It seems the US Military tries to have it both ways, They always say when something happens on a USA base somewhere around the world it is considered on USA soil. But when violence happens they say the air base is on Cuban or Japanese soil when a child is born. Which is it?
Daniel … Toronto
When do they say this?
US bases in foreign countries are not US soil. The relationship, legal status, and criminal jurisdiction depends on the specific Status of Forces Agreement between the US and the host country.
The OP is likely confusing US embassies and US military bases.
Contrary to popular conception, US embassies are NOT US territory. Same with the embassies of other countries. Fuller explanation.
Ah, thank you for that link.
I actually wrote a staff report on the embassy issue. It’s another one that disappeared from the archive. Here’s a copy:
[spoiler]**If the land on which a foreign embassy sits is considered the
property of the country it represents, how does that land become
property of another country? Let’s pretend another country, say,
Macaronia, has an embassy in New York City. If they wish to move
their embassy to Chicago or Los Angeles, what is the legal process
that must be followed in order for the private land in the US to
become Macaronian? Who pays for it? And what about the property they
left behind in the Big Apple?
Ken D., Iowa**
SDSTAFF Gfactor replies:
Well, Ken, I hate to be the bearer of bad tidings, but your initial premise is . . . well . . . wrong. That’s not to say that people have claimed that embassies are the territory of the State whose embassy it is. But it is a theory that has been rejected. For example, Barry Carter and his coauthors, in their textbook on international law, say, “Contrary to popular belief, however, diplomatic mission and consular post properties are not extensions of the sending state’s territory. Both in fact and in law, diplomatic premises are within the territory of the receiving state.” What causes the confusion is the general rule that diplomatic missions are inviolable.
That means that the receiving state’s police cannot enter an embassy without the sending state’s consent. But it doesn’t mean that the receiving state’s laws don’t apply there. They do, and embassies most comply with local building and fire codes. And while those codes cannot be enforced directly, the Secretary of State is authorized to “withhold benefits” from sending states that do not comply with local laws.
Several U.S. cases address the embassy as foreign territory theory. In one case, protestors refused to leave the Iranian embassy. The head of the embassy waived inviolability and invited the police to enter and arrest the demonstrators. In court, the demonstrators argued that they had not violated any U.S. laws because they were in the Iranian embassy, and hence (so they thought) on Iranian territory. The court didn’t buy the argument. Similarly, two courts held that American hostages held in the American embassy in Iran could not sue the Islamic Republic of Iran. Iran asserted a defense under the Foreign Sovereign Immunities Act. The defense might have failed if the act denies the defense for certain acts committed with in United States territory. The courts held that the embassy was not U.S. territory and denied the plaintiffs relief based on the FSIA.
Obviously, this answer makes your remaining questions less interesting. The basic answer in the United States is that the Office of Foreign Missions manages property acquisition by sending states for missions. Of course, that doesn’t mean that there isn’t anything interesting about foreign missions. Diplomatic immunity and the inviolability of missions causes some problems for landlords. For example, in 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire to the United Nations, the Second Circuit Court of Appeals held that Zaire’s mission to the United Nations could not be evicted despite its failure to pay rent.
A different set of problems arises when a diplomatic delegation abandons its mission (mission refers to diplomatic or consular property, in this case). In the United Kingdom, like the United States, the government can require that title to abandoned missions be vested in its agents. This happened in London with the Cambodian Embassy. Embassy personnel closed the London embassy after the Pol Pot takeover in Cambodia in 1975. They handed the keys over to the Foreign Office. The UK withdrew recognition of the Cambodian government in 1979. Soon squatters moved into the embassy.
At that time, the government lacked statutory authority to do much about the situation. But in 1988, the premises were made subject to the Consular Premises Act, which permitted the Secretary of State to vest title to the premises in himself. This he did. The squatters challenged the secretary’s actions in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Samuel. The court upheld his actions, and the Court of Appeal supported him.
There is a related issue: Diplomatic asylum. It isn’t recognized as a matter of customary international law. There are some treaties that permit a State to grant asylum to those sought for political reasons or subject to prosecution for political offenses. A good example is the Convention on Diplomatic Asylum [OAS :: Page Not Found]. (Caracas 1954). The convention was negotiated under the auspices of the Organization of American States, but only 14 members have ratified it. Between those states there is a right of asylum in, “any seat of a regular diplomatic mission, the residence of chiefs of mission, and the premises provided by them for the dwelling places of asylees when the number of the latter exceeds the normal capacity of the buildings,” all of which are called legations under the treaty. The treaty gives the state from which asylum is sought the right to grant asylum or deny it. Asylum without treaty almost got tested when the Vatican embassy in Panama gave Manuel Noriega asyslum. He surrendered before the asylum claim was put to the test.
By the way, renting or lending to a diplomat, whether for a mission or for a private residence can be very tricky. For example, in Rodriguez v. Republic of Costa Rica, the plaintiffs leased space to the Fourniers, who were General Consul and Vice-Consul of Costa Rica, they included a clause in the lease that required the premises to be used for residential premises only, and prohibited subletting. The Fourniers ignored this provision and began operating the Costa Rican Consulate from the premises. They also failed to pay rent.
Rodriguez sued the Fourniers, the Costa Rican Consulate, and the government of Costa Rica, the Court eventually found that the two government entities were immune from suit under the Foreign Sovereign Immunities Act. The Fourniers stayed on the property and maintained a consulate there for 16 months after Rodriguez terminated the lease. The while the Court finally awarded Rodriguez around $80,000. Rodriguez was fortunate that the Fournier removed the embassy. It would have been close to impossible to remove the Consulate without Costa Rica’s consent.
Another issue arose in a case involving the Yugoslavian Consulate, the U.S. padlocked the building that contained the Yugoslavian Consulate and other tenants. In 767 Third Avenue Associates v. United States, (1995), the Federal Circuit held that the government’s actions in closing and seizing the assets of
the mission and blocking entry to the building for three months did not amount to a compensable taking of the landlord’s leasehold rights. The Court reasoned that the landlord had no “reasonable investment-backed expectation . . . that its leases to the [tenant] would proceed totally without interference by the government.â€
References:
Carter, Barry, et al., International Law (4th ed. 2003)
"Department of State Jurisdiction, American Association of Motor Vehicle Administrators: Uh-oh...something's wrong here. - American Association of Motor Vehicle Administrators - AAMVA
Foreign Missions Act of 1982, 22 U.S.C. �� 4301, et. seq: http://www.law.cornell.edu/uscode/html/uscode22/usc_sup_01_22_10_53.html
Rodriguez v. Republic of Costa Rica, 297 F.3d 1; 2002 U.S. App. LEXIS 14162 (1st Cir. 2002): http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-1713.01A
Romano, Jay, “YOUR HOME;Diplomats And Their Immunity,” New York Times, March 31, 1996: http://query.nytimes.com/gst/fullpage.html?res=9E02E2DE1239F932A05750C0A960958260&sec=&pagewanted=1
Shaw, Malcolm, International Law (5th ed. 2003)
Sidley Austin Brown & Wood, LLP, Loan and Mortgage Transactions with Foreign Persons Entitled to Immunity, July 2002: http://www.sidley.com/db30/cgi-bin/pubs/Loan%20Mortgage.pdf
Siegler, Richard, and Talel, Eva, “Diplomatic Immunity Revisited,” New York Law Journal, January 6, 2005: http://www.stroock.com/SiteFiles/Pub319.pdf
United States Department of State, Office of Foreign Missions, Real Property, Taxation & Parking FAQ: We apologize for the inconvenience... - United States Department of State
Weis, Lois, “Foreign leases raise questions: overseas’ governments need special handling as tenants,” Real Estate Weekly, July 26, 1995: http://www.highbeam.com/doc/1G1-17351639.html
Weiss, Lois, “Owners and lawyers react to recent embassy decisions,” Real Estate Weekly, July 26, 1995: http://www.highbeam.com/doc/1G1-17351641.html
Winiarsky, Nativ, and Zelman, Abner, “Obstacles Arise When Tenant is Foreign State,” New York Law Journal, September 30, 2002: http://www.kuckerandbruh.com/pdfs/winiarsky_nylj_20020930.pdf
–SDSTAFF Gfactor
Straight Dope Science Advisory Board[/spoiler]
Can you give examples of anyone trying to have it either way given in your OP?
But anyway, it looks like your actual question is what happens when a child is born. In that case, they fill out a form and register the childbirth abroad. The child is a natural born citizen but this only because who his parents were and not that he was delivered in the embassy elevator or a hospital on a military base. Many times, the child can retain dual citizenship.
**Bricker **addressed the bases for citizenship here: How do you become a dual citizen? - The Straight Dope