An Impassé at the Musée – The American Battle Monuments Commission and the French Health Pass

This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain, 30th Anniversary of the United Nations Convention on the Rights of the Child, United Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice, and Informality Beyond COVID-Casual – IMF and ILO Report on the Global Informal Workforce.

Arriving at the pristine American Cemetery in Normandy, a visitor’s first stop before touring the burial grounds is the visitor center, where one can learn all about the D-Day beaches and talk to experts about the site and its history. You can imagine our surprise when my husband and I arrived at the visitor center in August, only to discover that it was completely closed to the public – until further notice. Upon further inspection, we found this sign:

While disappointed to not be able to visit the visitor center, we were equally intrigued as to why there would be a conflict between the new French health pass, required to enter all museums and restaurants in France, including the Louvre, the Musée d’Orsay, and even the Rodin Gardens, and the authority of American Battle Monuments Commission (ABMC) staff to control it? Unfortunately, my research did not shed any light on the reason why they could not control the French health pass. However, the impassé brought up some interesting questions about the United States’ physical presence outside its territory, and the applicable law.

The American Battle Monuments Commission

Established by Congress in 1923, the ABMC is an agency of the United States executive branch that commemorates the service, achievements, and sacrifice of U.S. armed forces. The ABMC administers, operates, and maintains 26 permanent American military cemeteries and 31 monuments, located in 17 countries across Europe, Asia, Central America, and the Middle East. ABMC cemeteries commemorate nearly 35,000 interments and memorializations for World War I, and close to 200,000 interments and memorializations for World War II. The ABMC also administers cemeteries and memorials for U.S. service members from the Korean War and the Vietnam War.

The Law at the American Cemetery

The treaty governing the American Cemetery in Normandy is the Agreement relating to the grant of plots of land located in France for the creation of permanent military cemeteries or the construction of war memorials, with annexes (275 UNTS 37) (Cemetery Agreement), signed by the United States and France in 1956, and registered with the United Nations in 1957. The treaty granted designated plots of land, as enumerated in the maps in the annexes, to the United States for exclusive use to create permanent military cemeteries and the construction of war memorials, without limitation of duration. While the agreement provides that the United States administers the cemeteries and war memorials, it stipulates in article 4 that “It is understood that the Government of the United States will submit and conform to the French laws and regulations on the policing of burial grounds…” Reflecting on this agreement, the ABMC notes that the cemetery grounds are not American territory, and that host nation law applies.

Land Grants vs. Lease Agreements

The legal situation in most instances where the United States is physically present in another country is substantially different. While the law applicable at the American Cemetery in Normandy is clearly French law, per the land grant conveyed by the Cemetery Agreement, the United States most commonly uses lease agreements when it has a physical location in a foreign country. Lease agreements, such as the 1901 lease agreement (7 Bevans 1113) between the United States and Cuba for Guantánamo Bay, which are commonly used to establish U.S. military bases around the world, provide that while the lessor state continues to have ultimate sovereignty over the area, the lessee state exercises complete jurisdiction and control.

In the case of embassies, the legal situation is also different – in this case, the sending country, say the United States, is accorded certain immunities from the host country’s laws, through various treaties. The Vienna Convention on Diplomatic Relations (596 UNTS 261) a widely ratified treaty with 193 parties, provides that the premises of the mission shall be inviolable (article 22) and exempt from taxes (article 23). However, whether leased or purchased, the physical presence of the embassy in the host country would not be “U.S. territory,” as is commonly assumed.

International Law and Gravesites

Beyond the specific question regarding which law applies at the American Cemetery in Normandy (French, per the Cemetery Agreement), it can also be interesting to inquire whether other sources of international law have anything to say about cemeteries and gravesites for military personnel. In fact, articles 225 and 226 of the 1919 Treaty of Versailles (2 Bevans 43) provide that the signatories to the treaty commit to respect and maintain the graves of the soldiers and sailors buried in their respective territories. In addition, the various instruments regulating international humanitarian law provide a series of provisions on war dead and their gravesites, including respecting religious beliefs when possible. Closely related to this issue, international human rights law can also be an important source of law in governing and protecting cemeteries and gravesites, including by recognizing freedom of religion and the right to privacy, as provided in the International Covenant on Civil and Political Rights (TIAS 92-908) (ICCPR), as well as various regional treaties and legal instruments.

While unable to explore the visitor center at the American Cemetery in Normandy, all was not lost. We were able to access the cemetery grounds, where we were privileged to witness the evening lowering of the American flag.