primary right to exercise jurisdiction shall be presented:

a. by the United States, no later than 15 days after the military authorities of the United States have been notified of the initiation of proceedings by the appropriate Spanish authorities;

b. by Spain, no later than 15 days after the military authorities of the United States, having been notified that a member of the United States Personnel in Spain has been charged by Spanish authorities, assert their primary right to exercise jurisdiction pursuant to paragraph 3a of Article XV of the Agreement in Implementation.

3. A request for a waiver of the primary right to exercise jurisdiction shall be decided, and the requesting authorities notified of the decision, within thirty days of the receipt of the request. If such notification is not given within the indicated time period the request will be considered granted.

4. In the cases when in application of the provisions of Article XVII of the Agreement in Implementation Spain waives its primary right to exercise jurisdiction in favor of the United States military authorities, the following provisions shall be observed:

a. The Spanish Government may appoint an observer to be present at sessions of any United States court-martial which hears the case. Whenever possible, such sessions will take place in Spanish territory.

b. The waiver by Spain of its right to exercise jurisdiction shall in no case imply any loss of the rights recognized for injured parties in Articles XXVII and XXX of the Agreement in Implementation.

84

Jurisdiction Based on Universal and
Other State Interests

85

Jurisdiction over Vessels

Fishing Vessels

U.S.-Mexico Fisheries Agreement

The U.S.-Mexico fisheries agreement signed on November 24, 1976; entered into force November 24, 1976, following unilateral extensions by both countries of their fisheries jurisdiction to 200 miles, provides for jurisdiction with respect to U.S. vessels in the zone off the Mexican coast, as follows:

Article VII

1. The Government of the United States of America shall take all appropriate measures, to the extent permissible under its national laws, to ensure that the United States fishing vessels that have valid permits to fish comply with this Agreement and applicable Mexican law.

2. In particular, the authorized Mexican officials shall have the right to stop, board and inspect any fishing vessel of the United States of America that is fishing in the Zone when there is reason to believe that it is not complying with the requirements that have been established for its fishing activity by the Government of Mexico as provided by this Agreement.

3. In cases of seizure and arrest of a vessel of the United States of America, notification shall be given promptly through diplomatic channels, informing the Government of the United States of America of the action taken and of any penalties subsequently imposed.

Article VIII

1. The Government of Mexico may impose penalties, as provided by Mexican law, on those fishing vessels of the United States of America that violate this Agreement.

2. Arrested vessels and their crews shall be promptly released upon the posting of bond or other security reasonably related to the penalty.

3. Penalties for violations of fisheries regulations applicable to fishing by vessels of the United States of America in the Zone shall not include imprisonment or any other form of corporal punishment.

4. In the annual consultation provided for in Article XIX, the Government of Mexico will take into account any substantial violations by fishing vessels of the United States of America that may have occurred the previous years.

For additional information concerning the agreement, see post, Ch. 7, § 4, p. 360. For information concerning the U.S.-Mexico interim arrangement on maritime boundaries signed Nov. 24, 1976, see post, Ch. 7, § 3, pp. 348–350.

Violation of U.S. Fisheries Laws

The U.S. Court of Appeals for the Fifth Circuit, in United States v. Ayo-Gonzalez, 536 F.2d 652 (1976), reviewed the conviction of the master of a Cuban fishing vessel for illegally fishing in the contiguous fishing zone of the United States and the judgment of forfeiture awarded the United States on a libel in rem charging the vessel with the same illegal act in violation of the Bartlett Act, 16 U.S.C. §§ 1081, 1082, 1091, and 1092. Appellant contended that the trial court had erred in (1) denying his suppression motion based on alleged violation of Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)); and (2) rejecting his contention that some form of mens rea must be proved to sustain a conviction under 16 U.S.C. 1081, which makes it unlawful for foreign vessels to fish in the contiguous zone.

The Appeals Court, on August 6, 1976, affirmed the judgment of the lower court. It held that in view of other evidence of the identity of the captain of the Cuban fishing vessel, any failure of authorities to inform the captain of his Miranda rights before asking him to identify himself as captain resulted, at most, in only harmless error. Secondly, it held that proof of culpability or fault was neither statutorily nor constitutionally necessary to sustain the captain's conviction or the vessel's forfeiture. The statute prohibiting foreign vessels from fishing in the zone, said the Court, was not based on any common law offense, but is a regulatory measure designed to protect both the commercial fishing industry and marine wildlife; it is a typical malum prohibitum offense. The constitutional requirement of due process was not violated, the Court held, because mens rea is not a required element of the proscribed crime.

Rear Admiral Ricardo A. Ratti, Chief Counsel of the Coast Guard, issued an opinion dated December 10, 1975, on Coast Guard authority for search, detention, seizure, and arrest of suspected violators of fisheries law when the basis of Coast Guard response is third party information.

.. Authority for seizure of foreign vessels for violation of Federal law is found in 14 U.S.C. 89 and 16 U.S.C. 1083(e). Under the former, a seizure may be made "when . . . .. it appears" that the vessel has violated a domestic law rendering it subject to seizure. Under the latter, a seizure may be made, with or without a warrant, when it "reasonably appears" that the vessel has been used to violate the fishery laws set forth in 16 U.S.C. 1081. These two statutory provisions should be construed as being in consonance, each requiring an evidentiary standard of "reasonable cause" for seizure. "Reasonable cause" may be established solely on

« ÎnapoiContinuă »