Uncertain Rest: The Nebulous Legal Status of Overseas Military Cemeteries

The image of a cemetery, particularly a military cemetery, conjures up many thoughts and emotions, ranging from honor and dignity of place to personal and national loss to essentially sacred concepts of the sanctity of the burial spot. Underneath these thoughts and emotions, however, is the much more practical consideration that these sacred areas of territory are just that, territorial areas to which property and other law applies. Indeed, whether at home or overseas, without a governing legal regime these areas, as sacred as they are, would not exist. The issue of law surrounding the territorial spaces of military cemeteries – including access to them, their upkeep and the memorial practices that take place inside them – is particularly important in the context of overseas military cemeteries, which were created after several wars and in a variety of political situations. Although these cemeteries were typically constructed decades ago, the law surrounding them and their overall legal and practical existence is becoming increasingly important as political changes in some states have resulted in the targeting of these cemeteries for vandalism and desecration, while in other states issues of urban planning and cemetery location have occurred since the creation of the cemetery. Even without these threats, the laws governing overseas military cemeteries are important for the legal construction of the spaces they occupy in the minds of the “sending state” – the state whose troops were lost overseas – and in the “host state” – the state in which the cemetery is located. This article addresses these issues by examining the overseas military cemetery practices of several states for legal trends and inconsistencies, namely the United States and the United Kingdom. These states were selected because they represent the majority of overseas military cemeteries that are currently in use throughout the world, however agreements between other sending states, such as France, and host states are included in analysis where relevant. The article examines the growth of overseas military cemeteries as an acceptable method of honoring fallen soldiers and provides an overview of the extent to which overseas military cemeteries exist and are used today. It discusses the various legal agreements used to establish overseas military cemeteries and the importance of the inclusion and omission of certain key legal ideas, such as the grant of the land used for overseas military cemeteries to the sending state in perpetuity to the construction of overseas military cemeteries as legal entities. The article highlights the essential uncertainties of legal status that exist as a result of the inconsistencies in these terms and argues that the generally nebulous nature of the legal status of overseas military cemeteries has created a grey area of law that will become increasingly important as political instability and land development issues call into question the perpetual sanctity of these cemeteries. The article concludes that the issue of legal status of overseas military cemeteries has been overlooked for a very long time and yet should be reassessed in order to ensure the protection of the sites now and in the future.